Carey v. New York Gaslight Club, Inc.

• Citation: 598 F.2d 1253
• Decision Date: 08 May 1979
• Docket Number: D,No. 743,743
• Parties: 19 Fair Empl.Prac.Cas. 918, 19 Empl. Prac. Dec. P 9203 Ms. Cidni CAREY, Plaintiff-Appellant, v. NEW YORK GASLIGHT CLUB, INC., and John Anderson, Manager of the New York Gaslight Club, Inc., Defendants-Appellees. ocket 78-7603.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1253

598 F.2d 1253

19 Fair Empl.Prac.Cas. 918, 19 Empl. Prac.

Dec. P 9203

Ms. Cidni CAREY, Plaintiff-Appellant, v. NEW YORK GASLIGHT CLUB, INC., and John Anderson, Manager of

the New York Gaslight Club, Inc., Defendants-Appellees.

No. 743, Docket 78-7603.

United States Court of Appeals, Second Circuit.

Argued March 9, 1979.

Decided May 8, 1979.

James I. Meyerson (N.A.A.C.P., New York City, Nathaniel R. Jones and George E. Hairston, New York City, of counsel), for plaintiff-appellant.

Adele Graham, New York City (Ann Thacher Anderson, General Counsel, State Division of Human Rights, State of New York, New York City, of counsel), for amicus curiae.

Marvin Luboff, New York City (Kane, Kessler, Proujansky, Preiss & Nurnberg, P. C., New York City, Albert N. Proujansky, New York City, of counsel), for defendants-appellees.

Before SMITH, MANSFIELD and MULLIGAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from dismissal by the United States District Court for the Southern District of New York, Henry F. Werker, Judge, of an action for attorney's fees under 42 U.S.C. § 2000e-5(k). We find error and reverse and remand for allowance of attorney's fees.

This is a case of first impression involving the right of a successful party to collect attorney's fees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., for proceedings at the state administrative level. Based on the statutory scheme of Title VII, the legislative history and public policy, we reverse the denial below of an attorney's fee award, and hold that such a successful party is entitled to counsel fees under Title VII.

Facts

Appellant Cidni Carey applied for a position as a waitress with appellee New York Gaslight Club, Inc. in 1974. She was not offered a job. Believing that she was denied a position because of her race, Carey filed a complaint with the New York office of the Equal Employment Opportunity Commission ("EEOC").

Carey's complaint was referred to the New York State Division of Human Rights by the EEOC, in accordance with the statutory scheme of deferring to state mechanisms for resolving discrimination charges under Title VII. 42 U.S.C. § 2000e-5(c). Carey then filed a formal complaint with the state Division of Human Rights, at that agency's request. The state agency made a finding of jurisdiction and probable cause that unlawful discrimination had taken place. After conciliation efforts had failed, Carey's case was recommended for a public hearing. A hearing was held, concluding in January, 1976.

In August, 1976 the Division of Human Rights issued an order finding that the Gaslight Club had unlawfully discriminated against Carey on the basis of her race. The Division also directed the Club to offer Carey a waitress position and to award her back pay. The Gaslight Club appealed this order to the New York State Human Rights Appeal Board, which affirmed the finding of discrimination and order for relief. This decision was also affirmed by the Appellate Division of the New York Supreme Court. 59 App.Div.2d 852, 399 N.Y.S.2d 158 (1st Dept. 1977). The New York Court of Appeals subsequently denied leave to appeal in February, 1978. 43 N.Y.2d 648, 403 N.Y.S.2d 1026, 374 N.E.2d 630 (1978).

The EEOC was not directly involved in any of the state proceedings dealing with Carey's complaint. Carey's counsel ¹ communicated with the EEOC to inform that office of the course of the state proceedings. In July, 1977 Carey received a Notice of Right to Sue Letter from the EEOC. Within the statutorily required 90-day period, ² Carey filed a suit in federal district court.

In the district court, the only issue presented by Carey was the award of attorney's fees based on her success at the state administrative level, following referral to the state agency by the EEOC. Judge Werker denied the request for attorney's fees, holding that Carey could have been represented by a state-provided attorney if she had wished, and that the filing of a federal court suit while the state administrative

claim was still pending did not warrant an award of attorney's fees. For the reasons below, we reverse and remand for consideration of an award of counsel fees.

DISCUSSION

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e Et seq. The statute sets forth a detailed scheme of enforcement by the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5. ³ Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), provides that

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . .

The purpose of this provision for counsel fees is to facilitate the bringing of individual complaints in order to "effectuate the congressional policy against . . . discrimination." Johnson v. Georgia Highway Express,488 F.2d 714, 716 (5th Cir. 1974). See also, Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 418, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Such a statute which provides for attorney's fees awards in civil rights cases is aimed at enforcing congressional mandates against discrimination through private actions and should be read "broadly to achieve its remedial purpose." Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir. 1978). ⁴

Though § 706(k) on its surface provides for awards of counsel fees at the court's discretion, the policy developed by the Supreme Court favors awards of fees to successful plaintiffs unless there are special circumstances which would render such an award unjust. See Christianburg Garment Co., supra, 434 U.S. at 416-17, 98 S.Ct. 694. This approach stems from a recognition that it is in the public interest to aid Title VII enforcement through private actions, and a liberal reading of the attorney's fees provision encourages this effort. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), Citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam), And Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam). Accord, Rios v. Enterprise Association Steamfitters Local 638 of U. A., 400 F.Supp. 993, 995 (S.D.N.Y.1975), Aff'd 542 F.2d 579 (2d Cir. 1976), Cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977).

The issue in this case, then, is whether the general policy of awarding attorney's fees to successful plaintiffs in Title VII actions envisions an award to a party who is successful in pursuing her claim before the state human rights agency without having to pursue her case in federal court. There is no real question that Carey prevailed on the merits before the Division of Human Rights. ⁵ The question is whether § 706(k) encompasses fee awards to complaining parties who succeed at a step in the statutory scheme before they are forced to litigate their claims in federal court.

Deference to state mechanisms for resolving discrimination complaints is an integral part of the enforcement process under Title VII,42 U.S.C. § 2000e- 5(c), and submission to state remedies is a jurisdictional prerequisite to EEOC action. See Equal Employment Opportunity Commission v. Union Bank, 408 F.2d 867, 869 (9th Cir. 1968). The statutory framework of Title VII embodies a "federal mandate of accommodation to state action." Voutsis v. Union Carbide Corp., 452 F.2d 889, 892 (2d Cir. 1971), Cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972). Thus, there can be concurrent jurisdiction over a complaint by the EEOC and the state agency, Voutsis, supra, 452 F.2d at 892. In addition, oral referral to a state agency of a complaint filed with the EEOC acts to place the complaint in " suspended animation" until the state has terminated proceedings and "fully complie(s) with the intent" of Title VII. Love v. Pullman Co., 404 U.S. 522, 525-6, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972).

As explained in Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), the enforcement procedures in Title VII were designed to

assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex or national origin. . . . Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. (Citations omitted.)

Thus, state human rights agencies play an important role in the enforcement process of Title VII, since they afford a chance to resolve a discrimination complaint in accordance with federal policy before such a complaint reaches the federal courts.

The language of § 706(k) refers to attorney's fees awards in "any action or proceeding under this subchapter." The subchapter does include the description of deferral to state agencies by the EEOC, and uses the term " proceeding" to describe the state processes. 42 U.S.C. § 2000e-5(c). In light of this, and in light of the use of both "action" and "proceeding" in § 706(k), ⁶ the language of the statute is broad enough to encompass awards of counsel fees for work done in connection with administrative proceedings following referral to a state agency by EEOC. ⁷

Other circuits favor a broad reading of the attorney's fees provisions of Title VII to include compensation for work done in administrative proceedings. Fischer v. Adams, 572 F.2d 406 (1st Cir. 1978); Parker v. Califano, 182...