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Davis v. Uams

January 17, 2006

SHIRLEY DAVIS PLAINTIFF
v.
UAMS, ET AL. DEFENDANTS



ORDER

Plaintiff has filed this action pro se alleging that defendants discriminated against her on the basis of her age. In particular, plaintiff, who was employed as a Family Support paraprofessional with Arkansas Cares, a program at the Psychiatry Department at University of Arkansas for Medical Sciences ("UAMS"), alleges that she was treated differently with regard to terms and conditions of employment than younger employees.

Defendants have filed a motion to dismiss. Arkansas Cares is a division of the Psychiatry Department at UAMS and is funded and managed solely by UAMS. UAMS is part of the University of Arkansas, an institution of higher education established under Arkansas law. It does not have the capacity to sue or be sued. See Assaad-Faltas v. Univ. Of Arkansas for Med. Sciences, 708 F. Supp. 1026, 1029 (E. D. Ark. 1989), aff'd, 902 F.2d 1572 (8th Cir. 1990). More importantly, it is well settled that plaintiff's claim under the Age Discrimination in Employment Act (" ADEA") claim is barred by Eleventh Amendment immunity. See Becker v. Univ. of Nebraska at Omaha, 191 F. 3d 904, 908-909 (8th Cir. 1999); Humenansky v. Regents of Univ. of Minnesota, 152 F. 3d 822 (8th Cir. 1998). The Supreme Court subsequently held in Kimel v. Florida Bd of Regents, 528 U.S. 62, 91 (2000) held that the ADEA did not validly abrogate the states' Eleventh Amendment immunity. Therefore, suits brought under the Act against state employers are barred.

Accordingly, the motion to dismiss is granted and the complaint is hereby dismissed. Plaintiff's motion for reconsideration of Order denying appointment of counsel is denied.

IT IS SO ORDERED

20060117

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