Siler-Khodr v. Univ TX Hlth Sci Ctr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-50092
_______________
THERESA M. SILER-KHODR,
Plaintiff-Appellee,
VERSUS
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER SAN ANTONIO, ET AL.,
Defendants,
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER SAN ANTONIO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
May 16, 2002
ON PETITION FOR
REHEARING EN BANC
(Opinion August 24, 2001, 261 F.3d 542)
Before POLITZ, DEMOSS, and STEWART,
Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. The court
having been polled at the request of one of the
members of the court, and a majority of the
judges who are in regular active service not
having voted in favor (FED. R. APP. P. 35 and
5TH CIR. R. 35), the petition for rehearing en
banc is DENIED.

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JERRY E. SMITH, Circuit Judge, with whom
HAROLD R. DEMOSS, JR., Circuit Judge, joins,
dissenting from the denial of rehearing en
banc:
I respectfully dissent from the court’s fail-
ure to grant en banc reconsideration in this im-
portant case. As a result of this failure, we
have lost an opportunity to bring our Eleventh
Amendment jurisprudence into conformity
with the Supreme Court’s recent caselaw.
I.
In affirming a judgment under the Equal
Pay Act (“EPA”), the panel majority rejected
Texas's argument that application of the EPA
to a state university violates the Eleventh
Amendment. Siler-Khodr v. Univ. Health Sci.
Ctr., 261 F.3d 542 (5th Cir. 2000).
Irrespective of whether particular judges like
it, however, the Supreme Court has been giv-
ing more and more Eleventh Amendment pro-
tection to the states. The panel majority opin-
ion takes no account of that trend.
The majority decision is inconsistent with
the Supreme Court’s Eleventh Amendment
jurisprudence in two significant respects.
First, as Judge DeMoss’s dissent ably
demonstrates, there is no indication that, when
it enacted the EPA, Congress sought to invoke
its powers under section 5 of the Fourteenth
Amendment. See Siler-Khoder, 261 F.3d at
551-58 (DeMoss, J., dissenting in part,
concurring in part). Because Congress almost
certainly relied solely on its powers under the
Commerce Clause, the EPA cannot pierce the
states’ sovereign immunity.
Second, even if Congress did properly
invoke its section 5 powers, the EPA fails the
“congruence and proportionality” test, which
requires that section 5 legislation not be “so
out of proportion to a supposed remedial or
preventive object that it cannot be understood
as responsive to, or designed to prevent, un-
constitutional behavior.” City of Boerne v.
Flores, 521 U.S. 507, 520, 531 (1997).
Although section 5 does give Congress the
power to enact “prophylactic” legislation that
prohibits conduct going beyond that which in
itself violates the Equal Protection Clause, sec-
tion 5 legislation is unconstitutional if it “pro-
hibits substantially more state employment de-
cisions and practices than would likely be held
unconstitutional under the applicable equal
protection . . . standard.” Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 86 (2000).
If the majority opinion were written on a
blank slate, it would be even easier for me to
urge en banc reconsideration followed by re-
versal. Appropriately, the majority relied in
part on the fact that the constitutionality of the
EPA has been upheld by five other circuits1
and in Ussery v. Louisiana, 150 F.3d 431 (5th
Cir. 1998). It is significant, however, that af-
ter deciding Kimel, the Court vacated and re-
manded two circuits’ opinions upholding the
EPA.2 The Court has not yet granted
certiorari in any of the cases upholding the
1See Varner v. Ill. State Univ., 226 F.3d 927
(7th Cir. 2000) (“Varner II”), cert. denied, 533
U.S. 902 (2001); Kovacevich v. Kent State Univ.,
224 F.3d 806, 819-21 (6th Cir. 2000); Hundert-
mark v. Fla. Dep’t of Transp., 205 F.3d 1272,
1274 (11th Cir. 2000); O’Sullivan v. Minnesota,
191 F.3d 965, 968 (8th Cir. 1999); Anderson v.
State Univ., 169 F.3d 117 (2d Cir. 1999), vacated
and remanded, 528 U.S. 1111 (2000).
2 See Anderson v. State Univ., 169 F.3d 117
(2d Cir. 1999), vacated and remanded, 528 U.S.
1111 (2000); Varner v. Ill. State Univ., 150 F.3d
706 (7th Cir. 1998) (“Varner I”), vacated and
remanded, 528 U.S. 1110 (2000).

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EPA since Kimel, but it seems likely that it
does not regard the issue as settled and is only
awaiting the emergence of a circuit split. Also,
importantly, the Court has rejected only one
relevant certiorari petition since Kimel.3
II.
A.
In enacting the EPA, Congress failed to in-
voke its powers under section 5. “Because
such legislation imposes congressional policy
on a state involuntarily, and because it often
intrudes on traditional state authority, we
should not quickly attribute to Congress an
unstated intent to act under its authority to en-
force the Fourteenth Amendment.” Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1,
16 (1981). An intent to invoke section 5 pow-
ers cannot be attributed to an act that
“nowhere states that is its purpose” and where
such a purpose is not evident from the
legislation’s “language and structure” or
legislative history. Id. at 17. For the reasons
well laid out in Judge DeMoss’s dissent, there
is no indication that Congress sought to use its
section 5 powersSSand there is a great deal of
evidence that it sought to use its powers under
the Commerce ClauseSSwhen it enacted the
1974 amendments to the EPA extending it to
cover the states. Siler-Khodr, 261 F.3d at
551-55 (DeMoss, J., dissenting).
Although the plaintiff may be right in sup-
posing that Congress need not explicitly in-
voke section 5 in the text of the statute,4 there
must be at least some significant indicationSSin
the text, structure, or legislative historySSthat
it sought to use its section 5 powers.
Congress cannot rely on section 5 without any
indication that it intended to do so.
Very recently, the Court specifically refused
to consider section 5 as a justification for the
constitutionality of a statute where “[t]here is
no suggestion in the language of the statute
itself, or in the House or Senate Reports of the
bill which became the statute that Congress
had in mind” its Fourteenth Amendment
powers. Fla. Prepaid Postsecondary Educ.
Expense Bd. v. College Sav. Bank, 527 U.S.
627, 642 n.7 (1999).5 Even in EEOC v.
Wyoming, 460 U.S. 226, 243 n.18 (1983), a
decision heavily relied on by the plaintiff and
by the United States as intervenor, the Court
noted that “[i]t is in the nature of our review
of congressional legislation defended on the
basis of Congress’s powers under Section 5 of
the Fourteenth Amendment that we be able to
discern some legislative purpose or factual
predicate that supports the exercise of that
power.”
Although Supreme Court precedent may be
equivocal as to how much indication of
congressional intent is necessary to invoke sec-
tion 5 properly, there is little doubt after
Florida Prepaid that at least some such
indication is required. The EPA does not meet
even this minimal standard.
3 See Varner II.
4 See EEOC v. Wyoming, 460 U.S. 226, 243
n.18 (1983) (holding that to invoke its § 5 powers,
Congress need not “anywhere recite the words
‘section 5’' or ‘Fourteenth Amendment’ or ‘equal
(continued...)
4(...continued)
protection’”).
5 See also Chavez v. Arte Publico Press, 204
F.3d 601, 604 (5th Cir. 2000) (acknowledging that
Florida Prepaid has clarified Supreme Court
precedent on this point).

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B.
The panel majority did not have the benefit
of Raygor v. Regents of the Univ. of Minn.,
122 S. Ct. 999 (2002), when it issued its
opinion. This new decision is further
indication of the Supreme Court’s increasing
receptiveness to Eleventh Amendment
arguments and reinforces my concerns about
the panel majority’s result and reasoning.
Raygor holds, in an Eleventh Amendment sov-
ereign immunity case, that “insofar as statutory
intent was ambiguous, we [will] not ‘attribute
to Congress an intent to intrude on state
governmental functions regardless of whether
Congress acted pursuant . . . to § 5 of the
Fourteenth Amendment.’” Id. at 1007
(quoting Gregory v. Ashcroft, 501 U.S. 452,
470 (1991)) (emphasis added). In such cases,
“it is not relevant whether Congress acted
pursuant to § 5.” Id. at 1007-08.
The specific context of Raygor was
statutory ambiguity over whether Congress
had intended to abrogate state sovereign
immunity at all. The Court’s reasoning,
however, is also applicable to the question
whether Congress sought to invoke section 5.
This conclusion is required by Raygor’s
emphatic statement that “[w]hen Congress
intends to alter the usual balance between the
States and the Federal Government, it must
make its intention to so unmistakably clear in
the language of the statute” to ensure that “the
legislature has in fact faced, and intended to
bring into issue, the critical matters involved in
the judicial decision” of an important question
of constitutional law. Id. at 1006 (citations
omitted). Obviously, we cannot ensure that
Congress faced the critical issue of the scope
of its section 5 powers in the process of
enacting the EPA if there is no indication that
it sought to invoke those powers at all.
Raygor does not resolve the question of
how strong an indication of congressional in-
tent is required; but it certainly holds that at
least some is necessary. Because the
regulation of state employees by the Equal Pay
Act undeniably “intrude[s] on state gov-
ernmental functions” and “alter[s] the usual
balance between the States and the Federal
Government,” Raygor strongly suggests that
there must be at least minimal indication that
Congress sought to invoke its powers under
section 5. Id. at 1006, 1007.
III.
Even if Congress did properly invoke its
powers under section 5, the EPA fails the test
of congruence and proportionality. “Congress
can enact broad prophylactic legislation that
prohibits conduct that is constitutional only
when there is a ‘congruence and propor-
tionality between the injury to be remedied and
the means adopted to that end.’” Kazmier v.
Widmann, 225 F.3d 519, 524 (5th Cir. 2000)
(quoting Kimel, 528 U.S. at 86). A statute
cannot be justified under section 5 if it
“prohibits substantially more state employment
decisions and practices” than are themselves
unconstitutional. Kimel, 528 U.S. at 86; see
also Kazmier, 225 F.3d at 524 (same).
If the EPA is to be justified at all under
section 5, it must be as a remedial measure
aimed at eradicating unconstitutional sex dis-
crimination. It is well established that the
Equal Prot ection Clause forbids only
intentional sex discrimination. Personnel
Adm’r v. Feeney, 442 U.S. 256 (1979).
Moreover, unconstitutional “[d]iscriminatory
purpose . . . implies more than intent as voli-
tion or intent as awareness of consequences .
. . . It implies that the decisionmaker . . .
selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely

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‘in spite of,’ its adverse effects on an
identifiable group.” Id. at 279 (quotation
omitted).
Unfortunately, the EPA goes far beyond
forbidding intentional sex discrimination. One
circuit has described it as a “strict liability”
statute under which “no intent to discriminate
need be shown.” Fallon v. Illinois, 882 F.2d
1206, 1213 (7th Cir. 1989). “Unlike the
showing required under Title VII’s disparate
treatment theory, proof of discriminatory
intent is not required to establish a prima facie
case under the Equal Pay Act.” Peters v. City
of Shreveport, 818 F.2d 1148, 1153 (5th Cir.
1987).6 Thus, there is a strong likelihood that
the EPA “prohibits substantially more state
employment decisions and practices than
would likely be held unconstitutional under the
applicable equal protection . . . standard.”
Kimel, 528 U.S. at 86.
The four affirmative defenses to a prima
facie case available under the EPA do not
eliminate the danger that it can be used to pro-
hibit an excessively large amount of
constitutional conduct. Once the plaintiff
establishes a prima facie case, these defenses
allow the defendant to justify the challenged
earnings disparity if it is a result of “(1) a
seniority system; (2) a merit system; (3) a
system which measures earnings by quantity or
quality of production; (4) any other factor
other than sex.” Fallon, 882 F.2d at 1211
(citing 29 U.S.C. § 206(d)(1) (1994)).
Although these four categories (and
particularly the catch-all last one) seem
comprehensive, there are likely to be many
cases in which none of them applies even in
the absence of intentional, unconstitutional sex
discrimination.
There may be numerous instances in which
an employment decision was made as a result
of difficult-to-articulate intuitive factors that
cannot be affirmatively proven by evidence
strong enough to refute a prima facie case un-
der the EPA. In practice, the reasoning
underlying an employment decision may be
difficult or impossible to document at trial.
Moreover, even where sex was the deter-
mining factor in a part icular decision, it may
not have been the result of “a . . . course of
action [adopted] at least in part ‘because of,’
not merely ‘in spite of,’ its adverse effects on”
women. Feeney, 442 U.S. at 279.
State agencies may adopt pay scales that
have the effect of paying women less than men
without doing so “because of” their “adverse
effects” on women. Id. (emphasis added).
The requirement that the defendant state
affirmatively prove not only its lack of a dis-
criminatory intent but also the existence of a
valid alternative ground for its decision
ensures that a substantial amount of
constitutional state action will run afoul of the
EPA.
Previous Supreme Court cases upholding a
burden-shifting provision under section 5 have
6 In Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000), the Court relaxed some-
what the standards for disparate treatment liability
under title VII, but it explicitly reaffirmed the
fundamental principle that “[t]he ultimate burden
of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Id. at 143
(internal citations omitted). Thus, a decision
striking down the EPA as applied to the states does
not imply that the application of title VII to state
employers is constitutionally suspect. See
Fitzpatrick v. Blitzer, 427 U.S. 445 (1976) (up-
holding the constitutionality of the 1972 amend-
ments to title VII that extend it to state employers).

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done so only in cases in which the
governmental entity had a long history of
intentional discrimination, or where the
specific challenged policy had a history of
abuse as a pretext for discrimination.7 By
contrast, the EPA does not require any proof
that the defendant has a history of intentional
discrimination, nor does it limit its scope to
employment practices that routinely have
served as tools of intentional discrimination. It
therefore falls short of the congruence and
proportionality requirement the Supreme
Court has imposed on section 5 legislation.
Our Eleventh Amendment jurisprudence in
this area needs to be squared with recent and
emerging Supreme Court law. Accordingly, I
respectfully dissent from the denial of
rehearing en banc.
7 See, e.g., City of Boerne, 521 U.S. at 533
(surveying and summarizing these cases); City of
Rome v. U.S., 446 U.S. 156, 177 (1980)
(upholding preclearance requirements imposed by
the Voting Rights Act because they are limited to
jurisdictions with a “demonstrable history of
intentional racial discrimination”); South Carolina
v. Katzenbach, 383 U.S. 301, 330 (1966)
(upholding Voting Rights Act ban on voting tests
“because of their long history as a tool for per-
petrating evil”).

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