Petition for Writ of Certiorari — Erebia v. Chrysler Plastic Products Corp.

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88-1420 |

No,

SUPREME COURT OF THE UNITED STATES

October Term, 1988

FEDERICO EREBIA

Petitioner,

ayuke

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Sixth Circuit

DENNIS E. MURRAY, SR,

300 Central Avenue

Sandusky, Ohio 44870

Telephone: 1-419-627-9700

Counsel for Petitioner

MURRAY & MURRAY CO., L.P.A.

300 Central Avenue

Sandusky, Ohio 44870

Telephone: 1-419-627-9700

Of Counsel

QUESTION PRESENTED

Given a finding of intentional racial

discrimination in violation of Title VII,

does a federal district court have

discretion to deny the victimized employee

both reinstatement and front pay?

SUBJECT INDEX

Page

QUESTION PRESENTED... ........ 2

EE 4

GROUNDS OF JURISDICTION ........ 5

STATUTORY PROVISION INVOLVED. ..... 6

Semeement OF THE CASE . .-....2...-. 8

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TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, 411 U.S.

405, (i978): «<i: «= 416; 4, 26, te ee ee ee

Allen Ss Autauga County Board of

Education, 685 F.2d 1302, 1305 (llth Cir.

1982). ee ae ee eB Pe

Erebia v. Chrysler Plastic Products Corp.,

772 ‘F.2d 1250 (6th (Cir. 1985), cart,

dented, 475 U.S. 2055-11986) . a we eee ee

Erebia v. Chrysler Plastic Products Corp.,

Nos. 87-3297, 3298, slip. op. (6th Cir.

Nov. 25, 1988) S, be

Franks v. Bowman Transportation Co., 424

U.S. 74l, FF9 Cee we eee

Griggs v. Duke Power Co., 401 U.S. 424,

S32, (i941) s & o>? eee eee

Johnson v. Railway Express Agency, Inc.,

421 0.3. 93%, ATSIS? See se eee

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 CiSte) <0 oo eee

Shore v. Federal Express Corp., 777 F.2d

1155 (6th Cir. 1965) . ea re

Whatley v. Skaggs Companies, 707 F.2d 1129

(10th Cir. 1983), cert. denied 464 U.S.

998. 6 ic «wee ee eee

1171

Statutes and Other Authorities:

28 U.S.C. Section 1254(1) (1966) ..... §

0 8.5.6; BOCETOR ZIGTIEGs TISSE) s <: S:-w ieee

Section 704 (a) of Title VIJ of the Civil

Rights Act of 1964, 42 U.S.C. Section

2000e-3(a) (1981) a og

Section 706(g) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Section

2000e-5(g) (1981) ove 6, 13

Title VII of the Civili Rights Act of 1964,

42 U.S.C. Section 2000e ...... . passim

Civil Rights Act of 1966, 42 U.S.C.

SOGRION Sees. 6 6 («2s 22k = & 8: Sy Bi aoe

D. Dobbs, Remedies, Chapter 2, Sec. 2.4 at

46 (1973) ae Ok” a Vara se ese ke toe eee 20

SUPREME COURT OF THE UNITED STATES

October Term, 1988

No.

FEDERICO EREBIA,

Petitioner,

VS.

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

OPINIONS BELOW

Petitioner filed a complaint in Case No.

C-84-7896 in the United States District

Court for the Northern District of Ohio,

Western Division in 1984, with a jury

demand, claiming he was” retaliatorily

discharged from employment in violation of

Title VII of the Civil Rights Act of 1964,

42 U.S.C. Section 2000e, et seq., and the

Civil Rights Act of 1966, 42 U.S.C. Section

1981. The trial court entered judgment on

the jury verdict for petitioner on the 42

U.S.C. Section 1981 claim on December 29,

1986. Appendix B. The court's decision on

the Title VII claim, denying reinstatement

and awarding petitioner $1.00 compensatory

damages for front pay was entered on the

same date, Appendix C, with the Findings of

Fact, Conclusions of Law, and Judgment

filed December 24, 1986. Appendix D snd

see Appendix E.

By a per curiam opinion dated

November 25, 1988, with one judge

concurring and dissenting, the United

States Court of Appeals for the Sixth

Circuit affirmed the action of the district

court concerning the Section 198i and Title

VII claims, except that regarding the

possible remedy of reinstatement, the court

remanded the case for further consideration

of whether an equivalent employment

position was available with respondent.

Erebia v. Chrysler Plastic Products Corp.,

Nos. 87-3297, 3298, slip. op. (6th Cir.

Nov. 25, 1988). Appendix A.

GROUNDS OF JURISDICTION

The jurisdiction of the Court is invoked

Pursuant to 28 U.S.C. Section 1254(1). The

United States Court of Appeals for the

Sixth Circuit affirmed the trial court's

refusal to either order reinstatement to

petitioner's former position or award front

pay exceeding $1.00 on November 25, 1988.

Therefore, this Petition is timely filed

pursuant to Sup. Ct. R. 20.2 and 28 U.S.C.

Section 2101l(c).

STATUTORY PROVISION INVOLVED

The judicial power to remedy violations

upon a finding o f intentional

discrimination is found in Section 706(g)

of Title VII of the Civil Rights Act of

1964, 42 U.S.C. Section 2000e-5(g) (1981):

Injunctions; appropriate affirmative action;

equitable reiief; accrual of back pay;

reduction of back pay; limitations on

judicial orders

(g) If the court finds that the

respondent has intentionally engaged

in or is intentionally engaging in an

unlawful employment practice charged

in the complaint, the court’ may

enjoin the respondent from engaging

in such unlawful employment practice,

or order such affirmative action as

may be appropriate, which” may

include, but is not limited to,

reinstatement or hiring of employees,

with or without back pay (payable by

the employer, employment agency, or

labor organization, as the case may

be, responsible for the unlawful

employment practice), or any other

equitable relief as the court deems

appropriate. Back pay liability

shall not accrue from a date more

than two years prior to the filing of

a charge with the Commission.

Interim earnings or amounts earnable

with reasonable diligence by’ the

person or persons’ discriminated

against shall operate to reduce the

back pay otherwise allowable. No

order of the court shall require the

admission or reinstatement of = an

individual as a member of a union, or

the hiring, reinstatement, or

promotion of an individual as_ an

employee, or the payment to him of

any back pay, if such individual was

refused admission, Suspended, or

expelled, or was refused employment

Or advancement or was suspended or

discharged for any reason other than

discrimination on account of race,

color, religion, sex, or _ national

Origin or in violation of section

2000e-3(a) of this title.

The unlawful employment practice

underlying the complaint is found in

Section 704(a) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. ‘Seeties

2000e-3(a) (1981):

(a) It shall be an unlawful

employment practice for an employer

to discriminate against any of his

employees or applicants for

employment, for an employment agency,

Or joint labor-management committee

controlling apprenticeship or other

training or retraining, including on-

the-job training programs, to

_discriminate against any individual,

or for a labor organization to

discriminate against any member

thereof or applicant for membership,

because he has opposed any practice

made an unlawful employment practice

by this subchapter, or because he

has made ae charge, testified,

assisted, or participated in_= any

manner in an investigation,

proceeding, or hearing under this

Subchapter. .

STATEMENT OF THE CASE

Petitioner filed the suit below alleging

the respondent, his employer since 1965,

had discharged him from employment’ in

retaliation for successfully litigating an

earlier racial discrimination claim under

42 U.S.C. Section 1981 and Title VII. See

Erebia v. Chrysler Plastic Products Corp.,

772. €.2@ 1250 (6th Cir. I9GS),. Getta

denied, 475 U.S. 1015 (1986) (describing

the earlier litigation). A jury awarded

petitioner $75,000 compensatory damages and

$55,000 punitive damages under the Section

1981 claim.

The district court's consideration of

the Title VII claim, is the gravamen of

this Petition. The judge found that the

petitioner established the pretextual

nature of respondent's articulated reasons

for discharging him. Appendix D at 62.

However, the district court refused _ to

either order reinstatement or _ award

backpay. The trial judge did award

petitioner attorney fees, costs, and $1 as

front pay. Appendix D at 74-75.

Although the trial court recognized that

the purpose of Title VII is to make victims

whole for injuries caused by illegal

employment discrimination, as set forth in

Albemarle Paper Co. v. Moody, 411 U.S. 405

(1975), and that such. victims” are

presumptively entitled to reinstatement,

petitioner was denied reinstatement. The

court concluded plaintiff had waived, or

was estopped from pursuing, the right to

demand reinstatement because he_ had

requested only front pay in his complaint.

Appendix D at 67.

The court further concluded that, as a

matter of fact, petitioner had sexually

harassed three female co-workers. The

respondent had argued that this justified

its termination of the petitioner, but the

court rejected this, as did the jury on the

Section 1981 claim, as mere a pretext to

disguise respondent's intentional

retaliatory and discriminatory discharge of

petitioner. The district court relied upon

this finding of fact, however. to conclude,

in dicta, that even if petitioner’ had

requested reinstatement in a manner which

met with the approval of the _ court,

reinstatement would be inappropriate due to

the hostility resulting from this

harassment. In addition, the court

concluded that because of this harassment,

plaintiff should be awarded compensatory

damages, including front pay, in the amount

of only $1.00. Appendix D at 70.

The Sixth Circuit Court of Appeals, in a

per curiam decision, one judge concurring

and dissenting in part, largely approved

this analysis and determined that

petitioner's behavior outweighed the "make

whole" policy of Title VII. Petitioner

contends the analyses of the trial court

and appellate court, denying him ALL

iad

prospective equitable remedies, despite a

finding of intentional discrimination as

the "but for" cause of his discharge,

violates the policies embodied in Title

VII.}

This case presents the important

question of whether the drafters of the

Title VII legislation intended that federal

district courts have such a wide scope of

discretion that they may deny racial

discrimination victims BOTH reinstatement

and front pay remedies when the court

determines that the discrimination’ was

intentional. Such a concept defeats the

lsee fErebia - Perveler Plastic

Products Corp., Nos. 87-3297, 3298, Slip

Op. (6th Cir. Nov. 25, 1988), Appendix A-at

44. (Cook, J., dissenting). (The majority

in this case affirmed a trial court

decision holding petitioner was not

entitled to reinstatement or back pay even

though he was impermissibly subjected to

retaliation in violation of Title VII. The

record does not permit a complete denial of

equitable relief to a prevailing party.)

clear legislative intent that such

discrimination victims be made whole, which

has been recognized by this Court in cases

such as Albemarle.

It must be emphasized that the remedial

power authorized in Section 2000e-5(g) is

predicated upon a finding that a Title VII

violation is intentional. Because the

remedies are equitable in nature, and must

be tailored to fit on a case by case basis

to make victims whole, the section uses

permissive language. In particular the

statute uses the word "may" to describe the

district court's authority to- structure

remedial relief. For example, a court may

"order such affirmative action as may be

appropriate, which may include

reinstatement, with or without back pay."

(emphasis added).

On its face, the statute appears to

impose no absolute obligations upon the

- 14

court to order restitutional relief to

discrimination victims. However, this

Court has recognized that legislative

policy limits the discretion given to trial

courts in at least two significant ways:

the need to make discrimination victims

whole, including restoring victims to a

position where they would have been were it

not for the unlawful discrimination, and

the need to deter and eradicate employment

discrimination, a historic evil of national

proportions. Albemarle, 411 U.S. at 296-

97.

In Albemarle, this Court emphatically

rejected the concept that district courts

have unfettered discretion to deny= an

equitable remedy. eit ¥.5. at 294. i

interpreting the legislative’ history

Surrounding Title VII, this. Ceure

Specifically determined that Congress'

purpose in vesting a variety of

"discretionary powers in the courts was

not to limit appellate review of trial

courts, or to invite inconsistency and

caprice, but rather to make possible the

fashion[Ling] [of] the most complete relief

possible." Id. at 298.

Not only did the decisions below fail to

restore petitioner to a position anywhere

near where he would have been without

respondent's discriminatory retaliation,

but the decisions actually punished the

plaintiff and not the defendant, despite

the fact it was respondent who engaged in

illegal conduct.

It is well-settled that the denial of

reinstatement without a strong

justification will be an abuse. of

discretion. Once discrimination is found,

reinstatement should be granted absent

exceptional circumstances. In re Lewis,

845 F.2d 624, 630 (6th Cir. 1988). Where

that denial is coupled with a nominal award

of front pay, the arbitrary and capricious

nature of the decision is clear.

Reinstatement is the preferred remedy in

Situations such as this.

The rule of presumptive reinstatement

is justified by reason as well as

precedent. When a person loses his

job, it is at best disingenuous to

Say that money damages can suffice to

make that person whole.

Allen v. Autauga County Board of Education,

685 F.2d 1302, 1305 (llth Cir. 1982). See

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976); Franks v. Bowman

Transportation Co., 424 U.S. 747, 779

(1976). Past employee misconduct should

not be sufficient to deny reinstatement--

unless the employer can demonstrate that

the victim would have been’ terminated

independent of the discrimination or

retaliation. In this case, the employer's

contention that petitioner would have been

terminated independent o f the

discrimination was rejected by the trial

judge and found to be a ™mere pretext.2

While the victim may have sexually

harassed three employees it was not the

reason he was fired.

It must be emphasized that petitioner's

injury at the hands of respondent was no

less real because he was not a_ model

employee. If the purpose of Title VII 1s

concerned with the consequences of

employment practices, without reference to

an employer's bad faith or moral turpitude

; ; Kv . m4 lanicils: ;

it 18 difficuit to perceive a legislative

“Two members of the Sixth Circuit

Court of Appeals panel clearly misanalyzed

this point and reached the _ following

erroneous and contradictory conclusion

the distr court recognized that

plaintiff's harassment. of female

Subordinates was cert y ufficient

justification to fire him See Appendix A

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intent to remedy those consequences with

reference to the employee's "bad faith" or

"moral turpitude". See Albemarle, 411 U.S.

at 299, citing Griggs v. Duke Power Co.,

401 U.5. 4424, S32 {2971}. it. 45

unconscionable for an employee to bear this

burden, based on his conduct, when the

motivating impetus for the discrimination

lawsuit was the employer's conduct!

Nor can this factual finding of

harassment be transformed into a finding of

hostility between the parties in order to

deny reinstatement. Hostility engendered

by the litigation has been discredited as a

basis for denying reinstatement. E.f, if

re Lewis, 845 F.2d at 630; Allen v. Autauga

County Board of Education, 685 F.2d at

1305. :

The trial court also impermissibly used

the victim's conduct as a_ basis’ for

denying a suitable amount of front pay.

It awarded a nominal $1. Front pay is an

equitable remedy given to plaintiffs when

reinstatement may not be appropriate. See

Shore _ v. Federal Express, 777 F.2d 1155,

1159 (6th Cir. 1985) at 1159; see Appendix

D at 67. There is absolutely no authority

to consider misconduct im awarding a front

pay remedy. Front pay is a quantifiable

remedy to measure future economic harm. As

this Court acknowledged in Albemarle, where

a legal injury is of an economic character,

[t]he general rule is that when

a wrong has been done, and the law

gives a remedy, the compensation

shall be equal to the injury. The

latter is the standard by which the

former is to be measured. The

injured party is to be placed, as

near as may be, in the situation he

would have occupied if the wrong had

not been committed."

Albemarle at 297 (citation omitted). There

was no rational basis for awarding a

nominal $1 sum of front pay to a victim

20 mS

unless it is for the impermissible purpose

of punishing a victim for his “moral

turpitude". ee Appendix A at 49-50, where

Cook, J., dissenting, questions the basis

used to award $1 of front pay by the trial

court and the majority of the appellate

court.

Nor can the equitable doctrine of "clean

hands" be relied upon to support’ the

court's decision in the face of clear

legislative intent and this court's

interpretation of that policy embodied in

the statutes. It has long been recognized

that “unclean hands" may be outweighed by

important, overriding public” policy

reasons, such as those at issue here. See

D. Dobbs, Remedies, Chapter 2, Sec. 2.4 at

46 (1973). The courts cannot be permitted

to abuse their discretion to legislate a

clause which permits only claimants with

perfect work records to utilize Title VII.

It must be noted that the Sixth Circuit

Court of Appeals' approval of the trial

court's decision on the basis that the

Section 1981 jury award included future

harm iS incorrect. While, it is true that

there should be only one recovery in any

type of legal action, this overlooks this

Court's recognition that Title VII

expressly preserves alternative’ and

parallel remedies. See Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 459

(1975).

Finally, the court prevented petitioner

from seeking reinstatement due to "waiver"

in pleading, which is further evidence of

abuse of discretion. This contravenes the

clear language of Fed. R. Civ. P. 54(c)

(every final judgment shall grant’ the

relief to which the party is entitled, even

if the party has not demanded such relief

in the party's pleading); also see Whatley

z : - ? aan = “ae

ily ros 7 > a al - - _ - a a 7 7 7 7 - — et ear : ’ Near) —

- . Se eS na na <a —— —— oS = ms i be

v. Skaggs Companies, 707 F.2d 1129 (10th

Cir. 1983), cert. denied, 464 U.S. 938

(1983). The dissenting opinion’ below

correctly observed that petitioner did not

cause prejudice by failure to request

reinstatement in his complaint and should

have been permitted to seek reinstatement

under the law set forth in Albemarle.

Appendix A at 48-49. (Cook, J,

dissenting).

Inherent in the decision of the trial

court was a finding that plaintiff would

have continued to work for the respondent

BUT FOR the Letters intentional

retaliatory racial discrimination. To reach

this conclusion, the court rejected any

inference that the employee's conduct was

the basis for the discrimination. It is

illogical to conclude that such conduct

Should be used to the victim's detriment in

fashioning a remedy. Denial of

reinstatement in itself may result in a

clear abuse of discretion. When coupled

with a nominal award of front pay, the

cumulative result is to deny the victim all

prospective relief and complete justice.

When the trial court chose to punish the

victim, instead of the perpetrator of the

discriminatory conduct, the court ignored

the clear statutory and judicially-

confirmed mandate to make the

discrimination victim whole. See

Albemarle, 411 U.S. at 296. This iS an

abuse of discretion because it completely

disregards the policy of Title VII.

Respectfully submitted,

ra ar

Dennis E. Murray, ‘Sr.

300 Central Avenue

Sandusky, Ohio 44870

Telephone: 1-419-627-9700

Counsel for Petitioner

——————

APPENDIX A

Entry of the

United States Court of Appeals

Decided and Filed November 25, 1988

Case Nos. 87-3297/3298

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FEDERICO EREBIA,

Plaintiff-Appellant,

Cross-Appellee,

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Defendant-Appel lee,

Cross-Appellant.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: WELLFORD and NORRIS, Circuit

Judges; and COOK’, District Judge.

THE HONORABLE JULIAN A. COOK, JR.,

United States District Court for the

Eastern District of Michigan, sitting by

———=_

PER CURIAM. This is the second time

this dispute has come before this court for

resolution. Erebia, the plaintiff, was

successful on a prior occasion in

persuading a panel of the court to affirm a

jury verdict totalling $40,000 in a hostile

work environment claim against Chrysler

Plastic Products Corporation ("CPPC") under

A20:S8.C. $1981: - See 772-F.2é 1250 (6th

“Cir. 1985). In 1984, following’ the

resolution of that action, Erebia was

discharged as an inspection supervisor.

This subsequent employment action is the

basis for the present action based upon a

Claim of retaliation brought under both §

1981 and Title VII.

In July 1984, CPPC's labor relations

department received separate complaints

about Erebia from three females, Betty

designation.

ei ee ee 2? ee ee 2

Simmons, Susan Kerr, and Brenda Parker.

Each complained that Erebia "had made

unwanted sexual advances toward them, had

requested sexual favors from them, = and

harassed them repeatedly to borrow money

“een them." The district court concluded

that Erebia was guilty of the conduct

complained. of, and had created an

intimidating and hostile work environment

for these women subordinate to him.

Erebia, if fact, had been guilty of a

Similar kind of misconduct in the past. He

was disciplined for bothering a_ female

employee prior to these incidents, and also

had an affair with a coworker’ which

interfered with his work to such an extent

that he had to be warned by his CPPC

Superiors to stop. These problems occurred

years prior to the harassment complaints,

however, and Erebia had been rated a good

employee in an evaluation given just prior

to the charges bringing about his

seeasuation.

CPPC’'s handling of the complaints of the

female employees raised questions about its

true motives in terminating Erebia. It

informed Erebia that the women had

complained, but refused to give him copies

of their statements. It told him that he

had to respond in writing to the charges

but did not tell him precisely when to

respond, or exactly what the complaints

were. CPPC terminated Erebia shortly after

the complaints became formal requests for

employer action, and it cited his previous

record, the additional sexual harassment

charges, and his failure to respond to them

as bases for its action.

The district court recognized that

Erebia's harassment of his’ female

Subordinates was certainiy sufficient

justification to fire him. But it also

found the decision to fire Erebia was made

so soon after the formal charges were filed

that even if Erebia had known when and what

charges he had to answer, there would have

been inadequate time for CPPC to consider

Erebia's explanation. The court apparently

felt some less drastic action might have

been taken but for CPPC's desire tv

retaliate, or that Erebia ordinarily would

have at least been given a fairer notice

and a more reasonable chance to respond

before termination. The district court

found in plaintiff's favor despite the fact

it was convinced Erebia had himself been

guilty of misconduct.

The jury apparently agreed with the

district court's rationale in deciding the

§ 1981 claim, because it decided

retaliatory discharge had occurred = and

awarded Erebia $75,000 in compensatory

damages and $55,000 in punitive damages.

29 ?

The court itself did not award backpay,

feeling that remedy had already’ been

adequately provided by the jury's

compensatory award. It also refused to

reinstate Erebia, for three reasons.

First, it noted that Erebia had only asked

for front pay in his complaint, and had

waited until just prior to closing

arguments to demand reinstatement. CPPC

accordingly did not argue against

reinstatement in its defense, as it would

have in the ordinary case, and thus had

been prejudiced by the delay. A second

reason given for the decision denying

reinstatement was that the court believed

Erebia could no longer work effectively at

CPPC because of the hostility engendered

during the course of the litigation. This

second basis was closely related to the

court's third justification that Erebia had

Shown he would not be able to be an

a ee

effective worker because he had repeatedly

harassed female subordinates. The court's

remedy was to award Erebia one dollar in

front pay, attorney fees, and costs. The

court then refused to grant CPPC's motion

to set aside the jury verdict or to

reconsider its award, and this appeal by

both parties followed.

I. EREBIA'S APPEAL

The issue raised by Erebia's appeal 15s

whether a court has discretion to find

evidence of intentional discrimination, yet

award neither reinstatement nor front pay.

As stated, the court denied reinstatement,

and awarded nominal front pay of only one

dollar.

Reinstatement is a presumed” remedy

following from a finding of intentional

discrimination, as part of Title VII's

"Make whole" remedy. It should not be

liane

denied except for reasons unique to an

individual case which will not undermine

the remedial purposes of the statute.

n Transportation Co., 424

1976); Ibemarle Paper Co.

v. Moody, 422 U.S. 405, 421 (1975). Erebia

argues that the purposes of the statute

were frustrated in this case by denial of

reinstatement and front end pay. CPPC

argues that the district court's remedy was

predicated on the peculiar situation

presented in this case.

We have approved a district court's

refusal to reinstate in a case of this sort

when the chances for a satisfactory

employment relationship are dim. Shore v.

Federal Express Corp., 777 F. 2d 1155, 1159

(6th Cir. 1985). Such a state of affairs

seems present in this case because of

Erebia's conduct towerd nis subordinates.

The district court made a factual finding

—_—_

that three women had been pressed _ for

sexual favors and money by their

supervisor. This is, of course, a serious

problem for a satisfactory working

environment, and one which might expose

CPPC to further discrimination liability

were Erebia to be retained. The relevant

consideration under the circumstances is

whether the district court properly decided

Erebia would not be an effective employee

at CPPC, and whether his’ reinstatement

might generate further liability of CPPC to

other employees. Based on the- record

before us, we cannot say the court abused

its wide discretion in fashioning a

particular remedy in this case. Henry Vv.

Lennox Industries, Inc., 768 F.2d 746, 753

(6th Cir. 1985).! We find this additional

4 An additional basis for this result

asserted that Erebia~ waived his right to

request reinstatement. The court found

that CPPC did not present any evidence to

circumstance of sexual harassment Dy

Erebia to distinguish this case from In re

Lewis, 845 F.2d 624, 630 (6th Cir. 1988).

The normal practice is to award front

pay in those situations where reinstatement

is not appropriate. peers. f77-F.26 at

1159: Henry, 768 F.2d at 753. We have said

an award of front pay is not, however,

mandatory: "an award of front pay is

sometimes appropriate in order to

effectuate fully the ‘make whole' purposes

Overcome the presumption of reinstatement

because Erebia asked only for front pay

until the very end of trial. Denial of

remedies due to procedural problems

brought about by a claimant does. not

violate the purpases of Title VII, as

recognized in Albemarle: "To deny backpay

because a particular cause has_ been

prosecuted in an eccentric fashion,

Prejudicial to the other party, does not.

offend the broad purposes of Title VII."

422 U.S. at 424 (emphasis in original).

We find that rationale applicable to a

reinstatement and front pay award as well,

but we do not base our decision on this

Principle.

of Title VII." Shore, 777 F.2d at 1159

(emphasis added). The ADEA case relied on

in Shore makes it even clearer that front

pay is not demanded in every case. "'Front

pay' does not appear to lend itself to a

per se rule. It is neither mandated nor

prohibited by the Act. Rather, it is but

one of a broad range of remedial measures

available under the ADEA." Davis Vv.

Combustion Engineering, Inc., 742 F.2d 916,

922-23 (6th Cir. 1984).

We are also reluctant to conclude that

the district judge acted improperly in this

case because Title VII remedies are by

their very nature equitable. A party

requesting relief is thus subject to

equitable doctrines limiting relief. For

example, tee Se John Vv. Employment

Development Corno., 642 F.2d 273 (9th Cir.

1981), the plaintiff brought a retaliation

claim when she was discharged following her

discrimination action. The district court

found retaliation but refused reinstatement

because, unknown to her employer at the

time, she had leaked confidential

information to the EEOC. The Ninth Circuit

affirmed this action by the district court

because principles of equity such as the

doctrine o f "clean hands", should

appropriately be considered in deciding

what remedies fit the situation, while

recognizing the general "make _ whole"

principle. Where a plaintiff had engaged

in misconduct, the district court’ was

within its discretion to limit her reaedy

to reflect her wrongdoing. Id. at 275. We

accordingly affirm the district court's

action here as to front end pay because the

remedy reflects both the misconduct’ of

employer and employee in this case. On the

question. of reinstatement, however, we

remand the case for consideration as to

S _

whether there is another equivalent

position for Erebia available at CPPC for

prompt reinstatement which would not

involve -the same potentiality of sexual

harassment.

II. CPPC'S APPEAL

CPPC claims the court misapplied the

standard of proof in finding liability at

all under Title VII. Specifically, CPPC

points to the fact that the judge referred

to this case as a “mixed motive" question,

citing Blalock v. Metal Trades, Inc., 775

F.2d 703 (6th Cir. 1985), a case in which

direct evidence of discrimination’ was

produced. CPPC claims that the case at

issue did not present mixed motives, and

that the district court improperly directed

it to prove the alleged discriminatory

motive was not the one resulting in the

dismissal.

While the issue is a close one, we

cannot conclude that the district court

misapplied the burden of proof under

McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). The district court found that

Erebia had made out a prima facie case of

discrimination; that CPPC had articulated a

justifiable reason for dismissal, but that

Erebia had proven this reason to be

pretext. The trial judge stated "Chrysler-

failed to establish Erebia would have been

discharged even in the absence of the

impermissible motivation." Taken in the

context of all] of the court's. other

Statements, this comment does little more

than relate the court's feeling that CPPC's

professed motivations were not persuasive.

It did not reflect an erroneous placing of

the burden of proof on defendant CPPC.

The evidence here is not overwhelming

that CPPC retaliated against Erebia, But an

oer,

even bigger question is whether he proved

the requisite motivation to justify

punitive damages. The elements” of

retaliatory discharge are set out in

Jackson _v. RKO Bottlers of Toledo, Inc.,

43 UF 26. 370, 375 (6t0 Civ. 1984): a

plaintiff must show that he- previously

asserted violations of Title VII rights;

that he was discharged, and that a causal

connection exists between the two events.

Punitive damages are appropriate only where

the defendant acted with intent to deprive

the defendant of these rights, or with

callous indifference towards” them. In

determining sufficiency of the evidence in

Such a case, the verdict must be upheld if

“Substantial evidence Supports ce

Wilkins v. Eaton Corp., 790 F.2d 515 (6th

Cir. 1986); Erebia v. Chrysler Plastic

), cert. denied, 475 U.S. 1015 (1986).

Substantial evidence is that amount of

proof a reasonable man would accept to

Support a proposition. Richardson v.

Feraies,; 402 U.S... 389. (1971).

The evidence related above suggests that

the jury was faced with two alternatives.

It could agree with CPPC that it fired

Erebia because of his past work record and

his harassment of fellow employees, or it

could agree that Erebia was really fired

because CPPC was upset that he won a

discrimination suit against it less than a

year earlier. Acceptance of Erebia's

version of what happened does not make out

an automatic punitive damages case. If the

jury accepted fErebia's version of what

happened, we agree it was proper to award

damages to compensate him for all injuries

resulting from the action.2

Plaintiff argues that the fact that CPPC

intentionally retaliated against him and

that there had been a prior award in his

favor affirmed against CPPC for punitive

damages was a sufficient basis for the

punitive damages for retaliation in this

case. We doubt that these factors alone

form an adequate basis for a punitive

2 Clearly, the jury's award reflects

compensation for past and future harm to

Erebia. Plaintiff's attorney during

closing argument to the jury asserted:

It is your duty to award that fair

compensation based on the total past,

Present, and future of every injury

." (Emphasis added)

J/A 567. Erebia was asking the jury to

take into account future aspects” of

Erebia's injury for retaliatory discharge.

The district court likewise stated in his

instructions on damages to the jury:

You may consider the damages that

have occurred from the time of the

discharge, on August 20, 1984 on.

award, and we would be reluctant to uphold

a punitive award were there no more than

this evidence in the case.

Judge Walinski instructed the jury,

however, that it could award punitive

damages only if the action of the defendant

was "maliciously, wantonly, or oppressively

done." J/A. 573. This was a- proper

punitive damages instruction, and it

correctly directed the jury to examine the

critical question of CPPC's state of mind.

Although we find it to be a close question,

we are not prepared to find that’ the

district court erred in not setting aside

the punitive damages award. He was able to

view the witnesses and to evaluate their

credibility. He submitted a correct

punitive damage charge to the jury and felt

that it should not be set aside despite

fault on the part of Erebia in his dealing

with female subordinates. The decision of

the trier of fact as to deliberate intent

and as to credibility in cases based upon

allegations of discrimination are not to be

set aside unless clearly erroneous, or

unless "the reviewing court on the entire

evidence is left with the definite and firm

conviction that a mistake has been

committed." Anderson v. City of Bessemer

City, 470 U.S. 564, 573 (1985) (quoting

United States v. United States Gypsum, 333

U.S. 364, 395 (1948)). See also Few vy.

Yellow Freight, No. 86-5484 (6th Cir.

April 25, 1988). We decline to set aside

the punitive damage award.

In conclusion, we note that we have

taken into account the totality of the

award made to Erebia in this case, as did

a ner ee

the district court. We recognize that

equitable considerations were involved in

the Title VII aspect of this case,

including an award of substantial

attorney's fees and costs to Erebia in

addition to his considerable jury award of

damages for his discharge. The district

court was aware the Erebia had _ been

subsequently employed at another plastic

manufacturer at substantial pay after his

termination by CPPC in respect to his claim

for added front end pay. In light of all

this, we approve of the district court's

treatment of this difficult case.

In sum, we AFFIRM the action of the

district court in respect to both the §

: 1981 and the Title VII claims in this case,

except that as to the possible remedy of

reinstatement, we REMAND the case_ for

further consideration of the ramifications

of reinstatement only.

COOK, District Judge, Concurring, in

part, and Dissenting, in part. I write to

express my respectful disagreement with the

majority opinion regarding the relief that

2S —————————

Federico Erebia Should receive in

connection with his Title VII claim.

However, with regard to the remaining

issues, I join with my colleagues.

The majority in this case have affirmed

a decision by the trial court which

essentially held that Erebia was not

entitled to reinstatement or back pay even

though he had been impermissibly subjected

to retaliation by Chrysler Plastic

Products Corporation (CPPC) in violation of

Title VII. I do not believe that the

record in this cause permits such a

omplete denial of equitabl] relief to a

prevailing party.

My colleagues correctly point out that

the denial of reinstatement and an award of

Onty nominal front pay by the trial court

are subject to review under an abuse of

discretion standard. Henry v. Lennox

——

Cir. 1985) (reinstatement); Shore v.

Federal Express Corp., 777 F.2d 1155, 1159

(6th Cir. 1985) (front pay not subject to a

per se rule). However, I submit that the

prevailing decision in this cause

inaccurately describes the legal standard

upon which reinstatement may be declined.

The Per Curiam holds that:

The district court made a_ factual

finding that three women had been

pressed for sexual favors and money

by their supervisor. THis 35; «667

course, a serious problem for a

satisfactory working environment, and

one which might expose CPPC to

further discrimination liability were

Erebia to be retained. The relevant

consideration under the

circumstances is whether the district

court properly decided Erebia would

not be an effective employee at

CPre.

Opinion at 5.

Yet, this description of the “relevant

consideration" is at odds with our earlier

ruling in In re Lewis, 845 F.2d 624, 630

(6th Cir. 1988). In that case, Judge Damon

—— oe

J. Keith, writing on behalf of the

majority, said:

Federal courts have greatly limited

the grounds on which reinstatement

may be denied. It is not sufficient

that reinstatement might have

“disturbing consequences," Sterzing

Vv. Fort Bend Independent School

District, 496 F.2d 92, 93 (5th Cir.

1974), that is might revive old

antagonisms or that it could “breed

difficult working conditions," Allen,

685 F.2d at 1305. "Relief is not

restricted to that which will be

pleasing and free of irritation."

Allen, 685 F.2d at 1305 (quoting

Sterzing, 496 F.2d at 93).

Thus, it is my belief that the majority

Should not have relied upon the _ trial

court's determination that Erebia "would

not be effective at CPPC." The existence

of difficult working conditions,

antagonism, or disturbing consequences does

not constitute sufficient exceptional

Circumstances, according to Lewis.

The majority also suggests that Erebia

waived any opportunity for reinstatement Dy

failing to request it in his Complaint even

though the statute and case law does not

obligate him to do so. Erebia correctly

notes that the Court of Appeals for the

Tenth Circuit in Whatley v. Skaqs

(eunanies 707 F.2¢- 1129, 1137 (10th Cir.),

~~ oe denied, 464 U.S. 938 (1983),

determined that "such equitable relief may

be provided, even if it was not sought in

the pleadings." See also Sias Vv.

Demonstrating Agency, 588 F.2d 692 (9th

Cir. 1978); Fed. R. Civ. P. 54(c) ("

every final judgment shall grant the relief

to which the party in whose favor it is

rendered is entitled, even if the party has

not demanded such relief in the party's

pleading").

CPPC relies upon Robinson v. Lorillard

Corp., 444 F.2d 791, 803 (4th Cir. 19781),

cert. dismissed, 404 U.S. 1006 (1972), in

which the Court held that a failure to

Dlead could bar reinstatement of a claimant

if it "substantially prejudiced" the other

Side. CPPC claims to have been

substantially prejudiced because it lost an

opportunity to prove that reinstatement was

not feasible. The trial court agreed.

In a post trial proceeding, Erebia filed

a Motion to Reinstate, to which CPPC

responded:

Unless an additional hearing for an

evidentiary presentation on Title VII

relief is convened [CPPC] will be

prejudiced if [Erebia] is allowed to,

in effect, amend his complaint at

this late hour.

Same se |

The only prejudice, if any, to CPPC was

caused by the refusal of the trial court to

hold an evidentiary hearing - not by any

pleading deficiencies within the Complaint.

In my judgment, this refusal constituted an

abuse of discretion by the trial court.

The majority's reliance upon Albemarle

Paper Co. v. Moody, 424 U.S. 405 (1975) in

footnote 1 is inapposite to the instant

cause, in that Erebia did not create or

cause the prejudice in this case.} Thus, I

believe that the decision of the trial

court regarding reinstatement should be

vacated and remanded for a hearing to

determine whether placement of Erebia at

another location within the company

facility is an available option.

I also have difficulty with the handling

of the front pay issue by the trial court.

The majority acknowledges that "[t]he

normal practice is to award front pay in

those situations where reinstatement is not

appropriate." Opinion at 5. However, the

trial court never explained its reasons for

rejecting the front pay issue. In a

1 The Court in Albemarle also held

that, "The respondents here were not merely

tardy, but also inconsistent, in demanding

backpay." 422 U.S. at 424. Here, Erebia

was, at most, tardy in his application to

the Court for reinstatement.

conclusory fashion, the trial judge said

that “Erebia is therefore awarded nominal

compensatory damages including front pay,

in the amount of one dollar ($1.00)." Tr.

22. Without some meaningful explanation, I

do not believe that we can properly

evaluate this conclusion by the trial

court.

Accordingly, I must dissent on these

points.

APPENDIX B

Entry of the

United States District Court

For the Northern District of Ohio

Western Division

Filed December 29, 1986

Case No. 84-7896

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

FEDERICO EREBIA,

Plaintiff,

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Defendant,

—

JUDGMENT IN A CIVIL CASE

Verdict for plaintiff on 42 U.S.C. 1981

claim. Plaintiff awarded $55,000.00

Dunitive damages and $75,000.00

—

compensatory damages.

/s/ NICHOLAS J. WALINSKI, Judge

APPENDIX C

Entry of the

United States District Court

For the Northern District of Ohio

Western Division

Filed December 29, 1986

Case No. 84-7896

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

FEDERICO EREBIA,

Plaintiff,

V .

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Defendant,

JUDGMENT IN A CIVIL CASE

Motion for reinstatement and back

denied; motion to strike denied as

plaintiff awarded $21,018.75 attorney

$345.70 costs. Plaintiff awarded

wages

moot;

fees;

$1.00

compensatory damages on Title VII. Case

dismissed.

/s/ NICHOLAS J. WALINSKI, Judge

APPENDIX D

Entry of the

United States District Court a

For the Northern District of Ohio

Western Division

Filed December 24, 1986

Case Nos. C 84-7896

FEDERICO EREBIA,

Plaintiff,

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Defendant,

FINDINGS OF FACT

CONCLUSIONS OF LAW

and

JUDGMENT

WALINSKI, J.

This matter is before the Court for a

decision on the merits following trial to

cee Court. of .s1etetift's ciate...of

retaliatory discharge under Title VII of

the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. §2000e et ..seq. Plaintiff's

claim under 42 U.S.C. § 1981 was tried to a

jury. Said jury returned a verdict in

favor of plaintiff in the amount of

$55,000.00 punitive damages and $75,000.00

compensatory damages.

Also before the Court is plaintiff's

motion for reinstatement, back wages and,

if appropriate, to amend the judgment

accordingly. The defendant has filed

opposition. Further the Court will herein

address plaintiff's request for attorney's

fees and defendant's motion to strike.

The following discussion will comprise

this Court's findings of fact and

conclusions of law pursuant to Fed. R. Civ.

Pa. wala).

FACTS

Federico Erebia, a Mexican-American, was

oyed by the defendant,

chrysler Plastic Products Corporation

("Chrysler"), at its Sandusky, Ohio

manufacturing plant. Erebia had _ been

employed by Chrysler (or its predecessor

Air Reduction Corporation) since 1965. In

1969, Erebia was promoted from an hourly

position to that of production foreman.

With the exception of layoffs for lack of

work, Erebia continued to be employed in

various supervisory capacities until his

discharge.

Prior to the instant lawsuit, Erebia had

sued Chrysler in Case No. C 83-96. That

case was tried on January 10 and 11, 1984.

The only claim submitted to the jury was

Erebia's claim pursuant to 42 U.S.C. § 1981

that two of his subordinates had _ used

racial slurs toward him and that Chrysler

had done nothing in response to his

complaints. The jury awarded Erebia

$10,000.00 in compensatory damages and

$30,000.00 in punitive damages. On

appeal, the Sixth Circuit Court of Appeals

affirmed the award of punitive damages but

reversed the compensatory damages award.

The appellate court remanded the case to

this Court for an award of nominal

compensatory damages.

The record indicates that beginning on

July 24, 1984, Chester Ferguson, Chrysler's

labor relations manager, received

complaints from Betty Simmon, Susan Kerr,

and Brenda Parker. These women. worked

directly under Erebia's supervision in the

Inspection Department. The substance of

the complaints indicated that Erebia had

made unwanted sexual advances toward them,

had requested sexual favors from them, and

harassed them repeatedly to borrow money

from them. The women's complaints were not

Solicited or encouraged by Ferguson or any

other member of Chrysler's management.

Erebia's conduct toward the three female

employees created an intimidating, hostile

and offensive work environment.

Thereafter, Chrysler verbally reviewed

the complaints with Erebia, but it refused

to make copies available to him.

Subsequently, Erebia submitted handwritten

memoranda to Chrysler in response to the

women's initial complaints. By August 3,

1984, the complaints had become’ formal

charges against Erebia which sought action

by Chrysler. Again, Chrysler’ verbally

reviewed the complaints with Erebia and

asked him for written responses to the

allegations.

Prior to 1984, Erebia had been

disciplined by Chrysler on_ several

occasions. He had been given’ three

separate disciplinary layoffs for

absenteeism, improper conduct toward a

female hourly employee, and sleeping during

working hours. Erebia also had been warned

that his sexual affair with another female

hourly employee had interfered with his

work and such conduct could resuit in his

discharge. The foregoing events, however,

occurred several years prior to Erebia's

discharge.

The only evaluation of Erebia's

performance subsequent to the 1984 trial

and prior to his termination, indicated

Erebia's performance was satisfactory.

On August 20, 1984, Chrysler discharged

Erebia from its employment. The reasons

specified by Chrysler for said discharge

were the sexual and racial harassment of

Simmon, the sexual harassment of Kerr and

Parker, Erebia's prior disciplinary record

and his refusal to respond further to the

complaints.

With regard to the complaints, Erebia

was neither provided with copies of the

complaints nor advised as to when a written

response was definitely required. Moreover

the recommendation to terminate Erebia was

made shortiy after the August 3, 1984

meeting, seventeen days prior to Erebia's

formal] discharge. It 1s highly

questionable, therefore, that any written

response provided by Erebia were to be

given proper consideration.

Upon the facts before it, the court

finds that Erebia was terminated in

retaliation for his prior charges-~ and

successful litigation against Chrysler.

TITLE VII CLAIM

Erebia's title VIi claim is one for

retaliatory discharge. Thus, Erebia_ has

the initial burden of establishing a prima

facie case cf discrimination. Erebia must

prove that (1) he previously asserted and

complainei about violations of rights

Protected by Title VII; (2) Chrysler took

adverse employment action against him; and

(3) a causal connection existed between his

assertion of protected rights and_ the

adverse employment action. Jackman v. RKO

Bottlers of Toledo, Inc., 743 F.2d 370, 375

(6th Cir. 1984). Having established a

prima facie case, the burden of production

shifts to Chrysler to articulate some

legitimate, non-discriminatory reason or

reasons for its decision to discharge

Erebia. If Chrysler articulates such a

reason, Erebia must then prove the stated

reasons were not the true reasons for his

discharge. Id. Hence, he must establish

that Chrysler's retaliatory intent “more

likely than not’ was the basis of the

adverse employment action." Blalock v.

Metals Trades, Inc., 775 F. 2d 703, 709

(6th Cir. 1985). In summary, in a mixed-

motive context such as this,

a plaintiff need demonstrate by a

preponderance of the evidence that

the employer decision to take adverse

employment action was more likely

than not motivated by a criterion

proscribed by the statute. Upon such

proof, the employer has the burden to

prove -that the adverse employment

action would have been taken even in

the absence of the impermissible

motivation, and that therefore, the

discriminatory animus was not the

cause of the adverse employment

action.

1a. @&- #32.

Based on the record, the Court finds

that Erebia established a prima facie case

of retaliatory discharge. Further,

Chrysier rebutted the virdiuantian of

retaliation by articulating legitimate,

non-discriminatory reasons for its decision

to discharge Erebia. However, Erebia

carried his ultimate burden by establishing

the pretextual nature of Chrysler's

articulated reasons. Thus, while Erebia

did sexually harass the three’ female

employees, the recommendation-= and

subsequent discharge of Erebia was

motivated by Chrysler's retaliatory intent,

i.e. Chrysler retaliated against Erebia for

his earlier assertion of rights under Title

Sil Chrysler failed to establish Erebia

would have been discharged even in the

absence of the impermissible motivation.

Based on the record before it.

therefore, the Court finds Chrysler

violated Title VII through its retaliatory

discharge of Erebia.

The Court now addresses the relief to

which Erebia is entitled in this case.

"Where a person claiming employment

discrimination is successful under’ both

Title VII and 42 U.S.C. § 1981, he is

entitled to only one recovery of damages."

Muldrew V. Anheuser-Busch, ae... 554

F.Supp. 808, 810 (E.D. Mo. 1982), aff'd,

728 F. 2d 989 (8th Cir. 1984). Thus,

"damages are cnly recoverable once for a

transaction involving two violations’ of

law. Williams v. Transworld Airlines,

Inc., 660 F. 2d 1267, 1274 (8th Cir. 1981)

(citations omitted).

In the case sub judice, the issue of

back wages was submitted to the Jury. Upon

a review of. the evidence the jury awarded

Erebia $75,000.00 in compensatory damages.

The Court finds that the jury's award

included back wages and compensatory

damages for emotional and mental pain and

suffering. Thus, Erebia has been fully

compensated for back wages.¢

2Relying on Keet v. Service Machine

Co., 472 F.2d 138 (6th Cir. 1972), Erebia

argues Ohio's two issue rule applies where,

as here, the jury could have decided the

total compensatory damages of $75,000.000

to be allocated to emotional and mental

pain and suffering. Keet- is inapplicable.

As the instant case was tried pursuant to

federal civil rights law, state law does

not supply the rule of decision. Moreover,

the two issue rule applies only when two

Substantive issues have been submitted to

the jury and returned under a_e general

verdict, and the jury has been incorrect on

MOTION FOR REINSTATEMENT

Because Erebia has specifically moved

for reinstatement and back wages, the Court

deems it proper to specifically address

Erebia's motion. As stated above, the

jury's award for compensatory damages

includes back wages. In light of this

determination and because the Court finds

Erebia has been adequately compensated,

additional] back wages are not-— an

appropriate remedy. The Court, therefore,

will deny Erebia's request for back wages.

With regard to Erebia's request for

reinstatement, his complaint did _ not

specifically request this remedy. Erebia's

complaint did seek lost wages in the amount

of $10,000.00 and loss of future wages in

the amount of $600,000.00. Erebia

requested reinstatement at a conference in

one of the two issues. Keet has no

application to apportionment of damages.

chambers just prior to closing arguments

and the charge to the jury.

One of the purposles] of Title VII is to

make a person “whole" for injuries caused

by illegal employment discrimination.

Albermarle Paper Co. v. Moody, 422 U.S. 405

(1975). Thus, successful Title VII

claimants presumptively are entitled to

reinstatement. Nord v. United States Steel

Corp., 758 F.2d 1462, 1473 (11th Cir.

1985). Reinstatement, however is-~ not

mandatory. The Sixth Circuit has indicated

reinstatement may be inappropriate where it

would displace the person who presently has

the position, and when the hostility which

unfortunately exists between the parties

precludes the possibility of a satisfactory

employment relationship. Shore v. Federal

Express, 777 F.2d 1155, 1159-60 (6th Cir.

1985). See also Whittlesey v. Union

Carbide, 742 F.2d 724 (2nd Cir. 1984);

Fadhl v. City and County of San Francisco,

741 F.2d 1163, 1167 (9th Cir. 1984).

Based on the record, the Court finds

Erebia has waived the right to demand

reinstatement. Erebia never made Chrysler

aware he sought this remedy until near the

end of the trial. While it is true that

Erebia was presumptively entitled to

reinstatement, Erebia waived his right to

demand reinstatement when he~ requested

front pay. Inasmuch as front pay 1S an

equitable remedy in lieu of reinstatement,

Shore, 777 F.2d at 1159-60, Chrysler was

led to believe that reinstatement was not

an issue before the -Court. Further, to

permit Erebia to seek reinstatement at this

Stage of the litigation would prejudice

Chrysler who, by Erebia's own arguments,

bears the burden of proving that Erebia is

not entitled to reinstatement. Chrysler,

therefore, was deprived of the opportunity

to demonstrate the inappropriateness of

Erebia's reinstatement including evidence

that the position is filled by another

employee.

Even assuming arguendo Erebia_ could

request reinstatement at this late date,

the Court finds that reinstatement’ is

inappropriate because of the hostile

relationship between the parties. During

the course of trial the hostility between

Chrysler and Erebia was evident. Thus, he

contended Chrysler's activities were

willful, malicious and intentional. Erebia

now states that "[t]here really was no

Significant animosity exhibited between the

parties." (Brief in Support of Motion at

oe The Court disagrees. Sufficient

evidence exists to find a high degree of

hostility between the parties. More

importantly, the women harassed by Erebia

were under his direct supervision.

Erebia's reinstatement would make the

women's employment relationship

intolerable. These employees should not be

Subjected to such employment conditions.

In light of the foregoing discussion, the

Court finds Erebia could not’ function

effectively as a member of Chrysler's

management team.

In summary, the Court finds Erebia was

retaliatorily discharged for having filed

his previous” lawsuit. Thus, he was not

permitted to view or acquire written copies

of the complaints filed by- the female

employees. Further, Ferguson never advised

Erebia that if he did not submit a written

response by August 20, 1984 he would be

terminated. Moreover, even if Erebia had

Submitted written responses to the

complaints, the consideration of said

responses is highly questionable as

Ferguson already had recommended Erebia's

termination. The Court further finds that

Erebia did sexually harass the three female

employees directly under his supervision.

Erebia is therefore awarded nominal

compensatory damages including front pay,

in the amount of one dollar ($1.00).

ATTORNEY FEES

As the prevailing party, Erebia seeks to

recover attorney fees. The standard for

the award of attorney fees is now well

settled. In Northcross Vv. Board of

Education of Memphis City Schools, 611 F.2d

624 (6th Cir. 1979), cert. denied, 447 U.S.

911 (1980) the court set forth principles

which must be considered in ruling on a

claim for attorney fees. "[TA] fee

calculated in terms of hours is the fairest

and most manageable approach .. . “to

award attorney fees. Id. at 636. However,

the Court need not automatically accept the

hours claimed by a party. Id. Once the

ree eee ST

Court determines the number’ of hours

reasonably expended on the litigation the

hours are multiplied by a reasonable hourly

rate.

Erebia's counsel claims a total of

259.25 hours for services in this case.

The Court will disallow the following as

excessive:

Ma Counsel claims 5.5 hours’ for

October 30, 1984 during which he researched

the case and dictated the complaint.

Counsel is an experienced attorney familiar

with this area of the law. He had been

Successful in Erebia's previous

litigation. Thus, the Court will disallow

2 Counsel claims twelve hours (March

]1 & 15 1986) Spent discussing’ and

this amount

isallow four

ra)

)

3. The Court will disallow six hours of

the 24.5 hours claimed by counsel in

preparing and conducting various

depositions including that of Erebia.

4. Counsel claims three hours

(March 31, 1986) reviewing the file and

preparing interrogatories. The Court will

disallow one hour as excessive.

5. The Court will disallow three hours

of the six claimed in reviewing the

depositions with Erebia.

6. Counsel claims eight hours (April

16-17, 1986) relating to the deposition of

Erebia's wife and additional research.

The Court will disallow three hours.

ae Counsel claims seven hours

(April 19, 1986) for a case review and a

meeting with Erebia to discuss plaintiff's

deposition. The Court will disallow three

hours.

8. Counsel claims fourteen’ hours

(April 23, 1986) for review of witnesses'

depositions. As counsel had on a previous

occasion reviewed said depositions, the

Court will disallow five hours.

9. Counsel claims 90.5 hours’ in

preparation for and actual trial time.

The Court wil: disallow ten hours.

Upon consideration of the foregoing, the

Court will permit 221.25 hours at a rate of

ninety-five dollars ($95.00) per hour for a

total of $21,018.75 in attorney fees.

COSTS

Next, Erebia seeks to have various

expenses totalling $2,895.15 taxed as costs

in this proceeding. The Court will

disallow $1,249.25 for the cost. of

depositions of those witnesses who

testified at trial. There is no indication

these witnesses would be unavailable to

testify at trial, the depositions therefore

were not utilized to preserve testimony.

Rather, the depositions were used _ for

discovery. The Court also will disallow

$201.60 for an unspecified transcript from

Rose M. Cannon. Erebia claims $1,145.00 in

fees and expenses for two expert witnesses.

Of this amount, the Court will allow

thirty-five dollars per witness. Erebia

has failed to specify mileage for these two

individuals. Finally the Court will

disallow twenty-three dollars 60/100

($23.60) claimed for Brigitte Churchwell.

Erebia has failed to identify this

individual and her relationship to this

case. In summary, the Court will allow

$345.70 as costs.

Wherefore, plaintiff is awarded nominal

compensatory damages in the amount of One

Dollar ($1.00) as front pay in lieu of

reinstatement, for his retaliatory

Jischarge by defendant.

‘5

Furthermore, plaintiff is awarded

attorney fees in the amount of $21,018.75

and costs in the amount of $345.70.

Furthermore, plaintiff's motion’ for

reinstatement is denied, and defendant's

motion to strike 1s denied as moot.

Furthermore, it is ordered that the

clerk enter judgment accordingly.

IT IS SO ORDERED.

/s/ Nicholas J. Walinsk1i

Senior U.S. District Judge

Toledo, Ohio

December 23, 1986

APPENDIX E

Entry of the

United States District Court

For the Northern District of Ohio

Western Division

Filed February 26, 1987

Case No. 84-7896

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

FEDERICO EREBIA,

Plaintiff,

CHRYSLER PLASTIC PRODUCTS CORPORATION,

Defendant,

OPINION AND ORDER

WALINSKI, J.

This matter is before the Court on

defendant's motion for judgment

notwithstanding the verdict or, in_ the

alternative

, for a new trial. Also before

the Court is plaintiff's opposition

thereto.

The case was tried on April 29, 1986,

through May 5, 1986. Plaintiff's claim

under 42 U.S.C. §1981 was tried to a jury

and plaintiff's claim under Title VII of

the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. §2000e et seq., was tried to the

Court. With regard to the §1981 claim, the

jury returned a verdict in favor. of

plaintiff in the amount of $55,000.00

punitive damages and $75,000.00

compensatory damages. Thereafter, on

December 24, 1986, the Court rendered a

verdict for plaintiff on the Title VII

claim. Defendant's motion is directed at

the verdict on the §1981] claim.

Defendant argues that a judgment

notwithstanding the verdict ("JNOV") should

be granted on plaintiff's §1981 claim

because there is insufficient evidence as a

matter of law of a causal connection

between plaintiff's discharge and either

his race or the first litigation between

the parties.

Rule 50(b), Fed. R. Civ. P., addresses

motions for JNOV. In pertinent part, the

rule states:

Whenever a motion for a directed

verdict made at the close of all the

evidence is denied or for any reason

is not granted, the court is deemed

to have submitted the action to the

jury subject to a later determination

of the legal questions raised by the

motion. Not later than 10 days after

entry of judgment, a party who has

moved for a directed verdict may move

to have the verdict and any judgment

entered thereon set’ aside and to have

judgment entered in accordance with

his motion for a directed verdict;

A motion for a new trial may be

joined with this motion, or a new

trial may be prayed for in_ the

alternative.

The Sixth Circuit Court of Appeals has set

forth the standard for granting a motion

nding the verdict

s the evidence 1S

such that there can be but—~— one

reasonable conclusion as _ to the

proper verdict. It should not be

granted if there is a conflict in the

evidence, and the credibility of the

evidence is not to be considered in

passing on [the] motion for judgment.

Merkel v. Scovill, Inc., 787- F.2d 174, 177

(6th Cir. 1986) (quoting Hill v. Spiegel,

Inc., 708 F.2d 233, 237 (6th Cir. 1983));

Ridenour v. Lawson Co., 791 F. 2d 52, 55

(6th Cir. 1986); Hill v. Spiegel, Inc., 7/08

F.2d at 23/7.

The Court is not permitted to substitute

its opinion for that of the jury. Wilkins

v. Eaton Corp., 790 F.2d 515, 522 (6th

Cir. 1986) (quoting Brady v. Southern

Railway Co., 320 U.S. 476, 479-80 (1943)).

Accordingly, it must view “the evidence,

and reasonable inferences therefrom

in the light most favorable to the

nonmoving party and the Court must not

consider the credibility of witnesses nor

weigh the evidence.” Id.

With the foregoing discussion as a

guide, the Court now addresses defendant's

motion for JNOV. The Court has reviewed

the arguments made by the parties and finds

that a judgment for the defendant

notwithstanding the jury's verdict is not

warranted in the case sub judice. Pursuant

to this Court's findings on the Title VII

claim, defendant was found to have

discharged plaintiff because of the prior

litigation. The Court is persuaded that

defendant's actions with reference to the

§198i claim also were of ae retaliatory

nature. Defendant's motion for JNOV,

therefore, must be denied.

Defendant next argues that the Court

Should grant its motion for a new trial.

In support of its motion, defendant

contends that a new trial is necessary

because the issue of race was effectively

and improperiy removed from the case by the

Court's comment during the charge that

there was no dispute that plaintiff is

Mexican-American. Defendant argues that

"[t]his observation was.’ prejudicial to

defendant because the issue of race is a

crucial factual as well as legal element in

this case." (Defendant's Motion at 26)

(emphasis in original). Defendant

correctly notes that §1981 does not

prohibit national origin discrimination per

se; rather, §198]1 prohibits racial

discrimination. Erebia v. Chrysler Plasti

i?)

Products Corp., 772 F.2d 1250, 1253-54 (6th

Cir. 1986). Thus, defendant contends that

the issue of whether plaintiff is perceived

as a racial minority within the scope of

§1981 should have been decided by the jury.

Ordinarily, the Court might agree with

defendant's position. However, a review of

the litigation between these parties

reveals that this issue previously had been

i Oe

decided. A prior jury and the Sixth

Circuit Court of Appeals have found that

plaintiff comes within the protection of

§1981. Id. at 1254. This issue, therefore

was res judicata. Accordingly, the only

issue properly before the jury in the

instant case was whether plaintiff's

"race" was the motivational basis’ for

defendant's action. Upon this question the

jury returned a verdict for plaintiff.

With regard to defendant's remaining

arguments on its motion for a new trial,

the Court is persuaded that a new trial 15

not warranted. Defendant correctly submits

that plaintiff's claim for back wages was

improperly submitted to the jury.

However, pursuant to this Court's findings

on plaintiff's Title VII claim, wherein

compensatory damages in the amount of one

dollar ($1.00) were awarded, defendant has

suffered no demonstrable harm. RAS 6 6 tS

especially true since the Court found that

plaintiff was retaliatorily discharged thus

entitling him to back wages. Had the jury

not considered the issue of back wages,

this Court, as a result of defendant's

Title VII violation, would have been

compelled to award back wages in excess of

the amount awarded plaintiff under his

Title VII claim in this Court's previous

order. Iherefore, because defendant has

suffered no economic loss, the Court

concludes that a new trial 1s not

warranted.

With reference to defendant's final

arguments, te Court finds tat the jury's

verdict is not against the manifest weight

of the evidence. Nor is the punitive

damages verdict excessive or the product of

Sympathy, passion and prejudice.

In light of the foregoing discussion,

defendant

Iherefore

]

ORDERED

judgment

not

the alternat

Toledo,

February

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that

withstandi

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trial

aia

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taken.

CERTIFICATION

This is to certify that three copies of

the foregoing Petition for a Writ of

Certiorari were served upon the respondent

in the foregoing cause, by sending same by

Ordinary mail with postage prepaid, on

this 23rd day of February, 1989, addressed

as follows:

Mary Ann Whipple, Esq.

Fuller & Henry

One SeaGate,.17th Floor

Post Office Box 2088

Toledo, Ohio 43603-2088

Counsel for Respondent

DENNIS E. MURRAY, SR.

300 Central Avenue

Sandusky, Qhio 44870

)

PQ |

lephone: 1-419-627-9700

nsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.