43 F.3d 1345 (10th Cir. 1994), 92-2214, Cox v. Phelps Dodge Corp.

Docket Nº:92-2214.
Citation:43 F.3d 1345
Party Name:Lupe COX, Plaintiff-Appellant, v. PHELPS DODGE CORPORATION, and Chino Mines Company, Defendants-Appellees.
Case Date:December 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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43 F.3d 1345 (10th Cir. 1994)

Lupe COX, Plaintiff-Appellant,


PHELPS DODGE CORPORATION, and Chino Mines Company,


No. 92-2214.

United States Court of Appeals, Tenth Circuit

December 28, 1994

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[Copyrighted Material Omitted]

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Anthony F. Avallone, Law Systems of Las Cruces, P.A., Las Cruces, NM (Thomas R. Figart, Law Systems of Las Cruces, P.A., with him on the brief), for plaintiff/appellant.

Charles L. Chester, Ryley, Carlock & Applewhite, Phoenix, AZ (Michael D. Moberly, Ryley, Carlock & Applewhite, with him on the brief), for defendants/appellees.

Before BALDOCK, BARRETT, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Lupe Cox ("Cox") appeals the district court's decision following a bench trial that Defendants-Appellees Phelps Dodge Corporation and Chino Mines Company (collectively referred to as "Chino Mines") were not liable under Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. Secs. 1981a, 2000e-2000e-17 ("Title VII"), for the gender-related hostile work environment to which the court found that Cox had been subjected. At trial, Cox asserted three claims: (1) that she had been subjected to sexual discrimination based on a hostile work environment in violation of Title VII; (2) that Chino Mines had retaliated against her for pursuing this claim; and (3) that Chino Mines intentionally inflicted emotional distress upon her in violation of state law. The district court ruled against Cox on both her retaliation and state law claims, and she does not appeal those rulings. Important among the unappealed rulings was a finding by the district court that Cox was discharged for valid non-discriminatory reasons that were unrelated to her sex or to her prior complaints of sexual harassment.

With regard to her first claim for sexual harassment under Title VII, the district court ruled that Cox had been subjected to a hostile work environment because of acts of sexual harassment by several employees and supervisors at Chino Mines. Chino Mines does not appeal that ruling, although it suggests that we could reexamine it as a possible alternative basis for affirming the district court. However, notwithstanding its ruling that Cox experienced a hostile work environment, the district court ruled that the corporate employer, Chino Mines, was not liable because those employees who engaged in harassment were not acting as agents of the company. See Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 576 (10th Cir.1990). It is that ruling which Cox appeals.

Given the unappealed ruling that Cox was validly discharged for nondiscriminatory and non-retaliatory reasons, Cox no longer can assert a viable claim because she has no redressable injury under Title VII as that statute existed at the time of the conduct in question. Thus, we dismiss this appeal and vacate the district court's judgment on the issue appealed, as the issue presented is moot and does not present a justiciable case or controversy. 1


As the district court correctly observed, Cox's Title VII claim of sexual harassment is governed by pre-1991 Civil Rights Act law. 2 Under Title VII prior to the 1991 amendments, plaintiffs were not entitled to recover damages for pain and suffering, punitive damages, consequential damages, or nominal damages; plaintiffs were restricted to the traditional equitable remedies of reinstatement, back pay, and front pay, as well as declaratory and injunctive relief. United States v. Burke, --- U.S. ----, ----, 112 S.Ct. 1867, 1873, 119 L.Ed.2d 34 (1992); Griffith v. Colorado, Div. of Youth Servs., 17 F.3d 1323, 1327 (10th Cir.1994). Cox's Title VII claim cannot merit an award of back pay, front pay or reinstatement because the district court concluded that her termination was not related to the sexual harassment, but rather was based on valid, non-pretextual

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reasons. Cox did not appeal that finding, nor did she raise a claim that the sexual harassment itself affected her pay or position. Furthermore, Cox did not seek to demonstrate the need for injunctive relief. That leaves only a possible claim for declaratory relief.

Cox's request for declaratory relief under 28 U.S.C. Sec. 2201 and Title VII cannot be considered by this court because Cox's lack of any present or probable future connection to Chino Mines moots her claim for relief. Article III's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot--i.e. where the controversy is no longer live and ongoing. 3 Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108...

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