Padway v. Palches

• Decision Date: 11 January 1982
• Docket Number: No. 80-4102,80-4102
• Citation: 665 F.2d 965
• Parties: 27 Fair Empl.Prac.Cas. 1403, 25 Wage & Hour Cas. (BN 275, 27 Empl. Prac. Dec. P 32,364, 93 Lab.Cas. P 34,160, 1 Ed. Law Rep. 1120 Esther M. PADWAY, Plaintiff-Appellant, v. Peter G. PALCHES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 965

665 F.2d 965

27 Fair Empl.Prac.Cas. 1403,

25 Wage & Hour Cas. (BN 275,

27 Empl. Prac. Dec. P 32,364, 93 Lab.Cas. P 34,160,

1 Ed. Law Rep. 1120

Esther M. PADWAY, Plaintiff-Appellant, v. Peter G. PALCHES, et al., Defendants-Appellees.

No. 80-4102.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1981.

Decided Jan. 11, 1982.

Laurence F. Padway, Padway & Padway, Oakland, Cal., for plaintiff-appellant.

Shand Stephens, Bronson, Bronson & McKinnon, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY and FERGUSON, Circuit Judges, and HOFFMAN, ^* District Judge.

DUNIWAY, Circuit Judge:

Appeal from a summary judgment for defendants in an action for sex discrimination in the payment, reassignment and discharge of a school principal. We reverse in part and remand.

I. The Nature of the Action.

Esther M. Padway was principal of an elementary school, hired by the Mill Valley California School District on July 1, 1973. On February 20, 1978, the District's Board of Trustees met in executive session and unanimously voted to reassign Padway and another principal to teaching duties. On March 13, 1978, the superintendent of schools of the district, Peter Palches, recommended to the Board that it give notice of termination to Padway and eight other teachers because of a shortage of money. The Board voted to do this and sent notices on the next day. The nine teachers requested a hearing before an administrative law judge. On May 3, 1978, he determined that there had been cause to dismiss Padway and seven of the other eight. He found they had less seniority than other employees.

Padway claimed that her reassignment and termination were the result of sex discrimination and brought this action against the superintendent, the five members of the Board of Trustees in both their individual and official capacities, the Board itself, and the district. Padway also claimed to have received less pay over the years than she would have received had she been a man. She asserted a broad range of statutory and common law bases for her claims. The district court gave summary judgment for the defendants on all federal claims and dismissed the pendent state claims. Here, Padway appeals the dismissal of some of the claims based on Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., on 42 U.S.C. § 1983 and § 1985(3), and on the Equal Pay Act, 29 U.S.C. § 206(d). Since we reverse on some of these claims we also direct reinstatement of the pendent state claims.

II. The Title VII Claims based upon the Reassignment and Discharge.

A. Liability.

Padway showed, by depositions and in declarations valid as affidavits under 28 U.S.C. § 1746, that Superintendent Palches has had difficulties in dealing with women in his job. The defendants concede that Padway has succeeded in raising a question as to the Superintendent's "attitudinal dispositions," which we take to be legalese or bureaucratese for his being prejudiced against women, or, in one meaning of the current vernacular, "sexist."

Palches wrote a letter to Padway, reading in part:

This is in response to your request for a statement of the reasons for your reassignment from your position as Principal.

The action of the Board was based upon my recommendation that you be reassigned for the following reasons:

1. I have insufficient trust in your judgment in handling the various complicated situations that arise in schools.

2. You cannot accept suggestions that you take steps to improve your ability to listen to what other people are saying and improve your communications with them. Rather than accepting evaluation comments as worthy of consideration and as the basis for some type of constructive change, you simply respond defensively.

You possess many fine qualities which have helped you to perform your duties as principal. The District is not charging you with incompetence, but rather it is exercising the discretion it has under the law to choose the people who will carry out its administrative responsibilities. There must be a strong bond of confidence between the Principal and the Superintendent and the Governing Board. Unfortunately, this is lacking.

A deposition by one K. Ibanez contained the following testimony:

And I said, you know, "Well why did you write a letter like that? I can't understand it."

He (Palches) said-he was mumbling, and the conversation went on. I said it two or three times at least.

Finally, his response was "I wanted to be sure that she (Padway) wouldn't be a principal in Mill Valley again." And he sort of paused and said, "or any other place." (emphasis added)

One of the defendant trustees is said to have made, at a public meeting at which the Board voted to reassign Padway, this statement:

We have two choices. We can either support our superintendent or we can fire our superintendent. It is not on the agenda tonight to fire the superintendent and therefore it must mean we trust his judgment. I don't know how much more candor can be stated than that.

Defendants argue that this evidence is insufficient to raise an inference that Padway was discharged because Palches was prejudiced against her as a woman. We do not agree. Palches' "attitudinal dispositions," the letter giving reasons for dismissal, the statement of the Trustee, the background of legal and customary relations between the superintendent and the Board, would all allow a finder of fact to conclude that the superintendent played a large role in the decision to reassign Padway and that prejudice against women was the real reason for the reassignment and discharge. See Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 9 Cir., 1981, 659 F.2d 903, at 910-912. The District would be liable, on the theory of respondeat superior, for the actions of Palches, an employee who is authorized to recommend hiring or firing. Miller v. Bank of America, 9 Cir., 1979, 600 F.2d 211.

In response to Padway's evidence, each trustee filed an affidavit denying that, in reassigning Padway, the trustee had relied on Palches, and giving reasons why the trustee voted to reassign. The trial judge relied heavily on this evidence. If the case had been tried by the judge, and he had based his decision on comparable testimony, we might well have affirmed under the "unless clearly erroneous" rule (Rule 52(a), F.R.Civ.P.). But we deal here with a summary judgment, and the trustees' evidence merely raised conflicts as to material facts, thus making summary judgment improper. (Rule 56, F.R.Civ.P.)

Each of the Trustees gave, as one reason for reassigning Padway, her sending to each Trustee a mailgram protesting the reassignment of a particular teacher to a classroom in her school. It seems clear that her First Amendment right to free speech protected the act of communication, especially when the communication was to the Trustees rather than to a newspaper. The depositions of the Trustees do not say that she made a public protest at their decision but only that her act showed a lack of tact and discretion. On the record before us, we cannot say that the interest of the School District outweighed her First Amendment rights. See generally, Pickering v. Board of Education, 1968, 391 U.S. 563, 568-70, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811. If her action was protected on balance and played a substantial part in her reassignment then the question arises of whether she would have been reassigned but for that action. We do not think that these questions can be settled by summary judgment on the present record.

B. Damages.

We note that 42 U.S.C. § 2000e-2 speaks of unlawful practices by the employer, and not of unlawful practices by officers or employees of the employer. Back pay awards are to be paid by the employer. 42 U.S.C. § 2000e-5(g). The individual defendants cannot be held liable for back pay. See Clanton v. Orleans Parish School Board, 5 Cir. Unit A, 1981, 649 F.2d 1084, 1099.

In this case, however, Padway asked for compensatory and punitive damages rather than for back pay. In Shah v. Mt. Zion Hospital and Medical Center, 9 Cir., 1981, 642 F.2d 268, 272, we held that damages for emotional distress cannot be recovered under Title VII. The rationale of that decision is that 42 U.S.C. § 2000e-5(g) provides only for equitable relief, including back pay. It does not provide for damages. The very detailed provisions of § 2000e-5 almost compel the conclusion that Congress intentionally left out any provision for either general or punitive damages, and that is our conclusion. See also Harrington v. Vandalia-Butler Board of Education, 6 Cir., 1978, 585 F.2d 192, 194-197; Pearson v. Western Electric Co., 10 Cir., 1976, 542 F.2d 1150, 1151-1153; Great American Fed. S. & L. Assn. v. Novotny, 1979, 442 U.S. 366, 374-375 & n.17, 99 S.Ct. 2345, 2350-2351 & n.17, 60 L.Ed.2d 957.

III. Constitutional Claims based upon Reassignment and Discharge.

Padway claims to have been denied due process and equal protection contrary to the Fifth and to the Fourteenth Amendments to the United States Constitution, and she seeks redress under 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3).

We note that in the second count of the complaint, based upon 42 U.S.C. § 1983, Padway said "The Municipal Defendants and individual defendants are named herein (referring to the second count only) solely for the purposes of securing declaratory relief." All the defendants in this case are either municipal or individual. Thus the only relief sought under § 1983 is declaratory relief. In any event, the school district is not liable under § 1983 where the sole theory of liability is respondeat superior. Monell v. New York City Department of Social Services, 1978, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611; May v. Enomoto, 9 Cir., 1980, 633 F.2d 164, 167 n.3.

The third count,...