The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2172, 98-2375, 98-2376, 98-2377,
98-2378, 98-2379, 98-2381 & 00-2893
ANTHONY BISHOP, JEFFREY D. HANFORD,
STEVEN J. SWEENEY, LESTER G. ROBERT,
DALE G. VOLLE, JERRY MEYERS, OWEN REEVES,
and AARON BOOKER,
Plaintiffs-Appellants,
v.
TERRANCE W. GAINER, HARRY ORR,
JOHN REDNOUR, DAVID P. SCHIPPERS,
RICHARD T. MITCHELL, NANCY BEASLEY,
FRED E. INBAU, JAMES E. SEIBER,
JAMES REDLICH, and STATE OF ILLINOIS,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 92 C 3293--Harry D. Leinenweber, Judge.
Argued September 6, 2001--Decided DECEMBER 5, 2001
Before COFFEY, KANNE, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Filed in the
district court in 1992, this case
precipitated sweeping changes in the
hiring and promotion policies of the
Illinois State Police. So it is somewhat
surprising that the appeal before us
today is brought, not by the ISP, but by
some of the very plaintiffs who were on
the winning side, making the appeal
asappetizing as week-old leftovers in a
refrigerator after a successful
Thanksgiving dinner.
The pot started to boil in 1972 when a
woman named Patricia Cross accused the
ISP and the Illinois State Police Merit
Board of sex discrimination. A settlement
was reached between the Equal Employment
Opportunity Commission and the ISP Merit
Board under which the ISP was required to
maintain nondiscriminatory hiring
practices; the trainee classes for the
ISP had to be composed of at least 25
percent minorities and 7 percent females.
The agreement also required that the ISP
would ensure that no less than 50 percent
of those admitted to the training academy
would be black, other minorities, or
women. The ISP was required to report
annually to the EEOC on the race and
gender composition of its applicants.
Washington v. Walker, 529 F.2d 1062 (7th
Cir. 1976). In addition, between 1975 and
1992 there were at least 30 other
complaints filed with the EEOC against
the ISP alleging discrimination based on
sex or race in both hiring and promotion
decisions.
Also, in the 1970s the ISP instituted an
affirmative action plan in an attempt to
increase the numbers of females and
minorities in its ranks. As so often
seems to be the case, this solution
resulted in the opposite predicament--
the present suit by white males, alleging
that they were discriminated against by
the move to increase the number of
females and minorities working for the
ISP.
Their "reverse discrimination" case was
filed in May 1992 challenging both the
hiring and promotion practices of the
Illinois State Police. It was litigated
under both 42 U.S.C. sec. 1983 and Title
VII, 42 U.S.C. sec. 2000e et seq. The
practices of the ISP were once again
examined for compliance with currently
prevailing federal anti-discrimination
laws. The district judge made numerous
rulings throughout the lawsuit, for
instance considering whether certain
plaintiffs had filed suit within the
applicable statute of limitations. On the
merits, he found that the certified class
of plaintiffs alleging discrimination in
hiring was entitled to summary judgment
on its sec. 1983 claim; he found that the
ISP’s plan violated the Equal Protection
Clause because it was not "narrowly
tailored to meet a compelling
governmental interest." Koske v. Gainer,
1997 WL 619858 (N.D. Ill. Sept. 30,
1997). The Title VII claim proceeded to a
bench trial, after which the judge
concluded that the defendants violated
Title VII by discriminating on the basis
of race in their hiring decisions. The
notice of judgment in a class action
stated:
[T]he members of the class who are not
current or retired ISP officers were
entitled to have another opportunity to
participate in the Illinois State Police
application process without taking an
initial entrance examination test.
Instead, the members of the class may
proceed to the next steps in the
application process, which include a
physical ability test, psychological
evaluation, polygraph examination,
background review, and personal
interview.
The notice, however, did not include a
money award or other individual relief to
class members. It stated:
The court is not deciding the issues of
back pay, retroactive retirement
contribution or retroactive seniority for
class members who were not hired or whose
hiring date was delayed.
At trial, the claims of individual
plaintiffs regarding discrimination in
individual promotion decisions were also
presented. The court found that there was
discrimination behind some of the
decisions. As a result, some plaintiffs
won; some lost; some of those who won
apparently were satisfied with the
damages they were awarded; some were not.
This is where we come in. Before us are
individual appeals based on various
promotion claims and an appeal involving
the failure to make a monetary award to
the class members on the hiring claims.
Before we get to the issues, however, we
must address concerns about our
jurisdiction over the claims of certain
plaintiffs. After the seven individual
plaintiffs alleging discrimination in
hiring decisions filed their appeals, it
was unclear whether the decisions
appealed from were final; we asked the
district court to clarify whether it had
resolved all of the parties’ claims. On
March 23, 1999, the district judge found
that there was no just reason for delay
and said in open court that he would
enter judgment under Rule 54(b) on the
"claims of the individually named
plaintiffs, including the individual
claim of class representative Aaron
Booker." It is undisputed that this
order, which we will construe as a
certification pursuant to Rule 54(b),
cleared up the jurisdictional issue as to
several of the individuals but left
questions in the cases of Owen Reeves,
Steven J. Sweeney, and in the class
action.
Like other individual plaintiffs, Reeves
and Sweeney filed notices of appeal from
nonfinal orders. As we said, we remanded
the cases--now consolidated into one
appeal-- and a Rule 54 certification was
issued. ISP does not dispute that there
is jurisdiction over the claims of the
appellants who filed notices of appeal
within 30 days of nonfinal orders but
before the Rule 54(b) certification. For
those people, the belated Rule 54(b)
certification gave us jurisdiction over
those appeals based on the prematurely
filed notices of appeal. Local P-171,
Amalgamated Meat Cutters and Butcher
Workmen of North America v. Thompson
Farms Co., 642 F.2d 1065 (7th Cir. 1981).
But as to Reeves and Sweeney, the ISP
argues that there is no jurisdiction
because their notices of appeal were
filed more than 30 days from the entry of
the nonfinal orders from which they were
appealing. The order Reeves appeals from
was entered March 27, 1997, and his
notice of appeal was filed on May 22,
1998. The order Sweeney appeals from was
dated April 23, 1998, and his notice of
appeal was filed on May 27, 1998. Despite
Reeves’ rather cavalier claim that he
did, the record shows that neither he nor
Sweeney filed a second notice of appeal
following the entry of the Rule 54(b)
certification.
Reeves argues that he could not
"legally" have filed a notice of appeal
in 1997 because the summary judgment
order of March 1997 was not final and
appealable. He then says that the order
did not become appealable until the
district court made a Rule 54(b) finding.
But he also says of the Rule 54(b)
finding that, "after which Reeves timely
filed his Notice." Then a few sentences
later he says that "[d]efendants
apparently argue that Reeves should have
appealed from the Rule 54(b) order. This
makes no sense."
What we have trouble making sense of is
Reeves’ argument. Despite that, after
reconstructing his argument, we will
allow Reeves’ appeal to proceed. Although
he does not say so in his appellate
brief, Reeves must have thought his right
to appeal was triggered by the April 23,
1998, order of the district court, which
set back pay and damages for several
individual plaintiffs on their promotion
claims and included a "Notice of Judgment
in Class Action." It is this order,
labeled "Revised Final Order," from which
the other plaintiffs, also apparently
thinking that it was a final judgment,
filed their notices of appeal. We
questioned whether it was final, and that
is why this case now includes a Rule
54(b) certification. If the April 23,
1998, order had been a final judgment,
Reeves would have been able to appeal the
1997 order dismissing his claim at that
time--that is, when the case was over. 28
U.S.C. sec. 1291. And his appeal would
have been timely. As it turned out, the
April 1998 order was not a final
judgment. But of course the Rule 54
certification, which was proper, made it
appealable. So the ISP argues that either
Reeves had to file a timely notice of
appeal from the Rule 54(b) certification
or he should have filed one way back in
1997, within 30 days of the order
dismissing him from the lawsuit. The
argument is apparently based on the fact
that the April 23, 1998, order really has
nothing to do with him; his claim had
been dismissed the year before. Where
does this leave Reeves?
To leave him out in the cold would be
setting hypertechnical traps for those
who make reasoned judgments about what
various court orders mean. Reeves filed a
timely appeal when he reasonably believed
a final judgment had been entered. It
was, after all, labeled "Revised Final
Order." Even though it left loose ends on
the hiring claims, it ended all aspects
of the promotion claims. When it was
certified under Rule 54, the promotion
claims were fully litigated. Given this
unusual set of circumstances--
particularly the fact that Reeves filed a
timely notice of appeal from the "Revised
Final Order"--his appeal will be allowed
to proceed.
Sweeney, on the other hand, acknowledges
that his notice of appeal was filed one
day late from the order of April 23,
1998, and he does not argue that he filed
another notice following the Rule 54(b)
certification. Furthermore, he cannot be
saved by Appellate Rule 4a(3), which
could allow him 14 days from the time the
first notice of appeal was filed. See
Young Radiator Co. v. Celotex Corp., 881
F.2d 1408 (7th Cir. 1989). In this case
the first notice of appeal was filed on
May 6, 1998, which means that Sweeney had
the original 30 days in which to file his
appeal. Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction 3d
sec. 3950.7. In addition, a request for
an extension of time would have had to be
made within 30 days of the expiration of
the time limit. Rule 4(a)(6), Federal
Rules of Appellate Procedure. Sweeney’s
appeal is dismissed. He should not
despair about this dismissal, however,
because our examination of his appeal on
the merits convinces us that his chances
of success were nonexistent.
The class action presents a different
issue. On June 7, 2000, Aaron Booker
appealed on behalf of a certified class
from an order issued May 8, 2000, nunc
pro tunc to April 24, 1998. This order
apparently made the class action
decisions final and appealable. The ISP
claims that, nevertheless, Booker’s
notice of appeal is untimely because the
order of March 23, 1999, found "no just
reason for delay and judgment is hereby
entered as to the claims of the
individually named plaintiffs, including
the individual claim of class
representative Aaron Booker." This order
disposed of Booker’s individual claims.
The appeal Booker filed is on behalf of
the class but, the ISP argues, he is not
a person "qualified to bring an appeal"
in a class action under Rule 3(c)(3)
because he lost his right to appeal
personally.
We disagree. The order on which the ISP
relies also says "Booker remains as the
class representative." At the time of the
entry of the order, matters relating to
the class action remained in the district
court. Once those claims were resolved,
Booker as class representative was a
person "qualified to bring an appeal."
Having determined our jurisdiction, we
will consider the statute of limitations
issues raised by Reeves, Jerry Meyers,
and Anthony Bishop. Their cases were
dismissed based on failure to meet the 2-
year statute of limitations for sec.1983
cases in Illinois and/or the 300-day time
limit in Title VII. In Reeves’ case
summary judgment was granted against him,
and the other two lost after trial.
In 1986 Reeves was passed over for
promotions given to two lower scoring
white men and a black man. Two
lieutenants told Reeves that the ISP used
race-based preferences, and Reeves
complained to the ISP Equal Employment
Opportunity officer, Andre Parker. Parker
told him that there was nothing Reeves
could do because the ISP had an
obligation to give preferential treatment
to minorities but not to Reeves, who
ironically is Asian-American, but at the
time Asian-Americans were not classified
as minorities by the ISP. Reeves’ claim
is that he did not know Parker had
misrepresented his legal rights until
after he joined this lawsuit in 1993 (as
we said, this case was filed in 1992).
The essence of Reeves’ agreement is that
he relied on Parker and therefore could
not possibly have known that he had a
claim because Parker told him he didn’t.
Reeves tries to compare his situation
with cases involving misleading
statements made by EEOC officers. The
latter have sometimes been the basis for
equitable tolling. That is, if the EEOC
misleads a claimant, there may be a basis
to toll the time period. See Early v.
Bankers Life and Casualty Co., 959 F.2d
75 (7th Cir. 1992).
The statute of limitations begins to run
on the accrual date, which, in federal
question cases, is the date the plaintiff
discovers he is injured. Suslick v.
Rothschild Securities Corp., 741 F.2d
1000 (7th Cir. 1984). Of course, that
does not halt the inquiry. Our cases
discuss a number of doctrines which may
lead to a lifting of the statute of
limitations. We discussed them at length
in Cada v. Baxter Healthcare Corp., 920
F.2d 446 (7th Cir. 1990). One with
possible relevance here is equitable
estoppel, which applies if a defendant
takes active steps to prevent a plaintiff
from suing. A defendant, for instance,
might tell a potential plaintiff that it
will not plead the statute of limitations
and thus lull the plaintiff into delaying
the filing of his suit. Another doctrine
is equitable tolling, which applies if
"despite all due diligence [a plaintiff]
is unable to obtain vital information
bearing on the existence of his claim."
At 451. Equitable tolling is not
dependent on any conduct by the
defendant.
Reeves has combined the doctrines. He
seems to argue that Parker’s statement
that there was nothing Reeves could do
because the ISP was required to give
preferential treatment to minorities
means that the defendants are equitably
estopped from asserting the statute of
limitations. Then he likens Parker’s
statement to misleading statements made
by EEOC officials which have been found,
in cases like Early, to toll the statute
of limitations.
We are far from convinced that a
statement by an officer of the employer
can easily be likened to a statement by a
federal employee. Secondly, the statement
Parker made is both a denial of liability
and ironically almost an inadvertent
acknowledgment of liability. As a denial
of liability it cannot constitute a basis
for equitable estoppel unless Parker had
a fiduciary relationship to the
plaintiff. To say otherwise would mean
that a statute of limitations would not
begin to run until a defendant
acknowledged liability, an entirely
strange concept. See Singletary v.
Continental Illinois Nat’l Bank & Trust
Co. of Chicago, 9 F.3d 1236 (7th Cir.
1993). The attempt to make Parker a
fiduciary also fails. He was the
employment officer for ISP, and perhaps
the tendency to rely on his words is
somewhat natural, but that does not make
him a fiduciary. In sum, as the district
judge stated:
[T]he fact that Parker told Reeves that,
in essence, defendants used race as a
factor in their promotion decisions
placed Reeves on immediate notice that he
had a claim. Rather than fraudulently
conceal, Parker provided a basis for a
claim.
The district court was on solid ground
when it snuffed out Reeves’ suit because
it was filed too late. We affirm that
decision.
Anthony Bishop says the statute of
limitations for both the civil rights
claims and his Title VII claim should be
equitably tolled or the ISP should be
equitable estopped from asserting the
defense. He took the sergeants’ test in
1984 and ranked second. Three promotions
were made to others (two white men and a
black man), so the ISP contends that
Bishop had to know that he had been
passed over at that time. When Bishop
asked about it, a sergeant told him that
normally it takes 10 to 12 years before a
trooper is promoted. Based on that
statement, Bishop claims he was misled
and did not know that discrimination was
afoot until he learned later that a
supervisor must provide reasons in
writing if an eligible minority was not
promoted, but not if a white person is
not promoted. As with Reeves, Bishop is
not entitled to tolling of the statute of
limitations. It is hard to comprehend how
he can expect to have the statute tolled
for 8 years on the basis of statements
such as these.
Meyers’ Title VII case was also
dismissed as untimely. He was passed over
for promotion on October 1, 1990, and did
not file his charge of discrimination
until 1992. His claim, different from
those of Bishop or Reeves, is that the
defendants waived the statute-of-
limitations defense. Although the ISP
filed an answer asserting a blanket
affirmative defense based on the statute
of limitations, at trial Meyers says the
defense did not specifically raise the
issue as to him. Therefore, Meyers says,
he did not mount a defense to the statute
of limitations claim--that is, he did not
try to assert equitable tolling. The
defense says Meyers waived his claim of
waiver because, in a motion to reconsider
the dismissal, he made only perfunctory
arguments. We agree, and in addition,
Meyers failed to make this specific
argument to the district court and has
not offered any hint of what evidence he
would have used to establish equitable
tolling.
On the merits, Jeffrey D. Hanford,
Lester G. Robert, and Dale G. Volle
appeal the calculation of their back pay.
After the judge found for these
plaintiffs on liability, he then
calculated their back pay by assessing
what the chances were that the men would
have received a promotion; he awarded
back pay proportionally. These plaintiffs
object, contending that each of them is
entitled to the full amount of the
recovery which each requested. As they
see it, the judge went wrong because he
failed to place the burden of proof on
this issue on the ISP. Apparently, the
plaintiffs think that the ISP had to
prove, by clear and convincing evidence,
that each of them would have failed to
get the promotion. Because that did not
happen (and we know it did not because
each plaintiff did recover some back
pay), they apparently think they each can
recover full compensation.
They ask too much. In fact, we have said
that a full award to each candidate in
such a situation would not be simply
wrong, it would be obviously wrong. In
Doll v. Brown, 75 F.3d 1200 (7th Cir.
1996), we discussed a situation involving
multiple candidates for a single
promotion and the difficulties it poses
over those posed by a one-on-one
competition:
Suppose there were five applicants for
one job, the employer discriminated
against four, all four were equally well
qualified, and the fifth got the job.
Would all four of the discriminated-
against applicants be entitled to back
pay, one to the job, and the other three
to front pay. Obviously not[.]
At 1206 [emphasis added].
Plaintiffs’ argument that the burden of
proof was misplaced to their detriment is
also unfounded. The fact is that they
prevailed on the issue of entitlement to
back pay based on discrimination.
Apparently, the burden was placed on the
ISP, and it failed to meet its burden. In
an earlier ruling, the district court
quite clearly indicated that the burden
was on the ISP, saying, "[I]t is
defendants who bear the burden of
establishing that plaintiffs would not
have been promoted irrespective of any
racial or gender discrimination."
What plaintiffs are really complaining
about is that they did not each make a
full recovery, which, as we shall see, at
least in the case of Hanford and Robert,
would have caused the ISP to pay double
damages. "Obviously" not the right
result.
Faced with this dilemma, the district
judge looked to what was a theoretical
discussion in Doll v. Brown as to the
wisdom of applying a "lost-chance theory"
in such a situation. The discussion was
theoretical, but the invitation to use
the method was clear:
Because of the novelty of the issue
and the fact that it has not been
briefed, we do not hold that the-lost-
chance theory is available in employment
discrimination cases. We merely commend
it to the consideration of bench and bar
as a possible method of arriving at more
just and equitable results in cases such
as this.
At 1207.
Here, Hanford and Robert were competing
against each other--as well as the person
who actually was promoted. The judge
turned to our decision in Doll and took
us up on our invitation to apportion
damages under a lost-chance theory,
borrowed from tort law, which we said
"recognizes the inescapably probabilistic
character of many injuries." We
analogized by saying that if a patient
was entitled to 25 percent of his full
damages because he had only a 25 percent
chance of survival, he should be entitled
to 75 percent of his damages if he had a
75 percent chance of survival--not 100
percent of his damages on the theory that
by establishing a 75 percent chance he
proved injury by a preponderance of the
evidence.
At 1206. Using the tort approach, the
judge proceeded to calculate the
plaintiffs’ damages by assessing what the
chances were that each would have
received the promotion he sought. For
this promotion, Hanford placed third and
Robert fourth on the promotion list. The
person who was first received a different
promotion and the person who placed
second had been out of the particular
district for several years, and for that
reason the judge reasoned that his
chances of getting the promotion would be
reduced to 25 percent. Then the judge
assessed that Hanford had a 45 percent
chance and Robert had a 30 percent chance
to receive the promotion. The other
appellant, Volle, was competing for a
promotion with two other white males who
placed higher than he did on the list, so
his chances were assessed at 15 percent.
The approach obviously involves more art
than science. But as we said in Doll,
that is true in all comparative
negligence calculations as well. It
strikes us that in this particular
situation, it was the likeliest way to
arrive at a just result. We think the
judge (Judge Harry Leinenweber here) did
a wonderful job of cutting this Gordian
knot. We have examined the evidence and
find no reason to disturb the thoughtful
calculations he has made and the result
they have produced.
We now turn to the hiring claims and
Booker’s appeal from the judge’s failure
to make back pay awards to the plaintiff
class members and his striking of certain
telephone charges from the award of
attorneys fees and costs.
The appeal from the class-action hiring
case appears deceptively simply. Booker
frames the issue as "whether the court
wrongly denied a remedy, including back
pay, to class members with hiring claims,
after finding liability in their favor."
Lurking within that seemingly clear issue
is a swamp of confusion. We hardly know
how to begin.
Everyone, including Judge Leinenweber,
seems to have lost track of what exactly
happened over the years this claim was
pending. For this, the parties bear the
blame. The argument the class makes now
is that because they won on liability,
they must receive back pay. For this
proposition they rely on Albemarle Paper
Co. v. Moody, 422 U.S. 405 (1975). They
did not receive back pay; therefore, the
case must be remanded for a back pay
award. The reader may wonder where we see
confusion in that argument.
We will explain by pointing out that
this class was certified under Rule
23(b)(2), which provides that
certification is appropriate if
the party opposing the class has acted or
refused to act on grounds generally
applicable to the class, thereby making
appropriate final injunctive relief or
corresponding declaratory relief with
respect to the class as a whole[.]
In the class certification order of July
14, 1994, the court said:
Class actions under Rule 23(b)(2) are
primarily designed for injunctive and
declaratory relief. Fontana v. Elrod, 826
F.2d 729, 732 (7th Cir. 1987). When
employed to seek injunctive and
declaratory relief, Rule 23 requires
neither notice nor an opportunity to "opt
out." However, according to Seventh
Circuit, when monetary damages are sought
in a (b)(2) class action, "due process
does require notice before the individual
monetary claims of absent class members
may be barred."
Thus, the Court finds that with respect
to the class hiring claims, plaintiffs
need not give notice nor an opportunity
to "opt out" to potential class members.
With regard to plaintiffs’ claims for
injunctive relief, the named plaintiffs,
members of the class and defendant will
be precluded from re-litigating certain
issues in an action for damages. Premier
Elec. Constr. Co. v. N.E.C.A., Inc., 814
F.2d 358, 366 (7th Cir. 1987). However,
unless notice and an opportunity to "opt
out" is given to class members, only the
parties to this action will be bound by
the Court’s determination of damages.
From time to time, however, everyone
lost sight of this order. Throughout the
lawsuit, the parties discuss notice and
whether class members must be given a
chance to opt out. It was discussed in
the district court following the entry of
a January 1998 order. It is discussed in
this court.
Since the time of the certification in
this case, we have said in another case
that if money damages, which are more
than incidental to equitable relief, are
sought in a particular case,
certification should be made under Rule
23(b)(3), which provides for notice to
class members and provides them with an
opportunity to opt out of the suit. We
left it to the district court to decide
whether certification is ever proper
under 23(b)(2) when the class seeks money
damages, as opposed to "equitable
monetary relief such as back pay."
Jefferson v. Ingersoll Int’l Inc., 195
F.3d 894, 899 (7th Cir. 1999). Although
he did not have the benefit of our
decision in Jefferson, in the class
certification order Judge Leinenweber
showed a keen appreciation for the
differences between the two kinds of
class actions, and clearly this was a
class certification seeking equitable
relief. This is not quite the end of our
inquiry because back pay is equitable
relief.
Under Jefferson, back pay might arguably
be contemplated by a Rule 24(b)(2) class
certification order, but damages could
not be. Part of the confusion in this
case arises because of careless use of
terminology. It is not clear what the
parties and the judge mean by "damages."
At times Booker refers to "back pay," at
other times to damages, and at other
times to "monetary relief." In his brief,
he says the district court wrongly failed
to fashion class-wise relief "including
back pay, retroactive retirement
contribution, and retroactive seniority,
and other relief available under Title
VII." In the next paragraph, he says the
court wrongly failed to order notice that
"its failure to award damages" was not
binding on absent class members.
Nevertheless, as early as the class
certification order in 1994, as class
representative, Booker should have known
that a money award--whatever it was being
called--was not being contemplated under
the class certification order. In the
order, the judge at least implicitly
rules out both "individual monetary
claims" and damages. That limitation is
repeated in a number of confusing ways in
a number of later orders. When the
district court initially denied monetary
relief to the class as speculative,
Booker urged reconsideration, noting that
the court had previously ruled it would
not determine damages for unnamed class
members and suggested that the court
limit its denial of back pay to Booker.
That is what the court did in an order in
March 1998. In this context, it could not
have come as a surprise that the court
was not planning to order any monetary
relief for the 5,000 class members whose
claims went back to 1975. We also note
that it is now too late for Booker to
suddenly adopt precision in language and
argue that the class certification order
meant that compensatory and punitive
damages would not be considered, but that
back pay might be. It was clear--at least
until the very end of the case--that no
monetary class-wide relief was
contemplated.
Despite all this, relying on Albemarle,
Booker claims that because the court
found liability, the class must receive
back pay. Even were it not for the nature
of the class certification in this case,
the issue is not that clear-cut.
Albemarle allows back pay to be denied if
the denial does not frustrate the central
purpose of Title VII. In this case, the
class won a victory. The court found that
the class was discriminated against in
the first of seven steps required for
employment with the ISP--the written
examination. The court ordered that the
class members should be allowed to
reapply and should be deemed to have
passed the written entrance examination.
They were to be allowed to proceed to the
next steps in the employment process. The
court recognized that their success in
the next steps was not certain. The class
members, in other words, did not win the
race. They won the right to jump the
first hurdle. We note again that there
were 5,000 class members with claims
going back to 1975. It is not even
remotely likely that all would have been
hired. Determining back pay awards for
the class would have been a ludicrous
task. Given that, and that the judge had
made quite clear from the outset that he
was not going to consider monetary awards
for the unnamed class members, and that
what the class won was a free pass on one
of seven steps in the process, refraining
from considering back pay awards was not
a violation of the central purpose of
Title VII.
The district court’s discussion of
named-plaintiff Booker’s claim for
damages shows the problems:
With regard to monetary relief to Booker,
the class representative, the evidence
showed that he was very far down on the
list of white males who passed the
written exam. Had the ISP administered
the list in a non-discriminatory manner
his chance of appointment was still
highly speculative, even considering the
white hiring shortfall, because white
males who scored higher would presumable
have done better on the balance of the
application process.
It is curious that Booker did not appeal
this order but rather claims that back
pay should somehow be awarded to others.
The class also argues that the denial of
monetary relief leaves them with no
victory at all because the ISP has
eliminated the examination for all
applicants. It is a strange argument. If
the class was of the opinion that the
misuse of examination results led to
discrimination, it would seem that
eliminating that step would be, as Martha
Stewart might say, a good thing. Further,
it would also seem that the use of new
requirements, such as new education
requirements, would be considered a
class-wide victory designed to result in
a better force. That does not seem to be
the way the class sees it.
All of this does not quite get us out of
the quagmire. The orders regarding the
class are at least arguably
contradictory. Booker sums it up by
saying that the January 15, 1998, order
denied back pay to the class. Then the
order of March 18, 1998, amended the
January 15 order and limited the denial
of relief to the named class member--
Booker. What the order says is that
"[t]he decision of the court denying
damages is limited only to the named
class members." Then on April 23, 1998,
in the notice for the class, the court
stated that it was not deciding the back
pay issue and that if a plaintiff wished
to claim back pay he must seek his own
attorney. In response to our order
seeking clarification of whether there
was a final judgment in this case, on
March 23, 1999, the judge declared that
he had not yet resolved the issue of
monetary damages. But on May 8, 2000, the
court stated it had resolved the issue of
back pay. Later in the same order, he
said the class members were not entitled
to any "promotion, back pay or other
forms of monetary or injunctive relief .
. . ."
We could, of course, send this mess back
to the district court. But fortunately
that won’t be necessary; the record we
have reviewed gives us a solid basis for
clearing things up. The class
certification order and the statements
made about it in this litigation make
clear that the class was not certified
for the purposes of awards of back pay or
any other monetary relief. Under the
circumstances of this case, we find that
the refusal to consider back pay awards
in the context of the class action does
not violate the principles of Title VII.
Therefore, we vacate any statement or
order which indicates that the members of
the plaintiff class other than Booker are
not entitled to back pay or other
damages. At the same time, we note that
the victory of class members on step one
leaves them several steps away from any
showing that they are entitled to back
pay. Except as to Booker, the issue
simply was not litigated in the district
court in any meaningful way. We take
absolutely no position as to whether any
individual class member retains a valid
back pay claim; we only note that no
order in this case prevents a claim.
Finally, the class seeks to overturn the
denial of part of their request for
attorneys fees. The issue of the proper
fees is reviewed for an abuse of
discretion. The district court awarded
plaintiffs over $238,000 in attorneys
fees and costs. He denied a request for
additional fees arising out of hundreds
of hours of long-distance telephone
calls. He said he could not assess the
reasonableness of the request because
counsel refused to described in general
terms the substance of the calls. We fail
to see an abuse of discretion in this
decision.
The appeal of Steven Sweeney is
dismissed. With the scope of the judgment
in the class action as modified herein,
the judgment of the district court is
AFFIRMED.