Strong v. Demopolis City Bd. of Ed.

Decision Date10 June 1981
Docket NumberCiv. A. No. 81-0090-H.
Citation515 F. Supp. 730
PartiesFrances Webb STRONG, Plaintiff, v. DEMOPOLIS CITY BOARD OF EDUCATION, et al., Defendants.
CourtU.S. District Court — Southern District of Alabama

Kenneth L. Thomas, Alabama Education Association, Montgomery, Ala., for plaintiff.

Hugh A. Lloyd, Demopolis, Ala., for defendants.

MEMORANDUM OF DECISION

HAND, District Judge.

In this case a female who serves as both a physical education teacher and as a coach seeks damages, equitable, and declaratory relief for alleged sex-based discrimination in employment from the Demopolis City Board of Education and the members of the Demopolis City Board of Education. The plaintiff claims remedies under the fourteenth amendment, 42 U.S.C. § 1983, Title VII, the Fair Labor Standards Act, and Title IX of the Education Act of 1972. The Court has before it the motions of the defendants to dismiss the claims alleged in both the original and the amended complaints.

I. Fourteenth Amendment

In part the "plaintiff avers that she would have been paid at a higher rate of pay for her coaching duties but for her sex. As such, the action of the defendants in failing and refusing to pay plaintiff on an equal basis with male coaches violates rights guaranteed to plaintiff under the Fourteenth Amendment to the United States Constitution ...." Complaint at ¶ 17. "As such, plaintiff is seeking relief under the Fourteenth Amendment ...." Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss at 3 (filed Apr. 6, 1981).

The defendants argue the eleventh amendment immunizes them from suit in federal court under the fourteenth amendment. Contra, Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, no relief is available, the defendants conclude, under the fourteenth amendment.

The Court agrees that no claim upon which relief could be granted is stated under the fourteenth amendment. However, the Court bases its conclusion on different grounds than the defendants: the fourteenth amendment does not afford an implied cause of action in general and for employment discrimination in particular.

The federal courts, and this Circuit in particular, have been hesitant to find causes of action arising directly from the Constitution. Our reluctance stems from many concerns, not the least of which is our awareness that the framers of the Constitution saw fit to entrust the job of legislating to Congress .... Congress has provided a means of seeking relief against state officials who violate the Constitution : 42 U.S.C. § 1983. ... Our jurisdiction has not been further established.

Hearth, Inc. v. Department of Public Welfare, 612 F.2d 981, 982 (5th Cir.), modified, 617 F.2d 381 (5th Cir. 1980) (per curiam). Because a substantial claim that a remedy may be implied from the federal constitution is enough for jurisdiction, 13 C. Wright & A. Miller, Federal Practice and Procedure § 3562 (Supp.1980), the claim which the plaintiff seeks to imply from the fourteenth amendment is dismissed for failure to state a claim1 rather than for lack of subject-matter jurisdiction.2

II. 42 U.S.C. § 1983

The rights created by the fourteenth amendment are enforced against persons who act under color of state law through 42 U.S.C. § 1983. Any rights afforded a woman to be free from sex discrimination in violation of the equal protection clause of the fourteenth amendment can be vindicated under 42 U.S.C. § 1983. The defendants advance several arguments in support of their contention that the plaintiff has failed to state a claim upon which relief can be granted under 42 U.S.C. § 1983. The argument may be summarized as follows: (1) relief under section 1983 is available only to blacks; (2) relief is available only where a plaintiff proves that the defendants failed to act in good faith; (3) a school board is not a person within the meaning of section 1983; and (4) the plaintiff failed to exhaust administrative remedies.

None of these arguments is persuasive. First, section 1983 affords a remedy to any plaintiff, regardless of the plaintiff's skin color, for action taken by a defendant under color of state law which deprives the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. No authority need be cited to support this fundamental statement of law. Second, although school board members are entitled to plead qualified immunity as an affirmative defense to liability in their individual capacity the burden of pleading and proof is upon the defendant. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The availability of the defense of qualified immunity does not bar a 1983 action against a defendant. It only provides an affirmative defense. Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) (discussing qualified immunity). Third, the Supreme Court had laid to rest any doubts that school boards are not persons within the meaning of 42 U.S.C. § 1983. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Fourth, the defendants have made no showing that adequate administrative remedies exist which would require the plaintiff to exhaust those remedies before filing this 1983 action. While exhaustion of adequate state administrative remedies can be a prerequisite to actions under section 1983, Patsy v. Florida International University, 634 F.2d 900 (5th Cir. 1981) (en banc), the defendants have not demonstrated that exhaustion is required in this case. For these reasons the motion of the defendants to dismiss the claim under 42 U.S.C. § 1983 for failure to state a claim upon which relief could be granted is denied.

III. Title VII

Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), provides in pertinent part:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ....

The defendants challenge the Court's jurisdiction of plaintiff's Title VII claim on the ground plaintiff's EEOC complaint was not timely filed.

In determining the timeliness of plaintiff's administrative complaint, the United States Supreme Court's decision rendered in Delaware State College v. Ricks, ___ U.S. ___, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), would require a precise identification of the "unlawful employment practice" of which plaintiff complains. The complaint, as amended, describes the unlawful employment practice complained of in the following manner:

13. Prior to the 1977-78 school year, male coaches who coached boys' activities (sports) were paid coaching supplements. Prior to the 1977-78 school year plaintiff was not paid a supplement for her coaching duties. Plaintiff received her first coaching supplement during the 1977-78 school year.
13(a). Plaintiff avers that throughout her employment as a coach in the defendant school system she has been consistently paid less than male coaches who performed the same work.
14. Coaching girls' activities (sports) requires at least the same skills, efforts and responsibilities as coaching boys' activities (sports) and is performed under similar working conditions.
15. On or about January 15, 1980, the former superintendent of education of the Demopolis City Board of Education advised plaintiff she would receive $300.00 per activity (sport), not to exceed two (2) activities (sports) at $600.00 as supplemental pay for her coaching duties.
15(a). On or about February 11, 1980, plaintiff was granted the opportunity to appear before the defendant Board and inquire into why she was being paid as described in paragraph 15 of the complaint.
16. It was during plaintiff's appearance before the defendant Board on or about February 11, 1980, that plaintiff learned that male coaches in the defendant school system were being paid $630.00 or higher per activity (sport) and received raises as necessary or when desired as supplement pay for their coaching duties.
17. Plaintiff avers that she would have been paid at a higher rate of pay for her coaching duties but for her sex. As such, the action of the defendants in failing and refusing to pay plaintiff on an equal basis with male coaches violates rights guaranteed to plaintiff under Title 42 U.S.C. § 2000e, et seq.

In sum, plaintiff alleges she is a coach who is assigned various girls' activities (sports) and is paid a coaching supplement for her coaching responsibilities as are the male coaches who coach boys' activities (sports). However, plaintiff is not paid for her coaching duties on an equal basis with the male coaches. Plaintiff attributes this to her sex. Plaintiff further alleges that throughout her employment as a coach she has been consistently paid less than male coaches who perform the same duties.

Plaintiff avers she was advised of the rate of pay she would receive for her coaching duties on January 15, 1980 and on February 11, 1980, during an appearance before the defendant Board to question the same, learned that the male coaches were being paid at a higher rate of pay.

Under Ricks, the next inquiry is when did the alleged discrimination occur. 66 L.Ed.2d at 439. This circuit views sex-based discrimination in pay to be a continuing violation. Clark v. Olinkraft, Inc., 556 F.2d 1219 (1977). This is so because each time the employer pays its employees on the basis of a discriminatory scale a new act of discrimination is committed. Ricks mandates this result with its focus upon the unlawful employment practice.

Additionally the doctrine of equitable tolling operates to make the EEO complaint timely. The alleged disparity in pay between male and female coaches is the type of on-going violation which is peculiarly within the knowledge of the employer. Employees are ordinarily not privy to knowledge about the salaries received by co-employees. The complaint affirmatively alleges a lack of knowledge concerning the discrimination in pay, and the Court must...

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    ...Airlines, Inc., 567 F.2d at 458; Burkey v. Marshall County Board of Education, 513 F.Supp. at 1098. Cf. Strong v. Demopolis City Board of Education, 515 F.Supp. 730, 735 (S.D.Ala.1981) (applying Title VII continuing violation theory in Equal Pay Act case to award back pay for period greater......
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