532 F.2d 259 (2nd Cir. 1976), 407, Monell v. Department of Social Services of City of New York

Docket Nº:407, Docket 75-7333.
Citation:532 F.2d 259
Party Name:Jane MONELL et al., Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK et al., Defendants- Appellees.
Case Date:March 08, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 259

532 F.2d 259 (2nd Cir. 1976)

Jane MONELL et al., Plaintiffs-Appellants,

v.

DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK et

al., Defendants- Appellees.

No. 407, Docket 75-7333.

United States Court of Appeals, Second Circuit

March 8, 1976

Argued Dec. 19, 1975.

Page 260

Oscar Chase and Gregory Abbey, Brooklyn, N. Y. (Nancy Stearns, Center for Constitutional Rights, New York City, of counsel), for plaintiffs-appellants.

L. Kevin Sheridan, New York City (W. Bernard Richland, Corp. Counsel of New York City, of counsel), for defendants-appellees.

Before HAYS, TIMBERS and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

This is an appeal by the plaintiffs from an order of the United States District Court for the Southern District of New York, Charles M. Metzner, Judge, dismissing their complaint. 394 F.Supp. 853 (S.D.N.Y.1975). The plaintiffs are female employees of the New York City Department of Social Services ("Department") and of the New York City Board of Education ("Board") suing on behalf of themselves and other female employees in city agencies similarly situated. The essence of the complaint is that rules and regulations of the city agencies formerly compelled pregnant employees to take unpaid leaves of absence before medical reasons required them to do so, and that such rules and regulations were unconstitutional.

The defendants Sugarman, former Commissioner of the Department of Social Services, Scribner, former Chancellor of the City School District of the City of New York, and Lindsay, former Mayor, are sued in their official capacities (Amended Complaint P 24). Jurisdiction is alleged under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3), as well as under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Judge Constance Baker Motley had previously determined that the action could be maintained as a class action. 357 F.Supp. 1051 (S.D.N.Y.1972).

The plaintiffs sought declaratory and injunctive relief and damages for "the deprivation of their right to be employed, including but not limited to wages lost." No amount of damages was alleged. 1 The defendants moved to dismiss the action, or, in the alternative, for an order granting summary judgment. They also moved to vacate the order granting class action status, or, in the alternative, to compel the plaintiffs to pay for the class action notice if the action were allowed to continue as a class

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action. The plaintiffs cross-moved for summary judgment. Judge Metzner dismissed the complaint. 394 F.Supp. 853 (S.D.N.Y.1975).

With respect to the requests for injunctive and declaratory relief, he noted that in the fall of 1971, the Department had changed its maternity leave policy to provide that no woman need report her pregnancy or take maternity leave as long as she is able to continue to perform her job and desires to do so. The policy change became effective on January 29, 1972. The Board of Education similarly changed its bylaws effective September 1, 1973. The judge therefore dismissed as moot the claims for equitable relief by way of injunction or declaratory judgment. We agree that these claims are moot and accordingly affirm. See Nieves v. Oswald, 498 F.2d 802, 813-15 (2 Cir. 1974); cf. DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

The District Judge also dismissed the claims for back pay covering the periods for which plaintiffs allege they could have worked after they were forced to take maternity leave on the ground that there was no subject matter jurisdiction for the award of back pay either under Title VII or under § 1983. Judge Metzner determined that the 1972 amendment to Title VII, Pub.L.No.92-261, § 2(1) (amending Title VII § 701(a), 42 U.S.C. § 2000e(a)), which broadened the definition of "person" under the Act so as to include "governments, governmental agencies (and) political subdivisions," could not be applied retroactively. He therefore dismissed the claim for relief pursuant to Title VII, since all the acts of discrimination claimed to have been committed against the named plaintiffs occurred before the 1972 amendment to Title VII. The court also concluded that any attempt to use § 1983 as a basis of obtaining monetary relief against the named city officials in their official capacities would circumvent the decision of the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that municipalities cannot be sued for damages under § 1983, and accordingly dismissed the claim for relief brought under that section.

Appellants contend that the court erred in dismissing the action for lack of jurisdiction under the Civil Rights Act (§ 1983) and in failing to give retroactive effect to the amendment of Title VII in 1972.

I

Appellants are correct in their contention that, under the Title VII amendment of 1972, municipalities and their subdivisions are employers within the meaning of the Act. They also correctly state that one of the remedies provided for violation of the Act is the award of back pay. Title VII, § 706(g), 42 U.S.C. § 2000e-5(g). Back pay is specifically made "payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice." Id. (emphasis added). There is no statutory warrant for such an award against a public official, however. Accordingly, so far as the Title VII claim is concerned, employees discriminated against may henceforth obtain an award of back pay against the city itself (but not against individual officials).

We must conclude, however, that the 1972 amendment to Title VII does not apply retroactively so as to permit an award of back pay against the city in this case. The same law, Pub.L.No.92-261, section 2(1) of which amended the definition of "person" to include "governments, governmental agencies (and) political subdivisions," also struck out in section 3 the exemption for the employment of individuals engaged in educational activities of nonreligious educational institutions. In Weise v. Syracuse University, 522 F.2d 397, 410-11 (2 Cir. 1975), we met the question whether Title VII was applicable to discrimination occurring before the lifting of the exemption for educational institutions. We held that it was not retroactive, for it was "a statute creating new rights where none had previously existed." Judge Smith went on to note that "(t)he manifest injustice of such ex post facto imposition of civil liability is reflected in the general rule of construction

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that absent clear legislative intent statutes altering substantive rights are not to be applied retroactively. Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, (621), 11 L.Ed.2d 576 (584) (1964); Farmington River Power Co. v. Federal Power Commission, 455 F.2d 86, 90 (2d Cir. 1972); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.), cert. denied, 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960)." 522 F.2d at 411.

We see no valid ground for distinguishing the sex-discrimination claim in Weise from similar claims against the city or the Board of Education based upon a retroactive application of Title VII. Indeed, the Supreme Court in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 n. 8, 94 S.Ct. 791, 796, 39 L.Ed.2d 52, 60 (1974), expressed the view that the statutory amendments passed after the alleged discriminations in LaFleur had been committed "are, of course, inapplicable to the cases now before us."

In Brown v. General Services Administration, 507 F.2d 1300, 1304-06 (2 Cir. 1974), cert. granted, 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476 (1975), we did hold § 717(c) of Title VII, 42 U.S.C. § 2000e-16(c), to be retroactive. But this was merely a procedural section relating to federal employees which gave them a limited right to judicial review of Title VII claims before administrative remedies were exhausted. Similar administrative remedies had previously been available to enforce rights provided by Title VII. In the case of city employees, on the other hand, entirely new substantive rights were created by the amendment to Title VII. We are constrained to hold, as a consequence, that back pay may not be awarded against the city or the Board of Education under Title VII for discrimination that occurred before the 1972 amendment. The argument that, as in Brown, there was already a substantive right not to be forced to take a maternity leave arbitrarily is not well-taken. To support their position, appellants cite Green v. Waterford Board of Education, 473 F.2d 629 (2 Cir. 1973), and Cleveland Board of Education v. LaFleur, supra. But these cases were not decided until 1973 and 1974, respectively. In any event, no remedy existed prior to 1972 by which appellants could secure monetary relief to compensate them for the alleged discrimination. 2

We are thus compelled to conclude that plaintiffs cannot maintain their action under the provisions of Title VII.

II

Alternatively, plaintiffs argue that their suit can be maintained under 42 U.S.C. § 1983, which provides that any "person" who, under color of state law, deprives any citizen of his constitutional rights, "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Although the Supreme Court held in Monroe v. Pape, supra, 365 U.S. at 187-92, 81 S.Ct. at 484-86, 5 L.Ed.2d at 505-07, and in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), that municipalities are not "persons" within the meaning of § 1983, the appellants nevertheless argue that the city officials named in their complaint are "persons" for § 1983 purposes, even though...

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