Lowrey v. Texas A & M University System

Citation117 F.3d 242
Decision Date07 July 1997
Docket NumberNo. 96-20157,96-20157
Parties71 Empl. Prac. Dec. P 44,848, 38 Fed.R.Serv.3d 327, 119 Ed. Law Rep. 341 Jan LOWREY, Plaintiff-Appellant, v. TEXAS A & M UNIVERSITY SYSTEM, d/b/a Tarleton State University, Dennis Mccabe, Lonn Reisman, Lamar Johanson, Jim Johnson, Pat Stevenson, And Susan Burton, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

LaNelle Linnstaedter McNamara, McNamara & McNamara, Waco, TX, Diane Madeline Henson, Austin, TX, for Plaintiff-Appellant.

Dona Glimm Hamilton, James C. Todd, Assistant Attorney General, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and SMITH and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jan Lowrey appeals the denial of leave to amend her complaint and the dismissal, pursuant to FED. R. CIV. P. 12(b)(6), of her cause of action under title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. We dismiss the appeal in part, affirm in part, reverse in part, and remand.

I.

Lowrey was employed by Tarleton State University in 1977 as the head Women's Basketball Coach and an instructor in the Physical Education Department. In 1992, she was named Women's Athletic Coordinator. In 1993, she applied for the position of Athletic Director but was not selected. In 1994, she was removed from her position as Women's Athletic Coordinator, although she continues to serve as the Women's Basketball Coach.

Lowrey brought suit against the university and its named individual officials (hereinafter collectively "Tarleton") under title IX, alleging that Tarleton was guilty of employment discrimination on the basis of sex and misallocation of resources among male and female athletes. Moreover, Lowrey alleged that, as a consequence of her participation in complaints and investigations challenging this noncompliance, Tarleton retaliated against her by denying her promotion to the post of Athletic Coordinator, removing her from the position of Women's Athletic Coordinator, and subjecting her and her team to continuing retaliation and harassment. 1

Lowrey filed her original complaint on September 1, 1995, alleging claims for employment discrimination and retaliation under title IX and joining a state law claim for intentional infliction of emotional distress. On October 3, 1995, this court decided Lakoski v. James, 66 F.3d 751 (5th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 357, 136 L.Ed.2d 249 (1996), concluding that title IX does not provide a private right of action for employment discrimination on the basis of sex in federally-funded educational institutions. On October 12, 1995, Tarleton filed a motion to dismiss the complaint under FED. R. CIV. P. 12(b)(6), relying exclusively on Lakoski.

Lowrey responded by moving for leave to amend her complaint in order to add causes of action under title VII of the Civil Rights Act of 1964, the First, Fifth, and Fourteenth Amendments, the Equal Pay Act, and 42 U.S.C. § 1983. Tarleton answered, expressly conceding that it did not oppose Lowrey's motion to add additional causes of action, but renewing its motion to dismiss the title IX claims. Without ruling on the motion for leave to amend, the district court dismissed the complaint in its entirety, entering final judgment for Tarleton.

Lowrey now urges us to hold that the district court abused its discretion in denying her leave to amend, that title IX provides a private right of action for retaliation, and that title VII does not provide the exclusive remedy for claims of employment discrimination on the basis of sex in federally-funded educational institutions.

II.
A.

We review a denial of leave to amend a complaint for abuse of discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 934 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 767, 136 L.Ed.2d 713 (1997); Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.1994). The discretion of the district court is limited, however, by FED. R. CIV. P. 15(a), which provides that "leave shall be freely given when justice so requires." Rule 15(a) expresses a strong presumption in favor of liberal pleading:

Rule 15(a) declares that leave to amend "shall be freely given when justice so requires"; this mandate is to be heeded. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given."

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

B.

Lowrey filed her motion to amend on November 13, 1995, attaching as an exhibit thereto her proposed First Amended Original Complaint. Nevertheless, the district court dismissed the entire complaint on December 4, 1995, without ruling on the motion. Lowrey argues that this constructive denial of her motion to amend constituted a per se abuse of discretion. Her objection is well taken.

The Supreme Court has explicitly disapproved of denying leave to amend without adequate justification:

Of course the grant or denial of the opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

Foman, 371 U.S. at 182, 83 S.Ct. at 230. Caselaw from this circuit is in accord. See Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir.1996); Halbert v. City of Sherman, 33 F.3d 526, 529-30 (5th Cir.1994); Conti v. Sanko S.S. Co., 912 F.2d 816, 818-19 (5th Cir.1990). "Given the policy of liberality behind Rule 15(a), it is apparent that when a motion to amend is not even considered, much less not granted, an abuse of discretion has occurred." Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir.1987).

Furthermore, the touchstone of the inquiry under rule 15(a) is whether the proposed amendment would unfairly prejudice the defense by denying the defendants notice of the nature of the complaint. See, e.g., Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1464 (5th Cir.), cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 35 (1995); Conti, 912 F.2d at 818. Tarleton expressly informed the district court that it did not object to Lowrey's proposed amendments to the complaint. Therefore, there was no justification for denial of leave to amend. 2

C.

In March 1996, Lowrey refiled her lawsuit, alleging causes of action under title VII, the Equal Pay Act, the First, Fifth, and Fourteenth Amendments, and § 1983. 3 Consequently, the only claims at issue in the instant appeal that are not likewise pending in the subsequent lawsuit are the title IX claims for employment discrimination and retaliation. Because the title IX claims were raised in the original complaint, however, the erroneous denial of leave to amend did not divest the district court of jurisdiction over these claims, which thus are properly before us on appeal. Because the remaining claims are pending in the subsequent lawsuit, Lowrey will suffer no prejudice from our refusal to consider her amended complaint now.

Insofar as Lowrey has successfully refiled the same causes of action that she sought to allege in her proposed amended complaint, she has suffered no prejudice from the judgment. Therefore, although the district court abused its discretion in denying leave to amend, this error is rendered moot by the subsequent lawsuit. 4

III.

Lowrey urges us to overrule Lakoski and create a private right of action for employment discrimination under title IX. Alternatively, she argues that the Lakoski court did not consider whether title IX affords a private right of action for retaliation.

A.

The district court dismissed the entire complaint, pursuant to rule 12(b)(6), exclusively on the ground that Lakoski precludes a private right of action under title IX. We review the dismissal of a complaint under rule 12(b)(6) de novo. Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir.1995).

A motion to dismiss under rule 12(b)(6) "is viewed with disfavor and is rarely granted." Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The district court may not dismiss a complaint under rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Blackburn, 42 F.3d at 931. This strict standard of review under rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969).

B.

In Lakoski, we held that title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions. Lakoski, 66 F.3d at 753. Lowrey urges us to reconsider Lakoski. This we cannot do, as one panel of this court cannot overrule the decision of another panel; such panel decisions may be overruled only by a subsequent decision of the Supreme Court or by the Fifth Circuit sitting en banc. See FDIC v....

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