Petition — Jack Reilly's, Inc. v. Thurber

Cr TLED us]

83 1 0 6 6 ' DEC 21 1983

No. - b ALEXANDER L STEVAS,

ea 2 CRK

In the

Supreme Court of the United States.

Octoser Term, 1983.

JACK REILLY’S, INC., p/s/a JACK’S,

PETITIONER,

v.

VIRGINIA THURBER,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Joun E. Braptey,*

Bruce G. McNeILL,

Brapiey, Barry & Tartow, P.C.,

100 Summer Street,

Boston, Massachusetts 02110.

(617) 338-6100

*Counsel of Record

BATEMAN & SLADE, INC BOSTON . MASSACHUSETTS

Question Presented.

Whether the definition of “employer” in Title VII of the

Civil Rights Act of 1964 excludes a person who has less than

fifteen employees working on “each working day.”

Table of Contents.

Opinions below

Jurisdiction

Statutory provisions involved

Statement of the case

Reasons for granting the writ

I. The First Circuit's holding renders superfluous a

portion of the statutory language of Title VII, vio-

lating principles of statutory construction and fail-

ing to give effect to the statute as enacted 5

A. The First Circuit's interp. tation of the defini-

tion of “employer” violates the elementary canon

of statutory construction that effect must be

given to each word of the statute 5

B. The First Circuit’s payroll test fails to give ef-

fect to the plain language of § 701(b), which

language was carefully chosen by Congress as a

compromise and which therefore deserves an

especially literal reading 6

II. The First Circuit’s holding will greatly increase

the amount of civil litigation in the federal court

system 9

A. The First Circuit’s interpretation expands the

jurisdiction of Title VII to small businesses that

were not intended by Congress to be within its

jurisdiction 9

B. The First Circuit's interpretation unnecessarily

blurs the jurisdictional threshold of Title VII, in-

viting litigation against small businesses that are

near, but not within the jurisdiction of Title VII 10

Conclusion i2

Appendix follows page 12

aonwnw

ii

Table of Authorities Cited.

CASES.

Mohasco Corporation v. Silver, 447 U.S. 807 (1980)

Montclair v. Ramsdell, 107 U.S. 147 (1882)

Reiter v. Sonotone Corporation, 442 U.S. 330 (1979)

Takeall v. Werd, Inc., 23 F.E.P. 947 (M.D. Fla. 1979) 10

an ®

Toussie v. United States, 397 U.S. 112 (1969) 6

United States v. Menasche, 348 U.S. 528 (1955) 5

STATUTES.

5 U.S.C. § 2102 2

26 U.S.C. § 501(c) 2

28 U.S.C. § 1254(1) 2

Civil Rights Act of 1964

Title VII (42 U.S.C. § 2000e et seq.) 3, 5, 6, 7, 8 et seq.

§ 701(b) (as amended by Pub. L. 92-261 (1972) 42

U.S.C. § 2000e(b) 2,4,6

Fed. R. Civ. P. 56 4

MISCELLANEOUS.

110 Cong. Rec. 12722 (1964) ll

110 Cong. Rec. 12818 (1964) ll

110 Cong. Rec. 13088 (1964) 7

Dun’s Census of American Business 26 (Dun and Brad-

street 1983) 10

2A J. Sutherland, Statutes and Statutory Construction

§ 46.06 (C. Sands ed. 1973) 5

No. - ;

In the

Supreme Court of the United States.

Octroser Term, 1983.

JACK REILLY’S, INC., p/s/a JACK’S,

PETITIONER,

v.

VIRGINIA THURBER,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Opinions Below.

This matter was tried before the United States District Court

for the District of Massachusetts and was reported as Thurber

v. Jack Reilly’s, Inc., 521 F. Supp. 238 (D. Mass. 1981).

The petitioner's appeal was heard before the United States

Court of Appeals for the First Circuit which affirmed the

opinion of the District Court in Thurber v. Jack Reilly’s, Inc.,

No. 83-1024, (Ist Cir., Sept. 14, 1983), reh’g denied, Octo-

ber 14, 1983.

2

Jurisdiction.

The United States Supreme Court has jurisdiction over this

matter pursuant to 28 U.S.C. § 1254(1), the judgment of the

United States Court of Appeals for the First Circuit having

been entered on September 14, 1983, and rehearing of said

judgment having been denied by the First Circuit on Octo-

ber 14, 1983.

Statutory Provisions Involved.

The jurisdictional provision involved in this matter is § 701(b)

of Title VII of the Civil Rights Act of 1964, as amended by

Pub. L. 92-261 (1972), 42 U.S.C. § 2000e(b):

For the purposes of this subchapter —

) The term “employer” means a person engaged in an

industry affecting commerce who has fifteen or

more employees for each working day in each of

twenty or more calendar weeks in the current or

preceding calendar year, and any agent of such a

person, but such term does not include (1) the Unit-

ed States, a corporation wholly owned by the Gov-

ernment of the United States, an Indian tribe, or

any department or agency of the District of Colum-

bia subject by statute to procedures of the competi-

tive service (as defined in section 2102 of Title 5), or

(2) a bona fide private membership club (other than

a labor organization) which is exempt from taxation

under section 501(c) of Title 26, except that during

the first year after March 24, 1972, persons having

fewer than twenty-five employees (and their agents)

shall not be considered employers.

3

Statement of the Case.

The defendant, Jack Reilly’s, Inc., d/b/a Jack’s (hereinafter

“Jack’s”), is a neighborhood bar located in Cambridge, Massa-

chusetts. It is a small business that caters primarily to local

college students. During all relevant time periods the business

required nine persons to fill all positions necessary for its oper-

ation. When its premises were fully occupied these persons

would be assigned as follows: one manager or assistant man-

ager, one doorman, three bartenders, one cook and three wait-

resses. During the time period relevant to this case, September

1, 1973 through December 31, 1976, an average of eight em-

ployees worked each day, with a minimum of seven and a

maximum of eleven. On no occasion during that period did

more than fourteen persons actually work on any given day.

The staff was composed mostly of local college students who

worked on various rotating shifts during the week, some as lit-

tle as one shift per week. Consequently, the total tally for

weekly payroll purposes might average as high as twenty-six.

In November, 1973, the plaintiff, Virginia Thurber, was

hired by Jack’s as a waitress. She was assigned to work three

weekly nine hour shifts. Approximately one year later Thur-

ber requested that she be assigned to the position of bartender.

This request was not granted, nor were additional requests for

the same change in work assignment. Consequently, in May,

1975, she terminated her employment at Jack’s. She was

thereafter unemployed until July, 1976, when she again found

employment at a local Cambridge restaurant.

Thurber brought this employment discrimination case on

January 4, 1977, pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. (1964), as amended, alleging

that she was denied a promotion from waitress to bartender

solely on account of her sex. Jack’s filed a motion to dismiss on

the ground that it did not employ fifteen persons for each

4

working day in each of twenty or more calendar weeks during

the term of Thurber’s employment and thus it was not an “em-

ployer” as that term is defined in § 701(b) of Title VII, 42

U.S.C. § 2000e(b), and that, consequently, the court had no

subject matter jurisdiction over the complaint. The motion

was referred for hearing to a magistrate pursuant to 28 U.S.C.

§ 636(b). A number of affidavits were filed by the parties, and

the magistrate, treating the motion as one for summary judg-

ment pursuant to Fed. R. Civ. P. 56, found it to be undisputed

that Jack’s did not employ sufficient persons to constitute it an

“employer” under Title VII, and recommended that the mo-

tion be granted. Upon objection by Thurber, the trial judge

overruled the magistrate without making any factual findings,

and denied the motion on November 21, 1977. Discovery

thereafter proceeded. The case was set for trial on May 1,

1981. Jack’s moved again for dismissal for lack of subject mat-

ter jurisdiction. The motion was denied with the court's rul-

ing that it is the number of employees on the weekly payroll

and not those present for work each day that is determinative

of subject matter jurisdiction under Title VII. The case was

then tried without a jury before Judge Garrity in the District

Court for the District of Massachusetts on May 4 and 5, 1981.

The trial judge found for the plaintiff and filed a memoran-

dum of decision on August 20, 1981. After a number of hear-

ings on attorney’s fees and interest, a final judgment awarding

Thurber back pay, attorney's fees and costs was entered on

December 14, 1982. On January 7, 1983, Jack’s filed a notice

of appeal in the United States Court of Appeals for the First

Circuit. Briefs were filed and on June 7, 1983, oral argument

was heard. On September 14, 1983, a panel of the First Cir-

cuit issued its judgment affirming the decision of the District

Court. Jack’s moved for rehearing en banc which the First

Circuit denied on October 14, 1983.

5

Reasons for Granting the Writ.

I. Tue First Circurr’s Ho_pinc RENpers SUPERFLUOUS A Por-

TION OF THE STATUTORY LANGUAGE OF TITLE VII, VIOLATING

PRINCIPLES OF STATUTORY CONSTRUCTION AND FAILING TO

Give EFFect TO THE STATUTE AS ENACTED.

A. The First Circuit’s Interpretation of the Definition of

“Employer” Violates the Elementary Canon of Statutory

Construction that Effect Must be Given to Each Word

of the Statute.

By affirming the District Court’s holding that the number

of “employees” equals the number of persons on the weekly

payroll as opposed to the number at work each day, the First

Circuit’s holding fails to give effect to the phrase “for each

working day.” &

It is a well-settled rule of statutory construction that Con-

gress, in choosing statutory language, must be presumed to

have intended to include no superfluous or insignificant words

or phrases. It follows, therefore, that courts must “give effect,

if possible, to every clause and word of a statute.” Montclair

v. Ramsdell, 107 U.S. 147, 152 (1882). Accord, Reiter v. Sono-

tone Corporation, 442 U.S. 330, 339 (1979); United States v.

Menasche, 348 U.S. 528, 538-539 (1955). See 2A J. Suther-

land, Statutes and Statutory Construction § 46.06 at 63

(C. Sands ed. 1973). The First Circuit's interpretation fails to

give effect to the phrase “for each working day” because that

phrase requires consideration of daily, as well as weekly, em-

ployment, which the First Circuit’s payroll test ignores. It

was clearly possible for the First Circuit to give effect to this

phrase by interpreting the number of employees as that num-

ber which is at work each day. The phrase “for each working

day” plays no role, however, in the payroll test, and is therefore

6

rendered entirely superfluous. Such an interpretation violates

the elementary principle of statutory construction that no word

or phrase be rendered superfluous, and should not be allowed

to stand.

B. The First Circuit's Payroll Test Fails to Give Effect to

the Plain Language of § 701(b), Which Language was

Carefully Chosen by Congress as a Compromise and Which

Therefore Deserves an Especially Literal Reading.

In order to fall within the jurisdiction of Title VII, a busi-

ness must have “fifteen or more employees for each working

day ....” This plain language itself requires determining on a

daily basis the number of persons that a business employs. The

general requirement that statutory language be given a literal

interpretation applies a fortiori to Title VII. This Court has

held that the history of the statute dictates that it be interpreted

strictly and literally.

It is unquestionably true that the 1964 statute was en-

acted to implement the congressional policy against dis-

criminatory employment practices, and that that basic

policy must inform construction of this remedial legisla-

tion. It must also be recognized, however, in light of the

tempestuous legislative proceedings that produced the

Act, that the ultimate product reflects other, perhaps

countervailing, purposes that some Members of Congress

sought to achieve. The present language was clearly the

result of a compromise. It is our task to give effect to the

statute as enacted. See Toussie v. United States, 397 U.S.

112, 123-124 [1969].

Mohasco Corporation v. Silver, 447 U.S. 807, 818-819 (1980)

(emphasis supplied) (footnotes omitted). Therefore, the First

7

Circuit was clearly in error in freely interpreting the definition

of employer to require a weekly payroll test. Such a test

ignores the phrase “for each working,day” and does not “give

effect to the statute as enacted.” Jd. The clarity of this mis-

taken interpretation of the statute may be readily grasped by

deleting this phrase from the statute. Thus amended it clearly

establishes the jurisdictional basis to be the weekly payroll test

decreed by the First Circuit.

The insertion in the definition of employer of the phrase

“for each working day” by the Senate and the ensuing 500

hours of exhausting debate, indicate Congress’ concern over

the jurisdictional reach of Title VII. That the statute was

phased in gradually to businesses employing fewer and fewer

persons demonstrates that Congress clearly did not intend that

it apply to all businesses. Moreover, Congress directed explicit

attention to the types of business to which Title VII would

apply! Senator Hubert H. Humphrey, with reference to the

employee limit in the definition of “employer,” reasoned that

the definition comprehended exclusively those businesses

which generated “some reasonable degree of gross product in

terms of income or output or salaries or goods or services” and

which lacked “intimate, personal character . . ..” 110 Cong.

Rec. 13088 (1964). The small businesses to which the First

Circuit has expanded the definition of “employer” and thus

the jurisdiction of Title VII are precisely those businesses

which Congress intended to exclude from the scope of Title VII.

Congress’ concern was not with the aggregate number of

persons to which a business issued a paycheck each week, but

rather to its size, or, in other words, the number of jobs or

positions that a business needs in order to operate. A business,

such as Jack’s, which has only nine work positions to fill does

not contribute any more to the gross national product by issu-

ing paychecks to twenty-six part-time persons than by issuing

them to nine full-time persons. Businesses that have fewer

8

than fifteen employment positions have little, if any, impact on

matters of interest to the federal government, and, accordingly,

Congress did not intend to include them within the jurisdiction

of a federal statute prohibiting employment discrimination.

Furthermore, in order to prevent employers from adopting

employment practices designed to allow them to escape inclu-

sion in the jurisdiction of Title VII, the First Circuit's payroll

test must not be allowed to stand. On the basis of that test,

businesses which issue weekly paychecks to fifteen or more em-

ployees, but which operate with fewer than fifteen employees

at work for each working day, can escape the jurisdiction of

Title VII simply by discharging part-time help and employing

only the number of persons required to fill their operating

positions. In addition, persons who are starting or expanding

small businesses will be induced to hire and put on their pay-

rolls fewer than fifteen employees, requiring each to work an

extraordinary number of hours per week, as opposed to hiring

more than fifteen employees and allowing each to work a rea-

sonable number of hours per week.

For example, if Jack's had had the benefit of the First Cir-

cuit’s decision several years ago, it might have replaced its

part-time personnel, retaining only nine full-time waitresses,

bartenders and doormen and requiring each of them to work

every shift, every day. Indeed, the plaintiff conceded before

the magistrate that had Jack’s simply filled its operational posi-

tions with the full-time , -rsonnel, it would not have been

within the definition of “employer.” See Magistrate’s Report

and Recommendation on Motion to Dismiss at 7, n.3 (page 8a,

infra). Such employment practices would not only be harsh,

but would be irrational from a business standpoint. It strains

credulity to posit that Congress, in enacting a statute to reduce

or eliminate discrimination in the workplace, would have in-

tended that it be interpreted in such a way as to create an incen-

tive for employers to discharge persons whom they otherwise

9

would have kept in their employ or fail to hire persons whom

they otherwise would have hired. Businesses shouid not be per-

mitted, as they would be under the First,Circuit’s payroll test,

to move themselves in or out of the jurisdiction of Title VII by

the employment practices they choose @ adopt or by the

number of weekly paychecks they choose to issue. Such an in-

centive would not exist if it were decided that the relevant

number of employees was that number which reported to work

each day because employers could not reduce the number of

employees that report to work each day below the minimum

necessary for the operation of the business. The First Circuit's

attention to the question of including part-time employees in

the weekly payroll count is simply not relevant to the jurisdic-

tional issue raised by this case. Jack’s does not dispute the inclu-

sion of part-time persons in the daily tally. It is the cumulative

inclusion of occasional part-time employees, some of whom

worked only one shift per week, in a weekly total, without

regard to the undisputed fact that only eight employees were

present for duty on an average day and never more than four-

teen on any working day, to which Jack’s objects.

II. THe Fist Cracurt’s HoLpINGc wiLt GREATLY INCREASE THE

AMOUNT OF CriviL LITIGATION IN THE FEDERAL

Court SysTeM.

A. The First Circuit's Interpretation Expands the Jurisdiction

of Title VII to Small Businesses that were Not Intended

by Congress to be Within its Jurisdiction.

The First Circuit's interpretation of the definition of “em-

ployer” brings within the jurisdiction of Title VII every busi-

ness that has fifteen or more persons on its weekly payroll rec-

ord for the requisite number of weeks, regardless of how few

employees report to work for each working day and regardless

of how infrequently the persons listed on the weekly payroll

10

report to work. This interpretation will subject to litigation

small businesses that Congress, by its carefully chosen

language, intended to exempt from the jurisdiction of Title

VII. The significance of this consequence is potentially pro-

found. Of approximately five million businesses in the United

States, over four million have fewer than fifteen employees.

Dun’s Census of American Business 26 (Dun and Bradstreet

1983) (Appendix G). The expansiveness of the First Circuit's

interpretation of “employer” will doubtlessly subject many of

these businesses to actions in federal court for violations of Ti-

tle VII. The First Circuit's statement that its jurisdictional

decision “might sweep into the ambit of the statute a few truly

‘Mom and Pop’ stores . . .” will very likely prove to be a

massive understatement.

B. The First Circuit's Interpretation Unnecessarily Blurs

the Jurisdictional Threshold of Title VII, Inviting Litiga-

tion Against Small Businesses that are Near, but Not

Within the Jurisdiction of Title VII.

The First Circuit's holding has so blurred the jurisdictional

threshold of Title VII that businesses which have approx-

imately fifteen employees on their weekly payrolls or approxi-

mately fifteen employees that report to work each day cannot

be certain whether they are within the jurisdiction of Title

VII. The payroll test leaves open the question of whether

counting the number of employees on a customary weekly

payroll is sufficient or whether a determination must be made

of the number of employees on the payroll for each day of the

requisite number of weeks. Furthermore, the First Circuit's

payroll test does not address the issue of whether independent

contractors or “occasional part-time employees,” see Takeall

v. Werd, Inc., 23 F.E.P. 947 (M.D. Fla. 1979), are to be in-

cluded among employees on the payroll.

1]

The definition of employer in Title VII determines whether

federal courts presented with Title VII actions have subject

matter jurisdiction over them. The definition should not be

ambiguous, as subject matter jurisdiction represents the

court's very power to apply the statute to a particular business.

Consequently, the jurisdictional line should be precise.

The confusion created by the First Circuit will result in

litigation against businesses which are near, but not within,

the jurisdiction of Title VII. Such litigation will arguably be

dismissed when such employers demonstrate that they do not

have fifteen or more employees on their payrolls, but it will

nevertheless crowd federal dockets and result in expense to

businesses forced to defend against such litigation.

Furthermore, an ambiguous jurisdictional line will induce

businesses, as alluded to earlier, to reduce the number of pay-

checks they issue to below fifteen by discharging part-time

personnel and retaining the minimum number of persons nec-

essary to operate. If the First Circuit's test is allowed to stand,

the number of paychecks that a business issues, as opposed to

its size, will determine whether it is within the jurisdiction of

Title VII.

Finally, an ambiguous jurisdictional line is contrary to the

intent of Congress to provide a brightline definition of

“employer.” When the Senate inserted the phrase “for each

working day” in the definition of “employer,” Senator Everett

Dirksen, one of its proponents, stated that “the definition of

‘employer’ is amended to provide a specific test for computing

the number of employees of an employer, in determining

whether the employer is covered by the bill.” 110 Cong. Rec.

12818 (1964). Senator Humphrey, another proponent, stated

that “the definition of ‘employer’ has been clarified to provide

needed certainty as to coverage of employers where the

number of employees fluctuates above and below the figure

requisite to application of the title.” Jd. at 12722. The First

Circuit's payroll test clearly controverts this intent.

12

Conclusion.

The petitioner respectfully requests that this Court grant a

writ of certiorari in this matter.

Respectfully submitted,

JOHN E. BRADLEY,”*

BRUCE G. McNEILL,

BRADLEY, BARRY & TARLOW, P.C.,

100 Summer Street,

Boston, Massachusetts 02110.

(617) 338-6100

*Counsel of Record

APPENDIX.

A. Magistrate’s Report and Recommendation on Mo-

tion to Dismiss

B. Magistrate’s Supplemental Report and Recom-

mendation

C. Memorandum of Decision, United States District

Court for the District of Massachusetts

D. Judgment of the United States Court of Appeals

for the First Circuit

E. No. 83-1024, United States Court of Appeals for

the First Circuit

F. Denial of Rehearing, United States Court of Ap-

peals for the First Circuit

G. Dun’s Census of American Business 26 (1983)

27a

la

Appendix A.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO.

77-33-G DOCKETED

VIRGINIA THURBER,

Plaintiff

JACK REILLY’S INC., d/b/a JACKS,

Defendant

REPORT AND RECOMMENDATION ON MOTION

TO DISMISS

September 13, 1977

COHEN, M.

In her complaint, plaintiff alleges that in the Fall of 1974,

defendant Jacks, a bar and restaurant located in Cambridge,

refused to promote her status to that of a bartender solely on

account of her sex. Jurisdiction is founded on the provisions of

Title VII of the Civil Rights Act (42 U.S.C. 2000e et seq.).

On February 7, 1977, defendant filed a motion to dismiss on

the grounds that the Complaint failed to state a claim upon

which relief may be granted, and that the Court lacked sub-

ject matter jurisdiction. The motion was referred to this court

for report and recommendation.

2a

At the initial hearing before this court, it appeared that to

the extent that defendant contended that the court lacked sub-

ject matter jurisdiction, defendant relied upon affidavits ex-

traneous to the Complaint. Accordingly, this court, pursuant

to the provisions of Rule 12(c), F. R. Civ. P., treated the mo-

tion as one for summary judgment under Rule 56, F. R. Civ.

P., and continued the hearing in order to give plaintiff an op-

portunity to file counter-affidavits. Such affidavits were filed,

and further hearing were held on April 20, 1977, and August

30, 1977.

1. Insofar as defendant contends that the Complaint fails to

state a claim upon which relief may be granted, a fair reading

of the Complaint shows that plaintiff has alleged facts which,

if believed, satisfies each and every element of a cause of ac-

tion for sex discrimination under the provisions of 42 U.S.C.

2000e et seq. At the hearings before this court, defendant has

conceded as much, but has concentrated on the argument that

the Court lacked subject matter jurisdiction. Accordingly,

this court recommends that the Court deny the motion to

dismiss insofar as that motion relies upon the ground that the

Complaint fails to state a claim upon which relief may be

granted.

2. In arguing that this Court lacks subject matter jurisdic-

tion, defendant contends that he is not an “employer” within

the meaning of 42 U.S.C. 2000e. Under the provisions of 42

U.S.C. 2000e(b), an “employer” is defined, in pertinent part,

as follows:

(b) The term “employer” means a person engaged in an

industry affecting commerce who has fifteen or more

employees for each working day in each of twenty or

more calendar weeks in the current or preceding calendar

year, and any agent of such a person. . .

3a

As against this definition of an employer, defendant con-

tends it is not engaged in an industry affecting commerce, and

that, during the relevant time period, it did not have fifteen or

more employees for each working day in each of twenty or

more calendar weeks in the current or preceding calendar

year. These points are discussed seriatim.

A. Under the provisions of 42 U.S.C. 2000e(h), the term

“industry affecting commerce is defined as follows:

(h) The term “industry affecting commerce” means any

activity, business, or industry in commerce or in which a

labor dispute would hinder or obstruct commerce or the

free flow of commerce and includes any activity or in-

dustry “affecting commerce” within the meaning of the

Labor-Management Reporting and Disclosure Act of

1959, and further includes any governmental industry,

business, or activity. (Emphasis added).

The term “commerce,” in turn, is defined by 42 U.S.C.

2000e(g). It provides:

(g) The term “commerce” means trade, traffic, com-

merce, transportation, transmission, or communication

among the several States; or between a State and any

place outside thereof; or within the District of Columbia,

or a possession of the United States; or between points in

the same State but through a point outside thereof.

On the basis of the affidavits filed, the undisputed evidence

shows that the defendant was and is a restaurant and lounge

which purchased, on a regular basis, quantities of foodstuff

and liquor which was produced and/or distilled outside the

4a

Commonwealth of Massachusetts. In these circumstances, it

is clear that the defendant was engaged in an activity “in com-

merce” within the meaning of 42 U.S.C. 2000e, and this court

recommends that the Court deny defendant's motion for sum-

mary judgment based upon this ground.

B. The question remains, however, as to whether defend-

ant meets the second aspect of the definition of an “employer”

— i.e., whether the defendant, during the relevant period of

time, had “fifteen or more employees for each working day in

each of twenty or more calendar weeks. . .” (Emphasis add-

ed). On this score, this court finds the following facts to be

undisputed:

a) During the relevant time period,' the defendant carried

on its weekly payroll records an average of 26 employees.

b) Of these 26 employees, most were local college atudents

who worked on a part-time basis, were paid on an hourly

basis, and who did not receive fringe or vacation benefits.

c) On no occasion during the period September 1, 1973,

through December 31, 1976, did more than 14 persons actual-

ly work at defendant's establishment on any given day. During

that period, an average of 8 employees worked each day, with

a minimum of 7, and a maximum of 11 employees, per day.

Against these facts, plaintiff contends that the relevant test

refers to “. . . persons on the payroll and regularly employed,

not to the number of people at work on any given day.” (Plain-

tiff's Memorandum in Opposition to Summary Judgment,

p. 3). Applying this test, plaintiff suggests that there was an

average of 26 persons per week on the defendant's payroll, and

thus, that defendant was an “employer” within the meaning

of 42 U.S.C. 2000e.

‘Inasmuch as plaintiff alleges the discrimination occurred in 1974, the

relevant time period would be the calendar years 1973 and 1974.

5a

The difficulty with plaintiff's argument, however, is that it

is inconsistent with accepted notions of statutory construction.

Under settled principles, it must be presumed that Congress,

in choosing the language used, intended no superfluous or in-

significant words or phrases. Thus, a court, in construing a

statute, is dutibound “to give effect, if possible, to every clause

and word of a statute.” Montclair v. Ramsdell, 107 U.S. 147,

152 (1882); United States v. Menasche, 348 U.S. 528, 538-539

(1955). If Congress had intended the construction urged by

the plaintiff — i.e., that the number of persons on an

employer's weekly payroll is determinative — then it could

have very simply achieved that result by simply eliminating

the phrase “for each working day.” Thus eliminated, the stat-

ute would have read:

The term “employer” means a person engaged in an in-

dustry affecting commerce who has fifteen or more

employees in each of twenty or more calendar weeks. . .

It is clear that the statute, if written as set forth above, would

be unambiguously consistent with plaintiffs construction

which looks to the number of employees on each weekly

payroll record.

But Congress did not so write the statute. It, instead, inter-

jected the phrase “for each working day.” This court must

construe that phrase with a view towards giving it effect and

meaning. In context, it is clear that Congress, by including

the phrase “for each working day,” intended that the provi-

sions of 42 U.S.C. 2000e et seq. apply only to those persons

who had 15 or more persons at work each given day in each of

20 or more calendar weeks. Indeed, no other reasonable alter-

native construction obtains. In these circumstances — absent

controlling or persuasive precedent to the contrary — this

6a

court concludes that, under the provisions of 42 U.S.C. 2000e,

a person is not an “employer” unless he has 15 or more persons

at work each day for 20 or more calendar weeks.

In arguing to the contrary, plaintiff points to the decision of

Pascutoi v. Washburn-McReary Mortuary, 11 FEP 1325, No.

4-75 Civil 110 (D. Minn. July 3, 1975), the only reported case

dealing with the interpretation at issue. In that case, Judge

Larsen relied exclusively on two opinions by the EEOC Gen-

eral Counsel issued on October 18 and October 20, 1966,

which indicated that the critical test is the number of persons

on the payroll during the relevant 20 week periods, not how

many are at work on a given day, and that, in applying the

test, regular part-time and seasonal employees should be

counted even tho:gh they do not work on each working day of

the period. On the basis of these opinions, which he perceived

to be a contemporaneous and practical interpretation of the

statute by executive officers charged with its administration,

Judge Larson concluded that the statute should be construed

consistent with the interpretation promulgated by EEOC.

In the circumstances, this court cannot join in the conclu-

sion reached by Judge Larson. To be sure, it is well-estab-

lished that a long-continued contemporaneous and practical

interpretation of a statute by the executive officers charged

with its administration and enforcement constitutes an in-

valuable aid in the construction of a doubtful statute. But

that rule is inapplicable to the present case, since — and obvi-

ously not brought to the attention of Judge Larson — the in-

terpretations issued by EEOC General Counsel were informal

and not intended to be an official agency interpretation.

Under the provisions of 29 C.F.R. 1601.28-1601.30, Gen-

eral Counsel for EEOC has limited authority to issue interpre-

tive opinions in the form of “opinion letters” issued on behalf

of the Commission. Those “opinion letters,” however, were

not intended to be of general application. In 1970, it became

7a

apparent to the EEOC that commercial reporting services

were citing such “opinion letters” or “General Counsel Opin-

ions” as authoritative interpretations of the provisions of Title

VII. In order to rectify this misinterpretation of the authority

of General Counsel, the Chairman of the EEOC published a

regulation in the Federal Register (35 F.R. 18692, December

8, 1970). That regulation provided, inter alia:

. . . Matter issued pursuant to 29 CFR 1601.30(a) is is-

sued to a specific addressee(s) and has no effect upon

situations other than that of the specific addressee(s) . . .

Similarly, matter appearing in the commercial reporting

services erroneously entitled, “opinion letter” or “General

Counsel Opinion” do not meet the standard required of a

“written interpretation or opinion of the Commission”

within the meaning of the Commission's Procedural

Regulations, 29 CFR 1601.28-1601.30, or Section 713(b),

42 U.S.C. Section 2000e-12(b).

Thus, at the time Judge Larson relied upon the General

Counsel Opinions cited* in his decisions, the Chairman of the

EEOC had specifically disclaimed that those opinions were of-

ficial agency interpretations of the provisions of 42 U.S.C.

2000e.

* Prior to rehearing, this court ordered that the plaintiff file copies of those

opinions with this court. At the rehearing, counsel for plaintiff indicated

that EEOC was unable to furnish her with copies of those opinions. Counsel

for plaintiff further advised that she had communicated with Judge Larson,

who advised that he had never actually received copies of those opinions. In

view of the regulation set forth above (35 F.R. 18692), the unavailability of

such copies is not surprising.

8a

In short, giving each word its due effect, the plain meaning?

of 42 U.S.C. 2000e(b) clearly indicates that, in order to quali-

fy as an “employer” under the Act, an employer must have 15

or more persons at work for each working day for 20 or more

calendar weeks. The rule of contemporary administrative in-

terpretation is not applicable, since there has been no official

interpretation issued by the EEOC. The undisputed evidence

shows that the defendant did not have 15 or more persons at

work for each working day for 20 or more calendar weeks.

This court accordingly recommends that the Court allow de-

fendant’s motion for summary judgment.

/s/

UNITED STATES MAGISTRATE

> Of course, the “plain meaning” of a statute might not control if its ob-

vious effect was to defeat relevant legislative intent. But that is not the case.

Congress — in its judgment — excepted application of the Act to a certain

class — i.e., employers who had 14 or less employees working each day. It is

clear from all the undisputed evidence before this court that defendant's busi-

ness was one which, on a day-to-day basis, used an average of 8 employees,

and a maximum of 11. If defendant had simply used the same employees on

each working day, plaintiff concedes that defendant would not have been

covered by the Act. It is therefore inconceivable to assume that Congress in-

tended the Act to apply to defendant, simply because defendant chose to

spread the work force out in such a manner as to give local college students

some extra pocket money.

9a

Appendix B.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION DOCKETED

NO. 77-33-G

VIRGINIA THURBER,

Plaintiff

JACK REILLY’S, INC., d/b/a

JACKS,

Defendant

SUPPLEMENTAL REPORT AND RECOMMENDATION

September 14, 1977

COHEN, M.

After completion of the original Report and Recommenda-

tion dated September 13, 1977, this court received Plaintiff's

Supplemental Memorandum in Opposition to Summary Judg-

ment! in which plaintiff urged that, even if the opinions of

General Counsel of the EEOC were informal and unauthor-

ized, nevertheless this court should give due deference to those

opinions.

'The Supplemental Memorandum was docketed on September 9, 1977,

but was not forwarded to this court until after the file was returned to the

Clerk with the original Report and Recommendation.

10a

To be sure, under certain circumstances, a court may give

deference to informal administrative rulings issued by an ad-

ministrative agency. See, e.g., Skidmore v. Swift & Co., 323

U.S. 134, 139-140 (1944). But as plaintiff recognizes in her

Supplemental Memorandum, the weight to be accorded to

such informal rulings varies in accordance with several factors

including, but not limited to:

1. The thoroughness evident in its consideration

before reaching a decision;

2. The validity of the reasoning which underlies the

informal ruling;

3. The special expertise of the agency combined with

the lack of the Court’s expertise;

4. Re-enactment of the statute in circumstances which

indicate legislative approval of the rule;

5. Contemporaneous by the administrator who may

have been especially informed of the legislature’s intent;

and

6. The duration of the ruling.

Considering these factors, it is clear that no weight should be

given the opinions at issue. Inasmuch as General Counsel for

EEOC has chosen not to make available to this court a copy of

the informal opinions at issue, this court has no means by

which to assess whether or not there was thorough considera-

tion of the issues by General Counsel, or to assess the validity

of the reasoning used by General Counsel in reaching the con-

clusion which he did.

The question here in issue involves one of statutory construc-

tion — nothing more, nothing less. Inasmuch as there has

been — and cannot be — any showing that General Counsel

participated in the legislative formulation of Title VII, there is

lla

no reason to believe that General Counsel — despite his exper-

tise in other areas — is in any better position to construe the

phrase “for each working day” than the Court itself.

Despite plaintiff's suggestion to the contrary, there has been

no showing that subsequent re-enactments of Title VII reflect-

ed legislative approval of the informal opinion issued by Gen-

eral Counsel, for the simple and obvious reason that there has

been no showing whatsoever that Congress has ever been

made aware of those decisions.

Although General Counsel’s opinions were issued shortly

after Title VII became operative, there has been no showing

that General Counsel, or, for that matter, anyone else em-

ployed by EEOC, was “especially informed” of the

legislature's intent.

Finally, the informal opinion was short in duration, inas-

much as the Chairman of the EEOC publicly disclaimed that

the opinions were official interpretations of that Agency just

four years later.

In short, although informal administrative rulings may be

given some weight under certain circumstances, this is not that

case. The informal opinions lacked all the attributes which

would contribute to the authoritative weight of such informal

opinions. The Chairman of EEOC specifically disclaimed

those opinions as those of EEOC. Given the plain meaning of

the words of 42 U.S.C. 2000e(b) — a meaning fully consistent

with relevant legislative intent — it would be a drastic depart-

ure from accepted canons of statutory construction to accept

the construction urged by plaintiff, simply because General

Counsel of EEOC, on the basis of reasoning not yet made

known to this court, chose to ignore the plain meaning of the

statute, and substitute his own concept of the scope of power

entrusted to EEOC as well as this Court.

12a

This court accordingly reaffirms its earlier Report and Rec-

ommendation, and recommends that the Court allow defend-

ant’s motion for summary judgment for the reasons stated.

/s/

UNITED STATES MAGISTRATE

13a

Appendix C.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

VIRGINIA THURBER, )

Plaintiff, )

) CIVIL ACTION

v ) NO. 77-33-G

) DOCKETED

JACK REILLY’S INC., )

Defendant. )

MEMORANDUM OF DECISION

August 20, 1981

GARRITY, J.

Plaintiff Virginia Thurber brought this action against Jack

Reilly's Inc., (hereafter Jack’s) alleging discrimination against

her on the basis of gender, in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seqg., and under the

Massachusetts antidiscrimination statute, M.G.L. c. 151B.

Defendant is an employer within the meaning of Title VII,

and all jurisdictional requirements have been met. Jurisdic-

tion over this actioin is therefore proper under 42 U.S.C.

§ 2000e-5(f) (3) and 28 U.S.C. § 1343. We have pendent jur-

isdiction over the state law claim.

At the conclusion of the non-jury trial of this case on May 5,

1981, the court entered findings of fact and conclusions of law

in favor of the plaintiff as to the liability issues raised by this

litigation and made preliminary findings as to damages, but,

on defendant's motion, reserved the final determination of

damages pending the submission of the plaintiffs tax returns

l4a

for the years in question. We have been informed by defend-

ant’s counsel that the returns have been received and that they

confirm plaintiff's trial testimony to the effect that she had no

income during the period from May 31, 1975 through July 1,

1976. Therefore, the damage issue is now ripe for decision.

At the trial of this action, plaintiff established that she was

first employed as a waitress at Jack’s for approximately two

weeks in November, 1972, and that she voluntarily terminated

her employment there at that time. She was rehired as a wait-

ress at Jack’sgbeginning in November, 1973, with the under-

standing that she had had bartending experience and would be

interested in applying for any bartending positions which

became available. During the subsequent period, plaintiff

satisfactorily performed her responsibilities as a waitress.

On or about the second week in November, 1974, and sev-

eral times thereafter, Thurber requested Jack’s management

to promote her to bartenders’ positions which became avail-

able periodically. Despite the defendant's manager's knowl-

edge of Thurber’s desire to be employed as a bartender, her

previous work experience in that capacity, and her job senior-

ity, the defendant refused to promote her to the position of

bartender trainee, and consistently hired only males for these

positions. As we stated in our findings in open court at the end

of the trial in this case, by failing to promote the plaintiff

despite her job qualifications, due to her sex, the defendant,

through its agents, intentionally discriminated against her on

the basis of her gender, in violation of her rights under Title

VIl and M.G.L. c. 151B. Finally, on or about May 31, 1975, in

retaliation for her continued insistence on a promotion, Jack’s

managers constructively discharged Thurber by reducing her

work schedule from three shifts per week to one, effectively

cutting her wages by two-thirds. The plaintiff left her em-

ployment at Jack's at that time.

l5a

During the period following her constructive discharge on

May 31, 1975, Thurber attempted to locate work. She even-

tually obtained employment as a full-time bartender at the

Harvest Restaurant in Cambridge on July 1, 1976, where she

continued to be employed until January, 1977, when she was

laid off due to a drop in business.

We turn now to the finding of fact and conclusions of law

with respect to damages. We note, preliminarily, that under

the circumstances of this case, the same issues are presented

with respect to the state anti-discrimination statute and Title

VII.' We note, too, that the plaintiff's damages can be divid-

ed into two categories: those sustained during the period after

she demanded a promotion but before she was constructively

discharged (from mid-November, 1974 until May 31, 1975),

and those sustained during the period of her unemployment

(from May 31, 1975 through July 1, 1976).

We turn first to the amount recoverable by the plaintiff for

the period that she remained employed at Jack’s, after her

mid-November request for a promotion. During this period,

Thurber sustained economic loss entitling her to back pay,

which shall be computed as the gross amount, including wages

and gratuitities, that the plaintiff would have earned had she

been employed at Jack’s as a bartender.

At the conclusion of the trial, we made the following pre-

liminary findings of fact with respect to damages sustained by

the plaintiff while she continued to work at Jack’s.

(1) The plaintiff sustained no economic loss for the eight-week

period she would have spent as a bartender trainee.

'In addition to back pay, which is recoverable under both statutes, plain-

tiff originally sought an award of damages beyond back pay under the state

statute, citing Bournewood Hospital Inc. v. Massachusetts Commission

Against Discrimination, 1976, 371 Mass. 303. However, plaintiff has with-

drawn her request for damages beyond those available under Title VII.

l6a

(2) The period for which plaintiff is entitled to damages is to

be measured from the time of her first request for a promo-

tion which should have been granted, in mid-November,

1974, until her constructive discharge on or about May 31,

1975 — a period of twenty weeks.

(3) The plaintiff worked an average of three 9-hour shifts, or

27 hours, per week, and she would have continued to work

the same number of hours had she been promoted to bar-

tender.

(4) During the 1974-75 period, a waitress’ salary was

$1.20/hour and that of a bartender was $3.00/hour, the

salary differential being $1.80/hour.

(5) On the average, an experienced bartender earned $50 in

tips per shift, and plaintiff earned an average of $35 per

shift in tips, the differential in gratuities being $15 per

shift.

Based on these findings of fact, which we reaffirm, we con-

clude that plaintiff would have earned $972 more in salary,

and $900 more in gratuities, had she been employed as a bar-

tender during the period following the discriminatory denial

of her request for a promotion. Therefore, the back pay

award for this period is $1,872.

The defendant argues that the plaintiff is not entitled to any

damages for the period following her constructive discharge

because she failed to carry the burden of demonstrating that

she attempted to mitigate damages by seeking other employ-

ment. We disagree. It is well established that the willful loss

of earnings is an affirmative defense, and the burden of prov-

ing it rests with the employer. EEOC v. Kallir, Philips, Ross,

Inc., S.D. N.Y., 1976, 420 F.Supp. 919, 924, affd, 2 Cir.,

1977, 559 F.2d 1203; Kaplan v. Theatrical Employees Local

659, 9 Cir., 1975, 525 F.2d 1354, 1363; Sprogis v. United Air

Lines, Inc., 7 Cir., 1975, 517 F.2d 387, 392. To fulfill this

burden, the defendant must show more than that there were

l7a

further actions that plaintiff could have taken in pursuit of

employment. Rather, the defendant must show that the

course of conduct plaintiff actually followed was so deficient

as to constitute an unreasonable failure to seek employment.

The range of reasonable conduct is broad and the injured

plaintiff must be given the benefit of doubt in assessing her

conduct. EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. at

925. The conduct which will bar recovery of back pay under

the National Labor Relations Act, upon which the back pay

provisions of Title VII were modeled, Albemarle Paper Co. v.

Moody, 1975, 422 U.S. 405, 419 n. 11, has been characterized

as “a clearly unjustifiable refusal to take desirable new

employment” or “a willful loss of earnings,” Phelps Dodge

Corp. v. NLRB, 313 U.S. 177, 199-200; NLRB v. Arduini

Mfg. Corp., 1 Cir., 1968, 394 F.2d 420, 423; NLRB v.

Cashman Auto Co., 1 Cir., 1955, 223 F.2d 832.

The defendant has completely failed to carry its burden of

showing failure to mitigate. Plaintiff used various means in

an unsuccessful effort to locate employment, including listings

with the state unemployment agency, bulletin boards and per-

sonal contacts. She did not limit her search to any particular

kind of employment, but sought jobs as a waitress, bartender,

and clerical worker. She made frequent applications for

employment and never turned down an offer of employment.

Therefore, plaintiff is entitled to recover for the period of her

unemployment.

The amount recoverable by Thurber for her period of

unemployment raises another legal question. Plaintiff claims

that she is entitled to a back pay award representing the full

bartender’s salary ($3.00 per hour) plus gratuities ($50 per

shift), assuming a 27 hour work week, for the 60 week period

of her unemployment, for an award of $13,860 for this period.

If added to the pre-discharge damages of $1,872, the total

award would be $15,732. The defendant argues that the

18a

plaintiff's award must be reduced by the amount of unemploy-

ment compensation and food stamps she deducted during this

period.

The courts are split concerning whether unemployment

compensation should be deducted from a recovery of back pay

under Title VII. The cases holding that state unemployment

compensation should not be deducted reason that such pay-

ments are made to pursue an independent social policy, and

that an employer guilty of discrimination should not obtain

the benefits of that policy. Abron v. Black & Decker Mfg.

Co., D. Md., 1977, 439 F.Supp. 1095, 1115; Tidwell v.

American Oil Co., D. Utah, 1971, 332 F.Supp. 424; see also

NLRB vy. Gullett Gin Co., 1950, 340 U.S. 361, 364 (holding

that state unemployment payments are not deductible from a

backpay award under the National Labor Relations Act). Sev-

eral courts, however, have held that these payments are

deductible. EEOC v. Steamfitters Local 638, 2 Cir., 1976,

542 F.2d 579, 591-92; Satty v. Nashville Gas Co., 6 Cir., 1975,

522 F.2d 850, 855, petition for cert. filed 44 U.S.L.W. 3254

(U.S. Oct. 28, 1975). EEOC v. Kallir, Philips, Ross, Inc. , 420

F.Supp. at 925, aff'd 2d Cir., 1977, 559 F.2d 1203. This view

is based on the notion that “[t ]he back pay award is not puni-

tive in nature, but equitable — designed to restore the recipi-

ents to their rightful economic status absent the effects of the

unlawful discrimination,” Robinson v. Lorillard Corp., 4

Cir., 444 F.2d 791 at 802, petition for cert. dismissed, 404

U.S. 1006 (1971), and that, therefore, “there is no compelling

reason for providing the injured party with double recovery

for his lost employment.” EEOC v. Steamfitters Local 638,

supra at 592.

Under the particular circumstances of this case, we con-

clude that the amount that Thurber received in unemploy-

ment benefits should be deducted from her award. The more

recent Court of Appeals decisions, cited above, have upheld

19a

deductions of this sort. Also, equitable considerations militate

in favor of a reduction of the gross back pay award here. The

unemployment compensation paid to the plaintiff is not recov-

erable from her by the commonwealth under M.G.L. c. 151A,

§ 69, and, since Thurber remained unemployed for a relatively

long period of time, the amount involved is not insubstantial.

In our opinion, under these circumstances a double recovery is

not necessary to make plaintiff whole for the injury she sus-

tained due to defendant's discriminatory actions. For the

same reasons, the amount plaintiff received in food stamps

during her period of unemployment shall be deducted from

her back pay award.’?

With this reduction, the damages recoverable by the plain-

tiff as back pay are $13,675. Since prevailing plaintiffs in Ti-

tle VII actions are entitled to a reasonable rate of interest on

an award of back pay in order to compensate them for the loss

of the use of the money during the back pay period, Chastang

v. Flynn & Emrich Co., D. Md., 1974, 381 F.Supp. 1348,

aff'd 541 F.2d 1040 (4 Cir. 1976); Howard v. Ward County,

D. N.D., 1976, 418 F.Supp. 494, 506; DiSalvo v. Chamber of

Commerce, W.D. Mo., 1976, 416 ©.Supp. 844, modified, 568

F.2d 593 (8 Cir., 1978), Thurber shall be awarded prejudg-

ment interest in the amount of eight per cent per annum

measured from the dates on which she should have received

her bartender’s wages.°

* Plaintiff testified that she received $23 per week in unemployment com-

pensation for all but one of the sixty weeks that she was unemployed, for a

total of $1,357. In addition, she received $700 in food stamps during this

period. The total deduction is therefore $2,057.

* Counsel shall endeavor to stipulate this amount of interest. A first draft

of such a computation shall be prepared by plaintiff's counsel and presented

to defense counsel within two weeks of the date of this memorandum of deci-

sion. If the parties are unable to agree, they shall submit their disagreement

to Deputy Clerk Moynahan.

20a

The plaintiff having prevailed, she is, under the circum-

stances of this case, entitled to an award of attorneys’ fees pur-

suant to 42 U.S.C. § 2000e-5(k). On July 27, 1981, plaintiff's

counsel submitted a detailed application for attorneys’ fees

and costs. accompanied by a supporting affidavit. Counsel

for the plaintiff and defendant are to confer and attempt to

reach a stipulation on the amount of attorney's fees recover-

able by the plaintiff. If such stipulation is not reached, de-

fendant shall file an opposition to plaintiff's counsel's petition,

accompanied by a supporting memorandum, within ten days

of the date of this order, and plaintiff shall file its response

thereto, if any, within seven (7) days thereafter. It is further

ordered that plaintiff's counsel submit a form of judgment in

conformity with the rulings set forth in this opinion within 20

days.

W. ArtTHuR Garrity Jr.

United States District Judge

2la

Appendix D.

United States Court of Appeals

for the First Circuit

No. 83-1024

VIRGINIA THURBER,

PLAINTIFF, APPELLEE,

JACK REILLY’S, INC., d/b/a JACK’S,

DEFENDANT, APPELLANT.

JUDGMENT

Entered September 14, 1983

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the District

Court is affirmed.

By the Court:

FRANCIS P. SCIGLIANO

Clerk.

22a

Appendix E.

United States Court of Appeals

for the First Circuit

No. 83-1024

VIRGINIA THURBER,

PLAINTIFF, APPELLEE,

JACK REILLY’S, INC., d/b/a JACK’S,

DEFENDANT, APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. W. Arthur Garrity, Jr., U.S. District Judge]

Before

Coffin and Breyer, Circuit Judges,

and Skinner,* District Judge.

Bruce McNeill, with whom Bradley, Barry & Tarlow, P.C..,

was on brief, for appellant.

* Of the District of Massachusetts, sitting by designation.

23a

Philip M. Weinberg, with whom Geller & Weinberg was on

brief, for appellee.

September 14, 1983

SKINNER, District Judge. This appeal from the district

court’s denial of the defendant’s motion to dismiss and final

judgment for the plaintiff presents the sole issue of the proper

interpretation of the definition of employer under Title VII,

42 U.S.C. § 2000e(b).

Plaintiff Thurber began working in November, 1973 as a

waitress at a bar and restaurant known as “Jack’s” operated by

the defendant. Sometime in 1974 she applied for a higher

paying position as a bartender. Jack’s followed a practice of

hiring only males as bartenders, however, and refused to train

her for the position. Thurber thereafter complained that

Jack’s was discriminating against her. In response to her com-

plaints, Jack’s reduced her scheduled working hours by two-

thirds. She quit her job in May, 1975.

Thurber filed a complaint in the United States District

Court in which she alleged that Jack’s discriminated against

her on the basis of her sex in violation of Title VII, 42 U.S.C.

§ 2000e. She subsequently amended her complaint to add a

count under Mass. Gen. Laws c. 151B, the Massachusetts dis-

crimination in employment statute.

Jack’s brought a motion to dismiss the complaint for lack of

subject matter jurisdiction, contending that it was not an

employer as defined by § 2000e(b) because it did not have the

requisite number of employees. 42 U.S.C. § 2000e(b) provides

in pertinent part:

24a

The term “employer” means a person engaged in an in-

dustry affecting commerce who has fifteen or more

employees for each working day in each of twenty or

more calendar weeks in the current or preceding calendar

we...

Civil Rights Act of 1964, § 701(b), 78 Stat. 260, as amended 86

Stat. 104-105 (1972), 42 U.S.C. § 2000e(b) (1976). Jack’s is a

small bar in Cambridge, Massachusetts which operates by

having approximately 9 employees report to work each day.

Some of these employees work full time; most, however, work

part time. In order to remain open 7 days a week, Jack’s

maintained more than 15 employees on the payroll for more

than 20 weeks during the relevant time although no more than

11 employees ever reported for work on any one day.

The magistrate interpreted § 2000e(b) as requiring that a

business have 15 or more employees who reported to work for

each working day and recommended that the motion to dis-

miss be allowed. The district court rejected that recommen-

dation, and denied the motion to dismiss on the basis that the

number of employees should be determined by examining the

payroll and not by counting the number of employees who

report to work. After a bench trial, the court entered judg-

ment for the plaintiff.

Every court which has addressed the issue has held that

regular part-time employees are employees within the mean-

ing of § 2000e(b). E.g., Pedreyra v. Cornell Prescription

Pharmacies, 465 F.Supp. 936, 941 (D. Colo. 1979); Hornick v.

Borough of Durvea, 507 F. Supp. 1091. 1097 (M.D. Pa. 1980);

cf. Pascutoi v. Washburn-McReavy Mortuary, 11 F.E.P.

1325, 1327 (D. Minn. 1975); see Dumas v. Town of Mount

Vernon, 612 F.2d 974, 979 n.7 (5th Cir. 1980), see also 2 Lar-

son, Employment Discrimination, § 5.32, (Matthew Bender &

25a

Co. 1973). The appellant has cited no authority to the con-

trary. The part-time employees excluded by the court in

Takeall v. Werd, Inc., 23 F.E.P. 947, 948 (M.D. Fla. 1979)

were occasional help, hired only to fill in for isolated vacation

days of the regular employees.

Appellant relies only on its unsupported assertion that the

insertion of the words “for each working day” in the statute

necessarily imports a Congressional intent to restrict applica-

tion of the statute to employers who had 15 or more employees

actually at work on each working day in each of 20 or more

calendar weeks. While Congressional debate on enactment of

Title VII revealed concern for the over-regulation of small

family or neighborhood businesses, the legislative history

generally weighs heavily against the appellant's position.

For instance, Senator Dirksen, a co-sponsor of Title VII,

stated that the definition of “employer” in Title VII was bor-

rowed from the Unemployment Compensation Act (26 U.S.C.

§ 3304 (1954)). 110 Cong. Rec. 13087 (1964). Under Rev.

Rule 55-19, Regulation 107, § 403.205 (1955) an employee is to

be counted under the Unemployment Compensation Act for

each day that an employment relationship exists regardless of

whether the employee reported to work each day. This ruling

had been in force for nine years prior to the enactment of Title

VII. Title VII was considered a generally remedial statute,

and the prevailing majority in Congress intended to give it

broad effect. Comments of Senators Morse, Saltonstall and

others, 110 Cong. Rec. 13087-13082.

In 1972, the statutory definit on of employee was amended

to reduce the requisite number of employees from 25 to 15. 86

Stat. 103, Pub. L. 92-261, § 2. While the legislative history

reveals that the number 15 was a compromise figure, there is

nothing in the record to indicate a Congressional intent to re-

quire that employees report to work on each day that they are

included. See 92 Cong., Ist Sess., U.S. Code Congressional &

Admin. News 1972, pp. 2513-2519.

26a

It is true that the interpretation given to the statute by the

district court might sweep into the ambit of the statute a few

truly “Mom and Pop” stores, which employ a large number of

part-time employees in order to keep open long hours. The

burden on such businesses. however, is the relatively modest

one of forbearance from discrimination in employment. In

our opinion, the inclusion of such stores offends less against the

policy of the statute than does the exclusion of businesses such

as the appellant.!

In short, we find no basis in authority, canons of statutory

interpretation, legislative history or public policy to support

the appellant's position.

Accordingly, the judgment of the District Court is affirmed.

‘We note that both the Third and Sixth Circuits have adopted a broad

reading of “employee” in another context in order to effect the remedial pur-

pose of the statute. Equal Employment Opportunity Commission v. Zippo

Manufacturing Co.. ___ F.2d ___._ (3d Cir. 1983) 52 L.W. 2089; Arm-

bruster v. Quinn, ____ F.2d ____ (6th Cir. 1983) 52 L.W. 2056.

27a

Appendix F.

United States Court of Appeals

for the First Circuit

No. 83-1024

VIRGINIA THURBER,

PLAINTIFF, APPELLEE,

v.

JACK REILLY’S, INC., d/b/a JACK’S,

DEFENDANT, APPELLANT.

Berore Corrin & Breyer, Circuit Judges,

and SkinNER*, District Judge.

ORDER OF COURT

Entered October 14, 1983

Upon consideration of appellant’s “Petition for Rehearing”,

It is ordered that the “Petition for Rehearing” be, and the

same hereby is, denied.

By the Court:

FrANcIs P. ScIGLIANO

Clerk.

* Of the District of Massachusetts, sitting by designation.

29a

Count by Appendix G.

Primary

Only RANGE BY EMPLOYEES HERE

NOT

DESCRIPTION 0-4 5-9 10-14 15-19 20-49 50-99 100 + SHOWN TOTAL

1-9 agri, 87,285 22,761 6,683 2,470 4,254 1,141 766 1,976 127,336

forrest, 69 % 18% 5% 2% 3% 1% 1% 2%

fish

10-14 21,476 9,119 4,265 2,142 4,964 1,723 1,951 928 46,568

mining 46 % 20 % 9% 5% 11% 4% 4% 2%

15-17 439,702 100,811 35,485 15,153 29,163 7,998 4,837 7,032 640,181

contract 69 % 16% 6% 2% 5% 1% 1% 1%

const

20-39 154,903 7.564 43.593 23,699 63,675 30,544 40,459 12,494 456,931

manufac- 34% 19% 10% 5% 14% 7% 9% 3%

turing

40-49 trans. 88.259 40,065 18,035 9.013 19,573 6,852 6,478 4,837 193,112

comm, 46% 21% 9% 5% 10% 4% 3% 3%

util

50-51 261,628 126,661 49,029 22.669 40,605 9,767 5,199 11,420 526,978

wholesale 50% 94% 9% 4% 8% 2% 1% 2%

trade

52-59 822,497 302,802 94,034 41,355 79,442 20,258 8,829 20,844 1390,061

retail 59% 22% 7% 3% 6% 1% 1% 1%

trade

60-69 209,132 65,884 24,269 11.244 23,051 7,236 6,351 51,303 398,470

finance, 52% 17% 6% 3% 6% 2% 2% 13%

ins & R

70-89 627,911 212,852 79,076 39,570 85,248 30,199 29,183 50,460 1154,499

services 54% 18% 7% 3% 7% 3% 3% 4%

grand totals 2712,793 968,519 354,469 167,315 349,975 115,718 104,053 161,294 4934,136

55 % 20 % 7% 3% 7% 2% 2% 3%