Miller v. Walker Div. of Butler Mfg. Co., Inc., 577 F. Supp. 948 (S.D.W. Va. 1984)

*949 William L. Jacobs, Parkersburg, W. Va., for plaintiff.

William G. Powell, Renner, Everett & Powell, Parkersburg, W. Va., Jack D. Rowe, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for defendant.

HADEN, Chief Judge.

The female Plaintiff brings this action, pursuant to 42 U.S.C. §§ 1983 and 2000e-5(f), against her former employer seeking to recover, inter alia, equitable relief in the form of back pay and reinstatement to her former position, as well as compensatory and punitive damages. Currently pending before the Court is the Defendant's motion that the Court strike those portions of the complaint which (1) purport to state a cause of action under Section 1983, as well as the First and Fourteenth Amendments, (2) demand compensatory and punitive damages, (3) exceed the Plaintiff's claim that she was unlawfully discharged on the basis of her sex and, in particular, which extend to allegations of *950 the Defendant's sexual discrimination in "salary, promotion ... and equal treatment", and (4) demand a jury trial. For the reasons set out below, the Court hereby grants the aforementioned motion, filed July 6, 1983.

In Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420 (1981), the Supreme Court stated that:

"In any § 1983 action the initial inquiry must focus on whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived the person of rights, privileges, or immunities secured by the Constitution or laws of the United States."

The Court has likewise held that the First and Fourteenth Amendments are not violated unless the complained of conduct was "governmental action". See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S. Ct. 449, 452, 42 L. Ed. 2d 477 (1974) (Fourteenth Amendment); Central Hardward Co. v. NLRB, 407 U.S. 539, 547, 92 S. Ct. 2238, 2243, 33 L. Ed. 2d 122 (1972) (First Amendment). Inasmuch as the Plaintiff has not alleged any facts, which if taken as true, would support a finding that the Plaintiff's allegedly sexually discriminatory discharge by the Defendant, a private employer, was accomplished by "state/governmental action", the Court hereby ORDERS that the conclusory allegations contained in ¶ 8 of the Plaintiff's complaint be stricken from the complaint in this action. See e.g., Armbruster v. Quinn, 498 F. Supp. 858, 860 (E.D.Mich. 1980) affirmed in pertinent part 711 F.2d 1332, 1334 (6th Cir. 1983).

Inasmuch as 42 U.S.C. § 2000e-5(g) only provides for equitable relief, such as back pay and reinstatement, a plaintiff is not entitled to recover compensatory and punitive damages in a sex discrimination action under Title VII. See e.g., Moll v. Parkside Livonia Credit Union, 525 F. Supp. 786, 791-93 (E.D.Mich.1981). Accord Jeter v. Boswell, 554 F. Supp. 946, 954 (N.D.W.Va.1983) (punitive damages). In an apparent effort to sidestep this well-settled rule of law, the Plaintiff's counsel has asserted in his memorandum in opposition to the Defendant's motion to strike the Plaintiff's prayer for compensatory and punitive damages that the Plaintiff is also seeking to recover for the Defendant's alleged breach of a contract with the Plaintiff that it would not discriminate against her on the basis of her sex. Were the Court to accept counsel's construction of the complaint, which makes absolutely no mention of such a contract, it would extend the concept of notice pleading to the absurd. Simply stated, the Plaintiff's complaint, once ¶ 8 has been stricken, only "notices" a cause of action under Title VII. Accordingly, the Court hereby ORDERS that the Plaintiff's prayer for compensatory and punitive damages be stricken from the complaint in this action.

On September 2, 1982, the Plaintiff filed an administrative complaint with the EEOC wherein she alleged that her former employer had discriminatorily discharged her on account of her sex on August 27, 1982.^[1] After the EEOC issued the Plaintiff *951 a right to sue letter on February 22, 1983,^[2] the Plaintiff instituted this action on May 24, 1983,^[3] wherein she alleges in ¶ 7 of her complaint that "the defendant has consistently engaged in sex discrimination from the standpoint of salary, promotions, discharge and equal treatment." The Defendant moves the Court to strike those general allegations in ¶ 7 of the complaint which pertain to sexual discrimination in "salary, promotions ... and equal treatment", inasmuch as they exceed "the `scope' of the investigation which can reasonably be expected to grow out of the [administrative] charge of discrimination." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970); Chisholm v. U.S. Postal Service, 665 F.2d 482, 491 (4th Cir.1981). Inasmuch as the Plaintiff's administrative charge only pertained to her allegedly discriminatory discharge, the Court finds that it does not have subject matter jurisdiction over her additional allegations that "the defendant has consistently engaged in sex discrimination from the standpoint of salary, promotions ... and equal treatment" which are beyond the reasonably expected scope of the EEOC's investigation of her administrative charge. Accordingly, the Court hereby ORDERS that these allegations be stricken from the complaint in this action. See Carrillo v. Illinois Bell Telephone Co., 538 F. Supp. 793 (N.D.Ill.1982).

Inasmuch as Title VII "expressly authorizes only equitable remedies, the courts have consistently held that neither party has a right to a jury trial." Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 375, 99 S. Ct. 2345, 2350, 60 L. Ed. 2d 957 (1979) (citing cases at n. 19); Moll v. Parkside Livonia Credit Union, 525 F. Supp. 786, 793-94 (E.D.Mich.1981). Accordingly, the Court hereby ORDERS that the Plaintiff's demand for a jury trial be stricken from the complaint in this action.^[4]

[1] See Exhibit A, attached to the Defendant's memorandum in support of its motion to strike, filed July 6, 1983.

[2] See Exhibit C, attached to the Defendant's memorandum in support of its motion to strike, filed July 6, 1983.

[3] Cf., 42 U.S.C. § 2000e-5(f) (1).

[4] While the Court may, in the exercise of its discretion, impanel an advisory jury in a Title VII action, Cox v. Babcock & Wilcox Co., 471 F.2d 13-14 (4th Cir.1972), it has concluded that the use of an advisory jury would not be appropriate in this action since "the use of an advisory jury as provided by Rule 39(c) should be sparingly exercised in discrimination cases ...." Id. at 14.