Lindas v. Cady

• Decision Date: 23 June 1989
• Docket Number: No. 86-1910,86-1910
• Citation: 441 N.W.2d 705,150 Wis.2d 421
• Parties: , 50 Fair Empl.Prac.Cas. (BNA) 319, 51 Empl. Prac. Dec. P 39,384, 58 USLW 2071, 54 Ed. Law Rep. 1337 Kathleen LINDAS, Plaintiff-Appellant-Petitioner, v. Elmer CADY and Robert Hable, Defendants, State of Wisconsin Department of Health and Social Services, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 705

441 N.W.2d 705

150 Wis.2d 421, 50 Fair Empl.Prac.Cas. (BNA) 319,

51 Empl. Prac. Dec. P 39,384, 58 USLW 2071,

54 Ed. Law Rep. 1337

Kathleen LINDAS, Plaintiff-Appellant-Petitioner, v. Elmer CADY and Robert Hable, Defendants State of Wisconsin Department of Health and Social Services Defendant-Respondent.

No. 86-1910.

Supreme Court of Wisconsin.

Argued May 31, 1989.

Decided June 23, 1989.

Steven H. Steinglass, Cleveland Marshall College of Law, Cleveland, Ohio, argued, Jeff Scott Olson, and Julian, Olson & Lasker S.C., Madison, on briefs, for plaintiff-appellant-petitioner.

David C. Rice, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for defendant-respondent.

CALLOW, Justice.

This is a review of a decision of the court of appeals, Lindas v. Cady, 142 Wis.2d 857, 419 N.W.2d 345 (Ct.App.1987), affirming an order of the Dane County Circuit Court, Judge Angela B. Bartell, dismissing Kathleen Lindas's (Lindas) sex discrimination action under Title VII of the Civil Rights Act of 1964 ¹ and 42 U.S.C. sec. 1983. ²

On review we must determine whether the circuit court properly dismissed Lindas's Title VII and sec. 1983 claims. There are two issues regarding the Title VII claim. First, do Wisconsin state courts have concurrent jurisdiction with federal courts over Title VII actions? Second, if jurisdiction is concurrent, is Lindas's suit against the Department of Health and Social Services (DHSS) barred by the state's sovereign immunity? We conclude that the circuit court erred in dismissing the Title VII action. The Dane County Circuit Court had jurisdiction over the action and it is not barred by sovereign immunity.

There are also several issues with respect to the sec. 1983 claim. First, is the DHSS a "person" amenable to suit under sec. 1983? Second, if the DHSS is a "person," is Lindas's suit nonetheless barred by either sovereign immunity, the statute of limitations or the principles of administrative res judicata? We conclude that Lindas's sec. 1983 action against the DHSS is barred because the DHSS is not a "person" subject to suit under sec. 1983. Therefore, we need not address the other sec. 1983 issues raised.

On August 15, 1979, Lindas was appointed to the position of Superintendent of Education in the Bureau of Program Resources of the Division of Corrections of the DHSS. On May 9, 1980, Lindas's supervisor gave her the choice of resigning or being discharged. She resigned on June 6, 1980.

On August 19, 1980, Lindas filed a complaint with the Wisconsin Personnel Commission alleging that incidents of sex discrimination contributed to her termination. The personnel commission, on January 3, 1985, issued its final decision regarding Lindas's complaint in which it held that there was not probable cause to believe that the DHSS discriminated against Lindas because of her sex.

On October 18, 1985, Lindas filed a complaint under 42 U.S.C. sec. 1983 in the Dane County Circuit Court against three of her supervisors, including defendants Elmer Cady (Cady) and Robert Hable (Hable). In her complaint Lindas alleged that Cady and Hable, by discharging her because of her sex, violated her right to equal protection of the laws as guaranteed by the fourteenth amendment to the United States Constitution. Lindas filed an amended complaint on February 6, 1986 in which she added a claim under Title VII of the Civil Rights of 1964, 42 U.S.C. sec. 2000e. In the amended complaint she also joined the DHSS as a defendant in both the sec. 1983 and Title VII claims.

On August 14, 1986, the Dane County Circuit Court, Judge Angela B. Bartell, issued an order dismissing the sec. 1983 claim, holding that it was barred by the three-year statute of limitations set forth in sec. 893.54, Stats. The circuit court's order also dismissed the Title VII claim against the DHSS holding that the claim was barred by sovereign immunity.

Lindas appealed the order dismissing her two claims. The court of appeals affirmed the order concluding that both the sec. 1983 and Title VII claims against the DHSS were barred by sovereign immunity. Lindas, 142 Wis.2d at 859, 419 N.W.2d 345. It did not address the issue of the statute of limitations. Id. at 858, 419 N.W.2d 345.

TITLE VII

The first question we address is whether the circuit court erred in dismissing the Title VII claim. In order to answer this question we must determine whether state courts have jurisdiction concurrent with that of federal courts over Title VII actions. ³ The United States Supreme Court expressly left this question open in Kremer v. Chemical Construction Corp., 456 U.S. 461, 479, n. 20, 102 S.Ct. 1883, 1896, n. 20, 72 L.Ed.2d 262 (1982). This court also has expressly reserved judgment on this question. Kurtz v. City of Waukesha, 91 Wis.2d 103, 112, 280 N.W.2d 757 (1979). While we suggested that federal courts have exclusive jurisdiction in Title VII actions in American Motors Corp. v. Department of Industry, Labor & Human Relations, 101 Wis.2d 337, 352-53, 305 N.W.2d 62 (1981), our suggestion was dicta and we are not bound by it. Therefore, we decide this issue for the first time in this case.

In determining whether state courts have jurisdiction concurrent with that of federal courts over an action involving a federal statute we must start with the presumption that jurisdiction is concurrent. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 507, 82 S.Ct. 519, 522, 7 L.Ed.2d 483 (1962); Terry v. Kolski, 78 Wis.2d 475, 484, 254 N.W.2d 704 (1977). This presumption may be overcome in three ways: "the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 2875, 69 L.Ed.2d 784 (1981).

We must now apply these principles to the present case in order to determine whether the presumption of concurrent jurisdiction has been overcome in Title VII actions. Our first inquiry is whether there is explicit statutory language in Title VII granting exclusive jurisdiction to federal courts. The DHSS relies heavily on Valenzuela v. Kraft, Inc., 739 F.2d 434, 435 (9th Cir.1984), for the proposition that several provisions in Title VII "contain the requisite 'unmistakable implication' of exclusive federal jurisdiction." The ninth circuit in Valenzuela found it significant that Title VII states "[a]ny civil action brought under this section ... shall be subject to appeal as provided in sections 1291 and 1292, title 28." 42 U.S.C. sec. 2000e-5(j) (1982). The court pointed out that secs. 1291 and 1292 discuss only federal courts of appeal, thus implying that any action brought under Title VII is appealable to federal appellate courts. Valenzuela, 739 F.2d at 435.

The ninth circuit also noted that Title VII requires, in actions brought under it, courts to apply Rule 65 of the Federal Rules of Civil Procedure. Id. at 436. The court concluded from its analysis of these provisions that the drafters of Title VII could have only intended that Title VII actions be brought in federal courts where such appellate procedures and rules of civil procedure would be used. Id. at 435-36.

We find, however, the seventh circuit's decision in Donnelly v. Yellow Freight System, Inc., 874 F.2d 402 more persuasive on the issue of concurrent jurisdiction. The seventh circuit pointed out that congress, in enacting Title VII, was merely carrying out its constitutional power to grant jurisdiction to federal courts, and that "the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction." Id. at 406, quoting Gulf Offshore, 453 U.S. at 479, 101 S.Ct. at 2875. The language relied upon in Valenzuela merely reflected the framers' intention that certain rules should be applicable in federal courts when such jurisdiction is used. See Note, Concurrent Jurisdiction Over Title VII Actions, 42 Wash. & Lee L.Rev. 1403, 1422 (1985). The DHSS has pointed to no provisions of Title VII which create exclusive jurisdiction in federal courts.

Our second inquiry in determining whether Title VII jurisdiction is concurrent is whether there is an unmistakable implication from the legislative history of Title VII that jurisdiction was exclusively given to the federal courts. The ninth circuit in Valenzuela found it significant that the drafters of Title VII made many references to federal courts in discussing Title VII jurisdiction but did not mention state courts. Valenzuela, 739 F.2d at 436.

However, as the seventh circuit stated in Donnelly, "because Congress has the power to grant or deny jurisdiction to the federal district courts, the only significance that can be garnered from these references is that Congress intended to grant jurisdiction to the federal courts." Donnelly, 874 F.2d at 402, 407. The references do not indicate that the framers of the provision intended to exclude state court jurisdiction. Thus, we find that legislative history does not overcome the presumption of concurrent jurisdiction.

Our final inquiry into the jurisdictional issue is whether there is a clear incompatibility between state court jurisdiction and federal interests. "The factors generally recommending exclusive federal-court jurisdiction over an area of federal law include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims." Gulf Offshore, 453 U.S. at 483-84, 101 S.Ct. at 2877-2878. We find none of these factors present in this case.

State judges, like federal judges, are bound by the supremacy clause to apply federal law in state courts. There is no reason to believe that state courts are more likely than federal courts to interpret Title VII in a nonuniform manner. Further, ...