Brito v. Zia Company
| Decision Date | 18 May 1973 |
| Docket Number | 72-1632.,No. 72-1631,72-1631 |
| Citation | 478 F.2d 1200 |
| Parties | Alfred BRITO et al., Plaintiffs-Appellants and Cross-Appellees, v. The ZIA COMPANY, Defendant-Appellee and Cross-Appellant. Manuel QUINTANA and Arthur Jaramillo, Plaintiffs-Cross Appellees, v. The ZIA COMPANY, Defendant-Appellee and Cross-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Melvin L. Robins, Albuquerque, N. M. (Lorenzo A. Chavez, Albuquerque, N. M., and Mario Obledo, San Francisco, Cal., on the brief) for appellants.
John P. Burton, Albuquerque, N. M. (L. J. Maveety, Los Alamos, N. M., and William A. Sloan, Albuquerque, N. M., on the brief) for appellee and cross-appellant.
Before SETH and BARRETT, Circuit Judges, and SMITH*, District Judge.
Alfred Brito, Max Roybal, Richard Lopez, Tony Mier, and Robert Keahbone appeal from a Judgment in their favor brought pursuant to the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 et seq.1 The Zia Company filed a cross-appeal. Manuel Quintana and Arthur Jaramillo are cross-appellees.
The District Court held that the employee performance evaluation test used by Zia had not been validated in accordance with the Order of the Secretary of Labor, 33 F.R. 14392 (1968). The Court entered a Judgment Nunc Pro Tunc in which it stated that certain EEOC guidelines, 29 CFR 1607 et seq.,2 are controlling over the Secretary of Labor's Order. The Court held that Zia allowed discriminatory employment practices in its machine shop in violation of Title VII of the Civil Rights Act of 1964. It enjoined Zia from hiring, promoting or discharging employees by use of any testing method until its test complied with the requirements of the EEOC, the Secretary's Order and Title VII of the Civil Rights Act and until it shall develop empirical data supporting the validity of the test. It held that Zia's conciliation agreement with Brito had been breached in violation of the Civil Rights Act and that the action did not meet the requirements of a valid class action. It awarded some back pay to the appellants, and $2,000 in attorneys' fees. Brito was awarded nominal damages for breach of the conciliation agreement.
Zia is a contractor with the U. S. Atomic Energy Commission at Los Alamos, New Mexico. Zia employs between 900 and 1,100 workers of which about 500 are Spanish surnamed and Indian employees. When the work force had to be reduced, Zia used an employee performance evaluation test given by supervisors and foremen on volume of work, quality of work, job knowledge, dependability and cooperation. The evaluation was made while the employee was working. The appellants were laid off because of their low scores on the evaluations in May and August, 1970.
Brito was originally employed with Zia in December of 1967. He was laid off because of a reduction in force in July, 1968. He filed a charge of discrimination with the EEOC which found in his favor in October, 1969. On March 4 and 6, 1970, Brito entered into a conciliation agreement with Zia in which Zia contracted to eliminate discrimination in hiring, promotion practices and conditions of employment based on national origin and race and to reinstate Brito to his former job. Brito returned to his job on March 9, 1970. An air of hostility developed between some Anglos and Spanish surnamed employees. Brito received a written reprimand a week after he returned to work and was discharged in July, 1970, because of a low test score, along with Mier and Lopez, all machinists. Roybal, a machinist, was transferred, and Keahbone, a machinist, was terminated in September, 1970. Before the reduction in work force there were eight Anglos and six Spanish surnamed employees and one Indian in the machine shop. After the reduction, there were seven Anglos and two Spanish surnamed employees. Quintana and Jaramillo, ironworkers, were laid off in August, 1970, because of their low scores on the evaluation. Before the reduction in force there were eighteen Spanish surnamed and fourteen Anglo employees in the ironworkers shop; after the reduction, ten Spanish surnamed and twelve Anglos remained.
An evidentiary hearing was held on whether a class action should be allowed. The Court held the action did not meet the requirements of a class action pursuant to Rule 23, Fed.R.Civ.P.
The appellants contend that: (1) the trial court erred in failing to allow a class action; (2) the award of nominal damages for breach of the conciliation agreement was error; (3) the failure of the Court to award the entire back pay lost by Keahbone and Lopez was error; (4) the refusal of the Court to reinstate the appellants was error; and (5) the award of $2,000 in attorneys' fees was inadequate.
The cross-appellant, Zia, alleges that: (1) the trial court erred in allowing appellants to change theories in the case; (2) the trial court erred in entering judgment against Zia, since no violation of the Act was found; (3) the trial court erred in concluding that Zia's performance evaluation violated the Act when it did not find that the violation was deliberate; (4) the Secretary's Order was improperly applied to Zia's performance evaluation; and (5) the trial court erred in awarding relief.
The appellants contend that Brito represents a class of people composed of Spanish-speaking Americans, Spanish Americans, and Spanish surnamed Americans, who were employed or might be employed by Zia, and who had been or would continue to be adversely affected by Zia's employment practices. They contend that joinder under Rule 23, Fed.R.Civ.P. is impractical because the people are too numerous; that the relief sought is common to all; that Brito adequately represents the class; and that Zia acted or refused to act on grounds generally applicable to the class.
The District Court ruled that this action does not meet the requirements of a class action. We will not disturb that holding on appeal unless it is clearly erroneous. The District Court was correct in holding that there was no basis to proceed as a class action because the requirements of Rule 23 were not met.
Brito contends that the award of nominal damages for breach of the conciliation agreement does not adequately compensate him for loss of benefits. He also seeks punitive damages because Zia condoned an atmosphere of hostility. The contention has no merit in view of the fact that Brito was awarded damages for loss of wages and was reinstated to his former position. Brito has not established any basis for a damage award for breach of the agreement. The record supports only the award of nominal damages. Oklahoma Natural Gas Corporation v. Municipal Gas Co. of Muskogee, Okl., 113 F.2d 308 (10th Cir.1940).
Keahbone and Lopez allege that they should have been awarded the entire amount of back pay they lost. Keahbone testified that after subtracting his earnings at other jobs from the pay he would have earned at Zia, he is entitled to receive $10,505; the Court awarded him $3,100. Lopez testified his lost wages amounted to $9,996. He asked for $9,000 and the Court awarded him $2,200.
Although the Court must accept the uncontroverted testimony of the appellants, it may exercise its discretion in finding that the appellants should have and could have exercised greater diligence in seeking other employment. Jurinko v. Edwin L. Wiegand Company, 331 F.Supp. 1184 (W.D.Pa.1971). The Court did not err in its award.
The appellants contend that the trial court should have ordered that they be reinstated as required by the Act.
The Act states that reinstatement may be ordered; it is discretionary with the court. 42 U.S.C.A. § 2000e-5(g). All of the appellants found other work except one, who could have found work. The Court did not err.
The appellants contend that the award of $2,000 in attorneys' fees is inadequate because the attorneys spent 162 hours on the case, equalling about $12 per hour.
Hours are not the sole basis for determining a fee. Weeks v. Southern Bell Telephone and Telegraph Company, 467 F.2d 95 (5th Cir. 1972). It is within the discretion of the trial court to set a reasonable fee. Barela v. United Nuclear Corporation, 462 F.2d 149 (10th Cir. 1972). There was no error.
Zia alleges that the trial court erred in allowing the appellants to try their case on one theory, then to obtain a decision on a second theory, and finally to obtain an injunction on a third theory. Zia contends that the appellants proceeded on the theory that the Civil Rights Act controlled, then switched to the Secretary's Order, and finally argued that the EEOC guidelines controlled. The Judgment Nunc Pro Tunc was entered in accordance with EEOC guidelines. Zia argues that the pretrial order controls, and that the decision should be based on the Civil Rights Act.
It is within the discretion of the trial court to allow the parties to switch theories. The Secretary's Order and the EEOC guidelines interpret the Civil Rights Act and set forth guidelines for the validation of the test procedure. The EEOC guidelines and the Secretary's Order set forth substantially the same guidelines. There was no prejudice to Zia.
Zia contends that since the trial court found no violation of the Act, it erred in entering judgment against it. Zia states that the appellants had the burden to prove the discriminatory effect of the test. Only when thus established must Zia prove its validity. Zia alleges that the appellants did not prove the test's discriminatory effect, therefore, it did not have to prove its validity.
In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), Negro employees sued under Title VII of the Civil Rights Act of 1964 challenging Duke Power's requirement of a high school diploma or passing an intelligence test as a condition of employment or transfer. The tests were not designed to measure the ability to learn to...
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