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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1021

## Text

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

2
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?

1

SUBJECT INDEX

Page
QUESTION PRESENTED... ........ 2
EE 4
GROUNDS OF JURISDICTION ........ 5
STATUTORY PROVISION INVOLVED. ..... 6
Semeement OF THE CASE . .-....2...-. 8
ey lucy yy ? 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) :

10
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

11

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

12
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.)

ia
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

15
"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

16

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

.

17

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

m

“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
cums

q

ee a oe Cana es
a 7 : es - = a al - - _ - a a 7 7 7 7 - — et ear : ’ Near) —
- . Se eS na na <a —— —— oS = ms i be

22
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

23
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,

V.
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

———=_

25

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

26
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

27
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

28

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

30
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

31
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

—_—_

7

cE
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

33
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.

34
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

35
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 _

7

36
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.

37
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,

38
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

hi

“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).

39
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

40

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.

ee

4]
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

42
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

a

43
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 —————————

44

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

——

45

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

46

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

47

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

48

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.

50

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,
V.
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,
V.
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

56

("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

57

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.

58

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

ie

59

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

FL

60

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

61

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,

62

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

63

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

64

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

65

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.

66
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);

67

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

68

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.

69

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

70

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

71
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

T

<

YU

C

Y
I

YW

isallow four

ra)

)
<
+
Oo

72

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.

73

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

74

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

oo

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,
V.
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

77
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

78

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

79

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.

80
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

81

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

83

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

0

t 15S

that

fe

withstandi

lve

d

ida

iQ t

new

nts

he Ve T (

trial

aia
a
mot
ee a
j t

taken.

85

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

ot

DENNIS E. MURRAY, SR.
300 Central Avenue
Sandusky, Qhio 44870

)
PQ |

lephone: 1-419-627-9700
nsel for Petitioner

oo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0970%3A1. Public record. Not legal advice.