Jinks v. Mays Brief for Defendants-Appellees

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 72-1079

BARBARA JINKS, et al.f

Plaintiffs - Appellants,

V.

DR. BENJAMIN MAYS, et al..

Defendants - Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

BRIEF FOR DEFENDANTS - APPELLEES

WARREN C. FORTSON 
Smith, Cohen, Ringle, Kohler, 
Martin & Lowe

2400 First National Bank Tower 
Atlanta, Georgia 30303
LENWOOD A. JACKSON
3405 First National Bank Tower
Atlanta, Georgia 30303
Attorneys for Defendants - Appellees



I N D E X
Page

Subject Index:
STATEMENT OF THE CASE 1

STATEMENT OF FACTS 2
ARGUMENT 5

INDEX OF AUTHORITIES

Cases:
Clark v . American' Marine' Corp. ,'

320 F. Sllpp. 709 (E.D. La. 1970) 
aff’d per curiam 437 F .2d 959
(5th Cir. 1971) 15

Harkness v. Sweeny' independent' 'School' District,,
7£TTF .2d 319 (5th Cir. 1970) ~ ~  “  ‘ 11,12

Horton v'. Lawrence County Board of Education,
~ 449 F.2d"”9T7~'(5th Cir. 1971) “  " 11,12,16

Lee v. Southern Home Sites Corp.,
444 F .2d 143, (5th Cir. 19 71) 15

McF'erren v. County School Board,
4 EPD 91-7652 10,11

Mills v. Electric Auto-Lite' Co. ,
~ 3 9F15TsT~T7rTl9W 14,15
Newman v. Piggie Park Enterprises,' The. ,

390 U.S. 400 (19687 ” 14
United States v1. Hayes International Corp. ,

4 FEP Cases 411 (5th Cir. 1972) 10

Statutes:
42 U.S.C. 1983 13,14

Miscellaneous:
6 Moore’s Federal Practice 1352 (1966 ed.) 15



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 72-1079

Barbara Jinks, et al.,
Plaintiffs-Appellants 

V.
Dr. Benjamin Mays, et al.,

Defendants-Appellees

BRIEF FOR DEFENDANTS-APPELLANTS

On Appeal from The United States District Court 
For The Northern District of Georgia

STATEMENT OF THE CASE

Plaintiffs-Appellants filed this action in the 

United States District Court for The Northern District of 
Georgia, Atlanta Division, on July 22, 1970. On September 

28, 1971, the District Court issued an order granting 
Plaintiffs-Appellants' motion for summary judgment and ruling 

that Defendants-Appellees! policy denying maternity leave 
to nontenued teachers violated the Equal Protection Clause 

of the United States Constitution. Plaintiffs-Appellants on 

October 7, 1971, filed their motion to alter or amend, or in



the alternative to reconsider that portion of the District 

Court's Order of September 28, 1971, denying appellant back 
pay* The District Court, on November 3, 1971, denied 

Plaintiffs-Appellants1 motion to alter or amend its order 

of September 28, 1971, and Plaintiffs-Appellants have filed 
this appeal seeking to recover back pay and reasonable 

attorney’s fees.

STATEMENT OF FACTS

The appellant, Barbara Jinks, is a married female, 

who for three years was employed as a probationary teacher in 
the Atlanta Public Schools. Sometime in the Spring of 1970, 

she was offered a contract to continue teaching which she 

accepted on May 28, 1970. On July 24, 1970, counsel for Mrs. 
Jinks wrote to the principal of the school in which she had 
been teaching to inform him that Mrs. Jinks was pregnant and 
expected to deliver her child in October. The letter further 
stated that "Mrs. Jinks has commenced a law suit in federal 

court to compel the Board of Education to grant her and other 

non-tenured teachers maternity leave, and looks forward to 
rejoining you after the birth of her child." (A. 20a)

On July 28, 1970, Dr. John W. Letson, Superintendent 

of Atlanta Public Schools, wrote counsel for Mrs. Jinks and

2.



informed him that since Mrs. Jinks was a probationary teacher 
she was not eligible for maternity leave and that her employ­

ment status would therefore be listed as "resigned". The 

letter also stated that if following the delivery of her child, 
Mrs. Jinks wished to return to a teaching position in the 

Atlanta Public Schools, she should contact the personnel office 
and request re-employment. The letter from Dr. Letson further 

stated that Mrs. Jinks’ request for re-employment would be 
given consideration in terms of the needs of the system at that 

time. (A. 21a) Counsel for Mrs. Jinks was also informed that 

even if Mrs. Jinks had been eligible for maternity leave, such 
leave would not have assured her return to the same school.
(A. 21a).

According to Appellees' policy existing at that time, 

non-tenured or probationary teachers who became pregnant, were 

not eligible for maternity leave status. Probationary teachers, 
who because of their pregnancy were required to take leave from 
their position, were listed as having resigned. If, however, 

their services in the past were satisfactory, their applications 

for re-employment were given very careful consideration. 

Probationary teachers re-elected after resignation for maternity 

reasons were granted years of service and the previous status 
enjoyed at the time of their resignation. (A. 35a)

3.



Appellees' policy existing at the time of this law 

suit and its present policy with respect to teachers who have 
attained tenure status is that they were and are eligible for 

maternity leave status. (A. 35a) When a tenured teacher who 

has taken the necessary steps to acquire maternity leave 
status has given birth to her child and is ready to return to 

work, she must notify the personnel office of her desire and 
readiness to return to work. The personnel office will then 

at the first opportunity find her a job in the system. A 
tenured teacher is not guaranteed the same position or the 
same school upon their return to the system since the ability 

to place these returning teachers is based on the normal 

turnover in personnel. (A. 120a)

Appellant, Barbara Jinks, brought this action on 
her own behalf and on behalf of all those similarly situated 

non-tenured female teachers alleging that Appellees' policy of 

not granting maternity leaves to probationary teachers was 
in violation of the Equal Protection Clause of the Fourteenth 

Amendment. The District Court found Appellees' policy to be 
arbitrary and in violation of the Equal Protection Clause of 
the Fourteenth Amendment. The Court, however, denied 

Appellants' prayer for back pay on the ground that Appellant 
failed to show that she had notified Appellees of her desire 
to return to work and Appellees had refused to re-employ her.

4.



The Court did order that Appellant recover costs of the 

action but did not award reasonable attorney's fees as 
Appellant had requested.

ARGUMENT

I.
Appellant Is Not Entitled to Back Pay 

Clearly, this is not a case in which back pay should 
be awarded. The facts do not warrant the awarding of back pay 
and the evidence does not establish Appellant's right to back 

pay. Moreover, there simply is no basis for a determination 
of any amount of back pay due.

The District Court's finding that Appellant had not 

alleged in her complaint or in any of her responsive pleadings 
that she attempted to return to the school system after her 

pregnancy is well supported by the record and is definitely 

not contrary to the evidence as Appellants assert. Appellants 

erroneously interpret the District Court's decision as 
denying Mrs. Jinks back pay because her responsive pleadings 

did not allege that she wished to return to the school system 
after her pregnancy. In its Order of September 27, 1971, the 
District Court held:

"In her complaint plaintiff prayed for back 
pay in case defendants refused to re-employ 

her on the ground that her position had been 

filled by a new employee. The Court has not

5.



been informed by plaintiff that this has 

occurred and no facts have been presented 

upon which this court might award back pay. 

Plaintiff's prayer for back pay will there­
fore be denied.” (A. p. 157a)

It is clear from reading this portion of the Court's 
order that it was not based upon the failure of Appellant to 

allege that she wished to return to the school system after her 
pregnancy. The Court's order is based on the fact that there 
is absolutely no evidence in the record or elsewhere that 

Appellees refused to re-employ Appellant on the ground that 
her position had been filled by a new employee.

Appellants go through great pain in their brief to 
show that Mrs. Jinks evidenced an interest and expressed a 

wish to return to the school system after her pregnancy. First 
Appellants contend that the fact that Mrs. Jinks signed a 

contract with Appellees for the 1970-71 school year showed that 
she was interested and wished to return to the school system. 

Next, Appellants rely on the letter dated July 24, 1970, in 

which Mrs. Jinks, through counsel, stated that she "would 
return to her teaching position after the child's birth." 
(Appellants' Brief p. 5). Finally, Appellants rely on their

6.



answers to Appellees' first interrogatories in which Mrs.

Jinks stated that she would accept her position as a non- 

tenured teacher for the 1970-71 school year as being evidence 

of her interest to return to the school system. Conceding 

that all these facts established an interest and desire on 

Mrs. Jinks' part to return to the school system after the 
birth of her child, the Appellant has still missed the issue 

by a wide mark. The issue, as the District Court correctly 

decided, was and is not whether Appellant evidenced an interest 

or expressed a desire to return to the school system after the 
birth of her child, but rather, whether Appellant attempted 
to return to the school system and was refused.

The District Court's order of November 3, 1971,
states:

"Although her complaint prayed for back pay 

in the event the court determined she was 

entitled to maternity leave, plaintiff did 

not allege in the complaint or in any of 

her responsive pleadings that she attempted 
to return to the school system after the 
birth of her child and defendants refused 
to rehire her. (A. 170a) (Emphasis supplied)

7.



It is very clear that the District Court did not 

deny Appellant, bade pay because she failed to establish that 

she had expressed an interest and desire to return to the 
school system, but rather, because she did not allege and 

the evidence does not establish that she attempted to return 
to the school system and Appellees refused to hire her.

In this appeal and in their brief, Appellant is 
apparently attempting to establish a special class in which 

no one belongs except Mrs. Jinks. Not even tenured teachers 
are entitled to pay during the time they are on maternity 

leave. (A. 35a) Nor are they guaranteed immediate return 
to the system the moment they decide that they are ready to 

return. (A. 120a) Yet Appellant is demanding that she be 
awarded pay during the time she was away from her job for 

maternity reasons. Appellants could not possibly be demanding 
back pay because there simply is no criterion upon which to 

base such a demand. Back pay is appropriate only where a party, 

who would ordinarily be entitled to pay, has been deprived of 
that right by the actions of another. In the instant case, 

Appellant has not been deprived of any pay at all. Maternity 
leave is a leave without pay. Even tenured teachers are not 

entitled to pay for maternity leave and this holds no matter 
how long the teachers are required to stay off either because 
they are not ready to return or because no place has been 

found for them. (A. 35a) By demanding back pay in this case,

8.



Appellant is seeking special treatment which no other teacher 
receives.

If it were shown that Appellant had attempted to 

return to work after the birth of her child and she was refused 
because she was a probationary teacher, then a good argument 

could be made that she was entitled to back pay. But that 
simply is not the case here. The District Court has found, and 

the record supports the fact that Appellant neither alleged nor 

proved that she attempted to return to work and was refused by 
Appellees. Therefore, it is mere speculation whether there 

were positions open for which Appellant was qualified. Likewise 
it is mere speculation whether Appellant would have been rein­

stated since there is nothing to show that there were vacancies 
for which Appellant was qualified.

The Appellees were not obligated to initiate an offer 
of reinstatement to Appellant. This is not done with respect 
to any other teacher on maternity leave whether the teacher be 

tenured or probationary. The regulations governing maternity 

leave put the burden on the maternity leave teacher to notify 

the school system when she is ready to return to the system.
(A. 36a) It should also be noted that the District Court did 

not order Appellees to offer Appellant reinstatement. The 

District Court enjoined Appellees from refusing to re-employ 
Appellant should she choose to resume teaching, on condition

9.



that there is at such time a vacancy within the school 

system. (A. 157a)
The cases relied upon by Appellant as establishing 

her right to back pay are simply not applicable to the facts 
and circumstances of the instant case. Appellants' reliance 

on United States V. Hayes International, 4 FEP Cases 411,418 

(5th Cir. 1972) is misplaced as the District Court's order 

denying back pay was not based upon the fact that it was not 
requested in the pleadings. Indeed the Court's order 

specifically states that Appellant's complaint prayed for back 

pay. (A. 157a, 170a) The District Court simply refused to 

speculate whether Appellant would have been rehired had she 

applied since there was no allegation that she had applied 

and been refused.
McFerren V. County School Board, 4 EPD 91-7652 (6th

Cir, 1972), was a case dealing with Negro school teachers who
were discharged because of their race. The appellate court
held that the District Court could properly award back pay for

the earnings the teachers lost without the need for a jury

trial on the question of damages where the back pay award is
made in connection with their equitable remedy of a reinstate­
ment order.
McFerren can be distinguished on the basis of the facts. 
McFerren, first of all, deals with Negro teachers who were 

discharged. Appellant is a pregnant teacher who has not been

10.



discharged. Appellant did not lose any earnings as the 

teachers did in McFerren. Teachers on maternity leave do 

not receive pay so it is clear that, at least during the 

period Appellant was with child, she was not, under any 

circumstances, entitled to pay. After, the birth of her child, 

it could not be said that Appellant was entitled to pay since, 

as the District Court found, it would be mere speculation as 

to whether there were positions open for which Appellant was 
qualified. Moreover, unlike the McFerren case where the 

District Court refused to rule on the question of back pay as 

a part of the equitable remedy, the District Court in the 
instant case made a specific ruling on back pay and denied it 
on the equitable ground that it would involve too much 

speculation. Finally, the McFerren case relies heavily on 
Harkness v. Sweeny 'Independent School District, 427 F.2d 319 

(5th Cir. 1970) where this court stated "An inextricable part 

of restoration to prior status is the payment of back wages 

properly owing to the plaintiffs, diminished by their earnings, 

if any, in the interim." (Emphasis added) The key words in 

this statement are "properly owing." As has already been 
pointed out, there are no earnings properly owing to Appellant 
in this case.

In Horton' v. Lawrence County Board of Education,
449 F .2d 793 (5th Cir. 1971), this court stated:

"Back pay is normally an integral part of the 
equitable remedy of reinstatement used by 

the federal courts to restore aggrieved
11 .



litigants to the position they should have 
occupied had it not been for the unlawful 

deprivation of their constitutional rights."
See Harkness v. Sweeny Independent School 
District, 427 F.2d 319 (5th Cir. 1970)

Neither this case, nor any of the other cases cited 
by Appellant, stands for the proposition that in all civil 
rights cases, the plaintiff is entitled to back pay. The 

court states that back pay is normally an integral part of the 

equitable remedy which must necessarily imply that the awarding 

of back pay must depend on the facts of each case. And on the 

facts of the instant case, back pay is simply not warranted. 

Moreover, the court indicated in Horton, that the purpose for 

back pay is to restore aggrieved litigants to the position they 
should have occupied had it not been for the unlawful deprivation 
of their constitutional rights. Under the facts of this case, 
had it not been for Appellees' policy of denying maternity leave 

status to probationary teachers, Appellant would have been 

allowed maternity leave without pay. The order of the District 
Court enjoining Appellees from refusing to hire Appellant 

should she attempt to return to work had the effect of restoring 
her to the position she should have occupied had it not been 

for Appellees' rule. Appellant would not have been entitled to

12.



pay during maternity leave, and it has not been alleged that 

Appellees refused to rehire her. Moreover, Appellant 

returned to work on January 3, 1972, which was the earliest 
date a position was open for which she was qualified.

The District Court in this case, sitting as a 
court of equity, heard all of the evidence from both sides 
and passed on all the allegations. Exercising its equity 

jurisdiction, the court granted Appellant relief in the form 
of an order permanently enjoining Appellees from denying 
maternity leave to her and the. class she represented. The 
Court found that Appellant had not alleged that she had 

attempted to return to the school system and had been refused. 

The record supports this finding, and the order of the district 
court should be affirmed.

II.

Reasonable Attorney's Fees are' not a proper part 
of the cost of this Action.

This action was brought under 42 U.S.C. Section 1983 
and the District Court held it to be a denial of equal 
protection of the laws for the Appellees to deny maternity 

leave to Appellant and the class she represents. Section 1983 

of Title 42 U.S.C. does not authorize the allowance of attorney's 
fees. In fact, nothing at all appears in that section with

13.



respect to attorney's fees. Congress, in its wisdom, saw fit 
not to include within Section 1983 any provision for the 

allowance of attorney's fees and it is not within the province 

of the courts to amend legislative enactments. In his 

dissenting opinion in Mills V. Electric Auto-Lite Co., 396 

U.S. 375 (1970), the late Mr. Justice Black stated: "The

courts are interpreters, not creators, of legal rights to 

recover and if there is a need for recovery of attorney's fees 

to effectuate the policies of the act here involved, that 
need should in my judgment be met by Congress, not by this 
court."

None of the cases cited by Appellant construed 

Section 1983 of Title 42 U.S.C., and none of these cases hold 
that attorney's fees are allowable under Section 1983. In 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), 

a class action was brought under Title II of the Civil Rights 
Act of 1964, Section 204 (a), 78 Stat. 244, 42 U.S.C. Section 

2Q00a-3(a). Under the foregoing sections, Congress had enacted 

provisions for attorney's fees and the Court held that the 

successful litigants were entitled to attorney's fees to 

encourage individuals injured by racial discrimination to seek 
judicial relief under Title II. Unlike Sections 204 (a) and 

2000a-3(a) of 42 U.S.C., where attorney's fees are expressly 
allowed, there is no similar provision under Section 1983.

14.



It has long been held that a federal court may 

award counsel fees to a successful plaintiff where a defense 

has been maintained in bad faith, vexatiously, wantonly, or 

for oppressive reasons. 6 Moore's Federal Practice 1352 
(1966 ed.). However, there is no evidence that Appellees 

acted in bad faith, vexatiously or wantonly in this case.

The action in Lee' v. Southern Home' Sites Corp. ,

444 F.2d 123 (5th Cir. 1971} was brought under 42 U.S.C.

Section 1982 and its holding is not applicable in the present 
case since this case was brought under 42 U.S.C. Section 1983. 

Similarly, the action in Clark, v. American' Marine Corporation, 
320 F. Supp. 709 (E.D. La., 1970)., a'ff 'd per curiam, 437 F. 2d 

959 (5th Cir. 1971), was brought under Title VII of the Civil 

Rights Act of 1964, and the provisions of that act allows 
attorney's fees. Finally, the rationale for awarding attorney's 
fees in Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) 

does not enter into this case. In Mills, the Court stated that 
attorney's fees were awarded to impose the expense upon the 

class that benefited from the results and that would have had 

to pay the expenses had it brought the suit. If the Mills 

case is applicable at all, it is authority for the proposition 
that the class appellant represented, i.e., probationary 

teachers, benefited from the litigation and should be liable 

for attorney's fees.

15.



The law in this circuit is that federal district 

courts may, at their discretion, award attorney's fees in 

civil rights litigation where the actions of the defendants 

are unreasonable and obdurately obstinate. Horton v. Lawrence 

County Board of Education, 449 F.2d 793 (5th Cir. 1971). It 

was therefore, well within the discretion of the District Court 

to deny Appellant attorney's fees especially since there was 
no allegation that Appellees were unreasonable or obdurately 
obstinate.

For the foregoing reasons, it is urged that the 
order of District Court be Affirmed.

Respectfully submitted,

Lenwood A. Jackson
3405 First National Bank Tower
Atlanta, Georgia 30303

Warren C. Fortson
2400 First National Bank Tower
Atlanta, Georgia 30303

Attorneys for Defendants- 
Appellees

16.



This is to certify that I served copies of the 

Brief for Defendants-Appellees on Elizabeth R. Rindskopf, 
Moore, Alexander & Rindskopf, 1154 Citizens Trust Bank 

Building, 75 Piedmont Avenue, N.E., Atlanta, Georgia; Jack 
Greenberg, William L„ Robinson, 10 C .'Lumbus Circle, New 

York, New York; Harriet Rabb, 435 West 116th Street, New 
York, New York, this ' ' ' day of March, 19 72, by depositing 

same in the United States mail, air mail, postage prepaid.

CERTIFICATE OF SERVICE

Attorney’ for"Defendants-Appellees

17.