Opposition Brief — Great Dane Trailers, Inc. v. Ruffin

Buprame Court, US

FILED

JAN 13 1993

No, 92-2.4 FICE OF THE CLERK

In The

Supreme Court Of The Cited States

OCTOBER TERM, 1992

G RE AT DANE TRAILERS, [INC..

Petitione?

Y.

RONALD RUFFIN,

Respondent.

ON A WRIT OF CERTIORARI TO THE

CNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITIC N

Richard J. Ebbinghouse

GORDON, SILBERMAN.,

WIGGINS & CHILDS, PC

1400 SouthTrust er

Binningham, Aiabarna 35203

(205) 328-0640

Counsel for Resoonaent

.

QUESTIONS PRESENTED

1. When the plaintiff is found to be the victim of a racially

hostile work environment in violation of Title VII and the defen-

dant is enjoined to correct that hostile environment, has the

plaintiff prevailed for purposes of attorney’s fees and expenses?

2. Where the plaintiff reverses the district court's holding that

he was not a prevailing party under 42 U.S.C. § 1988 and the case

is remanded for a hearing on the issue of fees to the district court,

does Farrar v. Hobby, 61 USLW 4033 (1992) require a different

outcome?

ii

LiST OF PARTIESS

The parties to this case in the Courtrt of Appeals were as

follows:

Ronald Ruffin

Great Dane Trailers, Inc.

*32

Kt

TABLE OF CONTENTS

QUESTIONS PRESENTED ................-.--

fg ga, One eer ii

TABLE OF AUTHORITIES .........2ssceceeee liv

COURSE OF PROCEEDINGS ................. l

A. STATEMENT OF THE CASE ............ I

B. STATEMENT OF THE FACTS ........... 2

0 I ee ee ee eee ee 7

I. PLAINTIFF WAS A PREVAILING PARTY

UNDER THE STANDARD IN GARLAND ........ 7

I. PLAINTIFFS WHO OBTAIN INJUNCTIVE

RELIEF ARE ENTITLED TO FEES AND

EXPENSES UNDER 42 USC SECTION 1988..... 9

III. INJUNCTIVE RELIEF [S NOT NOMINAL

RELIEF, BUT RATHER SERVES THE

REMEDIAL PURPOSES OF TITLE VII......... 1S

[V. THE ELEVENTH CIRCUIT OPINION

[IS CONSISTENT WITH THE HOLDING

GS ica dhan ak ckneconseeseseccseees 17

V. APUBLIC PURPOSE IS SERVED

BY ENJOINING RACIAL HARASSMENT...... 18

ee | eer ie reer eee 22

CERTIFICATE OF SERVICE ..........-e0ees: 23

iv

TABLE OF AUTHORITIES

PAGES:

Albemarle Paper Co. v. Moody,

422 U.S. 405, 415, 95 S.Ct. 2362, 2370,

ee & lth) ee 9, 10, 15, 16

Bundy v. Jackson,

641 F.2d 934, 946 n.12 (D.C. Cir. 1981)....... 15, 18

Carey v. Piphus,

435 U.S. 247, 98 S.Ct. 1042,

Ee be, | err 19

Christopher P. v. Marcus,

915 F.2d 794 (2nd Cir. 1990) .... 0. 0c cece, 22

City of Riverside v. Rivera,

477 U.S. 561, 574, 106 S.Ct. 2686, 2694,

91 L.Ed. 2d 466 (1906)... cw cw crc c ce nn eens 19

Dunn v. State of Florida,

889 F.2d 1010, 1013 (11th Cir. 1989)............ Ll

Farrar v. Hobby, 61 LW 4033 (1992) .i, 17, 18, 20, 22

Griggs v. Duke Power Co., 401 U.S. at

Py w: RE ie ® . .: Se eee ree 15

Hensley v. Eckerhart,

461 U.S. 424, 429, 103 S.Ct. 1933, 1937,

76 L.Ed.2d 40 (1963)... 2. rece ce ceeee: 8, 17, 18, 19

Henson v. City of Dundee,

682 F.2d 897, 904 (llth Cir. 1982)........... 14, 18

Hewitt v. Helms,

482 U.S. 755, 766, 107 S.Ct. 2672,

2676, 96 L.Ed.2d 654 (1987)..........--: 11, 21-22

James v. Stockham Valves & Fittings Co.,

559 F.2d 310, 354 (Sth Cir. 1977), cert. denied,

434 U.S. 1034 (1978). .....- cece ccc es ceeccces 21

Maher v. Gagne,

448 U.S. 122, 129, 100 S.Ct. 2570, 2575,

65 L.Ed.2d 653 (1980). .......- eee e cere ecees 11

Meritor Savings Bank v. Vinson,

417 U.S. 57, 106 S.Ct. 2399, 2404-05,

91 L.Ed. 49 (1986)... 2... ccc ccc nccecnees 15, 18

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400, 402, 88 S.Ct. 964, 965 (1968).... 10, 21

Patterson v. McLean Trucking,

109 S.Ct. 2363 (1989) .......- eee cece eee cece 9

Robinson v. Kimbrough,

652 F.2d 458, 465 (Sth Cir. 1980) ...........---- 11

Ross v. Double Diamond, Inc.,

672 F. Supp. 261, 278 (N.D. Tex.)....----- +05 19

Ruffin v. Great Dane Trailers,

969 F.2d 989 (11th Cir. 1992)......... i, 2, 11-12, 21

Sanchez v. City of Miami Beach,

720 F. Supp. 974, 983 (S.D. Fla. 1989).........-- 10

Slade v. United States Postal Service,

952 F.2d 357 (10th Cir. 1991) .......------- eee 22

Texas State Teachers v. Garland Ind. Sch. District,

109 S.Ct. 1486, 1489 (1989) .........- Dy Fe Ge dy oe

vi

Weaver v. Casa Gallardo, Inc.,

922 F.2d 1515 (LUG CR. TPP E ck cc cc sensesncees )

STATUTES

42USC. 8 IMB ai cee eee

Title VII of the Civil Rights Act of Congress

known as the "Civil Rights Act of 1964," as

amended, 42 U.S.C. Section 2000e et seq. ..... passim

No. 92-824

In The

Supreme Court Of The Gnited States

OCTOBER TERM, 1992

GREAT DANE TRAILERS, INC.,

Petitioner,

Vv.

RONALD RUFFIN,

Respondent.

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

OPINIONS BELOW:

The Eleventh Circuit Opinion is reported Ruffin v. Great

Dane Trailers, 969 F.2d 989 (11th Cir. 1992). The district court’s

denial of attorney’s fees and expenses which was reversed by the

Eleventh Circuit is found in Appendix A-35 - A-36. The district

court’s findings of fact and conclusions of law dictated into the

record are found at Appendix A-8 - A-34.

STATEMENT OF THE CASE

The Eleventh Circuit reversed the district court’s holding that

the plaintiff was not a prevailing party under 42 U.S.C. § 1988.

After trial of the plaintiff's Title VII claims, the district court had

found that the defendant violated Title VII of the Civil Rights Act

of 1964 by maintaining a racially hostile work environment. Tr.

411-413. A permanent injunction was entered which ordered the

defendant "to take appropriate steps to create a work environment

at its shop in Birmingham, Alabama, that will not be racially

offensive to its black employees, and more particularly that the

defendant take appropnate steps to assure that its employees at

such job site cease using racial slurs, epithets, slang, and jokes

that might be reasonably expected to be offensive to its black

employees". R.1-38; Tr. 413-414. A declaratory judgment was

also awarded. Tr. 413.

The district court, however, denied attorneys’ fees and ex-

penses because he had "won on no central or major or significant

issue being presented". Tr. 414. Besides the challenge to the

racially hostile work environment, the plaintiff claimed that the

racially hostile work environment constituted the chief basis for

challenging the lower pay, work assignments and discipline

received as racially discriminatory. Tr. 400-401, 410-411.

They were alleged to have been caused by, or closely related to.

the racially hostile work environment. Tr. 400-401, 410-411.

The trial court agreed that the other claims of racial discrimination

had to be decided in the context of the racially hostile work

—

2

environment which was found to exist. Tr. 410-411, 398, 401.

The trial court found these to be difficult issues, but ultimately

ruled against the plaintiff on his three claims regarding pay,

discipline and work assignments. Tr. 400-401, 413. As a result,

the court held that the plaintiff was not a prevailing party for fee

purposes because he prevailed on only one of his four claims. Tr.

414.

The Eleventh Circuit Court of Appeals in reversing the tral

court, held that the plaintiff was a prevailing party and that he had

achieved more than a bare declaration that his rights had been

violated. The plaintiff had clearly sought the injunction that he

obtained. Ruffin v. Great Dane Trailers, 969 F.2d 989, 993 (11th

Cir. 1992). Great Dane pursuant to the injunction was required

to be more aggressive in providing black workers with a racially

neutral work environment. The Court of Appeals stated that by

virtue of the injunction, there had been a change in the legal

relationship of the parties, because Great Dane was under a legal

obligation to protect Mr. Ruffin from racist behavior on the job

and if it did not, was subject to civil contempt proceedings by

him. The Court held that under Texas State Teachers v. Garland

Independent School Dist., 109 S.Ct. 1486 (1989) the plaintiff was

a prevailing party and reversed the district court with instructions

to hold an evidentiary hearing on plaintiff's entitlement to fees.

STATEMENT OF THE FACTS

In December, 1987, when Ronald Ruffin, black, opened his

toolbox after lunch, he found a hangman’s noose there. Tr. at 8.

When this occurred, five white workers sitting at the parts counter

began grinning and laughing. Tr. at 7-8. One of them at the

counter was Roger Harris. Tr. at 8. When Ronald Ruffin brought

the hangman’s noose to Roger Harris, Harris took the hang-

man’s noose and put it around Mr. Ruffin’s neck and told

him that "we would just hang us a nigger", referring specifi-

cally to Ronald Ruffin. Tr. at 206, 214. Mark Gallups and Roger

3

Harris had been playing with the hangman’s noose. Tr. at 206.

The district court found that it was prepared of heavy rope and

was put around Mr. Ruffin’s neck by the white mechanic. Tr. at

353, 8, 409. Roger Harris, called by the defendant to testify,

admitted that prior to the day that he put the hangman’s noose

around Mr. Ruffin’s neck he had in the past used the word

“nigger” directed to Mr. Ruffin. Tr. at215. He had also called

Mr. Ruffin a "porch monkey", although he characterized this as

"joking". Tr. at 208.

Racial slurs and a racially charged environment were typical

at the Birmingham Great Dane facility. Dennis Harris, white, a

former mechanic for nine and one half years at Great Dane left

about a year and a half before the trial. “Tr. at 343. He went to

the Keebler Company for an increase in pay and better work. Tr.

at 343. He stated it was very common to hear racial remarks at

breaks when everybody gathered around the parts counter and

had their snacks. Tr. at 352. It was common for a lot of mechanics

to make racial statements, including the term "nigger". Tr. at 344.

He testified that Roger Harris frequently used the word "nigger"

and four other mechanics also used that term. Tr. at 344. The

district court found this to be true. It held the various mechanics,

most of whom were white, engaged on a regular basis in making

racially tainted jokes, slurs and epithets. Tr. at 407.

Dennis Harris stated that many of those statements were said

in front of management of Great Dane. Tr. at 344. This included

statements made in front of Mike Willoughby, the shop foreman,

and also in front of the leadmen, Mark Perry and Will Webb. Tr.

at 345. Some of those statements Dennis Harris heard were said

| Dennis Harris had good skills according to Ronnie Woods, the service

manager, and had always done a good job. Tr. at 267. Ronnie Woods testified

that Dennis Harris had no reprimands nor any type of discipline. Tr. at 267.

Dennis Harris had no “axes to grind” against the company or reason to alter

his testimony. :

when Mike Willoughby was sitting as close as next to the people

making the statements. Tr. at 345. At no time did Dennis Harris

see him take any disciplinary actions for those statements. Tr. at

345. In fact, Mr. Harris had heard Willoughby use the word

“nigger” concerning mechanics that worked there. Tr. at 345.

This included statements such as "that nigger is taking too much

tinic or he’s slow or he don’t know what he’s doing.” Tr. at 345.

Some of those comments Willoughby made were referring to Mr.

Ruffin. Tr. at 346.

Mr. Ruffin testified that Mike Willoughby had been within

hearing when Sam Logan called him a "nigger". Tr. at 100. On

one occasion Sam Logan told Mr. Ruffin to "hurry up, nigger” in

the presence of Mike Willoughby, shop foreman. Tr. at 11. Mr.

Willoughby never took any action aginst Mr. Logan for his racial

statement. Tr. at 12. Mr. Logan frequently made racial statements

to Mr. Ruffin such as calling him a "nigger", the most recent one

occurring three months prior to trial. Tr. at 12, 81. On another

occasion approximately two years earlier, Will Webb, a lead man,

hit the back of the trailer driven by Mr. Ruffin with a sledgeham-

mer and said "Nigger, I didn’t tell you to put it over here." Tr. at

12-13. Mr. Ruffin had reported to Ronnie Woods, the shop

foreman, that he was being called names that he considered racial,

including “nigger”. Tr. at 14. Woods told him that he would look

into it. Tr. at 14. The racial slurs and epithets, however, never

stopped.

Prior to the hangman's noose being put in his tool box, Mr.

Ruffin was assigned to clean out a wrecked trailer. While clean-

ing out wrecked trailers was a part of the job of a mechanic, this

was not any ordinary trailer. He was assigned to clean out a truck

of busted watermelons which was full of maggots. Tr. at 15, 17,

224. Given the other racial slurs he had heard, the significance

of that particular assignment was not lost on him. Beforehand,

either Roger Harris or Mike Willoughby, the shop foreman, said

"that looks like a job for Rondo", meaning Mr. Ruffin. Tr. at 15.

Mr. Willoughby was approximately four feet away from Roger

Harris. Tr. at 99. When Mr. Ruffin told them that he did not think

that was so, they told him to clean it out. Tr. at 16. When Mr.

Ruffin reported to Mike Willoughby that the trailer had maggots

from busted watermelons and asked for a helper to be assigned

to assist him, no one was assigned to help him. Tr. at 17, 99. All

of the helpers at that time were white. Tr. at 17.

Management iad been on notice that employees were making

racial slurs to the black employees. Hosey Abner, a black former

employee, testified that Roger Harris, Sam Logan, and David

Smith, co-workers, used racial slurs such as "nigger" around Mr.

Abner. Tr. at 108-109. These were made by them in front of

Willoughby, Will Webb and also Ronnie Woods. Tr. at 110-111.

This was before November of 1987. Tr. at 114. Troy Smith,

black, testified that he was employed there from january 1990 for

six or seven months as a helper. On one occasion Will Webb hit

his finger with a hammer that Mr. Smith had gotten for him. He

was called "boy" and told that was not the big hammer Webb had

wanted him to get. Tr.at 122. Mr. Smith talked to Mr. Webb

about using the term "boy" and that if he used the term again Mr.

Smith would physically hit him. Tr. at 123, 135. It ended ina

physical confrontation with both employees being suspended two

and a half days. Tr. at 123, 191.

When Mr. Smith made the statement that he would hit Webb

if he continued to use that language with him, Will Webb said,

"that’s all he needed and I was out of here.” Tr. at 123. After

that incident, Troy Smith testified that it was not the same at Great

Dane. He started being drug tested and harassed by Will Webb.

Tr. at 124. Mr. Smith testified that while he was on jobs, he would

be sent to help another employee and told not to clock out on the

job ticket. Later, he would be called to the office to discuss why

he was over the goal hours on the job. Tr. at 129. After the

incident with Will Webb, Ronnie Woods called Mr. Smith into

the office and told him that he needed to see a drastic change in

his performance. Tr. at 124. Given the circumstances of the

situation and the fact that he kept being pulled off of jobs so that

he could not learn them, Mr. Smith resigned rather than be fired.

Mr. Smith also heard racial slurs while he was there. Roger Harris

used the term "black boy” during the course of the day. Tr. at 125.

This would be said to him around Mike Willoughby, the shop

foreman. Tr. at 125. Since it occurred early in the morning

before the shift started, there was no noise that would have made

it difficult to hear. Tr. at 137. Mr. Willoughby, however, took

no corrective action. Tr. at 125. Billy Eaton and Sam Logan

would use the term "nigger." Tr. at 125. Lee Bell also testified

that Roger Harris also made a number of jokes that related to

blacks and whites which were of a racial nature. Tr. at 204.

Mr. Ruffin described the effect the racial slurs and incidents

had on him as a “sort of mental thing.” Tr. 42. It made him think

a lot about the job and also caused him to sometimes feel like he

did not want to go in to work and suffer their abuse. Tr. at 42.

When Mr. Ruffin arrived at work in the morning he would sit in

his car, because he did not want to hear the jokes that were made.

Tr. at 42.

~

The district court found that Mr. Ruffin was offended by those

jokes, slurs and epithets and certainly had a basis for being

offended. Tr. at 407. The district court found that the company

did not provide a sufficiently racially neutral environment for Mr.

Ruffin and other blacks to perform their work. Tr. at 413. It

entered a declaratory judgment that Mr. Ruffin’s right to work

free from a racially hostile environment had been violated. Tr.

at 413. The district court also found that the company’s efforts

had been ineffective to adequately correct the hosule environ-

ment.

7

The district court found that the issue of pay increases and the

resulting promotion was related to the use of racial slurs, jokes,

and incidents. Tr. at 401. The district court found these to be the

more difficult issues before the court. Tr. at 400. It found that

an aspect that was most difficult for the court to deal with was

whether the racially hostile environment contributed to or caused

the inadequacies in performance resulting in a failure to get pay

increases. Tr. at 411. The district court, however, ruled against

the plaintiff on the pay increase — promotion claim. Tr. at 412.

It also ruled against Mr. Ruffin on his disparate discipline and

work assignments claims.

The district court entered a declaratory judgment that the

defendant had violated Title VII by its hostile racial environment.

Tr. at 413. It entered an injunction for the defendant to take

appropriate steps so that the work environment was not racially

offensive. Tr. at 413-414. However, the district court denied

attorneys fees and expenses. Tr. at 413.

ARGUMENT

I. PLAINTIFF WAS A PREVAILING PARTY

UNDER THE STANDARD IN GARLAND

From the very outset of the plaintiff's complaint that he was

subjected to a racially hostile work environment, Great Dane

denied the existence of a racially hostile environment. "Defen-

dant denies that Plaintiff has suffered racial slurs and derogatory

actions from coworkers." Answer, {9. This Court held that "[i]f

the plaintiff has succeeded on ‘any significant issue in litigation

which achieved some of the benefit the parties sought in bringing

suit’ the plaintiff has crossed the threshold to a fee award of some

kind". Texas State Teachers v. Garland Ind. Sch. District, 109

S.Ct. 1486, 1493 (1989). This Court further held that "[t}he

touchstone of the prevailing party inquiry must be the material

alteration of the legal relationship of the parties in a manner which

Congress sought to promote in the fee statute". /@ This Court

explained that "[w]here such a change has occurred, the degree

of the plaintiff's overall success goes to the reasonableness of the

award under Hensley, not to the availability of a fee award vel

non". Id. Stated another way, “the degree of the plaintiff's

success in relation to the other goals of the lawsuit is a factor

critical to the determination of the size of a reasonable fee, not to

eligibility for a fee award at all". Jd at 1492. This Court

expressly rejected any comparative assessment of which form of

relief is more important, primary or central to the action, reason-

ing that:

By focusing on the subjective importance of an issue to

the litigants, it asks a question which is almost impossible

to answer. Is the “‘primary relief sought”’ in a disparate

treatment action under Title VII reinstatement, back-pay.

or injunctive relief? This question, the answer to which

appears to depend largely on the mental state of the

parties, is wholly irrelevant to the purposes behind the fee

shifting provisions, and promises to mire district courts

entertaining fee applications in an inquiry which one

commentator has described as “‘excruciating”. Creating

such an unstable threshold to fee eligibility is sure to

provoke prolonged litigation, thus deterring settlement of

fee disputes and ensuring that the fee application will

spawn a second litigation of significant dimension. In

sum, the search for the “central” and “‘tangential” issues

in the lawsuit, or for the “primary” as opposed to the

“secondary” relief sought, much like the search for the

Golden Fleece, distracts the district court from the pri-

mary purposes behind § 1988 and is essentially unhelpful

in defining the term “‘prevailing party” /d. at 1493.

The plaintiff clearly satisfied the foregoing standard for pre-

vailing party status. The plaintiff gained the injunction and

9

declaratory judgment which he sought in” his complaint.

R.1, p. 4.

‘IL PLAINTIFFS WHO (ohne

INJUNCTIVE RELIEF ARE Ey’) U.S.C. § 1988

FEES AND EXPENSES UNDER

tle VII did not provide a

At the time this case went to trial, Tit

T punitive damages for

means for recovering compensatory _, oreny nn did Tncthon

being subjected to a racially hostile en

' S.Ct. 2363 (1989); cf,

1981. Patterson v. McLean Trucking, 1029: 515 (1th Cir. 1991).

Weaver v. Casa Gallardo, Inc., 922 F.2d al edi ailabl

Declaratory and injunctive relief a.

to the plaintiff to stop incidents consti 78 3 racially nactie

environment, such as the hangman’s -— being = = his

toolbox; placed around his neck; and bo 76, uuecee born

slurs. This Court has directly held that pene ane mn

accompanying monetary judgment is su page : a

prevailing party and have fees awarded. 33 62. 2370. 45 } Ed 4

v. Moody, 422 U.S. 405, 415, 95 S.Ct. | ale p ‘ “ Co iis

280 (1975). The Court reiterated in Alb 47 pis a “calhre

"the great public interest in having injuy tiffs acting as ‘private

could be vindicated only if successful plai a tan fn ah bit Very

attorneys’ general’ were awarded attome, 4 5 :

unusual circumstances". Jd. 422 U.S. at :

2 ‘as this Court held in Albemarle Paper Co., : yen .

cases "should be denied only for reasons which, - : ct ea

not frustrate the central statutory purposes of whole for injuries suffered

eit Oe ee ‘|S. at 412, 95 S.Ct. at 2371.

The Court rejected a "regime of discretion that ae pr =

breaches of duty in situations that cannot be differ. — it iden meena nimaded

U.S. at 417, 95 S.Ct. at 2371. That would be the res, along with an injunction.

where a Judgment of racial harassment is entered

10

The plaintiff's situation here is typical of all racial harassment

claims.” Denial of fees to this plaintiff for achieving an injunction

against a racially hostile work environment will mear: that such

claims cannot be prosecuted on a contingent fee basis and plain-

tiffs will be unable to attract counsel to undertake such claims.

This is exactly what this Court warned against when it held in

Albemarle Paper and Newman v. Piggie Park that injunctive

relief is enough to make the plaintiff's counsel eligible for a fee.

In Albemarle Paper this Court held that "the strong public interest

in having injunctive actions brought under Title VII to eradicate

discriminatory employment practices ... can be vindicated by

applying the Piggie Park standard to the attorney’s fees provision

of Title VII". Jd. The Piggie Park standard on attorney’s fees

requires fees where no monetary remedies are achieved or avail-

able because a plaintiff who "obtains an injunction does so not

for himself alone, but also as ‘a private attorney general’ vindi-

cating a policy that Congress considered of the highest priority”.

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88

S.Ct. 964, 966 (1968).° This Court also held that:

If successful plaintiffs were routinely forced to bear their

own attorney’s fees, few aggrieved parties would be in a

position to advance the public interest by invoking the

injunctive powers of the federal courts. Congress there-

fore enacted the provision for counsel fees -- not simply

to penalize litigants who deliberately advance arguments

‘they know to be untenable but, more broadly, to encour-

age individuals injured by racial discrimination to seek

judicial relief under Title II. /d

See also, Sanchez v. City of Miami Beach, 720 F. Supp. 974, 985

(S.D. Fla. 1989) (Court held that the "[p]laintiff succeeded on the

$ Even the entry of a formal injunction, however, is not always required

as a predicate to becoming a prevailing party for fee purposes. Once a plaintiff

prevails on the merits through a jury verdict it does not matter whether formal

relief is entered or awarded. (continued)

11

central issue in the suit, establishing that there exists a violation

of the Civil Rights Act of 1964").

The Court of Appeals found under the Garland test that Mr.

Ruffin prevailed, because the actual relief on the merits of his

hostile racial work environment claim materially altered the legal

relationship between the parties in a way that directed benefitted

him. First, the defendant who previously denied there was a

racially hostile environment pursuant to the injunction was re-

quired to be more aggressive in providing black workers with a

racially neutral environment. Ruffin, 969 F.2d at 993. The Court

of Appeals found that this undoubtedly affected Great Dane's

behavior toward Mr. Ruffin. /d Furthermore, Great Dane as a

In Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d

653 (1980), this point was made in holding that “[nJothing in the language of

§ 1988 conditions the District Court’s power to award fees ... on a judicial

determination that the plaintiff's rights have been violated”. /d This Court

found that the Congressional history “expressly stated that ‘for purposes of

the award of counsel! fees, parties may be considered to have prevailed when

they vindicate rights ... without formally obtaining relief". /d 448 U.S. at 129

[quoting S. Rep. #94-1011, p. 5 (1976), U. S. Code Cong. & Admin. News

1976, pp. $508, 5512]. In Hewitt v. Helms, 107 S.Ct. 2672, 2676 (1987), this

Court held that "[i}t is settled law, of course, that relief need not be judicially

decreed in order to justify a fee award". Dunn v. State of Florida, 889 F.2d

1010, 1013 (1 1th Cir. 1989), reiterated what the former Fifth Circuit had earlier

concluded:

The Act’s legislative history evinces a clear Congressional intent to

award attorney's fees even when no formal judicial relief is obtained

and no final judicial determination is made on any constitutional

claim. The Senate Report explains that “parties may be considered

to have prevailed when they vindicate nghts through a consent

judgment or without formally obtaining relief". /d (emphasis sup-

plied) [quoting Robinson v. Kimbrough, 652 F.2d 458, 465 (Sth Cir.

1980)).

12

result of the injunction was required to correct the racist behavior

at its jobsite. /d. Mr. Ruffin as a result of the lawsuit could

protect his rights through a civil contempt proceeding if Great

Dane did not comply with the injunction. /d.

An injunction against the racially hostile work environment

in which he was required to work was one of the central remedies,

if not the central one sought in the original Complaint. In three

paragraphs of the Prayer for Relief in the Complaint, two of them

request the very declaratory and injunctive relief that was

awarded. R.1-l, p. 4. The Prayer for Relief in the Complaint

reads as follows:

['V.PRAYER FOR RELIEF

WHEREFORE, the plaintiff respectfully prays that this

Court assume jurisdiction of this action and after trial:

1 Issue a declaratory judgment that the employment

policies, practices, procedures, conditions and customs of

the defendant are violative of the rights of the plaintiff as

secured by Title VII of the Act of Congress known as the

"Civil Rights Act of 1964", as amended, 42 U.S.C. Sec-

tion 2000e et seq.

2. Grant plaintiff a permanent injunction enjoining the

defendant, its agents, successors, employees, attorneys

and those acting in concert with the defendant and at the

defendant’s request from continuing to violate and Title

VII of the Act of Congress known as the "Civil Rights Act

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

3. Enter an Order requiring the defendant to make the

plaintiff whole by awarding him the position he would

have had occupied in the absence of race discrimination,

back-pay (plus interest), compensatory damages, lost sen-

iority, benefits and loss of pension.

13

The plaintiff won the relief sought in paragraphs | and 2 of his

Prayer for Relief. It is impossible to say that such relief is

unimportant or "insignificant" without making a mockery of Title

VII.

The Complaint also specifically alleges that monetary relief

is inadequate to make the plaintiff whole and that injunctive and

declaratory relief is a necessary remedy. R.1-1, p.3. In paragraph

12 of the Complaint it states that:

12. The plaintiff has no plain, adequate, or complete

remedy at law to redress the wrongs alleged herein and

this suit for ... an injunctive and declaratory judgment is

his only means of securing adequate relief. The plaintiff

is now suffering and will continue to suffer irreparable

injury from the defendant’s unlawful policies and prac-

tices as set forth herein unless enjoined by this Court.

R.1-1, p. 3.

The findings below also make clear that the racial harassment

claim was the essential premise of the challenge of plaintiff's pay,

discipline and work assignments. Tr. 397, 400-401, 410-412.

The trial court recognized that these other claims were largely

driven by the racial harassment claim. For example, in regard to

the discriminatory pay claim the district court recognized in its

findings that it was “related” to the harassment claim, because in

order to resolve it the court had to determine whether the perform-

ance deficiencies articulated as the reason for the denial of pay

raises were caused by the racial harassment. Tr. 410-411, 401.

The trial court held that "one of the aspects that is most difficult

for the court to deal with here is a determination as to whether

this racially hostile environment ... contributed to or caused the

inadequacies in performance which in turn have resulted in the

failure to get pay raises". Tr. 410-411. Although the court

eventually decided that the racial harassment did not cause the

performance problems articulated as the basis for the denial of a

14

pay increase, the necessity of deciding that issue as a part of the

pay claim demonstrated that the racial harassment was not only

important in its own right as an independent cause of action, but

was also important as a part of the proof of the other causes of

action.

In order to prove the violation of Title VII fora racially hostile

work environment which the district court found to exist, the

plaintiff had to prove that the harassment was "sufficiently severe

and persistent to affect seriously the psychological well being of

employees". Henson v. City of Dundee, 682 F.2d 897, 904 (11th

Cir. 1982). The plaintiff carried this burden, which is not an easy

thing to do. Once such "severe and persistent" harassment is

proven to "seriously affect the psychological well being” of the

plaintiff, an injunction is necessary to end the harassment and to

allow the plaintiff to work in a racially neutral environment. The

Court of Appeals stated the fact that the court mandated the

implementation of procedures that would ensure against the

reoccurrence of violations was not negated by no monetary relief

being ordered. /d. at 994. The defendant had refused to concede

that a racially hostile work environment existed and that its

actions had been inadequate. A court resolution was required to

settle that dispute. The plaintiff was clearly the prevailing party,

because the court declaration that the defendant violated Title VII

by having such hostile work environment necessarily changed the

legal relationship between the parties. It foreclosed the defen-

dant’s denial of the existence of such racial harassment and the

injunction enjoined it to take "appropriate steps" in the future "to

create a work environment that will not be racially offensive”.

R.1-38.

15

III. INJUNCTIVE RELIEF IS NOT

NOMINAL RELIEF, BUT RATHER

SERVES THE REMEDIAL PURPOSES

OF TITLE VII

The defendant argues this to be an unimportant or nominal

injunction. This reveals its contempt for Title VII and the injunc-

tion that was entered. Such a finding and injunction is not merely

technical, de minimis or unimportant. "The language of Title VII

is not limited to "economic’ or ’tangible’ discrimination.” Meritor

Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2404-05,

91 L.Ed. 49 (1986). “Title VII affords employees the right to

work in an environment free from discriminatory intimidation,

ridicule and insult." /d at 65, 106 S.Ct. 2406. The injunction

against racial harassment and the order "to take appropriate steps

to create a work environment that will not be racially offensive"

necessarily created a "material alteration of the legal relationship

of the parties in a manner which Congress sought to promote in

the fee statute". Garland, supra, 109 S.Ct. at 1493.

The primary objective of Title VII was a prophylactic one:

"It was to achieve equality of employment opportunities

and remove barriers that have operated in the past to favor

an identifiable group of employees over other employ-

ees." Albemarle, supra, 422 U.S. at 417, 95 S.Ct. 2371

(quoting Griggs v. Duke Power Co., 401 U.S. at 429-450,

91 S.Ct. at 853).

[njunctive relief is a primary tool to eradicate illegal hostile

working environments. To characterize such relief as insignifi-

cant is tantamount to a callous disregard toward such things. An

end to such harassment and a guarantee against its recurrence was

the “central issue" and the primary relief sought in the action.

indeed. in most harassment claims it is the only relief possible.

Bundy v. Jackson, 641 F.2d 934, 946 n.12 (D.C. Cir. 1981).

16

After having Great Dane’s denial of racial harassment or a

violation of Title VII rejected by the court below, the legal

relationship of the parties was necessarily changed in the manner

intended by Congress. The defendant contended below that its

conduct did not violate Title VII and has now been told that it

does so in a definitive manner. That is exactly the purpose

intended by Congress in allowing litigation of such claims.

Without such litigation, companies would be free to pretend, as

this defendant did, that nothing more than a pro forma approach

to racially hostile environment is all that is required in response

to severe and persistent harassment. The declaratory judgment

and injunction serve the important corrective function of rejecting

that view and telling this defendant, and others, that the Act is

violated when they knew or should have known of the harassment

and fail to take meaningful remedial action. Paying the fees and

expenses for resolving such disputes is the "spur or catalyst which

causes employers and unions to self - examine and to self -

evaluate their employment practices and to endeavor to elimi-

nate" such practices which will not be done without the risk of

incurring such fees and expenses. cf Albemarle Paper Company,

422 US. at 417-418, 95 S.Ct. 2371 -2372.

Defendant’s argument that it would have been put to the cost

of an appeal that it otherwise would not have to incur by appealing

the injunction is unavailing. D. Pet. at. 11. The plainuff had

already appealed the case. No additional cost would have been

incurred by defendant in appealing the case, since it already had

been appealed. The reality is that the injunction was due to be

entered as a result of the plaintiff’s efforts and no real defense to

its entry could be made.

17

[V. THE ELEVENTH CIRCUIT OPINION

IS CONSISTENT WITH

THE HOLDING IN FARRAR

Farrar v. Hobby, 61 USLW 4033 (1992) does not affect the

holding of the Court of Appeals. First, under the clear holding in

Farrar a plaintiff prevails on the merits when the relief he obtains

changes the legal relationship between them in a way that directly

benefits the plaintiff. Here, it is the injunction to aggressively

eliminate the racially hostile environment which the defendant

denied existed. Farrar recognized that once there has been the

alteration of the relationship, the degree of success goes to the

reasonableness of the fee to be awarded. /d at 4036 citing

Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937,

76 L.Ed.2d 40 (1983). That part has been remanded for the

district court to determine. The Court of Appeals holding is

consistent with Farrar and does not require the review of this

Court.

Second, the Court of Appeals anticipated the holding of

Farrar and stated that this case is different from cases involving

nominal damages, because the injunction materially altered the

relationship between Ruffin and Great Dane in a way that an

award of nominal damages does not. /d. at 994 n. 3. Great Dane

was subject to a contempt proceeding if the racially hostile

environment was not eradicated. Farrar stated that there is a

material alternation of the legal relationship between the parties

when the plaintiff becomes entitled to enforce a judgment, con-

sent decree or settlement against the defendant. Farrar, USLW

at 4036. Having accomplished that, the plaintiff here was a

prevailing party. /d.

Assuming that Farrar is read in the manner the Justice

O’Conner seems to indicate by considering the degree of success

th prevailing party status. the Eleventh Circuit’s holding is sull

consistent. The case still has to be considered in by the district

court in awarding reasonable fees considering the degree of

success under Hensley. This case also is factually distinguishable

in three ways. Farrar v. Hobby was: (1) A suit purely for money

damages ($17 million to remedy the taking of property when a

school was closed); (2) Resulted in an award only of nominal

damages of one dollar when $17 million had been sought (against

one of six defendants); and (3) Served no discernable public

purpose. In the current case, on the other hand it: (1) Was a suit

for injunctive and declaratory relief; (2) Did result in declaratory

and injunctive relief against a racially hostile work environment;

and (3) Served a public purpose, both by affecting the plaintiff in

his work environment and others working there too, by requiring

the defendant to be more aggressive in eradicating the racially

hostile environment.

Vv. A PUBLIC PURPOSE IS SERVED

BY ENJOINING RACIAL HARASSMENT

Serving the public purpose is accomplished by obtaing an

injunction in racial harassment claims where typically there is

no monetary loss that would support an award of back-pay and

there is never any compensatory or punitive damages allowed.

See, Bundy v. Jackson, supra, 641 F.2d at 946 n.12. This Court

and Courts of Appeal have held that these claims are actionable

under Title VII even absent any economic loss. Meritor Savings

Bank v. Vinson, 417 U.S. 57, 106 S.Ct. 2399, 2404-05, 91 L.Ed.

49 (1986), Henson v. City of Dundee, supra. If, however, fees

and expenses are not awardable without a monetary recovery,

then there can rarely, if ever, be a fee and expenses award, because

rarely is there a monetary award in a racial or sexual harassment

case. Like all other Title VII claims, racial and sexual harassment

cannot be challenged in the courts without fee awards, because

the victims of racial and sexual harassment will be unable to

attract counsel to undertake them without such awards. Under

the defendant’s approach, the victims of a hostile work environ-

19

ment will simply not have access to the courts unless they gain a

monetary verdict. See, Hensley v. Eckerhart, 461 U.S. 424, 429,

103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) ("The purpose of §

1988 is to ensure ‘effective access to the judicial process’ for

persons with civil rights grievances".). See also, Ross v. Double

Diamond, Inc., 672 F. Supp. 261, 278 (N.D. Tex.) ("The legisla-

tive history specifically recognizes that many plaintiffs in civil

rights cases have little or no money. In recognition of this fact,

the legislative history goes on to state that if a private citizen

successfully brings suit and forces one to cease violating the civil

rights laws, then the citizen should be able to recover the costs to

vindicate civil rights. The legislative history then goes on to

make it clear that the purpose of allowing a successful plaintiff

to recover reasonable attorney’s fees is to create ’ private attorney

generals’ who will vigorously enforce the civil rights laws".). To

deny Mr. Ruffin fees and expenses is to further victimize him by

aving him bear the cost of having his employer declared to have

violated Title VII by having a racially hostile environment and

having it enjoined. Congress did not intend such a result. City

of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694,

91 L.Ed.2d 466 (1986). "Unlike most private tort litigants, a civil

rights plaintiff seeks to vindicate important civil and constitu-

tional rights that cannot be valued in monetary terms". /d [citing

Carey v. Piphus, 435 U.S. at 266, 98 S.Ct. at 1053-55]. This

Court reminded us again that “Congress has determined that ‘the

public as a whole has an interest in the vindication of the nights

conferred by the statutes over and above the value of a civil rights

remedy to a particular plaintiff” and "{rjegardless of the form of

relief he actually obtains, a successful civil rights plaintiff often

secures important social benefits that are not reflected in nominal

or relatively small damage awards". /d. 477 U.S. at 574-575, 106

S.Ct. at 2694 [quoting in part trom Hensley v. Eckerhart, 461 U.S.

424, 444 n.4, 103 S.Ct. 1933, 1945 n.4, 76 L.Ed.2d 40 (1983)}.

s a

20

The distinction between this case and Farrar is that in Farrar

no public purpose was accomplished. "Given that Jospeh Farrar

got some of what he wanted - one seventeen millionth, to be

precise - his success might be considered material if it also

accomplished some public goal other than occupying the time

and energy of counsel, court, and client." Farrar, supra at 4038

(O’ Conner concurring)(emphasis supplied). No such public goal

was present in Farrar. Here, to the contrary a public purpose was

accomplished by obtaining the injunction which required more

aggressive action to eradicate a racially hostile environment

which black employees had been forced to endure. The prophy-

lactic primary objective of Title VII to remove barriers in em-

ployment was accomplished in this case. No such purpose was

accomplished in Farrar.

The defendant attempts to claim that there has not been a

material alteration of the legal relationship of the parties. This is

not true. Defendant had claimed that Mr. Ruffin had not been

subjected to a racially hostile work environment. Mr. Ruffin had

been subjected to a hangman’s noose being placed around his

neck and was subjected to numerous racial slurs, jokes, and

epithets. The evidence also established that other black employ-

ees had also bee, subjected to slurs and epithets. The Court held

Mr. Ruffin hitd 4een subjected to a racially hostile work environ-

ment. Defendant had contended that it had taken sufficient action

in response to racial slurs, jokes and other actions. The Court

held it had not. Pursuant to the Court’s injunction any further

complaints had to be viewed in a completely different light (much

more seriously by the defendant) and the defendant had to be

more aggressive in eradicating the racially hostile environment.

[f it did not, Mr. Ruffin had an enforceable order which he could

enforce by contempt proceedings.

'f injunctive relief were not necessary to alter the defendant's

conduct, it would not have been entered below. Where there is

21

"no reasonable probability of further noncompliance with the

law", an injunction is not entered. James v. Stockham Vaives &

Fittings Co., 559 F.2d 310, 354 (Sth Cir. 1977), cert. denied, 434

U.S. 1034 (1978). The trial court in the current case specifically

found that the defendant had not taken sufficient voluntary action

to correct the racially hostile work environment and that an

injunction was necessary to provide a "sufficiently racially neu-

tral environment for Mr. Ruffin and other blacks to perform their

work in". Tr. 413. The Court below held that the defendant must

"be more affirmative and more aggressive in its efforts to correct

that environment in the shop". Tr. 414. Defendant did not

challenge the entry of the injunction. If there had in reality been

no basis for its entry, all that would have been required would

have been to cross appeal its entry after plaintiff appealed the

denial of expenses and fees. Defendant did not do so, because

the record fully supported the necessity of entering the injunction.

Thus, the argument that the injunction had minimal significance

particularly when it had not been challenged by the defendant was

untenable. To so hold would have stripped the meaning of the

district court’s determination that there was a racially hostile

environment and the defendant was required to aggressively

eradicate it. Ruffin, 969 F.2d at 995.

Defendant tries to analogize this case to others. Pet. at 20-22.

None of those involved a racially hostile work environment,

obtaining an injunction, or any significant relief as a result of the

litigation. None of them serve to overrule Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402, 88 S.Cv. 964, 965 (1968).

An examination of a few of them shows the distinction. In Hewitt

v. Helms, 482 U.S. 755, 766, 107 S.Ct. 2672, 2675-76, 96 L.Ed.2d

654 (1987), this Court held that the plaintiff was not a prevailing

party because "[n]o injunction or declaratory relief was entered

in his favor" and he "obtained no relief" whatsoever. The plainuff

would have prevailed if he obtained the "equivalent" of declara-

tory or injunctive relief without formally gaining such relief so

22

long as he changed the defendant’s conduct in the same way that

would have resulted from an injunction or declaratory judgment.

Id. Here, the plaintiff directly obtained an injunction and a

declaratory relief. In Slade v. United States Postal Service, 952

F.2d 357 (10th Cir. 1991) it was held that considering his misde-

meanor convictions that were job related for rejecting him on past

applications was appropriate. The end result of the proceedings

was the United States Postal Service could consider them. The

court held that since the plaintiff had been deemed to be ineligible

prior to filing the proceedings and was still ineligible for employ-

ment for the jobs for which he had applied, there had been no

change in the legal relationship. Christopher P. v. Marcus, 915

F.2d 794 (2nd Cir. 1990), cert. denied, 111 S.Ct. 1081 (1991)

cited by defendant held that no final order favorable to the

plaintiff's had been entered, so no fees were due to be awarded.

None of the cases cited by the defendant can stand on the same

footing to the instant case that declared that a racially hostile work

environment exists and requires the defendant to eradicate it.

CONCLUSION

Consistent with both Garland and Farrar, the plainuff by

obtaining the declaratory judgment and injunction enjoining the

defendant was a prevailing party under 42 U.S.C. § 1988. The

case is set for a hearing on the fees in light of the plainuff’s

prevailing party status. The amount has yet to be determined.

The remedial purposes of Title VII and the public purpose were

advanced by enjoining the defendant and requiring the eradica-

tion of racially motivated actions of its employees such as the use

of hangman’s nooses, racial slurs, and epithets. The proceedings

in this case are consistent with this Court’s holdings. Certiorari

is due to be denied.

23

a submitted,

Ziti

Richard J: Ebbinghouse”

Counsel for Respondent

OF COUNSEL:

GORDON, SILBERMAN, WIGGINS & CHILDS, P.C.

1400 SouthTrust Tower

Birmingham, Alabama 35203

CERTIFICATE OF SERVICE

[ HEREBY CERTIFY that three true and correct copies of

the foregoing has been served by placing a copy of same in the

United States Mail, postage pre-paid and addressed as follows:

James B. Spears, Jr.

HAYNS WORTH, BALDWIN, JOHNSON & GREAVES

901 West Trade Street

Charlotte, NC 28202

DATED this 7322 day of January, 1993.

etre ements meen | ere nen

ee