Davis v. Passman

PETITIONER: Davis
RESPONDENT: Passman
LOCATION: Harrah High School

DOCKET NO.: 78-5072
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 442 US 228 (1979)
ARGUED: Feb 27, 1979
DECIDED: Jun 05, 1979

ADVOCATES:
A. Richard Gear - Argued the cause for the respondent
Sana F. Shtasel - Argued the cause pro hac vice for petitioner

Facts of the case

Davis, a former employee of Louisiana Congressman Otto Passman, charged Passman with violating her Fifth Amendment right to due process. Prior to the time of her firing Passman wrote a note explaining that, even though he knew Davis as an "able, energetic, and a hard, hard worker", he preferred a man to work in her position. The Court of Appeals ruled that Davis had no civil remedies under the Fifth Amendment due process requirement.

Question

Did the Fifth Amendment's Due Process Clause afford Davis a right to a civil remedy against Passman?

Media for Davis v. Passman

Audio Transcription for Oral Argument - February 27, 1979 in Davis v. Passman

Warren E. Burger:

We'll hear arguments first this morning in Davis -- Shirley Davis against Passman.

Ms. Shtasel, you may proceed whenever you're ready.

Sana F. Shtasel:

Thank you Mr. Chief Justice and may it please the Court.

My name is Sana Shtasel appearing for the petitioner in the case this morning.

The case before you today arises on writ of certiorari from the United States Court of Appeals for the Fifth Circuit.

The basic question is whether a cause of action from money damages may be implied under the Fifth Amendment to redress sex discrimination in federal employment.

If that question is answered in the affirmative, this Court then must determine whether respondent is nonetheless absolutely immune from suit by virtue of the Speech or Debate Clause of the Constitution.

The facts of this case are simple and stark.

Petitioner was employed by respondent then a United States Congressman for a six-month period in 1974.

Despite the fact that petitioner was an able, energetic, and extremely capable secretary as attested to by the respondent in his letter of dismissal, which appears in the appendix in this case at pages 6 and 7, respondent dismissed petitioner solely, explicitly, and expressly because he wanted a man rather than a woman to fill that position.

Harry A. Blackmun:

Do you mean as secretary that's the way he described her?

Sana F. Shtasel:

The title of the petition -- of the position Mr. Justice Blackmun was deputy administrative assistant but it is the functions of the job that are in question here and no one has ever contended that the petitioner did anything other than secretarial functions.

That is exactly how her job was described in the letter terminating her employment which is the only thing we have on the record in this case.

Petitioner therefore brought suit allegedly --

Harry A. Blackmun:

Do you think it would make a difference if her task were secretarial exclusively or administrative assistant at least impart?

Sana F. Shtasel:

It might make a difference Mr. Justice when we get to the question of the operation of the Speech or Debate Clause.

It should not make a difference as to whether the petitioner has a cause of action under the Fifth Amendment.

Whether however, her job functions would be so integral to the congressmen's legislative functions that the employment relationship should nonetheless be covered with absolute immunity is a question which must be addressed there.

Our position however is that there is no way that the Speech or Debate Clause can apply to the -- to a low level non-policymaking clerical employee.

I might say that this case arises on a 12 (b) (6) motion to dismiss so that our contentions here for the -- in the procedural posture of this case must be taken to be the ones applicable.

Byron R. White:

What was her salary is that in the review?

Sana F. Shtasel:

That is in the record Mr. Justice White.

Her salary was $18,000.00 a year.

Byron R. White:

That sounds like a little some other than a low level clerical employee, doesn't it?

Sana F. Shtasel:

It sounds like it Your Honor but one when consults the report of the clerk of the house for that period in time, it's quite clear that some 75 other representatives had secretaries, personal secretaries, executive secretaries, all making that kind of salary and indeed there are other cases where members employed persons called secretaries who made more than the administrative assistant that they also employ.

Byron R. White:

When was this, 1970?

Sana F. Shtasel:

4.

Byron R. White:

4.

Sana F. Shtasel:

She was employed from February through July in 1974.

Warren E. Burger:

The salary may be fixed by each individual member of the House in Senate without any standards, is that not so?