Owens v. Rush, 78-1753

Citation654 F.2d 1370
Decision Date29 June 1981
Docket NumberNo. 78-1753,78-1753
Parties26 Fair Empl.Prac.Cas. 226, 26 Empl. Prac. Dec. P 31,929 James OWENS, Plaintiff-Appellant, v. Albert E. RUSH, Leonard M. Robinson, Clarence Gnadt, Elmer Inthrum and Ollie Swenson and Wabaunsee County Kansas by its Board of County, Commissioners: Joe McClure, Ollie Swenson and Elmer Imthurn, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Fred W. Phelps, Jr., Attorney, Topeka, Kan., for plaintiff-appellant.

Robert E. Tilton, Topeka, Kan. (Tilton & Dillon, Topeka, Kan., were on brief), for Joseph F. Rush, Executor of the Estate of Albert E. Rush, Deceased, defendant-appellee.

Bill Baldock, Attorney, Alma, Kan., on brief, for Wabaunsee County, Kansas and Wabaunsee County Commissioners, defendants-appellees.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant James Owens sought relief under the civil rights statutes, 42 U.S.C. §§ 1983, 1985(c), and 2000e, et seq., claiming that the defendants-appellees 1 unlawfully conspired against him and discharged him from his position in the County Sheriff's Department in retaliation for helping his wife Anne file an EEOC complaint against them. 2 On the motion of the defendants the district court dismissed "(a)ll causes of action predicated upon 42 U.S.C. §§ 1983 and 1985 ... for the reasons given in Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974)." I R. 155. In a separate written order the district court also granted summary judgment in favor of the defendants on plaintiff's Title VII claim on the ground that plaintiff came within the "personal staff" exception of 42 U.S.C § 2000e(f), thereby exempting him from the protection of Title VII. I R. 177-78. This timely appeal followed.

I

The factual background 3

In August 1970 plaintiff and his wife Anne were appointed by Sheriff Albert E. Rush to positions in the Sheriff's Department of Wabaunsee County, Kansas. Plaintiff was hired as Undersheriff and was second in command of the Sheriff's Department behind Sheriff Rush. Mrs. Owens was employed as a deputy and had various assigned duties including clerical work.

In January 1976 Mrs. Owens sent a letter on the Sheriff's letterhead to the Board of County Commissioners complaining that she was receiving less pay than certain male employees who were jailers. She suggested in the letter that the county was in violation of the Equal Pay Act and that the Board should either raise her salary or lower the salaries of the male employees. Shortly thereafter the Board accepted her suggestion and lowered the salaries of three male employees. A week later the Sheriff successfully restored the pay levels of the male employees involved.

Sheriff Rush first learned of Mrs. Owens's letter to the Board from defendant Robinson, the County Attorney, on the evening of March 2, 1976. At that time Robinson also told the Sheriff that Mrs. Owens had indicated to him earlier in the day that she intended to see Fred Phelps, her attorney, the next day about a civil rights action. On March 3 the plaintiff drove his wife in their own pickup to Topeka, Kansas, to see her attorney. The Sheriff and Robinson also drove to Topeka, which they explained was done to see if the plaintiff and his wife had used a county car for the trip. Later in the evening that same day the Sheriff and Robinson went to visit defendant Imthurn, the Chairman of the Board of County Commissioners, to see the letter which Mrs. Owens had written to the Board.

On the next day, March 4, the Sheriff confronted Mrs. Owens in their office and demanded an explanation from her for her actions. Between March 4 and March 12, Robinson telephoned the clerk of the federal district court each day to determine if a law suit had been filed by Mrs. Owens's attorney. On March 12 both plaintiff and his wife were served with written notices of termination by the Sheriff.

On March 15 plaintiff and his wife filed suit in federal district court alleging violations of various constitutional and statutory rights under 42 U.S.C. §§ 1983 and 1985(c). After exhausting their administrative remedies and receiving "Right to Sue" letters, plaintiff and his wife filed an amended complaint to include allegations of violations under Title VII, 42 U.S.C. § 2000e, et seq. Plaintiff's claims were disposed of by the district court prior to trial on the grounds previously mentioned above.

On this appeal plaintiff argues that the trial court erred: (1) in failing to construe the record in the light most favorable to the plaintiff, the non-moving party, as required by Rule 56, Fed.R.Civ.P.; (2) in failing to recognize the public policy considerations behind Title VII retaliation claims; (3) in concluding that he falls within the "personal staff" exception of § 2000e(f); and (4) in ruling that he failed to state a claim pursuant to 42 U.S.C. §§ 1983 and 1985(c). Further evidence will be detailed as necessary in discussing plaintiff's appellate contentions, to which we now turn.

II

The Title VII claim

In his second amended complaint the plaintiff claims that the defendants unlawfully discharged him from his position in the County Sheriff's Department in violation of 42 U.S.C. § 2000e-3(a) because he assisted his wife in filing a sex discrimination charge with the EEOC against them. After a pretrial order had been entered the defendants moved for summary judgment on this Title VII claim arguing, inter alia, that the plaintiff as Undersheriff was on the "personal staff" of Sheriff Rush, an elected county official, and was therefore not an "employee" within the meaning of 42 U.S.C. § 2000e(f) and not entitled to Title VII protection. 4 Agreeing with the arguments of the defendants, the district court held that "plaintiff James Owens is just the sort of person Congress meant to exempt from coverage under Title VII pursuant to 42 U.S.C. § 2000e(f), and the 'personal staff' language therein." I R. 177. Accordingly the district court granted summary judgment in favor of the defendants on plaintiff's Title VII retaliation claim. 5

On this appeal plaintiff claims that the district court erred in holding that he came within the "personal staff" exception of § 2000e(f) and was therefore not an "employee" subject to Title VII protection. He argues that Congress intended for § 2000e-3(a) to provide "exceptionally broad protection" against retaliation for those persons who have participated "in any manner" in Title VII proceedings and that the courts should implement Congress' intent by narrowly construing the "personal staff" exception of § 2000e(f) and broadly construing § 2000e-3(a). He says that the district court's ruling "ignores the intent of Congress" and that summary judgment for the defendants is inappropriate because the record when viewed in a light favorable to him clearly shows that he was an employee of Sheriff Rush. Brief of Appellant at 7-16.

In order to prove that the defendants unlawfully retaliated against him in violation of § 2000e-3(a), 6 the plaintiff must show, inter alia, that he was an "employee" within the meaning of that provision. Under the definition provided by statute, 42 U.S.C. § 2000e(f),

(t)he term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. (Emphasis added).

It is beyond question here that Sheriff Rush was elected to the position of County Sheriff by the voters of Wabaunsee County, a political subdivision of the State of Kansas. See Kan.Stat. § 19-801a (1974 & Supp. 1979). It is clear too that plaintiff was appointed by Sheriff Rush to be on his staff as Undersheriff, a position which is not subject to the state's civil service laws. Id. §§ 19-803, 19-4303, 19-4314; IV R.59, 63-64. Thus the critical issue is whether the plaintiff, as Undersheriff, was employed in the type of position which Congress intended to exempt from Title VII coverage under the "personal staff" exception found in § 2000e(f).

Initially we note that the scope of the "personal staff" exception is governed by federal rather than state law which is only "relevant insofar as it describes the plaintiff's position, including his duties and the way he is hired, supervised and fired." 7 Calderon v. Martin County, 639 F.2d 271, 273 (5th Cir.). Furthermore, the provisions of Title VII do not provide a statutory definition for the term "personal staff." Under these circumstances courts generally interpret the words in accordance with their ordinary, everyday meaning, absent some contrary indication in the legislative history. See, e. g., United States v. Elledge, 614 F.2d 247, 250 (10th Cir.).

The legislative history of § 2000e(f) indicates that Congress intended that the personal staff exception be construed narrowly. The report of the conference committee of the House and Senate on this section states in pertinent part:

It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level. It is the conferees (sic) intent that this exemption shall be construed narrowly. Also, all employees subject to State or local civil service laws are not...

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