Patzer v. Board of Regents of Univ. of Wis.

Decision Date19 January 1984
Docket NumberNo. 83-C-528-S.,83-C-528-S.
Citation577 F. Supp. 1553
PartiesJohn T. PATZER, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, its president, David E. Beckwith; and the State Department of Administration, and its secretary, Doris Hanson, Defendants.
CourtU.S. District Court — Western District of Wisconsin

Richard V. Graylow of Lawton & Cates, Madison, Wis., for plaintiff.

John R. Sweeney, Asst. Atty. Gen., Madison, Wis., for defendants.

MEMORANDUM AND ORDER

SHABAZ, District Judge.

Before the Court is defendants' motion for summary judgment in this case of alleged race and sex discrimination. This apparently simple discrimination case is complicated by a serpentine procedural history. In addition, after the Court requested the comments of counsel concerning the effect of Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) and Wakeen v. Hoffman House, 724 F.2d 1238 (7th Cir.1983), plaintiff submitted that the issue of liability had been resolved in his favor by prior proceedings, leaving only the issues of damages and attorney fees for trial.

The facts are as follows:

FACTS

In December, 1972, the State of Wisconsin advertised for the employment of an apprentice painter. The employer was to be the University of Wisconsin Board of Regents. According to personnel policies then in effect, the State's Department of Administration (DOA) would certify a list of qualified candidates for the position to the University, which would choose the job recipient from that list.

The announcement for the position carried the following qualification:

SPECIAL REQUIREMENT: In accordance with the State of Wisconsin's Affirmative Action Program, only applicants who are women, or who are members of the six minority groups as defined by the EEOC may apply for this position.

Also in effect at the time was a Wisconsin Administrative Code provision, PERS 27.02(1)(a), which authorized the Director of the State's Bureau of Personnel to limit recruitment to specific positions to minority groups.

Plaintiff John Patzer applied for the apprentice painter position on December 19, 1972. On December 29, Patzer received an acknowledgement of his application which indicated that his application was insufficient in that it could not be determined whether he belonged to a qualifying minority group. He was asked to note at the bottom of the acknowledgement whether he was, indeed, a member of such a group and to submit that information. Patzer responded that he was a white male and stated:

If the conditions mentioned above make me unqualified to apply for this job with the Wisconsin State Civil Service, please so state.

On January 8, 1973, Mr. Lewis Greenelsh, of the Bureau of Personnel responded to Patzer's application as follows:

Consequently, as indicated in the announcement furnished you as an enclosure to our letter of December 29th 1972, only applicants who are women, or who are members of one of the six minority groups identified in the announcement, are eligible to apply. As your reply (dated January 2, 1973) to our letter of December 29, 1972 indicates you are not a member of the target groups to which eligibility to apply is extended, we are unable to consider your application for this particular position.

On January 11, 1973, Patzer filed a complaint with the Equal Employment Opportunities Commission (EEOC) and the Wisconsin Department of Industry, Labor and Human Relations (DILHR), charging that he had been discriminated against on the basis of sex and race. On February 23, 1973, DILHR's Equal Rights Division issued a finding of probable cause that Patzer had been discriminated against. Patzer again prevailed before a hearing examiner by decision dated February 22, 1974.1 Written exceptions were filed to the hearing examiner's findings by the University and DOA and heard before the DILHR Commissioners. A number of interested parties intervened and filed briefs. By decision dated October 31, 1974, the Commissioners upheld the hearing examiner's decision, concluding that:

Respondents discriminated against the Complainant because of race and sex (Caucasian male), in violation of the Wisconsin Fair Employment Law, ss. 111.32(5), 111.325, Wis.Stats.

The Commissioners also ordered the respondents to cease giving absolute preference to minorities. As for specific relief to Patzer, the defendants were ordered to examine him in accordance with prior policy, and, if his test score would have entitled him to be certified, he was to be hired for the next available painter apprentice vacancy. He was examined and certified.

DOA and the University appealed the DILHR decision to the Circuit Court for Dane County. By decision dated May 17, 1976, the Circuit Court, Judge Norris Maloney presiding, affirmed the decision, holding that the provisions of the Wisconsin Administrative Code on which the hiring policy in this case was based were violative of the State Constitution as an unlawful exercise of legislative power. The decision neither faced the issue with respect to the United States Constitution, nor mentioned the holding that Patzer had been discriminated against by reason of race and sex.

This decision was appealed to the Wisconsin Supreme Court which, on April 19, 1977, affirmed the judgment. The holding of the Court was essentially based on statutory construction. The conclusion of the Court was as follows:

Accordingly, PERS 27, upon which the appellants rely, is not valid authority for the exclusion of Patzer solely because of his race or sex.

State (Dept. of Administration) v. ILHR Dept., 77 Wis.2d 126, 140-51, 252 N.W.2d 353 (1977).

On or about June 20, 1978, Patzer filed a complaint in Dane County Circuit Court alleging that he had not been offered a position in accordance with the DILHR decision (apparently none had become available), and asked for $25,000 in damages representing lost wages, fringe benefits and expenses incurred in finding other employment. The suit was brought against the chief officers of the University, DOA and the Bureau of Personnel individually and in their official capacity.

On the motion of these defendants, the Court dismissed the suit by order dated April 24, 1979. The Court accepted Patzer's characterization of the suit as a private cause of action for damages arising out of employment discrimination authorized by Yanta v. Montgomery Ward & Co., 66 Wis.2d 53, 224 N.W.2d 389 (1974). The Court dismissed on the ground that, as a suit against the State, personal jurisdiction was lacking because Patzer had failed to comply with Wisconsin's notice of claim statute, § 895.45(1), Wis.Stats.

During this period, it appears that Patzer's EEOC complaint was more or less dormant. It appears that EEOC was kept informed of the progress of Patzer's claim in State proceedings. After dismissal of Patzer's damage claim in 1979, EEOC activity was increased. EEOC requested and received wage information from Patzer and apparently initiated conciliation efforts on his behalf. After settlement discussions proved fruitless in late 1982, Patzer requested and received a right-to-sue letter in 1983. This action was filed shortly thereafter.

MEMORANDUM

Patzer originally filed this action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000e, et seq. The Court has previously dismissed the § 1983 action, holding that his cause of action arose in January, 1973; that is, more than ten years prior to the filing of this action. The parties agreed that such claims are governed by Wisconsin's six-year statute of limitations governing statutory causes of action. The Court held that the pendency of Patzer's Title VII action did not toll the statute on the § 1983 action. See Johnson v. Railway Express, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Inada v. Sullivan, 523 F.2d 485 (7th Cir.1975).

The Court also ordered the dismissal of the individuals named in Patzer's complaint, it being undisputed that the present chairman of the University's Board of Regents and the present Secretary of the Department of Administration were in no way personally involved in the actions which gave rise to this lawsuit and are neither employers nor agents of the employer for purposes of a Title VII action. 42 U.S.C. § 2000e(b).

Defendant Department of Administration has also moved for summary judgment on the basis that it was not the "employer" with respect to the job that Patzer applied for. Although the Court does not understand the reason why the parties are intent on arguing this issue (the University certainly has the jurisdictional number of employees), the Court must answer the question in plaintiff's favor. The employing agency of state government in this case is the University and is obviously an employer within the meaning of the statute. DOA, in its capacity as the agency which certifies candidates for employment to the other agencies of the state government, was, in important respects, the perpetrator of whatever discrimination took place here. In screening applicants, DOA was acting as the agent of the University and can be sued under Title VII. The only rational reason the Court can imagine for DOA's motion is that the University wishes to argue that DOA, not the University, committed the discriminatory acts.

Having disposed of the minor points in defendants' motion, the Court must face the major questions. The questions involve the doctrine of laches and the application of Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).

Laches

Defendants contend that Patzer's delay in bringing this lawsuit, a delay in excess of ten years, is unreasonable, inexcusable and, in addition, has prejudiced the defendants' ability to defend the suit.

Under EEOC v. Massey Ferguson, 622 F.2d 271 (7th Cir.1980), a defendant can prevail on the defense of laches only if the plaintiff's delay was unreasonable and inexcusable, and if the defendant has been prejudiced. While ...

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