Crain v. Judson Independent School District
Filing
90
ORDER GRANTING IN PART AND DENYING IN PART 82 , ( Jury Selection and Trial reset for 11/26/2018 9:30AM before Judge Xavier Rodriguez, Pretrial Conference set for 11/1/2018 9:30 AM before Judge Xavier Rodriguez,). Signed by Judge Xavier Rodriguez. (mgr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ALTON CRAIN,
Plaintiff,
v.
JUDSON INDEPENDENT SCHOOL
DISTRICT,
Defendant.
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Civil Action No. SA-16-CV-832-XR
ORDER
On this date, the Court considered Plaintiff’s Partially Unopposed Motion for Leave to
File Third Amended Complaint (docket no. 82) and the response and reply thereto.
In August 2016, Plaintiff Alton Crain filed this lawsuit pro se, asserting claims under
Title VII and the Equal Pay Act for race and sex discrimination against his employer, Judson
ISD. Because the Title VII claims were not yet fully exhausted, Plaintiff could not proceed on
these claims initially, and the Title VII claims were dismissed without prejudice. The claims
were exhausted in May 2017, and Plaintiff filed an amended complaint asserting both the
Equal Pay Act and Title VII claims in June 2017.
After a discovery dispute that was referred to the Magistrate Judge in September 2017,
the Court extended the discovery deadline to December 31, 2017. After another discovery
dispute, the Court held a hearing, after which it appointed counsel for Plaintiff. The order
required Defendant to provide certain documents and permit a 30(b)(6) deposition and advised
that Plaintiff could move to re-open discovery. The order further permitted Plaintiff to “file an
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Amended Complaint, with the amendment limited to existing claims and the addition of a
request for attorney’s fees.” Appointed counsel filed an appearance on December 11.
On February 23, Plaintiff filed a partially unopposed motion to file an amended
complaint. The motion is unopposed insofar as the proposed amended complaint clarifies the
existing Title VII and Equal Pay Act claims, but is opposed to the extent it seeks to add a new
claim under § 1983. The Equal Pay Act claim alleges that Judson has discriminated against
Crain by paying him less than female teaching staff, and includes a retaliation claim. The Title
VII claim asserts discrimination on the basis of race and sex, and includes a retaliation claim.
The proposed § 1983 claim alleges that Judson ISD has violated Crain’s “constitutional
rights,” specifically by instituting a pretextual policy change forcing a conflict in scheduling in
August 2014 and by requiring him to accept a lower hourly rate than that paid to female
teaching staff for work after September 2014.
Defendant opposes amendment to allow the new § 1983 claim, arguing that it is
outside the scope of the leave permitted and good cause does not support the amendment.
Defendant contends that the new claim would cause prejudice “as it would require essentially
restarting the case,” including reopening discovery. Plaintiff recognizes that the Court
permitted amendment only with regard to existing claims and the addition of a claim for
attorney’s fees, but asserts that “the § 1983 claim is based on the same operative facts and
transactions as Plaintiff’s Title VII and Equal Pay Act claims and would relate back for
limitations purposes to the filing of Plaintiff’s original complaint.” Plaintiff thus asserts that
the claim requires no new discovery, and merely required knowledge of the law that a pro se
plaintiff would not have.
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Standard
Generally, Rule 15(a) of the Federal Rules of Civil Procedure governs amendment of
pleadings before trial. Rule 15(a) permits a party to amend a pleading with the opposing
party’s consent or the Court’s leave, and provides that leave should be given “freely . . . when
justice so requires.” FED. R. CIV. P. 15(a). The decision to grant or deny a motion to amend is
within the sound discretion of the trial court. Avatar Exploration, Inc. v. Chevron, U.S.A., Inc.,
933 F.2d 314, 320 (5th Cir. 1991). In exercising its discretion, the court considers such factors
as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowing
the amendment, and futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962).
Motions to amend filed after the court-ordered deadline to amend pleadings are also
subject to the stricter “good cause” standard of Rule 16. Sw. Bell Tel. Co. v. City of El Paso,
346 F.3d 541, 546 (5th Cir. 2003). Rule 16(b) requires that a party show good cause for not
meeting the deadline before the more liberal standard of Rule 15(a) will apply. Four factors
are relevant to good cause: “(1) the explanation for the failure to timely move for leave to
amend; (2) the importance of the amendment; (3) potential prejudice in allowing the
amendment; and (4) the availability of a continuance to cure such prejudice.” Id.
Analysis
Because even the more lenient standard of Rule 15 precludes amendment where it
would be futile, the Court first addresses this threshold inquiry to determine whether addition
of a § 1983 claim is permissible in these circumstances, where the underlying conduct for both
claims is the same.
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Section 1983 provides that any person who, under color of state law, deprives another
of “any rights, privileges or immunities secured by the Constitution and laws shall be liable to
the party injured.” 42 U.S.C. § 1983. In Johnston v. Harris County Flood Control District, 869
F.2d 1565 (5th Cir. 1989), the Fifth Circuit addressed the relationship between Title VII and §
1983. It held that Title VII is the exclusive remedy for a violation of its own terms, and thus a
violation of Title VII alone is not an underlying statutory violation for purposes of imposing
liability under § 1983. Id. at 1573. “But when a public employer’s conduct violates both Title
VII and a separate constitutional or statutory right, the injured employee may pursue a remedy
under § 1983 as well as under Title VII.” Id.
The Johnston Court examined Supreme Court precedent indicating that the remedies
available under Title VII and § 1981 are co-extensive and not mutually exclusive, and found
that “the legislative history of Title VII manifests a congressional intent to allow an individual
to pursue independently his rights under both Title VII and other applicable state and federal
statutes,” including §§ 1983 and 1981. Id. at 1574-75. The Court also pointed to its prior
precedent in which it “effectively recognized that Title VII does not preclude an action under §
1983 arising from the same facts.” Id. at 1575. In sum, the Court concluded,
Although Title VII supplements and overlaps § 1983, it remains an exclusive
remedy when a state or local employer violates only Title VII. When, however,
unlawful employment practices encroach, not only on rights created by Title
VII, but also on rights that are independent of Title VII, Title VII ceases to be
exclusive. At this point, § 1983 and Title VII overlap, providing supplemental
remedies.
Id. at 1576. Thus, because the Plaintiff sought to vindicate rights independent of the rights
Title VII created, specifically his Title VII right to be free from retaliation for testifying at an
EEO hearing and his First Amendment right to testify freely before the Commissioner’s Court
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because that testimony was protected speech, he could pursue remedies under both statutes. Id.
at 1575-76.
Seven years later, however, another Fifth Circuit panel considered Jackson v. City of
Atlanta, Tex., 73 F.3d 60 (5th Cir. 1996). In Jackson, an African-American male sued the City
and individual defendants for racial discrimination under both Title VII and § 1983, and it was
undisputed that “these two federal claims arise out of identical fact situations and identical
allegations of racial discrimination.” Id. at 61. In a discussion called “when § 1983 and Title
VII meet,” the Court agreed with the defendants that “allegations of discriminatory treatment
in connection with public employment that form the basis of a Title VII claim cannot form the
basis of a second, separate claim under § 1983 as well.” Id. at 63. It reasoned that Congress
intended for Title VII, with its own substantive requirements, procedural rules, and remedies,
to be the exclusive means by which an employee may pursue a discrimination claim and that
allowing a plaintiff to state a discrimination claim under § 1983 as well would enable him to
sidestep the detailed and specific provisions of Title VII. Consequently, it held that § 1983 was
“not available to [the plaintiff] for either alternative or additional relief” when the allegations
of racial discrimination were “sufficient to establish a clear violation of Title VII.” Id. As a
result, it held that the § 1983 claim should have been dismissed.
The Court reconciled these two decisions in Southard v. Texas Board of Criminal
Justice, 114 F.3d 539 (5th Cir. 1997). In Southard, female employees sued for sexual
harassment and hostile work environment under Title VII and § 1983 and § 1985 (conspiracy).
In a discussion called “the intersection of 42 U.S.C. § 1983 and Title VII,” the Court
addressed the argument that the claims under 42 U.S.C. §§ 1983 and 1983(5) were precluded
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“because Title VII provides the exclusive remedy in this federal employment discrimination
suit.” Id. at 548. The defendant argued that the trial judge erred as a matter of law in allowing
plaintiffs to assert both Title VII and § 1983 claims based on the same underlying facts, citing
Jackson v. City of Atlanta. The Southard Court reasoned:
In Jackson, the court emphasized that plaintiffs alleged the same
conduct to support a claim under both statutes. However, in Johnston v. Harris
County Flood Control Dist., the plaintiff’s claims under both Title VII and
section 1983 were also based on identical facts and identical allegations. In
Johnston, this court found that because the allegedly discriminatory conduct
violated rights under Title VII and rights independent of Title VII, the same
facts created claims under both remedies. Jackson is inconsistent with
Johnston, and Johnston, as the earlier opinion, controls our decision in this
case.
The Johnston result is consistent with that reached by other circuits
considering the question. These courts have found that a public sector
employee may assert claims of racially discriminatory employment practices
under both Title VII and section 1983, because the Constitution provides a right
independent of Title VII to be free from race discrimination by a public
employer.
In this case, plaintiffs alleged sexual harassment and sex discrimination
by their public employer. Sex discrimination and sexual harassment in public
employment violate the Equal Protection Clause of the Fourteenth Amendment.
The circuits addressing the issue have allowed plaintiffs suing their public
employers for sexual harassment and sex discrimination to assert claims under
both Title VII and section 1983.
Plaintiffs’ allegations of sex discrimination and sexual misconduct
assert claims under sections 1983 and 1985(3) that are not preempted by Title
VII.
Id. at 549-50 (citations omitted).
In 2001, the Fifth Circuit included in dicta the following footnote:
[T]he district court stated that even if Evans had alleged a racial
discrimination claim under § 1983, her claim would still fail. Citing Jackson v.
City of Atlanta, 73 F.3d 60, 63 (5th Cir.1996), the court concluded that Title
VII was the exclusive remedy for Evans’s claims of employment
discrimination, and thus, she could not pursue her claims under § 1983. This
conclusion is incorrect. In Southard v. Texas Board of Criminal Justice, 114
F.3d 539 (5th Cir.1997), a panel of this court pointed out that Jackson was
inconsistent with an earlier panel opinion, Johnston v. Harris County Flood
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Control District, 869 F.2d 1565 (5th Cir.1989), in that the Jackson panel found
that because the plaintiff in Jackson had predicated his Title VII and § 1981
claims on the same discriminatory acts, the plaintiff was precluded from suing
under both statutes. See Southard, 114 F.3d at 549. Instead, the Southard panel
clarified that even if a plaintiff alleges the same conduct for both Title VII and
§ 1981 claims, he or she may seek redress under both statutes, as long as the
“conduct violates both Title VII and a separate constitutional or statutory
right.” Id.
Evans v. City of Houston, 246 F.3d 344, 356 n.9 (5th Cir. 2001).
Although Southard and Evans would appear to have settled the matter, as exemplified
in Jones v. City of Port Arthur, No. 1:12-CV-287, 2013 WL 149706 (E.D. Tex. Jan. 11, 2013),
the intersection of § 1983 and Title VII and the Jackson and Johnston decisions continue to
generate controversy. The Magistrate Judge in Jones had concluded that although the plaintiff
could not pursue claims under Title VII because he had not timely exhausted his
administrative remedies, he could pursue a claim under § 1983, which does not require
exhaustion. The defendants objected and relied on Jackson, noting that a district court had
followed Jackson as recently as 2012, and arguing that Southard and Evans “misinterpreted
and misunderstood Jackson.” Id. at *3. The defendants pointed out that in Johnston, the Fifth
Circuit allowed a claim to proceed under § 1983 for First Amendment violations (violation of
the First Amendment right to testify before a commissioner’s court) that could not have been
brought under Title VII, while Jackson dismissed the § 1983 discrimination claim that was
essentially identical to the Title VII claim. The defendants asserted that the court in Southard
“misinterpreted an alleged inconsistency between the results in the Johnston and Jackson
opinions in reaching their alleged differing conclusions, when it stated that Johnston and
Jackson were based on identical facts and identical allegations.” E.D. Tex. No. 1:12-CV00287-RC-ZJH Docket no. 36 at 5 n.2. Defendants argued that “[w]hile the factual basis may
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have been similar, or even identical, as established above the Jackson case involved identical
discrimination in employment rights under Title VII and the l4th Amendment, whereas
Johnston involved rights that were not identical, and were legally independent of one another.”
Id. The defendants argued that the language in Evans was dicta and was based on the same
misunderstanding. Id. The district court did not share the defendants’ criticism and declined to
follow district court cases that continued to cite Jackson, instead holding that “Title VII does
not provide the exclusive remedy for discrimination claims against a government employer”
and holding that the plaintiff could proceed with his § 1983 claims. Id.
It appears settled that a public employee cannot sue his employer under § 1983 for
violating Title VII. And although there remains some uncertainty, most cases hold that a
public employee can bring parallel causes of action against the government employer under
Title VII (for Title VII violations) and under § 1983 for separate constitutional violations, even
if both claims are premised on the same facts and conduct, though these cases generally
involve Title VII claims against public employers and § 1983 claims against non-employer
individuals. Robertson v. Bd. of Sup’rs of La. State Univ., 273 F.3d 1108 (5th Cir. 2011)
(unpublished) (holding that Title VII does not provide the exclusive remedy for race
discrimination in employment even when the § 1983 claims are based on the same facts);
Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 490 (5th Cir. 2011) (in addition to Title
VII, a “plaintiff may also assert claims of racial discrimination and retaliation against a
government entity under 42 U.S.C. § 1981 and § 1983”); Lauderdale v. Tex. Dep’t of Crim.
Justice, 512 F.3d 157, 165 (5th Cir. 2007) (“Section 1983 and Title VII are ‘parallel causes of
action.’”); Hunter v. Jefferson Parish Public Sch. Sys., No. 17-2015, 2017 WL 4619741 (E.D.
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La. Oct. 13, 2017) (“Section 1983 claims and Title VII claims may be asserted concurrently . .
. .”); Gallentine v. Houstin Auth. of City of Port Arthur, Tex., 919 F. Supp. 2d 787, 810 (E.D.
Tex. 2013) (plaintiff may assert claims under Title VII and § 1983 even if based on the same
conduct so long as the conduct violates both Title VII and a separate constitutional or statutory
right); Davis v. Dallas Area Rapid Transit, No. 3:01-CV-2595-M, 2002 WL 172646, at *3-4
(N.D. Tex. Feb. 1, 2002) (“The Southard court clarified that even if a plaintiff alleges the same
conduct for both Title VII and § 1983 claims, she may seek redress under both statutes, as long
as the ‘conduct violates both Title VII and a separate constitutional or statutory right.”).
Accordingly, the Court will presume that amendment to include the § 1983 claim would not be
futile.
The Court thus turns to the good-cause factors: (1) the explanation for the failure to
timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice
in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.
Plaintiff contends that the failure to move for leave to amend to add the § 1983 claim is due to
the fact that Plaintiff was proceeding pro se and would not have known of the availability of a
§ 1983 cause of action. The Court finds that failure to move to amend previously was not
intentional.
With regard to the importance of the amendment, the Court finds that the amendment
is not important on these facts because the § 1983 claim provides no additional relief not
available to Plaintiff under Title VII. Plaintiffs commonly use § 1983 to assert claims against
individuals who do not qualify as employers under Title VII, and thus the § 1983 claim
provides supplemental relief to the Title VII claim. See, e.g., Rafique v. City of Fort Worth,
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No. 4:06-CV-645-Y, 2007 WL 4754768 (N.D. Tex. Nov. 13, 2007); Sylvie v. City of Dallas,
No. 3:01-CV-1549, 2002 WL 1155857 (N.D. Tex. May 29, 2002). Here, however, Plaintiff
asserts claims only against Judson ISD, and thus the § 1983 claim provides no additional relief
not already available under the Title VII Claim.
With regard to the potential prejudice in allowing amendment, the Court finds that the
amendment would cause prejudice to Defendant. When a plaintiff contends that he has been
discriminated against in his employment in violation of the equal protection clause of the
Fourteenth Amendment, the evidentiary framework for Title VII cases is used to determine
whether the defendant intentionally discriminated against the plaintiff. Thus, the “inquiry into
intentional discrimination is essentially the same for individual actions brought under § 1983
and Title VII.” Lauderdale, 512 F.3d at 165; Lawrence v. Univ. of Tex. Medical Branch, 163
F.3d 309, 311 (5th Cir. 1999) (“Employment discrimination claims brought under 42 U.S.C.
§§ 1981, 1983, and 2000d are analyzed under the evidentiary framework applicable to claims
arising under Title VII of the Civil Rights Act of 1964, as amended at 42 U.S.C. § 2000e et
seq.”); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993). 1 Thus,
additional discovery would not be required on this aspect of the claim.
However, because liability under § 1983 can be found against a governmental entity
only if based on official custom or policy or the actions of an official policymaker, the § 1983
claim would add an additional layer of complexity to this case and require additional
discovery. As such, the Court finds that it would prejudice Defendant. Although a continuance
could provide the time to conduct this additional discovery, the Court finds that it would not
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However, there is language in some cases indicating that there may be some aspects, such as what constitutes an
adverse employment action, that may differ. See McCullough v. Houston Cty., Tex., 287 F. App’x 282, 287 (5th
Cir. 2008) (noting that “adverse employment action” is defined more broadly under § 1983 than it is under Title
VII). If so, this could be confusing to a jury if this case proceeds to trial.
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cure all prejudice, especially given the length of time that this case has already been pending.
A continuance would result in additional delays and costs, while providing no additional
benefit to Plaintiff in terms of relief. The potential prejudice, coupled with the lack of
importance of the amendment, weigh heavily against amendment.
CONCLUSION
Based on a consideration of the good-cause factors and in exercising its discretion, the
Court finds that amendment to include a new § 1983 claim is not warranted. The motion for
leave to amend (docket no. 82) is GRANTED IN PART and DENIED IN PART. The motion
is DENIED as to the addition of a § 1983 claim but GRANTED in all other respects.
AMENDED SCHEDULING ORDER
The Court further finds that the trial in the case should be re-set in light of Defendant’s
advisory. Accordingly, the deadline to file a Final Joint Pretrial Order and any motion in
limine is October 24, 2018.
The Final Pretrial Conference shall be held on Thursday, November 1, 2018 at 9:30
a.m.
The Jury Trial Date is November 26, 2018 at 9:30 a.m.
It is so ORDERED.
SIGNED this 3rd day of April, 2018.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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