Curran v. PORTLAND SUPER. SCH. COMMITTEE, ETC., Civ. No. 75-27-SD.

Citation435 F. Supp. 1063
Decision Date18 July 1977
Docket NumberCiv. No. 75-27-SD.
PartiesCarole B. CURRAN, Plaintiff, v. PORTLAND SUPERINTENDING SCHOOL COMMITTEE, CITY OF PORTLAND, MAINE, et al., Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)

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Peter L. Murray, and Philip F. W. Ahrens, III, Portland, Me., for plaintiff.

Hugh G. E. MacMahon, William J. O'Brien, Corporate Counsel, Portland, Me., for defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Carole B. Curran, a female employee in the Portland School System, has filed this action against the City of Portland; the Portland Superintending School Committee; Linda E. Abromson, Edith S. Beaulieu, Arthur M. Burton, Jr., Selvin Hirshon, Ira E. Kemp, Clifford A. Richardson, Joyce Rogers, Mary Sottery and H. Gordon Crowley, all present or former members of the School Committee; Harold Raynolds, Jr., the present Superintendent of the Portland School System; Clyde Bartlett, the present Assistant Superintendent for Elementary Education in the Portland School System; and Frank Tupper and Rodney E. Wells, former Superintendents of the Portland School System. Claims are asserted against all individual defendants in their official capacities and against defendants Bartlett, Tupper, Sottery and Raynolds in their individual capacities as well. The second amended complaint sets forth three causes of action against all defendants: (1) Count I asserts a claim under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 86 Stat. 103 (1972), 42 U.S.C. § 2000e et seq., alleging employment discrimination on account of sex; (2) Count II, brought directly under the Fourteenth Amendment, alleges the deprivation of the equal protection of the laws resulting from sex-based employment discrimination; and (3) Count III contains claims under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985(3), alleging that defendants have, under color of law, deprived plaintiff of the right to seek public employment without discrimination on account of sex and have conspired to deprive her of the equal protection of the laws. Jurisdiction is variously asserted under 28 U.S.C. §§ 1331, 1343, 2201 and 2202 and 42 U.S.C. § 2000e et seq. Plaintiff requests a declaratory judgment in her favor under Count I and injunctive relief under both Counts I and II. She also seeks special, compensatory, and punitive damages, an award of back pay, costs and attorney's fees under all three counts.

Presently before the Court are defendants' motions for dismissal of all three counts of the complaint. For the reasons to follow, the Court has concluded that:

(1) The motions directed to Count I (the Title VII count) by all the individual defendants other than Bartlett must be GRANTED and Count I must be DISMISSED as against those defendants; the motions directed to Count I by the City of Portland, the School Committee and Bartlett must be DENIED; the prayers for compensatory and punitive damages in Count I must be STRICKEN;
(2) The motions directed to Count II (the Fourteenth Amendment count) must be GRANTED and Count II must be DISMISSED as against all defendants;
(3) The motions directed to the damage claims in Count III (the Section 1983 and 1985(3) count) by the City of Portland, the School Committee, and all individual defendants in their official capacities, must be GRANTED and the damage claims in Count III must be DISMISSED as against the City of Portland, the School Committee and all defendants in their official capacities; the motions directed to the damage claims in Count III by defendants Bartlett, Tupper, Sottery and Raynolds in their individual capacities must be DENIED.

As the factual allegations of the complaint are substantially identical for all counts, they may be briefly set forth at the outset.1 Plaintiff was and still is an employee of the School Committee and works in the Portland School System. She holds a Masters degree in psychology, is certified as a teacher, and has obtained her principal and counselor certificate subsequent to the events giving rise to this case. Plaintiff alleges a continuing pattern and practice of discrimination by defendants against plaintiff and other female employees in the Portland School System when recruiting, hiring, promoting and assigning females qualified for administrative jobs, and in the terms and conditions of employment of females. Defendants are also alleged to have failed to comply with statutory requirements concerning the maintenance of applicant records and to have utilized sex-segregated job classifications.

In particular, plaintiff alleges that no notice was given to her or other qualified female employees of the Portland School System when the position of "Coordinator of Project Interact," a federally-funded program in the Portland schools, became vacant in August 1973. The complaint asserts that defendant Bartlett, then and now Assistant Superintendent of the Portland schools privately offered the position to a male whose qualifications were inferior to plaintiff's in October 1973, which offer was then accepted. The complaint alleges that following this incident plaintiff filed charges of sex-based discrimination with both the Maine Human Rights Commission (MHRC) and the Equal Employment Opportunity Commission (EEOC) in November 1973 and January and March 1974. Her complaint further alleges that defendants engaged in and continue to engage in "retaliatory harassment and intimidation" as a result of her initiating proceedings with these governmental agencies and that plaintiff filed subsequent charges alleging harassment with the EEOC in July, September and October 1974 and January 1975. The complaint asserts that on August 9, 1974, the EEOC issued a determination of reasonable cause to believe that plaintiff's charges were true and invited conciliation by the parties, which continued from September 1974 to January 1975. Finally, plaintiff alleges that on January 28, 1975 she received a notice of failure of conciliation from the EEOC and on February 26, 1975 a notice of right to sue from the Department of Justice. This action was commenced on March 21, 1975.

I.

The Title VII Count (Count I)

In Count I of the complaint, plaintiff alleges that the actions taken by defendants constitute unlawful employment practices in violation of Title VII, 42 U.S.C. § 2000e-2.2 Defendants have raised by their motions several jurisdictional and procedural defenses to Count I premised upon the alleged failure of plaintiff to comply with the statutory requirements of Title VII. In addition, they challenge the constitutionality of the 1972 Amendments to Title VII insofar as they extend the coverage of that statute to State and local governments. Finally, defendants question the availability of compensatory and punitive damages under Title VII. Each of these defenses will be separately considered.3

A. Jurisdictional and Procedural Defenses

There are four basic jurisdictional and procedural defenses raised as to the Title VII count:

(1) plaintiff lacks standing under Title VII, as well as the other counts of the complaint, because she never applied for the position in question;
(2) defendants are neither an "employer" nor plaintiff's "employer" as that term is used in Title VII;
(3) the present civil complaint includes as defendants persons not named in the EEOC charges; and
(4) the claims of harassment, intimidation and retaliation in the present complaint were not the subject of a separate EEOC "right to sue" letter.
1. Standing

Defendants contend that plaintiff's failure to allege that she applied for the position of Coordinator of Project Interact is fatal to (1) her standing to bring any part of this action under the decision of the Court of Appeals for this Circuit in Jackson v. Dukakis, 526 F.2d 64 (1st Cir. 1975), and (2) a statement of a prima facie Title VII case as defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). These grounds for dismissal will be considered together as both concern the right to bring an employment discrimination action without in fact applying for a specific position. Two additional allegations of the complaint are relevant to this inquiry: (i) notice of the vacancy was not given to plaintiff or other qualified female employees within the Portland School System, and (ii) the failure to notify women and the private offering of the position to a male resulted from defendants' discriminatory actions.

To have standing to sue, plaintiff's allegations must indicate, first, "that the challenged action has caused her injury in fact, economic or otherwise" and, second, that "the interest sought to be protected . . . is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Plaintiff's claim of employment discrimination under all three counts of the complaint clearly meets the second requirement of Data Processing. See also Parts II and III, infra. Defendants contend, however, that, under Jackson v. Dukakis, supra, she has not sufficiently alleged injury in fact.

In Jackson, the Court of Appeals denied standing, in a case arising under 42 U.S.C. §§ 1981 and 1983, to a black person who sought to sue various Massachusetts state agencies for racially discriminatory hiring policies although he was not employed by any of the agencies and had not in fact applied for a job. The court concluded that plaintiff had not met the threshold requirement of injury in fact because he had never sought employment with defendants. The court distinguished, however, decisions permitting class actions on behalf of persons who had never applied...

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