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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0895%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1005

## Text

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

- 10 -

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

- 19 -

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0895%3A1. Public record. Not legal advice.