E.E.O.C. v. Monarch Mach. Tool Co., 996

• Citation: 737 F.2d 1444
• Decision Date: 22 June 1984
• Docket Number: No. 996,Nos. 77-3526,77-3527,AFL-CI,D,996,s. 77-3526
• Parties: 42 Fair Empl.Prac.Cas. 859, 34 Empl. Prac. Dec. P 34,486 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee, v. The MONARCH MACHINE TOOL COMPANY; and Local Lodgeof the International Association of Machinists and Aerospace Workers,efendants-Appellees Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1444

737 F.2d 1444

42 Fair Empl.Prac.Cas. 859,

34 Empl. Prac. Dec. P 34,486

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee, v. The MONARCH MACHINE TOOL COMPANY; and Local Lodge No. 996 of the International Association of Machinists and Aerospace Workers, AFL-CIO Defendants-Appellees Cross-Appellants.

Nos. 77-3526, 77-3527.

United States Court of Appeals Sixth Circuit.

Argued Dec. 12, 1979.

Decided Nov. 14, 1980.

Designated for Publication June 22, 1984.

Odas Nicholson, Asst. Gen. Counsel, MacArthur Drake, E.E.O.C., Chicago, Ill., William Ng, argued, Sharyn Lynn Danch, EEOC, Counsel, Washington, D.C., for plaintiff-appellant cross-appellee.

Richard A. DuRose, argued, Smith & Schnacke, Dayton, Ohio, for Monarch.

Bruce E. Pence, Dayton, Ohio, for Local Lodge No. 996.

Before ENGEL, MERRITT and KENNEDY, Circuit Judges.

ENGEL, Circuit Judge.

This Title VII litigation had its genesis when charging parties Carol Ross and Melissa Hanna applied to the Monarch Machine Tool Company (Monarch) in Sidney, Ohio, for jobs as general laborers and were rejected. Both women filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on the same day. The EEOC brought suit against Monarch and Local 996, International Association of Machinists, alleging that, from July 2, 1965 to the time of the suit, the company had intentionally engaged in unlawful employment practices, in violation of section 703(a) of Title VII of the Civil Rights Act of 1964, by refusing to hire women for factory work until July, 1974, and thereafter failing to hire women at the same rate as men. In its prayer for relief, the Commission sought a permanent injunction against the discriminatory employment practices, and sought to institute a program to provide equal employment opportunities for women "having the effect of eradicating the defendant's past and present unlawful practices." The Commission also requested the court "to order the company to make whole those persons adversely affected by the unlawful employment practices described herein, by providing appropriate backpay, with interest, in At trial, it was shown that Monarch had hired no women for factory work until July, 1974. The reason given by the company for this apparent discrimination was its reliance upon Ohio's female protective statutes, which effectively limited the company's ability to hire female employees for general labor of the nature required by Monarch. ¹ While the Ohio Supreme Court declared that these statutes conflict with Title VII, Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1 (1972), the company sought to establish before the district court that the lack of rest room facilities for women and budget restrictions caused by the company's financial condition restricted its ability to hire women for factory work until July, 1974, when it acquired temporary rest room facilities.

an amount to be proved at trial" and to afford "other affirmative relief necessary to eradicate the effects of its unlawful employment practices."

The EEOC sought a bifurcated trial at which the general allegations of sex discrimination would be established initially with specific relief to be later determined in separate proceedings. The district court, however, without ruling on the viability of class relief, brought the case on for trial on the merits generally. In a written opinion, the district judge ruled that the company's reliance upon the lack of rest room facilities was a "subterfuge" and held that Monarch had improperly refused to hire Ross and Hanna because they were women. He thereupon proceeded to award Ross and Hanna backpay from the date the company refused them employment on February 26, 1974, until July, 1974, when Monarch began generally hiring women. The court held that the evidence before it did not indicate that either Ross or Hanna had failed to seek other work diligently or had earned other wages which would reduce the award of backpay, and accordingly awarded $2,664 to both women, reflecting an hourly rate of $3.70 for an 18-week period. The district judge issued an injunction prohibiting Monarch from committing similar acts of discrimination in the future. The court also dismissed the charges against Local 996. Finally, the district judge held that the Commission had failed to prove that any other females were the victims of discrimination and declined to reopen the proceedings for the presentation of proof to that effect.

I.

At the time this case was tried in the district court, considerable uncertainty existed whether actions brought by the EEOC under Title VII must, if they sought class-wide relief, proceed subject to the specific rules governing class actions set forth in Rule 23 of the Federal Rules of Civil Procedure. The Supreme Court has recently fully resolved that issue in General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Relying upon the language of Title VII itself, the legislative intent underlying the 1972 amendments to the Civil Rights Act and the enforcement procedures which existed prior to the amendments, the Supreme Court held that Rule 23 is not applicable to an enforcement action brought by the EEOC under section 706. Because it is most apparent that had the trial judge possessed the advantage of the Supreme Court's ruling in General Telephone Company of the Northwest, supra, at the time of trial, he would have proceeded with the class action aspects of the suit in the manner sought by the Commission, we note at the outset that a general remand is necessary for this purpose.

A number of other issues have been raised by the parties in their cross-appeals. Because the case must in all events be remanded, we also proceed to deal with these issues, finding merit in many of them, and conclude that a vacation of the entire judgment and de novo trial is the means most fairly and efficiently to remedy the errors found herein.

II.

In its cross-appeal Monarch complains that the trial judge, in finding it guilty of sex discrimination, relied upon certain evidence which he requested that the company submit at the close of the trial. Monarch complied, but the district judge did not permit the company to reopen the proof to present any rebuttal evidence concerning the relevance and accuracy of that evidence. Specifically, the district judge at the close of trial requested all of the applications for employment which Monarch received from October, 1973 through October, 1974, stating at the time:

I mean I am not going to have another hearing on this. I'm not taking the position that this is critical information or even dispositive information. I simply want to see it for my own background information, and if counsel wishes to make a copy available to you, I don't care, but I am not going to require it.

Although the trial judge stated that the applications would not be considered dispositive, he in fact specifically relied upon this evidence in finding Monarch guilty of discrimination. In our view, it was error for the trial judge to have so considered the evidence without giving Monarch an opportunity for a response, and to have used it for a purpose and to an extent not indicated by him when he requested it.

The circumstances here are not unlike those in Wright v. Southwest Bank, 554 F.2d 661 (5th Cir.1977), where the Fifth Circuit held that it was error for the trial court to have considered evidence which was filed after the parties had completed the presentation of their proof. We agree with the following observation in Wright:

A trial judge, sitting without jury, is entitled to great latitude concerning the admission or exclusion of evidence, but it is error to accept evidence ex parte because it is inherently unfair to allow one party to put evidence before the court without allowing his opponent the opportunity to test its validity.

554 F.2d at 663 (footnote omitted). See also Fireman's Fund Insurance Co. v. Wilburn Boat Co., 259 F.2d 662 (5th Cir.1958). ²

Because we are remanding for a trial de novo, Monarch will have an opportunity to present evidence to attempt to explain the information contained in the applications and to dispel the inferences which the district judge drew therefrom. Likewise, the EEOC may wish to offer additional evidence to explain the significance of these applications because it, like Monarch, was denied the opportunity to address this issue in the district court.

III.

Monarch in its cross-appeal also asserts that the district judge erred in granting general injunctive relief. It argues that such a grant was unnecessary because since July, 1974, Monarch had discontinued any discriminatory hiring practices with respect to female applicants.

As we have noted before, because of our general vacation of the judgment below and remand for new trial, it is not possible to anticipate what may be the ultimate judgment of the district court on remand. It is true that we have upheld the denial of injunctive relief in other Title VII cases where the evidence showed that, while there may have been discriminatory practices in the past, there was no longer any evidence of such discrimination and such relief was not needed. Donnell v. General Motors Corp., 576 F.2d 1292 (8th Cir.1978). At the same time we have consistently recognized that the matter is one for the proper exercise of judicial discretion. Thus, in EEOC v. New York Times Broadcasting Service, Inc., 542 F.2d 356 (6th Cir.1976), we upheld a district court's grant of an injunction where the evidence indicated The defendant in its brief and the district court in its opinion rely heavily upon the corrective practices which have been taken by the television station since the filing of Ms. Wilson's complaint and the filing of the EEOC action in the district court. It may be true that under new management more enlightened attitudes have...