Bakewell v. Stephen F. Austin State University, 9:91CV179.

• Decision Date: 15 July 1996
• Docket Number: No. 9:91CV179.,9:91CV179.
• Citation: 975 F.Supp. 858
• Parties: Dr. Helene BAKEWELL and Dr. Hebe Mace, on behalf of themselves and others similarly situated, Plaintiffs v. STEPHEN F. AUSTIN STATE UNIVERSITY, et al., Defendants<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — Eastern District of Texas

975 F.Supp. 858

Dr. Helene BAKEWELL and Dr. Hebe Mace, on behalf of themselves and others similarly situated, Plaintiffs v. STEPHEN F. AUSTIN STATE UNIVERSITY, et al., Defendants¹

No. 9:91CV179.

United States District Court, E.D. Texas, Lufkin Division.

July 15, 1996.

COPYRIGHT MATERIAL OMITTED

Larry R. Daves, Carol Bertsch (Larry R. Daves & Assocs.), San Antonio, for plaintiffs.

Robert B. O'Keefe, Lori Bien (Texas Attorney General's Office), Austin, for defendants.

MEMORANDUM OPINION

HEARTFIELD, District Judge.

1. The court bifurcated this case's trial into liability and relief stages. Order, entered June 19, 1995 (granting motion to bifurcate); see also Joint Supplement to Am. Joint Pre-Trial Order at 1-4. It now enters findings of fact and conclusions of law regarding the liability phase.² See Fed. R.Civ.P. 52(a). In doing so, it adopts "[a]ny conclusion of law more properly characterized as a finding of fact ... as such" and "[a]ny finding of fact more properly characterized as a conclusion of law ... as such." LaFleur v. Westridge Consultants, Inc., 844 F.Supp. 318, 320 (E.D.Tex.1994).

PRELIMINARY ISSUE: RELATIONSHIP BETWEEN TITLE VII & TITLE IX

2. This case involves charges of sex discrimination in employment. See, e.g., Am. Joint Final Pre-Trial Order at 2-3.

3. Five of the claims allege a violation of both Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments of 1972 (Title IX). See Joint Supplement to Joint Final Pretrial Order at 1-2. Declaratory or injunctive relief is sought as to each of them. See Am. Joint Final Pre-Trial Order at 2-3, 11-12. Injunctive relief

4. Title VII prohibits employers from "[failling] or refus[ing] to hire or ... [from] discharg[ing] any individual, or otherwise discriminat[ing] against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1).

5. Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." 20 U.S.C. § 1681(a). It delineates "program or activity" and "program" as the following:

[A]ll operations of ... a college, university, or other postsecondary institution, or a public system of higher education ... any part of which is extended Federal financial assistance, except that such term does not include any operation of any entity which is controlled by a religious organization if the application of section 1681 of this title to such operation would not be consistent with the religious tenets of such organization.

Id. § 1687. The institution of higher education involved in this case, SFA, apparently comes within this definition. See Defs.' Ex. 76A (Stephen F. Austin State University, University Fact Book 80 (1989)); Defs.' Ex. 77B (Stephen F. Austin State University, University Fact Book 95, 100 (1994)).

6. "[Although] Title VII explicitly covers employment-related discrimination[,] Title IX has also been held to cover such discrimination." Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316 (10th Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987) (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982)).

7. The United States Court of Appeals for the Fifth Circuit (Fifth Circuit) has determined that "Title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions." Lakoski v. James, 66 F.3d 751, 753 (5th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3625 (U.S. Mar. 8, 1996) (No. 95-1439). It, however, has "limit[ed] [this] holding to individuals seeking money damages under Title IX directly or derivatively through [42 U.S.C.] § 1983 for employment practices for which Title VII provides a remedy" and has "express[ed] no opinion whether Title VII excludes suits seeking only declaratory or injunctive relief." Id.; see also Marcus v. St. Tammany Parish Sch. Bd., No. 95-3140, 1996 WL 304289, at *1 (E.D.La. June 5 1996) ("Because plaintiffs have additionally asked for injunctive relief under Title IX, Lakoski does not mandate dismissal of plaintiffs' Title IX claims.")

8. Defendants now argue that "the Fifth Circuit would likely extend its holding in Lakoski if specifically confronted with a case like this one, where only declaratory and injunctive relief under Title IX are at issue." Post Trial Br. of Defs. SFA, et al. at 6. Based upon this proposition, they assert that Lakoski's teaching "foreclose[s]" the Title IX claims presented in this suit. Id. at 58 n. 40.

9. Defendants seek to inject a new contested issue of law into this litigation. See generally United States District Court for the Eastern District of Texas, Civil Justice Expense and Delay Reduction Plan app. A (1995) [hereinafter Plan]. The court, therefore, must determine the propriety of modifying the amended joint final pre-trial order to include the fresh concern that defendants raise.³ See Phoenix Canada Oil Co. v. Texaco, Inc., 842 F.2d 1466, 1475-76 (3d Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988); Daniels v. Board of Educ. of Ravenna City Sch., 805 F.2d 203, 210 (6th Cir.1986).

10. "An issue or theory not even implicitly included in [a] pretrial order is barred unless the order is later amended `to prevent manifest injustice.'" Hall v. State Farm Fire & Casualty Co., 937 F.2d 210, 212 (5th Cir.1991) (quoting Fed.R.Civ.P. 16(e)); cf. Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184, 192 n. 13 (5th Cir.1985) ("Each party has an affirmative duty to allege at the pretrial conference all factual and legal bases upon which the party wishes to litigate the case."), cert. denied, 475 U.S. 1017, 106 S.Ct. 1202, 89 L.Ed.2d 315 (1986). In this case, neither the amended joint final pre-trial order nor any of its supplements even insinuate defendants' present contention that Lakoski prescribes a finding that Title VII preempts the Title IX claims raised in this case. See Am. Joint Final Pre-Trial Order at 2-15; Joint Supplement to Joint Final Pretrial Order at 1-2; Joint Supplement to Am. Joint Pre-Trial Order at 1-4; Defs. Supplemental Issues of Fact and Law to Joint Pre-Trial Order at 1-2.

11. Defendants may believe that the announcement of Lakoski subsequent to this case's trial creates a situation in which inclusion of their argument relating to that decision in the amended joint final pre-trial order must occur to prevent manifest injustice. Compare Order, entered Sept. 12, 1995 (approving the amended final joint pre-trial order, all of its supplements and a joint amended certification) with Lakoski, 66 F.3d at 751 (entered Oct. 3, 1995). That sequence of events, however, fails to dictate a modification of the amended joint final pre-trial order.

12. Although Lakoski represents the Fifth Circuit's first discourse about the relationship between Title VII and Title IX, see Lakoski, 66 F.3d at 754, other courts previously have considered that doctrinal issue. Compare Howard v. Board of Educ. Sycamore Community Unit, 893 F.Supp. 808, 814-15 (N.D.Ill.1995) and Wedding v. University of Toledo, 862 F.Supp. 201 (N.D.Ohio 1994) and Storey v. Board of Regents of Univ. of Wis. Sys., 604 F.Supp. 1200 (W.D.Wis.1985) with Broussard v. Board of Trustees for State Colleges & Univs., 61 Fair Empl. Prac. Cas. (BNA) 710 (E.D.La.1993) and Paddio v. Board of Trustees, 61 Fair Empl. Prac. Cas. (BNA) 86 (E.D.La.1993) and Henschke v. New York Hospital-Cornell Medical Ctr., 821 F.Supp. 166, 171-73 (S.D.N.Y.1993). One appeals court, indeed, apparently has settled the question left unanswered by Lakoski that defendants now wish the court to address. See Preston v. Virginia, 941 F.2d 1207, 1991 WL 156224, at *3 (4th Cir.1991) (claims of employment discrimination brought under both Title VII and Title IX) ("We find that prospective equitable relief is precisely the type of remedy that furthers the goals intended by Title IX and that has been approved by prior decisions.").

13. The contested issue of law that defendants now desire to introduce into this case, consequently, was discoverable prior to trial. Because of this circumstance, the court declines to incorporate that assertion into the amended joint final pretrial order. See Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 609 (5th Cir.1989) (a party "cannot ... claim `manifest injustice' to modify the order in light of later-discovered but previously discoverable favorable evidence"); Trinity Carton, 767 F.2d at 192 n. 13 ("Even though amendment of the pretrial order may be allowed where no surprise or prejudice to the opposing party results, where, as here, the evidence and the issue were known at the time of the original pretrial conference, amendments may generally be properly refused.").

14. The court, therefore, proceeds to consider the merits of each of the Title IX claims presented in this case. Title VII jurisprudence guides this review.⁴ See, e.g., Preston v. Virginia ex rel. New River Community College, 31 F.3d 203, 206-7 (4th Cir. 1994); Lipsett v. University of P.R., 864 F.2d 881, 896-97 (1st Cir.1988); Mabry, 813 F.2d at 316-18.

OVERVIEW OF SFA

Administrative Structure

15. Texas' legislature and governor "vest[] legal control [over SFA] in a nine-member Board of Regents which is the final authority in all University affairs except for certain matters, specified by law." Joint Ex. 502.⁵

16. SFA's president is "[t]he chief administrative officer of the University." Id. He or she reports to the Board of Regents. Id.

17. SFA "is divided into four divisions: academic affairs, administrative and fiscal affairs, university advancement and university affairs. Each division...