Robinson v. Lorillard Corporation Court Opinion

     [||053cd111-6db8-43dc-9e7a-2cd66512e4d8||] \. 

support 3B Moore’s Federal Practice 

123.40, at 23-654 (2d ed. 1969). At 
the cited page the following quotation 

appears, “But (b) (2) was not intended 
to apply where the appropriate final re- 

lief relates exclusively or predominantly 

to money damages.” (Emphasis added.) 

In nearly identical language the Adviso- 

ry Committee's Note states, “The subdi- 

vision does not extend to cases in which 

the appropriate final relief relates exclu- 

sively or predominantly to money dam- 

ages.” 39 F.R.D. 69, 102 (1966) (em- 

phasis added). There is nothing in 

Moore, in the Advisory Committee's 

Note, or in any case cited to us which 

supports the proposition that no mone- 

tary relief may be ordered in a class ac- 

tion under Rule 23(b) (2). 

[18] The relief provision in Title 

VII empowers the court to “enjoin the 

respondent from engaging in such un- 

lawful employment practice, and order 

such affirmative action as may be ap- 

propriate, which may include reinstate- 

ment or hiring of employees, with or 

without: ‘back ‘payi: ® * '*7" 13 The 

back pay award is not punitive in na- 

ture, but equitable—intended to restore 

the recipients to their rightful economic 

status absent the effects of the unlawful 

discrimination. It is for precisely this 

reason that the Fifth Circuit has held it 

unnecessary to impanel a jury to assess 

back pay: 

The demand for back pay is not in the 

nature of a claim for damages, but 

rather is an integral part of the statu- 

tory equitable remedy, to be deter- 

mined through the exercise of the 

court’s discretion, and not by a jury. 

13. 42 U.S.C. § 2000e-5(g). 

14. Defendants also urge that back pay 

should not have been granted the class 

because individual circumstances vary and 

not. all members are actually entitled to 

recover. Distriet Court's 

holding does not assure a monetary re- 

covery to all class members, but provides 

for a separate determination of who is 

entitled to recover and how much, The 

However, the 

444 YEDERAL REPORTER, 2d SERIES 

Johnson v. Georgia Highway Express, 

Inc, 417 F.2d 1122, 1125 {5th Cir. 

1969). 

[19] This is a case in which final in- 

junctive relief is appropriate and the de- 

fendants’ liability for back pay is rooted 

in grounds applicable to all members of 

the defined class.'* Under these cir- 

cumstances the award of back pay, as 

one element of the equitable remedy, 

conflicts in no way with the limitations 

of Rule 23(b) (2). The Seventh Cir- 

cuit’s opinion in Bowe v. Colgate-Palmo- 

live Co., 416 F.2d 711 (7th Cir. 1969), is 

in full accord with our holding, and we 

adopt their reasoning to the following 

effect: 

We are also unable to perceive any 

justification for treating such a suit 

as a class action for injunctive pur- 

poses, but not treat it so for purposes 

of other relief. The clear purpose of 

Title VII is to bring an end to the pro- 

scribed discriminatory practices and 

to make whole, in a pecuniary fashion, 

those who have suffered by it. To 

permit only injunctive relief in the 

class action would frustrate the imple- 

mentation of the strong Congressional 

purpose expressed in the Civil Rights 

Act of 1964. 

1d. at 720.15 

B. Wawver of Back Pay Claim. 

[20-23] The complaint filed by the 

plaintiffs in the District Court did not 

specifically request an award of back 

pay, though it did request “such other 

additional relief as may appear to the 

Court to be equitable and just.” At a 

pretrial hearing concerning the appro- 

fact remains that all members of the class 

have been subject to the unlawful prac- 

tice. Therefore, those who have suffered 

loss of pay because of the practice are en- 

titled to appropriate compensation. 

Nee also the thorough consideration of 

this issue in Local 186, Int'l Pulp, Sul- 

phite, and Paper Mill Workers v. Min- 

nesota Mining & Mfg. Co., 304 INSupp. 

1284 (N.D.Ind.1969). 



ROBINSON v. LORILLARD CORPORATION 803 
Cite as 441 I.2d 791 (1971) 

priateness of a class action, one of the 

lawyers for the plaintiffs clearly indicat- 

ed that the suit was one for injunctive 

relief rather than recovery of lost 

wages. It was not until well after trial 

of the case, though before the judge had 

entered a decision, that a request was 

made for additional relief in the form of 

back pay for the class. Defendants 

argue that these facts constitute an ef- 

fective renunciation and waiver of any 

right to receive an award of back pay. 

The starting point for resolution of 
this issue is Rule 54(¢) of the Federal 

Rules of Civil Procedure which pro- 

vides: 

Except as to a party against whom a 

judgment is entered by default, every 

final judgment shall grant the relief 

to which the party in whose favor it 

is rendered is entitled, even if the 
party has not demanded such relief in 

his pleadings. (Emphasis added.) 

This provision has been liberally con- 

strued, leaving no question that it is the 
court’s duty to grant whatever relief is 

appropriate in the case on the basis of 

the facts proved.'® The pleadings serve 

only as a rough guide to the nature of 

the case. 

There are only two limiting principles 

to the general rule which might avail 

the defendants. The first is that a rem- 

edy desired by mone of the parties 

should not be forced upon them. Mercu- 

ry Oil Refining Co. v. Oil Workers Int’ 

Union, 187 F.2d 980, 983 (10th Cir. 

1951); International Nikoh Corp. v. H. 

K. Porter Co. 358 F.2d 284, 290 (7th 

Cir. 1966) (dictum). But that is not 

our case. Although the plaintiffs ini- 

tially indicated that they were not seek- 

ing back pay, prior to the entry of judg- 

ment they added a request that back pay 

be awarded the class. Clearly it was not 
forced upon them against their will. 

“The one other limiting principle which 
might assist defendants’ case is ex- 

16. Sce generally 6 Moore's Federal Practice 
1 54.62 (2d ed. 1966) ; 3 Barron & Holtz- 
off, Federal Practice and 

1194 (Rev.ed. 1958). 

Procedure § 

pressed in the following manner by 

Rental Development Corporation of 

America v. Lavery, 304 F.2d 839, 842 

(9th Cir. 1962) : 

If, however, it is made to appear that 

the failure to ask for particular relief 

substantially prejudiced the opposing 

party, Rule 54(c¢) does not sanction 

the granting of relief not prayed for 
in the pleadings. 

In our case, because the obligation to 

provide back pay stems from the same 

source as the obligation to reform the 

seniority system, any general defenses 

relevant to the back pay award were 

equally relevant to the suit for injunc- 

tive reliet. Any specific defenses relat- 

ed only to computation of back pay may 

be raised during the process of assessing 

individual back pay claims, possibly be- 

fore a special master.” The defendants 

have in no way been prejudiced by the 

belated claim. 

C. Appropriateness of Back Pay 

Award. 

[24] As a final protest, defendants 

argue that the award of back pay repre- 

sents an abuse of discretion on the part 

of the District Court. As has been not- 

ed in Bowe v. Colgate-Palmolive Co., su- 
pra 416 F.2d at 721, however, the Title 

VII grant of remedial authority “should 

be broadly read and applied so as to ef- 

fectively terminate the practice and 

make its victims whole.” 

Defendants argue that even if the 

SEOC “no reasonable cause” finding is 

not a complete bar to the action, the 

District Court should have taken it into 

account in determining whether to 

award back pay. We have already dis- 

cussed in part II of this opinion the fact 

that Title VII suits are de novo proceed- 

ings which are not influenced by the 

EEOC decision in the case. Quite prop- 

erly the District Court ignored the “no 

reasonable cause” finding. 

17. The District Court has deferred compu- 
tation of back pay for individual class 

members. See 319 INSupp. at 843. [||053cd111-6db8-43dc-9e7a-2cd66512e4d8||]