Patel v. Thomas

Decision Date05 April 1990
Docket NumberNo. 89CA0322,89CA0322
Citation793 P.2d 632
Parties56 Fair Empl.Prac.Cas. (BNA) 83 Mary Louise PATEL, Plaintiff-Appellant, v. Ainsley THOMAS and Richard Ceresko, in their individual capacities, and Department of Social Services, State of Colorado, Defendants-Appellees. . V
CourtColorado Court of Appeals

Raven, Gregson & Brodsky, Ronald E. Gregson, Denver, for plaintiff-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Deena Aronowicz, Asst. Atty. Gen., Denver, for defendants-appellees Richard Ceresko and Dept. of Social Services, State of Colo.

Sheila H. Meer, P.C., Sheila H. Meer, James R. Gilsdorf, Denver, for defendant-appellee Ainsley Thomas.

Opinion by Judge DAVIDSON.

Plaintiff, Mary Louise Patel, appeals the trial court's dismissal under C.R.C.P. 12(b)(5) of her various claims arising from alleged sexual harassment on the job and her subsequent demotion. We affirm in part, and reverse in part.

In her complaint, Patel alleged that between June 1986 and October 1987, while she was employed as secretary in the Division of Veteran Affairs of defendant Department of Social Services, one of her supervisors, defendant Ainsley Thomas, "on separate occasions and during working hours ... against her will, grabbed her breasts, ran his hand up her legs, rubbed against her, followed her around the office, restricted her freedom of movement in her full awareness of the restriction, and made lewd, suggestive and aggressive comments."

She reported Thomas' conduct to another supervisor, defendant Ceresko, in or about September 1987. Ceresko, however, with whom Patel, at Ceresko's initiative, had engaged in a consensual relationship in 1985, took no action on Patel's behalf. Instead, he criticized Patel repeatedly for poor job performance and told other state employees that Patel was emotionally disturbed. In November 1987, Patel reported her treatment by both Thomas and Ceresko to the deputy director of the Department of Social Services, who, after investigating the matter, concluded that Patel had suffered "some sexual harrassment but no ill intent" and, apparently, took no remedial action. Finally, in late 1987, Patel was removed from the Division of Veteran Affairs and demoted to a lesser position in the Department of Social Services.

Throughout this period of time, Patel alleges that she suffered severe emotional harm which, in December 1987, resulted in a suicide attempt.

On May 2, 1988, Patel served defendants with a complaint containing nine claims for relief. Against all defendants, she instituted claims of defamation and outrageous conduct under the common law and of deprivation of her property and liberty rights to continued employment pursuant to 42 U.S.C. § 1983 (1982). Against Thomas and Ceresko she brought common law claims alleging invasion of privacy and tortious interference with her employment relationship, and against Thomas alone she brought common law claims of assault and battery and false imprisonment.

In response, defendants asserted that all claims should be dismissed: The § 1983 claims on the grounds that they were preempted by Title VII and that Patel had failed to exhaust her federal and state administrative remedies; the common law claims on the grounds that they were preempted by the exclusive remedy in the Workmen's Compensation Act, that they were barred by sovereign immunity and by Patel's failure to provide the state with a timely notice of claim as required by § 24-10-109(1), C.R.S. (1988 Repl.Vol. 10A), and that the notice provisions could not be tolled because of Patel's mental disability during the period of her suicide attempt.

The trial court dismissed the case without comment and denied Patel's motion for reconsideration. Patel then perfected this appeal.

I.

Motions to dismiss for failure to state a claim are viewed with disfavor and may not be granted unless it appears that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972). The allegations of the complaint, which need not be set forth with precise particularity, Schockley v. Georgetown Valley Water & Sanitation District, 37 Colo.App. 434, 548 P.2d 928 (1976), must be taken as true, and if upon any theory of law relief should be granted, then the motion to dismiss cannot be sustained. Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955). In reviewing a dismissal, we are in the same position as the trial court. McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d 437 (1969).

Accordingly, and because the court did not explain its rationale for dismissing the action, we shall consider the propriety of dismissal under each ground raised by defendants in their motions to dismiss and challenged by plaintiff on appeal.

II.

Patel first contends that the trial court erred in dismissing her two claims brought pursuant to 42 U.S.C. § 1983. She argues that the trial court erred as a matter of law insofar as it ruled that her § 1983 claims are preempted by the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982). We agree.

Section 1983 does not create substantive rights, but rather provides a remedy for the violation of rights created elsewhere in the Constitution or laws of the United States. Allen v. Denver Public School Board, (D.Colo. # 88-F-637, April 11, 1989) citing Chapman v. Houston Welfare Rights Organizations, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

Because Title VII creates both a right to be free from discrimination and a complex administrative remedy therefor, some courts have held that its scheme, rather than the simpler one provided by § 1983, must be followed if the only source of the right to be remedied is Title VII itself. E.g., Tafoya v. Adams, 612 F.Supp. 1097 (D.Colo.1985), aff'd on narrower grounds, 816 F.2d 555 (10th Cir.1987), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987). However, the goals and legislative history of Title VII have persuaded both the federal and state courts in Colorado that "it is clear that Title VII does not preclude a § 1983 claim where the latter is based on a violation of rights created by the Constitution or other federal statutory schemes." Allen v. Denver Public School Board, supra (emphasis in original); see Brown v. Hartshorne Public School District, 864 F.2d 680 (10th Cir.1988); Montoya v. City of Colorado Springs, 770 P.2d 1358 (Colo.App.1989); see also Keller v. Prince George's County, 827 F.2d 952 (4th Cir.1987).

Thus, in determining whether a claim brought under § 1983 that could also be pursued under Title VII should be dismissed on the ground of preemption, our inquiry focuses on whether the claim has a substantive federal basis other than Title VII. If it does, dismissal is improper.

Here, plaintiff has alleged substantive violations of two provisions of the Fourteenth Amendment: First, of her property right in continued employment, and second, of her liberty interest in being free from curtailed employment opportunities resulting from publication of false and stigmatizing information. Each of these provisions can provide a legitimate substantive basis for a § 1983 action independent of Title VII, see Asbill v. Housing Authority, 726 F.2d 1499 (10th Cir.1984), and each is supported by factual allegations in plaintiff's complaint. In addition, plaintiff's allegations involving sexual harassment support an action under § 1983 for violation of the Equal Protection Clause. Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir.1986). Therefore, we conclude that it was error for the trial court to dismiss plaintiff's § 1983 claims on the basis of Title VII preemption.

Neither party has raised the issue whether, in light of the United States Supreme Court's holding in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Colorado Department of Social Services is a proper § 1983 defendant. Therefore, we do not discuss it.

III.

Patel next asserts that the trial court erred insofar as it dismissed either her § 1983 or her common law claims on the ground that she had failed to exhaust her state and federal administrative remedies. Again, we agree.

The only federal administrative remedy that defendants maintain Patel "failed" to exhaust is that set forth in Title VII. As discussed above, plaintiff is not subject to the requirements of Title VII because she alleged independent constitutional grounds for her § 1983 action.

The state administrative scheme that defendants assert Patel should have pursued is the State Personnel Board grievance procedure, as set forth in 4 Code Colo.Reg. § 801-1 (1988).

The Supreme Court has made clear that the supremacy clause and the remedial purpose of § 1983 to redress civil rights violations made under color of state law prevent the state from enforcing administrative procedures as prerequisites to a § 1983 action, Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), even when the § 1983 action is brought in state court. Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). Thus, Patel's failure to file a grievance with the personnel board cannot bar her § 1983 claims.

Nor does it bar her common law tort claims.

Although a plaintiff's failure to exhaust administrative remedies can in many cases deprive the courts of jurisdiction to grant relief, Gramiger v. Crowley, 660 P.2d 1279 (Colo.1983), the exhaustion doctrine is not absolute. The requirement will be dispensed with when the "existing administrative remedies are ill-adapted to providing the relief sought, and when the matter in controversy raises questions of law rather than issues committed to administrative discretion and expertise." Collopy v. Wildlife Commission, 625 P.2d 994 (Colo.1981). Inadequacy of...

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