Petition for Writ of Certiorari — Ellis v. Ringgold School District

No.

“—~

Supreme Court, U.S

CLERK

JOSEPH F. SPANION, Jp.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

RUTH ELLIS, Petitioner,

V

RINGGOLD SCHOOL DISTRICT, Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES: COURT OF APPEALS

FOR THE THIRD CIRCUIT

Ruth Ellis

St. Therese Plaza

St. Therese Court

# 612

Munhall, PA 15120

(412) 461-5967

‘ Petitioner Pro Se

QUESTIONS PRESENTED

1. Whether the District Court abused its

discretion in only awarding Petitioner

restitution in the form of back-pay for the years

1974 through 1978 instead of through 1985, the

date of trial, absent any compelling reasons for

such a limitation?

2. Whether the District Court abused its

discretion in failing to order the reinstatement

of Petitioner to her job with the Ringgold School

District when it had been a squarely decided fact

that Petitioner had been the victim of

intentional employment discrimination by reason

of her race?

LISTING OF PARTIES

The parties to the proceedings below were

the petitioner Ruth Ellis and the respondent

Ringgold School District.

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Statute Involved

Statement of the Case

Reasons for Granting Writ

Appendix

Page

10

22

TABLE OF AUTHORITIES

CASES

Page

Albemarle Paper Co. v. Moody, 422 U.S. 405, 95

S.Ct. 2362, 45 L.Ed.2d 280 (1975) Aa; bas OO

Craia v. ¥ & Y¥ Snacks, Inc., 721 F.2d 77 (CA 3a

1983) 14

Darnell v. City of Jasper, Ala., 730 F.2d 653 (CA

lith 1984) 19

Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct.

3057,73 L.Ed.2da 721 (1982) 13

Franks v. Bowman Transportation Co., 424 U.S.

747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) 13,19

Goss v. Exxon Office Systems Co.,747 F.2d 885 (CA

3d 1984) 14, 18

International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d

396 (1977) 13, 19

United States v. Int'l. Union of Elevator

Constructors, 538 F.2d 1012 (CA 3d 1976) 19

Waddell v. Small Tube Products, Inc., 799 F.2d 69

(CA 3d 1986) 15, 16

Vv , 455 0.8. 385, 102 §.Ct. 427, 71

L.Ed.2d 234 (1982) 3, 28

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

RUTH ELLIS, Petitioner,

V

RINGGOLD SCHOOL DISTRICT, Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FCR THE THIRD CIRCUIT

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United

States:

The Petitioner, Ruth Ellis, respectfully

prays that a writ of certiorari issue to review

the judgment of the United States Court of

Appeals for the Third Circuit entered on May 15,

1989. Petitioner's appeal period was extended

for an additional ninety (90) days on August 22,

1989 due to some notice technicalities.

OPINIONS BELOW

The Court of Appeals entered its Memorandum

decision affirming the denial of Petitioner's

request for reinstatement to her employment on

May 15, 1989. A copy of the memorandum opinion

is printed in the Appendix beginning at page la.

A copy of the order denying rehearing is printed

in the Appendix beginning at page 5a. A copy of

the opinion of Judge Gerald J. Webber, dated

February 17, 1988, after remand from the United

States Court of Appeals for the Third Circuit, is

printed in the Appendix beginning at page 7a. A

copy of the opinion of the Third Circuit on the

first appeal to that Court is printed in the

Appendix beginning at page l4a. A copy of the

opinion of Judge Gerald J. Webber, dated January

14, 1987, is printed in the Appendix beginning at

page 28a.

JURISDICTION

On May 15, 1989, the Court of Appeals

entered judgment affirming the denial of

Petitioner's request for reinstatement to her

employment. Petitioner's timely petition for

rehearing was denied by the Court of Appeals on

August 22, 1989. The jurisdiction of this Court

is invoked under Title 28, United States Code,

Section 1254(1)

STATUTE INVOLVED

This case involves the proper measure of

damages when an employer is found to have

Giscriminated against its employee under the

Civil Rights Act of 1964, promulgated at 42

U.S.C. 2000e-5.

STATEMENT OF THE CASE

This action was instituted by the appellant,

Ruth Ellis, against the Ringgold School District

for employment discrimination. The original

complaint was filed on October 12th 1983. An

amended complaint pleading claims for relief

under Title VII for both racially motivated

discrimination and retaliatory action for the

filing of a charge with the EEOC was filed on

January 13, 1984. In its answer to the

petitioner's complaint, the Ringgold School

District demanded a jury trial of the case.

The action came to trial on June 3, 1985.

On June 5th, four special interrogatories were

submitted to the jury. The questions, and the

jury's answers thereto, were as follows:

1. Was the Plaintiff discriminated against

because of her race, in employment by the

Ringgold School District's failure to hire her as

a permanent teacher in 1974-1977?

Answer: Yes

2. Was this discrimination purposefully

directed against Plaintiff because of her race?

Answer: Yes

3. When did Plaintiff know or have reason

to know that she was a subject of purposeful

discrimination?

Answer: August 1976

4. Was Plaintiff reduced in employment

because she filed an employment discrimination

Claim in 1976?

Answer: Yes

After the verdict was returned the jury was

dismissed and the plaintiff was instructed to

submit a claim for remedies, accompanied by

evidentiary documents, setting forth her yearly

loss of earnings from 1974. Petitioner thereupon

filed a statement of proposed remedies,

requesting back-pay for the years 1974-1985 and

reinstatement as a teacher with the Ringgold

District.

On September 24, 1985, the District Court

held a hearing on the remedial issues but did not

enter a judgment order. Sixteen months then

passed.

Finally, on January 14, 1987, the Court

entered an order awarding Petitioner $24,596.68

in back pay. Attorney's fees were also awarded.

Neither the judgment order nor the Court's

memorandum opinion addressed the question of

Petitioner's reinstatement. A notice of appeal

was then filed.

The United States Court of Appeals for the

Third Circuit affirmed the decision of the

District Court in part and remanded for further

findings. On remand, the District Court held

that the failure of the petitioner to mitigate

her damages precluded reinstatement and any award

of damages beyond what had already been awarded.

The Third Circuit then affirmed this position,

and denied rehearing. This petition followed.

\

REASONS FOR GRANTING WRIT

1. THE COURT OF APPEALS! DECISION Is

INCONSISTENT WITH THE RULES PROMULGATED BY THE

UNITED STATES SUPREME COURT

The petitioner, Ruth Ellis, should have been

awarded back-pay for the years 1974 through the

date of the trial action (June 1985), and it was

an abuse of discretion for the District Court to

limit the petitioner's recovery to the years 1974

through 1978.

To find the petitioner's earnings absent

discrimination for each calendar year one merely

divides the salaries paid for the portions of the

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two school years within the particular calendar

year by one-half and add the two quotients

together. In other words, to calculate the

earnings absent discrimination for the calendar

year 1980 one would add 1/2 of the salary for the

1978-80 school year and 1/2 of the salary for the

1980-81 school year. From this sum one would

subtract the petitioner's "actual earnings" for

1980 and the remainder would be the "measure of

restitution" for 1980.

Upon applying this equation to each of the

years at issue (1974-1985) and then totalling the

losses sustained over this period, one arrives at

a "total loss" of $109,942.92. Such should have

been the amount awarded the petitioner for her

backpay losses.

The District Court never disputed the

accuracy of the petitioner's analysis, finding

that the data thereon, at least through 1979, was

“reasonably accurate."

-ll-

The United States Supreme Court enunciated

the policies underlying the remedial provisions

of Title VII in bema aper Co. v. Moody,

422 U.S. 405, 95 §.Ct. 2362, 45 L.Ed.2d 280

(1975), by stating:

It is...the purpose of Title VII to

make persons whole for _ injuries

suffered on account of unlawful

employment discrimination. (45 L.Ed.2d

at 297)

The Court proceeded to quote from a much

earlier opinion:

"(t)he general rule is that when a

wrong has been done, and the law gives

a remedy, the compensation shall be

equal to the injury. The latter is the

standard by which the former is to be

measured. The injured party is to be

placed as near as may by, in the

situation he would have occupied if the

wrong had not been committed." Wicker

, 6 Wall 94, 99, 18 L.Ed. 752

(1867) (45 L.Ed.2d at 297)

Regarding back-pay awards in Title VII cases

the Court was very plain:

The power to award back-pay was

bestowed by Congress, éS part of a

complex legislative design directed at

a historic evil of national

- 12 -

proportions. A court must exercise

this power "in light of the large

objectives of the Act." (45 L.Ed.2d at

296)

Moreover - and in view of the finding of

purposeful racial bias here, quite pertinent to

the instant matter - the Court stated:

Where an employer has shown

bad faith-by maintaining a

practice which he knew to be

illegal or of a highly

questionable legality~--he can

make no cla‘ms whatsoever on

the Chancellor's conscience.

(45 L.Ed.2d at 296) n

Subsequent Supreme Court opinions have

sustained the views and policies expressed in

Albemarle, supra. Franks v. Bowman

Transportation Co., 424 U.S. 747, 96 S.Ct. 1251,

47 L.Ed.2d 444 (1976); International Brotherhood

of Teamsters v. United States, 431 U.S. 324, 97

S.Ct. 1843, 52 L.Ed.2d 396 (1977); Ford Motor Co.

¥. EEOC, 458 U.S. 219, 102 §.Ct. 3057, 73 L.Ed.2d

721 (1982); Zipes v. TWA, 455 U.S. 385, 102 S.Ct.

1127, 71 L.Ed. 2d 234 (1982).

Further, this Court has recognized the

significance of the backpay remedy vis-a-vis the

policies of Title VII. In Craig v. ¥Y & Y Snacks,

inc., 721 F.2d 77 (CA 3d 1983), the Court wrote;

The award of back pay is not

left to the unbridled

discretion of the trial court

but instead has been made the

presumptive remedy for

employment discrimination...

because such a decision

implicates legal and policy

considerations. (721 F.2d at

85)

The question of uncertainty in calculating

back-pay awards was addressed in Goss v. Exxon

Office Systems Co., 747 F.2d 885 (CA 3d 1984)

where the Court said:

The risk of lack of certainty

with respect to projections

of lost income must be borne

by the wrongdoer, not the

victim. (747 F.2d at 889)

With respect to the effect the petitioner's

conduct should have upon a Court's Title VII back

pay award, this Court has stated:

Although back pay is an

equitable remedy and its

award is subject to the

discretion of the Court, the

court may not bar plaintiff

when his conduct was

reasonable under the

circumstances. Waddell v.

Small Tube Products, Inc.,

799 F.2d 69, at 78 (CA 3d

1986).

Each of the above statements of policy

of law plays a role in the proper disposition of

this case.

2. THERE WAS AN ABUSE OF THE DISTRICT

COURT'S DISCRETION

In ruling that Petitioner was only

entitled to back-pay for the years 1974-1978 the

trial court focused upon three points. First,

that she resigned from a teaching position she

obtained with a private academy in 1980. Second,

that she did not apply for teaching positions

“with several neighboring school districts." And

third, that the state job service had no record

of an employment application for Miss Ellis "on

file earlier than 1984."

Yet in setting forth its reasons for

curtailing Petitioner's back-pay recovery, the

Court omitted certain compelling counterpoints.

With respect to Petitioner's resignation from

Tolatr Academy, it should be noted that the

academy is located in the East End of Pittsburgh,

more han twenty-five miles from Petitioner's

home; that she was forced to rely on bus

transportation in commuting to the school; and

that she was therefore, constrained to be away

from home from 6:00 a.m. until after 6:00 p.m.

Surely a resignation under those conditions is

“reasonabie under the circumstances." Waddell v.

Small Tube Products Inc., supra, 779 F.2d at 78;

hence, that resignation should not mitigate

against the petitioner's full recovery of backpay

here.

As to the second point, it is clear that the

petitioner did in fact apply for positions with

other school districts. But after receiving no

responses to her initial applications - and being

aware of the attitude toward blacks which

prevailed in the area - she became discouraged

with finding a teaching position in Washington

County.

Finally, with regard to the filing of an

employment application with the state job

service, it is common knowledge that such

services are ineffective in placing applicants

and in the majority of cases serve only to

qualify applicants for unemployment compensation.

Furthermore, it is undisputed that

Petitioner did engage in least parttime

employment as a cleaning woman during the period

in question, work which would hardly be

appetizing to a shirker. Indeed she has been

employed throughout her entire adult life.

It must be remembered that the Ringgold

School District was the wrongdoer here. After a

fair presentation of the evidence on liability,

Ringgold was found to have "purposefully"

discriminated against the petitioner "because of

her race." "The risk of lack of certainty with

respect to the projections of lost income must be

borne by the wrongdoer, not the victim." Goss v.

Exxon Office Systems Co., supra, 747 F.2d at 889.

And as the wrongdoer, the Ringgold District

should "make no claims whatsoever on the

Chancellor's conscience." Albemarle Co. v.

Moody, supra, 45 L.Fd.2d at 299

3 THE DISTRICT COURT SHOULD HAVE ORDERED

THE RINGGOLD SCHOOL DISTRICT TO

REINSTATE RUTH ELLIS AS A PERMANENT

ELEMENTARY SCHOOL TEACHER WITH

SENIORITY RIGHTS RETROACTIVE TO 1974.

Following the trial on liability, Ruth Ellis

requested the District Court to order her

reinstatement as a permanent elementary school

teacher with the Ringgold District with seniority

retroactive to 1974. Inasmuch as it was found

that Miss Ellis was the victim of employment

discrimination dating to 1974 as well as having

been retaliated against for the filing of an

administrative charge, such an order should have

been entered.

Reinstatement with retroactive seniority

rights is a recognized Title VII remedy. Franks

v. Bowman Transportation Co., 424 U.S. 747, 96

S.Ct. 1251, 47 L.Ed. 444 (1976); International

Brotherhood of Teamsters v United States, 431 U.S

324 07 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Zipes

v. TWA, 455 U.S. 385 102 S.Ct. 1127, 71 L.Ed.2a

234 (1982); United States v. Int'l. Union of

Elevator Constructors, 538 F.2d 1012 (CA 3a

1976). Indeed at least one Court has called

reinstatement a "presumptive" remedy in Title VII

cases, Vv sper la., 730 F.2a

653 (CA llth 1984), saying:

..- reinstatement is a basic element of

the appropriate remedy in wrongful

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discharge cases and except in

extraordinary cases, is required...The

rule of "presumptive reinstatement" in

wrongful discharge cases follows the

notion that money damages will seldom

suffice to make whole persons who are

unlawfully discriminated against in the

employment environment. (730 F.2d at

655)

In other words, an order granting backpay

does not adequately redress the wrong done a

victim of discrimination. Something more is

needed. And that something more is an order

commanding the employer to put the employee into

the position he or she would have been in had

there been no discrimination.

Notwithstanding the petitioner's specific

prayer for reinstatement, the District Court did

not address the question of reinstatement in its

Opinion. Thus the appellant has been left

without a statement of the Court's rationale for

denying reinstatement.

It certainly cannot be argued that Miss

Ellis is somehow ineligible for a teaching

position. For the evidence adduced in court

Clearly speaks to the contrary. It is therefore

suggested that Miss Ellis should have been

granted reinstatement with seniority retroactive

to 1974 and that the District Court abused its

discretion in failing to grant reinstatement.

CONCLUSION

For the reasons stated, the Petition for

Writ of-Certiorari should be granted.

Respectfully Submitted,

234

Ruth Ellis, Petitioner

APPENDIX

ON_O COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3164

RUTH ELLIS, Appellant

Vv

RINGGOLD SCHOOL DISTRICT, Respondent

Filed May 15, 1989

Appeal from the United States District Court for

the Western District of Pennsylvania

(Civil No. 83-2617)

District Judge: Honorable Gerald J. Weber

Submitted Under Third Circuit Rule 12(6)

May ll, 1989

PRESENT: SEITZ, COWEN and GARTH, Circuit Judges.

eR Si fe a

}

- MEMORANDUM OPINION OF THE COURT

SEITZ, Circuit Judge.

This is the second appeal by plaintiff, a

former elementary school teacher, based on her

race discrimination charge against the Ringgold

School District.

Plaintiff obtained a jury verdict in her

favor on the liability issue. The damage claim

was then decided by the court. The district court

granted limited back pay and plaintiff appealed.

She contended that the back pay was inadequate

and that the district court did not address her

request for reinstatement. Our court affirmed

the amount of the back pay awarded but remanded

the reinstatement issue for the district court to

determine. Vv S choo ist., 832

F.2d 27 (3d Cir. 1987). On remand the district

court denied reinstatement, and denied front pay

- 2a -

as an alternative, and this pro se appeal

followed.

The district court denied reinstatement

because of its determination that the

relationship between the parties was so fractured

that there could be no functional relationship.

We are not prepared to say that its determination

constituted an abuse of discretion on this record

despite a preference for reinstatement as a

remedy in this type of case.

The district court also concluded that front

pay was an inappropriate alternative because of

Plaintiff's limited failure to mitigate in

connection with her back pay claim.

Although plaintiff did not request front pay

as an alternative to reinstatement, we address

that remedy because the district court did so.

We do not believe that failure to mitigate as to

a back pay claim is necessarily dispositive of a

front pay claim for damages as an alternative to

reinstatement. After all, front pay deals,

presumably, with the time after a determination

of liability. However, there is no evidence in

the record as to what would be reasonable front

pay and whether-it might be diminished by other

factors. Furthermore, plaintiff did not request

that the recora be supplemented after the remand.

We therefore conclude on this record that no

factual basis was developed for awarding front

pay. Consequently, the order of the district

court will be affirmed on that ground.

To the Clerk of the Court:

Please file the foregoing memorandum opinion

LZs/

Circuit Judge

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-3164

RUTH ELLIS,

Appellant

Vv.

RINGGOLD SCHOOL DISTRICT,

SUR PETITION FOR REHEARING

BEFORE: GIBBONS, Chief Judge, HIGGINBOTHAM,

SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG,

HUTCHISON, SCIRICA, COWAN AND NYGAARD, Circuit

Judges, GARTH* AND SEITZ**, Senior Circuit Judges

The petition for rehearing filed by

appellant in the above-entitled case having been

*As to panel rehearing.

**Since the hearing of this case, Judge

Seitz has taken senior status.

submitted to the judges who participated in the

decision of this court and to all the other

available circuit judges of the circuit in

regular active service, and no judge who

concurred in the decision having asked for

rehearing, and a majority of the circuit judges

of the circuit in regular active service not

having voted for rehearing by the court in banc,

the petition for rehearing is denied.

By the Court

Ls/

Circuit Judge

Dated: August 22, 1989

OPINION OF THE DISTRICT COURT

In the United States District Court

For the Western District of Pennsylvania

RUTH ELLIS

Plaintiff

Civil Action

No. 83-2617

RINGGOLD SCHOOL DISTRICT

Defendant

eee ee ee ee ee eee ee ee

:

WEBER, D.J.

After a Jury verdict in plaintiff's favor on

liability in this race discrimination suit, the

issue of damages was tried to the Court. We

subsequently issued an Opinion and Order in which

we concluded that plaintiff was entitled to back

Pay for several years, but by her failure to

mitigate damages, she had forfeited any right to

further relief.

Plaintiff, unsatisfied with a judgment for

back wages and attorney's fees, filed a pro se

notice of appeal, apparently against the advice

of her trial counsel. On appeal, the circuit

affirmed our factual and legal determinations on

back pay and plaintiff's failure to mitigate, but

noted that we had not specifically addressed

plaintiff's claim for reinstatement. Therefore,

the matter was remanded for consideration of

reinstatement as an appropriate remedy.

We rely on the existing record and the

briefs previously submitted by the parties on

reinstatement. We have seen no need for

additional submissions on remand and neither side

has requested opportunity to add to the record or

briefs.

Reinstatement is of course an equitable

remedy, within the discretion of the court. It

is a favored remedy in a Title VII action and

Should be awarded where appropriate.

In this case though, we have already

determined that plaintiff failed to satisfy her

obligation to mitigate damages and that

determination has been affirmed on appeal.

Defendant demonstrated that plaintiff voluntarily

quit one job,' failed to apply for teaching jobs

in neighboring school districts, and failed to

maintain a job application with the Pennsylvania

Unemployment Office.

These omissions not only cost plaintiff

her equitable right to back pay, but her right to

reinstatement as well. Plaintiff has no teaching

position today at least in part because she has

not diligently sought to obtain or maintain a

teaching position. We will not alleviate that

condition of her own making by imposing her on

the defendant. Reinstatement is an equitable

l1/ We consider plaintiff's reasons for quitting

this job, the need to ride two buses on a

long commute, to be unpersuasive.

- 9a =

remedy and where plaintiff has failed to satisfy

her obligations she loses the equitable

advantage. She chose to forego certain obvious

avenues to teaching jobs, denying herself the

opportunity to be made whole. For this reason we

conclude, as we did in our prior opinion, that

plaintiff's failure to mitigate results in

forfeiture of all further relief. See, e.g.,

Brito v. Zia Co., 478 F.2d 1200, 1204 (10th Cir.

1973).

Reinstatement is also inemeccoriats

where the relationship between the parties is so

strained as to effectively preclude a functional

work relationship. Here, the antagonism and

personal animosity between the litigants has been

Plainly evident at both stages of the trial.

This was not merely the contentiousness of

Competing litigants but earnest and deep-set

Personal bitterness which has always bubbled at

Or near the surface. Such emotions would be

counterproductive in any employment setting, but

could carry disastrous results in a

teacher/administration relationship, to the

considerable detriment of the school and its

children. Plaintiff would chafe at every

instruction or criticism and, school

administration would bristle at the first sign of

resistance. In the face of the high degree of

personal animosity here, and in the absence of

any injunctive direction that would insure peace,

we must conclude that reinstatement is not a

viable remedy here. Front pay is-~ an

inappropriate alternative because of plaintiff's

failure to mitigate.

Finally, we note that defendant demonstrated

at trial that there were no spenings available

with the District at that time. Only one new

teacher had been hired in the 3 previous years,

and that one was part of settlement of a tenure

lawsuit. However, we do not know what current

prospects are for reinstatement, and given our

decision above, we do not believe it necessary to

ascertain them at this time.

Finally, we note that plaintiff has filed a

petition seeking an additional award of

attorney's fees for time spent on appeal.

Although plaintiff succeeded in having her case

remanded to us, plaintiff has ultimately failed

on the reinstatement issue. Because plaintiff

has not prevailed on this issue, an award of fees

is not appropriate.

An appropriate order will be entered.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUTH ELLIS )

Plaintiff )

)

Vv. ) Civil Action

) No. 83-2617

RINGGOLD SCHOOL DISTRICT )

Defendant )

OBRERB

- l2a -

AND NOW, in accord with the

accompanying Opinion, it is hereby ORDERED:

1) Plaintiff's claim for

reinstatement is DENIED.

2) Plaintiff's Notion for Attorney's

Fees is DENIED.

3) The Clerk is DIRECTED to mark this

matter CLOSED.

so ORDERED this day of 17th

February,1988.

Ls

GERALD J. WEBER

United States District Judge

cc: Paul J. McArdle, Esq.

1001 Manor Building

564 Forbes Avenue

Pittsburgh, PA 15219

George B. Stegenga, Esq.

Washington Trust Building

Washington, PA 15301

-l3a-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-3092

RUTH ELLIS,

Appellant

Ve

RINGGOLD SCHOOL DISTRICT,

Appellee

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

(D.C. Civil No. 83-2617)

Submitted Pursuant To Third Circuit Rule 12(6)

August 19, 1987

Before: GIBBONS, Chief Judge,

and WEIS, Circuit Judge, and

KELLY. *District Judge

Filed October 29, 1987

ed The Honorable James McGirr Kelly, United

States District Judge for the Eastern District of

Pennsylvania, sitting by designation.

- 148 -

,t2iS eete?i

J « » Oy naviyeane

rat |

Paul J. McArdle, Esquire

1001 Manor Building

Pittsburgh, PA 15219

Attorney for Appellant, Ruth Ellis

George B. Stegenga, Esquire

516 Washington Trust Building

Washington, PA 15301

Attorney for the Appellee, Ringgoid School

District

OPINION OF THE COURT

WEIS, Circuit Judge.

After finding that defendant had

discriminated against plaintiff when it declined

to hire her as a permanent teacher, the district

court granted partial back pay but failed to

address her request for reinstatement. We will

remand for a ruling on that issue. Furthermore,

we observe that accepting employment in another

field may be consistent with a duty to mitigate

F

b

damages and not’ necessarily evidence of

abandonment of one's profession.

Responding to special interrogatories, a

jury found that defendant school district had

been guilty of racial discrimination when it did

not hire plaintitf as a permanent teacher in

1974. In a bench trial she was awarded

$24,596.68 in lost earnings and $7,734.95 in

attorney's fees.

In 1974 after receiving a provisional

teaching certificate, plaintiff applied for a

full-time teaching position with the Ringgold

School District near her home in Donora,

Pennsylvania. She was accepted as a "full-time

substitute” and taught in the elementary school

for the 1974-75 and 1975-76 terms. In August

1976, after a third denial of full-time status,

Plaintiff filed complaints with the EEOC and the

Pennsylvania Human Rights Commission. The school

- 16a -

district thereafter gave her only fifteen days of

work as part-time substitute.

In 1978 plaintiff found employment at a

munitions plant and continued there until it

closed in 1980. Her salary exceeded what she

would have earned as a full-time teacher. In 1981

she taught at a private academy in Pittsburgh,

but left after one semester because the position

required that she commute fifty miles daily.

Thereafter, until trial, plaintiff worked as a

janitress and received compensation for acting as

a foster parent. She also received twelve credits

for post-graduate work she completed.

The court found that the difference between

her actual earnings and what she would have

received as a full-time teacher at Ringgold

between 1974 and 1978 amounted to $24,596.68.

Defendant does not dispute that calculation.

Plaintiff made no claim for back pay during the

period she worked at the munitions factory. No

- 17a -

recovery was allowed for lost earnings after

1980.

At the conclusion of the evidence on

damages, the trial judge commented, "Everyone

will recognize that the testimony of the

plaintiff on her obligation to mitigate has been

very weak, and the testimony of the plaintiff on

what amount she earned from other sources is weak

and not very credible." In his memorendum

opinion the judge wrote: "Plaintiff's voluntary

relinquishment of a teaching position and her

failure to explore several obvious avenues to

employment preclude recovery for back pay

following her lay off in 1980." The opinion did

not discuss the plaintiff's request § for

reinstatement, and the final judgment did not

include any reference to the subject.

Plaintiff did not file any request for

modification of the judoment in the district

court but instead appealed to this court. On

- 18a -

>

#ppeal she contends that the district court erred

in denying back pay through the date of es eek

and in failing to direct reinstatement.

Once the jury found discrimination under

Title VII of the Civil Rights Act of 1964,

plaintiff became entitled to an appropriate

remedy under 42 U.S.C. §2000e-5(g). The statute

provides that the court may “order such

affirmative action as may be appropriate, which

may include, but is not limited to, reinstatement

---with or without back pay..., or any other

equitable relief as the court deems appropriate."

However, a plaintiff is required to mitigate

damages: “Interim earnings or amounts earnable

with reasonable diligence by the person or

persons discriminated against shall operate to

reduce the back pay otherwise allowable."

In Waddel) v. Small Tube Products, Inc., 799

F.2d 69, 78 (3d Cir. 1986), this court concluded

that "[(ajlthough back pay is an equitable remedy

- 19a -

and its award is subject to the discretion of the

district court, the court may not bar plaintiff

when his conduct _was reasonable under the

circumstances." But in Craig v. Y & Y Snacks,

721 F.2d 77, 82 (3d Cir. 1983), we observed that

the "statute does provide for a deduction from a

back pay award for ‘Interim earnings’ or ‘amounts

earnable with reasonable diligence.’ [citation

omitted] Thus, a duty to mitigate damages is

incorporated."

The district court applied the correct legal

principles in considering the back pay award;

therefore the plaintiffs objection to the issue

on the amount of the judgment rests on factual

findings which we may not overturn unless we are

convinced they are clearly erroneous. Fed. R.

Civ. P. 52. This is true particularly when, as

here, the trial court based its findings on the

credibility of a party. The judge's comments at

the conclusion of the testimony reflected his

- 20a -

reservations about the plaintiff's credibility

when testifying about employment after 1980. On

this record we cannot say that the district

court's findings are clearly erroneous and

therefore we must affirm the judgment on back

pay.

The district court, however, did not resolve

the reinstatement issue. The evidence established

that at the time of trial plaintiff was qualified

to teach in the Commonwealth of Pennsylvania.

Her post-graduate studies, through which she

earned an additional twelve credits at an

accredited university, demonstrated her desire to

continue in that field.

The school district contends that plaintiff

abandoned her profession in 1978 when she took a

higher paying position in industry, and therefore

the trial court did not abuse its discretion in

failing to direct reinstatement. The argument

would have greater force if, in fact, the court

- 21a -

had denied reinstatement. But the district judge

did not discuss the subject. Silence in these

circumstances does not amount to a finding of

abandonment, nor even a ruling that reinstatement

was refused. Failure to address the issue was

most likely an oversight, which could have been

called to the trial judge's attention by a motion

for modification of the judgment under Fed. R.

Civ. P. 59.

As noted earlier, plaintiff was responsible

for mitigating her damages by seeking other

employment. That obligation compels a plaintiff

to seek “amounts earnable with reasonable

Giligence." Craig v. ¥Y & ¥Y Snacks, 721 F.2d at

82. The duty of mitigation may require that a

plaintiff accept a lower paying position if one

equivalent to that from which she was barred is

unavailable. Ford Motor Company v. EEOC, 458

U.S. 219, 231 n.6 (1982).

- 22a -

Standing alone, the fact that a plaintiff

takes a job in an unrelated field to meet her

obligation of mitigation should not be construed

as a voluntary withdrawal from her former

profession. Otherwise, a plaintiff would be put

in the intolerable position of choosing between

foregoing a source of earnings during the interim

before trial or risking an adverse finding on

abandonment of her profession.

Such a rule would also work to _ the

disadvantage of employers because the scope of

the mitigation obligation necessarily would be

relaxed. It is conceivable that a plaintiff,

wronged by discrimination, would decline to take

a job that would substantially mitigate damages

because such employment could be construed as an

abandonment of her former vocation. Thus the

abandonment argument, which the school district

advances, would place plaintiff in an untenable

economic position at the same time that it

- 23a -

Giscourages efforts at mitigation. To prove

abandonment of a profession, defendant must show

more than that plaintiff merely secured

aiternative employment.

Reinstatement is the preferred remedy to

avoid future lost earnings. Maxfield v. Sinclair

Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert.

denied, 474 U.S. 1057 (1986). It is an obvious

form of relief to make the plaintiff whole and to

relieve the plaintiff of the effects of

discrimination. Although within the discretion

of the district court, a reinstatement order

should be considered when requested by the

plaintiff and when circumstances warrant its

award. See Garaza v. Brownsville Independent

Sch. District, 700 F.2d 253 (5th Cir. 1983). See

also Protos v. Volkswagen of America, Inc., 797

F.2d 129 (3a Cir. 1986) (court ordered

reinstatement as remedy for violation of Title

VII by employer who failed to reasonably

- 24a -

accommodate plaintiffs religious practices),

cert. denied, 107 S. Ct. 474; Johnson v. Orr, 776

F.2d 75 (3d Cir. 1985) (reinstatement denied

because plaintiffs no longer satisfied federal

statutory requirement that they remain members of

military unit), cert. denied, 107 S. ct. 107

(1986). However, the court may deny

reinstatement to a plaintiff when, for example,

animosity between the parties makes such a remedy

impracticable. Berndt v. Kaiser Aluminum & -

Chemical Sales, Inc., 789 E.2d 253, 261 (3rd Cir.

1986). Because the record does not reveal the

district court's views on reinstatement, we shall

remand the case so that the issue may be

addressed.

Related to a reinstatement order is the

question of seniority. In Franks _v. Bowman

Transp. Co., 42 U.S. 747, 771 (1976), the Court

determined that seniority can be denied by the

district court “only for reasons which, if

- 254 -

applied generally, would not frustrate the

central statutory purposes of eradicating

discrimination throughout the economy and making

persons whole for injuries sufferec through past

discrimination.” But the Court cautioned: "We

are not to be understood as holding that an award

of seniority status is requisite in all

circumstances. The fashioning of appropriate

of the district courts." Id. at 770. It follows

~--

wee

-

Schcol District, the question of retr

oO

active

seniority should also be resolved.

The judgment of the district court in the

amount of $24,596.68 and the order directing the

payment of attorney's fees will be affirmed. The

case will be remanded so that the district court

may determine whether to direct reinstaterent

~ 26a -

and, if s0, whether to award retroactive

seniority as well.

A True copy:

Teste:

Clerk of the United State Court of Appeals

for the Third Circuit

- 27a -

ON ISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUTH ELLIS

Plaintiff

Vv. Civil Action

No. 83-2617

RINGGOLD SCHOOL DISTRICT

Defendant

MEMORANDUM OPINION

WEBER, D.J.

Plaintiff alleged discrimination in hiring

for elementary school teacher. Following a jury

verdict in plaintiff's favor on liability

grounded solely on Title VII, we held a non-jury

trial on damages. Significant questions were

raised concerning plaintiff's efforts at

mitigation and her certification for a teaching

- 28a -

position.’ We conclude that while plaintiff is

entitled to back pay for the school years from

fall 1974 to spring 1979, plaintiff's failuret

O

make substantial efforts to mitigate damages

after that time precludes further' recovery.

Plaintiff was hired in August 1974 as a

substitute teacher. She taught full-time as a

substitute in the 1974-75 and 1975-76 school

years, but worked only 15 days in 1976-77.

During this period she was passed over for a

permanent position. The jury concluded that the

failure to hire plaintiff as a permanent teacher,

and the reduction in work in 1976-77, were

discriminatory.

1 On the record before us we conclude

that plaintiff's certification did not expire

prior to 1979 and because of our findings on the

mitigation issue, there is not need to consider

the certification issue for the period after

1979.

- 29a -

Based on the jury's finding that she should

have been hired as a full-time teacher in fall

1974, plaintiff is entitled to the difference

between what she would have earned in that

position and what she earned in actual fact.

Exact dollar amounts are difficult to come by, in

part because plaintiff had outside unreported

income, and in part because we are comparing tax

year earnings with school year pay rates.

However, plaintiff's estimation of loss for the

period 1974 to 1978, contained in plaintiff's

proposed remedies, appears to be reasonably

accurate. The amount of the loss:

1974 $ 1,470.00

1975 1,375.00

1976 5,527.50

1977 9,947.00

1978 _6,277.18

Total $24,596.68

Plaintiff makes not claim for back pay in

1979 because she obtained employment in a

Sahas

,

asuecet

rita

munitions factory which paid more than she would

have earned teaching. Sometime in 1980 that

plant closed. Plaintiff was laid off and drew

unemployment compensation.

Plaintiff's effort at mitigation after 1980

is the most significant issue in this litigation.

It is clear that she did secure a teaching

position with a private academy in 1980, but she

admits that she quit that job because she had to

take two buses to get to and from work. It is

also clear that plaintiff failed to apply for

teaching positions with several neighboring

school districts. Finally, the state job service

office had no records of an_ employment

application on file earlier than 1984, indicating

at the least that plaintiff failed to timely

renew her application with that agency or at

worst that she never filed one.

Plaintiff's voluntary relinquishment of a

teaching position and her failure to explore

- 3la -

several avenues to employment preclude recovery

for back pay following her lay-off in 1980.

Accordingly, judgment will be entered in the

amount of $24,596.68, representing back pay for

fall 1974 to spring 1979.

We have also received plaintiff's petition

for attorney's fees. The fee request is

reasonable in this type of case and fees and

costs will therefore be awarded in the amount of

$7,734.95.

~ 32a -

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUTH ELLIS

Plaintiff

Civil Action

No. 83-2617

RINGGOLD SCHOOL DISTRICT

Defendant

ORDER

AND NOW, in accord with the

accompanying Memorandum Opinion, IT IS ORDERED

that JUDGMENT is ENTERED in favor of plaintiff in

the amount of $24,596.68. Furthermore, plaintiff

is awarded attorney's fees and costs in the

amount of $7,734.95. The Clerk is DIRECTED to

mark this matter CLOSED.

£0 ORDERED this 14th day of January,

1987.

Ls/

GERALD J. WEBER

United States District Judge

- 33a -

Paul J. McArdle, Esq.

1001 Manor Building

564 Forbes Avenue

Pittsburgh, PA 15219

George B. Stegenga, Esq.

Washington Trust Building

Washington, PA 15301