Hutchison v. Lake Oswego School Dist. No. 7

• Decision Date: 21 July 1975
• Docket Number: Nos. 74-3181,74-3182,s. 74-3181
• Citation: 519 F.2d 961
• Parties: 11 Fair Empl.Prac.Cas. 161, 10 Empl. Prac. Dec. P 10,325 Barbara R. HUTCHISON, Plaintiff-Appellee, Cross-Appellant, v. LAKE OSWEGO SCHOOL DISTRICT NO. 7 et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 961

519 F.2d 961

11 Fair Empl.Prac.Cas. 161,

10 Empl. Prac. Dec. P 10,325

Barbara R. HUTCHISON, Plaintiff-Appellee, Cross-Appellant, v. LAKE OSWEGO SCHOOL DISTRICT NO. 7 et al Defendants-Appellants, Cross-Appellees.

Nos. 74-3181, 74-3182.

United States Court of Appeals Ninth Circuit.

July 21, 1975.

Rehearing and Rehearing En Banc Denied Sept. 10, 1975.

Robert M. Greening, Jr. (argued), Portland, Ore., for appellant-cross appellee.

Carol A. Hewitt (argued), Portland, Ore., for appellee-cross appellant.

OPINION

Before KOELSCH and CARTER, Circuit Judges, and SCHNACKE, ^* District Judge.

JAMES M. CARTER, Circuit Judge:

Defendants Lake Oswego School District Board ("the school board") and its individual members appeal from the judgment of the district court, enjoining the school board from refusing to grant sick leave benefits for absence due to childbirth, and awarding plaintiff Hutchison lost wages, costs, and attorney's fees against the school board and its individual members. Hutchison, on the other hand, appeals from the district court's dismissal of the Lake Oswego School District No. 7 ("the school district") on Eleventh Amendment grounds. We affirm in part and reverse in part.

Hutchison was employed for two school years by the school district as a part-time junior high school teacher. On January 27, 1973, she gave birth to a child, necessitating her absence from work for 15 working days. She suffered no complications as a result of either her pregnancy or childbirth. Upon her return to work, she requested that she be allowed sick leave benefits for her absence she had accrued 15 days sick leave at that time.

The school board refused her request on the basis of § 415.1 of the school district's Policies and Procedures and Ore.Rev.Stat. § 342.595, both providing for a minimum amount of sick leave for "illness or injury." Pregnancy was not deemed to be an "illness or injury" but rather a temporary disability permitting leave without pay. This interpretation was rendered by the superintendent of the Lake Oswego Schools and concurred in by the Director of Legal and Executive Services for the Oregon State Department of Education. The sum of $339.59 was deducted from Hutchison's wages because of her absence from her job and the necessity of hiring a replacement during her absence.

After exhausting all possible administrative remedies, she brought the present suit seeking a declaration that the school district's maternity leave policy constituted sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). She also sought damages under 42 U.S.C. § 2000e-5(g), and attorney's fees under 42 U.S.C. § 2000e-5(k).

The case was submitted without trial on the briefs and certain stipulated facts. The district court dismissed the school district on the basis of sovereign immunity, but found that the school board and its individual members had engaged in unlawful sex discrimination in violation of both the Equal Protection Clause and Title VII. The case is reported below in 374 F.Supp. 1056 (D.C.Or.1974).

The defendants contend on appeal that: the refusal to grant sick leave benefits for normal pregnancy violates neither the Equal Protection Clause nor Title VII; the recovery of back pay and attorney's fees from the individual school board members is barred by the doctrine of qualified immunity for acts done in good faith and within the scope of their official duties; and such recovery against the school board is barred by the Eleventh Amendment. Hutchison contends that the doctrine of sovereign immunity was improperly applied to the school district.

EQUAL PROTECTION

The decision of the district court was rendered prior to the Supreme Court's decision in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), which held that the State of California was not required by the Equal Protection Clause to provide for absences due to normal pregnancy and childbirth under its state disability benefits plan. The Court stated that the State has a legitimate interest in "distributing the available resources in such a way as to keep benefit payments at an adequate level for disabilities that are covered, rather than to cover all disabilities inadequately." Id. at 496, 94 S.Ct. at 2491. And with respect to the contention that discrimination on the basis of pregnancy constitutes "invidious discrimination" for purposes of equal protection, the Court stated:

"The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition pregnancy from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition." Id. at 496-497 n. 20, 94 S.Ct. at 2492.

The operation of Oregon's sick leave benefits plan differs somewhat from California's disability benefits plan, and, unlike the Geduldig defendant, the defendants in the present case did not make a strong showing below that the exclusion of normal pregnancy from the sick leave policy was necessitated by the increased administrative burden and cost of including such pregnancy. However, we hold that Geduldig dictates a similar result in the present case.

Hutchison has not suggested that the policy is a mere pretext designed to effect an invidious discrimination. And inclusion of normal pregnancy in the school district's sick leave plan would unquestionably "be substantially more costly than the present program and would inevitably require state subsidy, a higher rate of employee contribution, a lower scale of benefits . . . , or some combination of these measures." Geduldig, supra, at 495-496, 94 S.Ct. at 2491. We hold that Hutchison cannot validly base her claim on the Equal Protection Clause.

TITLE VII

The defendants concede that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is applicable to the employment practices of the school board, and that the policy in issue is an "employment practice" within the meaning of Title VII. However, they rely upon Footnote 20 of Geduldig, supra, to support their contention that discrimination on the basis of pregnancy is not sex discrimination. But the defendants have greatly overstated the reach of Geduldig in general and Footnote 20 in particular.

First, the school district cites Footnote 20 as if it states that discrimination on the basis of pregnancy is never sex-based. That is not what the Footnote provides. Rather, it states that not every legislative classification concerning pregnancy is sex-based.

Second, in Geduldig the Court was considering whether such classification violated the Equal Protection Clause. Title VII was not at issue. The school district contends that since the threshold question under Title VII is whether or not there has been discrimination on the basis of sex, and since the Supreme Court in Geduldig has stated that exclusion of pregnancy benefits under a state disability plan is not sex-based, the Court decided the Title VII issue sub silentio.

Title VII, however, unlike the Equal Protection Clause, proscribes classifications which "in any way would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect (her) status . . . ." (Emphasis added). ¹ This language certainly is conducive to an interpretation different from that premised upon the language of and cases interpreting the Equal Protection Clause. "In this posture our case is one of statutory interpretation rather than one of constitutional analysis. On this distinction alone we believe appellant's reliance on (Geduldig ) is misplaced." Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199, 203 (3 Cir. 1975), cert. granted, --- U.S. ---, 95 S.Ct. 1989, 44 L.Ed.2d 476 (1975).

To effectuate the goals of Title VII, Congress entrusted the promulgation of regulations or guidelines thereunder to the Equal Employment Opportunity Commission (EEOC). 42 U.S.C. § 2000e-4. The guidelines so promulgated are the agency's interpretation of the statute and indicate what are or are not proscribed discriminatory practices. Wetzel, supra, 511 F.2d at 204. These EEOC guidelines are entitled to "great deference" with respect to the proper interpretation of Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

The EEOC guideline applicable to the school board's sick leave policy in the present case unequivocally provides that the exclusion of pregnancy or childbirth related disabilities from sick leave coverage is a violation of Title VII. ² Unless "application of the guideline would be inconsistent with an obvious congressional intent not to reach the employment practice in question", the school board's sick leave policy must be deemed to be violative of Title VII. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973).

In enacting Title VII, Congress intended to eliminate all discriminatory employment practices, H.Rep. No. 914, 1964 U.S. Code Cong. & Admin. News, p. 2401, including discriminatory treatment of men and women. See Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7 Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). ³ Clearly, a sick leave policy which excludes from coverage absences related to pregnancy or childbirth adversely and disparately affects women with respect to employment benefits. This interpretation is in no...