522 F.2d 1091 (9th Cir. 1975), 73-3037, Slack v. Havens

Docket Nº:73-3037.
Citation:522 F.2d 1091
Party Name:Dec. P 10,343 Isabell SLACK and Kathleen Hale et al., Plaintiffs-Appellees, v. Glenn C. HAVENS, Individually, and doing business as Havens Industries, et al., Defendants-Appellants.
Case Date:July 28, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1091

522 F.2d 1091 (9th Cir. 1975)

Dec. P 10,343

Isabell SLACK and Kathleen Hale et al., Plaintiffs-Appellees,


Glenn C. HAVENS, Individually, and doing business as Havens

Industries, et al., Defendants-Appellants.

No. 73-3037.

United States Court of Appeals, Ninth Circuit

July 28, 1975

Page 1092

Laurence L. Pillsbury (argued), San Diego, Cal., for defendants-appellants.

Willard S. Anthony (argued), San Diego, Cal., for plaintiffs-appellees.

Gerald Letwin, Dept. of Justice (argued), Washington, D. C., for amicus curiae.


Before TUTTLE, [*] HUFSTEDLER and WALLACE, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Four black women brought an action against their former employers under Title VII of the Civil Rights Act of 1964, charging discriminatory discharge and seeking damages. They prevailed below, and the employers Glenn C. Havens ("Havens") and Havens International ("International") appeal. Havens and International contend that: (1) Havens was not an "employer" within the meaning of the Act because the period of the employment of these women and the number of his employees did not bring him within the purview of the Act; (2) their request for a jury trial was improperly denied; (3) International was not jointly liable because it was not a party to the antecedent EEOC proceeding, was not in existence when the discriminatory acts occurred, and had been dissolved before the complaint was filed; and (4) the evidence was insufficient to support the findings upon which the award was based.

Appellees Slack, Matthews, Hampton and Hale were employed in the bonding and coating department of Havens. On January 31, 1968, Matthews, Hampton and Slack were working with a white co-worker, Murphy. Their immediate supervisor, Pohasky, at that time informed them that they would be expected to undertake a general heavy cleaning of their department on the following morning. They protested. The next day, Pohasky excused Ms. Murphy to another assignment and called Hale back from another department where she had been on loan in order to have her join the cleaning. Appellees again protested that they had not been hired to do janitorial work, and inquired as to why Ms. Murphy had been excused. Pohasky insisted that they perform the work, remarking that "Colored people should stay in their

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places," and "Colored people are hired to clean because they clean better," or words to that effect. When appellees persisted in refusing to do the work, they were given their final paychecks. After pursuing state remedies, they filed charges with the Equal Employment Opportunity Commission (EEOC) and, upon receiving right to sue letters, brought this action seeking an injunction, back pay, and exemplary damages. The court denied injunctive relief because the only named defendant currently carrying on the business was Calgon Corporation, against whom the action had been dismissed with prejudice. Punitive damages were denied because they are not authorized by statute. The court awarded Matthews and Hampton six weeks pay because they had thereafter refused to consider reemployment until all four women were reinstated; no issue is raised on appeal concerning the propriety of the limited award to them. Slack and Hale were awarded damages for back pay from February 1, 1968 to January 17, 1972, reduced by the amounts they could have earned by reasonable diligence elsewhere, pursuant to 42 U.S.C. § 2000e-5(g).

Havens first argues that he is not an "employer" within the meaning of the Civil Rights Act 1 and that, consequently, the district court should have dismissed the action for lack of subject matter jurisdiction. According to his interpretation, the statute requires the existence of a "critical mass" of 50 employees for a total of 20 weeks during the prior calendar year and only those months of the current year preceding the incident at issue. Such a reading, he contends, is required to give employers notice of their potential liability under Title VII before a discriminatory incident occurs, and to prevent after-the-fact divestiture of jurisdiction by an employer's reduction of the size of his work force to fall outside the statutory limit. 2 These arguments are unpersuasive. Employers have had notice of the requirements of the Civil Rights Act since the time of its passage. Whether they could attempt to circumvent its provisions by manipulating the number of persons they employ is irrelevant to the problem of statutory construction facing us. The language of the statute is plain: Congress clearly spoke in terms of "calendar years." Although it would have been easy to incorporate appellants' "critical mass" idea by measuring the relevant number of employees over the 24 months preceding the incident, the statute gives no evidence of such an intent. We can therefore only conclude that Congress meant what it said and that Havens is indeed an "employer" within the terms of the statute. (See, e. g., Culpepper v. Reynolds Metals Co. (5th Cir. 1970) 421 F.2d 888, 891.)

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Appellants next argue that they were improperly denied a jury trial. They contend that awards of back pay in Title VII suits are in essence legal "damages" and should not be permitted absent the protections guaranteed by the Seventh Amendment. This claim is unsupported by either case law or the language of the statute. It is well established that a jury trial is required only if a statute creates legal rights and remedies enforceable in the ordinary courts of law (Curtis v. Loether...

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