McClure v. Mexia Independent School Dist., 83-1836

• Citation: 750 F.2d 396
• Decision Date: 14 January 1985
• Docket Number: No. 83-1836,83-1836
• Parties: 36 Fair Empl.Prac.Cas. 1402, 35 Empl. Prac. Dec. P 34,910, 21 Ed. Law Rep. 1167, 17 Fed. R. Evid. Serv. 109 Barbara A. McCLURE, Plaintiff-Appellee Cross-Appellant, v. MEXIA INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 396

750 F.2d 396

36 Fair Empl.Prac.Cas. 1402,

35 Empl. Prac. Dec. P 34,910, 21 Ed. Law Rep. 1167,

17 Fed. R. Evid. Serv. 109

Barbara A. McCLURE, Plaintiff-Appellee Cross-Appellant, v. MEXIA INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant Cross-Appellee.

No. 83-1836.

United States Court of Appeals Fifth Circuit.

Jan. 14, 1985.

Rehearing and Rehearing En Banc Denied Feb. 12, 1985.

Sleeper, Johnston, Helm & Fontaine, Minor L. Helm, Jr., Patsy A. Pool, Waco, Tex., for defendant-appellant cross-appellee.

Bob Hall & Assocs., Robert E. Hall, Houston, Tex., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before GARZA, RANDALL, and TATE, Circuit Judges.

TATE, Circuit Judge:

The defendant employer appeals from judgment against it and in favor of a former employee on related civil rights and employment-discrimination claims. The defendant's principal contention is that the district court erred in admitting into evidence an Equal Employment Opportunity Commission determination and file. We affirm. We find no error in the admission of the determination itself, Fed.R.C.Evid. 803(8)(C), but that the admission of the entire file was erroneous, although harmless under the circumstances. On the plaintiff employee's cross-appeal, we remand for further consideration and determination of the attorney's fees to be awarded her.

Factual Context

Barbara McClure began working for Mexia in 1961, when she was hired as secretary-bookkeeper to Hugh Pendleton, who was then the business manager. When Pendleton retired in 1972 the plaintiff McClure sought the position of business manager from Superintendent McBay. Although McBay recommended that she be hired as the business manager, the school board hired the plaintiff McClure only for the position of "Bookkeeper/Office Manager" for $7,800 annual salary. Pendleton's annual salary had been $9,600.

When a statewide pay schedule was created in 1975 for noninstructional employees, the school district rated McClure's job as "Aide III" rather than "10-B," the higher paying classification for business managers. ¹ McClure believed that she had been performing the job of business manager and that the "Aide III" classification was motivated by sex discrimination. She therefore filed a complaint with the EEOC in 1979.

The EEOC held a fact-finding conference on the discrimination charge in May 1979. The EEOC determined that there was reasonable cause to believe that Mexia discriminated against McClure because of her sex by classifying her as an Aide III and by paying her less than Mr. Pendleton had been paid. In June 1979, a new individual was hired to manage Mexia's business affairs. In July 1979, McClure was informed by Mr. Sims, the new superintendent, that her position was being terminated as part of an administrative reorganization and that she would not be rehired for the following year.

Thereupon, in October 1979, McClure filed a second EEOC charge, alleging retaliatory discharge. The EEOC subsequently issued a second determination that there was reasonable cause to believe that this charge also was justified.

The plaintiff McClure then instituted the present suit.

Procedural Context and Issues on Appeal

The complaint of the plaintiff, Barbara McClure, asserts two causes of action against her former employer, the Mexia Independent School District ("Mexia"). Both causes of action are based upon Mexia's termination of McClure's employment in retaliation for her filing of a charge with the Equal Employment Opportunity Commission ("EEOC") that Mexia had discriminated against her on the basis of her sex in refusing to give her the title of Business Manager and to pay her commensurately.

The first cause of action, founded upon 42 U.S.C. Sec. 1983, is based upon Mexia's retaliation against McClure for exercising her rights of free speech and redress of grievances in violation of rights afforded her by the First and Fourteenth Amendments. This was tried to a jury, which returned a verdict in her favor and awarded her some $26,000 back pay and $47,000 damages for mental distress.

McClure's second cause of action, founded upon Title VII ("Equal Employment Opportunities") of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., is based upon Mexia's termination of her services because she had filed the EEOC sex-based discrimination charge, being a violation of the statutory prohibition against discharge for such reason, 42 U.S.C. Sec. 2000e-3(a). Trial of this cause of action was held before the district judge simultaneously with the jury trial of the related Sec. 1983 claim. The district court found that, indeed, McClure's employment had been terminated because she had exercised her right to file an employment-discrimination charge with the EEOC. The court therefore entered judgment enjoining Mexia from refusing to reinstate McClure to her position as Business Manager. The district court also assessed Mexia with $13,000 attorney's fees, 42 U.S.C. Sec. 2000e-5(k); it thus reduced the requested amount sought by her of some $32,000 attorney's fees.

On its appeal, Mexia does not substantially attack the jury findings nor the district court's findings of fact and conclusions of law that support McClure's basic award. Rather, Mexia principally contends that the district court erroneously admitted into evidence both (a) the EEOC determination of reasonable cause for retaliatory discrimination and (b) the entire EEOC file, and that reversal for re-trial should be ordered because this inadmissible and prejudicial evidence infected the determinations of the trier(s) of fact of the two causes of action. ² For reasons set forth in I infra we find no error as to (a), and, although we find the district court erred as to (b), we find that the error was harmless in the light of the entire record.

By her cross-appeal, the plaintiff McClure contends that the district court did not adequately compensate her attorneys and that, without adequate explanation, the court reduced the itemized and substantiated statement of attorney's fees, as proffered, to an arbitrarily set lower amount. For reasons set forth in II infra, we find merit to this contention, and we remand.

I. Admission of EEOC Determination and File

A. Admissibility

Under circumstances to be set forth more fully, the district court admitted into evidence the EEOC determinations of reasonable cause, as well as the entire EEOC file. The district court did so under the purported authority of Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir.1972) and of Plummer v. Western International Hotels Company, Inc., 656 F.2d 502 (9th Cir.1981) (applying the Smith holding in a jury-trial setting). Under the Federal Rules of Evidence, effective in 1975, an EEOC determination or factual finding is admissible in a civil action, as an exception to the hearsay exclusion rule, if it falls within the admissibility provision of Rule 803(8)(C) as "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

Prior to adoption of the Federal Rules of Evidence, in Smith v. Universal Services, Inc. (5th Cir.1972) this court held, in a Title VII non-jury discrimination case, that "the EEOC report, consisting of a summary of the charges, a brief review of the facts developed in its investigation, and its findings of probable cause that violations exist", id., 454 F.2d at 157, was admissible in evidence. The court found that such a report, although not binding on the court, was of sufficient reliability--as the product of agency action based upon investigation by those trained in the area of discriminatory employment action--as to be "highly probative of the ultimate issue involved in such cases", and that "[i]ts probative value, we believe, outweighs any possible prejudice to defendant." Id. The panel reversed the district court for its failure to admit the report into evidence.

In Smith, the entire court denied a petition for rehearing en banc, 454 F.2d 160, over the strong dissent of six judges that EEOC reports had "very questionable probative value" and that they "may be prejudicial, irrelevant, and unreliable." Id.

After adoption of the Federal Rules of Evidence, we held that the district court erred in failing to admit under Rule 803(6) into evidence an EEOC investigative report and determinations. Garcia v. Gloor, 618 F.2d 264, 272 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). See also Falcon v. General Telephone Company of the Southwest, 626 F.2d 369, 383 n. 20 (5th Cir.1980), vacated on other grounds, 450 U.S. 1036, 101 S.Ct. 1752, 68 L.Ed.2d 234 (1981), on remand, 647 F.2d 633 (5th Cir.1981); Peters v. Jefferson Chemical Company, 516 F.2d 447, 450 (5th Cir.1975). ³

In Dickerson v. Metropolitan Dade County, 659 F.2d 574, 579 (5th Cir.1981), a non-jury Title VII retaliation suit, we described Smith as holding "that the district court was obligated to admit into evidence the EEOC investigative report and findings because the probative value outweighed any possible prejudice to the employer." However, in affirming the dismissal of the plaintiff's retaliation claim, we rejected his claim that, in addition to the report, he was entitled to "admission into evidence of all testimony relating to an EEOC investigation." Id.

Thus, under precedents of this circuit, EEOC determinations and findings of fact, although not binding on the trier of fact, are admissible as evidence in civil proceedings as probative of a claim of employment discrimination at issue in the civil proceedings. However, neither under the precedents nor under Rule 803(8)(C) is the entire EEOC file admissible.

This circuit jurisprudence, however, arose in non-jury Title VII litigation, when the precise issue was whether the EEOC-determined...