Power, David v. Summers, Phillip M.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3183
Douglas Power, et al.,
Plaintiffs-Appellants,
v.
Phillip M. Summers, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. TH97-188-C M/F--Larry J. McKinney, Judge.
Argued May 8, 2000--Decided September 5, 2000
Before Bauer, Posner, and Diane P. Wood, Circuit
Judges.
Posner, Circuit Judge. Three professors at
Vincennes University, a public university in
Indiana, brought suit under 42 U.S.C. sec. 1983
against the president, other officials, and the
trustees of the university, charging retaliation
for the exercise of the plaintiffs’ First
Amendment right of free speech and seeking both
injunctive relief and damages. The president is
sued in both his official and individual
capacity, the trustees only in their official
capacity. A suit against a state official in his
or her official capacity is a suit against the
state, and so is barred by the Eleventh Amendment
unless (so far as pertains to this case) the
state has waived its Eleventh Amendment immunity
from suit in federal court. The district court
dismissed the official-capacity claims as barred
by the Eleventh Amendment and then granted
summary judgment on the individual-capacity
claims on the ground that the alleged retaliation
did not amount to an adverse employment action
and so was not actionable.
Since section 1983 does not authorize suits
against states (states not being "persons" within
the statute’s meaning), Arizonans for Official
English v. Arizona, 520 U.S. 43, 69 (1997); Will
v. Michigan Dept. of State Police, 491 U.S. 58,
66 (1989), Higgins v. Mississippi, 217 F.3d 951,
953 (7th Cir. 2000), the district court should
have dismissed the official-capacity claims
before addressing the Eleventh Amendment defense,
the sequence ordained by Vermont Agency of
Natural Resources v. United States ex rel.
Stevens, 120 S. Ct. 1858, 1865-66 (2000). Which
is not to say that the court was wrong to think
Vincennes University an arm of the state and thus
protected from suit in federal court by the
Eleventh Amendment. The university was created by
an Indiana statute, two-thirds of its budget
comes from the state and the rest from tuition,
and nine of its fourteen trustees are appointed
by the governor. Previous decisions have
established that other Indiana state universities
are state agencies for purposes of the Eleventh
Amendment, Kashani v. Purdue University, 813 F.2d
843, 845 (7th Cir. 1987); Shelton v. Trustees of
Indiana University, 891 F.2d 165, 166 (7th Cir.
1989), and the only differences to which the
plaintiffs point us--that Vincennes alone has
authority to receive funds from a county tax levy
and that four of its trustees are required to be
from the region of the state served by the
university and in fact nine of the current
trustees are from that region--do not come close
to showing that Vincennes is really a local
rather than a state agency. It appears that none
of its budget is in fact funded by the county tax
levy, and the fact that a state agency has a
geographically limited jurisdiction does not make
it a local agency. Osteen v. Henley, 13 F.3d 221,
223 (7th Cir. 1993); Fouche v. Jekyll Island-
State Park Authority, 713 F.2d 1518, 1520-22
(11th Cir. 1983). The Tennessee Valley Authority
is a federal agency even though it has a specific
geographical domain. Vincennes University is a
state agency with a local mission.
It is true that the statute creating it includes
a very broad "sue and be sued" clause: the
trustees shall be "capable of suing and being
sued . . . in all courts and places whatsoever."
Ind. Code sec. 23-13-18-1(b)(1). Read literally,
this is consent to being sued in federal court.
Yet similar language has been read not to create
such consent. Atascadero State Hospital v.
Scanlon 473 U.S. 234, 241 (1985); Huang v. Board
of Governors, 902 F.2d 1134, 1138-39 and n. 4
(4th Cir. 1990). The statutory language that we
quoted may be intended to mean only that the
state agency can remove a suit against it to
federal court (and thus consent to being sued in
that court), which it couldn’t do in the absence
of a statutory waiver of sovereign immunity, Ford
Motor Co. v. Department of Treasury, 323 U.S.
459, 466-67 (1945); Estate of Porter v. Illinois,
36 F.2d 684, 690-91 (7th Cir. 1994); Silver v.
Baggiano, 804 F.2d 1211, 1214-15 (11th Cir.
1986); compare In re Innes, 184 F.3d 1275, 1280
(10th Cir. 1999), or that, should it want to
bring a suit in federal court, it can avoid an
argument that since it could not be sued in that
court, and therefore could not be subjected to a
counterclaim (other than a setoff), see, e.g.,
Federal Savings & Loan Inc. Corp. v. Quinn, 419
F.2d 1014, 1017 (7th Cir. 1969), In re
Monongahela Rye Liquors, Inc., 141 F.2d 864, 869
(3d Cir. 1944), it would not be proper to allow
it to sue in federal court--that would give it an
unfair advantage over the defendant. In re
Creative Goldsmiths of Washington, D.C., Inc.,
119 F.3d 1140, 1148 (4th Cir. 1997). But whether
this is right does not matter here because the
plaintiffs did not argue waiver in the district
court and so the issue is--waived. Ryan v.
Illinois Department of Children & Family
Services, 185 F.3d 751, 758 (7th Cir. 1999);
Merrill Tenant Council v. U.S. Dept. of Housing &
Urban Development, 638 F.2d 1086, 1093-94 (7th
Cir. 1981); Becker v. University of Nebraska, 191
F.3d 904, 909 n. 4 (8th Cir. 1999).
Left are the individual-capacity claims against
the university’s president and other officials,
and also the possibility that the plaintiffs, if
they succeed in proving retaliation, can obtain
injunctive relief against the university, since
official-capacity suits against state officials
that seek only injunctive relief are permitted by
42 U.S.C. sec. 1983, Will v. Michigan Dept. of
State Police, supra, 491 U.S. at 71 n. 10, and
not forbidden by the Eleventh Amendment. Ex Parte
Young, 209 U.S. 123 (1908); Bethesda Lutheran
Homes & Services, Inc. v. Leean, 122 F.3d 443,
444 (7th Cir. 1997). The simplest form of such
relief would be an injunction forbidding--
retaliation. That might seem to add little to the
First Amendment, which already prohibits (more
precisely, has been interpreted to prohibit)
retaliating against the exercise of one’s First
Amendment right of free speech. But such an
injunction would at least add contempt to the
other sanctions for violating the First
Amendment. It is not uncommon for an injunction
to repeat a statutory or equivalent prohibition,
United States v. Miller, 588 F.2d 1256, 1261 (9th
Cir. 1978); SEC v. Manor Nursing Centers, Inc.,
458 F.2d 1082, 1103 (2d Cir. 1972), and this is
proper relief, as the Supreme Court emphasized in
McComb v. Jacksonville Paper Co., 336 U.S. 187,
191-92 (1949), in order to prevent the defendant
from repeating his violation in slightly
different form, unless the prohibition is so
nebulous that a violation of the injunction could
not be punished as a contempt of court. Swift v.
United States, 196 U.S. 375, 401 (1905) (Holmes,
J.); City of Mishawaka v. American Electric Power
Co., 616 F.2d 976, 991 (7th Cir. 1980); see Fed.
R. Civ. P. 65(d). The term "retaliation" is not
so vague that a defendant enjoined from
retaliating against a person for exercising his
right of free speech would not know what he could
and could not do with reference to that person.
The plaintiffs want more than a simple
injunction against retaliation. To see what more,
we must turn to the facts they’re alleging. For
1995, the trustees authorized a "catch-up" salary
raise for the faculty. This was to be a
discretionary, merit-based raise rather than an
across-the-board raise, but sufficient funds were
appropriated to enable an average raise of
$1,000. The plaintiffs, although their
performance ratings ranged from average to
excellent, received only $400 apiece. They claim
that this was because they were "outspoken" on
issues of faculty salaries, and the defendants
concede that these so-called "merit" raises were
actually used to reward faculty who were
combatting "dissension" and "divisiveness," that
for purposes of appeal it must be assumed that
the plaintiffs were speaking out on matters of
public concern and so were exercising the right
that the free-speech clause of the First
Amendment confers on them, and that no judicial
determination has been made about whether their
outspokenness was a factor in their receiving
raises so far below the average. The defendants
argue that despite these meager raises the
plaintiffs’ salaries rose relative to the average
salary in their division. But this means little
in itself, since such a result could come about
simply because higher-paid faculty members quit,
thus lowering the average.
Because the merit raise was an addition to base
salary, the below-average raise received by the
plaintiffs not only reduced the fringe benefits
they would have received had they gotten a higher
raise, but will reduce their future salaries; for
by being added to the base salary the amount of
the merit raise will be paid in all future years
to those faculty who were granted it. The
plaintiffs want an injunction commanding the
university to raise their base salary to what it
would have been had they not been discriminated
against on account of their outspokenness.
An injunction that is a simple order to pay is
not within Ex parte Young’s dispensation for
injunctions to restrain unconstitutional conduct,
Edelman v. Jordan, 415 U.S. 651, 666-69 (1974);
Mercer v. Magnant, 40 F.3d 893, 898-99 (7th Cir.
1994), as that would set the Eleventh Amendment
to naught by a verbal trick. But an injunction
that, as in Graham v. Richardson, 403 U.S. 365
(1971), forbids an improper classification by the
state is proper even if it has definite financial
implications. Edelman v. Jordan, supra, 415 U.S.
at 667; Continental Insurance Co. v. Illinois
Department of Transportation, 709 F.2d 471 (7th
Cir. 1983). And so an injunction that orders a
state employee who has been demoted because of
his exercise of a federally protected right to be
restored to his previous position is not barred
by the Eleventh Amendment even though it imposes
a salary obligation on the state. E.g., Elliott
v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986);
Thomson v. Harmony, 65 F.3d 1314, 1321 (6th Cir.
1995); Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir.
1985). That is a permissible characterization of
what the plaintiffs are seeking here.
All that remains to be considered is the
district court’s determination that because there
was no adverse employment action, the plaintiffs’
claim of retaliation cannot be maintained. There
are two steps in this analysis: retaliation is
not actionable in a suit under 42 U.S.C. sec.
1983 unless an adverse employment action is
shown; the denial of a discretionary raise is not
an adverse employment action. Both are in fact
missteps. Not section 1983, but the federal
statutes, such as Title VII of the Civil Rights
Act of 1964, that forbid invidious discrimination
in employment, limit their protection to victims
of "adverse employment action," which is judicial
shorthand (the term does not appear in the
statutes themselves) for the fact that these
statutes require the plaintiff to prove that the
employer’s action of which he is complaining
altered the terms or conditions of his
employment. Hunt v. City of Markham, No. 99-1331,
2000 WL 968540, at *4-5 (7th Cir. July 11, 2000).
There is no similar limitation in section 1983,
or the constitutional doctrines that it is a
vehicle for enforcing. McDonnell v. Cisneros, 84
F.3d 256, 258-59 (7th Cir. 1996). They are not,
of course, even limited to employment. Any
deprivation under color of law that is likely to
deter the exercise of free speech, whether by an
employee or anyone else, is actionable, even
something as trivial as making fun of an employee
for bringing a birthday cake to the office to
celebrate another employee’s birthday, Bart v.
Telford, 677 F.2d 622, 624 (7th Cir. 1982), if
(an important qualification, emphasized in Bart,
id. at 625) the circumstances are such as to make
such a refusal an effective deterrent to the
exercise of a fragile liberty. See, besides Bart,
McGill v. Board of Education, 602 F.2d 774, 780
(7th Cir. 1979); Glass v. Dachel, 2 F.3d 733, 741
(7th Cir. 1993); Duran v. City of Douglas, 904
F.2d 1372, 1378 (9th Cir. 1990). What confused
the district court is DeGuiseppe v. Village of
Bellwood, 68 F.3d 187, 191 (7th Cir. 1995), where
we said that an employee must demonstrate an
adverse employment action in order to complain
about retaliation for the exercise of First
Amendment rights. All we meant was that the
action of which the employee is complaining must
be sufficiently "adverse" to deter the exercise
of those rights. That is plain from the further
discussion of the issue in DeGuiseppe, explaining
that "a campaign of petty harassment" and "even
minor forms of retaliation," "diminished
responsibility, or false accusations" can be
actionable under the First Amendment. 68 F.3d at
192. See also Dahm v. Flynn, 60 F.3d 253, 257
(7th Cir. 1994). Vincennes University, which
despite its grand name is only a two-year
college, pays low salaries to its faculty and we
certainly cannot say as a matter of law that
denying a raise of several hundred dollars as
punishment for speaking out is unlikely to deter
the exercise of free speech; a tenure system does
not select for boldness.
Even if an adverse employment action within the
meaning of the antidiscrimination statutes were
required in a section 1983 case (and, to repeat,
it is not), it would not follow that the denial
of a raise would not qualify as such an action
merely because the raise was discretionary. This
would be obvious if the basis for exercising such
discretion to deny an individual a raise were
race or sex. See, e.g., Riordan v. Kempiners, 831
F.2d 690, 695 (7th Cir. 1987); Dugan v. Ball
State University, 815 F.2d 1132 (7th Cir. 1987).
It is true that in Miller v. American Family
Mutual Ins. Co., 203 F.3d 997, 1006 (7th Cir.
2000), we held that the denial of a bonus was not
an adverse employment action within the meaning
of Title VII. Since a bonus is like a raise, the
defendants want us to rule that the denial of a
raise cannot be an adverse employment action
either. But as we explained in Hunt v. City of
Markham, supra, there is a difference between a
bonus and a raise. Bonuses generally are
sporadic, irregular, unpredictable, and wholly
discretionary on the part of the employer, while
raises are normal and expected, if only to offset
inflation, which while mild in the United States
today is not negligible. The raise at issue here
was a catch-up raise which, so far as appears,
most of the faculty received, and while it was a
one-time raise it had, unlike a bonus, continuing
effects, because it was added to the recipients’
base salary. We decline to hold as a matter of
law that the denial of such a raise (or of the
full raise that the plaintiffs could have
expected had it not been for the defendants’
retaliatory animus toward them) cannot be an
adverse employment action--and we repeat that no
such action need be shown in a suit under section
1983. There is after all a difference between
placing all (but the tiniest) employers in the
nation, most of which are private, under a
comprehensive regime of antidiscrimination law,
and merely forbidding persons acting under color
of state law to infringe constitutional rights.
The district court’s dismissal of the official-
capacity claim is affirmed, but the dismissal of
the other claims is reversed and the case
remanded for further proceedings consistent with
this opinion.
Affirmed in Part,
Reversed in Part,
and Remanded.