Harrington v. Vandalia-Butler Bd. of Educ.

Decision Date27 October 1978
Docket NumberVANDALIA-BUTLER,No. 76-2646,76-2646
Citation585 F.2d 192
Parties18 Fair Empl.Prac.Cas. 348, 48 A.L.R.Fed. 328, 18 Empl. Prac. Dec. P 8828 Jeanne HARRINGTON, Plaintiff-Appellee, v.BOARD OF EDUCATION, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Larry A. Smith, Young, Pryor, Lynn, Falke & Jerardi, Dayton, Ohio, Nicholas A. Pittner, Means, Bichimer, Burkholder & Baker Co., L.P.A., Columbus, Ohio, for defendant-appellant.

Randal S. Bloch, Cincinnati, Ohio, Barbara Kaye Besser, Cleveland, Ohio, for plaintiff-appellee.

Before EDWARDS and ENGEL, Circuit Judges, and NEESE, District Judge. *

ENGEL, Circuit Judge.

The Vandalia-Butler Board of Education (Board) appeals from a judgment of $6,000 1 and an award of $2,000 attorneys' fees and costs entered in the district court in favor of Jeanne Harrington, a former physical education teacher at Morton Junior High School in Vandalia, Ohio. The district court held that, in furnishing her working conditions inferior to those of male teachers performing the same services, the defendant Board discriminated against plaintiff Harrington on account of her sex, in violation of Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1) (1976). 2

The trial judge's finding that Mrs. Harrington was discriminated against on account of her sex has support in the record. The evidence showed that the facilities provided Mrs. Harrington at Morton Junior High School were neither equal nor even comparable to those provided male physical education teachers. While male physical education teachers were given an office which was totally self-contained and could be locked to insure privacy and prevent theft, Mrs. Harrington's office was a small, unsecure space, carved out of the girls' locker room by a partition providing only partial privacy. Male physical education teachers were provided with a private toilet, lockers and shower facilities for their exclusive use and which they did not share with students. No such private facilities, however, were provided for Mrs. Harrington, forcing her to use the student facilities. 3 The intentionally discriminatory nature of the disparity was shown by evidence that when a male teacher was assigned to teach girls physical education, he was assigned to the larger gymnasium and was not required to move his offices or to work in the girls' gym.

In June, 1972 Mrs. Harrington elected to accept a voluntary disability retirement instead of transfer to another junior high school. She has not since sought to re-enter the Vandalia-Butler system as an active school teacher. While she asserted in her complaint filed in the district court that she was discriminated against in terms of salary and job description and claimed that her disability retirement was forced upon her, tantamount to a constructive discharge from her employer, the district court found these claims had not been established and she does not appeal from the denial of that relief. The district court's only finding of discrimination was in the area of working conditions and its award was compensatory to remedy this violation of Title VII.

I.

The Board's appeal calls for us to decide whether an award of compensatory damages of the nature involved here may properly be included as a part of the remedy provided in Title VII:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.

Section 706(g) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g) (1976). We hold that the Congress did not intend to authorize the recovery of such damages under Title VII and accordingly reverse.

There is no direct Supreme Court authority and surprisingly little authority among the circuits on the question of whether compensatory damages, in addition to any backpay, can be awarded in a Title VII action. In Equal Employment Opportunity Commission v. Detroit Edison Company, 515 F.2d 301 (6th Cir. 1975), Vacated on other grounds, 431 U.S. 951, 97 S.Ct. 2669, 53 L.Ed.2d 267 (1977), our court held that punitive damages were not recoverable under Title VII. The same logic which in Detroit Edison supported the denial of punitive damages applies equally to compensatory damages:

The relief provisions of Title VII contained in Section 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), do not specifically authorize an award of either compensatory or punitive damages for discrimination in employment practices. . . . (I)n dealing with its power to award punitive damages in this case, the court (district court below) referred to the 1972 amendment to Section 706(g) which provides:

(T)he court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.

We find no authority in the quoted language for the award of punitive damages. We know of no authority which holds that the awarding of punitive damages is equitable relief. The catchall phrase, "other equitable relief as the court deems appropriate," does not stand alone. It is limited, under the construction doctrine of Ejusdem generis, to relief of the same kind as that specifically enumerated. While affirmative action may not be limited to the reinstatement or hiring of employees with or without back pay, we believe that it is limited to relief of the same general kind, that is, equitable relief in the form of restitution.

We are not unaware of arguments which have been made in favor of allowing punitive damages in Title VII cases. See Developments in the Law Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1261 (1971); Implying Punitive Damages in Employment Discrimination Cases, 9 Harv.Civ.Rights-Civ.Lib.L.Rev. 325 (1974). In two recent district court cases, it has been held that punitive damages may not be allowed in Title VII actions. See Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973), and Howard v. Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga.1974). In Van Hoomissen, the court considered the somewhat sketchy legislative history with respect to Section 706(g) and concluded that Congress did not intend to permit an award of punitive damages in Title VII cases. We have been cited to nothing in the legislative history which would compel a different determination.

In the Howard case, the court found that Congress would have made clear any intention to authorize compensatory and punitive damages in Title VII cases.

515 F.2d at 308-09.

Judge Lively's reference to Van Hoomissen v. Xerox Corporation, 368 F.Supp. 829 (N.D.Cal.1973), is particularly useful to our consideration of the question of whether Congress intended to permit an award of compensatory damages. District Judge Oliver J. Carter observed in Van Hoomissen :

"The question of the propriety of punitive and compensatory damages in Title VII cases has only recently arisen in the courts, and the results have been mixed.

"Some courts have held that punitive damages are an appropriate form of relief in a Title VII case, e. g. Tooles v. Kellogg, 336 F.Supp. 14 (Neb.1972) (court struck claim for compensatory relief but allowed claim for punitive damages to be retained).

"Compensatory damages have also been allowed, e. g. Tidwell v. American Oil Co., 332 F.Supp. 424 (Utah 1971) (plaintiff allowed 6% Interest on back wages and contributions defendant would have made to group life insurance plan and company savings); Rosen v. Public Service Electric and Gas Co., 477 F.2d 90 (3rd Cir. 1973) (male employees who received reduced retirement benefits where women in the same position were awarded full benefits received the difference).

"Other cases have refused to award any monetary damages other than back pay on the theory that the statute speaks of back pay only as an additional and limited remedy to equitable relief, e. g. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969) ('The demand for back pay is not in the nature of a claim for damages, but rather is an integral part of the statutory equitable remedy', 417 F.2d at 1125).

"After examining the lengthy legislative history of Title VII, in addition to the briefer history surrounding the 1972 amendments, this Court finds that Congress, when it drew up that part of the statute dealing with remedies for unlawful employment practices, had in mind a wide panorama of equitable tools that courts might use but did not intend that courts would punish defendants by imposing upon them large money awards in the form of compensatory or punitive damages.

"Although the 1964 discussion in Congress regarding Section 2000e-5(g) is not terribly illuminating, it does seem apparent from a reading of the Congressional debates and the legislative record that the main purpose of Title VII as seen by its proponents was to 'seek to give people an opportunity to be hired on the basis of merit' (remarks by Senator Humphrey in introducing the Civil Rights Bill for debate in the Senate on March 30, 1964, 110 Cong.Rec. 6549). According to the House Report on the Bill, '(t)he purpose of this title is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment' (House Report No....

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