White v. Dallas Independent School Dist.

• Decision Date: 06 October 1978
• Docket Number: No. 76-1990,76-1990
• Citation: 581 F.2d 556
• Parties: 18 Fair Empl.Prac.Cas. 204, 18 Empl. Prac. Dec. P 8655 Mrs. Patsy Ruth WHITE, Plaintiff-Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 556

581 F.2d 556

18 Fair Empl.Prac.Cas. 204, 18 Empl. Prac.

Dec. P 8655

Mrs. Patsy Ruth WHITE, Plaintiff-Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

No. 76-1990.

United States Court of Appeals Fifth Circuit.

Oct. 6, 1978.

Edith L. James, Dallas, Tex., Joel G. Contreras, Mexican American Legal Defense, San Francisco, Cal., for plaintiff-appellant.

Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, Raj K. Gupta, Atty., E. E. O. C., Washington, D. C., for amicus curiae.

Lee Smith, Charles W. Stuber, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, Chief Judge, TUTTLE, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.

THORNBERRY, Circuit Judge:

In this case the En banc court must determine whether a Texas statute designating District and/or County Attorneys as the appropriate state or local officials to receive notice of an alleged unlawful employment practice, Title VII, 42 U.S.C. § 2000e-5, triggers that same section's requirement for exhaustion of state remedies prior to the initiation in federal district court of a sex discrimination in employment action.

Patsy Ruth White, a former Dallas Independent School District teacher, was employed as a permanent substitute teacher certified to teach grades one through five. In August 1972, Mrs. White, acting pursuant to the then-current Dallas ISD policy on pregnancy, informed the Superintendent of Schools that she was pregnant. Although Dallas ISD's written policy would not have permitted Mrs. White to begin employment that fall because her child's expected birth date was in November, Mrs. White was assigned to teach music and art at Harrell Budd Elementary. That assignment was terminated at the end of one day. Mrs. White alleges that she was terminated solely by reason of an impermissible school district policy on teacher pregnancy and that she has been unable to secure another teaching job since the date of termination.

In August 1973, Mrs. White filed sworn, written charges with the EEOC alleging denial of her rights under Title VII. In July 1974 and again in January of 1975, she was advised that the EEOC had made a determination that reasonable cause to believe Title VII had been violated existed. In July of 1975, the EEOC advised Mrs. White that it had been unable to secure compliance within the statutory time limit and that while the commission would not institute action itself, she was entitled to sue in federal district court within ninety days from the receipt of the letter.

Mrs. White then filed the present suit relying upon Title VII sex-based discrimination and additionally upon 42 U.S.C. § 1983 and seeking an injunction against the Dallas ISD's further use of its maternity leave policy as well as an award of reinstatement and back pay. The district court dismissed the suit for want of jurisdiction because the plaintiff, Mrs. White, had failed to exhaust her state remedies under Tex.Rev.Civ.Stat.Ann. Art. 6252-16. It also ruled that Section 1983 jurisdiction was not available to Mrs. White because the school district was not a "person" within the meaning of that statute. A panel of this court upheld the school district's contentions that Mrs. White had failed to exhaust her state remedies. We granted an en banc hearing to resolve that issue and to decide whether a statutory interpretation generally requiring deferral necessarily means that Mrs. White's case must be dismissed.

I. Exhaustion of State Remedies

The requirement for exhaustion of state remedies is set out in Section 706(c) of Title VII:

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . .

42 U.S.C. § 2000e-5(c). The statute on its face sets out three requirements. The practice alleged must violate the federal law, Title VII; it must also violate a state or local law prohibiting the practice alleged; the state must have set up some mechanism to deal with the violation. That last requirement is fulfilled if the state has either established a state or local authority or authorized an existing state or local authority that is empowered to do one of three things: to grant relief from the practice; to seek relief from the practice; or to institute criminal proceedings with respect to the practice. 42 U.S.C. 2000e-5(c).

Mrs. White alleged that she was refused employment solely on the basis of her pregnancy and that the refusal was sex-based discrimination within the meaning of Title VII and the Texas statute. The Texas statute prohibits certain acts of gender-based discrimination by public officials or employees, including refusal to hire because of sex and discharge because of sex. Tex.Rev.Civ.Stat.Ann. Art. 6252-16(1). ¹ The statute permits an aggrieved individual to institute an action for civil relief, including the granting of a temporary injunction or a restraining order, if the individual establishes that there is reasonable cause to believe that an officer or employee has committed a statutory violation. It also makes knowing violation of the statute a misdemeanor punishable by a fine of not more than one thousand dollars or one year in the county jail. Finally, it designates district and county attorneys as the state or local officials to receive notice under 42 U.S.C. § 2000e-5(c), Supra. The Texas statute thus fulfills the final requirement of the federal statute, Section 706(c), by authorizing a state or local authority to institute criminal proceedings with respect to alleged unfair employment practices upon receipt of the notice of unfair practice.

Mrs. White has argued, and the EEOC has taken up the refrain, that a state must show some special concern beyond a general authorization to prosecute under general criminal jurisdiction to be regarded as a state with a deferral statute. She relies heavily upon General Insurance Company of America v. Equal Employment Opportunity Commission, 491 F.2d 133 (9 Cir. 1974). In that case the Ninth Circuit held that a Washington statute prohibiting wage discrimination based on sex and making that discrimination a misdemeanor was insufficient to require the federal agency to defer to a state authority. It rejected the argument that the state or county prosecutor might qualify as an appropriate agency through his general authority to institute criminal proceedings. The court said:

What the section requires is a showing of such state concern in the specific area of unfair employment practices as to result in the establishment or authorizing of an agency to act in this area. If it had been intended that the general authority of the state attorney to prosecute crime should suffice, there would have been no need to provide that the state or local authority should be empowered to institute criminal proceedings. All that would have been necessary would have been to make the offense a crime.

We think that the Washington statute and that of Texas are distinguishable because the Texas district and county attorneys act in regard to unfair employment practices under Article 6252-16, not under their general authority, but under authority specifically given to them by the statute.

The statutory language makes clear that states may utilize existing structures for the redress of discrimination. That is the patent meaning of the statutory language "establish Or authorize." ² If a state chose to establish a new agency or to expand an agency into new and unfamiliar territory, it would necessarily have to be specific in its delineation of authority. When, however, a state seeks to use an already existing structure, as in the present case, it is enough to inform the authority of its duty if the authority is designated to receive the required notice. Whole sections of Texas statutes are devoted to the required organization of the district and county attorney offices ³ and to the requirements for processing misdemeanor complaints. ⁴ It is unnecessary for them to be repeated in Article 6252-16.

Mrs. White argues that this power in the district and county attorneys is not sufficient because it does not afford her remedies "comparable to" those available through the EEOC. We disagree. The heart of the deferral requirement is that the state must prohibit the act of discrimination complained of. Nueces County Hospital District v. E. E. O. C., 518 F.2d 895 (5 Cir. 1975). If the act is prohibited, deferral is required to permit the state to use the methods of reconciliation available under its laws. ⁵ The state need not provide all of the remedies available under Title VII. Crosslin v. Mountain States Telephone and Telegraph Co., 422 F.2d 1028 (9 Cir. 1970), Cert. granted, opin. vacated & remanded for further consid., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971). Indeed, Section 706(b) itself speaks in terms of the ability of state authorities to grant or seek relief or to institute criminal proceedings, not in terms of the ultimate remedy. Id. at 1030.

The Texas statute affords a complainant some but not all of the relief available under the federal statute. We have already discussed the potential misdemeanor liability. The Texas statute also provides that an alleged discriminatee may initiate an action for an injunction....