United States District Court, N.D. Alabama, Western Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
matter is before the court on The University of
“University”) Motion to Dismiss filed on February
1, 2019. (Doc. 7). The University of Alabama argues that the
claims brought pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 626(b),
are due to be dismissed because the University is immune from
suit on these claims under the Eleventh Amendment to the
United States Constitution, because the Plaintiff failed to
exhaust administrative remedies for her retaliation claim,
and because plaintiff has failed to plead a plausible case of
retaliation. The plaintiff filed a document in response,
titled “Plaintiff's Motion to Proceed with Civil
Case against the University of Alabama, which alleges that
she can provide proof of her allegations but does not address
subject-matter jurisdiction in any way. (Doc. 9). The parties
have consented to dispositive jurisdiction by a United States
Magistrate Judge in accordance with 28 U.S.C. § 636(c).
assertion of Eleventh Amendment immunity challenges the
subject matter jurisdiction of the court and is treated as a
motion filed pursuant to Federal Rule of Civil Procedure
12(b)(1). See Black v. Wigington, 811 F.3d 1259,
1270 (11th Cir. 2016) (“Sovereign immunity is a
question of jurisdiction. . . .”); see also Gordon
v. Bentley, No. 7:15-cv-02282-LSC, 2016 WL 4379537, at
*1 (N.D. Ala. Aug. 17, 2016) (“The issue of whether a
defendant is entitled to Eleventh Amendment immunity is a
threshold question of jurisdiction.”). Where the entity
asserting the immunity is an arm of the state, and there has
been no waiver or express abrogation of that immunity, the
Eleventh Amendment serves as a jurisdictional bar to suit.
See Gordon, 2016 WL 4379537, at *1-2.
Rule 12(b)(1) motion, “attacks on subject matter
jurisdiction . . . come in two forms[:]” facial
challenges and factual challenges. Lawrence v.
Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990).
“Facial challenges to subject matter jurisdiction are
based solely on the allegations in the complaint.”
Carmichael v. Kellogg, Brown & Root Services,
Inc., 572 F.3d 1271, 1280 (11th Cir. 2009). For factual
challenges, “the court must, as with a Rule 12(b)(6)
motion, take the complaint's allegations as true.”
Carmichael, 572 F.3d at 1280. Factual challenges
attack “‘the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings, such as testimony and
affidavits, are considered.'” Lawrence,
919 F.3d at 1529 (quoting Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Here, because the
defendant does not “challenge jurisdiction on facts not
available in the complaint[, ]” the defendant has
facially, not factually, challenged the existence of subject
matter jurisdiction as it relates to the ADEA claims brought
against the University. Gordon, 2016 WL 4379537, at
plaintiff's ADEA claims against the University are due to
be dismissed because the claims are barred by the Eleventh
Amendment, which prohibits federal courts from exercising
jurisdiction over a State or an arm of a State when sued by
private individuals without the state's consent.
“Although the express language of the amendment does
not bar suits against a State by its own citizens, the
Supreme Court has held that an unconsenting state is immune
from lawsuits brought in federal court by the state's own
citizens.” Carr v. City of Florence, 916 F.2d
1521, 1524 (11th Cir. 1990). A citizen may bring a suit
against a State in federal court if Congress abrogates the
States' Eleventh Amendment immunity “pursuant to
the enforcement provisions of [S]ection 5 of the [F]ourteenth
[A]mendment” or if a State “waive[s] its immunity
expressly through legislative enactment.”
Carr, 916 F.2d at 1524.
has not validly abrogated a State's Eleventh Amendment
immunity in ADEA cases. In Kimel v. Florida Bd. of
Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522
(2000) the Supreme Court held that, although the enactment of
the ADEA was an attempt by Congress to abrogate State
sovereign immunity, it was not a proper exercise of
abrogation power under § 5 of the Fourteenth Amendment
and, therefore, not valid. See also Harris v. Bd. of
Trustees Univ. of Alabama, 846 F.Supp.2d 1223, 1233
(N.D. Ala. 2012). Likewise, the State of Alabama has not
waived its immunity in ADEA cases. Ala. Const. art. 1, §
14 (“the State of Alabama shall never be made a
defendant in any court of law or equity.”).
well settled that state universities in Alabama, and the
boards that govern these universities, are state agencies for
purposes of Eleventh Amendment immunity. Harden v.
Adams, 760 F.2d 1158, 1173 (11th Cir. 1985), cert.
denied, 474 U.S. 1007 (1985) (“The Alabama Supreme
Court has also determined that the Board of Trustees of a
state university is entitled to sovereign immunity as an
instrumentality of the state.”); see also
Eubank, 210 Fed.Appx. at 844-45 (“The University
of Alabama Board of Trustees is a state agency . . .
.”); Harris v. Bd. of Trs. of the Univ. of
Ala., 846 F.Supp.2d 1223, 1233 (N.D. Ala. 2012);
Price v. Univ. of Alabama, 318 F.Supp.2d 1084, 1088
(N.D. Ala. 2003).
finding that the plaintiff's claims are barred by
Eleventh Amendment immunity, the court finds it is
unnecessary to address defendant's claims that the
plaintiff failed to exhaust her administrative remedies or
failed to state a prima facie case of retaliation.
The defendant's motion to dismiss the ADEA claims brought
against the Board on grounds of state sovereign immunity is
due to be granted, and all of plaintiff's claims are due
to be dismissed without prejudice for want of subject-matter
jurisdiction due to Eleventh Amendment immunity of the sole
extent that the plaintiff has alleged a claim for defamation
of character under Alabama state law, that claim is due to be
dismissed without prejudice. Because there are no remaining
viable federal claims in the case, the court is without
supplemental jurisdiction over the remaining state law
defamation claim. Accordingly, the plaintiffs defamation
claim is due to be dismissed without prejudice pursuant to 28
U.S.C. § 1367(c). A separate order will be entered.
 The motion and plaintiff's
subsequent response uses case style of Regina Patrice Harris
v. The Board of Trustees of the University of Alabama.
However, plaintiff has not filed an amended complaint to
change the defendant, and the original complaint lists the
University of Alabama (Brewer Porch) as the defendant.
Accordingly, the court will refer to the defendant as the
University of Alabama.
 The Eleventh Circuit Court of Appeals
has adopted as binding precedent the decisions of the former
Fifth Circuit decided prior to October 1, 1981. Bonner v.
City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
 In a form complaint, the plaintiff
only checked the box of “Age Discrimination in
Employment Act” when asked the basis of jurisdiction of
her claims. She does make some brief statements regarding
race, saying that “Dr. Grimes “target[ed]
Caucasian males to assist with therapy treatments.” To
the extent that plaintiff tried to raise any claims under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5,
for race discrimination, these claims would be due to be
dismissed as unexhausted because the plaintiff did not allege
race discrimination in her EEOC charge. More fundamentally,
such a complaint does not allege that she was the
victim of any employment-related racial
discrimination. To the extent certain clients at the
University's Brewer Porche Children's Center were
treated differently due to race, the plaintiff has no
standing to assert claims on their behalf, and certainly not
in her own name. Nor does the plaintiff allege that she
suffered retaliation with respect to an
employment-related protected activity. She alleges
that she suffered retaliation because she complained about
Dr. Grimes's special treatment of Caucasian clients. ...