United States v. Gregory

• Decision Date: 21 March 1984
• Docket Number: Civ. A. No. 83-0094-D.
• Citation: 582 F. Supp. 1319
• Parties: UNITED STATES of America, Plaintiff, v. Jay GREGORY, Sheriff of Patrick County, Defendant.
• Court: U.S. District Court — Western District of Virginia

582 F. Supp. 1319

UNITED STATES of America, Plaintiff, v. Jay GREGORY, Sheriff of Patrick County, Defendant.

Civ. A. No. 83-0094-D.

United States District Court, W.D. Virginia, Danville Division.

March 21, 1984.

John M. Gadzichowski, Senior Trial Atty., Melissa P. Marshall, Trial Atty., Dept. of Justice, Civ. Rights Div., Washington, D.C., for plaintiff.

Anthony P. Giorno, Stuart, Va., for defendant.

MEMORANDUM OPINION

KISER, District Judge.

The United States brought this action on June 29, 1983, against Jesse W. Williams in his official capacity as Sheriff of Patrick County, alleging that the Sheriff of Patrick County has engaged and continues to engage in employment practices that discriminate against women and deprives them of employment as deputies in the Sheriff's Department. The case was properly referred to the Department of Justice by the Equal Employment Opportunity Commission (EEOC). A charge of discrimination was filed with the EEOC by Doris Scales on July 30, 1980, alleging that Sheriff Williams unlawfully refused to hire her in May, 1980 as a deputy on the basis of her sex.

Sheriff Williams was elected in November of 1979 and assumed office on January 1, 1980. He served as Sheriff until January 1, 1984, when Jay Gregory assumed that office as a result of his defeating Sheriff Williams in the November, 1983 election. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Jay Gregory was substituted as Defendant in this action. Trial was held on January 11, 12 and 23, 1984 in Danville.

The United States has many legal barriers to overcome in this case¹, not the least of which is the paucity of proof of discrimination. However, because of my ruling on the issue of whether the Sheriff's deputies are "employees" for purposes of Title VII, only those facts necessary for the decision will be discussed. The Defendant raised this issue in a Motion to Dismiss filed on July 29, 1983, a Motion for Summary Judgment filed on December 20, 1983, and a Motion for Directed Verdict at trial.² The issue was briefed and argued by the parties, and the case is now ripe for disposition.

In his Motions, Defendant argues that the Patrick County Sheriff's Department (PCSD) deputies are not "employees" within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(f). The question of whether or not a deputy sheriff of Patrick County is an "employee" within the meaning of 42 U.S.C. § 2000e(f) is a question of federal, rather than state, law. It is to be ascertained through consideration of the statutory language of Title VII, its legislative history, existing federal case law, and the particular circumstances of the case at hand. However, state law is relevant insofar as it describes the position, including the duties of a particular position, and how the holder of such a position is hired, supervised and fired. Calderon v. Martin County, 639 F.2d 271 (5th Cir. 1981).

Patrick County is a rural county located in Southwest Virginia. Testimony was that the population of the county was approximately 17,000 and the size geographically was 469 square miles. The PCSD has a full-time staff of twenty-two persons, eighteen of whom are designated as "sworn officers" or deputies. Under Sheriff Williams, fifteen of the sworn officers were male, with two being assigned as supervisors, two as investigators, four as road deputies, two as court security deputies, and five as correctional officers. One female was assigned as civil process server³ and two are assigned as clerksteno/matrons.⁴

Under Virginia law, the Sheriff is a constitutional officer, elected by the citizens of the county which he serves. Constitution of Virginia, Art. VII, Sec. 4. By statute, deputies are appointed by the Sheriff. Va. Code Ann. § 15.1-48. Under the provisions of this section, the terms of the deputies of constitutional officers in Virginia end with the term of their principal. Ramey v. Harber, 431 F.Supp. 657 (W.D.Va.1977), aff'd in part, rev'd in part, 589 F.2d 753 (4th Cir.1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979). Va.Code Ann. § 15.1-131.8 establishes minimum qualifications for a deputy sheriff: He must be a citizen of the United States, undergo a background investigation, have a high school education or pass the G.E.D. examination, possess a valid Virginia driver's license, and undergo a complete physical examination. This section also provides that upon the Sheriff's request, the Department of Criminal Justice Services may waive these minimum requirements.

Further, Va.Code Ann. § 15.1-48 provides deputies may discharge any of the official duties of their principal during his continuance in office. This section further provides that a deputy is under the control and supervision of the sheriff and has no civil service protection but serves at the pleasure of the sheriff. Thus, deputies have no expectations of continued employment nor are they covered by the "Policeman's Bill of Rights". Va.Code Ann. § 2.1-116.1, et seq. Deputy sheriffs, therefore, have no property interest in their positions as deputies and are not entitled to any due process rights as a result of state law. See Hutto v. Waters, 552 F.Supp. 266 (E.D.Va.1982); Hopkins v. Dolinger, 453 F.Supp. 59 (W.D.Va.1978).

Under Virginia law, if the state is to help pay the cost, the number and salaries of full-time deputies appointed by the sheriff are fixed by the Virginia State Compensation Board. Va.Code Ann. § 14.1-70 and § 14.1-73.1:2. The selection of the person to fill such positions, however, is wholly within the discretion of the sheriff.

Judge Williams recently delineated the relationship between a sheriff and his deputy in Virginia:

In Virginia ... the relationship between the sheriff and his deputy is such that he is not simply the `alter ego' of the sheriff, but he is one and the same as the sheriff. The public policy of Virginia with regard to the relationship between the sheriff and his deputy is grounded in the common law and is stated in Miller v. Jones, 50 Va. (9 Gratt.) 584 (1853) ... Not only is the sheriff liable civilly for the acts of his deputy in Virginia, but he is also liable criminally and can be fined for the conduct of his deputy. The most significant parts of the foregoing law which is today the public policy of Virginia are the words that as between a sheriff and his deputy they are as `one person'. There can be no doubt that the statute regarding the appointment of deputies in Virginia is grounded upon a very good foundation. Since the sheriff is liable absolutely for all the acts of his deputies, the sheriff should have complete and unfettered control over who his deputies are .... Whited v. Fields, 581 F.Supp. 1444 at 1454-1455 (W.D.Va. March 5, 1984).

Thus, it is clear that in such a relationship there is a high degree of accountability between a sheriff and deputy and "equates with the confidential relationship of a sheriff deputy's employment." McBee v. Jim Hogg County, 703 F.2d 834, 840 (5th Cir.1983). As the court also noted in McBee in regard to this relationship in Texas, such accountability raises the public's view of deputies as representatives of the sheriff thereby increasing the necessity for loyalty in that position. This, in my opinion, is also the case in Patrick County, Virginia.

Moreover, being an elected official, the sheriff must depend on his deputies to be his eyes and ears as to public sentiment and opinion. Unofficially, it is the deputy's job to know what is going on in his assigned area of the county that might affect the sheriff favorably or adversely in the eyes of the voting public. A performance of this aspect of the deputy's job is well illustrated by the testimony of Clifford Boyd.

Mr. Boyd, a deputy who was assigned to the area of Patrick County in which Doris Scales lived, reported to the Sheriff that there was a lot of opposition to the appointment of Ms. Scales to a position in the Sheriff's office. The Sheriff relied on this information and declined to give Ms. Scales a job.⁵ Boyd's testimony further illustrates that for a deputy's assigned area of the county, he is the sheriff and the problems, complaints, etc. which must be dealt with by the Sheriff in that geographic area of the County are brought to the deputy initially. In a very real and practical sense, the deputies stand for re-election as does the Sheriff himself.

Looking now to the statutory language of the Act, Title VII defines the term "employee" as:

... an individual employed by an employer, except that the term "employee" shall not include 1 any person elected to public office in any State or political subdivision of any state by the qualified voters thereof, or 2 any person chosen by such officer to be on such officer's personal staff, or 3 an appointee on the policy-making level or 4 an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. 42 U.S.C. § 2000e(f).

Patrick County deputy sheriffs could conceivably fall into the second or third categories of the exemption, but it appears that No. 2, the personal staff exemption is the most appropriate one. Consequently, I must determine whether the "personal staff" exemption applies in this case.

The legislative history of this section demonstrates that Congress intended that this exemption be construed narrowly.⁶ However, it is equally clear from the Senate debate on this issue that the number of persons who might be considered "personal assistants" to an elected official was not as important as their function in relation to the official.⁷ At this point, a review of cases in this area is instructive.

In Ramirez v. San Mateo County District Attorney's Office, 639 F.2d 509 (9th Cir.1981), the plaintiff sued the...