Crystal Henley, Plaintiff - Appellant, v. Sgt. Bill Brown, In his Individual and Official Capacity; Kansas City Missouri Board of Police Commissioners; Patrick McInerney, Acting Member of the Kansas City, Missouri Board of Police Commissioners; Alvin Brooks, Acting Member of the Kansas City, Missouri Board of Police Commissioners; Lisa Pelofsky, Acting Member of the Kansas City Missouri Board of Police Commissioners; Angela Wasson-Hunt, Acting Member of the Kansas City, Missouri Board of Police Commissioners; Mark Funkhouser, Mayor, Acting Member of the Kansas City, Missouri Board of Police Commissioners; Officer Michael Throckmorton, In his Individual & Official Capacity; Officer Dwight Parker, In his Individual & Official Capacity; Officer John Connor, An Alias Name For an Instructor at the Police Academy (In his Individual & Official Capacity); Officer John Doe, In his Individual & Official Capacity; Chief James Corwin, In his Official Capacity, Defendants - Appellees.
No. 11-2561
United States Court of Appeals FOR THE EIGHTH CIRCUIT
July 26, 2012
Appeal from the United States District Court for the Western District of Missouri. Submitted: February 15, 2012
Before LOKEN, BYE, and MELLOY, Circuit Judges.
Crystal Henley brought this action under
A. Facts.1
In May 2005, Henley enrolled in the Kansas City Police Academy (“Academy“) and began her training for becoming a police officer. The Academy is located in Jackson County, Missouri, and is staffed and operated by members of the Kansas City Police Department. Both the trainees and the trainers at the Academy are primarily male. Henley alleges during her time at the Academy four male trainers in particular—Michael Throckmorton, Bill Brown, Dwight Parker, and an officer, allegedly “John Conner“—discriminated against, sexually harassed, and physically assaulted her because of her gender while acting under color of state law. Henley‘s complaint provides the following examples in support of these allegations.
In late May or early June 2005, shortly after Henley enrolled at the Academy, Officer Michael Throckmorton asked Henley to conduct a “tactical recovery” exercise for thirty-five to forty minutes in a specific manner. None of the male trainees were asked to conduct the exercise in the same manner. Henley sustained a torn quad muscle as a result, suffered leg convulsions, and developed a large knot in her leg.
In July 2005, Throckmorton asked Henley to repeatedly jump over a crack in the gym mat during another training exercise. The commands lasted for the entire class session. As Henley performed the jumps, Throckmorton stared at her from a very close distance, concentrating on her breasts. At the end of the exercise,
The complaint further alleges Throckmorton disciplined Henley differently because of her sex by kicking her in the back for allegedly having bad posture during the performance of a push-ups exercise and by pulling her by the hair to a sit-up position during the performance of a sit-ups exercise for allegedly not having her hands “clasped tight around her head.” Complaint ¶ 18. Throckmorton also “screamed” at Henley on multiple occasions for allegedly failing to perform certain exercises; for being a “lazy quitter,” even though thirty male trainees had quit before she did; and for being a “chicken” for staying home after Sergeant Bill Brown demanded she go home because of her “raspy voice.” Id. at ¶¶ 15, 17, 19.
In September 2005, Throckmorton asked Henley to close her eyes during a training session. “While her eyes were closed, Throckmorton administered a brachial hit that dislocated her shoulder[.]” Id. at ¶ 19. When she did not show any pain, Throckmorton threatened to hit her again. Henley had to seek medical assistance for the injury she sustained as a result of the hit.
A month later, as an alleged part of training, Throckmorton used pepper spray on Henley‘s face. He used a new can of spray to allow for a high stream of carbon monoxide. The high stream opened Henley‘s right eye, causing damage to it. Henley again had to seek medical assistance for the injury.
Following the pepper spray incident, Henley left for the women‘s locker room to take a shower. As she was coming out of the shower, along with another female trainee, Brown entered the room and saw both of them fully undressed. Brown proceeded to leave the door to the locker room open as to allow other male officers to see the women.
In October 2005, Henley participated in a training exercise designed to teach trainees how to apply a choke hold to restrain an attacker. Henley was chosen to be the attackee in a simulated attack, which involved another male officer at the Academy. She applied the hold as directed. After she released the hold, however, the male officer, allegedly “John Conner,” attacked Henley from behind and physically assaulted her. It took four other officers to break the attack. Henley contends she attempted to report the incident, “but command staff did not listen.” Id. at ¶ 24.
As to Officer Dwight Parker, Henley asserts that in June 2005 Parker talked to her and another female trainee about the size of their breasts. Parker allegedly told Henley it would be difficult to take her seriously as a police officer because “her button down shirt would pucker” and reveal her bra. Id. at ¶ 11. Parker further stated he would work hard to assure Henley does not graduate from the Academy and “had taken a bet to see how fast ‘they’ could get rid of her.” Id. at 12. According to Henley, Parker suggested she is better suited to be “some rich Johnson [C]ounty man‘s wife” than a police officer. Id.
On November 8, 2005, Parker and Brown provided Henley with a memorandum, explaining their reasons as to why Henley should not graduate from the Academy. Henley was subsequently forced to leave the Academy and was unable
B. Procedural Posture
On October 15, 2010, Henley brought this action under
Henley subsequently filed a motion to amend or alter the judgment under
II. DISCUSSION
On appeal, Henley argues the district court erred in concluding Title VII provides the exclusive remedy for gender discrimination and dismissing her constitutionally-grounded claims brought under section 1983 for failure to comply with Title VII‘s procedural requirements.
A. Standard of Review
An “appeal from the denial of a
B. The Relationship Between Title VII and Section 1983
Characterizing Henley‘s employment discrimination claims as gender discrimination claims for which Title VII provides the exclusive remedy, the district court concluded Henley was required to comply with the Act‘s procedural requirements before seeking judicial review and could not escape Title VII‘s remedial scheme by only pleading constitutional violations under section 1983. As a preliminary matter, we must therefore determine whether Title VII provides the exclusive remedy for Henley‘s discrimination claims precluding her from asserting the claims under section 1983.
Every person who, under color [of law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
However, not all statutory violations may be remedied through section 1983. The Supreme Court has recognized two exceptions to the availability of section 1983 as a remedy for vindicating statutory rights. Middlesex Cnty. Sewerage Auth. v. Nat‘l Sea Clammers Ass‘n, 453 U.S. 1, 19 (1981). First, the Court has explained section 1983 does not afford a remedy for statutory violations unless the statute creates “rights, privileges, or immunities” within the meaning of section 1983. Id. Second, the Court has stated that “[w]hen the remedial devices provided in a particular [statute] are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at 20. In other words, section 1983 does not afford a remedy for statutory violations where “the governing statute provides an exclusive remedy for violation of its terms.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981) (internal quotation marks and citation omitted). And while the Supreme Court has yet to decide whether Title VII provides the exclusive remedy for discriminatory employment practices, thereby
In a line of cases, beginning with Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Court has recognized generally that Title VII does not preclude a public employee from seeking other remedies. In Alexander, for example, the Court concluded a private employee does not forfeit his private cause of action under Title VII if he first purses his grievance under a collective-bargaining agreement‘s non-discrimination clause. 451 U.S. at 49. The Court reasoned: “[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both applicable state and federal statutes[,] [including section 1981 and 1983]. The clear inference is that Title VII was designed to supplement rather than supplant, existing laws and institutions relating to employment discrimination.” Id. at 47-49 & n.7. Similarly, in Johnson v. Railway Express Agency, 421 U.S. 454 (1975), the Court observed that “[d]espite Title VII‘s range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.” 421 U.S. at 459. Rather, the Court stated, “the remedies available to the individual under Title VII are co-extensive with the individual‘s right to sue under . . . s 1981, and . . . the two procedures augment each other and are not mutually exclusive.” Id. (internal quotation marks and citation omitted).
Further, in Brown v. General Services Administration, 425 U.S. 820 (1976), the Court considered the narrow question of “whether s 717 of the Civil Rights Act of 1964 provides the exclusive judicial remedy for claims of discrimination in federal employment.” Id. at 821. Relying on the legislative history of section 717, the section which added federal employees to Title VII‘s coverage, the Court concluded Congress intended to create “an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” Id. at 829. The Court
Similarly, when presented with the narrow issue of whether section 704(a) of Title VII provides the exclusive remedy for retaliatory discharge claims in violation of section 704(a), the Court has held Title VII precludes an employee from seeking redress elsewhere. Great Am. Fed. Savs. & Loan Ass‘n v. Novotny, 442 U.S 366, 378 (1979). The specific issue before the Court in Novotny was “whether a person injured by a conspiracy to violate § 704(a) of Title VII” may seek redress for his injury through the remedial framework of section 1985(3). Id. at 372. The Court‘s inquiry focused largely on the fact section 1985(3) is a “purely remedial statute, providing a civil cause of action when some otherwise defined federal right—to equal protection of the laws or equal privileges and immunities under the laws—is breached by a conspiracy.” Id. at 376. But in the Court‘s opinion the right asserted under section 704(a) of the Act was not an “otherwise defined federal right” because it “did not even arguably exist before the passage of Title VII.” Id. at 376-77. The Court thus concluded the right asserted under section 704(a) was not an “independent” right for purposes of bringing a section 1985(3) action, and held the “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).” Id. at 378.
We discern the following principles from the Court‘s attempt to reconcile the remedies provided for in Title VII with other statutorily available remedies. First, Title VII provides the exclusive remedy for violations of its own terms and an employment discrimination plaintiff asserting the deprivation of rights created by Title VII must comply with the Act‘s procedural requirements before seeking judicial review. Second, a plaintiff may not invoke a purely remedial statute, such as section 1985(3), to redress a violation of a right conferred only by Title VII. However, when the employer‘s conduct violates not only rights created by Title VII, but also rights
The law in our circuit is consistent with these principles. The case that best illustrates this consistency is Foster v. Wyrick, 823 F.2d 218 (8th Cir. 1987). In Foster, a black inmate brought a section 1983 action alleging race discrimination in the assignment of inmate jobs under a disparate impact theory. Acknowledging both the Equal Protection Clause of the Fourteenth Amendment and Title VII confer an individual a right to be free of racial discrimination in employment, we considered whether any of these two independent grounds for relief supported appellant‘s disparate impact claim. Id. at 220. We rejected appellant‘s constitutional claim, explaining an act does not violate the Equal Protection Clause simply because it has a racially disproportionate impact. Id. at 220-21. Instead, to amount to a constitutional violation, the act must be committed with a “discriminatory racial purpose.” Id. at 221. In the absence of any allegations of intentional discrimination, we therefore concluded the Equal Protection Clause did not provide a ground for relief for appellant‘s section 1983 race discrimination claim. Id.
Recognizing, however, “Title VII permits a claim for employment discrimination to be based on disparate impact alone,” we next considered whether appellant could assert his Title VII disparate impact claim within the remedial framework of section 1983. Id. Guided by the Supreme Court‘s decision in Novotny, we held “[d]isparate impact claims, like retaliatory discharge claims . . . , were created by Title VII” and could not therefore be the basis for a cause of action under section 1983. Id. at 221-22. We further held that because Title VII provides the exclusive remedy for violations of its own terms, appellant was required to exhaust his administrative remedies before seeking judicial review of his disparate impact claim and could not “circumvent Title VII‘s filing requirements by utilizing § 1983 as the vehicle for asserting his Title VII claim.” Id. at 221-22 (emphasis added). Thus, while our holding in Foster precludes a plaintiff from asserting violations of rights
We therefore conclude that while Title VII provides the exclusive remedy for employment discrimination claims created by its own terms, its exclusivity ceases when the employer‘s conduct also amounts to a violation of a right secured by the Constitution. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011) (explaining that “[a]lthough section 704(a) of Title VII may not be the basis for a retaliatory discharge claim in a § 1983 action, § 1983 provides a vehicle for redressing claims of retaliation on the basis of the First Amendment“) (internal quotation marks and citation omitted); Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir. 1986) (stating an employment discrimination plaintiff may recover under section 1983 if she proves the alleged gender discrimination violated her equal protection rights under the Fourteenth Amendment). All other circuits to have considered the issue have reached the same conclusion. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 117-18 (2d Cir. 2004); Booth v. Maryland, 327 F.3d 377, 382-83 (4th Cir. 2003); Thigpen v. Bibb Cnty., Ga., Sheriff‘s Dep‘t, 223 F.3d 1231, 1239 (11th Cir. 2000); Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000); Notari v. Denver Water Dep‘t, 971 F.2d 585, 587 (10th Cir. 1992); Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1575-76 (5th Cir. 1989); Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th Cir. 1986). Moreover, because the availability of section 1983 as a remedy for employment discrimination turns on the independence of the right‘s source, rather than on the distinct factual basis of the Title VII and section 1983 claims, we further conclude an employment discrimination plaintiff asserting a violation of a constitutional right may bring suit under section 1983 alone, without having to plead concurrently a violation of Title VII and comply
C. Disposition
Although “somewhat conclusory and far from artful,” Jennings v. Am. Postal Workers Union, 672 F.2d 712, 716 (8th Cir. 1982), we construe Henley‘s complaint as alleging a violation of her right to be free from the use of excessive force under the Fourth Amendment inasmuch as she is asserting that certain individual defendants used “unlawful and unreasonable” force against her while acting under color of state law. See Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008) (“The right to be free from excessive force is a clearly established right under the Fourth Amendment‘s prohibition against unreasonable seizures of the person . . . [and] [a] section 1983 action is supported when a [state actor] violates this constitutional right.“) (internal quotation marks and citation omitted). We further construe the complaint as alleging a violation of Henley‘s right to be free from gender-based discrimination inasmuch as she is asserting defendants, as state actors, intentionally discriminated against and
We decline to address whether the factual allegations in Henley‘s complaint are sufficient to establish a section 1983 claim that is plausible on its face. The district court did not reach the merits of the claims below and neither party has briefed the issue on appeal. Prudence thus compels us to remand the action to the district court for consideration of the issue in the first instance. See, e.g., Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1028 (8th Cir. 2012) (declining to reach the merits of the claims where the district court did not rule on the merits and neither party addressed the merits in its brief); Dodd v. United States, 614 F.3d 512, 518 (8th Cir. 2010) (remanding to the district court to address the merits of the claims where neither party briefed the merits to the court and the district court did not address the merits in the first instance); Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 873 (8th Cir. 2006) (“Because the district court did not decide the merits of these claims, which are heavily fact-based, we decline to consider them in the first instance.“).
The judgment dismissing the action is reversed, and the case remanded for further proceedings consistent with this opinion.