Jan LOWREY, Plaintiff-Appellant, v. TEXAS A & M UNIVERSITY SYSTEM, d/b/a Tarleton State University, Dennis Mccabe, Lonn Reisman, Lamar Johanson, Jim Johnson, Pat Stevenson, And Susan Burton, Defendants-Appellees.
No. 96-20157.
United States Court of Appeals, Fifth Circuit.
July 7, 1997.
117 F.3d 242
We have yet to directly address the question of whether the PLRA’s prepayment obligation applies to prisoners who filed a notice of appeal and have subsequently been released. We provided a partial answer to this question in Strickland v. Rankin County Correctional Facility, 105 F.3d 972 (5th Cir. 1997), where we concluded that the filing-fee provision of the PLRA is triggered “upon the completion of a specific event, here the filing of an appeal.” Id. at 974. Based on the plain language of
Accordingly, we REMAND this case to the district court for an assessment of
Dona Glimm Hamilton, James C. Todd, Assistant Attorney General, Austin, TX, for Defendants-Appellees.
Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jan Lowrey appeals the denial of leave to amend her complaint and the dismissal, pursuant to
I.
Lowrey was employed by Tarleton State University in 1977 as the head Women’s Basketball Coach and an instructor in the Physical Education Department. In 1992, she was named Women’s Athletic Coordinator. In 1993, she applied for the position of Athletic Director but was not selected. In 1994, she was removed from her position as Women’s Athletic Coordinator, although she continues to serve as the Women’s Basketball Coach.
Lowrey brought suit against the university and its named individual officials (hereinafter collectively “Tarleton”) under title IX, alleging that Tarleton was guilty of employment discrimination on the basis of sex and misallocation of resources among male and female athletes. Moreover, Lowrey alleged that, as a consequence of her participation in complaints and investigations challenging this noncompliance, Tarleton retaliated against her by denying her promotion to the post of Athletic Coordinator, removing her from the position of Women’s Athletic Coordinator, and subjecting her and her team to continuing retaliation and harassment.1
Lowrey responded by moving for leave to amend her complaint in order to add causes of action under title VII of the Civil Rights Act of 1964, the First, Fifth, and Fourteenth Amendments, the Equal Pay Act, and
Lowrey now urges us to hold that the district court abused its discretion in denying her leave to amend, that title IX provides a private right of action for retaliation, and that title VII does not provide the exclusive remedy for claims of employment discrimination on the basis of sex in federally-funded educational institutions.
II.
A.
We review a denial of leave to amend a complaint for abuse of discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 934 (5th Cir.1996), cert. denied, --- U.S. ---, 117 S.Ct. 767, 136 L.Ed.2d 713 (1997); Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.1994). The discretion of the district court is limited, however, by
Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).
B.
Lowrey filed her motion to amend on November 13, 1995, attaching as an exhibit thereto her proposed First Amended Original Complaint. Nevertheless, the district court dismissed the entire complaint on December 4, 1995, without ruling on the motion. Lowrey argues that this constructive denial of her motion to amend constituted a per se abuse of discretion. Her objection is well taken.
The Supreme Court has explicitly disapproved of denying leave to amend without adequate justification:
Of course the grant or denial of the opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.
Foman, 371 U.S. at 182, 83 S.Ct. at 230. Caselaw from this circuit is in accord. See Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir.1996); Halbert v. City of Sherman, 33 F.3d 526, 529-30 (5th Cir.1994); Conti v. Sanko S.S. Co., 912 F.2d 816, 818-19 (5th Cir.1990). “Given the policy of liberality behind Rule 15(a), it is apparent that when a
Furthermore, the touchstone of the inquiry under rule 15(a) is whether the proposed amendment would unfairly prejudice the defense by denying the defendants notice of the nature of the complaint. See, e.g., Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1464 (5th Cir.), cert. denied, --- U.S. ---, 116 S.Ct. 75, 133 L.Ed.2d 35 (1995); Conti, 912 F.2d at 818. Tarleton expressly informed the district court that it did not object to Lowrey’s proposed amendments to the complaint. Therefore, there was no justification for denial of leave to amend.2
C.
In March 1996, Lowrey refiled her lawsuit, alleging causes of action under title VII, the Equal Pay Act, the First, Fifth, and Fourteenth Amendments, and
Insofar as Lowrey has successfully refiled the same causes of action that she sought to allege in her proposed amended complaint, she has suffered no prejudice from the judgment. Therefore, although the district court abused its discretion in denying leave to amend, this error is rendered moot by the subsequent lawsuit.4
III.
Lowrey urges us to overrule Lakoski and create a private right of action for employment discrimination under title IX. Alternatively, she argues that the Lakoski court did not consider whether title IX affords a private right of action for retaliation.
A.
The district court dismissed the entire complaint, pursuant to rule 12(b)(6), exclusively on the ground that Lakoski precludes a private right of action under title IX. We review the dismissal of a complaint under rule 12(b)(6) de novo. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995).
B.
In Lakoski, we held that title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions. Lakoski, 66 F.3d at 753. Lowrey urges us to reconsider Lakoski. This we cannot do, as one panel of this court cannot overrule the decision of another panel; such panel decisions may be overruled only by a subsequent decision of the Supreme Court or by the Fifth Circuit sitting en banc. See FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993); Burlington N.R.R. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991) (citing cases). Therefore, even if we were inclined to disagree with Lakoski, we would deny Lowrey’s invitation to reconsider Lakoski, which is the settled law of this circuit. Title IX does not afford a private right of action for employment discrimination on the basis of sex in federally funded educational institutions.
C.
In addition to her allegations of employment discrimination, Lowrey charged that Tarleton had systematically misallocated resources among male and female athletes in violation of title IX. She alleged that, as a consequence of her participation in the Gender Equity Task Force (which identified alleged violations of titles IX and title VII), her constant objection to such discriminatory practices, and her participation in a civil rights complaint filed with the Department of Education, Tarleton has retaliated against her, inter alia, by denying her a promotion to the position of Athletic Director and by terminating her position as Women’s Athletic Coordinator.
Consequently, Lowrey attempted to state a claim for retaliation under title IX. The district court dismissed this retaliation claim pursuant to rule 12(b)(6), however, holding that Lakoski precludes a private cause of action for retaliation under title IX. On appeal, Lowrey argues that this cause of action for retaliation arises exclusively under the provisions of title IX, not title VII, and thus is not preempted by title VII under the specific holding of Lakoski. We agree.
1.
The relationship between title VII and title IX is complex, and never more so than in the instant case. In order to determine whether title IX affords Lowrey a cause of action for retaliation, we must first “strip away” any allegations that would support a private cause of action for retaliation under title VII. To do so, we must distinguish between retaliation suffered by Lowrey as a consequence of her participation in complaints and investigations challenging alleged employment discrimination by Tarleton and retaliation suffered as a consequence of her participation in complaints and investigations challenging alleged violations of title IX. Insofar as the former allegations form the basis of this retaliation claim, Lowrey’s cause of action is barred under the analysis employed in Lakoski.
Because we have previously held that title VII provides the exclusive remedy
Therefore, insofar as Lowrey stated an employment discrimination claim against Tarleton, she likewise stated a retaliation claim arising under title VII. Because this retaliation claim is cognizable under title VII, the rule of Lakoski preemption applies, and title IX affords no private right of action to the employees of federally funded educational institutions who suffer retaliation as a consequence of allegations of employment discrimination.
In order to state a claim for retaliation under title IX, therefore, Lowrey is obliged to rely exclusively on her allegations charging Tarleton with violations of title IX, not title VII. Therefore, we must determine whether Lakoski likewise precludes a claim for retaliation, arising under title IX, that is based exclusively on allegations of noncompliance with the substantive provisions of title IX.
2.
For purposes of the present inquiry, we assume arguendo that Tarleton systematically violated title IX by misallocating resources among male and female athletes, that Lowrey objected to these continuing violations of title IX, and that Tarleton discriminated against Lowrey in retaliation for her opposition to such noncompliance with title IX. Taking all these facts as true, as we are obliged to do for purposes of rule 12(b)(6), we must determine whether the preemption doctrine of Lakoski precludes a private right of action for retaliation under title IX.
We conclude that the preemption rule of Lakoski is inapposite. Whereas Lakoski held that title VII preempts a private right of action for employment discrimination under title IX, to protect the integrity of the title VII administrative exhaustion requirement, the court did not consider whether title IX creates a private right of action for retaliation against an employee who complains about noncompliance with the substantive provisions of title IX. Indeed, the holding of Lakoski was expressly limited to the context of employment discrimination, not retaliation:
Given this compelling evidence that Title IX prohibits the same employment practices proscribed by Title VII, we hold that individuals seeking money damages for employment discrimination on the basis of sex in federally funded educational institutions may not assert Title IX either directly or derivatively through
§ 1983 .
Lakoski 66 F.3d at 758 (emphasis added).6
This is no mere semantic distinction. The preemption rule of Lakoski is predicated on the assumption that title VII affords a private right of action for claims of employment discrimination on the basis of sex in federally funded educational institutions, rendering a private right of action under title IX duplicative. See Lakoski 66 F.3d at 755. Indeed, the Lakoski court concluded that the prohibition against employment discrimination in title VII is identical to the proscription of sex discrimination in title IX, thereby guarantee-
In contrast, the anti-retaliation provisions of titles VII and IX are not identical, and title VII provides no remedy for retaliation against individuals who raise charges of noncompliance with the substantive provisions of title IX. Title VII prohibits retaliation only against individuals who oppose discriminatory employment practices or participate in complaints or investigations of employment practices prohibited by title VII. See
By its plain language, therefore, title VII does not prohibit retaliation against complainants who challenge the misallocation of resources in violation of title IX, as such complaints are wholly unrelated to the discriminatory employment practices proscribed by title VII. Unlike the plaintiff in Lakoski, therefore, Lowrey cannot obtain relief under title VII. Accordingly, Lakoski is inapposite.
The Lakoski court narrowly tailored its holding to individuals seeking money damages under title IX “for employment practices for which Title VII provides a remedy.” Lakoski, 66 F.3d at 752. Title VII provides no remedy, however, to employees of federally funded educational institutions who have suffered retaliation as a consequence of their opposition to noncompliance with title IX. Consequently, Lowrey asserts a cause of action for retaliation that arises exclusively under title IX, without a corollary right under title VII.
Under such circumstances, title VII does not preempt title IX. Although the district court erred in holding that Lakoski preempted a private right of action for retaliation under title IX, however, this conclusion does not end our inquiry.
D.
Having decided that Lowrey’s cause of action for retaliation is not precluded by Lakoski, we must reach the underlying question whether title IX affords a private right of action for retaliation against the employees of federally funded educational institutions. We conclude that it does.
Title IX does not explicitly create private rights of action for the victims of discrimination in federally funded educational institutions. Indeed, the sole remedial measure provided by the express terms of the statute is the termination of federal funding. See
Lowrey urges this court to imply a private right of action from administrative regulations promulgated by the Department of Education for the purpose of implementing and enforcing title IX. See
In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court articulated a test to determine whether a federal statute implies a private right of action. It is axiomatic that a plaintiff must satisfy four prerequisites to qualify for such an implied right of action:
- Is this plaintiff a member of the class for whose “especial” benefit the statute was enacted? In other words, does the statute create a federal right for this plaintiff?
- Is there any evidence of legislative intent, whether explicit or implicit, to create or deny a private remedy?
- Is it consistent with the legislative scheme to imply a private remedy?
- Is the cause of action one traditionally relegated to state law so that implying a federal right of action would be inappropriate?11
Louisiana Landmarks Soc’y v. City of New Orleans, 85 F.3d 1119, 1122 (5th Cir.1996) (quoting Cort, 422 U.S. at 78, 95 S.Ct. at 2088). We will analyze the instant case under the same framework.
1.
First, we must determine whether Lowrey is a member of the special class for whose benefit
The plain language of the regulations dictates the conclusion that Lowrey is an intended beneficiary of
Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible Department official or his designee a written complaint.
Nevertheless, we recognize that a generation of Supreme Court jurisprudence has intervened since the decision in Gomez, transforming the legal landscape. Accordingly, the methodology governing implied rights of action may be different when an administrative regulation, rather than a federal statute, forms the basis of the private right of action. See, e.g., Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 947 (3d Cir.1985); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534-37 (9th Cir.1984). When the question is properly presented, therefore, it may be appropriate to reconsider the principles governing the implication of private rights of action from administrative regulations.
No recipient or any other person shall intimidate, threaten, coerce, or discriminate against any individual ... because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.
For purposes of this decision, it is important to distinguish between a cause of action for discrimination under title IX and a cause of action for retaliation under that title. It is axiomatic that Lowrey cannot state a claim for discrimination on behalf of her students. Therefore, were we asked to afford Lowrey a remedy for the rights of her students, we would hold that she does not have standing to assert the rights of third persons under title IX. See, e.g., Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1009 n. 4 (5th Cir.), cert. denied, --- U.S. ---, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996).14
That is not the issue in this case, however. Lowrey does not assert the rights of her students to be free from discrimination; rather, she claims that Tarleton retaliated against her personally by demoting her from her position as Women’s Athletic Coordinator and by refusing to promote her to the post of Athletic Director. Hence, Lowrey asserts a personal cause of action for retaliation, premised on a personal injury, that derives from her complaints of unlawful discrimination against the female athletes at Tarleton. Therefore, her cause of action for retaliation is a personal claim. She “asserts [her] own right to be free from retaliation, alleges injuries that are personal to [her], and is the only effective plaintiff who can bring this suit.” Maynard v. City of San Jose, 37 F.3d 1396, 1403 (9th Cir.1994).15 Consequently, the fact that Lowrey would not have standing to assert a discrimination claim on behalf of her students does not deprive her of standing to assert a personal retaliation claim under
that the complainant be a member of the class that suffers discrimination in violation of title IX. See
Furthermore, this court has endorsed a similar construction of anti-retaliation provisions in the employment discrimination laws. For example, we recently held that the anti-retaliation provision of the Age Discrimination in Employment Act (“ADEA”) “permits third parties to sue under [the ADEA] if they have engaged in the enumerated conduct, even if the conduct was on behalf of another employee’s claim of discrimination.” Holt v. JTM Indus., 89 F.3d 1224, 1226 n. 1 (5th Cir.1996), cert. denied, --- U.S. ---, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997) (emphasis added).17
Likewise, we have held that one employee’s opposition to discriminatory employment practices directed against a fellow employee may be protected activity under the anti-retaliation provision of title VII. See Jones v. Flagship Int’l, 793 F.2d 714, 727 (5th Cir.1986). Because we find no principled distinction between the anti-retaliation provision at issue in this case and the nearly identical provisions in Holt and Jones, we conclude that Lowrey has standing to invoke the anti-retaliation provisions of
Finally, every federal court to consider this issue has held that teachers may state claims for retaliation under title IX.19 We join these courts in concluding that title IX affords an implied cause of action for retaliation under
2.
Having determined that Lowrey is a member of the special class for whose benefit
Furthermore, several of our sister circuits have recognized that teachers may state a claim for retaliation under title IX, albeit in the context of claims alleging employment discrimination in violation of both title IX and title VII. See, e.g., Brine v. University of Iowa, 90 F.3d 271 (8th Cir.1996); Preston v. Virginia ex rel. New River Community College, 31 F.3d 203 (4th Cir.1994); Willner v. Budig, 848 F.2d 1032 (10th Cir.1988); cf. Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243 (2d Cir.1995) (extending title VII retaliation law to a cause of action raised by a student, not an employee, under title IX); Lendo v. Garrett County Bd. of Educ., 820 F.2d 1365 (4th Cir.1987) (assuming, without deciding, that title IX affords a private right of action for retaliation to employees who raise complaints about violations of title IX). Insofar as title VII would afford an independent cause of action for retaliation in these employment discrimination cases, they are inconsistent with Lakoski. Nevertheless, they represent the judgment of our sister circuits that title IX does afford a private right of action for retaliation to the employees of federally funded educational institutions.
Moreover, the Supreme Court has recognized that the employees of federally funded educational institutions are among the intended beneficiaries of title IX. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520-21, 102 S.Ct. 1912, 1917-18, 72 L.Ed.2d 299 (1982).
Section 901(a)’s broad directive that “no person” may be discriminated against on the basis of gender appears, on its face, to include employees as well as students. Under that provision, employees, like other “persons,” may not be “excluded from participation in,” “denied the benefits of,” or “subjected to discrimination under” education programs receiving federal financial support.
Id. at 520, 102 S.Ct. at 1917.21 Therefore, we see no principled basis upon which to distinguish the implied private right of action recognized in Cannon and Franklin from the implied private right of action at issue in the instant case, given our prior conclusion that Lowrey has standing to state a claim for retaliation under title IX. Accordingly, we conclude that
3.
Finally, we must determine whether the implication of a private right of action would undermine the legislative scheme. Louisiana Landmarks, 85 F.3d at 1122. “[A] private remedy should not be implied [under title IX] if it would frustrate the underlying purpose of the legislative scheme.” Cannon, 441 U.S. at 703, 99 S.Ct. at 1961. It appears that the implication of a private right of action for retaliation under title IX would undermine the legislative scheme of neither title IX nor title VII.
It is this third prong of the test that distinguishes the instant case from Lakoski. There, we declined to recognize an implied private right of action for employment discrimination under title IX, because to do so would undermine the comprehensive remedial scheme enacted in title VII to redress employment discrimination. Lakoski, 66 F.3d at 754. The premise of Lakoski—like that of other courts refusing to create remedies that would undermine the statutory scheme of title VII22—is that an implied right of action for employment discrimination under title IX would defeat the “larger federal legislative scheme designed to protect individuals from employment discrimination on the basis of sex.” Lakoski, 66 F.3d at 755. Therefore, in Lakoski we honored the established doctrine governing implied private rights, by refusing to recognize an implied private right of action under title IX that
In contrast, as we have explained, title VII does not afford a private remedy for retaliation against employees of federally funded educational institutions who complain about noncompliance with the substantive provisions of title IX. Therefore, implication of a private right of action for retaliation under
To the contrary, the implication of a private right of action for retaliation would serve the dual purposes of title IX,23 by creating an incentive for individuals to expose violations of title IX and by protecting such whistleblowers from retaliation. Accordingly, the implication of a private right of action for retaliation is consistent with the statutory purposes of title IX. Indeed, the Supreme Court has approved the implication of a private right of action under title IX “when that remedy is necessary or at least helpful to the accomplishment of the statutory purpose.” Cannon, 441 U.S. at 703, 99 S.Ct. at 1961.
4.
In summary, we conclude that the instant case, unlike Lakoski, satisfies all the elements for the implication of a private right of action, as required by the Supreme Court in Cort and Cannon. Consequently, we hold that
IV.
Lowrey is entitled to have her day in court. Because she has successfully refiled her claims under title VII, the Equal Pay Act, and
Insofar as Lowrey stated a claim for employment discrimination under title IX, the dismissal of this cause of action for failure to state a claim is AFFIRMED. Title IX affords no private cause of action for employment discrimination, and we decline to create one. Insofar as Lowrey stated a claim for retaliation under title IX, however, the dismissal of this cause of action for failure to state a claim is REVERSED, and the case is REMANDED to the district court for further proceedings consistent with this opinion.
We emphasize that our decision to recognize an implied private right of action for retaliation under title IX does not signal a retreat from the doctrine of Lakoski. Here we decide only that the employees of federally funded educational institutions who raise complaints, or participate in investigations, concerning compliance with the substantive provisions of title IX are protected from retaliation by
The judgment is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. We express absolutely no view on the ultimate merits of any of Lowrey’s claims.