Huebschen v. Department of Health and Social Services, s. 82-3113

• Citation: 716 F.2d 1167
• Decision Date: 13 September 1983
• Docket Number: 82-3114,Nos. 82-3113,s. 82-3113
• Parties: 32 Fair Empl.Prac.Cas. 1582, 32 Empl. Prac. Dec. P 33,812 David HUEBSCHEN, Plaintiff-Appellee, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES and Jacquelyn Rader, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1167

716 F.2d 1167

32 Fair Empl.Prac.Cas. 1582,

32 Empl. Prac. Dec. P 33,812

David HUEBSCHEN, Plaintiff-Appellee, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES and Jacquelyn Rader, Defendants-Appellants.

Nos. 82-3113, 82-3114.

United States Court of Appeals Seventh Circuit.

Argued June 8, 1983.

Decided Sept. 13, 1983.

Robert D. Repasky, Wis. Dept. of Justice, Madison, Wis., for defendants-appellants.

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

Before PELL and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

PELL, Circuit Judge.

This is an appeal from a judgment of the district court, after a jury trial, awarding the appellee David Huebschen compensatory and punitive damages under 42 U.S.C. Sec. 1983 for alleged sexual harassment perpetrated by his supervisor in the course of his employment. The court also ordered that Huebschen be reinstated at an equivalent position.

The appellants put forth three arguments in urging us to reverse the district court. First, they assert that a claim under section 1983 based upon Title VII, 42 U.S.C. Sec. 2000e et seq., may not be maintained because Congress intended Title VII to be the exclusive remedy in this area of employment discrimination. Second, they contend that an individual who could not be the subject of the Title VII action directly may not be the subject of an action under section 1983 based upon Title VII. Third, they contend that there is insufficient evidence of sexual harassment to support the judgment.

I. FACTS

At the time of the relevant events, David Huebschen was an employee of the Wisconsin Department of Health and Social Services (DHSS). On December 17, 1978, he received a one-year probationary promotion to a supervisory position under the supervision of appellant Jacquelyn Rader in the The jury could have found the facts as follows: By the spring of 1979, Huebschen and Rader had developed a close friendship that included exchanges of friendly notes and invitations for drinks after work. By September, Rader had encouraged Huebschen to turn the friendship into a romance. Late in that month, she suggested that he reserve a motel room for the two of them, which he did. Apparently, this was the only such liaison the two had.

Bureau of Social Security Division Insurance, a subdivision of DHSS.

Huebschen testified that the relationship between the two became "up and down" after that because, beginning in October, Rader was sometimes unfriendly to him and even attempted to avoid him on occasion. Finally, on November 12, after Rader had made a sexually insulting remark to him, Huebschen told her that "this sexual stuff just ha[s] to stop" and that he just wanted to be a friend. On November 19, Rader called Huebschen into her office and told him that there were problems with his job.

Rader made a written request that DHSS extend Huebschen's probationary period until March 1980, but the agency told her that she must either recommend that he be terminated from the program or hired permanently. On November 26, she recommended that the probationary period be terminated. The bureau director accepted the termination recommendation on December 6 and the termination became effective on December 15, 1979. Huebschen returned to his former position of Disability Determination Specialist.

There was no testimony that Rader ever told Huebschen that if he did not comply with her sexual requests or have an affair with her he would receive an unfavorable recommendation. Huebschen did testify, however, that soon after December 6, Rader called to warn him that if he ever discussed the true circumstances of his demotion she would make sure that he lost all of his friends and that everyone knew that he was a chronic liar.

On December 24, 1981, Huebschen brought this action against DHSS, Rader, Bernard Stumbras and Robert Cohen (Rader's supervisors), and the United States. He brought claims under Title VII against DHSS, section 1983 claims against the individual defendants, and also made additional claims under state law and the Due Process Clause. The United States was dismissed as a party prior to trial and the due process and state law claims were dismissed by stipulation. The equal protection claim at issue on this appeal, see Part IIB, infra, was raised and denied at trial.

Trial began on July 13, 1982. The section 1983 claims were tried before a jury and the Title VII claim against DHSS was tried before the court, with the jury's verdict advisory as to that claim. On July 17, the jury found, in a special verdict, that Huebschen's refusal to submit to Rader's sexual demands was a motivating factor in the decision to terminate plaintiff's probation, and that his probation would not have been terminated in the absence of the sexual harassment. The jury found both Rader and Stumbras liable. On July 20, in a trial on damages, the jury awarded Huebschen compensatory and punitive damages against Rader of $90,000 and $24,600 respectively.

The court entered its judgment on July 27. The parties agreed on the amount of back pay and the position to be tendered to Huebschen. The appellants then filed motions for a new trial, motions to alter or amend the judgment, and motions for judgment notwithstanding the verdict. On August 27, the court granted judgment n.o.v. with respect to Stumbras, and granted a new trial as to damages with respect to Rader if the appellee did not accept a reduced award of $10,000 compensatory and $15,000 punitive damages. The court further held that DHSS had stipulated to liability on July 27 and accordingly did not further discuss the Title VII claim against it. The district court issued a written opinion setting out its holding on September 7. Huebschen v. Department of Health & Social Services, 547 F.Supp. 1168 (W.D.Wis.1982).

The court entered its final judgment on November 16, 1982. This appeal followed.

II. DISCUSSION

A. Section 1983 and Title VII

Section 703(a)(1) of Title VII, 42 U.S.C. Sec. 2000e-2(a)(1), provides that "[i]t shall be an unlawful practice for an employer ... to discharge any individual ... because of such individual's ... sex." EEOC guidelines provide that sexual harassment is a violation of section 703 of Title VII:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual ....

29 C.F.R. Sec. 1604.11(a) (1982).

The appellants contend that the appellee's action under 42 U.S.C. Sec. 1983 is barred because Congress intended that Title VII be the exclusive remedy for employment discrimination of this kind. We need not reach this question, however, because even if Title VII does not preempt section 1983 in this area, a plaintiff cannot bring an action under section 1983 based upon Title VII against a person who could not be sued directly under Title VII.

Both parties agree that Huebschen could not have maintained an action against Rader under Title VII because she was not an "employer" within the meaning of section 703(a)(1). The appellants contend that, as a result, Huebschen cannot bring an action against Rader under section 1983 based upon Title VII because relief under the former is limited to that available under the latter.

We begin by noting that "Sec. 1983 by itself does not protect anyone against anything.... [It] does not provide any substantive rights at all." Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). A plaintiff bringing an action under section 1983 must show a deprivation of rights, privileges, or immunities "secured by the Constitution and laws." In this case, the substantive basis of the section 1983 claim is a violation of Title VII.

The effect of allowing a plaintiff to bring an action under section 1983 based upon Title VII against a defendant who could not be sued directly under Title VII would be to enlarge the relief available to one bringing an action for a violation of Title VII. Plaintiffs proceeding under section 1983 for violations of Title VII would obtain a substantive enlargement of the latter if they were able to sue a class of persons immune from actions brought directly under Title VII.

This circuit has not previously considered whether persons not amenable to suit under Title VII could nevertheless be subject to an action under section 1983 based upon Title VII. The Second and Fifth Circuits, however, have held that enforcing Title VII through section 1983 grants no greater substantive rights to a plaintiff than proceeding directly under the former statute.

In Rivera v. City of Wichita Falls, 665 F.2d 531 (5th Cir.1982), the Fifth Circuit said that "when Sec. 1983 is used as a parallel remedy with Title VII in a discrimination suit, the elements of the substantive cause of action are the same under both statutes." Id. at 534 n. 4 (citing Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980)). Similarly, in Carrion v. Yeshiva University, 535 F.2d 722, 729 (2d Cir.1976), the Second Circuit held that "[n]o greater or lesser protection against discriminatory practices is provided" by section 1983 than by Title VII. Accord, Wintz v. Port Authority, 551 F.Supp. 1323, 1325 (S.D.N.Y.1982).

We see no basis for reaching a result different from that of the Second and Fifth Circuits. Rader was not an employer and thus did not violate Title VII. Therefore, there is no legal basis for allowing Huebschen to bring a section 1983 suit against The appellee does not suggest to us how section 1983 gives a plaintiff the right to bring such an action, except to note that an action under that statute need not exactly follow the procedural...