Gresham v. Chambers

• Decision Date: 13 August 1974
• Docket Number: No. 985,D,985
• Citation: 501 F.2d 687
• Parties: 8 Fair Empl.Prac.Cas. 759, 8 Empl. Prac. Dec. P 9613 Jewelle GRESHAM, Individually and on behalf of all others similarly situated, Appellant, v. Dr. George CHAMBERS, Individually and in his capacity as President of Nassau Community College, and A. Holly Patterson, Individually and in his capacity as Chairman of the Board of Trustees of Nassau Community College, Appellees. ocket 73-2733.
• Court: U.S. Court of Appeals — Second Circuit

Page 687

501 F.2d 687

8 Fair Empl.Prac.Cas. 759, 8 Empl. Prac. Dec. P 9613

Jewelle GRESHAM, Individually and on behalf of all others similarly situated, Appellant, v. Dr. George CHAMBERS, Individually and in his capacity as President of Nassau Community College, and A. Holly Patterson, Individually and in his capacity as Chairman of the Board of Trustees of Nassau Community College, Appellees.

No. 985, Docket 73-2733.

United States Court of Appeals, Second Circuit.

Argued June 13, 1974.

Decided Aug. 13, 1974.

Judith T. Pierce, New York City (Charles T. McKinney, New York City, of counsel), for appellant.

William S. Norden, Mineola, N.Y. (Joseph Jaspan, County Atty. of Nassau County, Mineola, N.Y., of counsel), for appellees.

Before HAYS and MANSFIELD, Circuit Judges, and BAUMAN, District judge. ^*

MANSFIELD, Circuit Judge:

The principal issue raised by this appeal is whether the president of a community college, which admittedly is subject to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., must, in exercising the power to appoint members of his staff at the level of Associate Dean, use open recruiting as the method of selection. On August 31, 1973, appellant, a black member of the faculty of the Nassau Community College ('the College'), instituted this action under long-standing civil rights laws, 42 U.S.C. 1981 and 1983, in the Eastern District of New York against the President of the College, Dr. George Chambers, and the Chairman of its Board of Trustees, A. Holly Patterson, seeking an injunction restraining the appointment of Ms. Esther Kronovet, a white person, as Associate Dean, on the ground that the President, by selecting her through informal word-of-mouth methods rather than by open and formal recruiting, had precluded appellant from being considered, which allegedly violated her rights. Preliminary relief was denied by Judge John F. Dooling who, after a four-day hearing, at which testimony was taken, made extensive findings in a 65-page opinion. We affirm.

The essential facts are as follows. The College was established by the County of Nassau pursuant to the Education Law of the State of New York, 6301 et seq., McKinney's Consol.Laws, c. 16. Its President, Dr. Chambers, is admittedly vested with the power to select those persons to be employed as members of his presidential staff which has consisted of none persons. The College has approximately 450 members of the faculty and 18,000 day and evening students.

In the latter part of 1972 Dr. Chambers and various members of his staff and of the faculty concluded that the College was obligated to comply with Executive Order 11246, which had recently been amended. ¹ That Order provides that a 'contractor' (a term which covers all public educational institutions such as the College, 41 C.F.R. 69-1.5(a)(4)) ² must not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin and that affirmative action programs to implement this objective must be undertaken. Fed.Reg. 41 C.F.R. 60-2.22(a) provides for the appointment by the contractor of a director or manager of Equal Opportunity Programs, a position generally referred to as 'Affirmative Action Officer.' ³

Having concluded that the College was governed by these Federal Regulations, President Chambers took steps to comply. Pending selection and appointment of an affirmative Action Officer, he designated a member of his staff, Robert Lukitch, to perform the functions of that office on a temporary or transitional basis. Dr. Chambers had already planned to expand his staff to include a woman as Associate Dean because he believed that more female representation at the administrative level of the College was advisable. At some point he concluded that, by selecting a woman to serve as Associate Dean with the added duties of Affirmative Action Officer, he could achieve his objective and also satisfy the requirements of Executive Order 11246.

In the meantime Mr. Lukitch, through his assistant, asked campus and faculty organizations to assist in formulating an affirmative action plan for the College. In mid-January, 1973, an ad hoc Affirmative Action Committee was founded by the faculty, which advised Dr. Chambers that the permanent Affirmative Action Officer to be appointed by him should be a full-time official and that the appointment should be 'affirmed,' i.e., screened and approved, by it. With this Dr. Chambers disagreed, expressing the intention to appoint a qualified woman, chosen by him in the normal fashion employed by him, to serve as Associate Dean, with duties that would include those of an Affirmative Action Officer.

Dr. Chambers proceeded to consider seven women who might be eligible for the position as he conceived of it. Five were employees of the College. A sixth, Mrs. King, was the wife of a former administrative employee of Nassau, and a seventh, Dr. Esther Kronovet, was the wife of a member of Vice-President Lukitch's staff. In July, 1973, Dr. Chambers, without engaging in public recruiting or obtaining the faculty's approval, appointed Dr. Kronovet as Associate Dean and assigned to her the duty, among others, of formulating an affirmative action plan as required by Executive Order 11246. Dr. Kronovet is apparently well qualified to perform these duties and it is not suggested that if open recruiting had been used she could not properly have been selected by Dr. Chambers in the exercise of his appointing power as President. This lawsuit, however, attacks the method of selection followed by Dr. Chambers. Appellant contends that Dr. Chambers was required to undertake a formal search or open recruitment, which would have enabled her and others to apply and to be considered for the position.

DISCUSSION

At the outset we face the threshold question of whether the district court had jurisdiction over this action. Appellees argue that the suit, insofar as it is based on 42 U.S.C. 1983, should have been dismissed for lack of jurisdiction for the reason that it is in reality an action against the county, a municipal corporation, which is not a 'person' within the meaning of the Civil Rights Acts, see City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and that the appointment of members of the president's staff is a representative, not an individual, function of the Board of Trustees and of the President, its appointee. See N.Y. Education Law 6301, 6304(1)(b), and 6306. The College, they further point out, has been created by the county of Nassau pursuant to the Education Law, with a nine-member board, five appointed by the Nassau County Board of Supervisors and four by the Governor of New York. This contention must be rejected, however, since the complaint names Dr. Chambers and Mr. Patterson individually, which for jurisdictional purposes is sufficient to preclude the action from being classified solely as one against the county. Cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1943).

There remains a further jurisdictional issue, not raised by appellees, although appellant did anticipate it in her brief. That is whether appellant, before bringing this civil rights suit under 42 U.S.C. 1981, 1983, was required to exhaust her administrative remedies before the Equal Employment Opportunities Commission, 42 U.S.C. 2000e-5. Although the issue was not raised by the appellees, we are duty bound to consider it. John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rule 12(h)(3), F.R.Civ.P.

In support of the position that jurisdiction should have been refused for non-exhaustion of administrative remedies it may be argued that to permit Title VII to be bypassed through an independent lawsuit under 1981 would frustrate the purpose of Title VII, which was to establish an inexpensive conciliatory framework utilizing administrative expertise to resolve differences of the tupe before us. On the other hand, we must recognize that a private person had the right to sue under 1981 for racial discrimination in employment prior to the enactment of Title VII, see Jones v. Alfred H. Mayer Co., 392 U.S 409, 427, 442 n. 78, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971), and that nothing in the language of Title VII purports expressly to require recourse to the Commission before such a suit may be brought. Furthermore, starting with the premise that repeals by implication are not favored, United States v. Borden, 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181 (1949), Title VII does not meet the conditions precedent to such a repeal, see Posadas v. National City Bank, 296 U.S. 497, 56 S.Ct. 349, 80 L.Ed. 351 (1936). Title VII is not in irreconcilable conflict with 1981, and it does not cover the entire subject matter of that section. If anything, the legislative history of Title VII indicates that it was intended to buttress and supplement 1981 in a specific area rather than to serve as a substitute for 1981 itself. See 110 Cong.Rec. 13650-52 (1964); Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). For these reasons we are satisfied that Title VII has neither preempted 1981 nor precluded an independent lawsuit based on a violation of that statute. Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973); Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970); Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972); Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971).

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