Huebschen v. Department of Health & Social Services

• Decision Date: 21 September 1982
• Docket Number: No. 81-C-1004.,81-C-1004.
• Citation: 547 F. Supp. 1168
• Parties: David HUEBSCHEN, Plaintiff, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Secretary Donald Percy, Robert Cohen, Bernard Stumbras, Jane Roe, and the United States Government, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

547 F. Supp. 1168

David HUEBSCHEN, Plaintiff, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Secretary Donald Percy, Robert Cohen, Bernard Stumbras, Jane Roe, and the United States Government, Defendants.

No. 81-C-1004.

United States District Court, W. D. Wisconsin.

September 7, 1982.

As Amended September 21, 1982.

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Michael R. Fox, Madison, Wis., for plaintiff.

Robert D. Repasky, Asst. Atty. Gen., Madison, Wis., for defendants.

DECISION AND ORDER

SHABAZ, District Judge.

Plaintiff David Huebschen has brought this action under Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and under 42 U.S.C. § 1983, requesting damages and equitable relief for alleged sexual harassment. Jurisdiction is based on 42 U.S.C. § 2000e-5 and 28 U.S.C. § 1343.

In his complaint, plaintiff alleged that he was an employee of the State of Wisconsin; that while serving as a probationary supervisor in the Bureau of Social Security and Disability Insurance (BSSDI), his immediate supervisor was defendant Jacquelyn Rader (denominated in the caption as Jane Roe); that Ms. Rader terminated his probation, causing his demotion to a non-supervisory position, because he refused to continue a sexual relationship with her.

Plaintiff further alleged that defendant Bernard Stumbras, Ms. Rader's supervisor, knew about the harassment, but upheld the termination.¹ Plaintiff claimed that these acts denied his right under Title VII to be free from discrimination and denied him due process of the law. The due process claim was dismissed prior to trial.

After a four-day trial on liability, the jury² returned a verdict in favor of plaintiff and against defendants Rader and Stumbras³ by its answers to the following special verdict questions:

In the event you determine that defendant Rader made demands of a sexual nature on plaintiff, was plaintiff's refusal to submit to these demands a motivating factor in the decision to terminate plaintiff's probation?

Answer: Yes.

Would plaintiff's probation have been terminated in the absence of the sexual harassment?

Answer: No.

In addition, the jury found both Ms. Rader and Mr. Stumbras personally and directly responsible for the impermissible termination, and that these defendants were not acting in good faith performance of their duties.

After two more days of testimony in the damage phase of the trial, the jury returned a verdict assessing the following punitive and compensatory damages:

                  Bernard Stumbras:    $45,000 compensatory
                                         damages
                                        36,900 punitive damages
                  Jacquelyn Rader:     $90,000 compensatory
                                         damages
                                        24,600 punitive damages
                

The Court approved the form of the judgment on July 27, 1982.⁴ See Rule 58(2), Federal Rules of Civil Procedure. Defendants accepted the jury verdict as to the Title VII claim as well, stipulating that plaintiff be reinstated at an equivalent position and be awarded back pay of $7,913.64. The Court also awarded plaintiff $21,726 in attorney's fees.

Defendants have now filed a number of post-verdict motions and plaintiff seeks increased attorney's fees and costs.

I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Defendants have filed a motion for judgment notwithstanding the verdict, alleging that: 1) compensatory and punitive damages are not available in this case; 2) the verdict against defendant Rader is not supported by the evidence; and 3) the verdict against defendant Stumbras is not supported by the evidence. For the reasons that follow, the motion is granted as to defendant Stumbras and, in all other respects, denied.

A. Availability of compensatory and punitive damages

Defendants first argue that compensatory and punitive damages may not be recovered where plaintiff bases his claim under 42 U.S.C. § 1983 on a violation of Title VII.

The Court notes, as a preliminary matter, that 42 U.S.C. § 1983 is not a source of substantive rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-618, 99 S.Ct. 1905, 1915-1916, 60 L.Ed.2d 508 (1979) ("§ 1983 by itself does not protect anyone against anything"). Instead, plaintiff needed to show that he was deprived of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. In other words, no remedy is available under § 1983 unless plaintiff also shows a violation of a constitutional provision or federal law.

Title VII was the only substantive basis of the § 1983 claim.⁵ Under Title VII, a complainant may recover only back pay and equitable relief, 42 U.S.C. § 2000e-5(g), and has no right to a trial by jury. Equal Employment Opportunity Comm'n v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975), vacated and remanded on other grounds, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed.2d 267 (1977). However, under § 1983, compensatory and punitive damages may be awarded. See Carey v. Piphus, 435 U.S. 247, 256-257 n. 11, 98 S.Ct. 1042, 1048-1049 n. 11, 55 L.Ed.2d 252 (1978).

To support their contention that plaintiff may not recover compensatory and punitive damages under § 1983 where the sole basis for the § 1983 claim is a violation of Title VII,⁶ defendants rely on Great American Federal Savings & Loan v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) and Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). According to defendants, these cases imply that the comprehensive remedial framework of Title VII precludes a § 1983 claim based solely on Title VII.

This contention is not without some merit. The plaintiff in Novotny based a claim under 42 U.S.C. § 1985(3) exclusively on a violation of Title VII. Like § 1983, § 1985(3), the statute outlawing private conspiracies to violate constitutional rights, creates no substantive rights. 442 U.S. at 372, 99 S.Ct. at 2349 ("it merely provides a remedy for violation of the rights it designates"). The Supreme Court reasoned that such a § 1985(3) action would avoid the comprehensive procedural and remedial purposes of Title VII. The following language from Novotny is illustrative:

If a violation of Title VII could be asserted through § 1985(3), a complainant could avoid most if not all of these detailed and specific provisions of the law. Section 1985(3) expressly authorizes compensatory damages; punitive damages might well follow. The plaintiff or defendant might demand a jury trial. The short and precise time limitations of Title VII would be grossly altered. Perhaps most importantly, the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII.

442 U.S. at 375-376, 99 S.Ct. at 2350-2351 (footnote omitted). In Sea Clammers, the Supreme Court suggested in dicta that the same analysis was proper in a suit brought under § 1983.

When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.

453 U.S. at 20, 101 S.Ct. at 2626.

Absent other precedent, it would appear that the Novotny rationale should apply with equal force to plaintiff's claim under § 1983. The remedial framework of Title VII is equally circumvented whether the action is brought under § 1985(3) or under § 1983. The Court indeed finds it anomalous that plaintiff may recover punitive and compensatory damages, as well as receive a trial by jury simply because he works for the state. Employees in the private sector cannot do so because their rights are not violated under color of state law, nor do federal employees have these additional rights. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).

After examining the various opinions in these cases and considering other precedent, the Court concludes that defendants' argument must fail. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 encompasses virtually all congressional enactments by virtue of the phrase "and laws" in the statute. See also Newport v. Facts Concerts, 453 U.S. 247, 270, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981). Even the dissenters in Maine believed that § 1983, by the term "and laws," included violations of equal rights legislation:

The only firm basis for decision is the historical evidence, which convincingly shows that the phrase the Court now finds so clear was — and remains — nothing more than a shorthand reference to equal rights legislation enacted by Congress. To read "and laws" more broadly is to ignore the lessons of history, logic, and policy.

Maine, 448 U.S. at 12, 100 S.Ct. at 2508 (Powell, J., dissenting).⁷ Obviously, Title VII is equal rights legislation.

In Johnson v. Railway Express, 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975), the Supreme Court unequivocally held that Title VII is not an exclusive remedy, but is co-extensive with other statutes. In Johnson, plaintiff sued under 42 U.S.C. § 1981 and Title VII after the applicable statute of limitations on the § 1981 claim had expired. Justice Blackmun, writing for the Court, rejected plaintiff's argument that the § 1981 statute of limitations should be tolled during the pendency of his Title VII claim. Instead, the Supreme Court concluded that the two claims were totally independent, and therefore plaintiff had slept on his rights under § 1981. The Court was aware that such a holding, in the ordinary course of events, would benefit the civil rights claimant. Id. at 465-466, 95 S.Ct. at 1722-1723. Defendants' argument, in stressing the comprehensiveness of Title VII, is merely a shorthand way of asserting the exclusiveness of the Title VII remedy. This directly contradicts the holding of Johnson.

Citing Johnson, the Court of Appeals for the Ninth Circuit...