Petition — Michigan Department of Mental Health v. Rasimas

Supreme Court brief1984

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gs-1258 [~rr |

NO. eseneeeerseses.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

MICHIGAN DEPARTMENT OF

MENTAL HEALTH, Petitioner,

DAVID L. RASIMAS, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK J. KELLEY

Attorney General

Louis J. Caruso

Solicitor General

‘George L. McCargar

Craig Atchinson (P23953)

Assistant Attorneys General

QUESTIONS PRESENTED FOR REVIEW

I. Whether the decision by the Court of

Appeals that respondent timely filed a

charge of employment discrimination with

the Equal Employment Opportunity Commis-

sion is in direct conflict with Mohasco

Corp v Silver, 447 US 807 (1980).

A. Whether Mohasco Corp v Silver

should be given retroactive effect.

B. If Mohasco is not to be applied

retroactively, Te the doctrine

announced in Davis v Cal Corp, 627

F2d 674 (3rd Cir, | 1985) sho ld be

applied retroactively and whether to

do so conflicts with other decisions

of the Court of Appeals applicable in

1975 and 1976 requiring that the

charge of employment discrimination

be. filed with the Michigan Civil

Rights Commission or the EEOC within

180 days from the date of discharge.

II. Whether the Court of Appeals has

decided the question of discrimination in

a way which is in conflict with Texas De

of Community Affairs v Burdine,

TI9 .5. Postal Service Board of

Governors v Aikens, Us, 75 L gd ad,

403, 103 s ct 1478 (1583) by permitting a

finding of discrimination to be affirmed

court of s found that petitioner

"inten y discriminated against" the

TABLE OF CONTENTS

Questions Presented for :

Review > > > > > * * > > >. > . > —

Index of Authorities .....s«.-.

Opinion Below. > _ > > .* - > - —

Jurisdiction — > >. * >. > > >. * >. >

Statutes and Code Provisions

Involved . > > > hl > > —_ > * > >. >

Statement of the Case. .....-

Reasons for Granting the

Writ. * — >. — _ . >. >. o 7 > * > .

I. The decision by the Court of

Appeals that respondent timely

filed a charge of employment

discrimination with the Equal

Employment Opportunity Commis-

sion is in direct conflict with

Mohasco Corp v Silver, 447 US

Ger (aueee 2c ses 2

A. Mohasco Corp v Silver

should be given retroactive

effect > > _ >. _ > o > > > >

B. If wopasce is not to

iii

Page No.

of the Court of Appeals

applicable in 1975 and 1976

requiring that the charge

of employment discrimination

be filed with the Michigan

Civil Rights Commission or

the EEOC within 180 days from

the date of discharge. .... .30

II. The Court of Appeals has

decided the question of discri-

crimination in a way which is in

rt err Texas De ept of

Community Affairs v e, |

730 US 248, 67 Led 22-207 (1981)

and U.S. Postal Service Board of )

Governors Vv Aikens, us"

tC £da 2d, 403-103 3 s tt” —_~{1983)

by permitting a finding of discri-

mination to be affirmed when

neither the District Court nor the

Court of Appeals found that peti-

tioner “intentionally discriminated

against" the respondent. .... .- .33

III. The decision of the Court of

Appeals of the Sixth Circuit that

unemployment benefits should not

be deducted on back pay awards is

in conflict with the decision of

other federal Courts of Appeals. . . 37

Comneiusie® « wc: s ¢ bee. 6 0. + «12 bo

INDEX OF AUTHORITIES

Cases Page No.

Boich v Federal Mines Safety and

702 F

ealth Review Comm'n, 2a

’ 1983) . . . . . . . . . 39

Chevron Oil Co v Huson, 404

Us 5 ’ (Is71) . > >. > > > 7 > > >. . >. 26

Davis v Calgon Corp, 627 F2d

674 (CA 3, 8 eo. 6 © « 046,22,23,30,31

1 Employment 9p rtunity Comm'n

Vv terprise As atic i's Steam

Pitters Local 635, 542 F724 575

i. . 7 . . a . . . 39

Geromette v General Motors Corp,

1200 (6th cir, 157 me tere | |

Grant v Bethlehem Steel C

622 F2d 43 (ond Cir, L' met Lime = re

Hall v Ledex, Inc., 669 F2d

Ye ££ ~ a >

Jones v AIRCO Carbide Chemical Co,

“651 F2d 1200 (eth Cir, 1982)... . 22

Merriweather v Hercules, Inc.,

1 (5th Cir, 1580) .... 39

Mohasco Co v Silver, 447 US

807 TTB} « « «© 0215716,18,19,23,24,29

Moore v Sunbeam Corp, 459 F2d

“SII (7th Cir, 1 ek MES ge eer wow Ae

Olson v andt Prin Co,

Sty 2a Tae (8th Cie Ta7 ee

om banc) 2. 2-2 ee ee eee ewe 32

‘nt bone eked >, - ae ee) AA eee Ps ™ soe.

Page No.

Rasinas v Michigan Dept of ental

, No. ?7- 716 ED |

Se =e 16, 1980) oA Ae.ie O62. Te @ 4 - 2

Rasimas v iad ¢ Dept of Mental

“Foateh 7 th cir,

1983). . + + . + - 7 3,4,19,36,38,4l

Texas oe S of Community Affairs

“Gs0 us 248 (1981) -33,34,36

U.S. Postal Service Beare of

ernors v Aikens, JU:

a, TOs sce 78—

(1983) . . . 7 . . _ oe ~ . . a . 33,34

Wiltshire v Standard Oil of

Ornia, 652 Fea 837? (Sth

, cert den 455 US

1034 CAGED 6 o selccee- ett @ o ote? ad

Zapes v Trans World Airlines, Inc.,

3 9 e ’

I ent Federation of Flight

ingepenet v Trans World Air s,

Inc., 456 us 940 (1582). ©. .3,18,21,24

Other

28 usc 1254(1). . . . . . - .

42 USC 2000e, et seq. ....

42 USC 2000e-2(a) (1).

42 USC 2000e-2(a) ......

42 USC 2000e-S(e) . .

42 USC 2000e-5(c) ......

a :

42 usc 2000e-5 (3g) ows ee 2 e @

29 CFR § 1601.12(b) (1) (v) (A)

(1975) en ee ew. Pe, One

29 CFR § 1601.74. a. eee” ee

MCL 423.307(b)- - + +++? °*

NO. sccccces

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

MICHIGAN DEPARTMENT OF

MENTAL HEALTH,

Petitioner,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

SIXTH CIRCUIT

OPINIONS BELOW

Respondent Rasimas, a white male,

claimed that he was discriminatorily

discharge from his job with the Michigan

Department of Mental Health because of

his gender. He brought an action under

Title VII of the Civil Rights Act of

1964, as amended, 42 USC 2000e, et seg.

After trial, the United States District

Court for the Eastern District of Michigan,

> -

= 2 Bax Eine - , RAN Oe ee er

ati La * a PCT ee ee a ee 2

Southern Division, the Honorable James

Harvey presiding, rendered a memorandum

opinion and order and judgment dismissing

the case. David L. Rasimas v Michigan

Dept of Mental Health, No. 77-71697 (ED

Mich, Sept. 16, 1980). The Court found

that David L. Rasimas did not timely file

a charge of employment discrimination

with the Equal Employment Opportunity

Commission. Mohasco Corp v Silver, 447

US 807 (1980). The Court also found that

Rasimas' discharge on July 15, 1975 was

the product of illegal discrimination

based upon his sex. 42 USC 2000e-2(a) (1).

Purther, the Court found that Rasimas

failed to make reasonably diligent

efforts to obtain other employment to

mitigate his damages.

David L. Rasimas appealed from |

the order of the district court on the 2

question of timeliness and mitigation of

damages. Michi... vepartment of Mental

-3-

: Health filed a cross appeal on the issue

of discrimination. In Rasimas v Michigan

Dept of Mental Health, 714 F2d 614 (6th

Cir, 1983), a majority of the Court

affirmed the sex discrimination finding

but reversed the timeliness and miti-

gation of damages determinations. Since

the District Court never fully addressed

the back pay issue, the Court of Appeals

remanded the action to the District Court

for further proceedings. On remand the

District Court was to award back pay in

accordance with various guidelines out-

lined by the Court. Senior District

Judge Hoffman concurred in part and

dissented in part. He would have vacated

and remanded the case to permit the lower

court to make specific findings and

# conclusions in light of Zipes v Trans

World Airlines, Inc., 455 US 385 (1982),

reh'g denied, Independent Federation of

Flight Attendants v Trans World Airlines,

Inc., 456 US 940 (1982). Further, he

Si. ss “ 7 tied oe bin A eee at. Td eee

would have remanded the case for addi-

tional findings as to the existence of

intentional discrimination. As to miti-

gation of damages, whether unemployment

insurance benefits should be deducted

from an award of back pay should be left

to the sound discretion of the trial

judge.

Michigan Department of Mental

Health filed a petition for rehearing on

November 2, 1983. The rehearing was

denied. Rasimas v Michigan Dept of

Mental Health, 714 F2d 614 (6th Cir,

reh'g denied, November 2, 1983).

-5-

JURISDICTION

Petitioner seeks review of the

Court of Appeals opinion decided and

filed July 28, 1983 and order denying

rehearing filed November 2, 1983. This

Court's jurisdiction is invoked under 28

usc 1254(1).

STATUTES AND CODE

PROVISIONS INVOLVED

42 USC 2000e-2(a) states:

"(a) It shall be an unlawful

employment practice for an

employer--

"(1) to fail or refuse to

hire or to discharge any

individual, or otherwise to

discriminate against any

individual with respect to his

compensation, terms, conditions,

or privileges or employment,

because of such individual's

race, color, religion, sex, or

national origin; or

"(2) to limit, segregate, or

classify his employees

applicants for nirptiome +

-6-

status as an employee, because

of such individual's race,

color, religion, sex, or national

origin."

42 USC 2000e5(c) states:

"(c) State or local proceedings.

In the case of an alleged

unlawful employment practice

occurring in a State, or

political subdivision of a

State, which has a State or

local law prohibiting the

unlawful employment practice

alleged and establishing or

authorizing a State or local

authority to grant or seek

relief from such practice or to

institute criminal proceedings

with respect thereto upon

receiving notice thereof, no

charge may be filed under

subsection (a)[(b)] by the

person aggrieved before the

expiration of sixty days after

proceedings have been commenced

under the State or local law,

unless such proceedings have

been earlier terminated,

provided that such sixty-day

period shall be extended to one

hundred and twenty days during

the first year after the

effective date of such State or

local law. If any requirement

for the commencement cf such

proceedings is imposed by a

State or local authority other

than a requirement of the

filing of a written and signed

statement of the facts upon which

the proceeding is based, the

yen

proceeding shall be deemed to

have been commenced for the

purpose of this subsection at

the time such statement is

sent by registered mail to the

appropriate State or local

authority."

42 USC 2000e-5(e) states:

"“(e) Time for filing charges.

A charge under this section

shall be filed within one

hundred and eighty days after

the alleged unlawful employ-

ment practice occurred and

notice of the charge (in-

cluding the date, place and

circumstances of the alleged

unlawful employment practice)

shall be served upon the

person against whom such

charge is made within ten days

thereafter, except that in a

case of an unlawful employment

practice with respect to which

the person aggrieved has

initially instituted proceed-

ings with a State or local

agency with authority to grant

or seek relief from such

practice or to institute

criminal proceedings with

respect thereto upon receiving

notice thereof such charge

shall be filed by or on behalf .

of the person aggrieved within ;

three hundred days after the ;

alleged unlawful employment Ps

practice occurred, or within P

thirty days after receiving

notice that the State or local i

agency has terminated the

proceedings under the State or

local law, whichever is earlier,

and a copy of such charge

shall be filed by the Commis-

sion with the State or local

agency."

42 USC 2000e-5(g) states:

"(g) If the court finds that

the respondent has intentionally

engaged in or is intentionally

engaging in an unlawful employ-

ment practice charged in the

complaint, the court may

enjoin the respondent from

engaging in such unlawful

employment practice, and order

such affirmative action as may

be appropriate, which may

include, but is not limited

to, reinstatement or hiring of

employees, with or without

back pay (payable by the

employer, employment agency,

or labor organization, as the

case may be, responsible for

the unlawful employment prac-

tice), or any other equitable

relief as the court deems

appropriate. Back pay liabi-

lity shall not accrue from a

date more than two years prior

to the filing of a charge with

the Commission. Interim

earnings or amounts earnable

with reasonable diligence

the person or persons discri-

minated against shall operate

to reduce the back pay other-

wise allowable. No order of

the court shall require the

admission or reinstatement of

an individual as a member of a

union, or the hiring, re-

instatement, or promotion of

an individual as an employee,

or the payment to him of any

back pay, if such individual

was refused admission, sus-

pended, or expelled, or was

refused employment or advance-

ment Or was suspended or

discharged for any reason

other than discrimination on

account of race, color, religion,

sex, or national origin or in

violation of section 2000e-

3(a) of this title."

29 CFR § 1601.12(b) (1) (v) (A) (1975)

states:

"In cases where the document

is submitted to the Commission |

more than 180 days from the

date of the alleged violation

but within the period of

limitation of the particular

706 Agency, the case shall be

deferred pursuant to the

procedures set forth above:

Provided That unless

the Conni sete te eariies

notified of the termination of

the State or local proceedings,

the Commission will consider

the ameye to be filed with

Gey Soltenag taeteel

y fo

discrimination and will com-

mence processing the case.

Where the State or local

agency terminates its pro-

ceedings prior to the 300th

-10-

day following the alleged act

of discrimination, without

notification to the Commission

of such termination, the

Commission will’ consider the

charge to be filed with the

Commission on the date the

person making the charge was

notified of the termination."

MCL 423.307(b) states:

"(b) Any individual claiming

to be aggrieved by an alleged

unlawful “employment practice

may, by himself or his agent,

make, sign and file with the

board, within 90 days after

the alleged act of discri-

mination, a verified complaint

in writing, which shall state

the name and address of the

person, employer, labor organi-

zation or employment agency

alleged to have committed the

unlawful employment practice

complained of, and which shall

set forth the particulars

thereof and contain such other

information as may be required

by the board. Any employer

whose employees, or some of

whom, refuse or threaten to

refuse to cooperate with the

provisions of this act, may

file with the board a verified

complaint asking for assistance

by conciliation or other

remedial action."

stile

STATEMENT OF THE CASE

Respondent, David Rasimas, is a

white male(1)2 who, on May 18, 1975 was

employed by the Michigan Department of

Mental Health as a Mental Retardation

Program Supervisor 10 at the Macomb-

Oakland Regional Center (MORC).(6) He

was hired on the recommendation of two

women, Jan Nagy and Caron Bender~-Swietec.

(10) His responsibilities included

working with children who are mentally

retarded and developmentally disabled and

supervising staff personnel who also

carry out the therapeutic program being

provided to the children.(12) He super-

vised women and his two immediate super-

visors were women (Nagy and Swietec). (7

&. 8)

lReferences are to numbered para-

graphs in the Memorandum Opinion and

Order of the District Court, September

16, 1980, under "Findings of Pact."

-12-

On July 15, 1975, he was terminated

for unsatisfactory service. The ultimate

decision to terminate him was made by a

male. Factors leading to that conclusion

included his failure to maintain good

relationships with his staff, his failure

to satisfactorily implement supervisory

directives, his failure to take adequate

precautions for the health and safety of

the resident-patients under his super-

vision, and his failure to make adequate

progress in developing the skills neces-

sary in his position. (35)

The incident which precipitated his

termination occurred on July 12, 1975

when the respondent and three staff

members took four resident patients to

Belle Isle in a van. During the course

_Of the trip, one of the children began to

vomit, had seizures, was trembling, had

incipient cyanosis about the edges of

her mouth and repeated vomitting. In

Z -13-

spite of the child's condition, respon-

dent as supervisor, continued the trip.

(29 & 30)

On July 28, 1975, respondent filed a

grievance procedure form with the Michi-

gan Civil Service Commission.(39) The

Civil Service Hearing Officer found that

plaintiff was removed from his position

for good cause, but rather than the

discipline of termination, plaintiff

should be reinstated and demoted to the

position of Activities Training Aide 05

(a position he had held at Northville

State Hospital from August 13, 1972 until

being hired at MORC) and placed on a

layoff register until an opening arose at

that position.(41) When respondent was

notified of an impending opening in the )

position of Activities Training Aide 05, x

respondent declined the interview. (45 & a

48) | -

-14-

On March 16, 1976, respondent went

to the Office of the Michigan Department

of Civil Rights and to an office of the

Federal Equal Employment Opportunity

Commission where he signed an affidavit

complaining of his dismissal from Macomb-

Oakland Regional Center.(52-53) Res-

pondent received a notice of right to sue

within 90 days from the EEOC on April 12,

1977(57) and then filed an action in the

United States District Court for the

Eastern District of Michigan on July ll,

1977, claiming that he was discrimina-

torily discharged from his job with the

Michigan Department of Mental Health on

account of his sex in violation of Title

VII of the Civil Rights Act of 1964, as

amended, 42 USC 2000e, et seq.

After a trial that concluded on

September 3, 1980, the District Court

issued a memorandum opinion and order and

judgment whereby it followed Mohasco v

> — “

@1 $<

Silver, 447 US 801 (1980) and concluded

that respondent did not make a timely

filing with the EEOC prior to commencing

the case. The Court also found that

respondent's discharge on July 15, 1975

was the product of illegal discrimination

based upon his sex and that respondent

failed to make reasonably diligent

efforts to obtain other employment to

mitigate his damages. Respondent appeal-

ed that judgment insofar as the District

Court found that respondent. did not make

a timely filing with the EEOC and insofar

as it found that respondent failed to

mitigate his damages. Petitioner cross

appealed insofar as the District Court

found respondent's discharge on July 15,

1975 was the product of illegal dis-

crimination based upon respondent's sex.

On July 28, 1983, the United States

Court of Appeals for the Sixth Circuit,

Senior District Judge Hoffman concurring

i “>.

-16-

in part and dissenting in part, delivered

its opinion which in relevant part re- ‘

fused to apply Mohasco v Silver, supra,

to the case at bar saying it should not

be applied retroactively. However, the

Sixth Circuit did apply Davis v Calgon

Corp, 627 F2d 674 (CA 3, 1980), cert den

449 US 1101 (1981) retroactively and

concluded that respondent did timely file

a charge of employment discrimination

with EEOC. Second, a majority of the

Court of Appeals affirmed the sex discri-

mination finding of the District Court |

without finding petitioner intentionally ,

discriminated against respondent. Third,

the Court of Appeals reversed the finding

of the District Court that respondent 5

failed to mitigate his damages. Fourth,

the Court remanded the case to the Dis-

trict Court for further proceedings

saying that the Court should award back

pay in accordance with certain guidelines

Ted wa , TY 3.

@lJeo

which, inter alia, required that back pay

not be reduced by the amount of unemploy-

ment benefits received by claimant.

On August 10, 1983, petitioner filed

a petition for rehearing with the Court

of Appeals which was denied on November

2, 1983.

Petitioner seeks review of the Court

of Appeals opinion decided and filed July

28, 1983 and the denial of rehearing

filed November 2, 1983.

REASONS FOR GRANTING THE WRIT

THE DECISION BY THE COURT OF APPEALS

THAT RESPONDENT TIMELY FILED A CHARGE

OF EMPLOYMENT DISCRIMINATION WITH THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

IS IN DIRECT CONFLICT WITH MOHASCO

CORP v SILVER, 447 US 807 (1980)

The Court of Appeals correctly

summarized the applicable law relating

to the requirement that a charge of

employment discrimination be timely

filed with the Equal Employment Oppor-

tunity Commission (EEOC) as follows:

"The timely filing of a com-

plaint with the EEOC is a

procedural prerequisite to the

enforcement of a Title VII

action in federal court. This

requirement, however, is not

jurisdictional, rather it is

in the nature of a statute of

limitations. See Zipes v.

Trans World Airlines, iInc.,

eWe 5 ’ r

denied, Independent Federation

3 [rl Sst Ue

r : s ‘ ef a -

340 (1582). A charge of

discrimination should be filed

with the EEOC within 180 days

-19-

after the last discriminatory

act. 42 U.S.C. § 2000e-5(e).

However, in deferral states,

states with fair employment

agencies, claimants must file

charges with the state agency

before pursing their claims

with the EEOC. 42 U.S.C.

§2000e-5(c). The EEOC will

not formally file charges it

has received until after the

state agency has terminated

its proceedings or sixty days

have elapsed, whichever occurs

earlier. Mohasco Corp. v.

Silver, 447 U.S. 8 1980}.

In deferral states all con-

plaints must be filed with the

EEOC within 300 days after the

act of discrimination or within

thirty days after receiving

notice that the state has ter-

minated its proceedings. 42

U.S.C. §2000e-5(e)." Footnotes

deleted. Rasimas v Michigan

pert of Mental Health, 714 F2d

The case at bar is factually indis-

tinguishable from Mohasco Corp v Silver,

supra, insofar as the question of

whether respondent timely filed a charge

of employment discrimination with the

Equal Employment Opportunity Commission.

In Mohasco, the employee was dis- E-

charged on August 29, 1975. On June 15,

Pear: > te: Aa NaS ys Z a ae ae Bie ee Rae De no pet LN “4 See

-20-

1976 -- 291 days later -- the employee ;

submitted a charge of discrimination to

the EEOC. Because New York was a deferral

state under 29 CFR§1601.74 and 42 USC §

2000e5(c) requires EEOC to defer to the

state agency for 60 days, the charge

submitted on June 15, 1976, had to be

held in abeyance for 60 days before a

filing of the charge with EEOC could be

effected. Under these circumstances,

Mohasco says that the employee cannot

effect a filing of a charge with EEOC

within 300 days as required by 42 USC

§ 2000e-S(e) -- 291 days plus 60 days

equals 351 days. This Court thus found

the charge was not timely filed with

EEOC.

In the case at bar, the employee was

discharged on July 15, 1975. On March

16, 1976 -- 244 days later -- the em-

ployee submitted a charge of discrimina-

tion to the EEOC. Because Michigan,

a2l@

like New York, is a deferral state, 29

CFR §1601.74, and 42 USC § 2000e5(c)

requires EEOC to defer to the state

agency for 60 days, the charge submitted

on March 16, 1976, had to be held in

abeyance for 60 days before a filing of

the charge with EEOC could be effected.

Under these circumstances, employee

Rasimas, like the employee in Mohasco,

cannot file a charge with EEOC within 300

days as required by 42 USC § 2000e-

5(e) -- 244 days plus 60 days equals 304

days.”

Although the Court of Appeals did

not deny that Rasimas was factually

indistinguishable from Mohasco, it did

2rhe District Court found that

respondent alleged no facts which would

justify the tolling of the 300-day period

on equitable grounds -- see Memorandum

Opinion, Conclusion of Law, paragraph

2 -- and thus Zipes v Trans World

Airlines, Inc., supra, is not applicable.

-22-

refuse to apply Mohasco retroactively to

the case at bar relying on Wiltshire v

Standard Oil of California, 652 F2d 837

(9th Cir, 1981), cert den 455 US 1034

(1982); Hall v Ledex, Inc., 669 F2d 397,

399 (6th Cir, 1982); and Jones v AIRCO

Carbide Chemical Co, 691 F2d 1200 (6th

Cir, 1982).

Nonetheless, the Court of Appeals

did apply decisions of various other

Courts of Appeals retroactively to the

case at bar such as Davis v Calgon Corp,

627 F2d 674 (3rd Cir, 1980), cert den

449 US 1101 (1981) and concluded that

respondent was not required to file a

charge of discrimination within the State

statute of limitations applicable to the

deferral agency.

At the time respondent was termi-

nated, in order for him to receive the

benefit of the 300-day time limitation

rather than the 180 day limitation, he

| aimee Be a te he $A fa a AP ie. Te ae ee ee

CCC

' has extended the statutory time limita-

=23-

was required to timely file his charge of

employment discrimination with the state

deferral agency. Rasimas did not do

that. Rasimas filed 244 days after he

was terminated. At the time, Michigan

law required that a charge of discri-

mination be filed within 90 days of the

discriminatory act. MCL 423.307(b).

The Court of Appeals, however, has

applied Davis v Calgon Corp, supra,

retroactively but has not applied Mohasco

Corp v Silver, supra, retroactively.

Petitioner submits that the applicable

law must either be that which was in

existence on July 15, 1975, the date of

respondent's termination or that which

was in existence at the time Mohasco Corp

v Silver, supra, was decided by this

Court. In essence, the Court of Appeals

tions for filing a charge of employment

discrimination imposed by Congress and

=24@

upheld by this Court. In doing so the

Court of Appeals has failed to give

effect to the congressional intent

requiring the prompt processing of all

charges of employment discrimination.

MOHASCO CORP v SILVER SHOULD BE

RETROACTIVE EFFECT

As noted by Senior District Judge

Hoffman, this Court, in essence, has

already concluded that Mohasco should be

applied retroactively. This Court de-

cided Zipes v Trans World Airlines, Inc.,

455 US 385 (1982) subsequent to Mohasco

and at no point did the Court suggest

that Mohasco should be applied pros-

pectively only. The employees in Zipes

were discharged in 1970 long before the

discharge of the employee in Mohasco or

the employee in the case at bar.

-25-

Petitioner submits that Mohasco

should be applied to the case at bar.

Rasimas was discharged less than one and

one half months before Silver. Before

trial in Rasimas, the Mohasco decision

was rendered by this Court. Merely

because Mohasco reached this Court be-

fore Rasimas does not constitute suffi-

cient reason to preclude giving effect to

a statutory requirement that a charge of

employment discrimination be filed in a

timely and expeditious manner. This is

not a situation similar to most questions

dealing with retroactivity involving

judicial interpretation of constitutional

guarantees. This Court has not changed

its interpretation of a constitutional

provision by rendering its decision in

Mohasco. This Court in Mohasco reviewed

the intent of Congress and concluded that 4

it was incumbent upon the Court to give

effect to that intent. The Court of

-26-

Appeals cannot circumvent that intent by

extending those time limitations. |

The test for determining whether a

judicial decision should be given retro-

active effect has been set forth in

Chevron Oil Co v Huson, 404 US 97 (1971)

where it was said:

"In our cases dealing with the

nonretroactivity question, we

have generally considered three

separate factors. First, the

decision to be applied nonretro~

actively must establish a new

principle of law, either by

overruling clear past precedent

on which litigants may have

relied ..., or by deciding an

issue of first impression whose

resolution was not clearly

foreshadowed .... Second, it

has been stressed that ‘we must

«++ weigh the merits and demerits

in each case by looking to the

prior history of the rule in

question, its purpose and

effect, and whether retro-

spective operation will further ‘

or retard its operation.’ ...

Pinaly, we have weighed the

inequity imposed by retroactive

application, for '[w]here a

decision of this Court could

produce substantial inequitable

results if pare retroactively,

(there is ample basis in our

Fé

ae ae ia a a Es ot

Ne eee

o2}=

cases for avoiding the "in-

justice or hardship" by a

holding of nonretroactivity.'"

As in the case at bar, petitioner

submits none of the above criteria re-

quire or condone the ruling of the Sixth

Circuit in not following Mohasco.

First, as was pointed out in Wilt-

shire, supra, this Court in Mohasco

discussed the conflicting approaches

taken by the Seventh, Eighth and Tenth

Circuits on the filing requirement

challenged. Moore v Sunbeam Corp, 459

F2d 811 (7th Cir, 1972) was in accord

with the timeliness requirements arti-

culated in Mohasco Corp v Silver. A

decision of the Seventh Circuit fore-

shadowed the decision in Mohasco as well

as did a literal reading of the statutory

provision in question. ;

Second, giving retroactive effect to

Mohasco achieved the purpose and effect

of the time limitations imposed by

-28-

Congress, to wit: the encouragement of

the prompt processing of all charges of

employment discrimination. Furthermore,

contrary to what Wiltshire v Standard Oil

Co of Cal, supra, stated, EEOC had not

"for fifteen years, steadfastly main-

tained one consistent interpretation of

the rule, viz., that the EEOC will consi-

der as timely all complaints filed with

the agency within 300 days of the discri-

minatory event." EEOC had required

charges of employment discrimination be

filed “within the period of limitation of

the particular 706 Agency” before the

Claimant would be entitled to the 300-day

limitation period as opposed to the 180-

day limitation period. See 29 CFR §

1601.12(1) (V) (a) (1975) where it is

stated:

"'In cases where the document

is submitted to the Commission

more than 180 days from the

date of the aiieged violation

but within the period of limitation

of the rticular 706 Agency,

ti. cule chalt be Sefarcel ~...

Provided, however, that unless

the Commission is earlier

notified of the termination of

the State or local proceeding,

the Commission will consider

the charge to be filed with the

Commission on the 300th day

following the alleged discri-

mination and will commence

processing the case." (Empha-

sis supplied).

Third, as to whether equitable re-

‘sults from the retroactive application of

Mohasco are evident, it is significant to

note that this Court believed that a lay

person was more apt to regard the statute

as establishing a 180-day filing deadline.

Mohasco, 447 US at 825. Furthermore, EEOC

has also indicated that for there to be a

timely filing with EEOC under the 300-day

period, the claimant would have to file

within the time limitations of the state

agency. Respondent Rasimas did not file

within the time limitations of the state

deferral agency. Rasimas was not diligent

-30-

in filing his charges of discrimination.

It is equitable under these circumstances

to give effect to Congress' intent that

such charges be processed without delay.

For the foregoing reasons, Mohasco

should be applied to the case at bar.

IF MOHASCO IS NOT TO BE APPLIED RETRO-

ACTIVELY, THE DOCTRINE ANNOUNCED IN DAVIS

v CALGON CORP, 627 F2d 674 (3rd Cir,

1980) SHOULD NOT BE APPLIED RETROACTIVELY

AND TO DO OTHERWISE, AS THE SIXTH CIRCUIT

COURT OF APPEALS HAS DONE, IS IN CONFLICT

WITH OTHER DECISIONS OF THE COURT OF

APPEALS APPLICABLE IN 1975 AND 1976

REQUIRING THAT THE CHARGE OF EMPLOYMENT

DISCRIMINATION BE FILED WITH THE

MICHIGAN CIVIL RIGHTS COMMISSION OR THE

EEOC WITHIN 180 DAYS FROM THE DATE

OF DISCHARGE

Assuming the Court of Appeals was

correct in not applying Mohasco to the

case at bar, the opinion of the Court of y

Appeals filed on July 28, 1983 overlooks 7

and misapprehends the law as it existed

in 1975 and 1976 with regard to filing a

charge of employment discrimination on a

. > ae in (ihe, Ag -

=3l-

timely basis. If Mohasco does not apply,

the laws that existed at the time res-

pondent filed his charge of employment

discrimination in 1976 rather than the

doctrine announced 4 years later in

Davis v Calgon Corp, 627 F2d 674 (3rd,

Cir, 1980) should apply. In 1975 and

1976, under Michigan as well as federal

law, a charge of employment discrimi-

nation had to be filed either with the

Michigan Civil Rights Commission or with

the EEOC within 180 days from the date of

the employee's discharge. See Geromette

v General Motors Corp, 609 F2d 1200 (6th

Cir, 1979) relying on Olson v Rembrandt

Printing Co, 511 F2d 1228 (8th Cir, 1975

en banc). Respondent in the case at bar

did not file his charge of employment

discrimination within the state time

limitations or within the 180-day limi-

tations set forth in Title VII. Only

beginning in 1980 are there a series of

-32-

cases in which the various Courts of

Appeals state that the 180-day require-

ment of Title VII does not apply to a

deferral state. Those cases should,

applying the reasoning of Wiltshire, not

be applied retroactively. Accordingly,

the charge of employment discrimination ©

filed by the plaintiff on March 16, 1976,

some 244 days after his termination, was

not timely by virtue of the law as it

existed in 1975 and 1976.

Furthermore, although the Court of

Appeals opined that “the EEOC's position

is entitled to great deference," the

opinion rendered by the Court fails to

give their position great deference since

the rules of EEOC required prior to

Mohasco Corp that a charge of employment

discrimination was timely filed if and *;

only if the filing with the state agency

was made in accordance with the time

limitations set forth by the deferral

-33-

state agency. 29 CFR § 1601.12(b) (1)

(V) (a) (1975). Again, the Court will

recall that the plaintiff in the case at

bar did not file within the period of

limitation of the Michigan Department of

Civil Rights.

II.

THE COURT OF APPEALS HAS DECIDED THE

QUESTION OF DISCRIMINATION IN A WAY

WHICH IS IN CONFLICT WITH

eC ge mg gE 450 us

ow (1981) AND U8.

on? ee ee

’

ef > 403, 103 S CT 475 -TL 9837 BY PER-

MITTING A FINDING OF DISCRIMINATION TO

BE AFFIRMED WHEN NEITHER THE DISTRICT

COURT NOR THE COURT OF APPEALS FOUND

THAT PETITIONER “INTENTIONALLY

DISCRIMINATED AGAINST" THE RESPONDENT

The trial court found that respon-

dent's discharge was the product of

illegal discrimination based upon his sex. a

That finding was affirmed by the Court of

Appeals. However, neither the District

Court or the Court of Appeals made any

finding that petitioner “intentionally

-34-

discriminated" against the respondent.

"The ‘factual inquiry’ in a

Title VII case is ‘whether the

defendant intentionally discri-

mination against the plaintiff.'"

U.S. Postal Service Bd of

Governors v Aikens, Us

75 L Bd 24 403, 103 5 Ct 1a78

(1983).

There is no indication in the de-

cision of the Court cf Appeals that the

Court followed the criteria as set forth

in Texas Dept of Community Affairs v

Burdine, 450 US 248, 256 (1981).

"The plaintiff retains the

burden of persuasion. She now

must have the opportunity to

demonstrate that the proffered

reason was not the true reason

for the employment decision.

This burden now merges with the

ultimate burden of persuading

the court that she has been the

victim of intentional discrimi-

nation. She may succeed in

this either directly by per-

suading the court that a discri-

minatory reason more likely

motivated the employer or

indirectly by showing that the

employer's proffered explanation

See

. McDonnell , 411 US, at

804-805, 36 L Ed 2a were 93 s

ct 1817." a .

‘ tw a 7 f 7 é a Me Mad eS ee Fume > . ~ <7 a H ~? ‘ ty

8 LET EI SRE Sn AIR Pe ee ae

-35-,

Neither the Court of Appeals nor the

District Court followed Burdine or Aikens.

Neither opinion suggests that the su-

periors of Rasimas intentionally discri-

minated against him. As was stated by

Senior District Judge Hoffman:

"Under Conclusion (6) the

District Court describes the

type of discrimination which

existed among the females who

worked under plaintiff, and who

were under his supervision. The

findings do not point the

finger of discriminatory prac-

tice against the persons who

were superior to Rasimas, i.e.,

Rosen (Director), McDonald

(Administrative Officer in

charge of personnel), Nagy (a

female Director of the Nursing

Home program), and Swietec,

known as Caron Bender during

the pertinent period involved,

(a female mental retardation

supervisor 10). The most that

can be said with respect to

plaintiff's superiors is that

(1) they paid too much atten-

tion to the complaints of the

staff working under Rasimas,

and (2) before making the final ;

decision to discharge Rasimas, ¥

the superiors did not discuss .

the Belle Isle incident with

Rasimas although, as the Dis-

trict Court noted, there are

=36<

essentially no factual dis-

putes --the differences between

Rasimas and his staff were

matters of judgment as to

whether he should have returned

to the Hoover Nursing Home when

Donna, the very young child,

became ill."

zee

"The discharge action may have

been neither discriminatory nor

praiseworthy. The action may

have been the result of poor

employee relations, but never-

theless not constitute discri-

minatory treatment." Rasimas v

Michigan Dept of Mental Healt

714 Fa at Eso and 631 (1983).

The analysis set forth by Senior

District Judge Hoffman is in accord with

what this Court set forth in Texas Dept

of Community Affairs v Burdine, supra,

at 259, where it was said:

",...the employer has discretion

to choose among equally qualified

candidates, provided the deci-

sion is not based upon unlawful ‘

criteria. The fact that a court

may think that the employer

misjudged the qualifications of ¢

the applicant does not in ?

itself expose him to Title VII

liability...."

en eee a ee

=-37-

, Accordingly, this Court should grant

the instant petition for certiorari. Both

the decision of the District Court and the

Court of Appeals are in conflict with

applicable decisions of this Court since

they do not utilize the appropriate stan-

dard of “intentional discrimination" by

the supervisors of the employee before

concluding that there was illegal dis-

crimination by petitioner, Michigan

Department of Mental Health.

Itt.

THE DECISION OF THE COURT OF APPEALS OF

THE SIXTH CIRCUIT THAT UNEMPLOYMENT

BENEFITS SHOULD NOT BE DEDUCTED ON BACK

PAY AWARDS IS IN CONFLICT WITH THE

DECISION OF OTHER FEDERAL COURTS OF

APPEALS

The District Court found that peti-

, tioner failed to mitigate his damages :

and, accordingly, made no further find-

ings as to the amount of damages. The

parties in the Courts below did not

~—*

‘.

-38-

address the question as to whether the

District Court should or should not

exercise its discretion in deducting

unemployment benefits received by re-

spondent from any award of damages.

Nonetheless, the Court of Appeals stated:

"Unemployment benefits also

should not be deducted from

back pay awards." Rasimas v

Michigan Dept of Mental Health,

Til Fad » oe eo >) eames

Whether unemployment benefits should

be deducted from an award of back pay, if

an award of back pay is ultimately

granted, should be left to the sound

discretion of the trial court. The

ruling by the Court of Appeals has pre-

cluded the exercise of that discretion.

The decision in this regard is in con-

flict with the decisions of the Courts of

Appeals of the Second Circuit, Seventh

Circuit, the Fifth Circuit and of other

panels of the Sixth Circuit.

"This Court finds that de-

ductions for unemployment

compensation benefits avoids

any possibility of a double

payment to a plaintiff, and, in

any case, such a decision is

within the discretion wis the

trial judge. See Satt

Nashville Gas Co., F24 850,

Cir, 1575), aff'd in

part gna t and oyngates in part, 434

36, | 3S ct 347, L Ed 24

356 (1979) 3 Bowe v Colgate-

Palmolive Co., 416 Foa-711, 721

, 1969)." Merriweather

v Hercules, Inc., 631 Fad 1llel,

1168 (5th cir, 1980).

similar problems arose involving staff

members and plaintiff's predecessor in

eee eet oe aa

12a District Court Opinion

office, Lucy Bosio, Swietec had held

meetings with Bosio and the complaining

staff members together. (Testimony of

Swietec)

23.) At one point, on June 25, 1975,

Swietec noted that it seemed to her that

"about half” of the staff's complaints

against plaintiff were unwarranted, and

that the staff appeared to be attempting

to use plaintiff as a "scapegoat."

(Exhibit #1, p. 45)

24.) Swietec also felt that plain-

tiff needed to improve his listening

skills in dealing with his staff. (Test-

imony of Swietec; Exhibit #1)

25.) Nagy began, sometime in June of

1975, to receive complaints directly from

staff members, and in response, she met

on several occasions with plaintiff to

counsel him on methods of resolving his

problems with the staff. Nagy observed

that plaintiff seemed receptive to her

fod “ * ~ one, - ~

eee <i” ap Spee eee ao 7) 2s cites a: aa

District Court Opinion 13a

suggestions, but did not appear able to

make progress towards solving the pro-

blems. She ultimately concluded that

plaintiff was not a satisfactory super-

visor. At sometime near the end of June,

she determined that a "written counsel-

ling,” that is, a written critique of

plaintiff's job performance, was appro-

priate. She directed Swietec to prepare

such a critique, and this was done in the

form of a memo dated July 1, 1975.

(Testimony of Nagy, Exhibit #1, pp 17-19)

26.) In addition to problems re-

lating to communicating and maintaining

good relations with his staff, the

counselling memo described shortcomings

relating to: (a) the exercise of good ;

judgment in assuring the safety of resi-

dent-patients as illustrated by plain-

tiff's allowing a resident-patient to be

transported in a van without a fastened

seat belt; (b) the inability to effective-.

l4a District Court Opinion

ly implement supervisory directives in

enforcing rules and policies applicable P

to his staff, e.g., the schedule of

working hours; and (c) failing to take

proper notes at a behavorial conference

in order to disseminate information to

his staff. (Exhibit #1, pp 17-19)

27.) The contents of the counselling

memo were reviewed with plaintiff by Nagy

and Swietec. Swietec noted that plain-

tiff seemed confused about the purpose of

the meeting. (Testimony of Nagy and

Swietec)

28.) Neither nagy nor McDonald

believed that the criticisms contained in

the counselling memo of July 1, 1975 were

grounds for terminating the plaintiff at

that time. (Testimony of Nagy and McDo-

nald)

29.) On Saturday, July 12, 1975,

plaintiff and three members of his staff

took four resident-patients of the Hoover

7 '

Se ae ” ‘ eer

District Court Opinion 15a

on a pre-arranged trip to Belle Isle ina

van. Somewhere near the mid-point of the

trip, one of the resident-patients began

to vomit. One of the staff attendants,

Deborah LaFrate, described the child's

condition as characterized by seizures

and trembling, with incipient cyanosis

about the edges of the mouth, and re-

peated vomitting. Plaintiff, who was

driving the van, was informed of the

child's distress, whereupon he pulled

into a nearby parking lot and examined

the child. Plaintiff satisfied himself

that the child's pulse was normal, and

that she was breathing well. The child

had stopped vomitting by this time.

Plaintiff concluded from his examination

that the child was suffering from “motion

sickness," and that the episode was not

serious. LaFrate and another staff

member stated their disagreement with

plaintiff's assessment of the situation,

l6a District Court Opinion

and strongly urged that medical attention

be sought, either by returning to Hoover

Nursing Home or by availing themselves of

one of the hospital facilities near where

they were at the time. Notwithstanding,

plaintiff made a determination to con-

tinue the trip. Plaintiff believed that

all the child required was rest, which

could be provided to her at Belle Isle,

without entailing any more driving than

would be necessitated by a return to the

Home, and without disrupting the outing

for the other children. (Testimony of

LaFrate and Rasimas)

30.) Upon arriving at Belle Isle,

the sick child was allowed to lay down on

a blanket under a tree and a staff

attendant was directed by plaintiff to

remain with her. The other members of

the party proceeded to have a picnic

lunch nearby and afterwards to tour the

Belle Isle Children's Zoo. Altogether,

District Court Opinion iva

the party was on Belle Isle for somewhat

less than an hour. Prior to boarding the

van to return to Hoover Nursing Home,

LaFrate observed that the sick child

appeared pale and lethargic but was no

longer vomitting or experiencing seizures.

On the way back, plaintiff stopped at a

restaurant and bought some giger ale for

the sick child who had not eaten lunch

with the others. The return trip took

approximately 30 minutes. (Testimony of

LaFrate and Rasimas)

31.) Plaintiff directed a staff

attendant to take the sick child to a

nurse on duty at Hoover Nursing Home

immediately upon arriving there. The

nurse examined the child, but deemed it

unnecessary to call a doctor. (Testimony

of LaFrate and Rasimas)

32.) One of the members of the

Hoover Nursing Home nursing staff ap-

proached Marilyn Wittmer, a member of

18a District Court Opinion

plaintiff's staff, on Monday, July 14,

1975, and informed her of what she knew ;

about the trip to Belle Isle. Wittmer

thereupon contacted Swietec at her office

and requested her to come to Hoover

Nursing Home and hold a meeting with the

staff members who were on the Belle Isle

trip. Swietec contacted the staff mem-

bers from tre teip and directed them to

submit written reports of their version

of what had happened. Swietec also

contacted Nagy, who in eukn contacted

McDonald. McDonald conferred with

LaFrate by telephone to get her side of

the story. (Testimony of Wittmer,

Swietec, Nagy and McDonald; Exhibit #1,

pp 11-15)

33.) Both Nagy and Swietec recom-

mended to McDonald on July 14, 1975 that “onM

plaintiff be dismissed. (Testimony of |

Swietec and Nagy)

District Court Opinion 19a

34.) The ultimate decision to termi-

. nate the plaintiff was made by Maynard

McDonald on July 14, 1975. (Testimony of

McDonald)

35.) McDonald, in a letter dated

October 22, 1975, stated the factors he

had taken into consideration in making

the decision on plaintiff's dismissal.

This letter was written at the request of

the Michigan Civil Service Commission,

for the purpose of the Step 4 Hearing

pending at that time. McDonald listed

the following four factors:

a) failure to maintain good rela-

tionships with program staff and

Hoover Nursing Home staff;

b) failure to follow supervisory

instructions;

c) failure to provide adequate pre-

, cautions for the health and safety

of residents; and

ad) failure to demonstrate progress

20a District Court Opinion

in ability to satisfactorily super-

vise and administer the Nursing Home ’

Program.

The letter also listed several

examples of the deficiencies noted, and

concluded with a few observations on why

plaintiff should have done better.

(Testimony of McDonald; Exhibit #25)

36.) Plaintiff was on his day off on

July 14, 1975, and did not learn of the

reports against him concerning the Belle

Isle Trip until the following day, July

15, 1975. (Testimony of Rasimas)

37.) On Tuesday, July 15, 1975,

plaintiff was called into a meeting with

McDonald and Swietec. At that time, he

was informed of the reports against him

and given the option to resign or be

fired. He was allowed some time to 3

consider this option while he made prep- :

parations to leave. He reported later to %

McDonald that he would prefer to resign, o

District Court Opinion 2la

and signed an employee departure report

with the annotation "signed under pro-

test" next to his signature. (Testimony

of Rasimas, Swietec and McDonald; Exhibit

#1, p 10)

38.) After July 15, 1975, plaintiff

performed no further services and earned

no further compensation from MORC.

(Testimony of Rasimas, McDonald and

Pouch)

C. The Civil Service Grievance Process

39.) On July 28, 1975, plaintiff

filed a Grievance Procedure Form CSG-1l

with the Michigan Civil Service Com-

mission. (Exhibit #27)

40.) In accordance with what the

Michigan Civil Service Commission calls

"Step 3" of the grievance procedure,

plaintiff met with John Pouch, Assistant

Personnel Director for the Michigan

Department of Mental Health, on August 7,

1975. The outcome of their conference

22a District Court Opinion

was that plaintiff's dismissal was

affirmed. (Testimony of Pouch; Exhibit

#28) |

41.) Plaintiff appealed the outcome

of the Step 3 conference to the Step 4

level, at which a hearing was held before

Hearing Officer Richard J. Meyers on

October 16, 1975, and on November 21,

1975. The decision of the Hearing

Officer, issued on February 6, 1976,

found that plaintiff was removed from the

Supervisor 10 position for good cause,

but that dismissal was an overly harsh

action. The decision recommended that

plaintiff be reinstated, and demoted to

the position of an Activities Training

Aide, 05 and placed on the layoff regis-

ter until an opening arose at that

position. The decision also recommended

that plaintiff be denied any backpay.

(Exhibit #4)

Te 4

“ >

>a Tu

b, §

District Court Opinion 23a

42.) Pursuant to the Hearing Offi-

cer's recommendation, administrative

action was taken to reinstate, demote,

and lay off plaintiff. This was essen-

tially a paperwork transaction and

plaintiff was not given notice of it,

aside from the Hearing Officer's recom-

mendation and the Civil Service Commis-

sion's decision. (Testimony of McDonald,

Exhibit #1)

43.) Upon appeal of the Hearing

Officer's decision to Step 5, the Michi-

gan Civil Service Commission met and

heard oral argument by John Pouch, re-

presenting the Michigan Department of

Mental Health, and Philip Helms, a Staff

Representative from AFSCME Council ll,

representing plaintiff. On March 18,

1977, based upon this hearing, the Com-

mission affirmed the Hearing Officer's ..

decision and adopted his recommendation. *%

(Exhibit #5) .

24a District Court Opinion

44.) No representations were made to

plaintiff by members of the Michigan ,

Civil Service Commission regarding when

his termination would be deemed "final."

(Testimony of Rasimas)

D. Mitigation of Damages

45.) By letter dated April 20, 1976,

Swietec requested that plaintiff report

for an interview for a position as an

Activities Training Aid 05. There was an

impending opening at that position at

MORC, and according to Civil Service

rules, the position had to be offered to

the plaintiff, as long as he was on the

lay-off register, before a new employee

could be hired to fill it. (Testimony of

McDonald and Rasimas; Exhibit 1, p 3)

46.) No opening was available at

MORC for an Activities Training Aid 05

between February 6, 1976, and April 30, ‘

1976. (Testimony of McDonald)

District Court Opinion 25a

47.) The letter plaintiff received

was a standard form letter requesting an

interview, and did not inform him of the

actual availability of the position, nor

of plaintiff's right of first refusal

regarding the position. (Testimony of

McDonald and Rasimas)

48.) By letter dated April 30, 1976,

plaintiff declined the interview, citing

as his reason the pendency of his com-

plaint against MORC for dismissing him.

(Exhibit #1, p 3)

49.) Subsequent to April 30, 1976,

the plaintiff has received no offer of

employment, although he continues to

interview and seek other employment in

both the governmental and private sectors. i

He remains unemployed and dependent upon

public assistance, to this date. (Testi- i

mony of Rasimas) a

50.) If plaintiff had retained his ve

job as a Supervisor 10 from July 15, ol

- cg

26a District Court Opinion

1975, to date, he would have earned

$81,173.12. (Stipulated Fact) °

51.) Had plaintiff accepted the

available position of Activities Training

Aid 05, as of April 30, 1976, and conti-

nued in that position to date, he would

have earned $54,249.36. (Testimony of

McDonald, Exhibit #31)

E. Plaintiff's Civil Rights Charges

52.) On March 16, 1976, while his

Civil Service grievance was still pend-

ing, plaintiff went to an office of the

Michigan Department of Civil Rights

(MDCR), where he filled out a preliminary

informational form, and met with a repre-

sentative of the Department to discuss

filing a civil rights complaint against

MORC for his dismissal. (Testimony of

Rasimas; its #20 and #21)

, 53.) By on March 16, 1976, plain-

tiff went to an Office of the Federal

Equal Employment Opportunity Commission

ee ee

District Court Opinion 27a

(EEOC) where he signed an affidavit

complaining of his dismissal from MORC.

The next day a formal charge was typed

out and signed by plaintiff. (Testimony

of Rasimas; Exhibits #18 and #19)

54.) A formal complaint was typed

out by the MDCR, and on June 23, 1976,

the complaint was signed by the plaintiff

and notarized. (Exhibit #23)

55.) Plaintiff is aware of no fur-

ther action taken by the MDCR in this

matter. (Testimony of Rasimas)

56.) On June 7, 1976, the EEOC

commenced investigation of plaintiff's

charge, and on April 7, 1977, the EEOC

issued a Notice of Right to Sue Within 90

days. (Exhibit #6)

57.) Plaintiff received his Right-

to-Sue letter on April 12, 1977. (Testi-

mony of Rasimas; Exhibit #25)

58.) Plaintiff filed an action in |

the United States District Court for the ef

28a District Court Opinion

Eastern District of Michigan on July ll,

1977. (Plaintiff's Complaint)

CONCLUSIONS OF LAW

1.) Michigan is a deferral state,

29 CFR 1601.74, and therefore a prerequi-

site for filing a Title VII action in

this case was the filing of a charge with

the EEOC within 300 days after the alleged

unlawful employment practice occurred.

42 USC 2000e-5(e). Mohasco Corp v Silver,

48 LW 4851 (Supreme Court, June 23,

1980); Alexander v Gardner-Denver Co, 415

US 36, 47 (1974).

2.) The date upon which the alleged

unlawful employment practice occurred was

July 15, 1975, for the purposes of com-

mencing the running of the 300-day “i

period. 42 USC 2000e-5(e). The alleged

unlawful action was the discharge itself,

; which was accomplished in one day.

“ Bonham v Dresser Industries Inc, 569 F2d “4

District Court Opinion 29a

187, 191-92 (CA 3, 1977), cert denied 439

. US 821 (1979). No continuing violation

has been shown to exist. United Air

Lines Inc v Evans, 431 US 553, 558 29TH) 9

Geromette v General Motors Corp, 609 F2d

1200, 1203 (1979). Although plaintiff

has argued strenuously that plaintiff's

discharge was not final for purposes of

commencing the 300-day limitation period,

until he had exhausted his remedies under

the Michigan Civil Service grievance

procedures by obtaining a final determi-

nation at the Step 5 level, nontheless

the Court must decline to accept this

view of the law. The Court finds the

instant case to be factually indistin-

guishable from the cases of International

Union of Electrical Radio & Machine

Workers AFL-CIO Local 790 v Robbins & i

t Myers Inc, 429 US 229 (1976), and Everson

v McLouth Steel Corp, 586 F2d 6 (CA 6, a

1978). The case cited by plaintiff in a

30a District Court Opinion

support of his position on this issue,

Bethel v Jefferson, 589 F2d 631 (CA DC, 4

1978), appears to the Court to rest on

factual considerations not present in the

instant case. Further, plaintiff has

alleged no facts which would justify the

tolling of the 300-day period on equit-

able grounds. Cf, Leake v University of

Cincinnati, 605 F2d 255 (CA 6, 1979); Fox

v Eaton Corp, 615 F2d 716 (CA 6, 1980).

3.) The 300-day period which com-

menced on July 15, 1975, expired on May

10, 1976. Although plaintiff had initi-

ated contact with the EEOC on March 16,

The Court in Bethel found that,

"(w) hile board's recommendation was under

review by the Mayor, Bethel remained

suspended but still a member of the

Porce." 589 F2d at 635. Purther, it was :

there found that "(a)ppellants challenge

as discriminatory not only the incidents

antedating the convening of the trial 4

boards but also the trial board proceed- Re

E precipitated by the earlier incidents."

District Court Opinion 3la

1976, no filing which would be effective

for purposes of the 300-day limitation

could have occurred prior to May 15,

1976, when the 60-day period during which

the civil rights charge was deferred to

the Michigan Department of Civil Rights,

terminated. 42 USC 2000e-5(c); Mohasco

Corp v Silver, supra. Therefore, the

plaintiff has not made a timely filing

with the EEOC and his claim under Title

VII is barred.

4.) Except as noted above, this

case comes within the original juris-

diction of this Court. 42 USC 2000e-

5 (FP) (3)

2rhe issue of timely filing with the

EEOC was not raised until immediately

prior to trial, and the Court also noted

that this area of the law is one in which

substantial unsettling changes have

recently occurred (see e.g., Mohasco v

Silver, supra). Therefore, it was de-

c to proceed to trial and to make as

complete a record es possible in the

event of an appeal.

he on”.

female, his predecessor was female, his

immediate supervisor was female, and her

immediate supervisor was also female;

32a District Court Opinion

5.) The provisions of 42 USC 2000e-

2(a)(1) prohibiting discrimination in .

employment based upon the employees’ sex

apply with equal force and on the same

terms to discrimination against white

males as they do to discrimination

against women or ethnic minorities.

Hicks v ABT AssOciates Inc, 572 F2d 960

(CA 3, 1978); Diaz v Pan American World

Airways Inc, 442 F2d 385 (CA 5, 1971).

6.) Plaintiff has established a

prima facie case of sexual discrimination

by showing that:

a) he was employed by the defendant

after having been initially found to be

qualified for the position of Supervisor

10;

b) plaintiff was a male in an

environment where his staff was all

District Court Opinion 33a

c) plaintiff was discharged from

his position; and

ad) after plaintiff's discharge,

defendant sought and hired a replacement

for plaintiff, and the replacement also

was female.

McDonnell Douglas Corp v Green, 411 US

792, 802 (1973). Although the exact

elements of the prima facie case under

Title VII were described somewhat differ-

ently in the McDonnell Douglas case,? the

3~he exact terms of the McDonnell

Douglas test are as follows: "({i) that

Tplaintite belongs to a racial minority;

(ii) that he applied and was qualified

for a job for which the employer was

seeking applicants; (iii) that, despite

his qualifications he was rejected; and

(iv) that, after his rejection, the

position remained open and the employer

continued to seek licants from persons

of complainant's saa ouh tants 5, $14 us

34a District Court Opinion

Court there expressly recognized that:

"The facts necessarily will vary

in Title VII cases, and the

specification above of the prima

facie proof required from res-

pondent is not necessarily

applicable in every respect to

differing fact situations." Id,

at 802, n. 13

The purpose of the prima facie case

established by McDonnell Douglas is

simply to require that the plaintiff

carry the burden initially of: |

"showing actions taken by the

employer from which one can

infer, if such actions remain

unexplained, that it is more

likely than not that such

actions were ‘based on a dis-

criminatory criterion illegal

under the Act.’ 421 US at 358"

Furnco Construction Corp v

Waters, 430 567, 576 78).

a Because cases under Title VII, in

_-—s which the claim is disparate treatment of

an individual, require an inherently

_—s« A fFicult assessment of individual moti-

District Court Opinion 35a

defendant does not unabashedly admit

bigotry), the courts have allowed plain-

tiffs to benefit from circumstantial

evidence, by indulging in a presumption

that adverse treatment of a member of a

disadvantaged minority is the product of

an illegel distriminatory motive, where

no objectively verifiable legitimate

motive can be shown. This presumption,

in the case of Blacks, Hispanics, and

other economically disadvantaged ethnic

minorities who have historically been

victims of oppression by dominant major-

ity ethnic groupds, or in the case of

women , who, at least in some spheres,

have historically been denied oppor-

tunities available to men, is rationally A

defensible, and understandable in common- f

‘ sense terms. However, in the case ofa 4

| white male, not a member of any readily «ss

‘ :

_— balk at

; a ,

may ph

g >

; ;* hn 1-4 2 +

4 z ; Py

‘ - * : J i S

ets fis

; Pt ry

® Tre

%, "is

36a District Court Opinion

treatment of him is the result of an

illegal discriminatory motive, even where .

that treatment is at the hands of the

Opposite sex, and even where there is no

objectively verifiable legitimate moti-

vation. Simply put, the difficulty is

this: why should anyone presume that

women would treat a man less favorably

than another woman? The historical

context of discrimination of this sort is

not as readily apparent as that of dis-

crimination against Blacks or women. |

Nonetheless, the Court deems that an ‘

inference of sexual discrimination can be “i

‘iiiak tii the facts constituting the :

prima facie case Seeceteet above. The

same sexual role stereotypes that have

caused women to be channeled either away | io

_ from the job marketplace altogether, or 4

District Court Opinion 37a

are stereotypically expected to be sex-

ually passive or submissive, men are,

according to stereotypes, expected to be

agressive and dominant. Further, as

women are sterotypically expected to be

less suited to the business world and

more suited to domestic roles, similarly

men are stereotypically expected to be

better in business related roles and

less suited for domestic roles. In other

words, hypothetically, a soit reacting

toa man in a stereotypical manner would

be more inclined to view him as insensi-

tive to children than she would viewing

another woman in the same circumstances. ¥

Based upon the evidence adduced at

trial, the Court believes that the plain- y

tiff in this case was victimized by a

exactly such a stereotypical view. =

y 7.) Defendants have “articulate(d)

; some legitimate, non-discriminatory

de <>

38a District Court Opinion

Purnco Construction Corp v Waters,

supra. They have adduced evidence tend-

ing to support four major criticisms of

plaintiff's performance:

(a) he failed to maintain good

relationships with his staff;

(b) he failed to satisfactorily

implement supervisory directives;

precautions for the health and safety of

the resident-patients under his super-

vision; and

(ad) he failed to make adequate

progress in developing the skills neces- v.

sary in his position. i

8.) Plaintiff has successfully ’

rebutted the presumption that these “a

articulated reasons for his dismissal a

were the actual reasons, by discrediting ”

| them by reference to the facts. x

All of the four major reasons arti- :

Be TEE te whe it were ye ‘

, Pees

- PES ‘z

. ae 4 . 7

“S - : “~~ «

. —- ” ‘

District Court Opinion 39a

subject of the counselling memo dated

July 1, 1975. Swietec, Nagy and McDonald

all testified that at that point in time

there were not adequate grounds for

dismissing the plaintiff. Yet within 15

days of that date, all three had changed

their minds and decided that plaintiff

should be dismissed.

The Court can find only one event

which reasonably could be supposed to

have effected such a significant change.

That event was the Belle Isle trip which

immediately preceded plaintiff's dis-

missal. Based upon its review of the

evidence the Court must conclude that the

events relating to the Belle Isle trip of

July 12, 1975, could only constitute a

pretext for eons as yet undisclosed

reason for plaintiff's dismissal. .

Briefly summarized, the only charge which

could be laid against plaintiff, based

upon the Belle Isle incident, was that he

40a District Court Opinion

exercised poor judgment in looking after

the safety and well-being of a sick

child. Yet, the evidence discloses that

the only persons with first-hand know-

ledge of the facts upon which plaintiff's

judgment was questioned, aside from

plaintiff himself, were three members of

his staff, with which he admittedly had

an unhappy relationship. Plaintiff's

superiors, dependent upon second-hand

information for their knowledge of what

occurred on the Belle Isle trip, con-

sulted with plaintiff's staff, all

female, to ascertain their version of the

incident, but unaccountably failed to

consult with plaintiff to ascertain his |

side of the story, before deciding to ;

dismiss the plaintiff from his employ- EF

ment. This would appear to be a further

extension of the practice, admitted by Sale

Swietec, of always discussing staff 8 * _

District Court Opinion 4la

plaintiff alone, or with staff members

without plaintiff present. This practice

was not used with plaintiff's prede-

cessor.

In order for such an incident to

constitute a legitimate non-pretextual

reason for discharging an employee, some

substantial Good-faith effort towards

obtaining an unbiased account of what

actually transpired would have to be

shown. The facts of this case indicate

that no such effort was made.

9.) Plaintiff's discharge on July

15, 1975, was the product of illegal

discrimination based upon his sex. 42

USC 2000e-2(a) (1).

10.) Plaintiff ailed to make rea-

sonably diligent efforts to obtain other

employment, to mitigate his damages, by

refusing to accept the interview offered

by Swietec for the position of Activities

Training Aid 0S, on April 20, 1976. 4200

42a District Court Opinion

USC 2000e-5(g); Sias v City Demonstration

Agency, 588 F2d 692 (CA 9, 1978).

ll.) Upon consideration of all the

circumstances, the Court, in its dis-

cretion, finds that neither party is

entitled to an award of attorney's fees.

42 USC 2000e-5(k).

Conclusion

Based upon its finding that plain-

tiff-did not make a timely filing with

the EEOC prior to commencing this cdse,

plaintiff's case must be dismissed with

prejudice.

United States District

Judge —

43a

~ RECOMMENDED FOR FULL-TEXT PUBLICATION

See, Sixth Circuit Rule 24

Nos. 80-1735-6

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Davip L. Rasrsas,

Plaintiff-Appellant,

Cross-Appellee, On Appeat from the

- District Court for the

Eastern District of

Micwican DerantMeNT OF MENTAL Michigan.

HEALTA,

Defendant-Appellee,

: . Cross-Appellant. |

: Decided and Filed July 28, 1983.

’ Before: Keitu and Jones, Circuit Judges, and Horrman,*

E> Senior District Judge.

a Kerru, Circuit Judge, delivered the opinion of the court,

| in which Jones, Circuit Judge concurs. Horrman, Senior

he District Judge (pp. 25-33) delivered a scparate opinion concur-

ring in part and dissenting in part.

a Karta, Circuit Judge. In this sex discrimination action David

Rasimas alleged that the Michigan Department of Mental —

ce .

: F > ie

i . j * 2 re .* _

, > i¢ i tue 4

an : ha) : rot i ‘= Sen ale te *

- * 4 . Bi (bs rt aah ¢ + 5 —-*

44a

2 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

Health terminated him from his supervisory position because

of his sex. The district court agreed, but found that he had

not timely filed this action with the Equal Employment

Opportunity Commission (“EEOC”). The court also deter-

mined that his refusal to interview for a non-supervisory

position with the Michigan Department of Mental Health

constituted a failure to mitigate damages. We affirm the sex

discrimination finding, but reverse the timeliness and mitiga-

tion of damages determinations. _

On August 13, 1972, Defendant-appellee Michigan Depart-

ment of Mental Health (“MDMH”) hired Rasimas as a Recre-

ation Activities Training Aide 05 (“Recreation Aide”) at their

Northville Residential Training Center (“Northville”).' North-

ville supervisory personnel later transferred Rasimas from

recreation. He became a speech and language classroom in-

structor. 7

In the spring of 1975, Rasimas was recommended for promo-

tion by Janet Nagy, Director of Nursing Programs, and Caron

45a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 3

Nursing Home.? Nevertheless, each was confident that Rasi-

mas could resolve the problems and gain the necessary super-

visory skills from management seminars and. on-the-job

training. On May 18, 1975, McDonald promoted Rasimas to

Mental Retardation Program Supervisor 10 (“Supervisor 10°)

at Hoover Nursing Home.

At an initial orientation mecting, Swietec discussed the

functions of a Supervisor 10. She told Rasimas that he was

channels for communicating with Nagy and MORC Director

David Rosen.

During the initial period of Rasimas’ tenure, Nagy was away

on vacation. Swietec consequently, was forced to

many of Nagy’s functions as well as her own. Rasimas mean-

while attempted to fulfill the functions of his position. Fol-

se Se nd cy ey hr

Gade of the . mos

46a

4 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

circulated. She believed that there had never been a prob-

lem with punctuality, scheduling, or excessive numbers of per-

sonal calls. Other staff members alleged that Rasimas was

insensitive to their nceds and interfered with the performance

of their duties.

Rasimas, by contrast, maintained that the staff was hostile

and uncooperative.’ Swietec. concurred in Rasimas’ assess-

ment, but continued to accept complaints from staff members

who had bypassed Rasimas. In the days following June 5,

she conferred with Rasimas and the disgruntled staff sepa-

rately. Swietec did not, however, follow “standard procedure”

and conduct joint meetings with Rasimas and his staff. Such

predecessor.

Nagy was also aware of the all female staff's hostility toward

Rasimas. She eventually met with Rasimas on two or three

occasions to offer advice. Nagy found Rasimas “receptive

to her suggestions.” Swietec had a similar reaction, but felt

Rasimas’ listening skills could be improved.

At one of the June meetings, Nagy told Rasimas, in Swietec’s

react negatively to anyone in plaintiffs position. In fact, as

late as June 25, 1975, Swietec noted that “about half” of the

i ° ; '

47a

> Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 5

staff's complaints against Rasimas were unwarranted. She be- .

r lieved the staff was attempting to use Rasimas as a “scapegoat.”

Nagy, meanwhile, concluded that Rasimas had not been

making sufficient progress and that a written evaluation was

mo tre In a memo dated July 1, 1975, Swietec critiqued

Rasimas’ performance. The counseling memo described Rasi-

mas’ supervisory weaknesses as follows: 1) the exercise of

poor judgment in assuring the safety of resident patients;

2) ineffectively implementing supervisory directives to enforce

rules applicable to his staff; and 3) failing to take notes and

disseminate information acquired at a behavioral conference.

Neither Nagy nor McDonald believed that the criticisms con-

tained in the counseling memo of July 1, 1975, constituted

grounds for terminating Plaintiff.

On Saturday, July 12, 1975, Rasimas and three staff mem-

bers took four resident-patients of the Hoover Nursing Home

on a pre-arranged trip to Belle Isle. Near the mid-point of the

trip, one of the patient-residents began to vomit. LaFrate, a

recreation aide on probationary status, stated the child’s condi-

tion was characterized by trembling, vomiting, and blueness

near the edges of the mouth. Rasimas, the driver of the van,

pulled into a nearby parking lot and examined the child. He

48a

6 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

the party spent the next hour having a picnic lunch and touring

the Belle Isle Children’s Zoo. Just prior to returning, LaFrate

observed that the sick child appeared weak and lethargic.

Rasimas directed a staff attendant to take the sick child to a

murse as soon as they arrived at the Hoover Nursing Home.

A nurse examined the child, but deemed it unnecessary to

call a doctor.

On Monday, July 14, 1975, a nurse at the Hoover Nursing

Home approached Marilyn Whitmer, a recreation aide, and

gave her a second-hand account of the Belle Isle trip. Whitmer

immediately contacted Swietec and requested that she hold

a meeting with the staff members who participated in the

Belle Isle trip. Swietec directed staff members to submit

written reports describing the trip. Swietec also contacted

Nagy, who in turn contacted McDonald. McDonald dis-

cussed the trip with LaFrate, the recreation aide who had

disagreed with Rasimas’ decision to continue the trip.

Nagy did not personally investigate the allegations against

Rasimas. Nevertheless, later that afternoon she and Swietec

recommended that Rasimas be dismissed. McDonald ac-

cepted the recommendations, and summarily terminated

Rasimas. At no time prior to, or during July 14, had

Rasimas been consulted concerning the events of the Belle

Isle trip. In fact, July 14 was Rasimas’ day off. He did not

learn of the reports against him until the day after the termi-

nation decision had been made.

On July 15, 1975, Rasimas met with McDonald and Swietec.

ee ’ “=

49a

5 Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 7

leave. MDMH hired Lynn VanBundy, a female, to replace

Rasimas.

On July 28, 1975, Rasimas filed a grievance with the Michi-

gan Civil Service Commission. On August 7, 1975, a meeting

was held pursuant to Step 3 of the Michigan Civil Service

Commission grievance procedure. The dismissal was affirmed.

Rasimas appealed the decision to the Step 4 level. On

October 16, 1975, a hearing was held before a hearing officer.

Subsequently, the Michigan Civil Service Commission directed

McDonald to list the factors which caused him to terminate

Rasimas. In a letter dated October 22, McDonald identified

the following four factors: 1) the failure to maintain good

relationships with program staff and Hoover Nursing Home

staff; 2) the failure to follow supervisory instructions; 3) the

failure to provide adequate precautions for the health and

safety of residents; and 4) the lack of adequate progress in

acquiring supervisory skills. On November 21, 1975, an addi-

tional hearing was conducted. On February 6, 1976, the hear-

ing officer found that Rasimas was terminated for good cause,

but that the dismissal was an overly harsh action. The Hear-

ing Officer's decision recommended that backpay be denied, --—

and Rasimas be demoted to recreation aide. It further pro-

vided that he be placed on the layoff register until an opening |

occurred. Rasimas appealed the Hearing Offcer’s decision. He

was not notified that MDMH had implemented the Hear-

ing Officer’s recommendations.

On March 16, 1976, he filed a complaint against MDMH

with the Michigan Department of Civil Rights.’ The next day

he signed the formal charge prepared by the Equal Employ-

ment Opportunity Commission.

On April 20, 1976, Swietec sent Rasimas a form letter asking

him to interview for a recreation side position. The form let-

ter did not inform him of the actual availability of the posi-

on PETAR 408 Bae 8 0 Otes come

50a

8 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

tion, or of his right of first refusal regarding the position. In

a letter dated April 30, 1976, Rasimas declined to interview,

citing his pending complaint against MORC for dismissing

him.

Rasimas continued his cfforts to obtain substantially equiva-

lent employment. In fact, he attended several interviews, took

employment examinations, and sought employment with gov-

ernment agencies, hospitals and private clinics. One of the

examinations Rasimas passed qualified him to become a para-

medic with the Detroit Emergency Medical Service.* Despite

these efforts Rasimas was unable to obtain suitable employ-

ment. Rasimas’ only source of income prior to trial was un-

employment compensation and later, general assistance pay-

ments from the state.

On March 18, 1977, the Commission affirmed the Hearing

Officer’s decision. A few weeks later, on April 7, the EEOC

issue a “notice of right to sue” letter. On July 11, 1977,

Rasimas filed the present sex discrimination action in the

United States District Court for the Eastern District of Mi-

chigan.

On August 20, 1980, a bench trial was conducted. The court

found that 1) the action was timely filed with the EEOC; 2)

Rasimas’ termination was the result of sex discrimination; and

3) that Rasimas failed to mitigate his damages when he

refused to interview for the activities aide position. Rasimas

and MDMH each appeal that portion of the district court's sf

opinion adverse to their position. - b

Sin Rasimas pessed the medical service exami- ‘

sation, Scbeequentiy. be was placed on the Tegiter to become

/ ie

bas

5la

Nos. 00-1735/6 Rasimas v. Mich. Dept. of Mental Health 9

Timeliness:

The timely filing of a complaint with the EEOC is a proce-

dural prerequisite to the enforcement of a Title VII action in

federal court. This requirement, however, is not jurisdic-

tional, rather it is in the nature of a statute of limitations. See

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982),

reh’g denied, Independent Federation of Flight Attendants

v. Trans World Airlines, Inc., 456 U.S. 940 (1982).

charge of discrimination should be filed with the EEOC

within 180 days after the last discriminatory act. 42 U.S.C.

§ 2000e-5(e).” However, in deferral states, states with fair

employment agencies, claimants must file charges with the

state agency before pursuing their claims with the EEOC.

42 U.S.C. § 2000e-5(c).'"° The EEOC will not formally file

9 42 U.SC. § 2000(e)-5(e) states:

Sime for Ging Doves. A charge under this section shall be

pF bh undred and eighty afte

iif

ceiving poucy iat ihe

of Commission

ye, oe Ramee Dae, Se ad ty Ge

52a

10 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

charges it has received until after the state agency has termi-

nated its proceedings or sixty days have clapsed, whichever

occurs earlier. Mohasco Corp. v. Silver, 447 U.S. 807 (1980).

In deferral states all complaints must be filed with the EEOC

within 300 days after the act of discrimination or within thirty

days after receiving notice that the state has terminated its

proceedings. 42 U.S.C. § 2000c-5(e).

In the present case, MDMII argues that the present action

is untimely without regard to whether the 180 day filing

period or the 300 day filing period applies. MDMH acknow!l-

edges that Rasimas initiated complaints at the EEOC and the

Michigan Civil Rights Commission (“Commission”) on March

16, 1975, some 244 days after th» termination. MDMH points

out, however, that the Commission lacks jurisdiction over com-

plaints filed more than nincty days after the discriminatory act.

Mich. Comp. Laws Ann. § 493.307(b). On March 16, the

Commission did not have the “authority to grant or seek relief”

from the alleged discriminatory practice as required by 42

U.S.C. § 2000e-5(e). Consequently, MDMH argues the 300

day limitation period which is available when a deferral agen-

cy may grant relief simply docs not apply to the instant case.

The 180 day limitation period applies since the tardy filing

deprived the Commission of its opportunity to consider the

complaint. We disagrec.

The EEOC’s position is that a complaint need not be timely

filed under state law before the claimant can benefit from

the 300 day federal filing period. 29 C.F.R. § 1601.13(a)(3)

53a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 11

(1981). The EEOC’s position is entitled to great deference.

_ See Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971).

More importantly, the Supreme Court has summarily reversed

and remanded two circuit court opinions which held that in

deferral states the 300 day filing period was only available

where the action had been filed with the state deferral agency

within 180 days of the discriminatory act. See Ciccone v.

Textron, Inc., 616 F.2d 1216 (1st Cir. 1980), vacated, 449 U.S.

914 (1980), on remand, 651 F.2d 1 (1st Cir. 1981), cert. de-

nied, 452 U.S. 917 (1981); Ewald v. Great Atlantic and Pacific

Tea Co., 620 F.2d 1183 (6th Cir.), vacated, 449 U.S. 914

(1980), on remand, 644 F.2d 884 (6th Cir. 1981).

We agree with the Third Circuit’s opinion in Davis v. Cal-

gon Corporation, 627 F.2d 674 (3d Cir. 1980), cert. denied,

449 U.S. 1101 (1981). In Davis, the plaintiff filed a complaint

with the state fair employment agency 213 days after the dis-

criminatory discharge. Ten days later he filed a charge with

the Secretary of Labor. Although the district court was

located in a referral state, it found that the 300-day filing

period was not available to the plaintiff. The district court

held the filing with the state agency was untimely and applied

the 180-day filing period. The Third Circuit reversed, hold-

ing that a plaintiff in a deferral state is entitled to the 300-day

Carbide Chemical Co., No. 81-5306, slip op. (6th Cir. October

28, 1982); Aronsen v. Crown Zellerbach, 662 F.2d 584, 587

(9th Cir. 1981); Goodman v. Heublein, Inc., 645 F.2d 127

(2d Cir. 1981); Ciccone, 616 F.2d at 1220; Morrison v. United

Parcel Service, 515 F. Supp. 1317, 1319-20 (W.D. Okla. 1981).

Accordingly, we hold that deferral state claimants are not re-

vie) Le Jee _

54a

12 Rasimas v. Mich. Dept. of Meatal Health Nos. 81-1735/6

days after the discriminatory act. Jones, No. 81-5306, slip

op. at 4-8.

MDMH also contends that the present action is untimely

because it was not filed with the EEOC within 300 days after

Rasimas’ termination on July 15, 1975. MDMH admits that

Rasimas initiated complaints at the EEOC and the Michigan

Civil Rights Commission March 16, 1975, 244 days after he

was terminated. MDMH maintains, however, that March 16

cannot be treated as the date the charge was formally “filed”

with the EEOC according to Mohusco Corp., 447 U.S. at 801.

In Mohasco, the Court interpreted 42 U.S.C. 2000e-(5)(c) to

preclude charges being filed with the EEOC in deferral states

until 60 days after the state fair employment agency has re-

ceived notice of the allegations. 447 U.S. at 815-23.

Therefore, MDMH asserts the present action was not formally

“filed” with the EEOC until four days after the 300 day filing

period had expired. We disagree.

In Wiltshire v. Standard Oil of California, 652 F.2d 837,

(9th Cir. 1981), cert. denied, 455 U.S. 1034 (1982), the Ninth

Circuit exhaustively examined Mohasco and determined that

it should not be applied to claims which were pending on the

date the Supreme Court decision was announced. Wiltshire,

652 F.2d at 842. The Sixth Circuit has on two occasions ap-

proved Wiltshire’s holding. First, Hall v. Ledex, Inc., 669 F.2d

397, 399 (6th Cir. 1982) analyzed Mohasco and endorsed the

well-reasoned Wiltshire opinion: “We agree with the Ninth

Circuit that Mohasco should not be applied retroactively. Wilt-

shire v. Standard Oil, 652 F.2d 837 (9th Cir. 1981).” In

Jones, this Court noted the Hall opinion and its approval of

Wiltshire. Jones, No. 81-5306, slip op. at 66 n.3_ The present

action was filed in 1976, several years before Mohasco was

announced. Therefore, applying the precedents of Hall, Jones,

and Wiltshire, we hold the present action was timely filed with

the EEOC.

55a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 13

Ii.

The Finding of Discrimination:

MDMH argues that the district court’s finding of sex dis-

crimination is clearly erroneous. MDMH asserts that Rasimas

did not establish a prima facie case and the district court took

certain comments Nagy made out of context. We disagree.

The Supreme Court has explained that “[t]he burden of estab-

lishing a prima facie case of disparate treatment is not oner-

ous.” Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). In McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), the Supreme Court described an appro-

priate model for establishing a prima facie case of discrimina-

tion:

(i) that he belongs to a racial minority; (ii) that he

plied and was qualified for a job for which the em-

i nant ners applicants; (iii) that, te his qual-

ifications, he was rejected; and (iv) that, his rejec-

tion, the position remained open and the employer con-

tinued to seek applicants from persons of complainant’s

qualifications.

411 U.S. at 802.

In the present case, Rasimas presented undisputed evidence

which demonstrated his female subordinates were hostile and

uncooperative. Moreover, his immediate supervisor referred

to him in a sexually derogatory manner.'' Standard proce-

dures apparently were not followed in counseling him, and

his female supervisors recommended his discharge without

seriously considering his version of the events which transpired

during the Belle Isle outing. We hold that this showing was

more than adequate to “give rise to an inference of unlawful

discrimination.” See Burdine, 450 U.S. at 253.

1! Caron Swiatek admitted that she had called Rasimas a “male

chauvinist” on at least one occasion.

56a

14 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

MDMH also contends the statement: “The girls are out to

get you,” was taken out of context. Allegedly, the statement

was merely an indication that Rasimas’ female subordinates

would be hostile toward any person in his position. Our

examination of the record indicates that the district court's

findings are amply supported. The district court was extremely

sensitive to the context in which Swietec and Nagy commented

on the staffs reaction to Rasimas. The court found that

Swietec believed the staff's reaction was unrelated to Rasimas’

sex. The court, however, heard similar testimony from Nagy

and determined that the statement “the girls are out to get

you” could be accepted without qualification. The district

court, as trier of fact, need not credit a witness’ explanation for

making a particular statement. See, e.g., Mabin v. Lear Siegler,

Inc., 457 F.2d 806, 806-07 (6th Cir. 1972) (per curiam).

Moreover, the district court’s finding concerning the July 1,

1975 memo related to beliefs Nagy and Swietec held on July

1, 1975. It is not a blanket statement that Swietec and Nagy

ultimately believed there were not sufficient grounds to ter-

minate the plaintiff. Finally, there is ample evidence from

which the district court could conclude that MDMH’’s asser-

tion that Rasimas was fired for poor work performance was

merely a pretext. Rasimas was hired and fired within two

months even though his female supervisors knew his first sev-

eral months would be a learning expcrience and his female

staff was hostile and uncooperative.

IV.

Mitigation of Damages:

The duty to mitigate damages after discrimination has oc-

curred is statutorily imposed by Section 706(g) of Title VII.

See 42 U.S.C. § 2000e-5(g). Section 706(g) states in pertinent

part: “Interim earnings or amounts earnable with reasonable

diligence by the person or persons discriminated against shall _

Operate to reduce the back pay otherwise allowable.” This

57a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 15

duty has ancient origins, and operates to prevent claimants

from recovering for damages which they could have avoided

through reasonable diligence. See Equal Employment Oppor-

tunity Commission v. Ford Motor Co., ——U.S. —, 102 S.Ct.

3057, 3065 (1982), on remand, 688 F.2d 951 (1982).

The finding that a claimant has exercised reasonable dili-

gence in seeking other suitable employment following a dis-

criminatory discharge is an issue of fact which, on appeal, is

subject to the “clearly erroneous” standard of Fed. R. Civ. P.

52(a). See, e.g., Marks v. Prattco, Inc., 633 F.2d 1122, 1125

(Sth Cir. 1981) (per curiam); Equal Employment Opportunity

Commission v. Sandia Corp., 639 F.2d 600, 627 (10th Cir.

1980). Once a claimant establishes a prima facie case and

presents evidence on the issue of damages, the burden of pro-

ducing sufficient evidence to establish the amount of interim

earnings or lack of diligence shifts to the defendant. See, e.g.,

NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968); McCann

Steel Co. v. NLRB, 570 F.2d 652, 655 n.4 (6th Cir. 1978);

Marks, 633 F.2d at 1125; Sandia Corp., 639 F.2d at 627; Taylor

v. Philips Industries, Inc., 593 F.2d 783, 787 (7th. Cir. 1979);

Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th

Cir. 1978); Equal Employment Opportunity Commission v.

Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir.

1979); Sangster v. United Airlines, Inc., 633 F.2d 864, 868

(9th Cir. 1980), cert. denied, 451 U.S. 971 (1981). The Defen-

dant may satisfy his burden only if he establishes that: 1)

there were substantially equivalent positions which were avail-

able; and 2) the claimant failed to use reasonable care and

diligence in seeking such positions. Sias, 588 F.2d at 696;

Sandia, 639 F.2d at 627.

A. Substantial Equivalent Employment

In Rutherford v. American Ba: & of Commerce, 12 Fair Empl.

Prac. Cas. (BNA), 1184 (D. N.M. 1976), aff'd, 565 F.2d 1162

(10th Cir. 1977), the plaintiff, a loan officer trainee with over

58a

16 Rasimas v. Mich. Dept. of Mental Health Nus. 81-1735/6

six years experience, resigned over a dispute concerning her

job duties. Plaintiff filed a sex discrimination charge with the

EEOC and began searching for other substantially equivalent

employment. During her search, Fidelity Bank offered her a

job as a “float.” Plaintiff refused. American Bank of Com-

merce, the defendant, argued that plaintiff had failed to miti-

gate her damages. The court disagreed:

[American Bank of Commerce] argues that Rutherford

failed to mitigate damages. There is no support for this

contention. Her teal of an offer by Fidelity Bank as

a “float” because it took no account of her years of ex-

perience and offered only remote possibilities for com-

parable advancement, does not aid ABC's theory. Nor

does ABC suggest any reason why Rutherford should be

required to accept inferior employment. In the area of

employment contracts comparability of status has been

more important in some situations than compara-

bility of salary, for example in the context of mitigation.

See Williams v. Albemarle City Bd. of Education, 508

F.2d 1242 (4th Cir. 1974). Failure of plaintiff to seek

reemployment with ABC also does not bar recovery.

12 Fair Empl. Prac. Cas. at 1190.

We hold that the substantial equivalent of the position from

which the claimant was discriminatorily terminated must

afford the claimant virtually identical promotional opportuni-

ties, compensation, job responsibilities, working conditions, and

status. See Ford Motor Co., 102 S.Ct. at 3065 (“Although

NLAB, 570 F.2d 658, 655 (6th Cir. 1978) (ene

”. caeedantcetue dda hen ah

S. Ol Well Servicing, Inc, G24 F.2d 142, 144 (10th Cir.

bac 3

59a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 17

1980); Williams v. Albermarle City Board of Education, 508

F.2d 1242, 1243 (4th Cir. 1974) (en banc); Ballard v. El

Dorado Tire Co., 512 F.2d 901, 906 (5th Cir. 1975).

B. Reasonable Diligence

A claimant is only required to make reasonable efforts to

mitigate damages, and is not held to the highest standards of

diligence. The claimant’s burden is not onerous, and does not

require him to be successful in mitigation. See, e.g., Lee Way

Motor Freight, 625 F.2d at 938; Sandia Corp., 639 F.2d at 627;

NLRB vy. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th

Cir. 1979): The reasonableness of the effort to find substan-

tially equivalent employment should be evaluated in light of

the individual characteristics of the claimant and the job mar-

ket. See Stone, 624 F.2d at 144 (Reasonable diligence shown

where job seeker voluntarily left non-comparable part-time

employment to seek substantially equivalent work in another

location ); Falls Stamping & Welding Co. v. International Union

United Automobile, Aircraft and Agricultural Workers of

America, 667 F.2d 1026 (6th Cir. 1981), cert. denied, 455 U.S.

1019 (1982) (Older claimants need not exert as much effort

ages. MDMH attempted to meet its burden by showing that

Rasimas had, on at least two occasions, rejected substantially

equivalent positions.

First, on April 20, 1976, Rasimas was sent a form letter

The

—_ 7"

Re,

ag? all

60a

18 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

In Ford Motor Co., the Supreme Court summarized the

mitigation of damages rulc where the employer offered the

claimant a position as follows:

An unemployed or underemployed claimant, like all

other Title VII claimants, is subject to the statutory duty

to minimize damages set out in §706(g).” This duty,

rooted in an ancient principle of law, requires the claim-

ant to use reasonable diligence in finding other suitable

employment. Although the un- or underemployed claim-

ant need not go into another line of work, a a de-

motion, or take a demeaning position, he forfeits his right

to backpay if he refuses a job substantially equivalent to

the one he was denied. Consequently, an employer

charged with unlawful discrimination often can toll the

accrual of backpay liability by unconditionally offering

the claimant the job he sought, and thereby providing

him with an opportunity to minimize damages. An em-

ployer’s unconditional offer of the job originally sought

to an un- or underemployed claimant, moreover, need not

be supplemented by an offer of retroactive seniority

to be effective... .

102 S.Ct. 3065.

In the present case, it can hardly be disputed that the recre-

ation aide position is not the substantial equivalent of the

supervisor 10 position. The responsibilities as an activities

aide in implementing recreational programs for the resident-

patients with multiple handicaps are obviously not co-exten-

sive with those of the supervisor 10 to whom he reports. In

fact, it is clear that the request to interview was little more

than an attempt to get Rasimas to accept a demotion. More-

over, the interview letter was neither “unconditional” nor “an

offer of employment.” See Stone, 624 F.2d at 144. An invi-

tation to interview is, at best, a job offer which is contigent

wpon the applicant having the best qualifications. Moreover,

Rasimas was never informed that he had the right of first

refusal with respect to the recreation aide’s position.

ro ) a

6la |

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 19

Second, on November 9, 1979, Rasimas was offered an op-

portunity to interview for a position as Assistant Rights Advi-

sor at the Alpine Regional Center in Gaylord, Michigan. He

declined to interview for the position. MDMH argued before

the district court that this conduct constituted a willful failure

to mitigate damages. The district court held that Rasimas

could, consistent with his duty to mitigate damages, refuse to

interview for a position 223 miles from his home in Warren,

Michigan. We agree.

It is well settled that a claimant has not failed to make a

reasonable effort to mitigate darmages where he refused to

accept employment that is an unreasonable distance from his

residence. In Oman Construction Co., Inc., 144 NLRB Dec.

(CCH) 1534 (1963), enf'd., 338 F.2d 125 (6th Cir. 1964),

cert. denied, 381 U.S. 925 (1965), the discriminatorily

discharged employee refused to accept a job more than

200 miles from his home in Nashville. This Court

enforced the National Labor Relations Board order which

held that the employce’s refusal did not constitute a

failure to mitigate damages. Similarly in NLRB v. Madi-

son Courier, Inc., 472 F.2d 1307 (D.C. Cir. 1972), the

court held that the duty to make reasonable efforts to find

employment did not obligate claimants “to seek work in Louis-

ville or other areas located over 50 miles from Madison, due

to the excessive commute such jobs would have entailed.”

Id. at 1314. See, e.g., Florence Printing Co. v. NLRB, 376

F.2d 216, 221 (4th Cir.), cert. denied, 389 U.S. 840 (1967);

Jackson v. Wheatley School Dist., 464 F.2d 411, 413-14 (8th

Cir. 1972); Wells v. Hutchinson, 499 F. Supp. 174, 205 (E.D.

Tex. 1980).

Vv.

Accordingly, we affirm the sex discrimination finding, but

reverse the timeliness and mitigation of damages determina-

tions. We commend the district court for its careful and sensi-

tive treatment of the facts. Detailed findings of fact do mach

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20 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

to enhance the quality of appellate review. The district court

never fully addressed! the backpay issue due to its rulings on

other issues. Therefore, this action is remanded to the district

court for further proccedings consistent with this opinion. On

remand the court should award backpay in accordance with

the following guidelines.

A backpay award should make the claimant whole, that is,

to place him in the position he would have been in but for

discrimination. In Albemarle Paper Co. v. Moody, 422 U.S.

405 (1975), the Supreme Court held:

[G]iven a finding of unlawful discrimination, backpay

should be denied only for reasons which, if applied gen-

erally, would not frustrate the central statutory purpose

of eradicating discrimination throughout the economy

and making persons whole for injuries suffered for past

discrimination.

Id. at 421. Thus, in the absence of exceptional circumstances,

backpay should always be awarded when a Title VII violation

is found. See, e.g., Los Angeles Department of Water & Power

v. Manhart, 435 U.S. 702, 719 (1978); Head v. Timkon Roller

Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973); Meadows v.

Ford Motor Co., 510 F.2d 939, 945 (6th Cir. 1975); Stewart v.

General Motors Corp., 542 F.2d 445, 451 (7th Cir. 1976),

cert. denied, 433 U.S. 919 (1977); Kirby v. Colony Furniture

Co., Inc., 613 F.2d 696, 699 (8th Cir. 1980). The special

factors which would constitute exceptional circumstances and

prevent backpay awards are exceedingly rare.'? See Albemarle

Paper Co., 422 U.S. at 417; Meadows, 510 F.2d at 942; Stew-

ard, 542 F.2d at 451; Kirby, 613 F.2d at 699. Neither the

ficulty in calculating the backpay award constitute exceptional

'21f a district court should decline to award backpay, it should

articulate its reasons for selecting that course of action.

See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 n.14 (1975).

i ee _ i. ——- A ee ee oa Se 1 he ee ee eee

~ : 7 ”

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Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 21

circumstances. See, e.g., Head, 486 F.2d at 877; Stewart, 542

F.2d at 451; Kirby, 613 F.2d at 699; Pettway v. American Cast

Iron Pipe Co., 494 F.2d 211, 253-54, 260 (5th Cir. 1974).

Backpay awards should completely redress the economic in-

jury the claimant has suffered as a result of discrimination. A

claimant, therefore, should receive the salary, including any

raises, which he would have received but for discrimination.

See Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir.

1975), affd in part and vacated in part, 434 U.S. 138 (1977);

Anderson v. Methodist-Evangelical Hospital, Inc., 464 F.2d

723 (6th Cir. 1972); Paxton v. Union National Bank, 29 Fair

Empl. Prac. Cas. (BNA), 1233, 1252 (8th Cir. 1982); Equal

Employment Opportunity Commission v. Kallir, Phillips, Ross,

Inc., 550 F.2d 1203 (2d Cir. 1977), cert. denied, 434

U.S. 920 (1977). Sick leave, vacation pay, pension benefits

and other fringe benefits the claimant would have received but

for discrimination should also be awarded. See Meadows, 510

F.2d at 948; Satty, 522 F.2d at 855; Farmer v. Hotel Workers,

Local 1064, 21 Fair Empl. Prac. Cas. (BNA) 1599 (E.D.

Mich. 1978), affd in part and rev'd in part sub. nom. Farmer

v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981); Culp v.

General American Transportation Corp., 517 F.2d 1404 (6th

Cir. 1975); Laugensen v. Anaconda Co., 510 F.2d 307, 317

(6th Cir. 1975); Paxton 29 Fair Empl. Prac. Cas. (BNA) at

1252; Pettway, 494 F.2d at 263; Bowe v. Colgate, Palmolive

Co., 489 F.2d at 903-04 (7th Cir. 1973); Sandia, 639 F.2d at

626; Ingram v. Madison Square Garden Ctr. Inc., 482 F. Supp.

918, 926 (S.D.N.Y. 1979); Willett v. Emory and Henry Col-

lege, 569 F.2d 212 (4th Cir. 1978). Backpay awards should

not be reduced by the amount of income and social security

taxes which would have been deducted from the wages the

claimant would have received but for discrimination. See

Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980).

Unemployment benefits also should not be deducted from

backpay awards. This Circuit has on several previous occa-

64a

22 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

sions affirmed district courts which have held that unemploy-

ment benefits should not be offset against backpay awards.'*

See Falls Stamping & Welding Co. v. International Union

United Automobile, Aircraft and Agricultural Workers of

America, 667 F.2d 1026 (6th Cir. 1981), cert. denied, 455 U.S.

1019 (1982); Mabin v. Lear Siegler, Inc., 4 Fair Empl. Prac.

Cas. (BNA) 679, 687 (W.D.Mich. 1971), affd, 457 F.2d 806

(6th Cir. 1972); Oman Construction Co., Inc., 144 NLRB

Dec. 1543 1544 (1963), enfd, 338 F.2d 125 (6th Cir.

1964). But sec, Satty, supra. A number of other courts

have also refused to reduce backpay awards by the amount of

unemployment compensation received by the claimant. See,

e.g., Winn-Dixie Stores, Inc. v. NLRB, 413 F.2d 1008, 1009-10

(5th Cir. 1969); Isaac and Vinson Security Services, Inc., 208

NLRB Dec. 47 (1973), enf'd, 467 F.2d 213 (5th Cir. 1972); Int-

ernational Assoc. of Machinists & Aerospace Workers v. Cham-

pion Carriers, Inc., 470 F.2d 744, 745 (10th Cir. 1972); Tid-

well v. American Oil Co., 332 F. Supp. 424, 437-38 (D. Utah

1971); Abron v. Black & Decker Mfg. Co., 439 F. Supp. 1095,

13 As we understand our brother, Judge Hoffman, he personally

would not deduct unemployment compensation from backpay awards.

However, he feels constrained by National Labor Relations Board yv

Gullet Gin Co., cag 361 (1951) to hold that the district court

should have discretion in determining when to deduct unemploy-

ment compensation from a packpay award. . at —. ;

We disagree. ee een One 0 neteaal backpay

That policy is to make “persons w woe, Or Seas

Bast tion.” Albemarle P. Co. oody, 422 US.

405, 421 (1975). It is inconsistent with national Spreve.

as my brother licitly has, that two pantienty situa ts

may be made le” by radically differen t backpay awards. To

allow district courts to determine just how “whole” a claimant will be

is antagonistic to the establishment of a uniform national policy.

the deduction does not have a oy |

intend for an employee Mh nee a A eet

Rises peneecene bt Rpleion ns eee

Finally, ha domgen significance

appears to have

of the in Gullett Gin. There the Supreme Court explicitly

rejected for the unemployment >

Gee dis bocioae neces. Gan celeanke & eae ws

cas, <> vy

‘= See ise eee we

65a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 23

1115 (D. Md. 1977), aff'd in part and vacated in part, 654 F.2d

951 (4th Cir. 1981).

Backpay should be awarded even whcre the precise amount

of the award cannot be determined. Sce, ¢.g., Equal Employ- .

ment Opportunity Commission v. Detroit Edison Co., 515 F.2d

301, 315 (6th Cir. 1975), vacated on other grounds sub. nom.

Utility Workers Union v. Equal Employment Opportunity

Commission, 431 U.S. 951 (1977); Meadows, 510 F.2d at 943;

Stewart, 542 F.2d at 452; Pettway, 494 F.2d at 260-61. Any

ambiguity in what the claimant would have received but for

discrimination should be resolved against the discriminating

employer. See, e.g., Detroit Edison, 515 F.2d at 315; Kaplan

v. Theatrical Employees Local 659, 525 F.2d 1354, 1362-63

(9th Cir. 1975); Pettway, 494 F.2d at 260-61; Stewart, 542

1) where the contributions to the fund from which the benefits

derive are made solely by the defendant, the collateral source rule

does not apply; 2) the plaintiff would otherwise receive a double

recovery; and 3) the defendant would otherwise in effect be subject

to punitive damages. See Equal Employment aay Commis-

sion v. E Association Steamfitters 638, F.2d 579,

591-92 (2d Cir), cert. denied, 430 U.S. 911 (1976). The Supreme

Court rejected these arguments, stating:

should

framing an 0 to reimburse employees for their lost earn-

ings, manifestly no consideration necd be given to collateral

* benefits which employees may have received.

Bu t argues that the benefits paid from the Louisiana

t tion Fund were not collateral but

benefits. With this theory we are unable to agree. ree

ments of unemployment compensation were not made to

employees by taxation. True, these taxes were paid by em-

ployers, and thus to some extent respondent helped to create

the fund. However, the to the employees were not

eo Rp Begone gf Bee Calernen te ee

carry out a policy beticrment benefit

the entire state [citations omitted). We think these facts

show the to be collateral. It is thus from

what we‘ have said that failure to take into ac-

count in ordering pay does not make the employees more

than ” as that phrase has been understood and applied.

Gullett Gin Co.,\340 U.S. at 364.

66a

24 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

F.2d at 452; Bowe, 489 F.2d 896, 902; Johnson v. Goodyear

Tire & Rubber Co., 491 F.2d 1364, 1380 (5th Cir. 1974);

Kallir, Philips, Ross, Inc., 420 F.Supp. at 923; NLRB v. Coca-

Cola Bottling Co., 360 F.2d] 569, 573 (5th Cir. 1966); Crou-

shorn v. Board of Trustces of Univ. of Tennessee, 518 F. Supp.

9, 27 n.16 (M.D. Tenn. 1980). In Detroit Edison, this Court

held that backpay equal to the maximum amount which

could have been earned but for discrimination was appropriate

where it was impossible to reconstruct the employment his-

tory of each claimant. 515 F.2d at 315.

67a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 25 .

HorrMan, Senior District Judge, concurring in part and

dissenting in part.

I agree with the majority that the judgment’ entered by the

District Court on September 16, 1980, must be vacated and

remanded. The reason is that the District Court relied upon

the Supreme Court decision in Mohasco Corp. v. Silver, 447

U.S. 807 (1980), an opinion filed not quite three months prior

to the judgment entered by the District Court in this case.

A later upinion of the Supreme Court, Zipes v. Trans World

Airlines, Inc., 455 U.S. 385 (1982), held that the statutory

filing of charges with the Equal Employment Opportunity

Commission (EEOC) was not a jurisdictional prerequisite,

but was in the nature of a statute of limitations. Since the

District Court never had the opportunity to consider the

Zipes case,? I would vacate and remand to permit the District

'The judgment was in favor of the Michigan Department of

Mental Health (MDMH). The judgment reads:

IT IS ORDERED AND ADJUDGED that the plaintiffs (sic)

take nothi and that the action be dismissed on the merits.

Each party is to pay its own costs of action.”

26 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6 °

Court to make specific findings and conclusions on this phase

of the case, together with other matters mentioned herein. At

this point my agreement with the majority ends.

In Zipes, the Supreme Court said:

By holding compliance with the filing period to be not a

jurisdictional prerequisite to filing a Title VII suit, but a

requirement subject to waiver as well as tolling when

equity so requires, we honor the remedial purpose of

the legislation as a whole without negating the par-

ticular purpose of the filing requirement, to give prompt

notice to the employer.

The majority opinion reverses the District Court and de-

prives it of the opportunity to consider waiver and tolling.

While the ultimate result may be in accordance with the ma-

jority’s views, this is a function of the District Court and

not the appellate court. Of course, if neither Mohasco nor

Zipes are to be considered retroactive, then the Sixth Circuit

holdings in Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir.

1982), and Jones v. AIRCO Carbide Chemical Co., 691 F.2d

884 (6th Cir. 1982)? are applicable.

In Zipes, the Supreme Court could have readily disposed

aisle es Or ee Re

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Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 27

FINDINGS OF FACT AND CONCLUSIONS OF LAW

My concern with the findings of fact and conclusions of

law rests with the conclusions of law. The findings are, of

course, binding upon this court unless clearly erroneous.

Under Conclusion (6) the District Court describes the

type of discrimination which existed among the females who

worked under plaintiff, and who were under his supervision.

The findings do not point the finger of discriminatory practice

against the persons who were superior to Rasimas, i.e., Rosen

(Director), McDonald (Administrative Officer in charge of

personnel), Nagy (a female Director of the Nursing Home

program), and Swietec, known as Caron Bender during the

pertinent period involved, (a female mental retardation super-

visor 10). The most that can be said with respect to plain-

tiffs superiors is that (1) they paid too much attention to the

complaints of the staff working under Rasimas, and (2) be-

fore making the final decision to discharge Rasimas, the super-

iors did not discuss the Belle Isle incident with Rasimas

“~~

70a

28 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

site sex, and even where there is no objectively verifiable

= oe motivation. Simply put, the difficulty is this:

should anyone presume that women would treat a

man less favorable than another woman? The historical

context of discrimination of this sort is not as readily

apparent as that of discrimination against Blacks or

women.

Nonetheless, the Court deems that an inference of

sexual discrimination can be drawn from the facts con-

stituting the prima facie case described above. The same

sexual role stereotypes that have caused women to be

channeled either away from the job marketplace al-

together, or into lower-paying jobs than men, necessarily

have their counterparts in male sexual role stereotypes.

Thus, as women are stereotypically expected to be sex-

ually passive or submissive, men are, according to stereo-

types, expected to be aggressive and dominant. Further,

as women are stereot expected to be less suited

to the business wor more suited to domestic

roles, similarly men are stereotypically expected to be

better in business related roles and less suited for do-

mestic roles. In other words, hypothetically, a woman

reacting to a man in a stereotypical manner would be

more inclined to view him as insensitive to children

than she would viewing another woman in the same

circumstances.

Based upon the evidence adduced at trial, the Court

believes that hat the plaintiff in this case was victimized by

exactly such a stereotypical view.

Board of Governors v.

4354 (decided April 4, 1983), in which the Supreme Court

7la

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 29

remanded the case to the District Court for further findings

because the District Court erroneously focused on the ques-

tion of the prima facie case rather than on the question of

discrimination, I would remand this case to the District Court

for further findings as to “discriminatory intent.” At no point

in the factual findings has the District Court mentioned “dis-

criminatory intent.”$ In Aikens, the Supreme Court was care-

ful to note that once the trial court had determined that a

prima facie case had been established, the McDonnell-Bur-

dine presumption “drops from the case” and “the factual in-

quiry proceeds to a new level of specificity”. Likewise, in

Aikens, the Supreme Court reiterates its previous rulings that

the factual inquiry in a Title VII case is “whether the de-

fendant intentionally* discriminated against the plaintiff’, cit-

ing Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). Other than by inference derived from

the legal conclusion of the District Court, I find no suggestion

of intentional discrimination, especially with respect to the

superiors of Rasimas who had the authority to hire and fire.”

$I fully that the second portion of 42 U.S.C. § 1985(2)

vides: “[OJr if two or more persons sooo Dee the purpose —

peding, hindering, obsetructing, or defea n manner,

due course of justice in any State or ~

oath ne FE ny and the females who were his -

visors; nor the amended complaint a » this issue. K ¥v.

Ruteledge, —— U.S. ——, 51 U.S.L.W. 4356 (decided April 4, 1983).

a eS te

72a

30 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

For these reasons, and in accord with the principles set

forth in Aiken, supra, I would remand this case to the District

Court for additional findings as to the existence of inten-

tional discrimination and with whom such intent existed. I

have grave doubts as to whether such intent, if it existed,

is chargeable to the supervisors of Rasimas who had the

authority to recommend his discharge to McDonald, the Ad-

ministrative Officer in charge of personnel. The discharge ac-

tion may have been neither discriminatory nor praiseworthy.

The action may have been the result of poor employee rela-

tions, but nevertheless not constitute discriminatory treat-

ment.* Similarly, I entertain a doubt that an employer is re-

quired to interview an employee charged with poor judgment

in an isolated incident (the Belle Isle’s trip) where the facts

are not in substantial disagreement, and that such failure to

interview Rasimas in this case is any indication of discrimina-

tory intent,’ either with respect to one on probationary status

as was Rasimas or as to any permanent employee.

lation was required of the employer and. because the Court of

Appeals had imposed a heavier burden on the employer, the case

for reconsideration. The same situation exists in this

73a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 31

MITIGATION OF DAMAGES

I agree with the majority that the actions of Rasimas, in

declining to be interviewed in response to the letter of Ap

20, 1976 requesting same, should not, standing alone, diminish

the damages to which Rasimas would be entitled, if he is

entitled to any damages in this action. Assuming arguendo

that the sole reason found by the District Court for mitigating

the damages is predicated upon the actions of Rasimas in

declining to be interviewed, this was error. However, on

remand if it were possible under the majority opinion to con-

sider findings on mitigation, I think that it would be per-

missible for the District Court to consider the age factor

(Rasimas was 34 when he was discharged, and 39 at the

time of trial in 1980); the fact that he had applied for com-

parable employment in Chicago (trial testimony), San Fran-

cisco (deposition testimony), and other locations not imme-

diately in the area he lived; that he was unmarried, his family

status, and why he could not accept employment in other

areas; along with other related factors.

As the Supreme Court said in Ford Motor Company v.

Equal. Employment Opportunity Commission, —- U.S. —,

102 S.Ct. 3057 (1982), 50 U.S.L.W. 4937, 4939:

Under § 706(g), then, “backpay is not an automatic or

mandatory remedy[.] . . . it is one which the courts ‘may’

74a

32 Rasimas v. Mich. Dept. of Mental Health Nos. 81-1735/6

invoke” in the exercise of their “discretion [which] is

equitable in nature.”

Citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 416

(1975).

While this case is being remanded to the District Court to

determine damages, the majority opinion is written in such a

manner as constituting a direction for the District Court to

award full backpay, at least to the date of the District Court's

opinion rendered in September, 1980 — an award then in

excess of $81,000.

UNEMPLOYMENT INSURANCE

The majority adopts a rue established by the majority

opinion in E.E.O0.C. v. Ford Motor Co., 645 F.2d 183, 195-196

(4th Cir.), rev'd on other grounds, —- U.S. —, 102 S.Ct.

3057 (1982), 50 U.S.L.W. 4937, thus making it mandatory on

all district judges in the circuit to disregard the receipt of

employment benefits in computing damages in discrimina-

tion cases. The District Court, in the present case, made no

findings on this issue as it found for MDMH because of the

time limitations. For the reasons expressed in my dissenting

opinion in E.E.0.C. v. Ford Motor Co., 645 F.2d at 200, 210

(4th Cir. 1981), I fecl that the Supreme Court, in N.L.R.B. v.

Gullett Gin Co., 340 U.S. 361, 364 (1951), has held that

this issue should be left solely to the discretion of the District

Court.

It may be argued that in Ford Motor Co. v. E.E.O.C., supra,

the Supreme Court did not discuss this issue and, therefore,

tacitly approved the ruling of the Fourth Circuit majority.

The fact is that any such ruling by the Supreme Court was

wholly unnecessary to the decision in that case as the two

women involved who had received unemployment insurance

were cut off from any backpay long prior to the receipt of

unemployment benefits in accordance with the Supreme

75a

Nos. 80-1735/6 Rasimas v. Mich. Dept. of Mental Health 33

Court’s ruling that they were required to accept an uncondi-

L@ tional offer of employment to an equivalent position

More significantly, the ruling of the majority in this case

will create a conflict in the Sixth Circuit. In Satty v. Nashville

Gas Company, 522 F.2d 850, 855 (1975), vacated and re-

manded on other grounds, 434 U.S. 136 (1977), a panel of

this court upheld the action of a District Court in reducing

a discrimination award by the receipt of unemployment insur-

ance. Thus, the majority in the instant case is changing the

discretionary rule vested in district judges contrary to the

Supreme Court in Gullett Gin Co. and the Sixth Circuit in

Satty.

For the foregoing reasons, and with great respect, I am

obliged to concur in part and dissent in part.

FO __

76a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 80-1735/1736

DAVID L. RASIMAS,

Plaintiff-Appellant,

Cross-Appellee,

vs.

MICHIGAN DEPARTMENT OF

MENTAL HEALTH,

Defendant-Appellee,

Cross-Appellant.

Before: KEITH AND JONES, Circuit Judges;

and HOFFMAN, Senior District

Judge,

JUDGMENT

ON APPEAL from the United States

District Court for the Eastern District

of Michigan.

THIS CAUSE came on to be heard on

the record from the said District Court

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this court

that the judgment of the said District

Court in this case be and the same is ;

hereby affirmed in part, reversed in part .

and the case is remanded for further pro- |

ceedings consistent with the opinion of >

this Court.

77a

} Each party to bear its own costs on

this appeal.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

Clerk

A True Copy.

Issued as Mandate: November 10, 1983

COSTS: NONE

Attest:

Filing fee.....$

Printing.......$

Fotal. ..§ s/

Deputy Clerk

78a

NOS. 80-1735

80-1736

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID L. RASIMAS,

Plaintiff-Appellant,

Cross Appellee

vs :

>: ORDER

MICHIGAN DEPARTMENT OF

. MENTAL HEALTH,

Defendant-Appellee,

Cross~Appellant.

BEFORE: KEITH and JONES, Circuit Judges,

and JOFFMAN*, District Court

Judge

A majority of the judges of the

Court having not favored rehearing, the

petition for rehearing has been referred

to the hearing panel for disposition.

Upon consideration, the Court con-

cludes that the petition for rehearing is »

without merit. Accordingly, it is Ps

79a

ORDERED that the rehearing be and hereby

’ is denied.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, CLERK

‘ *Honorable Walter E. Hoffman, Senior __

District Court Judge, Norfolk, Virginia

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.