Dyson v. Lavery

• Decision Date: 11 June 1976
• Docket Number: Civ. A. No. 73-584-R.
• Parties: B. Patricia DYSON et al., Plaintiffs, v. William E. LAVERY et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

417 F. Supp. 103

B. Patricia DYSON et al., Plaintiffs, v. William E. LAVERY et al., Defendants.

Civ. A. No. 73-584-R.

United States District Court, E. D. Virginia, Richmond Division.

June 11, 1976.

Philip J. Hirschkop, John D. Grad, Alexandria, Va., for plaintiffs.

Walter H. Ryland, Asst. Atty. Gen., D. Patrick Lacy, Jr., William H. Hefty, Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, B. Patricia Dyson, brings this action on her behalf and on behalf of those similarly situated for declaratory, injunctive and monetary relief to redress alleged discriminatory employment practices on the basis of sex in violation of §§ 1983 and 1985, Title 42 of the United States Code and the First and Fourteenth Amendments of the United States Constitution.¹ Defendant T. Marshall Hahn, Jr. was a former President of Virginia Polytechnic Institute and State University (hereinafter "VPI") in Blacksburg, Virginia, and is sued in his individual capacity.² Defendant William E. Lavery, President of VPI, is sued in his official capacity, and defendant Eugene Row, a member of the VPI Board of Visitors, is sued in his official and individual capacities.³ B. Patricia Dyson, is a citizen of the United States and a resident of the Commonwealth of Virginia. She was an instructor of Business Education at VPI from September 1971 to September 1973. Jurisdiction is attained pursuant to 28 U.S.C. §§ 1331 and 1343.⁴

In February 1970, plaintiff Dyson applied for a position on the Business Law faculty in the Department of Business Administration at VPI. At the time of her application, she possessed a Juris Doctor degree and was a member of the Maryland State Bar Association. She was initially rejected. In May 1971, Ms. Dyson again applied, and was offered a position as an instructor on the Business Law faculty at a salary of $8,400 per year. A letter of her appointment noted that "while this offer is made for the 1971-72 academic year only, I will be pleased to discuss with you the possibility of renewal later next year when we can review your teaching progress and the Department's future staffing needs." Observations on her work situation led her to file a complaint of sex discrimination with the Department of Health, Education and Welfare (hereinafter "HEW"); VPI was notified of the claim in early December 1971. A letter dated April 14, 1972 was subsequently delivered to the plaintiff from Dr. King, the head of the Business Department, indicating that she would not be rehired for the succeeding academic year. Ms. Dyson successfully argued that the notice was untimely under the appropriate regulations promulgated by the American Association of University Professors (AAUP). She was reinstated for one academic year, on May 1, 1972, and was served with a notice of renewal for the succeeding year in November of 1972. She contends that she was hired in a position below her capabilities and qualifications, and that she was arbitrarily discharged because of her sex. Accordingly, it is alleged that the defendants' conduct has deprived the plaintiff of the equal protection of the laws as well as the due process of law in contravention of the Fourteenth Amendment of the United States Constitution.

By order of May 6, 1974, the Court declared a tentative class action pursuant to Fed.R.Civ.P., Rule 23(b)(2) and (b)(3) for appropriate discovery. At that time several universities were involved in the suit, and the Court concluded that several members of the defendant class, without evidence of a central policy of discrimination that would link them together, would be submitted to both expensive and extensive discovery even though they had no contact with the named plaintiffs. Accordingly, the class was only tentatively defined and discovery limitations were imposed on the plaintiffs. However, by virtue of appropriate orders heretofore entered in the case the instant matter involves only the allegations against VPI. The proposed class of the controversy presently before the Court involves only those females subject to the control of the University administration at VPI. Proof of unequal treatment by that institution of representative members of the class, i. e., the named plaintiffs, based on sexual discrimination would raise an inference that similar objective or statistical inequality between males and females on a university-wide scale is motivated by similar discrimination. The proposed class no longer appears to be overbroad. As was noted in the March 6, 1974 order, all other Rule 23, Federal Rules of Civil Procedure, requirements for a class action are met; the Court therefore, concludes that the suit is appropriate for a class action certification and so certifies it.

The law is clear that classification and diverse treatment based on sex are subject to scrutiny under the principles of the Equal Protection Clause.⁵ E. g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The appropriate test to be utilized in this Circuit was defined in Eslinger v. Thomas, 476 F.2d 225, 230-31 (4th Cir. 1973):

"Thus, Reed, in a case of invidious sex discrimination, prescribed as a test of validity the presence of a `fair and substantial' relation between the basis of the classification and the object of the classification. A classification based on sex is less than suspect; a validating relationship must be more than minimal. What emerges is an `intermediate approach' between rational basis and compelling interest as a test of validity under the Equal Protection Clause." (footnotes omitted)

Defendants do not seek to offer a justification for any sexual discrimination that may exist at VPI among the faculty positions, but rather they contend sexual discrimination, in fact, is nonexistent. Moreover, the Court notes that the record adduced in the instant case reveals no characteristics of VPI or of the jobs in issue at VPI that would support a contention that sex discrimination is necessary to further the purposes, goals, and aims of that institution. Accordingly, if the alleged acts of sex discrimination were found to exist at that institution, the Court would have to conclude that VPI had acted to violate the principles of the Equal Protection Clause, and appropriate relief would be warranted. Before enunciating the Court's finding on the substantive issue, it is both necessary and appropriate that several peripheral issues be resolved.

Defendant Lavery, who has been sued in his official capacity only, contends that any recovery sought against him is barred by the Eleventh Amendment to the United States Constitution. The history of the amendment is a familiar and well-recited one. It was adopted in 1798 in order to overrule the decision of the United States Supreme Court in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793). The Court there held that Article III of the Constitution, investing the federal courts with jurisdiction over suits between a state and citizens of another state, permits a federal court to hear a contract case brought by a citizen of North Carolina against the State of Georgia. The decision, not unlike many of more recent vintage, was immensely unpopular in that it caused an apprehension that federal courts would be used to compel the payment of debts and other claims against the states that would interfere with their fiscal autonomy, perhaps even to the point of undermining their financial stability, and sovereignty. See C. Haines, The Role of Supreme Court in American Government and Politics 1789-1835, at 441 (1944); C. Jacobs, Eleventh Amendment and Sovereign Immunity at 69-74 (1972); C. Warren, Supreme Court of United States History at 99 (rev. ed. 1937). Unchanged since its passage, the amendment provides:

"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The amendment does not expressly bar suits against the state by its own citizens, but the Supreme Court has consistently, and without ambiguity, held that an unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of a foreign state. E. g., Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

The Court, sensitive to the demands of establishing and maintaining the supremacy of federal law, subsequently fashioned an exception to the amendment based on a theory originating in ancient English practice, see Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 9-16 (1963), that government officials might be sued as individuals. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) the Court held that state officials might be enjoined as individuals from enforcing an unconstitutional state law. In a recent Eleventh Amendment case, however, the Supreme Court explicitly limited the types of relief that might be granted under the Ex parte Young rationale. In Edelman v. Jordan, supra, a majority of the Court held that the Eleventh Amendment prohibits federal courts from ordering state officials to release welfare benefits withheld contrary to a federal regulation. The Court there refused to extend the principles of Ex parte Young to cases in which the requested relief, although styled as "equitable" by the plaintiff, in fact involves a judgment payable out of the state treasury. Although acknowledging that orders entered in Ex parte Young and its progeny also have had a substantial impact on state budgets, the Court found the retroactivity of the district court's award in Edelman decisive...