Stewart v. Hannon, 81-1682

• Decision Date: 05 April 1982
• Docket Number: No. 81-1682,81-1682
• Citation: 675 F.2d 846
• Parties: 28 Fair Empl.Prac.Cas. 1268, 28 Empl. Prac. Dec. P 32,582, 3 Ed. Law Rep. 877 Ruth STEWART, et al., Plaintiffs-Appellants, v. Joseph HANNON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 846

675 F.2d 846

28 Fair Empl.Prac.Cas. 1268,

28 Empl. Prac. Dec. P 32,582, 3 Ed. Law Rep. 877

Ruth STEWART, et al., Plaintiffs-Appellants, v. Joseph HANNON, et al., Defendants-Appellees.

No. 81-1682.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 6, 1981.

Decided April 5, 1982.

Michael H. Slutsky, Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., for plaintiffs-appellants.

Robert J. Krajcir, Chief of Appeals and Review Div., Law Dept. of Bd. of Ed., Chicago, Ill., for defendants-appellees.

Before BAUER and CUDAHY, Circuit Judges, and BAKER, District Judge. ^*

BAKER, District Judge.

This is an appeal from an order of the district court denying the plaintiffs attorneys' fees under Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) and under the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988.

In this civil rights action filed in August, 1974, the plaintiffs sought to enjoin the defendants from administering an assistant principal examination, claiming that racial and ethnic discrimination existed in the test and excluded the plaintiffs from positions as principals. The district court dismissed the case and that order was appealed. While the case was pending on appeal the defendants withdrew the questioned examination and the appeal was dismissed as moot. Stewart v. Hannon, No. 80-1854 (7th Cir. Nov. 12, 1980) (order dismissing appeal as moot without prejudice to plaintiffs seeking attorneys' fees in the district court).

On return to the district court, Judge Leighton refused to award the plaintiffs fees because they were not prevailing parties. We affirm.

I.

The plaintiffs are the Chicago High School Assistant Principals' Association and seven of its members who are certified teachers employed as assistant principals and who have unsuccessfully sought appointment to the position of principal in the Chicago public schools. Of the seven individual plaintiffs, five are black, one is Hispanic, and one, the plaintiff Ruth Stewart, is white.

The defendants are: members of the Board of Examiners of the Chicago Public School System, members of the Chicago Board of Education, and Education Testing Service, a not-for-profit New Jersey corporation, engaged in the business of educational and occupational test development and administration.

The plaintiffs first filed suit in August, 1974, claiming racial discrimination in the selection of Chicago school principals in violation of 42 U.S.C. §§ 1981, 1983, and 1985. In April, 1978, the plaintiffs amended their complaint to include Count II under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and Count III, a pendent state law claim. For relief, the amended complaint, in addition to damages and attorneys' fees, sought to enjoin the defendants from administering the 1978 Principals' Examination.

In June, 1978, by stipulation, the parties agreed that the Board of Education should proceed with the administration of the 1978 examination as scheduled. The plaintiffs withdrew their motion to enjoin the administration of that examination in exchange for which the Board of Education agreed to provide the plaintiffs with the test results within ten days of their receipt from Education Testing Service. The parties further agreed that the test results could not be used for thirty days after their receipt by the plaintiffs.

Upon receipt, preliminary results of the examination showed that the test had an adverse impact on the basis of race in excess of the "eighty percent rule" ¹ as adopted by the Equal Employment Opportunities Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice. Because the preliminary test results indicated a violation of the federal guideline, the defendants did not release the test results.

On February 2, 1979, on the defendants' motion, the district court dismissed the amended complaint with prejudice on the grounds that the plaintiffs had failed to state a cause of action upon which relief could be granted. Stewart v. Hannon, 469 F.Supp. 1142 (N.D.Ill.1979). On May 24, 1979, however, the district court granted the plaintiffs' motion for reconsideration with respect to the local defendants, ordered the defendants to provide the plaintiffs with the results of the 1978 examination pursuant to the order of June 23, 1978, and granted the plaintiffs leave to submit a proposed amended Count II based on the 1978 test results. The defendants provided the plaintiffs with the test results as ordered. On May 19, 1980, the district court vacated its earlier order granting the plaintiffs leave to submit an amended Count II and dismissed the suit because the plaintiffs lacked standing and because the amended Count II was not ripe for judicial determination. Stewart v. Hannon, No. 74 C 2466 (N.D.Ill. May 19, 1980). The plaintiffs filed a timely appeal which was dismissed as moot since the defendants had adopted a formal resolution not to utilize the results of the 1978 examination. However, the appeal was dismissed "without prejudice to plaintiffs-appellants seeking attorneys' fees in the district court." Stewart v. Hannon, No. 81-1682 (7th Cir. Nov. 12, 1980).

On December 17, 1980, subsequent to the dismissal of the appeal, the plaintiffs filed their petition for the award of attorneys' fees in the district court urging that they had achieved a successful outcome in the litigation. The district court held that the plaintiffs were not "prevailing parties" and therefore not entitled to fees on alternate grounds: first, the court lacked jurisdiction to consider the merits of amended Count II because the plaintiffs lacked standing to sue and their claim was not ripe for adjudication; and second, even assuming the cause was justiciable, the plaintiffs were not "prevailing parties" under the standards articulated by this court in Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979).

II.

The first question that confronts us is one of justiciability. In denying the plaintiffs an award of attorneys' fees, the district court specifically held that the plaintiffs were not prevailing parties because the controversy was not ripe and the plaintiffs lacked standing. Other federal courts have similarly concluded that a plaintiff cannot be a prevailing party where the district court has no jurisdiction. See Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir. 1978), cert. denied, 441 U.S. 932, 99 S.Ct. 2053, 60 L.Ed.2d 660 (1979); Richardson v. Wiley, 569 F.2d 140, 143 (D.C.Cir.1977).

The district court's memorandum order of May 19, 1980, concluded that the plaintiffs lacked standing because the only plaintiff, Ruth Stewart, who had a right to sue letter issued by the Equal Employment Opportunity Commission (EEOC), was white and, therefore, was not an aggrieved party to the racial discrimination claim. The Supreme Court decision of Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), casts doubt on the district court's ruling.

In Trafficante, two tenants of an apartment complex, one white, one black, filed complaints under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., alleging housing discrimination against non-whites. The Supreme Court held that the definition of "person aggrieved," 42 U.S.C. § 3610(a), showed a congressional intent to define standing as broadly as Article III of the Constitution permits and that the white tenants had suffered a cognizable injury in "the loss of important benefits from interracial associations" resulting from the "exclusion of minority persons from the apartment complex." Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209-10, 93 S.Ct. 364, 366-67, 34 L.Ed.2d 415 (1972).

A similar analysis of standing should hold true under Title VII which, like Title VIII, has the purpose of outlawing discrimination based on race, religion, national origin, and sex. First, the applicable statutory language is similar. Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), requires the filing of charges with the EEOC by a "person claiming to be aggrieved." Section 810(a) of Title VIII, 42 U.S.C. § 3610(a), provides for the filing of charges with the Secretary of Housing and Urban Development (HUD) by a "person aggrieved." Second, the enforcement procedures are nearly identical. Although Title VII provides additionally for public enforcement of the Act by the EEOC, that enforcement power was added to expand coverage of and increase compliance with the Act, and not to narrow the class of complainants. See H.R.Rep.No. 92-238, 92d Cong., 1st Sess. 3, reprinted in (1972) U.S. Code Cong. & Ad. News 2139. Third, in holding that the "person aggrieved" language of Section 810 of Title VIII showed a congressional intent to define standing under Title VIII as broadly as the Constitution permits, the Court in Trafficante cited with approval Hackett v. McGuire Bros., Inc., 445 F.2d 442 (3d Cir. 1971). That case construed the "person claiming to be aggrieved" language of Section 706 of Title VII of the 1964 Civil Rights Act as showing a congressional intent to define standing under Title VII of the Act as broadly as permitted by Article III of the Constitution. Finally, the EEOC has interpreted the standing provisions of Title VII to permit a white person, aggrieved by discrimination against black persons at their place of work, to file charges with the EEOC and to sue in court. EEOC Decision No. 72-0591 (1971), CCH EEOC Decisions (1973) P 6314 at 4562, 4564; EEOC Decision No. 71-969 (1970), CCH EEOC Decisions (1973) P 6193 at 4328, 4329; EEOC Decision No. 70-09 (1969), CCH EEOC Decisions (1973) P 6026 at 4049. Although the EEOC interpretations are not controlling, they are entitled to deference. General Electric Co. v. Gilbert, 429 U.S. 125, 141-46, 97 S.Ct. 401, 410-13, 50 L.Ed.2d 343 (1976).

Three other federal circuits have applied a similar...