Starrett v. Wadley

• Decision Date: 22 May 1989
• Docket Number: 86-2067 and 86-2423,Nos. 86-2002,s. 86-2002
• Citation: 876 F.2d 808
• Parties: 51 Fair Empl.Prac.Cas. 608, 50 Empl. Prac. Dec. P 39,023 Rose Marie STARRETT, Plaintiff-Appellee and Cross-Appellant, v. Robert W. WADLEY, Individually and in his Official Capacity as Creek County Assessor; and Board of County Commissioners of Creek County, Oklahoma, Defendants-Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 808

876 F.2d 808

51 Fair Empl.Prac.Cas. 608,

50 Empl. Prac. Dec. P 39,023

Rose Marie STARRETT, Plaintiff-Appellee and Cross-Appellant, v. Robert W. WADLEY, Individually and in his Official Capacity

as Creek County Assessor; and Board of County

Commissioners of Creek County, Oklahoma,

Defendants-Appellants and

Cross-Appellees.

Nos. 86-2002, 86-2067 and 86-2423.

United States Court of Appeals,

Tenth Circuit.

May 22, 1989.

D. Gregory Bledsoe, Tulsa, Okl., for plaintiff-appellee and cross-appellant.

Keith Ham, Bristow, Okl. (Lantz McClain, Dist. Atty., Sapulpa, Okl., with him on the briefs), for defendants-appellants and cross-appellees.

Before TACHA, BARRETT, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This is a sexual harassment case brought by a former county employee, Rose Marie Starrett, against her supervisor, the former Assessor for Creek County, Oklahoma, and against the County. After a jury trial, the district court entered judgment for plaintiff on some of her claims, and both sides have appealed. We affirm in part, reverse in part, and remand.

Defendants raise the following issues on appeal: (1) whether 42 U.S.C. Sec. 1983 provides an independent remedy for sexual harassment separate from that provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17; (2) whether plaintiff presented adequate proof of a violation of her constitutional rights; (3) whether the County can be held liable under Section 1983 for the Assessor's acts; (4) whether the district court erred in excluding evidence regarding plaintiff's unemployment compensation application; (5) whether the damages were excessive; and (6) whether the award of attorney's fees was excessive.

Plaintiff has cross-appealed, raising the following issues: (1) whether the district court erred in holding that plaintiff was a member of the Assessor's personal staff and, hence, exempt from Title VII's coverage; (2) whether the district court should have ordered reinstatement or front pay; (3) whether the district court erred in its award of post-judgment interest; and (4) whether the award of attorney's fees was inadequate.

The underlying facts relevant to this appeal are largely undisputed. Plaintiff Rose Marie Starrett worked as a deputy assessor in the Creek County Assessor's office from March 1982 to October 1983. Her principal duty was to inspect and value real property in Creek County. Her supervisor, defendant Robert W. Wadley, had been elected to his post as County Assessor.

During plaintiff's one-and-a-half year tenure with the Assessor's office, Wadley repeatedly made sexual advances toward plaintiff and other female employees, often while he appeared to be intoxicated. Those advances included propositioning plaintiff, requesting that she meet him at his house or at other secluded locations, making obscene gestures toward her, and pinching her on the buttocks.

After plaintiff had spurned his advances, Wadley became hostile towards plaintiff and began scrutinizing her work more closely than the work of the other employees. He also repeatedly told her that at least one member of the office might have to be terminated for budgetary reasons, implying that it might be she.

Plaintiff complained first to Wadley, then to Wadley's attorney, and then to the Chairman of the Board of County Commissioners about Wadley's sexual harassment and his drinking problems. ¹ After those complaints, Wadley continued his threats about terminating plaintiff.

Eventually plaintiff contacted her own lawyer who wrote a letter to Wadley stating that Wadley's sexual harassment of plaintiff violated Title VII and warning Wadley not to retaliate against her for asserting any right protected by federal law. Approximately two months after plaintiff's lawyer sent the letter to Wadley, Wadley terminated plaintiff's employment for purported "budgetary" reasons. When Wadley terminated her employment, he told her in a telephone conversation, which was overheard by co-workers, "I don't like you going to an attorney." (Tr. at 120.)

Plaintiff subsequently filed suit in the United States District Court for the Northern District of Oklahoma against Wadley and the County. ² She alleged that defendants had violated Section 1983 by acting under color of state law to violate her First Amendment right to freedom of speech and her Fourteenth Amendment right to equal protection of the laws. ³ Plaintiff further alleged that defendants had violated Title VII. ⁴ Plaintiff also brought pendent state claims for intentional infliction of emotional distress, wrongful termination, and breach of contract. ⁵

Plaintiff's Section 1983 claims were tried to a jury and her Title VII claims were tried to the district court. The jury rendered a verdict in favor of plaintiff and against defendants for $75,000. The district court entered judgment in that amount plus interest. The district court also awarded plaintiff $84,004 in attorney's fees and $2,391 in expenses. The district court denied plaintiff any recovery under Title VII, holding that plaintiff was employed as part of Wadley's "personal staff" and thus was exempt from Title VII's coverage pursuant to 42 U.S.C. Sec. 2000e(f). The court also ruled against the County on its counterclaim against plaintiff for $14,895.26 in back wages.

Wadley in his individual capacity has not appealed. (Doc. 263, Amended Notice of Appeal.) Thus, the judgment is final as to him. The County and Wadley "in his official capacity" have appealed, but they are essentially the same entity. Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985) ("[A] judgment against a public servant 'in his official capacity' imposes liability on the entity that he represents"). See also, e.g., McGhee v. Draper, 639 F.2d 639, 642 (10th Cir.1981) ("[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.") (quoting Monell v. Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). Therefore, despite the fact that the County and Wadley "in his official capacity" filed separate, complementary briefs in this appeal, the appeal effectively is between only two parties: the County and plaintiff. ⁶

I. SECTION 1983 ISSUES

A. Concurrent Application Of Title VII

The County argues that the district court should not have submitted plaintiff's Section 1983 claims to the jury because a Section 1983 claim cannot be premised upon a Title VII violation. In the County's words, "[b]y enacting Title VII Congress created a specific administrative process and remedial framework through which individuals subjected to sexual harassment may seek relief," and the framework "may not be bypassed by prosecuting a Title VII action under the guise of a Sec. 1983 claim." (Wadley Br. at 11.)

Although the County's assertion is technically correct, it is beside the point. It is true that a right created solely under Title VII cannot serve as the basis for an independent remedy under Section 1983, lest Congress' prescribed remedies under Title VII be undermined. See Long v. Laramie County Community College Dist., 840 F.2d 743, 752 (10th Cir.) (right to be free from retaliation for filing a discrimination charge, created by Title VII, cannot be sole basis of Section 1983 action), cert. denied, --- U.S. ----, 109 S.Ct. 73, 102 L.Ed.2d 50 (1988); Tafoya v. Adams, 816 F.2d 555, 558 (10th Cir.) (same), cert. denied, --- U.S. ----, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); cf. Great American Fed. Savings & Loan Ass'n. v. Novotny, 442 U.S. 366, 375-76, 99 S.Ct. 2345, 2350-51, 60 L.Ed.2d 957 (1979) (rights created by Title VII cannot be the basis for an action under 42 U.S.C. Sec. 1985(3)).

However, that principle does not help the County here because plaintiff's Section 1983 claim is not predicated upon a violation of Title VII, but rather upon a violation of the First and Fourteenth Amendments. If a plaintiff can show a constitutional violation by someone acting under color of state law, then the plaintiff has a cause of action under Section 1983, regardless of Title VII's concurrent application. ⁷ See Owens v. Rush, 654 F.2d 1370, 1380 (10th Cir.1981) ("Title VII did not impair in any way [plaintiff's] independent, substantive rights created by the First and Fourteenth Amendments.... '[S]ubstantive rights conferred in the 19th Century were not withdrawn, sub silentio, by the subsequent passage of the modern statutes.' ") (quoting Novotny, 442 U.S. at 377, 99 S.Ct. at 2351); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir.1984) ("Where an employee establishes employer conduct which violates both Title VII and rights derived from another source--the Constitution or a federal statute ... the claim based on the other source is independent of the Title VII claim, and the plaintiff may seek the remedies provided by Sec. 1983 in addition to those created by Title VII."); cf. Meade v. Merchants Fast Motorline, Inc., 820 F.2d 1124, 1127 (10th Cir.1987) ("plaintiff may properly pursue his cause of action under Sec. 1981 for private employment discrimination despite the applicability of Title VII to the same conduct"). ⁸

Therefore, the district court properly submitted plaintiff's Section 1983 claim to the jury.

B. Existence Of Constitutional Violations

The County further argues that there was not sufficient evidence of a constitutional violation here. We disagree.

We hold that sexual harassment of the sort alleged by plaintiff can violate the Fourteenth Amendment right to equal protection of the laws. In so holding, we follow the Supreme Court's intimations on the subject and join the ranks of other circuits that have addressed the issue. E.g., Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir.1986) ("Sexual harassment of female employees by a state employer constitutes sex discrimination for purposes of the equal...