Morris v. Indianapolis Public Schools
| Decision Date | 13 July 1992 |
| Docket Number | No. 90-2434,90-2434 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Darrell MORRIS, Plaintiff-Appellant, v. INDIANAPOLIS PUBLIC SCHOOLS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.
For more than two years, Darrell Morris regularly substituted as a teacher in the Indianapolis Public School system (IPS). He brought this action alleging racial discrimination after IPS removed his name from a list of substitute teachers. Morris, proceeding pro se, filed a two-count complaint in the district court asserting race discrimination claims under (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); and (2) The Civil Rights Act of 1866, 42 U.S.C. § 1981 ("s 1981"). Morris appeals the grant of summary judgment in favor of IPS on both claims.
For the first time, Morris argues on appeal that Appellant's Brief, filed Oct. 1, 1991, at 3. Except in rare instances, a plaintiff may not raise issues on appeal for the first time. Hormel v. Helvering, 312 U.S. 552 (1941); Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844, 853 (7th Cir.1981). Since Morris never alleged any claims pursuant to 42 U.S.C. § 1983 in the district court proceedings, he is barred from raising them now.
After reviewing the decision of the district court as well as the recommendation of the magistrate judge, we conclude that the district court properly granted IPS's motion for summary judgment. Accordingly, we affirm the decision of the district court for the reasons stated in the attached memorandum opinion, recommendation, and order.
v.
Indianapolis Public Schools, Defendant.
Aug. 4, 1989.
Plaintiff Darrell Morris was once routinely called by the Indianapolis Public Schools for use as a substitute teacher. Plaintiff is no longer so used. He has sued the Indianapolis Public Schools alleging that they discriminated against him in violation of Title VII, 42 U.S.C. § 2000e-1 et. seq., and in violation of 42 U.S.C. § 1981. Count I of his Complaint, his Title VII allegation, requests a declaratory judgment as to his rights for a permanent injunction to restrain the defendant. He alleges that defendant harmed him by "maintaining a policy, practice, custom, or usage of discrimination against plaintiff's race with respect to hiring, compensation, terms and conditions of employment, criteria used to determine acceptable job performance and policies relating to termination of employment." He alleges further that he was "subjected to a continuous course of harassment, derogation of person, threats, racial slurs and name calling with resultant damage to plaintiff's professional standing, all such conduct being without cause or justification and based partly or solely upon plaintiff's race." Plaintiff is a black adult male.
Plaintiff alleges that he was terminated from employment by the defendant on or about March 23, 1988. He filed an equal employment opportunity complaint on April 20, 1988 alleging racial discrimination. This pro se Complaint was filed October 25, 1988. He claims that his discharge was based on his race in violation of 42 U.S.C. § 2000e-2(a)(1) [Title VII] and § 2000e-16(a). He also alleges that his discharge was in retaliation for activities protected by Title VII. He asks in Count I for a declaratory judgment that the defendant discriminated against him on the basis of his race and in retaliation against his protected activity. He seeks full back pay to compensate him for lost wages plus interest, overtime, and fringe benefits. He asks for compensatory damages in the amount of $500,000.00, he asks for a permanent injunction prohibiting further discrimination against him, and he asks for a mandatory injunction requiring his reinstatement.
Count II is a proceeding under 42 U.S.C. § 1981. Plaintiff alleges the same facts for the foundation of his 1981 claim as he does in his Title VII claim. As in Count I, Count II asks the Court to grant a permanent injunction enjoining the defendant from refusing to employ him as a substitute teacher because of his race. Plaintiff additionally asks for attorney fees.
Defendant has filed a motion for partial summary judgment making several claims which the Court will deal with in the order presented. Initially, defendant seeks summary judgment on the plaintiff's claim for compensatory damages in Count I. The relief available under Title VII is defined in 42 U.S.C. § 2000(e)-5(g). Compensatory damages are not listed therein. The case of Patzer v. Board of Regents of The University of Wisconsin System, 763 F.2d 851 (7th Cir.1985) cites the case of Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir.1982) in a note quoted as follows from page 854 of the opinion:
There being no question that compensatory damages are not on the available relief under Title VII, the defendant's motion for partial summary judgment directed toward those compensatory damages claimed by the plaintiff is GRANTED.
Defendant directs the next portion of its motion for partial summary judgment toward the plaintiff's claim for attorney fees. The law does appear subtle, but attorney fees are not recoverable in civil rights actions. Redding v. Fairman, 717 F.2d 1120 (7th Cir.1983); Cofield v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir.1981). Defendant's motion for partial summary judgment addressed to plaintiff's motion for attorney fees is therefore GRANTED.
Plaintiff makes a claim for retaliatory discharge under 42 U.S.C. § 2000e-16(a). Said section specifically makes clear that it provides for non-discrimination with respect to federal government employees. Plaintiff does not allege that he is an employee of the federal government, and therefore the motion for partial summary judgment addressed toward 42 U.S.C. § 2000e-16(a) is GRANTED.
Plaintiff further alleges a retaliatory discharge cause of action under § 2000e-3(a). Specifically, his paragraph 17 indicates that he was discharged in retaliation for activities protected. Nowhere in his complaint or in any of his filing papers does he indicate what activity he is alleged to have engaged in that caused his firing. Having only made a conclusory statement in his complaint and not having attached any affidavits or made any allegations regarding any protected activity, his cause of action under 42 U.S.C. § 2000e-3(a) must fail. The motion for summary judgment directed to that cause of action is GRANTED.
Plaintiff further has alleged under Title VII and also under § 1981 that the defendant "maintained a policy, practice, custom, or usage of discrimination". Defendant has moved for summary judgment on that claim, both as it impacts Title VII and § 1981.
In general terms, plaintiff's action accuses defendant of race discrimination. Race discrimination claims may be brought under Title VII (42 U.S.C. 2000e), under 42 U.S.C. § 1981, and under 42 U.S.C. § 1983. A single set of standards governs liability for all three statutes. Ramsey v. American Air Filter Co., 772 F.2d 1303, 1307 (7th Cir.1985). (§ 1981 standards are the same as Title VII); Lewis v. University of Pittsburgh, 725 F.2d 910, 915 (3rd Cir.1983). Those standards first announced in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), are now well established. The plaintiff has the ultimate burden of proving discriminatory intent on the part of the defendant. In recognition of the difficulty of marshaling direct proof of discriminatory intent, McDonnell-Douglas has fashioned a burden shifting scheme through which plaintiffs may prove intent directly. See, e.g., Morgan v. Harris Trust & Savings Bank of Chicago, 867 F.2d 1023, 1026-27 (7th Cir.1989).
At the outset, the plaintiff must establish a prima facie case of policy, practice, custom or usage of discrimination. To do so, plaintiff must show by a preponderance of the evidence that defendant treated him differently than similarly situated white employees were treated. Once the plaintiff has established this prima facie case, he is entitled to a presumption of discriminatory intent. This presumption shifts the burden to the defendant who must articulate a legitimate non-discriminatory reason for the differential treatment and if the defendant provides a legitimate explanation for the challenged conduct he or she has rebutted the presumption and the burden shifts back to the plaintiff. At this stage the plaintiff is charged with demonstrating that the defendant's proffered explanations are a pretext for discrimination. These standards apply to motions for summary judgment as well as to trials. Once the defendant has articulated a legitimate non-discriminatory explanation for the challenged conduct, to survive a motion for summary judgment the plaintiff must provide evidence from which a reasonable juror could conclude that the explanation is pretextural. See Cline v. Trustees of Indiana University, 766 F.2d 275, 280-83 (7th Cir.1985).
Specifically then, the plaintiff having...
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