The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the defendants' Motion for Partial Dismissal and/or Judgment on the Pleadings, [Doc. 28], pursuant to Federal Rule of Civil Procedure 12. See Fed. R. Civ. P. 12(b), (c). The plaintiff's second amended complaint, [Doc. 18-2], alleges that (1) East Tennessee State University ("ETSU"), through its supervisors and agents, retaliated against the plaintiff on account of her complaints regarding sex, race, religious, and national origin discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e(2008) et seq.; (2) individual Defendants Paul Stanton, Biddanda Ponnappa, Martha Whaley, Gregory Wilgocki, and John Sanders retaliated against her because of her complaints regarding sex, race, religious, and national origin discrimination in violation of Tennessee Code Annotated section 4-21-301, T.C.A. § 4-21-301 (2008); and (3) the individual defendants retaliated against her regarding her complaints that Defendant Whaley discriminated against her on the basis of her race in violation of Title 42 United States Code sections 1981 and 1983, 42 U.S.C. §§ 1981, 1983 (2008). All individual defendants seek a dismissal of the third count, claiming that Title VII preempts the sections 1981 and 1983 claims and thus jurisdiction does not exist. Alternatively, Defendants Stanton, Wilgocki, and Sanders move to dismiss the punitive damages claim in relation to Count III.
Because the defendants facially attack subject matter jurisdiction, this Court must accept the plaintiff's material allegations in the complaint as true. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). The plaintiff has the burden of proving subject matter jurisdiction in order to survive a motion to dismiss pursuant to Rule 12(b)(1). Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Because lack of subject matter jurisdiction is a non-waivable, fatal defect, it may be raised by any party at anytime, including being raised sua sponte by this Court. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).
It is well established in the Sixth Circuit that an employee may sue his or her public employer under both Title VII and section 1983*fn1 where the employee establishes that the employer's conduct violated both Title VII and rights derived from the United States Constitution or a federal statute that existed at the time of the enactment of Title VII. Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir. 1984). In addition, since certain employees, such as supervisors, of public employers are not subject to suit under Title VII, a plaintiff's avenue of redress against such defendants is under section 1983. See Weberg v. Franks, 229 F.3d 514, 522 n. 7 (6th Cir. 2000). Here, the plaintiff sued ETSU, her public employer, under Title VII and sued the remaining defendants, who worked for ETSU, in their individual capacities under sections 1981 and 1983 for retaliation on the basis of her race.*fn2
The United States Supreme Court held in CBOCS West, Inc. v. Humphries,--U.S.--, 128 S.Ct. 1951, 1961 (2008), that section 1981 encompasses claims of retaliation. That section states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981. Thus, the relevant inquiry for this Court is whether this section 1981 right to be free from retaliation existed at the time of the enactment of Title VII. See Day, 749 F.2d at 1205. Neither the Sixth Circuit nor any other Circuit has decided this precise issue. To answer this question, a brief review of pertinent interpretive history is necessary. See CBOCS West, 128 S.Ct. at 1955-1958 (setting forth in detail the relevant precedent regarding sections 1981 and 1982 retaliations claims).
Section 1981 traces its origin to the Civil Rights Act of 1866, which was enacted just after the Civil War. Similarly, section 1982 was enacted at the same time and focused upon the rights of nonwhite citizens to make and enforce contracts related to ownership of property. In 1969, the Supreme Court decided in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), that section 1982 encompasses retaliation claims. Supreme Court precedents have long construed sections 1981 and 1982 similarly because of the common language, origin, and purposes. See Runyon v. McCrary, 427 U.S. 160, 173 (1976); Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 (1973); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Thus, based on Sullivan, Circuit Courts have held that section 1981 encompassed retaliation claims. See Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977).
In 1972, federal, state, and local employees were brought within the protection of Title VII by the 1972 Amendments. The legislative history of the 1972 Amendments is worth noting. The House Report states:
In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual's right to file a civil action in his own behalf, pursuant to the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected.... Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment discrimination.... The bill, therefore, by extending jurisdiction to State and local government employees does not affect existing rights that such individuals have already been granted by previous legislation.
H.R. Rep. No. 92-238, reprinted in 1972 U.S. Code Cong. & Adm. News 2137, 2154. Thus, existing-law claims under the Constitution or federal statutes were not affected by the amendments, and such claims could be pursued alongside Title VII claims. Day, 749 F.2d at 1204.
In 1989, the Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164 (1989), which limited the scope of section 1981in holding that 1981 did not apply to conduct by an employer after the contract had been established. In effect, this holding foreclosed retaliation claims. However, the Civil Rights Act of 1991 superseded Patterson by defining section 1981's scope to include post-contract-formation conduct. Subsection (b) now reads: "For purposes of this section, the term'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. 1981(b). After the Act, Circuit Courts again decided that section 1981 encompassed retaliation claims. See Johnson v. University of Cincinnati, 215 F.3d 561, 575-76 (6th Cir. 2000).
Finally, the Supreme Court expressly decided in 2008 in CBOCS West that section 1981 encompasses retaliation claims. Further, the Court addressed the section's "necessary overlap" with Title VII. CBOCS West, 128 S.Ct. at 1960. The Court stated:
"[T]he'remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.' We have pointed out that Title VII provides important administrative remedies and other benefits that § 1981 lacks. And we have concluded that'Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to ...