Sethy v. Alameda County Water Dist., Nos. 73-1852

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before CHAMBERS, BROWNING, KOELSCH, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY; GOODWIN; SNEED; EUGENE A. WRIGHT, TRASK and WALLACE
• Citation: 545 F.2d 1157
• Decision Date: 20 September 1976
• Docket Number: 73-2802,Nos. 73-1852,73-2734,73-3333 and 73-3334
• Parties: 13 Fair Empl.Prac.Cas. 845, 13 Empl. Prac. Dec. P 11,328 Tejpal S. SETHY, Appellee, v. ALAMEDA CO. WATER DISTRICT, Appellant (three cases). Tejpal S. SETHY, Appellant, v. ALAMEDA CO. WATER DISTRICT et al., Appellees (two cases).

Page 1157

545 F.2d 1157 13 Fair Empl.Prac.Cas. 845,
13 Empl. Prac. Dec. P 11,328 Tejpal S. SETHY, Appellee,
v.
ALAMEDA CO. WATER DISTRICT, Appellant (three cases).
Tejpal S. SETHY, Appellant,
v.
ALAMEDA CO. WATER DISTRICT et al., Appellees (two cases). Nos. 73-1852, 73-2734, 73-2802, 73-3333 and 73-3334. United States Court of Appeals,
Ninth Circuit. Sept. 20, 1976.
Rehearing Denied Oct. 26, 1976.

Page 1159

William C. Wunsch (argued), of Faulkner, Sheehan & Wunsch, Jay R. Mayhall (argued), San Francisco, Cal., for Alameda County Water Dist.

Russel W. Galloway, Jr. (argued), of Legal Aid Society of Alameda County, Oakland, Cal., for Tejpal S. Sethy.

Before CHAMBERS, BROWNING, KOELSCH, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

GOODWIN, Circuit Judge:

The Alameda County Water District, asserting a defense of governmental immunity, appeals a judgment for damages for Tejpal Sethy and an order of re-employment in an action based upon racial discrimination. Sethy cross-appeals from a companion judgment for the individual defendants.

Sethy, a brown-skinned person of East Indian descent, was hired in 1963 as an engineering technician by the Alameda County Water District. He alleged that he was thereafter subjected to racially prejudicial treatment which culminated in his discharge in October 1970.

Sethy unsuccessfully pursued state remedies under the California Fair Employment Practices Law. ¹ He then brought this action for damages under 28 U.S.C. § 1343, naming as defendants the Water District and three of its individual employees.

The district court submitted to the jury Sethy's damages claim against the municipal corporation under 42 U.S.C. § 1981. ² A companion § 1983 claim was submitted against the individual defendants only. As noted, the jury found the individuals not liable. After the verdicts, motions on both sides preserved a number of issues which are now before us in these consolidated appeals.

I. THE WATER DISTRICT'S APPEAL

(a) Municipal Immunity

The Water District contends that municipal immunity, established for actions brought under 42 U.S.C. § 1983 by Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), should be extended to cover Sethy's § 1981 claim. We have never squarely decided the question, but one of our cases appears to have applied Monroe v. Pape to a § 1981 claim against a city. Arunga v. Weldon, 469 F.2d 675 (9th Cir. 1972), combined a class action and a demand for a three-judge court to declare unconstitutional Art. XI, § 11, California Constitution, with damages claims against a city under § 1981 and against individual police officers under § 1983. The pro se complaint was dismissed under Fed.R.Civ.P. 12(b). The pro se brief on appeal did not present intelligible issues, and this court did not reach the merits of any proposal, as none was put forward, to distinguish between sections 1981 and 1983. Accordingly, we do not view Arunga v. Weldon as controlling precedent on the § 1981 issues presented here. ³ See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37-38, 73 S.Ct. 67,

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97 L.Ed. 54 (1952) (prior decision is not binding precedent on point not raised in briefs or argument nor discussed in the opinion of the Court in that case); see also Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents."); accord, Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).

Section 1983 was part of the Civil Rights Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13. In Monroe v. Pape, supra, the Supreme Court reviewed the legislative history of § 1983, and determined that Congress had specifically decided not to make municipalities liable for damages under that act. Monroe v. Pape was based solely on legislative intent, and immunity was confined to § 1983. 365 U.S. at 191, 81 S.Ct. 473. Nothing was said about § 1981.

Section 1981 was first enacted five years earlier than § 1983, as part of section 1 of the Civil Rights Act of April 9, 1866, ch. 31, 14 Stat. 27. ⁴ Its purpose was to implement the Thirteenth Amendment. The Thirteenth Amendment is not a mere prohibition of discriminatory state laws, but an affirmative declaration that all vestiges of slavery would be illegal. District of Columbia v. Carter, 409 U.S. 418, 421-22, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). The Thirteenth Amendment gave Congress the power to pass enforcing legislation with nationwide application. The Civil Rights Act of 1866 was the first major piece of that legislation. 409 U.S. at 421-22, 93 S.Ct. 602. Reenacted in 1870 as 16 Stat. 144, the present § 1981 "affords a federal remedy against discrimination in private employment on the basis of race. An individual who establishes a cause of action under § 1981 is entitled to both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages. * * * " Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). District of Columbia v. Carter points out several important differences between § 1981 and § 1983. We hold that the water district's claim of categorical immunity, based upon § 1983 and Monroe v. Pape, cannot be sustained. ⁵

(b) Implied Repeal

If it is not entitled to categorical immunity under Monroe v. Pape, and we have held it is not, the Water District falls back to its next line of defense: If Congress ever intended to make municipal corporations liable under § 1981, that intent was repealed by implication. A brief look at legislative history will place in focus the Water District's contention and the answer to it.

In 1866, most of the states adhered in some manner to the concept of sovereign immunity. With the growth of state business, the immunity of the state had often been carried over to actions against state agencies. See generally W. Prosser, Law of Torts 971 et seq. (4th ed., 1971). However, under the common law of most states in 1866, municipal corporations did not share

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the state's sovereign immunity. ⁶ When acting in a "proprietary" capacity, at least, municipalities were still liable in the same manner as private entities.

Section 1 of the 1866 Act imposed federal liability upon private entities. ⁷ The statute clearly is not limited to actions against "persons". But the Water District argues that even if § 1981 could have been construed during the first four years of its existence as an act creating rights enforceable against municipalities, that construction was repealed by implication when Congress failed in 1871 to adopt the Sherman Amendment to what is now § 1983. ⁸

The colorful history of the Sherman Amendment discloses no such intent. See Moor v. County of Alameda, 411 U.S. 693, 707-710, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). There is no basis for reading an implied repeal of any rights created by § 1981 into the failure of Congress in 1871 to force municipal liability under § 1983 upon states that did not at that time permit actions against municipalities. ⁹

There is likewise no "positive repugnancy" between the Act of 1866 and the Act of 1871 that would force a conclusion that passage of the latter impliedly repealed the former. See United States v. Borden Co., 308 U.S. 188, 198-99, 60 S.Ct. 182, 84 L.Ed. 181 (1939). Not only do the two laws fail to create a total subject-matter overlap, but the rejection of municipal liability in the Act of 1871 is not inconsistent with its imposition under the Civil Rights Act of 1866.

A proper reading of § 1981 today, in light of Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), implies the existence of all necessary and appropriate remedies, including the remedy of damages against a municipal corporation in the case of the kind presently before us.

(c) California "Public Entity" Claims Act

The Water District has argued that to permit one claiming racial discrimination to maintain an action under § 1981 gives favored treatment to a racially classified plaintiff, inasmuch as all other actions against public entities ¹⁰ for damages for "injuries" are governed by California's claims act. ¹¹

We have carefully considered the Water District's scholarly argument. It would have us engraft California's claims procedure upon this type of civil-rights action. But with all respect to the research that has gone into the problem, we hold that a plaintiff seeking in federal court to vindicate a federally created right cannot be made to jump through the procedural hoops for tort-type cases that may have commended themselves to the legislative assemblies of the several states. Cf. Donovan v. Reinbold, 433 F.2d 738, 741-42 (9th Cir. 1970).

II. EFFECT OF VERDICT FOR INDIVIDUAL DEFENDANTS

Several other alleged errors have been assigned by the Water District.

The District urges that the verdict which found the named individual defendants not liable necessarily exonerates the Water District because corporate liability could be derivative only and could not exist without a finding of discriminatory acts by named employees.

The point would deserve consideration if the named defendants had been the only Water District employees shown by the evidence to have subjected Sethy to racial discrimination on the job. That was not the case below. The...