School District No. 20, Charleston, South Carolina v. Brown Brief of Interveners-Appellants

    No

In the Supreme Court of the United States
OCTOBER TERM , 1989

YELLOW FREIGHT SYSTEM, INC.,
Petitioner,

vs.
COLLEEN DONNELLY,

Respondent.

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

SEVENTH CIRCUIT

Jeffrey Ivan Pasek 
(Counsel of Record)

A lan M. L erner 
Cohen, Shapiro, Polisher, 

Shiekman and Cohen 
12 South 12th Street 
Philadelphia, Pennsylvania 19107 
(215) 922-1300

Steven J. Teplinsky 
Leonard R. K ofkin 
Fagel, H aber & Maragos 

140 South Dearborn, Suite 1400 
Chicago, Illinois 60603 
(312) 346-7500 

Attorneys for Petitioner

Of Counsel:
R onald E. Sandhaus 

10990 Roe Avenue 
Overland Park, Kansas 66207 
(913) 345-3000

E. L. M enden hall , I nc., 026 Cherry Street. Kansas City, Mo. 64106, (816) 421-3030



QUESTIONS PRESENTED

Whether federal courts have exclusive jurisdiction 
over claims arising under Title VII of the Civil Rights Act 
of 1964, as amended, 42 U.S.C. § 2000e et seq.

Whether a victim of employment discrimination is 
obligated to seek comparable employment, when such 
employment is available in the area, to be eligible for 
an award of back pay under § 706(g) of Title VII of the 
Civil Rights Act of 1964, as amended 42 U S C § 2000e 
5(g).



II

TABLE OF CONTENTS

Questions Presented ...........................................................  i
Table of Authorities ...........................................................  hi

Opinions Below ................................................................... 1
Jurisdiction ..........................................................................  2
Statutes Involved ...............................................................  3
Statement of the Case.........................................................  8
Reasons for Granting the Petition ..................................  11
Conclusion ............................................................................  19

Appendix Table of Contents:

1. United States Court of Appeals for the Seventh
Circuit Opinion filed April 28, 1989 ................ ..A -l

2. United States Court of Appeals for the Seventh
Circuit Order denying Petition for Rehearing 
with suggestion for Rehearing En Banc...........A-20

3. United States District Court for the Northern 
District of Illinois Judgment entered March 17,
1988 .........................................................................A-22

4. United States District Court for the Northern
District of Illinois Memorandum and Order 
entered March 17, 1988 .....................................A-24

5. United States District Court for the Northern 
District of Illinois Report and Recommenda­
tion of Magistrate entered December 10, 1987 ..A-26

6. United States District Court for the Northern
District of Illinois Memorandum and Order 
entered November 22, 1985 ................................A-35

7. Circuit Court of Cook County, Illinois, Agreed
Order entered August 9, 1985 .......................... A-40

h i

TABLE OF AUTHORITIES

Cases
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 
Bradshaw v. General Motors Corp., 805 F.2d 110 (3d

Cir. 1986) .........................................'...............................
Broum v. Reliable Sheet Metal Works, Inc., 852 F.2d

932 (7th Cir. 1988) .........................................................
Dyer v. Greij Bros., Inc., 755 F.2d 1391 (9th Cir. 1985) 
Eichman v. Fotomat Corp.. 759 F.2d 1434 (9th Cir. 1985) 
Carden v. Westinghouse Electric Corp., 850 F.2d 996

(3d Cir. 1988) .................................................................
Floca v. Homcare Health Services, Inc., 845 F.2d 108

(5th Cir. 1988) ...............................................................
Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989) .................. 14,
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) .......14, 15,

17,18,
Johnson v. Chapel Hill Independent School District, 

853 F.2d 375 (5th Cir. 1988) ......................................16,
Jones v. Intermountain Power Project, 794 F.2d 546

(10th Cir. 1986) ...............................................................
Long v. State of Florida, 805 F.2d 1542 (11th Cir.

1986), cert, denied, ....... U.S.........., 108 S.Ct. 78, 98
L.Ed.2d 41 (1988) .........................................................

McNasby v. Crown Cork & Seal Co., app. pending, 3d
Cir. No. 88-1893 .............................................................

Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985) ...............
Nanavati v. Burdette Tomlin Memorial Hospital, 857

F.2d 96 (3d Cir. 1988), cert, denied, ....... U.S..........,
109 S.Ct. 1528, 103 L.Ed.2d 834 (1989) ......................

Nord v. United States Steel Corp., 758 F.2d 1462 (11th 
Cir. 1985) ........................................................................

15

11

10
11
12

14

14
16
16,
,19

17

11

11

13
18

12

14



IV

Pirella v. Village of North Aurora, app. pending, 7th
Cir. No. 89-1231 .............................................................  13

Sangster v. United Air Lines, Inc., 633 F.2d 864 (9th
Cir. 1980), cert, denied, 451 U.S. 971 (1981) ............... 14

Southern Silk Mills, Inc. v. NLRB, 242 F.2d 697 (6th
Cir.), cert, denied, 355 U.S. 821 (1957) ......................  17

Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 1984) 
............................................................................................10, 11

Statutes

28 U.S.C. § 1291 ..................................................................  12
28 U.S.C. § 1292 ..................................................................  12
28 U.S.C. § 1441 ..................................................................  8
28 U.S.C. § 1254(1) ............................................................  1
42 U.S.C. § 1981 ..................................................................  16
42 U.S.C. § 1983 ..................................................................  17
42 U.S.C. § 2000e-5(f) ......................................................  3
42 U.S.C. § 2000e-5 ( f ) (2 )  ................................................. 12
42 U.S.C. § 2000e-5 ( f ) (4 )  ................................................  12
42 U.S.C. § 2000e-5 ( f ) (5 )  ................................................. 12
42 U.S.C. § 2000e-5(g) ......................................................  6
42 U.S.C. § 2000e-5(j) .......................................................7,12
111. Rev. Stat., Chapter 68, fl 1-101 et seq. (1983) ........... 8

Rules
Rule 53 F. R. Civ. P ............................................................ 12

Congressional Materials
110 Cong. Rec. 12722 (1964) .............................................  13
H.R. Rep. 914, 88th Cong., 1st Sess. at 29 (1963) ........... 13

Other Materials

Annual Report of the Director of the Administrative 
Office of the United States Courts 1988 ......................  11

No.

In the Supreme Court of the United States
OCTOBER TERM, 1989

YELLOW FREIGHT SYSTEM, INC., 
Petitioner, 

vs.
COLLEEN DONNELLY, 

Respondent.

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

SEVENTH CIRCUIT

Yellow Freight System, Inc. (“Yellow Freight” ) peti­
tions for a writ of certiorari to review the judgment in 
this case of the United States Court of Appeals for the 
Seventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the Seventh Circuit dated April 28, 1989 (A-l to A-19)1

1. References in the form (A -l to A -.......) refer to pages
of the Appendix. References in the form (T -.......) refer to pages
of the Transcript of Proceedings before the Magistrate on No­
vember 3, 1987.



2

is reported as 874 F.2d 402. In an unpublished order 
dated July 17, 1989, the United States Court of Appeals 
for the Seventh Circuit denied Yellow Freight’s Petition 
for Rehearing with Suggestion for Rehearing En Banc 
(A-20). The opinion of the United States District Court 

for the Northern District of Illinois entered March 17, 1988 
on the issue of mitigation of damages is reported at 682 
F. Supp. 374. The Report and Recommendation of the 
United States Magistrate (A-26 to A-34), entered 
December 10, 1987, is not reported. The opinion of the 
District Court entered November 22, 1985 on the issue of 
jurisdiction in Title VII actions (A-35 to A-39) is not 
reported. The order of the Circuit Court of Cook County, 
Illinois, dismissing plaintiff’s complaint with prejudice and 
continuing her contested motion for leave to file an 
amended complaint, entered August 9, 1985 (A-40), is 
not reported.

JURISDICTION

The judgment of the United States Court of Appeals 
for the Seventh Circuit was entered on April 28, 1989 
(A -l) and the Petition for Rehearing was denied on July 
17, 1989 (A-20). The jurisdiction of this Court is in­
voked pursuant to 28 U.S.C. § 1254(1).

3

STATUTES INVOLVED

1. Section 706(f) of Title VII of the Civil Rights 
Act of 1964, as amended ( “Title VII” ), 42 U.S.C. § 2000e- 
5 (f) provides as follows:

Civil action by Commission, Attorney General, or 
person aggrieved; preconditions; procedure; appoint­
ment of attorney; payment of fees, costs, or security; 
intervention; stay of Federal proceedings; action for 
appropriate, temporary or preliminary relief pending 
final disposition of charge; jurisdiction and venue of 
United States courts; designation of judges to hear 
and determine case; assignment of case for hearing; 
expedition of case; appointment of master.

(1) If within thirty days after a charge is filed 
with the Commission or within thirty days after ex­
piration of any period of reference under subsection 
(c) or (d) of this section, the Commission has been 
unable to secure from the respondent a conciliation 
agreement acceptable to the Commission, the Commis­
sion may bring a civil action against any respondent 
not a government, governmental agency, or political 
subdivision named in the charge. In the case of a 
respondent which is a government, governmental 
agency, or political subdivision, if the Commission 
has been unable to secure from the respondent a con­
ciliation agreement acceptable to the Commission, the 
Commission shall take no further action and shall 
refer the case to the Attorney General who may bring 
a civil action against such respondent in the appro­
priate United States district court. The person or 
persons aggrieved shall have the right to intervene 
in a civil action brought by the Commission or the



4

Attorney General in a case involving a government, 
governmental agency, or political subdivision. If a 
charge filed with the Commission pursuant to sub­
section (b) of this section is dismissed by the Com­
mission, or if within one hundred and eighty days 
from the filing of such charge or the expiration of 
any period of reference under subsection (c) or (d) 
of this section, whichever is later, the Commission has 
not filed a civil action under this section or the Attor­
ney General has not filed a civil action in a case in­
volving a government, governmental agency, or politi­
cal subdivision, or the Commission has not entered 
into a conciliation agreement to which the person 
aggrieved is a party, the Commission, or the Attorney 
General in a case involving a government, govern­
mental agency, or political subdivision, shall so notify 
the person aggrieved and within ninety days after 
the giving of such notice a civil action may be brought 
against the respondent named in the charge (A ) by 
the person claiming to be aggrieved or (B) if such 
charge was filed by a member of the Commission, by 
any person whom the charge alleges was aggrieved 
by the alleged unlawful employment practice. Upon 
application by the complainant and in such circum­
stances as the court may deem just, the court may 
appoint an attorney for such complainant and may 
authorize the commencement of the action without 
the payment of fees, costs, or security. Upon timely 
application, the court may, in its discretion, permit 
the Commission, or the Attorney General in a case 
involving a government, governmental agency, or 
political subdivision, to intervene in such civil action 
upon certification that the case is of general public 
importance. Upon request, the court may, in its dis­

5

cretion, stay further proceedings for not more than 
sixty days pending the termination of State or local 
proceedings described in subsections (c) or (d) of 
this section or further efforts of the Commission to 
obtain voluntary compliance.

(2) Whenever a charge is filed with the Com­
mission and the Commission concludes on the basis 
of a preliminary investigation, that prompt judicial 
action is necessary to carry out the purposes of this 
Act, the Commission, or the Attorney General in a 
case involving a government, governmental agency, 
or political subdivision, may bring an action for ap­
propriate, temporary or preliminary relief pending 
final disposition of such charge. Any temporary re­
straining order or other order granting preliminary 
or temporary relief shall be issued in accordance with 
rule 65 of the Federal Rules of Civil Procedure. It 
shall be the duty of a court having jurisdiction over 
proceedings under this section to assign cases for 
hearing at the earliest practicable date and to cause 
such cases to be in every way expedited.

(3) Each United States district court and each 
United States court of a place subject to the jurisdic­
tion of the United States shall have jurisdiction of 
actions brought under this subchapter. Such an ac­
tion may be brought in any judicial district in the 
State in which the unlawful employment practice is 
alleged to have been committed, in the judicial dis­
trict in which the employment records relevant to 
such practice are maintained and administered, or in 
the judicial district in which the aggrieved person 
would have worked but for the alleged unlawful em­
ployment practice, but if the respondent is not found 
within any such district, such an action may be



6

brought within the judicial district in which the re­
spondent has his principal office. For purposes of 
sections 1404 and 1406 of Title 28, the judicial district 
in which the respondent has his principal office shall 
in all cases be considered a district in which the ac­
tion may have been brought.

(4) It shall be the duty of the chief judge of 
the district (or in his absence, the acting chief judge) 
in which the case is pending immediately to designate 
a judge in such district to hear and determine the 
case. In the event that no judge in the district is 
available to hear and determine the case, the chief 
judge of the district, or the acting chief judge, as the 
case may be, shall certify this fact to the chief judge 
of the circuit (or in his absence, the acting chief judge) 
who shall then designate a district or circuit judge of 
the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated 
pursuant to this subsection to assign the case for 
hearing at the earliest practicable date and to cause 
the case to be in every way expedited. If such judge 
has not scheduled the case for trial within one hun­
dred and twenty days after issue has been joined, that 
judge may appoint a master pursuant to rule 53 of 
the Federal Rules of Civil Procedure.

2. Section 706(g) of Title VII, 42 U.S.C. § 2000e- 
5(g), provides as follows:

Injunctions; affirmative action; equitable relief; ac­
crual of back pay; reduction of back pay; limitations 
on judicial orders.

If the court finds that the respondent has inten­
tionally engaged in or is intentionally engaging in an

7

unlawful employment practice charged in the com­
plaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back 
pay (payable by the employer, employment agency, 
or labor organization, as the case may be, respon­
sible for the unlawful employment practice), or any 
other equitable relief as the court deems appropriate. 
Back pay liability shall not accrue from a date more 
than two years prior to the filing of a charge with 
the Commission. Interim earnings or amounts earn- 
able with reasonable diligence by the person or per­
sons discriminated against shall operate to reduce 
the back pay otherwise allowable. No order of the 
court shall require the admission or reinstatement 
of an individual as a member of a union, or the 
hiring, reinstatement, or promotion of an individual 
as an employee, or the payment to him of any back 
pay, if such individual was refused admission, sus­
pended, or expelled, or was refused employment or 
advancement or was suspended or discharged for 
any reason other than discrimination on account of 
race, color, religion, sex, or national origin or in 
violation of section 2000e-3(a) of this title.

3. Section 706(j) of Title VII, 42 U.S.C. § 2000e- 
(5) (j) provides as follows:

Appeals

Any civil action brought under this section and 
any proceedings brought under subsection (i) shall 
be subject to appeal as provided in sections 1291 
and 1292, Title 28.



8

STATEMENT OF THE CASE

This case was initially instituted in the Circuit Court 
of Cook County, Illinois on May 22, 1985. Asserting 
that Yellow Freight had wrongly refused to hire her 
for a job as a dock worker, plaintiff brought a two-count 
complaint alleging sex discrimination in violation only 
of the Illinois Human Rights Act (111. Rev. Stat., Chap­
ter 68, If 1-101 et seq. (1983)). Because plaintiff had 
not attempted to exhaust her administrative remedies, 
Yellow Freight filed a motion to dismiss the Complaint 
for lack of jurisdiction. Plaintiff then fought leave to 
file an amended Complaint.

On August 9, 1985, the Circuit Court entered an 
agreed order dismissing the Complaint with prejudice 
and continuing plaintiff’s contested motion for leave to 
file an amended Complaint (A-40). On August 14, 
1985, Yellow Freight removed the case to the United 
States District Court pursuant to 28 U.S.C. § 1441(b) 
and (c). On September 13, 1985, the District Court 
granted plaintiff leave to file an amended Complaint, 
and on September 20, 1985, plaintiff, for the first time, 
filed a Complaint alleging violations of Title VII. Yel­
low Freight’s motion to dismiss the amended Complaint 
for lack of jurisdiction was denied by the District Court. 
The District Court held that State Courts have concur­
rent jurisdiction over Title VII claims (A-35 to A-39).

Plaintiff first applied to Yellow Freight on Octo­
ber 26, 1982, at a time when the company was not hiring 
dock workers. The terminal manager informed plaintiff 
that the company was not hiring but that she would 
be the first person hired when the situation changed. 
Yellow Freight did not begin hiring dock workers until

9

February 8, 1983. The company admitted liability to 
plaintiff between February 8, 1983 and June 26, 1984, 
the date she was actually hired.

Yellow Freight’s backpay liability was tried before 
a magistrate. The magistrate found that plaintiff did 
not seek a job with any other trucking company al­
though several trucking companies besides Yellow Freight 
had facilities in the general area in which plaintiff was 
interested in working. Each of these companies hired 
dock workers during the relevant time period (A-28). 
One of those companies, which hired several women as 
dock workers, regularly advertised for dock workers in 
the Sunday Chicago Sun-Times. Plaintiff claimed that 
she read the want-ads in the Sun-Times, but did not 
apply for any job she saw advertised (A-27).

Plaintiff obtained a part-time job as an inventory 
checker in December, 1982 (A-27), before the first
date of Yellow Freight’s potential backpay liability. She 
worked at this job less than 750 hours over the next 
18 months. Plaintiff asked friends and neighbors about 
other jobs, but she did not register with the state job 
service. Plaintiff applied for a job with the Jewel food 
store where she shopped but did not apply for a job 
at the Dominicks food store in her neighborhood. During 
this period plaintiff called Yellow Freight only to be 
told that the company was not hiring at all, but was 
laying off employees. Plaintiff knew this was false as 
of March, 1983, but still took no action to look for a 
comparable position (T-33). Her only explanation was 
that she “ was determined to get on at Yellow Freight.” 
(T-27).

The magistrate concluded that “ The amount of dili­
gence shown by [plaintiff] in seeking work was not great.”



10

(A-29). Stating that “ the issue is close” (A-30), the magis­
trate relied upon the Seventh Circuit rule that working part- 
time satisfies the mitigation requirement. The magistrate 
concluded that Yellow Freight failed to carry its burden 
of proof that plaintiff failed to exercise reasonable dili­
gence in securing “other employment” during the period 
in question (A-30).

Agreeing that the facts present a close case (A-23), 
the District Court adopted the magistrate’s report. It re­
jected Yellow Freight’s argument that plaintiff has an 
obligation to seek substantially equivalent employment. 
Instead, the Court held that “ [t]he real question is whether 
a plaintiff has demonstrated a continuing commitment to 
be a member of the labor force.” (A-24).

On appeal, the Seventh Circuit affirmed the award of 
backpay. Overruling its recent decision in Brown v. Reli­
able Sheet Metal Works, Inc., 852 F.2d 932 (7th Cir. 1988), 
the Court of Appeals held that State courts have concur­
rent jurisdiction over Title VII claims. In a footnote, the 
Court acknowledged that its decision created a conflict 
with Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 1984).

On the issue of mitigation, the Seventh Circuit held 
that Yellow Freight must prove that plaintiff was not rea­
sonably diligent “ in seeking other employment.” (A-17). 
The Court held that when a plaintiff is denied initial em­
ployment, he or she can satisfy the mitigation require­
ment by “ demonstrating a continuing commitment to be 
a member of the work force.”  (A-18). The Court then 
applied its own rule that “part-time work in another em­
ployment field satisfies the mitigation requirement.” (A- 
18) (citations omitted). The Seventh Circuit did not 
address Yellow Freight’s contention that plaintiff was re­
quired at least initially to seek employment substantially 
equivalent to the job she was denied.

11

REASONS FOR GRANTING THE PETITION

A. There Is A Split Among The Circuits On 
An Issue Of Widespread Importance As To 
Whether Federal Courts Have Exclusive Juris­
diction Over Title VII Claims.

Before this case, every other Court of Appeals to 
consider the question held that jurisdiction over Title VII 
claims is lodged exclusively in the federal courts. Brad­
shaw v. General Motors Corp., 805 F.2d 110, 112 (3d Cir. 
1986); Dyer v. Greif Bros., Inc., 755 F.2d 1391, 1393 (9th 
Cir. 1985); Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th 
Cir. 1984); Jones v. Intermountain Power Project, 794 F.2d 
546, 553 (10th Cir. 1986); Long v. State of Florida, 805
F.2d 1542, 1546 (11th Cir. 1986), cert, denied, ....... U.S.
......., 108 S.Ct. 78, 98 L.Ed.2d 41 (1988). The Seventh
Circuit is alone among the Courts of Appeals in its view 
that State courts share concurrent jurisdiction over Title 
VII claims.

This issue has extraordinary importance for the ad­
ministration of the Civil Rights Act. Until the conflict 
among the circuits is resolved, there will be substantial 
confusion regarding the forum in which discrimination 
claims can be brought.2

2. According to the Administrative Office of the United 
States Courts, excluding prisoner petitions, there were 68,015 
private civil suits asserting federal question jurisdiction filed 
in the federal district courts for the 12 months ending June 30, 
1988. Of these, 7,169, or 10.5 percent, were civil rights employ­
ment cases. Annual Report of the Director of the Administra­
tive Office of the United States Courts 1988, Table C 2. While 
some of these cases may have been filed under other civil rights 
statutes than Title VII, the statistics suggest that a significant 
portion of the workload of the federal district courts is made 
up of Title VII actions.



12

There will also be widespread and unnecessary litiga­
tion over application of claim preclusion principles to Title 
VII actions. In most jurisdictions, preclusion depends 
upon whether the “ court rendering the prior judgment . . . 
had jurisdiction to decide the subsequent claim.” Nanavati 
v. Burdette Tomlin Memorial Hospital, 857 F.2d 96 (3d 
Cir. 1988), quoting Eichman v. Fotomat Corp., 759 F.2d 
1434, 1437 (9th Cir. 1985) (Kennedy, J. concurring). Un­
til this court resolves whether state courts have jurisdic­
tion over Title VII claims, the lower courts will not have 
the guidance they need in order to apply claim preclusion 
principles properly. *

Unless the Seventh Circuit’s decision is reversed, it 
will disrupt the delicately balanced remedial scheme of 
Title VII as envisioned by Congress and interpreted by 
the Equal Employment Opportunity Commission.3 When 
Congress considered Title VII, both the supporters and op­
ponents understood that enforcement was to be in the 
federal district courts. As Senator Humphrey explained 
in presenting the Dirksen substitute which eventually be­
came § 706 of the Act:

3. Section 706(f)(4), 42 U.S.C. § 2000e-5(f) (4), requires 
the chief judge of the district or the circuit “ immediately to 
designate a judge in such district to hear and determine the 
case.” The designated judge is required by § 706(f)(5 ), 42 
U.S.C. § 2000e-5(f) (5), “ to assign the case for hearing at the 
earliest practicable date and to cause the case to be in every way 
expedited.” If the case is not scheduled for trial within 120 
days after issue has been joined, the judge may appoint a mas­
ter “pursuant to Rule 53 of the Federal Rules of Civil Procedure.”  
Id. Under § 706(f)(2 ), 42 U.S.C. § 2000e-5(f) (2), injunctive 
relief must be issued in accordance with Rule 65. Section 706(j), 
42 U.S.C. § 2000e-5(j), requires that appeals be brought as 
provided by 28 U.S.C. §§ 1291 and 1292. If the States have 
concurrent jurisdiction over Title VII actions, one must either 
ignore these provisions or assume that Congress intended to 
regulate the procedures and priorities of the state courts and 
administrative agencies.

13

[I] f the Commission has not been able to secure 
voluntary compliance within 30 days . . . the Commis­
sion must so notify the person aggrieved, who may 
within 30 days bring his own suit in federal court for 
enforcement of his rights.

110 Cong. Rec. 12722 (1964). Other passages of the con­
gressional debate, all of which were ignored by the 
Seventh Circuit, make it clear that Congress “ preferred 
that the ultimate determination of discrimination rest 
with the Federal judiciary.” H.R. Rep. 914, 88th Cong., 
1st Sess. at 29 (1963) (separate views of Rep. McCulloch).

The Equal Employment Opportunity Commission is 
also of the view that federal courts have exclusive juris­
diction over Title VII suits. See amicus briefs filed by the 
EEOC in McNasby v. Crown Cork & Seal Co., app. pend­
ing, 3d Cir. No. 88-1893, and Pirella v. Village of North 
Aurora, app. pending, 7th Cir. No. 89-1231.

By thrusting state courts into the business of adjudi­
cating Title VII claims, the Seventh Circuit has not only 
violated the Congressional intent, but it has sown the seeds 
for years of unnecessary procedural litigation. Because 
of the importance of the issue to the administration of a 
vital federal statute, this Court should grant a writ of 
certiorari to resolve the conflict among the circuits as to 
whether federal courts have exclusive jurisdiction over 
Title VII claims.



14

B. The Decision In This Case Has Created A 
Split Among The Circuits Over Whether A 
Victim Of Employment Discrimination Must 
At Least Initially Seek Comparable Em ploy­
ment, When It Is Available, To Be Eligible 
For An Award Of Back Pay.

A Title VII claimant “ is subject to the statutory 
duty to minimize damages set out in § 706(g). This 
duty, rooted in an ancient principle of law, requires the 
claimant to use reasonable diligence in finding other suit­
able employment.” Ford Motor Co. v. EEOC, 458 U.S. 
219, 231 (1982) (footnotes omitted). Five Courts of 
Appeals have held that “A Title VII plaintiff is required 
to mitigate damages by being reasonably diligent in 
seeking employment substantially equivalent to the posi­
tion he or she lost.” Nord v. United States Steel Corp., 
758 F.2d 1462, 1470 (11th Cir. 1985).4 This line of cases 
is consistent with this Court’s teaching that claimants 
are not required to take other “ lesser or dissimilar work” 
while their claims are pending. Ford Motor Co., 458 
U.S. at 231 n. 14.

The Seventh Circuit, however, has created a different 
rule. It is one which imposes a much lighter obligation

4. Accord, Ford v. Nicks, 866 F.2d 865, 873 (6th Cir. 1989) 
(Plaintiff “ was under a duty only to look for and accept em­
ployment substantially equivalent to the job from which she was 
discriminatorily fired.” ); Carden v. Westinghouse Electric Corp., 
850 F.2d 996, 1005 (3d Cir. 1988) ( “To cut off a back pay 
award, defendants must prove that the plaintiff did not exer­
cise reasonable diligence in seeking employment substantially 
equivalent to the employment he lost.” ) ; Floca v. Homcare 
Health Services, Inc., 845 F.2d 108, 111 (5th Cir. 1988) ( “The 
duty to mitigate requires only that the claimant accept sub­
stantially equivalent employment.” ); and Sangster v. United Air 
Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980), cert, denied, 451 
U.S. 971 (1981).

15

on claimants. Under the test developed by the Seventh 
Circuit, it is sufficient for a Title VII claimant to be 
reasonably diligent merely by “seeking other employ­
ment” (A-17) without regard to whether that employ­
ment is substantially equivalent to the position that claim­
ant lost. The Seventh Circuit is alone in its position 
that a plaintiff who is denied initial employment can 
satisfy the mitigation requirement by doing no more 
than “demonstrating a continuing commitment to be a 
member of the work force.” (A-18). As a corollary
principle, the Seventh Circuit holds that “part-time work 
in another employment field satisfies the mitigation re­
quirement” even when the plaintiff fails to pursue equiv­
alent full-time jobs which are available in the same 
area (A-18).

As this Court noted in Ford Motor Co., backpay is 
not an automatic or mandatory remedy under § 706(g), 
but it is one which may be invoked in the light of sound 
discretion. The courts must exercise their equitable 
power in this area “ ‘in light of the large objectives of 
the Act’ and in doing so must be guided by ‘meaningful 
standards’ enforced by ‘thorough appellate review.’ ” 458 
U.S. at 226, quoting, Albemarle Paper Co. v. Moody, 422 
U.S. 405, 416 (1975). In addition to preventing employ­
ment discrimination, one of the large objectives of Title 
VII is to eliminate the “years of underemployment or 
unemployment” that the victims of discrimination suffer 
during the delays of litigation. Ford Motor Co., 458 
U.S. at 229. Any rule applied to the mitigation of dam­
ages which does not encourage claimants to avoid both 
underemployment and unemployment is not in keeping 
with the statutory goal. By not requiring Title VII 
claimants to seek substantially equivalent employment.



16

the rule applied by the Seventh Circuit subsidizes their 
underemployment and thereby “disserves Title VII’s pri­
mary goal of getting the victims of employment discrim­
ination into the jobs they deserve as quickly as possible.”
Id. at 241.

The Seventh Circuit’s approach to part-time employ­
ment puts it squarely in conflict with recent decisions 
by both the Fifth and Sixth Circuits. In Ford v. Nicks,
866 F.2d 865 (6th Cir. 1989), the plaintiff had been ter­
minated in 1973 from her position as an assistant pro­
fessor of education in violation of Title VII. After 1974, *
she no longer pursued academic employment opportu­
nities even though several positions were open at nearby 
state universities. Instead, she obtained a real estate 
broker’s license and helped her husband, on and off, 
in his business. She also worked briefly for another 
real estate company and the Tennessee Energy Authority. 
These actions would clearly have met the Seventh Cir­
cuit’s test that a claimant “can satisfy the mitigation 
requirement by demonstrating a continuing commitment 
to be a member of the work force.” (A-18). Never­
theless, the Sixth Circuit denied plaintiff backpay, while 
ordering reinstatement. Applying the rule requiring a 
claimant to seek substantially equivalent employment, 
the Sixth Circuit held that plaintiff’s failure to apply 
for available teaching positions “ clearly constituted a 
failure to exercise reasonable care and diligence required 
of her . . . .” 866 F.2d at 875.

Also directly contrary to the Seventh Circuit’s ap­
proach is Johnson v. Chapel Hill Independent School 
District, 853 F.2d 375 (5th Cir. 1988), in which the plain­
tiff had been terminated from her teaching position on 
the basis of race in violation of 42 U.S.C. §§ 1981 and

17

1983. During the period from 1980 to 1986, she did not 
apply for any teaching positions. The defendant pre­
sented evidence that from 1983 to 1986, there were teach­
ing positions available in the area for which plaintiff 
was qualified. During these years, plaintiff was working 
part-time in a grocery store that she and her husband 
owned, although she did not draw a salary. Had the 
Fifth Circuit followed the Seventh Circuit’s flat rule 
regarding part-time employment, plaintiff would have 
been found to have demonstrated a continuing commit­
ment to be a member of the work force and thus to 
have adequately mitigated her damages. Instead, the 
Fifth Circuit held that the plaintiff “did not exercise 
reasonable diligence to minimize her damages . . . .” Id. 
at 383.

It is not disputed in this case that after being denied 
a job as a dock worker with Yellow Freight, plaintiff did 
not seek employment with any other trucking company. 
During the relevant time period, other trucking companies 
in the area were actively hiring dock workers and paying 
them the same wage rate under the same union contract 
that covered dock workers at Yellow Freight. The Seventh 
Circuit excused plaintiff from any obligation to apply for 
these jobs based on three factors. First, the Court relied 
upon its rule that part-time work is adequate to satisfy 
the mitigation requirement. As noted above, the test 
applied by the Seventh Circuit is not in keeping with this 
Court’s teachings in Ford Motor Co. and is in conflict with 
the rulings of five other Courts of Appeals.5 Second, the

5. It should be noted that this is not a case in which a 
claimant initially sought to obtain substantially equivalent em­
ployment but subsequently “ lowered her sights” when further 
search of substantially equivalent work proved futile. Cf. South­
ern Silk Mills, Inc. v. NLRB, 242 F.2d 697, 700 (6th Cir.), cert, 
denied, 355 U.S. 821 (1957).



18

Court noted that plaintiff continued to inquire about a 
position at Yellow Freight. Indeed, the only reason plain­
tiff gave for not applying elsewhere for dock worker jobs 
was because she “was determined to get on at Yellow 
Freight.” (T-27). The Seventh Circuit’s reliance on 
plaintiff’s continued interest in Yellow Freight puts it in 
conflict with the Eleventh Circuit which has held that a 
claimant does not satisfy the mitigation requirement by 
continuing to express an interest in obtaining the job 
previously denied. The plaintiff’s duty to mitigate her 
damages was “not fulfilled by a readiness to accept only 
the job sought with the defendant. The plaintiff must 
be available and willing to accept substantially equivalent 
employment elsewhere.” Miller v. Marsh, 766 F.2d 490, 
492 (11th Cir. 1985). Finally, the Seventh Circuit found 
that plaintiff “ continued to be assured by Mr. Casey that 
she would be the first person hired when a position be­
came available.” (A-18). This finding is clearly erro­
neous and did not receive the “thorough appellate review” 
required by Ford Motor Co., 458 U.S. at 226.®

In every Title VII case, the parties must be concerned 
over the standard to be applied in determining whether 
the plaintiff has adequately mitigated his or her damages. * •

6. Rather than receiving encouraging responses that she
• would soon be hired, plaintiff testified to exactly the opposite 

(T -33):
The Court: I had two questions. When you would

call—I have forgotten his name.
The Witness: Mr. Casey.
The Court: Mr. Casey during all this time, what would

he say to you?
The Witness: He would say to me that they weren’t

hiring at all; that he was laying off.
Plaintiff knew that this information was false as of March, 1983, 
but still failed to seek comparable work elsewhere until June 26, 
1984, when she was hired by Yellow Freight (T-33).

19

“The question has considerable practical significance be­
cause of the lengthy delays that often attend Title VII 
litigation.” Ford Motor Co., 458 U.S. at 221 (footnote 
omitted). In light of the importance of the issue and the 
fact that the circuits are split, this is an appropriate case 

t for this Court to establish a “meaningful standard” for 
the guidance of the lower courts. Id. at 226.

CONCLUSION
For the foregoing reasons, the petition for writ of 

certiorari should be granted.
Respectfully submitted,

Jeffrey Ivan Pasek
(Counsel of Record)

A lan M. Lerner 
Cohen, Shapiro, Polisher,

Shiekman and Cohen 
12 South 12th Street 
Philadelphia, Pennsylvania 19107 
(215) 922-1300

Steven J. T eplinsky 
Leonard R. K ofkin 
Fagel, Haber & Maragos 

140 South Dearborn, Suite 1400 
Chicago, Illinois 60603 
(312) 346-7500 

Attorneys for Petitioner

Of Counsel:
Ronald E. Sandhaus 

10990 Roe Avenue 
Overland Park, Kansas 66207 
(913) 345-3000



A-l

APPEN DIX

APPEN DIX 1

(Decided April 28, 1989)

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

Nos. 88-1733 and 88-1797

Colleen D onnelly, 
Plaintiff-Appellee, 
Cross-Appellant,

v.
Y ellow Freight System , Inc., 

Defendant-Appellant, 
Cross-Appellee.

Appeal from the United States District Court for the 
Northern District of Illinois, Eastern Division.

No. 85 C 7195—James B. Moran, Judge.

A rgued D ecember 2, 1988—Decided A pril 28, 19891

Before Bauer, Chief Judge, Cummings, and Easter- 
brook, Circuit Judges.

1. Pursuant to Circuit Rule 4000, this opinion has been 
circulated to all the active members of the court because it over­
rules Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932 
(7th Cir. 1988), and creates a conflict with Valenzuela v. Kraft, 
Inc., 739 F.2d 434 (9th Cir. 1984). No judge in regular active 
service has requested a hearing en banc.



A-2

Bauer, Chief Judge. This case is before us on appeal 
from a judgment by the district court entered in favor 
of plaintiff, Colleen Donnelly. Plaintiff brought suit 
against her employer, defendant Yellow Freight System, 
Inc., on charges of sex discrimination pursuant to Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et 
seq. For the following reasons, we affirm the district 
court’s decision on all issues, except the court’s order 
denying an award of prejudgment interest.

I .

Donnelly applied for a dock-worker position at Yellow 
Freight on October 26, 1982. Although Yallow Freight 
was not hiring at the time, Neil Casey, the terminal man­
ager, told her that when Yellow Freight began hiring again, 
Donnelly would be the next dock worker hired. About the 
same time, Donnelly also applied for jobs at Jewel Food 
Stores and Retail Inventory Service Co. (RIS). In De­
cember of 1982, RIS hired Donnelly on a part-time basis 
and she worked there through June of 1984.

Despite securing a job at RIS, Donnelly called Casey 
weekly to inquire about job openings at Yellow Freight. 
Although Yellow Freight began hiring dockworkers again 
in February of 1983, Casey not only continued to tell Don­
nelly that Yellow Freight was not hiring, but also falsely 
reported that Yellow Freight was laying off dockworkers. 
Eighteen months later, Donnelly was finally hired by Yel­
low Freight.

In March of 1985, Donnelly filed charges with the 
Equal Employment Opportunity Commission (EEOC). In 
her first charge she alleged that the defendant discrimi­
nated against her on the basis of sex by failing to offer 
her employment as a dock worker. In her second charge

A-3

she alleged that the defendant discriminated against her 
on the basis of sex subsequent to her hiring at Yellow 
Freight. (This charge was later dismissed on summary 
judgment and no appeal was taken.) On March 15, plain­
tiff received a Notice of Right to Sue Within 90 Days from 
the EEOC.

On May 22, 1985, within the 90-day limitation period, 
plaintiff filed a two-count complaint against the defendant 
in the Circuit Court of Cook County, alleging sex dis­
crimination in violation of the Illinois Human Rights Act 
(IHRA), 111. Rev. Stat. ch. 68, fl 1-1-1 et seq. (1983). On 
June 28, 1985, defendant filed a motion to dismiss plain­
tiff’s complaint for failure to exhaust state administrative 
remedies as required by the IHRA. On July 17, Donnelly 
sought leave to file an amended complaint, appending pro­
posed Counts III and IV. Counts III and IV realleged 
the same facts as in Counts I and II of the original com­
plaint but were premised under Title VII. Although Don­
nelly had not yet filed the motion to amend her complaint, 
Yellow Freight objected to the proposed motion. On Au­
gust 9, Donnelly actually filed her motion to amend the 
complaint. On the same date, the circuit court entered 
an agreed order dismissing her original complaint with 
prejudice and continuing her contested motion for leave to 
file an amended complaint. This order essentially resulted 
in a lawsuit without a complaint. For a discussion of the 
problems attending the agreed order, see n.10, infra.

On August 14, 1985, Yellow Freight filed a petition to 
remove the case to the United States District Court. The 
district court granted Donnelly’s motion to file an amended 
complaint on September 13, and the complaint was filed 
on September 20. Yellow Freight moved to dismiss the 
complaint on the grounds that it was filed more than 90



A-4

days after the EEOC issued the right to sue letter. The 
court denied the defendant’s motion.

On November 3, 1987, the case was tried before a 
United States magistrate pursuant to the consent of the 
parties. See 28 U.S.C. § 636(c). Because Yellow Freight 
admitted liability for sex discrimination, only the issues 
of back pay and mitigation of damages were tried. The 
magistrate concluded that Donnelly had exercised reason­
able diligence in her search for other employment and 
awarded her damages equal to the amount she would have 
earned had she been hired by Yellow Freight on February 
8, 1983, less her wages earned at RIS. The magistrate 
also found that plaintiff was entitled to salary increases 
adopted at Yellow Freight during the efghteen-month 
period in which she was not hired, and that she was en­
titled to pension fund contributions and prejudgment in­
terest. The district court adopted the magistrate’s recom­
mendations and findings, except that it did not award pre­
judgment interest to the plaintiff.

Yellow Freight then brought this appeal. First, Yel­
low Freight alleges that the 90-day limitations period 
within which to filed a Title VII complaint expired before 
Donnelly filed her federal claim. Second, Yellow Freight 
alleges that the district court abused its discretion in find­
ing that Donnelly acted with reasonable diligence to miti­
gate her damages. On cross-appeal, Donnelly argues that 
the district court abused its discretion by failing to award 
her prejudgment interest. We reject both of Yellow 
Freight’s arguments and we agree with Donnelly’s con­
tention that she is entitled to prejudgment interest.

A -5

II.

Before reaching the merits of this case, we first must 
decide whether Donnelly’s Title VII cause of action was 
timely filed. In order to bring the action, Donnelly had 
to file suit against Yellow Freight within 90 days of the 
issuance of the EEOC’s Notice of Right to Sue. Although 
Donnelly filed her state claim in state court within the 
90-day window, she did not file her Title VII claim in 
federal court within the requisite time period. Yellow 
Freight’s first argument is that any filing in state court, 
whether before or after the close of the 90-day window, 
cannot toll the limitation period because Title VII juris­
diction is exclusively federal. Therefore, defendant con­
tinues, plaintiff did not effectively file her complaint until 
she filed it in federal court on September 20, 1985, which 
was more than six months after the EEOC issued the 
Notice of Right to Sue. Second, defendant argues that 
even if federal and state courts share jurisdiction over 
Title VII claims, plaintiff’s amended claim does not relate 
back to her original claim because her original complaint 
was brought under the IHRA.

A.

Unless Congress includes in the statute an explicit 
statement vesting jurisdiction exclusively in federal court, 
state courts may presume that they share jurisdiction con­
currently with the federal courts over a federal cause of 
action. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 
477-78 (1981). This is a presumption deeply imbedded in 
the history of our federal system. See The Federalist No. 
82 (A. Hamilton). Because federal courts are courts of 
limited jurisdiction, see Sheldon v. Sill, 1 How. 441 (1850) 
state courts must stand ready to vindicate federal rights, 
subject to review by the Supreme Court, should Congress



A-6

decide not to confer jurisdiction upon the federal courts 
to hear a particular federal claim. See Gulf Offshore, 453 
U.S. at 478 n.4 (citing Martin v. Hunter’s Lessee, 1 Wheat 
304, 346-48 (1816)). The presumption in favor of concur­
rent jurisdiction may be rebutted only by an “unmistak­
able implication (of exclusive jurisdiction) from legisla­
tive history,” id. at 478 (citing California v. Arizona, 440 
U.S. 59, 66-68 (1979)), or by a “disabling incompatibility 
between the federal claim and state-court adjudication.” 
Id. at 477-478 (citing Charles Dowd Box Co. v. Courtney, 
368 U.S. 502, 507-508 (1962); see also Claflin v. Houseman, 
93 U.S. 130, 136 (1876)).

Because Congress failed to address this issue explicitly, 
Yellow Freight urges us to find that the ‘presumption of 
concurrent jurisdiction is not applicable to Title VII and 
that the circumstances warrant a finding of exclusive fed­
eral jurisdiction. In so doing, Yellow Freight asks us to 
adopt the Ninth Circuit’s conclusion in Valenzuela v. 
Kraft, Inc., 739 F.2d 434 (9th Cir. 1984), and hold that 
both the statutory language and the legislative history of 
Title VII raise the unmistakable implication of exclusive 
federal jurisdiction.2 See also Bradshaw v. General Motors 
Corp., 805 F.2d 110, 112 (3rd Cir. 1986) (Title VII juris­
diction is exclusively federal);3 Dickinson v. Chrysler 
Corp., 456 F. Supp. 43 (E.D. Mich. 1978) (same). But see

2. In reaching its conclusion, the Valenzuela court also 
relied on dictum from the Supreme Court’s opinion in Lehman 
v. Nakshian, 453 U.S. 156, 164 n.12 (1981). However, the Leh­
man dictum concerned the allocation of jurisdiction in favor of 
the federal district courts and to the exclusion of the Court of 
Claims. As such, it does not lend support to the Ninth Circuit’s 
conclusion.

3. Although the Bradshaw court stated that Title VII juris­
diction was exclusively federal, it provided no reasoning to 
support its conclusion. Therefore, we do not find this case to 
be persuasive authority.

A-7

Bennum v. Board of Governors of Rutgers, 413 F. Supp. 
1274 (D. N.J. 1976) (Title VII jurisdiction is concurrent); 
Greene v. County School Bd., 524 F. Supp. 43 (E.D. Va. 
1981) (same).4

We decline the invitation to join in the conclusion 
of the Valenzuela court. The Valenzuela court found 
Congress’ grant of jurisdiction to the federal district 
courts, see 42 U.S.C. § 2000e-5(f) (3) ( “ [ejach United 
States district court . . . shall have jurisdiction of actions 
brought under this subchapter” ), and the accompanying 
procedural directives,5 to be a persuasive indication of 
exclusive federal jurisdiction. However, “ the mere grant 
of jurisdiction to a federal court does not operate to 
oust a state court from concurrent jurisdiction over the 
cause of action.” Gulf Offshore, 453 U.S. at 479 (citing 
United States v. Bank of New York & Trust, 296 U.S. 
463 (1936)). See also Charles Dowd, 368 U.S. at 506; 
Galveston, H. & S.A.R. Co. v. Wallace, 223 U.S. 481 (1912). 
Moreover, the legislative history of Title VII does not 
persuade us that Congress intended jurisdiction over the 
statute be exclusively federal. The Valenzuela and Dick­
inson courts found it significant that the history con­

4. This circuit has yet to squarely address whether juris­
diction over actions brought pursuant to Title VII is exclusively 
federal. However, the reasoning of an earlier decision of this 
circuit, Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932 
(7th Cir. 1988), assumes that Title VII jurisdiction is exclu­
sively federal. We now overrule the Brown decision. For a 
further discussion of Brown see infra.

5. See 42 U.S.C. §20005-5(j ) ( “ Any civil action brought 
under this section . . . shall be subject to appeal as provided 
in sections 1291 and 1292, Title 28” ) (Sections 1291 and 1292 
govern the jurisdiction of the United States Court of Appeals). 
See also 42 U.S.C. §2000e-5(f) (2) ( “ any temporary restraining 
order or other order granting preliminary or temporary relief 
shall be issued in accordance with Rule 65 of the Federal Rules 
of Civil Procedure” ).



A-8

tained references to federal courts but not to state courts.6 * 
Valenzuela, 739 F.2d at 436 (quoting Dickinson, 456 F. 
Supp. at 46). But because Congress has the power to 
grant or deny jurisdiction to the federal district courts, 
the only significance that can be garnered from these 
references is that Congress intended to grant jurisdiction 
to the federal courts.

On the other hand, the logical consequences of other 
passages from the legislative history lead to the conclu­
sion that jurisdiction over Title VII is shared between 
the state and federal courts. Title VII was never in­
tended to be the exclusive remedy for employment dis­
crimination. Alexander v. Gardner-Denver Go., 415 U.S. 
36, 48-49 (1974); see also 110 Cong. Rec. 7207 (1964); 
Interpretive Memorandum of Senators Clark and Case, 
110 Cong. Rec. 7214 (1964). In addition to recognizing 
the force of other laws designed to combat employment 
discrimination, Congress also wanted to encourage resort 
to state employment discrimination laws. See 110 Cong. 
Rec. 12707, 13081, 13087. An examination of the prin­
ciples of res judicata and collateral estoppel applicable 
to Title VII actions reveals that this intent would be 
frustrated if jurisdiction over Title VII was exclusively 
federal. Title 28 U.S.C. § 1738 requires federal courts 
to afford the same full faith and credit to state court 
judgments that would apply in the state’s own courts. 
Thus federal courts must give preclusive effect to a pre­
vious state court judgment under state employment dis­

6. The 1963 House Report states that “ the district courts 
of the United States . . . are given jurisdiction of actions brought 
under this title.” H.R. Rep. No. 914, 88th Cong., 1st Sess. 29
(1963), reprinted in 1964 U.S. Code Cong. & Ad. News 2355, 
2405; accord H.R. Rep. No. 238, 92nd Cong., 1st Sess. 12 (1971); 
reprinted in 1972 U.S. Code Cong. & Ad. News 2137, 2147.

A-9

crimination laws. Kremer v. Chemical Construction 
Corp., 456 U.S. 461 (1982); Wakeen v. Hoffman House, 
Inc., 724 F.2d 1238 (7th Cir. 1983); Unger v. Consol­
idated Foods Corp., 693 F.2d 703 (7th Cir. 1982), cert, 
denied, 460 U.S. 1192 (1983). If Title VII jurisdiction 
was exclusively federal, a plaintiff would have to bring 
suit in federal court to preserve all available remedies 
for employment discrimination. Such a situation effec­
tively precludes state court adjudication of state-created 
rights, thereby discouraging the creation and develop­
ment of state employment discrimination laws, contrary 
to Congressional intent.

Although there is little in the legislative history of 
Title VII to rebut the presumption of concurrent juris­
diction, we must also examine whether there exists a 
“disabling incompatibility” arising from state court ad­
judication of a Title VII claim. To resolve this ques­
tion, the Supreme Court has suggested an examination 
of such factors as the desirability of uniform interpre­
tation of the statute, the expertise of federal judges in 
federal law, and the assumed greater hospitality of fed­
eral courts to peculiarly federal claims. Gulf Offshore, 
453 U.S. at 483-84. See also Redish & Muench, Adju­
dication of Federal Causes of Action in State Court, 75 
Mich. L. Rev. 311, 329-35 (1976); Note, Exclusive Juris­
diction of Federal Courts in Private Civil Actions, 70 
Harv. L. Rev. 509, 511-15 (1957). We find that none 
of these factors compels a finding of exclusive federal 
jurisdiction.

There is no reason to believe that concurrent juris­
diction will lead to the arbitrary development of Title 
VII law. There already exists a great volume of Title 
VII law developed by the Supreme Court and lower



A-10

federal courts and the states are bound by the Suprem­
acy Clause to follow federal law.7 Although it is true 
that at this point in time federal judges may have de­
veloped greater expertise with respect to Title VII claims, 
there is no reason to presume state courts are not com­
petent to adjudicate these issues. Such a notion over­
looks the obvious; most states have enacted employment 
discrimination laws, which are routinely litigated in state 
courts, and state court judges are accordingly quite fa­
miliar with discrimination issues.

In addition, we find no basis for the assumption that 
state courts might not faithfully enforce Title VII. Given 
that state courts exercise concurrent jurisdiction over 
civil rights actions brought under 42 U.S.C. § 1983, Mar­
tinez v. California, 444 U.S. 277 n.7 (1980), it is hard 
to imagine that state courts would not be hostile to 
section 1983 actions, but would be hostile to Title VII 
actions. Similar, although not identical, policy issues 
underlie both statutes. Second, most states have enacted 
employment discrimination laws. Whether enacted by 
state government or federal government, the same policy 
issues underlie employment discrimination laws. Thus 
from a theoretical viewpoint, state courts are as ame­
nable to Title VII claims as federal courts. In addition, 
any concern either party may have over the fairness of 
the forum is easily remedied. A plaintiff can file the

7. Even when federal law is not clearly developed or pre- 
empts state law, jurisdiction may be exercised concurrently 
For example, even though §301 (a) of the Labor Management 
Relations Act of 1947, 29 U.S.C. §185, authorizes federal courts 
to fashion a body of federal law for the enforcement of collec-
“ X fT T c^ io '?g agreements> Textile Workers v. Lincoln Mills, 
353 U.S. 448 (1957), state courts exercise jurisdiction over claims 
brought under §301 (a) concurrently with the federal courts. See 
Charles Dowd, 368 U.S. 502.

A -ll

complaint in federal court and a defendant can remove 
the complaint to federal court.8

Finally, we find support for our conclusion that the 
state courts have concurrent jurisdiction with the federal 
courts over Title VII actions from Congress’ decision to 
vest state courts with concurrent jurisdiction over claims 
brought under the Age Discrimination in Employment 
Act of 1967 ( “ADEA” ), a statute predicated upon Title 
VII in many ways. See 29 U.S.C. § 626(c)(1) ( “ [a]ny 
person aggrieved may bring a civil action in any court 
of competent jurisdiction for such legal or equitable re­
lief as will effectuate the purposes of this chapter . . .” ).» 
See also Lehman v. Nakshian, 453 U.S. 156, 164 n.12 
(1981). Both statutes seek to eradicate the evil of em­
ployment discrimination based upon membership in an 
identifiable group. Whereas Title VII is aimed at ending 
discrimination based upon race, color, religion, sex or 
national origin, the ADEA is directed toward ending dis­
crimination based upon age. The prohibitions of the

8. The opportunity to exercise removal jurisdiction also ex- 
PiainsT ®°”?e Supreme Court dictum which seems to suggest that 
™ eTTVI1 Jurisdiction is exclusively federal. See, e.g., Alexander, 
4i5 U.S. at 47 (lists state and local agencies, and federal courts, 
but not state courts as forums for enforcement); Kremer, 456 
U.S. at 468 (federal courts are “ entrusted with ultimate enforce­
ment responsibility” over Title VII actions).

t 9' Vn, on the other hand, provides that the United
States district courts shall have jurisdiction over claims brought 
“ B erth e  Act. Because the enforcement provisions of the ADEA 
29 U.S.C. §626, incorporate by reference most of the enforce- 

a.?r0vis*°ns of tlle Fair Labor Standards Act of 1938 ( “ the 
FLSA ) 29 U.S.C. § 201 et seq., we do not find the different 
jurisdictional language of Title VII and the ADEA significant. 
Among other things, the FSLA provides that an aggrieved per-
fon i ^ br o g, ca" , aCti°n.  in any court of comPetent jurisdiction. 29 U.S.C. § 216(b). Thus the different jurisdictional language 
is not the conscious result of an attempt to differentiate between 
jurisdiction over the ADEA and Title VII, but rather the result 
of the specific enforcement provisions of the FLSA.



A-12

ADEA generally follow those of Title VII and courts 
have relied on precedent under Title VII to interpret 
comparable ADEA provisions. See, e.g., Hodgson v. First 
Fed. Sav. & Loan Ass’n, 455 F.2d 818, 820 (5th Cir. 1972) 
(“ [w]ith a few minor exceptions the prohibitions of this 
enactment are in terms identical to those of Title VII 
. . . except that ‘age’ has been substituted for ‘race, color, 
religion, sex or national origin’ ” ). Commentators de­
scribe the ADEA as a hybrid of Title VII and the Fair 
Labor Standards Act of 1938 ( “FLSA” ): the substantive
provisions are drawn from Title VII, but the. remedies 
are those of the FLSA. See B. Schlei & P. Grossman, 
Employment Discrimination Law 485 (1983). To prove 
an ADEA claim, plaintiffs generally proceed under a 
disparate treatment theory (although in rare circum­
stances a disparate impact claim may be brought). The 
order and allocation of evidentiary burdens, and the stan­
dards of proof set forth in McDonnell Douglas Corp. v. 
Green, 411 U.S. 792 (1973), a Title VII disparate treat­
ment case, apply to claims brought under the ADEA. 
See Schlei & Grossman at 497-504. Given the extensive 
similarities between the two statutes, and the fact that 
state courts have jurisdiction over private-sector ADEA 
claims, it seems incongruous to assume that state courts 
are incompetent to adjudicate Title VII claims.

As an alternative to its attempt to overcome the 
presumption of concurrent jurisdiction, Yellow Freight 
contends Illinois courts do not have jurisdiction to hear 
federal Title VII claims as a matter of Illinois state law. 
For this unique proposition, Yellow Freight relies on the 
Illinois Supreme Court’s decision in Mein v. Masonite 
Corp.. 109 111. 2d 1, 485 N.E. 2d 312 (1985). In Mein, 
the plaintiff alleged that he was wrongfully discharged

A-13

from his job in violation of Illinois public policy. Be­
cause the plaintiff failed to allege a violation of the 
Illinois Human Rights Act (the IHRA), the Illinois Su­
preme Court dismissed his complaint for failure to state 
a cause of action. In reaching its conclusion, the court 
stated that the Illinois “courts have no jurisdiction to 
hear independent actions for civil rights violations.” 
Mein, 485 N.E. 2d at 315. Drawing upon this dictum, 
Yellow Freight argues that, at least in Illinois, state courts 
do not provide a forum for Title VII litigation and there­
fore jurisdiction lies exclusively with the federal courts.

We must reject this argument. Even if the Mein 
court did, in fact, intend to exclude Title VII claims 
from the Illinois courts,10 neither the Illinois courts nor 
legislature have the power to close state court doors to 
federal causes of action. When presented with a federal 
claim over which concurrent jurisdiction exists, state 
courts are under a “duty to exercise (jurisdiction)” over 
the federal claim. Mondou v. New York, N.H. & H.R.R., 
223 U.S. 1, 58 (1912) (state courts required to hear 
actions arising under the Federal Employers Liability 
Act), Testa v. Katt, 330 U.S. 386 (1947) (state courts 
must hear actions arising under the Emergency Price 
Control Act). Cf. Palmore v. United States, 411 U.S. 
389, 402 (1973) (“ this court unanimously held (in Testa)

10. Yellow Freight reads the Mein decision too broadly. 
At issue in Mein was whether the plaintiff could bring a state 
action, independent of the IHRA, for human rights violations. 
The court responded “ (i)t is clear that the legislature intended 
the (IHRA), with its comprehensive scheme of remedies and 
administrative procedures, to be the exclusive source for redress 
of alleged human rights violations . . .  the legislature intended 
. . .  to avoid direct access to the courts for redress of civil rights 
violations.” Mein. 485 N.E.2d at 315. The only issues before 
the Mein court were the scope and intent of the IHRA; the court 
did not purport to address issues of federal law.



A-14

that Congress could constitutionally require state courts 
to hear and decide Emergency Price Control Act cases 
involving the enforcement of federal penal laws” ). But 
see Brown v. Gerdes, 321 U.S. 178, 188 (1944) (only law­
making power of the State of New York has power to 
confer jurisdiction upon the New York state courts; Con­
gress does not have this power). See generally, Redish 
& Muench, supra. Once Congress has vested jurisdiction 
over a federal claim in the state courts, the state courts, 
including the courts of Illinois, are under a constitutional 
obligation to exercise jurisdiction.

We must address one final point. Donnelly did not 
exhaust her state administrative remedies before filing 
her state law claim in state court. In Brown v. Reliable 
Sheet Metal Works, Inc., 852 F.2d 932, 934-35 (7th Cir. 
1988), this court held that a state court filing did not 
toll the Title VII 90-day filing period because the plain­
tiff did not exhaust her state administrative remedies.
On the basis of Felder v. Casey, ....... U.S..........., 108
S. Ct. 2303 (1988), we now overrule Brown. In Felder, 
the Supreme Court held that a plaintiff who filed a 
section 1983 action in state court did not have to comply 
with the state’s notice of claim statute because the state 
statute conflicted both in purpose and effect with the 
remedial objectives of section 1983 and because enforce­
ment of the statute would produce different outcomes 
based solely upon whether the claim was asserted in 
state or federal court. Similar concerns are applicable 
here. This is not to say that a state could not impose 
an exhaustion requirement for claims based entirely on 
state law but here, of course, the foundation was Title 
VII and plaintiff complied with her requirement under 
that statute. Thus Donnelly’s failure to exhaust her state

A-15

administrative remedies does not defeat the tolling effect 
of her state court filing upon Title VII’s 90-day window.

Because we find that jurisdiction over Title VII 
claims is vested in both state and federal court, we re­
ject Yellow Freight’s argument that the state court filing 
did not toll the 90-day statute of limitations.

B.

Yellow Freight next argues that even if there exists 
concurrent jurisdiction, plaintiff’s complaint was not 
timely filed because her amended complaint, filed in 
federal court and alleging Title VII violations, does not 
relate back to her original complaint, filed in state court 
and alleging state law violations. Defendant claims that 
it did not have notice of the Title VII claims because 
the original complaint only alleged violations of the 
IHRA.

Yellow Freight misconstrues the standard by which 
an amended complaint is deemed to relate back to the 
date of the original complaint for the purposes of tolling 
the statute of limitations. Under Federal Rule of Civil 
Procedure 15(c), an amended complaint relates back to 
the date of the original pleading “whenever the claim 
. . . asserted in the amended pleading arose out of the 
conduct, transaction or occurrence set forth . . .  in the 
original pleading.” Contrary to defendant’s assertion, 
the same substantive legal theory need not be alleged 
in both complaints; rather the claims need only arise 
out of the same “conduct, transaction or occurrence.” 
Because the Title VII and IHRA claims are based upon 
identical facts and circumstances, plaintiff’s amended 
complaint clearly relates back to the date of the orig­
inal complaint.



A-16

The only problem with the above analysis is that the 
original complaint was dismissed before the amended 
complaint was filed. If we adhere to the terms of the 
agreed order entered by the state circuit court, there is no 
original complaint to which the amended complaint could 
relate back. However, the agreed order, drafted by the 
parties, utterly makes no sense.1' Because of this and be­
cause Yellow Freight will suffer no prejudice, we refuse 
to adhere to the literal consequences of the order. Any 
claim of prejudice by Yellow Freight is disingenuous. 
Yellow Freight received notice that an employment dis­
crimination claim was pending against it when plaintiff 
filed her state court claim in state court. See Sessions 
v. Rush State Hospital, 648 F.2d 1066, 1070 (5th Cir. 1981) 
(“ [s]o long as the Title VII claim is based on the discrimi­
nation originally charged in the complaint, allowing it to 
relate back . . . works no hardship on the defendant for 
the original complaint furnished adequate notice of the 
nature of the suit” ). Second, in view of the fact that the 
order continued the plaintiff’s contested motion, Yellow 
Freight cannot now argue that it thought that the threat 
of litigation had passed upon entry of the agreed order. 
Yellow Freight also sought removal of the lawsuit after

11. Under the agreed order, plaintiff’s original complaint 
was dismissed with prejudice, but her motion to file an amended 
complaint was continued. Problems abound in this order. To 
begin with, the original complaint should not have been dis­
missed with prejudice. The complaint was dismissed because 
plaintiff failed to exhaust her administrative remedies; in such 
a circumstance, the proper remedy is to dismiss the complaint 
without prejudice. Second, once the original complaint was 
dismissed, there was no point in continuing plaintiff’s motion 
to file an amended complaint. The amended complaint would 
have nothing to amend. Further, a future complaint alleging 
Title VII violations would have been barred by the doctrine of 
res judicata because the original complaint alleging IHRA vio­
lations was dismissed with prejudice.

A-17

the agreed order was entered.12 For these reasons, we 
find the plaintiff’s amended complaint relates back to the 
filing date of the original complaint and thus was timely 
filed.

III.

We may now address the substantive issues raised on 
this appeal. As already mentioned, Yellow Freight ad­
mitted liability and only the issue of damages was tried 
before the magistrate. Yellow Freight contends that the 
damage award should be reversed because Donnelly failed 
to exercise reasonable diligence in mitigating her damages. 
Title VII provides that “ [ijnterim earnings or amounts 
earnable with reasonable diligence by the person or per­
sons discriminated against shall operate to reduce the back 
pay otherwise allowable.” 42 U.S. § 2000e-5(g). The dis­
trict court adopted the magistrate’s finding that Donnelly 
did, in fact, exercise reasonable diligence. This court is 
bound by the district court’s award of damages unless that 
determination is clearly erroneous. Albemarle Paper Co. 
v. Moody, 422 U.S. 405 (1975); United States v. City of 
Chicago, 853 F.2d 572, 578 (7th Cir. 1988).

Because a plaintiff’s failure to mitigate damages is an 
affirmative defense, the employer bears the burden of 
proof on this issue. Wheeler v. Snyder Buick, Inc., 794 
F.2d 1228, 1234 (7th Cir. 1986). In order to succeed on its 
claim, Yellow Freight must prove that Donnelly was not 
reasonably diligent in seeking other employment, and that 
with the exercise of reasonable diligence there was a

12. This removal was defective because at the time of 
removal there was nothing to remove. Although removal was 
improper, this court is not deprived of jurisdiction because the 
district court actually had jurisdiction over the amended com­
plaint alleging Title VII violations. See Grubbs v. General 
Electric, 405 U.S. 699 (1972).



A-18

reasonable chance the employee might have found com­
parable employment, the earnings of which would offset 
any damages awarded. Id. Yellow Freight contends that 
Donnelly’s part-time employment with RIS does not dem­
onstrate reasonable diligence. We disagree.

When a plaintiff is denied initial employment, he or 
she can satisfy the mitigation requirement by demonstrat­
ing a continuing commitment to be a member of the work 
force. This circuit has held previously that part-time work 
in another employment field satisfies the mitigation re­
quirement. See, e.g., Wheeler, 794 F.2d 1228, Orzel v. 
City of Wauwatosa, 697 F.2d 743 (7th Cir. 1983), cert. 
denied, 464 U.S. 992 (1983); Sprogis v. United Airlines, 
Inc., 517 F.2d 387 (7th Cir. 1975). Not only did Donnelly 
accept a part-time job with RIS, she continued to inquire 
about a position at Yellow Freight and continued to be 
reassured by Mr. Casey that she would be the first person 
hired when a position became available. On the basis of 
these facts, the district court’s award of damages was not 
clearly erroneous and so stands.

The last issue left to decide is whether Donnelly is 
entitled to prejudgment interest on her damage award. 
The decision to grant or deny an award of prejudgment 
interest lies within the discretion of the district court. 
Taylor v. Philips Industries, Inc., 593 F.2d 783, 787 (7th 
Cir. 1979). In this case, the district court denied the mag­
istrate’s award of prejudgment interest because the issue 
of plaintiff’s diligence was “ close.” Whether or not an 
award of interest should be granted turns upon whether 
the amount of damages is easily ascertainable, not whether 
the issue of mitigation was “close.” See, e.g., Domingo v. 
New England Fish Co., 727 F.2d 1429, 1446, modified, 742 
F.2d 520 (9th Cir. 1984); Behlar v. Smith, 719 F.2d 950,

A-19

954 (8th Cir. 1983), cert, denied sub nom. Univ. of Arkan­
sas Bd. of Trustees v. Greer, 466 U.S. 958 (1984); EEOC 
v. Wooster Brush Co., 727 F.2d 566, 578 (6th Cir.), cert, 
denied, 467 U.S. 1241 (1984). Refusal to award interest 
based upon the reasoning articulated by the district court 
is an abuse of discretion. See Hanna v. American Motors 
Corp., 724 F.2d 1300, 1311 (7th Cir. 1984) (district court’s 
refusal to award prejudgment interest because liability 
question was “ close” was an abuse of discretion). Because 
Colleen Donnelly’s damages were readily ascertainable, 
the district court should have awarded her prejudgment 
interest on her damage award.

The decision of the district court is affirmed in all re­
spects except that the matter is returned to the district 
court with the direction to enter an order granting Don­
nelly appropriate prejudgment interest.

Affirmed in part, remanded for action consistent with 
this opinion.

A true Copy:

Teste:

Clerk of the United States Court of 
Appeals for the Seventh Circuit



A-20

APPENDIX 2

(Dated July 17, 1989)

UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT 

CHICAGO, ILLINOIS 60604 
July 17, 1989.

Before
Hon. WILLIAM J. BAUER, Chief Judge 

Hon. WALTER J. CUMMINGS, Circuit Judge 
Hon. FRANK H. EASTERBROOK, Circuit Judge

No. 88-1733 
88-1797

COLLEEN DONNELLY, 
Plaintiff-Appellee,
Cross-Appellant,

vs.
YELLOW FREIGHT SYSTEM, INC. 

Defendant-Appellant,
Cross-Appellee.

Appeal From the United States District Court for the 
. Northern District of Illinois, Eastern Division.

No. 85 C 7195, James B. Moran, Judge.

ORDER

On consideration of the petition for rehearing and 
suggestion for rehearing en banc filed in the above-titled 
cause by the defendant-appellant, cross-appellee, no judge

A-21

in regular active service has requested a vote on the sug­
gestion for rehearing, and all of the judges on the original 
panel have voted to deny rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for re­
hearing be, and the same is hereby DENIED.



A-22

APPEN DIX 3
(Dated March 17, 1988)

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

CASE NUMBER: 85 C 7195

COLLEEN DONNELLY
v.

YELLOW FREIGHT SYSTEMS, INC.

JUDGMENT IN A CIVIL CASE
□  Jury Verdict. This action came before the Court for 

a trial by jury. The issues have been tried and the 
jury has rendered its verdict.

[X ] Decision by Court. This action came to trial or hear­
ing before the Court. The issues have been tried or 
heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED
That we award basic backpay in the amount of $27,- 

656.61, retroactive seniority from February 8, 1983, $4,800.00 
in resulting additional wages, pension contributions of 
$3 976.00 (plus any penalties or interes required by the 
Funds), attorney’s fees of $21,876.00 and $718.72 in costs. 
(See Memorandum and Order dated 3-17-88)

H. Stuart Cunningham 
Clerk

/ s /  Willie A. Haynes 
Willie A. Haynes 

(By)  Deputy Clerk

Date March 17, 1988

A-23

APPEN DIX 4

(Dated March 17, 1988)

IN THE
UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 
EASTERN DIVISION

No. 85 C 7195

COLLEEN DONNELLY, 
Plaintiff,

vs.
YELLOW FREIGHT SYSTEMS, INC., 

Defendant.

MEMORANDUM AND ORDER

Magistrate Bucklo, in this action where sex discrimi­
nation was conceded, awarded backpay of $27,656.61, pre­
judgment interest and other relief, together with fees and 
costs. Defendant objects to the award, contending that 
it is clearly erroneous to find that plaintiff exercised rea­
sonable diligence in seeking other employment. The mag­
istrate thought it was a close case. This court concurs, 
but we do not believe that the finding is clearly erroneous 
or that the award of backpay is an abuse of discretion.

Central to defendant’s objections is the view that a 
plaintiff has an obligation to seek substantially equivalent 
employment, and that is not quite so. A plaintiff does 
not have an obligation to seek demeaning, distasteful or 
inferior employment, but she cannot sit idly by if sub­
stantially equivalent employment is readily available,



A-24

Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th 
Cir. 1980). That does not mean, however, that a plaintiff 
necessarily has failed to mitigate damages because she 
chooses to set her sights somewhat lower and seeks em­
ployment not as remunerative as the position from which 
she was excluded. The real question is whether a plain­
tiff has demonstrated a continuing commitment to be a 
member of the labor force. It is unlikely that defendant 
would have objected to the award if plaintiff had obtained 
full-time employment as an inventory-taker and was suing 
only for the wage differential. That alternate employ­
ment is mitigation, and a discriminatory employer cannot* 
use the concept that a plaintiff need not seek a lesser job 
to penalize one who did.

Defendant’s real objection is that plaintiff’s efforts 
to obtain a dockworker position at some other company 
were modest at best, even though such positions were 
available, and she did not obtain full-time alternate em­
ployment. Plaintiff occasionally checked want ads and 
occasionally inquired of friends. There were other com­
panies in the locality which employed dockworkers, but 
she did not directly approach them and she did not use 
available agency resources.

But those were not the extent of plaintiff’s efforts. 
She called defendant often and, the record indicates, re­
ceived periodic assurances that she would be hired. De­
fendant gave her reason to believe that employment with 
that company was just over the horizon and in the mean­
time she took a part-time job. Each inquiry demonstrated 
a commitment to the labor force, each rejection (when 
defendant was in fact employing) was a separate dis­
crimination, and the encouraging responses provided some 
justification for not going elsewhere. A plaintiff cannot

A-25

insist upon a specific position at a specific company. That 
means that a plaintiff cannot once be rejected, file a charge 
and sit at home until her charge is resolved. Such, how­
ever, were not the circumstances of this case.

We do, however, agree with the defendant in one 
respect. In one short paragraph the magistrate noted that 
plaintiff sought prejudgment interest and that such an 
award is discretionary, and then, without discussion, 
awarded interest. Once having concluded that plaintiff’s 
diligence “ was not great” and that the issue was “ close,” 
the magistrate, we believe, should not have awarded pre­
judgment interest. IVe otherwise overrule the objections 
and award basic backpay in the amount of $27,656.61, 
retroactive seniority from February 8, 1983, $4,800.00 
in resulting additional wages, pension contributions of 
$3,976.00 (plus any penalties or interest required by the 
Fund), attorney’s fees of $21,876.00 and $718.72 in costs.

/ s /  James B. Moran 
James B. Moran 

Judge, United States Dis­
trict Court

March 17, 1988.



A-26

APPENDIX 5

(Dated December 10, 1987)
IN THE

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT 

OF ILLINOIS 
EASTERN DIVISION

No. 85 C 7195

COLLEEN DONNELLY, 
Plaintiff,

v.
YELLOW FREIGHT SYSTEMS, INC., 

Defendant.

REPORT AND RECOMMENDATION OF 
MAGISTRATE ELAINE E. BUCKLO

This Title VII case was referred to me for trial pur­
suant to 42 U.S.C. §2000e-5(f)5 and the consent of the 
parties. Prior to trial, defendant Yellow Freight Systems, 
Inc. (“Yellow Freight” ) conceded liability. The case 
was tried on the issues of back pay, retroactive seniority 
and other benefits on November 3, 1987.

I. Findings of Fact

Federal jurisdiction is based on 42 U.S.C. §2000(e)-

5 (q) -
Plaintiff Colleen Donnelly ( “Donnelly” ) moved to 

Chicago Ridge, Illinois in June, 1982. She was married 
and had two children under five years of age. Her home 
is four blocks from Yellow Freight’s Chicago Ridge facility.

A-27

Donnelly wanted to work after her move. A neighbor 
told her that Yellow Freight was hiring dock workers and 
that it was a good company. Donnelly’s father was a truck 
driver and she is a large woman, capable of loading and 
unloading heavy materials. She contacted Yellow Freight, 
filled out an application dated October 26, 1982 and had 
an interview with the terminal manager, Neil Casey. He 
told her the company was not hiring but that she would 
be the first person hired when the situation changed. In 
fact, beginning in February 8, 1983, Casey hired numerous 
persons, all male. Not until Donnelly filed a complaint 
with the EEOC did Casey hire her, on June 26, 1984.

During the period Donnelly was waiting to be hired 
by Yellow Freight she called Casey often. Each time he 
told her that Yellow Freight was not yet hiring, that the 
company was laying off workers, but that she should 
keep calling.

Donnelly also read the Sunday Chicago Sun-Times 
want-ads but did not apply for jobs she saw advertised. 
She did apply for a job with the Jewel food store where 
she shopped. She also applied for and obtained a job 
with a company called Retail Grocery Inventory Service 
(“RGIS” ) in December, 1982. From that time until she 
went to work for Yellow Freight, she worked part-time 
at RGIS, working as many hours as she could as an in­
ventory checker. Her employer, Dave Picard, testified 
that she was a good worker and worked as many hours 
as were available. Time records showed she worked 216 
hours in the first quarter of 1983, 52.4 hours in the sec­
ond quarter, 49.7 hours in the third quarter, 52.2 hours 
in the fourth quarter of 1983, 230.6 hours in the first 
quarter of 1984 and 141.4 hours in the second quarter 
of 1984.



A-28

Donnelly asked friends and neighbors about other 
jobs. She did not, however, apply for a job at the 
Dominicks food store in her neighborhood. She also did 
not seek a job with any other trucking company. Sev­
eral trucking companies besides Yellow Freight have 
facilities in the general area in which Donnelly was 
interested in working. Each of these companies hired 
dock workers in 1983 and 1984. Only one, Roadway 
Express, employs women in that capacity. One other 
trucking company made an offer to a woman who did 
not accept the position.

If Donnelly had been hired on February 8, 1983, her 
wages, less income earned at RGIS, from that date 
through June 27, 1984, would have been $27,656.61. In 
addition, the pay difference through December 26, 1985 
for retroactive seniority would have meant $4,800.00 in 
additional wages. Pension fund contributions for the 
period February 8, 1983 through June 27, 1984 would 
have been $3,976.00. Health and welfare contributions 
would have been $4,272.80.

II. Conclusions of Law

Donnelly is entitled to retroactive seniority. But for 
Yellow Freight’s sex discrimination, her hire date would 
have been February 8, 1983. Therefore, that is the date 
on which her seniority should be based.

For the same reason, Donnelly is entitled to a judg­
ment requiring Yellow Freight to make pension contri­
butions on her behalf in the amount of $3,976.00 (plus 
any penalties or interest required by the Fund).

Since Donnelly did not actually work at Yellow 
Freight from February, 1983 through June, 1984, and has

A-29

presented no evidence to show what she paid for health 
insurance or in medical expenses that would have been 
covered by Yellow Freight’s health and welfare benefits 
during that time, she is not entitled to an award of ex­
penses for health or welfare benefits.

The major issue in this case is whether Donnelly 
took reasonable steps to mitigate her damages which 
would entitle her to a back pay award for the time 
during which Yellow Freight engaged in sex discrimina­
tion against her. Title VII states that “ [ijnterim earn­
ings or amounts earnable with reasonable diligence by 
the person . . . discriminated against shall operate to 
reduce the back pay otherwise available.” 42 U.S.C. 
§2000 (e )-5 (q). In the Seventh Circuit, once a plaintiff 
establishes the amount of damages, the burden shifts to 
the employer to prove that the plaintiff failed to mit­
igate those damages. Hanna v. American Motors Corp., 
724 F.2d 1300 (7th Cir. 1984). The employer must show 
both that “ the plaintiff failed to exercise reasonable 
diligence to mitigate his damages” and that “ there was 
a reasonable likelihood that the plaintiff might have 
found comparable work by exercising reasonable dili­
gence.” Id. at 1307. (Emphasis omitted.)

The amount of diligence shown by Donnelly in seek­
ing work was not great. She did, however, ask friends 
and neighbors about employment, inquired on numerous 
occasions at her local grocery store for employment and 
worked part-time for the entire period covered by the 
discrimination. A number of cases have held that this 
is enough. E.g., Wheeler v. Snyder Buick, Inc., 794 F.2d 
1228 (7th Cir. 1985) (temporary employment during four 
year period enough particularly where plaintiff’s former 
job, as a car salesman, was in a kind of work in which



A-32

Henely represents that his hourly rate is $150.00 and 
Salzetta’s rate is $90.00. Yellow Freight has not shown 
that these rates are unreasonable and in my experience 
they represent customary rates in the community. I find 
they are reasonable.

Subtracting six hours from Henely’s time and 15.5
hours from Salzetta’s time, Donnelly’s
titled to attorneys’ fees in the amount of $21 876.00 plus
$718.72 in costs (the amount of costs is not disputed).

I do conclude that a multiplier is not appropriate 
in this case. Donnelly was employed by Yellow Freig 
months before her attorneys began representing er. 
Accordingly, they had nothing to do with her being hired. 
T r i e r s  not difficult (indeed, Y e H o w ^ M c c n  
ceded liability) and the principle risk related to the 
factual problem of Donnelly's limited efforts to o b ^ n  
other employment. Donnelly's attorneys will be well 
compensated by the award of the hourly fees requested. 
No further award is justified.

In reviewing Donnelly's attorneys' fee petition,, I note 
that they have a contingency fee agreement with Don 
le i  y under which they are to receive forty percent of 
any amount awarded her in addition to any 
fees awarded by the court. I have already concluded 
that the court award will fully compensate her a tto  
neys. Contingency fee contracts are su Iec d ](|37 
pervision of the courts. Wheatley n  
1041 (2d Cir 1982); Krause v. Rhodes, 640 F.2d 214, 21 
ffito Cir 1981) The court in Wheatley held that pay- 
S t  of a court award of attorney's fees satisfies the 
attorney's claim for services under the ~ » ‘ “ 8an ,e 
contract. Wheatley t>. Ford, supra, 679 F.2d 1U 
T t h i s  case the fee award that I have recommended

A-33

exceeds forty percent of Donnelly’s recovery. I conclude 
that payment of any attorney fees by Donnelly under 
the contingent fee agreement in addition to the amounts 
to be paid by Yellow Freight would violate DR2-106 
of the Code of Professional Responsibility,2 which pro­
hibits attorneys from collecting clearly excessive fees.'* 1 2 3 4 5 6 7 8

/ s /  Elaine E. Bucklo 
Elaine E. Bucklo

United States Magistrate

2. DR-2-106 Fees for Legal Services
(A) A lawyer shall not enter into an agreement for, charge, 

or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of 

the facts, a lawyer of ordinary prudence would be left with 
a definite and firm conviction that the fee is excess of a rea­
sonable fee. Factors to be considered as guides in determining 
the reasonableness of a fee include the following.

(1) The time and labor required, the novelty and dif­
ficulty of the questions involved, and the skill requisite to per­
form the legal service properly.

(2) The likelihood, if apparent to the client, that the 
acceptance of the particular employment will preclude other 
employment by the lawyer.

(3) The fee customarily charged in the locality for 
similar legal services.

(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by 

the circumstances.
(6) The nature and length of the professional rela­

tionship with the client.
(7) The experience, reputation, and ability of the law- 

ygj- qp lawyers performing the service.
(8) Whether the fee is fixed or contingent.

3. Donnelly’s attorneys cite cases saying that a contingent 
fee agreement does not provide a ceiling on a court award of 
fees That is entirely different from saying that an attorney 
can have a court award (in whatever amount is deemed appro­
priate) and a 40 percent bite out of a damage or back pay 
award in addition thereto.



A-34

Dated: December 10, 1987
Written objections to any iinding of fact, 
law or the recommendation for disposit.on of this matter 
m ist L  filed with the Honorable James B. Moran widnn 
ten (10) days after service of this Report and Recom­
mendation. See Fed.R.Civ.P. 72(b). Failure to ob)ect 
will constitute a waiver of objections on appeal.

Copies have been mailed to:

JOHN J. HENELY 
John J. Henely, Ltd.
75 East Wacker Drive 
Suite 2200 
Chicago, IL 60601

Attorney for Plaintiff

LEONARD R. KOFKIN
Berman, Fael, Haber, Maragos & Abrams
140 South Dearborn Street 
Chicago, IL 60603

Attorney for Defendant

A-35

APPENDIX 6

(Dated November 22, 1985)

IN THE
UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT 
OF ILLINOIS 

EASTERN DIVISION

No. 85 C 7195
Before the Honorable George N. Leighton, 

U. S. District Judge

COLLEEN DONNELLY, 
Plaintiff,

v.
YELLOW FREIGHT SYSTEMS, INC., 

Defendant.

MEMORANDUM

On March 15, 1985, plaintiff received from the Equal 
Employment Opportunity Commission ( “EEOC” ), a notice 
of a right to sue for prior charges of sex discrimination 
she had filed with the EEOC against defendant. Pursuant 
to Section 706(f)(1) of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e-5(f) (1), she was notified that 
she must, within 90 days after the issuance of the right- 
to-sue letter, bring a civil action against the defendant, 
“ otherwise your right to sue is lost.” On May 22, 1985, 
within the 90-day limit, plaintiff filed a two-count com­
plaint in the Circuit Court of Cook County. Both counts 
of the complaint alleged discrimination in employment by



defendant on the basis of sex and were premised on vio­
lations of the Illinois Human Rights Act. Ill.Rev.Stat. ch. 
68, par. 1-101 et seq. (1983).

On June 28, 1985, defendant filed a motion to dismiss. 
Plaintiff filed a motion to amend the complaint on Au­
gust 9, 1985. The proposed amended pleading, although 
based on the same facts and circumstances as the original 
complaint, alleged violations of Title VII rather than the 
Illinois Human Rights Act. On that day, the circuit court 
entered an agreed order granting defendant s motion to 
dismiss the original complaint and setting a briefing sched­
ule on plaintiffs motion to file the amended complaint.

On August 14, 1985, defendant removed the action to 
federal court. This court granted plaintiff leave to file 
the amended complaint on September 13, 1985; plaintiff 
did so on September 20, 1985. The amended complaint 
consists of two counts alleging violations of Title VII. 
Defendant now moves to dismiss the amended complaint 
as untimely.

Defendant asserts two separate arguments in support 
of its conclusion that plaintiff’s Title VII claims are un­
timely, that is, not brought within the 90-day limitation 
period. First that any filing of a complaint in the circuit 
court, whether before or after the 90-day limit, was in­
effective in that federal courts have exclusive jurisdiction 
over Title VII actions. Therefore, defendant concludes, 
the only effective filing of plaintiff’s Title VII claims was 
on September 20, 1985, when plaintiff filed her amended 
complaint in this court; some six months after the right- 
to-sue letter was issued.

Second, defendant argues, even if the circuit court 
had jurisdiction over the Title VII claims, since the first 
complaint was based on the Illinois Human Rights Act

A-36 A-37

and not Title VII, it did not toll the 90-day limitation 
period in that § 706(f)(1) contemplates the filing of a 
Title VII claim, not one based on a state statute. Defen­
dant points out that the first time plaintiff attempted to 
amend her claim to a Title VII action in the state court 
was on August 9, 1985; a date well beyond the 90-day 
limit. Defendant therefore concludes that the claim is 
untimely.

As to the jurisdictional argument, the general rule is 
that unless Congress has made jurisdiction exclusive to 
the federal courts, state courts have concurrent jurisdic­
tion and may entertain actions based entirely on federal 
law. Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S. 473, 
477-78 (1981). In this regard, the court begins with the 
presumption that state courts have concurrent jurisdiction. 
That presumption can be rebutted only by “ an explicit 
statutory directive, by unmistakable implication from 
legislative history, or by a clear incompatibility between 
state-court jurisdiction and federal interests.” Id. at 478.

Nowhere in Title VII, neither in language of § 706 
( f) (1 ) ,  which gives rise to causes of action nor in 5 706 
( f) (3 ) ,  which invests this court with jurisdiction, is there 
an explicit directive from Congress reserving jurisdiction 
exclusively to the federal courts. Bennum v. Board of 
Governors of Rutgers, 413 F. Supp. 1274, 1279 (D.N.Y. 
1976); Greene v. County School Board of Henrico County, 
Virgina, 542 F. Supp. 43, 45 (E.D. Va. 1981).

The legislative history is likewise without clear indica­
tion of Congress’ intent to make Title VII jurisdiction 
exclusive. Bennum, 413 F. Supp. at 1279; Greene, 525 
F. Supp. at 45; Patzer v. Board of Regents of University 
of Wisconsin, 577 F. Supp. 1553, 1559 (N.D. Wis. 1984), 
rev’d on other grounds, 763 F.2d 855 (7th Cir. 1985);



A-38

contra, Valensuela v. Kraft, 739 F.2d 434, 436 (9th Cir. 
1984); Dickenson v. Chrysler Corp., 456 F. Supp. 43, 48 
(E.D. Mich. 1978). Further, there is certainly no clear 
incompatibility between state-court jurisdiction and fed­
eral interest in the area of employment discrimination. 
“ Title VII was designed to supplement, rather that sup­
plant, existing laws and institutions relating to employ­
ment discrimination.” New York Gaslight Club, Inc. v. 
Carey, 447 U.S. 54, 68 (1980); see also, Spence v. Lotting, 
512 F2d 93, 98 (10th Cir. 1975) and Bostedt v. Festivals, 
Inc., 569 F.'Supp. 503, 507 (N.D. 111. 1983) (holding that 
state courts have concurrent jurisdiction with federal dis­
trict courts over cases arising under 42 U.S.C. § 1983).

Based on the above, it is the courts’ opinion that state 
and federal courts have concurrent jurisdiction to hear 
claims under Title VII. Therefore, the issue remaining is 
whether the filing of the original complaint in the circuit 
court tolled the 90-day limitation period, even though it 
was based entirely on Illinois statutory law. Once again . 
the court begins its analysis with a presumption, that 
being that all doubts on jurisdictional timeliness questions 
are to be resolved in favor of trial. Caldwell v. National 
Association of Home Builders, 771 F.2d 1051, 1054 (7th 
Cir. 1985).

Federal Rules of Civil Procedure, Rule 15(c) provides 
that whenever a claim in an amended complaint arises 
out of the same conduct, transaction or occurrence set 
forth in the original complaint, the amendment relates 
back to the date the original complaint was filed. Since 
the claim in plaintiffs amended complaint, filed on Septem­
ber 20 1985, arose out of the same set of facts and cir­
cumstances ’as did the claim in the original complaint, 
the amendment relates back to May 22, 1985, the date 
of the filing of the original complaint. Therefore, plain-

A-39

tiff's Title VII claims were brought prior to the lapse of 
the 90-day limitation and were timely. See, Baldwin
County Welcome Center v. Brown, 446 U.S. 147, ....... n.3,
104 S. Ct. 1723, 1725 n.3 (1984).

Further, merely because plaintiff’s original complaint 
based her discrimination claim on Illinois statutory law 
rather that Title VII does not change the result. See, 
Paskuly v. Marshall Field & Co., 646 F.2d 1210, 1211 (7th 
Cir. 1981). The requirement for relation back under 
Rule 15(c) is not, as defendant suggests, that the sub­
stantive legal theory of the amended complaint be the 
same as the theory in the original complaint, but rather 
that the claims arise out of the same “conduct, transaction 
or occurrence.”

“So long as the Title VII claim is based on the dis­
crimination originally charged in the complaint, allowing 
it to relate back . . . works no hardship on the defendant 
for the original complaint furnished adequate notice of 
the nature of the suit.”  Sessions v. Rusk State Hospital, 
648 F.2d 1066, 1070 (5th Cir. 1981); see also, Smith v. 
Town of Clarkton, North Carolina, 682 F.2d 1055, 1060 
(4th Cir. 1982).

Here, the Title VII and Illinois Human Rights Act 
claims are based on identical facts and circumstances, 
therefore, relation back applies and the suit was timely 
filed. Accordingly, defendant’s motion to dismiss is de­
nied.

So ordered,

/ s /  George N. Leighton 
George N. Leighton 

United States District Judge

Dated: November 22, 1985



a '  »

a p p e n d i x  t

(Filed August 8, 1985)

IN THE
CIRCUIT COURT OF COOK COUNTY, 

ILLINOIS

NO. 85 L 11199

Colleen Donnelley  

v.
Y ellow  Freight System s

A-40

a g r e e d  o r d e r

. v-io hpard upon Defendant s This cause coming to be heard Pzi "iriT.it, a„d«.
parties being in Agreem ent,

It is hereby Ordered that:

1 D e fe n d a n t ’ s motion to dismiss is S ^ e d  and ‘ he  
Com plaint be and hereby is dismrssed with pre)

udice.
2 Plaintiff is granted until Septem ber 7, 1985 to 

ffe  a m em orandum  in support of her m ot.on for
To file an amended Com plaint, and D e ­

f i a n t  is granted until Septem ber 21, 1985 to

reply.

notice.

A-41

Name Berman, Fael, Haber, Maragos & Abrams
Attorney for Def.
Address 140 S. Dearborn 
City Chi
Telephone 580-2233 

#90041
JUDGE EDWIN M. DERMAN 

AUG. 9, 1985
CIRCUIT COURT

MORGAN M. FINLEY, CLERK OF THE 
CIRCUIT COURT OF COOK COUNTY