Howard v. Lockheed-Georgia Co.

• Decision Date: 19 March 1974
• Docket Number: Civ. A. No. 17512.
• Citation: 372 F. Supp. 854
• Parties: Nathaniel HOWARD v. LOCKHEED-GEORGIA CO. and International Association of Machinists and Aerospace Workers, Local No. 709.
• Court: U.S. District Court — Northern District of Georgia

372 F. Supp. 854

Nathaniel HOWARD v. LOCKHEED-GEORGIA CO. and International Association of Machinists and Aerospace Workers, Local No. 709.

Civ. A. No. 17512.

United States District Court, N. D. Georgia, Atlanta Division.

March 19, 1974.

Isabel Webster, Patterson, Parks & Franklin, Atlanta, Ga., for plaintiff.

R. Lawrence Ashe, Jr., Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., Robert P. Barton, Marietta, Ga., Lockheed Georgia Legal Dept., for defendant Lockheed.

Adair, Goldthwaite, Stanford & Daniel, P. A., Patrick M. Scanlon, Atlanta, Ga., for Local No. 709.

ORDER OF COURT

MOYE, District Judge.

This case is presently before the Court on a motion by defendant Lockheed-Georgia Company for reconsideration of this Court's order of October 16, 1973, deferring until the time of trial decision on the motion to dismiss paragraph 12 of the complaint and on a motion by the International Association of Machinists and Aerospace Workers, Local No. 709 hereinafter Lodge 709 seeking dismissal of paragraph 13 of the amended complaint.

The motion filed by Lockheed-Georgia Company urges prompt resolution of the damage issues raised by its previous motion to dismiss on the grounds that it will incur an additional $5,000 in discovery expenses, perhaps needlessly, should it ultimately prevail in its position. For this reason, and because the motion for reconsideration is unopposed, the Court will consider herein the question of whether paragraph 12 of the amended complaint should be dismissed.

The instant suit seeks redress for alleged unlawful employment practices and is brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. §§ 2000e, 2000e-3 to 2000e-5(f), 42 U. S.C. § 1981, 28 U.S.C. § 1343(4), and 28 U.S.C. §§ 2201 and 2202. Plaintiff also proceeds under 29 U.S.C. § 151 et seq., charging Lockheed-Georgia with participating or acquiescing in Lodge 709's violation of its duty of fair representation.

Paragraph 12, the subject of Lockheed-Georgia's motion to dismiss, contains an allegation that the plaintiff has suffered emotional stress and injury as a result of the alleged racially discriminatory policies.

Briefs in support of the motion to dismiss argue that injuries of this nature are not compensable under the above-cited statutes and that plaintiff's prayer for compensatory and punitive damages must be stricken.

With respect to proceedings under the National Labor Relations Act, Lockheed-Georgia's point is well taken. Section 10(c) of the Act, 29 U.S.C. § 160(c), authorizes discretionary awards of back pay and other affirmative relief, but nowhere does it provide for the recovery of compensatory or punitive damages. E. g., Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L. Ed.2d 1030 (1958); United Workers v. Laburnum Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954). This determination is relevant to plaintiff's Title VII claims, as will be demonstrated below.

It is undisputed that 42 U.S.C. § 2000e-5(g), as amended by the Equal Employment Opportunity Act of 1972, applies to the instant case; it provides in pertinent part as follows:

"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 . . . or any other equitable relief as the court deems appropriate."

A cursory reading of the above-cited statutory language reveals that no provision is made for the award of general compensatory damages let alone punitive damages. Such an interpretation comports with this Court's construction of pre-amendment § 2000e-5(g) in Guthrie v. Colonial Baking Co., C.A. 16455 (N. D.Ga. Aug. 9, 1972). See also Attkisson v. Bridgeport Brass Co., 5 EPD ¶ 8522 (S.D.Ind.1972).

In Attkisson, supra, the court pointed out that pre-amendment § 2000e-5(g) provided a limited equitable remedy and found that "the remedial intent of Title VII was to eliminate discriminatory practices rather than create a cause of action for personal injuries otherwise actionable." 5 EPD ¶ 8522 at p. 7482. Indeed, the United States Court of Appeals for the Fifth Circuit has emphasized that a claim for back pay pursuant to Title VII "is not in the nature of a claim for damages, but rather is an integral part of the statutory equitable remedy. . . ." Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969).

Further support for this conclusion is found in Van Hoomissen (Equal Employment Opportunity Commission) v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal. 1973). The Van Hoomissen court's analysis of the language and statutory history of Title VII yielded a finding that Title VII was modeled after Section 10(c) of the National Labor Relations Act, 29 U.S.C. § 160, under which, as noted above, compensatory and punitive damages are not allowable. It was also noted in Van Hoomissen that in 1968 Title VII was amended to allow the award of compensatory and punitive damages, whereas, the 1972 amendments to Title VII omit any such damage provisions.

This Court is of the opinion that had Congress intended Title VII to authorize actions for compensatory and punitive damages of the kind prayed for here, it would have made clear that desire. The omission of any such provision in a statute which sets forth the types of relief which may be afforded to an aggrieved person must be deemed to have been intentional.

Accordingly, paragraph 12 of the complaint must be dismissed insofar as it purports to state a claim for compensatory and punitive damages under 42 U. S.C. § 2000e et seq.

Plaintiff's claim for compensatory and punitive damages under 42 U.S.C. § 1981 raises difficult questions with respect to the reach and breadth to be afforded that statute and its interrelation with Title VII. 42 U.S.C. § 1981 provides in pertinent part as follows:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." (emphasis added)

Section 1981 and its statutory sibling, 42 U.S.C. § 1982¹ had their common genesis in the Civil Rights Act of 1866.² The full potential of these statutory provisions was not realized until 1968, however, when the Supreme Court decided in Jones v. Alfred Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), that Section 1982 forbids purely private acts of discrimination. Finding that the common origin of Sections 1981 and 1982 dictate a consistent construction, the Circuit Courts of Appeal which have reached the issue have unanimously concluded that state action is not a necessary ingredient to a Section 1981 suit. Young v. Int'l Tel. & Tel., 438 F.2d 757 (3d Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). The Waters, Sanders, and Young opinions also held that Section 1981 applies to employment discrimination cases of the kind presently under consideration.

But there has been no definitive pronouncement as to the types of damages which may be recovered under Section 1981 in an action to redress racially motivated employment discrimination. Analysis of many reported cases is rendered difficult by the fact that the plaintiffs therein proceeded under several of the civil rights statutes, and many opinions use the term "damages" generically without specifying whether it is meant to embrace general compensatory and punitive damages or merely a more limited award of back pay.

Neither Section 1981 nor Section 1982 contains any provision authorizing the award of damages or any other form of relief. Nevertheless, the Supreme Court made clear in Jones v. Alfred Mayer Co., supra, and Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L.Ed.2d 386 (1969), that both equitable relief and compensatory damages may be awarded for violations of Section 1982. In so doing, the Sullivan opinion explicitly relied on 28 U.S.C. § 1343(4) which creates federal jurisdiction for "damages or . . . equitable or other relief under any Act of Congress providing for the protection of civil rights . . . ." and on 42 U. S.C. § 1988.³ With respect to the latter, Justice Douglas observed:

"This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 5 Cir., 293 F.2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." 396 U.S. at 240, 90 S.Ct. at 406.

The Court believes that the federal rule of damages set forth in Title VII is the proper standard to be applied in this Section 1981 action.

In Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), the United States Court of Appeals for the Fifth Circuit held that a plaintiff who had deliberately bypassed the administrative procedures of Title VII could nevertheless proceed under 42 U.S.C. § 1981. Although Caldwell specifically rejected the exhaustion requirements imposed by the Seventh Circuit in Waters v. Wisconsin Steel Works, supra, it advised that in proper situations relief under Section 1981 be stayed during the pendency of the Title VII conciliatory process. Page 1046 of the Caldwell opinion recommended this approach as one which "melds the Title VII policy into the § 1981 remedy." Thus, it appears that this circuit, while recognizing Section 1981 as an independent jurisdictional basis for employment discrimination suits, encourages harmonization...