Opinion
Civil Action No. 1:96cv348-D-A
January 7, 1998
MEMORANDUM OPINION
Presently before the court is the motion of the defendant Richard Erickson for the entry of summary judgment on his behalf as against the plaintiff's claims in the case at bar. Finding that the motion is only partially well taken, the court shall grant it in part and deny the remainder.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted. The court chooses not to provide an in-depth discussion of all of the facts surrounding this case, but rather will discuss pertinent facts in the body of its opinion as they become necessary.
The plaintiff Peggy Thompson began work with the Tupelo Police Department ("TPD") as a patrol officer in June of 1991. Some time later, the department transferred Ms. Thompson to the Canine ("K-9") Unit of TPD. The TPD provided Ms. Thompson, as a member of the K-9 unit, with a drug dog and a vehicle for transporting the animal. As an aspect of her assignment, both the dog and the vehicle were continually in the plaintiff's possession. Ms. Thompson's superior in the department was the defendant Richard Erickson. The working relationship between Thompson and Erickson deteriorated, and upon the recommendation of the defendant, TPD transferred the plaintiff back to a patrol officer position. This action followed. In her complaint, Ms. Thompson contends that her transfer from the K-9 unit of the TPD was a result of gender discrimination. The defendant has filed with this court a motion for summary judgment and seeks the dismissal of all of the plaintiff's claims, and the court now takes up consideration of that motion.
Discussion
Summary Judgment Standard
Summary judgment shall be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden rests upon the party seeking summary judgment to show to the district court that an absence of evidence exists in the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986): see Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996); Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Once such a showing is presented by the moving party, the burden shifts to the non-moving party to demonstrate, by specific facts, that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Texas Manufactured Housing Ass'n, Inc. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Substantive law will determine what is considered material. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see City of Nederland, 101 F.3d at 1099; Gibson v. Rich. 44 F.3d 274, 277 (5th Cir. 1995). Further, "[w]here the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510;see City of Nederland, 101 F.3d at 1099. Finally, all herefrom.See Anderson, 477 U.S. at 254, 106 S.Ct. at 2513; Bane One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995); Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994);Matagorda County v. Russell Law. 19 F.3d 215, 217 (5th Cir. 1994). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Guillory v. Domtar Industries Inc., 95 F.3d 1320, 1326 (5th Cir. 1996); Richter v. Merchants Fast Motor Lines. Inc., 83 F.3d 96, 97 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little, 37 F.3d at 1075 (emphasis omitted);see Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990).
The Plaintiff's Claims
Title VII
In her complaint, Ms. Thompson asserts a claim arising under Title VII for sex discrimination against the defendant. In her submissions to the court regarding the defendant's present motion, however, she does not appear to rely heavily upon this claim. In any event, it is apparent that she has not filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") nor has she received a "right to sue" letter from the EEOC. As such, she has failed to comply with mandatory prerequisites for the maintenance of a Title VII action. See, e.g., Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th Cir. 1996);Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 863 (5th Cir. 1983) (although filing of EEOC charge is not a jurisdictional prerequisite, it "is a precondition to filing suit in district court"). This claim of the plaintiff must be dismissed. There is no genuine issue of material fact as to this matter, and the defendant is entitled to the entry of a judgment as a matter of law on the plaintiff's Title VII claim.
42 U.S.C. § 1983 — Equal Protection
That Title VII is foreclosed as an avenue for the plaintiff to seek relief does not mean, however, that all of her options for relief are so precluded. Regardless of the existence of a Title VII remedy, the plaintiff may still seek redress for gender discrimination through an independent source such as the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 2271, 60 L.Ed.2d 846 (1979); Southard v. Texas Bd. of Criminal Justice. 114 F.3d 539, 550 (5th Cir. 1997);Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989). This court has also previously addressed the availability of § 1983 actions as an alternative for pursuing remedies for discrimination under Title VII and has followed Fifth Circuit precedent on the matter. See, e.g., Smith v. Holly Springs Police Dept., 1997 WL 170319, *1, Civil Action No. l:96cv17-D-D (N.D. Miss. 1997) (Davidson, J.); Short v. City of West Point. 1997 WL 737535, *4, Civil Action No. l:95cv359-D-D (N.D. Miss. 1997) (Davidson, J.). Ms. Thompson may pursue § 1983 remedies for gender discrimination regardless of the availability of relief under Title VII.
Appropriateness of Erickson as a Defendant
Nevertheless, the defendant contends that the plaintiff may not pursue a § 1983 claim against him in this case because Erickson is not an appropriate defendant for such a claim. He begins his argument by correctly noting that the substantive elements of a claim of gender discrimination under the Equal Protection clause are virtually identical to that of a Title VII claim of gender discrimination. See, e.g., Southard v. Texas Bd. of Criminal Justice. 114 F.3d 539, 550 (5th Cir. 1997); Cervantez v. Bexar County Civil Serv. Comm'n, 99 F.3d 730, 734 (5th Cir. 1996) ("[W]e have on numerous occasions recognized that § 1983 and Title VII are parallel causes of action");Wallace v. Texas Tech. University. 80 F.3d 1042, 1047 (5th Cir. 1996) (applying same prima facie test to discrimination claims under Title VII and § 1983). In that the claims are identical, Erickson continues, he is not a proper defendant because he is not an "employer" for purposes of Title VII. See, e.g., Pfau v. Reed. 125 F.3d 927, 935 (5th Cir. 1997) (noting only employers liable under Title VII); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994) (same); Dandrige v. Chromcraft Corp., 914 F. Supp. 1396, 1404 (N.D. Miss.1996) (noting that while other employees are capable of imposing liability upon the employer for their actions, "[t]he Fifth Circuit law is clear — supervisors cannot be held personally liable under Title VII.").
While the court applauds the defendant's creative argument, the defendant's syllogism fails. The mere fact that the substantive elements of these discrimination claims bear substantial similarity to one another, or may even be identical, does not mean that the claims themselves are identical. The reason why Title VII claims may only be maintained against an "employer" is that this limitation on Title VII is mandated by the express terms of that statutory scheme., S.C.A. § 2000e(b) (defining "employer" for purposes of Title VII). As an entirely separate and independent statute, § 1983 is burdened by no such limitation to actions only against employers. Rather, it is constrained to actions against a different category of defendants — local governments and their employees. Victorian v. Miller. 813 F.2d 718, 720 n. 3 (5th Cir. 1987) ("Section 1983 thus allows private parties to enforce federal laws against a special class of defendants — state and municipal actors — "). It is well established that individual police officers such as the defendant Erickson may be held liable under its terms. Mr. Erickson is an appropriate defendant with regard to this claim.
The Southard decision is illustrative with regard to this point. Southard v. Texas Bd. of Criminal Justice. 114 F.3d 539, 550 (5th Cir. 1997). In Southard, the Fifth Circuit made an analysis of the entitlement of individual defendants to the protection of qualified immunity as against a claim of sexual harassment arising under the Equal Protection clause and enforced via § 1983. Qualified immunity is only available as a defense to claims for monetary relief against a party in his individual capacity, and therefore it is obvious that those were the claims addressed. See, e.g., Alberti v. Sheriff of Harris County, Tex., 978 F.2d 893, 895 (5th Cir. 1992) ("[T]his doctrine is applicable only as a defense to the individual liability of persons."); Harvey v. Blake. 913 F.2d 226, 228 (5th Cir. 1990) ("[T]he doctrine of qualified immunity protects a public official from liability for money damages in her individual capacity only . . ."). Notably, no discussion was given in Southard regarding whether those defendants constituted "employers" for purposes of Title VII.
b. Injury
Additionally, the defendant charges that the plaintiff has suffered no cognizable injury as a result of the allegedly discriminatory transfer. As for proof in this regard, Erickson primarily relies upon the fact that the plaintiff salary as a patrol officer is identical to her salary as a K-9 officer. Exhibit "2" to Plaintiff's Response, Deposition of Peggy Thompson p. 85. The plaintiff counters this contention by noting that while her salary has not decreased as a result of her transfer, her benefits have changed:
The defendant also argues that a lateral transfer, such as the one at bar, is insufficient to support a claim arising under the Fourteenth Amendment. See, e.g., Moore v. Otero., 557 F.2d 435, 438 (5th Cir. 1977); Sullivan v. Brown. 544 F.2d 279, 283 (6th Cir. 1976); Danno v. Peterson, 421 F. Supp. 950, 954 (N.D. Ill. 1976). Each of the cases cited by the defendant, however, involve a procedural due process claim arising under the Fourteenth Amendment. Moore. 557 F.2d at 437 (department's transfer of officer from corporal to police patrolman did not deprive officer of "property" protected by procedural due process); Sullivan. 544 F.2d at 282 (transfer of tenured Tennessee teacher not a deprivation of a property interest protected by procedural due process); Danno, 421 F. Supp. at 951 (Illinois teacher had no protected property interest in position to state procedural due process claim for transfer). None of these cases are applicable here, in that the plaintiff in this case has asserted a Fourteenth Amendment equal protection claim.
Q: As I understand it, part of your claim is that you don't have a car like you had when you were in the K-9 unit, right. You don't have a vehicle assigned to you now at all?
A: No, sir.
Exhibit "2" to Plaintiff's Response, Deposition of Peggy Thompson, p. 85. As a result of the loss of this benefit, Ms. Thompson contends, she "suffered a substantial economic loss when my patrol car was taken . . ., because [she] had to buy a car in order to have transportation to work." Exhibit "1" to Plaintiff's Response, Affidavit of Peggy Thompson.
Under Title VII, a plaintiff may only recover if she has suffered an adverse "ultimate employment decision," which must reach a defined quantum of damage in order to become actionable. See, e.g., Messer v. Meno, 130 F.3d 130 (5th Cir. 1997) (1997 WL 728500, *8) ("Ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leave, but not `events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future.'"); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997); Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). As already noted, however, the plaintiff is not able to pursue her claim before this court under the auspices of Title VII. Rather, her claim for discrimination in employment arises under § 1983, for which she may recover ghts. nominal damages merely by establishing a violation of her constitutional or statutory rights See, e.g., Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978);Clarke v. Stalder, 121 F.3d 222, 225 n. 4 (5th Cir. 1997) ("Even if a successful plaintiff in a § 1983 action cannot prove actual injury, he is nevertheless entitled to nominal damages."); Walter v. Torres. 917 F.2d 1379, 1382 (5th Cir. 1990).
Prior to the 1991 Amendments to Title VII, an award of nominal damages was not available to an aggrieved plaintiff. Landgraf v. USI Film Products, 968 F.2d 427, 431 (5th Cir. 1992) ("Nominal damages . . . are legal, not equitable relief and are therefore outside the scope of remedies available under Title VII."). As a consequence of these amendments, however, the Fifth Circuit has apparently taken the position that they are now available. Patterson v. PHP Healthcare, 90 F.3d 927, 941 (5th Cir. 1996) (reversing award of compensatory damages in Title VII case with direction to district court to award nominal damages).
Merits of the Claim
As the court has already noted, the elements of a claim of gender discrimination arising under the Equal Protection clause are substantially identical to those of a discrimination claim arising under Title VII. The Fifth Circuit has even counseled the use of theMcDonnell Douglas shifting burden analysis so commonplace in this arena of jurisprudence. That framework requires that:
1) the plaintiff must establish a prima facie case of discrimination;
2) the burden then shifts to the defendant to articulate a legitimate and nondiscriminatory reason for its actions, and
3) the burden returns to the plaintiff to prove that the proffered reason was a mere pretext for discrimination and that the real reason was to discriminate.McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Polanco. v. City of Austin, 78 F.3d 968, 976 (5th Cir. 1996); Marcantel v. Louisiana Dep't of Trans. Dev., 37 F.3d 197, 199 (5th Cir. 1994). In order to establish a prima facie case in a claim of disparate treatment, the plaintiff must show:
1) she was a member of a protected class;
2) he was qualified for the position that he held;
3) she suffered an adverse employment decision; and
4) the plaintiff's employer replaced him with a person who is not a member of the protected class, or in cases where the employer does not intend to replace the plaintiff, the employer retains others in similar positions who are not members of the protected class.Meinecke v. H R Block Income Tax Sch., Inc., 66 F.3d 77, 83 (5th Cir. 1995); Valdez v. San Antonio Chamber of Commerce. 974 F.2d 592, 596 (5th Cir. 1992); Thornbrough v. Columbus Greenville R. Co., 760 F.2d 633, 642 (5th Cir. 1985) (citing Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981)), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). The showing of a prima facie case is not necessary, however, if the plaintiff possesses direct evidence of discrimination.
In the rare situation in which the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination.Moore v. United States Dept. of Ag., 55 F.3d 991, 995 (5th Cir. 1995) (quoting Kendall v. Block. 821 F.2d 1142, 1145 (5th Cir. 1987)): see also Trans World Airlines. Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985) ("the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination"); Rizzo v. Children's World Learning Centers. Inc., 84 F.3d 758, 762 (5th Cir. 1996).
In this case, the court need not delve into an analysis of the prima facie case, as the plaintiff has proffered direct evidence of discrimination by the defendant:
Q: Tell me what you recall of Sergeant Erickson's comments.
. . .
A: Well, he didn't think a woman ought to be in K-9, that it was a man's job.
Q: Did Sergeant Erickson tell you why he thought a woman did not belong in the K-9 unit?
A: He said they just [weren't] strong enough, it was a man's job, that she couldn't handle the dog.
Q: [Corporal] Thompson couldn't [handle the dog]?
. . .
A: Yes.
. . .
Q: Do you think that [the defendant Erickson] held a grudge against Peggy Thompson?
A: Yes.
Q: Why is that?
A: Because she's a female and [Erickson] didn't want a female as a K-9 officer.
Exhibit "3" to Plaintiff's Response, Deposition of Bobby Frazier pp. 9, 10, 27. Upon review of these statements and other evidence before the court, the undersigned cannot say that there is an absence of a genuine issue of material fact as to this claim of the plaintiff, nor that the defendant is entitled to the entry of a judgment as a matter of law. This claim shall proceed to trial.
Injunctive Relief
As the defendant properly notes, the equitable relief sought by the plaintiff in this case is available only against the defendant in his official capacity, for Mr. Erickson has no personal authority to reinstate the plaintiff to her previous position as a K-9 officer.See, e.g., Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993) ("[S]uch equitable relief [i.e., reinstatement] could be obtained against Relin only in his official, not his individual, capacity . . .");Scott v. Flowers, 910 F.2d 201, 213 (5th Cir. 1990) ("[T]he injunctive relief sought and won by [the plaintiff] can be obtained from the defendants only in their official capacity as commissioners.");Rao v. New York City Health and Hosps. Corp., 882 F. Supp. 321, 330 (S.D.N.Y. 1995) ("An order of reinstatement is an equitable remedy that may be directed only at liable individuals in their official capacities or at municipal entities themselves."). At the present stage of litigation, there is no defendant in this action against whom the plaintiff may obtain this relief. As such, this claim of the plaintiff is properly dismissed. There is no genuine issue of material fact as to this matter, and the defendant is entitled to the entry of a judgment as a matter of law on this claim.
Conclusion
After careful consideration of the motion of the defendant, the court finds that it is only partially well taken. As such, the court shall grant the motion insofar as it pertains to the plaintiff's claims arising directly under Title VII, and to the extent that she requests the injunctive remedy of reinstatement to her former position as a K-9 officer with the Tupelo Police Department. As to the remainder of the plaintiffs claims, particularly her claim of gender discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the court shall deny the motion.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) the defendant's motion for summary judgment is hereby GRANTED IN PART and DENIED IN PART; the motion is GRANTED insofar as it pertains to the plaintiff's claims arising under Title VII and her claims for injunctive relief, i.e., reinstatement to her position as a K-9 officer with the Tupelo Police Department. As to the remainder of the plaintiff's claims the motion is DENIED;
) the plaintiff's claims arising under Title VII of the Civil Rights Act of 1964 are hereby DISMISSED;
) the plaintiff's claim for injunctive relief, i.e., reinstatement, against the defendant is hereby DISMISSED.
SO ORDERED.