Duke v. University of Texas at El Paso

• Decision Date: 09 December 1981
• Docket Number: No. 80-2094,80-2094
• Citation: 663 F.2d 522
• Parties: 27 Fair Empl.Prac.Cas. 1389, 27 Empl. Prac. Dec. P 32,290, 1 Ed. Law Rep. 512 Eleanor DUKE, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS AT EL PASO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 522

663 F.2d 522

27 Fair Empl.Prac.Cas. 1389,

27 Empl. Prac. Dec. P 32,290, 1 Ed. Law Rep. 512

Eleanor DUKE, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS AT EL PASO, Defendant-Appellee.

No. 80-2094.

United States Court of Appeals Fifth Circuit.

Dec. 9, 1981.

Hallmark, Villa & Keith, Antonio Cortez, El Paso, Tex., for plaintiff-appellant.

Sandra G. Bryan, Washington, D. C., amicus curiae for E.E.O.C.

Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before AINSWORTH, INGRAHAM and TATE, Circuit Judges.

AINSWORTH, Circuit Judge:

Dr. Eleanor Duke instituted this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that her employer, the University of Texas at El Paso (UTEP), discriminated against her in promotion, compensation and assignment because of her sex. Her appeal from an adverse summary judgment concerns her compliance with Title VII's requirement that employment discrimination charges be referred to qualifying state fair employment practice agencies before federal Equal Employment Opportunity Commission (EEOC) proceedings commence.

Section 706(b) of Title VII ¹ "is intended to give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary resort to federal relief by victims of the discrimination." Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). Three circumstances must exist before the referral requirement is triggered: (1) The acts alleged must constitute an unlawful employment practice under section 703 of Title VII; (2) they must violate a state or local law; and (3) the state or locality must have established or authorized some agency to remedy the violation or to seek criminal penalties. White v. Dallas Independent School District, 581 F.2d 556, 558-59 (5th Cir. 1978) (en banc); 42 U.S.C. § 2000e-5(c). Complainants themselves need not determine when these requirements are satisfied and file with state authorities. In Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), the Supreme Court approved a "referral and deferral system" by which the EEOC refers complaints to the appropriate state agency when required. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 64, 100 S.Ct. 2024, 2031, 64 L.Ed.2d 723 (1980).

The unlawful employment practices alleged by Dr. Duke in this case occurred in Texas. Because the EEOC was contesting whether a Texas law, Vernon's Ann.Civ.St. Art. 6252-16, ² triggered the deferral requirement when Dr. Duke lodged her charge in 1973, the matter was not first referred to state authorities. This court has since ruled that where Article 6252-16 prohibits the discriminatory act alleged, deferral is necessary, even though the state authorities that the Texas law empowers to act are district and county attorneys. White v. Dallas Independent School District, supra, 581 F.2d at 560-61; see Nueces County Hospital District v. EEOC, 518 F.2d 895 (5th Cir. 1975). After Dr. Duke received her right to sue letter and initiated this suit, 42 U.S.C. § 2000e-5(f)(1), UTEP moved to dismiss, asserting that her failure to refer to state authorities rendered her charge with the EEOC premature. Without the filing of a timely charge with the EEOC, UTEP argued, a subsequent action in district court was barred. After an evidentiary hearing, the court agreed and entered summary judgment against Dr. Duke.

White dictates the course of our review of the district court's decision, requiring that we construe the Texas statute to determine whether it forbids the discriminatory acts alleged. ³ If the unlawful employment practices charged by Dr. Duke are not within the ambit of the statute, then the failure to refer to state authorities is immaterial to her present action.

The Texas Anti-Discrimination Statute

Familiar principles of statutory construction guide our examination of Article 6252-16. A statute must be viewed in its entirety, to afford each part an effect harmonious with the whole and consistent with legislative objectives. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975); Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir. 1979); United States v. Alexander, 602 F.2d 1228, 1231 (5th Cir. 1979); State v. Terrell, 588 S.W.2d 784, 786 (Tex.1979); Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex.1978); Black v. American Bankers Insurance Co., 478 S.W.2d 434, 437 (Tex.1972). Section 1(a) of Article 6252-16 consists of eight subsections. Each subsection prohibits discriminatory acts in a specific realm of state function, such as hiring and firing employees, managing public facilities, letting bids and issuing licenses. The design and precise language of the section suggest that each subsection was intended by the legislature to be equal in scope. No terminal "catchall" provision was appended to extend the statute's reach to acts other than those enumerated. Significantly, Article 6252-16 falls far short of a general interdiction of discrimination by the state. The Texas legislature could have readily adopted a broader mandate of nondiscrimination in much briefer terms had that been its intention. Instead, it elected to pursue a more narrowly gauged aim of outlawing particular discriminatory practices in discrete areas of state operation. The statute must be construed in accord with this evident legislative objective.

The parties acknowledge that only three subsections of Article 6252-16 are relevant to this case. Subsections (a)(1) and (2) forbid state officials from discharging or refusing to hire a person because of his race, religion, color, sex or national origin. Conceding that these provisions are inapplicable to Dr. Duke's charges, UTEP urges that subsection (a)(7)'s ban on discriminatory refusals "to grant a benefit" be interpreted to encompass the unlawful employment practices alleged by Dr. Duke. Even if "benefit" were susceptible of such an interpretation standing alone, we cannot construe one subsection in isolation from the remainder of the statute. Philbrook v. Glodgett, supra, 421 U.S. at 713, 95 S.Ct. at 1898; United States v. Alexander, supra, 602 F.2d at 1231; Barr v. Bernhard, supra, 562 S.W.2d at 849; Black v. American Bankers Insurance Co., supra, 478 S.W.2d at 437. If the term "benefit" were construed to include public employment, then subsection (a)(1)'s prohibition of discriminatory refusals to hire would be rendered superfluous by subsection (a) (7)'s ban on discriminatory refusals to grant a benefit. It is well established that a statute should be construed so that each of its provisions is given its full effect; interpretations which render parts of a statute inoperative or superfluous are to be avoided. Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973); In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C.Cir.1980); Motor and Equipment Manufacturers Association, Inc. v. EPA, 627 F.2d 1095, 1106 (D.C.Cir.1979). Under UTEP's expansive reading of "benefit," subsection (a) (7) would assume a dominance in relation to the remaining seven subsections inconsistent with the statute's apparent purpose of banning discrimination in eight independent areas of state activity.

Furthermore, subsections (a)(1) and (2) indicate that the Texas legislature was mindful of the ills of discrimination in public employment when it enacted Article 6252-16, but chose only to ban discriminatory discharge and refusal to hire, perhaps based on the belief that these discriminatory acts were of a more egregious nature than discrimination in pay, promotions and assignment, thereby warranting criminal penalties. Whatever the reasons for the legislative decision, the absence of a specific prohibition of the discriminatory acts alleged by Dr. Duke in the two subsections expressly devoted to employment discrimination supports an inference that the legislature did not intend to outlaw other acts of employment discrimination by submerging an implied ban elsewhere in the statute. Drawing an inference of an intent to exclude a particular result from the failure to expressly proscribe that result is the essence of the common law maxim "expressio unius est exclusio alterius," often applied as an aid in statutory construction. The maxim embodies a sensible insight into the customary manner in which language is used to communicate ideas. Simply stated, "(i)t expresses the learning of common experience that generally when people say one thing they do not mean something else." 2A C. Sands, Statutes and Statutory Construction § 47.24 (4th ed. 1973); see Andrus v. Glover Construction Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910, 64 L.Ed.2d 548 (1980); Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1085 (5th Cir. 1980); Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668, 675 (5th Cir. 1978); Bott v. American Hydrocarbon Corp., 458 F.2d 229, 233 (5th Cir. 1972); Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex.1980). No indication is apparent here of a legislative intent that we should construe the statute otherwise.

Reinforcing the view that Dr. Duke's allegations fall outside Article 6252-16 is the statute's penal character. Section 3 of the act establishes a criminal penalty for violations. By a long standing rule of statutory construction, buttressed by constitutional underpinnings, ⁴ penal statutes are to be strictly construed. Ambiguities concerning the ambit of criminal statutes should be resolved in favor of lenity. Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 1753, 64 L.Ed.2d 381 (1980); Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 375, 93 S.Ct. 1652, 1663, 36 L.Ed.2d 318 (1973); United States v. Campos-Serrano, ...