Rajender v. University of Minnesota

• Decision Date: 26 March 1984
• Docket Number: 83-1425,Nos. 83-1371,s. 83-1371
• Citation: 730 F.2d 1110
• Parties: 34 Fair Empl.Prac.Cas. 607, 34 Empl. Prac. Dec. P 34,327, 16 Ed. Law Rep. 1105 Shyamala RAJENDER, on behalf of herself and a class of academic non-student employees and applicants at the University of Minnesota, Appellee, v. The UNIVERSITY OF MINNESOTA and the Regents of the University of Minnesota, Appellants. Shyamala RAJENDER, on behalf of herself and a class of academic non-student employees and applicants at the University of Minnesota, Janet Macey, Yolande Jenny, and Mary Strother (Class Members & Individual Claimants), Appellants, v. The UNIVERSITY OF MINNESOTA and the Regents of the University of Minnesota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1110

730 F.2d 1110

34 Fair Empl.Prac.Cas. 607,

34 Empl. Prac. Dec. P 34,327, 16 Ed. Law Rep. 1105

Shyamala RAJENDER, on behalf of herself and a class of

academic non-student employees and applicants at

the University of Minnesota, Appellee, v. The UNIVERSITY OF MINNESOTA and the Regents of the

University of Minnesota, Appellants.

Shyamala RAJENDER, on behalf of herself and a class of

academic non-student employees and applicants at the

University of Minnesota, Janet Macey, Yolande Jenny, and Mary Strother (Class Members & Individual Claimants), Appellants, v. The UNIVERSITY OF MINNESOTA and the Regents of the

University of Minnesota, Appellees.

Nos. 83-1371, 83-1425.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1983.

Decided March 26, 1984.

Dorsey & Whitney, Peter S. Hendrixson, Michael J. Wahoske, Stephen S. Dunham, Gen. Counsel, University of Minn., Minneapolis, Minn., for University of Minnesota, et al.

Paul C. Sprenger, Eric L. Olson, Robert L. Shutes, Sprenger, Olson & Shutes, P.A., Minneapolis, Minn., for appellees.

Before ARNOLD and FAGG, Circuit Judges, and NICHOL, ^* Senior District Judge.

ARNOLD, Circuit Judge.

After 11 weeks of trial and intense negotiation, a class action charging discrimination on the basis of sex by the University of Minnesota against academic non-student employees was settled. Shyamala Rajender v. University of Minnesota, Civil No. 4-73-435 (D.Minn. Aug. 13, 1980) (consent decree filed). The consent decree provided, among other things, for a $6,000 limit on attorneys' fees that the University would have to pay for class members who successfully proved a claim. Later, the District Court modified the decree, over the University's objection, by removing the limit on fees, so that the University would be liable for reasonable attorneys' fees with no dollar limitation, in cases where class members prevail. Because the evidence supporting this change does not amount to "hardship and oppression, extreme and unexpected," as required by our leading case on the subject, Humble Oil & Ref. Co. v. American Oil Co., 405 F.2d 803, 813 (8th Cir.) (Blackmun, J.) cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969), we reverse.

I.

Dr. Shyamala Rajender filed suit in September, 1973, against the University alleging that it had discriminated against women in employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1976), as amended, and 42 U.S.C. Secs. 1981 and 1983 (1976). In 1975, she amended the complaint to include class-action allegations. The District Court certified a class in 1978. ¹ The case went to trial; after weeks of trial and much negotiation, a consent decree was approved. The University did not admit to any wrongdoing or violation of any law. ²

The decree is detailed and comprehensive and confers substantial benefits on the plaintiff class. It allows the assertion of some claims--based on acts of discrimination going all the way back to 1972, when Title VII became applicable to state and local government--that would otherwise be barred by limitations, even given the normal tolling effect of class actions. It requires the University to favor women over men in cases of equal qualifications in some circumstances. It increases somewhat the normal burden of proof on Title VII defendants. In the case of the Chemistry Department, it reverses the customary burdens and requires the University, once a claimant has made a prima facie case, to persuade the trier of fact that it had a legitimate, nondiscriminatory reason for the action complained of. p II.D.8 (D.R. 23). It requires the University to fund a Faculty Advisory Committee for Women to assist claimants. And it establishes a special procedure for the filing and consideration of claims of class members, including claims arising in the future.

As part of this procedure, the decree provides for the appointment by the District Court of three Special Masters. (Three distinguished Minnesota lawyers have been appointed.) A member of the class who wishes to assert a claim files it with the Special Masters. They defer action on the claim for 180 days, not including the period between June 16 and September 15 of any given year. Claims are referred to the University during this deferral period, and it "may refer the matter to an appropriate internal academic tribunal ... for the sole purpose of permitting a final, fully informed, internal judgment by the University." p II.D.1 (D.R. 17) (emphasis ours). If the University does not complete its internal consideration within the prescribed deferral period, "it shall be deemed to have waived further internal consideration of such claim." p II.D.1 (D.R. 19). And if the Special Masters determine "that the University is not making a good faith effort to refer [a] matter to an appropriate internal tribunal ..., the Special Master[s] may shorten the deferral period ...." p II.D.5 (D.R. 21). Any conclusion reached by an internal tribunal is subject to final approval by the President of the University.

Cases not resolved to the satisfaction of both sides by this internal process go before a Hearing Panel, composed of a Special Master and two other members, one appointed by the claimant and one by the University. Conclusions of hearing panels are reviewable by the District Court, see Fed.R.Civ.P. 53(e)(2), and thereafter on appeal by this Court. "In any Claim Proceeding hereunder before a Hearing Panel in which a Claimant finally prevails," the University must pay all the reasonable costs and expenses, as in ordinary Title VII litigation, plus an amount not to exceed $6,000 as a partial attorneys' fee. p II.D.9 (D.R. 23). The University gives up its Title VII right to seek an award of fees and expenses against vexatious or frivolous claimants.

This $6,000 limitation was the subject of hard bargaining on both sides. The University at one time or another during the negotiations proposed that costs and expenses come out of whatever limit was agreed to, that the use of any "multiplier" in the computation of fees be expressly forbidden, and that the limit be fixed at some lower level, say $750 or $3,000. The plaintiff class variously proposed that there be no limit, that there be an exception for extraordinarily complex or protracted cases, and that an allowance be made for future inflation. All of these positions, on both sides, were ultimately surrendered in favor of the language appearing in the consent decree. No objections to this portion of the decree were voiced at the fairness hearing held by the District Court.

The decree also contains two other provisions at issue on this appeal. It requires the University to advertise faculty positions in The New York Times and to pay for transcripts of proceedings on each individual claim.

On February 4, 1982, about nine months after they had approved the details of an internal-review process for the University to use for consideration of individual claims, the Special Masters issued to all parties an order to show cause why the decree should not be modified in certain respects. The modifications proposed for consideration included the three areas argued in the case at bar: the $6,000 fee limitation, The New York Times advertisement requirement, and the purchase of transcripts.

A hearing was held before the Special Masters. Most of the argument was about fees. Two themes ran through the claimants' case on this subject: that the internal procedure for resolution of claims was not being used, and that claimants had been unable to obtain counsel because of the attorneys' fees limitation. The claimants contended that because the internal procedure for resolution of claims was not being used, they had to engage counsel in order to have their claims resolved, and that the fee limitation made counsel difficult to employ. The University argued in response, inter alia, that there is no legal limit on the amount of her own money a claimant can spend; the limitation is that the University is obliged to pay only a portion of the fees, up to $6,000, to claimants who succeed. As a result of the hearing, the Special Masters issued a Recommended Order for Amendment of the Consent Decree in the areas addressed. Specifically, the Special Masters recommended elimination of The New York Times advertising and transcript-purchase requirements. As to fees, they recommended elimination of the dollar limit; but the decree would continue to provide only for partial fees: the Hearing Panels would decide, in each case of a prevailing claimant, what portion of her fees the University should in fairness pay.

The District Court conducted a hearing on the Special Masters' recommendations. The Court believed that the internal-review procedure was what the University gave in exchange for the claimants' agreeing to limit recovery of attorneys' fees to $6,000. The Court thought that the basic problem with the consent decree was the failure of the internal grievance procedure to function as originally planned. It stated: "the present state of the consent decree procedures, unforeseen at the time the agreement was approved, grievously wrongs the members of the class and amounts to a frustration of the Decree's stated purpose." Shyamala Rajender v. University of Minnesota, No. 4-73-435, slip op. at 10 (D.Minn. Feb. 16, 1983). 563 F.Supp. 401. The Court then issued an order adopting, in part, the recommendations of the Special Masters. It struck The New York Times advertising requirement and the mandatory transcript preparation for every case. As to fees, the Court agreed with the Special Masters that the $6,000 limit should be removed. But it went beyond the Masters' recommendations in one respect: it also struck the reference to "partial" fees. Under the decree as now amended by the District Court, therefore, successful claimants would receive all of their reasonable fees and expenses as part of the...