Roybal v. City of Albuquerque

• Decision Date: 01 July 1986
• Docket Number: CV No. 85-1616 HB.
• Citation: 653 F. Supp. 102
• Parties: Jeanette ROYBAL, Plaintiff, v. CITY OF ALBUQUERQUE, a municipal corporation, E.L. Hansen, John O'Brien, Ken Keller, Gary Iverson, Gregory Dudley and Jose Armenta, Defendants.
• Court: U.S. District Court — District of New Mexico

653 F. Supp. 102

Jeanette ROYBAL, Plaintiff, v. CITY OF ALBUQUERQUE, a municipal corporation, E.L. Hansen, John O'Brien, Ken Keller, Gary Iverson, Gregory Dudley and Jose Armenta, Defendants.

CV No. 85-1616 HB.

United States District Court, D. New Mexico.

July 1, 1986.

Ira Bolnick, Glass and Fitzpatrick, Albuquerque, N.M., for plaintiff.

John W. Pope, Gail Stewart, Asst. City Attys., Albuquerque, N.M., for defendants.

MEMORANDUM OPINION AND ORDER

BRATTON, Chief Judge.

This matter comes before the court on defendants' motion to dismiss Counts II, III and IV of plaintiff's Complaint for failure to state a claim, and defendants' motion to dismiss Counts V and VI for lack of subject matter jurisdiction. The court, having reviewed the motions and memoranda submitted by the parties in conjunction therewith, and consulted the applicable authorities, concludes that the motions should be granted in part and denied in part.

This is a civil rights action arising out of plaintiff's employment with the Albuquerque Police Department. Plaintiff alleges that she was sexually harassed, and subjected to retaliation and discrimination on the basis of her sex by various employees and supervisors of the Albuquerque Police Department, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 1986 and the Fourteenth Amendment to the United States Constitution. Plaintiff also alleges violations of the New Mexico Human Rights Act and Article II § 18 of the Constitution of the State of New Mexico. Defendants deny plaintiff's allegations of harassment, retaliation and discrimination. They move to dismiss Counts II, III and IV of plaintiff's complaint, in which plaintiff alleges violations of 42 U.S.C. §§ 1983, 1985(3) and 1986, on the basis that they fail to state a claim for which relief may be granted.

In ruling on a motion to dismiss, the material allegations of the complaint must be taken as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir.1967). Furthermore, the "allegations in a civil rights claim, as in the case of any other civil action in the federal courts, are not to be held insufficient unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." New Mexico ex rel. Candelaria v. City of Albuquerque, 768 F.2d 1207, 1209 (10th Cir.1985).

Motion to Dismiss Plaintiff's Federal Civil Rights Claims

Defendants move to dismiss plaintiff's claims under 42 U.S.C. §§ 1983 and 1985(3). They argue that these claims fail to state a cause of action because the factual allegations on which they are based are properly brought only under Title VII. Defendants contend that plaintiff has failed to allege constitutional violations independent of her Count I claim of a violation of Title VII. These arguments lack merit. This court determines that plaintiff is not precluded from bringing her claims under sections 1983 and 1985(3), because she has sufficiently alleged independent constitutional violations.

Count I of plaintiff's Complaint alleges a cause of action under Title VII for unlawful employment practices, including sexual harassment, retaliation and discrimination on the basis of sex. In Count II, plaintiff also alleges a cause of action for sexual harassment, retaliation and sex discrimination under 42 U.S.C. § 1983. In Count III, plaintiff alleges a conspiracy among the defendants to persuade or coerce plaintiff to acquiesce in the sexual harassment, and to retaliate against plaintiff and discriminate against her on the basis of her sex, in violation of 42 U.S.C. § 1985(3). In Count II and III, however, defendants' conduct is alleged to have violated plaintiff's constitutional rights, including her right to the equal protection of the laws. Defendants argue that plaintiff has failed to state an equal protection claim independent of her Title VII claim.

Title VII of the Civil Rights Act of 1964 was made applicable to state and local government employees by amendments passed in 1972, entitled the Equal Employment Opportunity Act of 1972. H.R.Rep. No. 92-238, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 2137, 2137. Although both houses of Congress considered making Title VII the exclusive remedy for employment discrimination, Joint Explanatory Statement of Managers at the Conference on H.R. 1746 to Further Promote Equal Employment Opportunities for American Workers, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad.News 2179, 2181-82, Congress explicitly rejected such action. Id. Instead, the legislative history of the 1972 amendments to Title VII demonstrates Congress' intent to allow existing remedies, including those available under § 1983, as alternative means of redressing constitutional violations also actionable under Title VII.

In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual's right to file a civil action in his own behalf, pursuant to the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected. ... Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment discrimination.... The bill, therefore, by extending jurisdiction to State and local government employees does not affect existing rights that such individuals have already been granted by previous legislation.

H.R.Rep. No. 92-238, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad. News 2137, 2154 (emphasis added). Indeed, those Congressmen who dissented from the House Report and the final version of the amendments to Title VII did so, in part, because "charges of discriminatory employment conditions may still be brought under prior existing federal statutes such as the National Labor Relations Act and the Civil Rights Act of 1866.... Our attempt to amend the Committee bill to make title VII an exclusive remedy (except for pattern or practice suits) was rejected." Minority Views on H.R. 1746, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 2167, 2175.

This legislative history has been interpreted by a majority of the circuit courts of appeals and district courts to have left intact the rights of state and local government employees to sue under § 1983 for violations of their constitutional and statutory rights pre-existing Title VII. See Alexander v. Chicago Park District, 773 F.2d 850 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1492, 89 L.Ed.2d 89 (1986); Trigg v. Fort Wayne Community Schools, 766 F.2d 299 (7th Cir.1985); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199 (6th Cir.1984); Meyett v. Coleman, 613 F.Supp. 39 (W.D.Wis.1985); Snell v. Suffolk County, 611 F.Supp. 521 (E.D.N.Y.1985); Vermett v. Hough, 606 F.Supp. 732 (W.D.Mich.1984); Zewde v. Elgin Community College, 601 F.Supp. 1237 (N.D.Ill.1984); Storey v. Board of Regents of the University of Wisconsin System, 600 F.Supp. 838 (W.D.Wis.1985); Daisernia v. State of New York, 582 F.Supp. 792 (N.D.N.Y.1984); Gibson v. Wisconsin Dep't of Health, 489 F.Supp. 1048 (E.D. Wis.1980); Christensen v. Quigley Memorial Hospital, No. 84-3388 (D.Mass. November 1, 1985); Gold v. City of Chicago, No. 85-C-4885 (N.D.Ill. October 21, 1985). But see Irby v. Sullivan, 737 F.2d 1418 (5th Cir.1984); Reiter v. Center Consolidated School District No. 26-JT, 618 F.Supp. 1458 (D.Colo.1985); Keller v. Prince George's County Department of Social Services, 616 F.Supp. 540 (D.Md. 1985); Tafoya v. Adams, 612 F.Supp. 1097 (D.Colo.1985). The courts recognizing alternative causes of action under Title VII and § 1983 reason that only if the right asserted was created by Title VII must that right be vindicated solely through the administrative system created by that Act. E.g., Alexander v. Chicago Park District, supra at 855.¹

In Count II, plaintiff alleges that similarly situated male employees were not subjected to sexual harassment, retaliation and discrimination. Plaintiff's Complaint ¶ 28. Plaintiff also alleges that defendants' conduct deprived her of her rights to due process and equal protection of the laws, as guaranteed by the Fourteenth Amendment. Id. at ¶ 34. These allegations are sufficient to constitute an independent claim of sex discrimination under the Fourteenth Amendment. That Amendment provides that a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV § 1. If plaintiff was discriminated against on the basis of her sex, defendants' conduct may be subject to scrutiny under equal protection principles. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). The Fourteenth Amendment rights at issue in this case were not created by Title VII; they predate that statute. Therefore, plaintiff has stated an independent cause of action cognizable under 42 U.S.C. § 1983.

The above analysis is equally applicable to concurrent claims brought under Title VII and 42 U.S.C. § 1985(3). Nevertheless, defendants urge this court to dismiss plaintiff's Count III claim brought under section 1985(3), relying on Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) for the proposition that section 1985(3) cannot be used to remedy a Title VII violation. Novotny should not be read so broadly. In Novotny, a male officer of a savings and loan institution brought an action under § 1985(3), alleging that he was fired because he had supported female employees in their efforts to end sex discrimination. The Court pointed out that in contrast to Title VII, section 1985(3) is a purely remedial statute that provides a cause of action when "some otherwise defined federal right — to equal protection of the laws or equal privileges...