Edwards v. School Bd. of City of Norton, Va.

• Decision Date: 01 September 1981
• Docket Number: No. 80-1115,80-1115
• Citation: 658 F.2d 951
• Parties: 26 Fair Empl.Prac.Cas. 1147, 26 Empl. Prac. Dec. P 32,084 Ruby EDWARDS, Appellant, v. SCHOOL BOARD OF the CITY OF NORTON, VIRGINIA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 951

658 F.2d 951

26 Fair Empl.Prac.Cas. 1147,

26 Empl. Prac. Dec. P 32,084

Ruby EDWARDS, Appellant, v. SCHOOL BOARD OF the CITY OF NORTON, VIRGINIA, Appellee.

No. 80-1115.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 14, 1980.

Decided Sept. 1, 1981.

Janet H. Thurston, Abingdon, Va. (Robert T. Copeland, P. C., Abingdon, Va., on brief), for appellant.

Kenneth P. Asbury, Wise, Va., for appellee.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

BUTZNER, Circuit Judge:

The sole issue in this appeal is whether the district court's remedy for a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), is legally adequate. ¹ The court held that the Norton, Virginia, School Board discharged Ruby Edwards in violation of the Act. The Board has not appealed this ruling. Edwards appeals from those parts of the judgment that limited her back pay to the unpaid balance of her salary for the current school term and denied her reinstatement. We vacate these provisions and remand the case for further proceedings.

I

Edwards is a member of the Worldwide Church of God. She believes that church doctrine requires her to abstain from secular work on holy days, which are designated by various biblical texts and fixed according to Jewish calendar.

The Board hired Edwards in 1967 as a teacher's aide in its federally subsidized Title I program at Norton Elementary School. The program provides individual instruction to educationally deprived students. Letters of employment for teachers' aides under this program are for one year. Renewal is dependent on both the aide's performance and the availability of federal funding for the project. Initially, Edwards prepared teaching materials, collected lunch money, graded papers, supervised playgrounds, and worked in the cafeteria. Later, however, her principal duty was to provide individual instruction to mentally retarded students and slow learners.

The School Board renewed Edwards's letter of employment for the 1968-69 and the 1969-70 school terms. During both of these terms, the School Board accommodated Edwards's religious practices and allowed her to abstain from work and observe her church's holy days.

In the fall of 1971, Edwards was instructed that her absences for the holy days would no longer be permitted. She was told that her increased teaching duties and the unavailability of substitute aides required her daily presence throughout the 180 day school term, except for 5 days sick leave. Her employment was renewed for the 1971-72 school term, and, despite the Board's admonition, she was allowed to observe the holy days.

Edwards's letter of employment was again renewed for the 1972-73 school term. In September, 1972, Edwards's request to attend a religious convocation in observance of the holy days was denied. Nevertheless, she followed her previous practice and abstained from work to observe the holy days. The Board then terminated her employment because of her unauthorized absence.

After her discharge, Edwards filed a complaint with the Equal Employment Opportunity Commission. She received a right to sue letter in April, 1977, and instituted timely action in the district court. She sought reinstatement and back pay from the date of discharge, alleging that she had been unable to find employment except for several months in 1975.

The district court held that the Board failed to prove that accommodating Edwards's religious practices would create an undue hardship on the conduct of the school's operation. It concluded that the Board discharged Edwards in violation of 42 U.S.C. § 2000e-2(a)(1). The Board has not appealed from this part of the district court's judgment.

The court, however, limited Edwards's back pay award to $2,352.82, the unpaid balance of her salary for the 1972-73 school year, and it denied reinstatement. The court based this award on two propositions: first, that Edwards was untenured and had no property interest at stake beyond her one year contract; and second, that the Board would not have rehired Edwards, regardless of her religious practices, because of excessive absences that were not related to her religion.

II

The parties properly recognize that the primary issue in this case involves a question of law. It is whether Edwards, who was discharged in violation of Title VII, must prove a property interest in her employment to establish entitlement to back pay from the date of discharge until the Board makes a valid offer of reinstatement. ²

To support its conclusion that Edwards was required to prove a property interest in her job beyond her current contract, the district court relied on Burt v. Board of Trustees, 521 F.2d 1201, 1205 n.6 (4th Cir. 1975). ³ The Board seeks to sustain the court's ruling by citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), Arnett v. Kennedy, 416 U.S. 134, 94 s.Ct. 1633, 40 L.Ed.2d 15 (1974), Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Funn v. Winston, 612 F.2d 880 (4th Cir. 1980). These cases, however, are not controlling. They deal with quite a different subject claims that job holders were discharged without due process of law. The due process clause affords procedural protection to a person's property interest, but it does not create this interest. Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Consequently, to prevail the claimants in these cases were required to establish that state law created a property interest in their jobs. Bishop v. Wood, 426 U.S. at 344, 96 S.Ct. at 2077. Significantly, the Board cited no case construing Title VII that supports the district court's judgment. Indeed, the district court's conclusion that Edwards was required to prove a property interest in her job appears to be unprecedented in Title VII litigation.

In contrast to the procedural rights secured by the due process clause, Title VII creates a substantive right. It was enacted, in part, "to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S.Ct. 2264, 2272, 53 L.Ed.2d 113 (1977) (quoting legislative history). 42 U.S.C. §§ 2000e(a), (b), (f), and 2000e-2(a)(1). Again quoting legislative history, the Court emphasized in Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976):

(T)he Act is intended to make the victims of unlawful employment discrimination whole, and ... the attainment of this objective ... requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.

To remedy an illegal discharge, Congress authorized district courts to require reinstatement and award back pay, 42 U.S.C. § 2000e-5(g), but it did not authorize restricting the award to the unpaid balance of the salary for the remaining period of an employee's current contract. Instead, as the Supreme Court pointed out in Albemarle Paper Co. v. Moody, 422 U.S. 405, 419, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975), Congress modeled the back pay provision of Title VII on the antecedent provision of the National Labor Relations Act, 29 U.S.C. § 160(c). The Court explained: "We may assume that Congress was aware that the (Labor) Board, since its inception, has awarded backpay as a matter of course not randomly or in the exercise of a standardless discretion...." 422 U.S. at 419-20, 95 S.Ct. at 2372-73.

Under the Labor Act the back pay period for an unlawfully terminated employee commences with the date of discharge and continues until the employer makes a valid offer of reinstatement. Polynesian Cultural Center, 222 NLRB 1192 (1976); Winn Dixie Stores, Inc., 206 NLRB 777 (1973), enforced, 502 F.2d 1151 (4th Cir. 1974); NLRB v. Huntington Hospital, Inc., 550 F.2d 921, 924 (4th Cir. 1977). Courts of appeals have applied this rule for back pay liability in Title VII cases without requiring the employee to prove a continuing property interest in his job. See, e. g., Taylor v. Philips Industries, Inc., 593 F.2d 783, 788 (7th Cir. 1979); Comacho v. Colorado Electronic Technical College, Inc., 590 F.2d 887, 889 (10th Cir. 1979); Claiborne v. Illinois Central Railroad, 583 F.2d 143, 153 (5th Cir. 1978); EEOC v. Enterprise Association Steamfitters Local No. 638, 542 F.2d 579, 590-91 (2d Cir. 1976); Patterson v. American Tobacco Co., 535 F.2d 257, 269 (4th Cir. 1976).

The duration of the period for computing back pay awards selected by these courts of appeals is altogether consistent with the purpose of the back pay provision of Title VII. This provision, the Court observed in Albemarle, 422 U.S. at 417-18, 95 S.Ct. at 2371-72, serves a dual purpose: it provides a spur to the elimination of discrimination, and it makes persons whole for injuries suffered because of discrimination. Many employees covered by Title VII are hourly workers subject to discharge at will. Others, like Edwards, have short term contracts. To require those who have been subjected to unlawful discrimination to prove a continuing entitlement to their jobs in order to receive back pay awards beyond the terms of their current employment would frustrate the purpose of the Act and countenance discrimination without an effective deterrent.

We fully accept the district court's factual finding that Edwards was employed under a one year contract and that the law of Virginia did not afford her tenure. These facts, however, while significant in other contexts, do not control the right to reinstatement or the duration of a Title VII back pay award. A similar issue arose in Edwards v. Gladewater Independent School Dist., 572 F.2d 496 (5th Cir. 1978), which affirmed a judgment of reinstatement and back pay because the school district discriminatorily refused to renew a...