Opposition Brief — Muller v. United States Steel Corp.

LIBRARY ILE

SUPREME COURT, U, B JUL 7 1975

IN THE MICHAEL RODAK, JR..CLE

SUPREME COUR

OF THE

UNITED STATES

No. 74-1285

PAUL MULLER,

Petitioner,

UNITED STATES STEEL CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

MORGAN, SCALLEY

LUNT & KESLER

STEPHEN G. MORGAN

345 South State Street, Suite 200

Salt Lake City, Utah 84111

Attorney for Petitioner

JAMS B. LEF

DANicL M. ALLRED

of and for

PARSONS, BEHLE & LATIMER

79 South State Street

Salt Lake City, Utah 84147

Attorneys for Respondent

*

TABLE OF CONTENTS

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I. THE FIRST QUESTION PRESENTED FOR REVIEW

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A. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THE OPINION BELOW

TURNS UPON THE FACTS OF THE CASE ..

B. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THE OPINION OF THE

COURT OF APPEALS FOR THE TENTH CIR-

CUIT IS NOT IN CONFLICT WITH ANY DECI-

SION OF ANY OTHER CIRCUIT COURT OF

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C. THE WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE PETITIONER’S FIRST

QUESTION DOES NOT INVOLVE AN IM-

PORTANT STATUTORY ISSUE ............

Il. THE SECOND QUESTION PRESENTED FOR RE-

VIEW — THE AWARD OF ATTORNEYS’ FEES .

A. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THE PETITION IS

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B. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THERE IS NO CON-

FLICT AMONG THE CIRCUIT COURTS OF

APPEALS WHICH HAVE ADDRESSED THE

ISSUE THAT ATTORNEYS’ FEES SHOULD

BE AWARDED ONLY TO THE EXTENT THE

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Taste Or AuTHorities

CASES ;

Batiste v. Furnco Construction Corp. , 503 F.2d 447 (7th Cir.

1974), cert. denied, 420 U.S. 928 (1975) .........

Bowe v. Colgate, Palmolive Co., 489 F.2d 896 (7th Cir.

SSO EP er ray Py eee ree ters ert eee

Gerstle v. Continental Airlines, Inc., 358 F. Supp. 545 (D.

OS Se ane ee ey errr ero t rere

Head v. Timken Roller Bearing Co. , 486 F.2d 870 (6th Cir.

SEO EEE ER PL EOE Soy are eee ee

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968)

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (Sth

EE ie wa as Wii Ra Sc Who hn ke weg so ee

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert.

I Fe ec PN EPPTED os icc race sscaess

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002

A a a ee ee ee

United States v. N.L. Industries Inc., 479 F.2d 354 (8th Cir.

le ree a Se rere ee ere eee

Watkins v. Washington, 472 F.2d 1373 (D.C. Cir. 1972)

Williams v. General Foods Corp., 492 F.2d 399 (7th Cir.

pe See ror eee OTE Tae TS TET EE CEE

STATUTES

Title VII, Civil Rights Act of 1964

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BET es ee 1) CRIED 5 6 i eK eens ew nr aves

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6,7

IN THE

SUPREME COURT

OF THE

UNITED STATES

No. 74-1255

PAUL MULLER,

Petitioner,

a 1

UNITED STATES STEEL CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

OLE MN LIH SELON RY tt LIP A HIE Ps en 5

QUESTIONS PRESENTED

The first question presented for review as drafted by Petitioner

is rendered misleading by his attempt to incorrectly trade upon the

term ‘‘constructive discharge’’, a term used by the Court of Appe-

als only because it was sponsored by Petitioner. Because

Petitioner, the Trial Court and the Court of Appeals all used the

term to mean a termination of employment caused by racial dis-

crimination, we submit that the first question presented for review

is more clearly stated as follows:

|. Whether an employee who has been unlawfully

discriminated against with respect to promotion to a

temporary supervisory position must establish a causal

connection between such discrimination and his volun-

tary termination of employment before he can receive

back pay to compensate him for such termination.

STATEMENT OF THE CASE

The Court of Appeals held that U.S. Steel had unlawfully

discriminated against Muller in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e-2(a) (1972) in failing to

promote him to the temporary supervisory position of spell fore-

man, and upheld the award of back pay attributable to that unlaw-

ful failure to promote. However, the Court found that the facts in

the record would not support a finding that Muller's voluntary

termination of his employment was a result of unlawful

discrimination, and so disallowed that portion of the back pay

award attributable to his termination.

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ARGUMENT

I.

THE FIRST QUESTION PRESENTED FOR REVIEW —

THE BACK PAY AWARD

A. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THE OPINION BELOW

TURNS UPON THE FACTS OF THE CASE.

The portion of the award of back pay disallowed by the Tenth

Circuit, which Petitioner here seeks to have reinstated, was not

permitted because the losses for which the award was designed to

compensate were not in fact caused by unlawful discrimination. In

reversing the District Court’s finding , the Court of Appeals noted

that there was a ‘‘dearth of evidence’’ to show that Muller was

constructively discharged. (Appendix to Muller’s Petition, p.

xiv).*

Because Petitioner i: asking this Court to review the facts of

this case to determine whether the discrimination caused Muller to

resign, and because this fact question is of no consequence to

litigants in other actions, the ruling below need not be reviewed by

this Court.

*That the term ‘‘constructive discharge’’ was used by the Court of

Appeals to mean a termination of employment caused by racial

discrimination is made clear by the Court's statement at page v of

its Opinion as appended to Muller's Petition. There the Tenth

Circuit stated that the Trial Judge, the Hon. Willis W. Ritter, had

found that Muller in addition had been constructively

discharged from his job in that Muller’s resignation was

not a matter of free choice; that it resulted from dis-

crimination. [Emphasis added]

It might be pointed out that the Court used the term ‘‘constructive

discharge’ only because it was used in the same fashion by the

Trial Court at Para. 19 of its Conclusions of Law (R. 229) which in

turn were adopted verbatim from the draft of Muller’s attorney.

3

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B. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THE OPINION OF THE

COURT OF APPEALS FOR THE TENTH CIR-

CUIT IS NOT IN CONFLICT WITH ANY DE-

CISION OF ANY OTHER CIRCUIT COURT OF

APPEALS.

Those Circuit Courts of Appeals which have addressed the

issue—the Fourth, Fifth, Seventh and Eighth and District of Col-

umbia Circuits, as well as the Tenth Circuit—have all recognized

that recovery of back pay under Title VII is dependent upon a

finding that unlawful discrimination be the cause of the injury or

loss complained of.

For example, the Fourth Circuit in Robinson v. Lorillard

Corp., 444 F.2d 791, 804, cert. denied 404 U.S. 1006 (1971), a

Title VII race discrimination case, held that

back pay is nota penalty imposed for moral turpitude; it

is compensation for the tangible economic loss

resulting from an unlawful employment practice.

[Emphasis added]

In another racial discrimination case, Peftfway v. American

Cast Iron Pipe Co., 494 F.2d 211 (Sth Cir. 1974), brought under

Title VIL and cited by Muller at page 10 of his Petition, the Fifth

Circuit limited back pay to compensate for injury caused by

unlawful discrimination. It stated at pages 252-53:

Once a court has determined that a plaintiff or com-

plaining class has sustained economic loss from a dis-

criminatory employment practice, back pay should

normally be awarded... .[Emphasis added]

The Seventh Circuit in Bowe v. Colgate, Palmolive Co. , 489

F.2d 896, 903 (7th Cir. 1973), cited and quoted by Muller at page

11 of his Petition, made clear its view that compensable loss must

be caused by unlawful discrimination.

The Eighth Circuit in United States v. N.L. Industries, Inc.,

479 F.2d 354 (8th Cir. 1973) found, inter alia, that there was

discrimination in the employer’s selection of foremen. While

stating that back pay may be an appropriate means of relief, the

court made no award. However, the court added in this connection

at page 380 that employers and unions which had ample opportun-

ity to remedy an unlawful employment practice

should be put on notice that they will be held responsi-

ble for the economic losses accruing to the parties

injured by such unlawful employment practices.

[Emphasis added]

And finally in Watkins v. Washington, 472 F.2d 1373 (D.C.

Cir. 1972), cited and quoted by Muller at page 12 of his Petition,

the District of Columbia Circuit stated that a back pay award to

those who had suffered loss by reason of not being promoted was

proper. The court went on to note with approval at page 1375 that

[i]mplicit in the District Court's conclusion that a back

pay award was appropriate was a determination that

advancement for non-white employees had been

impeded by racial discrimination.... [Emphasis

added]

Though contained in a District Court opinion, the discussion in

Gerstle v. Continental Airlines, Inc., 358 F. Supp. 545, 552 (D.

Colo. 1973) states with more particularity the necessity of the

element of causation mentioned by the Circuits. In this action,

alleging sex discrimination, the Court held that

in order for the aggrieved party to succeed there must be

demonstrated by the required burden of proof the fact

that such discrimination practice or policy was the

cause of the claimed injury. [Emphasis by the court]

The uniformity of the Circuits in this connection conforms

with the general principle applicable in almost every type of

action, that an aggrieved party may recover only if the unlawful

conduct in fact caused the injury complained of.

By reason of the foregoing, it is clear that the opinion of the

Tenth Circuit is not in conflict with the opinions of other Courts of

Appeals and thus does not warrant the review of this Court.

C. THE WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE PETITIONER’S FIRST

QUESTION DOES NOT INVOLVE AN IM-

PORTANT STATUTORY ISSUE.

It is Petitioner, not U.S. Steel, who is attempting to construe

the back pay provision of Title VII, 42 U.S.C. §2000e-5(g)

(1972), ina novel and tenuous fashion by claiming in effect that he

should receive a back pay award to compensate him for loss not

caused by racial discrimination.

If the factual element of causation were to be ignored in

applying this provision, Petitioner would be permitted effectively

to receive punitive or exemplary damages (for which he neither

prayed nor offered proof at trial) as opposed to compensatory

damages. Such an award is at odds with the language of 42 U.S.C.

§2000e-5(g) (1972) and with the interpretation placed thereon by

the various Circuit Courts of Appeals. In Robinson v. Lorillard

Corp., 444 F.2d 791 (4th Cir.), cert. denied, 404 U.S. 1006

(1971), the Court stated at page 804:

{BJack pay is not a penalty imposed as a sanction for

moral turpitude; if is compensation for the tangible

economic loss resulting from an unlawful employment

practice. [Emphasis added]

The Sixth Circuit in Head v. Timken Roller Bearing Co., 486 F.24

870, 876 (6th Cir. 1973), similarly stated that the nature of relief

available under Title VII is ‘‘compensatory as opposed to puri-

tive.’ And the Fifth Circuit stated in this connection in Pertway V.

American Cast lron Co., 494 F.2d 211 (Sth Cir. 1974), at page

253:

As expounded earlier the raison d’etre of a back pay

award is to compensate victims of discrimination for

economic loss, not to punish the discriminating emp-

loyer or insure future compliance. [Emphasis added]

Clearly, the interpretation placed upon 42 U.S.C. §2000e-5(2)

(1972) by Petitioner does not merit serious consideration aid

should not be regarded as an important statutory question requiring

the review of this Court.

Il.

THE SECOND QUESTION PRESENTED FOR REVIEW —

THE AWARD OF ATTORNEYS’ FEES

A. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THE PETITION IS

PREMATURE.

Muller’s Petition that this Court review the sufficiency of the

award of attorneys’ fees is premature because the award has not yet

been made. The Court of Appeals simply vacated the Trial Court’s

initial award of some Fourteen Thousand Dollars ($14,000) with

directions that it be reconsidered by the Trial Court inasmuch as

the damage award was reduced and the class-type injunctive relief

vacated entirely. [Appendix to Muller’s Petition, p. xvi].

Petitioner erroneously argues that the Tenth Circuit’s action

will discourage those who have been victimized by unlawful

discrimination from bringing actions and from acting as private

Attorneys General. His contention assumes, before the fact, that

upon remand the Trial Court will award attorneys’ fees in an

amount that will in fact discourage others. At best, Petitioner’s

request that this Court intervene is premature.

B. A WRIT OF CERTIORARI SHOULD NOT BE

GRANTED BECAUSE THERE IS NO CON-

FLICT AMONG THE CIRCUIT COURTS OF

APPEALS WHICH HAVE ADDRESSED THE

ISSUE THAT ATTORNEYS’ FEES SHOULD

BE AWARDED ONLY TO THE EXTENT THE

PLAINTIFF PREVAILS.

The Court below ruled that the award of attorneys’ fees be

reconsidered by the trial court because Petitioner was reversed in

part on appeal. This ruling 1s in conformity with the decisions of

other Courts of Appeals that attorneys’ fees be awarded under Title

VII only to the extent plaintiff prevails.

For example, in the Title VII action of Schaeffer v. San Diego

Yellow Cabs, Inc. , 462 F.2d 1002 (9th Cir. 1972), the Court stated

at page 1008:

The amount of the award [of attorneys’ fees] should not

be such that it would discourage others from seeking to

attack discriminatory practices. However, the amount

of the award should be proportionate to the extent to

which the plaintiff prevails in the suit. We believe that

the district court should reconsider the award of

attorney’s fees in light of our decision that the plaintiff

is entitled to a small portion of the back pay claimed by

her. [Emphasis added]

The Seventh Circuit followed the same rule in Williams v.

General Foods Corp. , 492 F.2d 399 (7th Cir. 1974) and Batiste v.

Furnco Construction Corp., 503 F.2d 447 (7th Cir. 1974). In

Williams, a sex discrimination case brought under Title VII, the

court stated at page 409 in connection with 42 U.S.C. §2000e-5(k)

(1972), which permits the award of attorneys’ fees, that:

As a general guideline, the amount of an award of

attorneys’ fees should be proportionate fo the extent to

which the plaintiff prevails in the suit. [Emphasis

added]

By reason of the foregoing, it is clear that the Tenth Circuit acted

properly in directing the trial court to reconsider the award of

atttorneys’ fees. Accordingly, the action of the Court below does

not warrant review by this Court.

We might add here that Petitioner's argument that the action of

the Court of Appeals will discourage others from acting as private

Attorneys General is without merit in any event. This is so because

Petitioner did not properly act as a private Attorney General for the

benefit of others.* He acted for himself only. He brought an

individual action, as opposed to a class action, and did not seek

injunctive relief for himself. Accordingly, the Court of Appeals

properly vacated the class-type injunctive relief awarded by the

Trial Court. (Appendix to Muller’s Petition, p. xv).

* All cases cited by Petitioner which discuss plaintiff’s role as a

private Attorney General and all similar cases reviewed by U.S.

Steel are actions brought for injuctive relief for the benefit of

others similarly situated to plaintiff. E.g., Newman v. Piggie Park

Enterprises, 390 U.S. 400 (1968).

10

CONCLUSION

By reason of the foregoing arguments and authorities, it is

clear that the action of the Court of Appeals in reducing the award

of back pay and in vacating for reconsideration on remand the

award of attorneys’ fees does not present the kind of questions

having importance to anyone other than the parties to this litiga-

tion. We, therefore, respectfully suggest that the questions pre-

sented for review by Petitioner need not be reviewed by this Court,

and that accordingly the Petition for Writ of Certiorari be denied.

Respectfully submitted,

JAMES B. LEE

DANIEL M. ALLRED

of and for

PARSONS, BEHLE & LATIMER

79 South State Street

Salt Lake City, Utah 84147

Attorneys for Respondent