Storey v. Board of Regents of Univ. of Wis. System, No. 84-C-250-D.

• Court: United States District Courts. 7th Circuit. Western District of Wisconsin
• Writing for the Court: Diane Nicks, Asst. Atty. Gen., State of Wis., Dept. of Justice, Madison, Wis., for defendants
• Citation: 600 F. Supp. 838
• Parties: Maureen STOREY, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM and Milton L. Sunde, Defendants.
• Decision Date: 22 January 1985
• Docket Number: No. 84-C-250-D.

600 F. Supp. 838

Maureen STOREY, Plaintiff,
v.
BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM and Milton L. Sunde, Defendants.

No. 84-C-250-D.

United States District Court, W.D. Wisconsin.

January 22, 1985.

600 F. Supp. 839

Michael R. Fox, Madison, Wis., for plaintiff.

Diane Nicks, Asst. Atty. Gen., State of Wis., Dept. of Justice, Madison, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Plaintiff alleges that as a result of deliberate sex discrimination she was denied state employment by defendants. The complaint purports to state three causes of action, under the following statutory authorities: Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1001 et seq. (Title IX); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII); and 42 U.S.C. § 1983. Defendants have moved to dismiss the Title IX and § 1983 claims. I construe defendants' motion as one arising under rule 12(b)(6) of the Federal Rules of Civil Procedure.

OPINION

The purely legal question presented by defendants' motion is whether Title VII is the exclusive avenue of relief available to plaintiff. In arguing Title VII is an exclusive remedy, defendants invoke the principle that where two or more alternative statutory mechanisms exist to redress a wrong, a detailed, comprehensive scheme preempts more general remedies. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). In Brown the plaintiff asserted a claim under 42 U.S.C. § 1981 as well as under Title VII, but the Court held that Title VII was the exclusive remedy for claims of discrimination in federal employment. Language in the legislative history of Title VII showed Congress perceived that federal employees had no effective remedies prior to enactment of Title VII. From this the Court inferred congressional intent to make Title VII the exclusive remedy available to federal employees: "It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading." Id. at 833, 96 S.Ct. at 1968. The Court concluded the detailed scheme of Title VII preempted the potential remedy under the broadly worded § 1981.

Defendants contend that applying the principle of implied exclusivity articulated in Brown and other cases compels the conclusion that in this action involving state employment, plaintiff is limited to Title VII. For support, defendants cite a recent case involving state employment, Torres v. Wis. Dept. of Health and Social Services, 592 F.Supp. 922 (E.D.Wis.1984). There the court held that the plaintiff's constitutional

600 F. Supp. 840

claims, raised under § 1983, were so intertwined with those arising under Title VII that Title VII was the exclusive remedy. Applying the Brown rationale, the court inferred congressional intent to limit the availability of § 1983 in situations where Title VII offers an effective remedy

I am sympathetic to defendants' contention that as a matter of policy it is undesirable to permit plaintiffs to circumvent the procedural and remedial limits of the Title VII scheme by pleading alternative causes of action, such as § 1983, when the same facts underlie both claims. I subscribe to the principle that a court should infer that in general Congress intends the detailed and comprehensive to preempt the general.

Nonetheless, I conclude Title VII is not plaintiff's exclusive remedy in this case. There is an important proviso to the rule of implied exclusivity, namely, that it is applicable only in the absence of legislative history evincing a contrary intent. It is clearly Congress' prerogative to provide overlapping and duplicative remedial statutory schemes if it chooses; courts may make a reasoned inference about Congress' intent only when Congress has not articulated its position on the exclusivity of the remedies it has created. The cases defendants rely on are distinguishable in that the legislative history of the statutes involved in those cases were silent or inconclusive as to exclusivity. Smith v. Robinson, et al., ___ U.S. ___, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) (Education of the Handicapped Act preempts § 1983); Middlesex Cty. Sewerage Authority v. Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (environmental protection statutes preempt § 1983); Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Title VII is exclusive remedy for federal employees); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (statutory habeas corpus scheme preempts § 1983).

Brown is not controlling because it involved a claim of discrimination in federal employment; this case involves state employment, a critical distinction. In the legislative history of the relevant amendments to Title VII, Congress was silent regarding the exclusivity of remedies for federal employees, permitting the Court to infer Congress intended to preempt all non-Title VII remedies. With regard to state employment, however, the legislative history shows an explicit intent to leave untouched pre-existing avenues of relief available to state and local employees:

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.... Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate

...