Annis v. County of Westchester, N.Y.

• Decision Date: 22 September 1994
• Docket Number: No. 1689,D,1689
• Citation: 36 F.3d 251
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1657, 63 USLW 2206 Barbara ANNIS, Plaintiff-Appellant, v. COUNTY OF WESTCHESTER, NEW YORK; Ernest J. Colaneri; and Anthony M. Mosca, Defendants-Appellees. ocket 94-7085.
• Court: U.S. Court of Appeals — Second Circuit

Page 251

36 F.3d 251

65 Fair Empl.Prac.Cas. (BNA) 1657, 63 USLW 2206

Barbara ANNIS, Plaintiff-Appellant, v. COUNTY OF WESTCHESTER, NEW YORK; Ernest J. Colaneri; and Anthony M. Mosca, Defendants-Appellees.

No. 1689, Docket 94-7085.

United States Court of Appeals, Second Circuit.

Argued July 19, 1994.

Decided Sept. 22, 1994.

George J. Calcagnini, Mount Kisco, NY, for plaintiff-appellant.

Peter A. Carbone, Asst. Westchester County Atty., (Marilyn J. Slaaten, Westchester County Atty., Carol L. Van Scoyoc, Deputy Westchester County Atty., White Plains, NY, of counsel), for defendants-appellees County of Westchester and Ernest J. Colaneri. ¹

James R. Neely, Jr., Deputy Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vincent J. Blackwood, Asst. Gen. Counsel, Samuel A. Marcosson, Attorney, E.E.O.C., Washington, DC, submitted a brief as amicus curiae.

Before: WALKER, McLAUGHLIN, and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

In this appeal, we decide whether an employment discrimination claim pleaded solely under 42 U.S.C. Secs. 1983 and 1985 is dismissable for failure to plead a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., and to plead compliance with the procedural requirements of that act. Plaintiff-appellant Barbara Annis brought an action in the United States District Court for the Southern District of New York (Broderick, J.), alleging that her employer, the Westchester County Department of Public Safety, and its employees Ernest J. Colaneri and Anthony M. Mosca (collectively "the defendants"), discriminated against and harassed her because of her sex, thereby violating her Fourteenth Amendment right to due process and equal protection of the laws. The pleading relies upon Secs. 1983 and 1985, and does not invoke Title VII. ² The district court dismissed Annis's complaint, on a motion by the defendants pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Although the district court does not specify which rule it invokes, we will treat the dismissal as one for failure to state a claim upon which relief can be granted. Specifically, the court held that a plaintiff alleging unlawful sex discrimination by an employer must allege a violation of Title VII, and must follow all the procedural steps specified in that law. The district court accordingly dismissed her complaint with leave to amend to include a Title VII count. When Annis failed to amend the complaint, the district court entered final judgment dismissing it. For the reasons stated below, we reverse.

Background

We assume the truth of the allegations in the complaint, as we must on an appeal from an order dismissing a complaint for failure to state a claim. Castellano v. Board of Trustees of the Police Officers' Variable Supplements Fund, 937 F.2d 752, 754 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 378, 116 L.Ed.2d 329 (1991).

Barbara Annis is a police lieutenant in the Department of Public Safety of Westchester County, New York. She transferred there from the police department of Mount Vernon, New York, in January 1984. During her tenure as a Mount Vernon police officer, Annis's supervisor--defendant Anthony Mosca--subjected her to a prolonged campaign of harassment and discrimination because of her sex. After approximately seven years of this treatment, Annis filed a discrimination claim with the New York State Attorney General. She dropped that claim in exchange for a transfer to the Westchester Department of Public Safety, thinking that doing so would remove herself from Mosca's supervisory jurisdiction.

Six months later, however, Mosca joined the Westchester Department of Public Safety as Commissioner, in which role he resumed his campaign of harassment and discrimination against her, now aided by her direct supervisor Ernest Colaneri. ³ She was subjected to vulgar sexual references, harsh and unfounded criticism, and otherwise singled out for different treatment relative to the Department's male officers. For example, on several occasions she was assigned duties normally relegated to more junior grades within the Department. In approximately November 1992, she was barred from entering the radio room, even though entry was permitted for all male employees. Other incidents included the removal of a favorable performance evaluation from her file, the refusal of the Department to assign her a car after her promotion to lieutenant, and the removal of her name from an overtime duty roster. In each case, she was singled out for such treatment because of her sex.

Annis's complaint pleads two causes of action: (i) a claim under Sec. 1983 for the deprivation of her constitutional rights to equal protection of the law and due process; and (ii) a claim under Sec. 1985 for conspiracy to deprive her of the equal protection of the law "and/or the equal privileges and immunities of the law." The district court granted defendants' motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and (6), on the ground that a plaintiff alleging sex-based employment discrimination may not bring an action solely under Sec. 1983, but must (at least) concurrently plead a violation of Title VII and follow that statute's procedures.

We reverse because we conclude that Title VII is not intended to be an exclusive remedy for sex discrimination in the workplace.

Discussion

The district court's dismissal of the complaint is subject to our de novo review; taking all the plaintiff's factual allegations as true, we will affirm only where no set of facts could support her claim. Christ Gatzonis Electrical Contractor, Inc. v. New York City School Construction Authority, 23 F.3d 636, 639 (2d Cir.1994).

Annis pleaded a violation of Sec. 1983, which provides, in relevant part:

Every person who, under color [of law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. Sec. 1983. This statute furnishes a cause of action for the violation of federal rights created by the Constitution. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979). There can be no question that defendants Mosca and Colaneri are, in their personal capacities, amenable to suit under this statute, inasmuch as they were conducting themselves as supervisors for a public employer and thus were acting under color of state law. See Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir.1989). There is a question regarding whether the County of Westchester Department of Public Safety may properly be named as a defendant in this action, see id. at 576-77, but that issue has not been raised or briefed by the County and therefore we do not reach the question.

As a threshold matter, we conclude that the core conduct of which Annis complains--sex discrimination--is covered by Sec. 1983. The Supreme Court declared fifteen years ago that individuals have a constitutional right under the equal protection clause to be free from sex discrimination in public employment. Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 2271, 60 L.Ed.2d 846 (1979). Defendants argue that Annis's complaint really pleads sexual harassment, and that such a claim (i) is distinct from sex discrimination and (ii) is purely a creation of Title VII. Circuit courts that have considered this question have rejected the argument. Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.1994); Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir.1986) ("Sexual harassment of female employees by a state employer constitutes sex discrimination for purposes of the equal protection clause of the fourteenth amendment."). While we do not subscribe to a categorical view that sexual harassment equals sex discrimination, we do agree that harassment that transcends coarse, hostile and boorish behavior can rise to the level of a constitutional tort. See Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir.1994) ("[I]n some circumstances a Sec. 1983 claim may be properly grounded on a violation of the Equal Protection Clause of the Fourteenth Amendment based on sexual harassment in the workplace."). When--as alleged here--sexual harassment includes conduct evidently calculated to drive someone out of the workplace, the harassment is tantamount to sex discrimination. Annis's complaint alleges that the reason behind her treatment was Mosca's belief that women should not be police officers. Whether or not she can adduce facts supporting that alleged motivation, the conduct alleged is evidently calculated to force the plaintiff to retreat from her role as a police officer, and from her job.

Therefore, irrespective of whether Annis is pleading sex discrimination or sexual harassment, we hold that she has pleaded a claim under Sec. 1983. The only remaining question is whether she may bring her claim without concurrently pleading a violation of Title VII, and satisfying the procedural requirements of that law. On that count, it is clear that Congress did not intend to make Title VII the exclusive remedy for employment discrimination claims, at least not those claims cognizable under the Constitution.

In 1972, Congress amended the 1964 Civil Rights Act to make Title VII applicable to state and municipal employers. Pub.L. No. 92-261, 86...