Joint Appendix — Patsy v. Board of Regents of Fla.

Supreme Court brief1982

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Text

No. 80-1874

AS.

CLERK

IN THE

nia Court of the Hnited States

OCTOBER TERM, 1981

GEORGIA PATSY,

Petitioner,

—

BOARD OF REGENTS OF THE STATE OF FLORIDA, A BODY CORPORATE,

FoR AND ON BEHALF OF FLORIDA INTERNATIONAL UNIVERSITY,

Respondents.

* ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

— ————

: Wes JOINT APPENDIX

__ CHARLEs §,. SIMs, JEFFREY H, KLINK,

-. Counsel of Record Counsel of Record

_ BRUCE J. ENNIS, Jr. ’ Mahoney, Hadlow & Adams

JOEL M. GORA 800 Barnett Bank Building

E. RICHARD LARSON’ 100 Laura Street

American Civil Liberties P.O. Box 4099

‘Union Foundation Jacksonville, Florida 32201

132 West 43rd Street (904) 354-1100

rvesthah York 10036 MITCHELL D. FRANKS

| Dept. of Legal Affairs

STEVEN R. SHAPIRO Office of the Attorney General

New York, New York Suite 1501

The Capitol

' AVIAM SOIFER

“p Tallahassee, Florida 32301

” Cambridge, Massachusetts (904) 488-1573

gs Sean Sar Rees Counsel Jor Respondents

Petition for Certiorari Filed May 7, 1981

Certiorari Granted October 5, 1981

JOINT APPENDIX

TABLE OF CONTENTS

Relevant Docket Entries ....++-e««-. i

Complaint (February 7, 1979) ...... 1

Defendant's Motion to Dismiss March 5,

1979) . ‘ . . . . . . 7 . . *. . . . os . <

Defendant's Memorandum in Support of

Defendant's Motion to Dismiss (March

5, 1979) . . . . . . . . . . . 7 . - . 14

Plaintiff's Memorandum in Opposition to

Defendant's Motion to Dismiss (March

12, 1979) . . . . . . . . . 7 . . . . . 20

OrGer of April 9, 1979 ...-«-e-eee ee 49

Amended Complaint (April 19, 1979) ... 29

Defendant's Motions to Dismiss the Amended

Complaint Complaint (June 8, 1979) .. 58

Memorandum in Support of Defendant's

Motions to Dismiss the Amended

Complaint (June 8, 1979) ....e.-.

Plaintiff's Memorandum in Opposition to

Denfendant's Motion to Dismiss .... 83

Gamer @e duay 8, 2978 . ce eo ss sss Se

The opinions and judgments below are set forth

as appendices to the Petition for Certiorari

ll.

12.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

GEORGIA PATSY

BOARD OF REGENTS

of the State of Florida,

No. 79-732-CIV-JAG

RELEVANT DOCKET ENTRIES

Complaint. ($500,000.00+).

Motion to dismiss complaint

(Deft).

Memo of law in support of

above motion. (Deft).

Memo in opposition to

deft's motion to dis-

miss. (Pltf).

ORDER: Deft's motion to

dismiss complaint

GRANTED. Plitf have 20

days from date of order

to file w/court amended

complaint

Amended Complaint.

Feb.

Mar.

Apr.

12,

19,

1979

14,

15.

17.

18.

19.

20.

ii-

RELEVANT DOCKET ENTRIES

Motions to dismiss

amended complaint &

alternative motion for

a more definite state-

ment. (Deft Fla. Board

of Regents)

Memo in support of

above motion. (Deft.

Fla. Board of Regents)

Memo in opposition to

deft's motion to dis-

miss. (Pltf).

ORDER: Deft's motion to

dismiss GRANTED for

pltf's failure to ex-

haust administrative

remedies. (7/9/79-

JAG) M-7/25/79.

NOTICE OF APPEAL

ed by pltf from

Order dismissing pltf's

complaint entered 7/9/79.

COST BOND ON APPEAL in

amount of $250.00 de-

posited w/registry of

Court by pltf/appellant.

June

July

14,

ll,

26,

1979

-iii-

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-2965

Brief for Appellant filed

Brief for Appellee filed

Reply Brief for Appellant

filed

Opinion, Reversed and

Remanded

Appellee's Petition for

Rehearing En Banc filed

Order for Rehearing

En Banc

Brief for Appellant filed

Brief for Appellee filed

Opinion, Vacated and

Remanded

1979

1980

oje

[CAPTION]

Complaint

COMES NOW, GEORGIA PATSY, Plaintiff herein,

by and through her undersigned counsel, com-

plaining of the above Defendant and for cause

of action would respectfully show unto the

Court as follows:

JURISDICTION

1. Jurisdiction is conferred on this

Court by 28 U.S.C., Section 1343(3) which pro-

vides for original jurisdiction of this Court

in all actions authorized by 42 U.S.C., Section

1983 to redress the deprivation under color of

law of any right, privilege or immunity secured

by the Constitution of the United States,

specifically the Fifth, Ninth and Fourteenth

Amendments.

II.

PRELIMINARY STATEMENT

4 GEORGIA PATSY, a white female American

and an employee of the above captioned Univer-

sity, seeks redress for discrimination due to

her race, suffered by her in violation of the

Constitution and the laws of the United States.

Specifically, Plaintiff alleges she has been

denied employment opportunities for which she

is well qualified within the above captioned

University, while there has been an intentional

and concerted effort by the University to pro-

mote and hire minorities to available positions

for which Plaintiff has applied.

Itt.

PARTIES

3. GEORGIA PATSY, Plaintiff, is a citizen

of the United States and a resident of the

Southern District of Florida. Plaintiff is

employed by FLORIDA INTERNATIONAL UNIVERSITY

and has attained permanent status within the

personnel system of the State of Florida.

4. The Defendant, FLORIDA INTERNATIONAL

UNIVERSITY, is a Division of the State Univer-

sity of Florida and it possesses and exercises

all powers necessary for the maintenance of an

upper level university.

Iv.

STATEMENT OF CLAIM

5. On June lst, 1972, Plaintiff began

employment as a Clerk Typist III, with Defen-

dant University, and is presently classified as

a Secretary III.

6. Plaintiff's education consists of a

Bachelor of Education Degree (cum laude) from

the University of Miami and a Master of Science

Degree in Administration and Supervision of

Adult Education from Florida International

University. Plaintiff has had continuing

teaching experience in the Dade County, Florida,

Adult Education Program.

Ve During the six (6) years while Plain-

tiff has been employed at the Defendant Univer-

sity, she has applied for numerous employment

openings within the Defendant University and

has been uniformly rejected with many Latins

and non-whites having been selected iz) place

of the Plaintiff.

8. The following is a partial list of

available positions advertised by the Defendant

for which Plaintiff applied for, but was rejected:

Position with Career Development

and Placement Department

Interim Counselor in School Education

Liason Officer and Student Affairs

Coordinator

Continuing Education Coordinator

Coordinator/Director Alumni Affairs

Vocational Counselor II

Personnel Aide

College Work-Study Coordinator

Conference Coordinator

University Public Functions Manager

Financial Aid Counselor

Student Affairs Coordinator

Admissions Counselor

9. The former President of FLORIDA

INTERNATIONAL UNIVERSITY, Charles Perry has

recognized that Plaintiff's background qualifies

her for a higher position than the Secretary III

position then and now held. See Exhibit "A"

attached hereto and made a part hereof.

10. The professional skill and management

abilities of the Plaintiff have been recognized

by the Head of the Department of Psychology at

FLORIDA INTERNATIONAL UNIVERSITY. See Exhibit

"B" attached hereto and made a part hereof.

ll. The Performance Appraisal. conducted

annually in accordance with the State of Florida

Personnel System shows the Plaintiff to be

outstanding, not only with respect to her assigned

tasks, but innovative, resourceful, efficient

and functioning more as a Staff Assistant than

as a Secretary. See Exhibit "C" (composite)

attached hereto and made a part hereof.

ll(a). The Defendant has engaged in em-

ployment practices which have discriminated

against Plaintiff on the basis of her race and/or

sex in the promotion of its employees.

12. The Defendant has maintained and

continues to maintain a policy of preference to

minority applicants for both available admin-

istrative and non-administrative positions which

results in discrimination against the Plaintiff,

a white-female, contrary to the Constitution

and laws of the United States.

13. FLORIDA INTERNATIONAL UNIVERSITY has

continually sought out individuals from minority

groups to fill positions resulting in discrimina-

tion against the Plaintiff, contrary to the

Constitution and laws of the United States.

See Exhibits "D" and "E" attached hereto and

made a part hereof.

14. FLORIDA INTERNATIONAL UNIVERSITY

through its agents, deceived Plaintiff into

believing that she was being considered for a

position she applied for when in reality,

Plaintiff's name had not been submitted as one

of the final candidates for the position of

Interim Counselor. See Exhibit "F" (composite)

attached hereto and made a part hereof.

15. FLORIDA INTERNATIONAL UNIVERSITY not

only rejected Plaintiff for positions for which

she was qualified and had applied, but rejected

Plaintiff for a position for which she had not

applied. See Exhibit "G" attached hereto and

made a part hereof.

16. FLORIDA INTERNATIONAL UNIVERSITY as

further evidence of its discriminatory policies

maintains files on qualified applicants for

positions by segr@€gating them as follows:

White, Black, Male, and Female, contrary to

Federal law and Equal Employment guidelines.

16(a). The acts and practices by the

Defendant described in this complaint constitute

a pattern and practice of resistance to the full

enjoyment of the right to equal employment

opportunities without distinction based on

race and/or sex and such acts and practices

are intended to deny the full exercise of rights

secured by the Constitution and laws of the

United States.

17. An actual controversy exists between

the Plaintiff and Defendant in that Plaintiff

contends that the actions of FLORIDA INTERNATIONAL

UNIVERSITY are in violation of the Due Process

Clause of the Fourteenth Amendment to the United

States Constitution. Plaintiff is in doubt as

to her status and rights under the Constitution

of the United States and seeks a declaration of

the legal and constitutional rights of the

parties with respect to the subject matter of

this action.

18. Plaintiff will continue to suffer

immediate and irreparable injury, loss of damage

unless this Court grants the injunctive relief

sought. There is no plain, adequate or speedy

remedy at law to redress these deprivations.

CLAIMS FOR RELIEF

19. There exists between the parties an

actual controversy as heretofore set out. The

Plaintiff is suffering and is threatened with

immediate and irreparable injury as a result

of the actions of the Defendant stated above.

The Plaintiff has no plain nor adequate remedy

at law to redress the wrongs and unlawful con-

duct complained of herein. FLORIDA INTERNATIONAL

UNIVERSITY has severly damaged Plaintiff by its

discriminatory practices and has painfully

stigmatized Plaintiff, and continues to do so.

By the actions of FLORIDA INTERNATIONAL UNIVER-

SITY, Plaintiff has been discriminated against

and denied due process of law in violation of

-10-

her rights under the Fifth, Ninth and Fourteenth

Amendments to the United States Constitution.

The Defendant has acted in violation of Title

42, U.S.C., Section 1983, to inflict said depriva-

tions on the Plaintiff.

WHEREFORE, Plaintiff prays this Honorable

Court to enter the following relief:

A. Assume jurisdiction of this cause;

B. Enter a final judgmert pursuant to

28 U.S.C., Section 2201, and Rule 57, of the

Florida Rules of Civil Procedure declaring that

the Plaintiff has suffered from acts of dis-

crimination at the hands of the Defendant or

its agents, contrary to the Due Process Clause

of the Fourteenth Amendment;

Cc. Require Defendant to remedy the dis-

crimination practiced upon Plaintiff by promot-

ing her to the next available position consistent

with those previously applied for and for which

she is qualified or in the alternative, to

require the Defendant to pay to the Plaintiff

-ll-

the sum of $500,000 as actual and exemplary

damages;

D. Assess all costs against the Defendant

and award the same to the Plaintiff;

E. Award attorney's fees to the Plaintiff;

F. That the Court order further equitable

and injunctive relief as it deems appropriate

and necessary to correct the conditions of dis-

crimination complained of herein.

RESPECTFULLY SUBMITTED,

LAW OFFICES OF EUGENE P.

SPELLMAN

Attorneys for Plaintiff,

GEORGIA PATSY

100 North Biscayne Boulevard

Penthouse Suite

Miami, Florida 33132

-12-

‘ [CAPTION]

DEFENDANT'S MOTION TO DISMISS

Pursuant to Rule 12(b), Federal Rules of

Civil Procedure, the defendant, Florida Interna-

tional University (hereafter "FIU"), respect-

fully moves this Honorable Court to dismiss

the complaint against it for the following

reasons:

1. The Court lacks subject matter juris-

diction because the defendant is not a "person"

under 42 U.S.C. § 1983.

2. The defendant lacks the legal capacity

to be sued.

WHEREFORE, FIU respectfully requests this

Honorable Court to dismiss plaintiff's complaint

against it with prejudice, and award FIU a

reasonable attorney's fees.

Respectfully submitted,

GUY O. FARMER II

JEFFREY H. KLINK

Mahoney Hadlow & Adams

Post Office Box 4099

Jacksonville, Florida 32201

(904) 354-1100

JOHN W. KOZYAK

Mahoney Hadlow & Adams

1401 First Federal Building

One Southeast 3rd Avenue

Miami, Florida 33131

(305) 358-5550

Jeffrey H. Klink

-14-

[CAPTION]

MEMORANDUM IN SUPPORT OF

DEFENDANT'S MOTION TO DISMISS

INTRODUCTION

Plaintiff, a white female clerical employee

at Florida International University ("FIU"),

has sued FIU under 42 U.S.C. § 1983 alleging

“reverse discrimination" regarding alleged

promotion opportunities. (Complaint, #4 1, 11l(a),

19) Plaintiff has also filed a motion to transfer

this matter to the Honorable Judge Eaton on the

grounds that he already has another "reverse

discrimination" suit against FIU pending before

him.

For the reasons discussed below, it is

clear that the complaint against FIU should be

dismissed with prejudice. Accordingly, the

requested dismissal, if granted, would moot the

motion to transfer.

=1 Se

ARGUMENT

I. THIS COURT SHOULD DISMISS THE COMPLAINT

AGAINST FIU BECAUSE IT IS NOT A "PERSON"

WITHIN THE MEANING OF 42 U.S.C. § 1983.

The courts have consistently held that

states and their agencies are not "persons"

within the meaning of 42 U.S.C. § 1983. Vick v.

Texas Employment Commission, 514 F.2d 734 (5th

Cir. 1975); Cheramie v. Tucker, 493 F.2d 586

(5th Cir. 1974). In addition, the courts have

also consistently held that state universities

and their governing Board of Regents are state

agencies, and thus not "persons" within the

meaning of Section 1983. Ingraham v. Wright,

525 F.2d 909, 912 (5th Cir. 1976), cert. denied,

421 U.S. 952, aff'd on other grounds, 430 U.S.

651 (1977); Blanton v. State University of New

York, 489 F.2d 377, 382 (2d Cir. 1973).

The recent U.S. Supreme Court decision of

Monell v. Dept. of Social Services, U.S. ?

56 L.Ed. 2d 611 (1978) has not overruled these

decisions with respect to state agencies being

=16=

considered "persons" under § 1983. In Monell,

the United States Supreme Court held that local

governments, municipal corporations, and/or

local indeyendent school »Soards are "persons"

subject to liability under 42 U.S.C. § 1983.

56 L.Ed. 2d at 618. The Supreme Court also

overruled Monroe v. Pope, 365 U.S. 167 (1967),

but only insofar as it had completely immunized

municipalities from suit under § 1983. Id. at

619. The Supreme Court explicitly noted that

its holding was “limited to local government

units which are not considered part of the

State" for Eleventh Amendment purposes.

(Emphasis added) Id. at 635 n. 54.

Thus, a fair reading of the Monell decision

can only lead to the conclusion that it is limitec

to local government units that are not considered

part of the state. The Fifth Circuit in Bogard

v. Cook, 586 F.2d 399 (Sth Cir. 1978) has re-

cently noted that the holding in Monell is so

limited:

ai Fo

The plaintiff contends that the

recent Supreme Court de~ision in

[Monell] . . . has abrogated the

state’s eleventh amendment immu-

nity when it is sued pursuant to

42 U.S.C. § 1983. Nothing in

Monell, however, goes that far.

The Supreme Court explicitly

noted that its Monell holding was

"limited to local government

units which are not considered

part of the state for eleventh

amendment purposes."

586 F.2d 399 at 410 (5th Cir. 1978).

In sum, the defendant FIU, as a state

agency, is not considered to be a "person"

within the meaning of § 1983. See Aldredge v.

Turlington, TCA 78-0830, Order dated January

25, 1979 (N.D. Fla.) (A copy of this Order is

attached). Therefore, the complaint against

FIU should be dismissed with prejudice for

lack of subject matter jurisdiction.

II. THIS COURT SHOULD DISMISS THE

COMPLAINT AGAINST FIU BECAUSE IT

LACKS THE CAPACITY TO BE SUED.

Pursuant to Rule 17(b), Federal Rules of

Civil Procedure, defendant FIU's capacity to

be sued is determined by Florida law. Byron

#18-

v. University of Florida, 403 F. Supp. 49

(N.D. Fla. 1975). Under Florida law the indi-

vidual public universities which comprise the

State University System, including FIU, see

Fla. Stat. §§ 239.01, 239.02, lack separate

corporate existence and the capacity to be

sued. Accordingly, the Court should dismiss

FIU as a party defendant. Byron, supra, 403

F. Supp. at 54.

CONCLUSION

For the preceding reasons, defendant FIU

respectfully requests this Honorable Court to

dismiss the complaint against it with preju-

dice, and award FIU a reasonable attorney's

fee, pursuant to 42 U.S.C. § 1988.

Respectfully submitted,

GUY O. FARMER II

JEFFREY H. KLINK

Mahoney Hadlow & Adams

Post Office Box 4099

Jacksonville, Florida 3220:

(904) 354-1100

=19e

JOHN W. KOZYAK

Mahoney Hadlow & Adams

1401 First Federal Building

One Southeast 3rd Avenue

Miami, Florida 33131

(305) 358-5550

By__/s/

Jeffrey H. Klink

LAB12/G

-20-

[CAPTION]

PLAINTIFF'S MEMORANDUM IN OPPOSITION

TO DEFENDANT'S MOTION TO DISMISS

In spite of the decision in Bogard v. Cook,

586 F.2d 399 (5th Cir. 1978), it is still an

unsettled question as to whether or not a

"State" and/or one of its agencies or depart-

ments is considered a "person" for jurisdictional

purposes under the Civil Rights Act, Title 42

U.S.C., Section 1983. There is no question but

that Bogard takes the position that Monell v.

Dept. of Social Services, 436 U.S. , 98

S.Ct. 2018 (1978) continues to preclude civil

rights suits against State or their departments

while at the same time permitting suits against

"local government units". A close reading of

Monell indicates no such limitation.

Mr. Justice Brennan, in footnote number

53 stated the following:

"Since there is nothing in the

‘context’ of §1 of the Civil

Rights Act calling for a res-

tricted interpretation of the

word 'person', the language of

that section should prima facie

be construed to include ‘bodies

politic' among the entities

that could be sued."

and finally, the Monell concludes with a dis-

cussion of the Civil Rights Attorney's Fees

Award Act of 1976, allowing attorney's fees

to the prevailing party in a 1983 Civil Rights

action. The Court pointed out in quoting from

the Senate Report on the Bill that defendants

in those cases are often states or local

bodies and that it was intended that attorney's

fees could be collected, if necessary, from

the state or local government.

The Court in Monell concluded by stating

as follows:

", . ». there can be no doubt

that Section 1 of the Civil

Rights Act was intended to pro-

vide a remedy, to be broadly

construed against, all forms of

official violation of federally

protected rights."

-22-

It should be noted that the question pre-

sented by the Defendant's motion to dismiss

is, in effect, not whether or not FLORIDA

INTERNATIONAL UNIVERSITY can be sued as a

party defendant, but whether or not monetary

damages can be obtained against that entity,

since the Fifth Circuit Court of Appeals has

entertained all actions against political

subdivisions except those for money damages.

Harkless v. Sweeny Independent School Dist.,

427 F.2d 319 (5th Cir. 1970) cert. den. 400

U.S. 991, 91 S.Ct.451; Butts v. Dallas Inde-

pendent School Dist., 436 F.2d 728 (5th Cir.

1971).

The Plaintiff herein has asked for money

damages in the claim for relief only as an

alternative to injunctive and equitable relief

and clearly if this Court is of the opinion

that monetary damages could not be assessed

against the Defendant, this Court has the

authority to strike the claim for monetary

=230

damages and permit the case to proceed solely

on the injunctive and equitable relief sought.

The Defendant takes the position that

the Supreme Court decision in Monell overrules

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473

(1961) only insofar as Monroe had completely

immunized municipalities from suit under Sec-

tion 1983. Whether that analysis is correct

or not, it should be noted that in the seven-

teen years during the existence of Monroe v.

Pape and prior to the Monell decision, Monroe

v. Pape was interpreted only as outlawing

actions for monetary damages against states

and municipal corporations. Adams v. Park

Ridge, 293 F.2d 585 (7th Cir. 1961); United

States v. Clark, 249 F.Supp. 720 (DC Ala. 1965).

Counsel for the Defendant have cited no

cases to this Court and, in fact, none exist

prohibiting injunctive relief against a state

or one its agencies and to the contrary, in

addition to the above cited authorities it is

quite clear that states are subject to suit for

injunctive and declaratory relief. Gates v.

Collier, 559 F.2d 241 (5th Cir. 1977). There-

fore, this Court should deny Defendant's

motion to dismiss and permit this cause to

proceed to a determination of the merits.

RESPECTFULLY SUBMITTED,

LAW OFFICES OF EUGENE P.

SPELLMAN

Attorneys for Plaintiff,

GEORGIA PATSY

100 North Biscayne Boulevard

Penthouse Suite

Miami, Florida 33132

PY Seats BORN SRC

THIS CAUSE came before the Court on

Defendant's Motion to Dismiss the Complaint

on substantive and procedural grounds. After

due consideration, the Court finds the Com-

plaint must be dismissed for its failure to

join the proper Defendant to this action.

State law determines the capacity of an

individual, corporation or other entity to

sue and be sued. Rule 17(b), Fed. R. Civ. P.

Florida Interational University is an inst-

itution which is part of the state univer-

sity system. Fla. Stat. §239.01 (1977).

The Board of Regents of the Division of

Universities of the Department of Education

is a corporate body with the power and

capacity to sue and be sued. Fla. Stat.

§240.042 (1977). No state university, in

its individual capacity, is granted such

power. “Under Florida law the University

=-26-

is not endowed with the authority to be

sued in its own name. Rather, these char-

acteristics are bestowed upon the Board of

Regents, as head of the State's University

System." Byron v. University of Florida,

403 F, Supp. 49, 54 (N.D. Fla. 1975). Ac-

cordingly, the Court finds Florida Inter-

national University not to be the proper

party Defendant in this cause.

It is thereupon

ORDERED AND ADJUDGED that Defendant's

Motion to Dismiss be and the same is hereby

GRANTED and it is further

ORDERED AND ADJUDGED that Plaintiff

shall have TWENTY (20) days from the date

of this Order in which to file with the

Court an Amended Complaint. |

DONE and ORDERED in Chambers at

-27-

F. Supp. 49, 54 (N.D. Fla. 1975). Accordingly,

the Court finds Florida International University

not to be the proper party Defendant in this

cause,

It is thereupon

ORDERED AND ADJUDGED that Defendant's

Motion to Dismiss be and the same is hereby

GRANTED and it is further

ORDERED AND ADJUDGED that Plaintiff shall

have TWENTY (20) days from the date of this

Order in which to file with the Court an Amended

Complaint.

DONE and ORDERED in Chambers at Miami,

Florida, this 9th day of April, 1979.

ONTTED-S °K CEE DISTRICT COURT JUNCE

copies: Eugene P. Spellman, Esq.

Guy O. Farmer, II, Esq.

Jeffrey H. Klink, Esq.

-28-

Miami, Florida, this 9th day of April,

1979.

UNITED STA

copies: Eugene P. Spellman, Esq.

Guy 0. Farmer, II, Esq.

Jeffrey H. Klink, Esq.

-29-

[CAPTION]

AMENDED COMPLAINT

COMES NOW, GEORGIA PATSY, Plaintiff herein,

by and through her undersigned counsel, com-

plaining of the above Defendants and for cause

of action would respectfully show unto the

Court as follows:

JURISDICTION

1. Jurisdiction is conferred on this

Court by 28 U.S.C. §1343(3) which provides for

original jurisdiction of this Court in all

actions authorized by 42 U.S.C. §1983 to

redress the deprivation under color of law of

any right, privilege or immunited secured by

the Constitution of the United States, spe-

cifically the Fifth, Ninth, and Fourteenth

Amendments.

=30=

If.

PRELIMINARY STATEMENT

2. GEORGIA PATSY, a white female American

and an employee of the above captioned Univer-

sity, seeks redress for discrimination due to

her race, suffered by her in violation of the

Constitution and the laws of the United States.

Specifically, Plaintiff alleges she has been

denied employment opportunities for which she

is well qualified within the above captioned

University, while there has been an intentional

and concerted effort by the University to

promote and hire minorities to available posi-

tions for which Plaintiff has applied.

Itt.

PARTIES

3. GEORGIA PATSY, Plaintiff, is a citi-

zen of the United States and a resident of the

Southern District of Florida. Plaintiff is

employed by FLORIDA INTERNATIONAL UNIVERSITY

and has attained permanent status within the

personnel system of the State of Florida.

4. The Defendant, BOARD OF REGENTS, of

the State of Florida is a corporate body, head

of the State's University System, of which

FLORIDA INTERNATIONAL UNIVERSITY is an

institution part of that system.

IV.

STATEMENT OF CLAIM

S. On June lst, 1972, Plaintiff began

employment as a Clerk Typist III, with FLORIDA

INTERNATIONAL UNIVERSITY and is presently

Classified as a Secretary III.

6. Plaintiff's education consists of a

Bachelor of Education Degree (cum laude) from

the University of Miami and a Master of Science

Degree in Administration and Supervision of

Adult Education from FLORIDA INTERNATIONAL

UNIVERSITY. Plaintiff has had continuing

teaching experience in the Dade County, Florida,

Adult Education Program.

=326

7. During the six (6) years while Plain-

tiff has been employed at FLORIDA INTERNATIONAL

UNIVERSITY, she has applied for numerous

employment openings within FLORIDA INTERNATIONAL

UNIVERSITY and has been uniformly rejected with

many Latins and non-whites having been selected

in place of the Plaintiff.

8. The following is a partial list of

available positions advertised by FLORIDA

INTERNATIONAL UNIVERSITY for which Plaintiff

applied for, but was rejected:

Position with Career Development

and Placement Dept.

Interim Counselor in School Education

Liason Officer and Student Affairs

Coordinator

Continuing Education Coordinator

Coordinator/Director Alumni Affairs

Vocational Counselor II

Personnel Aide

College Work-Study Coordinator

Conference Coordinator

-33-

University Public Functions Manager

Financial Aid Counselor

Student Affairs Coordinator

Admissions Counselor

9. The former President of FLORIDA

INTERNATIONAL UNIVERSITY, Charles Perry, has

recognized that Plaintiff's background qualifies

her for a higher position than the Secretary

III position then and now held. See Exhibit

"A" attached hereto and made a part hereof.

10. The professional skill and management

abilities of the Plaintiff have been recognized

by the Head of the Department of Psychology at

FLORIDA INTERNATIONAL UNIVERSITY. See Exhibit

"B" attached hereto and made a part hereof.

ll. The Performance Appraisal conducted

annually in accordance with the State of Florida

Personnel System shows the Plaintiff to be out-

standing, not only with respect to her assigned

tasks, but innovative, resourceful, efficient

and functioning more as a Staff Assistant than

-34-

as a secretary. See Exhibit "C" (composite)

attached. hereto and made a part hereof.

ll(a). FLORIDA INTERNATIONAL UNIVERSITY

has engaged in employment practices which have

discriminated against Plaintiff on the basis

of her race and/or sex in the promotion of its

employees.

12. FLORIDA INTERNATIONAL UNIVERSITY has .

maintained and continues to maintain a policy

of preference to minority applicants for both

available administrative and non-administrative

positions which results in discrimination against

the Plaintiff, a white-female, contrary to the

Constitution and laws of the United States.

13. FLORIDA INTERNATIONAL UNIVERSITY has

continually sought out individuals from minority

groups to fill positions resulting in discrimina-

tion against the Plaintiff, contrary to the

Constitution and laws of the United States.

See Exhibits "D" and "E" attached hereto and

made a part hereof.

-35-

14. FLORIDA INTERNATIONAL UNIVERSITY

through its agents, deceived Plaintiff into

believing that she was being considered for

a position she applied for when in reality,

Plaintiff's name had not submitted as one

of the final candidates for the position

of Interim Counselor. See Exhibit "F"

(composite) attached hereto and made a part

hereof.

15. FLORIDA INTERNATIONAL UNIVERSITY

not only rejected Plaintiff for positions

for which she was qualified and had applied,

but rejected Plaintiff for a position for

which she had not applied. See Exhibit

"G" attached hereto and made a part hereof.

16. FLORIDA INTERNATIONAL UNIVERSITY

as further evidence of its discriminatory

policies maintains files on qualified ap-

plicants for positions by segregating them

as follows: White, Black, Male and Female,

contrary to Federal law and Equal Employ-

ment guidelines.

-36-

16(a). The acts and practices by

FLORIDA INTERNATIONAL UNIVERSITY described

in this complaint constitute a pattern and

practice of resistance to the full enjoy-

ment of the right to equal employment

opportunities without distinction based

on race and/or sex and such acts and prac-

tices are intended to deny the full exer-

cise of rights secured by the Constitution

and laws of the United States.

17. An actual controversy exists

between the Plaintiff and FLORIDA INTER-

NATIONAL UNIVERSITY, in that Plaintiff

contends that the actions of FLORIDA

INTERNATIONAL UNIVERSITY are in violation

of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.

Plaintiff is in doubt as to her status and

rights under the Constitution of the

United States and seeks a declaration of

the legal and constitutional rights of

-37-

the parties with respect to the subject

matter of this action.

18. Plaintiff will continue to suf-

fer immediate and irreparable injury, loss

or damage unless this Court grants the

injunctive relief sought. There is no

plain, adequate or speedy remedy at law

to redress these deprivations.

CLAIMS FOR RELIEF

19. There exists between the parties

an actual controversy as heretofore set

out. The Plaintiff is suffering and is

threatened with immediate and irreparable

injury as a result of the actions of

FLORIDA INTERNATIONAL UNIVERSITY as stated

above. The Plaintiff has no plain nor

adequate remedy at law to redress the

wrongs and unlawful conduct complained

of herein. FLORIDA INTERNATIONAL UNIVER-

SITY has severely damaged Plaintiff by

-38~-

its discriminatory practices and has

painfully stigmatized Plaintiff, and

continues to do so. By the actions of

FLORIDA INTERNATIONAL UNIVERSITY, Plain-

tiff has been discriminated against and

denied due process of law in violation

‘of her rights under the Fifth, Ninth,

and Fourteenth Amendments to the United

States Constitution. FLORIDA INTERNATIONAL

UNIVERSITY has acted in violation of

Title 42, U.S.C. §1983, to inflict said

deprivations on the Plaintiff.

WHEREFORE, Plaintiff prays this

Honorable Court to enter the following

relief:

A. Assume jurisdiction of this cause;

B. Enter a final judgment pursuant

to 28 U.S.C., §2201 and Rule 57, of the ©

Florida Rules of Civil Procedure declar-

_ing that the Plaintiff has suffered from

acts of discrimination at the hands of

-39-

the Defendants or its agents, contrary

to the Due Process Clause of the Four-

teenth Amendment;

C. Require Defendants to remedy the

discrimination practiced upon Plaintiff

by promoting her to the next available

position consistent with those previously

app’ ied for and for which she is quali-

fied or in the alternative, to require the

Defendants to pay to the Plaintiff the

sum of $500,000 as actual and exemplary

damages;

D. Assess all costs against the

Defendant and award the same to the

Plaintiff;

E. Award attorney's fees to the

Plaintiff;

F. That the Court order further

equitable and injunctive relief as it

deems appropriate and necessary to cor-

“rect the conditions of discrimination

-40-

complained of herein.

RESPECTFULLY SUBMITTED,

LAW OFFICES OF

EUGENE P. SPELLMAN

Attorney for Plaintiff

100 North Biscayne Boulevard

Penthouse Suite

Miami, Florida 33132

BY: ef ;

BY: (8/ LnAN

-4l-

October 30, 1972

Me. D. Burke Kibler, III

Post Office Box 1772

Lakeland, Florida 33802

Dear Burkes ©, g,

“Thank you for your recent latter concerning the

employment status of Mrs. John Patsy at Florida’ International,

Our Personnel Department has advised me that Mrs. Patsy is

being considered for the position of Secretary III in the

Division of iimalth and Physical Education, Recreation and

_ Athletics in the School of Iducation,.

“* ty the past she has been interviewed by the Dean of the

“Division of Special Programs and the Director of Financial Aid.

‘Cader tnnaeesy, there are just not an y Seenesler positions

available. realize Mrs. Patsy's ba ekground ifies her

for a higher position than the c typies position she now

holds. wUowever, as che situation sta the Secretary III

position is the highest one we have to offer.

+ op je Thank you for your interest-and best wishes.

, ., Sincerely,

, ‘Charles gE. Perry

“* President

: FC/jm —

bee:* ‘Personnel Department with file

Cana 7 rat

-42-

FLORIDA INTERNATIONAL UNIVERSITY

MEMORANDUM

ne. pe 7

TO: Mrs. Georgia Patsy 4 DATE: June 21, 1977

FROM: Dr. Ronald S. rioters

SUBJECT: CONTRIBUTIONS TO THE DEPARTMENT OF PSYCHOLOGY

It goes without saying, from my point of view that

your presence in the Department as ny Secretary and

Office Manager have created what [ believe to be an

outstanding professional attitude within the office

staff. I have worked with many secretaries over the

peers but never have I been so pleased and proud to

e able to recognize formally the contribution of some-

one like yourself. You have really taken charge and

set a tone and atmosphere that is absolutely outstanding.

Your professional competence, personal skills, and

management abilities have impressed me greatly. More

work is being done in the Department than has ever been

done before, it is being done better, and with more

professionalism than before. You have created an

esprit de corps among the other members of the secretarial

staff that is going a long ways to keeping our Department

ene efficient in the face of all sorts of pressures

and demands.

Your nde ade 4 to handle pressure situations, keeping

me and other members of the faculty in tow when necessary,

and dealing with administrative matters within the

University that relate to the Department,.in a cool and

proficient way with a sense of humor, has made a significant

contribution to the well being of the Department. It gives

me great pleasure to be able to take this opportunity to

recognize in a formal way your outstanding contributions

to the Department and in particular for your work directly

related to my activities. I wish there were some way that

I could more properly recognize the contributions you ahd

other members of the secretarial staff have made to all of

us in the Department.

cc: Dean Arthur Herriott, College of Arts § Sciences

Mrs. Patricia Caruso, Director of Personnel

( Inter—office Communicarion )

Fy» y 0 rt :

FLORIDA INTERNATIONAL UNIVERSITY 00046

. ERFORMANCE WPrHAISAL .

Nene PALSY. Georgia D. Social Security No. 222eSAel69S

Oepariment _ 2ayeholocy Clasticavon Title

Tyee ot Aoererat: C Prananenary Annwersary ” §9 Segeiat

OTR: 18 eee 4 10 Be Smee Wy RE ES ore meer ERT Ew errenE meh IMO

Ree MRE rER ANE (RN A he FEE ent [he Grane sent WF cemermng

CO smewe teareteevery Justification:

OC sassetoctery excentional ne rs oa a

OC cwnssereret r}

oa wmaesseiaewery 40

O Net seprcsoe .

3. QUANTITY ‘? sty, vol

B cvatmneng .

O seve sersstornery cme -Mrs_2atsy always dears

OC tecsetecvery

OC Comtserenes

o Qwest. ef cowry

CNet heormnre

4. DEPENDASILITY (Reliable, trustworthy, requias in attendance)

Jeseséientions Sompletely reliable...

(Consider delegation of sesiensents, directing «ere flew snd

fellewing up on resuits.

ica :

(Dene (6 wet sitean sed achnewe goes wens sich One! e.oeredee(y |

Justification: ~Somplete self-starter,

responsibility voluntarily.

WETTE-Persenne. Serviess + CANART-Evelescer’s Copy - PINE-Capleyes Cop,

ee 1 aye te

-44-

a . * 00047

of others, inetudeng vertal anet eeriiten comemumeat-on.

t ecven) Vee only whes

7. SUPERVISORY ABILITY (Eite a .

é femie §«—- eVENCES and co™OIEN, ong

Satan, @ supervisor.

O amore seasetectory Justification:

OC sesssteceoey

CO comes cranes

( tnsessstenvery

O Net Anpicaste °

(D *mere seesetacrory £

S eastesweer y sotetttontt ind stir Hef¥tery—

o Comat tomes

more a3 By $ a nt

Use ectschrenca, |! neceesary.

Seqratere of Emoe Osce:

(Dees net imply conaurrence with espervenr's evewatien, enty thet evelueuen wes made End reviewed By employes.)

Sagnemse of sete SupErvrter Data:

Signacere of Seeend-Level Supervises or Dept. Reed Oates

The employee vase iaforned of his/her progess on the following dates:

Supervisor and employee should indicate agreenent ef dates by initisling.

-45-

00048

2.” Te FLO’ 2A INTERNATIONAL UNIVERSI’ ~

. PERFORMANCE APPRAISAL

Name —_—— a: i! Socia! Security No. 99% 610" **t

Tyee et Agoret: O Precstionsry OAnnwermry 0 Sensis

OTE: «The term @ 0 Be eEmeteeed By Ce enEE GEE ON (Oren Om OO

~ mee eee en oe eee wees Ns eee me

ome ree ee re om Bee rowerte mae ter

O ‘seve Gometerey Justification:

ated =m see Ye -

ton etoamery

comets thoes pela Ae

emoets sisceery

aa? AAS 2H ASESee @ feane. |

le ose awe -

3. (Productivity, volume)

(Deowe te met ste ow gue seeks ettiuenst

vdS. “racsy éoesn't wiit te *:

t013 whet €o do. she rsce-ritcs

FPR e Fe a ee ah e m

Pia a ee

WEITE-Perscnnel Services - CAMARI-tvalseter’ ° vonmesmaale nd

. © Copy

p eg SPe oe?

SRE weed? *:.:

-46-

O Ovescancing 4 supervisor.

O seaseteoweey

CO comssesones

Seessstecwry

O Net Appiacsate

fj aoe toe

Aewwe tease fenrery

Ol teaseternery

O comttetenes

Q Mettiotamnerr

kK . Y ey if nemeary.

tensa win 4 ees fot OF

Generar aeee * Gnty Ct evahsaten wes made and revenwed By emolover |

Sagrsnse of |nrmemote Z , me 4. fae 2°42 7”

7 “rej! me nf

Signecere ef Secend-Level Supervises os Dept. feed we! ave Se ecnes 723!

» Gea

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it iL ii a ae : ‘I is it Hil He iE :

Gait ie EE

stil a ial s¥iss i ‘f Sa rut He Wik

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fli iii ili Fe Ht rll i ie ig a

ee eel 1/71

~~»

-48-

sels athe

*"\Omma inttenat

iOnaa miucasity

PRAPURPANGL APPRAISAL IGAMLA SCAVICK LPLOTELS)

cnusdoninnen Pays test Education

ion aces

@ the reverse side of tars

00051

WIM, SCMITY WO. 23254-1695 ‘rtoment ote: G=-)-72

uASSiF ication: Jaceotary Tit

AmmivERsaay = EVALUATION — PERIOD COVERED BY THIS EV ICW=n=Freml ) = 1O7Sle

Yon-suservisery employee - cote only [ec iera lod

thts revvew anti! sou read ane understane iw oo on the Performance Acpraital System for Career

48 reorceuced on

a, Ny

1. Sweervisory emplover + “pup. al! “s6sarn ich

vagton GAT ISP acTOsY COND LT | Crna, SaTisvactoay Sal iavactoay

1 7 3 o°O°@ Fé A ,

1) grewlecge of | Mes HOt gained ade | Insufficient tnewi~ | Adewete tae! [aero commie

sa — eoee of wens orate | rege of oi! presen jeege of o!! sneses

of 0. af ‘oe. Igentscs

ane wore

(2) Quality 6

tty

(2) Sepenaaet tity ees tate ona = | Freqwentiy tate one | Utuall, orerene ‘Serge tate oF ane

. ton spsent. 41th s00eRt. Aubt be ree-| at sen@tulew Limes. [arnt aares coil in

p+. tweervisien | ularly sreeses ‘0 lemgiras wily ders i" suyence

soldem fintenes as- | eccomplien ansrqned [eae comeran, | teRk Saorertion

een lS A... ws eal — =————

i ? 1 sep? 4 ‘

(4) tnvetacive Shows «© \eterest Fremwantiy sperers | emt mterett 18 lire tatermiog io

‘a 308. beg ant atl liees Ce [yet mt trem qeoas

wetiling ce sccept | ac. cpt respensi~ Oe ie

revpensieility. tot ity. a...

- ' ? ’ seer ea

(8) Seservisery y pon md Gemne- §=— | Consistently trmm itgme rates os-

aptlity Stretes deficient eile? malities

(vee enty ton, sresntiatien, plane ro c

Seeciict) | Messrs sins. |erlitig. tre rr |tmo ttiie; obs” [nie sei. Soe

a tegery' ser) § tal of - 4

1On :

“at + tonetty

cura we come

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Fe Tene itten-

WAeee Frened. dares

wtepetontiy often

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tate

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fal. Commitonts

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fareance ‘em 415

lew the satisfectery core.)

swsers tier} a

with Saenmte’ 05 (0 Gay Gnd OBn thle Guplague 19 pooturatan enter toute OP be:

—latd_eatkeenes stems if osoeeeery)

COMPIOERT IAD ~ GRET CORI ITD, aat amt fame in cern Sangin, Gum (tie

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-49-

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leu Cre set! sfectery sere.)

-50-

Sas hh ae UUUSG

F* ~ GA INTERNATIONAL WITVERSITY ~~

PERFORMANCE APPPAISAL

Sageer Service tmployees

Vem _P. Classification. Gleck: Typist Uz

College/Division__preical stucaricn_____., Social Security Number Pe a ae

Bayleywent 060e:__ 621272 “— acnoccesososcsooy/Anniversary Date Evaluation

Period Covered by this Review: From Licld-71_. te Lslo-74

Sy bes cintinen tite seviey winks ses send cnt understand TIU policies on the

and Uniform Pay Plan for Career Service tnployees.

Rate each factor

- by eizeling the Above

| @

woeweeeene ew we

e Fre Fe ere Ke Ke ee

eeeeeseeee

Signature: _Date

"S JUSTIFICATION: (Required for any score less than 16 of acre than 23, with exacgies

an te why and hew this eaployee is performing either above or Selow the Satisfactory ern.)

lis past year. She does not need to be told wnat to do. she is organized.

let _vork is very good. and she puts « great des extra time into her

—iobs_.she_nes handled her Oivision responsibilities well and she gots siong

ibilities wel she gats along

ith everyone. She is always able to do the little extira things that nake

-5l-

Gareer Service Employees

Classification ae ras a

p Social Security ‘umber

: Purpose: =

ayleyeent once dL Dah — 6 mo. tvaluattonSgaiversary Date tvaluati>,

“exiled Covered by this Review: From &.40:-7 3 4:-10.773 _.

so not camflete this review until you reed and understand PIU policies on the

and Uniform Pay Plan for Career Service Exployees.

“ppearance noo ® 2 2 °

Actendance scot ey) 2 a 0

Mmoviedse of ob 6 @) 3 2 2 °

Quality of work 3 2 2 0

Quantity of work =f) 3 2 1 0

Initiative 0) 3 2 a 9

Dependability 1) 3 2 1 °

Acti tude 9 a 2 1 0

Relationship vith 4 ® a 1 °

Others

ceestanding , 32 and above Total Seore 2.2

MLA

pantin (deren)

WAAAY 2as

aie

Af 59

70: Dean Sowards . ° 00055

Gageer Service Exployces

wame___Patsy, Georgie 0. Classification Secretary 122

College/Pivision__ Physical Eduestion Social Security Mumba s_232-54-}695 ~

Bayloyeent Doce: 11/20/72. ‘ 6 to. teasieslenneNeNNpEEnetionen

Period Covered by this Review: from 11/10/72 gt} —«8/10/73

De not camlete this review until you read and understand TIU policies on the

and Uniform Pay Plan for Career Service Employees,

by circling the Above ‘

gumerical velue Outstanding setisfectory satisfactory _Conditionel __unsstislacsory

Appearance xxx (y 2 1 C)

Attendance Uo 3 2 1 ()

Knowledge of Job 1D) 3 2 1 Q

Quality of Work y 3 2 1 C)

Quantity of work Y 3 2 1 r)

Initiative y 3 2 1 C)

Dependability ¥ 3 1 °

3 1 C)

47 60

-53-

INDIANA "NIVERSI1.

School of Heauh, Phyncal Kducauan, ana Reerauen

40re erusnne

BLOOMINGTON. INOIAmA stene

PUVOIGAs LOUGETION Fon wan April 17, 1973 sete Geen 41+ 337=LB4s

Te... +e.

Dr. Poul £. Mavtren

of Health, Physical

Eduestion and

Vlovide International Caiversity

Temieai Treil

“Niemi, Florida 33144

Dear Dr. Hartman:

s you have indicated Slacks end Latins, I have no other people to ic

Big at the present cine, but vill their names for consideration if I find

a pbladke 23-73 Yld0g-m.

TO THALST Coll 24°78

0 pth Neate L fame ap WS

TF. TH Alen, FB Cotte

Exner D

Bh 6)

6 a

es 00087

TLS7DSA CTANATIONAL UiIVER icy

ait st OFA MS oF 88

rx | Cr. Giann A. Goerke DATE: fuly 9, 1973

FROMs Cuaries €. 7arcy

SUITECT: Wreatling Coach

Just @ remioder wt you end to Cr. Sartmman that sone of ‘te head coaches

are ta Se appointed without Seing interviewed and approved by =e. | assume

thas this will be dene in regard to the wrestling coach.

Dis sy undersandisg that thers is an cutstamding Black ‘wrestling ¢sach

<= Mlami-Cade Sout who is 4 graduate of Tlerida A&M and has &@ Masters

degree from semeplace. | further understand that be has had 3 great (aterest

<2 the wrestliag job here at Plerida Icternaticnal. = -vould seem to =e that

we should lcok very carefully et this young san, secause having & heed coach

whe news the local wrestiing siszaticn (and who (2 lack) would se a great

edvemtage ta the University.

Thank you.

esr Cr. Peul Hartman (~

Cr? /nen

-55-

" (0058

FLOniDA INTERNATIONAL UNIVER ITY

GATE: Cotober 22, 1976

js wH IIT

Y 63

-56-

Paul Gallagher Oct. S$, 1976

Judy Blucker t “. :

Candidates for Counseling Position . 4

My ranking of the candidates after reviow of <heis

resumes are as follcws: .

1. Jobs &. Taylor in counseliag

_— ve and other calf-initiaced

eee. * bilities :

" Margaret ouiley” Some as above plus teaching

' ~ ; .

« Cazol Cooper ; Same as above plus eccial

* work experience

4. Joanna Albert Training in Counseling)

S. Barbara Bader Sxperéence in working with

teacher education students

6. Joseph W. Wesley Education training is

Counseling; little or no

P experience (actual experience) .

7. Temes McKinney Educational background:

; ; little experienco ;

4 * 64

-57-

FLORIDA INTERNATIONAL UNIVERSITY

Tamiaw: TRAiL © WiaAMe FLOMIS& 33°98 © (308) S82-2181

ACMINISTRATIVE AFFAIRS

OPINCE OF PURBCPONEL SEPICES

Me. Georgia Patsy

6325 S$. W. 151 Street

Miami, Plorida 33158

Oear Ms. Patsy:

I would like to express our appreciation for your interest in

the Admissions Counselor position that was recently available

= the Registrar's Office. The selection process was difficult

tive. This is to notify you that the position was

filled by another applicant. Since you are a qualities applicant,

we would like to keep your application active consideration in

future openings.

of the - An source of informa on

exp ties is the State of Florida Cepartment of

Education's ition Vacancy Listing, which is also posted in

Personnel. This listing is on a weekly basis and

includes details on all ¢ ty, administrative/professional

and Career Service time card-exempt position v: t are

Wek cppureunition within the Gaiverss

versity.

will be glad to assist you in any way

possible should you have any Surther es.

Sincerely,

Susan Pyle,

ni deaviecs

SP:iftc

en G

#065

-58-

[CAPTION]

DEFENDANT'S MOTIONS TO

DISMISS THE AMENDED COMPLAINT

Pursuant to Rule 12(b), Federal Rules

of Civil Procedure, the defendant, Florida

Board of Regents ("BOR"), respectfully

moves this Honorable Court to dismiss the

amended complaint against it for the

following reasons:

1. The Court lacks subject matter

jurisdiction because the defendant is not

a "person" under 42 U.S.C. § 1983 and

because the plaintiff has failed to

exhaust her administrative remedies.

2.* The amended complaint fails to

state a claim upon which relief can be

granted.

DEFENDANT'S ALTERNATIVE MOTION

FOR A MORE DEFINITE STATEMENT

Should this Court deny the BOR's

dismissal motions, then pursuant to Rule

12(e), F.R.Civ.P., the BOR respectfully

-59-

moves this Court to order Plaintiff to

render a more definite statement of her

claim.

WHEREFORE, the BOR respectfully

requests this Court to dismiss the amended

complaint with prejudice and award the BOR

a reasonable attorneys’ fee. Alternatively,

the BOR respectfully requests a more def-

inite statement of plaintiff's claims.

Respectfully submitted,

GUY O. FARMER II

JEFFREY H. KLINK

Mahoney, Hadlow & Adams

Post Office Box 4099

Jacksonville, Florida 32201

(904) 354-1100

JOHN W. KOZYAK

Mahoney, Hadlow & Adams

1401 First Federal Building

One Southeast 3rd Avenue

Miami, Florida 33131

(305) 358-5550

By /s/

Jeffrey H. Klink

-60-

[CAPTION]

MEMORANDUM IN SUPPORT OF

DEFENDANT'S MOTION TO DISMISS THE

AMENDED COMPLAINT

INTRODUCTION

Plaintiff, a white female clerical

employee at Florida International Univer-

sity ("FIU"), has now refiled her com-

plaint against the Florida Board of

Regents ("BOR"). Plaintiff contends that

she has suffered "reverse (racial) discrim-

ination” in violation of 42 U.S.C. § 1983

("§ 1983") apparently because she has

unsuccessfully applied for positions for

which FIU has engaged in "an intentional

and concerted effort" to fill with minor-

ity applicants (Latins and non-whites).

(Complaint 44 2, 7, 8, 1l(a), 12, 16(a))

Plaintiff also generally contends that

she has suffered sex discrimination.

(Complaint ¥{ 1ll(a), 16(a)) The balaice

of plaintiff's "Statement of Claim" con-

-6l-

cerns evidentiary matters dealing with

her alleged qualifications and FIU's

alleged record-keeping policies (Complaint

qa 5, 6, 9, 10, 11, 16), FIU's efforts

to fill vacancies which were apparently

not sought by plaintiff (Complaint 44 13,

15), FIU's alleged “deceit” in failing

to advise plaintiff correctly as to her

status as a "finalist" in contention for

a particular position. (Complaint q 14).

Based on these allegations, plaintiff

makes several relief oriented statements

and requests. (Complaint { 17, 18, and

19).

For all the following reasons, this

Court should dismiss the Amended Complaint

because plaintiff's allegations fail to

state a claim upon which relief can be

granted and reveal the absence of subject

matter jurisdiction.

-62-

ARGUMENT

I. THIS COURT SHOULD DISMISS THE AMENDED

COMPLAINT FOR LACK OF JURISDICTION

BECAUSE:

A. The Board of Regents Is Not A

"Person" Within The Meaning of

42 U.S.C. § 1983.

The courts have consistently held

that states and their agencies are not

"persons" within the meaning of § 1983.

Vick v. Texas Employment Commission, 514

F.2d 734 (5th Cir. 1975); Cheramie v.

Tucker, 493 F.2d 586 (5th Cir. 1974).

This exclusion also encompasses state

universities and their governing boards.

Ingraham v. Wright, 525 F.2d 909, 912

(5th Cir. 1976), cert. denied, 421 U.S.

952, aff'd on other grounds, 430 U.S. 651

(1977); Blanton v. State University of

New York, 489 F.2d 377, 382 (2nd Cir. 1973).

Finally, the Fifth Circuit has made it

quite clear that a defendant's status as

a “person" under § 1983 does not vary

-63-

depending upon the relief sought.

Muzquiz v. City of San Antonio, 528

F.2d 499 (5th Cir. 1976) (en banc),

vacated and rem. on other grounds, 57

L.Ed. 2d 1144 (1°78). The recent U.S.

Supreme Court decision of Monell v.

Dept. of Social Services, 436 U.S. ’

56 L.Ed. 2d 611 (1978) has not overruled

these decisions with respect to the

status of state agencies as "persons"

under § 1983.

In Monell, the Supreme Court held that.

local governments, municipal corporations,

and/or local independent school boards

are "persons" subject to liability under

§ 1983. Id. at 635. The holding however

only overruled Monroe v. Pape, 365 U.S. 167

(1967), insofar as it had completely

immunized municipalities from suit under

§ 1983. Id. at 619. The Supreme Court

explicitly noted that its decision did

-64-

not affect the status of governmental

units which are considered part of the

State for Eleventh Amendment purposes.

Id. at 635 n. 54. The Fifth Circuit

in Bogard v. Cook, 586 F.2d 399, 410

(5th Cir. 1978) recently affirmed

this reading of Monell.

In sum, the BOR as a state agency

lacks the status of a "person" within

the meaning of § 1983. See Aldredge v.

Turlington, TCA 78~0830, Order dated

January 25, 1979 (N.D. Fla.) (A copy of

this Order was attached to FIU's initial

motions to dismiss.) Accordingly, this

Court should dismiss the complaint against

the BOR for lack of subject matter juris-

diction.

-65-

B. Plaintiff Has Failed To

Exhaust Her Administrative

Remedies

Unless an administrative remedy is

inadequate or futile, federal courts

generally should not involve themselves

in civil rights disputes until such

remedies have been exhausted. See gen-

erally, Gibson v. Berry Hill, 411 U.S.

564, 36 L.Ed. 2d 488 (1973); McKart v.

United States, 395 U.S. 185, 23 L.Ed. 2d

194 (1969); Lane v. Wilson, 307 U.S. 268,

83 L.Ed. 1281 (1939); Penn v. Schlesinger,

497 F.2d 970 (5th Cir. 1974); Whitner v.

Davis, 410 F.2d 24 (9th Cir. 1969); Cray-

croft v. Ferral, 408 F.2d 587 (9th Cir.

1969).

One can find language in Supreme

Court decisions which seems to imply that

plaintiffs are not required to exhaust

administrative remedies prior to filing

suit to vindicate their civil rights.

-66-

See Eisen v. Eastman, 421 F.2d 560 (2d

Cir. 1969). However, a close analysis

of those cases, Id. at 567-569, and a

review of later Supreme Court authority,

see Gibson v. Berry Hill, supra, reveals

that the Supreme Court has only condemned

a “wooden application of the exhaustion

doctrine in cases under the Civil Rights

Act." Bisen v. Eastman, supra, 421 F.2d

at 569. As Judge Friedly stated:

Exhaustion of state admin-

istrative remedies is not

required where the admin-

istrative remedy is inade-

quate ... or where it is

certainly or probably fu-

tile .... A quite different

situation would be pre-

sented, for example, when

a complaint alleged that

a subordinate state offi-

cer had violated the plain-

tiff's Constitutional

rights by acting because

of bias ... and the state

has provided for a speedy

appeal to a higher admin-

istrative officer ....

We shall need much clearer

directions than the

[Supreme] Court has yet

a67~

given or, we believe,

will give, before we

hold that plaintiffs

in such cases may turn

their backs on state

administrative reme-

dies and rush into a

federal forum, whether

their actions fall

under the Civil Rights

Act or come under

general federal juris-

diction.

Id. The Fifth Circuit has also required

that administrative remedies be exhausted--

particularly in school personnel and

management problems where there is a

governing board as in this case--in order

to insure that the alleged grievances are

"ripe for adjudication." For example,

in Stevenson v. Board of Education of

Wheeler County, Georgia, 426 F.2d 1154

(5th Cir. 1970), Judge Bell noted the

Supreme Court cases which appear to

dispense with the requirement of "exhaus-

tion of administrative remedies" in civil

rights actions, but held that exhaustion

-§8-

was generally necessary to insure insti-

tutional finality:

We do not take these

{U.S. Supreme Court]

cases to hold, how-

ever, that federal

courts are to inter-

vene in school per-

sonnel and management

problems without re-

quiring such prior

reference to local in-

stitutional authority

as may be necessary to

assure that the action

complained of is final

within the institution

in the sense that it

is ripe for adjudica-

tion.

426 F.2d at 1157. In the instant case,

plaintiff's alleged grievances clearly

lack this "institutional finality."

As a Career Service employee, Ms.

Patsy has access to several administrative

grievance procedures in the State Univer-

sity System. The administrative rules of

the Department of Administration Career

Service System, Division of Personnel pro-

-69-

vide that each Career Service employee

or applicant shall be assured of an

equal opportunity in all agency employ-

ment practices without regard to that

person's "race, color, sex, religion,

creed, national origin, political

opinions or affiliations, or age" except

as provided by law. Fla. Admin. Code,

Chapter 22A-15.02(1). These rules also

provide for a comprehensive complaint,

review and appeal procedure for any

Career Service employee or applicant who

feels he or she has been aggrieved with

respect to equal employment opportunity.

Id., Chapter 22A-15.05. The Department

of Administration also requires each

agency to establish written procedures

for handling grievances of Career Service

employees. Id., Chapter 22A-10.04. As

a result of this requirement, the admin-

istrative rules of the Department of

-70-

Education, Florida International Univer-

sity provide a comprehensive method of

handling the grievances of its Career

Service employees. Id., Chapter 6C8-4.05.

Under these rules, Ms. Patsy could have

initiated an adequate and readily avail-

able grievance procedure after the denial

of any of her applications. Id., Chapter

6C8-4.05(2) (a).

Finally, the BOR has the responsibility

of managing and regulating the State Uni-

versity System, Fla. Stat. §§ 20.15,

239.01, 240.001 and 240.042, including

its inherent power (through the Chancellor)

to implement the University System's non-

discrimination and equal employment

oportunity. Moreover, the administrative

rules of the BOR provide that university

presidents and "any other personnel employed

in the State University System" shall have

-7l-

access to the BOR through its Chancellor

Florida Admin. Code, Chapter 6C-4.01(6).

Thus, plaintiff had this additional avenue

of administrative relief available to her.

In sum, if plaintiff was a victim

of discrimination, she had several full

and adequate administrative remedies in

the State University System which she

could have pursued. Instead, she has

apparently elected to bypass these pro-

cedures and prematurely burden this Court

with her claims. Plaintiff's failure to

present her grievances to the appropriate

administrative agencies undermines any

possible claim of “institutional finality."

Accordingly, for this reason, plaintiff's

alleged claims should be dismissed for

lack of subject matter jurisdiction.

-72-

II. THIS COURT SHOULD DISMISS THE AMENDED

COMPLAINT FOR FAILURE TO STATE ANY

CLAIM UPON WHICH RELIEF CAN BE GRANTED.

A. Respondeat Superior Fails To Pro-

vide Any Adequate Basis For

Imposing § 1983 Liability Upon

The BOR.

Assuming, arguendo, that the BOR is

a “person” under § 1983, the complaint

fails to allege an adequate predicate

for imposing liability. The complaint

alleges the FIU has discriminated against

plaintiff and assumes BOR's responsibility

for this alleged § 1983 misconduct

based on an agency or respondeat superior

theory of liability. However, it is

clear that respondeat superior fails to

provide an adequate basis for imposing

§ 1983 liability. Monell, supra, 56 L.

Ed. 2d at 635-638. In sum, unless plain-

tiff in good faith can allege that the of-

ficial policies of the BOR caused the

alleged discrimination (See Ch. 6C-5.01

Fla. Admin. Code) or that the BOR

-73-

authorized or ratified the alleged mis-

conduct, the § 1983 claims should be

dismissed with prejudice. Jones v. City

of Memphis Tenn., 586 F.2d 622, 624-625

(6th Cir. 1978); Duchesne v. Sugarman,

566 F.2d 817, 830 (2d Cir. 1977); Kostka

v. Hogg, 560 F.2d 37, 39 (lst Cir. 1977);

Sims v. Adams, 437 F.2d 829, 832 (5th

Cir. 1976) (Court noted with approval that

the complaint did not rest on any theory

of vicarious liability); Bracey v. Gren-

oble, 494 F.2d 566, 569-570 (3d Cir. 1974);

Jennings v. Davis, 476 F.2d 1271, 1274

(8th Cir. 1973); Adams v. Pate, 445 F.2d

105, 107 (7th Cir. 1971).

B. Plaintiff's "Discrimination"

Allegations Are Inadequate To

State A Justifiable Claim Upon

Which Relief Can Be Granted.

In essence, plaintiff has invited

this Court to declare "affirmative action”

=F4=

policies, which may have affected her,

unconstitutional. The Court should view

her invitation as defective for several

reasons.

The federal government (Department

of Health, Education, and Welfare) re-

quires the BOR to maintain an "affirmative

action" policy. 45 C.F.R. §§80.3, 80.4,

80.5 (1978). Pursuant to that obligation,

FIU administrators must indeed make an

"intentional and concerted effort" to

seek out and hire qualified members of

minority groups. Although in a different

context, the U.S. Supreme Court recently

sanctioned a university's consideration

of a person's minority status in its

admissions policies. University of Cali-

fornia v. Bakke, 438 U.S. 265, 57 L.Ed.

2a 750 (1978). The constitutionality

of affirmative action programs in the

employment context is also presently be-

-75-

fore the Supreme Court. See Weber v.

Kaiser Aluminum & Chemical Corp., 563

F.2d 216 (5th Cir. 1977), cert. granted,

58 L.Ed. 2d 704 (1978). Given the compro-

mise course which Bakke followed, it would

seem most unlikely that the Supreme Court

will declare employment-related affirma-

tive action programs unconstitutional.

In sum, the mere fact that the BOR or

FIU has made an affirmative action commit-

ment does not entitle plaintiff to any

relief.

Plaintiff complains that she failed

to secure various positions for which

she applied and was qualified while non-

whites and Latins generally fared better.

Absent any allegation that the minority

members selected for these positions

lacked the requisite qualifications, how-

ever, plaintiff's discrimination charges

lack constitutional significance. The

-76-

complaint totally fails to place plain-

tiff in the position of a "Bakke" or a

"Weber". Affirmative action programs are

a sanctioned fact of life. Only when race

mechanically (e.g., a quota system) serves

to favor the objectively unqualified at

the expense of the objectively qualified -

scores or grades (Bakke) or seniority

(Weber) - does discrimination in a con-

stitutional sense allegedly exist. Clearly

plaintiff's present complaint does not

place her in any category which would

entitle her to judicial relief.

In sum, absent any specific allega-

tions that, as to a particular hiring

decision, plaintiff was rejected in favor

of an unqualified (or even lesser qual-

ified) minority applicant because of race,

her complaint, like the recent Sears suit,

Sears, Roebuck Co. v. Attorney General of

the United States, F.Supp » 29

-17-

EPD 49164A (D. DC. 1979), should be

viewed merely as a “political essay."

While the complaint may provide philosophi-

cal grist for the executive or legislative

"mills," it does not presently warrant

grinding by the federal judiciary.

III. THIS COURT SHOULD REQUIRE PLAINTIFF

TO RENDER A MORE DEFINITE STATEMENT

OF HER CLAIMS.

Should the Court deny the motions to

dismiss or dismiss the complaint with

further leave to amend, then the Court,

in fairness to the BOR, should require

plaintiff to render a more definite state-

ment of her claim. Granted, federal "no-

tice" pleading requirements under Rule 8,

Fed. R. Civ. P., are quite liberal. How-

ever, several of plaintiff's allegations

are so vague or ambiguous that the BOR

cannot reasonably frame a responsive

pleading.

-738-

Plaintiff contends she has worked

at FIU since 1972 and has applied for

numerous positions consistently without

success although many Latins and non-

whites were selected. (Complaint 4q 5,

7). In Paragraph 8, she partially lists

those positions for which she has unsuc-

cessfully applied. In Paragraphs ll(a),

12, 13 and 16(a), plaintiff makes conclu-

sory sex and/or race discrimination allega-

tions. A more definite statement of her

claims should remedy the following ambi-

guities and questions before the BOR must

respond:

Sex discrimination - Other than her

conclusory allegations in Paragraphs 11 (a)

and 16(a), the complaint fails to indicate

when or where plaintiff allegedly suffered

sex discrimination. Indeed, sex discrim-

ination charges appear to have no rela-

tionship to her grievances.

=FQu'

Racial Discrimination - The complaint

does not indicate which particular hiring

decisions were allegedly improper. Every

position for which plaintiff applied? Only

those positions in Paragraph 8? Every po-

sition for which plaintiff applied and a

minority member was selected? In sum,

what specific hiring decisions does plain-

tiff desire this Court to examine for al-

leged impermissible minority preferences,

and when did they occur?

As to each specific challenged hiring

decision, why is it allegedly discrimin-

atory? Did the minority member selected

allegedly lack the requisite qualifications?

* pid plaintiff allegedly possess superior

qualifications?

The elimination of these ambiguities

in the complaint would minimize expensive

and time-consuming discovery. In sum,

plaintiff has launched an across-the-board

attack on FUI's affirmative action pro-

grams which may have affected her. All

the BOR requests is for plaintiff to

identify which employment decisions it

must defend and why. Since this request

only slightly inconveniences plaintiff,

the BOR respectfully submits that the

potential savings in terms of discovery

time and expense attest to the reasonable-

ness and fairness of a more definite

statement.

CONCLUSION

The federal government and most

state governments have woven “affirmative

action" into the political and economic

fabric of this country. Plaintiff's am-

biguous "reverse discrimination" complaint

provides inadequate justifications for

this Court to examine whether FIU's re-

quired affirmative action efforts have

-8l-

violated her constitutional rights. She

has prematurely chosen to burden this

Court with legally defective allegations.

Adequate administrative remedies and,

suitable judicial vehicles for securing

any necessary equitable and legal relief

certainly exist. Pending her pursuit of

either administrative or appropriate legal

remedies, this Court should not accept

her defective invitation to scrutinize

personnel decisions for alleged consti-

tutional infirmities. For all the pre-

ceding reasons, defendant BOR respect-

fully requests this Honorable Court to

dismiss the amended complaint. Alter-

natively, the BOR respectfully requests

a more definite statement of plaintiff's

claims.

-§2-

Respectfully submitted,

GUY O. FARMER II

JEFFREY H. KLINK

Mahoney, Hadlow & Adams

Post Office Box 4099

Jacksonville, Florida 32201

(904) 354-1100

JOHN W. KOZYAK

Mahoney, Hadlow & Adams

1401 First Federal Building

One Southeast 3rd Avenue

Miami, Florida 33131

(305) 358-5550

B s

Y certvey (eo RITE

-83-

[CAPTION]

PLAINTIFF'S MEMORANDUM IN OPPOSITION

TO DEFENDANT'S MOTION TO DISMISS

The Plaintiff herein files this mem-

orandum of law in opposition to the motion

to dismiss amended complaint and memorandum

of law in support thereof filed on behalf

of the Defendant, BOARD OF REGENTS, here-

inafter referred to as BOARD.

Initially, it should be noted that:

"On a motion to dismiss, material

allegations of the complaint are

taken as admitted, and the com-

plaint is to be liberally construed

in favor of the plaintiff. Jenkins

v. McKeithen, 395, U.S. 411, 421

n.89 S.Ct. 1843, 23 L.Ed. 2d 404

(1969)." Kennedy v. H & M Lading,

Inc., 529 F. Yr. ).

In addition:

"Ordinarily a motion to dismiss

should be disfavored and doubt

should be resolved in favor of

the pleader." Williams v. Gorton,

529 F.2d 668 (9th Cir. 1976).

It has also been held that a case

brought under Section 1983, Title 42 U.S.C.,

should be not dismissed at the pleading

-84-

stage unless it appears to a certainty

that the Plaintiff would be entitled

to no relief under any state of facts

which could be proven in support of his

Claim. Conley v. Gibson, 355 U.S. 41

(1957); Barnes v. Merritt, 376 F.2d 8

(Sth Cir. 1967); and Holmes v. New York

City Housing Authority, 398 F.2d 262

(2nd Cir. 1968).

IS THE BOARD OF REGENTS A "PERSON" WITHIN

THE MEANING OF 42 U.S.C., SECTION 1983

Florida Statute, Section 240.042

creates the BOARD OF REGENTS as follows:

"(1) The Board of Regents is

hereby created as a body cor-

porate, and shall have a cor-

porate seal; shall elect a

corporate secretary; shall

have and employ a staff at-

torney and all other neces-

sary personnel; shall have

power to contract and be

contracted with; to sue and be

sued; to plead and be im-

pleaded in all courts of law

and Sees 5 eo ot (Emphasis

supplies’)

-85-

The Legislature of the State of

Florida, in their wisdom, has seen to

it that the BOARD OF REGENTS of the State

of Florida is an entity subject to the

jurisdiction of this Court and properly

named as a party defendant in this action.

It has been recognized in Byron v. Univer-

sity of Florida, 403 F.Supp. 49 (N.D. Fla.

1975) that:

" . . ». under Florida law the

University is not endowed

with separate corporate exis-

tence, nor with the authority

to be sued in its own name.

Rather those characteristics

are bestowed upon the Board of

Regents, as need of the State's

Ont

versity System." (Emphasis

Supplied).

Likewise in Wolfe v. O'Neill, 336

F.Supp. 1255 (D.Alaska 1972) and Craig

v. Alabama State University, 451 F.Supp.

1207 (M.D. Ala. 1978), it was held that

the Board of Regents and a Board of

Trustees were "persons" within the mean-

-~86-

ing of the 1871 Civil Rights Statute

(42 U.S.C., §1983).

Clearly, based upon the above and

foregoing authorities in the State of

Florida, the BOARD OF REGENTS is an

entity properly before this Court.

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Defendant has claimed that the com-

plaint herein be dismissed for the failure

of the Plaintiff to have availed herself

of and/or exhaust certain alleged admin-

istrative remedies to undue the grievous

wrong inflicted upon her.

It is the law from the Supreme Court

of the United States and from the Fifth

Circuit that exhaustion of neither State

administrative nor State judicial remedies

are required prior to bringing an action

pursuant to 42 U.S.C., §1983. Chief

Judge Brown in Hall v. Garson, 430 F.2d

430 (5th Cir. 1970), Judge Wisdom in Moreno

-87-

v. Henckel, 431 F.2d 1299 (5th Cir. 1970)

and Judge Goldberg in Hobbs v. Thompson,

448 F.2d 456 (5th Cir. 1971), speaking

for their respective panels, all concluded

that one of the purposes underlying 42

U.S.C., §1983 is to provided a remedy

in Federal court which is supplementary

to any remedy in State proceedings. Ses

also, Preiser v. Rodriguez, 411 U.S. 475,

93 S.Ct. 1827 (1973); Carter v. Stanton,

405 U.S. 669, 92 S.Ct. 1232 (1972) and

McNeese v. Board of Education, 373 U.S.

668, 83 S.Ct. 1433 (1973).

Based upon the above and foregoing

authorities, neither exhaustion of

state nor judicial remedies were required

as a prerequisite to bringing the action

in this Court.

RESPONDEAT SUPERIOR

Defendant claims unequivocally

"that respondeat superior fails to pro-

vide an adequate basis for imposing Sec-

tion 1983 liability." The law is not

as clear, especially in the Fifth Circuit

as the Defendant suggests:

"Moreover, assertions of insula-

tion from liability because

§1983 does not permit deriva-

tive, respondeat superior,

liability are questionable,

and, at best, overbroad. It is

true that some cases hold

that absent overt acts, §1983

does not authorize recovery

of monetary damages through

respondeat superior, see, e.g.,

Johnson v. Glick, 2 Cir. 1973,

F. ; Adams v. Pate,

7 Cir. 1971, 445 F.2d 105, but

this circuit has carved out

some exceptions to this rule.

A sheriff may be held liable

for the actions of his appointed

deputies, over whom he has con-

trol, in certain circumstances.

See e.g., Madison v. Gerstein,

5 Cir. 1971, 440 F.2d 338. Even

more to the point this court

has established in several

fairly recent cases that 'prison

administrators may under cer-

tain circumstances be held vi-

-89-

cariously liable for the act

of their subordinates'. See

Carter v. Estelle, 5 Cir.

1975, 159 F.2d 1136; Holland

us Connors, 5 Cir. 19

; Parker v. McKeithen,

5 “Cir. 197 F.

cert. denied, 419 U.S. 838,

95 S.Ct. 67, 42 L.Ed. 2d 65;

Tuley v. Heyd, 5 Cir. 1973,

462 F.2d 55. At this stage,

it 1s impossible to determine

whether or not Taylor's broad

allegations will support

derivative liability under a

respondeat superior theory."

Taylor v. Gibson, 529 F.2d

705; 716 (5th Cir. 1976).

See, in addition, Croy v. Skinner,

410 F.Supp. 117, 123 (N.D. Ga. 1976).

Some courts have rejected the limitation

upon liability urged by the defendants

altogether. See Santiago v. City of

Philadelphia, 435 F.Supp. 136, 148-49

(E.D. Pa. 1977). The Fifth Circuit has

also had this to say about the matter:

"On usual principles of agency persons

may be held accountable for the acts of

others under §1983." Gomez v. Florida

-90-

State Employment Service, 417, F,2d 569,

578 n.34 (Sth Cir. 1969).

Additionally, the Defendant in the

memorandum of law filed with this Court

claims that Plaintiff is asking this

Court to declare "affirmative action pol-

icies" unconstitutional. The Defendant

then goes on to try and justify the alleged

discriminatory conduct on the part of

the Plaintiff under the mandate of govern-

mental affirmative action programs. No-

where, in Plaintiff's complaint are Defend-

ant's "affirmative action programs" even

discussed, assuming they exist and in

any event, Defendant is arguing matters

before this Court which are outside of

the face of the complaint, that argument

being improper on a motion to dismiss.

WHEREFORE, counsel prays this Honor-

able Court to deny the motion ':to dismiss

filed herein, to find that the complaint

-91-

sufficiently sets forth allegations to

enable Defendant to plead and to allow

this action to proceed accordingly.

RESPECTFULLY SUBMITTED,

LAW OFFICES OF

EUGENE P. SPELLMAN

Attorneys for Plaintiff

100 North Biscayne Boulevard

Penthouse Suite

Miami, Florida 33132

Telephone: (371-3477)

By: /s/

DENIS DEAN, SR.

-92-

[CAPTION]

ORDER

THIS CAUSE having come before the

Court on Defendant's motion to dismiss

for lack of jurisdiction for plaintiff's

failure to allege exhaustion of admin-

istrative remedies under principles

enunciated by Penn v. Schlesinger 497

F.2d 970 (5th Cir. 1974), and having

considered the motion and being otherwise

duly advised,

It is thereupon

ORDERED AND ADJUDGED that Defendant's

motion to dismiss be granted for Plaintiff's

failure to exhaust administrative remedies.

DONE AND ORDERED at Miami, Florida,

this 9th of July, 1979.

JOSE A. GONZALEZ

DISTR

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