Taylor v. Safeway Stores, Inc.

• Decision Date: 03 October 1975
• Docket Number: No. 74-1409,74-1409
• Citation: 524 F.2d 263
• Parties: 11 Fair Empl.Prac.Cas. 449, 10 Empl. Prac. Dec. P 10,410 Samuel TAYLOR, and the class he represents, Plaintiff-Appellant, v. SAFEWAY STORES, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 263

524 F.2d 263

11 Fair Empl.Prac.Cas. 449,

10 Empl. Prac. Dec. P 10,410

Samuel TAYLOR, and the class he represents, Plaintiff-Appellant, v. SAFEWAY STORES, INCORPORATED, Defendant-Appellee.

No. 74-1409.

United States Court of Appeals, Tenth Circuit.

Argued March 28, 1975.

Decided Oct. 3, 1975.

Douglas E. Bragg, Carrigan & Bragg, Denver, Colo., for plaintiff-appellant.

William C. McClearn, Holland & Hart, Denver, Colo. (R. Brooke Jackson, Denver, Colo., on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN and BARRETT, Circuit Judges.

LEWIS, Chief Judge.

This appeal originates from a suit charging Safeway Stores, Inc. of Colorado with discriminatory employment practices in violation of 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The plaintiff Taylor filed this suit on behalf of himself and those "Negro persons who are employed, have been employed, or might have been in the past or will in the future be employed by Safeway . . . in its various wholesale, retail, and distribution centers throughout . . . Colorado."

Taylor was hired by Safeway to work at its Denver frozen food warehouse on December 1, 1968. Three weeks later Taylor was discharged, ostensibly because of his inadequate job performance. In January 1969, Taylor filed complaints against Safeway with both the Colorado Civil Rights Commission and with the Equal Employment Opportunity Commission. The Colorado commission did not find any actionable discriminatory acts, but the EEOC found "reasonable cause" to believe that Safeway had violated Title VII in discharging Taylor. After being advised by the EEOC of his right to bring a suit, Taylor filed this action on April 20, 1971.

In several preliminary rulings, the district court (1) dismissed Taylor's section 1981 action, holding that it could not be maintained until he had exhausted all of his Title VII remedies, and (2) held that under Rule 23(a)'s typicality requirement, Taylor's class claim should be limited to "a class of Negroes employed at the frozen food warehouse in the Denver distribution center."

After a trial on the merits, the district court concluded that Safeway had not discriminated against Taylor individually in its initial failure to hire him, in his job training, or in its refusal to transfer him to a retail store. 365 F.Supp. 468, 471-75, D.C.Colo. The court found, however, that Taylor's discharge from the frozen food warehouse had been racially motivated. The evidence indicated that Taylor's immediate supervisor at the warehouse had an adverse attitude towards blacks and had manipulated Taylor's work assignments in such a manner as to influence negatively his production averages. On the individual claim, the court awarded Taylor back pay and attorney's fees, but refused to reinstate him. Finding no merit in Taylor's class claim the court refused to award attorney's fees.

Taylor appeals those rulings adverse to him. We affirm the rulings of the district court in part, reverse in part, and remand.

I

We will first examine the alleged errors made by the district court in its rulings relating to Taylor's individual claims.

After a special hearing on relief and damages, the district court awarded Taylor back pay in the amount of $3,256 for the period from January 16, 1969, the time when Taylor was able to return to work after a temporary disability, to September 25, 1969, when Taylor became a full-time student at the University of Northern Colorado. Taylor alleges error in the district court's failure to include the period during which he was a full-time student in computing the back pay award.

In Title VII cases, the awarding of back pay is a remedy within the discretion of the trial court. ¹ Head v. Timken Roller Bearing Co., 6 Cir., 486 F.2d 870, 876; Brito v. Zia Co., 10 Cir., 478 F.2d 1200, 1204. Before this court will invalidate a discretionary award made by the district court under 42 U.S.C. § 2000e-5(g), it must be shown that the trial court acted unreasonably or abused its power.

After being discharged from Safeway, Taylor worked for a steel company in Denver for several months and during the summer returned to his hometown of Chicago to work heavy construction. Upon returning to Denver at the end of August, and being unable to find employment, Taylor heard that the University of Northern Colorado at Greeley was recruiting minorities. Since he had no job prospects on the "horizon," he and his wife decided to enroll. Taylor testified while attending school, he continued to look for employment in both Greeley and Denver; had he found full-time work anytime prior to receiving his bachelor's degree in December 1971, Taylor asserts he would have accepted it.

We were able to find only one Title VII case that has mentioned the effect that full-time school enrollment has on the computation of back pay awards. United States v. Wood, Wire & Metal Lathers Local 46, S.D.N.Y., 328 F.Supp. 429. There, the court cited a discharged employee who returned to school as an example of someone no longer "ready, willing and available" for employment and thus not entitled to a back pay award. Id. at 444. If a discharged employee accepted employment elsewhere, there is little doubt that this would cut off any back pay award. If not, the employee would be receiving a double benefit for the same period of time. Likewise, when an employee opts to attend school, curtailing present earning capacity in order to reap greater future earnings, a back pay award for the period while attending school also would be like receiving a double benefit. We fail to see that the district court abused its discretion in not including the time Taylor was attending school in the computation of the back pay award.

At the time of Taylor's wrongful dismissal, Taylor had two years of college; by the end of the trial, Taylor had a master's degree and was employed as a management-trainee at the Gates Rubber Company. Taylor asserts that it was an error for the court not to order his reinstatement with Safeway, not in the frozen food warehouse, but rather in a position commensurate with his education (e. g., a management position).

As with back pay awards it is within the court's discretion under Title VII to order reinstatement of a wrongly discharged employee. 42 U.S.C. § 2000e-5(g). Since Taylor was already employed in a management position with the Gates Rubber Company, the court did not abuse its discretion by failing to order Taylor's reinstatement at Safeway's frozen food warehouse, which, according to the testimony of Taylor, he would have not accepted anyway. Likewise, Taylor has not demonstrated that reinstatement in a position "commensurate with his skills" is dictated by 42 U.S.C. § 2000e-5(g) or that it was unreasonable for the court to refuse to do so. Absent such a showing, we will sustain the trial court's order of relief as a proper exercise of its Title VII power.

After conducting a special hearing on damages, the trial court awarded Taylor attorney's fees of $3,000, citing the following as factors used in computing the award: (1) the number of hours the attorney used in preparing and arguing the claim; (2) the novelty and complexity of the case; (3) the skill and preparedness of the attorney; (4) the resulting judgment; and (5) awards in similar cases. Taylor argues that since the award only amounts to $17 per hour that the trial court abused its discretion. This court has previously ruled that in Title VII cases, the trial court has discretion to set reasonable attorney's fees and that an award of $12 per hour was not an abuse of discretion. Brito v. Zia Co., supra; Barela v. United Nuclear Corp., 10 Cir., 462 F.2d 149, 155-56. Without a showing that the district court based its computation on improper factors, ² we will not hold in the instant case that the award was an abuse of discretion.

However, we deem the amount awarded to be modest under the present posture of the case and in view of the limited remand we determine necessary regarding the dismissal of Taylor's section 1981 claim, discussed below, the trial court should reevaluate the award in light of further proceedings and the additional question of whether some of the legal preparations in the class claim was also pertinent to the section 1981 claim.

II

We next turn our attention to Taylor's class claims. Prior to the trial, Safeway challenged the ability of Taylor to represent a class of all "Negro persons who are employed, have been employed, or might have been in the past or will in the future" be employed by Safeway in its wholesale, retail, and distribution facilities throughout Colorado for failure to meet the prerequisites of Rule 23(a). ³ The district court determined that Taylor had not met the typicality requirement of Rule 23(a)(3) as defined by White v. Gates Rubber Co., D.Colo., 53 F.R.D. 412, where the district court ruled that the typicality prerequisite required a class action plaintiff to "demonstrate that other members of the class he purports to represent (actual, not hypothetical complainants) have suffered the same (or similar) grievances of which he complains." Id. at 415.

Initially, the district court held that Taylor had met this burden, ⁴ but carefully noted that this was merely a "threshold determination" and not final. 333 F.Supp. 83 at 87, D.C.Colo. Later, the district court found that at most, Taylor had only established that his grievances were typical of a class of Negro employees situated at Safeway's frozen food warehouse in Denver, thus effectively narrowing the original class claim made by Taylor.

Taylor argues that regardless of the correctness of the typicality definition in White as applied in other types of class actions, it is inappropriate in Title VII cases because it prematurely limits the class making it difficult for the individual plaintiff to prove the existence of individuals with similar claims. Taylor also contends that Title VII class...