Facts
The Ninth Circuit Court of Appeals recently addressed the issue of whether the federal court had jurisdiction to hear an employee’s discrimination claim where the employer initially asserted the defense of Eleventh Amendment immunity but later dropped it. (Tritchler v. Lake County Superior Court (2004 Daily Journal, D.A.R. 2129, 9th Cir. (Cal.) February 18, 2004)
Facts
Employee, Carrie Tritchler, worked as a court reporter for Employer, Lake County Superior Court. During her tenure, her supervisor was terminated as a result of Employee’s sexual harassment complaint. Employee filed a lawsuit in federal court alleging violation of Title VII and California’s Fair Employment and Housing Act (FEHA). After Employee dropped her federal Title VII claims, the federal district court continued to hear the state FEHA claims, initially with the assent of Employee. The jury returned a verdict in favor of Employer, and Employee appealed.
Appellate Court Decision
Employee argued that, despite her initial assent to the federal court hearing her FEHA claims, the federal court did not have jurisdiction because Employer had claimed Eleventh Amendment immunity in its answer to her petition. She also claimed that her former supervisor, as Employer’s employee, was immune from suit. The Court rejected her argument. First, the Court noted that the former supervisor had never asserted the defense of immunity. Second, the Court noted that, while Employer initially asserted the affirmative defense of immunity, it later chose not to pursue it. The affirmative defense was Employer’s to pursue, not Employee’s: “[Employee] does not have standing to raise the immunity defense on behalf of [Employer] . . . .”
The Court also rejected Employee’s claim that, because there had been an administrative finding to the contrary, Employer could not argue that Employee “welcomed” the supervisor’s allegedly harassing conduct. The Court further determined that the district court correctly instructed the jury that “a finding of discrimination is required before a failure to investigate a discrimination complaint would become actionable.”
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