779 F. Supp. 45 | W.D. Va. | 1990
OPINION
Susan P. Preston filed a claim in this court alleging retaliatory discrimination by the New River Community College (“NRCC” or “College”) in violation of Title VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. Jurisdiction is asserted pursuant to 28 U.S.C. sections 1331 and 1343, Title VII, and Title IX.
Ms. Preston filed complaints with the Office of Civil Rights, United States De
Initially, plaintiff filed suit against the Commonwealth of Virginia, the New River Community College, and several individuals in their official capacity as Board members of the NRCC and the State Board for Community Colleges. The claims against the individuals were dismissed pursuant to an Order entered by this Court on September 27, 1990. In the same Order, the Court indicated that it would further consider defendant’s motion to dismiss the claims against the Commonwealth of Virginia and the College.
TITLE VII
This court does not have jurisdiction over the Title VII claim presented by plaintiff. To maintain a Title VII action in federal court plaintiff must first file a complaint with the EEOC and obtain a Right to Sue letter. Title 42 U.S.C. § 2000e-5(e) (1988). Without such a letter, and barring exceptional circumstances, the court cannot properly exercise its jurisdiction over plaintiff’s claim.
Plaintiff argues that a Right to Sue letter is not a jurisdictional prerequisite to filing a Title VII suit in Federal Court according to Supreme Court precedent. However, the case on which plaintiff relies is not as definitive as plaintiff contends. In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), employees of Trans World Airlines filed charges with the EEOC alleging sex discrimination. The employees then filed a class action with the District Court and were awarded damages on their claims. On appeal, the court of appeals held that most of the plaintiffs’ claims were jurisdic-tionally barred because a majority of those in the class were former employees of Trans World and were not properly included in the class action. In the court’s opinion, the former employees were not proper members of the class action because the charges filed with the EEOC were not filed within the statutory period as to those employees. The Supreme Court allowed the former employees to recover because the class representatives had filed timely charges with the EEOC and thus the purpose of the statute was served. The Court, referring to the compliance period as a statute of limitations, noted that the requirement of filing a complaint with the EEOC in a timely fashion is subject to waiver, estoppel, and equitable tolling. Thus, the Supreme Court did not hold, as plaintiff asserts, that the Right to Sue letter need not be obtained prior to filing a Title VII action in federal court. Instead, the Supreme Court held that the time period in which the Right to Sue letter must be obtained is not inflexible.
In Bullard v. Sercon Corporation, 846 F.2d 463 (7th Cir.1988), the Seventh Circuit noted the limited holding in Zipes and held that receipt of a Right to Sue letter is a jurisdictional requirement to filing a Title VII action, while the time period in which one must file the complaint with the EEOC is only a precondition. Id. at 468.
Though some courts have waived the precondition of a Right to Sue letter in allowing a Title VII claim to proceed, they have done so only where it was necessary in the interest of justice. In Gottlieb v. Tulane University of Louisiana, 809 F.2d 278 (5th Cir.1987), the Fifth Circuit allowed plaintiff to argue retaliatory charges before the court where the initial discrimination charge was still active on appeal. In McKee v. McDonnell Douglas Technical Services Co., 700 F.2d 260 (5th Cir.1983) the Fifth Circuit held that EEOC error is a
In Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992 (11th Cir.1982), the Eleventh Circuit held that the timely acquisition of a Right to Sue letter is not a procedural prerequisite to filing a Title VII claim in federal court. Instead, based in part on the reasoning of the Supreme Court in Zipes, the court held that the requirement of obtaining a Right to Sue letter within one hundred and eighty days of the discriminatory act is a precondition to filing a Title VII action. However, the Jackson court further noted that the purpose of the precondition is to “permit the EEOC first to attempt settlement of the grievance.” Id. at 1012. This purpose must be served before claimant may proceed with his suit. Id. at 1004, n. 17. In the instant case, Ms. Preston did not file a complaint with the EEOC regarding her retaliation claim, thus the EEOC has not investigated plaintiff’s claim and the purpose of the precondition has not been fulfilled. In addition, plaintiff does not forward any equitable basis which would convince the court to waive the procedural condition. This Court does not have jurisdiction over plaintiff’s Title VII claim because plaintiff has neither fulfilled the purpose of filing with the EEOC nor has she shown why she need not comply with the filing requirement.
In response to defendant’s claim that the court lacks jurisdiction over this case, plaintiff further argues that, while she did not file a complaint with the EEOC and obtain a Right to Sue letter, she should be allowed to proceed because she filed a complaint with the Office of Civil Rights within the Department of Education. To support her argument, Ms. Preston refers to 29 C.F.R. § 1691.6(a) which states that “[a] complaint of employment discrimination filed with an agency, which is transferred or referred to EEOC under this regulation, shall be deemed a charge received by EEOC.”
TITLE IX
Plaintiff claims that the retaliatory action alleged previously constitutes retaliatory discrimination in violation of Title IX. Plaintiff prays for relief of, among other things, $50,000.00 in damages. Defendant relies on Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) to argue that plaintiff’s claim must be dismissed because damages are not recoverable in a Title IX action.
In Guardians Association, the Supreme Court, in several opinions, held that damages are not available in a Title VI action where plaintiff can not prove intentional discrimination by defendant. Thus, it is
Prior to the Court's decision in Guardians Association, several circuit courts ruled that there was no private right of action under Titles Vi and IX because the legislation states a specific remedy whereby the federal government may deny funding to any recipient entity which violates the provisions of either Title. Likewise, the Fourth Circuit has traditionally employed a strict reading of the remedies available under Title VI and Title IX. The Fourth Circuit, in Sumpter v. Harper, 683 F.2d 106 (4th Cir.1982), decided prior to Guardians Association, held that plaintiff had no private right of action for damages under Title VI. The court reasoned that “Congress did not intend Title VI to establish a broad right of action,” and that the appropriate remedy for violations of Title VI appeared in the statute—Congress could refrain from funding any program permitting discrimination. Sumpter, 683 F.2d at 108. Because Guardians Association held only that one can not recover damages for unintentional violations of Ti-tie VI, the fourth circuit case continues to be valid precedent.
Since the Guardians Association decision, at least one circuit court has held that a plaintiff may not recover damages for intentional discrimination in violation of Title IX. In Franklin v. Gwinnett County Public Schools, 911 F.2d 617 (11th Cir.1990) the Eleventh Circuit held that a “fair reading of the various opinions [in Guardians Association ] discloses that a majority of Justices agreed that discriminatory intent is not a prerequisite to relief under Title VI, but that at least five justices would not allow compensatory relief to a private plaintiff absent proof of discriminatory intent.”
However, the United States District Court for the Middle District of Pennsylvania has held that, because the Supreme Court recognizes backpay as an appropriate remedy for intentional violations of Title VI, it would appear that monetary damages are available for intentional violations of Title IX. Beehler v. Jeffes, 664 F.Supp. 931 (M.D.Pa.1986). The Beehler court noted that, per the Guardians decision, six Supreme Court Justices would allow damages for intentional conduct in violation of Title VI. However, the Beehler court did not specify which six justices believe damages may be recovered, and this Court does not agree with the Beehler court’s analysis. For, Justice White (joined by Justice Rehnquist) and Justice O’Connor refused to address the issue, Justice White noting that perhaps a plaintiff might be able to obtain money damages for intentional violations of Title VI, and Justice O’Connor noting
Plaintiffs claim for damages based on intentional violation of Title IX is therefore dismissed.
Plaintiff also requests promotion to the next available position for which she is qualified. The Court doesn’t believe it may grant the relief plaintiff requests. The Court is not in a position to monitor job openings and perform an analysis of the qualifications of all job applicants prior to the time the school awards the position to an applicant. Instead, the court suggests that if plaintiff is denied promotion to a position for which she believes she is qualified, and plaintiff believes she was denied the position in retaliation for filing charges with the EEOC and Office of Civil Rights, then plaintiff should follow the proper procedures to initiate a Title VII claim first with the EEOC and then with this Court.
Though not dispositive of this case, the Court also notes that all but one of Ms. Preston’s claims are unenforceable because they are barred by the Virginia statute of limitations. Va.Code § 8.01-243(a). Only the 1989 retaliatory discrimination claim is not presently barred by the statute of limitations, and as noted above, plaintiff has not requested relief which this court can afford as to that claim.
. Plaintiff acknowledges that, though she refers to Title VI in her complaint and memorandum in opposition to defendant’s motion to dismiss, she does not have a claim under Title VI of the Civil Rights Act. Title VI is relevant only in that Title IX was patterned after Title VI and ‘‘[t]he drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been.” Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S.Ct. 1946, 1956-57, 60 L.Ed.2d 560 (1979).
. Sections 1691.1 — 1691.13 set forth procedures for processing and resolving complaints of employment discrimination filed against recipients of federal aid subject to Titles VI and IX.
. Four justices dissented on the basis that the remedies available under Title VI are not so limited.
. As noted previously, Title IX was patterned after Title VI and "[t]he drafters of Title IX explicitly assumed that it would be interpreted and applied as title VI had been." Cannon v. University of Chicago, 441 U.S. 677, 694-96, 99 S.Ct. 1946, 1956-57, 60 L.Ed.2d 560 (1979).
. Franklin, 911 F.2d at 620.