Blankenship v. Warren County, Va.

• Decision Date: 19 March 1996
• Docket Number: Civil Action No. 95-00062-H.
• Citation: 918 F. Supp. 970
• Parties: Deborah BLANKENSHIP, Plaintiff, v. WARREN COUNTY, VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

918 F. Supp. 970

Deborah BLANKENSHIP, Plaintiff, v. WARREN COUNTY, VIRGINIA, et al.,¹ Defendants.

Civil Action No. 95-00062-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

March 19, 1996.

Michael T. Leibig, Carla Markim Siegel, Zwerdling, Paul, Leibig, Kahn, Thompson & Wolly, P.C., Fairfax, VA, for Deborah Blankenship.

James J. Kelley, Morgan, Lewis & Bockius, Washington, DC, for Warren County, Virginia.

John Mills Barr, James J. Kelley, Morgan, Lewis & Bockius, Washington, DC, for Warren County Sheriff's Department and Lynn Armentrout.

MEMORANDUM OPINION

MICHAEL, District Judge.

This matter comes before the court upon the defendants' objections to a Report and Recommendation issued by the Honorable B. Waugh Crigler, Magistrate Judge, United States District Court for the Western District of Virginia, on December 6, 1995.² In this civil action, the plaintiff alleges that she was discharged from her position as a deputy sheriff with the defendant Sheriff's Department on the basis of gender, in violation of Title VII of the so-called Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq. (1996), and in violation of her rights as secured by the so-called Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, U.S. Const. amend. XIV; 42 U.S.C. §§ 1981(a) & 1983 (1996). The defendants move to dismiss or in the alternative for summary judgment on the following grounds: (1) that the Sheriff of Warren County is not individually liable in an action prosecuted pursuant to Title VII based upon a claim of gender discrimination; (2) that the Sheriff and Sheriff's Department are entitled to immunity pursuant to the Eleventh Amendment to the Constitution of the United States; and (3) that the Sheriff and Sheriff's Department are entitled to a defense of qualified immunity. The Magistrate Judge recommends that this court overrule the defendants' motion in its entirety. For the reasons stated below, the court will adopt the Report of the Magistrate Judge inasmuch as it recommends overruling the defendant Sheriff's motion to dismiss Count II against the Sheriff in his individual capacity, but will decline to adopt the remaining recommendations.

I.

The facts relevant to this matter are simple. On December 16, 1986, the plaintiff, Deborah Blankenship, was hired by the Defendant Sheriff Lynn Armentrout ("Sheriff") to work as a deputy dispatcher in the defendant Warren County Sheriff's Department ("Sheriff's Department"). On January 1, 1991, the Sheriff promoted the plaintiff to the position of "Road Deputy."

The defendants claim that during February 1993, the defendant Sheriff's Department received three citizen complaints regarding the plaintiff's verbally abusive language while on duty. As a result of the complaints, the Sheriff's Department placed the plaintiff on probation for a period of one year.

On June 13, 1993, the plaintiff instituted a high speed pursuit of a car which the plaintiff had detected traveling at a speed approximately twenty miles per hour in excess of the posted speed limit. The plaintiff allegedly lost sight of the targeted vehicle and terminated the pursuit. However, at some point later the plaintiff resumed the pursuit, increased her speed, and was involved in a single-car accident. The defendants allege that the plaintiff destroyed the police vehicle. The defendants claim also that the June 13, 1993 accident was the plaintiff's sixth vehicular accident in her two-year period as a Road Deputy.

The Sheriff directed Captain Billy Chapman, Chief Deputy of the Sheriff's Department, to conduct an investigation of the plaintiff's June 13, 1993 accident. Captain Chapman concluded that the plaintiff violated several provisions of the Sheriff's Department's General Order 89-20. Accordingly, Captain Chapman recommended that the plaintiff be terminated.

The Sheriff met with Douglas Napier, County Attorney for Warren County, Virginia. Mr. Napier, in turn, consulted with the Office of the Attorney General for the Commonwealth of Virginia. Mr. Napier informed the Sheriff that there would be nothing improper in terminating the plaintiff. On July 22, 1993, the Sheriff and others met with the plaintiff. On or about July 22, 1993, the Sheriff terminated the plaintiff.

On August 17, 1993, the plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging gender discrimination in her termination and naming only the Sheriff's Department. The plaintiff claims that she, the first and only female Road Deputy during her tenure, endured comments and slurs based upon her gender; that she was reprimanded for her physical limitations as a female; and that she was terminated because of her gender. The plaintiff sought a so-called "Right to Sue" letter from the EEOC. On July 26, 1995, the plaintiff initiated this civil action.

II. Title VII Individual Liability

The Magistrate Judge concluded that the defendant Sheriff is subject to liability in his individual capacity. The Magistrate Judge, relying upon Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.1989), vacated on other grounds, 900 F.2d 27 (4th Cir.1990), held that the extant law of the Fourth Circuit is that an individual qualifies as an employer under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing, and conditions of employment, and that there is no person in the Commonwealth that satisfies that definition better than a Sheriff. The defendant Sheriff argues that Title VII does not operate to extend liability to individuals in cases involving gender discrimination. The court agrees with the Sheriff.

Section 2000e(b) of the Civil Rights Act, in relevant part, defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees ..., and any agent of such a person." In Paroline, the court held that summary judgment was improper on the issue of individual liability in a case alleging sexual harassment where the plaintiff raised a genuine issue of material fact as to whether a supervisor exercised sufficient supervisory authority over the plaintiff. Paroline, 879 F.2d at 104. However, in Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994), the court held that the provision defining "employer" pursuant to the so-called Age Discrimination in Employment Act ("ADEA") operates to limit civil liability to an employer and does not extend liability to an individual.³ The Birkbeck court, noting the close statutory kinship between the ADEA and Title VII, reasoned that "it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more." Id. at 510 (citation omitted). The Birkbeck court concluded that the provision's language incorporating an "agent" of an employer into the definition of "employer" was "an unremarkable expression of respondeat superior — that discriminatory personnel actions taken by an employer's agent may create liability for an employer." Id. (citation omitted). It is noteworthy that the Birkbeck court was careful to caution that an employee-agent "may not be shielded as an employer's agent in all circumstances" and specifically referred to "personal liability under Title VII in a sexual harassment setting." Id. at 510 n. 1 (citing Paroline, 879 F.2d at 104).

Since Birkbeck, the district courts within the Fourth Circuit have grappled with the task of reconciling the Birkbeck decision with the decision in Paroline. In Lane v. David P. Jacobson & Co., Ltd., 880 F.Supp. 1091, 1095-96 (E.D.Va.1995), the court reasoned that "the clear implication of the decision in Birkbeck was that the Fourth Circuit does not support individual liability for agents of employers under Title VII" and, accordingly, refused to extend individual liability to a supervisor in a case alleging a violation of Title VII based upon a claim of sexual harassment. In Mitchell v. RJK of Gloucester, Inc., 899 F.Supp. 246 (E.D.Va.1995), the court relied upon the Birkbeck decision in refusing to extend individual liability to a supervisor of the defendant employer in a case alleging a violation of Title VII based upon a claim of racial discrimination. In Mitchell, the court, acknowledging the footnote in Birkbeck, noted that a sexual harassment case "is one of the few instances where individual liability will be imposed in employment discrimination cases in the Fourth Circuit." Id. at 249. Finally, in Frye v. Virginia Transformer Corp., Civil Action No. 95-0399-R, 1995 WL 810018, at *2 (W.D.Va. Nov. 29, 1995), Chief Judge Jackson Kiser acknowledged the distinction between Title VII cases based upon claims of sexual harassment and Title VII cases based upon other claims:

Birkbeck is inapposite to the instance case. An age discrimination decision, it makes specific reference to the Paroline analysis, thereby providing a distinction between the relatively benign age discrimination and more egregious sexual harassment. Paroline holds that individual Title VII liability arises where sexual harassment is conducted by the supervisor for his own benefit and not for that of his employer. I therefore conclude that allegations of sexual harassment ... do not come within the rationale of the solicitude expressed in Birkbeck for small business and, a fortiori, for individual supervisors.

Id. (internal citation omitted).

This court will now enter the fray by refusing to extend individual liability in a Title VII claim based upon an allegation of gender discrimination. This court believes that claims in the gender discrimination setting are more akin to claims in the age discrimination setting. In both age discrimination and gender...