Petition for Writ of Certiorari — Cooper v. Williamson County Board of Education

UO ee [3 Supreme Court, US. |

87 -6§ 62 FILED

CEF 19 1987

IN THE RQOSEPH F. SPANIOL, JR.

CLERK

Supreme Court of the United States

OctoBEeR TERM, 1987

FREEMAN M. Cooper,

Petitioner,

V.

Wiuuiamson County Boarp or Epvucation, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Rosert Be.tton*

P. O. Box 6057, Sta. B

Nashville, TN 37235

(615) 322-2856

RicHarp Manson

Manson, Jackson & Assoc.

Germantown Center

Suite 300

1314 5th Avenue North

Nashville, TN 37208-2726

(615) 254-1600

Attorneys for Petitioner

*Counsel of Record

: a

QUESTIONS PRESENTED

5 Whether the restricted

construction the court of appeals

adopted of the phrase, “any action or

proceeding,” in Section 706(k) of Title

VII of the Civil Rights Act of 1964, is

in clear conflict with this Court’s

decision in Pennsylvania _v. Delaware

Valley Citizen’s Council, 106 U. S. 3088

(1986), when the court of appeals, based

on that restricted construction,

affirmed the denial of attorney’s fees

for services rendered in a state

administrative proceeding and when those

services were necessary to protect the

rights and benefits that a prevailing

plaintiff had obtained in a Title VII

employment discrimination action?

Pe: oe

as Whether, in an ongoing Title

VII employment discrimination case, a

district court’s deference to a state

administrative proceeding under the

abstention doctrine, if proper, supports

a claim for attorney’s fees when the

plaintiff prevails in the state

proceeding?

- iii -

PARTIES

The parties to tite proceeding are

Freeman M. Cooper, the Williamson County

Board of Education of Williamson County,

Tennessee, and Kenneth L. Fleming, the

Superintendent of the Williamson County

Board of Education.

a iy =

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....--2--e-es i

PARTIES ccccsccesrececessesrsesessesse iii

TABLE OF CONTENTS ...--ccccccesvces iv

TABLE OF AUTHORITIES .......-.2--- vi

OPINIONS BELOW ...cccccccccccccce 2

JURISDICTION 2... ccccccccccscceccece 2

STATUTE INVOLVED ..cccccccccccsecs a

STATEMENT OF THE CASE ....-.-ceee 3

REASONS FOR GRANTING THE WRIT ... 15

I. THE SIXTH CIRCUIT’S DECISION

Il.

IS IN CLEAR CONFLICT WITH THIS

COURT’S DECISION IN PENNSYLVANIA

v. DELAWARE CITIZENS’ COUNCIL

ON THE MEANING OF THE PHRASE

“ANY ACTION OR PROCEEDING” USED

IN CIVIL RIGHTS FEES SHIFTING

STATUTES ..ccccccccccccccecs Ao

THE SIXTH CIRCUIT’S DECISION

CREATES A CONFLICT AMONG THE

CIRCUITS ON THE IMPORTANT

QUESTION WHETHER ATTORNEY’S

FEES SHOULD BE AWARDED TO A

PARTY WHO PREVAILS IN A

STATE PROCEEDING WHEN A

FEDERAL COURT ABSTAINS IN

- Yo=

DEFERENCE TO A STATE

PROCEEDING .ccccccsccecseses 21

TX. CONCIAISION .ccsscccsecsescesans 30

APPENDIX

Opinion of the Court of

Appeals, June 2, 1987 ...... la

Order Denying Petition

For Rehearing and Suggestion

For Rehearing EnBanc,

VULY Bap SUE? 0604 Cee thé ane 12a

Memorandum Decision of the

District Court on Fees,

November 19, 1985 .......... 14a

Order of the District Court

Denying Petitions for

Fees, November 19, 1985 .... 22a

Judgment on the District

Court on the Merits,

SUMS 2a, APES 66 cb wens bes 662 33a

o wt «

TABLE OF AUTHORITIES

CASES:

Albemarle Paper Co. v. Moody,

See Oe OB. 4G8- CASTS) ccccecacs

Bartholomew v. Watson,

665 F. 2d 910 (9th Cir.

18

Cee od Cee cas 6 a rrr a + ey

Chrapliwy v. Uniroyal, Inc.,

670 F. 2d 760 (7th Cir. 1982),

cert. denied, 461 U. S. 956

Seo eva reb sce Soke eee aes

England v. Louisiana St. Bd. of

Medical Examiners,

eae Me Ms - GLE CEOOE ccc.

Exeter-West Greenwich Regional

School Dist. v. Pontarelli,

788 F. 2d 47 (1st Cir.

ae PO

Hawaii Housing Authority v.

Midkiff,

wens 6. SAP 430668) 0 viwex

Hensley v. Eckerhart 461 U.S.

J So 5) Pee

Lampher v.-~ Zagel,

742 Fs. 24 99 (7th Cir.

1985) - jo TF Oo 2 8 2.2.8 8 6-8-6 62 8 8: sé

New York Gaslight Club, Inc. v.

Carey,

447 U. S. 54 (1980) ........

23

25

23

27

17

23

- vii -

Pennsylvania v. Delaware

Citizens’ Council,

106 S. Ct. 3078

(SGRGS- oc écceneas 14,15,16,18,19,20

Pennzoil Co. v. Texaco, Inc,

107 8. Ct. 1336

(SORT) neseeseasndcenteens 27

Railroad Comm’n v. Pullman,

312 U. S. 496 (1941) cee 22,26

Webb v. Dyer County Board

of Education,

471 U. S. 234 (1985) .... 18,23,28

Younger v. Harris,

401 U. S. 37 (1971) ......-. 26

STATUTES:

Section 304(d), Clean Air Act,

42 U. S. Cw § F694 aecccces 18

Section 706(k), Title VII of

the Civil Rights Act of 1964,

42 U. S. C. § 2000e-5(k) ... passim

OTHER AUTHORITY

1 M. Derfner & A. Wolf, Court

Awarded Attorney’s Fees

C1SBE) cccccccvecsseeasessesese 23

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

FREEMAN M. COOPER,

Petitioner,

Vv.

WILLIAMSON COUNTY BOARD OF EDUCATION,

et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioner Freeman M. Cooper re-

spectfully prays that a writ of certio-

rari issue to review the judgment and

decision of the United States Court of

Appeals for the Sixth Circuit entered on

June 2, 1986, and finalized by denial of

Petitioner’s petition for rehearing and

Suggestion for rehearing en banc in an

order entered on July 22, 1987.

OPINIONS BELOW

The opinion of the Sixth Circuit is

reported at 820 F. 2d 180 (6th Cir.

1986), and is set out in the Angendiics at

la-lla. The order denying the petition

for rehearing and suggestion for a re-

hearing en banc, which is not reported,

is set out in the Appendix at 1l2a-13a.

The district court’s memorandum decision

and order denying fees, which are not

reported, are set out in the Appendix at

14a-3la and 32a, respectively. The dis-

trict court’s judgment on relief is not

reported and is set out in the Appendix

at 33a-37a.

JURISDICTION

The decision of the court of ap-

peals was entered on June 2, 1987. A

timely petition for rehearing and sug-

gestion for a rehearing en banc was

denied on July 22, 1987. This Court’s

jurisdiction is invoked pursuant to 28

0. 8. C. § 129101).

STATUTE INVOLVED

Section 706(k) of Title VII of the

Civil Rights Act of 1964, 42 U. S. C. §

2000e-5(k), provides:

In any action or proceeding

under this title the court,

in its discretion, may allow

the prevailing party, other

than the Commission or the

United States, a reasonable

attorney’s fee as part of the

costs, and the Commission and

the United States shall be

liable for costs the same as a

private person.

STATEMENT OF THE CASE

This petition for certiorari is

from a decision denying attorney’s fees

for postjudgment services rendered in

both the district court and a state pro-

ceeding arising out of an action brought

‘under Title VII of the Civil Rights Act

of 1964, 42U. S. C. § 2000e et seg. As

aptly characterized by the court of

appeals, the issue of fees for post-

judgment services is “but the most

recent saga of [petitioner] Cooper’s

fifteen year struggle to retain his

position as a principal” in the

Williamson County, Tennessee, public

school system. Petition Appendix (”Pet.

App.”) 2a. Mr. Cooper’s “saga” had its

genesis in the much delayed desegrega-

tion of the public schools in Williamson

County, Tennessee. }

Phase One. Freeman M. Cooper, pe-

titioner, brought this action under

Title VII of the Civil Rights Act of

1964, 42 U. 8S. C. § 2000e et sgseg.,

claiming that the respondents,

1. Joint Appendix filed in the Sixth

Circuit in this case, at 16-33 (referred

to hereinafter as "Sixth Circuit Joint

Appendix”).

- 5 -

Williamson County Board of Education

(“School Board”) and its superintendent,

Mr. Kenneth L. Fleming, had demoted him

from his position as a principal in 1976

and subsequently denied his application

for principal at another high school

because of his race. In the face of

“dogged opposition, ”2 Mr. Cooper pre-

vailed on his claim and the district

court ordered the the School Board to

reinstatement his as a principal. (Pet.

App. 15a). Fees were awarded for this

phase and are not involved in this

petition.

Phase Two. Less than two months

after entry of the reinstatement order,

the School Board, contrary to the clear

mandate of the judgment decided to place

Mr. Cooper in an administrative posi-

2. Pet. App. 9a (Wellford, J., dis-

senting in part).

a ae

tion. Mr. Cooper had to return to

federal court to compel compliance with

the reinstatement order. Only then did

the School Board assign Mr. Cooper to a

principal’s position at Fairview High

School.

Phase Three. Immediately upon his

placement at Fairview in August 1985,

Mr. Cooper was subjected to a great deal

of hostility from students, teachers and

others in the Fairview community. (Pet.

App. 3a) Threats were made upon the

lives of Mr. Cooper and the district

court judge as a result of the implemen-

tation of the reinstatement order.?

Rather than deal with the sources of the

hostility, the superintendent petitioned

the district court, in November 1985,

for leave, under the federal decree, to

initiate state law dismissal proceeding

Sixth Circuit Joint Appendix 78.

against Mr. Cooper on the ground of,

among other things, incompetency. (Pet.

App. 2a). The superintendent candidly

acknowledged in his motion that the dis-

ruptions at Fairview were caused by

community hostility to the reinstatement

of Mr. Cooper. 4 The district court

denied the superintendent’s motion on

the grounds that the motion sought an

2

advisory opinion~ and the reinstatement

order mandated compliance with state

law. (Pet. App. 18a).

Phase Four. Having failed to get

the district court to judicially sanc-

tion the state dismissal proceeding, the

Superintendent nevertheless initiated a _

dismissal proceeding under state law.

The dismissal proceeding was grounded

solely -on the events growing out of

Sixth Circuit Joint Appendix 102.

Sixth Circuit Joint Appendix 79.

negative community reactions to Mr.

Cooper’s placement at Fairview even

though he had been reinstated less than

three months pursuant to the district

court’s order. (See Pet. App. 9a

(Wellford, J., dissenting) ).

After state law dismissal proceed-

ing had been initiated, Mr. Cooper re-.

turned to the district court for further

relief. He asked the district court to

enjoin the proceeding on the ground that

superintendent was using the proceeding

to deprive him of the benefits of his

federal decree. The district court

denied the motion on the grounds that

(1) its reinstatement order specifically

mandated compliance with state law and

(2) deference to the administrative

School Board hearing would provide “a

fair hearing and give everybody due

- 9 -

process. ”© Also, the district court

specifically directed the School Board

to file a copy of the transcript with

the court in order to determine whether

the proceeding evidenced bad faith com-

pliance with the federal decree. (Pet.

App. 19a’).

Phase Five. The dismissal proceed-

ing, which was conducted before the

School Board, consumed portions of ap-

proximately thirteen days. Mr. Cooper

specifically raised in that proceeding

the issue of the superintendent’s good

faith compliance with the district

court’s reinstatement order; also, he

had raised this same issue in his motion

in the district court to enjoin the dis-

missal proceeding. Mr. Cooper was the

6. Sixth Circuit Joint Appendix 209.

7. See also Sixth Circuit Joint

Appendix 209.

- 10 -

prevailing party in the dismissal pro-

ceeding since the School Board exoner-

ated Mr. Cooper of all the charges the

superintendent had lodged against him.

(Pet. App. 16a). The School Board did

not, however, rule on Mr. Cooper’s

federal claim concerning the good faith

of the superintendent’s compliance with

the federal decree.

Phase Six. After prevailing in the

state dismissal proceeding, Mr. Cooper

again sought further relief in the dis-

trict court. He sought relief on the

ground that he had been constructively

discharged. because the School Board had

placed him in a hostile and racially

charged environment at Fairview. The

district court denied the motion but

made three critical findings relevant to

the petition for postjudgment fees.

First, the district court took judicial

- ll1-

notice that the School Board had rein-

stated Mr. Cooper at a school in a

racially charged community, the after-

math of which bordered on “anarchy.”

Second, the School Board had placed Mr.

Cooper in an “almost impossible” situa-

tion at Fairview. Third, the superin-

tendent had not “given [Mr. Cooper] a

chance to succeed” at Fairview before

initiating the dismissal proceeding. ®

In denying Mr. Cooper’s renewed motion

for further relief, the district court

specifically directed him to work with

the superintendent to develop a manage-

ment plan for Fairview as the School

Board had ordered at the conclusion of

the dismissal proceeding. ?

8. Sixth Circuit Joint Appendix, at

209-212:

9.

212.

Sixth Circuit Joint Appendix, at

- 12 -

Mr. Cooper sought fees under Sec-

tion 706(k) of Title VII, 42 U. S. Cc. §

2000e-5(k), for the postjudgment ser-

vices rendered in the district court and

in the dismissal proceeding. The dis-

trict court denied the petition in its

entirety. First, based on this Court’s

Gecision in New York Gaslight Club, Inc.

v. Carey, 447 U. S. 54 (1980), the court

held that fees in Title VII cases can be

awarded only for those services per-

formed in state tribunals which are

specifically mandated by Title VII.

(Pet. App. 23a). Since the postjudgment

services in the state proceeding were

not statutorily mandated by Title VII,

the court held that Mr. Cooper was not

entitled to fees for those services.

(Pet. App. 20a-24a). Second, the dis-

trict court ruled that, in deferring to

the state dismissal proceeding, it had

=: =

not made that proceeding an integral

part of the Title VII action (Pet. App.

24a-26a), even though the court specifi-

cally directed Mr. Cooper to participate

in the development of a management plan

for Fairview as directed by the School

Board at the conclusion of the dismissal

proceeding. See note 9 supra. Third,

the court declared that the state dis-

missal proceeding did not constitute

reasonable monitoring or implementation

of the federal decree. (Pet. App.28a-

29a).

The court of appeals, in a divided

opinion (Pet. App. la-lla), affirmed the

denial of fees for essential the same

reasons as those relied upon by the dis-

trict court, even though the panel rec-

ognized that “as a practical matter ..

[Mr. Cooper] had to participate in the

dismissal hearing to keep his” position

- 14 -

as a principal which he obtained only as

a result of his success in his Title VII

action. (Pet. App. 6). Judge Wellford,

concurring in part and dissenting in

part, would have allowed fees for post-

judgment services rendered in the dis-

trict court but otherwise joined the

majority’s opinion. (Pet. App. 9-11).

The court of appeals also rejected Mr.

Cooper’s argument that the abstention

doctrine supported his claim for fees.

(Pet. App. 7a).

This Court handed down its decision

in Pennsylvania Vv. Delaware Valley

Citizens’ Council, 266 8. Gb. 3088

(1986) (Delaware Valley I) during the

pendency of this case in the court of

appeals. Delaware Valley I construed

the “any action” phrase in the Clean Air

Act, 42 U.S.C. § 7694, to support an

award of fees for post judgment services

- 15 -

rendered in state and federal adminis-

trative proceedings. Mr. Cooper relied

heavily on Delaware Valley I in seeking

reversal of the district court. The

court of appeals either simply ignored

or refused to follow Delaware Valley I

since it did not even cite the case in

its opinion. Mr. Cooper sought recon-

sideration in the court of appeals under

Delaware Valley I in his motion for re-

hearing and suggestion for rehearing en

banc. The court denied the motion.

(Pet. App. 12a).

REASONS FOR GRANTING THE WRIT

I. THE SIXTH CIRCUIT’S DECISION IS IN

CLEAR CONFLICT WITH THE DECISION OF THIS

COURT IN PENNSYLVANIA Vv. DELAWARE

CITIZENS’ COUNCIL ON THE MEANING OF THE

PHRASE, “ANY ACTION OR PROCEEDING” AS

USED IN CIVIL RIGHTS FEE SHIFTING

STATUTES

- 16-

The Sixth Circuit relied solely

upon New York Gaslight Club, Inc. v.

Carey, 447 U. S. 54 (1980), in holding

that only a proceeding statutorily man-

dated by Title VII is an “action or pro-

ceeding” within the meaning of Section

706(k) of Title VII of the Civil Rights

Act of 1964, 42 U. S. C. § 2000e-5(k).

(Pet. App. 4-5). The construction of

“action or proceeding” the court of ap-

peals adopted is in direct conflict with

the recent decision of this Court in

Pennsylvania Vv. Delaware Valley

Citizens’ Council, 106 S. Ct. 3088

(1986) (Delaware Valley I).

Delaware Valley I involved a ques-

tion of prevailing plaintiffs’ entitle-

ment to fees for services performed in

state court and federal administrative

proceedings after plaintiffs had ob-

tained a judgment in their favor in

- 17 -

their federal action. This Court upheld

the award of fees on several grounds.

First, the Court held that the “any

action” phrase in the fees awards sec-

tion of the Cidean Air Act, 42 U. 8. Ci §

7604(da), includes service performed in

state and administrative proceedings

after entry of a federal decree if the

purpose of those services is to “protect

the full scope of relief” obtained in

the federal action. 106 &. ¢&. 3095.

Most relevant to this petition, however,

this Court held that the phase “any

action,” as used in the Clean Air Act,

and the phrase “any action or proceed-

ing”, as used in other federal fee-

shifting provisions are subject to the

same construction because they have the

same common purpose of promoting private

enforcement of important federal poli-

cies. 106 S. Ct. 3096. Accord Hensley

- 18 -

v. Eckerhart, 461 U. S. 424, 433 n. 7

(1983). Second, based on Webb v. Dyer

County Board of Education, 471 U. S. 234

(1985), this Court held that the post-

judgment fees at issue in Delaware

Valley I were useful and of the type or-

dinarily necessary to protect "the final

result” obtained in the federal action.

306 S. Ct. 3095.

There is no principleal®? basis on

which to distinguish this case _ and

Delaware Valley I and the court below

made absolutely no effort to do so.

Section 706(k) of Title VII uses the

phrase “any action or proceeding”. 42

10. Although statutory awards of fees

are committed to the discretion of dis-

trict courts, the exercise of that dis-

cretion requires the principled applica-

tion of standards, otherwise important

national policies will be frustrated by

a regime of discretion that produces

different results that cannot be differ-

entiated in policy. See Albemarle Paper

Co. Vv. Moody, 422 U. S&S. 405, 417 (1975).

- 19 -

U. S. C. § 2000e-5(k). Here, as in

Delaware Valley I, statutory provisions

subject to the same construction are in-

volved. Here, as did the plaintiffs in

Delaware Valley I, Mr. Cooper had a

unique interest in the state dismissal

proceeding because of his interest in

protecting the rights he had obtained in

the Title VII judgment. The court below

recognized this unique interest when it

correctly stated that, "as a practical

matter, [Mr. Cooper) had to participate

in the dismissal hearing to keep his

job.” (Pet. App. 6a). Here, as in

Delaware Valley I, the non-federal tri-

bunals (here the School Board) had the

power to defeat the relief the plain-

tiffs had only recently won in the fed-

eral court. The district court ruled in

favor of Mr. Cooper on the competency

issue and less than three months later

- 20 -

the superintendent undertook to chal-

lenged that same decision in a state

dismissal proceeding. Here, as in

Delaware Valley I, the federal and state

proceedings were related. In the in-

stant case, the superintendent admitted

the relationship between the two pro-

ceedings by candidly acknowledging that

the difficulty Mr. Cooper faced at

Fairview was based on hostile community

reaction to the implementation of the

federal court’s reinstatement order. 11

—

il.

102.

Sixth Circuit Joint Appendix, at

} eo THE SIXTH CIRCUIT’S DECISION CRE-

ATES A CONFLICT AMONG THE CIRCUITS ON

THE IMPORTANT QUESTION WHETHER ATTOR-

NEY’S FEES SHOULD BE AWARDED TO A PARTY

WHO PREVAILS IN A STATE PROCEEDING WHEN

A FEDERAL COURT ABSTAINS IN DEFERENCE TO

THE STATE PROCEEDING

This Court has never addressed the

issue whether the “any action or pro-

ceeding” phrase in civil rights’ fees

shifting statutes (e. g., Section 706(k)

of Title VII, 42 U. S. C. § 1988) sup-

ports a claim for fees for services ren-

dered ina state tribunal when a federal

court abstains in the exercise of its

jurisdiction and the plaintiff is the

prevailing party in the state proceed-

ing. The decision below has now created

a conflict in the circuits on this

issue. Also, the issue raises an im-

portant federal statutory question that

should be addressed by this Court.

Bartholomew _v. Watson, 665 F. 2d

910 (9th Cir. 982), is the seminal case

= 2

holding that the “any action or proceed-

ing” language in civil rights fee shift-

ing statutes supports a claim for fees

when a federal court abstains in defer-

ence to a state proceeding. The Ninth

Circuit held that the phrase includes

fees for services rendered in a state

tribunal when a federal court has ab-

stained under the Pullman abstention

doctrine (Railroad Commission Y.

Pullman, 312 U. S. 496 (1941)) because

that construction (1) enhances the coop-

eration between federal and state tri-

bunals in protecting federal rights, (2)

avoids serious strains between the state

and federal systems that would otherwise

occur because of forum shopping, and (3)

facilitates efficient allocation of

issues between state and federal sys-

tems. 665 F. 2a at 913. Other courts

of appeals have followed Bartholomew v.

Watson. E. q., Exeter-West Greenwich

Regional School Dist. v. Pontarelli, 788

F. 2d 47, 51 (1st Cir. 1986); Lampher v.

faees, 775 F. 22 99, 103-04 (7th Cir.

1985). Justices Brennan and Blackmun,

in Webb - Dyer County Board of

Education, 471 U. S. 234, 248-49 (1985),

have expressly approved of the holding

and rationale of Bartholomew. See also

Chrapliwy v. Uniroyal, Inc., 670 F. 2d

760, 767 (7th Cir. 1982)(fees awarded

for proceedings not mandated by Title

VII because services contributed to the

ultimate termination of the case), cert.

Genseag, 461 U. S. 956 (1983); 1 M.

Derfner & A. Wolf, Court Awarded

Attorney Fees Para. 13.03[2] (1986).

The court of appeals rejected the

application of the Bartholomew rule in

this case on the ground that Pullman

abstention is applicable only when a

- 24 -

federal court requires a litigate to

clarify state law issues in a state fo-

rum before proceeding with a civil

rights action in federal court. (Pet.

App. 7a). The Sixth Circuit’s treatment

of abstention not only creates a con-

flict among the circuit, but is wrong as

a matter of law and as a matter of fact,

as applied in this case, because clari-

fication of state law issues is not the

only basis which supports abstention.

The state dismissal proceeding

against Mr. Cooper was initiated only

after the district court entered its re-

instatement order. Mr. Cooper sought to

enjoin the dismissal proceeding on the

ground that the superintendent’s action

was an effort to deprive him of the

fruits of his federal decree. The ground

on which Mr. Cooper sought to challenge

the dismissal proceeding clearly raised

« 28 «

an issue of federal law concerning

whether the action of the superintendent

was an attempt to deprive Mr. Cooper of

the benefits of his federal decree. The

district refused to enjoin the proceed-

ing on the ground that such relief was

“jnappropriate at this time”!2 because

it believed that the hearing would pro-

vide “a fair hearing and give everybody

due process.” In addition, the district

court preserved the right of Mr. Cooper

to return to federal court by specifi-

cally granting him leave to renew his

motion after the conclusion of the state

13

dismissal proceeding. See England v.

Louisiana St. Bd. of Medical Examiners,

375 U. S. 411 (1964).

12. sixth Circuit Joint Appendix, at

116.

13.

116.

Sixth Circuit Joint Appendix, at

- 26 -

The rationale relied upon by the

district court in refraining from decid-

ing Mr. Cooper’s motion to enjoin the

state dismissal proceeding is justifi-

able, if at all, only on the basis of

one of the abstention doctrines since

the district court clearly had jurisdic-

tion to decide the motion on the merits

under the provisions of its reinstate-

ment decree. The reinstatement decree

made it a violation of the order for

anyone to attempt to deprive Mr. Cooper

of the benefits of the decree and the

district court retained jurisdiction of

the case to ensure full compliance with

its judgment. (Pet. App. 35a, 37a).

Mr. Cooper expressly relied upon these

provisions in seeking to enjoin the

state dismissal proceeding.

Of the various abstention doc-

trines, only Pullman or Younger (Younger

- 27 «

v. Harris, 401 U. S. 37 (1971)), justi-

fies the action of the district court in

deferring the exercise of its jurisdic-

tion pending the outcome of the state

dismissal proceeding. See Pennzoil Co v.

Texaco, Inc., i107 S&S. Ct. 1819, i526

(1987) (the various abstention doctrines

are not rigid pigeonholes into which

federal courts must try to fit cases

Since all of them are designed to soften

— the tension in federal-state relations).

If neither Pullman nor Younger is appli-

cable, then the district court’s erred

as a matter of Article III jurisprudence

by declining to rule on the merits of

the motion to enjoin the state dismissal

proceeding since abstention from the ex-

ercise of federal jurisdiction is the

exception and not the rule. Hawaii

Housing Authority v. Midkiff, 467 U. S.

229 (1984).

x

- 2+ -

When Mr. Cooper returned to the

district court to seek further relief,

after the conclusion of the dismissal

proceeding, the district court again

declined to rule on the merits of his

postjudgment motion, opting instead to

rely on the recommendation that’ the

School Board had made in the dismissal

proceeding, i. e., development of a man-

agement plan for the Fairview school, as

a potential solution to assuring full

compliance with the federal decree. The

conclusion is thus inescapable that the

district court, in its deference to the

state proceeding under the abstention

policies, ultimately relied on the state

administrative proceeding to try to ef-

fectuate implementation of the federal

reinstatement decree. See Webb _v.

County Board of Education of Dyer

County, 471 U. Ss. 234, 248

- 29 -

(1985) (Brennan, J., concurring in part,

dissenting in part) (resort to state ad-

ministrative proceedings might be neces-

sary in developing and implementing a

remedial plan to comply with a federal

decree).

= S06 «

III. CONCLUSION

For the reasons above a writ of

certiorari should issue to review the

judgment and opinion of the Sixth

Circuit.

Respectfully submitted,

ROBERT BELTON*

P. O. Box 6057, STA. B

NASHVILLE, TN 37235

(615) 322-2856

RICHARD MANSON

MANSON, JACKSON & ASSOCIATES

GERMANTOWN CENTER

SUITE 300

1314 5TH AVE. NORTH

NASHVILLE, TN 37208-2726

(615) 254-1600

*COUNSEL OF RECORD

APPENDIX

PMA

- la =

Nos. 85-6150, 86-5879

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FREEMAN M. Cooper,

Plaintiff-Appellant,

we

WILLIAMSON COUNTY BOARD OF

EDUCATION and ADMINISTRATIVE

Unit OF WILLIAMSON COUNTY,

TENNESSEE and KENNETH L. M.

FLEMING, Superintendent of

Schools of Williamson County, in

his individual and official

capacity,

On APPEAL from the

{ United States District

Court for the Middle

District of Tennessee.

Defendants-Appellees.

Decided and Filed June 2, 1987

Before: MARTIN, WELLFORD

Judges.

and NELSON, Circuit

MARTIN, Circuit Judge, delivered the opinion of the

court, in which NELSON, Circuit

Judge, joined. WELL-

FORD, Circuit Judge, (pp. 9-11) delivered a separate opinion

concurring in part and dissenting in part.

l

- 2a =-

BOYCE F. MARTIN, JR., Circuit Judge. Freeman Cooper,

the prevailing party in an employment discrimination action,

now seeks attorney's fees under Section 706(k) of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), for

work performed in resisting dismissal charges brought subse-

quent to his success in the district court. The district court

found that Cooper, a black school principal, had been dis-

criminated against by the Williamson County Board of Edu-

cation, and required the School Board to give him a principal-

ship. After the School Board complied with this order, the

school superintendent brought dismissal charges for incom-

petency before the Board under Tennessee law. Cooper, who

was represented by counsel, successfully resisted the charges.

When Cooper sought attorney’s fees in the district court for

work before the School Boarc, the request was denied. The

state dismissal hearing, which occurred after the Title VII

action, was not a proceeding under Title VII because Coop-

er’s participation was not a condition precedent to his pursu-

ing his employmeni discrimination claim in federal court.

Thus, Section 706(k) does not extend to the fee request. We

affirm.

I.

This appeal for attorney’s fees is but the most recent saga

of Cooper’s fifteen year struggle to retain his position as a

principal in the Williamson County public school system in

Tennessee. in the culmination of this struggle in June 1984,

the United States District Court for the Middle District of

Tennessee ruled that the Williamson County Board of Educa-

tion had discriminated against Cooper on the basis of his race

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e ef seg. The district court required the Board

to reinstate Cooper as a principal and the court, in order to

ensure compliance, retained jurisdiction.

In August 1984 the Board placed Cooper in the principal’s

position at Fairview High School, thereby displacing the

- 3a -

experienced white principal at this predominantly white

school. Cooper's year at Fairview was an eventful one to say

the least, with bomb scares, student walk-outs and conflicts

with the faculty. In early January 1985 Kenneth Fleming, the

school superintendent, filed dismissal charges against Cooper

with the Board pursuant to the Tennessee Teacher Tenure

Act, Tenn. Code Ann. §§ 49-5-501 ef seg. (providing that

teachers may be dismissed only for cause and that the causes

for dismissal may be incompetence, inefficiency, neglect of

duty. unprofessional conduct and insubordination). Fleming

argued. essentially. that Cooper was insubordinant and

incompetent, and sought to have him removed from the prin-

cipalship at Fairview High School. Cooper succeeded in

resisting the dismissal charges.

After his success at the Board’s hearings, Cooper filed a

fee petition with the district court seeking attorney’s fees for

work performed after that court’s Title VI] judgment reinstat-

ing him as principal. The district court, for analytical pur-

poses. divided the request in two parts. The first category

included “services rendered prior to the date on which dis-

missal charges were filed, and services rendered in connection

with proceedings in [the district court].” More specifically,

these services included following media reports, assisting

Cooper with day-to-day administrative matters at Fairview

High School, filing an Equal Employment Opportunity Com-

mission charge with respect to a matter that was not brought

before the district court, and making unsuccessful motions

in the district court relating to the state dismissal proceed-

ings. The court denied this part of the request. On appeal

Cooper contends that the time spent by his attorneys follow-

ing media reports and assisting with administrative matters

at Fairview High School constituted reasonable monitoring

and implementation of the district court’s prior order. As we

view the record, Cooper has not appealed that part of the

district court’s judgment regarding the denial of fees for work

performed in filing the Equal Employment Opportunity

Commission charge not brought before the court, nor has he

~ 4a —

challenged the denial of fees for work involved in making

the unsuccessful motions.

The second category of legal work, which forms the crux

of Cooper’s appeal, “relate[d] to services rendered in prepara-

tion for, and participation in, the state dismissal pro-

ceedings.” In denying this part of the fee request, the district

court wrote that because the state dismissal proceedings were

“not mandated by the provisions of Title VII and did not

involve an attempt by [Cooper] to secure Fitle VII rights/,}”

they were not an “action or proceeding” within the meaning

of Section 706(k) and Cooper was thus not entitled to attor-

ney’s fees under that provision. Here, Cooper urges that the

state dismissal proceedings were an “action or proceeding”

within the meaning of Section 706(k) because those proceed-

ings were useful and necessary to protect his Title VII rights,

because the legal services provided in those proceedings con-

stituted reasonable monitoring and implementation of the

distnct court’s prior order, and because the district coun

made those proceedings an integral part of the Title VII

action.

Il.

Under the American Rule on attormey’s fees, a federal court

may nol, several narrow exceptions aside, award attorney’s

fees unless expressly authorized by Congress. See Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247

(1975). Cooper seeks to convince us that Section 706(k) of

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5(k) grants that authorization. That section provides:

In any action or proceeding urder this subchapter

the court, in its discretion, may allow the prevailing

party, other than the Commission or the United

States, a reasonable attorney’s fee as part of the

costs. ...

In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(1980), the Supreme Court had the opportunity to consider

.- Sa —

the application of this provision to state administrative pro-

ceedings. The Court noted that the language of Section 706(k)

clearly authorizes fee awards for work done in a “proceeding”

other than a court action, and thus a Title VII prevailing party

may get an award for fees from the losing party for work per-

formed in a federal administrative proceeding. Jd. at 61. In

considering whether Section 706(k) also extended to state

proceedings, the Court looked at the language of the provi-

sion and then at the structure of Title VII. First, it observed

that the provision “authorizes a fee award to the prevailing

party in ‘any. .. proceeding under this title.’ ” Jd. at 62. Also,

throughout the title “proceeding” and its plural form are

“used to refer to all the different types of proceedings in which

the statute is enforced, state and federal, administrative and

judicial.” Jd. at 62-63 (footnote omitted).

The Supreme Court next pointed out that the same title

creates an elaborate deferral system in which the state and

federal institutions and remedies are to work together as one

system. Title VII establishes a procedural structure in which

claims are referred first to available state remedies and may

be prosecuted in a federal forum only after the state remedies

are exhausted or the deferral period expires. See Love v. Pull-

man. Co., 404 U.S. 522 (1972) (approving the referral and

deferral system developed by the Equal Employment Oppor-

tunity Commission under Section 706(c)). In short, the claim-

ant must first turn to state remedies, and may use federal

remedies only when the state does not provide prompt or

complete relief. As the Court explained, “It is clear from this

scheme of interrelated and complimentary state and federal

enforcement that Congress viewed proceedings before the

EEOC and in federal court as supplements to available state

remedies for employment discrimination.” Carey, 447 U.S.

at 65. The Supreme Court consequently concluded that when

a plaintiff is referred to state proceedings pursuant to Title

VII, the state proceeding is a “proceeding under this title”

and that a court may thus make an award for work performed

in the state proceedings. Jd. at 71; cf Webb v. Dyer Board

» 6a —

of Education, 471 U.S. 234 (1985) (holding that because 42

U.S.C. § 1983 does not require an exhaustion of state reme-

dies as a precondition to pursuing a civil rights.action in fed-

eral court 42 U.S.C. § 1988, the attorney’s fees provision for

§ 1983 does not authorize an award for work performed in

such optional state proceedings).

Ill

Cooper seeks fees for work performed in resisting the dis-

missal charges brought before the School Board after the dis-

trict court rendered its judgment in his Title VII case. Section

706(k) does not extend that far, however Cooper was not

referred to the dismissal proceedings sought under the Ten-

nessee Teacher Tenure Act, Tenn. Code Ann. §§ 49-5-501 e7

seqg., and thus these were not proceedings under Title VII.

That title 1s concerned with employment discrimination and

requires referral only to state employment discrimination

remedies. Cooper’s dismissal charges, however, did not

involve employment discrimination, but rather his compe-

tency as principal. In short, these state dismissal proceedings

were not part of the “scheme of interrelated and complimen-

lary state and federal enforcement” of the Title VII employ-

ment discrimination laws. Carey, 447 U.S. at 65.

True, as a practical matter and as Cooper argues, he had

10 participate in the dismissal hearing to keep his job, but

that, without more, is not sufficient to turn the dismissal hear-

ing into Title VII proceedings. To argue, as Cooper does, that

Section 706(k) applies to these dismissal proceedings because

the work was both useful and of a type ordinarily necessary

to protect his Title VII rights demonstrates a misunderstand-

ing of Title VII. Title VII forbids Cooper’s employer from

discriminating against him on the basis of race. It does nor

prevent an employer from discriminating on the basis of

competency. If Cooper thought that the charges of incompe-

tency and insubordination were a pretext and that the School

Board or superintendent had been driven by racial animus,

——:

he should have brought, as the district court explicitly

advised him, a contempt action in the district court. He never

did so and we cannot impute such invidious motives to the

Board or to the superintendent. ‘

Cooper asserts that the district court made the state compe-

tency hearing part of the district court’s proceedings and

hence part of the Title VII action by maintaining jurisdiction.

But the district court had already granted Cooper a Title VII

judgment, and in no way mandated his participation in the

state proceeding. This is quite a different case from

Bartholomew v. Watson, 665 F.2d 910 (9th Cir. 1982) (fee

application made under 42 U.S.C. § 1988), in which the fed-

eral court abstained under the Pul/man doctrine and required

the litigants to clarify state law issues in a state forum before

proceeding with the civil mghts action in federal court. In

Cooper's case, the state proceedings dealt with no issue of

state law that had a direct bearing on Cooper’s case in district

court and the court did not require him to pursue the state

proceedings before returning to federal court. In fact, the dis-

trict court’s order requiring Cooper’s reinstatement had

already been satisfied and no issues remained for resolution

in Cooper's Title VII claim.

Further, contrary to Cooper’s assertions, the legal work per-

formed by Cooper's counsel in resisting the state dismissal

charges did not constitute reasonable monitoring and imple-

mentation of the district court’s order. In making that argu-

ment, Cooper reminds us that in Northcross v. Board of Edu-

cation, 611 F.2d 624, 637 (6th Cir. 1979), cert. denied, 447

U.S. 911 (1980), we said that “[sJervices devoted to reason-

able monitoring of the court’s decrees, both to insure compli-

ance and to ensure that the plan is indeed working to desegre-

gate the school system, are compensable services.” The

Northcross fee application involved work performed by coun-

sel to ensure full compliance with a complicated school deseg-

regation plan. Here, Cooper’s remedy of reinstatement had

already been executed before the dismissal charges were

- 8a -

brought before the School Board. The district court did main-

tain jurisdiction over Cooper's case, but merely as a proce-

dural step to ensure compliance.

Finally, as for the services provided by Cooper's counsel

before the filing of the state dismissal charges, we must agree

with the district court that they do not constitute reasonable

monitoring of its earlier order. The district court's order that

the Board reinstate Cooper as a principal did not require that

his counsel follow media reports or advise him on day-to-day

administrative matters faced in his job as principal. The dis-

trict court quite correctly observed that although Cooper may

consult with his attorneys about any matter, the defendants

should not be required to reimburse him for work performed

by his attorneys in connection with his responsibilities as

principal.

The judgment of the district court is affirmed.

- Ya -

WELLFORD, Circuit Judge, dissenting in part. I join the

majority's opinion with respect to Parts I and II. I dissent,

however, from the portion of the conclusion in Part III that

holds that Cooper’s attorneys are not entitled to receive fees

for any work they performed after the final decision was ren-

dered in the district court and before the State dismissal hear-

ings began. In appropriate circumstances, a district court may

award post-judgment attorney's fees to the prevailing plain-

tiff. E.g., Northcross v. Board of Education, 611 F.2d 624, 637

(6th Cir. 1979), cert. denied, 447 U.S. 911 (1980).

The question on appeal is whether the district court abused

its discretion by denying fees to the plaintiff under all the

circumstances. Coulter v. Tennessee, 805 F.2d 146, 151-52

(6th Cir. 1986); Rice v. Gates Rubber Co., 584 F.2d 135,

136-37 (6th Cir. 1978) (per curiam); see Christiansburg Gar-

ment Co. v. EEOC, 434 U.S. 412, 421 (1978).

Cooper, in the face of dogged opposition, won his discrimi-

nation suit against Williamson County, which was ordered

to reinstate him as a high school principal. After fifteen years

of struggle with the School Board, Mr. Cooper vindicated his

nights. Within weeks, however, he was confronted with a

“Motion for Relief™ filed by Fleming, the Superintendent of

Schools, in which Fleming sought permission to bring charges

against him under the Tennessee Teacher Tenure Act. Flem-

ing was the superintendent of Schools fifteen years earlier

when Mr. Cooper’s troubles began.

Cooper’s attorneys necessarily met, discussed, and

responded to Fleming’s allegations of incompetency by filing,

in the district court, a brief opposing the motion. All these

proceedings were a direct consequence of the district court’s

June 22, 1984, decision enjoining the defendants from treat-

ing Cooper in a discriminatory manner. Cooper was required

to oppose the motion to vindicate what he in good faith and

with good cause felt to be his mghts under the recent district

court order. It should be noted that the district judge denied

Cooper's fee request by defining the first “category” of

———

- 10a -

services—“non-Board hearing” matters—as “services ren-

dered prior to the date on which dismissal charges were filed,

and services rendered in connection with proceedings in this

Court.” Dist. Ct. Memo. at 2 (filed Nov. 18, 1985) (emphasis

added).

The district court denied fees for these services, however,

because it “does not believe that the services rendered by

counsel... constitute reasonable monitoring and implemen-

tation of [its) previous order” and because “plaintiff did not

succeed on any significant issue in the litigation with respect

to the proceedings in this Court during the relevant time

period.” Dist. Ct. Memo. at 6-7. I do not believe plaintiff

under these circumstances should have been subject to a

requirement that he succeed again in vindicating his rights.

The court offered no reason for its conclusory assertion that

the services were not a “reasonable implementation”. |

believe the district court improperly lumped together the

attorneys’ services rendered in connection with responding

to the motion for relief and the services rendered in connec-

tion with reviewing media reports and assisting Mr. Cooper

with the administrative aspect of his new job, the latter being

non-compensable. In such circumstances, ] would find that

the district court abused its discretion, and Cooper's attor-

neys were entitled to be reimbursed for their time spent in

protecting their client’s interests under a very recent judg-

ment. ] would, therefore, remand for a computation of fees

which should be awarded for these limited services.

Due to the unique circumstances of this case, which took

place over a protracted period of time, I believe also that the

district court abused its discretion to the extent it did not

allow a portion of the fee request for attorneys’ services ren-

dered immediately after the court’s June 22, 1984, decision.

Some amount of attorney fees are warranted on this record

as reasonable monitoring and implementation to insure com-

pliance with the judgment. Defendants’ prior continuous

opposition over a decade and a half justified Mr. Cooper's

- lla -

need to seek out and to rely upon his attorneys’ advice to

secure his interests under a favorable judgment. In summary

then, I would reverse and remand for an award of part of

the fees requested.

The district court also determined that Cooper was not

entitied to attorneys’ fees for representing him in the state

dismissal hearing. I concur because I cannot conclude that

the district court abused its discretion in this respect. Coulter,

805 F.2d at 151-52. I may have reached a different result in

light of the long series of efforts by Mr. Fleming and William-

son County to frustrate Mr. Cooper’s employment opportuni-

ties. The district court articulated, however, logical reasons

for its refusal to make a fee award on this portion of the fee

request. The district court properly apprehended the law to

be applied. Though I may have differed on the result of apply-

ing that law to these facts, I cannot hold that the court abused

its discretion with respect to this portion of the fee request.

I] accordingly CONCUR in this aspect of Part III of the major-

ity’s decision.

Filed July 22, 1987

No. 85-6150/86-5879

UNITED STATES COURT OF APPEALS

~ FOR THE SIXTH CIRCUIT

FREEMAN M. COOPER,

Plaintiff-Appellant,

ee eee eee ee

V. ORDER

WILLIAMSON COUNTY BOARD OF

EDUCATION, ET AL.,

Defendants-Appellees

BEFORE: MARTIN, WELLFORD AND NELSON,

Circuit Judges

The Court havinq received a peti-

tion for rehearing en banc, and the

petition having been circulated not only

to the original panel members but also

to all other active judges of this

Court, and no judge of this Court having

requested a vote on the suggestion for

- 33a <=

rehearing en banc, the petition for re-

nemekinn has been referred to the orig-

inal hearing panel.

The panel has further reviewed the

petition for rehearing and _ concludes

that the issues raised in the petition

were fully considered upon the original

submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/S/

John P. Hehman, Clerk

- 14a -

Filed November 19, 1985

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE,

NASHVILLE DIVISION

FREEMAN M. COOPER

No. 80-3393

Judge Wiseman

V.

WILLIAMSON COUNTY BOARD

OF EDUCATION, et al.

~— ~S ee e

MEMORANDUM

Plaintiff has filed a Petition for

Interim Award of Fees seeking an award

of fees under 42 U.S.C. §2000e-5(k) for

services rendered by his attorneys for

the period of October, 1984 through

April 1, 1985, the date on which the

Williamson County Board of Education

rendered a final decision on dismissal

charges brought against plaintiff by

- 15a ~

Superintendent Kenneth L. Fleming. The

Court concludes that an award of

attorneys’ fees for services rendered

during this period is not warranted by

the attorney’s fee provision of Title

VII, 42 U.S.C. §2000e-5(k).

In an Order dated June 22, 1984,

this Court ruled that defendant

Williamson County Board of Education

(“Board”) had discriminated against

plaintiff because of his race in viola-

tion of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§2000e et seq.;

required the Board to reinstate plain-

tiff as a principal at one of the

schools under the Board’s jurisdiction;

and retained jurisdiction of the action

to ensure full compliance with its judg-

ment. In that Order, this Court also

awarded fees to plaintiff’s attorneys

~ 16a -

pursuant to 42 U.8.c. §2000e-5(k).

During the fall of 1984, plaintiff was

placed in the principal’s position at

Fairview High School. On January 7,

1984, defendant Fleming filed dismissal

charges against plaintiff with the Board

pursuant to the Tennessee Teacher Tenure

Act, T.C.A. §§49-5-501 et seq. Plain-

tiff was ultimately successful -during

Board hearings in resisting the dis-

missal charges.

It appears to the Court that the

services for which fees are sought can

be divided into two separate categories.

One category relates to services ren-

~ dered on “”non-Board hearing” matters.

This category includes services rendered

prior to the poem on which dismissal

charges were filed, and services ren-

dered in connection with proceedings in

* i785 =

this Court. The remainder of the fee

request relates to services rendered in

preparation for, and participation in,

the state dismissal proceedings.

The services rendered prior to the

date on which dismissal charges were

filed appear to consist of discussions

concerning administrative matters relat-

ing to plaintiff’s position as principal ©

of Fairview, reviews of media reports,

and the filing of an Equal Employment

Opportunity Commission charge with re-

spect to a matter that has not been

brought before this Court. Services

rendered in connection with proceedings

in this Court relate to two motions

filed during the relevant time period,

both of which involved issues arising

out of the state dismissal proceedings.

On November 21, 1984, defendant Fleming

- 19a =

filed a motion for relief arising from

his concern that the filing of the dis-

missal charges might be construed to in-

terfere with this Court’s June 22, 1984

Order. In response to this’ motion,

plaintiff argued that because the dis-

missal proceedings were purely a matter

of state law, the Court was without

jurisdiction to consider defendant’s mo-

tion. MThis- Court dismissed defendant’s

motion, explaining that its previous

Order in no way atfected Superintendent

Fleming’s ability to bring dismissal

charges under state law, and stated that

its previous Order mandated compliance

with applicable state statues.

After Superintendent Fleming filed

dismissal charges with the Board, plain-

tiff filed a motion seeking to enjoin

the state dismissal proceedings. The

secs ibe ot naa

?

- 4984 -

Court denied plaintiff’s motion; gave

him leave to revive his motion at the

conclusion of the state proceedings; and

requested the Board to provide the Court

with a transcript of the proceedings.

The attorney’s fee provision of

Title VII provides:

In any action or proceeding

under this subchapter the court,

in its discretion, may allow the

prevailing party, other than the

Commission or the United States, a

reasonable attorney’s fee as part

of the costs, and the Commission

and the United States shall be

liable for costs the same as a

private person.

42 U.S.C. §2000e-5(k).

Plaintiff contends that an award of

fees iS warranted because he has _ suc-

ceeded on a significant issue in this

litigation which achieves some of the

benefits sought in the suit. Plaintiff

argues that he succeeded on a signifi-

- 208 =

cant issue in this case in resisting the

attempt by defendant Fleming to dismiss

him pursuant to the Tennessee Teacher

Tenure Act. In addition, plaintiff ar-

gues that services rendered by his

counsel during this time period were

devoted to reasonable monitoring and im-

plementation of this Court’s June 22,

1984 Order.

The Court will first address plain-

tiff’s fee request for services rendered

in connection with the state dismissal

proceedings. Plaintiff claims that an

award of fees is appropriate for these

services and relies on the Supreme

Court’s decision in New York Gaslight

Club, Inc. v. Carey, 447 U.S. 54, 100 S.

Ct. 2024, 64 L. Ed. 2d 723 (1980). In

Carey, the Court held that fees may be

awarded under 42 U.S.C. §2000e-5(k) toa

- 218 -

claimant who prevails in state proceed-

ings to which the claimant was referred

pursuant to the provisions of Title VII.

The Court’s decision in Carey, however,

does not govern the _ instant case.!

1. Similarly, the Court rejects the

Board’s contention that the Supreme

Court’s recent decision in Webb v. Board

of Education of Dyer County, Tennessee,

473. 0.5... Et Se Oe ee re

2d 233 (1985), in and of itself, defeats

plaintiff’s claim. In Webb, the Court

held that an award of fees under 42 U.S.

C. §1988 is not available to a prevail-

ing plaintiff for services rendered by

his counsel during optional state admin-

istrative proceedings initiated prior to

the filing of an action under 42 U.S.C.

§ 1983 in federal court. Although_ the

state proceedings at issue in Webb were

brought under the same Tennessee statues

involved in the instant case, the fee

request in Webb was brought under §1988.

To distinguish its holding in Carey, the

Webb court relied on the differences

both in the wording of the applicable

fee provisions, and in the _ functions

served by state proceedings in §1983 ac-

tions, as opposed to Title VII actions.

85 L. Ed. 2d at 240-41. The Court ex-

plained that, unlike Title VII, §1983

does not require a claimant to exhaust

state administrative remedies’ before

- 22a -

First, the Carey case is factually dis-

tinguishable from the instant case. The

claimant in Carey initiated proceedings

with the New York State Division of Hu-

man Rights complaining of racial dis-

crimination prior to the commencement of

her Title VII suit in federal court.

447 U.S. at 56-58, 100 S. Ct. at 2027-

28, 64 L. Ed. 2d at 729-30. The state

proceedings at issue in this case in-

volved dismissal charges filed by defen-

dant Fleming with the Board after the

substantive portion of plaintiff’s Title

VII suit in this Court had been com-

pleted. In addition, the explicit hold-

bringing an action in federal court.

Id. Thus, the Court concluded a

claimant is not entitled to an award of

fees under §1988 for state administra-

tive proceedings. Because plaintiff

brought the instant action under Title

VII, the Webb holding does not govern

his petition for an award of fees.

- 23a =

ing and reasoning of the Carey court

demonstrate that its decision is

inapplicable to the instant case. In

reaching its decision, the Court ex-

plained that an award of fees was appro-

priate for the state administrative pro-

ceedings in that case because the provi-

sions of Title VII required the plain-

tiff to pursue available state remedies

for employment discrimination before

initiating suit in federal court. 447

U.S. at 64, 100 S. Ct. at 2031-32, 64 L.

Ed. 2d at 735. Moreover, the language

used by the Court in setting forth it

holding specifically referred to, and

this Court believes is limited to,

“state proceedings to which the com-

plainant was referred pursuant to the

provisions of Title VII.” 447 U.S. at

71., 100 S&S. Ct. at 2034, 64 L. Ed. 2d at

————————————————

- 24a =

738.2 By contrast, the state proceed-

ings at issue in the instant case were

not mandated by th provisions of Title

VII and did not involve an attempt by

the plaintiff to secure Title VII

rights. In short, the state proceedings

did not serve an integral function under

the provisions of Title VII. _

Plaintiff argues that this Court

made plaintiff's participation in the

state proceedings an integral part of

2. The Supreme Court’s recent decision

in Webb v. Board of Education of Dyer

County, Tennessee, 471 U.S. _, 107 S.

Ct. _, 85 L. Ed. 2d 233 (1985), re-

moves any doubt as to whether the Carey

decision is limited to state proceedings

mandated by Title VII. In Webb, the

Court specifically stated that Carey

“arose under a statute that expressly

requires a claimant to pursue available

state remedies before commencing pro-

ceedings in a federal forum.” 85 L. Ed.

2d at 240 (footnote omitted).

0 RS te

Bt

- 25a =

his Title VII remedy. Plaintiff main-

tains that the orders issued by this

Court in connection with the state pro-

ceedings made participation in those

proceedings a condition precedent to ob-

taining further relief in this Court.

Plaintiff mischaracterizes the substance

of this Court’s previous orders. In

denying the applicable motions, this

Court resisted attempts by both parties

to involve this Court in the state pro-

ceedings. The Court did not make plain-

tiff’s participation in the state pro-

ceedings an integral part of his Title

VII remedy, but merely refused to con-

done or enjoin the initiation of those

proceedings. Plaintiff has not alleged

that the procedure utilized, or the re-

sult reached, by the Board during those

proceedings, constituted racial discrim-

~ 26a <

ination, although this Court specifi-

cally gave plaintiff leave to revive his

motion to enjoin in a previous order.

In short, the state dismissal proceed-

ings were not mandated by Title VII, or

this Court, and did not involve an at-

tempt by plaintiff to enforce his Title

VII rights. Therefore, this Court con-

cludes that plaintiff’s success in re-

Sisting the dismissal charges did not

constitute success on aé_— significant

issue in this litigation which achieved

some of the benefits sought in the suit.

Similarly, the Court is not per-

suaded by plaintiff’s argument that the

services rendered in connection with the

state proceedings constitute reasonable

monitoring and implementation of this

Court’s June 22, 1984 Order. The lan-

guage cited by plaintiff in Northcross

- 27a -

v. Board of Education, 611 F.2d 624 (6th

Cir. 1979), cert. denied, 447 U.S. 911,

100 S. Ct. 2999, 64 L. Ed. 862 (1980),

involved a request for attorneys’ fees

under 42 U.S. §1988 for services pro-

vided by counsel to insure full compli-

ance with a school desegregation plan.

611 F2d at 637. Unlike the remedy in

the Northcross case, the remedy provided

to plaintiff in the Court’s' previous

order--reinstatement--had already been

carried out prior to the commencement of

the state proceedings. As previously

noted, plaintiff has not alleged that

the procedure or result reached by the

Board during those proceedings violated

this Court’s previous order. Thus, the

Court concludes that services rendered

by counsel during the state proceedings

do not constitute reasonable monitoring

= 4238 -

and implementation of this Court’s pre-

vious order.

In addition, the Court does not be-

lieve that the services rendered by

counsel prior to the date on which dis-

missal charges were filed constitute

reasonable monitoring and implementation

of this Court’s previous order. Ser-

vices rendered in connection with ob-

taining and reviewing media reports, and

in connection with a separate Equal Em-

ployment Opportunity Commission charge

on a matter that has not been brought

before this Court do not relate to the

implementation of this Court’s previous

order. Although this Court recognizes

that plaintiff may consult with his

attorneys about any matter, it does not

believe that defendants should be re-

quired to reimburse plaintiff for ser-

ci —

- 27a

vices rendered by his counsel in con-

nection with his responsibilities as

principal. Implementation of this

Court’s previous order does not require

the assistance of counsel for day-to-day

administrative matters which plaintiff

encounters by virtue of his position as

principal. In sum, the Court concludes

that these services do not constitute

reasonable monitoring and implementation

of this Court’s previous order.

Finally, the Court concludes that

plaintiff did not succeed on any

significant issue in the litigation with

respect to the proceedings in this Court

during the relevant time period.

Services rendered in connection with

plaintiff’s motion to enjoin the state

proceedings which was denied by this

Court are clearly excluded. With re-

- 204 =

spect to the Court’s dismissal of defen-

dant Fleming’s motion for relief relat-

ing to the filing of the dismissal

charges, plaintiff only “succeeded” to

the extent that this Court made clear

that its previous order mandated compli-

ance with state law. The Court does not

believe that this pronouncement consti-

tutes “success” by plaintiff on a sig-

nificant issue in the litigation, espe-

cially in view of the fact that two

months later plaintiff sought to have

the Court exercise its jurisdiction to

enjoin the state dismissal proceedings.

Having concluded that services ren-

dered during the period of the fee re-

quest do not relate to success on a Ssig-

nificant issue in the litigation, or

constitute reasonable monitoring and inm-

plementation of this Court’s June 22,

* 2.4 -

1984 Order, the Court denies plaintiff’s

fee request in its entirety.

/s/ :

THOMAS A. WISEMAN, JR.

CHIEF JUDGE

* we

- J28 =

Filed November 19, 1985

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

FREEMAN M. COOPER

No. 80-3393

Judge Wiseman

Ve

WILLIAMSON COUNTY BOARD

OF EDUCATION, et al.

i

ORDER

In accordance with the accompanying

Memorandum, the Court denies plaintiff’s

Petition for Interim Award of Fees in

its entirety.

/S/

_ THOMAS A. WISEMAN, UR.

CHIEF JUDGE

- 33a -

Filed June 22, 1984

IN THE UNITED STATES DISTRICT COURT FOR

THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

FREEMAN M. COOPER )

Plaintiff, )

Vv.

CIVIL ACTION

NO. 80-3393

)

)

)

WILLIAMSON COUNTY BOARD )

OF EDUCATION, et. al., )

)

Defendants. )

FINAL ORDER

Pursuant to the Court’s Order of

May 20, 1983, and its accompanying

Memorandum; the October 6, 1983, Report

and Recommendation of the Master; the

hearing held on March 30, 1984 on the

parties’ objections to the Master’s rec-

ommendations, and the Stipulation of the

parties attached hereto, IT IS ORDERED

AND DECREED that,

- 34a -

The defendant, Williamson

County Board of Education (Board) ,. dis-

criminated against the plaintiff,

Freeman M. Cooper, because of his race

in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq., in the manner in which the

Board selected the principal for Page

High School in 1974. The Board also

discriminated against Mr. Cooper in

violation of Title VII with its demotion

of him from his principalship in 1976.

as The Board, its officers,

agents, employees, successors and all

persons in active concert with them are

permanently enjoined and restrained from

engaging in conduct, acts, or practices

found to be unlawful in the Court’s

Memorandum and Order of May 20, 1983.

- 3384 -

36 It shall be a violation of

this Order from the Board, its officers,

agents, employees, successors, and ail

persons or organizations in active con-

cert or participation with them to deny,

deprive, or to attempt to deprive Mr.

Cooper of the rights and benefits to

which he is entitled by the terms of

this Order.

4. No later than the beginning of

the 1984-85 school year, the Board shall

reinstate Mr. Cooper as a principal,

with all the rights, duties, and respon-

sibilities, at a school which is as com-

parable as possible to the principalship

at Page High School.

$. The Board shall credit Mr.

Cooper with all of the fringe benefits,

e.g., sick leave, annual leave, pension

and/or retirement credits, to which he

- 368 <-

would have been entitled as a principal

had he not been demoted in 1976.

6. The Board shall pay Mr. Cooper

back pay for the period through the end

of the 1983-84 school year. Pursuant to

the equitable power vested in this Court

under 42 U.S.C. § 2000e-5(g), the Board

is ordered to pay Mr. Cooper prejudgment

interest at the rates provided in 28

U.S.C. § 1961, as amended by § 203 of

the Federal Courts Improvements Act of

1982, P.L. 97-164. Pursuant to the

stipulation of the parties, the back pay

award plus interest the Board shall pay

to Mr. Cooper is $79,441.66. Mr. Cooper

is entitled to pcstjudgment'§ interest

until he is paid.

iP The Board Shall pay Mr.

Cooper’s costs of this action in the

amount of $599.50.

= 378 =

8. Pursuant to 42 U.S.C. § 2000e-

5(k), the Board shall pay to Mr.

Cooper’s attorneys the following amounts

as reasonable attorney’s fees: Richard

Manson, $12,090.30; Robert Belton,

$32,394.10.

9. The Court retains jurisdiction

of this action to ensure full compliance

with its judgment.

/S/

THOMAS A. WISEMAN, JR.

UNITED STATES DISTRICT JUDGE