Correspondence from Bradford Reynolds to Leonard

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA 

No. 79-2282

EDDIE STOKES,

BOB BERGLAND,

Plaintiff-Appellant,

- v -

Defendant-Appel 1 ee.

On Appeal From The United States District Court 

For The District of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

VALERIE V. AMBLER 
Ambler & Newman
1612 K. Street, N.W., Suite 700 
Washington, D.C. 20006

39 Broadway, Suite 1907 
New York, New York 10006

Attorney for Plaintiff-Appellant



CERTIFICATE

The undersigned, counsel of record for Ms. Eddie 

Stokes, certifies that the following listed parties appeared 

below:

Eddie Stokes, Plaintiff

Bob Berg!and, Defendant

These representations are made in order that Judges 

of this Court, inter alia, may evaluate possible disqualifica­

tions or recusal.

VALERIE V. AMBLER 
Ambler & Newman

1612 K Street MW 
Suite 700
Washington, D.C. 20006 
(202) 223-5400

39 Broadway 
Suite 1907
New York, N.Y. 10006 
(212) 344-0200

Attorney of Record for 
PIainti ff-Appel1 ant



TABLE OF CONTENTS

PAGE

Certificate............................................  i

Table of Cases, Statutes and Other Authorities cited... iii

QUESTION PRESENTED..................................... 1

REFERENCE TO PARTIES AND RULING.......................  1

.STATUTE INVOLVED....................................... 2

STATEMENT OF THE CASE.................................. 2

STATEMENT OF FACTS..................................... 3

SUMMARY OF ARGUMENT.................................... 6

ARGUMENT...............................................  6

CONCLUSION.............................................  20

CERTIFICATE OF SERVICE................................. 21

- ii -



TABLE OF CASES, STATUTES, AND AUTHORITIES

PAGE

Albermarle Paper Co. v. Moody, 422 U.S.
405 (1975)....................................  9

Alexander v. Gardner Denver Co., 415 U.S.
36 (1974).....................................  7

Barnett v. W.T. Grant Co. 518 F.2d 543
(4th Cir. 1975)...............................  11

Bolton v. Murray Envelope Corp., 553 F.2d
881 (5th Cir. 1977)...........................  11

Boyd v. Ozark Air Line Inc. 419 F.Supp. 1061
(E.D. Mo., 1976)..............................  11

Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978)......  16
I

Brown v. General Services Administration
425 U.S. 820 (1976)...........................  7

Cannon v. University of Chicago, 441 U.S.
677 (1979)....................................  8

Cooper v. Curtis, F.Supp. , 16 EPD 1(8099
(D.D.C. 1978).................................  12, 16

Criterion Club of Albany v. Board of Commissioners,
etc., 594 F.2d 118 (5th Cir. 1979)............  12

Croker v. Boeing Co. 444 F. Supp. 890
(E.D. Pa., 1977)..............................  12

Davis v. Califano, F.2d 21 EPD 1130.363
(1979).............. 7777.....................  16

Davis v. County of Los Angeles, F.Supp. ,
8 EPD 1(9444 (D.C. Cal., 1974)77......7777....  14

Dawson v. Pastrick, 600 F.2d 70
(7th Cir. 1979)...............................  16

Donaldson v. O'Conner, 454 F. Supp. 311 
(N.D. Fla. 1978)................. 16



TABLE OF CASES, STATUTES, AND AUTHORITIES

PAGE

Firebird Society v. Members of Fire
Commissioners, 433 F.Supp. 752 aff'd
556 F.2d 642 (2nd Cir., 1976).................  12

Fogg v. New England Telephone and Telegraph Co.
346 F.Supp. 645 (D.N.H. 1972).................  11

Furnco Construction Corp. v. Waters,
98 S.Ct. 2943 (1978)..........................  16

*Grubbs v. Butz, 548 F.2d 973 (D.C. Cir. 1976)...... 6, 9, 16, 17, 18, 19

Hackley v. Roudebush, F.Supp. , 10 EPD
H10,403 (D.D.C., 1975)........................  12

Howard v. Phelps, 443 F.Supp. 374 (E.D. La. 1978)... 16

International Brotherhood of Teamsters v. U.S.
431 U.S. 324 (1977)...........................  16

Johnson v. Georgia Highway Express, 488 F.2d
714 (5th Cir. 1974)...........................  11, 14

*Kulkarni v. Alexander, ___ F.2d_____, 18 EPD
1(8644 (D.C. Cir. 1978)........................  6, 12, 16, 17, 18, 19

Lea v. Cone Mills Corporation, 438 F.2d 86
(4th Cir., 1975)..............................  H

Lock!in v. Day-Glo Color Corporation,
429 F.2d 873 (7th Cir. 1970)...................  15

Mallard v. Claytor, F.Supp. , 19 EPD
1(8993 (D.D.C. 1978J...... 777.................  11

Marimont v. Califano, 464 F.Supp. 1220
(D.D.C., 1979)................................  11

N.A.A.C.P. v. Bell, 448 F.Supp. 1164 (D.D.C.
1978) rev'd on other grounds, 609 F.2d
514 (D.C. Cir. 1979)..........................  12

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978)___ 12, 17, 19, 20

- iv -



TABLE OF CASES, STATUTES, AND AUTHORITIES

PAGE

*Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)............................  9,. 10, 14

Palmer v. Rogers, F.Supp. , 10 EPD
1110,499 (D.D.C. 1975)..........................  12, 13, 16

Parham v. Southwestern Bell Telephone Co.
433 F.2d 421 (8th Cir. 1970)...................  11, 19

♦Parker v. Califano, 561 F.2d 320 (D.C. Cir.
1977)..........................................  8 , 16

Parker v. Mathews, 411 F.Supp. 1059 (D.D.C. 1976) 
aff'd sub nom Parker v. Califano 561 F.2d
320 (D.C.Cir. 1979)............................  12, 16, 17, 18

Richardson v. Civil Service Commission, 420
F.Supp. 64 (S.D.NiY., 1976)....................  12

Rogers v. EEOC, 403 F.Supp. 1240 (D.D.C. 1975)......  11

Rosenfeld v. Southern Pacific Co., 519 F.2d 527
(9th Cir. 1975)................................  11

Sagers v. Yellow Freight System, Ince. 529
F.2d 721 (5th Cir. 1976).......................  18

Seals v. Quarterly County Court, 562 F.2d
390 (6th Cir. 1977)............................  16

Smallwood v. National Can Co., 583 F.2d 419
(9th Cir., 1978)...............................  12

Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977).... 16

Southeast Legal Defense Group v. Adams, 436
F.Supp. 891 (D. Ore. 1977).....................  16

♦Stanford Daily v. Zurcher, 64 F.R.D. 680 
(N.D. Cal. 1974) aff'd 550 F.2d 464 
(9th Cir. 1977) rev'd on other grounds,
436 U.S. 547 (1978)............................  14, 15, 16, 17

v



PAGE

Swann v. Charlotte-Mecklenburg Board of
Education, 66 F.R.D. 483 (W.D.N.C. 1975)......  14

Taylor v. Safeway Stores, Inc., 524 F.2d 263
(10th Cir. 1975)..............................  12

Trans World Airlines v. Hughes, 312 F.Supp. 478 
(S.D.N.Y. 1970) aff'd with respect to fee 
award, 449 F.2d 51 (2nd Cir. 1971), rev'd 
on other grounds, 409 U.S. 363, 93 S.Ct.
648, 34 L. Ed. 2d 577 (1973)...................  15

Village of Arlington Heights v. Metropolitan 
Housing Development Corp. 429 U.S. 252 
(1977)........................................  16

STATUTES

29 U.S.C. §621 et.seq..............................  2

42 U.S.C. § 1973£...................................  8

42 U.S.C. §1988....................................  8 , 12, 14, 15

42 U.S.C. §2000a...................................  9

42 U.S.C. §2000e...................................  6

*42 U.S.C. §2000e-5(k).............................. 2, 7, 9

42 U.S.C. §2000e-16................................  2, 7

OTHER AUTHORITIES

122 Cong. Rec. (1976)..............................  15, ig

*S. Rep. No. 94-1011
(94th Cong. 2nd Sess.)........................  8 , 9, 14, 15, 18

*H. Rep. No. 94-1558
(94th Cong. 2nd Sess.)........................  12, 15

TABLE OF CASES, STATUTES, AND AUTHORITIES

Cases, statutes or authorities chiefly relied upon are marked 
by asterisks.

- vi -



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA 

No. 79-2282

EDDIE STOKES,

PIainti ff-Appellant, 

- v -

BOB BERGLAND,

Defendant-Appel1ee.

On Appeal From The United States District Court 
For the District of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

Question Presented

Did the District Court err in ruling that a plaintiff who 

had obtained an administrative finding that she had been the victim 

of racial discrimination in federal employment was not a prevailing 

party under Title VII?*

Reference to Parties and Ruling 

On August 29, 1979, Judge Barrington D. Parker issued a 

Memorandum Opinion and Judgment. Stokes v. Bergland, (D.D.C. No. 78-

* This is the first appearance of this case before this Court.



0810, August 29, 1979), which is reproduced in the Appendix at pp. 77-79. 

(Hereinafter referred to as "A .")

Statute Involved

42 U.S.C. §2000e-5(k):

In any action or proceeding under this sub­
chapter the court, in its discretion, may allow 
the prevailing party, other than the Commission 
or the United States, a reasonable attorney's fee 
as part of the costs, and the Commission and the 
United States shall be liable for costs the same 
as a private person.

Pub.L. 88-352, Title VIII, §706, July 2, 1964,
78 Stat. 259; Pub.L. 92-261, §4, Mar. 24, 1972,
86 Stat. 104.

STATEMENT OF THE CASE

This is an action brought pursuant to 42 U.S.C. §2000e-16(c) 

of Title VII of the 1964 Civil Rights Act of 1964, as amended by the 

Equal Employment Opportunity Act of 1972 (hereinafter referred to as 

Title VII)* It was brought on behalf of a Black woman who at the time 

of filing the complaint in U.S. District Court, was employed by an 

agency of the federal government, the Department of Agriculture, as a 

GS-11 Food Program Specialist in the Food and Nutrition Service, Food 

Stamp Division, State Agency Operations Branch. Plaintiff-appellant 

filed her complaint in U.S. District Court alleging, inter alia, that 

she had been discriminated against on the basis of her race.

This action was also brought pursuant to the Age Discrimination 
in Employment Act of 1967, as amended, 29 U.S.C. §621 et seq. However, 
that asserted basis for jurisdiction of the District Court is not rele­
vant to the issue now presented on appeal.

-  2 -



After filing suit, the plaintiff retired2 and therefore 

elected not to pursue all of the issues related to her complaint except 

one: namely, whether she was entitled to an award of attorney's fees 

as a prevailing party on the basis of the administrative determination 

by the defendant's agency that she had been the victim of racial dis­

crimination in federal employment. Thereafter, after both parties 

filed cross motions for summary judgment, the District Court issued 

an opinion in favor of the defendant on August 29, 1979. (A 77 ) 

Plaintiff filed a timely notice of appeal. (A 80 )

The sole issue presented in this case is whether a plaintiff 

who obtains an administrative finding of race discrimination in fed­

eral employment is a prevailing party under Title VII.

STATEMENT OF FACTS

After her graduation from college in 1942, the plaintiff- 

appellant worked for the federal government for over 35 years (from 

1943 to 1979) and for the defendant since 1966 when she was hired as 

a GS-5. Thereafter, she received promotions until she reached the grade 

of GS-11 in February, 1971. While a GS-11, plaintiff-appellant 

received all within grade increases allowable under law upon her
3

supervisors continuous and repeated certification that she was per­

2
Whether the plaintiff-appellant retired is irrelevant to the issue 

to be decided. Contra the District Court opinion herein (A 77 ).

She received within grade increases in 1972, 1973, 1974, 1976, 
and 1978 (every instance that she was eligible) given the statutory 
waiting periods. 5 U.S.C. §5335.

- 3 -



forming at an acceptable level of competence (A 11-12).

During the time the plaintiff-appellant was a GS-11 she 

received consistently high performance evaluations until 1977. (A27-32)

These high evaluations included not only high numerical ratings but 

narrative comments praising the plaintiff-appellant for her performance. 

In 1974 her supervisor evaluated her potential as being at the grade 12 

in two years (A 29 ). In 1975 her supervisor rated her as having out­

standing promotion potential (A 34 ). Repeatedly her supervisor rated 

her performance as "proficient" (defined to mean meets position require­

ments at the level expected of a highly qualified incumbent in full 

command of a nosition) or more than proficient for an average rating 

of '6 '. (A 28, 30-32)

Suddenly and without explanation, the plaintiff-appellant's 

performance rating dropped to less than proficient for an average 

rating of '4'. (A41,42) This occurred at the same time the position 

of supervisor of the section where plaintiff had been working became 

vacant and was to be filled. Plaintiff was not considered to be among 

the "best qualified" for the position because her performance rating 

was a '4' rather than a '6 '. Therefore, she could not be considered 

for selection to the position. (A 23)

Plaintiff then filed a "Complaint of Discrimination in the 

Federal Government Because of Race, Color, Religion, Sex, National 

Origin, or Age" CSC Form 894 claiming, inter alia, race discrimination. 

She alleged continuous discrimination in "employment practices inclu­

ding but not limited to hiring, promotion, training, education, job

- 4 -



assignments, travel, supervisory responsibilities, performance evalu­

ations, career counseling, and promotional opportunities. "

She requested the following relief: "retroactive promotion and back

pay to the GS-12 level, appropriate work assignments, proper perform­

ance evaluations, career counseling, training and other opportunities 

that will assist me in my career development, whatever other relief 

is appropriate to place me in the position I would have been in had 

I not been discriminated against including expenses and attorneys' 

fees of pursuing this complaint, and the elimination of all discrimi­

natory employment practices." (A18-20)

An investigation was conducted by the agency. On the basis 

of affidavits in the investigative report, it was determined by the 

defendant in its findings issued on April 4, 1978 that the plaintiff- 

appellant's supervisors had given her inflated performance ratings 

for the years 1973 to 1975. Plaintiff-appellant's supervisor who gave 

her the high ratings stated that at the time, "the Agency was under 

the ideology of 'don't make waves' and particularly 'let's not have 

any racial problems.'" (A24) The defendant found that the last (and 

lower) performance rating given prior to the plaintiff's EEO complaint 

being filed was accurate and not discriminatory. The defendant went 

on to issue its "Decision" as follows:

3ased on the above, it is my decision that the 
complainant has not been subjected to reprisal or 
discriminated against because of age, sex and race 
in the matters which served as the basis of her com­
plaint. However, when, because of her race, she was 
not given an honest and accurate appraisal of her

- 5 -



/

performance, she was discriminated against in being 
denied those benefits that the appraisal system is 
intended to provide.

As was proposed in the disposition of her complaint, 
the complainant's transfer from her present branch 
is to be effected as soon as feasible. She is to be 
provided with counseling and training toward reach­
ing the level of proficiency that she was led to be­
lieve existed. This should include performance 
standards and periodic accurate evaluations.

It is my further decision that action be taken to 
assure that nonmerit factors are not considered by 
supervisors as a part of the performance evaluation 
process. (A25-26)

SUMMARY OF ARGUMENT

The congressional policy of eliminating racial discrimina­

tion is of the highest priority. Congress intended to encourage per­

sons who have suffered racial discrimination in employment to seek 

judicial relief when it provided for an award of fees to the prevailing 

plaintiff. The plaintiff-appellant has been the victim of unlawful 

employment discrimination due to her race, she has obtained relief 

which she sought under Title VII for herself, and she has obtained 

relief which she sought which will benefit others-the elimination of 

unlawful racially discriminatory practices. Following well-established 

principles adopted in this Court's decisions in Kulkarni v. Alexander,

____F.2d____ , 18 E.P.D. H8644 (D.C. Cir. 1978) and Grubbs v. Butz,

548 F.2d 973 (D.C. Cir. 1975), the plaintiff is the prevailing party and 

should be awarded attorney's fees.

ARGUMENT

The Employment Opportunity Act of 1972, which amended Title 

VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et seq. provided

-  6 -

♦



federal employees, for the first time, with an effective enforcement

mechanism against unlawful employment discrimination. Subsection

717(a) of Title VII, 42 U.S.C. §2C00e-16(a) provides that,

[a] 11 personnel actions affecting employees or ap­
plicants for employment...in executing agencies of 
the United States ...shall be made free from any dis­
crimination based on race, color, religion, sex or 
national origin.

Subsections (b), (c) and (d) of the Act (42 U.S.C. §2000e- 

16(b), (c), (d)) provide an administrative and judicial enforcement 

mechanism to effectuate the congressional policy of eliminating ra­

cial (and other) discrimination. See Brown v. General Services Ad­

ministration, 425 U.S. 820 (1976). The elimination of such discrim­

ination is the highest priority. Alexander v. Gardner Denver Co.,

415 U.S. 36 (1974).

Part of the enforcement mechanism is a provision for the 

award of attorneys' fees. Subsection (d) of Title VII, 42 U.S.C. 

§2000e-16(d) provides, "the provisions of Section 706(f) through (k) 

[42 U.S.C. §§2000e-5(f) through 2000e-5(k)], as applicable, shall 

govern civil actions brought hereunder." The subsections thus incor­

porated include Section 706(k), which provides,

In any action or proceeding under this subchapter 
the court, in its discretion, may allow the prevailing 
party, other than the Commission or the United States 
a reasonable attorney's fee as part of the costs,...

The congressional purpose behind the provision of attorneys'

fees to be awarded to the prevailing plaintiff has been made clear

- 7 -



in the legislative history of the Civil Rights Attorneys' Fees Act 

of 1976 (42 U.S.C. §1988). The Senate Report on the Act discusses 

the purpose and states:

The purpose and effect of S.2278 are simple— it is 
designed to allow courts to provide the familiar rem­
edy of reasonable counsel fees to prevailing parties 
in suits to enforce the civil rights acts which Congress 
has passed since 1866. S.2278 follows the language of 
Titles II and VII of the Civil Rights Act of 1964,
42 U.S.C. §§2000a-3(b) and 2000e-5(k), and section 402 
of the Voting Rights Act Amendments of 1975, 42 U.S.C. 
§1973£(e). All of these civil rights laws depend 
heavily upon private enforcement, and fee awards have 
proved an essential remedy if private citizens are to 
have a meaningful opportunity to vindicate the impor­
tant Congressional policies which these laws contain.

In many cases arising under our civil rights la'ws, 
the citizen who must sue to enforce the law has little 
or no money with which to hire a lawyer. If private 
citizens are to be able to assert their civil rights, 
and if those who violate the Nation's fundamental laws 
are not to proceed with impunity, then citizens must 
have the opportunity to recover what it costs them to 
vindicate these rights in court.

S. Rep. No. 94-1011 (94th Cong. 2d Sess.) p.2. (emphasis added).

4

The Supreme Court has relied on the legislative history of the 
1976 Act in interpreting Title IX of the Education Amendments of 1972, 
as well as Title VI of the Civil Rights Act of 1964. In Cannon v. 
University of Chicago, 441 U.S. 677 , 60 L.Ed. 2d 560, 569 n. 7
(1979) it was noted that:

Although we cannot accord these remarks the weight 
of contemporary legislative history, we would be remiss 
if we ignored these authoritative expressions concerning 
the scope and purpose of Title IX and its place within 
"the civil rights enforcement scheme" that successive 
Congresses have created over the past 110 years.

Similarly, this court in Parker v, Califano, 561 F. 2d 320,
339 (D.C. Cir. 1977), looked to the legislative history of the 1972 
Act " ' as a secondarily authoritative expression of expert opinion.'"

-  8 -



This is consistent with what this Court, in Grubbs v. Butz, 548 F.2d

973 (D.C. Cir. 1976) gleaned from the sparse legislative history 

in the 1972 Act on the subject of attorneys' fees. Therein, this 

Court found that one purpose of Section 706(k) was that"Congress 

desired to 'make it easier for a plaintiff of limited means to bring 

a meritorious suit,' as Senator Humphrey stated in explaining the 

changes made by the Amendment." Grubbs, supra at 975 (footnote with 

citations omitted).

With regard to the standard to be applied, the Supreme Court 

and Congress are in agreement. The Senate Report on the 1976 Act 

states:

It is intended that the standards for awarding fees 
be generally the same as under the fee provisions of 
the 1964 Civil Rights Act. A party seeking to enforce 
the rights protected by the statutes covered by S.2278, 
if successful, "should ordinarily recover an attorney's 
fee unless special circumstances would render such an 
award unjust." Newman v. Piggie Park Enterprises, Inc., 
390 U.S. 400 (1968). (footnote omitted) S. Rep. No. 
94-1101, supra, p. 4.

The standard established in Piggie Park, supra, has likewise been

applied to Title VII. In Albermarle Paper Co. v. Moody, 422 U.S.

405 at 415 (1975), the Supreme Court stated:

The Court held [in Piggie Park, supra] that attor­
neys' fees should "ordinarily" be a awarded--!'.e., 
in all but "special circumstances"--to plaintiffs 
successful in obtaining injunctions against discrim­
ination in public accomodations, under Title II of 
the Civil Rights Act of 1964. While the Act ap­
pears to leave Title II fee awards to the District 
Court's discretion, 42 U.S.C. §2000a-3(b)[42 USCS 
§2000a-3(b),]the Court determined that the greatest 
public interest in having injunctive actions brought 
could be vindicated only if successful plaintiffs, 
acting as "private attorneys general,"

- 9 -



were awarded attorneys' fees in all but very unusual 
circumstances. There is, of course, an equally strong 
public interest in having injunctive actions brought 
under Title VII, to eradicate discriminatory employ­
ment practices, (emphasis added)

In Piggie Park the Supreme Court found that Congress enacted 

the provision for attorneys' fees "to encourage individuals injured by

racial discrimination to seek judicial relief under /the applicable 

statute/" supra at 402. (emphasis added)

Title VII does not explicitly define "prevailing party". 

However, from a review of the purpose of the statute and the purpose 

of the attorneys' fee provision emerges a practical and workable defi­

nition. A party is a prevailing part if any of the following is 

found:

(1) s/he has been the victim of unlawful discrimination, or

(2) s/he has established that the employer unlawfully 

discriminates, or

(3) s/he has obtained relief or a benefit conferrable 

under the statute, or

(4) s/he has suffered reprisal for filing a discrimination 

claim under the statute.

In each of these instances, the person is either aggrieved under the 

terms of the statute and is vindicating the rights protected by the 

statute and/or is obtaining results under the statute and thus is 

enforcing the statute.

A review of the case law reveals that decisions on the issue 

of when to award a plaintiff attorneys' fees support this analysis.

-  10



Courts have found the plaintiff to be a prevailing party under numerous 

circumstances. Fees have been awarded following a full trial on the 

merits and (a) discrimination is found and relief to remedy the dis­

crimination is ordered,5 (b) the plaintiff is found not to have been 

discriminated against but there was systemic discrimination and relief 

is ordered to remedy the discrimination,® (c) the plaintiff has not 

been discriminated against, no relief is ordered but there has been

systemic discrimination,^ (d) the plaintiff was discriminated against
8 , .but otherwise not injured and no relief is ordered, (e) there was

Johnson v. Georgia Highway Express, 488 F.2d 714 (1974) (class 
action); Marimont v. Califano, 464 F. Supp. 1220 (D.D.C. 1979) (in­
dividual action)

® Bolton v. Murray Envelope Corp., 553 F.2d 881 (5th Cir. 1977); 
Barnett v. W.T. Grant Co.,518 F.2d 543 (4th Cir. 1975); Lea v. Cone 
Mills Corporation, 438 F.2d 86 (4th Cir. 1971); Boyd v. Ozark Air Lines 
Inc., 419 F. Supp. 1061 (E.D. Mo., 1976); Fogg v. New England Telephone 
and Telegraph Co., 346 F. Supp. 645 (D.N.H. 1972).

 ̂ Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th 
Cir. 1970) (No relief ordered as employer's practices were free of dis­
crimination in last three years prior to judgment.); Rosenfeld v. 
Southern Pacific Co., 519 F.2d 527 (9th Cir. 1975) (No relief in the 
nature of damages becajse of employer's good faith reliance on state 
statute.)
g

The employer proved by clear and convincing evidence that absent 
discrimination the plaintiff would not have received the employment 
benefit in question. Mallard v. Claytor, 19 E.P.D. H8993 (D.D.C. 1978); 
Rogers v. EEOC, 403 F. Supp. 1240 (D.D.C. 1975)

- 11



discrimination as to some but not all personnel practices,^ or (f) 

plaintiff suffered reprisal for having filed a discrimination complaint.^ 

Fees have also been awarded where the case has not proceeded to 

trial and (g) there is a settlement with an admission or after an admini­

strative finding of liability,^ (h) there is a settlement with no 

admission of liability but relief is obtained or (i) there is no
13

settlement but the defendant changes a challenged policy or practice. * 10 * 12

Kulkarni v. Alexander,___F2d , 18 EPD 18644 (D.C. Cir., 1978);
Croker~v~. Boeing Co. 444 FTSupp. 890 (E.D. Pa., 1977) (Finding no dis­
crimination on class allegations, Court awards fees since plaintiff 
prevailed on individual claims); Taylor v, Safeway Stores Inc. 524 F2d 
263 (10th Cir., 1975) (did not prevail on class claim but plaintiff 
was individually discriminated against); Palmer v. Rogers, F.Supp. ,
10 EPD 110,499 (D. D.C., 1975) (Plaintiff granted relief on only one 
of eight allegations); Cooper v, Curtis, F.Supp. , 16 EPD 18099 
(D. D.C., 1978); Nadeau v. Helgemoe , 581 F2d 275 (1st Cir., 1978).

^  Hackley v. Roudebush, ___F.Supp.___, 10 EPD 110,403 (D. D.C.,1975);
Smallwood v. National Can Co., 583 F2d 419 (9th Cir. 1978).

^  Parker v, Mathews 411 F.Supp. 1059 (D. D.C,, 1976) (District 
Court noted that to hold otherwise would discourage settlements supra 
at 1062), aff'd sub nom Parker v. Califano 561 F2d 320 (D.C. Cir. ,1977).

12 Richardson v. Civil Service Commission 420 F.Supp. 64 (S.D.N.Y., 
1976); Firebird Society v. Members of Board of Fire Commissioners 433 
F.Supp. 752 aff'd 556 F2d 642 ( 2nd Cir. 1976).

^  Criterion Club of Albany v. Board of Commissioners etc. 594 F2d 
118 (5th Cir., 1979) (Plaintiff is a prevailing party when s/he has 
vindicated rights under the statute, supra at 120.) N.A.A.C.P. v. Bell, 
448 F.Supp. 1164 (D. D.C., 1978) (Court found that suit acted as a 
"catalyst" which caused the defendant to change a policy in issuing a 
memorandum which mooted the suit.) rev'd on other grounds 609 F2d 514 
(D.C. Cir., 1979), The House Report of the 1976 Act states: "...after 
a complaint is filed, a defendant might voluntarily cease the unlawful 
practice. A court should still award fees even though ...no relief... 
is needed." H.Rep. 94-1558 (94th Cong. 2d Sess.) p.7.

-  12 -



The only instance in which it is clear that the plaintiff 

should not be awarded attorneys' fees is when there is no finding 

of discrimination at all and no relief under the Act is obtained.

Herein, the plaintiff-appellant by defendant's own finding

is a victim of racial discrimination in federal employment unlawful

under Title VII. The appellant obtained not only relief for herself

(e.g. she was to be provided with counseling and training, performance

standards and periodic accurate evaluations--since she had been "denied

those benefits that the appraisal system is intended to provide")* 1-4 but

also obtained relief that would benefit others ("action [was to] be

taken to assure that non-merit factors are not considered by super-

15visors as part of the performance evaluation process" ).

Appellant thus is clearly a prevailing party in every respect. 

She obtained relief for herself from admitted racial discrimination 

and obtained relief for others thus acting as a private attorney general 

to vindicate the right under the statute to be free from racial discri­

mination in federal employment.

Although racial discrimination was not found with regard to 

all of the personnel practices referred to in the appellant's complaint, 

it has long been recognized that that is not dispositive. As stated in 

Palmer v. Rogers, 10 EPD 1(10,499 at 6130 (D. D.C., 1975), wherein the 

plaintiff was granted relief on only one of eight counts:

14 Final agency decision of defendant-apnellee, A 25.

15 Id, A 26.

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...plaintiffs who prevail on less than all of their 
claims are generally regarded as prevailing parties 
for purposes of awarding attorneys' fees. See 10 
C. Wright & A. Miller, Practice and Procedure §2667 
(1973). Counsel for defendants conceded during oral 
argument that if plaintiff had brought an action 
including only the one count on which she prevailed 
in the instant case, she would be the prevailing 
party for purposes of Title VII. The court cannot 
perceive any reason why plaintiff should now be 
penalized for seeking additional relief. In fact, 
the policy underlying the fee provisions of Title 
VII is best served by encouraging plaintiffs to seek 
the broadest relief they feel, in good faith, that 
they are entitled to. See Newman v. Piggie Park 
Enterprises. [390 U.S. 400 (1968)]

In addition, Congress has expressly approved of this approach.

The legislative history of the Civil Rights Attorneys' Fee Act of 1976

(42 U.S.C. §1988)^ makes it clear that counsel fee awards should not

be based on the proportion of the case that has been won. The Senate

Report on the Act discusses the standards which should be used in

determining counsel fee amounts and states:

The appropriate standards, see Johnson v, Georgia 
Highway Express, 488 F2d 714 (5th Cir. 1974), are 
correctly applied in such cases as Stanford Daily v,
Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v.
County of Los Angeles, 8 E.P.D. 1(9444 (D.C. Calif.
1974); and Swann v. Chariotte-Mecklenburg Board of 
Education, 66 F.R.D. 483 (W.D.N.C. 1975)
* * *In computing the fee, counsel for prevailing 
parties should be paid, as is traditional with 
attorneys compensated by a fee-paying client,
"for all time reasonably expended on a matter."
Davis, supra, Stanford Daily, supra, at 684.

S. Rep. Mo. 94-1011 (94th Cong. 2d Sess.), p.6 .

Similarly, in Stanford Daily, ^  at the page cited in the

■L° See discussion at n.4, supra.

^  Stanford Daily v. Zurcher's holding on counsel fees was summarily
affirmed 550 F2d 464 (9th Cir. 1977), rev'd on other grounds, 436 U.S. 
547 (1978).

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legislative history, the district court rejected the position taken 

by some federal courts, "that hours spent on the litigation of unsuc­

cessful claims should be deducted from the number of hours upon which 

an attorneys' fee award is computed." The Court held:

However, several recent decisions, adopting a different 
tack, deny fees for clearly meritless claims but grant 
fees for legal work reasonably calculated to advance 
their clients' interests. These decisions acknowledge 
that courts should not require attorneys (often working 
in new or changing areas of the law) to divine the 
exact parameters of the courts' willingness to grant 
relief. See, e.g., Trans World Airlines v. Hughes, 312 
F.Supp. 478 (S.D.N.Y. 1970), aff'd with respect to 
fee award, 449 F.2d 51 (2nd Cir. 1971), rev'd on other 
grounds, 409 U.S. 363, 93 S.Ct. 648, 34 L.Ed. 2d 577 
(1973). One Seventh Circuit panel, for example, allowed 
attorneys' fees for legal services which appeared unneces­
sary in hindsight but clearly were not "manufactured."
Lock!in v. Day-Glo Color Corporation, 429 F.2d 873, 879 
(7th Cir. 1970) (concerning fees for antitrust counter­
claims).

64 F.R.D. at 684.

When one considers the overall intent of Congress in passing 

the various counsel fee provisions it must be concluded that the allo­

cation of counsel fees on any other basis would contravene that intent 

because it would have a discouraging affect on the willingness of 

attorneys to become involved in civil rights litigation. The legisla­

tive history of §198818 is replete with references to the difficulty in 

maintaining civil rights cases because of their costs, and the neces­

sity for plaintiffs being able to retain attorneys with the assurance 

that they will be paid on the same basis as they would in comparable 

civil litigation. See, e.g., S.Rep. No. 94-1011 (94th Cong. 2d Sess.) 

pp. 2, 6; H. Rep. No. 94-1558 (94th Cong., 2d Sess.) pp. 2-3; 122 Cong.

The Civil Right Attorneys' Fees Act of 1976 (42 U.S.C. §1988).

15 -



Rec. S. 16251 (daily ed. Sept. 21, 1976) (remarks of Sen. Scott); Id., 

at 16252 (remarks of Sen. Kennedy); 122 Cong. Rec. H. 12155 (daily ed., 

Oct. 1, 1976) (remarks of Rep. Seiberling).

Other courts have, following the above considerations, inter­

preted various civil rights attorneys' fee provisions in the same way. 

See, e.g., Donaldson v. O'Connor, 454 F.Supp. 311, 316 (N.D. Fla. 1978), 

in which the court discussed the above legislative history and concluded, 

". . . Congress clearly could not have contemplated that an award of 

attorney's fees should depend upon the extent to which a plaintiff 

prevails in gaining all the relief requested . . citing Seals v. 

Quarterly County Court, 562 F.2d 390 (6th Cir. 1977); Howard v. Phelps, 

443 F.Supp. 374 (E.D. La. 1978); and Southeast Legal Defense Group v. 

Adams, 436 F. Supp. 891 (D. Ore. 1977); See also, Brown v. Bathke,

588 F.2d 634 (8th Cir. 1978); Smith v. Fletcher, 559 F.2d 1014 (5th 

Cir. 1977); Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979); Cooper v.

Curtis,____F.Supp.___16 EPD §8099 (D. D.C., 1978); Palmer v. Rogers,

___ F.Supp.___, 10 EPD §10,499 (D. D.C. 1975).

Applying the rationale of Stanford Daily, see p. 15, supra, 

to the facts of this 1 case, a plaintiff should not be required to 

precisely predict at the outset in what manner s/he has been the vic­

tim of racial (or other unlawful) discrimination. Direct evidence 

of discrimination is rare^; at the time of filing a complaint, a

^  Direct proof of discrimination is not required. International 
Brotherhood of Teamsters v. U.S., 431 U.S. 324, n.15, n.24 (1977);
Village of Arlington Heights v. Metropolitan Housing Development Corp., 
429 U.S. 252, 265-266 (1977); FurnCo Construction Corp. v. Waters, 98
S.Ct.2943, 2949, 2951 (1978); Davis v. Califano,___F2d___, 21 EPD
1(30,363 (D.C. Cir. 1979).

-  16 -



victim of racial discrimination can only guess in which personnel 

actions s/he has been discriminated against. The plaintiff is at 

a severe disadvantage as most of the evidence is in the hands of 

the employer. Only after discovery will a plaintiff know whether 

s/he identified in his/her complaint all (or any) of the personnel 

actions in which s/he may have been discriminated against.

If plaintiff-appellant could have read the minds of her 

supervisors and known that year after year they were lying to her in 

the performance evaluations given to her (at the same time that they 

were certifying their accuracy) - she could have drafted a complaint 

alleging continuing discrimination on the basis of race in that she 

was given inflated performance evaluations and denied the benefits 

of an accurate appraisal system which would include counseling and 

training. Upon receipt of a finding of race discrimination, it could 

not be seriously suggested that she was not a prevailing party.

However, just as Courts should not require attorneys to 

divine the exact parameters of a court's willingness to grant relief",^ 

plaintiffs should not be required to "divine the exact parameters" 

of the racial discrimination they have suffered.

To penalize plaintiff-appellant because she could not read 

the minds of her supervisors, would be to allow those who violated 

her right to be free of racial discrimination protected by Title VII

Stanford Daily, discussion supra, p.15, 64 F.R.D. at 68 .̂

17 -



p 1
to "proceed with impunity"cl and will impose a heavysif not impossible* 

burden on those plaintiffs seeking to eradicate discrimination and 

vindicate the congressional policy against racial discrimination.

This Court has recognized that victims of racial (or other) 

discrimination should not have to bear the cost to vindicate their 

right to be free from unlawful discrimination by an employer. This

Court's holdings in Kulkarni v. Alexander, ___F2d___, 18 E.P.D. 18644

(D.C. Cir. 1973) and Grubbs v. Butz 548 F2d 973 (D.C. Cir. 1976), 

embrace the principle that once an employee has shown any discrimina­

tion by an employer, then s/he is entitled to attorneys' fees. As 

discussed supra p. 8-10, this is completely consistent with the 

congressional purpose of encouraging victims of discrimination to 

seek judicial relief by providing that they will be awarded attorneys'

fees. 22

As stated by this Court in Kulkarni, 23

The purpose of Title VII to encourage and abet 
vindication by covered employees (including 
federal personnel)of their rights against dis­
crimination calls for such a broad, liberal and 
sensible reading of the fee provision.

Other Courts have also recognized that the attorneys' fee provision

must be liberally applied. Sagers v. Yellow Freight System Inc. 529

21

22

Senate Report, p.2 (on 42 U.S.C.§1988) discussed p .8 supra. 

The central issue is discrimination. Parker v. Mathews 411
F.Supp. 1059 at 1064 (D.D.C. 1976) aff'd sub nom. Parker v. Califano, 
561 F2d 320 (D.C. Cir. 1977).
23

Kulkarni v. Alexander, F2d , 18 EPD 18644 at 4517 (D.C.
cir. i m y .

18 -



F2d 721 at 739 (5th Cir. 1976).

The District Court rendered a decision inconsistent with 

this Court's opinions in Kulkarni, supra and Grubbs, supra. Since 

the District Court acknowledged that there was a finding that the 

plaintiff had been the victim of unlawful racial discrimination, 

there should have been a finding that she was the prevailing party.

In addition, the District Court ignored the fact that the plaintiff 

also obtained relief which she had sought for herself and obtained 

the relief she had sought for others since the plaintiff's complaint 

served as a "catalyst"2  ̂for injunctive relief to eliminate acknow­

ledged racial discrimination. These additional facts could support 

independently the conclusion that the plaintiff was a prevailing 

party.2  ̂ Hence, together with the finding of discrimination they 

overwhelmingly require a finding that the plaintiff was a prevailing 

party.
26

Although the District Court cited Parker v. Mathews and
07

Nadeau v. Helgemoe in support of its holding that the plaintiff- 

appellant herein was not a prevailing party, it would be more accurate

Parham v. Southwestern Bell Telephone Co. 433 F2d 421 (8th 
Cir. 1970) Plaintiff awarded attorneys fees, even though personally 
not discriminated against, since the suit acted as a catalyst for 
the employer to end racially discriminatory policies.

See cases discussed in footnotes 6 , 7, 12, 13 supra pp. 11, 12.

26 411 F. Supp. 1059 (D. D.C. 1976).

27 581 F2d 275 (1st Cir. 1978).

19 -



to cite those cases for the opposite conclusion. Like the plaintiff

in Parker, the plaintiff-appellant herein prevailed "on the main issue 

[whether she had been the victim of racial discrimination] , even though
OO

not to the extent of [her] original contention." Also, 1ike the 

plaintiff in Nadeau, the plaintiff-appellant succeeded on the signi­

ficant issue (whether she had been the victim of unlawful discrimina-

29tion) and achieved some of the benefits she sought.

The innocent plaintiff-appellant would not have sought the 

assistance of an attorney if the defendant had not unlawfully discri­

minated against her on the basis of her race. The purpose of the 

attorneys1 fee provision was to enable persons, such as the plaintiff 

to obtain the attorneys' fees and costs of vindicating her rights.30

CONCLUSION

For the foregoing reasons, the decision of the District 

Court should be reversed and remanded for payment to plaintiff of 

the attorneys' fees and costs of bringing her complaint and this appeal.

Respectfully submitted,

28

29

30

VALERIE V. AMBLER 
Ambler & Newman
1612 K Street, N.W., Suite 700 
Washington, D.C. 20006

39 Broadway, Suite 1907 
New York, New York 10006

Attorney for Plaintiff-Appellant

District Court opinion, p. 2 (A 78) 

Ibid.

See discussion, supra, pp. 8 , 9.

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CERTIFICATE OF SERVICE

I hereby certify that I have served two copies of the

Brief and Appendix for Plaintiff-Appellant on counsel for the 

Appellee by depositing the same in the United States mail, first

John A. Terry, Chief 
Appellate Division
Office of the United States Attorney 
U.S. Courthouse
John Marshall & Constitution N.W. 
Washington, D.C. 20001

Attorney for Plaintiff-Appellant

f class mail postage February, 1980, addressed

to:

-  21