Drew v. Liberty Mutual Insurance Company

• Citation: 480 F.2d 69
• Decision Date: 12 July 1973
• Docket Number: No. 72-3003.,72-3003.
• Parties: Sandra J. DREW, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

480 F.2d 69 (1973)

Sandra J. DREW, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 72-3003.

United States Court of Appeals, Fifth Circuit.

June 4, 1973.

Rehearing and Rehearing Denied July 12, 1973.

Clayton Sinclair, Jr., Lenwood A. Jackson, Atlanta, Ga., Robert A. Penney, Boston, Mass., for plaintiff-appellant.

Lutz Alexander Prager, EEOC, Washington, D. C., Joseph Ray Terry, Regional Atty., EEOC, Atlanta, Ga., amicus curiae.

Kalvin M. Grove, S. Richard Pincus, Chicago, Ill., Melburne D. McLendon, Atlanta, Ga., for defendant-appellee.

Before TUTTLE, THORNBERRY and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 12, 1973.

TUTTLE, Circuit Judge:

This is an appeal by Sandra Drew, a white female¹ employee of Liberty Mutual Insurance Company seeking a preliminary injunction to prevent her employer from discharging her for what she alleged to be the filing of a complaint of discrimination on account of sex by her employer.

The complaint which was filed on April 19, 1972, alleged in effect: (a) That Liberty Mutual, Drew's employer discriminated against female employees in the terms and conditions of employment in violation of Title VII of the Civil Rights Act of 1964, (b) That on April 6, 1972, she had filed a charge of discrimination with the Equal Employment Opportunity Commission, outlining Liberty Mutual's violations of Title VII, (c) That on April 7, 1972, the day after the filing of the charge, she had been fired, and (d) That her discharge was in retaliation for having filed her charge with the Commission and for opposing practices prohibited by Title VII. She alleged that this violated subsection 704(a) of Title VII.²

Ms. Drew's complaint sought an order temporarily reinstating her to the position she had held, awarding pay for the period she had been unemployed, prohibiting future reprisal. It sought to obtain temporary relief to preserve the status quo pending the Commission's administrative disposition of her charges.

On May 2, Liberty Mutual moved to dismiss the complaint, primarily on the grounds that it failed to state a claim and, secondarily, on grounds that an indispensable party, the Commission, had not been joined. The trial court held a hearing on the motion to dismiss on May 4, and, according to the transcript of the proceedings, expressed a strong doubt as to the right of the individual employee to maintain such an action in light of the amendment to Title VII made effective in 1972, which amendment, for the first time, provided that in exceptional circumstances, following the filing of a complaint, the Commission "may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge."

Nevertheless the court did not dismiss the complaint but allowed the plaintiff's counsel additional time to file an amended complaint. One amendment was filed May 10, 1972, alleging a conspiracy in violation of one of the Civil War Civil Rights Acts, 42 U.S.C. § 1985(3), a ground for relief that has now been abandoned. A further amendment was filed May 23, 1972, which alleged that the Commission had, at Drew's request, issued a "Notice of Right to Sue Within 90 Days" on May 18, 1972.

In the meantime, on May 12, 1972, the Commission filed a complaint of its own alleging substantially the same fact as contained in the Drew complaint. It also sought the same injunctive relief. It must be noted that this was not a suit for final relief as provided for under Section 706(f)(1) of the Act. It was filed under the emergency provisions of Section 706(f)(2) seeking temporary relief pending the Commission's action on the original charge.

On May 30-31, 1972, a hearing was held, as stated by the trial court, on the suit filed by the Commission, although Drew's counsel was permitted to participate.

At this hearing the trial court found sufficient evidence to conclude that the Drew discharge had been retaliatory, in violation of subsection 704(a) and to warrant the granting of injunctive relief. In doing so, the court specifically found that the plaintiff had suffered irreparable harm. The court ordered Liberty Mutual to reinstate Ms. Drew at her former position with back pay. This judgment has recently been affirmed by this court. Equal Employment Opportunity Commission v. Liberty Mutual Insurance Co., 475 F.2d 579 (5th Cir. 1973).

Subsequently, the trial court dismissed the Drew complaint and awarded costs to the defendant. In its order the court held that Title VII did not confer jurisdiction to a private party to maintain a suit for injunctive relief, or any other relief, prior to the expiration of 180 days from submission of a charge to the Commission. In addition the court held that it lacked jurisdiction under its equitable powers because "the equity powers which the plaintiff and the EEOC assert that the court should exercise must be employed, if at all, only when there is no statutory basis for granting relief and when the relief sought cannot be obtained through any other forum or procedure." The court concluded that since the Commission had filed suit it was not necessary for Ms. Drew to invoke the extraordinary equity powers of the court in order to obtain the relief sought. The court held, therefore, that her action was "superfluous." It therefore dismissed the case "for lack of subject matter jurisdiction."

The court then made the following statement

"However it is the opinion of the court that the plaintiff should be allowed to intervene in the case of EEOC v. Liberty Mutual Life Insurance Co., Civil Action No. 16590. Up to the present time, plaintiff\'s interests have been adequately preserved by the existence of her individual action, now dismissed by virtue of this order. In the future her interests can best be protected by intervention. Accordingly, she is directed to make application for intervention pursuant to Rule 24, Fed.R.Civ.P." (Emphasis added).

This wound up the matter below, except that costs were granted to the defendant and no attorney's fees for the plaintiff's counsel were allowed.

As we have pointed out, Ms. Drew has, under an order of the court, been reinstated to her position, pending further proceedings before the Commission. On the basis of this fact, the defendant contends that the case before us is now moot. We think the case is not moot, because the plaintiff below has been cast for court costs and, in spite of what the record in the trial court shows to have been a very substantial amount of effort expended on behalf of their individual client, who ultimately prevailed, at least by their joint efforts with counsel for the EEOC, the trial court did not even consider the propriety of awarding counsel fees as is authorized under the statute.

We are satisfied that if we should conclude that the Drew complaint, at the time it was filed, and for a period of time during which counsel performed substantial service for her, was properly in the district court, it would be our duty to remand to the trial court either for reinstatement of the suit, or for relieving the plaintiff of her obligation to pay for the costs of the action. The trial court would then also consider the award of attorney's fees for service performed for Ms. Drew.

The basic question decided by the trial court, and which we now hold is still a viable issue, is whether, when Congress enacted the 1972 amendments to the statute which for the first time gave the EEOC the right to file suit both for the enforcement of the rights of the employee and also to seek temporary relief in a hardship case, it made such provision the exclusive means by which a person in Ms. Drew's position could be protected from irreparable damage to herself.

We conclude that in the limited class of cases, such as the present, in which irreparable injury is shown and likelihood of ultimate success has been established, (here this has been determined by the trial court), the individual employee may bring her own suit to maintain the status quo pending the action of the Commission on the basic charge of discrimination.

Our reasoning derives from the fact that, prior to the 1972 amendment, it is clear that a victim of such forbidden conduct as was here alleged had a clear right to seek equitable relief without having to await the convenience of the EEOC. The 1964 Act gave no power to the EEOC to bring such an action. However, the right to be free from such discriminatory conduct was expressly spelled out in the Act.³ Thus, the court would have jurisdiction to fashion an equitable remedy to vindicate the right. See e. g., Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970).

The situation in which Ms. Drew found herself would have been equated to that of Ms. Sanders in the Dobbs case. Ms. Sanders sued under 42 U.S. C.A. § 1981,⁴ one of the 1866 Civil Rights Acts. This Act, as will be seen, did not prescribe any remedy. It merely created a right in every person to make and enforce contracts "as is enjoyed by white citizens." Yet in Dobbs we sustained the right of Ms. Sanders to bring an action in equity in the district court. In doing so, we relied upon the Supreme Court decision in Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L. Ed.2d 1189. The Supreme Court said:

"The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy. See, e. g. Texas & N.O.R. Co. v. Railway Clerks, 281 U.S. 548, 568-570, 50 S.Ct. 427, 433, 74 L.Ed. 1034; Deckert v. Independence Corp., 311 U.S. 282, 288, 61 S.Ct. 229, 333, 85 L.Ed. 189; United States v. Republic Steel Corp., 362 U. S. 482, 491-492, 80 S.Ct. 884, 889-890, 4 L.Ed.2d 903; J. I. Case Co. v. Borak, 377 U.S. 426, 432-435, 84 S.Ct. 1555, 1559-1561, 12 L.Ed.2d 423; Cf. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714; Griffin v. School Board

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