# Petition — Jack Reilly's, Inc. v. Thurber > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1012%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 904 ## Text 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% --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1012%3A1. Public record. Not legal advice.