Davis v. Passman

• Decision Date: 03 January 1977
• Docket Number: No. 75-1691,75-1691
• Citation: 544 F.2d 865
• Parties: 14 Fair Empl.Prac.Cas. 177, 13 Empl. Prac. Dec. P 11,465 Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 865

544 F.2d 865

14 Fair Empl.Prac.Cas. 177,

13 Empl. Prac. Dec. P 11,465

Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee.

No. 75-1691.

United States Court of Appeals Fifth Circuit.

Jan. 3, 1977.

Stephen J. Katz, Monroe, La., George M. Strickler, Jr., New Orleans, La., for plaintiff-appellant.

Jesse D. McDonald, Monroe, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, and JONES and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case a member of the United States Congress unflinchingly asserts that the Constitution allows him openly to discriminate against women. He asserts further that he need not so much as suggest a single basis for the discrimination. The issue is not to be trivialized. We have here a conflict of transcendental importance between the rights of the individual and the rights of a representative qua representative. Although representatives admittedly have some insulation not wrapped around ordinary mortals, the conflicting interests must be harmonized, not dichotomized. Finding that our Constitution protects individual rights even against the mighty, we remand this case for trial.

In the early part of 1974 Shirley Davis was Deputy Administrative Assistant to Representative Otto E. Passman of the Louisiana Fifth Congressional District. The Representative terminated Davis's employment effective July 31, 1974. In his letter to her explaining the termination decision the Representative wrote, "You are able, energetic and a very hard worker. . . . (H)owever, on account of the unusually heavy workload in my Washington office, and the diversity of the job, I concluded that it was essential that the understudy to my administrative assistant be a man." The full text of this rather remarkable letter is set out in the margin. ¹

Davis then filed this action against the Representative, claiming he had violated the equal protection component of the fifth amendment's due process clause. She invoked the court's "arising under" jurisdiction pursuant to 28 U.S.C. § 1331(a), and she sought specific relief, damages and declaratory relief.

The Representative moved to dismiss the complaint on three grounds: that his conduct was not unconstitutional, that the law afforded Davis no private right of action, and that the doctrines of sovereign and official immunity barred the action. The district court rejected the immunity argument but dismissed the action on the first two points. We reverse, finding that Davis's allegations, if proved, will establish a constitutional violation for which she has a private right of action. We agree with the district court that the immunity doctrines do not bar the suit.

I. Constitutionality

Although the fourteenth amendment's equal protection clause applies only to the states, the fifth amendment's due process clause contains an equal protection component applicable to the federal government. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); N. L. R. B. v. Sumpter Plywood Corp., 535 F.2d 917, 930 n.22 (5th Cir. 1976). Moreover, recent Supreme Court decisions establish beyond dispute that, just as sex discrimination by the states violates the fourteenth amendment unless supported by sufficient justifications, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), sex discrimination by the federal government violates the fifth amendment. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). We must therefore address two questions: whether the alleged conduct constituted sex discrimination, and if so whether sufficient governmental interests validate the discrimination.

A. Discrimination

In the case at bar the first question is easily answered. Davis's allegations, which must of course be taken as true in evaluating the Representative's motion to dismiss, see, e. g., Radovich v. National Football League, 352 U.S. 445, 448, 77 S.Ct. 390, 1 L.Ed.2d 456 (1956); Reeves v. City of Jackson, Mississippi, 532 F.2d 491, 493 (5th Cir. 1976), clearly make out a case of sex discrimination. The Representative's termination letter offered but a single reason for Davis's dismissal: she was a woman; the job called for a man.

The Representative argues, however, that unconstitutional sex discrimination occurs only when the sex-based classification is embodied in a statute and only when the actor is someone other than a member of Congress. With respect to the first point he correctly notes that the statute upon which his dismissal of Davis was predicated 2 U.S.C. § 92, is nondiscriminatory on its face; it allows dismissal of both male and female staff members with or without cause. The Representative also correctly notes that neither Frontiero nor Wiesenfeld compel rejection of his position; both of those cased invalidated statutory classifications. ²

The Representative's argument that equal protection principles apply only to statutory discrimination, however, contravenes a long and unbroken chain of decisions. The Supreme Court clearly rejected the argument as long ago as 1886. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) the Court held that the discriminatory application against Chinese Americans of facially neutral building regulations violated the equal protection clause. The passage of time has enhanced, not diminished, the position of Yick Wo as a pillar of our jurisprudence. Numerous more recent decisions have struck down nonstatutory discriminations, usually without even pausing to note explicitly that equal protection principles are not limited to statutes. See, e. g., Keyes v. School District No. 1, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974).

Equal protection scrutiny of inconsistencies in the application of facially nondiscriminatory statutes is not, of course, without limits. In Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed.2d 497 (1944) a state elections official refused to follow a state law requiring that a successful primary candidate be certified for inclusion on the general election ballot. The Court rejected the candidate's argument that this isolated failure to apply the state law to everyone equally constituted a denial of "equal protection of the laws." The Court laid down the governing standard:

The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who (were) entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.

Snowden v. Hughes, supra, 321 U.S. at 8, 64 S.Ct. at 401.

Davis's complaint clearly meets the Snowden requirements. The only digressions from neutral statutory provisions that Snowden exempts from equal protection scrutiny are those isolated incidents not based on a classification. ³ Here Representative Passman established a classification; he divided potential deputy administrative assistants into one group of men and another of women. The termination letter, at least on its face, is an open declaration of "intentional" and "purposeful" sex discrimination.

Therefore, Representative Passman will be free at trial to demonstrate that the firing was not in fact based upon Davis's gender, but he can derive no support from the nonstatutory nature of the discrimination. The constitutional guarantee of freedom from invidious discrimination would ring hollow indeed if it could be bypassed by the simple expedient of implementing the discrimination under a facially neutral statute. That the alleged discrimination was not embodied in a statute is of no moment. ⁴

Representative Passman's contention that the constitutional ban on unjustified sex discrimination does not restrict the actions of members of Congress is equally untenable. He argues, in effect, that his congressional status endows him with an open-ended right to discriminate irrespective of the time, place and condition of the discrimination. ⁵ A representative, however, is as subject to constitutional standards when hiring employees as when acting in concert with other members of Congress to enact legislation. A representative is not an imperator and is never above and beyond the law; any other view could not be squared with the whole predicate upon which our constitutional life depends. The need for wide discretion in staff employment decisions cannot be ignored, but the constitutional proscription of blatant sex discrimination does not impair Representative Passman's legitimate control over his staff to any extent at all. The Constitution does not force him to hire by the slide rule, but at the same time it does not permit him to slide into unbridled discrimination. The geometry of congressional discretion in hiring and firing is neither apogean nor perigean. We must equilibrate. Representative Passman can certainly assemble a capable and competent staff without engaging in the sex discrimination alleged here. The applicable constitutional standards may give a representative greater leeway in employment decisions than other government entities possess, and at trial Representative Passman may be able to show that he has not transgressed the constitutional requirements. All we need decide for purposes of this appeal, however, is that at some point invidious discrimination by a representative in his or her employment decisions is unconstitutional. Davis's allegations are certainly sufficient to...