Weiss v. Marsh, Civ. A. No. 81-65-S.

• Decision Date: 22 January 1982
• Docket Number: Civ. A. No. 81-65-S.
• Citation: 543 F. Supp. 1115
• Parties: Gennie WEISS, Plaintiff, v. John O. MARSH, Etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

543 F. Supp. 1115

Gennie WEISS, Plaintiff, v. John O. MARSH, Etc., et al., Defendants.

Civ. A. No. 81-65-S.

United States District Court, M. D. Alabama, S. D.

October 20, 1981.

On Motion for Reconsideration January 22, 1982.

Charles M. Crook, Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Ala., for plaintiff.

Maj. Richard W. Wright, Falls Church, Va., for all defendants except Crenshaw, individually.

Charles Price, Montgomery, Ala., for Milton Crenshaw, individually.

OPINION

VARNER, Chief Judge.

This cause is now before the Court on Defendants' motion for summary judgment filed herein August 31, 1981.

LAW. The standard to be applied in considering a motion for summary judgment is contained in Federal Rule of Civil Procedure 56(c):

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

From the text of the rule, it is clear that "in order to avoid the grant of summary judgment, a party must demonstrate both the existence of a material fact and a genuine issue as to that material fact." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Furthermore, it appears that "a fact is material if it constitutes a legal defense to an action." Kennett-Murray, supra, citing C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 2725, p. 506 (1973). "The party seeking summary judgment has the burden of demonstrating that there exists no genuine issue as to any material fact, (citations omitted)." United States v. An Article of Food, etc., 622 F.2d 768, 771 (5th Cir. 1980). "In reviewing the pleadings, depositions, answers to interrogatories, admissions, and affidavits to determine whether a genuine issue of material fact exists, a court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment, (citations omitted)." An Article of Food, supra, at 771.

EXCLUSIVITY OF 42 U.S.C. 2000E-16. Defendants' first ground for summary judgment is based on their contention that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, provides the exclusive remedy for Plaintiff's complaints of discrimination. The United States Supreme Court held in Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976), that "§ 717 of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e-16 provides the exclusive remedy for claims of discrimination in federal employment."

As against these Defendants in their official capacities, the exclusive remedy for employment discrimination in this case is 42 U.S.C. § 2000e-16. In addition, it appears that under § 2000e-16(c) the only proper Defendant is the Secretary of the Army in his official capacity. Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir. 1980).

Plaintiff also states causes of action for employment discrimination under 42 U.S.C. §§ 1981, 1983, 1985 and 42 U.S.C. §§ 2000e, et seq., (other than under § 2000e-16), against the Defendants Marsh, Crenshaw and Daniels in their individual capacities. In Newbold, supra, the United States Court of Appeals for the Fifth Circuit held that the language of the Supreme Court in Brown, supra, was sufficiently broad to make a 42 U.S.C. § 2000e-16 action against the head of a department the exclusive remedy for discrimination in federal employment. The Court in so holding precluded even actions against individuals which were brought to redress federal employment discrimination.

As for the tort cause of action alleged by the Plaintiff, this Court is of the opinion that it cannot be said that no state of facts could be alleged so as to state such cause of action, even in the face of the exclusivity of 42 U.S.C. § 2000e-16.

In addition to the charges of discrimination in employment, Plaintiff alleges a violation of the Equal Pay Act, 29 U.S.C. § 206(d). Defendants argue that such an action may not be maintained since Brown, supra, precludes all actions for federal employment discrimination other than one brought under 42 U.S.C. § 2000e-16. While the term "discrimination" obviously can include discrimination in pay, it does not appear that 42 U.S.C. § 2000e-16 was intended by Congress to preempt an action for violation of the Equal Pay Act, even though it does preempt other claims alleging employment discrimination against a federal agency. That 42 U.S.C. § 2000e-16 — as interpreted by Brown, supra — does not preempt an Equal Pay Act action appears from the circumstances of congressional consideration of amendments to § 717 of the Civil Rights Act of 1964 and of amendments to § 3 of the Fair Labor Standards Act of 1938.

The United States Supreme Court in Brown, supra, made it clear that the preemption effect of 42 U.S.C. § 2000e-16 on other actions for federal employment discrimination resulted from congressional action on the 1972 amendments to the Civil Rights Act of 1964. However, in 1974 Congress amended the Fair Labor Standards Act of 1938 by making it applicable to federal government employees. See, Public Law 93-259, 1974 U.S.Code Cong. and Adm. News, pp. 2811, 2812 (hereinafter "Adm. News"). This amendment redefined the term "employer", as contained in 29 U.S.C. § 203(d), to include public agencies which are defined in 29 U.S.C. § 203(x) to include the Government and agencies of the United States. See, Adm.News, p. 2821. The effect of this amendment is to make 29 U.S.C. § 206(d), regarding sex discrimination in the payment of wages, applicable to the federal government. Under 29 U.S.C. § 216(b), an employee may maintain an action for a violation of § 206(d).

Obviously, it is not logical to argue that the 1972 action on amendments to the Civil Rights Act of 1964 could have had a preemptive effect on 1974 actions which created a remedy against the federal government for sex-based wage discrimination. While the 1972 action on the Civil Rights Act of 1964 might have preempted other actions for employment discrimination which existed at that time, this subsequent action must be held to, at a minimum, evidence a congressional change of intent as to the preemptive effect of 42 U.S.C. § 2000e-16. Accordingly, Plaintiff may maintain an action for the violation of the Equal Pay Act.

EQUAL PAY ACT DEFENDANTS. Defendants also argue that the Secretary of the Army is the only proper Defendant under the Equal Pay Act. While, logically, this would appear to be true, the Act's definition of "employer", 29 U.S.C. § 203(d), which states that an employer is:

"Any person acting directly or indirectly in the interest of an employer in relation to an employee * * *",

may require a different result. Defendants admit that the Department of the Army is an employer. It would appear, therefore, that Defendants Marsh, Crenshaw and Daniels might qualify as persons acting directly or indirectly in the interest of the Department of the Army in relation to Plaintiff. Consequently, since "person" is defined in § 203(a) to include an individual, a 29 U.S.C. § 216(b) action would appear to be maintainable against the individual Defendants as employers. While this result may seem unusual, it appears to be mandated by the statutory language, and Defendants have not cited any case law or legislative history to this Court which would require a different ruling. Based on the foregoing, a ruling granting summary judgment on this question — whether the Secretary of the Army is the only proper Defendant under the Equal Pay Act — would be premature.

PERSONAL JURISDICTION OVER DEFENDANT MARSH. Defendants argue that this Court lacks personal jurisdiction over the Secretary of the Army, Mr. Marsh, in his individual capacity. This contention is based on Defendants' assertion that Mr. Marsh does not have sufficient contacts with the State of Alabama to meet the constitutional standards promulgated by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Insofar as this action is one for federal employment discrimination, as stated earlier, Brown, supra, and Newbold, supra, have disallowed all actions alleged against individuals, except that action under 42 U.S.C. § 2000e-16. Accordingly, the minimum-contacts argument is irrelevant as regards those actions.

There remains, however, Plaintiff's action under the Equal Pay Act. Defendants base their argument regarding Mr. Marsh's minimum contacts on Thames v. Gunter-Dunn, Inc., 373 So.2d 640 (Ala.1974). However, assuming that this is a State law question, the argument — that jurisdiction over individuals or employees of the government may not be predicated upon jurisdiction over the government itself — is not without exception. See, Thames, supra, at 641. If it can be shown that the individual employees of the government acted outside the "scope of their employment" or "ultra vires their authority" with the government, then it is possible that jurisdiction might exist. See, Penn v. Schlesinger, 490 F.2d 700, 705 (5th Cir. 1973), citing Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Cf., Donner v. Tams-Witmark Music Library, 480 F.Supp. 1229 (E.D.Pa. 1979). Also, since the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., might, in view of the government's special authority and control over its employees, be interpreted to allow a suit against an individual government employee, the individual's contacts with the State may well be those made through government service. See, Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981); Donner v. Tams-Witmark, supra, at 1230. In such a Fair Labor Standards or Equal Pay Act case, if, under federal law the individual employee is not shielded by immunity from individual liability, then it would be illogical as a federal matter to "permit a government...