Johnson v. City of Fort Lauderdale ( 1997 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 96-4052
2/18/03
THOMAS K. KAHN
CLERK
D. C. Docket No. 94-7240-CIV-JAG
HERBERT JOHNSON,
Plaintiff-Appellee,
versus
CITY OF FORT LAUDERDALE,
a Florida municipal corporation, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Florida
____________
(August 3, 1998)
OPINION ON REHEARING
Before COX and BARKETT, Circuit Judges, and SMITH*, Senior Circuit Judge.
*
Honorable Edward S. Smith, Senior U. S. Circuit Judge for the Federal Circuit, sitting by
designation.
COX, Circuit Judge:
The panel sua sponte grants rehearing and substitutes the following opinion for
the opinion previously published at 114 F.3d 1089 (11th Cir. 1997). The petition for
panel rehearing is otherwise denied.
Herbert Johnson is a black male and former employee of the City of Fort
Lauderdale Fire Department. In 1994, he filed a complaint against the City, a former
Fire Chief, and four supervisors (in their individual capacities). Count One asserts a
42 U.S.C. § 1981 claim against the defendants for alleged racial harassment,
discrimination, and retaliation. Counts Two, Three, Four, and Five assert 42 U.S.C.
§ 1983 claims against the defendants for alleged racial harassment, discrimination, and
retaliation, in violation of Johnson’s Fourteenth Amendment equal protection rights
and First Amendment free speech rights. Counts Six and Seven assert 42 U.S.C. §
2000e (Title VII) claims against the City for alleged racial harassment, discrimination,
and retaliation.1 Identical facts underlie the § 1981, § 1983, and Title VII claims.
The defendants moved to dismiss the § 1983 claims, arguing that the Civil
Rights Act of 1991 made Title VII the exclusive remedy for workplace discrimination,
1
Count Eight asserts a 42 U.S.C. § 1985 claim against the individual defendants for alleged
conspiracy to violate Johnson’s § 1981 and Thirteenth Amendment rights. This count is not at
issue on this appeal.
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harassment, and retaliation by a municipality and its employees.2 The district court
denied the motion, but granted the parties the right to immediately appeal pursuant to
28 U.S.C. § 1292(b), recognizing that its order “involve[d] controlling questions of
law as to which there are substantial grounds for differences of opinion.” Johnson v.
City of Fort Lauderdale, 903 F. Supp. 1520, 1529 (S.D.Fla. 1995). We granted the
defendants’ subsequent petition for interlocutory review.3
We note at the outset that the viability of Johnson’s Title VII claims is not at
issue on appeal. The sole issue before this court concerns the viability of Johnson’s
§ 1983 claims, specifically whether the Civil Rights Act of 1991 renders Title VII and
§ 1981 the exclusive remedies for public sector employment discrimination, thereby
preempting parallel constitutional claims under § 1983. Because the district court
properly concluded that the Act did not effect such a change, we affirm.
In the wake of the Civil Rights Act of 1991, several courts have faced the same
issue involved in this appeal. The Fourth Circuit and a number of district courts have
rejected the argument that the Act implicitly rendered Title VII and § 1981 the
2
The defendants also moved to dismiss the § 1981 claim. The district court granted
dismissal against the City only, citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109
S. Ct. 2702, 2722 (1989)(holding that § 1983 is the exclusive federal remedy for violation of the
rights guaranteed in § 1981 by state governmental units).
3
We review de novo a question of law certified by the district court pursuant to § 1292(b).
See Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996) (reviewing de novo a question of law);
Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir. 1987) (reviewing de novo a question of law
certified pursuant to § 1292).
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exclusive remedies for public sector employment discrimination. See, e.g. Beardsley
v. Webb, 30 F.3d 524, 527 (4th Cir. 1994); Stoner v. Department of Agric., 846
F. Supp. 738, 740-41 (W.D.Wis. 1994). The District of Puerto Rico accepted the
argument. See Marrero-Rivera v. Dept. of Justice of the Com. of Puerto Rico, 800
F. Supp. 1024, 1032 (D.P.R. 1992).
Like the defendants in those cases, the defendants here do not argue that the
Civil Rights Act of 1991 explicitly rendered Title VII and § 1981 the exclusive
remedies for public sector employment discrimination. Instead, they argue that such
exclusivity is implied from (1) the Act’s inclusion of a savings clause related to §
1981 and deliberate exclusion of a similar savings clause related to § 1983; and (2) the
Act’s comprehensive remedial scheme.
In support of their first argument, the defendants point out that the Act includes
a savings clause concerning the continuing viability of § 1981, yet omits such
language related to § 1983. See 42 U.S.C. § 1981a(b)(4) (“Nothing . . . shall be
construed to limit the scope of, or the relief available under, [§] 1981. . . .”).
According to the defendants, such omission evinces congressional intent to preempt
§ 1983.
As the Fourth Circuit concluded in Beardsley, legislative history does not
support this position. A House Committee Report indicates that the new provision
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containing the savings clause was intended to counteract the effects of Patterson v.
McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363 (1989), a decision which
narrowly interpreted § 1981's scope. See H.R.REP. NO. 102-40(I), at 89-93 (1991),
reprinted in 1991 U.S.C.C.A.N. 549, 627-30. Such concern with § 1981's scope does
not establish that Congress intended to limit § 1983's scope. Beardsley, 30 F.3d at
527; see also Stoner, 846 F. Supp. at 740-41 (“Given the very narrow purpose
underlying the adoption of the § 1981 savings clause, it is not possible to draw any
clear inference from that clause about Congress’s intent for § 1983 causes of action.”).
The defendants also point out that a provision which would have specified both
broad construction of civil rights laws and preservation of other civil rights statutes--
including § 1983--was proposed and adopted by the House in a former version of the
Act, but was not included in the Act that eventually became law. See 137 CONG. REC.
H3924 (daily ed. June 5, 1991). According to the defendants, this omission most
logically implies that “the political forces at work sacrificed duplicative constitutional
claims under § 1983 in order to keep intact § 1981.”
We decline to infer such a political give and take. The legislative history
concerning the omission of the provision from the Act that eventually became law is
ambiguous at best. Perhaps the drafters were influenced by the minority view
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expressed in a House Report that the provision would amend all federal civil rights
laws, repeal long-standing canons of statutory interpretation, “open the gates” to a
flood of litigation, and invite “uncontrolled judicial interpretations ranging far beyond
the words of the statute.” See H.R. REP. NO. 102-40(I), at 158, reprinted in 1991
U.S.C.C.A.N. 687. Perhaps the drafters thought that the provision was unnecessary.
See Stoner, 846 F. Supp. at 741. In any event, the omission “sheds little light” on
Congress’s intent to preserve or preempt § 1983 remedies for municipal employees.
Id.
The defendants rely on Middlesex County Sewerage Auth. v. National Sea
Clammers Ass’n, 453 U.S. 1, 101 S. Ct. 2615 (1981), to support their argument that
the comprehensive remedial scheme for Title VII contained in the Civil Rights Act of
1991 implies § 1983 preemption. In National Sea Clammers, the Supreme Court
concluded that the elaborate remedial provisions of the Federal Water Pollution
Control Act and the Marine Protection, Research, and Sanctuaries Act of 1972
indicated congressional intent to foreclose reliance on § 1983 remedies for violations
of the Acts. The Court reached a similar conclusion in Smith v. Robinson, 468 U.S.
992, 1012, 104 S. Ct. 3457, 3468 (1984). There, the Court concluded that the
comprehensive remedial structure and the legislative history of the Education of the
Handicapped Act evinced congressional intent that the Act be the exclusive avenue
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through which a plaintiff could assert an equal protection claim related to publicly
financed education; thereby preempting such an equal protection claim based on §
1983. A contrary conclusion, according to the Court, would render superfluous the
Act’s detailed procedural protections. Id. at 1011, 104 S.Ct. at 3468. The Court
noted, however, that it did not “lightly conclude that Congress intended to preclude
reliance on § 1983 as a remedy for a substantial equal protection claim. Since 1871,
. . . § 1983 has stood as an independent safeguard against deprivations of federal
constitutional . . . rights. . . . The crucial consideration is what Congress intended.”
Id. at 1012, 104 S.Ct. at 3468 (citations omitted).
The legislative history accompanying Title VII reflects congressional intent to
retain, rather than preempt, § 1983 as a parallel remedy for unconstitutional public
sector employment discrimination. This conclusion was reached by a number of
circuits prior to the Civil Rights Act of 1991, see, e.g., Keller v. Prince George’s
County, 827 F.2d 952, 958 (4th Cir. 1987)(concluding that the legislative history
behind Title VII as originally amended by the Equal Employment Opportunity Act of
1972 “clearly indicates” that the Act was not intended to “preempt the preexisting
remedy under § 1983 for violations of the fourteenth amendment by state
employers”); Beardsley, 30 F.3d at 527 (“This and other circuits have long recognized
that prior to 1991 Congress did not intend Title VII to be the sole remedy for a public
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employee’s claim of employment discrimination.”),4 and nothing in the Civil Rights
Act of 1991 indicates congressional intent to overrule this appellate case law. Id. It
is “more reasonable to presume that Congress intended both avenues of relief to
remain open.” Id. (citing Lorillard v. Pons, 434 U.S. 575, 580, 98 S. Ct. 866 (1978));
see also Stoner, 846 F. Supp. at 741 (questioning how a “mere change in the remedial
scheme of Title VII” could change earlier case law holding that the
comprehensiveness of the remedial scheme of Title VII was insufficient to bar the use
of § 1983 in public sector employment discrimination cases); Annis v. County of
Westchester, N.Y., 36 F.3d 251, 254 (2d Cir. 1994) (“[I]t is clear that Congress did
not intend to make Title VII the exclusive remedy for employment discrimination
claims, at least not those claims cognizable under the Constitution.”).
This presumption is supported by the congressional finding accompanying the
Civil Rights Act of 1991 that “additional” and “adequate” remedies were needed to
deter workplace harassment and discrimination. See 42 U.S.C. § 1981, note (1994).
As the Fourth Circuit pointed out, “[i]t would be perverse to conclude that the
Congress that provided additional remedies simultaneously intended silently to
4
This circuit has allowed parallel claims under both Title VII and § 1983 in public sector
employment discrimination cases without specifically addressing the issue of whether Congress,
before the Civil Rights Act of 1991, intended § 1983 preemption. See, e.g., Cross v. State of Ala.,
49 F.3d 1490, 1507 (11th Cir. 1995). In those cases, we held that the elements for both the Title VII
and § 1983 claims were the same. See id.
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extinguish the remedy that § 1983 has provided for many years.” Beardsley, 30 F.3d
at 527.
The defendants assert that if we do not infer congressional intent to preempt §
1983, public employees will be able to undermine Title VII’s procedural safeguards
by suing directly under § 1983 for unconstitutional employment discrimination.
While this may be true, such a result is merely “a byproduct” of Congress’s choice to
make multiple remedies available. See Keller, 827 F.2d at 958; see also Ratcliff v.
City of Milwaukee, 795 F.2d 612, 623-24 (concluding that a plaintiff may use § 1983
to escape the comprehensive scheme of Title VII even if the same facts suggest a
violation of Title VII); Trigg v. Fort Wayne Community Schools, 766 F.2d 299, 302
(7th Cir. 1985)(same); Annis, 36 F.3d at 254 (reversing district court’s determination
that plaintiff alleging employment discrimination may not bring an action solely under
§ 1983, but had to also plead a violation to Title VII and follow those procedures).
For these reasons, we conclude that the Civil Rights Act of 1991 did not render
Title VII and § 1981 the exclusive remedies for public sector employment
discrimination, thereby preempting a constitutional cause of action under § 1983.
Accordingly, we affirm the district court’s order denying the defendants’ motion to
dismiss Johnson’s § 1983 claims.
AFFIRMED.
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