Petition for Writ of Certiorari — Yellow Freight System, Inc. v. Donnelly

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') Supreme Court, U.S,

89-431 ‘Gos:

No . | Sep 3 1989

PANIOL, JR.

CLERK

In the Supreme Court of the U

OCTOBER TERM, 1989 |

YELLOW FREIGHT SYSTEM, INC.,

Petitioner,

VS.

COLLEEN DONNELLY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

JEFFREY IVAN PASEK

(Counsel of Record)

ALAN M. LERNER

CoHEN, SHAPIRO, POLISHER,

SHIEKMAN AND COHEN

12 South 12th Street

Philadelphia, Pennsylvania 19107

(215) 922-1300

STEVEN J. TEPLINSKYy

LEONARD R. KorKkIn

FAGEL, HABER & MARAGOS

140 South Dearborn, Suite 1400

Chicago, Illinois 60603

(312) 346-7500

Attorneys for Petitioner

Of Counsel:

RONALD E. SANDHAUS

10990 Roe Avenue

Overland Park, Kansas 66207

(913) 345-3000

FE. L. Menpennans, Inc., 026 Cherry Street. Kansas Citv, Mo. 64106, (816) 421-3080

QUESTIONS PRESENTED

Whether federal courts have exclusive jurisdiction

over claims arising under Title VII of the Civil Rights Act

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

Whether a victim of employment discrimination is

obligated to seek comparable employment, when such

employment is available in the area, to be eligible for

an award of back pay under § 706(g) of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-

5(g).

TABLE OF CONTENTS

a I

Table 2 III

Statutes Involved eee nisin 3

i (s;‘ R:si* CO EEE ee 8

Reasons for Granting the Petition ................................... 11

ee semana 19

Appendix Table of Contents:

1. United States Court of Appeals for the Seventh

Circuit Opinion filed April 28, 1989 -............ A-1

2. United States Court of Appeals for the Seventh

Circuit Order denying Petition for Rehearing

with suggestion for Rehearing En Banc ........... A-20

3. United States District Court for the Northern

District of Illinois Judgment entered March 17,

1988 .. = eae ...A-22

4. United States District Court for the Northern

District of Illinois Memorandum and Order

A | ee rrr A-24

5. United States District Court for the Northern

District of Illinois Report and Recommenda-

tion of Magistrate entered December 10, 1987 .A-26

6. United States District Court for the Northern

District of Illinois Memorandum and Order

entered November 22, 1985 ................................ 4-35

7. Circuit Court of Cook County, Illinois, Agreed

Order entered August 9, 1985 A-40

Ill

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 15

Bradshaw v. General Motors Corp., 805 F.2d 110 (3d

SE 11

Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d

EE 10

Dyer v. Greif Bros., Inc., 755 F.2d 1391 (9th Cir. 1985) 11

Eichman v. Fotomat Corp., 759 F.2d 1434 (9th Cir. 1985) 12

Carden v. Westinghouse Electric Corp., 850 F.2d 996

Tee casccrescenstennvccononestensesense 14

Floca v. Homecare Health Services, Inc., 845 F.2d 108

EE 14

Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989) 0... 14, 16

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ........ 14, 15, 16,

17, 18, 19

Johnson v. Chapel Hill Independent School District,

853 F.2d 375 (5th Cir. 1988) .......... iaididdennaniatelemnaianees 16, 17

Jones v. Intermountain Power Project, 794 F.2d 546

a a esrmsmmnaseanaseeosuces 11

Long v. State of Florida, 805 F.2d 1542 (11th Cir.

1986), cert. denied, ........ , 108 S.Ct. 78, 98

a einiateecisceenensensienncunvvenseneveceecesneesens 11

McNasby v. Crown Cork & Seal Co., app. pending, 3d

SLA 13

Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985) —............. 18

Nanavati v. Burdette Tomlin Memorial Hospital, 857

F.2d 96 (3d Cir. 1988), cert. denied, ........ aoe :

109 S.Ct. 1528, 103 L.Ed.2d 834 (1989) 0000. 12

Nord v. United States Steel Corp., 758 F.2d 1462 (11th

ye Teed cascesstacecemrs 14

Pirella v. Village of North Aurora, app. pending, 7th

— 2 3 | Pane Saat cea 13

Sangster v. United Air Lines, Inc., 633 F.2d 864 (9th

Cir. 1980), cert. denied, 451 U.S. 971 (1981) -.............. 14

Southern Silk Mills, Inc. v. NLRB, 242 F.2d 697 (6th

Cir.), cert. denied, 355 U.S. 821 (1957) ............2000....... 17

Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 1984)

sata caidas ict aeibikavnanidinidéndainianasonentanenieiedniaetmmidaeil 10, 11

Statutes

EE Rem eae rises ea o cona a tmoeene n= 12

i -T, STEIE > scales cnsiansselinsi ahiachetibanpbnniaemnnSS RaNeRaSSIEE 12

cscs ltl nen dlalebatlbAasan Naina 8

SU I: “USI sci css scsecnnesieaceasinlioae-<eesstenmiaatianetinideneeinnaale 1

Oe Te, Oe Te a ssscececcssensbacenstippnmniaenlaiiemveneesennennanal 16

Oe a Oe I nas escensiedensnchiaseebinneoenenpnenaananntns 17

Oe es Fe ID © sicccccnscnnssienicsticnsensecseciasionminentansnionnats 3

Oe is Oe ID vinicececiccinesnsterscnisiincnionnitiainicnieninans 12

42 U.S.C. § 2000e-5(f) (4) 0... eeee cece SAPS Ke 12

Oe ee I crecscness<crensdeineibinsaeiasaheibibidedulbinnes 12

42 U.S.C. § 2000e-5(g) ....... seibnctenestiiatasesiionioneiigadakidediaiiabianiatn 6

Gy TEE, © BD © Stvnsncccsicnscstinncsteviniinmninittaniiaasimmennnasiin 7,12

Ill. Rev. Stat., Chapter 68, {] 1-101 et seq. (1983) ............ 8

Rules

I TD Tic Bs Ge Oe easiccerensecenncvnccesenosenenncitieninineniainniiceiaastinnets 12

Congressional Materials

110 Cong. Rec. 12722 (1964) .............-..--.-.-. revesessoesenesenevetes 13

H.R. Rep. 914, 88th Cong., Ist Sess. at 29 (1963) ............ 13

Other Materials

Annual Report of the Director of the Administrative

Office of the United States Courts 1988 ........................ 11

No.

In the Supreme Court of the United States

OCTOBER TERM, 1989

YELLOW FREIGHT SYSTEM, INC.,

Petitioner,

vs.

COLLEEN DONNELLY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Yellow Freight System, Inc. (“Yellow Freight”) peti-

tions for a writ of certiorari to review the judgment in

this case of the United States Court of Appeals for the

Seventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit dated April 28, 1989 (A-1 to A-19)!

1. References in the form (A-1 to A-....... ) refer to pages

of the Appendix. References in the form (T-........ ) refer to pages

of the Transcript of Proceedings before the Magistrate on No-

vember 3, 1987.

is reported as 874 F.2d 402. In an unpublished order

dated July 17, 1989, the United States Court of Appeals

for the Seventh Circuit denied Yellow Freight’s Petition

for Rehearing with Suggestion for Rehearing En Banc

(A-20). The opinion of the United States District Court

for the Northern District of Illinois entered March 17, 1988

on the issue of mitigation of damages is reported at 682

F. Supp. 374. The Report and Recommendation of the

United States Magistrate (A-26 to A-34), entered

December 10, 1987, is not reported. The opinion of the

District Court entered November 22, 1985 on the issue of

jurisdiction in Title VII actions (A-35 to A-39) is not

reported. The order of the Circuit Court of Cook County,

Illinois, dismissing plaintiff’s complaint with prejudice and

continuing her contested motion for leave to file an

amended complaint, entered August 9, 1985 (A-40), is

not reported.

JURISDICTION

The judgment of the United States Court of Appeals

for the Seventh Circuit was entered on April 28, 1989

(A-1) and the Petition for Rehearing was denied on July

17, 1989 (A-20). The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

1. Section 706(f) of Title VII of the Civil Rights

Act of 1964, as amended (“Title VII’), 42 U.S.C. § 2000e-

5(f) provides as follows:

Civil action by Commission, Attorney General, or

person aggrieved; preconditions; procedure; appoint-

ment of attorney; payment of fees, costs, or security;

intervention; stay of Federal proceedings; action for

appropriate, temporary or preliminary relief pending

final disposition of charge; jurisdiction and venue of

United States courts; designation of judges to hear

and determine case; assignment of case for hearing;

expedition of case; appointment of master.

(1) If within thirty days after a charge is filed

with the Commission or within thirty days after ex-

piration of any period of reference under subsection

unable to secure from the- respondent a conciliation

agreement acceptable to the Commission, the Commis-

sion may bring a civil action against any respondent

not a government, governmental agency, or political

subdivision named in the charge. In the case of a

respondent which is a government, governmental

agency, or political subdivision, if the Commission

has been unable to secure from the respondent a con-

ciliation agreement acceptable to the Commission, the

Commission shal] take no further action and shall

refer the case to the Attorney General who may bring

a civil action against such respondent in the appro-

priate United States district court. The person or

persons aggrieved shall have the right to intervene

in a civil action brought by the Commission or the

Attorney General in a case involving a government,

governmental agency, or political subdivision. If a

charge filed with the Commission pursuant to sub-

section (b) of this section is dismissed by the Com-

mission, or if within one hundred and eighty days

from the filing of such charge or the expiration of

any period of reference under subsection (c) or (d)

of this section, whichever is later, the Commission has

not filed a civil action under this section or the Attor-

ney General has not filed a civil action in a case in-

volving a government, governmental agency, or politi-

cal subdivision, or the Commission has not entered

into a conciliation agreement to which the person

aggrieved is a party, the Commission, or the Attorney

General in a case involving a government, govern-

mental agency, or political subdivision, shall so notify

the person aggrieved and within ninety days after

the giving of such notice a civil action may be brought

against the respondent named in the charge (A) by

the person claiming to be aggrieved or (B) if such

charge was filed by a member of the Commission, by

any person whom the charge alleges was aggrieved

by the alleged unlawful employment practice. Upon

application by the complainant and in such circum-

stances as the court may deem just, the court may

appoint an attorney for such complainant and may

authorize the commencement of the action without

the payment of fees, costs, or security. Upon timely

application, the court may, in its discretion, permit

the Commission, or the Attorney General in a case

involving a government, governmental agency, or

political subdivision, to intervene in such civil action

upon certification that the case is of general public

importance. Upon request, the court may, in its dis-

cretion, stay further proceedings for not more than

sixty days pending the termination of State or local

proceedings described in subsections (c) or (d) of

this section or further efforts of the Commission to

obtain voluntary compliance. :

(2) Whenever a charge is filed with the Com-

mission and the Commission concludes on the basis

of a preliminary investigation, that prompt judicial

action is necessary to carry out the purposes of this

Act, the Commission, or the Attorney General in a

case involving a government, governmental agency,

or political subdivision, may bring an action for ap-

propriate, temporary or preliminary relief pending

final disposition of such charge. Any temporary re-

straining order or other order granting preliminary

or temporary relief shall be issued in accordance with

rule 65 of the Federal Rules of Civil Procedure. It

shall be the duty of a court having jurisdiction over

proceedings under this section to assign cases for

hearing at the earliest practicable date and to cause

such cases to be in every way expedited.

(3) Each United States district court and each

United States court of a place subject to the jurisdic-

tion of the United States shall have jurisdiction of

actions brought under this subchapter. Such an ac-

tion may be brought in any judicial district in the

State in which the unlawful employment practice is

alleged to have been committed, in the judicial dis-

trict in which the employment records relevant to

such practice are maintained and administered, or in

the judicial district in which the aggrieved person

would have worked but for the alleged unlawful em-

ployment practice, but if the respondent is not found

within any such district, such an action may be

brought within the judicial district in which the re-

spondent has his principal office. For purposes of

sectic.is 1404 and 1406 of Title 28, the judicial district

in which the respondent has his principal office shall

in all cases be considered a district in which the ac-

tion may have been brought.

(4) It shall be the duty of the chief judge of

the district (or in his absence, the acting chief judge)

in which the case is pending immediately to designate

a judge in such district to hear and determine the

case. In the event that no judge in the district is

available to hear and determine the case, the chief

judge of the district, or the acting chief judge, as the

case may be, shall certify this fact to the chief judge

of the circuit (or in his absence, the acting chief judge)

who shall then designate a district or circuit judge of

the circuit to hear and determine the case.

(5) It shail be the duty of the judge designated

pursuant to this subsection to assign the case for

hearing at the earliest practicable date and to cause

the case to be in every way expedited. If such judge

has not scheduled the case for trial within one hun-

dred and twenty days after issue has been joined, that

judge may appoint a master pursuant to rule 53 of

the Federal Rules of Civil Procedure.

2. Section 706(g) of Title VII, 42 USC. § 2000e-

5(g), provides as follows:

Injunctions; affirmative action; equitable relief; ac-

crual of back pay; reduction of back pay; limitations

on judicial orders.

If the court finds that the respondent has inten-

tionally engaged in or is intentionaily engaging in an

unlawful employment practice charged in the com-

plaint, 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, reinstate-

ment or hiring of employees, with or without back

pay (payable by the employer, employment agency,

or labor organization, as the case may be, respon-

sible for the unlawful employment practice), or any

other equitable relief as the court deems appropriate.

Back pay liability shall not accrue from a date more

than two years prior to the filing of a charge with

the Commission. Interim earnings or amounts earn-

able with reasonable diligence by the person or per-

sons discriminated against shall operate to reduce

the back pay otherwise allowable. No order of the

court shall require the admission or reinstatement

of an individual as a member of a union, or the

hiring, reinstatement, or promotion of an individual

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

pay, if such individual was refused admission, sus-

pended, or expelled, or was refused employment or

advancement 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.

3. Section 706(j) of Title VII, 42 USC. § 2000e-

(5)(j) provides as follows:

Appeals

Any civil action brought under this section and

any proceedings brought under subsection (i) shall

be subject to appeal as provided in sections 1291

and 1292, Title 28.

STATEMENT OF THE CASE

This case was initially instituted in the Circuit Court

of Cook County, Illinois on May 22, 1985. Asserting

that Yellow Freight had wrongly refused to hire her

for a job as a dock worker, plaintiff brought a two-count

complaint alleging sex discrimination in violation only

of the Illinois Human Rights Act (Ill. Rev. Stat., Chap-

ter 68, | 1-101 et seq. (1983)). Because plaintiff had

not attempted to exhaust her administrative remedies,

Yellow Freight filed a motion to dismiss the Complaint

for lack of jurisdiction. Plaintiff then sought leave to

file an amended Complaint.

On August 9, 1985, the Circuit Court entered an

agreed order dismissing the Complaint with prejudice

and continuing plaintiff's contested motion for leave to

file an amended Complaint (A-40). On August 14,

1985, Yellow Freight removed the case to the United

States District Court pursuant to 28 U.S.C. § 1441(b)

and (c). On September 13, 1985, the District Court

granted plaintiff leave to file an amended Complaint,

and on September 20, 1985, plaintiff, for the first time,

filed a Complaint alleging violations of Title VII. Yel-

low Freight’s motion to dismiss the amended Complaint

for lack of jurisdiction was denied by the District Court.

The District Court held that State Courts have concur-

rent jurisdiction over Title VII claims (A-35 to A-39).

Plaintiff first applied to Yellow Freight on Octo-

ber 26, 1982, at a time when the company was not hiring

dock workers. The terminal manager informed plaintiff

that the company was not hiring but that she would

be the first person hired when the situation changed.

Yellow Freight did not begin hiring dock workers until

February 8, 1983. The company admitted liability to

plaintiff between February 8, 1983 and June 26, 1984,

the date she was actually hired.

Yellow Freight’s backpay liability was tried before

a magistrate. The magistrate found that plaintiff did

not seek a job with any other trucking company al-

though several trucking companies besides Yellow Freight

had facilities in the general area in which plaintiff was

interested in working. Each of these companies hired

dock workers during the relevant time period (A-28).

One of those companies, which hired several women as

dock workers, regularly advertised for dock workers in

the Sunday Chicago Sun-Times. Plaintiff claimed that

she read the want-ads in the Sun-Times, but did not

apply for any job she saw advertised (A-27).

Plaintiff obtained a part-time job as an inventory

checker in December, 1982 (A-27), before the first

date of Yellow Freight’s potential backpay liability. She

worked at this job less than 750 hours over the next

18 months. Plaintiff asked friends and neighbors about

other jobs, but she did not register with the state job

service. Plaintiff applied for a job with the Jewel food

store where she shopped but did not apply for a job

at the Dominicks food store in her neighborhood. During

this period plaintiff called Yellow Freight only to be

told that the company was not hiring at all, but was

laying off employees. Plaintiff knew this was false as

of March, 1983, but still took no action to look for a

comparable position (T-33). Her only explanation was

that she “was determined to get on at Yellow Freight.”

(T-27).

The magistrate concluded that “The amount of dili-

gence shown by [plaintiff] in seeking work was not great.”

(A-29). Stating that “the issue is close” (A-30), the magis-

trate relied upon the Seventh Circuit rule that working part-

time satisfies the mitigation requirement. The magistrate

concluded that Yellow Freight failed to carry its burden

of proof that plaintiff failed to exercise reasonable dili-

gence in securing “other employment” during the period

in question (A-30).

Agreeing that the facts present a close case (A-23),

the District Court adopted the magistrate’s report. It re-

jected Yellow Freight’s argument that plaintiff has an

obligation to seek substantially equivalent employment.

Instead, the Court held that “[t}he real question is whether

a plaintiff has demonstrated a continuing commitment to

be a member of the labor force.” (A-24).

On appeal, the Seventh Circuit affirmed the award of

backpay. Overruling its recent decision in Brown v. Reli-

able Sheet Metal Works, Inc., 852 F.2d 932 (7th Cir. 1988),

the Court of Appeals held that State courts have concur-

rent jurisdiction over Title VII claims. In a footnote, the

Court acknowledged that its decision created a conflict

with Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 1984).

On the issue of mitigation, the Seventh Circuit held

that Yellow Freight must prove that plaintiff was not rea-

sonably diligent “in seeking other employment.” (A-17).

The Court held that when a plaintiff is denied initial em-

ployment, he or she can satisfy the mitigation require-

ment by “demonstrating a continuing commitment to be

a member of the work force.’ (A-18). The Court then

applied its own rule that “part-time work in another em-

ployment field satisfies the mitigation requirement.” (A-

18) (citations omitted). The Seventh Circuit did not

address Yellow Freight’s contention that plaintiff was re-

quired at least initially to seek employment. substantially

equivalent to the job she was denied.

REASONS FOR GRANTING THE PETITION

A. There Is A Split Among The Circuits On

An Issue Of Widespread Importance As To

Whether Federal Courts Have Exclusive Juris-

diction Over Title VII Claims.

Before this case, every other Court of Appeals to

consider the question held that jurisdiction over Title VII

claims is lodged exclusively in the federal courts. Brad-

shaw v. General Motors Corp., 805 F.2d 110, 112 (3d Cir.

1986); Dyer v. Greif Bros., Inc., 755 F.2d 1391, 1393 (9th

Cir. 1985); Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th

Cir. 1984); Jones v. Intermountain Power Project, 794 F.2d

546, 553 (10th Cir. 1986); Long v. State of Florida, 805

F.2d 1542, 1546 (llth Cir. 1986), cert. denied, ........ US.

oul , 108 S.Ct. 78, 98 L.Ed.2d 41 (1988). The Seventh

Circuit is alone among the Courts of Appeals in its view

that State courts share concurrent jurisdiction over Title

VII claims.

This issue has extraordinary importance for the ad-

ministration of the Civil Rights Act. Until the conflict

among the circuits is resolved, there will be substantial

confusion regarding the forum in which discrimination

claims can be brought.’

2. According to the Administrative Office of the United

States Courts, excluding prisoner petitions, there were 68,015

private civil suits asserting federal question jurisdiction filed

in the federal district courts for the 12 months ending June 30,

1988. Of these, 7,169, or 10.5 percent, were civil rights employ-

ment cases. Annual Report of the Director of the Administra-

tive Office of the United States Courts 1988, Table C 2. While

some of these cases may have been filed under other civil rights

statutes than Title VII, the statistics suggest that a significant

portion of the workload of the federal district courts is made

up of Title VII actions.

There will also be widespread and unnecessary litiga-

tion over application of claim preclusion principles to Title

VII actions. In most jurisdictions, preclusion depends

upon whether the “court rendering the prior judgment .. .

had jurisdiction to decide the subsequent claim.” Nanavati

v. Burdette Tomlin Memorial Hospital, 857 F.2d 96 (3d

Cir. 1988), quoting Eichman v. Fotomat Corp., 759 F.2d

1434, 1437 (9th Cir. 1985) (Kennedy, J. concurring). Un-

til this court resolves whether state courts have jurisdic-

tion over Title VII claims, the lower courts will not have

the guidance they need in order to apply claim preclusion

principles properly.

Unless the Seventh Circuit’s decision is reversed, it

will disrupt the delicately balanced remedial scheme of

Title VII as envisioned by Congress and interpreted by

the Equal Employment Opportunity Commission.* When

Congress considered Title VII, both the supporters and op-

ponents understood that enforcement was to be in the

federal district courts. As Senator Humphrey explained

in presenting the Dirksen substitute which eventually be-

came § 706 of the Act:

3. Section 706(f)(4), 42 U.S.C. § 2000e-5(f)(4), requires

the chief judge of the district or the circuit “i tely to

Gesiqpate 0 Set ie sah Gaui © Sew Oe Se ae

case.” eo eS a 2 eee ee f)(5), 42

U.S.C. § 2000e-5(f)(5), “to assign the case for hearing at the

earliest practicable date and to cause the case to be in every way

expedited.” If the case is not scheduled for trial within 120

days after issue has been joined, the judge may appoint a mas-

ter “pursuant to Rule 53 of the Federal Rules of "of Civil Procedure.”

Id. Under § 706(f)(2), 42 U.S.C. § 2000e-5(f)(2), injunctive

relief must be issued in accordance with Rule 65. Section 706(j),

42 USC. § 2000e-5(j), requires that appeals be brought as

provided by 28 U.S.C. §§ 1291 and 1292. If the States have

concurrent jurisdiction over Title VII actions, one must either

ignore these provisions or assume that Congress intended to

regulate the procedures and priorities of the state courts and

administrative agencies.

[Ijf the Commission has not been able to secure

voluntary compliance within 30 days .. . the Commis-

sion must so notify the person aggrieved, who may

within 30 days bring his own suit in federal court for

enforcement of his rights.

110 Cong. Rec. 12722 (1964). Other passages of the con-

gressional debate, all of which were ignored by the

Seventh Circuit, make it clear that Congress “preferred

that the ultimate determination of discrimination rest

with the Federal judiciarv.” H.R. Rep. 914, 88th Cong.,

lst Sess. at 29 (1963) (separate views of Rep. McCulloch).

The Equal Employment Opportunity Commission is

also of the view that federal courts have exclusive juris-

diction over Title VII suits. See amicus briefs filed by the

EEOC in McNasby v. Crown Cork & Seal Co., app. pend-

ing, 3d Cir. No. 88-1893, and Pirella v. Village of North

Aurora, app. pending, 7th Cir. No. 89-1231.

By thrusting state courts into the business of adjudi-

cating Title VII claims, the Seventh Circuit has not only

violated the Congressional intent, but it has sown the seeds

for years of unnecessary procedural litigation. Because

of the importance of the issue to the administration of a

vital federal statute, this Court should grant a writ of

certiorari to resolve the conflict among the circuits as to

whether federal courts have exclusive jurisdiction over

Title VII claims.

B. The Decision In This Case Has Created A

Split Among The Circuits Over Whether A

Victim Of Employment Discrimination Must

At Least Initially Seek Comparable Employ-

ment, When It Is Available, To Be Eligible

For An Award Of Back Pay.

A Title VII claimant “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

claimant to use reasonable diligence in finding other suit-

able employment.” Ford Motor Co. v. EEOC, 458 US.

219, 231 (1982) (footnotes omitted). Five Courts of

Appeals have held that “A Title VII plaintiff is required

to mitigate damages by being reasonably diligent in

seeking employment substantially equivalent to the posi-

tion he or she lost.” Nord v. United States Steel Corp.,

758 F.2d 1462, 1470 (11th Cir. 1985). This line of cases

is consistent with this Court’s teaching that claimants

are not required to take other “lesser or dissimilar work’”’

while their claims are pending. Ford Motor Co., 458

U.S. at 231 n. 14.

The Seventh Circuit, however, has created a different

rule. It is one which imposes a much lighter obligation

4. Accord, Ford v. Nicks, 866 F.2d 865, 873 (6th Cir. 1989)

(Plaintiff “was under a duty only to look for and accept em-

ployment substantially equivalent to the job from which she was

discriminatorily fired.”); Carden v. Westinghouse Electric Corp.,

850 F.2d 996, 1005 (3d Cir. 1988) (“To cut off a back pay

award, defendants must prove that the plaintiff did not exer-

cise reasonable diligence in seeking employment substantially

equivalent to the employment he lost.”); Floca v. Homcare

Health Services, Inc., 845 F.2d 108, 111 (5th Cir. 1988) (“The

duty to mitigate requires only that the claimant accept sub-

stantially equivalent employment.”); and Sangster v. United Air

Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980), cert. denied, 451

U.S. 971 (1981).

on claimants. Under the test developed by the Seventh

Circuit, it is sufficient for a Title VII claimant to be

reasonably diligent merely by “seeking other employ-

ment” (A-17) without regard to whether that employ-

ment is substantially equivalent to the position that claim-

ant lost. The Seventh Circuit is alone in its position

that a plaintiff who is denied initial employment can

satisfy the mitigation requirement by doing no more

than “demonstrating a continuing commitment to be a

member of the work force.” (A-18). As a corollary

principle, the Seventh Circuit holds that “part-time work

in another employment field satisfies the mitigation re-

quirement” even when the plaintiff fails to pursue equiv-

alent full-time jobs which are available in the same

area (A-18).

As this Court noted in Ford Motor Co., baekpay is

not an automatic or mandatory remedy under § 706(g),

but it is one which may be invoked in the light of sound

discretion. The courts must exercise their equitable

power in this area “‘in light of the large objectives of

the Act’ and in doing so must be guided by ‘meaningful

standards’ enforced by ‘thorough appellate review.’” 458

U.S. at 226, quoting, Albemarle Paper Co. v. Moody, 422

U.S. 405, 416 (1975). In addition to preventing employ-

ment discrimination, one of the large objectives of Title

VII is to eliminate the “years of underemployment or

unemployment” that the victims of discrimination suffer

during the delays of litigation. Ford Motor Co., 458

U.S. at 229. Any rule applied to the mitigation of dam-

ages which does not encourage claimants to avoid both

underemployment and unemployment is not in keeping

with the statutory goal. By not requiring Title VII

claimants to seek substantially equivalent employment.

the rule applied by the Seventh Circuit subsidizes their

underemployment and thereby “disserves Title VII’s pri-

mary goal of getting the victims of employment discrim-

ination into the jobs they deserve as quickly as possible.”’

Id. at 241.

The Seventh Circuit’s approach to part-time employ-

ment puts it squarely in conflict with recent decisions

by both the Fifth and Sixth Circuits. In Ford v. Nicks,

866 F.2d 865 (6th Cir. 1989), the plaintiff had been ter-

minated in 1973 from her position as an assistant pro-

fessor of education in violation of Title VII. After 1974,

she no longer pursued academic employment opportu-

nities even though several positions were open at nearby

state universities. Instead, she obtained a real estate

broker’s license and helped her husband, on and off,

in his business. She also worked briefly for another

real estate company and the Tennessee Energy Authority.

These actions would clearly have met the Seventh Cir-

cuit’s test that a claimant “can satisfy the mitigation

requirement by demonstrating a continuing commitment

to be a member of the work force.” (A-18). Never-

theless, the Sixth Circuit denied plaintiff backpay, while

ordering reinstatement. Applying the rule requiring a

claimant to seek substantially equivalent employment,

the Sixth Circuit held that plaintiff's failure to apply

for available teaching positions “clearly constituted a

failure to exercise reasonable care and diligence required

of her... .” 866 F.2d at 875.

Also directly contrary to the Seventh Circuit’s ap-

proach is Johnson v. Chapel Hill Independent School

District, 853 F.2d 375 (5th Cir. 1988), in which the plain-

tiff had been terminated from her teaching position on

the basis of race in violation of 42 USC. §§ 1981 and

Gee ee Meee

1983. During the period from 1980 to 1986, she did not

apply for any teaching positions. The defendant pre-

sented evidence that from 1983 to 1986, there were teach-

ing positions available in the area for which plaintiff

was qualified. During these years, plaintiff was working

part-time in a grocery store that she and her husband

owned, although she did not draw a salary. Had the

Fifth Circuit followed the Seventh Circuit’s flat rule

regarding part-time employment, plaintiff would have

been found to have demonsirated a continuing commit-

ment to be a member of the work force and thus to

have adequately mitigated her damages. Instead, the

Fifth Circuit held that the plaintiff “did not exercise

reasonable diligence to minimize her damages... .” Id.

at 383.

It is not disputed in this case that after being denied

a job as a dock worker with Yellow Freight, plaintiff did

not seek employment with any other trucking company.

During the relevant time period, other trucking companies

in the area were actively hiring dock workers and paying

them the same wage rate under the same union contract

that covered dock workers at Yellow Freight. The Seventh

Circuit excused plaintiff from any obligation to apply for

these jobs based on three factors. First, the Court relied

upon its rule that part-time work is adequate to satisfy

the mitigation requirement. As noted above, the test

applied by the Seventh Circuit is not in keeping with this

Court’s teachings in Ford Motor Co. and is in conflict with

the rulings of five other Courts of Appeals.’ Second, the

5. It should be noted that this is not a case in which a

claimant initially sought to obtain substantially equivalent em-

ployment but subsequently “lowered her sights” when further

search of substantially equivalent work proved futile. Cf. South-

ern Silk Mills, Inc. v. NLRB, 242 F.2d 697, 700 (6th Cir.), cert.

denied, 355 U.S. 821 (1957).

Court noted that plaintiff continued to inquire about a

position at Yellow Freight. Indeed, the only reason plain-

tiff gave for not applying elsewhere for dock worker jobs

was because she “was determined to get on at Yellow

Freight.” (T-27). The Seventh Circuit’s reliance on

plainiiff’s continued interest in Yellow Freight puts it in

conflict with the Eleventh Circuit which has held that a

claimant does not satisfy the mitigation requirement by

continuing to express an interest in obtaining the job

previously denied. The plaintiff's duty to mitigate her

damages was “not fulfilled by a readiness to accept only

the job sought with the defendant. The plaintiff must

be available and willing to accept substantially equivalent

employment elsewhere.” Miller v. Marsh, 766 F.2d 490,

492 (llth Cir. 1985). Finally, the Seventh Circuit found

that plaintiff “continued to be assured by Mr. Casey that

she would be the first person hired when a position be- -

came available.” (A-18). This finding is clearly erro-

neous and did not receive the “thorough appellate review”

required by Ford Motor Co., 458 U.S. at 226.*

In every Title VII case, the parties must be concerned

over the standard to be applied in determining whether

the plaintiff has adequately mitigated his or her damages.

6. Rather than receiving encouraging responses that she

would soon be hired, plaintiff testified to exactly the opposite

(T-33):

The Court: I had two questions. When you would

call—I have forgotten his name.

The Witness: Mr. Casey.

The Court: Mr. Casey during all this time, what would

he say to you?

The Witness: He would say to me that they weren't

hiring at all; that he was laying off.

Plaintiff knew that this information was false as of March, 1983,

but still failed to seek comparable work elsewhere until June 26,

1984, when she was hired by Yellow Freight (T-33).

“The question has considerable practical significance be-

cause of the lengthy delays that often attend Title VII

litigation.” Ford Motor Co., 458 U.S. at 221 (footnote

omitted). In light of the importance of the issue and the

fact that the circuits are split, this is an appropriate case

for this Court to establish a “meaningful standard” for

the guidance of the lower courts. Id. at 226.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JEFFREY IVAN PASEK

(Counsel of Record)

ALAN M. LERNER

CoHEN, SHAPIRO, POLISHER,

SHIEKMAN AND COHEN

12 South 12th Street

Philadelphia, Pennsylvania 19107

(215) 922-1300

Steven J. TEPLINSKY

LEONARD R. KorkIn

FaceL, HAaBerR & MARAGOS

140 South Dearborn, Suite 1400

Chicago, Illinois 60603

(312) 346-7500

Attorneys for Petitioner

. Of Counsel:

Rona.p E. SANDHAUS

10990 Roe Avenue

Overland Park, Kansas 66207

(913) 345-3000

A-1

APPENDIX

APPENDIX 1

(Decided April 28, 1989)

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 88-1733 and 88-1797

CoLLEEN DONNELLY,

Plaintiff-Appellee,

Cross-Appellant,

Ye titow Freicut System, Inc.,

Defendant-Appellant,

Cross-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 85 C 7195—James B. Moran, Judge.

Arcuep Decemser 2, 1988—Decipep Aprit 28, 1989"

Before Bauer, Chief Judge, CuMMINGs, and EASTER-

BROOK, Circuit Judges.

1. Pursuant to Circuit Rule 4000, this opinion has been

circulated to all the active members of the court because it over-

rules Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932

(7th Cir. 1988), and creates a conflict with Valenzuela v. Kraft,

Inc., 739 F.2d 434 (9th Cir 1984). No judge in regular active

service has requested a hearing en banc.

A-2

Bauer, Chief Judge. This case is before us on appeal

from a judgment by the district court entered in favor

of plaintiff, Colleen Donnelly. Plaintiff brought suit

against her employer, defendant Yellow Freight System,

Inc., on charges of sex discrimination pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. For the following reasons, we affirm the district

court’s decision on all issues, except the court’s order

denying an award of prejudgment interest.

Donnelly applied for a dock-worker position at Yellow

Freight on October 26, 1982. Although Yellow Freight

was not hiring at the time, Neil Casey, the terminal man-

ager, told her that when Yellow Freight began hiring again,

Donnelly would be the next dock worker hired. About the

same time, Donnelly also applied for jobs at Jewel Food

Stores and Retail Inventory Service Co. (RIS). In De-

cember of 1982, RIS hired Donnelly on a part-time basis

and she worked there through June of 1984.

Despite securing a job at RIS, Donnelly called Casey

weekly to inquire about job openings at Yellow Freight.

Although Yellow Freight began hiring dockworkers again

in February of 1983, Casey not only continued to tell Don-

nelly that Yellow Freight was not hiring, but also falsely

reported that Yellow Freight was laying off dockworkers.

Eighteen months later, Donnelly was finally hired by Yel-

low Freight.

In March of 1985, Donnelly filed charges with the

Equal Employment Opportunity Commission (EEOC). In

her first charge she alleged that the defendant discrimi-

nated against her on the basis of sex by failing to offer

her employment as a dock worker. In her second charge

A-3

she alleged that the defendant discriminated against her

on the basis of sex subsequent to her hiring at Yellow

Freight. (This charge was later dismissed on summary

judgment and no appeal was taken.) On March 15, plain-

tiff received a Notice of Right to Sue Within 90 Days from

the EEOC.

On May 22, 1985, within the 90-day limitation period,

plaintiff filed a two-count complaint against the defendant

in the Circuit Court of Cook County, alleging sex dis-

crimination in violation of the Illinois Human Rights Act

(IHRA), Ill. Rev. Stat. ch. 68, {| 1-1-1 et seq. (1983). On

June 28, 1985, defendant filed a motion to dismiss plain-

tiff’s complaint for failure to exhaust state administrative

remedies as required by the IHRA. On July 17, Donnelly

sought leave to file an amended complaint, appending pro-

posed Counts III and IV. Counts III and IV realleged

the same facts as in Counts I and II of the original com-

plaint but were premised under Title VII. Although Don-

nelly had not yet filed the motion to amend her complaint,

Yellow Freight objected to the proposed motion. On Au-

gust 9, Donnelly actually filed her motion to amend the

complaint. On the same date, the circuit court entered

an agreed order dismissing her original complaint with

prejudice and continuing her contested motion for leave to

file an amended complaint. This order essentially resulted

in a lawsuit without a complaint. For a discussion of the

problems attending the agreed order, see n.10, infra.

On August 14, 1985, Yellow Freight filed a petition to

remove the case to the United States District Court. The

district court granted Donnelly’s motion to file an amended

complaint on September 13, and the complaint was filed

on September 20. Yellow Freight moved to dismiss the

complaint on the grounds that it was filed more than 90

A-4

days after the EEOC issued the right to sue letter. The.

court denied the defendant’s motion.

On November 3, 1987, the case was tried before a

United States magistrate pursuant to the consent of the

parties. See 28 U.S.C. § 636(c). Because Yellow Freight

admitted liability for sex discrimination, only the issues

of back pay and mitigation of damages were tried. The

magistrate concluded that Donnelly had exercised reason-

able diligence in her search for other employment and

awarded her damages equal to the amount she would have

earned had she been hired by Yellow Freight on February

8, 1983, less her wages earned at RIS. The magistrate

also found that plaintiff was entitled to salary increases

adopted at Yellow Freight during the eighteen-month

period in which she was not hired, and that she was en-

titled to pension fund contributions and prejudgment in-

terest. The district court adopted the magistrate’s recom-

mendations and findings, except that it did not award pre-

judgment interest to the plaintiff.

Yellow Freight then brought this appeal. First, Yel-

low Freight alleges that the 90-day limitations period

within which to filed a Title VII complaint expired before

Donnelly filed her federal claim. Second, Yellow Freight

alleges that the district court abused its discretion in find-

ing that Donnelly acted with reasonable diligence to miti-

gate her damages. On cross-appeal, Donnelly argues that

the district court abused its discretion by failing to award

her prejudgment interest. We reject both of Yellow

Freight’s arguments and we agree with Donnelly’s con-

tention that she is entitled to prejudgment interest.

A-5

Il.

Before reaching the merits of this case, we first must

decide whether Donnelly’s Title VII cause of action was

timely filed. In order to bring the action, Donnelly had

to file suit against Yellow Freight within 90 days of the

issuance of the EEOC’s Notice of Right to Sue. Although

Donnelly filed her state claim in state court within the

90-day window, she did not file her Title VII claim in

federal court within the requisite time period. Yellow

Freight’s first argument is that any filing in state court,

whether before or after the close of the 90-day window,

cannot toll the limitation period because Title VII juris-

diction is exclusively federal. Therefore, defendant con-

tinues, plaintiff did not effectively file her complaint until

she filed it in federal court on September 20, 1985, which

was more than six months after the EEOC issued the

Notice of Right to Sue. Second, defendant argues that

even if federal and state courts share jurisdiction over

Title VII claims, plaintiff's amended claim does not relate

back to her original claim because her original complaint

was brought under the IHRA.

Unless Congress includes in the statute an explicit

statement vesting jurisdiction exclusively in federal court,

state courts may presume that they share jurisdiction con-

currently with the federal courts over a federal cause of

action. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,

477-78 (1981). This is a presumption deeply imbedded in

the history of our federal system. See The Federalist No.

82 (A. Hamilton). Because federal courts are courts of

limited jurisdiction, see Sheldon v. Sill, 1 How. 441 (1850)

state courts must stand ready to vindicate federal rights,

subject to review by the Supreme Court, should Congress

A-4

decide not to confer jurisdiction upon the federal courts

to hear a particular federal claim. See Gulf Offshore, 453

U.S. at 478 n.4 (citing Martin v. Hunter’s Lessee, 1 Wheat

304, 346-48 (1816)). The presumption in favor of concur-

rent jurisdiction may be rebutted only by an “unmistak-

able implication (of exclusive jurisdiction) from legisla-

tive history,” id. at 478 (citing California v. Arizona, 440

U.S. 59, 66-68 (1979)), or by a “disabling incompatibility

between the federal claim and state-court adjudication.”

Id. at 477-478 (citing Charles Dowd Box Co. v. Courtney,

368 U.S. 502, 507-508 (1962); see also Claflin v. Houseman,

93 U.S. 130, 136 (1876) ).

Because Congress failed to address this issue explicitly,

Yellow Freight urges us to find that the presumption of

concurrent jurisdiction is not applicable to Title VII and

that the circumstances warrant a finding of exclusive fed-

eral jurisdiction. In so doing, Yellow Freight asks us to

adopt the Ninth Circuit’s conclusion in Valenzuela v.

Kraft, Inc., 739 F.2d 434 (9th Cir. 1984), and hold that

both the statutory language and the legislative history of

Title VII raise the unmistakable implication of exclusive

federal jurisdiction.* See also Bradshaw v. General Motors

Corp., 805 F.2d 110, 112 (3rd Cir. 1986) (Title VII juris-

diction is exclusively federal);* Dickinson v. Chrysler

Corp., 456 F. Supp. 43 (E.D. Mich. 1978) (same). But see

2. In reaching its conclusion, the Valenzuela court also

relied on dictum from the Supreme Court's opinion in Lehman

v. Nakshian, 453 U.S. 156, 164 n.12 (1981). However, the Leh-

man dictum concerned the allocation of jurisdiction in favor of

the federal district courts and to the exclusion of the Court of

Claims. As such, it does not lend support to the Ninth Circuit's

conclusion.

3. Although the Bradshaw court stated that Title VII juris-

diction was exclusively federal, it provided no reasoning to

support its conclusion. Therefore. we do not find this case to

be persuasive authority.

A-7

Bennum v. Board of Governors of Rutgers, 413 F. Supp.

1274 (D. N.J. 1976) (Title VII jurisdiction is concurrent) ;

Greene v. County School Bd., 524 F. Supp. 43 (E.D. Va.

1981) (same).*

We decline the invitation to join in the conclusion

of the Valenzuela court. The Valenzuela court found

Congress’ grant of jurisdiction to the federal district

courts, see 42 U.S.C. § 2000e-5(f)(3) (“[e]Jach United

States district court . . . shall have jurisdiction of actions

brought under this subchapter”), and the accompanying

procedural directives,’ to be a persuasive indication of

exclusive federal jurisdiction. However, “the mere grant

of jurisdiction to a federal court does not operate to

oust a state court from concurrent jurisdiction over the

cause of action.” Gulf Offshore, 453 U.S. at 479 (citing

United States v. Bank of New York & Trust, 296 USS.

463 (1936)). See also Charles Dowd, 368 U.S. at 506;

Galveston, H. & S.A.R. Co. v. Wallace, 223 U.S. 481 (1912).

Moreover, the legislative history of Title VII does not

persuade us that Congress intended jurisdiction over the

statute be exclusively federal. The Valenzuela and Dick-

inson courts found it significant that the history con-

4. This circuit has yet to squarely address whether juris-

diction over actions brought pursuant to Title VII is exclusively

federal. However, the reasoning of an earlier decision of this

circuit, Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932

(7th Cir. 1988), assumes that Title VII jurisdiction is exclu-

sively federal. We now overrule the Brown decision. For a

further discussion of Brown see infra.

5. See 42 U.S.C. §$20005-5(j) (“Any civil action brought

under this section . . . shall be subject to appeal as provided

in sections 1291 and 1292, Title 28”) (Sections 1291 and 1292

govern the jurisdiction of the United States Court of Appeals).

See also 42 U.S.C. §2000e-5(f)(2) (“any temporary restraining

order or other order granting preliminary or temporary relief

shall be issued in accordance with Rule 65 of the Federal Rules

of Civil Procedure’).

A-8

tained references to federal courts but not to state courts.*

Valenzuela, 739 F.2d at 436 (quoting Dickinson, 456 F.

Supp. at 46). But because Congress has the power to

grant or deny jurisdiction to the federal district courts,

the only significance that can be garnered from these

references is that Congress intended to grant jurisdiction

to the federal courts.

On the other hand, the logical consequences of other

passages from the legislative history lead to the conclu-

sion that jurisdiction over Title VII is shared between

the state and federal courts. Title VII was never in-

tended to be the exclusive remedy for employment dis-

crimination. Alexander v. Gardner-Denver Co., 415 U.S.

36, 48-49 (1974); see also 110 Cong. Rec. 7207 (1964);

Interpretive Memorandum of Senators Clark and Case,

110 Cong. Rec. 7214 (1964). In addition to recognizing

the force of other laws designed to combat employment

discrimination, Congress also wanted to encourage resort

to state employment discrimination laws. See 110 Cong.

Rec. 12707, 13081, 13087. An examination of the prin-

ciples of res judicata and collateral estoppel applicable

to Title VII actions reveals that this intent would be

frustrated if jurisdiction over Title VII was exclusively

federal. Title 28 U.S.C. § 1738 requires federal courts

to afford the same full faith and credit to state court

judgments that would apply in the state’s own courts.

Thus federal courts must give preclusive effect to a pre-

vious state court judgment under state employment dis-

6. The 1963 House Report states that “the district courts

of the United States... are given jurisdiction of actions brought

under this title.’ H.R. Rep. No. 914, 88th Cong., Ist Sess. 29

(1963), reprinted in 1964 U.S. Code Cong. & Ad. News 2355,

2405; accord H.R. Rep. No. 238, 92nd Cong., Ist Sess. 12 (1971);

reprinted in 1972 U.S. Code Cong. & Ad. News 2137, 2147.

A-9

crimination laws. Kremer v. Chemical Construction

Corp., 456 U.S. 461 (1982); Wakeen v. Hoffman House,

Inc., 724 F.2d 1238 (7th Cir. 1983); Unger v. Consol-

idated Foods Corp., 693 F.2d 703 (7th Cir. 1982), cert.

denied, 460 U.S. 1192 (1983). If Title VII jurisdiction

was exclusively federal, a plaintiff would have to bring

suit in federal court to preserve all available remedies

for employment discrimination. Such a situation effec-

tively precludes state court adjudication of state-created

rights, thereby discouraging the creation and develop-

ment of state employment discrimination laws, contrary

to Congressional intent.

Although there is little in the legislative history of

Title VII to rebut the presumption of concurrent juris-

diction, we must also examine whether there exists a

“disabling incompatibility” arising from state court ad-

judication of a Title VII claim. To resolve this ques-

tion, the Supreme Court has suggested an examination

of such factors as the desirability of uniform interpre-

tation of the statute, the expertise of federal judges in

federal law, and the assumed greater hospitality of fed-

eral courts to peculiarly federal claims. Gulf Offshore,

453 U.S. at 483-84. See also Redish & Muench, Adju-

dication of Federal Causes of Action in State Court, 75

Mich. L. Rev. 311, 329-35 (1976); Note, Exclusive Juris-

diction of Federal Courts in Private Civil Actions, 70

Harv. L. Rev. 509, 511-15 (1957). We find that none

of these factors compels a finding of exclusive federal

jurisdiction.

There is no reason to believe that concurrent juris-

diction will lead to the arbitrary development of Title

VII law. There already exists a great volume of Title

VII law developed by the Supreme Court and lower

A-10

federal courts and the states are bound by the Suprem-

acy Clause to follow federal law.’ Although it is true

that at this point in time federal judges may have de-

veloped greater expertise with respect to Title VII claims,

there is no reason to presume state courts are not com-

petent to adjudicate these issues. Such a notion over-

looks the obvious; most states have enacted employment

discrimination laws, which are routinely litigated in state

courts, and state court judges are accordingly quite fa-

miliar with discrimination issues.

In addition, we find no basis for the assumption that

state courts might not faithfully enforce Title VII. Given

that state courts exercise concurrent jurisdiction over

civil rights actions brought under 42 U.S.C. § 1983, Mar-

tinez v. California, 444 U.S. 277 n.7 (1980), it is hard

to imagine that state courts would not be hostile to

section 1983 actions, but would be hostile to Title VII

actions. Similar, although not identical, policy issues

underlie both statutes. Second, most states have enacted

employment discrimination laws. Whether enacted by

state government or federal government, the same policy

issues underlie employment discrimination laws. Thus

from a theoretical viewpoint, state courts are as ame-

nable to Title VII claims as federal courts. In addition,

any concern either party may have over the fairness of

the forum is easily remedied. A plaintiff can file the

7. Even when federal law is not clearly developed or pre-

empts state law, jurisdiction may be exercised concurrently.

For example, even though §301l(a) of the Labor Management

Relations Act of 1947, 29 U.S.C. §185, authorizes federal courts

to fashion a body of federal law for the enforcement of collec-

tive bargaining agreements, Textile Workers v. Lincoln Mills,

353 U.S. 448 (1957), state courts exercise jurisdiction over claims

brought under §301(a) concurrently with the federal courts. See

Charles Dowd, 368 U.S. 502.

A-ll

complaint in federal court and a defendant can remove

the complaint to federal court.*

Finally, we find support for our conclusion that the

state courts have concurrent jurisdiction with the federal

courts over Title VII actions from Congress’ decision to

vest state courts with concurrent jurisdiction over claims

brought under the Age Discrimination in Employment

Act of 1967 (“ADEA”), a statute predicated upon Title

VII in many ways. See 29 U.S.C. § 626(c)(1) (“[a]ny

person aggrieved may bring a civil action in any court

of competent jurisdiction for such legal or equitable re-

lief as will effectuate the purposes of this chapter . . .”).°

See also Lehman v. Nakshian, 453 U.S. 156, 164 n.12

(1981). Both statutes seek to eradicate the evil of em-

ployment discrimination based upon membership in an

identifiable group. Whereas Title VII is aimed at ending

discrimination based upon race, color, religion, sex or

national origin, the ADEA is directed toward ending dis-

crimination based upon age. The prohibitions of the

8. The opportunity to exercise removal jurisdiction also ex-

plains some Supreme Court dictum which seems to suggest that

Title VII jurisdiction is exclusively federal. See, e.g., Alexander,

415 U.S. at 47 (lists state and local agencies, and federal courts,

but not state courts as forums for enforcement); Kremer, 456

U.S. at 468 (federal courts are “entrusted with ultimate enforce-

ment responsibility” over Title VII actions).

9. Title VII, on the other hand, provides that the United

States district courts shall have jurisdiction over claims brought

under the Act. Because the enforcement provisions of the ADEA,

29 U.S.C. §626, incorporate by reference most of the enforce-

ment provisions of the Fair Labor Standards Act of 1938 (“the

FLSA”), 29 U.S.C. § 201 et seq., we do not find the different

jurisdictional language of Title VII and the ADEA significant.

Among other things, the FSLA provides that an aggrieved per-

son may bring an action in any court of competent jurisdiction.

29 U.S.C. § 216(b). Thus the different jurisdictional language

is not the conscious result of an attempt to differentiate between

jurisdiction over the ADEA and Title VII, but rather the result

of the specific enforcement provisions of the FLSA.

A-12

ADEA generally follow those of Title VII and courts

have relied on precedent under Title VII to interpret

comparable ADEA provisions. See, e.g., Hodgson v. First

Fed. Sav. & Loan Ass’n, 455 F.2d 818, 820 (5th Cir. 1972)

(“{w]ith a few minor exceptions the prohibitions of this

enactment are in terms identical to those of Title VII

... except that ‘age’ has been substituted for ‘race, color,

religion, sex or national origin’”). Commentators de-

scribe the ADEA as a hybrid of Title VII and the Fair

Labor Standards Act of 1938 (“FLSA”): the substantive

provisions are drawn from Title VII, but the remedies

are those of the FLSA. See B. Schlei & P. Grossman,

Employment Discrimination Law 485 (1983). To prove

an ADEA claim, plaintiffs generally proceed under a

disparate treatment theory (although in rare circum-

stances a disparate impact claim may be brought). The

order and allocation of evidentiary burdens, and the stan-

dards of proof set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), a Title VII disparate treat-

ment case, apply to claims brought under the ADEA.

See Schiei & Grossman at 497-504. Given the extensive

similarities between the two statutes, and the fact that

state courts have jurisdiction over private-sector ADEA

claims, it seems incongruous to assume that state courts

are incompetent to adjudicate Title VII claims.

As an alternative to its attempt to overcome the

presumption of concurrent jurisdiction, Yellow Freight

contends Illinois courts do not have jurisdiction to hear

federal Title VII claims as a matter of Illinois state law.

For this unique proposition, Yellow Freight relies on the

Illinois Supreme Court’s decision in Mein v. Masonite

Corp., 109 Ill. 2d 1. 485 NE. 2d 312 (1985). In Mein,

the plaintiff alleged that he was wrongfully discharged

A-13

from his job in violation of Illinois public policy. Be-

cause the plaintiff failed to allege a violation of the

Illinois Human Rights Act (the IHRA), the Illinois Su-

preme Court dismissed his complaint for failure to state

a cause of action. In reaching its conclusion, the court

stated that the Illinois “courts have no jurisdiction to

hear independent actions for civil rights violations.”

Mein, 485 N.E. 2d at 315. Drawing upon this dictum,

Yellow Freight argues that, at least in Illinois, state courts

do not provide a forum for Title VII litigation and there-

fore jurisdiction lies exclusively with the federal courts.

We must reject this argument. Even if the Mein

court did, in fact, intend to exclude Title VII claims

from the Illinois courts,"’ neither the Illinois courts nor

legislature have the power to close state court doors to

federal causes of action. When presented with a federal

claim over which concurrent jurisdiction exists, state

courts are under a “duty to exercise (jurisdiction)” over

the federal claim. Mondou v. New York, N.H. & H.R.R.,

223 US. 1, 58 (1912) (state courts required to hear

actions arising under the Federal Employers Liability

Act); Testa v. Katt, 330 U.S. 386 (1947) (state courts

must hear actions arising under the Emergency Price

Control Act). Cf. Palmore v. United States, 411 US.

389, 402 (1973) (“this court unanimously held (in Testa)

10. Yellow Freight reads the Mein decision too broadly.

At issue in Mein was whether the plaintiff could bring a state

action, independent of the IHRA, for human rights violations.

The court responded “(i)t is clear that the legislatire intended

the (IHRA), with its comprehensive scheme of remedies and

administrative procedures, to be the exclusive source for redress

of alleged human rights violations .. . the legislature intended

.. . to avoid direct access to the courts for redress of civil rights

violations.” Mein, 485 N.E.2d at 315. The only issues before

the Mein court were the scope and intent of the IHRA:; the court

did not purport to address issues of federal law.

A-14

that Congress could constitutionally require state courts

to hear and decide Emergency Price Control Act cases

involving the enforcement of federal penal laws”). But

see Brown v. Gerdes, 321 U.S. 178, 188 (1944) (only law-

making power of the State of New York has power to

confer jurisdiction upon the New York state courts; Con-

gress does not have this power). See generally, Redish

& Muench, supra. Once Congress has vested jurisdiction

over a federal claim in the state courts, the state courts,

including the courts of Illinois, are under a constitutional

obligation to exercise jurisdiction.

We must address one final point. Donnelly did not

exhaust her state administrative remedies before filing

her state law claim in state court. In Brown v. Reliable

Sheet Metal Works, Inc., 852 F.2d 932, 934-35 (7th Cir.

1988), this court held that a state court filing did not

toll the Title VII 90-day filing period because the plain-

tiff did not exhaust her state administrative remedies.

On the basis of Felder v. Casey, ....... , 108

S. Ct. 2303 (1988), we now overrule Brown. In Felder,

the Supreme Court held that a plaintiff who filed a

section 1983 action in state court did not have to comply

with the state’s notice of claim statute because the state

statute conflicted both in purpose and effect with the

remedial objectives of section 1983 and because enforce-

ment of the statute would produce different outcomes

based solely upon whether the claim was asserted in

state or federal court. Similar concerns are applicable

here. This is not to say that a state could not impose

an exhaustion requirement for claims based entirely on

state law but here, of course, the foundation was Title

VII and plaintiff complied with her requirement under

that statute. Thus Donnelly’s failure to exhaust her state

A-15

administrative remedies does not defeat the tolling effect

of her state court filing upon Title VII's 90-day window.

Because we find that jurisdiction over Title VII

claims is vested in both state and federal court, we re-

ject Yellow Freight’s argument that the state court filing

did not toll the 90-day statute of limitations.

Yellow Freight next argues that even if there exists

concurrent jurisdiction, plaintiff's complaint was not

timely filed because her amended complaint, filed in

federal court and alleging Title VII violations, does not

relate back to her original complaint, filed in state court

and alleging state law violations. Defendant claims that

it did not have notice of the Title VII claims because

the original complaint only alleged violations of the

IHRA.

Yellow Freight misconstrues the standard by which

an amended complaint is deemed to relate back to the

date of the original complaint for the purposes of tolling

the statute of limitations. Under Federal Rule of Civil

Procedure 15(c), an amended complaint relates back to

the date of the original pleading “whenever the claim

. . asserted in the amended pleading arose out of the

conduct, transaction or occurrence set forth .. . in the

original pleading.” Contrary to defendant's assertion,

the same substantive legal theory need not be alleged

in both complaints; rather the claims need only arise

out of the same “conduct, transaction or occurrence.”

Because the Title VII and IHRA claims are based upon

identical facts and circumstances, plaintiff's amended

complaint clearly relates back to the date of the orig-

inal complaint.

A-16

The only problem with the above analysis is that the

original complaint was dismissed before the amended

complaint was filed. If we adhere to the terms of the

agreed order entered by the state circuit court, there is no

original complaint to which the amended complaint could

relate back. However, the agreed order, drafted by the

parties, utterly makes no sense.'' Because of this and be-

cause Yellow Freight will suffer no prejudice, we refuse

to adhere to the literal consequences of the order. Any

claim of prejudice by Yellow Freight is disingenuous.

Yellow Freight received notice that an employment dis-

crimination claim was pending against it when plaintiff

filed her state court claim in state court. See Sessions

v. Rush State Hospital, 648 F.2d 1066, 1070 (5th Cir. 1981)

(“[s]o long as the Title VII claim is based on the discrimi-

nation originally charged in the complaint, allowing it to

relate back .. . works no hardship on the defendant for

nature of the suit”). Second, in view of the fact that the

order continued the plaintiff's contested motion, Yellow

site,

;

SS ee

A-17

the agreed order was entered.” For these reasons, we

find the plaintiff's amended complaint relates back to the

filing date of the original complaint and thus was timely

filed.

ITI.

We may now address the substantive issues raised on

this appeal. As already mentioned, Yellow Freight ad-

mitted liability and only the issue of damages was tried

before the magistrate. Yellow Freight contends that the

damage award should be reversed because Donnelly failed

to exercise reasonable diligence in mitigating her damages.

Title VII provides that “[ijnterim earnings or amounts

earnable with reasonable diligence by the person or per-

sons discriminated against shall operate to reduce the back

pay otherwise allowable.” 42 U.S. § 2000e-5(g). The dis-

trict court adopted the magistrate’s finding that Donnelly

did, in fact, exercise reasonable diligence. This court is

bound by the district court’s award of damages unless that

determination is clearly erroneous. Albemarle Paper Co.

v. Moody, 422 U.S. 405 (1975); United States v. City of

Chicago, 853 F.2d 572, 578 (7th Cir. 1988).

Because a plaintiff's failure to mitigate damages is an

affirmative defense, the employer bears the burden of

proof on this issue. Wheeler v. Snyder Buick, Inc., 794

F.2d 1228, 1234 (7th Cir. 1986). In order to succeed on its

claim, Yellow Freight must prove that Donnelly was not

reasonably diligent in seeking other employment, and that

with the exercise of reasonable diligence there was a

12. This removal was defective because at the time of

removal there was nothing to remove. Although removal was

improper, this court is not deprived of jurisdiction because the

district court actually had jurisdiction over the amended com-

laint — Title VII violations. See Grubbs v. General

Electric. 405 U.S. 699 (1972).

A-18

reasonable chance the employee might have found com-

parable employment, the earnings of which would offset

any damages awarded. Id. Yellow Freight contends that

Donnelly’s part-time employment with RIS does not dem-

onstrate reasonable diligence. We disagree.

When a plaintiff is denied initial employment, he or

she can satisfy the mitigation requirement by demonstrat-

ing a continuing commitment to be a member of the work

force. This circuit has held previously that part-time work

in another employment field satisfies the mitigation re-

quirement. See, e.g., Wheeler, 794 F.2d 1228, Orzel v.

City of Wauwatosa, 697 F.2d 743 (7th Cir. 1983), cert.

denied, 464 U.S. 992 (1983); Sprogis v. United Airlines,

Inc., 517 F.2d 387 (7th Cir. 1975). Not only did Donnelly

accept a part-time job with RIS, she continued to inquire

about a position at Yellow Freight and continued to be

reassured by Mr. Casey that she would be the first person

hired when a position became available. On the basis of

these facts, the district court’s award of damages was not

clearly erroneous and so stands.

The last issue left to decide is whether Donnelly is

entitled to prejudgment interest on her damage award.

The decision to grant or deny an award of prejudgment

interest lies within the discretion of the district court.

Taylor v. Philips Industries, Inc., 593 F.2d 783, 787 (7th

Cir. 1979). In this case, the district court denied the mag-

istrate’s award of prejudgment interest because the issue

of plaintiff's diligence was “close.” Whether or not an

award of interest should be granted turns upon whether

the amount of damages is easily ascertainable, not whether

the issue of mitigation was “close.” See, e.g., Domingo v.

New England Fish Co., 727 F.2d 1429, 1446, modified, 742

F.2d 520 (9th Cir. 1984); Behlar v. Smith, 719 F.2d 950,

A-19

954 (8th Cir. 1983), cert. denied sub nom. Univ. of Arkan-

sas Bd. of Trustees v. Greer, 466 U.S. 958 (1984); EEOC

v. Wooster Brush Co., 727 F.2d 566, 578 (6th Cir.), cert.

denied, 467 U.S. 1241 (1984). Refusal to award interest

based upon the reasoning articulated by the district court

is an abuse of discretion. See Hanna v. American Motors

Corp., 724 F.2d 1300, 1311 (7th Cir. 1984) (district court's

refusal to award prejudgment interest because liability

question was “close” was an abuse of discretion). Because

Colleen Donnelly’s damages were readily ascertainable,

the district court should have awarded her prejudgment

interest on her damage award.

The decision of the district court is affirmed in all re-

spects except that the matter is returned to the district

court with the direction to enter an order granting Don-

nelly appropriate prejudgment interest.

Affirmed in part, remanded for action consistent with

this opinion.

FFE S OSS HSER Ee HOE HOR OR ORR OTe OOS eee eee eeneees

ee ee

Clerk of the United States Court of

Appeals for the Seventh Circuit

A-20

APPENDIX 2

(Dated July 17, 1989)

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

July 17, 1989.

Before

Hon. WILLIAM J. BAUER, Chief Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

No. 88-1733

88-1797

COLLEEN DONNELLY,

Plaintiff-Appellee,

Cross- Appellant,

vs.

YELLOW FREIGHT SYSTEM, INC.

Defendant-Appellant,

Cross- Appellee.

Appeal From the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 85 C 7195, James B. Moran, Judge.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-titled

cause by the defendant-appellant, cross-appellee, no judge

A-21

in regular active service has requested a vote on the sug-

gestion for rehearing, and all of the judges on the original

panel have voted to deny rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby DENIED.

A-22

APPENDIX 3

(Dated March 17, 1988)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CASE NUMBER: 85 C 7195

COLLEEN DONNELLY

YELLOW FREIGHT SYSTEMS, INC.

JUDGMENT IN A CIVIL CASE

[] Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

{[X] Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

That we award basic backpay in the amount of $27,-

656.61, retroactive seniority from February 8, 1983, $4,800.00

in resulting additional wages, pension contributions of

$3,976.00 (plus any penalties or interes required by the

Funds), attorney’s fees of $21,876.00 and $718.72 in costs.

(See Memorandum and Order dated 3-17-88)

H. Stuart Cunningham

Clerk

/s/ Willie A. Haynes

Willie A. Haynes

(By) Deputy Clerk

Date March 17, 1988

A-23

APPENDIX 4

(Dated March 17, 1988)

IN THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 85 C 7195

e« COLLEEN DONNELLY,

Plaintiff,

vs.

YELLOW FREIGHT SYSTEMS, INC.,

Defendant.

MEMORANDUM AND ORDER

Magistrate Bucklo, in this action where sex discrimi-

nation was conceded, awarded backpay of $27,656.61, pre-

judgment interest and other relief, together with fees and

costs. Defendant objects to the award, contending that

it is clearly erroneous to find that plaintiff exercised rea-

sonable diligence in seeking other employment. The mag-

istrate thought it was a close case. This court concurs,

but we do not believe that the finding is clearly erroneous

or that the award of backpay is an abuse of discretion.

Central to defendant’s objections is the view that a

plaintiff has an obligation to seek substantially equivalent

employment, and that is not quite so. A plaintiff does

not have an obligation to seek demeaning, distasteful or

inferior employment, but she cannot sit idly by if sub-

stantially equivalent employment is readily available,

A-24

Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th

Cir. 1980). That does not mean, however, that a plaintiff

necessarily has failed to mitigate damages because she

chooses to set her sights somewhat lower and seeks em-

ployment not as remunerative as the position from which

she was excluded. The real question is whether a plain-

tiff has demonstrated a continuing commitment to be a

member of the labor force. It is unlikely that defendant

would have objected to the award if plaintiff had obtained

full-time employment as an inventory-taker and was suing

only for the wage differential. That alternate employ-

ment is mitigation, and a discriminatory employer cannot

use the concept that a plaintiff need not seek a iesser job

to penalize one who did.

Defendant’s real objection is that plaintiff's efforts

to obtain a dockworker position at some other company

were modest at best, even though such positions were

available, and she did not obtain full-time alternate em-

ployment. Plaintiff occasionally checked want ads and

occasionally inquired of friends. There were other com-

panies in the locality which employed dockworkers, but

she did not directly approach them and she did not use

available agency resources.

But those were not the extent of plaintiff's efforts.

She called defendant often and, the record indicates, re-

ceived periodic assurances that she would be hired. De-

fendant gave her reason to believe that employment with

that company was just over the horizon and in the mean-

time she took a part-time job. Each inquiry demonstrated

a commitment to the labor force, each rejection (when

defendant was in fact employing) was a separate dis-

crimination, and the encouraging responses provided some

justification for not going elsewhere. A plaintiff cannot

- —o eee e a

A-25

insist upon a specific position at a specific company. That

means that a plaintiff cannot once be rejected, file a charge

and sit at home until her charge is resolved. Such, how-

ever, were not the circumstances of this case.

We do, however, agree with the defendant in one

respect. In one short paragraph the magistrate noted that

plaintiff sought prejudgment interest anc that such an

award is discretionary, and then, without discussion,

awarded interest. Once having concluded that plaintiff's

diligence “was not great” and that the issue was “close,”

the magistrate, we believe, should not have awarded pre-

judgment interest. We otherwise overrule the objections

and award basic backpay in the amount of $27,656.61,

retroactive seniority from February 8, 1983, $4,800.00

in resulting additional wages, pension contributions of

$3,976.00 (plus any penalties or interest required by the

Fund), attorney’s fees of $21,876.00 and $718.72 in costs.

/s/ James B. Moran

James B. Moran

Judge, United States Dis-

trict Court

March 17, 1988.

A-26

APPENDIX 5

(Dated December 10, 1987)

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF ILLINOIS

EASTERN DIVISION

No. 85 C 7195

COLLEEN DONNELLY,

Plaintiff,

YELLOW FREIGHT SYSTEMS, INC.,

Defendant.

REPORT AND RECOMMENDATION OF

MAGISTRATE ELAINE E. BUCKLO

This Title VII case was referred to me for trial pur-

suant to 42 U.S.C. §2000e-5(f)5 amd the consent of the

parties. Prior to trial, defendant Yellow Freight Systems,

Inc. (“Yellow Freight”) conceded liability. The case

was tried on the issues of back pay, retroactive seniority

and other benefits on November 3, 1987.

I. Findings of Fact

Federal jurisdiction is based on 42 U.S.C. §2000(e)-

5(q).

Plaintiff Colleen Donnelly (“Donnelly”) moved to

Chicago Ridge, Illinois in June, 1982. She was married

and had two children under five years of age. Her home

is four blocks from Yellow Freight’s Chicago Ridge facility.

A-27

Donnelly wanted to work after her move. A neighbor

told her that Yellow Freight was hiring dock workers and

that it was a good company. Donnelly’s father was a truck

driver and she is a large woman, capable of loading and

unloading heavy materials. She contacted Yellow Freight,

filled out an application dated October 26, 1982 and had

an interview with the terminal manager, Neil Casey. He

told her the company was not hiring but that she would

be the first person hired when the situation changed. In

fact, beginning in February 8, 1983, Casey hired numerous

persons, all male. Not until Donnelly filed a complaint

with the EEOC did Casey hire her, on June 26, 1984.

During the period Donnelly was waiting to be hired

by Yellow Freight she called Casey often. Each time he

told her that Yellow Freight was not yet hiring, that the

company was laying off workers, but that she should

keep calling.

Donnelly also read the Sunday Chicago Sun-Times

want-ads but did not apply for jobs she saw advertised.

She did apply for a job with the Jewel food store where

she shopped. She also applied for and obtained a job

with a company called Retail Grocery Inventory Service

(“RGIS”) in December, 1982. From that time until she

went to work for Yellow Freight, she worked part-time

at RGIS, working as many hours as she could as an in-

ventory checker. Her employer, Dave Picard, testified

that she was a good worker and worked as many hours

as were available. Time records showed she worked 216

hours in the first quarter of 1983, 52.4 hours in the sec-

ond quarter, 49.7 hours in the third quarter, 52.2 hours

in the fourth quarter of 1983, 230.6 hours in the first

quarter of 1984 and 141.4 hours in the second quarter

of 1984.

A-28

y asked friends and neighbors about other

did not, however, apply for a job at the

Dominicks food store in her neighborhood. She also did

job

If Donnelly had been hired on February 8, 1983, her

27, 1984, would have been $27,656.61. In

Il. Conclusions of Law

Donnelly is entitled to retroactive seniority. But for

Yellow Freight’s sex discrimination, her hire date would

have been February 8, 1983. Therefore, that is the date

on which her seniority should be based.

For the same reason, Donnelly is entitled to a judg-

ment requiring Yellow Freight to make pension contri-

butions on her behalf in the amount of $3,976.00 (plus

any penalties or interest required by the Fund).

Since Donnelly did not actually work at Yellow

Freight from February, 1983 through June, 1984, and has

A-29

presented no evidence to show what she paid for health

insurance or in medical expenses that would have been

covered by Yellow Freight’s health and welfare benefits

during that time, she is not entitled to an award of ex-

penses for health or welfare benefits.

The major issue in this case is whether Donnelly

took reasonable steps to mitigate her damages which

would entitle her to a back pay award for the time

during which Yellow Freight engaged in sex discrimina-

tion against her. Title VII states that “{ijnterim earn-

ings or amounts earnable with reasonable diligence by

the person . . . discriminated against shall operate to

reduce the back pay otherwise available.” 42 U.S.C.

$2000(e)-5(q). In the Seventh Circuit, once a plaintiff

establishes the amount of damages, the burden shifts to

the employer to prove that the plaintiff failed to mit-

igate those damages. Hanna v. American Motors Corp.,

724 F.2d 1300 (7th Cir. 1984). The employer must show

both that “the plaintiff failed to exercise reasonable

diligence to mitigate his damages” and that “there was

a reasonable likelihood that the plaintiff might have

found comparable work by exercising reasonable dili-

gence.” Id. at 1307. (Emphasis omitted.)

The amount of diligence shown by Donnelly in seek-

ing work was not great. She did, however, ask friends

and neighbors about employment, inquired on numerous

occasions at her local grocery store for employment and

worked part-time for the entire period covered by the

discrimination. A number of cases have held that this

is enough. E.g., Wheeler v. Snyder Buick, Inc., 794 F.2d

1228 (7th Cir. 1985) (temporary employment during four

year period enough particularly where plaintiff's former

job, as a car salesman, was in a kind of work in which

A-30

few women were employed); Orzel v. City of Wauwatosa

Fire Department, 697 F.2d 743 (7th Cir. 1983) (part-time

job as temporary census taker enough); Sprogis v. United

Air Lines, Inc., 517 F.2d 387 (7th Cir. 1975) (two month

long temporary position and application for another posi-

tion during two year period sufficient). In this case,

while the issue is close, I conclude that Yellow Freight

has not carried its burden of proof that Donnelly failed

to exercise reasonable diligence in securing other em-

ployment during the period in question.

Even if Yellow Freight were to prevail on the issue

of reasonable diligence, it has not met its burden of

proof on the second prong of the Hanna test in that it

has failed to show a reasonable likelihood that Donnelly

might have found comparable work through reasonable

diligence. Yellow Freight presented no evidence to show

that any work available to Donnelly except that of dock

worker at another trucking facility would have paid

comparable wages or carried comparable status. While

it did show that other trucking companies were hiring

dock workers during the relevant period, only one of

these companies actually employed women in the posi-

tion (a total of five women, the first of which was hired

in 1982). One other company offered a position to one

woman. As Yellow Freight noted in closing argument,

these companies hired 90 dock workers during this time.

Considering the few women hired by any of these com-

panies for this position, I conclude that, as the Seventh

Circuit found in Wheeler, defendant has failed to show

a reasonable likelihood that Donnelly would have found

comparable work if she had applied. Donnelly is there-

fore entitled to back. pay from February 8, 1983 to the

date she was hired in the amount of $27,656.61.

A-31

Donnelly also seeks prejudgment interest. Prejudg-

ment interest on back pay awards may be awarded in

the discretion of the court. In this case, I agree that

it should be awarded.'

Finally, Donnelly asks for attorneys fees in the base

amount of $24,889.72, plus a multiplier of 15 for an

aggregate award of $36,256.50 and $718.72 in costs. Yel-

low Freight disputes the amount of the award, arguing

that actions by Donnelly extended the amount of work

required and that unnecessary duplicative time is sought

to be charged to defendant. I have examined the file

and the hourly statements and agree that certain reduc-

tions are appropriate. First 18 hours between two attor-

neys spent on the pretrial order is excessive. While

in some cases pretrial orders may require extensive time,

that amount of time should not have been required here.

Accordingly, the time is reduced to ten hours, one half

of the reduction to be taken off each of the attorney's

time.

I also agree that time spent in state court unsuc-

cessfully litigating a claim under the [Illinois Human

Rights Act should be excluded. Accordingly, four hours

of attorney Salzetta’s time (5/14/85 and 5/15/85) and

one half hour of Henely’s time (on 5/16/85) should be

exclucied.

Yellow Freight prevailed on one part of its motion

for summary judgment. Salzetta’s time is therefore re-

duced by 6.5 hours and Henely’s time is reduced by 2.5

hours (rounding off to the half hour).

1. Donnelly calculated the amount she claimed she would

be entitled to based not only in back pay but pension fund

and health and welfare contributions. Donnelly may only ob-

tain interest on the back pay award.

A-32

Henely represents that his hourly rate is $150.00 and

Salzetta’s rate is $90.00. Yellow Freight has not shown

titled to attorneys’ fees in the amount of $21,876.00 plus

$718.72 in costs (the amount of costs is not disputed).

I do conclude that a multiplier is not appropriate

in this case. Donnelly was employed by Yellow Freight

months before her attorneys began representing her.

;

pervision of the courts. Wheatley v. Ford, 679 F.2d

1041 (2d Cir. 1982); Krause v. Rhodes, 640 F.2d 214, 219

(6th Cir. 1981). The court in Wheatley held that pay-

ment of a court award of attorney's fees satisfies the

attorney's claim for services under the contingent fee

contract. Wheatley ». Ford. supra, 679 F.2d at 1037.

In this case the fee award that I have recommended

A-33

exceeds forty percent of Donnelly’s recovery. I conclude

that payment of any attorney fees by Donnelly under

the contingent fee agreement in addition to the amounts

to be paid by Yellow Freight would violate DR2-106

United States Magistrate

2. DR-2-106 Fees for Legal Services

(A) A lawyer shall not enter into agreemen charge

or collect an illegal or clearly excessive fee _

(2) The likelihood, if t to the client, t the

eubieement will —- FF.

(4) The amount involved and the results obtained.

(5) The time limitations

— imposed by the client or by

3. Donnelly’s attorneys cite cases saying that a contingen t

fee agreement does not provide a ceiling on a court award of

fees That is entirely different from saying that an attorney

can have a court award (in whatever amount is deemed appro-

priate) and a 40 percent bite out of a damage back

award in addition thereto - ~

A-34

Dated: December 10, 1987

Written objections to any finding of fact, conclusion of

law, or the recommendation for disposition of this matter

must be filed with the Honorable James B. Moran within

ten (10) days after service of this Report and Recom-

mendation. See Fed.R.CivP. 72(b). Failure to object

will constitute a waiver of objections on appeal.

Copies have been mailed to:

JOHN J. HENELY

John J. Henely, Ltd.

75 East Wacker Drive

enn

A-35

APPENDIX 6

(Dated November 22, 1985)

IN THE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT

OF ILLINOIS

EASTERN DIVISION

No. 85 C 7195

Before the Honorable George N. Leighton,

U. S. District Judge

COLLEEN DONNELLY,

Plaintiff,

YELLOW FREIGHT SYSTEMS, INC..

Defendant.

MEMORANDUM

On March 15, 1985, plaintiff received from the Equal

Employment Opportunity Commission (“EEOC”), a notice

of a right to sue for prior charges of sex discrimination

she had filed with the EEOC against defendant. Pursuant

to Section 706(f)(1) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-5(f) (1), she was notified that

she must, within 90 days after the issuance of the right-

to-sue letter, bring a civil action against the defendant;

“otherwise your right to sue is lost.” On May 22, 1985,

within the 90-day limit, plaintiff filed a two-count com-

plaint in the Circuit Court of Cook County. Both counts

of the complaint alleged discrimination in employment by

A-36

defendant on the basis of sex and were premised on vio-

lations of the Illinois Human Rights Act. Il].Rev.Stat. ch.

68, par. 1-101 et seq. (1983).

On June 28, 1985, defendant filed a motion to dismiss.

Plaintiff filed a motion to amend the complaint on Au-

gust 9, 1985. The proposed amended pleading, although

based on the same facts and circumstances as the original

complaint, alleged violations of Title VII rather than the

Illinois Human Rights Act. On that day, the circuit court

entered an agreed order granting defendant's motion to

dismiss the original complaint and setting a briefing sched-

ule on plaintiff's motion to file the amended complaint.

On August 14, 1985, defendant removed the action to

federal court. This court granted plaintiff leave to file

the amended complaint on September 13, 1985; plaintiff

did so on September 20, 1985. The amended complaint

consists of two counts alleging violations of Title VII.

Defendant now moves to dismiss the amended complaint

as untimely.

Defendant asserts two separate arguments in support

of its conclusion that plaintiff's Title VII claims are un-

timely, that is, not brought within the 90-day limitation

period. First that any filing of a complaint in the circuit

court, whether before or after the 90-day limit, was in-

effective in that federal courts have exclusive jurisdiction

over Title VII actions. Therefore, defendant concludes.

the only effective filing of plaintiff's Title VII claims was

on September 20, 1985, when plaintiff filed her amended

complaint in this court; some six months after the right-

to-sue letter was issued.

Second, defendant argues, even if the circuit court

had jurisdiction over the Title VII claims, since the first

complaint was based on the Illinois Human Rights Act

ee ee ae

A-37

and not Title VII, it did not toll the 90-day limitation

period in that § 706(f)(1) contemplates the filing of a

Title VII claim, not one based on a state statute. Defen-

dant points out that the first time plaintiff attempted to

amend her claim to a Title VII action in the state court

was on August 9, 1985; a date well beyond the 90-day

limit. Defendant therefore concludes that the claim is

untimely.

As to the jurisdictional argument, the general rule is

that unless Congress has made jurisdiction exclusive to

the federal courts, state courts have concurrent jurisdic-

tion and may entertain actions based entirely on federal

law. Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S. 473,

477-78 (1981). In this regard, the court begins with the

presumption that state courts have concurrent jurisdiction.

That presumption can be rebutted only by “an explicit

statutory directive, by unmistakable implication from

legislative history, or by a clear incompatibility between

state-court jurisdiction and federal interests.” Id. at 478.

Nowhere in Title VII, neither in language of § 706

(f)(1), which gives rise to causes of action nor in § 706

(f) (3), which invests this court with jurisdiction, is there

an explicit directive from Congress reserving jurisdiction

exclusively to the federal courts. Bennum v. Board of

Governors of Rutgers, 413 F. Supp. 1274, 1279 (D.N.Y.

1976); Greene v. County School Board of Henrico County,

Virgina, 542 F. Supp. 43, 45 (E.D. Va. 1981).

The legislative history is likewise without clear indica-

tion of Congress’ intent to make Title VII jurisdiction

exclusive. Bennum, 413 F. Supp. at 1279; Greene, 525

F. Supp. at 45; Patzer v. Board of Regents of University

of Wisconsin, 577 F. Supp. 1553, 1559 (N.D. Wis. 1984),

rev'd on other grounds, 763 F.2d 855 (7th Cir. 1985);

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contra, Valensuela v. Kraft, 739 F.2d 434, 436 (9th Cir.

1984); Dickenson v. Chrysler Corp., 456 F. Supp. 43, 48

(E.D. Mich. 1978). Further, there is certainly no clear

incompatibility between state-court jurisdiction and fed-

eral interest in the area of employment discrimination.

“Title VII was designed to supplement, rather that sup-

plant, existing laws and institutions relating to employ-

ment discrimination.” New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 68 (1980); see also, Spence v. Latting,

512 F.2d 93, 98 (10th Cir. 1975) and Bostedt v. Festivals,

Inc., 569 F. Supp. 503, 507 (N.D. Ill. 1983) (holding that

state courts have concurrent jurisdiction with federal dis-

trict courts over cases arising under 42 U.S.C. § 1983).

Based on the above, it is the courts’ opinion that state

and federal courts have concurrent jurisdiction to hear

claims under Title VII. Therefore, the issue remaining is

whether the filing of the original complaint in the circuit

court tolled the 90-day limitation period, even though it

was based entirely on Illinois statutory law. Once again

the court begins its analysis with a presumption, that

being that all doubts on jurisdictional timeliness questions

are to be resolved in favor of trial. Caldwell v. National

Association of Home Builders, 771 F.2d 1051, 1054 (7th

Cir. 1985).

Federal Rules of Civil Procedure, Rule 15(c) provides

that whenever a claim in an amended complaint arises

out of the same conduct, transaction or occurrence set

forth in the original complaint, the amendment relates

back to the date the original complaint was filed. Since

the claim in plaintiff's amended complaint, filed on Septem-

ber 20, 1985, arose out of the same set of facts and cir-

cumstances as did the claim in the original complaint,

the amendment relates back to May 22, 1985, the date

of the filing of the original complaint. Therefore, plain-

ie... —e

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tiff's Title VII claims were brought prior to the lapse of

the 90-day limitation and were timely. See, Baldwin

County Welcome Center v. Brown, 446 U.S. 147, n.3,

104 S. Ct. 1723, 1725 n.3 (1984).

Further, merely because plaintiff's original complaint

based her discrimination claim on Illinois statutory law

rather that Title VII does not change the result. See,

Paskuly v. Marshall Field & Co., 646 F.2d 1210, 1211 (7th

Cir. 1981). The requirement for relation back under

Rule 15(c) is not, as defendant suggests, that the sub-

stantive legal theory of the amended complaint be the

same as the theory in the original complaint, but rather

that the claims arise out of the same “conduct, transaction

or occurrence.”

“So long as the Title VII claim is based on the dis-

crimination originally charged in the complaint, allowing

it to relate back . . . works no hardship on the defendant

for the original complaint furnished adequate notice of

the nature of the suit.’’ Sessions v. Rusk State Hospital,

648 F.2d 1066, 1070 (5th Cir. 1981); see also, Smith v.

Town of Clarkton, North Carolina, 682 F.2d 1055, 1060

(4th Cir. 1982).

Here, the Title VII and Illinois Human Rights Act

claims are based on identical facts and circumstances,

therefore, relation back applies and the suit was timely

filed. Accordingly, defendant's motion to dismiss is de-

nied.

So ordered,

/s/ George N. Leighton

George N. Leighton

United States District Judge

Dated: November 22, 1985

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APPENDIX 7

(Filed August 8, 1985)

IN THE

CIRCUIT COURT OF COOK COUNTY,

ILLINOIS

NO. 85 L 11199

Colleen Donnelley

Vv.

Yellow Freight Systems

AGREED ORDER

This cause coming to be heard upon Defendant's

motion to dismiss the Complaint and upon Plaintiff's

motion for leave to file an amended complaint, and the

parties being in Agreement,

It is hereby Ordered that:

Defendant's motion to dismiss is granted and the

Complaint be and hereby is dismissed with prej-

udice.

Plaintiff is granted until September 7, 1985 to

file a memorandum in support of her motion for

leave to file an amended Complaint, and De-

fendant is granted until September 21, 1985 to

reply.

Plaintiff's motion for leave to amend is continued

until October 1, 1985 at 9:30 am without further

notice. 7

A-41

Name Berman, Fael, Haber, Maragos & Abrams

Attorney for Def.

Address 140 S. Dearborn

City Chi

Telephone 580-2233

#90041

JUDGE EDWIN M. DERMAN

AUG. 9, 1985

CIRCUIT COURT

MORGAN M. FINLEY, CLERK OF THE

CIRCUIT COURT OF COOK COUNTY

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.