Count 2 contains three types of claims: two which Title VII preempts, several which Title VII might preempt, and one which Title VII does not preempt. In para. 18 of her Complaint, Lockhart claims that the defendants denied her equal protection of the laws in failing to promote her from April 1983 to September 1984. In para. 25 she claims the defendants denied her equal protection in processing her complaints. A denial of equal protection, however, in relation to hiring, firing, compensation, terms, conditions, or privileges of employment is a violation of Title VII, when the denial is based on race, color, religion, gender, or national origin. See 42 U.S.C. § 2000e-2(a)(1). It would be unreasonable to infer from Lockhart's complaint that she alleges discrimination on some ground other than these, and so this court concludes that Title VII preempts a Bivens remedy for Lockhart's claims of denial of equal protection.
Examples of the second category of claims, those which Title VII might preempt, are found in paras. 18-21 and 23-25 of the Complaint. In these paragraphs Lockhart claims that the defendants denied her due process, violated her rights under the First and Fourth Amendments, and infringed on her right to privacy. Standing alone, these claims are not ones of discrimination. Title VII could interrupt Lockhart's prosecution of them, however, if she contends the defendants deprived her of these rights in retaliation for her filing discrimination charges. This would state a claim under Title VII, and Title VII would be Lockhart's exclusive remedy. At this stage of the pleadings, however, the court cannot reasonably exclude the possibility that the defendants infringed these rights for reasons other than Lockhart's filing of discrimination charges. Title VII thus will not preclude a Bivens action for these violations at this time.
The sole example of the third type of constitutional claim which Lockhart brings in Count 2 is found in para. 22 of the Complaint. There Lockhart claims that the United States violated her right to privacy when Bernstein and O'Byrne threatened her with warnings, reprimands, and discharge. Unlike the claims examined above, this claim alleges the motive for Bernstein and O'Byrne's act: Lockhart's failure to provide them with "private information to which they were not entitled." This is not a motive which converts an alleged constitutional wrong into a Title VII claim, as it does not suggest retaliation for the filing of a Title VII charge. Title VII thus will not preclude the Bivens claim put forth in para. 22.
Title VII hence bars some, but not all, of Lockhart's Bivens claims in Count 2. The defendants suggest nevertheless that there are "special factors" that counsel against implying Bivens remedies in this situation, in the absence of affirmative action by Congress. The defendants base their argument in large part on Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983). There the Court held that a federal civil service employee did not have a Bivens remedy for a claim of a violation of his rights under the First Amendment, notwithstanding that his civil service remedies were not as effective as damage remedies and could not fully compensate him for the harms he allegedly suffered. The Court noted that Congress had recognized the conflict among the Government's interest in managing its employees, an employee's interest in job security, and the employee's rights under the First Amendment. Congress's consideration had resulted in many legislative efforts, Executive Orders, and administrative regulations. These efforts created an "elaborate, comprehensive scheme" that encompassed "substantive provisions forbidding arbitrary actions and procedures -- administrative and judicial -- by which improper action" could be redressed. This comprehensive scheme convinced the Court that it would be unwise to create a Bivens remedy for violations of the First Amendment rights of federal employees, absent affirmative direction from Congress. Id. at 380-90.
The defendants argue that Bush stands for the proposition that federal employees do not have a Bivens remedy for constitutional wrongs committed while the employee is on the job. While this may be the ultimate, practical effect of Bush upon this case, Bush does not stand for the blanket proposition urged by the defendants. As Carlson and Bush make clear, the presumption of the federal common law is that Bivens remedies are available for violations of the Constitution committed by federal officers. See Carlson, 446 U.S. at 18; Bush, 462 U.S. at 374-75. The exceptions to Bivens are just that: exceptions. As they are exceptions, it is the burden of the party claiming them -- here, the defendants -- to demonstrate that they apply. That much is clear from Carlson, see 446 U.S. at 18 (Bivens cause of action "may be defeated" when defendants demonstrate applicability of two exceptions), and the Seventh Circuit's cases applying the Bivens exceptions. In the pre-Bush case of Sonntag v. Dooley, 650 F.2d 904 (7th Cir. 1981), a curator of a federally operated Army museum sued her supervisors for denying her procedural due process in forcing her to retire. The defendants moved to dismiss, arguing in part that the curator lacked a Bivens remedy. The district court granted the defendants' motion, but the Seventh Circuit reinstated her claim on appeal. The court noted that the defendants had failed to demonstrate either how Congress provided an alternative remedy for the curator's claims or what special factors counselled hesitation. Id. at 907.
While the Sonntag court's assessment of the curator's claim may be incorrect in light of Bush, its allocation of the burden of proof remains the law. That much was demonstrated in Moon v. Phillips, 854 F.2d 147 (7th Cir. 1988). There a former employee of the Internal Revenue Service sued his supervisors, claiming a violation of his constitutional rights of free speech and denial of equal protection of the laws. The defendants moved to dismiss the employee's claims under Rule 12(b)(6), Fed.R.Civ.P., and demonstrated that the employee had an administrative remedy for his claims through the Merit Systems Protection Board. See id. at 149, 151-52. The district court dismissed the employee's Bivens claims on this ground, and the Seventh Circuit affirmed. The court indicated the importance of a showing of an alternative remedy through its analysis of several cases, including Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980); Egger v. Phillips, 710 F.2d 292 (7th Cir. 1983); and Williams v. I.R.S., 240 U.S. App. D.C. 326, 745 F.2d 702 (D.C. Cir. 1984). The court distinguished Bishop by noting that the plaintiff in Bishop alleged that the defendants had blocked all access to administrative remedies. It distinguished Egger and Williams by noting that the plaintiffs there were exempt from civil service protection, and thus had no administrative remedy. The Seventh Circuit also noted Bush's additional leeway for the Bivens actions of federal employees when the employee alleges violations that fall outside of administrative remedies. See Moon, 854 F.2d at 149-52.
The defendants' claim that Lockhart has no Bivens remedies is thus unavailing, at least for now. Nowhere do the defendants demonstrate that Lockhart has alternative administrative remedies for the constitutional violations she claims. This court will follow the lead of the Seventh Circuit in Moon and give special scrutiny to any Bivens action brought by a federal employee, but until the defendants demonstrate specific factors counselling hesitation -- for example, Lockhart's exact administrative remedies -- this court will continue to entertain some of Lockhart's Bivens claims.
This court denies Lockhart's motion for summary judgment for failure to comply with Local Rule 12(l). The court substitutes the United States for defendants O'Byrne and Bernstein. The defendants' motion to dismiss Count 1 is denied, and their motion to dismiss Count 2 is granted only with respect to Lockhart's claims of denial of equal protection.
DATE: September 6, 1989