Preston v. Com. of Va. ex rel. New River Community College

• Citation: 31 F.3d 203
• Decision Date: 03 August 1994
• Docket Number: No. 93-1268,93-1268
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 877, 93 Ed. Law Rep. 511 Susan PRESTON, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA ex rel. NEW RIVER COMMUNITY COLLEGE, Defendant-Appellee, and David R. Pierce, Chancellor State Board for Community Colleges; Lawrence H. Framme, III, Chairman, State Board for Community Colleges; T.A. Carter, Jr., Board Member, State Board for Community Colleges; William D. Dolan, III, Board Member, State Board for Community Colleges; George H. Gilliam, Board Member, State Board for Community Colleges; Irving M. Groves, Jr., Board Member, State Board for Community Colleges; Evelyn M. Hailey, Board Member, State Board for Community Colleges; Jack L. Hite, Board Member, State Board for Community Colleges; George J. Kostel, Board Member, State Board for Community Colleges; Leonard W. Lambert, Board Member, State Board for Community Colleges; Robert E. Parker, Jr., Board Member, State Board for Community Colleges; Nellie B. Quander, Board Member, State Board for Community Colleges; Dorothy W. Schick, Board Member, State Board for Community Colleges; George J. Stevenson, Board Member, State Board for Community Colleges; Doreen S. Williams, Vice Chairman, State Board for Community Colleges; Floyd M. Hogue, President, New River Community College; Roger K. Lewis, Board Member, New River Community College Board; Karen Thompson, Board Member, New River Community College Board; David B. Hunt, Board Member, New River Community College Board; Martha H. Bolt, Board Member, New River Community College Board; David G. Larsen, Board Member, New River Community College Board; Shirley M. Gerken, Board Member, New River Community College Board; William H. Elmore, Board Member, New River Community College Board; George F. Penn, Sr., Board Member, New River Community College Board; Jerry R. Whitehurst, Board Member, New River Community College Board; H.B. Whitt, Jr., Board Member, New River Community College Board, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 203

31 F.3d 203

65 Fair Empl.Prac.Cas. (BNA) 877, 93 Ed. Law Rep. 511

Susan PRESTON, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA ex rel. NEW RIVER COMMUNITY COLLEGE, Defendant-Appellee and David R. Pierce, Chancellor State Board for Community Colleges; Lawrence H. Framme, III, Chairman, State Board for Community Colleges; T.A. Carter, Jr., Board Member State Board for Community Colleges; William D. Dolan, III Board Member, State Board for Community Colleges; George H Gilliam, Board Member, State Board for Community Colleges; Irving M. Groves, Jr., Board Member, State Board for Community Colleges; Evelyn M. Hailey, Board Member, State Board for Community Colleges; Jack L. Hite, Board Member, State Board for Community Colleges; George J. Kostel, Board Member, State Board for Community Colleges; Leonard W. Lambert, Board Member, State Board for Community Colleges; Robert E. Parker, Jr., Board Member, State Board for Community Colleges; Nellie B. Quander, Board Member, State Board for Community Colleges; Dorothy W. Schick, Board Member, State Board for Community Colleges; George J. Stevenson, Board Member, State Board for Community Colleges; Doreen S. Williams, Vice Chairman, State Board for Community Colleges; Floyd M. Hogue, President, New River Community College; Roger K. Lewis, Board Member, New River Community College Board; Karen Thompson, Board Member, New River Community College Board; David B. Hunt, Board Member, New River Community College Board; Martha H. Bolt, Board Member, New River Community College Board; David G. Larsen, Board Member, New River Community College Board; Shirley M. Gerken, Board Member, New River Community College Board; William H. Elmore, Board Member, New River Community College Board; George F. Penn, Sr., Board Member, New River Community College Board; Jerry R. Whitehurst, Board Member, New River Community College Board; H.B. Whitt, Jr., Board Member, New River Community College Board, Defendants.

No. 93-1268.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 25, 1993.

Decided Aug. 3, 1994.

ARGUED: Jeffrey Alan Fleischhauer, Bird, Kinder & Huffman, P.C., Roanoke, VA, for appellant. Guy Winston Horsley, Jr., Sr. Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellee. ON BRIEF: Donald W. Huffman, L. Brad Bradford, Bird, Kinder & Huffman, P.C., Roanoke, VA, for appellant. Stephen D. Rosenthal, Atty. Gen. of VA, Milton K. Brown, Jr., Deputy Atty. Gen., Neil A.G. McPhie, Sr. Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellee.

Before RUSSELL and WILKINS, Circuit Judges, and SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge WILKINS wrote the opinion, in which Judge DONALD RUSSELL and Judge REBECCA BEACH SMITH joined.

OPINION

WILKINS, Circuit Judge:

Susan Preston brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Sec. 2000e et seq. (West 1981 & Supp.1994), and Title IX of the Education Amendments of 1972, 20 U.S.C.A. Sec. 1681 et seq. (West 1990), alleging that her employer, New River Community College, retaliated against her for filing a claim of employment discrimination. ¹ A jury concluded that the College had discriminated against Preston in its consideration of her for the position of activities counselor in 1989, but that Preston would not have received the position even if the College had not discriminated against her. The district court ruled that Preston was not entitled to damages, injunctive relief, or attorney's fees. She appeals, claiming that the determination of the jury that she would not have been awarded the position of activities counselor in the absence of the College's retaliation does not foreclose her entitlement to relief under Title IX. We affirm.

I.

Preston was employed by the College in 1980 as a counselor for student support services. In 1984 she and two other female employees of the College filed a claim of discrimination with the Office of Civil Rights of the Department of Education and with the Equal Employment Opportunity Commission (EEOC), charging that the College discriminated against them in its hiring practices on the basis of race and gender. Thereafter, in June and December 1985, Preston applied for, but was not awarded, the position of counselor for student development. In 1989 she applied for, but was denied, the position of activities counselor; and in 1990 she filed this action, alleging that the College failed to award her the position of activities counselor in retaliation for filing the 1984 discrimination charge.

At the conclusion of the trial, the court submitted to the jury a verdict form containing two special interrogatories. The first special interrogatory asked the jury whether it found that Preston's filing of the discrimination charge in 1984 was "a substantial or motivating factor in the College's decision not to award the position of activities counselor to plaintiff ... in 1989." The jury answered in the affirmative. The second special interrogatory asked the jury whether it found that Preston would have been awarded the position of activities counselor in 1989 if she had not filed the employment discrimination charge in 1984. The jury responded in the negative, thus stating that Preston would not have received the position even if the College had not discriminated against her.

The district court apparently concluded that the decision of the jury, that Preston would not have received the position of activities counselor even if the College had not discriminated against her, foreclosed any recovery. The court later denied, apparently on the same reasoning, Preston's motion to reconsider in which she maintained that she was entitled to injunctive relief, damages, and attorney's fees under Title IX. Preston appeals this latter ruling.

II.

Title IX provides in pertinent part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

20 U.S.C.A. Sec. 1681(a). An implied private right of action exists for enforcement of Title IX. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). This implied right extends to employment discrimination on the basis of gender by educational institutions receiving federal funds. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Retaliation against an employee for filing a claim of gender discrimination is prohibited under Title IX. ² The question before this court, then, is whether the determination of the jury that Preston would not have received the position of activities counselor even if she had not been the victim of intentional discrimination forecloses her right to any recovery under Title IX.

In deciding whether a private right of action existed under Title IX, the Supreme Court wrote:

Only two facts alleged in the complaints are relevant to our decision. First, petitioner was excluded from participation in the respondents' medical education programs because of her sex. Second, these education programs were receiving federal financial assistance at the time of her exclusion. These facts, admitted arguendo by respondents' motion to dismiss the complaints, establish a violation of ... Title IX.

Cannon, 441 U.S. at 680, 99 S.Ct. at 1949 (emphasis added). In reciting the facts that the Court deemed adequate to allege a violation of Title IX, it included the fact that the improper discrimination caused harm to the claimant. Thus, it implicitly recognized the necessity of causation.

In addition, the Supreme Court has rejected, in other contexts, the notion that an alleged victim of illegal retaliation in employment is entitled to relief merely because improper considerations played a part--even a substantial part--in the decision-making process. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977) (stating that a decision not to rehire an employee, based in substantial part on employee's engaging in constitutionally protected activity, does not constitute a "violation justifying remedial action," when the employee would not have been rehired in any event). Rather, the Court has held that an employer is not liable if it would have reached the same employment decision "in the absence of the protected conduct." Id. at 287, 97 S.Ct. at 576. This is so, the Court reasoned, because to vindicate protected rights it is unnecessary to place an individual who suffered discrimination in a better position than the individual would have occupied if the discrimination had not occurred. Id. at 285-86, 97 S.Ct. at 575-76.

This reasoning has been adopted and applied in the Title VII context. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). And, although the Supreme Court has specifically reserved the question of whether Title IX claims should be governed by the same principles applicable to Title VII actions, see Franklin v. Gwinnett County Pub. Schs., --- U.S. ----, ---- n. 4, 112 S.Ct. 1028, 1032 n. 4, 117 L.Ed.2d 208 (1992), most courts that have addressed the question have indicated that Title VII principles should be applied to Title IX actions, at least insofar as those actions raise employment discrimination claims. See Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir.) (Title VII is " 'the most appropriate analogue when defining Title IX's substantive standards.' "), cert. denied, --- U.S. ----, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993); Cohen v. Brown Univ., 991 F.2d 888, 902 (1st Cir.1993) (indicating that application of Title VII principles in Title IX employment discrimination actions was "perhaps" appropriate); Lipsett v. University of...