State Not Immune From Bias Claims by Governor’s Aides

Monday, May 4, 2009

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State Not Immune From Bias Claims by Governor’s Aides—Ninth Circuit

By a MetNews Staff Writer

States are not immune from claims of employment discrimination and free-speech violations by employees in policymaking positions, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Disagreeing with a three-judge panel that ruled in November 2007, an en banc panel revived claims by two women who served on Walter Hickel’s policy staff when he was governor of Alaska.

In a 7-4 decision, with an eighth judge joining the majority in part, the court ruled that the Government Employee Rights Act of 1991 “unmistakably” expressed Congress’ intent to abrogate sovereign immunity for these types of claims.

The ruling remanded the claims of Margaret Ward and Lydia Jones to the Equal Employment Opportunity Commission, which had initially remanded their claims to an administrative law judge after determining it did not have jurisdiction to decide the constitutional issues of the case, set in Alaska’s turbulent politics of the 1990s.

In 1990, former Gov. Hickel—who had resigned as the state’s chief executive more than 20 years earlier to become Richard Nixon’s secretary of the interior—returned to the office as the candidate of the Alaska Independence Party.

Although a Republican who disagreed with the AIP’s advocacy of secession, Hickel had accepted the party’s nomination, which was offered after many Republicans began to publicly criticize their party’s nominee. He was joined by Jack Coghill, who had won the Republican primary for lieutenant governor, but dropped off that ticket to run as Hickel’s running mate.

Hickel named several of the lieutenant governor’s allies to his staff in deference to Coghill, including Ward as the director of his Anchorage office and Jones, who is now deceased, as Ward’s special staff assistant.

Both positions were exempt from the state’s civil service laws, and job descriptions explicitly stated that duties included assisting constituents and advancing the governor’s policy agenda.

Relations between the governor and lieutenant governor soured, however, as Hickel eventually moved back to the Republican Party while Coghill made plans to run in 1994 for the top job. (Coghill got 13 percent of the vote as the AIP candidate, as Democrat Tony Knowles won by a narrow margin.)

Suspecting that Ward and Jones were surreptitiously working for Coghill’s campaign, Hickel’s chief of staff warned them against any such involvement, and then placed them on administrative leave before eventually firing them after the two held a press conference to criticize the governor.

Ward and Jones later filed complaints with the EEOC. Ward alleged that she was the victim of sex discrimination and retaliation, while Jones, an African American, said she was the victim of race and sex discrimination, and had been sexually harassed by another staff member.

An administrative law judge determined that he lacked jurisdiction to rule on the state’s Eleventh Amendment objection to the proceedings and referred the matter to the commission, which concluded it too lacked jurisdiction and sent the case back to the ALJ before the Ninth Circuit—concluding that it should hear the matter under the unusual circumstances—agreed to hear an appeal.

In a decision authored by Senior Judge John T. Noonan, a majority of the panel ruled that GERA violated the Eleventh Amendment to the extent it purported to strip states of their prior immunity from suits by policymaking members of the governor’s staff.

Senior Judge J. Clifford Wallace concurred separately, reasoning that Congress had failed to develop an adequate record to demonstrate the need to apply GERA to the policymakers it exempted from the 1972 act, but Judge Richard A. Paez contended in his dissent that the need could be inferred from the record before Congress.

In Friday’s opinion for the en banc court, Chief Judge Alex Kozinski said GERA’s reference to states as potential defendants who must answer in damages was clear with respect to state employees’ claims that the state violated their Fourteenth Amendment right to equal protection by engaging in race- and gender-based pay discrimination

“GERA expressly covers state employees, and expressly gives them a right to collect damages ‘payable by the employer’—the state,” he wrote. “The only way Congress could have been clearer would have been to say ‘this act abrogates state sovereign immunity.’”

Judges Mary M. Schroeder, Sidney R. Thomas, Barry G. Silverman, Kim McLane Wardlaw, Marsha S. Berzon, and Milan D. Smith Jr. joined in Kozinski’s opinion.

Judge Diarmuid F. O’Scannlain concurred in part, and dissented in part. He agreed with Kozinski’s conclusion that the allegations of sex discrimination, if true, would establish an equal protection violation, but disagreed with Kozinski’s conclusion that the allegation of retaliatory discharge stated a constitutional violation.

Judge Sandra S. Ikuta, joined by Judges Richard C. Tallman and Consuelo M. Callahan, dissented, arguing that the court could not “infer a congressional intent to abrogate state sovereign immunity simply because the states are logically included within the set of potential defendants.”

The case is State of Alaska v. EEOC, 07-70174.