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Howell v. Millersville University of Pennsylvania

United States District Court, E.D. Pennsylvania

July 27, 2017

ALLEN HOWELL, Plaintiff
v.
MILLERSVILLE UNIVERSITY OF PENNSYLVANIA; MICHEAL HOULAHAN; PHILLIP TACKA; N. KEITH WILEY; CHRISTY BANKS; and DIANE UMBLE, Defendants

          OPINION DEFENDANT'S MOTION TO DISMISS, ECF NO. 9 - GRANTED IN PART AND DENIED IN PART

          Joseph F. Leeson, Jr. United States District Judge.

         I. Introduction

         Allen Howell is an associate professor in the music department at Millersville University of Pennsylvania, a public university that is part of the Pennsylvania State System of Higher Education. He joined Millersville in August 2014, after his position as professor of music at another Pennsylvania university was eliminated. He claims that a number of faculty members at Millersville were not pleased about the prospect of bringing on an older faculty member from another institution and that they and the University have harassed him and discriminated against him because of his age. He also claims that they retaliated against him for critical comments he has made about the University and for alerting the University to gender-based harassment that was occurring in one of his classes.

         The University and the faculty members have moved to dismiss each of Howell's claims. They contend that Howell's age discrimination claims are barred by sovereign immunity and that his retaliation claims both fail to plausibly allege a causal link between the protected conduct he engaged in and the retaliation he claims to have suffered. They are correct about Howell's retaliation claims, but sovereign immunity does not bar his age discrimination claims.

         II. Background

         According to Howell, the mistreatment he suffered began immediately after he started at Millersville. He claims that he was hired specifically to be Millersville's “Director of Choral Activities” (according to Howell, “his letter of appointment indicated that he was to be given the position”), but was never given that title or assigned those duties. Am. Compl. ¶¶ 39-40, 45. Then, in the fall of 2015, approximately a year after he started, he applied for a full professor position (to restore him to the full professor position he held at his prior university), but he was informed in July 2016 that his application had been denied-ostensibly because of his “performance ranking.” Id. ¶¶ 49, 59. He claims that was simply a pretext for age discrimination.

         Howell also claims that he was retailiated against for speaking critically about the University. He forthrightly acknowledges that he “has been highly critical of the governance of Millersville in general and of the Music Department in particular” in comments he has made, “primarily in the form of ‘blogs' or electronically made and disseminated statements.” Id. ¶¶ 62-63. He claims that he was retaliated against for making those comments-retaliation that “includ[ed], but [was] not limited to, the denial of [the] promotion [he sought] and the failure to acknowledge his appointment as Director of Choral Activities.” Id. ¶ 149.

         Finally, Howell claims that during the spring 2017 semester, while teaching a class called “Love Songs Through the Ages: Sex Positive Themes in Vocal Music, ” three male students-the only male students who enrolled in the class-harassed one or more of the female students in the class. Id. ¶¶ 36, 64-67. Howell claims that he asked the University to conduct a “Title IX Investigation” into the harassment, but was retaliated against for bringing the harassment to the University's attention. Id. ¶¶ 68, 142. The retaliation he claims to have suffered is the same retaliation he claims to have suffered for making critical comments about the University- retaliation that “includ[ed], but [was] not limited to, the denial of [the] promotion [he sought] and the failure to acknowledge his appointment as Director of Choral Activities.” Id. ¶ 141.

         Howell's complaint contains four claims. Three of them-discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), hostile work environment under the ADEA, and retaliation in violation of the First Amendment-he levies against five University faculty members. The fourth claim-retaliation in violation of Title IX of the Education Amendments of 1972-he brings against the University.[1] The University and the faculty members have moved to dismiss all four claims.[2]

         III. Howell's ADEA claims are not barred by the Eleventh Amendment.[3]

         The faculty members contend that Howell's ADEA claims are barred by Pennsylvania's Eleventh Amendment immunity, in light of Millersville's status as part of the Commonwealth.

         Howell recognized that he could not sue Millersville itself, given that Congress did not validly abrogate the states' sovereign immunity to suit under the ADEA. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000). So instead, he brought his ADEA claims solely against the five faculty members in their official capacities-and solely for prospective injunctive relief, not money damages-relying on the principle that the Eleventh Amendment does not bar suits to enjoin individual state officials from violating federal law. See Ex parte Young, 209 U.S. 123 (1908).

         In the analogous context of a suit under the Americans with Disabilities Act, the Supreme Court suggested that Howell's approach would be proper. In Board of Trustees of University of Alabama v. Garrett, the Court held that the ADA-like the ADEA-did not validly abrogate the states' sovereign immunity to suit, but nonetheless noted that “the ADA still prescribes standards applicable to the States, ” which “can be enforced by . . . private individuals in actions for injunctive relief under Ex parte Young.” 531 U.S. 356, 374 n.9 (2001). Since Garrett, the Third Circuit has had the opportunity to squarely confront the question, and twice it has turned away Eleventh Amendment challenges to claims like Howell's-first, in a case involving the ADA, see Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (citing Garrett and holding that “federal ADA claims for prospective injunctive relief against state officials are authorized by the Ex parte Young doctrine”), and more recently, in a case involving both the ADA and the ADEA, see Smith v. Sec'y of Dep't of Envtl. Prot., 540 F. App'x 80 (3d Cir. 2013) (per curiam) (reversing the dismissal of ADA and ADEA claims against the head of a Pennsylvania state agency and directing the district court to consider the plaintiff's claim for injunctive relief); see also Smith v. Sec'y of Dep't of Envtl. Prot., No. 12-2189, 2013 WL 6388555 (E.D. Pa. Dec. 5, 2013) (on remand, allowing the plaintiff to proceed with his claim for injunctive relief in the form of an order directing the Secretary to hire him for a position he had been denied). Sovereign immunity, therefore, is no bar to Howell's claims.

         The faculty members contend that even if Howell's claims are not barred by the Eleventh Amendment, they are barred by the ADEA itself because “the ADEA does not provide for individual liability, ” only liability against the “employer.” See Hill v. Borough of Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006). But by suing these faculty members in their official capacities-rather than their individual capacities-Howell has met that requirement. The term “employer” under the ADEA includes “any agent” of the employer, see 29 U.S.C. § 630(b), and “an official sued in his official capacity is an ‘agent' of the state employer.” Koslow, 302 F.3d at 178 ...


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