Yakowicz v. Com. of Pa., No. 81-2981

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before GARTH and BECKER, Circuit Judges, and FULLAM; GARTH
• Citation: 683 F.2d 778
• Parties: 29 Fair Empl.Prac.Cas. 1663, 29 Empl. Prac. Dec. P 32,924 YAKOWICZ, Marion, Appellant, v. COMMONWEALTH OF PENNSYLVANIA and Howard A. Cohen, Secretary of Revenue, Commonwealth of Pennsylvania, and Leon D. Boncarosky, Director, Bureau of Personnel, Commonwealth of Pennsylvania, and Bruce Sarteschi, Director of Personnel, Department of Justice, Commonwealth of Pennsylvania, Former Director of Bureau of Personnel, Commonwealth of Pennsylvania, Justice Department, Appellees. . Submitted Under Third Circuit Rule 12(6)
• Docket Number: No. 81-2981
• Decision Date: 24 June 1982

Page 778

683 F.2d 778 29 Fair Empl.Prac.Cas. 1663,
29 Empl. Prac. Dec. P 32,924 YAKOWICZ, Marion, Appellant,
v.
COMMONWEALTH OF PENNSYLVANIA and Howard A. Cohen, Secretary
of Revenue, Commonwealth of Pennsylvania, and Leon D.
Boncarosky, Director, Bureau of Personnel, Commonwealth of
Pennsylvania, and Bruce Sarteschi, Director of Personnel,
Department of Justice, Commonwealth of Pennsylvania, Former
Director of Bureau of Personnel, Commonwealth of
Pennsylvania, Justice Department, Appellees. No. 81-2981. United States Court of Appeals,
Third Circuit. Submitted Under Third Circuit Rule 12(6) June 24, 1982.
Decided July 19, 1982.

Page 779

Melvin Rubin, Ardmore, Pa., for appellant.

Leroy S. Zimmerman, Atty. Gen., Mary Ellen Krober, Allen C. Warshaw, Deputy Attys. Gen., Chief, Special Litigation Section, Harrisburg, Pa., for appellees.

Before GARTH and BECKER, Circuit Judges, and FULLAM, District Judge ^*.

OPINION OF THE COURT

GARTH, Circuit Judge.

In this sex discrimination case we are presented with the question whether 28 U.S.C. § 1291 vests this court with jurisdiction over an appeal from a district court order which denied an interim award of attorney's fees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). Because the district court's order neither was "final" in the usual sense of a full disposition of all the parties' claims on the merits, nor was it "final" in terms of the collateral order doctrine of Cohen v. Beneficial Industrial Loan Co., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we will grant the appellees' motion to dismiss the appeal.

I.

Up until March 23, 1979, Marion Yakowicz was employed by the Legal Division of the Pennsylvania Department of Revenue ("the Department") as an "Administrative Assistant I." On that date, the Department downgraded her classification to that of "Clerk III," stating that it was taking that action because the tasks that Yakowicz was required to perform were primarily clerical rather than administrative.

Yakowicz objected to the reclassification immediately, filing a grievance on March 23, 1979, pursuant to a collective bargaining agreement in effect at that time. Several days later, on April 2, 1979, she filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") charging that her classification had been downgraded because of her sex. The PHRC referred Yakowicz's complaint to the federal Equal Employment Opportunity Commission ("EEOC"). After the required period of time had passed without action by the EEOC, the United States Department of Justice informed Yakowicz of her right to bring a federal civil rights action under Title VII. Accordingly, on October 3, 1980, Yakowicz filed a complaint in federal district court alleging that the defendants-the Secretary of Revenue of the Commonwealth of Pennsylvania and various other officials responsible for personnel decisions ¹-had demoted her "not on the basis of

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(lack of) merit or performance or any other valid criteria, but on the basis of plaintiff's sex." Complaint P 13, Appendix at 13.

In essence, Yakowicz's complaint charged that her work was at least as complex and administrative in content as work performed by men in the Department, but that her work was deemed "clerical" simply because she was a woman. Claiming "a loss in pay, a loss in job classification, loss of status, loss of potential for promotion, and a degrading of her outstanding record of employment," Yakowicz sought an order

(a) directing defendants to reinstate plaintiff as an Administrative Assistant I;

(b) awarding plaintiff all pay lost by her as a result of her demotion;

(c) directing defendants to restore to plaintiff her right to perform the tasks she previously had authority to perform;

(d) directing defendants to restore plaintiff to the same status with regard to promotion she would have had but for the sex discrimination;

(e) enjoining defendants from any further discrimination against plaintiff;

(f) granting plaintiff such further relief as the court deems appropriate.

Complaint, P 16, Appendix at 14.

The sequence of events that followed the filing of Yakowicz's complaint in federal district court is a matter of dispute between the parties. According to Yakowicz, once discovery had begun, the parties entered into settlement negotiations. While the Commonwealth objected to any admission of sex discrimination, the parties eventually did agree to arbitrate Yakowicz's claim before the arbitration panel that had been set up under the terms of the collective bargaining agreement. The arbitration decision would not be binding on either party, they agreed, but if Yakowicz prevailed before the arbitration panel and the Commonwealth agreed to implement the arbitration panel's recommendation in such a way that Yakowicz was "made whole, including payment of her counsel fees, then this litigation could end since (Yakowicz) would have achieved all that she sought by virtue of this suit." Appellant's Brief at 13.

Pursuant to this understanding, a hearing was held before the arbitration panel on May 28, 1981, and on June 19, 1981, the panel decided in Yakowicz's favor, determining that on the basis of her duties, she should be classified as an "Administrative Assistant I" rather than as "Clerk III." Finally, on June 30, 1981, the Commonwealth decided to implement the panel's recommendation by retroactively reinstating Yakowicz to her former position. Thus, "as of August 21, 1981, plaintiff has been fully reinstated. Any pay, benefits or seniority which may have been affected by her reclassification have been restored as though the classification had never changed. Her employment history, maintained on defendants' computer, now contains no indication that she had been reclassified as Clerk III." Appellant's Brief at 13.

The Commonwealth presents a sharply contrasting picture of the events that culminated in Yakowicz's reinstatement to her former position. According to the Commonwealth, the grievance procedure that Yakowicz had set in motion by filing her grievance on the day she was demoted, was moving apace through the various steps set out in the collective bargaining agreement until the final stage of the procedure eventually was reached-a hearing before the arbitration panel on May 28, 1981, with a decision rendered in Yakowicz's favor on June 19, 1981. Arbitration decisions such as the one rendered in the present case, the Commonwealth asserts, are not binding on the Commonwealth; normally, however, the Commonwealth does implement such decisions, and it decided to do so in Yakowicz's case on June 30, 1981. In any event, the Commonwealth strenuously objects to any assertion that "but for the existence of the Title VII action, the Commonwealth would not have implemented what was admittedly non-binding arbitration." Appellees' Brief at 19. Noting that Yakowicz was represented at the arbitration hearing not by her Title VII counsel, but rather by a union representative, the Commonwealth argues that the issues decided by the arbitration panel and the issues posed in the Title VII action are distinct; the arbitration panel's decision turned on whether the reclassification was proper on the facts of Yakowicz's case, whereas the Title VII action concerns the question whether the reclassification was done because Yakowicz is a woman. ² Indeed, the Commonwealth asserts

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that the only effect the filing of the Title VII action had on the grievance procedures, was to cause the Commonwealth to consider departure from its normal policy of implementing the panel's recommendation because Yakowicz had filed a Title VII complaint-a course of action which, as noted, the Commonwealth wisely rejected.

At any rate, after Yakowicz had been restored by the Commonwealth to her former position of Administrative Assistant I, she filed a "Motion for Partial Summary Judgment" on September 3, 1981. In that motion, Yakowicz sought an interim award of attorney's fees in the amount of $15,275.00 on the ground that she was "a 'prevailing party' with regard to that portion of her case which relates to reclassification since the defendants have voluntarily acted to grant her the relief requested as a result of her bringing this action under Title VII." Motion for Partial Summary Judgment, P 22, Appendix at 34.

In a memorandum and order dated October 28, 1981, the district court denied the motion. The district court stated that it "recognize(d) that attorney's fees may be awarded pursuant to 42 U.S.C. § 2000e-5(k) in the absence of a formal judgment, and prior to the ultimate conclusion of a civil action," Appendix at 48 (citations omitted), but found that such an award would be inappropriate in the circumstances of this case. In contrast to those cases in which attorney's fees were awarded on an interim basis, the district court found

no evidence that this case will result in protracted litigation or that the outcome of the grievance proceedings is a sufficiently significant and discrete unit in this action. Although Plaintiff has obtained part of the relief she sought, the remaining claims also are based upon her allegations of sex discrimination, and thus, she is not entitled to an interim award of attorney's fees.

Id. at 49.

On November 16, 1981, Yakowicz took an appeal from the denial of her motion. On December 17, 1981, the Commonwealth filed a motion in this court to dismiss her appeal.

II.

As the court below recognized, there can be little doubt as to the power of a district court to issue an interim order directing payment of attorney's fees under section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), ³ in cases of protracted litigation where a party's ability to obtain redress for a civil rights violation would be imperiled without such an award. ⁴ The

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power of the district court to grant interim attorney's fees as to some significant and relatively...