Hutchison v. Lake Oswego School District

• Decision Date: 25 April 1974
• Docket Number: Civ. No. 73-339.
• Citation: 374 F. Supp. 1056
• Parties: Barbara R. HUTCHISON, Plaintiff, v. LAKE OSWEGO SCHOOL DISTRICT No. 7 et al., Defendants.
• Court: U.S. District Court — District of Oregon

374 F. Supp. 1056

Barbara R. HUTCHISON, Plaintiff, v. LAKE OSWEGO SCHOOL DISTRICT No. 7 et al., Defendants.

Civ. No. 73-339.

United States District Court, D. Oregon.

April 25, 1974.

Carol A. Hewitt, Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland, Or., for plaintiff.

Jack L. Kennedy, Kennedy & King, Portland, Or., for defendants.

OPINION

SKOPIL, District Judge:

I.

NATURE OF THE ACTION

This is an action for a declaratory judgment and damages for defendants' failure to permit plaintiff to apply her accumulated sick leave to childbirth-caused incapacity. Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, as amended, (42 U.S.C. § 2000e et seq.) and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

II.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 2000e et seq.

III.

FACTS

From September, 1971, to June, 1973, plaintiff, Barbara R. Hutchison, was employed by defendant Lake Oswego School District No. 7 as a part-time teacher of social studies at Waluga Junior High School.

Defendant Lake Oswego School District No. 7 (hereinafter "School District") is a school district created by the State of Oregon pursuant to the Constitution and statutory law of the State of Oregon.

Defendants Cottle, Allen, Melrose, Bullard, and Putnam are duly elected members of the Board of Education of defendant School District.

During July or August of 1972, plaintiff informed Dale Reynolds, principal of Waluga Junior High School, that she was pregnant and would be absent for approximately three weeks with the birth of her child.

On January 27, 1973, the child was born. From January 29, 1973, through February 16, 1973, a period of fifteen and one-half working days, plaintiff was absent from her employment. During this period she was unable to work.

At the time of childbirth, plaintiff had accrued fifteen and one-half days sick leave. When she returned to her employment, she requested that she be allowed to use her accumulated sick leave for her absence. Lloyd F. Millhollen, Superintendent of Schools, Lake Oswego Public Schools, denied her request. Dr. Millhollen's denial was affirmed by the defendant board members.

The Policies and Procedures of Lake Oswego School District No. 7 allow sick leave only for "illness or injury". The School District has determined that normal childbirth is not an "illness or injury". Plaintiff was not permitted to draw pay from her accrued sick leave. The sum of $339.59 was deducted from her wages because of her absence and the necessity to hire a replacement during that absence.

On March 14, 1973, plaintiff filed with the Equal Employment Opportunity Commission (EEOC) a charge that defendants had discriminated against her because of her sex. On April 26, 1973, the EEOC notified plaintiff that she could, within ninety days, commence a civil action. On May 2, 1973, the present action was filed.

Plaintiff contends that defendants' refusal to allow her to apply her accrued sick leave is an unlawful employment practice within the meaning of 42 U.S.C. § 2000e-2. It distinguishes between childbirth-caused disabilities and all other medical disabilities, discriminating against her on the basis of sex. Plaintiff asserts that defendants' use of this distinction for the purpose of determining employment benefits is an arbitrary classification. It denies plaintiff equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.

IV.

JURISDICTION OVER DEFENDANTS

1) Title VII Claims.

Defendants Cottle, Allen, Melrose, Bullard, and Putnam assert that as members of the Lake Oswego School District Board they are not employers within the meaning of 42 U.S.C. § 2000e-2(a). They contend that plaintiff's only employer was the School District.

Section 2000e(b) defines "employer" as a person engaged in an industry affecting commerce who has fifteen or more employees, and any agent of such a person. Section 2000e(a), in part, defines "person" as one or more individuals, governments, or political subdivisions.

As enacted, Title VII applied only to private employers. In 1972 it was amended to promote equal employment opportunities by extending coverage to state and municipal employees and educational institutions. 42 U.S.C. § 2000e(a), Public Law 92-261, 86 Stat. 103, March 24, 1972. Title VII applies to school teachers in public schools. LaFleur v. Cleveland Board of Education, 465 F.2d 1184, 1186 (6th Cir. 1972), aff'd 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

The power to hire lies with the School Board under the provisions of ORS 342.505:

". . . the district school board, at a general or special meeting called for that purpose, may hire teachers and shall record such action in the minutes. . . ."

ORS 332.505 provides that a district school board may:

"(2) Employ principals, teachers, . . . and define the duties, terms and conditions of employment and fix the compensation.

"(3) Compensate district employes in any form which may include, but shall not be limited to, insurance, tuition reimbursement, and salaries."

Defendant School District is an employer within the meaning of 42 U.S.C. § 2000e. The School Board members are the agents of the School District and thus are employers. The School District is immune from suit under the doctrine of sovereign immunity. This immunity does not extend to the remaining defendants for acts which were unconstitutional or beyond their statutory powers. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948). Officials are not entitled to absolute immunity. They are entitled to a limited or a qualified immunity for acts done by them in good faith and within the scope of their official duties. Bennett v. Gravelle, 323 F.Supp. 203, 213 (D.C.Md. 1971), aff'd, 451 F.2d 1011 (4th Cir. 1971). However, where discrimination is practiced, good faith and the discretionary exception cannot be interjected as defenses. A successful defense on the merits merges with a successful defense under the qualified-immunity doctrine. McLaughlin v. Tilendis, 398 F.2d 287, 291 (7th Cir. 1968). To hold otherwise would thwart the intent and purpose of Title VII.

2) Equal Protection Claims.

The defendants seek dismissal. They contend they are immune from suit under the Equal Protection Clause of the Fourteenth Amendment. They also maintain that plaintiff has asserted a denial of equal protection under the Civil Rights Act of 1971, 42 U.S.C. § 1983, and that the School District is not a person within the meaning of § 1983.

Under the doctrine of sovereign immunity, the defendant School District is immune from suit. It is unnecessary for me to consider whether the School District is a person within the meaning of § 1983. Furthermore, plaintiff has not asserted a claim under § 1983. It would be improper to extend plaintiff's Complaint to resolve this issue in the manner sought by defendants.

Sovereign immunity will not be extended to the remaining defendants for acts which were unconstitutional or beyond their statutory powers. Larson v. Domestic and Foreign Commerce Corp., supra.

V.

TITLE VII CLAIMS

The sick-leave provisions of the School District are not in dispute. The question presented is the application of Title VII to these facts.

"Sick leave" is defined in ORS 342.595(1)(a) as "absence from duty because of a teacher's illness or injury".

Section 415 of the Policies and Procedures of the School District describes leaves of absence. Section 415.1 provides:

"Sick leave is to be used only at the time of illness or injury of the employee."

The School District provides for maternity leave in § 415.3:

"Maternity leave-of-absence may be granted to a permanent teacher. Requests for leave shall be made within the first three months of pregnancy. The teacher may be asked to begin such leave at any time during the pregnancy as determined by the building principal, after consultation with a representative of the superintendent and the attending physician."

The School District determined that pregnancy or childbirth is not an "illness or injury". The School Board was guided by ORS 342.595(1)(a). It also obtained an opinion on state maternity and sick-leave policies from Milt Baum, Director of Legal and Executive Services for the Oregon State Department of Education. The School District was advised that the Oregon law does not include maternity within the definition of "illness or injury".

In contrast, we must consider 42 U.S. C. § 2000e-2(a):

"It shall be an unlawful employment practice for an employer—

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex, . . . or

"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex, . . ."

The United States Equal Employment Opportunity Commission, the administrative body created by Title VII, has issued guidelines which provide that the separate treatment of maternity disability from other temporary disabilities is prohibited as discrimination on the basis of sex.

29 C.F.R. § 1604.10 Employment policies relating to pregnancy and childbirth.

"(a) A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy is in prima facie violation of title VII.

"(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or sick leave plan available in connection with

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