Jett v. Dallas Independent School Dist.

• Decision Date: 05 February 1988
• Docket Number: No. 85-1015,85-1015
• Citation: 837 F.2d 1244
• Parties: 46 Fair Empl.Prac.Cas. 238, 45 Empl. Prac. Dec. P 37,815, 44 Ed. Law Rep. 105 Norman JETT, Plaintiff-Appellee, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1244

837 F.2d 1244

46 Fair Empl.Prac.Cas. 238,

45 Empl. Prac. Dec. P 37,815, 44 Ed. Law Rep. 105

Norman JETT, Plaintiff-Appellee, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.

No. 85-1015.

United States Court of Appeals, Fifth Circuit.

Feb. 5, 1988.

David W. Townend, Garland, Tex., for defendant-appellant.

Frank W. Hill, Shane Goetz, Michael Anthony Rossetti, Frank Gilstrap, Hill, Heard, Oneal, Gilstrap & Goetz, Arlington, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

ON SUGGESTION FOR REHEARING EN BANC

(Opinion August 27, 1986, 798 F.2d 748)

Before GEE, CAROLYN DINEEN KING, ^* and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Seeking rehearing, appellee Jett complains of our decision herein that respondeat superior is not a legally valid basis for imposition of liability on the school district under 42 U.S.C. Sec. 1981, and asserts that this holding conflicts with our opinion in Garner v. Giarrusso, 571 F.2d 1330 (5th Cir.1978). Rejecting these contentions, we nevertheless deem appropriate some further explanation of our holding in this respect.

Garner was decided during the reign of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that a municipality was not a "person" within the meaning of 42 U.S.C. Sec. 1983 (section one of the Civil Rights Act of 1871) and hence could under no circumstances incur any potential section 1983 liability, and before the decision in Monell v. Department of Social Services of the City of New York,436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which reversed Monroe and held that a municipality was a "person" for purposes of section 1983 and hence could be liable thereunder, though not solely on a respondeat superior basis. That being the context, the question posed in Garner was not respondeat superior, but was rather whether municipalities were wholly exempted from section 1981 (section one of the Civil Rights Act of 1866) as they were from section 1983. For purposes of this question--whether municipalities were subject to the statute--Garner distinguished between sections 1981 and 1983 on the basis that the latter, but not the former, was expressly restricted to persons, and persons did not include municipalities. Garner, 571 F.2d at 1339-40. This ground for treating municipalities differently under section 1983 than under section 1981 of course evaporated with Monell 's holding that municipalities were persons under section 1983. ¹

Garner did not address whether municipal liability under section 1981 could be imposed on the basis of respondeat superior, and the opinion does not indicate that any contention in that respect was ever made. In Garner, a black police officer, following a bench trial, received a single lump-sum award of $5,000 damages under section 1981 for mental anguish and humiliation suffered as a result of undergoing a racially discriminatory transfer and reevaluation procedure while serving in the New Orleans police department. In affirming this award, we rejected the city's contention that Monroe, and the cases which followed it, wholly exempted municipalities from section 1981 coverage. Garner at 1339. In so holding, however, we explained that:

"Our holding does not pose the problem of imposing vicarious liability upon a municipality because of the acts of its servants. See Hamilton v. Chaffin, 506 F.2d 904 (5th Cir.1975). Garner's employment contract was with the city, and the city itself was responsible for assuring an absence of employment discrimination. To the extent that it failed to live up to this responsibility, it is liable in damages." Garner at 1341 (emphasis added).

Our explanation was consistent with the facts which were before us. Earlier in our opinion, we had affirmed the district court's findings that the transfer and reevaluation were discriminatory. Involved in the transfer were both Garner's superior officer and the city police superintendent, and the latter decided that Garner would have to undergo the reevaluation and "took full responsibility for" that decision. The district court found that the superintendent's reevaluation "decision was discriminatory." Id. at 1334. The inclusion of the superintendent in the scheme implicated the city directly, and resulted in liability on a basis other than respondeat superior. The instant case, however, is in a different posture. Here, we have a specific finding that Jett's principal, Todd, was racially motivated in his recommendation of Jett's reassignment. But as to Superintendent Wright, who ordered Jett's reassignment and had the sole and unreviewable authority to reassign, there is no finding of racial motivation (or that Wright knew or believed that, or was consciously indifferent to whether, Todd's recommendation was racially motivated). In the case at bar, wholly unlike Garner, the respondeat superior question is raised by the parties and presented by the procedural and factual context of the case. Garner realized that respondeat superior liability might "pose" a "problem" for municipalities, but did not have to resolve that issue or examine its ramifications.

We also observe that the only other municipal liability argument advanced by the city in Garner, apart from reliance on Monroe, was a plea for absolute or qualified immunity for municipalities, which we rejected. Garner at 1340-41. However, in light of the Supreme Court's reasoning in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), rejection of municipal qualified immunity for purposes of section 1981 cannot easily co-exist with municipal respondeat superior liability thereunder. In Owen, the Court appears to have been significantly influenced by the policy consideration that the denial of qualified immunity to municipalities under section 1983 would not be unduly harsh on them because "when it is the local government itself that is responsible for the constitutional deprivation--it is perfectly reasonable to distribute the loss to the public as a cost of the administration of government, rather than to let the entire burden fall on the injured individual," id. at 1418 n. 39, and because "the public will be forced to bear only the costs of injury inflicted by the 'execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.' " Id. at 1419 (quoting Monell ).

Jett argues that the reasons which led Monell to reject respondeat superior liability for municipalities under section 1983 are absent under section 1981. We are not persuaded. In the first place, some of the same reasons are clearly applicable. Although Monell partially relied in this respect on the rejection of the Sherman amendment, the essential burden of Monell is that the Sherman amendment had little if anything to do with section one of the 1871 Act. Among other things, Monell points out that "the nature of the obligation created by that amendment was vastly different from that created by Sec. 1," id. at 2022, that the amendment would have made municipalities liable for acts of a few private citizens, that it did not purport to amend section one, and that many supporters of section one opposed the amendment. Id. 2023-32. Monell also relied on the conclusion that "creation of a federal law of respondeat superior would have raised all the constitutional problems associated with" the Sherman amendment. Id. at 2037. But whatever constitutional problems the imposition of respondeat superior liability on municipalities would have posed respecting the 1871 Act, it is plain that such problems would have likewise been perceived respecting the 1866 Act, as the latter had only the Thirteenth Amendment to rely on, while the 1871 Act additionally had the Fourteenth Amendment.

Monell further references "the absence of any language in Sec. 1983 which can easily be construed to create respondeat superior liability." Id. at 2037 n. 57. This is, of course, likewise true as to section 1981. Indeed, section 1981 contains no language creating any liability; it is merely a declaration of rights, and does not even purport to define prohibited conduct, much less to either create a cause of action or impose or assign liability or responsibility to anyone. Again, Monell relies on the "shall subject, or cause to be subjected" language of section 1983. Id. at 2036. But whatever significance the presence of such language in section 1983 may have necessarily derives from the fact that section 1983 purports to assign responsibility to certain parties. As noted, section 1981 does not. Section two of the 1866 Act is the only section thereof which purports to impose any responsibility for deprivation of section one rights. ² And, it is particularly relevant in this connection that the "shall subject, or cause to be subjected" language of the 1871 Act was borrowed from section two of the 1866 Act. Id. at 2032-33; Monroe, 81 S.Ct. at 483; Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S.Ct. 1598, 1611, 26 L.Ed.2d 142 (1970). Given this context, the "shall subject, or cause to be subjected" language should not be a basis for differentiation between sections 1981 and 1983 with respect to municipal respondeat superior liability.

Finally, account must be taken of the context in which Monell dealt with the municipal liability respondeat superior issue. The initial and principal holding in Monell was that municipalities were covered by section 1983 and that a municipality was a "person" within the meaning of the statute's provision that "any person" who under color of state or local law violated another's federal constitutional rights "shall ... be liable to the party injured." This holding was partially based on the act passed in February 1871, a few months before the 1871 Civil Rights Act, providing that "in all acts hereafter passed ... the...