Petition — Harrington v. Vandalia-Butler Board of Education

iasimsiiis iR.,

Supreme Court of the United States

October Term, 1978

No. 78-.... 7Qa 1 {QD

JEANNE HARRINGTON,

Petitioner,

vs.

VANDALIA-BUTLER BOARD O¥ EDUCATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

BARBARA KAYE BESSER

CHARLES E. GUERRIER

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Telephone: (216) 621-3443

RANDAL S. BLOocH

700 Formica Building

120 East Fourth Street

Cincinnati, Ohio 45202

Telephone: (513) 421-4420.

Attorneys for Petitioner

Of Counsel:

HAROLD WAGNER

700 Formica Building

120 East Fourth Street

Cincinnati, Ohio 45202

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—-TEL. (216) 621-5647

=~,

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Questions Presented

Statutory Provisions Involved

Statement of the Case '

Reasons For Granting The Writ

1. The Decision of the Court of Appeals Irrecon-

cilably Conflicts With the Decisions of Other

Courts of Appeals As to the Availability of

Money Damages Other Than Back Pay Under

Title VII ae

2. The Decision of the Court of Appeals Presents

a Direct Conflict With Decisions of This Court .... 11

JTIwownn -

I Sicishdid citi cimcenprensidencaldedlh Uiigheiategininnnptinertesuicagtenipenisinn 16

Appendix:

Opinion of the District Court (8/18/76) Al

Judgment of the District Court (8/18/76) ................ A9

Opinion of the Court of Appeals (10/27/78) ............ A10

Order of the Court of Appeals on Denial of Petition

for Rehearing and for Rehearing En Banc

(12/11/78) A22

Judgment and Mandate of the Court of Appeals

(10/27/78 and 12/19/78) A23

Judgment of the District Court on Remand

CN iad nccici insite ceptinsnilhcndpidaestastndniomanbitbean A25

Bill of Costs in the District Court (1/15/79) ............ A26

The Declaratory Judgment Act, 28 United States

RC RRB LE ERs OM, A28

II

Title VII of the Civil Rights Act of 1964, 42 United

States Code § 2000e, et Seq. ...scccccccecsssssssessseseeeeeen A28

TABLE OF AUTHORITIES

Cases

Acha v. Beame, 570 F.2d 57 (2nd Cir. 1978) ...002.0000000... 12

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 14

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .. 14

Bell v. Hood, 327 U.S. 678 (1946) 14

Christiansburg Garment Co. v. EEOC, 434 U.S. 413

(1978) ... : 14, 15

Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio

1976) 10

Curran v. Portland Senininiiie School Committee,

435 F. Supp. 1063 (D. Me. 1977) 10, 11

Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C. Cir.

i RENEE EAE EF RARE Eee OEE” RS 9

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 10

Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) 8,15

Furnco Construction Corp. v. Waters, ........ 0 See :

98 S. Ct. 2943 (1978) 11,12

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ............ 10

Humphrey v. Southwestern Portland Cement Co., 369

F. Supp. 832 (W.D. Tex. 1973), rev’d on merits

488 F.2d 691 (5th Cir. 1974) ...0.0.......... 10

Hyland v. Kenner Products Co., 13 FEP Cones 1309

{OD GE LRN RAGE a OE 10

International Brotherhood of Teamsters v. United

BROMO, GEE Whe OPO APOE D acsisc a cinec ens sbdesessscassinasdernin’ 12-13

ll

Kober v. Westinghouse Electric Corp., 480 F.2d 240

(3rd Cir. 1973) .. ie hn esibtheselsanbaatccicitaetencsiithas lan 12

McDonnell Rieati Corp. v. Grom 411 US. 792

ID: cvcsicteioncta cibeaestcasansiiseteasichemeceionsanepciicbannicnaiaigicneiennaneniies 11, 12

Pearson v. Western Electric Co., 542 F.2d 1150 (10th

Cir. 1976) 9

Rosen v. Public Service Electric and Gas Co., 477 F. 2d

90 (3rd Cir. 1973) 9

Rutherford v. American Bank of Commerce, 565 F.2d

1162 (10th Cir. 1977), aff’g Rutherford v. American

Bank of Commerce, 11 EPD 1 10,829 (D. N.M. 1976) 9

Steffel v. Thompson, 415 U.S. 452 (1974) ........---.------+--- 13

Tidwell v. American Oil Co., 332 F. Supp. 424 (D.

Utah 1971) ‘a 10

Tooles v. Kellogg Co., 336 F. Supp. 14 (D. Neb. 1972) .... 10

Van Hoomissen v. Xerox Corp., 368 F. Supp. 829 (N.D.

Cae, I acces scibciasnenetiphicrcciniepeanniniiniigtetnnincnicciinonel 8,9, 11

Zwickler v. Rien 389 U.S. 241 (1967) . ide 13

Statutes and Rules

Fed. R. App. P. 39( 8) «......-.-.-c-cecscsererssersosnenscesssesecsrensnssesensese 7

Fed. R. Civ. P. 42(b) wiih thdchcdapibsaiipasisatetin 13

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1343 (4) ...... 3

28 U.S.C. §§ 2201 and 2202 (The Declaratory J kitaleaiba

Act) 3, 12,13

29 U.S.C. § 151 et seq. (National Labor Relations Act)

§ 160(b) and (c) a 8

42 U.S.C. § 2000e et seq. (Title VII, Civil Rights Act

OB TID) ar cececececesvetisnsinnscoceceinscnnioccssenneacnevaiienrinceeienensentinss passim

§ 703 (a) 10

§ 706(f) (3) 3

§ 706(g) 2, 7,8, 9

§ 706 (Ic) 7,14

Other

REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFER-

ENCE OF THE UNITED States, March 10-11, 1977, and

September 15-16, 1977, p. 219, Table 25 (U.S. Gov-

ernment Printing Office Stock No. 028-004-

00014-1)

S. Rep. No. 1005, 73rd Cong., 2d Sess. 2 ( 1934)

Supreme Court of the United States

October Term, 1978

VANDALIA-BUTLER BOARD OF EDUCATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Petitioner prays that a writ of certiorari issue to the

United States Court of Appeals for the Sixth Circuit to

review the judgment entered in the above entitled case

on October 27, 1978, rehearing of which was denied De-

cember 11, 1978.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is reported at 585 F.2d 192 (1978)

and set forth in the Appendix at pp. Al0-A21. The order

denying rehearing and rehearing en banc is as yet unre-

ported; it is set forth in the Appendix at pp..A22-A23.

The opinion of the United States District Court for the

Southern District of Ohio is reported at 418 F. Supp. 603

(1976) and is set forth in the Appendix at pp. Al-A8.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on October 27, 1978,

and a timely filed petition for rehearing with a suggestion

for rehearing en banc was denied on December 11, 1978.

The jurisdiction of this Court is invoked pursuant

to the provisions of Title 28 United States Code § 1254(1).

QUESTIONS PRESENTED

The United States Court of Appeals for the Sixth

Circuit held that petitioner, while employed by respondent

to teach physical education, was subjected to intentional

sex discrimination with respect to her working conditions.

Inasmuch as petitioner’s employment relationship with re-

spondent had ceased, the district court held, and the court

of appeals affirmed, that petitioner was not entitled to

an injunction. Further, both courts held that, in light

of the nature of the discrimination, back pay was not

appropriate. The court of appeals, however, reversed the

district court’s award of $6,000.00, holding that damages

“of the type awarded here”, were not authorized under

§ 706(g) of Title VII. Failing to consider the prayer for

declaratory relief in petitioner’s complaint, the court of

appeals directed the district court to enter judgment for

respondent, awarding costs against petitioner. The ques-

tions presented are:

1. Whether or not compensatory damages other than

back pay are available in an action brought pursuant to

Title VII of the Civil Rights Act of 1964, where the

plaintiff proves intentional sex discrimination with respect

to working conditions.

3

2. Whether or not plaintiff must prove that, at the

time suit was brought, she was entitled to back pay or

injunctive relief in order to be declared the “prevailing

party” within the meaning of Title VII of the Civil Rights

Act of 1964.

3. Whether or not the court of appeals erred in failing

to consider the value and the availability of an independent

award of declaratory relief to a plaintiff who proved in-

tentional sex discrimination in violation of Title VII of

the Civil Rights Act of 1964.

STATUTORY PROVISIONS INVOLVED

1. This case involves various provisions of Title VII

of the Civil Rights Act of 1964, Title 42 United States

Code § 2000e, et seq., relevant portions of which are

fully set forth in the Appendix at pp. A28-A30.

2. This case also involves the provisions of the Fed-

eral Declaratory Judgment Act, Title 28 United States

Code §§ 2201 and 2202, which are fully set forth in

the Appendix at p. A28.

STATEMENT OF THE CASE

Jeanne Harrington, a physical education teacher,

brought this action against her employer, the Vandalia-

Butler Board of Education, alleging that she was subjected

to discriminatory terms, conditions and privileges of em-

ployment in violation of Title VII of the Civil Rights

Act of 1964, Title 42 United States Code § 2000e, et

seq. (hereinafter “Title VII” or “the Act”).* On the basis

1. Jurisdiction of the district court was invoked pursuant

to Title 28 United States Code § 1343(4) and Title 42 pam

States Code § 2000e-5(f) (3). A declaratory judgment was soug t

pursuant to the provisions of Title 28 United States Code §§ 2201

and 2202.

4

of the evidence presented, both the trial and appellate

courts found that petitioner had been subjected to inten-

tional violations of Title VII. Notwithstanding this finding,

the appellate court ordered that judgment be entered for

respondent.

The opinions of the courts below, when read in pari

materia, establish the following facts. The junior high

school, at which petitioner taught for thirteen years, had

two physical education facilities, the girls’ gymnasium and

the field house. Respondent, when making yearly room

assignments for both teachers and students, consistently

assigned petitioner to teach in the smaller of the two

physical education facilities and reserved the exclusive

use of the larger field house to petitioner’s male counter-

parts. The girls’ gym, located in the basement of the

junior high school, lacked bleachers or seating of any kind

and students who were not participating in a given activ-

ity were thus compelled to sit on the tile floor, thereby

decreasing the already limited playing area. Although

the girls’ gym originally had windows near the ceiling

which provided a source of natural light and ventilation,

these windows were removed while petitioner was on sum-

mer recess, leaving the facility with no source of fresh

air and solely dependent upon artificial lights. Addi-

tionally, while petitioner was conducting classes, the girls’

gym was often used as a passageway for transporting

general school supplies and debris.

By contrast, the field house, a separate building adja-

cent to the junior high school, contained seating in the

form of retractable bleachers. These bleachers could be

collapsed during class time in order to make maximum

use of the wooden floor. The facility had large windows,

providing the structure with ample natural light and fresh

air.

ee ee TD

ee

5

4

Not only was the girls’ gym less conducive to effective

teaching and coaching than the field house, but the accom-

modations provided for the teachers (such as showers,

toilets, lockers and offices) were neither equal nor com-

parable. Male physical education teachers were guaran-

teed an office which was totally self-contained and could

be locked to insure privacy and to prevent theft, while

petitioner’s office “. . . was a small, unsecure space carved

out of the girls’ locker room by a partition providing

only partial privacy. Male physical education teachers

were provided with a private toilet, lockers and shower

facilities for their exclusive use and which they did not

share with students.” Appendix at p. All. However,

no such private facilities were available to the petitioner,

thus forcing her either to share these facilities with the

students, or, as one defense witness testified during trial,

“ , she could change in her office. . . .”

The proof of unequal working conditions does not

end with a physical comparison of the two structures.

Although petitioner had always recognized the disparity

of her working environment vis-a-vis her male counter-

parts, with the removal of the windows she began publicly

protesting respondent’s unlawful activity. After eight (8)

months of vocal protests, which received unsatisfactory

responses, petitioner filed a union grievance. Having failed

to elicit any positive results in response to the grievance,

petitioner continued to question publicly respondent’s fail-

ure to equalize conditions. In response to these lawful

protests, respondent compounded the existing Title VII

violation by creating a total working environment charged

with discrimination. Although in previous years (before

her protests became vocal) petitioner’s performance won

her high praise, she was now the subject of constant and

ever present observations and criticism,

6

Compounding the oppressive atmosphere created by

the respondent’s intense surveillance were threats that

petitioner’s teaching contract would be non-renewed.

The entire situation reached a climax on June 9, 1972.

Rather than non-renew petitioner’s contract altogether, re-

spondent elected to transfer petitioner to another school

and assigned her to teach social studies, a subject which

she had not taught for thirteen years. Petitioner chose not

to accept this transfer and reassignment and elected to

retire.

Having fulfilled all conditions precedent to a suit pur-

suant to Title VII, trial to the court was had on June

2nd and 3rd, 1976. Neither party requested a trial by

jury.

The trial court, whose Findings and Conclusions are

set forth in the Appendix at pp. Al-A8, entered judgment

in favor of petitioner, finding that petitioner had been

discriminated against with respect to her terms and condi-

tions of employment. Recognizing the serious nature of

this violation of federal law, and the inappropriateness

of back pay as relief for the injury suffered, the court

awarded petitioner Six Thousand Dollars ($6,000.00) “as

compensation”, plus costs and reasonable attorneys’ fees.

On appeal, the United States Court of Appeals for

the Sixth Circuit found that, “[t]he trial judge’s finding

that Mrs. Harrington was discriminated against on account

of her sex has support in the record.” Appendix at p.

All. The appellate court went on to find that, “[t]he

intentionally discriminatory nature of the disparity was

shown by evidence that when a male teacher was assigned

to teach girls’ physical education, he was assigned to the

larger gymnasium and was not required to move his offices

or to work in the girls’ gym.” Appendix at pp. All-

-- ew en er i eer re

7

Al2. Despite these findings, the court held that petitioner

was not the prevailing party within the meaning of

§ 706(k) of the Act. Having held that petitioner was not

entitled to some form of relief at the time suit was brought,

the court went on to hold that a judicial determination

that respondent engaged in intentional discrimination,

standing alone, is not sufficient to constitute her as the

prevailing party. Appendix at p. A20.

The court thus reversed the decision of the trial court

and remanded the case for entry of judgment in favor

of respondent. Costs of the appeal were taxed against

petitioner (appellee) pursuant to the provisions of Rule

39(a), Federal Rules of Appellate Procedure.

On January 15, 1979, after twice demonstrating that

respondent had intentionally violated her civil rights, peti-

tioner was ordered to pay respondent Six Hundred Fifty-

Three Dollars and Seventy-One Cents ($653.71). Appen-

dix at p. A27.

REASONS FOR GRANTING THE WRIT

1. The Decision of the Court of Appeals Irreconcilably

Conflicts With the Decisions of Oti_er Courts of

Appeals As to the Availability of Money Dam-

ages Other Than Back Pay Under Title VII

Section 706(g) of Title VII provides that a federal

court, after finding “. . . that the respondent has intention-

ally engaged in . . . an unlawful employment practice

charged in the complaint, . . .”, may enjoin the unlawful

activity, and order such affirmative action as appropriate.

Although courts are specifically authorized to award back

pay as one form of “affirmative action”, the Act nowhere

forbids an award of other types of monetary relief.

8

While this Court has never directly addressed the

issue of the scope of money damages available under Title

VII, consideration has been given to the breadth of

§ 706(g). In Franks v. Bowman Transportation Co., 424

U.S. 747 (1976), this Court rejected strict adherence to

the National Labor Relations Act, 29 United States Code

§ 151, et seq., as a model for interpreting § 706(g).

Following a lengthy discussion of the legislative histories

of both the 1972 Amendments to § 706(g) of Title VII

and §§ 160(b) and (c) of the National Labor Relations

Act, this Court concluded that the addition of the phrase,

“any other equitable relief as the court deems appropriate”

in § 706(g) serves as an “. . . emphatic confirmation

that federal courts are empowered to fashion such relief

as the particular circumstances of a case may re-.

quire... .” 424 US. at 764. This Court went on to

recognize that, “[t]o the extent that there is a difference

in the wording of the respective provisions, § 706(g)

grants, if anything, broader discretionary powers than

those granted the National Labor Relations Act.” 424

US. at 769, n.29.

In holding that compensatory damages are never avail-

able under Title VII, the Sixth Circuit ignored the teaching

of Franks and instead relied almost exclusively upon Van

Hoomissen v. Xerox Corp., 368 F. Supp. 829 (N.D. Cal.

1973), a decision pre-dating Franks by three years. The

decision in Van Hoomissen, quoted at length by the Sixth

Circuit, posits two reasons for its conclusion. The first

is the “not terribly illuminating” legislative history sur-

rounding the enactment of the 1972 amendments to

§ 706(g) and the second is a comparison to the relief avail-

a under the National Labor Relations Act, §§ 160 (b)

and (c).

————

r=

9

The Van Hoomissen court erroneously concluded that,

since neither punitive nor compensatory damages have

been awarded under the National Labor Relations Act,

“Congress did not intend that any money damages other

than back pay would be granted under [Title VII].” 368

F. Supp. at 837.

Additionally, the Sixth Circuit ignored circuit court

authority which awarded compensatory relief other than

back pay.

In Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C.

Cir. 1974), the court upheld an award to the plaintiff

of $1,100.00 for discriminatory assignments and $500.00

for harassment. While the $1,100.00 might be viewed as

back pay in the nature of lost earnings, the award of

$500.00 cannot be so characterized. In Rosen v. Public

Service Electric and Gas Co., 477 F.2d 90 (3rd Cir. 1973),

the Court of Appeals for the Third Circuit was asked to

award damages to persons injured by defendant’s dis-

criminatory retirement program. In allowing such an

award, the court concluded that § 706(g) of the Act man-

dated federal courts to award compensatory damages de-

signed to make injured plaintiffs whole.

Most recently, the Court of Appeals for the Tenth

Circuit affirmed a damage award of $2,450.00 to a Title

VII plaintiff. In Rutherford v. American Bank of Com-

merce, 565 F.2d 1162 (10th Cir. 1977), aff’g Rutherford

v. American Bank of Commerce, 11 EPD {j 10,829 (D. N.M.

1976), the district court stressed the make whole objective

of Title VII in awarding damages where back pay was

inappropriate.”

2. The Sixth Circuit cites Pearson v. Western Electric Co.,

542 F.2d 1150 (10th Cir. 1976), as holding that compensatory

damages are not recoverable under Title VII. To the extent

such a reading is correct, it fails to take into account the Tenth

Circuit’s subsequent pronouncement in Rutherford,

10

The natural consequence of this conflict among the

circuits will be a continuing inability of district courts

to impose uniform standards of relief to remedy violations

of Title VII. Not only will these long time conflicts among

district courts be encouraged; compare, Curran v. Portland

Superintending School Committee, 435 F. Supp. 1063 (D.

Me. 1977); Compston v. Borden, Inc., 424 F. Supp. 157

(S.D. Ohio 1976); and Tooles v. Kellogg Co., 336 F. Supp.

14 (D. Neb. 1972) (refusing to award compensatory dam-

ages) with Tidwell v. American Oil Co., 332 F. Supp. 424

(D. Utah 1971); Humphrey v. Southwestern Portland Ce-

ment Co., 369 F. Supp. 832 (W.D. Tex. 1973), rev’d on

merits, 488 F.2d 691 (5th Cir. 1974); and Hyland v. Kenner

Products Co., 13 FEP Cases 1309 (S.D. Ohio 1976) (allow-

ing monetary relief other than back pay),* but the Con-

gressional purpose of Title VII will be frustrated.

The primary objective of Title VII is the elimination

of employment discrimination. Griggs v. Duke Power Co.,

401 U.S. 424 (1971). A constricted inflexible standard

controlling the relief which »roperly can be afforded vic-

tims of discrimination, such as that adopted by the Sixth

Circuit, cannot harmoniously co-exist with the Act.

In the present case, both the trial and appellate courts

found that the respondent intentionally had discriminated

against petitioner within the meaning of § 703(a) of Title

VII. Nevertheless, the Sixth Circuit denied petitioner any

relief and refused to declare her the prevailing party.

3. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976 i

upheld the 1972 Amendments to Title VII as pe eT

federal courts to award money damages in favor of a private in-

dividual against a state government, . . .” 427 U.S. at 447

(emphasis added). The use of the phrase “money damages”

pres Hecadly eg egron Phe —s conflict for, without further

S Court, lower courts i

japore allel non are unable to determine

—— ee ne ee -

11

It is indeed incongruous to leave an injured plaintiff with-

out a remedy in light of the Act’s avowed purpose.*

The need to have the conflict among the circuits re-

solved authoritatively by this Court is manifest. With

the ever increasing number of actions being filed pursuant

to Title VII,° the conflict is far from narrowly confined

and will have continuing future consequences as litigants

and courts alike grapple with the question of the appro-

priate relief to remedy statutory violations.

This conflict and its long range implications thus jus-

tify the grant of certiorari to review the judgment of

the Sixth Circuit.

2. The Decision of the Court of Appeals Presents a

Direct Conflict With Decisions of This Court

A.

In 1973, this Court, in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), established as a matter of

law, those elements which a plaintiff must establish in

order to make out a violation of Title VII. While these

elements must be applied in a flexible manner, see, Furnco

Construction Corp. v. Waters, ........ Was Sevens , 98 S. Ct.

2943, 2949 (1978), the Sixth Circuit’s ruling in the instant

4. The consequences of holding compensatory relief other

than back pay to be unavailable may not have been fully ap-

preciated by the courts in Van Hoomissen and Curran relied

upon by the Sixth Circuit. Both of those cases dismissed plain-

tiff’s prayer at the pleading stage. Here, however, the full

impact of such a holding is readily apparent and an admittedly

injured litigant is being denied make-whole relief.

5. Statistics taken from the REPORT OF THE PROCEEDINGS OF

THE JUDICIAL CONFERENCE OF THE UNITED STaTES, March 10-11,

1977, and September 15-16, 1977, p. 219, Table 25 (U. S. Gov-

ernment Printing Office Stock No. 028-004-00014-1), show that

total number of Title VII cases filed in federal district courts were:

1972 1,015 1975 3,931

1973 1,787 1976 5,321

_ 1974 2,472 1977 5,931

12

case has superimposed requirements upon plaintiffs which

have no relevance to the proof of a violation of the law.

The central focus in Title VII litigation is not the

scope of relief available, but rather whether or not an

employer covered by the Act is treating some employees

less favorably than other employees because of their sex.

Furnco Construction Corp. v. Waters, 98 S. Ct. at 2949.

However, in the case under consideration, the Sixth Circuit

focused upon the scope of relief available. The ruling

of the appellate panel requires a Title VII litigant to estab-

lish not only that she has been the victim of unlawful

discrimination, but also that she “. . . must have been

entitled to some form of relief at the time suit was

brought,” Appendix at p. A20, in order to prevail and

avoid the imposition of costs. Such an interpretation

of Title VII conflicts with this Court’s decision in McDon-

nell Douglas for it impermissibly compounds a plaintiff’s

burden of proof.". “Only when the existence of a Title

VII violation has been established is it relevant to consider

appropriate remedies under the Act.” Acha v. Beame,

570 F.2d 57, 65 (2nd Cir. 1978). v

A further consequence of imposing a requirement of

proving entitlement to relief as part of a Title VII plain-

tiff’s case will be to preclude the use of bifurcated trials,

a practice expressly approved by this Court. See, Interna-

6. Petitioner believes that relief is available pursuant to the

Federal Declaratory Judgment Act. Additionally, petitioner

was and is today entitled to an injunction which would order

the expungement of the eighteen cnr eee ¢ performance re-

views from her personnel file. Appendix at p. A5.

7. This holding also conflicts with circuit court decisions

which, although denying back pay and injunctive relief to plain-

tiffs who challenged state female protective legislation, still

declared them to be the prevailing parties. See, Kober v. West-

inghouse Electric Corp., 480 F.2d 240 (3rd Cir. 1973), and cases

cited therein.

13

tional Brotherhood of Teamsters v. United States, 431 U.S.

324, 371-72 (1977).°

The question of whether or not petitioner has been

the victim of unlawful discrimination is no longer an issue

in this litigation. Thus, the sole remaining issue for the

court should be the formulation of appropriate relief. The

complaint in this action contains a prayer for a declaratory

judgment pursuant to Title 28 United States Code

§§ 2201 and 2202, as well as a prayer for equitable relief

authorized by Title VII. Nevertheless, the Sixth Circuit,

in conflict with decisions of this Court, ignored the avail-

ability of declaratory relief.°

This Court has held that “. . . a federal district court

has the duty to decide the appropriateness and merits

of the declaratory request irrespective of its conclusion

as to the propriety of the issuance of [an] injunction.”

Zwickler v. Koota, 389 U.S. 241, 254 (1967) (emphasis

added). In Steffel v. Thompson, 415 U.S. 452 (1974),

this Court again stressed that declaratory relief should

be considered independent of other forms of relief. Fur-

thermore, the circuit court’s failure to consider the avail-

ability of declaratory relief is contrary to the Congressional

view of the Declaratory Judgment Act.

The declaratory judgment differs in no essential

respect from any other judgment except that it is

not followed by a decree for damages, injunction, spe-

cific performance, or other immediately coercive de-

cree. It declares conclusively and finally the rights

of parties in litigation over a contested issue, a form

of relief which often suffices to settle controversies

and fully administer justice.

8. Moreover, such a holding calls into question the viability

of Rule 42(b), Federal Rules of Civil Procedure.

9. See also discussion, supra at 12, n.6,

14

S. Rep. No. 1005, 73rd Cong., 2d Sess. 2 (1934) (emphasis

added). The intent of Congress and the teachings of this

Court with respect to the availability and value of declara-

tory relief and the affirmative obligation to impose it when

a federally protected right has been invaded leave little

doubt that the court of appeals erred in failing to consider

petitioner’s prayer.’®

Cc.

The entry of judgment against petitioner and the con-

comitant order that she pay respondent’s costs on appeal

will have far-reaching consequences for the future of Title

VII litigation.

The role of the “private attorney general” is of utmost

importance to the effective implementation of the objec-

tives of Title VII. Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974). To permit cost awards to be entered

against Title VII litigants who establish that they were

subjected to intentional violations of the Act, merely be-

cause they have not shown an entitlement to monetary

or injunctive relief, erodes established federal policy favor-

ing private enforcement.

The Sixth Circuit used strong language characterizing

petitioner’s litigation as “fruitless”. Appendix at p. A22.

However, the distinction between “fruitless” and “frivo-

lous” litigation is difficult to discern. One renders a plain-

tiff liable for costs; the other exposes a plaintiff to liability

for attorneys’ fees. Compare the instant case with Chris-

tiansburg Garment Co. v. EEOC, 434 U.S. 413, 421 (1978),

where this Court, recognizing the value served by private

‘

10. As the opinion of the appellate court so clearly states,

“. . . Plaintiff succeeded in obtaining a judicial determination

that the defendant Board discriminated against her... .” Ap-

pendix at p. A20. At the very least such a finding should re-

quire a declaration that petitioner prevailed within the meaning

of § 706(k) of Title VII. See, Bell v. Hood, 327 U.S. 678. 684

(1946); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).

15

litigants in Title VII enforcement, established a strict stan-

dard for awarding fees against plaintiffs: no sanction is

to be imposed upon a litigant whose cause is well-grounded.

Plaintiffs risk much in attempting to secure Congression-

ally-promised rights when an admittedly just cause is ren-

dered a nullity by the facile application of the Sixth Cir-

cuit’s new and protean standard. Litigation to enforce

civil rights guaranteed by federal law cannot be labeled

“fruitless” merely because the violation’s effect cannot be

measured in cash. The recasting of the Christiansburg

Garment standard by the appellate court so as to require

the imposition of costs against oft-time impecunious plain-

tiffs, in spite of proof of intentional violations of federal

law, will discourage many valid Title VII actions. In

Christiansburg Garment, this Court demonstrated its be-

lief that such a result must be avoided." 434 US.

at 420.

In light of the factual findings of the Sixth Circuit,

the failure to consider the appropriateness of declaratory

relief and the imposition of costs against petitioner conflicts

with decisions of this Court and the purpose for which

Title VII was enacted. For this reason, the writ should

be granted. )

11. The conflict between this Court’s opinion in Franks v.

Bowman Transportation Co., 424 U.S. 747 (1976), and the Sixth

Circuit’s opinion herein has been discussed, supra at 8.

16 .

CONCLUSION

For all of the foregoing reasons, the petition for a

writ of certiorari to the United States Court of Appeals

for the Sixth Circuit should be granted.

Respectfully submitted,

BARBARA KAYE BESSER

CHARLES E. GUERRIER

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Telephone: (216) 621-3443

RANDAL S. BLocH

700 Formica Building

120 East Fourth Street

Cincinnati, Ohio 45202

Telephone: (513) 421-4420

Attorneys for Petitioner

Of Counsel:

HAROLD WAGNER

Attorneys for petitioner gratefully acknowledge the val-

uable assistance provided in the preparation of this Petition by

Lorraine C. Holmes, a second year student at The Cleveland

State University, Cleveland-Marshall College of Law.

Al

APPENDIX

FINDINGS OF FACT, OPINION AND CONCLUSIONS

OF LAW OF THE DISTRICT COURT

(Filed August 18, 1976)

Civil No. C-3-74-73

IN THE

UNITED STATES DISTRICT COURT

For THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JEANNE HARRINGTON,

Plaintiff,

Vv.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant.

FINDINGS OF FACT, OPINION

AND CONCLUSIONS OF LAW ;

This matter is before the Court following a trial on

the merits at which testimony and evidence was presented

and upon pretrial and post-trial memoranda. In accor-

dance with Rule 52 of the Federal Rules of Civil Proce-

dure, the Court does submit herewith its findings of fact,

opinion, and conclusions of law.

FINDINGS OF FACT

L

1. At all times pertinent to this litigation plaintiff

Jeanne Harrington held a teaching certificate authorizing

her to instruct in the subjects of physical education and

A2

social studies. The defendant is a local school board, or-

ganized and existing under the laws of the State of Ohio.

Among other schools within its jurisdiction is Morton Ju-

nior High School, located in the City of Vandalia, Mont-

gomery County, Ohio.

The defendant Board is an employer within the mean-

ing of Title 42 U.S.C. 2000e-(b).

2. Plaintiff was hired by the defendant Board in 1957

to teach social studies and to serve as a guidance counselor.

In 1958 or 1959 plaintiff was assigned the exclusive duty

of teaching girls’ physical education at the Morton Ju-

nior High School.

Plaintiff instructed in this position until June of 1972,

at which time she was notified by the defendant of trans-

fer to another school and assignment to teach social studies.

Plaintiff declined to accept such reassignment and accepted

instead voluntary disability retirement.

As of June, 1976, plaintiff appears to be substantially

disabled by a hearing loss and does not appear to be

physically able to instruct students in subjects for which

she holds certificates.

At no time between 1957 and 1972 did the plaintiff

possess the academic credentials that would qualify her

for “tenure” as the same is defined in Ohio Revised Code

$3319.11.

3. Subsequent to the events of June of 1972, plaintiff

filed a charge of discrimination with the United States

Equal Employment Opportunity Commission. All appro-

priate procedural requirements were met prior to the insti-

tuting of suit in the United States District Court.

4. At all times pertinent Morton Junior High School

contained approximately the same number of male and

A3

female students. As a junior high school it provided in-

struction at the 7th, 8th and 9th grade levels. Separate

facilities for instruction in physical education were main-

tained. Girls gym classes were held in the Girls’ Gym,

located in a basement and almost entirely under ground.

Small windows near the ceiling were removed during the

year 1970. Ventilation was thereafter provided by ven-

tilating fans located in the ceiling.

Girls’ physical activities were conducted on two levels:

an area known as the “deck” was used for instruction

in bowling while the gym proper, approximately one floor

below, was used for all other activities. While it is possible

for the physical education instructor to observe both levels

from a stairway landing, any instructional efforts at either

level would remove the other from her observation.

The Girls’ Gym lacked natural light and natural venti-

lation and the artificial light and ventilation created unsatis-

factory physical surroundings. Plaintiff was provided with

a small office adequate only for a desk and filing cabinet.

No private shower or toilet facilities were provided for

her.

5. Boys’ physical education was conducted in a struc-

ture known as the “Field House”. The floor area of the

Field House is substantially larger than that of the Girls’

Gym. There is natural light and ventilation from two

levels of windows and both the locker room and shower

facilities are larger than those provided in the Girls’ Gym.

An office for male physical education teachers is avail-

able with a private toilet and shower facilities. During

the period in question plaintiff was the sole instructor

in physical education for girls while instruction in physical

education for boys was provided by two male gym teach-

ers, ea.h of whom devoted one-half of his time to physical

education and the other half to academic subjects.

A4

6. Salaries paid to physical education instructors de-

pend in the first instance upon the academic credentials

of the teacher as well as length of service. No evidence

was presented that there exists any differential for sim-

ilarly qualified instructors on a male v. female ratio.

Where an instructor in physical education performs

services for intramural activities, he is compensated by

an additional supplementary contract in the amount of

six percent (6%) of the amount of his base contract. While

this percentage might involve a difference in total compen-

sation paid, such difference is based upon the basic salary

rather than upon a difference based upon sex. Plaintiff

has failed to establish by a preponderance of the evidence

that she was penalized in terms of salary for work done

equivalent to that of male teachers.

7. The Field House is not used exclusively for instruc-

tion in physical education and for boy intramural activities.

It has also been used consistently for interscholastic com-

petition.

By reason of demand for seating, in approximately

1966 a portion of the structure was converted from an

instructional area to spectator bleachers. Prior to this

time both boys’ and girls’ physical education classes were

held in the Field House. Subsequent to 1966 all girls’

activities were moved to the Girls’ Gym. At a time subse-

quent to 1972 a joint use of the two gymnasia began.

Physical education teachers began instructing classes irre-

spective of sex and co-educational gym classes were like-

wise instituted. No material alteration of any facilities

were required for this joint use.

8. During the spring of 1972 relations between plain-

tiff and administrative officials of the defendant substan-

tially deteriorated. Exception was taken to plaintiff's cir-

AS.

culation of a survey regarding physical education facilities

and the enlistment of parents in her conflict with the

defendant administration.

For the academic year 1971-1972, the plaintiff was

evaluated by the principal of Morton Junior High School,

Ralph Clay. This evaluation (Plaintiff's Exhibit 8) con-

tains 25 categories. Plaintiff was evaluated at “average”

in 18 of these categories and “above average” in 7. No

evaluation in the categories: “Poor”, “Needs Improve-

ment”, or “Outstanding” was recorded. The overall eval-

uation was held to be “Average”.

In contrast, from March 2, 1972 to May 17, 1972, 18

separate annotations of unsatisfactory performance were

entered in plaintiff’s file. (Plaintiff's Exhibits 14-27, inclu-

sive.) While defendants have used the term “observation”

the preponderance of evidence has indicated that the appro-

priate word for the activity was “surveillance”. Such

intensive surveillance constituted harassment of plaintiff

and interfered with her instructional efforts.

9. Plaintiff has established by a preponderance of

the evidence that the athletic program, facilities and equip-

ment during the period of time in question was substan-

tially inferior for girl students. Plaintiff has not estab-

lished standing to raise this question and, except as here-

after provided, may not recover for such discrimination.

Plaintiff has not established by a preponderance of

the evidence that she was discriminated against in terms

of salary or in terms of job description. Plaintiff has

established by a preponderance of the evidence that her

working conditions were inferior to those of male teachers

performing the same services, that the nature of the facil-

ities was such that she could not properly supervise her

entire class at the same time and that she was handicapped

A6

by unsatisfactory working conditions and inadequate equip-

ment. Plaintiff has, therefore established by a preponder-

ance of the evidence, a prima facie violation of §704(a)

[sic] of Title VII. Defendant has not sustained its burden

of proof to justify such prima facie discrimination.

OPINION

Il.

It is clear from the foregoing findings of fact that

this case does not fit within the mold of most sex discrimi-

nation cases. The underlying disparity in working condi-

tions, however, is no less actionable under Title VII than

discriminatory wages, hours, or hiring practices. As was

stated in Rogers v. E.E.0.C., 454 F.2d 234 (5th Cir. 1971),

cert. denied 406 U.S. 957 (1972):

... [T]oday employment discrimination is a far more

complex and pervasive phenomenon, as the nuances

and subtleties of discriminatory employment practices

are no longer confined to bread and butter issues.

454 F.2d at 238

That the plaintiff's students were the primary victims

of the defendant’s actions does not detract from Mrs. Har-

rington’s right to equality in her working environment.

Rogers v. E.E.O.C., supra.

Citing Washington v. Davis, ........ ot Sten , 44 U.S.L.W.

4789 (Decided June 7, 1976), defendant contends that, un-

less plaintiff proves intentional acts of discrimination, she

may not recover under Title VII. Nothing in the Washing-

ton case supports this proposition. Indeed, the holding

of Griggs v. Duke. Power Co., 401 U.S. 424 (1971) was

reaffirmed in Washington: “Congress directed the thrust

of the Act to the consequences of employment practices,

AT

not simply the motivation.” 401 U.S. at 432. See, Albe-

marle Paper Co., v. Moody, 422 U.S. 405, 422-423 (1975).

Having found a violation of the Act, the Court must

now determine the scope of the remedy to be imposed.

Defendant argues that E.E.0.C. v. Detroit Edison Co., 515

F.2d 301 (6th Cir. 1975) precludes this Court from granting

any relief in this case, since plaintiff is not entitled to

backpay and damages may not be awarded. The Court

is unwilling to accept defendant’s suggestion that plaintiff

may have a right but not a remedy. The precise holding

of Detroit Edison Co., supra as to this particular issue is

as follows:

While affirmative action may not be limited to the

reinstatement or hiring of employees with or without

backpay, we believe that it is limited to relief of

the same general kind, that is, equitable relief in the

form of restitution. 515 F.2d at 309.

We do not read this language as precluding all compensa-

tory relief in furtherance of this Court’s equitable power

to make plaintiff whole. As the Supreme Court noted

in Albemarle Paper Co., v. Moody, 422 U.S. 405, 418 (1975):

[Where federally protected rights have been invaded,

it has been the rule from the beginning that courts

will be alert to adjust their remedies so as to grant

the necessary relief. Bell v. Hood, 327 U.S. 678, 684 -

(1946) (Emphasis added).

Plaintiff is not entitled to an award of back pay

nor to reinstatement to her former position because of

her present physical disability. Plaintiff is entitled to

an award for discriminatory working conditions and the

Court does determine that the appropriate compensation

therefore is Six Thousand Dollars ($6,000.00), computed

A8

on the basis of One Thousand Dollars ($1,000.00) per year

for the years 1966-1972. As prevailing party, plaintiff

is entitled to an award for reasonable attorney fees and

the Court does assess that sum at Two Thousand Dollars

($2,000.00).

CONCLUSIONS OF LAW

III.

1. This Court has jurisdiction over this matter in

accordance with 42 U.S.C. §2000e-5 (f) (3).

2. Where a plaintiff performs equivalent services for

equivalent pay, under working conditions substantially in-

ferior to that of co-workers performing the same service

for the same pay, such plaintiff establishes a right to

recovery.

3. The prevailing party in a discrimination action

of this sort is entitled to reasonable attorney fees in ac-

cordance with 42 U.S.C. §2000e-5 (k).

4. In accordance with the foregoing, plaintiff is here-

by awarded the sum of Six Thousand Dollars ($6,000.00)

as compensation and the sum of Two Thousand Dollars

($2,000.00) as reasonable attorney fees together with costs.

LET JUDGMENT ISSUE IN ACCORDANCE WITH

THE FOREGOING.

/s/ Cart B. Rusin

United States District Judge

A9

JUDGMENT ENTRY OF THE DISTRICT COURT

(Filed August 18, 1976)

Civil Action File No. C-3-74-73

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DistRIcT oF OHIO

JEANNE HARRINGTON,

Plaintiff

vs.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant

JUDGMENT

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

able CARL B. RUBIN, United States District Judge, pre-

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

having been duly rendered,

It is Ordered and Adjudged that the Plaintiff JEANNE

HARRINGTON recover of the Defendant VANDALIA-

BUTLER BOARD OF EDUCATION, the sum of SIX

THOUSAND DOLLARS and 00/00 CENTS ($6,000.00)

as compensation and TWO THOUSAND DOLLARS and

00/00 CENTS ($2,000.00) as attorney fees and the costs

of this action,

Dated at Dayton, Ohio, this 18th day of August, 1976.

Joun D. LyTEerR

Clerk of Court

By: /s/ CaROLe A. MAKLEY

Dep.

A10

OPINION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed October 27, 1978)

No. 76-2646

UNITED STATES COURT OF APPEALS

For THE SrxTH CIRCUIT

JEANNE HARRINGTON,

Plaintiff-Appellee,

v.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant-Appellant.

Appga. from the United States District Court for the South-

ern District of Ohio.

Before: Epwarps and ENGEL, Circuit Judges, and

NEEsE, District Judge.*

ENGEL, Circuit Judge. The Vandalia-Butler Board of

Education (Board) appeals from a judgment of $6,000' and

an award of $2,000 attorneys’ fees and costs entered in the

district court in favor of Jeanne Harrington, a former phys-

ical education teacher in Morton Junior High School in

Vandalia, Ohio. The district court held that, in furnishing

her working conditions inferior to those of male teachers

performing the same services, the defendant Board dis-

criminated against plaintiff Harrington on account of her

*Hon. C. G. NeEeEse, District Judge, United States District

Court for the Eastern District of Tennessee, sitting by designation.

1. The $6,000 judgment was computed on the basis of $1,000

damages for the six years commencing in 1966.

All

sex, in violation of Section 703(a)(1) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1) (1976).?

The trial judge’s finding that Mrs. Harrington was dis-

criminated against on account of her sex has support in

the record. The evidence showed that the facilities pro-

vided Mrs. Harrington at Morton Junior High School were

neither equal nor even comparable to those provided male

physical education teachers. While male physical educa-

tion teachers were given an office which was totally self-

contained and could be locked to insure privacy and pre-

vent theft, Mrs. Harrington’s office was a small, unsecure

space, carved out of the girls’ locker room by a partition

providing only partial privacy. Male physical education

teachers were provided with a private toilet, lockers and

shower facilities for their exclusive use and which they

did not share with students. No such private facilities,

however, were provided for Mrs. Harrington, forcing her

to use the student facilities.» The intentionally discrim-

2.

(a) Employer practices

It shall be an unlawful employment practice for an

employer —

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

vidual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or priv-

ileges of employment, because of such individual’s race,

color, religion, sex, or national origin... .

3. We reject the Board’s claim that Section 703(a)(1) of

Title VII and its reference to “terms, conditions, or privileges of

employment” was not intended to reach the actual working con-

ditions of employees but rather was intended to be confined to

the obligation to provide an equal opportunity for employment

apart from the physical conditions thereof. Potter v. Goodwill

Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975), held that

plaintiff had established a prima facie case by demonstrating that

she was a Negro, that because of her physical disability she

needed a stool in order to perform her job, that she did not always

have a stool, and that a white woman who needed a stool to per-

form her job was always provided with one. We do not believe

(Continued on following page)

Al2

inatory nature of the disparity was shown by evidence that

when a male teacher was assigned to teach girls physical

education, he was assigned to the larger gymnasium and

was not required to move his offices or to work in the

girls’ gym.

In June, 1972 Mrs. Harrington elected to accept a vol-

untary disability retirement instead of transfer to another

junior high school. She has not since sought to re-enter the

Vandalia-Butler system as an active school teacher. While

she asserted in her complaint filed in the district court that

she was discriminated against in terms of salary and job

description and claimed that her disability retirement was

forced upon her, tantamount to a constructive discharge

from her employer, the district court found these claims

had not been established and she does not appeal from

the denial of that relief. The district court’s only finding

of discrimination was in the area of working conditions and

its award was compensatory to remedy this violation of

Title VII.

I.

The Board’s appeal calls for us to decide whether an

award of compensatory damages of the nature involved

here may properly be included as a part of the remedy

provided in Title VII:

If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in an

unlawful employment practice charged in the com-

Footnote continued—

it can be seriously contended that the furnishing of a private

office, toilet and showers for male physical education teachers

was not a “privilege” within the meaning of Title VII or that the

denial to plaintiff of similar facilities as a female physical edu-

cation teacher did not violate the Act. Cf. Allen v. Lovejoy, 553

F. 2d 522 (6th Cir. 1977).

af

Al3

plaint, the court may enjoin the respondent from en-

gaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

pay (payable by the employer, employment agency,

or laber organization, as the case may be, responsible

for the unlawful employment practice), or any other

equitable relief as the court deems appropriate.

Section 706(g) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-5(g) (1976). We hold that the Congress

did not intend to authorize the recovery of such damages

under Title VII and accordingly reverse.

There is no direct Supreme Court authority and

surprisingly little authority among the circuits on the

question of whether compensatory damages, in addition

to any backpay, can be awarded in a Title VII action. In

Equal Employment Opportunity Commission v. Detroit

Edison Company, 515 F. 2d 301 (6th Cir. 1975), vacated on

other grounds, 431 U.S. 951 (1977), our court held that

punitive damages were not recoverable under Title VII.

The same logic which in Detroit Edison supported the de-

nial of punitive damages applies equally to compensatory

damages:

The relief provisions of Title VII contained in Sec-

tion 706(g) of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5(g), do not specifically authorize an award of

either compensatory or punitive damages for discrim-

ination in employment practices. .. . [I]n dealing with

its power to award punitive damages in this case, the

court [district court below] referred to the 1972

amendment to Section 706(g) which provides:

Al4

[T]he court may enjoin the respondent from en-

gaging 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.

We find no authority in the quoted language for the

award of punitive damages. We know of no authority

which holds that the awarding of punitive damages is

equitable relief. The catchall phrase, “other equitable

relief as the court deems appropriate,” does not stand

alone. It is limited, under the construction doctrine of

ejusdem generis, to relief of the same kind as that

specifically enumerated. While affirmative action may

not be limited to the reinstatement or hiring of em-

ployees with or without back pay, we believe that it

is limited to relief of the same general kind, that is,

equitable relief in the form of restitution.

We are not unaware of arguments which have been

made in favor of allowing punitive damages in Title

VII cases. See Developments in the Law — Employ-

ment Discrimination and Title VII of the Civil Rights

Act of 1964, 84 Harv.L.Rev. 1109, 1261 (1971); Imply-

ing Punitive Damages in Employment Discrimination

Cases, 9 Harv.Civ.Rights-Civ.Lib.L.Rev. 325 (1974). In

two recent district court cases, it has been held that

punitive damages may not be allowed in Title VII

actions. See Van Hoomissen v. Xerox Corp., 368 F.

Supp. 829 (N.D.Cal.1973), and Howard v. Lockheed-

Georgia Co., 372 F.Supp. 854«(N.D.Ga.1974). In Van

Hoomissen, the court considered the somewhat sketchy

legislative history with respect to Section 706(g) and

concluded that Congress did not intend to permit an

Al5

award of punitive damages in Title VII cases. We

have been cited to nothing in the legislative history

which would compel a different determination.

In the Howard case, the court found that Congress

would have made clear any intention to authorize com-

pensatory and punitive damages in Title VII cases.

515 F. 2d at 308-09.

Judge Lively’s reference to Van Hoomissen v. Xerox

Corporation, 368 F. Supp. 829 (N.D. Cal. 1973), is partic-

ularly useful to our consideration of the question of

whether Congress intended to permit an award of com-

pensatory damages. District Judge Oliver J. Carter ob-

served in Van Hoomissen:

The question of the propriety of punitive and com-

pensatory damages in Title VII cases has only recently

arisen in the courts, and the results have been mixed.

Some courts have held that punitive damages are

an appropriate form of relief in a Title VII case, e. g.

Tooles v. Kellogg, 336 F.Supp. 14 (Neb.1972) (court

struck claim for compensatory relief but allowed claim

for punitive damages to be retained).

Compensatory damages have also been allowed,

e. g. Tidwell v. American Oil Co., 332 F.Supp. 424

(Utah 1971) (plaintiff allowed 6% interest on back

wages and contributions defendant would have made

to group life insurance plan and company savings);

Rosen v. Public Service Electric and Gas Co., 477 F.2d

90 (3rd Cir. 1973) {male employees who received re-

duced retirement benefits where women in the same

position were awarded full benefits received the dif-

ference).

Al6

Other cases have refused to award any monetary

damages other than back pay on the theory that the

statute speaks of back pay only as an additional and

limited remedy to equitable relief, e. g. Johnson v.

Georgia Highway Express, Inc., 417 F.2d 1122 (5th

Cir. 1969) (“The demand for back pay is not in the

nature of a claim for damages, but rather is an integral

part of the statutory equitable remedy”, 417 F.2d at

1125).

After examining the lengthy legislative history of

Title VII, in addition to the briefer history surrounding

the 1972 amendments, this Court finds that Congress,

when it drew up that part of the statute dealing with

remedies for unlawful employment practices, had in

mind a wide panorama of equitable tools that courts

might use but did not intend that courts would pun-

ish defendants by imposing upon them large money

awards in the form of compensatory or punitive dam-

ages.

Although the 1964 discussion in Congress regard-

ing Section 2000e-5(g) is not terribly illuminating, it

does seem apparent from a reading of the Congressional

debates and the legislative record that the main pur-

pose of Title VII as seen by its proponents was to “seek

to give people an opportunity to be hired on the basis

of merit” (remarks by Senator Humphrey in introduc-

ing the Civil Rights Bill for debate in the Senate on

March 30, 1964, 110 Cong. Rec. 6549). According to

the House Report on the Bill, “(t)he purpose of this

title is to eliminate, through the utilization of formal

and informal remedial procedures, discrimination in

employment” (House Report No. 914, 1964 U.S.Code

Cong. and Admin.News 1964, p. 2401). Additional

members of the House Committee which wrote that

ee Aa a

Al7

Report referred to the Commission, the administrative

body which would in large part carry out the purpose

of the Title, as an agency which would work in a cor-

rective, not a punitive, manner: “It must ... be

stressed that the Commission must confine its activities

to correcting abuse, not promoting equality with mathe-

matical certainty ... Its primary task is to make certain

that the channels of employment are open to persons

regardless of their race” (Id. at p. 2516).

Again in 1972, when the amendment giving the

Commission power to go into court on its own was

being debated, the Title was again referred to primar-

ily as a tool to ensure that opportunities for employ-

ment were in fact equal: it was not described as a

punitive measure against those who frustrated equal

employment. ‘Most people just want to work. That

is all... We are trying to see that all of us, no matter

what race, sex, or religious or ethnic background, will

have an equal opportunity in employment” (Represen-

tative Dent, 118 Cong.Rec. 1866-67, March 8, 1972).

s+ * -

The Senate analysis of the 1972 amendment to

§ 2000e-5(g) accurately reflects the current sense of

unease and uncertainty over the use of punitive dam-

ages in Title VII cases:

“The provisions of this subsection are intended to

give the courts wide discretion exercising their

equitable powers to fashion the most complete re-

lief possible. In dealing with the present section

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

relief . . . is intended to make the victims of un-

lawful discrimination whole . .. (and restore

them) to a position where they would have been

Al18

were it not for the unlawful discriminatior.” (118

Cong.Rec. 3462).

In one breath the Senators note that the equitable

powers given to the courts are extremely broad; in

the next they speak rather imprecisely of making a

person “whole”. What is intended by that second goal?

The problem mirrored here has been a source of con-

fusion among the district courts.

However, in addition to the general legislative

history which indicates that the remedies intended

were those provided for in § 2000e-5(g), there are

further factors which lead this Court to believe that

Congress meant what it said in § 2000e-5(g) and that

it meant no more.

The provisions of § 2000e-5(g) of Title VII are

modeled closely upon the National Labor Relations Act,

29 U.S.C. §§ 160(b) and 160(c). In 29 U.S.C. 160(c),

the remedies provided for are “affirmative action, in-

cluding reinstatement of employees, with or without

back pay.” Punitive damages cannot, and have not

been, awarded under this Act (Consolidated Edison Co.

v. NLRB, 305 U.S. 197, 235-236, 59 S.Ct. 206, 219, 83

L.Ed. 126 (1938)). Neither have compensatory dam-

ages, aside from back pay, been allowed.

In explaining and introducing the Civil Rivhts

[sic] Bill, Senator Humphrey in his address and Sen-

ators Clark and Case as Floor Managers refer to the

fact that the relief under Title VII is similar to that

available under the National Labor Relations Act (110

Cong.Rec. 6549, and 110 Cong.Rec. 7214). Although

not conclusive, the similarity of the two statutes and

the fact that Congress was aware that neither puni-

tive nor compensatory damages were allowed under

A1g

the National Labor Relations Act leads to the firm

belief that Congress did not intend that any money

damages other than back-pay would be granted under

the present statute.... No reference has been made

in either the Title VII or the Title VIII statutes to

compensatory damages.

368 F. Supp. at 836-38 (footnotes omitted).

We note that while the district judge here was not

persuaded by the analogy in Detroit Edison, supra, another

judge of the same court has twice ruled that compensatory

damages are not available. Smith v. Columbus Metropoli-

tan Housing Authority, 443 F. Supp. 61 (S.D. Ohio 1977);

Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio

1976). Likewise Curran v. Portland Superintending School

Committee, 435 F. Supp. 1063 (D. Me. 1977), in holding that

compensatory damages are not recoverable under Title VII,

observes that:

While there is a split of authority on the issue, the

clear majority of federal courts, upon an analysis of

the language and statutory history of Title VII, have

concluded that neither compensatory nor punitive dam-

ages are available in a Title VII case, and this Court is

persuaded to join them.

435 F. Supp. at 1078 and see authorities cited therein. See

also Pearson v. Western Electric Company, 542 F. 2d 1150

(10th Cir. 1976).

Accordingly, we hold that compensatory damages of

the type awarded here are not authorized under Section

706(g) of Title VII.

A20

II.

It was not until March 24, 1972, that Title VII of the

Civil Rights Act of 1964 was amended to apply to the

federal government, state and local governments and edu-

cational institutions.‘ For this reason appellant claims that

the district court was without jurisdiction to permit an

award of damages for acts of discrimination occurring

prior to the effective date of the amendment. This claim,

if correct, would limit the damages, in any event, to such

as might have been found to have been suffered between

March 24, 1972 and June, 1972 when Mrs. Harrington took

her retirement.

Because this issue appears to have been raised for the

first time on appeal, we do not choose to address it.

Hutton v. United States, 501 F. 2d 1055, 1062 (6th Cir.

1974).

III.

Because plaintiff has not prevailed, we conclude that

the district court’s award of attorneys’ fees made under

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

1964, 42 U.S.C. §2000e-5(k) (1976), must likewise fail.

It is true, of course, that the plaintiff succeeded in obtain-

ing a judicial determination that the defendant Board dis-

criminated against her in the conditions of her employment.

This determination, standing alone, does not in our judg-

ment suffice to constitute her as a prevailing party within

the meaning of the Act.

In order to be a “prevailing party,” a plaintiff must

have been entitled to some form of relief at the time

suit was brought. Here, Mrs. Harrington failed to establish

4. Equal Employment Opportunity Act of 1972, Pub. L. No.

92-261, 86 Stat. 103.

ee ee oe

AzZ1

her claim. that she was constructively discharged or that

she was discriminated against in the salary she received.

Thus neither backpay, reinstatement nor injunctive relief

was awardable. She has not shown herself entitled to

any relief under the Act and it is apparent that she was

not so entitled at the time she commenced the district

court action.

This case is distinguished from our decision in Seals

v. Quarterly County Court of Madison County, Tennessee,

562 F.2d 390 (6th Cir. 1977). There we allowed an award

of attorneys’ fees even though the plaintiffs did not recover

on their federal action, the suit being settled under pendent

state law claims.’ The plaintiffs could apparently have

prevailed under their federal claim and received relief

thereunder. Marr v. Rife, 545 F.2d 554 (6th Cir. 1976),

similarly is not inconsistent witn the decision here. In

Marr v. Rife, the plaintiffs, following a successful showing

of discrimination in violation of the Fair Housing Act,

42 U.S.C. § 3601 et seq. (1976), were awarded $1.00 nominal

damages and, as the prevailing party, also were awarded

attorneys’ fees. In Marr v. Rife, unlike here, the statute

expressly authorized an award of damages, 42 U.S.C. § 3612

(c), the plaintiff merely being unable to establish the

amount. Mrs. Harrington, however, never had any right

to any relief under the statute at the time suit was brought.

Under such circumstances it is not possible to determine

that plaintiff is a prevailing party and is thereby permitted

an award of attorneys’ fees. An opposite result would,

5. Although the attorneys’ fees issue in Seals was decided

under the Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988 (1976), rather than under Title VII, the standards

for awarding attorneys’ fees have been held to be generally the

same. See Nadeau v. Helgemoe, No. 78-1019 (lst Cir., filed July

28, 1978).

A22

in our judgment, run counter to the statute and would

only serve to encourage fruitless litigation.®

Reversed and remanded for entry of judgment in favor

of the defendant.

ORDER OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed December 11, 1978)

No. 76-2646

UNITED STATES COURT OF APPEALS

For THE SrxtH CIRCUIT

JEANNE HARRINGTON,

Plaintiff-Appellee,

v.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant-Appellant.

ORDER

Before: Epwarps and ENGEL, Circuit Judges and NEEsE,

District Judge*

No judge in regular active service of the court hav-

ing requested a vote on the suggestion for a rehearing

6. In Compton v. Borden, Inc., supra, the court held that

the plaintiff proved the essential elements of a Title VII claim

but backpay and injunctive relief were not available because of

the factual posture in which the case reached trial. The court

nonetheless awarded attorneys’ fees. To the extent Compston

is inconsistent with the opinion herein, it is not the law in this

circuit.

*Hon. C. G. Neese, Judge, United States District Court for

the Eastern District of Tennessee, sitting by designation.

A23

en banc, the petition for rehearing filed herein by the

plaintiff-appellee has been referred to the panel which

heard the original appeal. Upon consideration of said peti-

tion, the court concludes that it is without merit. Ac-

cordingly,

IT IS ORDERED that the petition for rehearing is

hereby denied.

Entered by Order of the Court

/s/ Joun P. HEHMAN

Clerk

JUDGMENT ENTRY OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed October 27, 1978 in the Court of Appeals;

Filed December 21, 1978 in District Court)

No. 76-2646

UNITED STATES COURT OF APPEALS

For THE SrxtH Circulit

JEANNE HARRINGTON,

Plaintiff-Appellee,

Vv.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant- Appellant.

Before: Epwarps and ENGEL, Circuit Judges, and NEESE,

District Judge.

JUDGMENT

APPEAL from the United States District Court for

the Southern District of Ohio.

A24

THIS CAUSE came on to be heard on the record

from the United States District Court for the Southern

District of Ohio and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be and the same

is hereby reversed and the cause remanded for entry of

judgment in favor of the defendant.

It is further ordered that Defendant-Appellant recover

from Plaintiff-Appellee the costs on appeal, as itemized

below, and that execution therefor issue out of said Dis-

trict Court if necessary.

Entered by Order of the Court.

/s/ JoHN P. HEHMAN

Clerk

A True Copy.

Attest:

/s/ Jo ANN McHALE

Deputy Clerk

Issued as Mandate: December 19, 1978

Costs: To be recovered by Appellant:

Filing fee .................... $ 50.00

Printing $189.21

Total $239.21

——

A25

JUDGMENT ENTRY OF THE DISTRICT COURT

(Filed December 21, 1978)

Case No. C-3-74-73

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JEANNE HARRINGTON,

Plaintiff,

Vv.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant.

JUDGMENT

THIS CAUSE having been duly heard on the record

by the Court of Appeals, Sixth Circuit, and the certified

copy of the Judgment of the said Court of Appeals having

been received by this United States District Court.

JUDGMENT is entered in accordance herewith in favor

of the defendant Vandalia-Butler Board of Education and

against plaintiff Jeanne Harrington. Costs are awarded to

the defendant Vandalia-Butler Board of Education by the

Court of Appeals in the amount of Two hundred thirty-nine

dollars and twenty-one cents ($239.21), to be recovered

from the plaintiff.

Dated at Dayton, Ohio, this 21st day of December, 1978

JOHN D. LyTER,

Clerk

By: /s/ Karta S. ERwINn

Deputy Clerk

A26

BILL OF COSTS IN THE DISTRICT COURT

(Filed December 26, 1978;

Taxed January 15, 1979)

Civil Action File No. C-3-74-73 (Judge Rubin)

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT oF OHIO

WESTERN DIVISION

JEANNE HARRINGTON,

Plaintiff

vs.

VANDALIA-BUTLER BOARD OF EDUCATION,

Defendant

Judgment having been entered in the above entitled

action on the 21st day of December, 1978, against Plaintiff

the clerk is requested to tax the following as costs:

BILL OF COSTS

Fees of the clerk $

Fees of the marshal

Fees of the court reporter for all or any part

of the transcript necessarily obtained for

use in the case 409.50

Fees and disbursements for printing (eeeeecenceceeseeeeee

Fees for witnesses (itemized on reverse side) © ....................

Fees for exemplification and copies of papers

necessarily obtained for use in case

Docket fees under 28 U. S. C. 1923 50.00

Costs incident to taking of depositions 437.00

Cost as shown on Mandate of Court of Appeals 239.21

A27

Other costs (Please itemize)

Appeal Notice 5.00

Total $1140.71

State of Ohio )

) 8s:

County of Montgomery )

I, Larry A. Smith do hereby swear that the foregoing

costs are correct and were necessarily incurred in this action

and that the services for which fees have been charged

were actually and necessarily performed. A copy hereof

was this day mailed to Randal Bloch, Attorney at Law,

700 Formica Bldg., Cincinnati, Ohio with postage fully

prepaid thereon.

Please take notice that I will appear before the Clerk

who will tax said costs on 15th January, 1979 at 10 AM

/s/ Larry A, SMITH

Attorney for Defendant

Subscribed and sworn to before me this 26th day of

December A. D. 1978 at Dayton, Ohio

/s/ Ricuarp G. Pryor

Notary Public—State of Ohio

Costs are hereby taxed in the amount of $653.71 this

15th day of January, 1979, and that amount included in

the judgment.

JoHN D, LYTER

Clerk

By /s/ Rosert L. SNELL

Deputy Clerk.

A28

RELEVANT STATUTES INVOLVED

The Declaratory Judgment Act, 28 United States Code

§§2201 and 2202

Sec. 2201. In a case of actual controversy within its juris-

diction, except with respect to Federal taxes, any court

of the United States, upon the filing of an appropriate

pleading, may declare the rights and other legal relations

of any interested party seeking such declaration, whether

or not further relief is or could be sought. Any such

declaration shall have the force and effect of a final judg-

ment or decree and shall be reviewable as such. [As

amended July 7, 1958, P.L. 85-508, Sec. 12(p).]

Sec. 2202. Further necessary or proper relief based on

a declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse party

whose rights have been determined by such judgment.

Title VII of the Civil Rights Act of 1964,

42 United States Code §2000e,

et seq. (Excerpted)

Sec. 703. (a) It shall be an unlawful employment practice

for an employer—

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

vidual, 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, segregate, or classify his employees or

applicants for employment in any way which would de-

prive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

A29.

an employee, because of such individual’s race, color, re-

ligion, sex, or national origin. [As amended March 24,

1972, P.L. 92-261, Sec. 8.]

ss: 8 #8 -®

Sec. 706... °° ©

(g) If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in an un-

lawful employment 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 appropriate, which may include, but

is not limited to, reinstatement or hiring of employees,

with or without back pay (payable by the employer, em-

ployment agency, or labor organization, as the case may

be, responsible for the unlawful employment practice),

or any other equitable relief as the court deems appropriate.

Back pay liability shall not accrue from a date more than

two years prior to the filing of a charge with the Com-

mission. Interim earnings or amounts earnable with rea-

sonable diligence by the person or persons discriminated

against shall operate to reduce the back pay otherwise

allowable. No order of the court shall require the admis-

sion or reinstatement of an individual as a member of

a union, or the hiring, reinstatement, or promotion of an

individual as an employee, or the payment to him of any

back pay, if such individual was refused admission, sus-

pended, or expelled, or was refused employment or ad-

vancement or was suspended or discharged for any reason

other than discrimination on account of race, color, reli-

gion, sex, or national origin or in violation of section

2000e-3 (a) of this title.

+. *+ *+ & *

A30

(k) In any action or proceeding under this subchapter

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

other than the Commission or the United States, a reason-

able attorney’s fee as part of the costs, and the Commission

and the United States shall be liable for costs the same

as a private person. [As amended March 24, 1972, P.L.

92-261, Sec. 4.]