Torres v. WIS. DEPT. OF HEALTH & SOCIAL SERVICES

• Decision Date: 06 August 1984
• Docket Number: No. 83-C-627,83-C-628 and 83-C-629.,83-C-627
• Citation: 592 F. Supp. 922
• Parties: Raymond J. TORRES, Plaintiff, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Taycheedah Correctional Institution, Nona J. Switala, Individually and in her Official Capacity, Certain Unnamed Defendant Employees of the Wisconsin Department of Health and Social Services, Individually and in Their Official Capacity, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

592 F. Supp. 922

Raymond J. TORRES, Plaintiff, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Taycheedah Correctional Institution, Nona J. Switala, Individually and in her Official Capacity, Certain Unnamed Defendant Employees of the Wisconsin Department of Health and Social Services, Individually and in Their Official Capacity, Defendants.

Nos. 83-C-627, 83-C-628 and 83-C-629.

United States District Court, E.D. Wisconsin.

August 6, 1984.

Dale L. English, Colwin, Fortune, Colwin & Pomeroy, Fond du Lac, Wis., for plaintiff.

John Sweeney, Asst. Atty. Gen., Madison, Wis., for defendants.

DECISION AND ORDER

WARREN, District Judge.

By its short Order of July 13, 1984, in this matter, the Court announced its decision to grant the defendants' motion to limit the scope of this action to matters cognizable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., effectively dismissing the plaintiffs' second and third claims for relief under 42 U.S.C. §§ 1985 & 1986 and 42 U.S.C. § 1983, respectively.

With today's supplemental memorandum, the Court explains its decision of July 13, 1984.

BACKGROUND

As the Court recounted in its Decision and Order of October 14, 1983, this action arises out of the adoption by the Wisconsin Department of Health and Social Services of a bona fide occupational qualification (BFOQ) plan under which certain posts at the Taycheedah Correctional Institution are staffed by women only. That plan, announced in mid-1980 and made effective on September 1, 1982, designated fifteen of eighteen Corrections Officer 3 posts at Taycheedah as BFOQ positions in an effort to ensure the privacy of female inmates incarcerated there.

Plaintiffs, all male employees of the Wisconsin Department of Health and Social Services at Taycheedah, have brought this action to challenge the validity of the BFOQ program under Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, the plaintiffs allege that the creation and implementation of the plan was arbitrary and capricious; that it discriminates against males in general on the basis of sex; that it discriminates against males in general on the basis of sex; that it has had an adverse impact on plaintiffs in particular in that they have been demoted from Level 3 to Level 2 Corrections Officers; and that this change in their employment status has caused them to suffer financial loss, a diminution of employment opportunities, and injury to their personal and professional reputations. They also allege violations of 42 U.S.C. §§ 1985 and 1986, based on a conspiracy among the defendants to interfere with the plaintiffs' civil rights, and violations of 42 U.S.C. § 1983, based on the actions of defendant Nona J. Switala, superintendent at the Taycheedah Institution, in implementing the BFOQ plan.

By their complaints, filed in separate actions on May 11, 1984, and consolidated for purposes of discovery and trial by the Court's Order of August 9, 1984, the plaintiffs seek reinstatement to their former positions as Corrections Officers 3, compensation for the amount of overtime and retirement benefits lost as a result of their demotions, other compensatory and punitive damages totaling over $1 million, and attorneys' fees and costs.

In their answer of June 1, 1983, defendants deny any violations of federal law in connection with their implementation of the BFOQ program and allege seven affirmative defenses — among them, that the actions of the Department of Health and Social Services were undertaken to ensure the privacy of female inmates at the Taycheedah facility and, as such, were reasonably required for the normal operation of the institution. By its Decision and Order of October 14, 1984, the Court concluded that none of the defendants' affirmative defenses is so insufficient that it must be stricken, as requested by the plaintiffs in their motion pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.

On November 18, 1983, the defendants filed the present motion to limit the scope of this action to matters cognizable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. As the plaintiffs have noted in their responsive brief, the motion, in effect, constitutes a request to eliminate the plaintiffs' second and third claims for relief and, as such, will be construed by the Court as a motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In their supporting memorandum, the defendants note, first, that the remedial provisions of 42 U.S.C. §§ 1985 & 1986, upon which the plaintiffs' second claim for relief is based, are properly invoked in tandem, since an action will not lie under section 1986 if it cannot be maintained under section 1985. Most importantly, however, the defendants argue that the plaintiffs' allegation of violations of section 1985(3)¹ may not be premised on conduct also violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. They contend, citing Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 987 (1979), that Title VII effectively displaces other causes of action — such as those under 42 U.S.C. §§ 1985 & 1986 — arguably available as methods of asserting substantive rights in the context of employment discrimination.

Similarly, the defendants attack the plaintiffs' second cause of action, premised on 42 U.S.C. § 1983, on the basis that it, too, is preempted by the exclusive remedial scheme of Title VII. While acknowledging that the United States Supreme Court has yet to speak as definitively on the viability of actions brought under both section 1983 and Title VII as it has with respect to overlapping section 1985 and Title VII claims, the defendants direct this Court's attention to authority for the proposition that the specific statutory scheme for remedying discrimination in federal employment preempts the more general remedial statutes enacted by the Congress. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Likewise, they note those cases in which other precisely-drawn, structurally complete laws such as Title VII have been held to preclude companion causes of action under section 1983. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

In addition, the defendants argue that the very balance, completeness, and structural integrity of Title VII's remedial scheme make it unlikely that the Congress intended it to be viewed as but a supplement to existing statutory remedies. Rather, the law was enacted as the exclusive means of combatting discrimination in the employment setting, thus preempting claims premised on the same set of facts but anchored under one of the post-civil war statutes, or so the defendants contend.

In their thoroughly-researched and well-written responsive memorandum, the plaintiffs argue, first, that their cause of action under 42 U.S.C. §§ 1985 & 1986 should not be dismissed since it is not premised on a Title VII-type violation but on a deprivation of rights secured by the Fourteenth Amendment to the United States Constitution. Specifically, the plaintiffs maintain that

... Section 1985(3) can play a role in employment discrimination cases where the actions of the defendant violate the United States Constitution....

Although the plaintiffs' third claim for relief alleging violations of both Sections 1985(3) and 1986 would not lie if based only on Title VII, said claim for relief will lie if based on a deprivation of a constitutional right or federal statute other than Title VII. Here the plaintiffs' third claim for relief under Sections 1985(3) and 1986 is based on rights granted by both Title VII and the Fourteenth Amendment, as can be seen by an examination of the wording of the third claim for relief. Said claim, therefore, must not be eliminated.

Plaintiffs' Brief In Opposition To Motion To Limit Scope Of Action at 6-7 (December 2, 1983).

The plaintiffs distinguish the decision of the United States Supreme Court in Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), on the basis that the conspiracy alleged in that case was purely private, whereas the present charge is of unequal treatment by the State of Wisconsin, wholly within the sphere of activity proscribed by the Fourteenth Amendment. In this context, the plaintiffs suggest that while Novotny does preclude actions under section 1985 for deprivations of rights guaranteed by Title VII, it does not bar a section 1985 suit premised on conduct that violates both Title VII and the federal constitution. This, they maintain, is precisely the sort of action they have brought against defendant Switala — that is, one that springs from her conspiracy with "other unnamed defendants ... to willfully, wantonly, maliciously, and intentionally deprive the plaintiffs of their constitutional rights on the basis of their sex by the creation and implementation of the BFOQ plan at the TCI, in violation of Sections 1985(3) and 1986." Plaintiffs' Brief In Opposition To Motion To Limit Scope Of Action at 7-8 (December 2, 1983).

In response to the defendants' position that the third count in the complaint, brought under 42 U.S.C. § 1983, should also be dismissed, the plaintiffs note factual differences between the present action and those cases cited by the defendants in support of their motion — among them, that Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), turned on the exclusive nature of the remedies available to federal employees and that Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), focused on the relationship between section 1983 and the applicable habeas...