Carter v. Sedgwick County, Kan.

• Decision Date: 08 April 1991
• Docket Number: No. 89-3005,89-3005
• Citation: 929 F.2d 1501
• Parties: 55 Fair Empl.Prac.Cas. 883, 56 Empl. Prac. Dec. P 40,699 E. Jean (Calloway) CARTER, Plaintiff-Appellee, v. SEDGWICK COUNTY, KANSAS; The Board of County Commissioners of Sedgwick County and Michael R. Brand, Defendants-Appellants, and Jon R. Cameron; Donald E. Gragg; Tom Scott; Bernard Hentzen and Timothy Witsman, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1501

929 F.2d 1501

55 Fair Empl.Prac.Cas. 883,

56 Empl. Prac. Dec. P 40,699

E. Jean (Calloway) CARTER, Plaintiff-Appellee, v. SEDGWICK COUNTY, KANSAS; The Board of County Commissioners

of Sedgwick County and Michael R. Brand,

Defendants-Appellants,

and

Jon R. Cameron; Donald E. Gragg; Tom Scott; Bernard

Hentzen and Timothy Witsman, Defendants.

No. 89-3005.

United States Court of Appeals, Tenth Circuit.

April 8, 1991.

Alan L. Rupe, of Kahrs, Nelson, Fanning, Hite & Kellogg (Edward L. Keeley, of Crockett, Keeley & Gilhousen, with him on the briefs), Wichita, Kan., for defendants-appellants.

Beverly Dempsey (J. Greg Kite, with her on the brief), Wichita, Kan., for plaintiff-appellee.

Before ANDERSON and EBEL, Circuit Judges, and CHRISTENSEN, Senior District Judge. ^*

EBEL, Circuit Judge.

Defendants-appellants appeal from the district court's judgment entered against them for discriminating against plaintiff-appellee E. Jean (Calloway) Carter on the basis of her race, in violation of Title VII and Sec. 1981. In light of the Supreme Court's interpretation of Sec. 1981 in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) and our recent holding in Trujillo v. Grand Junction Regional Center, 928 F.2d 973 (10th Cir.1991), we reverse the district court's determination of liability under Sec. 1981, and we reverse the award of punitive and consequential damages. We remand for clarification of the district court's ruling on plaintiff's claim of racial discrimination under Title VII. Finally, we affirm the award of attorney's fees in the event that plaintiff is awarded relief under Title VII for racial discrimination.

Facts

Plaintiff E. Jean Carter is a black female. On June 23, 1983, she was hired to work as an office associate for the Sedgwick County Community Corrections Department. Defendant Jon Cameron, the director of the Community Corrections Department, was plaintiff's direct supervisor. Defendant Michael Brand was the assistant director of the Department.

According to plaintiff, Brand frequently directed racial slurs at her, and Cameron sexually harassed her. On February 22, 1985, Cameron left his position as director of the Department, and Brand succeeded him. Although plaintiff had consistently received favorable job evaluations, on Brand's first day as director, he fired plaintiff without any hearing.

Plaintiff then filed this lawsuit. Her complaint alleged race-based discrimination, in violation of Title VII and 42 U.S.C. Secs. 1981 and 1983, and gender-based discrimination, in violation of Title VII and 42 U.S.C. Sec. 1983. Plaintiff later raised a procedural due process claim under Sec. 1983, but the district court dismissed that claim prior to trial because it had not been included in either the pleadings or the pretrial order.

Following a bench trial, the district court ruled in favor of plaintiff on her charges of racial discrimination. 705 F.Supp. 1474. The district court in its written order held that "the sole cause of plaintiff's termination was by reason of her race, in violation of 42 U.S.C. Sec. 1981." Dist.Ct.Op. at 1479. Previously, however, in its oral ruling from the bench, the district court expressly premised liability for racial discrimination against defendant Sedgwick County on Title VII. R.Vol. III at 1086-87. The district court specifically stated that its written order "incorporate[d] in full its previous ruling from the bench." Dist.Ct.Op. at 1475.

After finding defendants liable, the district court entered judgment against Brand in his official capacity in the amount of $100,000, along with punitive damages of $10,000. Dist.Ct.Op. at 1479. The district court also entered judgment against the "Sedgwick County Commission" for lost income in the amount of $10,748.05 and directed the Commission to reinstate plaintiff to her former position, or to a position with a commensurate job rating, within 45 days. Dist.Ct.Op. at 1479. The court further ordered that if the Commission decided not to rehire plaintiff within 45 days, the Commission would have to pay plaintiff her previous salary, including all benefits.

The district court denied relief to plaintiff for her gender-based discrimination claims under Title VII and Sec. 1983. The court dismissed her Title VII gender-based discrimination claim because plaintiff failed to exhaust her administrative remedies. The court denied relief for plaintiff's gender-based discrimination claim under Sec. 1983 (based on the Equal Protection Clause) because plaintiff failed to prove that defendants intended to discriminate against her on the basis of her sex.

Discussion

I. The Applicability of Sec. 1981 to Claims of Race-Based Discharge

After the district court rendered its decision, the Supreme Court clarified the scope of 42 U.S.C. Sec. 1981 in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). ¹ In Patterson, the Court was faced with the issue of whether racial harassment occurring in the course of employment was actionable under Sec. 1981. The Court held that harassment occurring after the formation of an employment contract is not actionable, stating that the right "to make ... contracts" under Sec. 1981 "extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment." Patterson, 109 S.Ct. at 2372.

Patterson did not settle the issue of whether Sec. 1981 applies to a race-based discharge. Indeed, the Court subsequently has expressly noted that it left that issue open. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 110 S.Ct. 1331, 1336 n. 3, 108 L.Ed.2d 504 (1990); id., 110 S.Ct. at 1338-39 (O'Connor, J., concurring). However, the logic of the Court's opinion in Patterson indicates that a claim of discriminatory discharge does not implicate the right "to make ... contracts" protected by Sec. 1981 because a discharge occurs after the employment contract has been formed. Thus, in the recent case of Trujillo v. Grand Junction Regional Center, 928 F.2d 973 (10th Cir.1991), this court held that Sec. 1981 did not apply to racially discriminatory discharge cases. Many other courts that have addressed this issue agree. See Williams v. First Union Nat'l Bank, 920 F.2d 232, 235 (4th Cir.1990); Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1256-58 (6th Cir.1990); Thompkins v. Dekalb County Hosp. Auth., 916 F.2d 600, 601 (11th Cir.1990); Gonzalez v. Home Ins. Co., 909 F.2d 716, 722 (2d Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 108-09 (7th Cir.1990); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir.1990); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807-08 (5th Cir.1990). Therefore, we must reverse the district court's determination of liability under Sec. 1981. ²

Plaintiff argues that her termination did in fact implicate her right to make a contract because she was prevented from entering into a new arrangement to work as an office associate under defendant Michael Brand. However, that argument is inconsistent with the finding of the district court that plaintiff was hired by Sedgwick County, not by Jon Cameron individually. Dist.Ct.Op. at 1475. Thus, although plaintiff was denied the opportunity to remain in her present position as an office associate with the Corrections Department, she was not denied any opportunity to enter into a new contract for a new position. As a result, plaintiff was not denied her right "to make ... contracts" under Sec. 1981.

Plaintiff also was not denied her right to "enforce contracts" within the meaning of Sec. 1981. The Supreme Court in Patterson held that "[t]he right to enforce contracts does not ... extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights." Patterson, 109 S.Ct. at 2373. We note that plaintiff has not alleged that defendants interfered with her legal rights of enforcement of her contract by, for instance, impeding her access to the courts or to nonjudicial methods of dispute resolution.

Although plaintiff's claim of discriminatory discharge is not covered by Sec. 1981, it is covered by Title VII. In its written order and judgment, the district court based its ultimate holding exclusively on Sec. 1981. See Dist.Ct.Op. at 1479. However, plaintiff alleged that defendants' racial discrimination also violated Title VII, and the court's factual finding of racial discrimination under Sec. 1981 applies fully to plaintiff's discrimination claims under Title VII. See Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1444 (10th Cir.1988).

Moreover, the district court's written order was expressly intended to "incorporate in full its previous ruling from the bench," Dist.Ct.Op. at 1475. The district court, in its ruling from the bench, premised liability against defendant Sedgwick County on Title VII. ³ R.Vol. III at 1086-87. Thus, the district court orally found a sufficient basis for liability under Title VII. In light of the fact that the order was issued prior to Patterson, plaintiff should not be held accountable for any imprecision in the order. Prior to Patterson, plaintiff had little incentive to insist that the district court's written order also base liability on Title VII because Sec. 1981 authorizes a greater range of remedies than Title VII. We therefore remand for the district court to consider whether to amend its written order so as to predicate liability of the county under Title VII as was the case in its oral rulings from the bench.

Title VII claims are considered equitable actions, for which legal remedies are unavailable. In contrast, Sec. 1981 claims are actions at law, and parties prevailing on Sec. 1981 claims are entitled to the full panoply of legal remedies, which are broader than the remedies under Title VII. See M. Player, Employment Discrimination Law Sec. 5.67, at...