Holden v. Owens-Illinois, Inc. Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    No. 86-

f

I n the

( ta rt of %  Inttrft States
October Term, 1986

E. Marie H olden, 

—v.—

Owens-Illinois, I nc.,

Petitioner,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

J ulius L. Chambers 
Gail J . W right 
J udith Reed*
Charles Stephen R alston 

99 Hudson Street 
16th Floor
Sew York, New York 10013 
(212) 219-1900

R obert B. Newman
Kireher and Plialen 
Suite 1000
125 East Court Street 
Cincinnati, Ohio 45202-1299

Attorneys for Petitioners 

*Counsel of Record



QUESTIONS PRESENTED
1. Should the court grant 

certiorari to resolve a conflict between 
the courts of appeals as to whether an 
employee must prove that her employer has 
in fact engaged in employment 
discrimination in order to prevail on a 
claim that she was discharged because she 
had opposed practices made illegal by 
Title VII of the Civil Rights Act of 1964?

2. May an employee be discharged 
because she has opposed employment 
practices that violate her employer's 
obligations as a federal contractor, 
imposed by Executive Order 11246 and 
because she has urged that her employer 
obey the Executive Order?

3. May an employee whose duties are 
to ensure that her company is following 
federal anti-discrimination law be 
discharged because of her "vigorous"

i



opposition to practices she believed 
violated those laws?

4. Did the court of appeals err 
when it engaged in de novo fact finding 
rather than remanding the case to the 
district court?

PARTIES
All parties to this case are set out 

in the caption.

ii



Page
Questions Presented . . . . . . . .  i
Parties ............................. ii
Table of Contents...............iii
Table of Authorities................. vi
Opinions Below .....................  2
Jurisdiction ........................ 2
Statutes, Regulations, and Rules

Involved .....................  3
Statement of the C a s e .........  4

A. Proceedings Below ......... 4
B. Statement of F a c t s .......... 6
C. The Decision of the

Court of Appeals........... 15
Reasons for Granting the Writ . . . .  18
Introduction . . . . .  ............. 18
I. CERTIORARI SHOULD BE GRANTED TO 

RESOLVE CONFLICTS BETWEEN THE 
COURTS OF APPEALS WITH REGARD 
TO THE MEANING AND SCOPE OF 
SECTION 704 OF TITLE VII. . . .  22
A. The Decision Below Conflicts 

With Those of Other Courts 
of Appeals With Regard to the 
Standards for Establishing A

TABLE OF CONTENTS

iii



Violation of Section 704. . 22
B. The Court of Appeals1 Narrow 

Interpretation of the Scope 
of Section 704 Is Inconsis­
tent With Decisions of 
Other C i r c u i t s . .........28

II. THIS CASE PRESENTS IMPORTANT
QUESTIONS CONCERNING THE SCOPE 
OF SECTION 704(A) OF TITLE VII 
THAT HAVE NOT BEEN ADDRESSED BY
THIS COURT..................... 31
A. The Scope of Section 704(a)

Is An Issue of National 
Importance................ 31

3. ' The Decision of the Court
Below Will Necessarily 
Adversely Impact on the 
Ability of the Office of 
Federal Contract Compliance 
to Achieve Its Goals of Ending 
Discrimination And Bringing 
About Effective Affirmative 
Action Programs. .........  36

III. THE DECISION OF THE COURT OF APPEALS 
IS INCONSISTENT WITH PULLMAN-STANDARD 
CO. V. SWINT. 456 U.S. 273 (1982) 44

CONCLUSION.......................... 47
APPENDIX OF DECISIONS OF THE COURTS BELOW
AND STATUTES, REGULATIONS, AND RULES
INVOLVED.

Appendix A - Opinion of the Court 
of Appeals (June 18, 1986),
793 F. 2d 745 ................. la

iv



Appendix B - District Court Opinion 
and Order (July 25, 1984) . 20a

Appendix C - District Court Memo­
randum and Order (March 29,
1 9 8 5 ) .....................  54a

Appendix D - District Court Memo­
randum and Judgment Order 
(April 24, 1 9 8 5 ) ..........  71a

Appendix E - District Court Memo­
randum and Order (May 8,
1 9 8 5 ) .....................  77a

Appendix F - District Court Order
(August 8, 1 9 8 5 ) ..........  80a

Appendix G - Statutes, Regulations,
and Rules Involved.......... 82a

v



TABLE OF AUTHORITIES
Page

Cases:
Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) 33
Balderas v. La Casita Farms, Inc.,

500 F.2d 195 (5th Cir. 1974) 35
Berg v. La Crosse Cooler Co., 612

F .2d 1041 (7th Cir. 1980) 22, 24, 25
Burston v. Virgiia Dept, of

Computer Services, 35 F.E.P.
Cases 1825 (E.D. Va. 1984) 42

Chouhbury v. Polytechnic Institute 
of New York, 735 F.2d 38 
(2d Cir. 1984) 30

Connecticut v. Teal, 457 U.S.
440 (1982) 35

De Anda v. St. Joseph Hosp'l, 671
F.2d 850 (5th Cir. 1982) 35

DeMatteis v. Eastman Kodak Co.,
511 F .2d 306 (2d Cir.), 
modified on other grounds.
520 F .2d 409 (2d Cir. 1975) 30

Emporium Capwell Co. v. Western 
Comm. Organ., 420 U.S. 50 
(1975) 35

EEOC v. Anchor Hocking Corp., 666
F .2d 1037 (6th Cir. 1981) 42

EEOC v. Crown Zellerback Corp.,
720 F .2d 1008 (9th Cir. 1983) 35

v i



EEOC v. St. Anne's Hospital, 664 
F.2d 128 (7th Cir. 1981) 34

Firefighters v. Cleveland, 478 
U.S. , 92 L.Ed.2d 405 
(1986) 33

General Electric Company v.
Gilbert, 429 U.S. 125 (1976) 25

Gifford v. Atchison, T. & S.F. 
Rey., 685 F.2d 1149 
(9th Cir. 1982) 23, 35

Goff v. Continental Oil Co., 
678 F.2d 593 (5th Cir. 
1982) 30

Great American S. & L. Assn. v. 
Novotny, 442 U.S. 366 
(1979) 35

Greenwood v. Ross, 778 F.2d 448 
(8th Cir. 1985) 31

Hamm v. Board of Regents, 708 
F. 2d 647. reh'a and reh'cr 
en banc denied. 715 F.2d 
580 (11th Cir. 1983) 42

Hicks v. ABT Assoc., Inc., 572 
F.2d 960 (3rd Cir. 1978) 30

Hochstadt v. Worcester Founda­
tion, 545 F.2d 222 (1st 
Cir. 1976) 34

Jones v. Flagship International, 
793 F.2d 714 (5th Cir.
1986) 42

Lehman v. Trout, 465 U.S. 1056 
(1984) 46

VI 1



London v. Coopers & Lybrand,
644 F.2d 811 (9th Cir.
1981)

Love v. Pullman Co., 404 U.S.
522 (1972)

Love v. Re/Max of America, Inc.,
738 F.2d 383 (10th Cir.
1984) 23,

McCluney v. Joseph Schlitz
Brewing Co., 728 F.2d 924 
(7th Cir. 1984)

Monteiro v. Poole Silver Co.,
615 F.2d 4 (1st Cir.
1980)

NLRB v. Scrivener, 405 U.S.
117 (1972)

Norton v. Vartanian, 31 F.E.P.
Cases 1259 (D. Mass.
1983)

Novotny v. Great Am. Fed. Sav.
& Loan Ass'n, 584 F.2d 
1235 (3rd Cir. 1978), 
vacated and remanded on 
other grounds. 442 U.S.
366 (1979)

Parker v. Baltimore and Ohio 
Railroad Co., 652 F.2d 
1012 (D.C. Cir. 1981) 23,

Payne v. McLemore's Wholesale 
and Retail Stores, 654 
F .2d 1130 (5th Cir. 1981) 22,

Pendleton v. Rumsfeld, 628 
F.2d 102 (D.C. Cir.
1980)

vi i i

30

32

27

35

24

32

42

34

26

26

42



30
Pinkard v. Pullman-Standard, 

678 F .2d 1211 (5th 
Cir. 1982)

Pullman-Standard Co. v. 
Swint, 456 U.S. 273
(1982)

Ramon v. Smith, 34 F.E.P. 
Cases 404 (S.D. Tex.
1984)

Rucker v. Higher Educ. Aids 
Bd., 669 F.2d 1179 
(7th Cir. 1982)

St. John v. Employment
Development Dept., 642 
F .2d 273 (9th Cir.
1981)

Setser v.Novack Inv. Co.,
638 F.2d 1137 (8th 
Cir. 1981)

Sias v. City Demonstration 
Agency, 588 F.2d 692 
(9th Cir. 1978)

Silver v. KCA, Inc., 586 
F .2d 138 (9th Cir.
1978)

Sisco v . .J.S. Alberici
Constr. Co., 655 F.2d 
146 (8th Cir. 1981)

Smith v. Secretary of the 
Navy, 659 F.2d 1113 
(D.C. Cir. 1981)

46

42

22, 35

42

30

23, 25, 30

34

22, 26, 31

42

IX



Smith v. Singer Co., 650 
F.2d 214 (9th Cir. 
1981)

Steelworkers v. Weber, 443 
U.S. 193 (1979)

Thompson v. Int'l Assoc, 
of Machinists & 
Aerospace Workers,
38 F.E.P. Cases 894 
(D.D.C. 1985)

United States Postal 
Service Board of 
Governors v. Aikens, 
460 U.S. 711 (1983)

Whatley v. Metropolitan
Atlanta Rapid Transit 
Authority, 632 F.2d 
1325 (5th Cir. 1980)

Wrighten v. Metropolitan 
Hospitals, Inc., 726 
F .2d 1346 (9th Cir.
1984)

Statutes. Regulations, and Rules:
Executive Order 11246
41 C.F.R. Part 60-1
41 C.F.R. Part 60-2
41 C.F.R. §60-250.51
41 C.F.R. §60-741.51
42,U.S.C, §1981
42 U.S.C. § 2 OOOe-2(a)

29, 42 

33

42

44

42

29

passim 
37, 40 
37, 38 

32 
32
30 
40

x



42 U.S.C. §2000e-3(a) passim
42 U.S.C. §5851(a) 32
Rule 52(a), Fed. R. Civ. 

Proc. 46
29 U.S.C. §158 32
29 U.S.C. 215(a)(3) 32
29 U.S.C. §660 32
§704 of Title VII of the 

Civil Rights Act of 
Title VII, as 
amended passim

Other Authorities:
H. Rep. No. 92-238 (92nd

Cong., 1st Sess., 1971) 41
Schlei & Grossman, Emplovment 

Discrimination Law. (2nd 
Ed. 1983) 35, 42

XI



No. 86-

In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1986

E. MARIE HOLDEN,

Petitioner,
- v -

OWENS-ILLINOIS, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

Petitioner E. Marie Holden prays 
that a writ of certiorari issue to review 
the judgment of the United States Court of 
Appeals for the Sixth Circuit entered on 
June 18, 1986, reversing the decision of 
the United States District Court for the



2
Northern District of Ohio.

OPINIONS BELOW
The decision of the court of 

appeals of June 18, 1986 is reported at
793 F. 2d 745 and is set forth in the 
Appendix at pages la-19a. The district 
court's Opinion and Order of July 25,
1984, is not reported, and is set forth in 
the Appendix at pages 20a-53a. Other 
decisions and orders of the district 
court, also unreported, dated March 29,
1985, April 24, 1985, May 8, 1985, and 
August 8, 1986 (order on remand), are set 
forth in the Appendix at pages 54a-70a, 
71a-76a, 77a-79a, and 80a-81a,
respectively.

JURISDICTION

The j udgment of the Court of
Appeals reversing the decision of the
district court was entered on June 18,
1986. On September 8, 1986, Justice



3
O'Connor granted an extension of time in 
which to file the Petition for Writ of 
Certiorari to and including October 16,
1986. Jurisdiction of this Court is 
invoked pursuant to 28 TJ.S.C. §1254 (1).

STATUTES AND RULES INVOLVED
This case involves the following 

statutes, regulations and rules, the 
pertinent texts of which are set out in 
the Appendix at pp. 82a-89a.

42 U.S.C. §2000a-2(a), Section 
703(a) of Title VII of the Civil Rights 
Act of 1964, as amended;

42 U.S.C. §2000e-3(a), Section 
704(a) of Title VII, as amended;

Executive Order 11246;
41 C.F.R. §60-1.32;
41 C.F.R. § 60-2.22;
Rule 52(a) of the Federal Rules

of Civil Procedure.



4
STATEMENT OF THE CASE 

A. Proceedings Below
Petitioner E. Marie Holden, a 

black woman, commenced this action in the 
United States District Court for the 
Northern District of Illinois, Western 
Division, on September 2, 1976, after
receipt of a right-to-sue letter from the 
Equal Employment Opportunity Commission.1 
App. 20a. On February 15, 1977,
petitioner filed an amended complaint 
alleging that respondent employer had 
discharged her because she had opposed and 
had sought to have corrected violations of 
Title VII of the Civil Rights Act of 1972 
and of Executive Order 11246, in violation

1 The original complaint, which was 
based on diversity of citizenship, 
asserted a claim under state law for 
"fraudulent representation." The district 
court found against petitioner on the 
state law claim and that holding was 
affirmed on appeal. No issues are raised 
here relating to the state claim.



5
of Section 704(a) of Title VII, 42 U.S.C. 
§2000e-3(a).

The case was tried without a 
jury in September and October 1981. App. 
20a; 24a. On July 25, 1984, the district 
court issued an Opinion and order finding 
as a matter of fact that plaintiff was 
discharged because she opposed practices 
she believed violated Title VII. The 
district court therefore awarded her 
backpay, reinstatement, and attorneys® 
fees (App. 42a-53a), and subsequently 
entered a monetary judgment against the 
respondent. App. 68a-70a; 71a-76a; 77a- 
79a.

Respondent appealed the district 
court's decision, and the court of 
appeals, although it did not find any of 
the district court's findings of fact to 
be clearly erroneous, reversed the holding 
that plaintiff had been discharged because



6
she had engaged in activities protected by 
§704(a). The court of appeals remanded 
the case to the district court with 
instructions to dismiss petitioner's 
complaint (App. 19a; 80a-81a), thus
occasioning this petition for a writ of
certiorari.
B. Statement of Facts

In ruling in favor of
petitioner, the district court made a
number of findings of fact that it
summarized as follows:

There is no doubt in the Court's 
mind that at the time the defendant 
employed the plaintiff, its 
employment practices were in many 
respects discriminatory, especially 
as to race, but also as to gender. 
It had been following the common 
practice of window-dressing by token 
employment of minority individuals, 
rather than seriously trying to 
change its methods and to remedy the 
results of its past discriminatory 
actions. When the plaintiff, perhaps 
with more zeal than good judgment, 
moved aggressively to try to get 
action, she was summarily discharged.
(App. 31a-32a.)



7
*  *  *

Upon the plaintiff’s second 
claim, that of retaliatory discharge 
forbidden by 42 U.S.C. §2000e-3, the 
Court concludes that the plaintiff 
was in fact discharged because she 
was strenuously seeking to bring the 
defendant into full compliance with 
its duty not to discriminate in 
employment. (App. 34a-35a.)

*  *  *

As noted above, plaintiff was 
discharged because she vigorously 
opposed what she perceived to be 
violations of Title VII. There is no 
doubt that her perceptions were based 
in fact. This Court has little 
difficulty concluding that her 
conduct was protected conduct within 
the meaning of Title VII, and has 
even less difficulty concluding that 
but for her willingness and attempts 
to do her job effectively she would 
not have been discharged. (App. 
39a.)

These findings as to the ultimate issue 
before the court were fully supported by 
the evidence introduced at trial.

Marie Holden was recruited in August, 
1975, by Respondent Owens-Illinois, Inc. 
to serve as Manager-Equal Opportunity 
Affirmative Action Programs at



8
Respondent's corporate headquarters in 
Toledo, Ohio. 2 Owens-Illinois' Manager- 
Equal Opportunity Affirmative Action 
Programs was responsible for "the 
development of Affirmative Action Programs 
that w[ould] ensure equal employment 
opportunities as required by local, State 
and Federal Law."3 Ms. Holden, a college 
graduate and an equal employment 
opportunity and affirmative action program 
professional for over 15 years, began her 
employment with Respondent on October 1, 
1975. 4

Ms. Holden testified that her

2Complaint, Holden v. Owens-Illinois, 
Inc. . No. C76-442 £1,4 (N.D. Oh. filed
Sept. 2, 1976); Answer, Holden v. Owens-
Illinois. Inc. . No. C76-442 £1, 4 (N.D.
Oh. filed Sept. 22, 1976). Dec. of Dist. 
Ct., App. 24a.

3Defendant's Exhibit "0".

4Id.



9
predecessor in the position of Manager- 
Equal Opportunity, John Gregory, warned 
her after she accepted the position with 
Owens-Illinois, that Owens-Illinois "was 
not committed to Affirmative Action or 
EEO, and that they had done just about 
nothing toward the advancement of such 
purposes." 5 Ms. Holden quickly learned 
for herself that Mr. Gregory's assessment 
was painfully accurate. Approximately six 
weeks after she began her employment with 
Respondent, on November 11, 1975, Ms. 
Holden was fired. 6

When Ms. Holden, a management- 
level employee, reported for work on 
October 1, she was given "a makeshift 
place to work . . .  in the middle of the

testimony of E.M. Holden, Trial 
Transcript (hereafter, "Tr.") 89.

defendant's Exhibit "P".



10
floor with the clanking of typewriters all 
around.”7 When she asked to see the 
corporate headquarters' Affirmative Action 
Plan on her first day of work, she was 
told that none existed.8 Instead, Ms.
Holden was shown the Affirmative Action 
Plans for the field facilities, and was 
told that those plans ”[we]re all no good 
. . . and . . .  it was [her] job . . . t o
take every one of them and make them . . . 
passable.” 9 Ms. Holden was still 
concerned that the corporate headquarters 
did not have an affirmative action plan, 
however, and she thus informed her 
supervisor, Philip Anthony, that she could 
develop one. She testified that Mr.

testimony of E.M. Holden, Tr. 95. 
Dec. of District. Ct., App. at 27a.

testimony of E.M. Holden, Tr. 95.

testimony of E.M. Holden, Tr. 105, 
108, 109.



11
Anthony replied that she should "[t]read 
softly . . . [and should not] poke [he]r 
nose where it doesn't belong.”10 11

Soon after Ms. Holden began her 
employment with respondent she was 
approached by a number of female and 
minority employees who learned about her 
arrival from a memorandum circulated by 
the Owens-Illinois management. These 
employees told Ms. Holden that they 
believed that women and minority employees 
were discriminated against by Respondent. 
When Ms. Holden informed John Chadwell, 
respondent's Director of Human Resources, 
about the workers® complaints Chadwell 
said that he "wasn't going to be involved 
in it".11

10Testimony of E.M. Holden, Tr. 110.

11 Testimony of E.M. Holden, Tr. 136- 
138. Mr. Chadwell testified that he had 
no recollection of this discussion. Tr. 
555.



12
Immediately prior to Ms. 

Holden's termination, she was sent by her 
supervisor to respondent's Shreveport,
Louisiana facility to "fix" their
Affirmative Action Plan. 12 Ms. Holden
testified that she was warned by Mr.
Anthony to "be prepared for whatever [she] 
found there because they were afraid to 
have me come. They did not want [her] 
there, and . . . were going to do
everything they could to prevent [her] 
getting the job done."12 13

The district court found that

12 Testimony of E.M. Holden, Tr. 147. 
In fact, according to Mr. Larry Joe Stump, 
Industrial Relations Manager for the 
Shreveport facility, there was no 
Affirmative Action Plan for the facility 
when Ms. Holden was sent on the Shreveport 
assignment. Testimony of L.J. Stump, Tr. 
494.

13 Testimony of E.M. Holden, Tr. 147. 
See Decision of District Court, App. 28a- 
30a.



13
the Shreveport plant manager "was 
blatantly discriminatory in his treatment 
of the plaintiff":

She was not given any proper 
place to work. Her attempts to get 
information she needed to design 
plans was withheld. She was not 
permitted to interview specific 
employees. Although the plant 
manager always addressed his white 
female secretary formally by her last 
name, he addressed the plaintiff by 
her first name. Such condescension 
is a clear sign of contemptuous and 
discriminatory attitude. He did not 
keep appointments with plaintiff, and 
let her cool her heels in his waiting 
room for long periods of time when 
she wanted to talk to him. There was 
some evidence that other visitors 
from company headquarters were given 
"red-carpet" treatment when they came 
to Shreveport. The plaintiff 
certainly got no such treatment.

(App. 28a-29a.)
The district court further found 

that plaintiff's treatment at the 
Shreveport plant and her attempts to bring 
the situation there to the attention of 
the company's management were the events 
that precipitated her being fired. (App.



14
30a-31a.)

It was the totality of 
plaintiffs' experiences and treatment that 
led to the district court's ultimate 
finding that the reason for her discharge 
was her vigorous attempts to get her 
employer to comply with the laws against 
discrimination. App. 31a-32a; 37a-39a.
Thus, the trial court considered each of 
the other alleged reasons advanced by 
respondent for terminating plaintiff and 
expressly rejected each one on the ground 
it was not credible. 14

14 Defendants argued that plaintiff's 
omission of her prior employment history 
would have been grounds for her 
termination. The district court found 
that "The Court has no doubt that the 
defendant would have employed the 
plaintiff exactly as it did if it had been 
aware of the plaintiff's loss of the 
particular previous employment." App. 
24a-25a. Further, the trial court found 
the defendant's attempts to explain away 
the defendant's failure to assist and 
support plaintiff unpersuasive. App. 26a- 
28a. Finally, the Court dismissed 
defendant's argument that plaintiff was



15
C. The Decision of the Court of Appeals.

As noted above, the court of 
appeals did not hold that any of the 
findings of fact of the district court 
were clearly erroneous. Rather, it 
reversed based on a series of legal 
propositions and by its own de novo review 
of the evidence.

1. The Sixth Circuit held that
in order for a plaintiff to succeed in a 
claim that she was discharged for opposing 
practices made illegal by Title VII, there 
must be evidence, or a finding, that the 
employer had in fact violated the statute 
in specific ways. App. 6a; 8a-10a; 9a,
n. 4.

2. The court narrowly
interpreted section 704 as only protecting

terminated because of any conflict with 
her superiors or because of the manner in 
which she carried out her duties. App. 
40a-42a.



16
employees who are discriminated against 
for opposing practices that violate Title 
VII itself. Since it concluded there were 
no such practices shown, petitioner was 
discharged because she attempted to bring 
her employer into compliance with 
Executive Order 11246, not with Title VII. 
Therefore, the appellate court agreed with 
her employer1 s contention that it was free 
to discharge an employee because "she 
aggressively and zealously sought to 
implement an affirmative action plan which 
would comply with Executive Order 11,246," 
since such actions would "not constitute 
protected conduct." App. 7a. The 
appellate court held that the district 
court therefore erred "in treating 
plaintiff's attempts to implement an 
affirmative action program which would 
comply with Executive Order No. 11,246 as 
prCtected conduct under the 'opposition



17
clause'." App. 8a.

3. The court further held that 
because petitioner was not a compliance 

officer, i.e.. her duties did not 

encompass the handling of employee 

complaints, she could be discharged for 

bringing such complaints to management's 
attention or urging that they be resolved. 
App. 16a.

4. The court conducted a de 
novo review of the evidence and held that 

petitioner's conduct had "disabled [her] 

from continuing to work with company 

executives" (App. 16a-17a) despite the 

district court's findings to the contrary.15

15The district court had examined 
plaintiff's conduct and made the following 
findings;

[T]he plaintiff was trying 
conscientiously to get the 
defendant to mend its ways, and 
to be conciliatory with 
employees who had filed or were 
likely to file complaints 
against it. This was the



18
REASONS FOR GRANTING THE WRIT 

Introduction
This case involves the "opposition 

clause" component of the protections set 
out in Section 704(a) of Title VII of the 
Civil Rights Act of 1964. The section 
protects both employees who have been 
discriminated against because they have 
filed formal complaints alleging 
discrimination, and employees who have 
been discriminated against because they 
have "opposed any practice made an

ultimate purpose of plaintiff's 
employment, and far from being 
opposed to the defendant's 
interests, was strongly 
supportive of them. True, the 
plaintiff did herself file an 
EEOC complaint against the 
defendant a day or so before her 
employment was terminated, but 
at the time she did so, for all 
practice purposes she had been 
deprived by the defendant of any 
capability of advancing its real 
interests. . . .

App. 41a-42a.



19
unlawful employment practice by this 
Title."

The district court upheld 
petitioner Marie Holden's claim that she 

was discharged because she vigorously 
voiced her opposition to practices of her 

employer that "she perceived to be 
violations of Title VII". App. 39a. The 

district. court further held that "there 
was no doubt that her perceptions were 

based in fact," (id.) because there was 

similarly "no doubt in the Court's mind 

that at the time the defendant employed 
the plaintiff its employment practices 

were in many respects discriminatory, 

especially as to race." App. 31a.

The court of appeals rejected 
the holding of the district court, and 

overruled its findings of fact without 

holding them clearly erroneous, based on a 

number of rulings construing the meaning



20
and scope of §704. First, it held that 
the plaintiff-employee must demonstrate 
that the employer in fact had violated 
Title VII. The court of appeals noted 
that the district court "did not make any 
specific findings regarding the violations 
of Title VII that plaintiff 'opposed.'" 
App. 6a. Therefore, the appellate court 
concluded, "the district court did not 
identify any conduct of defendant which 
violated Title VII". App. 8a. In 
discussing one of the specific incidents 
that plaintiff complained of the court of 
appeals further noted that "there was no 
evidence" that the concentration of 
minorities in a particular job category 
violated Title VII. App. 9a, n.4. 
Instead, the court concluded that since 
there was no evidence of actual violations 
of Title VII, plaintiff was discharged 
because she attempted to implement an



21

affirmative action plan that would comply 
with Executive Order No. 11246.

Second. and as a corollary 

reason, the court held that; plaintiff's 

alleged failure to cite Title VII to her 

employer and her reliance instead on 

provisions of Executive Order 11246 was 
fatal to her case, even though both 
prohibit precisely the same conduct—  
discrimination on the basis of race and 
sex.

Third, the court of appeals held 
that the employer-defendant was free to 
discharge the employee because she had 
urged that the remedy of effective 

affirmative action plans be used to 

correct the conditions of employment she 
identified.



22

I.

CERTIORARI SHOULD BE GRANTED TO RESOLVE 
CONFLICTS BETWEEN THE COURTS OF APPEALS 
WITH REGARD TO THE MEANING AND SCOPE OF 
SECTION 704 OF TITLE VII.

A. The Decision Below Conflicts With 
Those of Other Courts of Appeals with 
Regard to the Standards for Establishing A 
Violation of Section 704.

The court of appeals' threshold 
holding that because there was no proof of 
an actual violation of Title VII, 
petitioner's discharge did not violate 
Section 704, is in square conflict with 
decisions of the Fifth, 16 * 18 Seventh,^ 
Eighth,18 Ninth,19 Tenth,20 and District

16Pavne v. McLemore's Wholesale and 
Retail Stores, 654 F . 2d 1130 (5th Cir. 1981) .

1-̂ Berg v. La Crosse Cooler Co. » 612
F.2d 1041 (7th Cir. 1980); Rucker v . 
Higher Educ. Aids Bd. . 669 F. 2d 1179 (7th 
Cir. 1982).

18Sisco v. J.S. Alberici Construction 
Co.. 655 F .2d 146 (8th Cir. 1981).



23
of Columbia Circuits.19 20 21

The issue presented by this case, and 

the decisions it conflicts with, is the 

standard to which an employee is to be 

held when challenging a discharge under 
the opposition clause. The possible 

standards range from the one adopted by 
the appellate court here, viz., there must 

be a demonstration that the employer in 
fact discriminated; to a standard that 
requires the employee to have an 

"conscientiously held" if mistaken belief 

that discriminatory practices existed; to 
a requirement that the employee had a 
"reasonable" belief of discriminatory

19Sias v. City Demonstration Agency. 
588 F . 2d 692 (9th Cir. 1978); Gifford v. 
Atchison, T. & S.F. Rv. . 685 F. 2d 1149
(9th Cir. 1982) .

20Love v. Re/Max of America Inc.,738 
F.2d 383 (10th cir. 1984).

21Parker v. Baltimore and Ohio 
Railroad Co. . 652 F.2d 1012 (D.C. Cir. 1981) .



24
employer behavior. See Monteiro v. Poole 
Silver Co,. 615 F.2d 4, 8 (1st Cir. 1980).

The issue is of crucial 
importance to the effectiveness of §704, 
since if an employee who opposes what she 
reasonably believes to be discrimination 
does so at her peril unless she can later 
prove discrimination in fact, the remedial 
purposes of Title VII will be 
substantially thwarted. Thus, with the 
exception of the court below in this case, 
the appellate courts reaching the issue 
have held that an employee need only 
demonstrate that she had a “reasonable 
belief" that the practice opposed was 
discriminatory.

For example, in Berg v . La 
Crosse Cooler Company. 612 F.2d 1041 (7th 
Cir. 1980), the Seventh Circuit held that 
an employee could not be discharged for 
voicing the mistaken belief that Title VII



25

prohibited the denial of disability 

benefits based on pregnancy. In Berg, the 

plaintiff expressed her belief at the time 

when this Court held, in General Electric 
Company v. Gilbert. 429 U.S. 125 (1976) , 
that such a denial was not a "practice 

made an unlawful employment practice” by 
Title VII. The Seventh Circuit held that 
because a plaintiff entertained a 

reasonable belief that the defendant's 

practices violated Title VII, it would be 
directly contrary to the policy concerns 

embodied in Section 704 to permit her 
discharge for the expression of that 
belief. 612 F.2d at 1045.

Prior to Berg the Court of 

Appeals for the Ninth Circuit reached the 

same conclusion in Sias v. City 

Demonstration Agency, 588 F. 2d 692 (9 th 
Cir. 1978) . The court noted that the
protection of Section 704 "could be said



26
to be limited to cases where the employer 
has in fact engaged in an unlawful 
employment practice." The court rejected 
such a "narrow interpretation" because it 
not only would "chill the legitimate 
assertion of employee rights under Title 
VII, but would tend to force employees to 
file formal charges rather than seek 
conciliation or informal adjustment of 
grievances." 588 F.2d at 695.

The rationale of Berg and Sias 
has been adopted by the Fifth Circuit in 
Payne v. McLemore1s Wholesale and Retail 
Stores, 654 F.2d 1130, 1137-1141, 1143-44 
(5th Cir. 1981), by the Eighth Circuit in 
Sisco v. J.S. Alberici Construction 
Company, 655 F.2d 146, 150 (8th Cir. 
1981), and the District of Columbia 
Circuit in Parker v. Baltimore and Ohio 
Railroad Co.. 652 F.2d 1012, 1019-20 (D.C.
Cir. 1981) . Indeed, in Parker the court



27

held that a white male employee's good 
faith and reasonable belief that an 

affirmative action plan violated his 

rights under Title VII would insulate him 

from discharge even if his belief was not 
well founded.22

In this case the district court 
made a square factual finding that 
petitioner’s belief that her employer had 
engaged in discriminatory practices that 
violated Title VII was not only reasonable 
but, indeed, was well founded. The court 
of appeals did not overrule that finding 
as clearly erroneous but reversed on the 

legal theory that such a belief did not 
insulate an employee from discharge unless 

there was evidence of an actual violation 

of Title VII. That holding is in clear

22 The Tenth Circuit has stated the 
standard as whether plaintiff has asserted 
her Title VII rights "in good faith." Love 
v. Re/Max of America. Inc., 738 F. 2d at 386.



28
conflict with the holdings of six other
courts of appeals and because of the
importance of the question to the
enforcement of Title VII it should be
reviewed by this Court.
B. The Court of Appeals’ Narrow
Interpretation of the Scope of Section 704 
Is Inconsistent with Decisions of Other 
Circuits.

The court of appeals held that 
an employee’s actions seeking to implement 
an affirmative action plan that would 
comply with Executive Order 11246 do not 
constitute protected activity under 
Section 704(a), the anti-retaliation 
clause of Title VII. This narrow 
application of Section 704(a) is 
inconsistent with rulings of courts that 
have extended protection of Section 704(a) 
to employees who opposed practices that 
were not employment matters covered by 
Title VII, or who filed complaints



29
alleging discrimination with federal 

agencies that had contracted with he 
employer.

Thus, In Smith v. Singer Co. . 
650 F .2d 214 (9th Cir. 1981), the court of 

appeals held that a company's equal 
employment opportunity officer was 
protected by §704(a) against retaliation 
for the act of filing a complaint with the 

federal Office of Federal Contract 

Compliance Programs, although it further 
held that under the facts of the case, the 

plaintiff's discharge was justified. in 

Wrighten v. Metropolitan Hospitals. Inc. . 
726 F. 2d 1346, 1353-57 (9th Cir. 1984), 

the same court held that a black nurse who 
complained about inadequate care for black 
patients was protected by §704 from being 
discharged. And the Third Circuit has held 
that an employee was protected by §704(a) 

if he was discharged for complaining of



30
discrimination to the United States 
Department of Housing and Urban 
Development, which provided the funding 
for the project involved. Hicks v. ABT 
Assoc., Inc. 572 F.2d 960 (3rd Cir. 1978). 
Accord Sias v. City Demonstration Agency, 
588 F. 2d 692 (9th Cir. 1978). 
Analogously, in London v. Coopers & 
Lvbrand. 644 F.2d 811, 818-19 (9th Cir. 
1981) the court held that the rights 
encompassed by §704 can be enforced in an 
action under 42 U.S.C. §1981. Accord 
Pinkard v. Pullman-Standard. 678 F. 2d 
1211, 1229, n. 15 (5th Cir. 1982); Setser 
v. Novack Inv. Co.. 638 F.2d 1137 (8th 
Cir. 1981).23

23See also Choudhurv v. Polytechnic 
Institute of New York. 735 F.2d 38 (2d 
Cir. 1984) (42 U.S.C. §1981 prohibits 
retaliation for filing a claim for relief 
under that statute); accord DeMatteis v. 
Eastman Kodak Co. . 511 F. 2d 306, 312 (2d 
Cir. 1975), modified on other grounds. 520 
F . 2d 409 (2d Cir. 1975); Goff v. 
Continental Oil Company. 678 F.2d 593 (5th



31

THIS CASE PRESENTS IMPORTANT QUESTIONS 
CONCERNING THE SCOPE OF SECTION 704(A) OF 
TITLE VII THAT HAVE NOT BEEN ADDRESSED BY 

THIS COURT.
The holding of the court of appeals, 

that §704(a) does not protect opposing 
actions that violate Executive Order 11246 

and that, therefore, an employer is free 
to discharge an employee who attempts to 
bring about voluntary compliance with the 

Order, undermines an essential policy of 

the anti-discrimination laws.
A. The Scope of Section 704(a) Is An

Issue of National Importance.

Central to the effective enforcement 
of Title VII of the Civil Rights Act of 

1964, as well as other statutes and 

provisions against unlawful discrimination 

in employment, is the role of private

Cir. 1982)i Greenwood v. Ross. 778 F.2d 
448, 455 (8th Cir. 1985),* Sisco v. J.S.
Alberici Const. Co. , 655 F. 2d 146, 150
(8th Cir. 1981).

II.



individuals who are employees of 
discriminating employers. As this Court 
has noted, under the statutory scheme the 
enforcement of the Act depends on the 
initiative of such employees. E .g., Love 
v. Pullman Co.. 404 U.S. 522 (1972).
Therefore, Congress has provided, as an 
essential part of the regulatory scheme, 
that employees will be free from 
retaliation because they exercise their 
right to bring complaints. 24

As this Court has also repeatedly

32

24 In this respect, Title VII 
parallels the Fair Labor Standards Act (29 
U.S.C. §215(a)(3)); the National Labor 
Relations Act (29 U.S.C. §158); and the 
Occupational Safety and Health Act (29 
U.S.C. §§650). See also 42 U.S.C. 
§5851(a) (Emergency Reorganization Act of 
1974), and 41 C.F.R. §60-250.51 and 60- 
741.51 (regulations protecting veterans 
and handicapped workers under the 
Rehabilitation and Veterans Assistance 
Acts). This Court has interpreted the 
protections of the anti-retaliation 
provision of the NLRA broadly. NLRB v. 
Scrivener. 405 U.S. 117, 121-22 (1972), 
and cases there cited.



33

held, Title VII depends first on voluntary 

compliance with its provisions and on the 

conciliation of disputes short of formal 

complaints and litigation. See. e.q. . 
Alexander v. Gardner-Denver Co.. 415 U.S. 
36, 44 (1974) ; Steelworkers v. Weber. 443 
U.S. 193, 203-204 (1979); Firefighters v.

Cleveland. 478 U.S. ___, 92 L.Ed.2d 405,
419 (1986). Similarly, Executive Order 
11246 provides that federal contracting 
agencies must make reasonable efforts to 
secure compliance by means of conference, 

conciliation, mediation, and persuasion. 
Exec. Order No. 11246, §209(b). Obviously, 
if an employer is unaware of or 
indifferent to practices that may 

constitute violations of the Act there 

will be no voluntary action to comply.

Section 704(a) is thus vitally 

important to the carrying out of these 
goals. Employees must feel free to bring



34
perceived violations to their employer's 
attention without fear of retaliation or 
other discriminatory acts because they 
have taken the initiative to secure 
obedience to the law. Thus, the appellate 
court's ruling conflicts with the clear 
intent of Congress when passing the Civil 
Rights Act of 1964, since the central 
purpose of Section 704(a) of the 
'opposition clause' is to encourage and 
facilitate the enforcement of civil rights 
by permitting employees to vindicate their 
rights without fearing reprisal.

The question of the scope and meaning 
of Section 704 has resulted in extensive 
litigation in the lower courts 25 but has 2

2^In addition to the cases cited 
above in Part I see, e.g. . Hochstadt v. 
Worcester Foundation. 545 F. 2d 222 (1st 
Cir. 1976); Silver v. KCA. Inc.. 586 F.2d 
138 (9th Cir. 1978) ; EEOC v. St. Anne's 
Hospital. 664 F.2d 128 (7th Cir. 1981); 
Novotny v. Great Am. Fed. Sav. & Loan 
Ass'n. 584 F.2d 1235 (3rd Cir. 1978), 
vacated and remanded on other grounds. 442



35

only been tangentially addressed by this 
Court.* 26 As shown in Part I above, there 

is a dispute among the lower courts both 

as to the scope of the protections of the 

statute and the burden an employee who 

complains of retaliation must bear in 

order to secure those protections.27 The

U.S. 366 (1979) ; Balderas v. La Casita 
Farms, Inc.. 500 F.2d 195 (5th Cir. 1974); 
McClunev v. Joseph Schlitz Brewing Co. . 
728 F . 2d 924 (7th Cir. 1984); De Anda v. 
St. Joseph Hosp11 . 671 F.2d 850 (5th Cir.
1982) ; Rucker v. Higher Educ. Aids Bd., 
669 F . 2d 1179 (7th Cir. 1982); EEOC v. 
Crown Zellerbach Coro.. 720 F.2d 1008 (9th 
Cir. 1983); Gifford v. Atcheson, T. & S.F. 
Rv. . 685 F. 2d 1149 (9th Cir. 1982) . See 
generally Schlei & Grossman, Employment 
Discrimination Law, pp. 533-569 (2nd Ed.
1983) .

26See Emporium Capwell Co. v. Western 
Addition Comm. Organ., 420 U.S. 50 (1975); 
McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1972); Great American Federal S. & L. 
Assn, v. Novotnv. 442 U.S. 366 (1979); cf. 
Connecticut v. Teal, 457 U.S. 440, 454 
(1982)

27As noted by a leading treatise, 
"There has been considerable disagreement 
over the scope of the protection afforded 
by the opposition clause." Schlei and 
Grossman, Employment Discrimination Law.



36

uncertainty of the law can only result in 
employees being uncertain and fearful of 
what they may or may not do.

We have demonstrated that the 
petitioner here in fact opposed activities 
that she perceived to violate Title VII. 
Even accepting the court of appeals' 
conclusion that her opposition was related 
to the employer's failure to comply with 
the obligations under Executive Order 
11246, the case raises important questions 
as to whether such opposition also gives 
rise to the right to be free of 
retaliatory actions.
B. The Decision of The Court Below Will

Necessarilv Adverselv Impact on The
Abilitv of The Office of Federal
Contract Compliance to Achieve ItsGoals of Endina Discrimination AndBrincrincr about Effective Affirmative
Action Programs.

Contracts entered into with the

p. 542 (2nd Ed. 1983).



37

federal government are governed by 
Executive Order 11246 and the guidelines 
set out in 41 C.F.R. Parts 60-1 and 60-2. 
The guidelines require contracting 
companies not only to refrain from 
discriminatory actions (E.O. 11246, §202; 
App. p. 83a) and to develop affirmative 
action programs that will ensure true 
equality of opportunity for all of its 
employees (id*)/ but also prohibit the 
taking of any retaliatory actions against 
employees who attempt to bring about 
compliance with the Executive Order. (41 
C.F.R. §60-1.32; App. pp. 84a-85a.)

One of the requirements under the 
guidelines is that a responsible company 
official be appointed as director or 
manager of company equal opportunity 
programs guidelines and that the director 
be given the necessary staffing to carry 
out his or her duties. (41 C.F.R. §§60-



38
2.22(a); App. p. 85a.) Petitioner here 
was appointed to one of the two top staff 
positions under the respondent company’s 
Director of Equal Opportunity Programs. 
Her responsibilities were to assist the 
director in, inter alia. "developing 
affirmative action programs" (41 C.F.R. 
§60-2.22(a)(1); App. 85a); "assisting in 
the identification of problem areas" (§60- 
2.2(a)(2); App. 85a); "assisting line 
management in arriving at solutions to 
problems" (§60-2.22(a)(3); App. 86a); 
"designing . . . systems that will . . .
indicate need for remedial action", (§60- 
2.2(a)(4); App. 86a); and serving "as 
liaison between the contractor and . . .
organizations . . . concerned with
employment opportunities of minorities and 
women" (§60-2.22(a)(6); App. 86a).

It is clear from the findings of the 
district court that it was because



39
petitioner was attempting to carry out 
effectively the precise duties listed in 
the Department of Labor guidelines that 
governed her job that she was fired. 
Thus, she identified a number of problem 
areas to management (App. 31a-32a), 
attempted to develop meaningful 
affirmative action plans (App. 28a), and 
attempted to work with line management in 
the Shreveport plan to solve the severe 
problems there (App. 29a-31a).

. The court of appeals did not 
dispute any of the district court's 
holdings. Nevertheless, by reading 
1704(a) in the narrowest possible way, it 
held that it was permissible and 
unchallengeable to discharge petitioner 
because she was attempting to obtain 
compliance with the Executive Order rather 
than, as it interpreted the facts, Title
VII itself.



40

The Sixth Circuit's holding 
simply ignores the substantial overlap 
between Title VII and Executive Order 
11246, and disregards the essential 
similarity of the goals which both were 
enacted to achieve.28 The United States 
House of Representatives, in a report 
accompanying the Equal Employment 
Opportunity Act of 1972, observed that 
"the contract compliance program and the 
Title VII program . . . are addressed to 
the same basic mission —  the elimination

28Thus, 42 U.S.C. §2000e-2 (a) 
requires employers not to "discriminate 
against any individual. . . because of 
such individual’s race, color, religion, 
sex, or national origin . . .," and E.O. 
11246 requires each federal contractor to 
agree not to "discriminate against any 
employee or applicant for employment 
because of race, color, religion, sex, or 
national origin.”

Similarly, both Title VII, in 
§704(a), and the guidelines implementing 
the Executive Order, in 41 C.F.R. §60- 
1.32, prohibit adverse actions against a 
person who opposes illegal acts.



41
of discrimination in employment . , 
Title VII and the Executive Order 11246 
are addressed to the same problem—  

identifying and remedying employment 
discrimination . . . .  Affirmative action 
is relevant not only to the enforcement of 
Executive Order 11246 but is equally 
essential for more effective enforcement 
of Title VII in remedying employment 
discrimination." H.R. Rep. No.92-238, 15- 
16 (92nd Cong., 1st Sess., 1971).

Thus, the decision below can have 
only the gravest consequences for the 
effectiveness of the policies of the 
United States. As we have noted, there 
have been a large number of cases 
involving claims under §704(a),29 and a 
significant proportion of those cases have 
involved. persons in positions comparable

29See, n. 25, supra. and accompanying
text.



42
to that of petitioner Holden, i.e., 
employees whose duties relate to the 
enforcement of and compliance with the 
federal laws against discrimination. 30

If, as the court below 
essentially holds, a person holding an EEC 
officer's job does her job at her peril

30See, e.g. . Pendleton v. Rumsfeld. 
628 F. 2d 102 (D.C. Cir. 1980); Smith V.
Secretary of the Navy. 659 F.2d 1113 (D.C. 
Cir. 1981); Smith v. Singer Co.. 650 F.2d 
214 (9th Cir. 1981) ; Jones v. Flagship 
International. 793 F.2d 714 (5th Cir.
1986); Hamm v. Board of Regents. 708 F.2d 
647 (11th Cir. 1983), reh'g and reh'q en
banc denied. 715 F.2d 580 (11th Cir.
1983) ; St. John v. Employment Development
Deo't .. 642 F .2d 273 (9th Cir. 1981) ;
Whatley v. Metropolitan Atlanta Rapid 
Transit Authority. 632 F.2d 1325 (5th Cir. 
1981); Thompson v. Int'l Assoc. of 
Machinists & Aerospace Workers. 38 F.E.P. 
Cases 894 (D.D.C. 1985); Burston v.
Virginia Dep't. of Computer Services. 35 
F.E.P. Cases 1825 (E.D. Va. 1984) ; Ramon
v. Smith. 34 F.E.P. Cases 404 (S.D. Tex.
1984) ; Norton v. Vartanian. 31 F.E.P.
Cases 1259 (D. Mass. 1983). See also EEOC 
v. Anchor Hocking Corp. . 666 F.2d 1037
(6th Cir. 1981). See generally Schlei & 
Grossman, Employment Discrimination Law, 
pp. 553-54 (2d ed. 1983), discussing the
scope of §704 (a) protection for EEO personnel.



43
then the effectiveness of both Title VII 
and the Executive Order will be 
undermined. It is an EEO officer who is 
most likely to recognize compliance 
problems, bring them to management's 
attention, and seek voluntary compliance 
or conciliation of disputes. If this key 
official is fearful —  justifiably in the 
Sixth Circuit —  of performing these 
functions well, then problems will fester 
and be resolved eventually only through 
formal complaints and litigation in the 
federal courts. Again, such a result is 
entirely at odds with congressional 
purpose and the public interest in 
conciliation and compliance.



44

THE DECISION OF THE COURT 
OF APPEALS IS INCONSIS­
TENT WITH PULLMAN-STANDARD
CO V. SWINT, 456 U.S. 273 
(1982) .

III.

The district court prefaced its 
opinion by stating that the case presented 
difficult questions of reconciling 

testimony and concluded that the factual 

disputes,
[M]ust be resolved by deduction from 
all of the evidence in the light of 
its conflicts and inconsistences, the 
appearances of witnesses on the 
stand, their manner of testifying, 
their interests in the outcome of the 
case, and all the mass of little 
nuances that enable the finder of the 
facts to uncover the factual reality 
which underlies the witnesses' 
testimony.

App. 22a-23a. The district court, relying 

on this Court’s decision in United States 

Postal Service Board of Governors v. 

Aikens, 460 U.S. 711 (1983) , found that 
petitioner "clearly has met her burden of 

persuasion," and, implicitly finding



45
respondent's proffered reasons to be 
pretextual, found, after reviewing the 
totality of the evidence, that petitioner 
was "discharged because she vigorously 
opposed what she perceived to be 
violations of Title VII." App. 39a.

As noted above, the court of 
appeals did not hold that the district 
court's findings were clearly erroneous—  
as indeed it could not, given the evidence 
of' record. Rather, it supported its 
decision in part by making its own lengthy 
findings of fact concerning petitioner's 
conduct. App. lOa-lla, 16a-17a. From 
these it concluded that petitioner had 
"disabled herself from continuing to work 
with company executives," and had not 
established that the reasons given for her 
discharge were pretextual. Essentially, 
the court of appeals held that the 
district court had applied the wrong legal



46
standard in assessing petitioner's claim. 
See App. at lla-16a.

Thus, even assuming arguendo 

that the record did not fully support the 
district court's ultimate finding that 

§704 (a) had been violated, the court of 

appeals misapplied Rule 52(a), Federal 
Rules of Civil Procedure, and failed to 
comply with this Court's holding in 

Pullman-Standard Co. v, Swint. 456 U.S.

273, 291-92 (1982). Even if the appellate

court was correct in its view that the 
district court's opinion was deficient in 

some respects, the matter should have been 

remanded for further findings in light of 

the proper legal standard. See also

Lehman v. Trout. 465 U.S. 1056 (1984).



CONCLUSION
For the foregoing reasons a writ of 

certiorari should issue to review the 
judgment and opinion of the Sixth Circuit. 

Respectfully submitted,

JULIUS L. CHAMBERS 
GAIL J. WRIGHT 
JUDITH REED *
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

ROBERT B. NEWMAN
Kircher and Phalen 
Suite 1000
125 East Court Street 
Cincinnati, Ohio 45202-1299

Attorneys for Petitioner
October 16, 1986



APPENDIX
Decisions of the Courts Below 

Statutes, Regulations, and Rules Involved



INDEX

Page
Appendix A - Opinion of the Court 

of Appeals (June 18, 1986),
793 F. 2d 745 ............   la

Appendix B - District Court Opinion
and Order (July 25, 1984)   20a

Appendix C - District Court Memo­
randum and Order (March 29,
1985) ......................... 54a

Appendix D - District Court Memo­
randum and Judgment Order 
(April 24, 1985)     71a

Appendix E - District Court Memo­
randum and Order (May 8,
1985)    77a

Appendix F - District Court Order
(August 8, 1985)    80a

Appendix G - Statutes, Regulations,
and Rules Involved ............ 82a



RECOMMENDED FOR FULL TEXT PUBLICATION 
See. Sixth■ Circuit Rule 24-

Nos. 85-3405 & 85-3420

mum states coubt if appeals
FOR THE SIXTH- CIRCUIT

EL M arie Holden,
Plaintiff-Appellee (85-3405), 

Plaintiff-Appellant (85-3420),
v.

Owens-Iu jn o is , Inc.,
Defendant-Appellant (S5-3405), 

Defendant-Appellee (85-3420).

On Appeal from the 
United States District 
Court for the North­
ern District of Ohio.

Decided and Filed June 18, 1986

Before: KENNEDY and MIL3URN, Circuit Judges; and 
JOINER. Senior District Judge,®

KENNEDY, Circuit Judge. Owens-Illinois, Inc. (“Owens”) 
appeals and E. Marie Holden (“plaintiff”) cross-appeals from 
the judgment for plaintiff in this employment discrimination 
action. During the sumer of 1975, Owens recruited plaintiff 
to manage the company's affirmative action programs and 
to design and implement affirmative action plans that would

"The Honorable Charles W. Joiner, Senior Judge, United States Dis- 
trict Court for the Eastern District of Michigan, sitting by designation.



2a

comply with Exec. Order No. 11,246, 30 Fed. Reg. 12,319 
(September 24, 1963), reprinted in 42 U.S.C § 2G0Ge note, 
as amended (“Executive Order No. 11,246”). Plaintiff even­
tually accepted the position and agreed to commence employ­
ment on October 1, 1975. Alter approximately six weeks, 
Owens terminated, plaintiff's employment on November 11, 
1975. The District. Court held that Owens discharged plaintiff 
because she aggressively sought to do her job and that the 
discharge violated 42 U.S.C § 2000e-3(a), the “opposition 
dame” in Title VH of the Civil Rights Act of 1964 (“Title 
WIT), as amended, 42 U.S.C. § 2000e. We hold that plaintiffs 
attempts to implement affirmative action plans which would 
comply with Executive Order No. i i,246 do not qualify as 
protected activity under the apposition dame. We also hold 
that the District Court did not or in dismissing plaintiffs 
state law claim for wrongful discharge. Accordingly, we 
reverse- the judgment for plaintiff on the “opposition clause” 
claim and remand the case to the District Court, with instruc­
tions to dismiss plaintiffs complaint.
Plaintiff commenced this actios on September 2, 1976 in 

the United States District Court for the Northern District 
of Ohio. Plaintiffs complaint alleged divemity of citizenship 
and asserted a claim- under- state law for “fraudulent 
representation.” Joint Appendix at 8. Plaintiff filed an 
amended complaint on February 15, 1977 which added a 
claim alleging that Owens’ termination of her employment 
violated Title VII. Plaintiffs amended complaint alleged that 
“her firing was racially motivated, in that the plaintiff was 
a black woman, insisting on compliance by the defendant 
with Title VII, and furthermore that her firing was retaliatory 
in that it resulted from plaintiffs insistence upon the compa­
ny’s compliance with Title VII__” Joint Appendix at 20.
Plaintiffs pre-trial brief, however, clarified her federal claim:

The court will note that we have sot pleaded that 
the plaintiff was fired because she was a black 
female. We are pleading, rather, that defendant’s



3a
discharge was-“in retaliation’*'for plaintiff's proper 
use of Title VII, thereby falling under the express 
provisions of Title-42 US Code § 2000e-3 [sic] which 
provides that “it shall be- aa unlawful employment 
practice for an employer to discriminate against any 
of his employees ... because he has opposed any 
practice made an unlawful employment practice by 
this- subchapter ...” We believe that this language 
means just what it says.

Joint Appendix at 31.
The District Court conducted a bench trial over three and 

oae-half non-consemtive days ia September and October, 
1981. At the close of plaintiff's evidence, Owens' moved for 
an- involuntary dismissal under Fed. R. Civ. F. 41(b). Owens- 
argued that plaintiff did not make out a. claim under 42 
U.S.C § 2000e-3(a) because Title VII did not cover plaintiffs 
opposition to Owens’ employment practices. The District 
Court reserved its ruling on the motion, which Owens 
renewed at the dose of ail the- evidence.
On July 25, 1984, or almost-three years after the trial, the 

District Court rendered its decision on the question of liabil­
ity. Initially, the District Court concluded that since plain­
tiff's employment contract was of indefinite duration, the- 
employment contract was terminable at will. Accordingly, the 
District Court ruled for Owens on the state law cause of 
action and granted Owens’ Fed. R. Civ. P. 41(b) motion on 
that claim. On the federal claim, the District Court found 
that;

There is no doubr in the Court’s mind that at the 
time the defendant employed the plaintiff, its 
employment practices were in many respects dis­
criminatory, especially as to race, but also as to gen­
der. It had been following the common practice of 
window-dressing by token employment of minority 
individuals, rather than seriously trying to change



4a
its methods and to remedy the results o f its past dis­
criminatory actions. When the plaintiff, perhaps 
with more zeal than good judgment, moved aggres­
sively to try to get action, site, was summarily dis­
charged.

Joint Appendix at 61. The District Court awarded plaintiff 
M l back pay, holding that although plaintiff had earned iess 
than S i,000 during the eight and one-half years since Owens 
terminated her employment, Owens had failed to prove a lack 
of mitigation. The District Court instructed the parties to 
meet and attempt to agree on the appropriate amount of back 
pay. The District Court also awarded reinstatement even 
though, as the District Court expressly acknowledged, plain­
tiff had not requested reinstatement in her prayer for relief.

Although the parties stipulated to several matters affecting 
the computation of back pay, the parties could not agree as. 
to the appropriate treatment for income- taxes and lost pen­
sion' benefits. Consequently, the District Court held a hearing 
on those issues affecting damages on December 12, 1984, 
Plaintiff claimed that she. would have to pay more income 
taxes on the- lump-sum back pay award than she would have- 
had to pay if she had received her wages on an annual basis. 
Accordingly, plaintiff requested an addition to the amount 
o f damages to compensate her for this increased tax liability. 
Plaintiff also requested monetary compensation in lieu, of 
pension credit. The District Court refused to increase the 
amount of damages to compensate plaintiff for increased 
income taxes and awarded pension credit rather than the dol­
lar value of her lost pension benefits. On March 29, 1985, 
the District Court issued an order entering judgment against 
Owens. On April 24, 1985, the District Court amended the 
previous order to enter a judgment against defendant for 
5372,279.45. On May 9, 1985, the District Court, sua sponte, 
entered an order to correct a clerical mistake- in the April 24, 
1985 order and amended the order by changing the amount 
o f the judgment to $361,835.45.



5a

This appeal and cross-appeal raise seven issues: (1) 
Whether plaintiff’s actions seeking to implement an affirma­
tive action program that would comply with Executive Order 
No, 1 1,246 qualified as protected conduct under 42 U.S.C. 
§ 20GGe-3{a); (2) Whether the District Court abused its discre­
tion in excluding as  irrelevant: (a) evidence that a previous 
employer terminated plaintiff’for reasons similar to those that 
defendant gave for plaintiff’s termination; and (b) evidence 
that plaintiff physically assaulted, another employee shortly 
before defendant terminated plaintiffs employment; (3) 
Whether the District Court’s, conclusion that defendant ter­
minated plaintiff for engaging in protested conduct is dearly 
erroneous or erroneous as a matter o f law; (4) Whether the 
District Court erred in panting plaintiff reinstatement to her 
previous position even though plaintiff did not request such 
relief in her pleadings or at trial; (5) Whether the District 
Court erred in dismissing the claim- for wrongful discharge 
under Ohio law, (6) Whether the District Court erred in deny­
ing plaintiff additional damages for the tax effect of receiving 
a. large sum of back pay is  one year; and (7) Whether the 
District Court erred in granting plaintiff pension credit rather 
than the cash equivalent o f defendant’s contribution to the 
pension. For the reasons stated below, we hold that plaintiffs 
actions seeking to implement an affirmative action program 
which would comply with Executive Order No. 11,246 do 
not qualify as protected conduct under 42 U.S.C. 
§ 2000e-3(aj and that the District Court erred, as a matter 
of law, in concluding that defendant' terminated plaintiff s 
employment because she engaged in protected conduct. 
Finally, we hold that the District Court did not err in dismiss­
ing plaintiff s state law claim for wrongful discharge. Accord­
ingly, we reverse the-judgment for plaintiff and remand the 
case to the District Court with instructions to dismiss plain­
tiffs complaint. In light o f this disposition, we need not and 
do not address the remaining issues.



6a

L
Title 42 U.S.C. § 2QQQe~3(a)1 contains two separate clauses 

which prohibit an employer from retaliating against an 
employee—an “opposition clause,"'which prohibits discrimi­
nation or retaliation against an employee because- the 
employee- “has opposed any practice made an unlawful 
employment practice by [Title VTI],”' and a “participation 
danse,” which prohibits discrimination or retaliation against 
an employee because the employee “has made a charge; testi­
fied, assisted, or participated. in any maimer in an investiga­
tion, proceeding, or hearing- under [Title VII].” See Sias v. 
G ty  Demonstration Agency, 588 F.2d 692, 694- (9th Cir. 
1978). Although plaintiff filed a discrimination charge against 
Owens the day before- the company terminated her employ­
ment, plaintiff has not alleged that Owens fired her because 
she filed a discrimination complaint. Consequently, this case 
involves the “opposition clause;”

Owens argues that the. District Court erred, as a matter o f  
law, and as a matter o f fact, in concluding that Owens termi­
nated plaintiff's employment because she opposed certain 
employment practices that violated Title VH. Although the 
District Court’s opinion contains the following language, the 
District. Court did not. make any specific findings regarding, 
the- violations of Title VII that plaintiff “opposed.”

[Pjlaintiff was discharged because she vigorously 
opposed what she perceived to be violations o f Title  
VII. There is no doubt that her perceptions were

lTitIe 4-2 U.S.C. § 2000e-3(a) provides in pertinent pan:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . .  because (the 

employee] has opposed any practice made an unlawful 
employment practice by this subchapter, or because he lias 
made a charge, testified, assisted, or participated in any man­
ner in an investigation, proceeding, or hearing under this sub­
chapter.



7a

based in fact. This Court has little difficulty conclud­
ing that her conduct was protected conduct within 
the meaning of Title VII, and has eves. less difficulty 
concluding, that but for her willingness and attempts 
to do her job effectively she would not have been, 
discharged.

Joint Appendix at 65. A complete reading o f  the' transcript, 
the record, and the District Court’s opinion in this case indi­
cates that the District Court treated plaintiff’s aggressive 
attempts to implement affirmative, action plans that would 
comply with Executive Order No. 11,246 as the “opposition” 
in this case.

Owens argues that even if it  terminated plaintiffs employ­
ment because she aggressively and zealously sought to imple­
ment an affirmative action plan which would comply with 
Executive-Order No. 11,246, plaintiff’s actions did not consti­
tute protected conduct. We agree. On its face; 42 U.S.C. 
§ 2000e-3(a) only protects “opposition” to employment prac­
tices that violate Title VII. Although Executive Order No. 
1.1,246 requires government, contractors to establish affirma­
tive action programs,2 Title VII does not mandate the imple­

êction 202 of Executive Order 11,246 provides in pertinent part:
Except in contracts exempted in accordance with Section 204 of this Order, ail Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

“During the performance of this contract, the contractor agrees as follows:
"(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employ­ment. without regard to their race, color, religion, sex or national origin...



8a

mentation o f affirmative action. 42 U.S.C. § 2000e-2(j) pro­
vides is  pertinent part:

Nothing, contained in this subebapter shall be 
interpreted to require any employer . . .  to grant 
preferential treatment to aay individual or to any 
group because o f the racst color, religion, sex, or 
national origin of such, individual, or group on 
account o f an imbalance which may exist with 
respect to the total number or percentage o f  persons 
o f  any race, color, religion,, sex,, or national origin ■ 
snployed by any employer. . .  in  comparison with 
the total number or percentage o f  persons o f such 
race, color, religion, sex, or national origin in any 
community, State, section, or other area, or is  the 
available work force in any community, State, sec­
tion, or other area.

Is. Texas Department o f Community Affairs v. Burdine. 450 
U.S. 248, 259 (1981), the Supreme Court stated “Title VII, 
however does act demand that an employer give preferential 
treatment to minorities or women.”' See also United Steel­
workers o f  America, AFL-CIO-CLC  v. Weber; 443 U.S. 193, 
205-07 (1979). Since Title VII does not require the adoption 
o f  affirmative action programs, to the extent that plaintiff 
sought to implement an affirmative action pian which would 
comply with Executive Order No. 11,246, plaintiff was not 
opposing a practice that violated Title VII. Consequently, the 
District Court erred in treating plaintiff's attempts to imple­
ment an affirmative action program which would comply 
with Executive Order No. 11,246 as protected conduct under 
the “opposition clause.”

As we have previously mentioned, the District Court did 
not identify any specific conduct which might have consti­
tuted “opposition” within the meaning of 42 U.S.C. § 2000e- 
3(a). Furthermore, the District Court did not identify any 
conduct of defendant which violated Title VII. In response 
to a question from the bench at oral argument, however,



9a

plaintiff's counsel claimed that plaintiff presented, evidence- 
that, in at least two instances,, she “opposed” conduct that 
violated. Title. VII. Fsrst, counsel stated that plaintiff testified 
that she- informed John Chadwell, the Director of Human 
Resources, and Q int Wagner, the- Personnel Manager, that 
the substantial concentration o f  minorities in a non- 
supervisory job category in the mail room violated Revised 
Order No. 4.3 4 Since Revised Order No. 4- implements Execu­
tive Order No. 11,246, however, plaintiff was not opposing 
conduct that violated Title VII is  complaining about condi­
tions in. the mail, room /

Second, counsel noted, that plaintiff testified that she com­
plained to Chadwell and Phil Anthony, her immediate super- _ 
visor, that several employees told her that Owens was passing 
over minorities and women for promotions. Plaintiff testified 
that, shortly after Owens circulated a memo announcing her s 
hiring, several minority women complained to her that they 
had frequently been passed over for promotions. Two women 
in particular— one was a sophomore in college and the other 
may have'been a freshman who was going to college at night, 
complained that they had applied for posted jobs that would 
have bees promotions but they did not even get the- courtesy

3Revised Order No. 4. 4! C.F.R. §§ 60-2.1 -60-2.32 (1985), is an order 
issued by the Office of Federal Contract Compliance Programs pursu­
ant to Executive Order No. S 1,246 and sets forth the procedures and 
standards governing the formulation of affirmative action programs 
by nonconstruction federal government contractors. See  B. Schlei Sc 
P. Grossman. Em ploym ent D iscrim ination Law, 1273 n. 13 (2d ed. 
1983).

4Although 42 U.S.C. § 2000e-2(aX2) makes it “an unlawful employ­
ment practice . . .  to . . .  segregate . . .  employees or applicants for 
employment in any way which would deprive or tend to deprive any 
individual of employment opportunities or otherwise adversely affect 
his status as an employee, because of such individual’s race, color, reli­
gion. sex. or national origin." plaintiff made her complaint about the 
mail room in terms of Revised Order No. 4 and there was no evidence 
that the large number of minorities working as mail handlers violated 
42 U.S.C. § 2OOOe-2(a)(2).



10a

o f  an interview to compete for the positions. Plaintiff testified 
that Chadwell toid her that he was not going to get involved 
in. the-matter and told her to “Forget it.”" Nonetheless, plain­
tiff testified that she asked Wagner, the personnel manager, 
i f  he would do her the favor o f  talking to the two women 
and he said that he would. Plaintiff testified that Wagner met 
with the two women, but that the day after the- meeting, the 
company removed the posting and informed the applicants 
that the job was-nonexistent. Plaintiff testified that two days 
later, however, the- position was again posted with the addi­
tional requirement of a college degree. Plaintiff did not com­
plain about the manner in which Wagner handled the- matter. 
Although such complaints would qualify as protected activ­
ity, there is no evidence that the complaints were a cause of 
plaintiffs discharge. Wagner did not participate in the deci­
sion to discharge plaintiff. There- is no evidence that either 
Chadwell or Anthony knew of plaintiffs later efforts on behalf 
o f  the two women. In light of the timing of plaintiffs termina­
tion, which occurred immediately after her trip to the Shreve­
port, Louisiana plant, we- can. find no evidence that plaintiff s 
complaints that the company was passing over women and 
minorities for promotions was a cause for the termination.

Early in plaintiffs employment, Anthony asked plaintiff 
to critique the affirmative action plan for the company's 
Bridgeton, New Jersey plant to ensure that the plan complied 
with Revised Order No. 4. Plaintiff subsequently told 
Anthony that she could not do the critique because she could 
not verify the numbers without actually visiting the plant. 
Plaintiff suggested that she visit a plant and put a plan 
together from scratch so that Owens would have a model for 
other plants. .Anthony agreed and arranged a trip for plaintiff 
to the Shreveport plant, which did not have an affirmative 
anion plan because it was a new facility.

Upon her arrival at the Shreveport plant, plaintiff 
requested various information. Although plaintiff com­
plained that the plant did not give her the information that



lia

she needed, the only specific information that plaintiff testi­
fied that the plant did not give her was a salary key to enable 
her to determine the salaries o f the plant’s employees. Plain­
tiff however, acknowledged that she received a memoran­
dum: which included a  listing o f points and rate groups for 
particular jobs. Although plaintiff testified that she could not 
remember whether a salary key was attached to the memoran­
dum, both the plant personnel director, Larry Joe Stump, and 
Virginia. Phelps. Stump’s secretary, testified that they gave 
plaintiff the salary key and a. copy o f the labor agreement. 
When Stump refused to permit plaintiff to interview employ­
ees who had filed discrimination charges against the com­
pany, plaintiff called Anthony is  Toledo to seek his support. 
Anthony told plaintiff that her job did not require her to con­
tact those employees and that if  she did the employees could 
accuse the company of retaliating against them. Eventually, 
the Shreveport plant manager, Robert Falter, complained to 
Anthony that plaintiff was unreasonable, uncooperative, and 
demanding and that she acted like a compliance officer rather 
than like a person sent down there to give technical assis­
tance. Consequently, Anthony recalled plaintiff to Toledo. 
Although Anthony told plaintiff to go ahead with a meeting 
that plaintiff had scheduled with community leaders and 
Stump, plaintiff cancelled the' meeting. Anthony also 
instructed plaintiff to return to Toledo immediately so that 
she would be in the office the next day to meet 'with him 
because he would be out of town on Thursday and Friday 
of that week. Plaintiff did not return to Toledo until the fol­
lowing. day because she felt tired. Furthermore, she did not 
go to the office until Thursday when Anthony was already 
out of town. Once in the office, she sent a memo to Anthony, 
Chadwell, and J. W. Hanlon, Jr., Chadweil’s supervisor.

Although courts should liberally construe the “opposition 
clause," see Sias v. City Demonstration Agency, supra at 695, 
42 U.S.C. § 2000e-3(a) does not protect all “opposition” 
activity. In Hochstadt v. Worcester Foundation for Expert-



12a

menial Biology, 545 F.2d 222 (1st Clr. 1976), the First Circuit 
stated:

[W]e think courts have in each case to balance the 
purpose of the Act to protect persons engaging rea­
sonably in activities opposing . . .  discrimination, 
against Congress’ equally manifest desire not to tie 
the hands of employers in the objective selection 
and control o f personnel.. . .  The requirements of 
the job and the tolerable limits of conduct in a par­
ticular setting must be explored. The- present case, 
therefore, raises the question, put simply, of whether 
plaintiff went “too far” in her particular employ­
ment setting.

Id. at 2 3 1 (footnote omitted). In Rosser v. Laborers’'Interna­
tional Union, 616 F.2d 221 (5th Clr.), cert, denied, 449 U.S. 
886 (10 SO), the Fifth Circuit stated:

-  ven though opposition to an unlawful employ­
ment practice is protected, such protection is not 
absolute. There may arise instances where the 
employee’s conduct in protest o f an unlawful 
employment practice so interferes with the- perfor­
mance of his job that it readers him ineffective in 
the position for which he was employed. In such a 
case, his conduct, or form of opposition, is not cov­
ered by § 704(a).

Id. at 223 (citations omitted). See also EEOC v. Crown Zeller- 
bach Corp.. 720 F.2d 1008, 1014-16 (9th Cir. 1983). C f  
Brown v. Ralston Purina Co., 557 F.2d 570, 572 (6th Cir. 
1977) (“an EEOC complaint creates no right on the pan of 
an employee to miss work, fail to perform assigned work, or 
leave work without notice”) (“participation clause”).

An employee does not receive special protection under 
Title VII simpiv because the employes handles discrimina­
tion complaints or works on affirmative action matters. In 
Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632



13a

F 2 d  1325 (5th Cir. 1.980),. the Fifth Circuit held that 42. 
U .S.C  § 2000e-3(a) does so t prevent as employer from dis­
missing an employee who handles discrimination complaints, 
as. part o f his job when the- employee- handles those com­
plaints contrary to the instructions of the employer. The Fifth 
Circuit affirmed, as not dearly erroneous, the district court’s 
findings that appellant’s “dismissal was a culmination of 
problems growing out o f appellant’s manner o f handling his 
job, his- lack of cooperation within his office, his mismanage­
ment of his staff, his refusal to comply with the terms of his 
job description, and his refusal to follow instructions from 
his: supervisor.”" Id  at 1329. See also Sm ith v. Singer Co., 650 
F.2d 214 (9th Cir. 1981).

Its S m ith  v. Singer Co., supra, Smith, brought m  action 
against Singer Company (“Singer") alleging that Singer vio­
lated 42 U.S.C § 2000e-3(a) by terminating Ms employment 
as-director of industrial relations because he engaged in pro­
tected activities. The Ninth Circuit gave the following 
description- of Smith’s position:.

The job required appellant to develop affirmative 
action- programs; assist in. identifying problem areas; 
assist management in solving problems; design audit 
and reporting systems to measure the- effectiveness 
o f the programs; serve as a liaison between, the con­
tractor and the enforcement agencies and between 
the contractor and the minority, women’s and com­
munity action groups; and keep management 
informed of the latest developments in equal oppor­
tunity enforcement.

Id at 215. Smith asserted, that his discharge was retaliatory 
because “he encountered lack of cooperation and commit­
ment from the company is- his efforts to accomplish needed 
reforms in the affirmative action program . . .  C  Id  The dis­
trict court, however, found that Singer discharged Smith “for 
failure to perform tasks fundamental to his position” because 
Smith had filed complaints against Singer with the Contracts



14a

Compliance Division o f  the Defense Contracts Administra­
tion, Service and the Equal. Employment Opportunity Com­
mission and then denied “knowledge- o f the identity, o f the 
charging parties.7* Id. at 216. The Ninth Circuit observed that:

It was- the very purpose o f  appellant’s job- to assist 
Singer in achieving such [voluntary] compliance; the 
job was held by him not as a private attorney general, 
but as a company executive. The position- was 
unique in that it. required the occupant to act on 
behalf o f  his employer in an area, where normally 
action against the employer and ok behalf o f  the 
employees is protected, activity. '

Id. at 217. The court concluded:
By filing complaints against Singer because he dis­

agreed with- their choice o f policies, appellant placed 
himself in a position squarely adversary to his com­
pany. In so doing he wholly disabled himself from 
continuing, to represent, the company’s interests as 
its. liaison with the enforcement agencies, and from 
continuing to work with Singer executives in the- vol­
untary development o f  nondiscriminatory hiring 
programs.

Id. Since Smith had “rendered himself unable to fulfill the 
functions of his office,7*/d., the Ninth Circuit held that Singer 
neither discriminated nor retaliated against Smith in termi­
nating his employment. Accordingly, the Ninth Circuit 
affirmed the district court order dismissing Smith’s com­
plaint.

The District Court, however, distinguished Sm ith v. Singer 
Co. on the grounds that the similarity between that case and 
this case “begins and ends with the recitation of the job 
description." Joint Appendix at 66. The District Court rea­
soned:

The plaintiff in Smith  secretly filed complaints 
against his employer, and clandestinely solicited



15a

other employees to do so. He had gone to war with 
the company while his job required him to work 
with it to. effect affirmative action, to ameliorate vio­
lations of Title VII, and to act as a. liaison to the 
agencies with whom he had Sled charges. Under 
such circumstances, he dearly could not perform^ 
and in fact was not performing, the duties o f  his 
employment. In the' present case, however, the 
plaintiff was- trying conscientiously to get the defen­
dant to mend its ways, and to be conciliatory with 
employees who had filed, or were likely to file com­
plaints against it. This was the ultimate, purpose of 
plaintiff’s employment,, and far from being opposed 
to the defendant’s interests, was strongly supportive 
o f  them..

Joint Appendix at 66-6T. lit a footnote,, th e  District Court 
continued;

The Ninth Circuit, the same court that decided 
Smith, is the only court which has referred to it in 
a published opinion. In Wrighten v. M etropolitan  
Hospitals, Inc., 726 F.2d 1346 (9th. Cir. 1984), the 
court distinguished th e  Smith decision, emphasizing 
that Smith concealed his actions, and because of 
them negated his ability to do his job. Id. at 1355 
s.6. Similarly, in the cause before this Court, plain­
tiff never employed subterfuge or so aligned herself 
with interests adverse to defendant as to render her 
incapable of performing her duties.

Joint Appendix at 67 n.2.
Although in Wrighten v. M etropolitan Hospitals, Inc., 726 

F.2d 1346, 1355 n.6 (9th Cir. 1984), the Ninth Circuit ini­
tially may have limited Sm ith  v. Singer Co., supra, to the facts 
of that case, in Uni v. Aerospace Carp., 765 F2d 1440, 1446 
(9th Cir. 1985). the Ninth Circuit cited Smith v. Singer'Co. 
after stating that:



16a

An employee is not protected by Title VII when he 
violates legitimate company rules; knowingly dis­
obeys company orders, disrupts the work environ­
ment o f his employer, or willfully interferes with the 
attainment of the employer’s goals.

Id. at 1446 (citations omitted). Consequently,, we do not 
restrict Sm ith  v. Singer Co. to its unique facts.

Owens argues that plaintiffs overbearing and adversarial 
attitude disabled her from continuing to work with company 
executives in the voluntary development o f affirmative action 
programs. Although Owens hired, plaintiff to manage the 
company’s affirmative action programs sad to design and 
implement affirmative action plans that would comply with 
E xecu tive  Order No. 11,246, Owens did. not hire- plaintiff to 
handle discrimination complaints" or to establish the compa­
ny’s affirmative action policies.3 In acting like a “compliance 
officer,’*' plaintiff disabled herself from continuing to work 
with company executives in the voluntary development of 
affirmative action programs. The District Court held that 
plaintiffs “zeal to do the work she was employed to do tended 
to make [her] more rigid and unyielding in her demands than 
she- perhaps should have been.’* Joint Appendix at 58-59.

Finally, the District Court implicitly acknowledged that 
plaintiff had engaged in numerous instances o f  unsatisfactory 
behavior during her six-week employment with Owens. After 
discussing plaintiffs trip to Owens’ Shreveport, Louisiana 
plant, the District Court stated:

sPhilip Anthony, plaintiff s immediate supervisor and the company’s 
Manager. Equal Opportunity Programs Administration, recruited 
plaintiff to replace John Gregory. Anthony’s supervisor. John Chad- 
well. another black male who was the Company’s Director of Human 
Resources Administration, approved plaintiffs hiring. Owens had pre­
viously shifted Gregory, a black male, to the newly created position 
of Manager. Equal Opportunity Compliance Programs. In that posi­
tion. Gregory reported to Anthony and was responsible for handling 
employment discrimination charges and complaints.



17a

Plaintiff took longer to com e back, than she might 
have taken, and was ill when she returned. This 
interfered with her reporting ia  person to her supe­
rior. There was also a misunderstanding about a  
meeting plaintiff had scheduled with community 
leaders in Shreveport, When she was told to return 
to Toledo, she cancelled the meetings feeling that 
it would be in vain without the support of her superi­
ors. This does not appear to have been an unreason­
able action,, in view o f  the totality o f the circum­
stances. but is cited by the defendant as another 
instance: of plaintiffs insubordination aad inability 
to. perform her job.

When plaintiff returned to Toledo, she com­
pounded the wrong o f coming late by sending a writ­
ten memorandum, not only to her immediate supe­
rior, but to his superior. This, of course, is the 
unpardonable corporate sin, not going, through 
channels. It was followed by plaintiffs discharge.

Joint Appendix at 60-6 1. We hold, as a. matter of law, that 
plaintiff never proved, by a preponderance of the evidence* 
that the legitimate reasons mat Owens offered for her termi­
nation. were but a pretext for retaliation. Owens was entitled 
to decide the manner in which the company would imple­
ment its affirmative action programs. Owens was not required 
to accept plaintiffs position that her job included compliance 
work as well as writing and amending affirmative action 
plans. Consequently, we reverse the judgment for plaintiff 
on the “opposition dause”1 claim.

IL
Plaintiff argues that the District Court erroneously dis­

missed her claim for wrongful discharge under Ohio law. As 
to that claim, the District Court granted Owens’ Fed. R. Civ. 
P. 41(b) motion to dismiss plaintiffs amended complaint. 
The District Court reasoned that since the employment con-



18a

tract between plaintiff and Owens had an indefinite duration, 
under Ohio common law the agreement was terminable at 
will by either party. Accordingly, the- District Court con­
cluded that the “employment at will”' doctrine barred, recov­
ery.

Plaintiff contends that the District Conn: erred in not. rec­
ognizing a “public policy” exception to the “employment at 
will”' doctrine. Plaintiff argues that Owens terminated her 
employment because she advocated compliance with Execu­
tive Order No. 11,246, which she claims sets forth the public 
policy of the United States. Although plaintiff’s counsel men- 

- tioaed a  public policy argument while responding to Owens’ 
Fed. R. Civ. P. 41(b) motion and in dosing argument, plain­
tiff did not assert this exception in her complaint nor did the 
parties try this theory in the District. Court. Rather, plaintiff 
based her state law wrongful discharge claim on frauds mis­
representation, and breach o f contract. Consequently, we will 
not allow plaintiff to raise this “public policy” exception, for 
the first time on appeal, almost ten years after plaintiff filed 
her original complaint. See, e.g., Bender v. Southland Carp., 
749 F.2d 1205, 1215 (6th Cir. 1984); Ghandi v. Police Depart­
ment o f the City o f  Detroit. 747F .2d338, 343 (6th Cir. 1984) 
(citations omitted) (“Having presented their claims in the dis­
trict court under one theory, plaintiffs cannot save their claim 
against the FBI by proceeding under a new theory on 
appeal.”). Furthermore, in Phung v. Waste Management, Inc.. 
23 Ohio St. 3d 100, _  N.£.2d _  (1985), the Supreme Court 
of Ohio recently held that: “An at-will employee' who is dis­
charged for reporting to his employer- that it is conducting 
its business in violation of law does hot have a cause of action 

' against the employer for wrongful discharge.” Id., N.£.2d 
_  (paragraph two of the syllabus.)® Therefore, we conclude

nder Ohio practice, the syllabus of a decision of the Supreme 
Court of Ohio rather than the text of the opinion states the law of the 
case. See Cassidy r. Glossip. 12 Ohio St. 2d 17. 231 N.E.2d 64 (1967).



19a

that the District Court did not err in dismissing plaintiff s 
state law claim for wrongful discharge*

Accordingly, we reverse the District Court’s order granting 
judgment for plaintiff and remand the action, to the District 
Court with instructions to dismiss, plaintiffs complaint.



20a

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

E. Marie Holden,
Plaintiff, Case No. C 76-442
vs.

Owens Illinois, Inc., OPINION AND ORDER
[Filed July 25, 

Defendant. 1984]
YOUNG, J:

This action was originally
commenced by the plaintiff after she
received a right to sue letter from the 
Equal Employment Opportunity Commission. 
This case was tried to the court, sitting 
without a jury, upon the amended complaint 
and the answer .thereto.

The amended complaint stated two 
causes of action. The first cause of 
action was for wrongful discharge from 
employment. Jurisdiction was asserted 
upon the grounds of diversity of



21a

citizenship. The second cause of action 
is laid under Title VII of the Civil 
Rights Act. The plaintiff claims that her 

discharge was retaliatory, falling under 
Title 42 U.S.C. §2000e-3, which provides 
in part that, "it shall be an unlawful 
employment practice for an employer to 
discriminate against any of his 
employees... because he has opposed any 
practice made an unlawful employment 
practice by this sub-chapter...."

The defendant responded to 
plaintiff's first cause of action by 
asserting that her employment was for an 
indefinite term, and hence terminable by 
it at will, and that she had concealed and 
misrepresented her past employment history 
and experience when seeking employment 
with the defendant.

As to the second cause of

action, the defendant denies that i ts



22a

discharge of the plaintiff was in any way 
retaliatory, and alleges that defendant 
was in no way guilty of  any discrimination 

in employment.
This case presents the usual 

difficulty of such cases, that much of the 
evidence is the subjective reactions and 
rationalizations, conscious or 
unconscious, of the witnesses. Only one 
witness, who was called by the plaintiff, 
can be considered as disinterested, but 
his testimony did not deal with any 
completely dispositive element of the 
evidence. Under these circumstances, a 
minute, item-by-item analysis of the 
evidence in the case would not be helpful 
in resolving the factual disputes. 
Rather, these disputes must be resolved by 
deduction from all of the evidence in the 
light of its conflicts and 
inconsistencies, the appearances of the



23a

witnesses on the stand, their manner of 
testifying, their interests in the outcome 
of the -case, and all the mass of little 

nuances that enable the finder of the 
facts to uncover the factual reality which 
underlies the witnesses' testimony. This 
Opinion will serve as the Court's findings 
of fact and conclusions of law. 

Fed.R.Civ.P. 52(a).1

1 At the close of plaintiff's case in 
chief, the defendant, pursuant to 
Fed.R.Civ.P. 41(b), moved for dismissal of 
plaintiff's amended complaint. The court 
reserved ruling on the motion, which 
thereafter was renewed at the close of all 
the evidence. The Court again reserved 
its ruling. Since the case was heard and 
submitted on ail the evidence, as a 
practical matter the Court's disposition 
of the motion as such largely is 
irrelevant. Appellate review of this 
Court’s ruling on the motion will 
encompass all of the evidence submitted in 
this cause. See A & N Club v. Great 
American Insurance Co., 404 F .2d 100, 103 
(6th Cir. 1968). In any event, for the 
reasons set forth in this Opinion and 
Order, defendant's motion, as it relates 
to the first cause of action, is 
sustained, and is overruled as it relates 
to the second cause of action.



2 4a

The actual trial of the case 
commenced on September 28, 1981, and 
required three and one-half days. The 

trial was interrupted by the trial of two 
other civil rights cases, and hence was 
not concluded until October 20, 1981.

In the summer of 1975, the 
plaintiff was employed by the defendant as 
Manager, Equal Opportunity Affirmative 
Action Programs, commencing October 1, 
1975, at an annual salary of Twenty 
Thousand Five Hundred Dollars ($20,500.00) 
payable at a monthly rate of Seventeen 
Hundred Mine Dollars ($1,709.00).

The employment agreement was 
entered into without the defendant making 
any effort to check on plaintiff's recited 
qualifications or her past employment 
history. The defendant argues vehemently 
that the plaintiff omitted from her resume 
a prior employment from which she had been



25a

discharged after a considerable conflict 

with her employers. From this defendant 
claims that it is properly able to 

discharge the plaintiff at any time at 

all.

There are two major flaws in 

this argument. The first is that as 

previously mentioned, the defendant hired 

the plaintiff without making any serious 

attempt to explore her past employment 

history. The second is that the 

difficulties involved in the allegedly 

concealed employment had little, if 

anything, to do with the plaintiff's 

qualifications for the position in which 
the defendant employed her. The Court has 

no doubt that the defendant would have 

employed the plaintiff exactly as it did 

if it had been aware of the plaintiff's 
loss of the particular previous

employment.



26a

At the time the defendant was 
seeking to fill its position, black 
females qualified for executive or 

professional positions were in extremely 

short supply. Bidding for their services 
was highly competitive, because of the 
pressing necessity of avoiding charges of 
employment discrimination. Of course such 
unpleasant realities were not, and for 
that matter still are not, so bluntly 
stated as they are stated here, but they 
are part of the background of the anti- 
discrimination statutes that have been 
enacted, and must be taken into 
consideration in resolving litigation 
based on these statutes.

The record is completely clear 
that the plaintiff was well-qualified, by 
study and experience, for the position she 
was employed to fill. The only negative 
thing about her was that her zeal to do



27a

the work she was employed to do tended to 
make her more rigid and unyielding in her 
demands than she perhaps should have been.

On the other hand, the record is even

clearer that the defendant was not

prepared to have someone come in and

really do the job that needed to be done. 
It wanted someone to serve as a 
figurehead, but who wouldn't really report 

anybody or anything,
Although the defendant's table 

of organization shows plaintiff's position 
to be a relatively high-level one, and the 
defendant had employed her a considerable 
time before she actually reported to duty, 
no real arrangements had been made for her 
to have an office, or even a desk, proper 
clerical support, and access to the 
records and information she needed to do 

her job.
Of course, the defendant



28a

attempted to explain this away by showing 
how enormously complex its organization 
is, and the physical and logistical 

problems that arise when new high level 
positions are created. Human beings are 
exceedingly ingenious in creating 
euphemisms and explanations why obviously 
discriminatory actions realiy aren't 
discriminatory at all. An impartial and 
disinterested fact-finder has no real 
difficulty in penetrating such smoke 
screens.

Shortly after she had arrived, 
the plaintiff was sent to a new plant of 
the defendant in Shreveport, Louisiana, to 
set up an affirmative action program. The 
plant had no such program at all, although 
it was supposed to have, and was fighting 
a number of discrimination charges. The 
plant manager there was blatantly 
discriminatory in his treatment of the



29a

plaintiff. She was not given any proper 
place to work. Her attempt to get 
information she needed to design plans was 

withheld. She was not permitted to 
interview specific employees. Although 
the plant manager always addressed his 
white female secretary formally by her 
last name, he addressed the plaintiff by 
her first name. Such condescension is a 
clear sign of contemptuous and 
discriminatory attitude. He did not keep 
appointments with plaintiff, and let her 
cool her heels in his waiting room for 
long periods of time when she wanted to 
talk to him. There was some evidence that 
other visitors from company headquarters 
were given "red carpet" treatment when 
they came to Shreveport. The plaintiff 
certainly got no such treatment.

The plaintiff tried in vain to get 
support by calling her superiors at



30a

headquarters. Ultimately she was told to 
come back to Toledo. Plaintiff took 
longer to come back than she might have 

taken, and was ill when she returned. 
This interfered with her reporting in 
person to her superior. There was also a 
misunderstanding about a meeting plaintiff 
had scheduled with community leaders in 
Shreveport. When she was told to return 
to Toledo, she cancelled the meeting, 
feeling that it would be in vain without 
the support of her superiors. This does 
not appear to have been an unreasonable 
action, in view of the totality of the 
circumstances, but is cited by the 
defendant as another instance of 
plaintiff's insubordination and inability 
to perform her job.

When plaintiff returned to 
Toledo, she compounded the wrong of coming 
late by sending a written memorandum, not



31a

only to her immediate superior, but to his 
superior. This, of course, is the 
unpardonable corporate sin, not going 

through channels. It was followed by the 
plaintiff’s discharge.

The matters discussed 
immediately above are not the entirety of 
plaintiff's activities in defendant's 
employ and the problems related thereto 
that were brought out in the evidence, but 
it would serve no useful purpose to go 
into further detail cencerning the 
evidence and the facts.

There is no doubt in the
Court' s mind that at the time the

defendant employed the plaintiff, its
employment practices were in many respects 
discriminatory, especially as to race, but 
also as to gender. It had been following 
the common practice of window-dressing by 
token employment of minority individuals,



32a

rather than seriously trying to change its 
methods and to remedy the results of its 
past discriminatory actions. When the 

plaintiff, perhaps with more zeal than 
good judgement, moved aggressively to try 
to get action, she was summarily
discharged. To a considerable extent this 
last finding supports the plaintiff's 
claim that the defendant induced her to 
enter its employ by fraudulent 
representation that it was dedicated to 
the concept of equal opportunity in 
employment, when it really was not. 
However, the problem of fraud is not a 
simple one. It is difficult to find that 
self-deception constitutes actual fraud 
when it also deceives others, as it tends 
to negative the willfullness which is an 
essential element of fraud.

Coming now to consider the legal 
aspects of the problems presented, as to



33a

the plaintiff’s first cause of action, the 
Court concludes that the employment 
contract between parties was of indefinite 

duration, and hence under common law of 
Ohio was terminable by either party at 
will. See Henkel v. Educational Research 
Council of America, 45 Ohio St. 2d 249, 
344 N.E. 2d 118 (1976); Hendrick v. Center 
for Comprehensive Alcohol Treatment, 7 
Ohio App. 3d 211, 454 N.E. 2d 1343 (1982)
(per curiam); Peterson v. Scott 
Construction Co., 5 Ohio App. 3d 203, 451 
N.E. 2d 1236 (1982) (per curiam). Accord, 
Smith v. Teledyne Industries, Inc., 578 
P .Supp. 353 (E.D. Mich. 1984) (construing 
Ohio law); Weaver v. Shopsmith, Inc., 556 
F.Supp. 348 (S.D. Ohio 1982) (same); Dadas 
v. Prescott, Ball & Turben, 529 F .Supp. 
203 (N.D. Ohio 1981) (same). Moreover, 
Ohio law seems to hold that fraud in the
inducement, or other malicious action,



34a

cannot alter the right to terminate at 
will a contract for an indefinite term. 
See Fawcett v. G.L. Murphy & Go., 46 Ohio 

St. 2d 245, 348 N.E. 2d 144 (1976). 

Accord, Smith, 578 F.Supp. at 356 
(construing Ohio law); Dadas, 529 F.Supp. 
at 206 (same). But cf. Merkel v. Scovill, 
Inc., 570 F.Supp. 133 (S.D. Ohio 1983) 
(court, construing Ohio law, held that 
terminable at will doctrine not applicable 
when discharge based on refusal to commit 
perjury).

For the foregoing reasons, the 
plaintiff cannot recover against the 
defendant upon her first cause of action. 
It had the right under the applicable law 
of Ohio to discharge her at any time, and 
for any reason, or no reason.

Upon the plaintiff's secoild 
claim, that of retaliatory discharge 
forbidden by 42 U.S.C. §2000e-3, the Court

*



35a

concludes that the plaintiff was in fact 
discharged because she was strenuously 
seeking to bring the defendant into full 

compliance with its duty not to 
discriminate in employment.

Title VII provides in part:
It shall be an unlawful 
employment practice for an 
employer to discriminate against 
any of his employees... because 
he has opposed any practice made 
an unlawful employment practice 
by this subchapter, or because 
he has made a charge, testified, 
assisted, or participated in any 
manner in an investigation, 
proceeding or hearing under this 
subchapter.

42 U.S.C. §2000e-3(a). This statutory 
provsion "is to be broadly interpreted and 
applied by the courts so as to zealously 
protect the rights of employees under 
Title VII." Held v. Missouri Pacific 
Railroad Co., 373 F.Supp. 996, 1004 (S.D. 
Tex. 1974). Accord, Jeffries v. Harris
County Community Action Association, 425



36a

F.Supp. 1208, 1216 (S.D. Tex. 1977), aff'd 
in part, rev'd in part on other grounds, 
615 F.2d 1025 (5th Cir. 1980); E.E.O.C. v. 

Kallir, Philips, Ross, Inc., 401 F.Supp. 

66, 72 (S.D. N.Y. 1975) .

To prevail on a Title VII 
retaliation claim, a plaintiff first must 

show "that she engaged in a protected 

activity, that she was thereafter 

subjected to adverse employment action by 

her employer, and there was a causal link 

between the two." Wrighten v. 

Metropolitan Hospitals, Inc,, 726 F .2d 

1346, 1354 (9th Cir. 1984) (citing Cohen 
v. Fred Mayer, Inc., 686 F.2d 793, 796 

(9th Cir. 1982)); McMillan v. Rust 
College, Inc., 710 F.2d 1112, 1116 (5th 

Cir. 1983); Canino v. United States 

E.E.O.C., 707 F.2d 468, 471 (11th Cir. 

1983). See also Brown v. ASP Computing

Center, 519 F.Supp. 1096, 1114-1115 (S.D.



37a

Ohio 1981) (prima facie case of 
retaliation made out by showing protected 
activity, employer's knowledge thereof, 

adverse employment action, and retaliatory 
motive on part of employer) (citing Sutton 
v. National Distillers Products Co., 445 
F.Supp. 1319, 1325-1326 (S.D. Ohio 1978), 
aff'd 628 F.2d 936 (6th Cir. 1980)). The 
burden then shifts to the defendant to 
articulate a legitimate, nonretaliatory 

justification for the action. Wriqhten, 
726 F .2d at 1354. Once the defendant has 
met this burden of production, the 
plaintiff then must be given the 
opportunity to establish that 
discriminatory intent motivated the 
defendant's employment decision. Id. See 
Texas Department of Community Affairs v, 
Burdine, 450 U.S. 248, 256 (1981). Since 
the Court has heard all the evidence, it
now will address the ultimate factual



38a

issue, rather than engaging in the 
foregoing three-tiered evidentiary 
analysis. See United States Postal 

Service Board of Governors v. Aikens,

___U.S.___, ___ , 103 S.Ct. 1478, 1482
(1983); Talley v. United States Postal 
Service, 720 F .2d 505 (8th Cir. 1983); 
Jones v. International Paper Co., 720 F .2d 
496 (8th Cir. 1983); Sherman v. Lee's 
Summit, Missouri, 577 F.Supp. 568 (D. Mo. 
1983) .

In a Title VII retaliation case, 
the question to be answered is whether or 
not the plaintiff has demonstrated by a 
preponderance of the evidence "that 
engaging in protected activity under 
§2000e-3 was one of the reasons for the 
termination, and that but for such 
activity a plaintiff would not have been 
fired." Wriqhten, 726 F.2d at 1354
(citing Kauffman v. Sidereal Corp., 695



39a

F.2d 343, 345 (9th Cir. 1982)). But of. 
Cohen, 686 F.2d at 798 (§2000e~3 plaintiff 
required to show that defendant acted, at 
least in part, with a retaliatory motive 
or intent). Plaintiff clearly has met her 
burden of persuasion in the cause sub 
.judice.

As noted above, plaintiff was 
discharged because she vigorously opposed 
what she perceived to be violations of 
Title VII. There is no doubt that her 
perceptions were based in fact. This 
Court has little difficulty concluding 
that her conduct was protected conduct 
within the meaning of Title VII, and has 
even less difficulty concluding that but 
for her willingness and attempts to do her 
job effectively she would not have been 

discharged.
Smith v. Singer, 650 F .2d 214 

(9th Cir. 1981), relied upon by defendant,



40a

does not compel a contrary conclusion. In
that case, the plaintiff was employed to
oversee the defendant's equal opportunity

programs. As part of his duties, the

plaintiff was required:
to develop affirmative action 
programs; assist in identifying 
problem areas, assist management 
in solving problems; design 
audit and reporting systems to 
measure the effectiveness of the 
programs; serve as liaison 
between the contractor and 
minority, women's and community 
action groups; and keep 
management informed of the 
latest developments in equal 
opportunity enforcement.

Id. at 215. The similarity of Smith to
the cause sub judice, however, begins and
ends with the recitation of the job
description.

The plaintiff in Smith secretly 
filed complaints against his employer, and 
clandestinely solicited other employees to 
do so. He had gone to war with the 
company while his job required him to work



41a

with it to effect affirmative action, to 
ameliorate violations of Title VII, and to 
act as liaison to the agencies with whom 

he had filed charges. Under such
circumstances, he clearly could not 
perform, and in fact was not performing, 
the duties of his employment. In the 
present case, however, the plaintiff was 
trying conscientiously' to get the 
defendant to mend its ways, and to toe 
conciliatory with employees who had filed 
or were likely to file complaints against 
it. This was the ultimate purpose of 
plaintiff's employment , and far from 
being opposed to defendant's interests, 
was strongly supportive of them. True, 
the plaintiff did herself file an EEOC 
complaint against the defendant a day or 
so before her employment was terminated, 
but at the time she did so, for all 
practical purposes she had been deprived



42a

by the defendant of any capability of 
advancing -its real interests, and her 
ultimate discharge was obviously only a 

matter of time, regardless of her filing 
the complaint.2

The violation of the statute is 
too clear to permit any conclusion other 
than the plaintiff is entitled to recover.

A successful Title VII plaintiff 
generally is entitled to reinstatement and 
an award of back pay. The statute, 
however, does not countenance the award of 
legal damages, such as compensatory or

2 The Ninth Circuit, the same court 
that decided Smith, is the only court 
which has referred to it in a published 
opinion. In Wrighten v. Metropolitan 
Hospitals, Inc., 726 F . 2d 134'6 (9th Cir. 
1984), the court distinguished the Smith 
decision, emphasizing that Smith concealed 
his actions, and because of them negated 
his ability to do his job. Id. at 1355 
n .6. Similarly, in the cause before this 
Court, plaintiff never employed subterfuge 
or so aligned herself with interests 
adverse to defendant as to render her 
incapable of performing her duties.



43a

punitive damages. See Harrington v . 
Vandalia-Butler Board of Education, 585 
F.2d 192 (6th Cir. 1978), cert, denied, 

441 U.S . 932 (1979); Adler v, John Carroll 

University, 543 F .Supp. 586 (W.D. Ky.
1982) .

The law in Title VII employment 
discrimination cases now is fairly settled 
in this circuit, at least with respect to 
the issue of back pay. A back pay award 
should put the discriminatee in the same 
position he would have been but for the 
unlawful discrimination and, absent 
exceptional circumstances, always should 
be awarded if a Title VII violation is 
found. Rasimus v. Michigan Department of 
Mental Health, 714 F.2d 614 (6th Cir.
1983) , cert. denied, 52 U.S.L.W. 3776 
(U.S. April 24, 1984). A successful Title 
VII plaintiff is entitled to receive his 
salary, including raises, he would have



44a

received absent the discrimination. 

Rasimus, 714 F .2d at 626. Further, sick 
leave, vacation pay, pension and other
fringe benefits which would have been
received by the plaintiff were it not for 
discrimination also should be included in 

the back pay award. Id. Income and
social security taxes which would have
been deducted from the wages the plaintiff 
would have received absent discrimination 
should not serve to reduce any back pay 
award. Id. at 627. Unemployment
compensation similarly should not be 
deducted. Id. Mathematical precision in 
computing the award is unnecessary, and 
doubts about the amount a successful 

plaintiff would have received had there 
been no discrimination should be resolved 
against the discriminator. Id. at 628.

While it is true that back pay 
awards are the rule, not the exception,



45a

once there has been a finding of
discrimination, the twin purposes of Title
VII should never be lost on the Court. In

the words of the Supreme Court,
[G]iven a finding of unlawful 
discrimination, back pay should 
be denied only for reasons 
which, if applied generally, 
would not frustrate the central 
statutory purpose of eradicating 
discrimination throughout the 
economy and making persons whole 
for injuries suffered for past 
discriminations.

Rasimus, 714 F.2d at 626 (quoting
Albemarle Paper Co. v. Moody, 422 U .S . 
405, 421 (1975)). See also Ford Motor Co. 
v. EEOC, 458 U.S. 219, 102 S .Ct. 3057
(1982} .

Further, Title VII claimants are 
required to mitigate their damages by the 
express language of §706(g), which pro­
vides in pertinent part:

"[iInterim earnings or amounts 
earnable with reasonable diligence 
by the person... discriminated



46a

against shall operate to reduce the 
back pay otherwise allowable."

42 U.S.C. §20Q0e-5(g). This duty to minimize

damages is "rooted in an ancient principle of
law," Ford, 458 U.S. at___, 102 S.Ct. at
3065; Rasimus, 714 F .2d at 623, and operates
to reduce otherwise proper back pay awards if
the successful Title VII plaintiff does not
exercise reasonable diligence to find other
employment or deliberately incurs economic
losses. See Ford, 102 S.Ct. at 3065; Phelps
Dodge Corp. v. MhRB, 313 U.S. 177 (1941).
While efforts to seek suitable employment
need not be successful to satisfy the
statutory and common law duty to mitigate
damages, the efforts must be reasonable when
"evaluated in light of the individual
characteristics of the claimant and the job
market." Rasimus, 714 F .2d at 695. It is
incumbent upon Title VII defendants to show
that a successful plaintiff has failed to



47a

exercise this duty to Hake reasonable 
attempts to mitigate damages. Id.

The Sixth Circuit recently 

expounded on the defendant's burden to 

demonstrate a plaintiff's lack of diligence. 

In Rasimus, the Court of Appeals stated that 

a defendant discharges its burden only if it 

establishes the availability of substantially 

equivalent positions,3 and the plaintiff's 

failure to use reasonable care and diligence 

in seeking these positions. Rasimus, 714

F.2d at 624. See EEOC v. Sandia Corp., 639 

F.2d 600 (10th Cir. 1980); Sias v. City

Demonstration Agency, 588 F .2d 692 (9th Cir. 

1978).
The Court finds that defendant has 

failed to carry its burden. The evidence

3 A substantially equivalent job is 
defined by the Sixth Circuit as one which 
provides the plaintiff with virtually the 
same promotional opportunities, compensation, 
responsibilities, conditions, and status. 
Rasimus, 714 F .2d at 624.



48a

clearly shows that plaintiff exercised 
reasonable care and diligence to find 
substantially equivalent employment, even 

though her efforts were unsuccessful. 

Promptly after being fired, the plaintiff 

mailed to a multiple of firms, institutions, 

and governmental agencies letters and her 

resume with an eye toward obtaining a 

position comparable to the she had with 

defendant. Although she did succeed in 

obtaining several interviews, none resulted 

in an offer of employment. The Court finds, 

after considering the nature of the job 

market from whence she came, as well as 

plaintiff herself, that her efforts to find 

substantially equivalent employment in fact 

were sincere and active.4 Plaintiff,

4 Defendant makes much of the fact that 
plaintiff did not affirmatively seek 
employment with Supermarkets General 
Corporation, the New Jersey firm she left to 
join the defendant. Defendant failed to 
show, however, that this firm had a vacant



49a

position substantially equivalent to the one 
from which she was fired. It also is clear 
that this firm did not offer her employment. 
Defendant, quite simply, has failed to show 
what Rasimus requires it to show before the 
Court can find that plaintiff failed to 
discharge her duty to mitigate damages. 
Moreover, the Court finds, considering all 
the circumstances, especially her efforts t o  
find employment with potential employers 
other than Supermarkets, that it was entirely 
reasonable for plaintiff not to seek actively 
a job with employer she left less that two 
(2) months before she was fired by the 
defendant.

Defendant's only other serious attempt 
to show that plaintiff failed to mitigate her 
damages concerns deposition testimony of one 
Benjamin Collier, who at the time germane to 
this cause was employed as the Director of 
the Office of Contract Compliance in the 
Department of Defense. It was his 
responsibility to supervise about sixty (60) 
Equal Employment Opportunity Specialists who 
reviewed government contractor compliance 
with executive orders addressing equal 
employment opportunity and affirmative 
action. The defendant argues that plaintiff 
failed to mitigate her damages by not 
accepting a job offer from him. Defendant's 
argument, however, is flawed in at least two 
respects.

First of all, Mr. Collier did not offer 
the plaintiff a job at all. He testified 
that "I didn't offer her a specific job. I 
tried to get her to say that she would come 
to work for us, and that would mean going 
through the application process, etc."



50a

therefore, is entitled to an award of back 

pay from November 11, 1975, the date on which 
she was, the entry of final judgment. The 

parties shall attempt to agree on the amount 

to be awarded, employing the standards 

enunciated by the Sixth Circuit in Rasimus.
With respect to reinstatement, it 

seems clear that once a finding of 

retaliation has been made, reinstatement 

should be granted as a matter of course. Cf. 

George v. Farmers Electric Cooperative, Inc., 

715 F.2d 175, 178 (5th Cir. 1983) (after

(Collier deposition at p .33). It is clear, 
therefore, that the most Mr. Collier did 
regarding plaintiff’s possible employment 
with the Department of Defense was attempt to 
persuade her to go through the proper the 
channels to secure government employment. 
This is all Mr. Collier could do, given the 
fact that an Equal Opportunity Specialist was 
a civil service position which he could not 
fill by simply hiring someone off the street. 
Secondly, the Court credits plaintiff's 
testimony that she in fact did take the 
appropriate steps to obtain this civi1 
service position, but these efforts bore no 
fruit.



51a

finding of discrimination, "reinstatement 
should be granted in all but unusual cases"). 
Although plaintiff has not specifically 
prayed for reinstatement, this Court 
nonetheless may "award appropriate relief 
dictated by the evidence, even though it may 
not have been sought in the pleadings." 
Fitzgerald v. Sirloin Stockade, Inc., 624 
F.2d 945, 957 (10th Cir. 1980) (citing 
Fed.R.Civ.P. 54(c)). The plaintiff, there­
fore, is entitled to be reinstated to her 
former position with defendant.

Since plaintiff is the prevailing 
party in one phase of this action, she is 
entitled to an award of reasonable attorney's 
fees and costs. See 42 U.S.C. §2OQ0(e)- 
5(k). The parties shall attempt to settle 
the attorney's fees question without the 
necessity of judicial intervention. If the 
parties cannot agree to an amount for the 
fees and costs, upon plaintiff's application



52a

the court will set the matter for a hearing 
or a briefing schedule. The parties should 
be mindful of the recent judicial discussion 

concerning the relationship between extent of 
success in the litigation and the amount of 
the fees awarded. See, e .q ., Hensley v
Eckerhart, __U.S.___, 103 S.Ct. 1933 (1983);
Kentucky Association for Retarded Citizens, 
Inc, v. Conn, 718 F.2d 182 (6th Cir. 1983); 

Sisco v. J.S. Alberici Construction Co., 564 
F.Supp. 765 (E.D. Mo. 1983).

To conclude, counsel for plaintiff 
and defendant shall attempt to agree on an 
amount to be awarded as back pay. If, within 
thirty (30) days from the filing of this 

Opinion and Order no agreement can be 
reached, counsel for plaintiff shall, in 
writing, advise the Court, which will proceed 
accordingly. The parties also shall attempt 
to agree on an amount to be awarded for 
reasonable attorney's fees and costs. Once



53a

again, if the parties are unable to agree on 
this amount, counsel for plaintiff shall 
advise the Court which, upon motion, will 

make arrangements to determine the matter. 
Finally, notwithstanding any lack of 
agreement on the attorney's fees and costs 
question, counsel for plaintiff shall,
persuant to Local Civil Rule 5.02, prepare 
and submit a draft of an order of judgment 
expressive of the court's findings and
conclusions in this Opinion and Order. The 
time within which to prepare and serve this 
draft is enlarged to forty-five (45) days to 
enable the parties to reach agreement on the 

back pay award.
IT IS SO ORDERED.

/s /
Sr. United States District Judge

Toledo, Ohio.



54a

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

E. Marie Holden,
Plaintiff,

Case No. C 76-442

vs.
Owens-Illinois, Inc., MEMORANDUM AND

ORDER
Defendant. [Filed March 29,

1985]

YOUNG, J:

This is an action in which the 
plaintiff claimed that she wrongfully was 
discharged from her employment by 
defendant Owens-Illinois, Inc., and that 
her discharge was retaliatory in violation 
of Title VII of the Civil Rights Act of 
1964. Following a trial before the Court, 
sitting without a jury, this Court found 
in favor of the plaintiff on her second 

See Holden v. Owens-Illinois,claim.



55a

Inc., No. C76—442 (N.D. Ohio July 25,
1984) (Opinion and Order). Concluding 
that the plaintiff was in fact the victim 

of a retaliatory discharge forbidden by 42 
U.s.c. §2000d-3, the Court directed 
counsel for both parties to attempt to 
reach an agreement as to the amount to be 
awarded as back pay and as to the amount 
to be awarded for reasonable attorney's 
fees and costs. Id. Although the parties 
were able to agree upon several items, 
certain issues remained unresolved.1 See 
Holden v. Owens-Illinois, Inc., 076-442 
(N.D. Ohio Dec. 12, 1984) (Stipulation of
the Parties).

On December 12, 1984, a hearing was

1 The Court appreciates the level of 
cooperation exhibited by both parties in 
their attempt to comply with this Court's 
Opinion and Order. Those issues upon 
which the parties were unable to agree are 
complex and the Court commends both 
counsel for their professionalism.



56a

held before this Court on those Issues of 
damages upon which the parties were unable 
to come to a complete agreement. 

Basically, three issues remain to be 

resolved: (1) whether the statutory or 
market rate of interest is to be used in 
computing the plaintiff’s back pay award; 
(2) whether or not plaintiff's increased 
tax liability should be considered as a 
component of her back pay award; and (3) 
the appropriate treatment for the 
plaintiff's lost pension monies.

As to the first issue, that is, which 
interest rate is to be applied to the back 
pay award, the plaintiff asserts that had 
she not been discriminated against she 
would have utilized investment 
opportunities which would have yielded a 
higher interest rate than the statutory 
rate. Plaintiff submits, therefore, that 
it is necessary to apply the market



57a

interest rate in order that she be placed 
in the position she would have occupied 
absent discrimination. Defendant has 

offered no arguments to indicate its 
preference as to which interest rate 
should be selected.

Generally, the issue of prejudgment 
interest in back pay awards is a matter 
within the discretion of the trial court. 
EEOC v. Wooster Brush Co. Employees Relief 
Ass'n, 727 F.2d 566, 579 (6th Cir. 1984); 
Bricklayers Pension Fund v. Taiariol, 671 
F.2d 988 (6th Cir. 1982). In the Sixth 
Circuit, the calculation of the proper 
rate of interest is also a matter for the 
discretion of the trial judge. See 
Wooster Brush Co., 727 F.2d at 579. 
Absent an abuse of discretion, an award of 
prejudgment interest should stand. Id. 
It is not uncommon for courts to award
prejudgment interest at rates above the



58a

statutory rate. Several courts, for
example, recently have fashioned interest 
awards which are tied to the prime rate. 

See id.; EEOC v. Pacific Press Publishing 
Ass 1n . 482 F .Supp. 1291 { N . D . Cal. 1979);
Richardson____v_.____Restaurant Marketing
Associates, 527 F .Supp. 690 (N .D . Cal.
1981) .

Based upon the foregoing
considerations, the Court finds that 
plaintiff is entitled to and should 
receive the previously ordered back pay 
award with prejudgment interest calculated 
at the market rate. As counsel for both 
parties have agreed as to the amount of 
interest to be awarded if the market rate 
is selected, the Court finds that the sum 
of $20,251.00 accurately reflects the 
accrued interest on the plaintiff's net 
pay.

The second issue before the Court is



59a

whether or not the plaintiff's increased 
tax liability should be considered as a 
component of the claimant's back pay 

award. Plaintiff submits that as a result 
of the defendant's discriminatory actions 
she will receive in one year a lump sum of 
$282,909.00 representing her gross pay 
plus interest on her net pay at the market 
interest rate. The plaintiff maintains 
that this lump sum figure, which 
represents nearly nine (9) years of wages, 
will be taxed at a much higher rate than 
if she had received her wages on an annual 
basis. Plaintiff further contends that, 
in order to be made whole, she is entitled 
to a back pay award which compensates her 
for this increased tax liability.

Defendant, on the other hand, argues 
that the Court should not consider the tax 
implications and should merely award the 
plaintiff her gross back pay plus



60a

interest. The defendant maintains that 
the plaintiff may reduce any increased tax 
liability by taking advantage of the 

income averaging provisions contained in 
the tax code. See I.R.C. §1301. The 
plaintiff concedes that the use of income 
averaging is an appropriate method of 
dealing with her increased tax liability, 
but merely questions its availability to 
her at the time in which she actually 
receives the back pay award. Plaintiff 
maintains that she should not be placed in 
a position which would force her to bear a 
financial burden which she would not have 
been liable for absent discrimination.

The purpose of Title VII is to make 
victims of unlawful discrimination whole. 
To that end, Congress has given the courts 
wide discretion in fashioning remedies 
designed to restore injured persons to the 
position they would have occupied but for



61a

discrimination. Ford Motor Co. v. EEOC, 
458 U.S. 219, 230 (1982); International
Bhd. of Teamsters v. United States, 431 

U.S. 324, 364 (1977); Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 422 (1975). It
appears, however, both from the authority 
the parties have provided the Court and 
from the Court’s own research, that the 
instant back pay issue is one that has not 
yet been addressed by the Court of Appeals 
for the Sixth Circuit. The Tenth Circuit 
Court of Appeals, however, recently has 
considered virtually identical arguments 
to those presently before this Court. 
While rulings of other circuits are not 
binding as precedents, the Court finds the 
reasoning utilized helpful to resolution 
of the instant matter.

The Tenth Circuit in Sears v. 
Atchison, Topeka & Santa Fe Ry., Nos. 82-
2549 & 83-1726 (10th Cir. Dec. 10, 1984),



62a

held that the trial court did not abuse 
its discretion by including a tax 
component in its back pay award. In 

Sears, the Court stated that a tax 
component may not be appropriate in an 
ordinary Title VII case, but that Sears 

presented an unusual situation due to the 
fact that class members in Sears were to 
receive seventeen (IT) years of back pay 
in a lump sum payment. Living members of 
the class most likely would have been 
thrust into the highest tax bracket. In 
upholding the trial court, the Court 
pointed to two reasons why income 
averaging was an inadequate remedy in that 
case. First, income averaging is 
available for only the three years 
preceding the computation year. Second, 
income averaging is not available to 
estates of deceased taxpayers and nearly 
4035 of the class members in Sears had



63a

died. Due to the special circumstances in 
the Sears case, the Tenth Circuit found 
that the trial court did not abuse its 
discretion by including a tax component it 
its back pay award.

In contrast to Sears, an earlier 
decision by the Tenth Circuit, Blim v. 
Western Elect. Co., 731 F.2d 1473 (10th 
Cir. 1980), cert. denied. 105 S.Ct. 233
(1984), held that the trial court had 
erred in awarding damages to the 
plaintiffs for increased tax liability 
resulting from the receipt of the back pay 
award in a lump sum payment. The Blim 
court declared that any significant tax 
penalty would be eliminated through the 
use of income averaging. Id. at 1480. 
Therefore, the trial court's award 
compensating the claimant for increased 
tax liability was held inappropriate.

Based upon the foregoing



64a

considerations, the Court is persuaded by 
the reasoning in Blim. The special 
factors present in Sears do not appear to 
be present here. The Court therefore 
finds that plaintiff may eliminate any 
significant tax penalty resulting from the 
receipt of her back pay in a lump sum 
payment through the use of the income 
averaging provisions contained within the 
tax laws. See I.R.C. §§1301-05. Although 
the Court understands the plaintiff's 
concerns regarding the availability of 
income averaging in the year she actually 
receives her back pay award, the Court is 
not able to predict the future and must 
base its ruling on what the law is at this 
time.

The third issue to be resolved by 
this Court is the appropriate treatment 
for lost pension monies. It is stipulated



65a

that had the plaintiff continued working 
for the defendant, her right to pension 
benefits would not have vested until 

September, 1985, when she would have 
completed ten (10) years of service to the 
defendant. The defendant submits that the 
plaintiff is entitled to receive pension 
credits since her original hire date, but 
maintains that monetary damages are 
inappropriate because the plaintiff's 
right to a pension has not vested. The 
defendant further claims that to award the 
plaintiff monetary damages would put her 
in a better position than she would have 
occupied absent discrimination. Plaintiff 
argues that she is entitled to receive the 
value of the pension as damages. Relying 
principally on the case of Johnson v. 
Ryder Truck Lines. 30 Fair Empl. Prac. 
Gas. (BNA) 659 (W.D.N.C. Aug. 8, 1980),
plaintiff asserts that the value of the



66a

pension is ascertainable and that the 
proper method of assessing damages is the 
cost to the employer method.

As previously stated, back pay awards 
under Title VII are intended to make the 
injured party whole by placing the 
claimant in the position he would have 
occupied but for discrimination. 
Albemarle Paper Co., 422 U.S. at 419. In 
addition to wages, items such as salary 
increases, vacation pay, and pension 
benefits which the claimant would have 
received had there been no discrimination 
should also be included. Rasimus v. 
Michigan Dept, of Mental Health, 714 F .2d 
614, 626 (-6 th Cir. 1983), cert. denied, 
104 S.Ct. 712 (1984)■ It is the finding 
of this Court that the plaintiff is 
entitled to receive pension credit since 
her original hire date, but that she is
not entitled to be awarded the dollar



67a

value of the pension. Under the 
defendant’s pension benefits plan, an 
employee who leaves the service of the 

defendant prior to the tenth anniversary 
of his employment has no vested right to 
pension benefits and is not entitled to 
receive the value of the pension. To

I
award the plaintiff monetary damages in 
lieu of pension benefits would place the 
claimant in a better position than she 
would have been in had she remained in the 
employ of the defendant and would make the 
injured party more than whole. Although 
courts are given wide discretion in 
fashioning relief for victims of Title VII 
discrimination, Ford Motor Co., 458 U.S. 
at 230; International Bhd of Teamsters, 
431 U.S. at 364, they must not make 
plaintiffs more than whole by compensating 
them for injuries which they did not

suffer.



68a

Counsel for both parties agree that 
health benefits are to be based upon the 
cost to the employer. Holden v. Owens- 

Illinois, Inc., C76-442 (N.D. Ohio Dec.
12, 1984) (Stipulation of the Parties).
The parties have requested that the Court
decide whether the per participant or the

%
per employee basis is to be used in 
calculating the value of the plaintiff's 
lost health benefits. The Court finds 
that the per employee basis is the proper 
basis to use. Therefore, the Court finds 
that plaintiff is to be awarded $14,194.00 

as health benefits.

THEREFORE, for the above stated 
reasons, good cause therefor appearing, it 

is
ORDERED that plaintiff shall have 

judgment against defendant Owens-Illinois, 
Inc. in the amount of $355,721.00 grossing



69a

net pay with income averaging and market 
rate interest; and it is

FURTHER ORDERED that plaintiff shall 

be awarded pension credit since her 
original hire date; and it is

FURTHER ORDERED that plaintiff shall 
have judgment against defendant Owens- 
Illinois, Inc. in the amount of $14,194.00 
as health benefits; and it is

FURTHER ORDERED the plaintiff shall, 
within twenty (20) days of the filing of 
this Memorandum and Order, serve on the 
defendant and file with the Court a 
proposed draft of final judgment embodying 
the Court's disposition of this cause. 
Plaintiff shall include in that draft the 
amount of back pay to which she is 
entitled and defendant is liable, as 
outlined in the Court's ruling. Defendant 
shall have ten (10) days following service 
of the draft and memorandum upon them to



70a

respond to said draft if there is any 
disagreement as to its contents.

IT IS SO ORDERED.

/ 3/
Sr. United States District Judge 

Toledo, Ohio.



71a

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

E. Marie Holden,
Plaintiff,

Case No. C 76-442

vs.
Owens-Illinois, Inc., MEMORANDUM AND

JUDGMENT ORDER
Defendant. [Filed April 24,

1985]

YOUNG, J :

The defendant has filed a motion to 
amend the Court's Order of March 29, 1985, 
in two respects. The plaintiff opposes 
the motion in one respect, but agrees that 
it is well-taken in the other respect.

The Court's Memorandum & Order filed 
March 29, 1985, decided the damage issues 
in this cause, and directed the plaintiff 
to prepare an order expressive of its 
findings. The plaintiff has drafted such



72a

an order, but the defendant's motion in 
effect asks the Court to enter a somewhat 
different order.

The first matter in issue here 

between the parties arises out of what the 
defendant asserts, and the plaintiff 
denies, is an inconsistency between the 
Court's holding on page six (6) of the 
March 29, 1985, Memorandum, and the first 
paragraph of the Court's Order on page 
nine (9) thereof. In this matter, the 
defendant is correct. The Court's holding 
was that no tax component should be added 
to the award of back pay. Thus the amount 
stated on page nine (9) should be 
$282,909.00, rather than $355,721.00. In 
this respect, the Order of March 29, 1985, 
is incorrect, and should be amended.

The second matter in dispute is the 
amount of health benefits included in the 
Order of March 29, 1985. As to that, the



73a

parties are in agreement that the amount 
of $14,194.00 set forth in the third 
paragraph on page nine (9) of the Order is 

not in accordance with the oral 
stipulation of the parties at the hearing 
on December 12, 1984. The correct amount 
is $5,257.00. The Order must be amended 
to reflect this change.

On July 25, 1984, this Court issued 
its Opinion and Order finding for the 
plaintiff and against the defendant on the 
issue of liability, which finding is 
hereby affirmed.

On December 12, 1984, the parties 
filed a stipulation resolving certain 
damages issues and setting forth their 
differences on certain other damage 
issues.

On March 29, 1985, this Court 
resolved by a Memorandum those unresolved 
damage issues, but, as set forth above,



74a

the Order as entered did not correctly 
reflect the stipulations and the decision 
of this Court.

THEREFORE, for the reasons stated, 

good cause therefor appearing, it is
ORDERED, ADJUDGED, AND DECREED that 

this Court's Order of March 29, 1985, be, 
and it hereby is, amended by 
interlineation by changing the figure 

"$355,721.00" to ”$282,909.00" in the 
fourth line on page nine (9) thereof, 
striking out the words "income averaging 
and" in the fifth line on page nine (9) 
thereof, and changing the figure 
"$14,194.00" to "$5,257.00" in the 
eleventh line on page nine (9) thereof; 
and it is

FURTHER ORDERED, ADJUDGED, AND 
DECREED that the plaintiff recover, and is 
hereby awarded judgment against the 
defendant in the sum of Three Hundred



75a

Seventy-two Thousand, Two Hundred Seventy- 
nine Dollars and Forty-five Cents 
($372,279.45), together with interest 

thereon at the market rate from and after 
July 31, 1984, upon which execution may

issue.
This sum is arrived at in the 

following manner:
(1) Back pay through July 31, 1984, 

of $262,658.00, together with interest 
thereon at the market rate in the sum of 
$20,251.00, in all the sum of $282,909.00.

(2) Stock Purchase Savings Plan 

$10,561.00.
(3) Health insurance based on cost 

per participant basis, $5,257.00.
(4) Life, accidental death and 

dismemberment and long-term disability, 
$9,784.00.

(5) Employers contribution to Social
Security, $14,396.00.



76a

(6) Attorney fees, $35,000.00.
(7) Litigation Expenses, $736.00.
(8) Employee benefit consultant, 

$3 ,192.45.
FURTHER, defendant is ORDERED to 

compute and pay plaintiff her salary which 

she would have earned from August 1, 1984, 

to the date of this judgment; and it is

FURTHER ORDERED that plaintiff 

receive pension credit from her original 

hire date; and it is

FURTHER ORDERED that plaintiff be 

reinstated to her former position or its 

equivalent.
Exceptions noted.

IT IS SO ORDERED.

/s/
Sr. United States District Judge

Toledo, Ohio



77a

IN THE UNITED STATES DISTRICT COURT 
FOR T.HE NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

E. Marie Holden, 
Plaintiff,

Case No. C 76-442

vs.
Owens-Illinois, Inc., 

Defendant.

YOUNG, J:

MEMORANDUM AND 
ORDER

[Filed May 8, 
1985]

This cause is before the Court on its 
own motion sua sponte to correct a 
clerical mistake in its April 24, 1985, 
Order, pursuant to Rule 60(a) of the 
Federal Rules of Civil Procedure.

In reviewing this Court's Memorandum 
and Judgment Order of April 24, 1985, the 
Court finds that it made a clerical error 
by inadvertently miscalculating the total
judgment against the defendant. The
Court1 s April Order states that the



78a

plaintiff's total judgment against the 
defendant is the sum of Three Hundred 
Seventy-two Thousand, Two Hundred Seventy- 

nine Dollars and Forty-five Cants 
($372,279.45). Upon re-adding the 
individual amounts awarded to plaintiff, 
the Court finds that the sum of 
$361,835.45 is the correct total amount of 
plaintiff's judgment. The Order of April 
24, 1985, therefore, is incorrect and must 
be amended accordingly.

THEREFORE, for the reasons stated, 
good cause therefor appearing, it is

ORDERED, ADJUDGED, AND DECREED that 
this Court's Order of April 24, 1985, be, 
and it hereby is, amended by 
interlineation by changing the figure 
"Three Hundred Seventy-two Thousand, Two 
Hundred Seventy-nine Dollars and Forty- 
five Cents ($372,279.45)" found in the 
first full paragraph on page three (3) to



79a

"Three Hundred Sixty-one Thousand, Eight 
Hundred Thirty-five Dollars and Forty-five 
Gents ($361,835.45)."

IT IS SO ORDERED.

/s/
Sr. United States District Judge 

Toledo, Ohio.



80a

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

E. Marie Holden, 
Plaintiff, 
vs.

Owens-Illinois, Inc., 
Defendant.

Case No. C 76-442

O R D E R  
[Filed August 8, 

1985]

YOUNG, J:

This cause is before the Court upon 
the Sixth Circuit Court of Appeals' 
decision filed June 18, 1986, that the
judgment of this Court in this case be 
reversed and remanded with instructions to 
dismiss plaintiff's complaint.

THEREFORE, for the above reasons, 
good cause therefor appearing, it is

ORDERED that this Court' s order 
granting judgment for the plaintiff is
reversed; and it is



81a

FURTHER ORDERED that plaintiff's 
complaint is dismissed.

IT IS SO ORDERED.

/s/
Sr. United States District Judge



82a

STATUTES, REGULATIONS, AND RULES INVOLVED 

This case involves the following 

statutes, regulations and rules:

1. 42 U.S.C. §2Q00e-2(a), Section

703(a) of Title VII of the Civil Rights

Act of 1964, as amended, which in

pertinent part provides:

It shall be an unlawful
employment practice for an 
employer - (1) to fail or refuse 
to hire or to discharge any
individual, or otherwise to
discriminate against any
individual with respect to his 
compensation, terms, conditions, 
or privileges of employment, 
because of such individual's
race, color, religion, sex, or 
national origin; ...

(July 2, 1964, P.L. 88-352, Title VII,
§703, 78 Stat. 255; March 24, 1972, P.L, 
92-261, §8(a ), (b), 86 Stat. 109.)

2. 42 U.S.C. §2G00e-3(a), Section 
704(a) of Title VII of the Civil Rights 

Act of 1964, as amended, which provides in
pertinent part:



83a

It shall be an unlawful 
employment practice for an
employer to discriminate against 
any of his employees .,.,
because he has opposed any 
practice made an unlawful
employment practice by this
title, or because he has made a 
charge, testified, assisted, or 
participated in any manner in an 
investigation, proceeding, or
hearing under this title.

(July 2, 1964, P.L. 88-352, Title VII, 
§704, 78 Stat. 257; Mar. 24, 1972, P.L. 
92-261, §8{c ), 86 Stat. 109.)

3. Executive Order 11246, (C.F.R.

p. 174 (1973 comp.)) which provides in

pertinent part that:
§202. ... [A]11 Government con­
tracting agencies shall include 
in every Government contract 
hereafter entered into the 
following provisions:

"During the performance of 
this contract, the contractor 
agrees as follows:

"(1) The contractor will 
not discriminate against any em­
ployee or applicant for employ­
ment because of race, color, 
religion, sex, or national 
origin. The contractor will 
take affirmative action to 

that applicants areensure



84a

employed, and that employees are 
treated during employment,
without regard to their race, 
color, religion, sex, or nation­
al origin. Such action shall 
include, but not be limited to 
the following: employment, up­
grading, demotion, or transfer; 
recruitment or recruitment
advertising; layoff or termi­
nation; rates of pay or other 
forms of compensation; and 
selection for training, includ­
ing apprenticeship.11

(30 F.R. 12319, Sept. 28, 1965; 30 F.R. 
12935, Oct. 12, 1965, as amended by E .0. 
11375. 32 F.R. 14304, Oct. 17, 1967, and 
E.O. 12086 (Oct. 5, 1978).

4. 41 C.F.R. §60-1.32 (1985), which
provides in pertinent part that:

The sanctions and penalties 
contained in Subpart D of the 
order may be exercised by the 
Director against any prime 
contractor, subcontractor or 
applicant who fails to take all 
necessary steps to ensure that 
no person intimidates, threat­
ens, coerces, or discriminates 
against any individual for the 
purpose of interfering with the 
filing of a complaint, furnish­
ing information, or assisting or 
participating in any manner in 
an investigation, compliance 
review, hearing, or any other 
activity related to the adminis­



85a

tration of the order or any 
other Federal, State, or local 
laws requiring equal employment 
opportunity.

(44 F.R. 77002, Dec. 28, 1979.)

5. 41 C.F.R. §60-2.22, which
provides in pertinent part that:

(a) An executive of the con­
tractor should be appointed as 
director or manager of company 
equal opportunity programs. De­
pending upon the size and geo­
graphical alignment of the com­
pany, this may be his or her 
sole responsibility. He or she 
should be given the necessary 
top management support and
staffing to execute the assign­
ment. His or her identity
should appear on ail internal 
and external communications on 
the company's equal opportunity 
programs. His or her responsi­
bilities should include, but not 
necessarily be limited to:

(1) Developing policy
statements, affirmative
action programs, internal 
and external communication 
techniques.

(2) Assisting in the iden­
tification of problem
areas.



86a

(3) Assisting line manage­
ment in arriving at solu­
tions to problems.

(4) Designing and imple­
menting audit and reporting 
systems that will:

(i) Measure effec­
tiveness of the contrac­
tor 1s programs.

(ii) Indicate need 
for remedial action.

(ill) Determine the 
degree to which the con­
tractor's goals and objec­
tives have been attained.

(5) Serve as liaison bet­
ween the contractor and 
enforcement agencies.
(6) Serve as liaison bet­
ween the contractor and 
minority organizations, 
women's organizations and 
community action groups 
concerned with employment 
opportunities of minorities 
and women.

(7) Keep management inform­
ed of latest developments 
in the entire equal oppor­
tunity area.

(b) Line responsibilities 
should include, but not be 
limited to the following:

(1) Assistance in the iden­
tification of problem areas



87a

and establishment of local 
and unit goals and objec­
tives .

(2) Active involvement with 
local minority organiza­
tions, women's organiza­
tions, community action 
groups and community ser­
vice programs.

(3) Periodic audit of 
training programs, hiring 
and promotion patterns to 
remove impediments to the 
attainment of goals and ob­
jectives.
(4) Regular discussions 
with local managers, super­
visors, and employees to be 
certain the contractor's 
policies are being follow­
ed .
(5) Review of the qualifi­
cations of all employees to 
ensure that minorities and 
women are given full oppor­
tunities for transfers and 
promotions.
(6) Career counseling for 
all employees.
(7) Periodic audit to in­
sure that each location is 
in compliance in areas such 
as :

(i) Posters are pro­
perly displayed.



8 8a

(i i) All facilities, 
including company 
housing, which the 
contractor maintains 
for the use and bene­
fit of its employees, 
are in fact desegre­
gated , both in policy 
and use. If the con­
tractor provides faci­
lities such as dormi­
tories , locker rooms 
and rest rooms, they 
must be comparable for 
both sexes.
(iii) Minority and fe­
male employees are 
afforded a full oppor­
tunity and are encour­
aged to participate in 
all company sponsored 
educational, training, 
recreational, and 
social activities.

(8) Supervisors should be 
made to understand that 
their work performance is 
being evaluated on the 
basis of their equal em~ 
ploment opportunity efforts 
and results, as well as 
other criteria.
(9) It shall be a responsi­
bility of supervisors to 
take actions to prevent 
harassment of employees 
placed through affirmative 
action efforts.



89a

[43 FR 49249, Oct, 30, 1978; 43 FR 51401, 
Nov. 3, 1978]

6. Rule 52(a) of the Federal Rules 

of Civil Procedure, which provides, in 
pertinent part:

In all actions tried upon 
the facts without a jury or with 
an advisory jury, the court 
shall find the facts specially 
and state separately its 
conclusions of law thereon,.... 
Findings of fact, whether based 
on oral or documentary evidence, 
shall not be set aside unless 
clearly erroneous, and due 
regard shall be given to the 
opportunity of the trial court 
to judge of the credibility of 
the witnesses.... It will be 
sufficient if the findings of 
fact and conclusions of law are 
stated orally and recorded in 
open court following the close 
of the evidence or appear in an 
opinion or memorandum of 
decision filed by the court....

(As amended Dec. 27, 1946, eff. Mar. 19, 
1948; Jan. 21, 1963, eff. July 1, 1963; 
Apr. 28, 1983, eff. Aug. 1, 1983; April 
29, 1985, eff. Aug. 1, 1985)



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177