Ezold v. Wolf, Block, Schorr and Solis-Cohen

• Decision Date: 15 March 1991
• Docket Number: Civ. A. No. 90-0002.
• Citation: 758 F. Supp. 303
• Parties: Nancy O'Mara EZOLD v. WOLF, BLOCK, SCHORR AND SOLIS-COHEN.
• Court: U.S. District Court — Eastern District of Pennsylvania

758 F. Supp. 303

Nancy O'Mara EZOLD v. WOLF, BLOCK, SCHORR AND SOLIS-COHEN.

Civ. A. No. 90-0002.

United States District Court, E.D. Pennsylvania.

March 15, 1991.

Judith P. Vladeck, New York City, for plaintiff.

Mark S. Dichter, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

On November 27, 1990, this court held that the defendant law firm, Wolf, Block, Schorr and Solis-Cohen, had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., by considering the gender of the plaintiff, Nancy Ezold, in its decision not to admit her to the partnership. 751 F.Supp. 1175. This court also held however that Ms. Ezold was not constructively discharged by virtue of the adverse partnership decision. As the parties had agreed prior to trial to bifurcate the issues of liability and damages, the issue of appropriate damages is now before the court.

In compliance with the court's request, the parties have submitted memoranda as well as replies addressing the scope of relief available to Ms. Ezold in light of her having prevailed on the Title VII liability issue. Ms. Ezold asserts that she is entitled to backpay as well as instatement as a partner in the firm. In the event that instatement as a member of the firm were deemed impractical, Ms. Ezold asserts that front pay is appropriate. In response Wolf, Block asserts that because the court held that Ms. Ezold was not constructively discharged by virtue of the defendant's adverse partnership decision, her relief for the Title VII violation is limited to back pay covering the period between the date her unlawfully denied partnership would have become effective, February 1, 1989, and the date she resigned her associate position with the Firm on June 7, 1989.

For reasons stated more fully below, I will not limit the scope of damages to back pay only up to the date of the plaintiff's resignation from the defendant firm. The appropriate relief within the scope of Title VII here may include back pay up the date of judgment and instatement as a member of the firm or, alternatively, front pay. Trial before this court on the issue of damages should thus address those remedies as well as the plaintiff's duty of mitigation under Title VII.

SUMMARY OF FACTS

A brief review of the facts of this case is appropriate. The plaintiff, Nancy Ezold, was hired by the defendant law firm, Wolf, Block, as an associate on partnership track basis in 1983 and was assigned to the Firm's Litigation Department. Ms. Ezold had previously worked as an associate with small law firms for a period of three years. Wolf, Block is a Philadelphia-based firm comprised of approximately 250 attorneys, approximately half of whom are partners. Throughout Ms. Ezold's nearly six-year tenure as an associate at the Firm, which ended with her resignation on June 7, 1989, she became aware of signs that the Firm was treating her in a gender-discriminatory manner.

During her 1983 hiring interviews, Ms. Ezold was told by the then Chairman of the Litigation Department, Mr. Kurland, that it would not be easy for her at Wolf, Block because she was a woman, was not from an Ivy League law school (Ms. Ezold is a graduate of Villanova Law School), and was not on Law Review. During her time as an associate at the Firm, Ms. Ezold worked for partners in the Litigation Department on criminal matters, insurance cases, general commercial litigation and other areas. Ms. Ezold was primarily assigned cases that were small by Wolf, Block standards. Ms. Ezold did not work for more than 500 hours on any one matter in any year, whereas virtually all the male associates in the department worked on major matters for which they logged at least 600 hours per year. Ms. Ezold complained about the quality of her assignments and the limited number of partners she was assigned to work with. The Litigation Department Chairman acknowledged the inferiority of Ms. Ezold's work opportunities and promised to correct them.

During the last two years of her employment at Wolf, Block, Ms. Ezold's work at the Firm included supervising junior associates in their preparation of briefs and pleadings. In 1988 the Chairman of the Litigation Department, Mr. Davis, gave Ms. Ezold an outstanding review for her work on a complex matter. At trial on the liability portion of this case, Mr. Davis stated that when he evaluated Ms. Ezold he believed it had been established that she had excellent skills in various areas of litigation, including case management, witness preparation, dealing with opponents, professionalism, maturity, aggressiveness and a whole series of other traits he considered to be extremely useful to the Department. Mr. Davis' evaluation of Ms. Ezold is consistent with virtually all of the evaluations of Ms. Ezold by partners with whom she worked. Those partners who evaluated Ms. Ezold neutrally or critically cited the lack of complexity in her assignments or their lack of sufficient contact with her necessary to make a meaningful evaluation.

In October of 1988 Ms. Ezold was informed that she would not be recommended for partnership because too many partners did not believe she had sufficient analytical ability to handle complex legal issues. The test that the Firm applied to the plaintiff for purposes of determining whether to recommend her for partnership was that she must demonstrate the analytical ability to handle the most complex litigation. This standard was stricter than that applied to male associates who were candidates for partnership along with Ms. Ezold. Many of the male associates who were admitted as partners effective February 1, 1989, had received numerous evaluations severely critical of their work.

In November of 1988, the Chairman of the Firm's Executive Committee, Mr. Kopp, confirmed to Ms. Ezold that she would not be recommended for admittance to the partnership. Mr. Kopp offered Ms. Ezold partnership in the Firm's Domestic Relations Department if she would remain an associate for one more year. After trial in this matter, I determined that the Firm had considered Ms. Ezold's gender in its 1988 decision not to promote her to partner in violation of Title VII of the Civil Rights Act of 1964.

DISCUSSION OF AVAILABLE RELIEF

I. Remedial Authority of the Federal Courts under Title VII

The remedial scope of Title VII, as first enunciated in section 706(g) of the Civil Rights Act of 1964, is broad:

If the court finds that the respondent has intentionally engaged in ... an unlawful employment practice ... the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay ... or any other equitable relief as the court deems appropriate.

42 U.S.C. § 2000e-5(g) (1988).

This language may be read as a mandate for the exercise of broad discretion in crafting effective remedies for employment discrimination. The broad remedial power of the courts under Title VII to remedy unlawful employment discrimination was embellished by the legislative history to the 1972 amendments to the Civil Rights Acts in which Congress revised section 706(g):

The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible.... The scope of relief ... is intended to make the victims of unlawful discrimination whole ... so far as possible, to return them to a position where they would have been were it not for the unlawful discrimination.

118 CONG.REC. 7168 (1972).

The Supreme Court has interpreted this statutory language to mean that "federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victims of ... employment discrimination." Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976) (footnote omitted). That the courts were given broad equitable powers by Congress confirms the purpose of Title VII to make whole victims of discrimination in the workplace. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 420-21, 95 S.Ct. 2362, 2372-73, 45 L.Ed.2d 280 (1975). Such a statutory purpose will only be accomplished if the remedial structure of Title VII is flexible, thus enabling the courts "to put a victim of discrimination in the position that she or he would have been in but for the unlawful discrimination." Hopkins v. Price Waterhouse, 920 F.2d 967, 976 (D.C.Cir.1990).

The flexible "make whole" approach to Title VII remedies authorized by Congress does not absolve a district court of the responsibility to measure possible remedies alongside the purposes of Title VII carefully. Broad equitable discretion must be complemented with "the principled application of standards consistent with those purposes ..." Albemarle Paper, 422 U.S. at 417, 95 S.Ct. at 2371. In determining what standards of application would be consistent with Title VII, it is noteworthy that one of the specific congressional concerns motivating the 1972 amendments to Title VII was "the need to tear down discriminatory barriers in the top echelons of the job market that continued to prevent women and minorities from `ascending the higher rungs in professional life.'" Hopkins, 920 F.2d at 977.

The language of section 706(g) specifically provides for backpay as an appropriate Title VII remedy. As an incentive for employers to eliminate discriminatory practices, back pay has a direct connection with Title VII's primary objective of achieving "equality of employment opportunities and removing barriers that have operated in the past...." Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Reinstatement, or alternatively front pay, may also be appropriate Title...