Jensen v. BD. OF COUNTY COM'RS FOR SEDGWICK COUNTY

• Decision Date: 28 May 1986
• Docket Number: No. 84-1401-K.,84-1401-K.
• Citation: 636 F. Supp. 293
• Parties: Phil JENSEN, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF SEDGWICK, KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

636 F. Supp. 293

Phil JENSEN, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF SEDGWICK, KANSAS, et al., Defendants.

No. 84-1401-K.

United States District Court, D. Kansas.

May 28, 1986.

Kristy L. Simpson, Williamson, McGee, Griggs & DeMoss, Chartered, Wichita, Kan., for plaintiff.

Stephen B. Plummer, Rumsey, Richey & Plummer, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

This case is before the Court on defendants' motion for partial summary judgment. Plaintiff Phil Jensen brought suit against the Board of County Commissioners, Sedgwick County, and the Sedgwick County Grievance Committee, alleging he was discriminated against based on sex while employed by the county as an animal care officer. He claims he was subjected to disparate treatment due to his sex, that he was discharged in retaliation for filing a grievance, and that he was not afforded procedural due process during the grievance hearing. Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a); the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983; and the Fourteenth Amendment of the United States Constitution. Plaintiff claims damages for lost pay and other job-related financial benefits, and for mental and emotional pain and suffering. Plaintiff further claims $10,000.00 in punitive damages, and attorney fees.

Defendants raise five issues in their motion for partial summary judgment: (1) whether punitive damages are recoverable under 42 U.S.C. § 1983 against government entities; (2) whether 42 U.S.C. § 1981 is applicable in a sex discrimination case; (3) whether Title VII provides an exclusive remedy for sex discrimination in employment and does not permit the bringing of a separate action under 42 U.S.C. § 1983 premised on a violation of the Fourteenth Amendment guarantee of equal protection of the laws for the same sex discrimination; (4) whether plaintiff, as a county employee, is barred from asserting a Bivens- type claim; and (5) whether this Court has jurisdiction over plaintiff's retaliatory discharge claim when such claim was not alleged in plaintiff's grievance filed with the Kansas Commission on Civil Rights.

Plaintiff has conceded that according to City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), punitive damages are not recoverable under 42 U.S.C. § 1983 against government entities. In this case, both defendants are government entities. Plaintiff has also conceded that 42 U.S.C. § 1981 applies only in race discrimination cases. This is a sex discrimination case. Accordingly, the § 1981 claim, and the prayer for punitive damages, are hereby dismissed.

As will be set forth below, the defendants' motion for summary judgment is granted as to the Bivens- type claim, and as to the claim for retaliatory discharge, but is denied as to defendants' assertion that Title VII is plaintiff's exclusive remedy.

The "exclusivity" of Title VII is the substantive issue before this Court and warrants thorough discussion. Upon its initial reading of defendants' motion and plaintiff's response, this Court was persuaded that a § 1983 claim probably should not be allowed to be brought in conjunction with a Title VII claim. The Court had before it a recent opinion by Judge Crow, Goodall v. Sedgwick County, No. 82-1914 (D.Kan. unpub. Oct. 11, 1985), in which the plaintiff had alleged sex discrimination and sexual harassment in violation of Title VII and § 1983. The Goodall court, relying on Great American Federal Savings & Loan Assn v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), dismissed the plaintiff's § 1983 cause of action, ruling that she had not articulated a right secured by the Constitution which was independent of her Title VII claim. In reliance on Goodall, this Court indicated during oral arguments on the summary judgment motion that it would in all likelihood dismiss the § 1983 claim and allow this case to proceed solely under Title VII. Plaintiff's counsel acquiesced that dismissing the § 1983 claim grounded in equal protection was probably the correct result, although she did briefly argue that the § 1983 claim grounded in denial of due process at the grievance hearing should be allowed to stand. However, when the Court articulated its belief that the due process claim also lacked independence, plaintiff's counsel again acquiesced in this result.

The Court has since had the opportunity to delve into this issue in some depth and is now convinced that its "first blush" reaction was incorrect. From a pragmatic standpoint, this Court has long pondered the utility of trying a discrimination case once to the jury (on the § 1983 claim) and once to the Court (on the Title VII claim). It has seemed logical that Title VII should be the "exclusive" remedy in discrimination cases. One commentator, in discussing whether both theories can be asserted in one action, observed, "It is ... true that from a judicial standpoint this result allowing both theories is inefficient and somewhat anomalous.... Further `as a matter of policy it is undesirable to permit plaintiffs to circumvent the procedural and remedial limits of the Title VII scheme by pleading alternate causes of action, such as Section 1983, when the same facts underly both claims.'" Shapiro, Section 1983 Claims to Redress Discrimination in Public Employment: Are They Preempted by Title VII?, 35 Am.Univ.L.Rev. 93, 119 (1985), quoting Storey v. Board of Regents of Univ. of Wisconsin, 600 F.Supp. 838, 840 (W.D.Wisc.1985).

Despite these "pragmatic" concerns, the Court is now convinced that Congress, in enacting Title VII, did not intend to preclude state and local government employees from pursuing alternative remedies. This Court, in applying legislatively created remedies, must do so in accordance with legislative intent, even if it disagrees with the practical results.

When Title VII was originally enacted in 1964, it applied only to employment discrimination in the private sector. In 1972 Congress extended the act to allow Title VII suits against state and local government employers under the same conditions as private employers. Prior to the amendment, public employees could bring a federal cause of action for discrimination under the Civil Rights Act of 1870 and 1871. Section 1983 provides a cause of action against any person who, acting under color of state law, deprives another person of any constitutional or federal statutory rights. A government employer's discrimination on the basis of sex may violate rights guaranteed by the Constitution. See Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 2271, 60 L.Ed.2d 846 (1979) (finding a constitutional right to be free from sex discrimination in government employment); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976) (finding classifications based on gender violate the equal protection clause unless they bear a "close and substantial relationship to important governmental objectives").

When Title VII was amended to include state and local government employees, an overlap was created between Title VII and § 1983. However, there are enough differences in the procedures, remedies, and legal standards between Title VII and § 1983 that it is sometimes advantageous for an aggrieved employee to bring an action under both theories. For instance, in instigating an action under Title VII, a claimant must follow a detailed administrative procedure by filing with the appropriate state agency and the EEOC before bringing a lawsuit in federal district court. A § 1983 plaintiff may proceed directly to federal court, and is not burdened by the 180-day statute of limitations applicable in Title VII actions. The Title VII administrative procedures employ a form of informal dispute resolution, and may be advantageous to some, while not to others. The remedies provided for in the two statutes differ in that § 1983 provides for both equitable and legal relief, as opposed to Title VII which grants only equitable relief. Therefore, back pay, injunctive relief, and attorney fees are available under both theories, but compensatory and punitive damages are only available in § 1983 actions. The legal standards differ in that a Title VII plaintiff may be able to recover for discrimination without proving intent, such as in an adverse impact case, while intent is a necessary element in a § 1983 case. See Dothard v. Rawlinson, 433 U.S. 321, 331-32, 97 S.Ct. 2720, 2727-28, 53 L.Ed.2d 786 (1977). Another key difference between the two remedies is that in a Title VII action there is no right to a jury trial as there is in a § 1983 action. See, e.g., Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975).

Due to these procedural and remedial differences, it is understandable why plaintiffs desire to have the availability of both theories. However, the usual rule is that when a statute provides a particular procedure and an exclusive remedy for violations — as does Title VII — § 1983 may not be employed to obtain additional remedies. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). There is an exception to this rule if Congress intended to allow the availability of additional remedies even though the statute contains a comprehensive remedial scheme. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The Supreme Court unanimously agrees that congressional intent alone governs the question of whether Title VII was meant to preempt existing statutory remedies. See Brown v. General Services Administration, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964, 48 L.Ed.2d 402 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). If legislative history is silent on the issue of exclusivity, courts will infer Congress' intent to create an exclusive remedy. Storey v. Board...