# Petition — Martin Sweets Co. v. Jacobs

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 917

## Text

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=

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

A-20

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.

A-21

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1485%3A1. Public record. Not legal advice.