Mabry v. State Bd. of Community Colleges and Occupational Educ.

• Decision Date: 09 March 1987
• Docket Number: No. 85-1710,85-1710
• Parties: 43 Fair Empl.Prac.Cas. 259, 42 Empl. Prac. Dec. P 36,864, 55 USLW 2516, 38 Ed. Law Rep. 103 Patricia MABRY, Plaintiff-Appellant, v. The STATE BOARD OF COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION and Gordon Dickinson, Ross Forney, Angelo Daurio, Dr. Elinor Greenberg, Thomas Grimshaw, Raymond Guerrie, Isaiah Kelley, Jr., Fred Valdez, Sr., Raymond Wilder, all members of the State Board for Community Colleges and Occupational Education, and Thomas Sullivan, President of Trinidad State Junior College, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 311

813 F.2d 311

43 Fair Empl.Prac.Cas. 259,

42 Empl. Prac. Dec. P 36,864, 55 USLW 2516,

38 Ed. Law Rep. 103

Patricia MABRY, Plaintiff-Appellant, v. The STATE BOARD OF COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION and Gordon Dickinson, Ross Forney, Angelo Daurio Dr. Elinor Greenberg, Thomas Grimshaw, Raymond Guerrie Isaiah Kelley, Jr., Fred Valdez, Sr., Raymond Wilder, all members of the State Board for Community Colleges and Occupational Education, and Thomas Sullivan, President of Trinidad State Junior College, Defendants- Appellees.

No. 85-1710.

United States Court of Appeals Tenth Circuit.

March 9, 1987.

Rehearing Denied April 14, 1987.

Larry F. Hobbs (Vonda G. Hall, with him on the briefs), of Hobbs/Bethke & Associates, Denver, Colo., for plaintiff-appellant.

Daniel R. Satriana, Jr., Hall & Evans (Bruce M. Pech, Asst. Atty. Gen., with him on the briefs), of Denver, Colo., for defendants-appellees.

Before McKAY and ANDERSON, Circuit Judges, and JOHNSON, District Judge. ^*

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff, Patricia Mabry, appeals from an order of the United States District Court for the District of Colorado, 597 F.Supp. 1235, granting defendants' ¹ motion for partial summary judgment and dismissing her claim alleging that her termination of employment constituted sex discrimination in violation of Title IX, 20 U.S.C. Secs. 1681-1686 (1982). We affirm.

BACKGROUND

The district court found and the record reveals the following relevant facts. Mabry was employed as an instructor and a coach in the physical education department at Trinidad State Junior College ("Trinidad") in Trinidad, Colorado from the 1974-75 through 1981-82 academic years. She also taught courses in speech and first aid. R. Vol. I at 116.

In December 1981, Mabry received notice from defendant Thomas Sullivan ("Sullivan"), the President of Trinidad, that she was being terminated because of a "reduction in force" resulting from a decrease in student enrollment at the college. The remaining two members of the physical education department, both male and with greater seniority than Mabry, were retained. At his deposition, Sullivan stated that a factor in his decision to terminate Mabry was that her two male colleagues were married and had children. R. Vol. II at 93-94.

After she received her notice of termination, Mabry requested and received a hearing before Trinidad's Campus Hearing Committee. Mabry exhausted the hearing procedures at Trinidad and all administrative remedies available to her. After receiving a notice of right to sue from the Equal Employment Opportunity Commission, she commenced an action in the district court in Colorado. Mabry alleged that her employment was terminated on the basis of her sex and/or her parental or marital status, in violation of the provisions of Title VII, 42 U.S.C. Sec. 2000e to Sec. 2000e-17 (1982), Title IX, 20 U.S.C. Secs. 1681-1686 (1982) and its implementing regulations, and section 1983, 42 U.S.C. Sec. 1983 (1982). ² She also alleged that she was subjected to sex-based discrimination because of the nature and quality of the facilities at Trinidad. She sought damages, reinstatement with back pay and benefits, and attorneys' fees and costs pursuant to 42 U.S.C. Secs. 1988 and 2000e-5(k) (1982).

In response to defendants' motion for partial summary judgment, the district court dismissed Mabry's Title IX and section 1983 claims on the grounds that the instructional program areas in which Mabry taught were not education programs or activities which receive federal financial assistance within the meaning of Title IX, ³ and that the availability of complete remedial devices under Title IX precluded her remedy under section 1983. The district court also dismissed the individual State Board members on the ground that they were protected by a qualified immunity.

Mabry's Title VII claim was tried to the district court on April 2 and 3, 1985. The district court entered judgment on April 16, 1985, for defendants, finding that Mabry's termination was in accordance with the State Board's policy and the relevant Colorado statutes and "without consideration of the sex of the three physical education instructors involved...." R. Vol. I at 159; Findings of Fact No. 12. The court further concluded that "[i]llicit consideration of plaintiff's sexual identity did not occur and the reasons stated for her termination were not pretextual." Id. at 160; Conclusions of Law No. 4. Implicit in that conclusion is the finding that defendants' consideration of Mabry's marital and parental status did not amount, in this case, to sex discrimination. Mabry has limited her appeal in this court to "whether the district court erred in dismissing the plaintiff's Title IX (20 U.S.C. Sec. 1681) claim on defendants' motion for partial summary judgment." Plaintiff-Appellant's Opening Brief at 3.

DISCUSSION

In this appeal, Mabry argues that the district court erred in dismissing her Title IX claim because she participated in a program that received federal financial assistance

                within the meaning of Title IX.  She also argues that the cause of action she asserts under Title IX is not actionable under Title VII because "the courts have held that Title VII rather than proscribing distinctions based on marital status, as in the instant case, proscribe [sic] sex discrimination resulting from a situation where an employer has applied a different requirement regarding marital status to females than to males."    Plaintiff-Appellant's Reply Brief at 9-10 (emphasis original). 4   We do not reach the question of whether Mabry participated in a Title IX "program," however, because her claim is actionable under Title VII, and the district court's judgment of April 16, 1985, from which Mabry took no appeal, constitutes a final determination of an essential element of her Title IX claim
                

I. APPLICATION OF TITLE VII

Mabry argues that her claim of discrimination based on "marital, parental head of household and wage earner status," Plaintiff-Appellant's Reply Brief at 11, is not cognizable under Title VII, but is under Title IX by virtue of 34 C.F.R. Sec. 106.57 (1986), one of Title IX's implementing regulations. She argues that an EEOC guideline regarding distinctions based on marital status shows that "Title VII does not recognize policies concerning the marital, parental or wage earner status of individuals except where such discrimination varies with the sex of the individual." Plaintiff-Appellant's Reply Brief at 9. ⁵

The Title IX regulation on which Mabry relies has two subsections. It provides in pertinent part:

(a) General. A recipient shall not apply any policy or take any employment action:

(1) Concerning the potential marital, parental or family status of an employee or applicant for employment which treats persons differently on the basis of sex; or (2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.

34 C.F.R. Sec. 106.57 (1986). If Mabry rests her argument on subsection 1, it provides no different basis for a claim than does Title VII. As Mabry noted, Title VII's implementing regulations show that the statute prohibits policies concerning marital, parental or family status that discriminate based on sex. "[A]n employer's rule which forbids or restricts the employment of married women and which is not applicable to married men is a discrimination based on sex prohibited by Title VII...." 29 C.F.R. Sec. 1604.4(a) (1986); see also id. at Sec. 800.149 (1986). Case law further reveals the scope of Title VII. For example, the policy of a religious organization that provided insurance for the "head of the household" was held to violate the statute because the term was interpreted only to mean single persons or married men. EEOC v. Fremont Christian School, 609 F.Supp. 344 (1984), aff'd, 781 F.2d 1362 (9th Cir.1986). Title VII was also violated when an airline applied its no-marriage rule to female stewardesses, but not to male stewards. Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971).

Subsection 1 of the Title IX regulation in question similarly prohibits employment action concerning marital, parental or family status "which treats persons differently on the basis of sex " 34 C.F.R. Sec. 106.57(a)(1) (1986) (emphasis added). We cannot see how subsection 1 creates a claim not cognizable under Title VII. Under Title VII or Title IX, the potential marital or family status distinction only violates the statute if its impact is to discriminate on the basis of sex. Thus, a claim pursuant to subsection 1 that is actionable under Title IX would also be actionable under Title VII.

Subsection 2, on the other hand, would appear to prohibit employment action based on an individual's status as head of household or principal wage earner, without regard to whether the action treats persons differently on the basis of sex. Id. at Sec. 106.57(a)(2). Arguably, this regulation could create a claim under Title IX that is not cognizable under Title VII. That interpretation of subsection 2, however, by omitting any reference to sex discrimination, would extend beyond the prohibitions of Title IX. "The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes." Chrysler Corp. v. Brown, 441 U.S. 281, 302, 99 S.Ct. 1705, 1718, 60 L.Ed.2d 208 (1979).

The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is "the power to adopt regulations to carry into effect the will of Congress as expressed by the statute." Dixon v. United States, 381 U.S. 68, 74 ...