Petition — Muller v. United States Steel Corp.

an the Supreme Court of the

United States

October Term 1974

eee eee

PAUL MULLER,

Petitioner,

UNITED STATES STEEL CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MORGAN, SCALLEY,

LUNT & KESLER

STEPHEN G. MORGAN

345 South State Street, Suite 200

Salt Lake City, Utah 84111

Attorney for Petitioner

TABLE OF CONTENTS

OPINION BELOW .................. -_ .

Pe scuueeneniinistansiaasentnage

QUESTIONS PRESENTED .00000.2.n.........scscscsseseeesseees

FEDERAL STATUTES INVOLVED .............................

STATEMENT OF THE CASE .0000..2.........scccssssseseesees

REASONS FOR GRANTING THE WRIT ..................

I. THE WRIT SHOULD BE GRANTED TO PRE-

VENT EMASCULATION OF THE INTENT OF

CONGRESS AND PRIOR RULINGS OF THIS

COURT AND THE MAKING OF A SHAM OUT

OF TITLE VII OF THE CIVIL RIGHTS ACT

OF 1964 IN THAT IF THE DECISION BELOW

IS ALLOWED TO STAND THEN DISCRIM-

INATING EMPLOYERS NEED NOT COMPEN-

SATE THE VICTIMS OF THEIR UNLAWFUL

CONDUCT UNLESS SUCH VICTIMS HAVE

BEEN “CONSTRUCTIVELY DISCHARGED”

AND FURTHER BECAUSE SUCH DECISION

CONFLICTS WITH THE DECISIONS OF THE

OTHER COURTS OF APPEAL AS TO THE

PROPER INTERPRETATION OF 42 U. S. C.

2000e-2 (a) AND 20000-5(g) -...2.....-.--.---ceceseeecseesseseeeees

II. THE WRIT SHOULD BE GRANTED TO PRE-

VENT THE AWARD OF ATTORNEYS’ FEES

UNDER TITLE VII OF THE CIVIL RIGHTS

ACT OF 1964 FROM BEING DEPENDENT

UPON THE DAMAGE AWARD WHICH

WOULD DISCOURAGE VICTIMS OF DIS-

CRIMINATION FROM PRESENTING TITLE

VII CONTROVERSIES TO THE COURT

RATHER THAN BEING AWARDED AS PART

OF COSTS AS THE STATUTE PROVIDES

TABLE OF CONTENTS—Continued

Page

AND THUS ENCOURAGING SUCH VICTIMS

TO ACT AS PRIVATE ATTORNEYS GENER-

AL AND LITIGATE SUCH MATTERS AS CON-

GRESS INTENDED AND FURTHER BE-

CAUSE THE DECISION BELOW IN THIS RE-

GARD CONFLICTS WITH THE DECISIONS

OF THE OTHER COURTS OF APPEAL AS TO

THE PROPER INTERPRETATION OF 42 U.

ee 15

a ella 20

APPENDIX (Opinion and Order of Court of Appeals) i

TABLE OF AUTHORITIES

Cases

Baxter v. Savannah Sugar Refining Corp., 495 F. 2d 437

een 8

Bowe v. Colgate, Palmolive Company, 489 F. 2d 896 (7th

REN cae RT RE: 11, 12,17

Brennan v. City Stores, Inc., 479 F. 2d 235, 242 (5th

I ic alata aatilaciaiaariliciataahltilaleam iat 13

Brotherhood of R. Trainmen v. Baltimore & O. R. Co.,

SO I I chanelle 13

Brown v. Gaston County Dyeing Machine Co., 457 F.

2d 377 (4th Cir.) cert. denied, 409 U. S. 982 (1972) 8

Cf. Louisiana v. United States, 380 U. S. 145, 154 (1965) 10

Clark v. American Marine Corp., 320 F. Supp. 709 (E.

D. La. 1970) aff'd 437 F. 2d 959 (5th Cir. 1971)....16, 17

Griggs v. Duke Power Co., 401 U. S. 424, 429-430 (1971) 9

Head v. Timken Roller Bearing Company, 486 F. 2d 870

LS eee 10, 11, 12

TABLE OF CONTENTS—Continued

Page

Jenkins v. United Gas Corp., 400 F. 2d 28, 32, 33 (5th

UIE III wsesdlatsssssshtrasedesesshastansnibelnsidianebiaeelisbidathininiiennsts 17, 18

Johnson v. Georgia Highway Express, Inc., 488 F. 2d

BR RRR Eo 19

Johnson v. Goodyear Tire and Rubber Co., 491 F. 2d

Oy Sy GID, II ah adsciteeiseeeieceetanlbidteeh eaten 10, 13, 14

Jones v. Lee Way Motor Freight, Inc., 431 F. 2d 245

(10th Cir.) , cert, denied, 401 U. S. 954 (1970) ........ 8

Marquez v. Omaha District Sales Office, Ford Division

of Ford Motor Co., 440 F. 2d 1157 (8th Cir. 1971).. 8

Moody v. Albemarle Paper Company, 474 F. 2d 134

I ON lect cahidtcactealiieias 13

Newman v. Piggie Pack Enterprises, Inc., 390 U. S. 400,

ERP ER SEN REA ie ae 17

Parham v. Southwestern Bell Tel. Co., 433 F. 2d 421

I 17

Pettway v. American Cast Iron Pipe Company, 494 F.

Ff S fF | > ees 10

Robinson v. Lorillard Corp., 444 F. 2d 791 (4th Cir.

STITT cieneienanetabtetetecieciadediceatthatasaiai aii cet cited 13

Rosenfeld v. Southern Pacific Co., 444 F. 2d 1219, 1222

I 18

Rowe v. General Motor Corp., 457 F. 2d 348 (5th Cir.

SD ciheeieietheteicaieescaniinenlehhdeipaiadatitaaddaienesiiatah tical 8

Schaeffer v. San Diego Yellow Cab Co., 462 F. 2d 1002

(Oty Clr, 1972) ceca nnnnaceeccccnvneecosccccncneseccccconseess ..13, 18, 20

United States v. Allegheny-Ludlum Industries, Inc., 63

MN —Oy aaa 18, 19

U. S. v. Georgia Power Co., 474 F. 2d 906 (5th Cir.

a ER ean 10

% ;

TABLE OF CONTENTS—Continued

Page

United States v. Local Union No. 3, International Union

of Operating Engineers, 6 EPD {8946 (N. D. Cal

er a ae 19

United States v. N. L. Industries, Inc. 479 F. 2d 354

SED TRE, TID wxnenceveneosseniccnstiennntsescaisaeaeaiadiniahniaiaianads 8

Watkins v. Washington, 472 F. 2d 1373 (D. C. Cir. 1972) 12

Weeks v. Southern Bell Tel. & Tel. Co., 467 F. 2d 95

(Etta Cir, 1972) accccccccccccncvveesscecccccccccnvcueeesececessceccsesncnssees 19

Williams v. General Foods Corp., 492 F. 2d 399, 406 (7th

GE, SUED cnsencsnseneniee 18

Statutes

SS BE | ere 2

ST Gi Ge GD cctrecteneenincaentaaeeee 7

GB Te Be Ge Fe GD cccssvistinintninirereensintieibitaiaaaaanan 8,9

I 2, 6, 8, 9, 14

42 U. S.C. §$20000-5(g) ..........c.c.c.ccccerescceccecosesees 3, 6, 7, 9, 10, 14

48 8 FE Rn 4, 16, 18

a 18

Rules

Rule 54(d) Federal Rules of Civil Procedure .................. 18

American Bar Association Code of Professional Respon-

sibility, Ethical Consideration 2-18, Disciplinary

SEIN er 19, 20

Miscellaneous

1972 Amendments to Title VII - Section-by-Section An-

i Congressional Record (H. 1863) March 8,

saeineiniiaiaiteiateapeiiliesdaitiniatasbinecinistanaie naan 14

—

PAUL MULLER,

Petitioner,

v6.

UNITED STATES STEEL CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioner, Paul Muller, respectfully prays that a

wnt of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Tenth Circuit

herein.

OPINION BELOW

The opinion of the court below entered upon January

14, 1975, and adhered to upon rehearing, is printed in un-

official text in an appendix to this Petition for the con-

venience of this Court.

JURISDICTION

Jurisdiction is invoked under Section 1254(1) of Title

28 of the United States Code.

The opinion of the United States Court of Appeals for

the Tenth Circuit was filed, as stated, upon January 14,

1975, Petition for Rehearing was duly filed upon January

27, 1975; and an order denying the Petition for Rehearing

was entered upon February 5, 1975. The time for filing

this Petition expires or April 14, 1975.

QUESTIONS PRESENTED

1. Whether a person found by both the trial court

and the appellate court to have been a victim of “an un-

lawful employment practice”, Le., a discriminatory promo-

tion system, under Section 703(a) of Title VII of the Civil

Rights Act of 1964, 42 U. S. C. §2000e-2(a) (2), must also

prove that he was “constructively discharged” in order for

the trial court to award buck pay under Section 706(g) of

the same Act for any period of time after the date on which

he terminates his employment with the guilty employer.

2. Whether the award of an attorneys’ fee under Sec-

tion 706(k) of the same Act by the trial court, the excessive-

ness of which was not put in issue on appeal, may be re-

duced by reason of the fact that the compensatory damages

granted to the victim of discrimination will necessarily be

substantially lessened as a result of the appellate court’s

ruling on the issue of damages.

FEDERAL STATUTES INVOLVED

1. Section 703(a) of Title VII of the Civil Rights Act

of 1964, 42 U. S. C. §2000e-2(a) provides as follows:

“It shall be an unlawful employment practice for

an employer —

2. Section 706(g) of Title VII of the Civil Rights Act

of 1964, 42 U. S. C., §2000e-5(g) :

“If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in

an unlawful employment practice charged in the

complaint, the court may enjoin the respondent

Ue]

:

ae

:

;

or promotion of an individual as an employee, or

the payment to him of any back pay, if such indi-

vidual was refused admission, suspended, or ex-

4

pelled, or was refused employment or advancement

or was suspended or discharged for any reason other

than discrimination on account of race, color, re-

ligion, sex, or national origin or in violation of sec-

tion 704(a) [42 USCS §2000e-3(a) }.”

3. Section 706(k) of Title VII of the Civil Rights Act

of 1964, 42 U. S. C., §2000e-5(k):

“In any action or proceeding under this title/42

USCS §$2000e-2000e-17} the court, in its discretion,

may allow the prevailing party, other than the Com-

mission or the United States, a reasonable attor-

ney’s fee as part of the costs, and the Commission

and the United States shall be liable for costs the

same 4S a private person.”

STATEMENT OF THE CASE

Petitioner, Paul Muller, a member of the Spanish-Amer-

ican race, brought an individual action pursuant to Title

VII of the Civil Rights Act of 1964 alleging that Respon-

dent, United States Steel Corporation, engaged in an un-

lawful promotion practice which operated to discriminate

against Petitioner because of his race and which resulted

in his constructive discharge from the employ of U. S. Steel.

Specifically, Petitioner claimed that he was unlawfully ex-

chided from the position of spell foreman, a temporary super-

visory position, which must be held before a worker can

advance to the permanent position of turn foreman, the

lowest management job level. Petitioner further alleged

that U. S. Steel’s promotional procedures were inherently

discriminatory in violation of Title VII

U. S. Steel denied that its promotional procedures oper-

ated to discriminate against Petitioner, denied that Peti-

5

tioner was discriminated against, and denied that he was

constructively discharged.

The matter came on for trial before the Honorable Willis

W. Ritter, Chief Judge, without a jury. Judgment was

entered against U. S. Steel in the amount of $26,624.35 for

back pay, interest and retirement benefits less interim im earn-

ings, together with the sum of $14,000 for attorneys’ fees

and $18.00 for costs. The Court further ordered U. S. Steel

by injunction to change its unlawful promotion system and

ordered it not to discriminate against Spanish-Americans

presently employed by it.

The Respondent, United States Steel Corporation, ap-

pealed to the United States Court of Appeals, Tenth Cir-

cuit, seeking reversal of the lower court’s judgment with

respect to the alleged unlawful employment practice and

the back pay award. The Tenth Circuit agreed with the dis-

trict court that Respondent was guilty of an unlawful em-

ployment practice with regard to Petitioner but held that

since Petitioner was not “constructively discharged” [see Ap-

pendix p. xiv], that he was not entitled to back pay, retire-

ment and interest from the date of leaving the Respondent’s

employ. The appellate court further held that the award of

attorneys’ fees was excessive in view of the action taken

by that court with respect to the damages’ issue.

The Petitioner, Paul Mulier, seeks a reversal of the

Tenth Circuit holding that since he was not “constructively

discharged” he would not be entitled to monetary damages

in the form of back pay, interest, and retirement from the

date of leaving Respondent’s employ. Petitioner also assigns

as error the holding by the court below that the attorneys’

fee was excessive in view of the action taken therein.

REASONS FOR GRANTING THE WRIT

L

THE WRIT SHOULD BE GRANTED TO PRE-

VENT EMASCULATION OF THE INTENT OF

CONGRESS AND PRIOR RULINGS OF THIS

COURT AND THE MAKING OF A SHAM OUT

OF TITLE VII OF THE CIVIL RIGHTS ACT

OF 1964 IN THAT IF THE DECISION BELOW

IS ALLOWED TO STAND THEN DISCRIMIN-

ATING EMPLOYERS NEED NOT COMPEN-

SATE THE VICTIMS OF THEIR UNLAWFUL

CONDUCT UNLESS SUCH VICTIMS HAVE

BEEN “CONSTRUCTIVELY DISCHARGED”

AND FURTHER BECAUSE SUCH DECISION

CONFLICTS WITH THE DECISIONS OF THE

OTHER COURTS OF APPEAL AS TO THE

PROPER INTERPRETATION OF 42 U. S. C.

2000e-2(a) AND 2000e-5(g).

Section 703(a) of Title VII of the Civil Rights Act of

1964 [hereafter “the Act’”|], 42 U. S. C. §2000e-2(a) states

in pertinent part that:

“Tt shall be an unlawful employment practice for

an employer —

... (2) to limit, segregate, or classify his employees

in any way which would deprive or tend to de-

prive any indivdual of employment opportunities

or otherwise adversely affect his status as an em-

7

ployee, because of such individual’s race, color, re-

ligion, sex, or national origin.”

Section 706(g) of Title VII of the Act states in perti-

nent part:

“(g) If the court finds that respondent has in-

tentionally engaged in or is intentionally engaging

in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent

fro mengaging in such unlawful employment prac-

tice, and order such affirmative action as may be

appropriate, which may include reinstatement or

hiring of employees, with or without back pay

(payable by the employer) . ee ee

unlawful employment practice .

The district court in the principal case adjudged that

Respondent, United States Steel Corporation, was guilty

of an unlawful employment practice under Section 703 (a)

of Title VII of the Act. It then determined, in its discre-

tion, to award back pay to the Petitioner as part of the

relief that a court may grant under Section 706(g) of Title

VII of the Act. On appeal, the U. S. Court of Appeals,

Tenth Circuit, affirmed the holding of the lower court that

an unlawful employment practice had been committed [see

Appendix, p. xiii], but maintained that since Petitioner was

not “constructively discharged” that he would not be en-

titled to damages in the form of back pay, interest, and

retirement from the date of leaving the Respondent’s em-

ploy [see Appendix, p. xiv|. The latter holding was clearly

an error on the appellate court’s part.

Section 703 (a) sets forth two subdivisions which include

the types of conduct which shall be considered “unlawful

employment practices” under the Act. Subdivision (1) in-

dicates that

“to fail or refuse to hire or to discharge .. . or

otherwise to discriminate against any individual

with respect to his compensation, terms, conditions,

or privileges of employment, because of such in-

dividual’s race, color, . . . or national origin.”

are unlawful employment practices. Subdivision (2), supra,

[p. 6], likewise attempts to outline in broad terms the

type of conduct which shall be held to constitute an un-

lawful employment practice under the Act.

“Discharge” is specifically mentioned under subdivision

(1) of Section 703(a) and for valid reason. Racial discrim-

ination has and may often be practiced in this manner. Dis-

crimination ofien manifests itself, however, in less dra-

matic but equally damaging forms, not the most infrequent

of which is a denial of promotional opportunities which is

made a violation under subdivision (2) of Section 703(a).

Without question, racial discrimination with regard to ad-

vancement is as much an unlawful employment practice

as is unlawful discharge or refusal to hire. Marquez v.

Omaha District Sales Office, Ford Division of Ford Motor

Company, 440 F. 2d 1157 (8th Cir. 1971); Rowe v. General

Motors Corp., 457 F. 2d 348 (5th Cir. 1972); Brown v.

Gaston County Dyeing Machine Co., 457 F. 2d 377 (4th

Cir.), cert. denied, 409 U. S. 982 (1972); Jones v. Lee Way

Motor Freight, Inc., 431 F. 2d 245 (10th Cir.), cert. denied,

401 U. S. 954 (1970); Baxter v. Savannah Sugar Refining

Corp., 495 F. 2d 437 (5th Cir. 1974); United States v. N. L.

Industries, Inc., 479 F. 2d 354 (8th Cir. 1973).

It cannot then be rationally asserted that the discre-

tionary power granted to the federal trial courts under Sec-

tion 706(g) limits the court to granting appropriate reme-

dies only in those rare instances of overt and direct acts

of discrimination, i.e., discharge or refusal to hire. If an

employer is found to have committed any unlawful employ-

ment practice covered by the Act, whether under subdivi-

sion (1) or subdivision (2) of Section 708 (a), then the trial

court may “. . . order such affirmative action as may be

appropriate...” [§2000e-5(g), 42 U. S. C.]

By requiring Petitioner to show constructive discharge

as a prerequisite to recovery, the Tenth Circuit has unduly

restricted the scope of Title VII and has im this case

achieved a result totally out of consonance with the objec-

tive and purpose of the Act. No other U. S. Court of Ap-

peals has, since the enactment of Title VII, attempted to

construe that statute as narrowly and inappropriately as the

court below has in this instance. What that court is saying,

in effect, is that certain unlawful employment practices

covered by the Act will not be tolerated but that certain

other unlawful employment practices covered by the Act

are not of such a nature as to warrant recovery, even though

actionable under the law. Such a result does not comport

with the express language of Sections 703(a) and 706(g) of

Title VII of the Act nor is it consistent with the intent of

Congress underlying the passage of the Act. The United

States Supreme Court observed in Griggs v. Duke Power

Co., 401 U. S. 424, 249-430 (1971):

“The objective of Congress in the enactment of

Title VII is plain from the language of the stat-

ute. It was to achieve equality of employment op-

10

portunities and remove barriers that have oper-

ated in the past to favor an identifiable group of

white employees over other employees.” Cf. Louis-

tana Vv. United States, 380 U. S. 145, 154 (1965).

Petitioner proved that Respondent was guilty of

an “unlawful employment practice”, iie., a discriminatory

promotional system, under subdivision (2) of Section

703(a) of the Act. The Tenth Circuit upheld the finding

of the district court as to such “unlawful employment prac-

tice”. The district court, therefore, according to Section

706(g) of Title VII of the Act, should then have the power

to grant whatever relief it deems necessary to make the

victim whole, including an award of back pay. The appellate

court cannot, arguably, impose upon the victim of discrim-

ination novel and more stringent requirements beyond that

which is required by the Act, which are unsupported by

statutory or case authority, such as requiring the Petitioner

to prove, in addition to the “unlawful employment practice’’,

Le., “the discriminatory promotional system”, that he was

“constructively discharged”. While “constructive discharge”

may relate to a violation under subdivision (1) of Section

703 (a) of the Act, it certainly does not relate to a violation

under subdivision (2) of Section 703(a) of the Act.

In Pettway v. American Cast Iron Pipe Company, 494

F. 2d 211, 252 (5th Cir. 1974), the Fifth Circuit recently

stated that under Title VII “the scope of a court’s discretion

to deny back pay is narrow.” [See U. S. v. Georgia Power

Co., 474 F. 2d 906 (5th Cir. 1973); Johnson v. Goodyear

Tire and Rubber Co., 491 F. 2d 1364 (5th Cir. 1974); Head

v. Timken Roller Bearing Company, 486 F. 2d 870 (6th

il

Cir. 1973); Bowe v. Colgate, Palmolive Company, 489 F.

2d 896 (7th Cir. 1973).]

Petitioner’s position in this matter is strongly supported

by recent decisions in other U. S. Circuit Courts of Appeal.

In Bowe, supra, the Seventh Circuit at least impliedly rec-

ognized that employees who have resigned under a discrim-

inatory promotional system have suffered no less a com-

pensable injury under the Act. The case had previously

been remanded to the trial court for consideration of the

back pay award [416 F. 2d 711 (7th Cir. 1969) ] and subse-

quently appealed again on the ground, amorg others, that

the back pay awards did not reasonably represent the dif-

ference between the amount earned by the discriminatees

and the amount they would have earned had no discrimina-

tion been pratciced. In connection with this issue, the Court

of Appeals noted:

Similarly, the case of Head v. Timken Roller Bearing

Company, supra | (6th Cir. 1973, on remand, 7 EPD {9420

12

(S. D. Ohio 1974] buttresses this proposition. On remand,

the district court said:

“(T) he class of employees who are entitled to be

made whole are all persons who beginning on July

2, 1965, were assigned to the ‘black departments’

by reason of their race and who remained there for

any period of time ending November 4, 1968 .. .

This class will be subdivided into five subclasses:

.. (b) Those black employees who were hired after

July 2, 1965, or quit prior to November 4, 1968;

...” (Emphasis supplied.)

In Watkins v. Washington, [472 F. 2d 1373 (D. C. Cir.

1972) ], Judge Skelly Wright held:

“The record also supports the District Court’s con-

clusion that all of the 14 named past and present

employees of the Housing Division were harmed

by the discriminatory promotional policies. The

court acted well within its powers in deciding to

compensate these individuals for the harm suffered

through a back pay award, and the court’s method

of calculating back pay seems reasonable in light

of the consistent and widespread discrimination

evidenced in this record...” (Emphasis supplied.)

The language in Bowe, Head and Watkins, supra, leaves

no doubt that the primary consideration in the making of

the back pay award is to ensure that all the victims of the

discriminatory system are made whole, including those who

had resigned or retired while such a system was in effect.

Such a result is in consonance with the above-quoted

language of the statute itself which, once an unlawful em-

ployment practice has been found to exist, vests in the dis-

trict court the discretionary power to fashion the appropri-

18

ate relief. Absent a clear and convincing showing that there

was an abuse of discretion, the province of the trial judge

regarding the matter of damages should not be invaded.

Brotherhood of R. Trainmen v. Baltimore & O. R. Co., 311

U.S. 519. Where, as here, the appellate court sets aside the

damage award based upon an erroneous interpretation of the

law, an even stronger argument exists for reinstating the

there was an abuse of discretion because there was no com-

pensable injury to the employee; they merely determined

that because he was not “constructively discharged” that he

was not entitled to back pay after the date that he resigned.

The Sixth, Seventh and D. C. Circuits are quite plainly

in disagreement with such an approach, and recent deci-

sions in the Fourth and Fifth Circuits, while not having

directly confronted the issue presented here, certainly pro-

vide ample support for the proposition that the back pay

award should be employed to compensate the victim or vic-

tims of employment discrimination, whatever form that

discrimination might manifest itself. {Johnson v. Goodyear

Tire and Rubber Co., supra; Moody v. Albemarle Paper

Company, 474 F. 2d 134 (4th Cir. 1973); Robinson v. Loril-

lard Corp., 444 F. 2d 791 (4th Cir. 1971).]

It has been recognized that the award of back pay is

proper even though reinstatement is not requested or

granted. [Schaeffer v. San Diego Yellow Cab Co., 462 F.

2d 1002 (9th Cir. 1972.) It has also been awarded even

though some inexactitude is involved in the calculation of

the award [Brennan v. City Stores, Inc., 479 F. 2d 235, 242

(5th Cir. 1973) ] and one court has said that any uncertainty

in the determination of a back pay award should be resolved

—<—- —

14

against the discriminating employer. {Johnson v. Goodyear

Tire and Rubber Co., supra. |

In discussing the Congressional intent of the relief

section of the 1972 Amendments to Title VII, the Senate-

House Conference Report states:

“The provisions of this subsection are intended to

give the courts wide discretion exercising their

equitable powers to fashion the most complete re-

lief possible. In dealing with the present Section

706(g) the Courts have stressed that the scope of

relief under that Section of the Act is intended to

make the victims of unlawful discrimination whole,

and that the attainment of this objective rests not

only upon the elimination of the particular unlawful

employment practice complained of, but also re-

quires that persons aggrieved by the consequences

and effects of the unlawful employment practice be,

so far as possible, restored to a position where they

would have been were it not for the unlawful dis-

crimination.” Section-by-Section Analysis, Con-

gressional Record (H. 1863), March 8, 1972.

The Tenth Circuit, by not simply narrowly construing

the material provisions of Title VII involved in Petitioner’s

complaint but rather misconstruing them to require “con-

structive discharge” when such requirement is neither ex-

pressed nor implied in the pertinent language “deprive or

tend to deprive” [42 U. S. C. §2000e-2(a) (2)] contained

therein, essentially deprives the Petitioner of any real com-

pensation for the discrimination that that court fully agrees

he has suffered. [See Appendix, p. xiii.) Further, the court

below has effectively barred future victims of discriminatory

employment practices from actively seeking redress by pri-

15

vate actions in federal courts in the Tenth Circuit. Unless

a plaintiff is fortunate enough to have been discharged or

“constructively discharged”, a finding that he has been the

victim of discriminatory promotional system (or other un-

lawful employment practice) does him no good whatever.

Such a finding does nothing to restore the victim to his

rightful place nor does it discourage the wrongdoing em-

ployer from committing the unlawful practice. If the dis-

criminating employer need not compensate the victims of

his unlawful conduct, is the law really being applied in the

manner in which Congress intended? It is submitted that it

is not.

Here the Tenth Circuit has overturned the judgment

of the district court by reversing a finding that the trial

court need not have reached. Whether or not the appellate

court had a basis for so doing is not material. What is im-

portant is that Petitioner proved each and every element

that he needed in order to recover — an unlawful employ-

ment practice engaged in intentionally, not accidentally,

by the employer, for which no business necessity could be

shown. He should not be denied recovery because he failed

to carry the burden with regard to elements comprising

pleaded in his complaint. No similar requirement has been

imposed by any other U. S. Circuit Court of Appeals and

for the reasons outlined in the present argument, it is unged

that the requirement should not be imposed here.

Il.

THE WRIT SHOULD BE GRANTED TO PRE-

VENT THE AWARD OF ATTORNEYS’ FEES

16

UNDER TITLE VII OF THE CIVIL RIGHTS

ACT OF 1964 FROM BEING DEPENDENT

UPON THE DAMAGE AWARD WHICH

WOULD DISCOURAGE VICTIMS OF DIS-

CRIMINATION FROM PRESENTING TITLE

VII CONTROVERSIES TO THE COURT

RATHER THAN BEING AWARDED AS PART

OF COSTS AS THE STATUTE PROVIDES

AND THUS ENCOURAGING SUCH VICTIMS

TO ACT AS PRIVATE ATTORNEYS GENER-

AL AND LITIGATE SUCH MATTERS AS

CONGRESS INTENDED AND FURTHER BE-

CAUSE THE DECISION BELOW IN THIS RE-

GARD CONFLICTS WITH THE DECISIONS

OF THE OTHER COURTS OF APPEAL AS TO

THE PROPER INTERPRETATION OF 42 U. S.

C. §2000e-50 (k).

The court below stated in its opinion [Appendix, p.

xvi} that:

“. . . [T)he attorney’s fee is excessive in view of

the action which we have taken, .. .”

Section 706(k) of Title VII of the act [42 U. S. C. §2000e-

5(k)], provides that:

“In any action or proceeding under this subchapter,

the court, in its discretion, may allow the prevailing

party ... a reasonable attorney’s fee as part of the

cost of the litigation.”

The purpose of this provision is to effectuate the Con-

gressional policy against racial discrimination. [Clark v.

17

American Marine Corp., 320 F. Supp. 709 (E. D. La. 1970),

aff'd 437 F. 2d 959 (5th Cir. 1971).} In discussing a similar

provision in Title II, the United States Supreme Court

observed that:

“If (the plaintiff} obtains an injunction, he does

so not for himself alone but also as a ‘private at-

torney general’, indicating a policy that Congress

considered of highest priority. If successful plain-

tiffs were routinely forced to bear their own attor-

neys’ few aggrieved parties would be in a posi-

tion to advance the public interest by invoking the

been categorized by the courts as that of a “private attorney

general.” {Bowe, supra, at 719 (7th Cir. 1969); see also

Jenkins v. United Gas Corp., 400 F. 2d 28, 33 (5th Cir.

1968); Clark v. American Marine Corp., supra.} Even where

the plaintif does not desire or succeed in obtaining injunc-

tive relief, it has been recognized that a valuable public

service has nevertheless been performed. {Parham v. South-

western Bell Tel. Co., 433 F. 2d 421 (8th Cir. 1970).] Simi-

larly, the Fifth Circuit in Clark v. American Marine Corp.,

supra, held that plaintiffs were entitled to an award of at-

torneys’ fees, notwithstanding the fact that they did not

r- F —

18

receive back wages, because they skillfully and successfully

proved a pattern of covert discrimination in employment.

Title VII was designed to provide that the final sanc-

tion would be judicial enforcement initiated by private liti-

gants. [42 U. S. C. §2000e-5(e); Rosenfeld v. Southern

Pacific Co., 444 F. 2d 1219, 1222 (9th Cir. 1971); Williams

v. General Foods Corp., 492 F. 2d 399, 406 (7th Cir. 1974);

Jenkins v. United Gas Corp., 400 F. 2d 28, 32 (5th Cir.

1968).] As the prevailing party in federal litigation is gen-

erally entitled to ordinary costs {Rule 54(d) Federal Rules

of Civil Procedure], Congress, in enacting Section 706(k),

apparently intended that the rule would encourage the pre-

sentation to the court of controversies involving Title VII.

Where a party prevails, therefore, the trial court may, in its

discretion, make sich award, as is supported by the evidence

and which it deems appropriate. [Schaeffer, supra. ]

The Petitioner was a successful litigant, insofar as his

theory of action was concerned. The trial court found that

Petitioner had proved a pattern and practice of covert dis-

crimination and a judgment, including an injunction against

the Respondent, U. S. Steel Corporation, was entered in his

favor on February 15, 1974. True, a consent decree entered

in another court [United States v. Allegheny-Ludlum In-

dustries, Inc., Civil Action No. 74-399, U. S. District Court,

Northern District of Alabama (April 12, 1974) } rendered

the granting of the earlier injunction by the trial court

perhaps unnecessary, but such a proceeding was clearly

collateral to Petitioner’s action and his counsel expended

no less time and effort reiterating his position in the trial

court proceeding that took place two months before the

entry of the consent decree.

In United States v. Allegheny-Ludlum Industries, Inc.,

63 F. R. D. 1 (N. D. Ala. 1974), a proceeding on application

for intervention, the court, with reference to the consent

decree in question, said:

“. .. these decrees, . . . it should be emphasized

court does recognize that these decrees may, as a

practical matter, impede, if not impair, some inter-

ests of private litigants . . . [I]t must be kept in

mind that resolution in this forum of issues between

the government and the defendants does not pre-

clude additional -- or even inconsistent — relief

in favor of private parties in other litigation.”

At 5-6 (Emphasis supplied.) [See also United

States v. Local Union No. 3, International Union

of Operating Engineers, 6 EPD {8946 (N. D. Cal.

1973. }

The Respondent contended both in the trial court and

the appellate court that it was not guilty of an unlawful

employment practice. Petitioner prevailed on that issue and

it is here contended that he is entitled to a reasonable at-

torneys’ fee, not dependent upon the damage award, but

as a part of costs as the statute suggests. Suggested guide-

lines for the computation of the award are set forth in the

American Bar Association's Code of Professional Responsi-

bility, Ethical Consideration 2-18, Disciplinary Rule 2-106.

[A recent Fifth Circuit decision which adopted standards

consistent with the ABA guidelines is Johnson v. Georgia

Highway Express, Inc., 488 F. 2d 714 (5th Cir., 1974).]

The reasonableness of the award is to be judged by the

abuse of discretion standard of review, {Weeks v. Southern

Bell Tel. & Tel. Co., 467 F. 2d 95 (5th Cir., 1972)] and

20

“. .. the amount of the award should not be such

that it would discourage others from seeking to at-

tack discriminatory practices.” [{Schaeffer, supra. |

The criteria observed by the trial court in this instance

are consistent with the broad remedial policy behind the

Act and with the specific factors recognized by the American

Bar Association [p. 19 supra]. The Petitioner prevailed on

all issues at trial and successfully defended his position as

to a discriminatory practice on appeal. The holding of the

court below that the attorneys’ fees were excessive because

of reduction of the back pay award is plainly inconsistent

with the language of the statute, with the intent of Con-

gress in enacting the provision, with the decisions in other

federal courts of appeal, and with decisions of the United

States Supreme Court.

CONCLUSION

For the foregoing reasons, Paul Muller, your Petitioner,

respectfully prays that his Petition for Certiorari be granted.

Respectfully submitted,

MORGAN, SCALLEY,

LUNT & KESLER

STEPHEN G. MORGAN

345 South State Street, Suite 200

Salt Lake City, Utah 84111

Attorney for Petitioner

i

APPENDIX

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 74-1161

PAUL MULLER, ;

ae Appeal from the Judg-

Plaintiff-Appellee, | " vent of the United

vs. | States District Court

for the District of

UNITED STATES STEEL t

CORPORATION Uiak, Gata rn

Defendant-Appellant. J} ~*~: *Y®

James B. Lee and Daniel M. Allred of Parsons, Behle &

Latimer, Salt Lake City, Utah, for Defendant-A

Stephen G. Morgan of Morgan, Scalley, Lunt & Kesler of

Salt Lake City, Utah, for Plaintiff-Appellee.

Before SETH, BARRETT, and DOYLE, Circuit Judges.

DOYLE, Circuit Judge.

United States Steel se. 3 reversal of a judgment rend-

ered by the United States District Court for the District

of Utah in favor of the plaintiff Muller. The court adjudged

that the Steel Company had discriminated against Muller

in its promotion policies in violation of Title VII of the

1964 Civil Rights Act, 42 U. S. C. § 2000e-2(a).

The main contention of United States Steel is that the

evidence at trial was legally insufficient to establish that

the plaintiff was a victim of discriminatory employment

practices toward plaintiff. So, our primary inquiry is

whether appellant company discriminated and whether ap-

pellee was shown to have been discriminated against. There

are other contentions which will be enumerated and dis-

cussed.

The plaintiff is of Spanish-American origin. He com-

menced working for United, States Steel in 1955 and con-

tinued until August 6, 1969. At present hel ives and works

in Albuquerque, New Mexico. He has not sought reinstate-

ment,

Plaintiff was employed at the Geneva Plant of United

States States Steel near Orem, Utah. His employment was

in the large diameter pipe mill. It was the admitted failure

of the company to promote plaintiff to a supervisory posi-

tion which led to the filing of this case.

The lowest supervisory position in the mill is the turn

foreman. If such a foreman is replaced by a production

employee on a temporary basis, he is given the position of

spell foreman but is still paid by the hour. Generally speak-

ing, in order for a production employee to become a turn

foreman he must have previously served as a spell foreman.

The spell foreman is selected from the shift in which a

vacancy occurs in a particular area of the mill. There are

three such areas in the diameter mill — the O. D. or hot

line area, the I. D. area and the finishing area. Muller’s

main qualifications, according to his testimony, were in

the O. D. or hot line area.

The selection of a spell foreman is made by the general

foreman, whose decisions are for practical purposes final,

although not necessarily so, for there exist no definite rec-

ognized criteria which govern the selection of a spell fore-

man. The general foreman consults the area foremen who

review the names on the crew schedule. The general fore-

man in making the selection considered the recommendation

of the area foreman, the ability of the individual to perform

‘is work, his ability to get along with people, leadership

ability, promptness, attitude toward the work and, finally,

experience. Such jobs are not published and thus the quali-

fications are not set forth in writing. Complaint is made

that the vagueness of the criteria lends itself to discrimina-

tory practices.

The population of the county from which the company

draws its labor force was 137,776 in 1970 of which 2,596,

or about 1.88%, were, according to the Census Bureau,

Spanish language or origin persons. However, the percent-

age of persons of Spanish origin who are employed in the

whole facility is far lower than the county-wide percentage.

This is apparent from the columnar analysis which is shown

below.’

1,

Geneva Works Geneva Works Pipe Mill Pipe Mill

Date Total Spanish-American Total S/A

1964 5,087 9 (.18%) 340 3 (.88%)

1964 4,856 ll (.23%) 282 3 (1.06%)

1965 3,774 9 (.24%) 331 3 (90%)

1966 4,617 10 (.22% 113 4 (3.64%)

1967 5,061 10 (.20%) 420 4 (95%)

1968 4,751 23 (.49%) 446 9 (2.02%)

1969 4,274 17 (40%) 91 6 (6.6%)

1970 4,472 (Not reported) 210 4 (1.9%)

1971 4,488 24 (.55%) 115 2 (1.74%)

1972 4,395 26 (.60%) 142 5 (3.5%)

1973 4,333 21 (.72%) 276 2 (.72%)

iv

From these figures it is also possible to infer for the

purposes of the pipe mill, at least, that the Spanish origin

people are not to any marked decree underemployed. It

is somewhat different, however, when promotions are con-

sidered. Mr. Muller, for example, though employed in the

pipe mill for fourteen years, was never chosen as a spell

foreman and no other Spanish-American person had been

chosen since at least 1963. Muller has testified that he was

in some cases assigned to the I. D. area instead of the O. D.

area or hot line area and that militated against his being

eligible for spell foreman in the hot line area. In any event,

during 1968 and 1969 the evidence showed that about 20-25

employees were selected as spell foremen, and in every in-

stance these were persons of Anglo origin. Fifteen of this

number had more seniority than Muller. There were 20

other employees who had more seniority than Muller who,

like Muller, were never selected as spell foremen.

The evidence further showed that Muller had five years

of welding experience prior to going to work for the defen-

dant. He completed his high school education and a course

in welding during his employ. He also was shown to have

undertaken leadership responsibilities in the community.

The instant charges were filed with the Utah Anti-

Discrimination Department on December 29, 1968 and Jan-

uary 28, 1969. No action was taken. In July, 1969 the large

diameter mill shut down and Muller worked as a laborer.

Just prior to the shutdown he worked as an arc welder. On

August 6, 1969, he terminated his employment and moved

to Albuquerque. His testimony was that the cause of this

was the unfair and discriminatory treatment he received

at the plant.

v

Trial was had starting February 8, 1974. The district

court found that the promotional system violated Title VII

in that it lent itself to discrimination and was not shown

to have been the product of business necessity. The court

went further. It found that Muller in addition had been

constructively discharged from his job in that Muller’s res-

ignation was not a matter of free choice; that it resulted

from discrimination. An award of $26,624.35 in back pay

was made plus $14,000 in attorney’s fees. Injunctive relief

was also granted, notwithstanding that this was not a class

action. Defendant was ordered to take affirmative steps to

adopt a non-discriminatory promotional system together

with meaningful standards.

The Steel Company’s main contentions are, first, that

the court erred in granting judgment for the plaintiff be-

cause of the absence of a finding that plaintiff himself was

discriminated against. Secondly, the court’s judgment is

based on, so its is argued, the theory that opportunity to

discriminate constitutes a violation of Title VII. Third, it

is contended that the evidence is insufficient to establish

discrimination against the plaintiff. Complaint is also made

about the holding that there was a constructive discharge,

and at last it is argued that the damages are excessive and

that the court erred in issuing general injunctive relief

since it was not a class action. Most but not all of the

points urged will be reviewed.

I,

WHETHER THE EVIDENCE ESTABLISHED

THAT PLAINTIFF WAS DISCRIMINATED

vi

AGAINST ON THE BASIS OF HIS ETHNIC

ORIGIN.

Plaintiff’s-appellee’s complaint is that the failure to

appoint him a spell foreman constiuted a violation of Title

VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2.?

The Steel Company maintains that the statistics are incon-

sequential pointing out that the number of Spanish origin

persons in the community is small and that it employs a

representative percentage. However, the cases hold that this

is not sufficient to disprove discrimination; that deprivation

of employment opportunities can also exist as a result of

failure to promote.’

The use of statistics capable of raising inferences of

employment discrimination is now a well recognized aid

in proof in cases of this type. One of the early definitive

2. That section provides:

It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color religion, sex, or national

origin; or

(2) to limit, -gregate, or classify his employees or applicants

for employment in any way which would deprive or tend to deprive

any individual of employment opportunities or otherwise adversely

affect his staus as an employee, because of such individual’s race,

color, religion, sex, or national origin.

*. Baxter v. Savannah Sugar Refining corp., 495 F. 2d 437 (5th Cir.

1974); United States v. N. L. Industries, Inc., 479 F. 2d 354 (8th Cir.

1973); United States v. St. Louis-San Franciseo Ry. Co., 464 F. 2d 301

(8th Cir.), cert. denied, 409 U. S. 1107, 116 (1972); Brown v. Gaston

County Dyeing Machine Co., 457 F. 2d 377 (4th Cir.), cert denied, 409

U. S. 982 (192); Rowe v. General Motors Corp., 457 F. 2d 348 (5th Cir.

1972); Marquez v. Omaha Dist. Sales Office, Ford Div. of Ford Motor

Co., 440 F. 2d 1157 (8th Cir. 191); Jones v. Lee Way Motor Freight,

Inc., 431 F. 2d 245 (10th Cir.), cert. denied, 401 U. S. 954 (1970).

decisions in this field is that of our court in Jones v. Lee

Way Motor Freight, Inc., 431 F. 2d 245 (10th Cir.), cert.

denied, 401 U. S. 954 (1970) applied in Spurlock v. United

Airlines, 475 F. 2d 216 (10th Cir. 1972). There the employer

had two categories of truck drivers. These were line or

over the road and, secondly, city drivers. The line driver

positions were superior in that they paid higher wages and

had other benefits as well. The two categories were treated

in separate union contracts and there was a no transfer

policy from city driver to line driver. The plaintiffs in

Jones were black persons and city drivers who had sought

and been denied transfer. The allegation of the complaint

was that the application of the rule, although on its face

it appeared as a neutral non-transfer policy, in practice dis-

criminated against them. The decision was that the evi-

dence sufficiently established that the effect of the policy

was discrimination since no Negro had been appointed as

a line driver between 1964 and 1968. All black drivers were

city drivers and, although there were some white drivers

in the city category, the vast majority of the total white

drivers were in the line category.‘

In reversing the judgment of the district cuurt the

*. On this the court said:

The company argues that because the no-transfer policy locks

in white as well as Negro city drivers, it is not discriminatory.

Roughly 80% of the white drivers were employed as line drivers.

The 20% hired as city drivers presumably had the opportunity to

apply as line drivers but either were not qualified or preferred city

work. In any event, race was not a determinative factor in their

employment as city drivers, as it was with the Negroes. Although

the no-transfer provisions may have the same ultimate effect on

both white and Negro city drivers, the difference in the factors

underlying their initial employment as city drivers is sufficient to

make the policy discriminatory as to the latter but not the former.

opinion of this court recognized that the existence of a

superficially neutral policy did not serve as a sufficient

explanation; that it had an inherently discriminatory effect.

It was recognized in the court’s opinion authored by Judge

Breitenstein that the statistics constituted a prima facie

case which required that employer to affirmatively show

that business necessity required continuation of the policy.°

The showing of the company was held to be insufficient.

The standards employed in Jones were fully recognized

in our subsequent decision, Spurlock v. United Airlines,

supra. In addition, it was there pointed out that specific

intent to discriminate was not necessary; that it was suffi-

cient if discriminatory criteria were employed deliberately

and not accidentally.

In the case at bar the statistics are less dramatic than

were those in Jones particularly as to discrimination in the

hiring of Spanish-Americans. However, we view methods

employed in promotions as sufficient to establish a prima

facie case. Also, the statistics were sufficient to shift the

burden of going forward with the evidence to the employer.

There is an added factor here and that is the existence

of vague and inconclusive criteria in promotion decisions.

We refer to the selection of the spell foreman being made

5. The court’s further statement was:

The remedial nature of Title VII requires the adoption of the busi-

ness necessity test. If employers or unions could pursue, upon a

showing of mere rationality, neutral policies which have the effect

of perpetuating past discrimination, the value of the principles de-

veloped in Quarles and subsequent casesc would be eroded. When

a policy is demonstrated to have discriminatory effects, it can be

justified only by a showing that it is necessary to the safe and

efficient operation of the business. See Local 189, United Paper-

workers v. United States, supra, 416 F. 2d at 989.

ix

by the general foreman in his uncontrolled discretion. True,

he must have the approval of his superiors but disapproval

from this source is rare. The big element in the general

foreman’s decision is the recommendation given by the front

line foreman.

Plaintiff-appellee relies on statistical facts and empha-

sizes especially that no Spanish-American has ever been

promoted to the position of spell foreman or temporary

foreman, the essential step to becoming a supervisory em-

ployee.

The Company asserts that one person of Spanish- Amer-

ican ancestry is a foreman. But this does not prove a lack

to the position. He was transferred as foreman from the

West Coast plant of United States Steel.

Opposed to the lack of evidence of promotion of Spanish

origin persons, the record shows that appellant promoted

20-25 persons of Anglo origin to the position of spell fore-

man during the year 1968-69 alone. It is surprising that

not a single Spanish person was assigned to this position

during this same period. While these statistics are not over-

whelming, they are not to be ignored.

The law is clear that a plaintiff in a job discrimination

case need not prove that the employer had a specific intent

to discriminate. It is sufficient that the employer’s conduct

produced discriminatory results. See Jones v. Lee Way

Motor Freight, supra. See also Spurlock v. United Airlines,

supra. Where, as here, there are circumstances showing

discrimination, a prima facie case exists. At bar there is

the added factor — the lack of meaningful standards to

guide the promotion decision, whereby there is some assur-

ance of objectivity. Such personal and subjective criteria

Aud where, as here, the results give a strong indication

that discrimination is being practiced, the cases condemn

subjective standards which United States Steel had in this

case. See United States v. N. L. Industries, Inc., 479 F. 2d

354 (8th Cir. 1973); Brito v. Zia Co., 478 F. 2d 1200 (10th

Cir. 1973); Brown v. Gaston County Dyeing Machine Co.,

457 F. 2d 1377 (4th Cir. 1972); Rowe v. General Motors

Corp., 457 F. 2d 348 (5th Cir. 1972); Parham v. Southwest-

ern Bell Tel. Co., 433 F. 2d 421 (4th Cir. 1970); United

States v. Sheet Metal Workers, Local 36, 416 F. 2d 123 (8th

Cir. 1969).

Rowe v. General Motors Corp., swpra, is a case which

like ours involved vague standards. The standards there

applied to the transfer of employees from jobs paying

hourly wages to salaried jobs. The Fifth Circuit delineated

five aspects of the defendant’s transfer methods. These

wer:

(i) The Foreman’s recommendation is the indis-

ee See ee apeaes Cater te Ee gee

motion process,

(ii) Foremen are given no written instruction

ne > Se alee eee Se

motion. (They are given nothing in writing telling

them what to look for in making their recommen-

dations).

(iii) Those standards which were determined to

be controlling are vague and subjective.

(iv) Hourly employees are not notified of pro-

xi

motion opportunities nor are they notified of the

qualifications necessary to get jobs.

(v) There are no safeguards in the procedure de-

signed to avert discriminatory practices.

Id. at 358-59.

More important, the court held that these factors in addi-

tion to the statistical indicia of the presence of discrimina-

tion made out a prima facie case. In our case the standards

were equally vague and subjective. This plus the fact that

no person of Spanish-American origin was, as far as we

know, ever promoted are enough in our case also to establish

a prima facie case that defendant-appellant unlawfully dis-

criminated against Spanish-Americans and against the

plaintiff-appellee.

Il.

WHETHER BUSINESS NECESSITY EXISTED.

The remaining liability issue ic whether these actions

were justified. In the leading case on this defense, Griggs

v. Duke Power Co., 401 U. S. 424 (1971), the Supreme

Court said that unless an exclusion rule is related to job

performance it is prohibited. From this the doctrine of

business necessity has developed. Under it the. employer

may rebut a prima facie case of the employee by showing

that the maintenance of safety and efficiency requires the

practice which obtains. Thus, in Spurlock v. United Air-

lines, supra, the plaintiff had alleged that he had been dis-

criminated against when he was not given a job as a flight

officer. The defendant was able to counter with specific

xii

criteria which had been required of all flight officers such

as a college degree, a commercial pilot’s license, 500 hours

of flight time and age between 21 and 29 years old. The

court held that the failure of the applicant to meet these

justified his rejection in the interest of safety and efficiency.

Other cases enunciate this business necessity doctrine

in a more limited manner. The Second Circuit has held that

the doctrine must mean more than transfer and seniority

policies serve legitimate management functions. The court

went on to say that if the ends of safety and efficiency are

served by a reasonably available alternative method having

less discriminatory effects, “then the present policies may

not be continued.” United States v. Bethlehem Steel Corp.,

446 F. 2d 652 (2d Cir. 1971). See also United States v. St.

Louis-San Francisco Ry. Co., 464 F. 2d 301 (8th Cir. 1972) ;

United States v. Jacksonville Terminal Co., 451 F. 2d 418

(5th Cir. 1971); Robinson v. Lorrilard Corp., 444 F. 2d 791

(4th Cir.), cert. denied, 404 U. S. 1906 (1971).

United States Steel has not shown business necessity

or any other justification for its failure to promote plaintiff

and other Chicano people to the position of spell foreman.

It has not been shown that efficiency or safety or any other

of the company’s interests are served by this system which

depends on hunch judgments rather than specific criteria.

Judged by any of the mentioned standards, then, the prima

facie case of Muller has not been rebutted.

The Company also argues that, even assuming vhe ex-

istence of discrimination, Muller failed to prove that he

was personally discriminated against. It is said that the

people who were appointed were all more competent than

xiii

Muller. Here again there is no basis for so concluding where

there is a palpable lack of objective standards. The trial

court found that Muller was not considered for the position,

he had clearly held the highest ranking position below the

be said in view of the results and the lack of criteria that

the trial judge’s ultimate holding that Muller had been

discriminated against was clearly erroneous.

III.

WAS THERE A CONSTRUCTIVE DISCHARGE

OF PLAINTIFF?

In our opinion the ruling that constructive discharge

took place was error. This doctrine exists when an employer

deliberately renders the empliyee’s working conditions in-

tolerable and thus forces him to quit his job. See J. P.

Stevens & Co., Inc. v. NLRB, 461 F. 2d 490 (4th Cir. 1972).

Plaintiff would have us rule that the Steel Company’s re-

fusal to consider him as spell foreman and its assignment

of him to an area which made it impossible for him to be-

come spell foreman created intolerable conditions which

satisfied the requirement of constructive discharge. We

are persuaded, however, that his reassignment and the other

actions complained of were not designed to coerce his res-

ignation. True, just prior to his resignation he was down-

graded to laborer, but this was a result of the large diame-

ter mill closing temporarily.

We are not saying that this constructive discharge doc-

trine which developed in labor cases is inapplicable to civil

xiv

rights cases, Cf. Colorado Civil Rights Com’n v. State, 30

Colo. App. 10, 488 P. 2d 83 (1971). In the Stevens case,

supra, there was evidence that an employee who had favored

the union during an organizing effort was harassed by man-

agement and the court had no difficulty finding a construc-

tive discharge. This has been found in other cases. See for

example NLRB v. Century Broadcasting Corp., 419 F. 2d

771 (8th Cir. 1969) and NLRB v. Tennessee Packers, Inc.,

Frosty Morn Div., 339 F. 2d 203 (6th Cir. 1964). In each

of these cases there was extrinsic evidence to establish thet

an effort had been made to render the job so unattractive

and unpleasant so as to justify the finding that the resig-

nation was a constructive firing.

An example of a case in which the evidence was inade-

quate was Steel Industries, Inc. v. NLRB, 325 F. 2d 173

(7th Cir. 1963), wherein it was said that the evidence did

not even establish a strong suspicion as to the existence of

a scheme to get rid of the employee in question.

Similarly, in the present case, there is a dearth of evi-

dence to show a deliberate effort to make things difficult

redpetr pr patty ‘gaa Hence,

the proof of constructive discharge fails

IV.

EFFECT OF THE FAILURE OF THE CON.

TENTION OF CONSTRUCTIVE DISCHARGE

ON THE DAMAGE AWARD.

Unless appellant was constructively discharged, he

would not be entitled to damages in the form of back pay,

interest and retirement from the date of leaving the Steel

~

xV

Company’s employ. His damage would be measured by the

difference between actual pay and the amount he would

have made if he had been chosen as spell foreman during

the period from September 17, 1967 until he quit, August

6, 1969. There is no evidence in the record which could be

used for this purpose. Hence, this will necessitate remand.

The Steel Company says that the damages were excessive

even if there was a constructive discharge. The court ap-

plied the formula testified to by an expert witness, Mr.

Caldwell. Defendant’s evidence consisted of the pay record

of an employee who was only slightly senior to Muller. It

claimed that since Muller had less seniority he could not

have earned more than this other employee. This is one

point which we need not consider.

The Steel Company makes the added contention that

Muller’s award cannot be based on the 1968-69 base period

because if he had not quit he would have worked in lower

paying jobs and would have been laid off more often. We

do not believe, however, that these figures for the period

in question were erroneously adopted by the court in the

face of the inconsequential evidence offered by the com-

pany.

In our view, the granting of general injunctive relief

applicable to the entire class was not appropriate because

the plaintiff had not sought prospective injunctive relief

for himself. Therefore, no basis existed for such relief as to

the other persons who had not asserted claims of this nature.

In any event, a consent decree has been entered in a suit

brought by the United States and, therefore, virtually the

same relief was given. We see no occasion for an injunction

or ancillary remedy in this case.

xvi

It is our conclusion, then, that the judgment of the

district court should be affirmed in part and reversed in

part and that the action should be remanded for further

It is our further conclusion that the attorney’s fee is ex-

cessive in view of the action which we have taken, and it

is ordered that this part of the judgment be also vacated

and reconsidered in the light of the results achieved. It is

so ordered.

JANUARY TERM — FEBRUARY 5, 1975

Before The Honorable Oliver Seth, The Honorable James

E. Barrett and The Honorable William E. Doyle, Circuit

Judges.

.

Plaintiff-Appellee,

vs. ‘ No.

UNITED STATES STEEL CORPORA- #1161

TION,

Defendant-Appellant.

PAUL MULLER,

This matter comes on for consideration of the petition

for rehearing filed by the appellee in the captioned cause.

Upon consideration whereof, the appellee’s petition for

rehearing is denied.

A true copy

Teste

HOWARD K. PHILLIPS

Clerk, U. S. Court of Appeals,

Tenth Circuit

MARY A. SHERMAN

Deputy Clerk