Storey v. Board of Regents of Univ. of Wis. System

Decision Date22 January 1985
Docket NumberNo. 84-C-250-D.,84-C-250-D.
PartiesMaureen STOREY, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM and Milton L. Sunde, Defendants.
CourtU.S. District Court — Western District of Wisconsin

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 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 administrative remedy to the existing prohibition against discrimination perpetuated `under color of state law' as embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983.

H.R.Rep. No. 238, 92nd Cong., 2nd Sess., reprinted in 1972 U.S.Code Cong. & Ad. News 2137, 2154. That the majority clearly intended Title VII to be a nonexclusive remedy for state and local employees is corroborated by statements made by dissenters from the legislation:

3. Failure to Make Title VII an Exclusive Federal Remedy. Despite the enactment of title VII of the Civil Rights Act, 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. In view of the comprehensive prohibitions against discrimination contained in title VII, and the intent of the Committee bill to consolidate procedures and remedies under one agency, it would be consistent to make title VII the exclusive remedy.... However, our attempt to amend the Committee bill to make title VII an exclusive remedy ... was rejected.

Id. at 2175.

Brown itself makes clear that explicit legislative intent is controlling. In holding Title VII the exclusive remedy for federal employment discrimination, the Court distinguished a prior ruling that a private employee is not limited to Title VII. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Johnson the Court had held that Congress intended not to deprive private employees of alternative remedies previously available to them. "`The legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.'" Id. at 459, 95 S.Ct. at 1719, quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). Because there is an equally clear expression of congressional intent with regard to the legislation at issue here, as it affects state employment, this case is governed by Johnson rather than Brown.

Further, I think it not significant that the proof offered to support both a Title VII claim and a non-Title VII claim may be identical. Unlike the district court in Torres v. Wis. Dept. of Health and Social Services, 592 F.Supp. 922 (E.D.Wis.1984), I reject the view that when the claim asserted can be brought under Title VII as well as under another label, Title VII is the exclusive remedy. Congress recognized Title VII provided remedies coextensive with other forms of relief, such as those available under 42 U.S.C. § 1981. H.R.Rep. No. 238, supra, at 2154. Also, I find no indication in case law that the exclusivity of Title VII turns on whether the claim could be brought solely under Title VII. Hence I conclude that plaintiff is not limited to Title VII in her quest for relief from alleged discrimination in state employment.

Deciding that Title VII is not plaintiff's exclusive remedy does not end the inquiry, for I must still determine whether plaintiff can properly raise her particular non-Title VII claims. Although Congress intended to retain alternative remedies for discrimination in the context of state employment, it appears Congress intended to retain only those statutory remedies already in existence when Title VII was enacted. The drafters stated that "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. 238, supra, at 2154.

Even though § 1983 is a pre-existing remedy, it does not follow that every employment-related claim stated under § 1983 is permissible in an employment discrimination suit. Section 1983 provides a remedy for deprivation of rights secured by the "laws" of the United States. If the right sued upon under § 1983 is itself a right secured by Title VII, which contains its own detailed remedial provisions, a suit under § 1983 to vindicate that particular right may well be barred. In Great American Fed. S. & L. Assn v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Court held that a plaintiff could...

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