E.E.O.C. v. General Lines, Inc.

• Decision Date: 20 January 1989
• Docket Number: No. 87-1253,87-1253
• Citation: 865 F.2d 1555
• Parties: 51 Fair Empl.Prac.Cas. 971, 48 Empl. Prac. Dec. P 38,623, 110 Lab.Cas. P 35,171 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GENERAL LINES, INC., dba Bi-Rite Payless Drugs, Inc., Bi-Rite Package, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1555

865 F.2d 1555

51 Fair Empl.Prac.Cas. 971,

48 Empl. Prac. Dec. P 38,623,

110 Lab.Cas. P 35,171

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GENERAL LINES, INC., dba Bi-Rite Payless Drugs, Inc. Bi-Rite Package, Inc., Defendants-Appellees.

No. 87-1253.

United States Court of Appeals Tenth Circuit.

Jan. 20, 1989.

John F. Suhre (Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, with him, on the briefs), E.E.O.C., Washington, D.C., for plaintiff-appellant.

Bruce P. Badley (Clay B. Jenkins with him, on the brief), Sheridan, Wyo., for defendants-appellees.

Before MOORE, BARRETT and TACHA, Circuit Judges.

BARRETT, Senior Circuit Judge.

This is an appeal by plaintiff-appellant Equal Employment Opportunity Commission (EEOC) from a final order in an employment discrimination action brought on behalf of Ms. Sandra Angel and Ms. Joyce Christiansen, pursuant to Section 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-3(a) against General Lines, Inc., d/b/a Bi-Rite Payless Drugs, Inc., and Bi-Rite Package, Inc. (Bi-Rite Liquor), a retail liquor store located in Riverton, Wyoming. EEOC does not challenge the award of back pay. It does, however, challenge the district court's denial of reinstatement or front pay awards to Angel and Christiansen in lieu thereof and the court's refusal to enjoin Bi-Rite Liquor from retaliating against the charging parties or any other employees for opposing employment practices rendered illegal under Title VII.

This action was initiated by EEOC on behalf of Sandra Angel and Joyce Christiansen seeking lost wages, back pay and other relief to enforce the prohibitions against retaliatory discharges proscribed under Sec. 704(a) of Title VII, 42 U.S.C. Sec. 2000e-3 ¹; and Sec. 15(a)(3) of the Fair Labor Standards Act, 29 U.S.C. Sec. 215(a)(3) and 29 U.S.C. Sec. 206(d)(1) (The Equal Pay Act). ² The crux of the EEOC complaint was that on or about November 21, 1982, Ms. Sandra Angel and Ms. Joyce Christiansen, then employed as clerks at Bi-Rite Liquor, spoke with Mr. John Prideaux, co-owner of the business, and expressed their good faith complaint that a Mr. Dick Welch, also a clerk at the liquor store but junior in terms of seniority to them, was being paid a higher hourly wage for the same work. Angel and Christiansen were fired three days later in retaliation for their good faith complaint. The EEOC requested a jury trial on all questions of fact raised by its complaint.

The parties stipulated that the case did not involve any issue of unequal pay and that the pay was equal. (R., Vol. II, pp. 68-9). The district court empaneled an advisory jury pursuant to Fed.R.Civ.P. 39(c). The issue of retaliatory discharge was submitted to the advisory jury, together with the issue of lost wages and back pay. The EEOC, through its expert witness, Ms. Ellen Pearcy, opined that Ms. Christiansen's lost wages-back pay amounted to $4,603.37, excluding interest, and that Ms. Angel's lost wages-back pay amounted to $27,943.92, excluding interest. Id. at pp. 78, 80. The jury awarded Ms. Angel the sum of $916.00 and Ms. Christiansen the sum of $1,002.00. The district court entered judgment thereon, with interest at the rate of 6.18 percent (R., Vol. I, Document 97, pp. 1-2).

The EEOC filed a motion requesting that the court enter an order altering or amending the jury verdict granting damages or backpay to Ms. Angel in amount of $27,943.92 and to Ms. Christiansen in amount of $4603.37 pursuant to Fed.R.Civ.P. 59(c) or, in the alternative, a judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b) to compute and award damages as prayed (R., Vol. I, Document 100). In addition, the EEOC moved the court for judgment on its Title VII claims. Id. The court denied each of these motions. Thereafter, the court entered its Findings of Fact and Conclusion of Law on the Title VII claims denying all of the EEOC's requests for equitable relief (R., Vol. I, Document 108). The court found/concluded, inter alia:

That Dick Welch, who was hired at Bi-Rite Liquor after Sandra Angel and Joyce Christiansen were hired was paid a higher wage "[b]ecause he performed additional maintenance tasks in defendant's drug store as well as defendant's liquor store."

That Sandra Angel and Joyce Christiansen learned of the wage disparity and, believing in good faith that Bi-Rite Liquor was engaging in an unlawful employment practice by paying Dick Welch a higher hourly wage, contacted and spoke with Mr. John Prideaux, co-owner of Bi-Rite Liquors, on November 21, 1982, and complained about the wage disparity involving substantially the same work;

That three days later, on November 24, 1982, Bi-Rite Liquors discharged Angel and Christiansen and these discharges were in retaliation for their good faith objection to that which they believed to be an unlawful employment practice;

That Bi-Rite Liquors failed to establish a legitimate, nondiscriminatory reason for the discharges of Angel and Christiansen;

That the jury found in favor of Angel and Christiansen but awarded them substantially less back pay than they sought; that denying back pay in these circumstances does not frustrate the broad purposes of Title VII; that Angel and Christiansen obtained employment following their discharges and are no longer entitled to back pay; the court therefore declines to enter a second award of back pay;

That the EEOC failed to show that Bi-Rite Liquors continues to engage in unlawful employment practices and thus there is no need for the permanent injunction requested; further, the injunction requested by the EEOC fails to meet the specificity requirements of Fed.R.Civ.P. Sec. 65(d);

That reinstatement of Sandra Angel and Joyce Christiansen is denied because both found other work following their discharges, and further because Sandra Angel relocated to Montana and reinstatement under these circumstances would not protect her, and further because hostility between Joyce Christiansen and Bi-Rite Liquors was such as to preclude a productive working relationship.

The district court concluded:

This result does not frustrate the objectives of Title VII. Remedies under the Act are intended to achieve equal employment opportunity and to deter employment discrimination. Albermarle Paper Co. v. Moody, 422 U.S. at 421 [95 S.Ct. 2362 at 2373, 45 L.Ed.2d 280 (1975) ]. Another purpose is to make persons whole for injuries suffered because of unlawful employment discrimination. Rich v. Martin Marietta Corp., 522 F.2d 333, 342 (10th Cir.1975). The remedies sought by plaintiff will not serve the purposes of Title VII given the facts of this case. First, plaintiff failed to show a continuing practice of employment discrimination. Second, Sandra Angel no longer resides in the community. Third, reinstatement will merely promote friction. Moreover, the jury assessed damages against the defendant. This award will deter future unlawful employment actions by defendant, promote equal employment opportunity, and compensate Sandra Angel and Joyce Christiansen for their injuries.

Id. at 3-4.

On appeal, the EEOC contends that the district court erred by (1) refusing to grant reinstatement to Angel and Christiansen, (2) failing to award front pay if reinstatement was inappropriate, and (3) by failing to enjoin the defendant from retaliating in the future.

I. and II.

EEOC contends that the district court erred by refusing to grant reinstatement to Angel and Christiansen or to award front pay if reinstatement was inappropriate.

Our standard for review is governed by the clearly erroneous rule. We may not set aside trial court findings and determinations on appeal unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Verniero v. Air Force Academy District 20, 705 F.2d 388 (10th Cir.1983) (a Title VII action). The "clearly erroneous" rule was well articulated in Higgins v. State of Okla. Ex Rel. Okla. Emp. Sec., 642 F.2d 1199, 1202 (10th Cir.1981):

[F]indings are not to be determined clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Reyes v. Hoffman, 580 F.2d 393 (10th Cir.1978). As an appellate court, it is not for us to determine whether the trial court reached the correct decision, but whether it reached a permissible one in light of the evidence. "When a case is tried to the district court, the resolution of conflicting evidence and the determination of credibility are matters particularly within the province of the trial judge who heard and observed the demeanor of the witnesses." Dowell v. United States, 553 F.2d 1233, 1235 (10th Cir.1977).

Secondly, the grant of affirmative relief pursuant to 42 U.S.C. Sec. 2000e-5(g) ³ "may" be invoked by the district court in order to achieve the "make whole" purposes of Title VII. Thus, in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421-22 [95 S.Ct. 2362, 2373-74, 45 L.Ed.2d 280] (1975), the Supreme Court defined the 'discretionary' powers of the district courts under Title VII:

It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. ¹⁴

14. It is necessary, therefore, that if a district court does decline to award backpay, it carefully articulate its reasons). The courts of appeals must maintain a consistent and principled application of the backpay provisions, consonant with the twin statutory objectives, while at the same time recognizing that ...