Petition — Martin Sweets Co. v. Jacobs

Ne Gout, US

=“ TULLE Db

MAR 31 )977

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No, 76-

46° 13847

THE MARTIN SWEETS COM"ANY, INC. .- Petitioner

versus

ROSE M. JACOBS - - - - «+ Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD D. RAY

JOHN 8. REED

3300 First National Tower

Louisville, Kentucky 40202

Counsel for Petitioner, The Martin

Sweets Company, Ine.

WESTERFIELD-BONTE CO., 619 W. KENTUCKY=<?.0. BOX 3481, LOUISVILLE, KY.

PAGE

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DEIN & be whewitins sin. nins S84 diene Cideek ade ice 2

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Reasons for Granting the Writ..................... 6-13

I bs Vonertekdusvabvansdukas<epssacasecnes 13-14

Appendix A—Judgment, United States Court of Ap-

peals for the Sixth Circuit, filed Febru-

— 9° PPP TTITIT Te A 1-A 2

Appendix B—Opinion, United States Court of Ap-

peals for the Sixth Circuit, filed Febru-

SEE Ei ic'c ce vauide cbuucsndaced A 3-Al7

Appendix C—Findings of Fact and Conclusions of

Law, United States District Court for

the Western District of Kentucky,

entered August 18, 1975........... A18-A23

Appendix D—Judgment, United States District Court

for the Western District of Kentucky,

entered August 18, 1975...........46. A24

Appendix E-.Amended Judgment, United States Dis-

trict Court for the Western District of

Kentucky, entered September 10,

Sees Soverscesconcscbetweeseuk A25-A26

Appendix F—Order Staying Mandate, United States

Court of Appeals for the Sixth Cireuit,

entered March 8, 1977........ 66000005 A27

TABLE OF AUTHORITIES iii

Other Authorities: PAGE

Cases: men EEOC Dee. No. 76-67, 2 CCH Employment Practices mA

vs ~ | Guide 6493 (March 2, 1976)...... 0.666 c ee eees

Gaivoue s. heen meen ene Gane rv EEOC Dee. No. 76-75, 2 CCH Employment Practices

trict, 371 F. Supp. 27 (N.D. Miss. 1973), aff’d, 0

507 F. 2d 611 (5th Cir.), cert. granted, 433 U. 8. Guide 16495 (March 2, 1976). ...... 0.60 e eevee 1

820, 96 S. Ot. 33, 46 L. Bd. 2d 37 (1975), petition

for cert. dismissed, 425 U. 8. 559, 96 8. Ct. 1752,

Fw | £ FY, | RRS 6-7

General Electric Co, v, Gilbert, 429 U. 8. ——, 97

S. Ct. 401, 50 L. Ed. 2d 348 (1976). ..5, 7,8, 11, 12, 14

Griggs v. Duke Power Co., 401 U. 8. 424, 91 8. Ct.

849, 26 L. Hd. 24 158 (1971)..... 0... cece eee 11

Harper v. Trans World Airlines, Inc., 525 F. 24 409

SG GUIs 5 -0'k. 0 cus 0 000-0 bunks Gadice tide 8, 12

Phillips v. Martin Marietta Corp., 400 U. 8. 542, 91

S. Ct. 496, 27 L, Ed. 2d 618 (1971).......... 7, 10, 11

Skinner v. Oklahoma, 316 U. 8, 535, 62 8. Ct. 1110,

Fe S&S F, RPE rr rrr rT 11

Smith v. Liberty Mutual Insurance Co., 395 F. Supp.

BERD CHAE SPER i wesvesccovlickeddcebes 10

Sprogis v. United Air Lines, Inc., 444 F. 2d 1194

(7th Cir.), cert. denied, 404 U. 8. 991, 92 8. Ct.

536, 30 L. Ed. 2d 548 (1971)...... cece eee eeeees 9

Stroud v. Delta Air Lines, Inc., 544 F. 2d 892 (5th

GOR. TGED ocncedea cWakecsncccasuaebsekewns 10

Tuck v. McGraw-Hill, Inc., 421 F. Supp. 39 (8.D.

SA EEE Ku cotalcacdvsdenansnetostencen tase 8

Voyles v. Ralph K. Davis Medical Center, 403 F.

Supp. 456 (N.D. Cal. 1975).........cceeeenees 10, 11

Wardlaw v, Austin Independent School District, 10

FEP Cases 892 (W.D. Tex. 1975)............. 8

Statutes:

United States Constitution, Fourteenth Amendment 7, 12

SP Be END 06 vc ccodpuschacnaeetbes secces 2

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

See GE COR e vcccvedbccddetcdbivecddcneece passim

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-

THe Martin Sweets Company, Inc. - Petitioner

v~.

Rose M.Jacops - - - - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, The Martin Sweets Company, Ince.

(‘‘Sweets’’ or ‘‘Petitioner’’), by counsel, respectfully

prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the

Sixth Circuit entered in this ease on February 11, 1977

(App. A, infra, pp. Al-A2).

OPINIONS BELOW

The opinion of the Court of Appeals authored by

the Honorable Jack R. Miller, Judge, United States

Court of Customs and Patent Appeals, sitting by desig-

nation (App. B, infra, pp. A3-A17) was filed on Febru-

2

ary 11,1977. It is reported at 14 FEP Cases 687 but is

not yet officially reported. The opinion of the District

Court (App. C. infra, pp. A18-A23) was entered on

August 18, 1975, and is unreported.

JURISDICTION

On February 11, 1977, the Court of Appeals issued

its opinion and judgment (respectively, App. B, infra,

pp. A3-A17, and App. A, infra, pp. Al-A2) affirming

the decision of the United States District Court for the

Western District of Kentucky (judgment, App. D,

infra, p. A24; amended judgment, App. E, infra, pp.

A25-A26). The mandate, which would have been issued

in the normal course on March 4, 1977, has been stayed

by order of the Court of Appeals (App. F, infra, p.

A27) until April 1, 1977, pending the filing of this peti-

tion. The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

QUESTION PRESENTED

Does a private employer violate Title VII of the

Civil Rights Act of 1964 by terminating an unwed

pregnant employee for engaging in non-marital sexual

activity of which the employer disapproves?

STATUTE INVOLVED

The relevant portion of Section 703 of Title VII of

the Civil Rights Act of 1964, as amended (42 U.S.C.

§2000e-2(a)(1)), is set forth below:

3

See. 703. (a) It shall be an unlawful employ-

ment practice for an employer—(1) to fail or re-

fuse to hire or to discharge any individual or other-

wise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individ-

ual’s race, color, religion, sex, or national origin;

STATEMENT OF THE CASE

This case presents a novel question involving the

administration and enforcement of Title VII of the

Civil Rights Act of 1964 which has never been decided

by this Court: whether, absent a showing of dissimilar

treatment of similarly situated men and women em-

ployees, the provisions of Title VII of the Civil Rights

Act of 1964 prohibit a private employer from transfer-

ring or terminating a pregnant unwed employee be-

cause of that employee’s non-marital sexual activities ?

Petitioner Sweets is a small, closely held corpora-

tion which employs approximately sixty persons and

manufactures light machinery at a single plant and

office located in Louisville, Kentucky. The operation of

the company reflects the high moral standards and

beliefs of its founder and principal shareholder.

Rose Jacobs was an unmarried employee of Sweets

who learned in August, 1972, that she had recently

become pregnant. Within a matter of days her condi-

tion was common knowledge throughout the plant. She

had voluntarily revealed her unwed pregnant status not

through the physical development of her pregnancy,

4

but by talking with several friends at the plant. Her

employer learned of her non-marital sexual activities

in the same way, and when asked, Jacobs confirmed this

information to her superior.

Jacobs’ superior was aware of the high moral

standards of the company and felt that the head of

the company wouid not countenance such improper and

immoral sexual conduct on the part of an employee;

therefore, Jacobs was given notice of termination.’ She

was not terminated pursuant to that notice; instead,

for a number of related and unrelated reasons shown

in the record, she was transferred from her position as

secretary in the executive offices to another clerical

position in the purchasing department with the same

wages, hours, benefits and other perquisities as her.

original job. Jacobs left her employment shortly

thereafter.

Jacobs obtained a letter from the EEOC authoriz-

ing an action against Sweets, and she filed in the Dis-

trict Court an action under Title VII including, inter

alia, an individual claim of sex discrimination based

1The testimony of Respondent Jacobs on direct examination by

her counsel at trial revealed that Jacobs was at most five weeks

t at the time she was given notice of termination. Jacobs

testified that her superior said, and that it was common knowledge

among employees, that the company was a highly religious organiza-

tion and that the head of the company would not accept such

‘‘goings-on.’’ Jacobs also testified that, when she asked for time to

consider whether or not to have the child, her superior told her

that whether she decided to terminate her pregnancy was of no

moment to the employment decision at hand. Transcript of the

Proceedings, July 17, 1975, pp. 39-41, 57, 103. Part, but not all, of

this evidence is recited in the opinion of the Court of Appeals

(App. B, infra, p. A5).

5)

upon the alleged termination.’ After a trial without a

jury, the court found that Jacobs had been ‘‘terminated

and/or constructively terminated’’ because she was

‘pregnant and unmarried’’ (App. C, infra, p. A21).

The District Court held that Sweets’ actions constituted

discrimination on the basis of sex prohibited by Title

VII (App. ©, infra, pp. A21-A22).

Sweets appealed to United States Court of Appeals

for the Sixth Cireuit. After briefing and oral argu-

ment of the case before that court, this Court rendered

its opinion in General Electric Co. v. Gilbert, 429 U. 8.

——, 97 8. Ct. 401, 50 L. Ed. 2d 343 (1976). On Sweet’s

motion, the Sixth Circuit accepted briefs respecting

the appropriate application of the General Electric

holding to the instant case. Sweets, Jacobs, and EEOC

as amicus all filed such briefs.

The Court of Appeals affirmed the holding of the

District Court, while acknowledging that neither court

had required Jacobs to show dissimilar treatment of

men and women similarly situated, i.e., that the em-

ployment actions taken with respect to her would not

have been taken with respect to a male who had engaged

in non-marital sexual practices or preferences (App. B,

infra, p. Al2). The General Electric case was

*The complaint also alleged a violation of Title VII in the

terms and conditions of Sweets’ employment policy regarding

pregnancy including paid sick leave and medical expenses benefits.

Jacobs sought to maintain this claim as a class action. After initi-

ally granting Jacobs’ request for a class certification, the District

Court, citing lack of standing and failure to meet class action re-

quirements, declined to certify a class and refused to consider

Jacobs’ individual claim of discrimination with regard to paid

sick leave and medical expenses benefits (App. E, infra, p. A26).

The Sixth Cireuit affirmed on the same grounds (App. B, infra,

pp. Al4-Al6).

6

relegated to a footnote because it was said to deal only

with employee benefits cases and because the Court of

Appeals wished to limit any possible effect of General

Electric exclusively to such cases (App. B, infra,

p. Al2 n, 12).

The Sixth Circuit rejected an argument that the

action taken by Sweets was, in fact, based not upon

Jacobs’ gender but upon a reaction to Jacobs’ sexual

practices which Sweets considered to be improper and

immoral. The courts below never found, and Jacobs

never sought to prove, that Sweets had any policy or

practice, neutral on its face, which had any gender-

based discriminatory effect. Rather, the holding below

is that solely because Jacobs was pregnant and preg-

nancy is unique to women, Sweets’ action constituted

some sort of per se violation of the sex discrimination

provision of Title VII.

REASONS FOR GRANTING THE WRIT

The rule of law applied by the Court of Appeals for

the Sixth Circuit in this case will result in a finding of

sex discrimination under Title VII every time an

adverse employment action is taken with respect to a

pregnant employee. Although this Court has never

directly addressed the precise factual and legal ques-

tion posed by this case,* the decision of the Court of

‘This Court granted a petition for writ of certiorari in one case

involving refusal to hire or rehire employees because they were

unwed parents of illegitimate children, but then dismissed certiorari

as improvidently granted, apparently on grounds inapplicable to

this case, Andrews v. Drew Municipal Separate School District, 371

(Footnote continued on following page)

7

Appeals is in direct conflict of principle with decisioiis

of this Court and others cited herein, especially with

regard to the standards and analysis to be applied in

Title VII sex discrimination cases.

The Court of Appeals has improperly expanded the

scope of the sex or gender discrimination provision of

Title VII to include a prohibition against employment

actions taken on grounds other than the employee’s

gender. If allowed to stand, the Sixth Circuit’s un-

warranted extension of Title VII in this case will not

only prejudice Petitioner, but will also constitute a

dangerous intrusion into the freedom of every private

employer to establish and maintain employment stand-

ards or to take employment actions which do not dis-

criminate between men and women on the basis of sex

or gender.

Every Title VII sex discrimination decision of this

Court beginning with Phillips v. Martin Marietta

Corp., 400 U. 8. 542, 91 8. Ct. 496, 27 L. Ed. 2d 613

(1971), and continuing through General Electric Co. v.

Gilbert, 429 U. S. —_, 97S. Ct. 401, 50 L. Ed. 2d 343

(1976), has turned upon whether the employee estab-

lished dissimilar treatment of males and females.‘ This

Court has equated the term ‘‘sex’’ in Title VII with the

(Footnote continued from preceding page)

F. Supp. 27 (N.D. Miss. 1973), aff’d, 507 F. 2d 611 (5th Cir.),

cert. granted, 423 U. 8. 820, 96 S. Ct. 33, 46 L. Ed. 2d 37 (1975),

petition for cert. dismissed, 425 U. 8. 559, 96 S. Ct. 1752, 48 L. Ed.

2d 169 (1976). Although Drew raised questions of public, not

private, employment and the Fourteenth Amendment, not Title

VII, the District Court below cited the opinion of the district court

in Drew (App. C, iafra, p. A22).

*When such a showing has been made, as in Phillips, this Court

has held that a prima facie case of discrimination has been made

out and has allowed the employer an opportunity to rebut it by

(Footnote continued on following page)

8

less emotional term ‘‘gender’’ as used in the General

Electric opinion and has reiterated that the burden of

establishing gender-based discrimination is upon the

employee. 429 U. 8. at ——, 50 L. Ed. 2d at 355 n, 14.

Both the District Court and the Court of Appeals

apparently were blinded by the words ‘‘sex’’ and

‘*pregnancy’’ for they failed to consider whether Jacobs

was an employee who was terminated because she was

female or simply a female employee who was ter-

minated for a sex-neutral reason. The courts below at

most felt that it was against the purpose and ‘‘policy’’

of Title VII to terminate Jacobs, but they did not re-

quire her to establish a case of gender-based discrimina-

tion under Title VII (App. B, infra, p. A12).°

(Footnote continued from preceeding page)

justifying its gender-based discriminatory classification as a bona

fide occupational qualification. On the other hand, as in General

Electric, when the Court has determined that there is no showing

of dissimilar treatment of males and females similarily situated, the

Court has held that there is no rs facie case of gender-based

discrimination and no violation of Title VIT. The judicial inquiry

ends at that point. The Sixth Circuit simply skipped the prima

facie case stage by not requiring Jacobs to » Mn dissimilar treat-

ment of men and women. See Harper v. Trans World Airlines,

Inc., 525 F. 2d 409, 411 (8th Cir, 1975), cited and applied in Tuck

v. McGraw-Hill, Inc., 421 F. Supp. 39, 44 & n. 6 and 7 (8.D. N.Y,

1976), which comports with the test as practiced by this Court and

conflicts with the analysis of the Sixth Circuit.

*The Court of Appeals totally ignored and failed to distinguish

the cogent reasoning of the district court in Wardlaw v. Austin

Independent School District, 10 FEP Cases 892 (W.D. Tex. 1975),

which held that a school district did not violate Title VII by

transferring a pregnant unmarried teacher to a non-teaching posi-

tion where there was no evidence that the teacher had been treated

any differently than would have been a single male teacher whose

status as an expectant parent became known to school officials. The

Sixth Circuit simply said that the facts of that case were different

(App. B, infra, p. Al3),

®*The error of the Court of Appeals in confusing the analysis

of the prima facie case under Title VII with affirmative defenses

(Footnote continued on following page)

Jacobs did not even attempt to show that Sweets

discriminated against her as a woman. The record

shows that Sweets did take action with respect to Jacobs

because of her non-marital sexual activities, but there is

no evidence, nor was there a finding, that as a male she

would have been treated any differently.’ Title VII

does not limit the freedom of a private employer to

terminate an employee who engages in non-marital as

opposed to marital sexual activities. A private em-

ployer is free to make employment decisions based upon

his beliefs about matters of sexual activity or prefer-

ence so long as the actions do not have a gender-based

discriminatory effect. Thus it has been held that he

may take employment actions which differentiate

among persons as to parenthood (expectant or actual)

» (Footnote continued from preceding page)

which may be raised in rebuttal (App. B, infra, pp. Al3-A14) is

exposed in the dissent in Sprogis v. United Air Lanes, Inc., 444 F,

2d 1194, 1202-1206 (7th Cir. 1971) (dissent of Stevens, Circuit

Judge), cert. denied, 404 U. 8, 991, 92 8S. Ct. 586, 30 L. Ed, 2d 543

(1971). There it is stated that the initial mony under §703(a) (1)

of the Act, never fairly faced by the Court of Appeals in this case,

is simply whether the employment action constitutes ‘‘. . . treat-

ment of a person in a manner which but for that person's sex would

be different.’’ 444 F. 2d at 1205.

The record shows that other pregnant employees of the com-

pany, all of whom were married, were allowed to remain with the

company and that there was never any adverse employment action

taken because of the pregnancies of these women. One such em-

ployee was even hired while p ant. Transcript of the Procced-

ings, July 17, 1975, pp. 188-89. In light of this and other evidence

in the record (see n. 1, supra) it is absurd to say, as did the

Court of Appeals (App. B, infra, p. A13), that the District Court's

finding of termination because of unwed pregnancy did not amount

to a finding of termination because of non-marital sexual activity.

This misconstruction of the case kept the Court of Appeals from

iving that there had been no showing that men and women

had been treated dissimilarly.

10

versus non-parenthood,* marriage versus an unmarried

status,” and homosexuality versus heterosexuality.’

Furthermore, the discharge of a transsexual after a sex

change operation" and the discharge of a male with

effeminate traits’? have been held to be lawful under

Title VII.

These characteristics may appear alone or in combi-

nation in any individual, i.e., unmarried heterosexual

expectant parent (Jacobs), but so long as the employ-

ment decision of the private employer is not made on

the basis of the employee’s sex, the employer may

terminate employees on the basis of one or more of the

above distinctions. The efforts in Congress in the past

as well as in the current session to extend Title VII, or

otherwise to provide protection from distinctions with

regard to sexual practices, marital status and preg-

®See Phillips v. Martin Marietta Corp., 400 U. 8, 542, 91 8. Ct.

496, 27 L. Ed. 2d 613 (1971), where sex discrimination was found

only because the differentiation was made between men with chil-

dren and women with children, not because of the distinction be-

tween parents and childless persons of both sexes.

%¢.9., Stroud v. Delta Air Lines, Inc., 544 F. 2d 892 (5th Cir.

1977).

1MBEOC Dec. No. 76-67, 2 CCH Employment Practices Guide

6493 (March 2, 1976) ; EEOC Dee. No, 76-75, 2 CCH Employment

Practices Guide 6495 (March 2, 1976), wherein it is stated;

: . in the instant case Charging Party alleges unlawful

employment discrimination based on his homosexuality, a con-

dition which relates to a person’s sexual proclivities or prac-

tices, not his or her gender; these two concepts are in no way

onymous. There [is] no support in either the or

the legislative history of the statute for the proposi that

in enacting Title VII C was intended to include a

person's sexual practices within the meaning of the term ‘‘sex’’

. , « p. 4266 (Emphasis in original).

11Voyles v. Ralph K. Davis Medical Center, 403 F. Supp. 456

(N.D. Cal, 1975).

128mith v. Liberty Mutual Insurance Co., 395 F. Supp. 1098

(N.D. Ga, 1975).

11

nancy itself, are indicative of the limited coverage of

the word ‘‘sex’’ in the present statute.” It is very

clear that the term ‘‘sex’’ (as in gender) when listed

with race, religion, color and national origin, does not

include sexual practices or preferences, marital status,

or parental status, expectant or actual.

In refusing to accept Sweets’ argument that there

was no violation of Title VII because Jacobs failed to

show dissimilar treatment of males and females simi-

larly situated, the Court of Appeals (a) paid lip service

to but ignored and refused to apply General Electric

as to the effect of the EEOC pregnancy guideline and

the burden and standard of proof in a sex discrimina-

tion case under Title VII; (b) cited as authority

Phillips v. Martin Marietta Corp., 400 U. 8. 542, 91

8. Ct. 496, 27 L. Ed. 2d 613 (1971), and Griggs v. Duke

Power Co., 401 U.S. 424, 91 8. Ct. 849, 28 L. Ed. 2d 158

(1971), but in reality applied the Fourteenth Amend-

ment equal protection rational relationship test to Peti-

tioner’s classification of Jacobs as one participating in

non-marital sex; (¢) misapplied inapposite due process

standards and an irrebuttable presumption in deter-

mining that pregnancy itself, without more, is a status

or characteristic absolutely protected by Title VII;

(d) confused the basic right to have children within

marriage, Skinner v. Oklahoma, 316 U. 8S. 535, 541, 62

S. Ct. 1110, 86 L. Ed. 1655 (1942), with a supposed

18Voyles v. Ralph K. Davis Medical Center, supra, 403 F.

Supp. at 457; H.R. 451 and H.R. 2998, 95th Cong., Ist Sess. (1977),

sexual practices or preferences; H.R. 4294, 95th Cong., Ist Sess.

(1977), marital status; 8. 955, 95th Cong., Ist Sess. (1977), reg-

nancy. It is far from clear, however, how these if

enacted, would affect the type of case presented on this petition.

12

right to procreate outside marriage and misapplied the

state action concept of the Fourteenth Amendment to

actions by a private employer; (e) failed to apply to

the case the appropriate standard, burden and alloca-

tion of proof approved by this Court for Title VII

cases in which there is an allegation of gender-based

discrimination; and (f) fashioned a per se test of sex

discrimination in all cases involving pregnant females

under Title VII based solely upon the EEOC guideline

discredited in General Electric. 429 U. 8. at ——, 50

L, Ed. 2d at 357-360,

As far as counsel for Petitioner can determine, this

petition presents to the Court for the first time a Cir-

cuit Court’s assessment of the applicability of the

General Electric decision heyond employment benefits

cases. This Court should strengthen its holding and

repeat its signal to the circuits that the rationale and

logic of the General Electric opinion as to pregnancy

and the standard and burden of proof in Title VII cases

must be applied to Title VII sex discrimination actions

other than benefits cases. Further the current con-

fusion and conflict among the Courts of Appeals re-

garding the application of a test for sex discrimination

under Title VII, as illustrated by the differences be-

tween General Electric and Harper v. Trans World

Airlines, Inc., 525 F. 2d 409, 411 (8th Cir, 1975), on one

hand, and this case on the other, is a warning of the

need for further action by this Court.

The Sixth Circuit stated that the rule of law

advocated by Sweets and previously adopted by this

Court in General Electric would result in no pregnant

woman ever being protected from sex discrimination

under Title VIT (App. B, infra, p. A12). However, if

the test espoused by the Sixth Circuit were to be

adopted, there would be an irrebuttable presumption

that any employment action taken with respect to a

pregnant employee constitutes per se sex discrimina-

tion under Title VII. If this case is properly viewed

as one of sexual practice discrimination, then there has

been no showing that men and women similarly situated

have been treated dissimilarly; the judgment below

must be reversed; and Title VII will still protect

women and men who are terminated because of their

sex or gender.

CONCLUSION

Title VII, while remedial in purpose, is limited in

its scope. So far as the Civil Rights Act of 1964 goes,

private employers may still discharge or refuse to em-

ploy persons for any reason except discrimination made

unlawful under Title VII. Jacobs was terminated not

because of the fact that she was female but because of

her immcral sexual practices which were also unlawful

in Kentucky in 1972."* Even more importantly, given

the allocation of the burden of proof in this case, Jacobs

has not shown that her ‘‘termination and/or construe-

tive termination’’ constituted unlawful sex discrimina-

tion.

“Kentucky Revised Statutes 436.070 in effect in 1972 read

as follows:

Any person who commits fornication or adultery shall be fined

not less than twenty dollars nor more than fifty dollars,

14

Merely because an employee is pregnant at the time

of termination does not establish a per se or prima facie

violation of Title VII, The record conclusively estab-

lishes that no other pregnant employee had been trans-

ferred, terminated or discriminated against because of

pregnancy. Jacobs’ marital status coupled with her

sexual activities resulted in Sweets’ action.

Sweets’ aversion to non-marital sexual activity or

immoral] sexual practices has been translated into an

employment action which in no way violates the gender-

based discrimination provision of Title VII. This

Court should take this opportunity to give further

guidance after General Electric to the Circuits in gen-

eral and the Sixth Circuit in particular respecting the

parameters of gender-based discrimination under Title

VIL.

For the reasons stated above, Petitioner submits

that this Court should issue a writ of certiorari to re-

view the decision of the Court of Appeals for the Sixth

Circuit.

Respectfully submitted,

Ronaup D. Ray

Joun 8S. Reep

3300 First National Tower

Louisville, Kentucky 40202

Counsel for Petitioner, The Martin

Sweets Company, Inc.

APPENDICES

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 75-2406-07

Rose M. Jacons,~— - : Plaintiff-A ppellee,

Cross-A ppellant.

v.

Tue Mastin Sweets Company, Inc., - Defendant-A ppellant,

Cross-A ppellee.

Before: Weick and McCrez, Circuit Judges, and Mier,

Judge, United States Court of Customs and

Patent Appeals.

JUDGMENT—Filed Feb. 11, 1977

AppeaL from the United States District Court for the

Western District of Kentucky.

Tuts Cause came on to be heard on the record from the

United States District Court for the Western District of

Kentucky and was argued by counsel.

On Consiperation WueEREor, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be and the same is hereby affirmed

and modified.

A-2

It is further ordered that Plaintiff-Appellee-Cross-Ap-

pellant recover from Defendant-Appellant-Cross-Appellee

the costs on appeal, as itemized below, and that execution

therefor issue out of said District Court if necessary.

ENTERED BY ORDER OF THE CovURT.

(s) John P. Hehman

Clerk

Attest:

Deputy Clerk

>

A-3

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 75-2406-07

Rose M. Jacops, - - - - Plaintiff-Appellee

Cross-Appellant,

v.

THe Martin Sweets Company, Inc., Defendant-Appellant

Cross-Appellee.

AppgaL from the United States District Court

for the Western District of Kentucky.

*

Decided and Filed February 11, 1977

Before: Weick and McCrez, Circuit Judges, and

Musk, Judge, United States Court of Customs and Patent

Appeals.*

Muizr, Judge. This action involving alleged sex dis-

crimination in employment because of unwed pregnancy,

was brought by Rose M. Jacobs (“Jacobs”) against The

Martin Sweets Company, Inc., Louisville, Ky. (“Sweets Co.”

or “Company”), under the provisions of Title VII of the

*The Honorable Jack R. Miller, sitting by designation pursuant

to Chapter 13, Title 28, U.S.C.

A-4

Civil Rights Act of 1964 (“Act”), Pub. L. No. 88-352,

78 Stat. 253, 42 U.S.C. § 2000e et seq. Sweets Co. appeals

from that portion of the district court’s amended judgment

awarding back wages to Jacobs in the sum of $7,500 pursu-

ant to 42 U.S.C. § 2000e-5(g).' Jacobs appeals from that

portion of the amended judgment dismissing the class

action allegations of her complaint with prejudice. She also

asks that the district court’s award of attorney’s fee be

reversed, with certain directions for recomputation. We

affirm those portions of the amended judgment pertaining

to back wages and the class action issue; the portion per-

taining to attorney’s fee is modified to the extent that the

fee awarded is to be increased by the sum of $1,000 for serv-

ices rendered on this appeal.

BACKGROUND

Jacobs began her employment with the Sweets Co. on

December 9, 1970, as executive secretary to James Hanna,

the Senior Vice President. She received an increase in

salary to $600 per month on April 1, 1971, ar outstanding

annual performance evaluation in February of 1972, and a

second increase in salary to $633 per month in May of 1972;

however, during 1972 she was warned by Hanna on several

occasions about her tardiness and absenteeism. During her

employment with the Company she was unmarried.

142 U.S.C. § 2000e-5(g) provides in pertinent part as follows:

If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful employ-

ment practice charged in the complaint, the court may enjoin

the respondent from engaging in such unlawful employment

practice, and order such affirmative action as may be appro-

priate, which may include, but is not limited to, reinstatement

or hiring of employees, with or without back pay .. . or

any other equitable relief as the court deems appropriate.

. . . Interim earnings or amounts earnable with reasonable

diligence by the person or persons discriminated against shall

operate to reduce the back pay otherwise allowable.

<e

A-5

Jacobs’ testimony was that on September 8, 1972,?

Hanna called her into his office, shut the doors, and said he

had heard from other employees that she was pregnant,

which she confirmed; that he declared he could not tolerate

it, Martin Sweets, the President, would never approve of it,

and he was giving her two weeks’ notice, with her last day

to be September 22;* and that Hanna stated “there would

be no probelm whatsoever with getting me a more than good

recommendation if I needed it.” Following this meeting,

Jacobs contacted the District Office of the Equal Employ-

ment Opportunity Commission (EEOC), where she spoke

with the Department Director, Robert Jeffries, who advised

that it would be illegal for the Company to fire her due to

her pregnancy and suggested that she get the matter in

writing if at all possible. On September 12 she presented

two documents to Hanna: (1) a request that he write a

letter of recommendation, with the letter indicating it was

not due to her work but to her pregnancy that she was being

let go; and (2) a notice to her, for Hanna’s signature, stat-

ing that the Company was required to terminate her em-

ployment due to her being pregnant and not married “in

order to avoid embarrassment to the company and to your-

2All dates infra relate to 1972.

*This is corroborated by the testimony of Barend Crawford,

who was a payroll clerk for the Company at the time and was

employed by the Company from July 1, 1970, until April of 1973.

He stated that on September 21 or the morning of September 22

he took the paychecks that were to be distributed on September 22

to Hanna for signature; that these were prepared by a computer

service firm; that ‘‘when ayone leaves the company you do not

make a computer check, you adjust their pay up to the last day

that they are there and issue them a typewritten check from the

company’’; that ‘‘[n]o one was ever, to my knowledge, given an

adjusted pay unless were going to be dismissed or quit

the company’’; that Hanna told him that Jacobs’ computer check

would be voided and that he (Crawford) should give her a type-

written paycheck adjusted to what should be paid ‘‘throngh this

payday”’; that he prepared such a check; and that Hanna told him

‘*This is to protect ourselves in case she doesn’t come back.’’

A-6

self,” and that the Company intended to issue her a letter

of recommendation. She said that Hanna refused to sign

and that, while leaving his office, she heard him place a téle-

phone call and ask for the Company’s attorney.

Jacobs further testified that on the morning of Septem-

ber 14, S. J. Popson, one of Sweets Co.’s vice presidents,

came into her office and told her that Hanna had directed

him the night before to supervise her immediate transfer

to the Purchasing Department and that she was to clean out

her desk, get all her things together, turn in her keys, and

not return to the office except under supervision; that this

was the first she had heard about a change in her assign-

ment, Hanna having said nothing to her about it. She

stated that Popson told her that her pregnancy had been

mentioned to him by Hanna; that he did not tell her the

transfer was temporary; and that later that day, after her

typewriter, office equipment, and other personal things had

been moved to the Purchasing Department, she filed a

charge against the Company with the EEOC. She also

stated that the Purchasing Agent told her that Hanna had

called him, also the night before, about the transfer and

had said it was to try to get her to quit.‘ Jacobs further

stated that her job in the Purchasing Department was “just

a clerical position”; that, notwithstanding several attempts

on her part, Hanna refused to see her until September 28,

when she told him that she had filed suit with the BEOU

and would not be returning to the Company; and that she

came in on September 25, picked up her paycheck of Sep-

tember 22, and worked in the Purchasing Department.* but

‘John Bowyer, the Purchasing Agent at the time, could not

remember such a call from Hanna and denied Hanna had ever

told him the reason for the transfer was to force Jacobs to quit.

‘It does not appear that Jacobs was paid for work on Sep-

tember 25. Referring to September 22, Hanna stated: ‘‘She didn’t

have anything else coming after that date.’’

—J

A-7

that the main reason was to try to see Hanna about staying

on with the Company in her former position.

Additional testimony of Jacobs was that she received a

notice from Hanna, dated September 18, advising, inter

alia, that “under current company policy any employee who

becomes pregnant shall be allowed to work as her physical

condition permits and as long as the work will not jeop-

ardize her health”; that she also received a copy of a notice,

dated September 18, to the Purchasing Agent from Hanna,

subject: “Temporary Transfer of Rose Jacobs,” reciting

that due to the senior officer of the Company being on an

extended trip and the need for only one executive secretary,

it was more feasible to use the senior executive secretary

and to transfer Jacobs to the Purchasing Department “to

fulfill the overload requirements,”* with no change in hours

and no reduction in salary.’

S. J. Popson testified that Hanna had telephoned him

the evening of September 13 and told him that he was to

supervise Jacobs’ transfer from Hanna’s office to the Pur-

chasing Department; that he was not to leave Jacobs alone

in the office; that he should get her key to the office after

her things were moved out, lock the office, and not allow her

to return; that Hanna’s instructions were carried out the

next morning; and that he did not recollect whether Hanna

told him to tell Jacobs that the transfer was temporary.

®John Bowyer, the Purchasing Agent, testified that there was

an increased work load in his department from July or August

until the end of 1972; that there had been an increased work load

in previous years; and that he could not remember whether Jacobs

had previously done any work for his department. Crawford, supra

note 3, who had helped Jacobs move from her office to the Purchas-

ing Department, testified that Jacobs had never been temporarily

transferred while he was with the Company; also that Jacobs’

duties in the Purchasing Department were ‘‘clerical.’’

"It appears that Jacobs did little work after the transfer and

was on vacation or leave without pay from September 18 to Sep-

tember 22.

A-8

The record also shows the following on direct examination

of Popson by Jacobs’ lawyer:

Q. Did Mr. Hanna discuss Miss Jacobs’ pregnancy with

you that evening in that conversation?

A. In that conversation? All I can say is I can’t

imagine that it wasn’t discussed. I wouldn’t take

the conversation [sic] and do the job without asking

why. And I’m sure that we did go into the rami-

fications. But as far as the details of what was dis-

cussed, I really couldn’t remember specifics.

Robert Jeffries, Department Director of the District

Office of the EEOC during the period involved, stated that

he took a telephone call on or about September 12 from a

lawyer for Sweets Co., inquiring about the law pertaining

to pregnancy; that the lawyer “asked me to fully explain

the laws where the pregnant party was married or un-

married”; and that the conversation pertained to the Com-

pany and Jacobs, who had previously talked to him about

the Company and her being pregnant and unmarried.

The Company’s attorney, Marvin Hirn, testified that his

assistant telephoned the District office of the EEOC in Sep-

tember of 1972; that the call was precipitated by Hanna’s

call to him on September 12, during which “we entered into

a discusssion of the company’s pregnancy policy” ; and that,

based on the information his assistant received from the

EEOC, he advised Hanna that Jacobs should be permitted

to work as long as she was able.

Hanna insisted, inter alia, that he did not tell Jacobs

that she was fired or would be fired because she was preg-

nant and unmarried. He stated that Jacobs’ “temporary”

transfer to the Purchasing Department was to help with

the overload and because he did not trust her after she had

tendered to him what he labeled a “false statement” for him

to sign; that, prior to Martin Sweets’ departure for an ex-

A-9

tended overseas trip on August 31, Sweets told him to

utilize Sweets’ secretary during his absence; that highly

sensitive negotiations involving the Company had been

going on, of which only Sweets, Hanna, and Sweets’ secre-

tary were to have knowledge; that he had previously con-

sidered using Jacobs for additional help in the Purchasing

Department during Sweets’ absence; and that, although the

Company’s Policies and Procedures Manual provided for

termination of employment of pregnant employees at the

end of six months of pregnancy, this had never been en-

forced, the Company allowed such employees to work as

long as they were able, consistent with their health, and jobs

were held open for employees on pregnancy leave.* He

agreed that it was a common occurrence in the Purchasing

Department that the work load increased during the last

six months of the year.

OPINION

Discrimination Issue

The district court’s determination that, because she was

pregnant and unmarried, Jacobs was given two weeks’

notice of termination of her employment on September 8,

1972, and was transferred, without consultation and against

her wishes, from her job as executive secretary to the Senior

Vice President of the Company to a clerical position in the

Purchasing Department on September 14, is supported by

substantial evidence and is not clearly erroneous. Smith v.

South Central Bell Telephone Co., 518 F. 24 68 (CA 6 1975).

®Crawf su notes 3 and 6, stated that he believed the

Company's p~ * oan to allow female employees to work for six

months after pregnancy and that to his knowledge the six-month

policy was not before he left the Company in 1973. The

evidence discloses that only two of the Company’s employees were

pregnant after March 14, 1972; that one took pregnancy leave at

the end of her eighth month of pregnancy, while the other, who was

hired while she was pregnant, took pregnancy leave five days before

her baby was delivered.

A-10

The district court’s further determination that these actions

constituted a termination and/or constructive termination

of Jacobs’ employment is also supported by substantial

evidence, including the reasonable inferences to be drawn

therefrom. See NLRB v. Tennessee Packers, Inc., Frosty

Morn Division, 339 F. 2d 203 (CA 6 1964), Although there

is conflicting testimony in the record, the district court had

the benefit of hearing some of the key witnesses and ob-

serving their demeanor.°

That Sweets Co. intended the two weeks’ notice of term-

ination given Jacobs on September 8 to be carried out is

shown by Crawford’s testimony that Hanna told him that

Jacobs’ computer check would be voided and that he should

give her a typewritten check adjusted to what should be

paid through September 22, in accordance with the practice

when employees left the Company. The naked fact that

Jacobs came in and worked on September 25 for the purpose

of trying to see Hanna does not overcome the fact that her

employment had been earlier terminated and/or construc-

tively terminated. Sweets Co. contends that Jacobs’ trans-

fer to the Purchasing Department was “temporary.” How-

ever, Hanna himself testified that he didn’t think he orally

told Jacobs it was temporary, so it was not until she re-

ceived a copy of the notice of September 18 to the Pur-

chasing Agent (a document that could be considered self-

serving) that the transfer was labeled “temporary.” It is

further contended that Jacobs voluntarily quit, but there

are two answers to this: (1) “It cannot be said that a man

voluntarily quits the employment of the master after he

has been notified that his services are no longer desired.”

*We note the finding of the district court that Jacobs had

conceded ‘‘{w]ith commendable candor’’ that she had not at all

times been diligent and punctual in attendance; also, while Hanna

claimed that her transfer was to help with the increased work load

and because of matters arising from Martin Sweets’ leaving the

country, the increased work load was a common occurrence, Jacobs

had never been transferred before, and her transfer occurred over

two weeks after Sweets departed,

A-ll

Stark Distillery Co. v. Friedman, 150 Ky. 820, 823, 150

S. W. 981, 983 (1912); and (2) Although Jacobs received a

copy of the notice from Hanna to the Purchasing Agent

that there would be no change in her hours and salary, the

fact remains that the transfer from her position as execu-

tive secretary to clerical duties in the Purchasing Depart-

ment was a demotion which, at the time of the transfer on

September 14, had the appearance of being permanent.

Taking into account the reason for such a demotion—that

she was pregnant and unmarried, the conditions involving

the transfer could properly be considered intolerable and

her “quitting” involuntary. See NLRB v. Tennessee

Packers, Inc., Frosty Morn Division, supra.”

The dispositive question is whether the district court

erred in concluding, as a matter of law, that the termina-

tion and/or constructive termination of Jacobs’ employ-

ment constituted a violation of section 703 of the Act, 42

U.S.C. § 2000e-2(a), which 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, segreg@te, or classify his employees

in any way which would deprive or tend to deprive

Sweets Co. cites Muller v. United States Steel Corp., 509 F.

2d 923 (CA 10), cert. denied, 423 U. 8. 825 (1975), for the proposi-

tion that its conduct did not achieve the level of a constructive

discharge. However, the factual situation in Muller was entirely

different. As pointed out in Steel Indus., Inc. v. NLRB, 325 F. 2d

173 (CA 7 1963), also cited by Sweets Co., the factual situation

varies from case to case, and the employer’s ‘‘complete freedom”’

exists only when discrimination is absent.

A-12

any individual of employment opportunities or

otherwise adversely affect his status as an employee,

because of such individual’s race, color, religion,

sex, or national origin.

Sweets Co. argues that “Jacobs has never shown that

had she been a male expectant parent, she would have been

treated any differently by the Sweets Company.” The

sophistry of this argument is that it equates pregnancy with

the condition of “expectant parent” in a male. Pregnancy

is a condition unique to women, so that termination of em-

ployment because of pregnancy has a disparate and invidi-

ous impact upon the female gender. The point of the argu-

ment is that there must be men and women similarly

situated who are treated in a disparate manner. The point

is not well taken, for it would effectively exclude pregnancy

from protection in all Title VII cases. The Supreme Court

has stated that maternity leave rules directly affect “one of

the basic civil rights of man.” Cleveland Board of Educa-

tion v. LaFleur, 414 U.S. 632, 640 (1974)."' To exclude

such a basic civil right from protection against invidious

employment termination would be contrary to the policy to

which Title VII is directed, namely: that race, religion,

nationality, and sex are irrelevant factors in employment

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

11Although the Cleveland Board of Education case was decided

under the due process clause of the Fourteenth Amendment, the

] q from the Court’s — came from Skinner v.

Oklahoma, 316 U. 8. 535 (1942), which involved the equal protec-

tion clause of the Fourteenth Amendment, Title VII extends

beyond the reach of the equal protection clause. Satty v. Nashville

Gas Co., 522 F.. 2d 850, (CA 6 1975), cert. granted (No. 75-536,

January 25, 1977).

12The recent holding of the Supreme Court in General Electric

Co. v. Gilbert, _— U. 8. ——, 13 F.E.P. Cases 1 (1976), thet ex-

clusion of pregnancy from the risks covered by an employer’s disa-

bility benefits plan does not violate Title VII, can hardly be

regarded as precedent for excluding ey from protection

ainst invidious a termination. See Armour & Co. v.

Wantock, $23 U. S. 126, 133 (1944).

A-13

436 (1971); Holthaus v. Compton & Sons, Inc., 514 F. 2d

651 (CA 8 1975).

Sweets Co. next argues that Jacobs has not shown that

she would have received different treatment had her pre-

marital sexual activity not resulted in pregnancy and that

the EEOC’s guideline applicable to pregnancy" is unconsti-

tutional because it is “an attempt to control the moral pol-

icies of a private company with respect to the premarital

sexual behavior of individuals of both sexes.” However,

the district court found that Jacobs’ employment was ter-

minated because she was pregnant and unmarried—not be-

cause of her premarital sexual activity. Apart from the

EEOC’s guideline, which, in the absence of a showing that

it conflicts with the letter or spirit of the Act (not shown

here), is entitled at least to some weight, the district court’s

finding establishes a prima facie case of discrimination.

See McDonnell Douglas Corp. v. Green, 411 U. S. 792

(1973).* Sweets Co.’s argument that the “unmarried” por-

tion of the finding renders Jacobs’ pregnancy different for

purposes of Title VII is supported only by its citation to

Wardlaw v. Austin School District (not officially reported),

the facts of which are substantially different. 10 F.E.P.

Cases 892 (W.D. Tex. 1975). The argument impliedly sug-

gests that this court permit “artificial, arbitrary, and un-

necessary barriers to empioyment” (condemned in Griggs

v. Duke ower Co., supra at 431) in the case of unwed

pregnancy, while declaring such barriers unlawful in the

case of wed pregnancy. However, there is no evidence that

such a classification has any rational relationship to the

1829 C.F.R. § 1604.10(a) provides as follows:

A written or unwritten employment policy or practice

which excludes from employment applicants or employees be-

cause of pregnancy is in prima facie violation of Title VII.

“The order and nature of proof prescribed by the Supreme

Court in McDonnell Douglas, a racial discrimination case under

Title VII, is applicable in sex discrimination cases. Edwin L.

Wiegand Co. vy. Jurinko, 414 U. 8S. 970 (1973).

A-14

normal operation of Sweets Co.’s business. Phillips v.

Martin Marietta Corp., 400 U. S. 542, 544 (1971). See

Griggs v. Duke Power Co., supra at 431.

In view of the foregoing, we hold that the district court

committed no error in concluding, as a matter of law, that

the termination and/or constructive termination of Jacobs’

employment constituted a violation of section 703 of the

Act, 42 U.S.C. § 2000e-2(a).*®

Class Action Issue

The district court found that Jacobs’ employment dis-

crimination claim was entirely separate from her attack on

Sweets Co.’s policy with respect to medical payments ex-

pense and sick pay during pregnancy; that there was no

evidence that Jacobs suffered any actual or threatened loss

vr was likely to suffer any loss as a result of that policy;

that Jacobs was not employed by Sweets Co. at any time

during wiich it would have been appropriate and timely for

her to demand payment under or challenge the validity of

that policy ; and that Jacobs did not make any actual claims

for pregnancy-related expenses that were denied by the

Company. These findings are supported by substantial

evidence and are not clearly erroneous. Smith v. South Bell

Telephone Co., supra.

The decisive issue is whether the district court erred in

determining that Jacobs lacked both the requisite standing

under Article III of the Constitution and class action status

under Fed. R. Civ. P. 23(a),'* so that she was not a proper

15The parties do not contest the district court’s computation

of the $7,500 in back wages.

16The rule states:

(a) Prerequisites to a class action.

One cr more members of a class may sue or be used as

representative parties on behalf of all only if (1) the class is

so numerous that joinder of all members is impracticable, (2)

(Footnote continued on following page)

A-15

party to maintain a class action attacking the Company’s

pregnancy/sick pay/medical expense policy.'*

Jacobs argues that her claim of unlawful termination of

employment because of pregnancy involves all present or

future employees adversely affected by all the Company’s

pregnancy policies. However, we agree with the district

court that she has not satisfied “the threshold requirement

imposed by Art. III of the Constitution that those who seek

in invoke the power of federal courts must allege an actual

case or controversy.” O’Shea v. Littleton, 414 U. S. 488,

493 (1974). We note that Jacobs’ complaint alleges that

her employment was unlawfully terminated because of her

sex (when she would have been approximately six-wecks

pregnant). However, she has not alleged, much less shown,

“specific, concrete facts” demonstrating that the Company’s

policy regarding medical payments expense and sick pay

during pregnancy was applied to her. Warth v. Seldin, 422

U. 8. 490, 508 (1975). As found by the district court, she

did not make any actual claims for pregnancy-related ex-

penses that were denied by the Company."*

With respect to Jacobs’ status under Fed. R. Civ. P.

23(a), she cites Tipler v. E. I. duPont deNemours & Co.,

443 F. 2d 125, 130 (CA 6 1971), and Wetzel v. Liberty Mu-

(Footnote continued from preceding page)

there are questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are typical of

the claims or defenses of the class, and (4) the representative

parties will fairly and adequately protect the interests of the

class.

17This policy appears to be the sole basis set forth in the com-

plaint for Jacobs’ class action.

18 Jacobs’ allegation in her complaint that the Company unlaw-

fully maintained a policy requiring female employees to terminate

their employment at the end of the sixth month of aw would

also propose a class to which she does not belong. Moreover, Jacobs

produced no evidence that the employment of any of the Company’s

employees was terminated in accordance with such a policy.

A-16

tual Insurance Co., 508 F. 2d 239, 247 (CA 3), cert. denied,

421 U.S. 1011 (1975), both of which held that a complainant

who is no longer employed may still be an adequate repre-

sentative of a class of employees. However, unlike the

complainants in those cases, Jacobs has not shown that she

belongs to the class she seeks to represent. See Linda R. S.

v. Richard D., 410 U. S. 614, 617 n.4 (1973). Jacobs says

it is “difficult to understand how the interests of the class

are protected by allowing the unlawful practices to continue

until some other employee has the termerity [sic] to chal-

lenge the Sweets Company policies,” but this ignores the

requirement of Fed. R. Civ. P. 23(a)(3) that Jacobs’ claim

be “typical” of the claims of the class.’® The district court

correctly determined that Jacobs lacked class action status

under Fed. R. Civ. P. 23(a).?°

Attorney’s Fee

Jacobs contends that the district court abused its discre-

tion in making an award of $3,500 for attorney’s fee and

asks that this portion of the court's amended judgment be

reversed with directions that a fee be awarded for services

in the district court and on appeal based on hours times

hourly rate times other relevant factors, principally the

contingent nature of the representation. She points out

that the affidavit accompanying her motion for award of

fee shows that her counsel had devoted 129.3 hours on the

case; that an award of $3,500 would amount to only $27

per hour.

°There is no evidence showing any other Sweets Co. employee

similarly situated to her. Jurinko v. Edwin L. Wiegand Co., 477

F. 2d 1038, 1041 n.7 (CA 3), cert. granted, judgment vacated, and

case remanded for other reasons, 414 U.S. 970 (1973)

2°The district court said: ‘‘Class action status in this case

vulnerable to attack under the provisions of 23(a)(1),’

pears

23(a) (2), and, most significantly, under 23(a)(3). We regard

this as a ‘‘determination’’ that Jacobs lacked class action status

under Fed. R. Civ. P. 23(a).

moe

A-17

Section 706(k) of the Act, 42 U.S.C. § 2000e-5(k), pro-

vides that: “In any action or proceeding under this sub-

chapter the court, in its discretion, may allow the prevailing

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

costs . . . .” Although this court has interpreted the

statute to require the award of a fee that would approxi-

mate the customary fee in the community for similar work,

it is clear that more than a simple division of an award by

the number of hours devoted to the case is needed to sup-

port a conclusion that the district court abused its discre-

tion. Singer v. Mahoning County Board of Mental Retar-

dation, 519 F. 2d 748 (CA 6 1975). On the record before

us, we are not persuaded that the district court abused its

discretion. However, it is evident that Jacobs’ counsel has

expended considerable professional time and effort on this

appeal, so that the fee allowed below should be increased to

reflect such services.

Those portions of the amended judgment pertaining to

back wages and the class action issue are affirmed. That

portion pertaining to attorney’s fee is modified to the ex-

tent that the fee awarded below is increased by $1,000 for

services rendered on this appeal.

Affirmed and modified.

A-18

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No. C-74-348-L(B)

oe ee eee ee ee ee ee Plaintiff

v.

THe Martin Sweets Company,Inc. - - Defendant

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This action was filed on September 11, 1974, and is

brought under the provisions of Title VII of the 1964 Fed-

eral Civil Rights Act, 42 U.S.C. §$1331(a) and 1343(3). It

arises out of a charge filed with the United States Equal

Employment Opportunity Commission on September 14,

1972, by the plaintiff, Rose M. Jacobs, alleging discrimina-

tion in employment on account of sex by the defendant, the

Martin Sweets Company, Inc.

A court trial was conducted on July 17, 1975, following

which the respective parties filed their separate proposed

findings of fact and conclusions of law. The matter is now

submitted for judgment.

Plaintiff, Rose M. Jacobs, a female, was employed by

the defendant, The Martin Sweets Company, Inc., on De-

cember 9, 1970, as Executive Secretary to the Secretary

and Treasurer of the company.

A-19

FINDINGS OF FACT

1. On September 8, 1972, plaintiff, Rose M. Jacobs,

was told by her immediate supervisor at The Martin Sweets

Company, Inc., James Hanna, the Senior Vice President,

that she would be terminated in two weeks, i.c., on Septem-

ber 22, 1972, because she was pregnant and unmarried.

2. Shortly thereafter, plaintiff contacted the E.E.O.C.

and was advised that it was unlawful under Title VII of

the 1964 Federal Civil Act to terminate a female employee

because of pregnancy. She was advised to seek a written

statement of the reason for her termination from her

employer.

3. On September 12, 1972, plaintiff requested Mr.

Hanna to give her a written statement that termination was

because of pregnancy. He refused and promptly contacted

the company’s attorney, Marvin Hirn, for advice.

4. On September 13, 1972, Jack Reisz, an attorney for

defendant company, talked via the phone to an E.E.0.C.

employee concerning the specific problem of Rose Jacobs’

termination.

5. On September 13, 1972, Mr. Hanna telephoned an-

other employee of The Martin Sweets Company, Stephen

J. Popson, and told him to transfer Rose Jacobs to the

Purchasing Department the following morning, September

14, 1972. Mr. Hanna mentioned the fact that she was preg-

nant and unmarried and asked Mr. Popson to not leave

Rose Jacobs unattended and to take her keys to the office.

6. On the morning of September 14, 1972, at approxi-

mately 8:30 A.M., plaintiff was transferred to the Purchas-

ing Department as a clerical employee.

7. During the time Rose Jacobs was with the defend-

ant, she received two raises in salary, a $75.00 per month

raise on April 1, 1971, and a $33.00 per month raise on

May 8, 1972. Her performance evaluations during her em-

ployment indicate that she was an excellent employee and

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had been doing a superior job for The Martin Sweets Com-

pany.

8. Although Rose Jacobs had had some problem with

tardiness and absenteeism, these problems had not been

considered serious in her Annual Performance Evaluation

on February 18, 1972, and had not prevented her from

receiving a raise in salary on May 8, 1972.

9. Rose M. Jacobs was given two weeks notice of

termination on September 8, 1972, because she was preg-

nant and unmarried, and was transferred to a clerical posi-

tion in the Purchasing Department on September 14, 1972.

10. At the time she left the employ of The Martin

Sweets Company, Rose Jacobs was earning $7,596.00 per

annum. Her replacement, Dolores EHisenbeis, hired on

November 8, 1972, has received three increases in salary

since her employment, totaling $1806.40 per annum. It

is reasonable to assume that Rose Jacobs would be earning

a higher salary had she remained in the employ of The

Martin Sweets Company.

11. Since her termination by The Martin Sweets Com-

pany, Rose Jacobs has earned $696.00 in 1972, $3457.43 in

1973, and $6522.52 in 1974. The wages earned in 1975 were

not known at the time of trial.

12. With commendable candor, the plaintiff has con-

ceded that she has not at all times been diligent and

punctual in attendance. She has had a problem with tardi-

ness and absenteeism and, undoubtedly, this has had and

will have an adverse impact to some degree on her wages.

In addition, she has constantly been on the lookout for

other employment, all of which render it highly unlikely

that she would have received periodic increases either with

the regularity or in the amounts her replacement has

enjoyed for the period of time involved in this case. All

considered, it is reasonable to assume that Rose Jacobs has

lost the sum of $7500.00 in wages to date of trial.

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13. The acts complained of herein are predominantly

individual in nature and give rise to a monetary claim for

damages and the facts and circumstances presented here

obviate the necessity for injunctive relief.

CONCLUSIONS OF LAW

1. This action arises under Title VII of the Federal

Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., and 28

U.S.C. §§1331(a) and 1343(3), and the Court has jurisdic-

tion of the subject matter and of the parties.

2. Rose M. Jacobs filed a charge alleging unlawful

discrimination because of sex at defendant’s plant with the

United States Equal Employment Opportunity Commis-

sion on or about September 14, 1972. 29 C.F.R. §1601.11

(b).

3. Rose M. Jacobs was given two weeks notice of

termination by her employer on September 8, 1972, and was

subsequently transferred without consultation and against

her wishes on September 14, 1972, from her job as Ex-

ecutive Secretary to the Senior Vice-President of the com-

pany to a clerical position in the Purchasing Department.

The reason for these actions was that she was pregnant and

unmarried. The termination and/or constructive termina-

tion violates Section 703(a) of the Act, 42 U.S.C. §2000e-

2(a), which is as follows:

“It shall be an unlawful employment practice for an

employer

(1) to fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individ-

ual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin ;

or

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

any way which would deprive or tend to deprive any

A-22

individual of employment opportunities or otherwise

adversely affect his status as an employee, because of

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

origin.

Doe v. Osteopathic Hospital of Wichita, 333 F. Supp.

1357, 3 F.E.P. Cases 1128 (D. Kans., 1971); and Andrews

v. Drew School District, 371 F. Supp. 27, 6 F.E.P. Cases

872 (N.D., Miss., 1973).

4. Her termination and/or constructive termination

also violates the E.E.0.C. Guidelines on Discrimination

Because of Sex found in 29 C.F.R. §1604.10. These Guide-

lines are as follows:

Section 1604.10 Employment Policies Relating to

Pregnancy and Childbirth

(a) A written or unwritten employment policy or

practice which excludes from employment applicants

or employees because of pregnancy is in prima facie

violation of Title VII

The Guidelines have been upheld in this Cireuit in

Farkas v. School District, 8 F.E.P. Cases 288, aff'd mem.

506 F. 2d 1400 (CA 6, 1974) and in Wetzel v. Liberty

Mutual Insurance, 9 F.E.P. Cases 227, 511 F. 2d 199 (CA 3,

1975).

5. The finding of unlawful discrimination and the clear

intent of Congress that the grant of authority under Title

VII should be broadly read and applied mandates an award

of back pay. Meadows v. Ford Motor Co., 510 F. 2d 939

(CA 6, 1975); and Head v. Timken Roller Bearing Co.,

486 F. 2d 870, 876 (CA 6, 1973).

6. Pursuant to the provisions of Section 706{g), 42

U.S.C. §2000e-5(g), Rose Jacobs is entitled to the amount

of wages she reasonably would have earned at the defend-

ant from September 14, 1972, to the present, less those

A-23

amounts she actually earned in the interim. Of course, un-

realistic exactitude in the amount is not required. Pettway

v. American Cast Iron Pipe, 494 F. 2d 211 (CA 5, 1974).

7. The plaintiff is entitled to recover from the defend-

ant her costs, including a reasonable attorney’s fee.

Judgment shall be entered consistent with these Find-

ings.

This 18th day of August, 1975.

/s/ Rhodes Bratcher

United States District Judge

A-24

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRIOT OF KENTUCKY

AT LOUISVILLE

Civil Action File No. C-74-348-L(B)

Rose M. Jacoss )

v. | JUDGMENT

THe Martin Sweets Company, Inc. |

This action came on for trial before the Court, Honor-

able Rhodes Bratcher, United States District Judge, pre-

siding, and the issues having been duly tried and a decision

Saving been duly rendered,

It is Ordered and Adjudged that the plaintiff, Rose M.

Jacobs, recover of the defendant, The Martin Sweets Com-

pany, Inc., the amount of wages she reasonably would have

earned at the defendant company from September 14, 1972,

to the present, less those amounts she actually earned in

the interim. Of course, unrealistic exactitude in the amount

is not required.

It is Further Ordered and Adjudged that the plaintiff

recover her costs, including a reasonable attorney’s fee.

Dated at Louisville, Kentucky, this 18th day of August,

1975.

August Winkenhofer, Jr.

Clerk of Court

By: /s/ Barbara DeSpain

Deputy Clerk

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Civil Action No. C-74-348-L(B)

Rose M. Jacops, - - - - - - Plaintiff

v.

Tre Martin Sweets Company, Inc., - - Defendant

AMENDED JUDGMENT

This action came on for trial before the court, Honor-

able Rhodes Bratcher, United States District Judge, pre- _

siding, on July 17, 1975, and the issues having been duly

tried, and the court having made its decision by an order

entered August 15, 1975 and by Findings of Fact and Con-

clusions of Law entered August 18, 1975.

Ir Is Heresy Orperep, Apsupcep anp Decreep TxHart:

1. The Findings of Fact and Conclusions of Law en-

tered by the court in this action on August 18, 1975, are

hereby incorporated by reference as if fully copied herein.

2. The plaintiff, Rose M. Jacobs, shall recover of the

defendant, The Martin Sweets Company, Inc., back pay in

the sum of $7,500.00, pursuant to the provisions of 42 U.S.C.

§2000e-5 (g).

A-26

3. The plaintiff, Rose M. Jacobs, shall recover her costs

herein expended, including a reasonable attorney’s fee in

the sum of $3,500.00, pursuant to the provisions of 42 U.S.C.

§2000e-5(k).

4. For the reasons stated in the court’s order of

August 15, 1975, the plaintiff, Rose M. Jacobs, lacks stand-

ing to maintain a class action, and the class allegations of

plaintiff's complaint are hereby dismissed with prejudice.

5. This Amended Judgment shall serve in place and

in stead of the judgment entered herein on the 18th day of

August, 1975.

/s/ Rhodes Bratcher

U. S. District Judge

Entered: September 10, 1975

A -27

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 75-2406

75-2407

Rose M. Jacoss . - - . Plaintiff-Appellee

Cross-Appellant

v.

THe Martin Sweets Company, Inc. Defendant-Appellant

Cross-A ppellee

ORDER STAYING MANDATE PENDING APPLI.

CATION FOR WRIT OF CERTIORARI—Filed

March 9, 1977

On Motion of Defendant-Appellant/Cross-Appellee The

Martin Sweets Company, Inc., by counsel,

Ir Is Heresy Orperep and Apsupcep that the issuance

of the mandate in this action shall be stayed to and including

Friday, April 1, 1977, pending application by The Martin

Sweets Company, Inc., for a writ of certiorari to the United

States Supreme Court.

Entered this 8th day of March, 1977.

/s/ Paul C. Weick

Judge, United States Court of

Appeals for the Sixth Cirevi+

Tendered By:

/s/ Ronald D. Ray

/s/ John S. Reed

Greenebaum Doll Matthews & Boone

3300 First National Tower

Louisville, Kentucky 40202

Counsel for The Martin Sweets

Company, Inc.