Shirley Lea, Romona Pinnix and Annie Tinnin v. Cone Mills Corporation, Shirley Lea, Romona Pinnix and Annie Tinnin v. Cone Mills Corporation ( 1971 )

PER CURIAM:

The Equal Employment Opportunities provisions of the Civil Rights Act of 1964 declare, in apposite part, Title VII, section 703, 42 U.S.C. § 2000e-2:

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

At the suit of Shirley Lea, Romona Pinnix and Annie Tinnin, for themselves and all other persons similarly situated, the United States District Court for the Middle District of North Carolina found the statute was breached during. 1965-66 by Cone Mills Corporation, chartered in North Carolina and operating textile mills there. Its business, concededly, comes within the statute. The action is proper in all aspects. 42 U.S.C. § 2000e-5(e).

The delinquencies' were imputed to the Eno plant. Complainants, all Negro women, asserted that Cone Mills was breaking the law by refusing to employ pei'sons of their race and sex, although it hired white female and Negro male workers.

The District Court enjoined the company’s persistence in such deportment and, empowered by 42 U.S.C. § 2000e-5(g), ordered compliance. However, it declined to grant plaintiffs’ additional claims for backpay and counsel fees, which are allowable under the Act in the discretion of the Court.

For logical sequence, we discuss in inverse order the points of argument as they were urged on this review. First we notice the District Judge’s determination of violations of the Act, questioned by Cone Mills on cross-appeal. In our appraisal, adequate grounds for this conclusion are outlined in the District Judge’s written opinion, Lea v. Cone Mills Corporation, 301 F.Supp. 97 (1969). Enough evidence, suffice it to say, warrants this declaration of illegality.

Plaintiffs appeal the disallowance of backpay and counsel fees. An epitome of the evidence and the Court’s findings with respect to these two items were crisply stated by the District Judge:

“Since it is clearly apparent that when plaintiffs applied for employment at defendant’s Eno Plant on September 2, 1965, their primary motive was to test defendant’s employment practices rather than to seek actual employment, and since there has been no showing whatever that defendant has since employed any females, either Negro or white, possessing plaintiffs’ education, background, skill and work experience, and since no vacancy of any type existed on September 2, 1965, plaintiffs are not entitled to recover back pay from September 2, 1965, or counsel fees. The fact that no vacancy existed on September 2, 1965, does not, however, preclude plaintiffs from maintaining this action, since Negro females were not considered for employment at that time. The order will apply prospectively only, but will be sufficient to effectively eliminate all discriminatory practices with respect to future female applicants for employment.” (Accent added.) 301 F.Supp. at 102.

This finding is unassailable as “clearly erroneous”, F.R.Civ.P. 52(a), and justifies refusal of the compensation demand.

However, the claim for counsel fees is not so fragile. In our evaluation the record upholds this prayer. Plaintiffs prevailed on the merits. They not only obtained, an injunction against unfair employment practices but also opened the way for employment of Negro women in the Cone Mills plant. True, specific employment was not sought, and even if the application was solely a predicate for this suit, these facts ought not defeat the claim for attorneys’ fees. This pronouncement upon their rights, and the requirement of Cone Mills to observe them in the future, were ordered in implementation of the Equal Employment Opportunities Act. Plaintiffs should not be denied attorneys’ fees merely because theirs was a “test case”.

The circumstances of this litigation put it squarely under the discipline of Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed. 2d 1263 (1968). What the Court there said in respect to Title II of the Civil Rights Act is equally apt to Title VII:

“When a' plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunc-tive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

“It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. Because no such circumstances are present here, the District Court on remand should include reasonable counsel fees as part of the costs to be assessed against the respondents. * * * ” (Footnotes omitted.) 390 U.S. at 402-403, 88 S. Ct. at 966-967.

With this parallel before us, it is unquestionable that the District Court erred in its refusal to decree counsel fees. This was a misdirection of the trial judge’s discretion. See section 706 of the Act, 42 U.S.C. § 2000e-5(k). The order of the District Court will be approved in all other parts. The case is remanded for ascertainment of the sum to be awarded the plaintiffs by way of costs and attorneys’ fees.

Affirmed in part and vacated in part.