Hanshaw v. Delaware Technical & Community College

• Decision Date: 07 November 1975
• Docket Number: Civ. A. No. 74-196.
• Citation: 405 F. Supp. 292
• Parties: Shirley A. HANSHAW, and Judith Bisno, Individually and on behalf of all others similarly situated, Plaintiffs, v. DELAWARE TECHNICAL & COMMUNITY COLLEGE et al., Defendants.
• Court: U.S. District Court — District of Delaware

405 F. Supp. 292

Shirley A. HANSHAW, and Judith Bisno, Individually and on behalf of all others similarly situated, Plaintiffs, v. DELAWARE TECHNICAL & COMMUNITY COLLEGE et al., Defendants.

Civ. A. No. 74-196.

United States District Court, D. Delaware.

November 7, 1975.

Sheldon N. Sandler and Thomas Stephen Neuberger of Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiffs.

Barry W. Meekins, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendant Del. Technical & Community College and individual defendants in their official capacities.

Steven J. Rothschild of Prickett, Ward, Burt & Sanders, Wilmington, Del., for the individual defendants in their individual capacities.

OPINION

SCHWARTZ, District Judge.

This civil rights action¹ was brought pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended all hereinafter by section number only. The plaintiffs seek both damages (including back pay) and injunctive relief. Certain of the defendants have moved to dismiss the action as to themselves for failure by the plaintiffs to comply with certain requirements of Title VII; failure to state claims against the defendants as individuals; and on grounds of various types of immunity allegedly enjoyed by the defendants, including the Eleventh Amendment and official immunity. For reasons stated hereinafter, the Court denies all motions, except as to the Title VII claim against defendant Benjamin Whaley.

An understanding of the array of motions brought before the Court requires that the facts of this case be described in detail. The individual plaintiffs are academic employees² at certain of the campuses of the institutional defendant. The defendants include the Delaware Technical and Community College ("Del Tech"); its Board of Trustees; the membership of the Board of Trustees in their individual and official capacities; the President of Del Tech and two "campus directors"³ in their respective individual and official capacities.

Plaintiff Hanshaw, a black female, who was a signator to a previous charge of discrimination against Del Tech by a different employee,⁴ makes allegations that she was paid a lower salary than that paid to those not members of the purported class; that she was refused a promotion to chair a department; that these actions were based on her race, sex, and her signing of the prior charge; and that such treatment is typical of the treatment of blacks, women and those who signed the previous charge.

Plaintiff Bisno, a white female, alleges she was paid a lower salary than those similarly qualified. Further, she urges she was hired in a capacity created to allow a lower salary to be paid her than paid to non-members of the purported class, who did the same or similar work. She alleges that the discrimination was because of her sex, and because of her signing the previous charge against Del Tech; and that such treatment was typical of the defendants' treatment of women and signers of the charge.⁵

The defendants have brought various motions to dismiss. The individual defendants, in their non-official capacities, brought a motion to dismiss the counts under Title VII on the grounds that they are not proper parties; that they were not named in the charge filed before the EEOC; that there has been a failure by the plaintiffs to allege compliance with the provisions of section 2000e-5(c); and that punitive and compensatory damages are not allowed under Title VII. The same defendants have moved to dismiss the counts brought under sections 1981, 1983 and 1985 on the grounds that an adequate remedy exists under Title VII; that plaintiffs allege no acts by these defendants as individuals; and that they have immunity as government officials. All of the defendants, including the individual defendants in their official capacities, moved to dismiss the counts on certain other grounds: As to the entire complaint, the defendants claim the suit is barred by the Eleventh Amendment. As to the claims brought pursuant to sections 1983 and 1985, the defendants claimed that the State, as the purported real party defendant, is not a "person" within those statutes. And, as to the claimed jurisdiction under 28 U.S.C. § 1343(3), the defendants contend such jurisdiction does not extend to money damages. The same defendants claim, as to the actions brought pursuant to Title VII, that as officials they are not proper parties under section 2000e-5 and that there has been no allegation of compliance with the requirements of section 2000e-5(c). As to the action under sections 1981-85, they contend that the remedy under Title VII is adequate. Finally, the official defendants argue that the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., does not confer jurisdiction.

The issues were extensively briefed by the parties and oral argument on the matter was heard following consolidation of the motions. Since the motions and other papers filed herein were accompanied by affidavits, the motions have been treated as motions for summary judgments. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Scott v. University of Delaware, 385 F.Supp. 937, 940 (D.Del.1974). For convenience, the motions are treated in the order in which they were submitted to the Court.

I. MOTIONS OF THE INDIVIDUAL DEFENDANTS IN THEIR NON-OFFICIAL CAPACITIES

A. Title VII

1. That Defendants Are Not Proper Parties

The individual defendants contend they are not within the definition of "employer" as stated in 42 U.S.C. § 2000e (b),⁶ and therefore are not proper parties under section 2000e-5. This contention, if true, would result in a lack of jurisdiction over the defendants under Title VII. Defendants base their contention on the determination in Gordenstein v. University of Delaware, 381 F.Supp. 718 (D.Del.1974), that the University was the "master" in the employment situation, not the members of the Board of Trustees, and that, therefore, members of the Board were not liable under respondeat superior in an action brought pursuant to 42 U.S.C. § 1983.

The defendants' contention, however, fails to take into account the definition provided for employer under section 2000e(b). Since subsection (a) of section 2000e specifically includes descriptions of several types of entities as "persons",⁷ it is not necessary for the members of the Board to be a "person having fifteen or more employees," if the Board members can be considered agents of an institution which is such a person.

It is clear under the definition provided in subsection (a) of section 2000e that Del Tech is a "person" and is, therefore, an employer under subsection (b).⁸ The Court need not conclude here that Del Tech is a State agency, but cf., 14 Del.Code § 9102, since if it is not, it is an "unincorporated association" or a "trust" also specifically within the definition.⁹

The Court does not here decide that the individual defendants are agents of the institution. The burden of proving facts to support grant of a summary judgment motion is on the movant. At this juncture the defendants have failed to establish they are not agents. See 6 Moore's Federal Practice ¶ 56.133. As a matter of law, the Board members may be inferred to be agents. By Delaware law, they are given specific powers and duties, to be carried out in the name of and on behalf of Del Tech. See 14 Del.Code § 9105. Since the Board may act only through its members, there is a substantial possibility not negated by the present record, that Board actions accorded with the wishes of the individuals. Indeed, the members' affidavits show that each member of the Board acted as an individual in considering issues before it.¹⁰ Without a stronger showing, the officers cannot divorce themselves from this implied agency. The decisions in Gordenstein, supra, and Carey v. White, 375 F.Supp. 1327, 1329 (D.Del.1974), aside from not being Title VII claims, do not bar this result, since they left open the question of whether persons in the position of superiors of the plaintiff, such as members of a board, might be agents of the organization, deciding only that the organization was itself the employer. This conclusion is especially strong as it applies to the defendants Weatherly, Whaley and Faucett, who are officers of the institution.

2. The Defendants Were Not Named In The Complaint Filed Before the EEOC

The defendants contend plaintiffs have failed to comply with the requirements of section 2000e-5(f)(1), which allows for the filing of a civil complaint only against those who are "respondents" to the charge filed before the EEOC. Scott v. University of Delaware, supra at 940-43, has made clear that the function of the section 2000e-5(f)(1) notice requirement is to allow for voluntary compliance wherever possible. Id. at 941. Further, it is now settled that the Title VII notice requirement will be interpreted in such a way that it is satisfied if the person sought to be included as a defendant knew or should have known that his conduct might be the subject of the inquiry at issue. Scott v. University of Delaware, supra; Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973).

In the instant case, the documents filed before the EEOC and the Delaware Department of Labor (Exhibits A, B and C), while naming Del Tech as the "employer," list as "others who have discriminated against you," the "Board of Trustees"; "Paul Weatherly, President"; and "William Faucett, Executive Director" (Exhibit B only). The plaintiffs urge on that basis that all the defendants except defendant Whaley should have known that they were the subject of a charge of discrimination. Each defendant has by affidavit stated that he or she was not notified by the EEOC; defendants also urge that from a mere reading of the documents they should not have known that they were being charged as individuals, i. e., non-officials. As to defendants Weatherly and...