Jacobs v. College of William and Mary

• Citation: 495 F. Supp. 183
• Decision Date: 29 July 1980
• Docket Number: Civ. A. No. 79-133-NN.
• Parties: Eloise A. JACOBS, Plaintiff, v. COLLEGE OF WILLIAM AND MARY, an agency of the Commonwealth of Virginia, and Thomas A. Graves, Jr., President, College of William and Mary, and Mildred B. West, Head, Department of Physical Education for Women, College of William and Mary, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

495 F. Supp. 183

Eloise A. JACOBS, Plaintiff, v. COLLEGE OF WILLIAM AND MARY, an agency of the Commonwealth of Virginia, and Thomas A. Graves, Jr., President, College of William and Mary, and Mildred B. West, Head, Department of Physical Education for Women, College of William and Mary, Defendants.

Civ. A. No. 79-133-NN.

United States District Court, E. D. Virginia, Newport News Division.

July 29, 1980.

COPYRIGHT MATERIAL OMITTED

Robert M. White, White & Selkin, Norfolk, Va., for plaintiff.

Martin A. Donlan, Jr., Asst. Atty. Gen., Richmond, Va., for defendants.

OPINION AND ORDER

CLARKE, District Judge.

The plaintiff is a former women's basketball coach and instructor at the College of William and Mary. The circumstances of her severance from that employment form the basis for this action against the College, its president, and the head of the College's Department of Physical Education for Women. Specifically, the plaintiff alleges in Count I of the Complaint that she was paid at a lower salary rate than male employees doing comparable work. Count II alleges that her contract was not renewed because of her age; and in Count III, she claims that the defendants violated her constitutional right to due process by failing to give her proper notice that her contract would not be renewed and by failing to continue her employment for the required period of time following delivery of this notice. These acts allegedly violate 42 U.S.C. §§ 1983 & 2000e et seq. and 29 U.S.C. §§ 201 et seq. & 626. Jurisdiction is founded on 28 U.S.C. §§ 1337 & 1343. The matter comes before the Court on the defendants' motion for summary judgment on Counts I and III of the Complaint.

In Count I of her Complaint, the plaintiff alleges that she was paid less than her counterparts in the men's athletic department, notwithstanding that she performed comparable work, in violation of 42 U.S.C. § 2000e-2(a)¹ and 29 U.S.C. § 206(d)(1).² The plaintiff, however, admits that she failed to file a charge of sex discrimination with the Equal Employment Opportunity Commission within 180 days of the termination of her employment or at any other time, as required by 42 U.S.C. § 2000e-5(e).³ The timely filing of a charge with this agency is a jurisdictional prerequisite to any suit under 42 U.S.C. §§ 2000e, et seq. in federal district court. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Doski v. M. Goldseker Co., 539 F.2d 1326, 1329 (4th Cir. 1976). Accordingly, insofar as this claim rests on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., this Court is without jurisdiction to grant the plaintiff any relief.

However, this does not dispose of the plaintiff's allegation of sex discrimination contained in Count I. The plaintiff also alleges that the defendants' actions violated Section 6(d)(1) of the Fair Labor Standards Act, 29 U.S.C. § 206(d)(1), which prohibits sex discrimination in the payment of employees. This prohibition is enforceable against an agency of the State.⁴ See Usery v. Charleston Co. Sch. Dist., 558 F.2d 1169 (4th Cir. 1977). See also Arritt v. Grisell, 567 F.2d 1267, 1270 (4th Cir. 1977). An employee aggrieved by the acts of an employer in violation of this section may bring a civil action pursuant to section 16(b) of the Act, 29 U.S.C. § 216(b), and such a claim clearly may be brought in conjunction with a claim under Title VII. See Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir. 1977), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977); Hodgin v. Jefferson, 447 F.Supp. 804 (D.Md.1978). Nothing in the present record requires the dismissal of this claim. The defendants' request for summary judgment on Count I is therefore GRANTED insofar as this Court rests on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and DENIED as to the plaintiff's claim under section 6(d)(1) of the Fair Labor Standards Act, 29 U.S.C. § 206(d)(1).

In Count III of her Complaint, the plaintiff alleges that under College regulations she was entitled to notice of the decision not to renew her contract at least twelve months before the expiration of her appointment. She alleges that the College and the other defendants failed to give her notice as required by these regulations and that she received notice of her non-retention only three months before her employment was terminated. This omission, she concludes, was inconsistent with her constitutional right to due process, and in violation of 42 U.S.C. § 1983.⁵

The threshold issue we are asked to decide by the defendants' motion is whether these alleged facts state a claim for relief under § 1983 for a deprivation of the plaintiff's constitutional rights. We conclude that they do.

At the time her employment at the College was terminated in June 1978, the plaintiff was a non-tenured, part-time instructor and coach in the College's Department of Physical Education for Women. She had been employed in that Department since 1974. At all times her employment was designated as a "temporary, restricted appointment" under the terms of a one-year contract which was renewed each year. Throughout the period 1974 to 1978, the plaintiff was paid as a part-time employee, except for a short period between September and December 1976, when she was paid as a full-time employee. The plaintiff has acknowledged that she was not a tenured employee and was not eligible for tenure.

Under these circumstances it is clear that the plaintiff had no right to notice and a hearing arising from the Constitution itself. Standing alone, her tentative and restricted employee did not amount to a "property" interest in continued employment sufficient to trigger these constitutional protections. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). However, the plaintiff does not rely exclusively upon the nature of her employment to establish that she was entitled to twelve months' notice of her non-retention. She finds this requirement in the College's Faculty Handbook, Section 3 of which states:

Written notice that a probationary appointment is not to be renewed will be given to the faculty member in advance of his or her appointment, as follows:

. . . . .

(c) At least twelve months before the expiration of an appointment after two or more years at the College.

Although the defendants argue that this section, and the remainder of the Handbook, applies only to full-time faculty members, nothing in the portion of the Handbook provided to the Court compels this conclusion. Whether the plaintiff's job fell within the class of positions covered by the Handbook, especially Section 3 thereof, is a factual matter which must be resolved at trial and not by means of summary judgment. For purposes of this motion, the Court must assume the truth of the plaintiff's allegations that the Handbook, including Section 3, was promulgated by the College for the benefit of the class of employees to which she belonged, and that this Handbook reflected official College policy.

Given these assumptions, and the uncontested fact that the plaintiff was employed at the College for more than two years, it follows that she was entitled to written notice of the non-renewal of her contract at least twelve months before the expiration of her appointment. Stated another way, she was entitled to continue her employment for twelve months after receiving notice of her non-retention. As a result of the defendants' failure to give her adequate notice, the plaintiff lost not only income for a substantial period, but also an opportunity assured by the College's regulations to continue in active employment while she sought out other career opportunities. It may be possible to characterize these benefits as an expectancy amounting to a "property" interest in continued employment, albeit for a limited period, established by the College's own rules. Cf. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, supra; Sigmon v. Poe, 564 F.2d 1093 (4th Cir. 1977). Regardless of how the plaintiff's interest is characterized, however, it is not clear that the plaintiff has not been prejudiced by the defendants' alleged failure to follow the College's own rules. Having established procedures to be used when an untenured employee is not reappointed, the College was bound to follow these procedures. See Mabey v. Reagan, 537 F.2d 1036, 1042 (9th Cir. 1976), citing, Yellin v. United States, 374 U.S. 109, 121, 83 S.Ct. 1828, 1835, 10 L.Ed.2d 778 (1963); Vitarelli v. Seaton, 359 U.S. 535, 545, 79 S.Ct. 968, 975, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). This is but a species of the more general rule that the "Due Process Clause is implicated where an individual has reasonably relied on agency regulations promulgated for his guidance or benefit and has suffered substantially because of their violation by the agency." United States v. Caceres, 440 U.S. 741, 752-53, 99 S.Ct. 1465, 1472, 59 L.Ed.2d 733 (1979). The plaintiff alleges that the College failed to follow its own rules laid down for her benefit, upon which she reasonably relied to her prejudice. In accordance with the foregoing principles, these allegations constitute a sufficient claim for relief under § 1983.

In support of their motion for summary judgment, the defendants also urge that the College, and the other named defendants, insofar as they are sued in their official capacities,⁶ are immune from suit under § 1983. This position is well-founded. The Eleventh Amendment⁷ bars any suit by private parties seeking to impose a liability which must be paid from public property or funds unless the State has consented to the filing of such a suit. Quern v. Jordan, 440...