Jones v. Intermountain Power Project, s. 84-2450

• Decision Date: 16 June 1986
• Docket Number: Nos. 84-2450,84-2455,s. 84-2450
• Citation: 794 F.2d 546
• Parties: 41 Fair Empl.Prac.Cas. 1, 41 Empl. Prac. Dec. P 36,423, 55 USLW 2038, 5 Fed.R.Serv.3d 63 Luther E. JONES, Plaintiff-Appellant, v. INTERMOUNTAIN POWER PROJECT, Intermountain Power Agency, Department of Water and Power, City of Los Angeles, Black & Veatch, Diane Hill, Candice Corbett, and John Does 1-10, Defendants-Appellees. Luther E. JONES, Plaintiff-Appellee, v. INTERMOUNTAIN POWER PROJECT, Intermountain Power Agency, Department of Water and Power, City of Los Angeles, Diane Hill, Candice Corbet, and John Does 1-10, Defendants, Black & Veatch, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 546

794 F.2d 546

41 Fair Empl.Prac.Cas. 1, 41 Empl. Prac. Dec.

P 36,423,

55 USLW 2038, 5 Fed.R.Serv.3d 63

Luther E. JONES, Plaintiff-Appellant, v. INTERMOUNTAIN POWER PROJECT, Intermountain Power Agency,

Department of Water and Power, City of Los

Angeles, Black & Veatch, Diane Hill,

Candice Corbett, and John Does

1-10, Defendants-Appellees.

Luther E. JONES, Plaintiff-Appellee, v. INTERMOUNTAIN POWER PROJECT, Intermountain Power Agency,

Department of Water and Power, City of Los

Angeles, Diane Hill, Candice Corbet, and

John Does 1-10, Defendants,

Black & Veatch, Defendant-Appellant.

Nos. 84-2450, 84-2455.

United States Court of Appeals Tenth Circuit.

June 16, 1986.

Rehearing Denied in No. 84-2450 July 7, 1986.

Robert J. DeBry (Warren W. Driggs and David M. Jorgensen with him on briefs), of Robert J. DeBry & Associates, Salt Lake City, Utah, for plaintiff-appellant/cross-appellee.

George A. Hunt, of Snow, Christensen & Martineau, Salt Lake City, Utah, for defendants-appellees/cross-appellant.

Before HOLLOWAY, Chief Judge, McWILLIAMS and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Intermountain Power Agency (IPA) constructed and owns the Intermountain Power Project, a large power plant in Southern Utah. The plant was designed by Black & Veatch, an engineering firm. Before construction on the plant began, IPA and Black & Veatch entered into a "site assistance agreement" whereby Black & Veatch would hire certain employees to work at the construction site. Though Black & Veatch paid these employees, it was agreed that they would be under the direction of IPA supervisors and would be ultimately transferred to IPA's payroll.

Pursuant to this agreement, Black & Veatch hired Mr. Luther Jones as the "risk and loss prevention manager" at the construction site. Several months later, a newspaper reporter informed Mr. Rodney Clark, IPA's project manager at the construction site and Mr. Jones' superior, that she had heard that Mr. Jones was sexually harassing female employees. Mr. Clark interviewed the employees who allegedly had been harassed by Mr. Jones and concluded that the allegations were true. Mr. Clark did not, however, speak to Mr. Jones regarding the allegations. Mr. Clark reported his findings to the Black & Veatch representative on the jobsite, who, in turn, relayed the information to Black & Veatch's main office. A Black & Veatch official directed Mr. Clark to investigate further, and stated that if the investigation showed substantial evidence that Mr. Jones had been harassing employees, he would be terminated immediately. After further investigation substantiated Mr. Clark's earlier findings, he requested Black & Veatch to terminate Mr. Jones, which it did.

Mr. Jones brought this action against IPA and Black & Veatch alleging violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000e et seq. He also brought two state claims: one against IPA for tortiously interfering with his employment contract, and one against Black & Veatch for breaching his employment contract. The jury found for Mr. Jones on both state claims. The trial court, however, vacated the judgment against IPA on the basis that the evidence, as a matter of law, did not establish a claim for tortious interference with Mr. Jones' employment contract. The Title VII claim was not submitted to the jury. The court determined that Mr. Jones failed both as a matter of law and as a matter of fact to establish a Title VII violation.

I.

In its cross appeal, Black & Veatch contends that the trial court erred in exercising pendent jurisdiction over the state claims. The question whether federal courts should exercise pendent jurisdiction over state law claims sharing a common nucleus of operative fact with a Title VII claim is one of first impression in this circuit. Although this question has divided the federal district courts, compare, e.g., Mongeon v. Shellcraft Industries, Inc., 590 F.Supp. 956 (D.Vermont 1984), with, e.g., Guyette v. Stauffer Chemical Co., 518 F.Supp. 521 (D.N.J.1981), two federal circuit courts that have considered it have upheld the exercise of pendent jurisdiction. Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524 (11th Cir.1983); Meyer v. California and Hawaiian Sugar Co., 662 F.2d 637 (9th Cir.1981). But see Grubb v. W.A. Foote Memorial Hospital, Inc., 741 F.2d 1486, 1499-1500 (6th Cir.1984) (district court did not abuse its discretion when it did not exercise its pendent jurisdiction over a state claim because ruling on the merits of the claim would have required the district court to announce new state-law principles, a function comity dictates to be left to the state courts).

In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court articulated a two-pronged test for determining when a federal court should exercise jurisdiction over a pendent state claim. Under the first prong of the Gibbs test, the federal court must have constitutional power to exercise pendent jurisdiction. This power exists when there is a substantial federal claim and when both the state and federal claims derive from a common nucleus of facts so that plaintiff would "ordinarily be expected to try them all in one judicial proceeding." Id. at 725, 86 S.Ct. at 1138.

A substantial federal claim is one that has "substance sufficient to confer subject matter jurisdiction on the court." Id. The district court lacks subject-matter jurisdiction when the federal claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). As the Ninth Circuit noted:

If a federal claim against a party is dismissed before trial, the pendent state law claims should often be dismissed as well. United Mine Workers v. Gibbs, 383 U.S. 715, 726 [86 S.Ct. 1130, 1138, 16 L.Ed.2d 218] (1966). Once a trial is held, however, this court will order dismissal of a pendent claim on remand only when the federal cause of action was so insubstantial and devoid of merit that there was no federal jurisdiction to hear it. If the federal claim was not frivolous, it was a matter of trial court discretion whether to hear the state claims.... See Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1973).

Traver v. Meshriy, 627 F.2d 934, 939 (9th Cir.1980) (emphasis added).

Though Mr. Jones' Title VII claim is tenuous, it was not "so insubstantial, implausible, foreclosed by prior decisions ... or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, [regardless of] the ultimate resolution of the federal issues on the merits." Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S.Ct. 772, 776-77, 39 L.Ed.2d 73 (1974)). Because all of Mr. Jones' claims arose out of the same set of operative facts, we conclude that, under the first prong of the Gibbs test, the trial court had the constitutional power to hear all of Mr. Jones' claims.

The second prong of the Gibbs test focuses on the trial court's discretion to exercise its power. Under this prong, the trial court should consider several factors such as judicial economy, convenience, and fairness to the litigants. Id. 383 U.S. at 726, 86 S.Ct. at 1139. Here, as in Phillips v. Smalley Maintenance Services, Inc., supra, at 1531:

A refusal to exercise pendent jurisdiction ... would have required substantially duplicative proceedings in federal and state courts. Witnesses would have been forced to testify twice to the same facts. Overall, the "considerations of judicial economy, convenience and fairness to litigants" as well as to other participants justified the exercise of pendent jurisdiction.

Because the jury rendered its verdict on the state claims before the trial court issued its opinion as to the Title VII claim, it would be extremely inefficient, inconvenient and unfair to the litigants and the other participants in the trial for us to hold now that the district court improperly exercised its pendent jurisdiction. A federal court justifiably may retain jurisdiction of the pendent claims if substantial time and energy have been expended on the case prior to disposition of the federal claims. Transok Pipeline Co. v. Darks, 565 F.2d 1150, 1155 (10th Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); see also Rosado v. Wyman, 397 U.S. 397, 404, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970). Additionally, Mr. Jones' complaint does not pose novel or unsettled questions of state law.

Although it is clear that, under Gibbs, the trial court properly exercised its discretion to hear the state claims, defendants contend that Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), added a third prong to the two-pronged test set forth in Gibbs. Under this prong, defendants argue, "a federal court must satisfy itself not only that Art. III permits [pendent jurisdiction], but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence." 427 U.S. at 18, 96 S.Ct. at 2422; see also Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978). The district courts that have declined to exercise pendent jurisdiction in Title VII cases have usually relied on this third prong, noting principally that Congress intended Title VII cases "to be in every way expedited," 42 U.S.C. Sec. 2000e-5(f)(5) (1982), and that joinder of state law claims would conflict with that goal. See, e.g., Mongeon v. Shellcraft Industries, Inc., 590 F.Supp. 956, 958 (D.Vermont 1984); Haroldson v. Hospitality Systems, Inc., 596 F.Supp. 1460, 1460-61 (D.Colo.1984).

Mr. Jones contends that Aldinger does not apply in ...