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Sullivan v. Commonwealth of Pennsylvania Department of Labor and Industry

decided: October 26, 1981.



Before Seitz, Chief Judge, and Adams and Garth, Circuit Judges.

Author: Garth


This appeal requires us to decide whether a plaintiff, whose counsel's efforts in prosecuting her Title VII suit were a material factor in her ultimately obtaining the relief sought not in the Title VII action itself, but in an arbitration proceeding, may be awarded attorneys' fees restricted to the Title VII efforts of her counsel.*fn1 We hold that the district court erred in refusing to authorize attorneys' fees in these circumstances.


In March, 1977, Anna Sullivan, a Rehabilitation Counselor I in the Bureau of Vocational Rehabilitation (BVR) of the Commonwealth of Pennsylvania's Department of Labor and Industry, was passed over for promotion to the position of Psychological Services Associate II in favor of a male co-worker. The next month, Sullivan, believing that she had been discriminated against on the basis of her sex, asked her union, Pennsylvania Social Services Union Local 668, SEIU (the "union"), to file a grievance on her behalf pursuant to the nondiscrimination clause of its collective bargaining agreement with BVR. Two months later, in June, 1977, Sullivan, through privately retained counsel, filed a charge of sex discrimination with the United States Equal Employment Opportunity Commission (EEOC) pursuant to section 706(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(b).

During the spring of 1977, the union processed Sullivan's grievance through various stages of the contractual grievance process without success. The union was uncertain as to the strength of Sullivan's grievance because it was unable to obtain from BVR a specific statement of the criteria the Bureau had used in making its promotion decision. When, in July, 1977, the union received a final denial of the grievance from BVR, it ceased activity on the grievance pending the outcome of the EEOC proceedings. App. at 16.

In the meantime, the efforts of Sullivan's retained counsel spurred on the EEOC inquiry. Her counsel assisted the EEOC in uncovering substantial pertinent information. See Sullivan v. Bureau of Vocational Rehabilitation, 504 F. Supp. 582, 583 (E.D.Pa.1980). On June 30, 1978, the EEOC concluded that there was reasonable cause to believe that BVR had engaged in an unlawful employment practice under Title VII.

The EEOC's determination "served as a prod to the (union) to carry Sullivan's grievance forward to arbitration." Id. at 583. In December, 1978, the union filed a demand for arbitration of Sullivan's grievance. As the union's counsel stated in an affidavit filed in the instant proceeding, which action seeks only attorneys' fees:

Ms. Sullivan's case appeared to be meritorious, in large part because of the work performed by (her counsel) during the investigation of Ms. Sullivan's EEOC charge, and because of the EEOC's determination in Ms. Sullivan's favor. Had it not been for (Sullivan's counsel's) development of the record during the EEOC investigation, the Union might well have overlooked the meritorious aspect of the case .... However, the development of the case at the EEOC level pointed out to the Union that there was a strong claim of sex discrimination ....

App. at 12.

Meanwhile, on November 21, 1978, after receipt of a notice of right to sue, Sullivan commenced the instant action under Title VII and 42 U.S.C. § 1983. During the fall and winter of 1978-79, Sullivan's counsel proceeded with discovery and case preparation in the Title VII action. As a result of her discovery requests, Sullivan's counsel obtained BVR employment records that demonstrated that Sullivan's performance evaluations were superior to those of the male co-worker who was promoted ahead of her. Using these documents and the materials from Sullivan's EEOC file, Sullivan's counsel prepared a case outline detailing each of the claims in the case, and setting out the manner in which she planned to prove the facts supporting each element. In April, 1979, she met with the union's counsel to make this work product available to him as he prepared for Sullivan's arbitration hearing. App. at 27. In addition, since the same witnesses Sullivan's counsel planned to depose in connection with the Title VII action were scheduled to testify in the upcoming arbitration proceeding, Sullivan's counsel, in lieu of taking depositions in the federal suit, worked with the union's counsel to prepare questions for use in examining and cross-examining these witnesses at the arbitration. Id. at 27-28.

The arbitration hearing on Sullivan's grievance was held on May 24 and August 3, 1979. The union's counsel acknowledged that "(many) of (the) documents (used in the arbitration) would not have been immediately available to the Union but for the EEOC investigation and the discovery in the federal civil rights action," and noted that investigative and discovery work by Sullivan's counsel proved invaluable in preparing for the arbitration. Id. at 13. The union's counsel, in examining and cross-examining witnesses at the arbitration, worked directly from the list of questions developed in collaboration with Sullivan's counsel. Id. at 13-14.*fn2

In February, 1980, the arbitrator sustained Sullivan's grievance, concluding that she had been denied a promotion on the basis of her sex, and ordered that she be retroactively promoted with backpay and associated benefits. The union thereupon filed a petition with the Pennsylvania Labor Relations Board to enforce the arbitral award.

The arbitrator's award granted Sullivan all the relief she had sought in her Title VII suit except attorneys' fees. Thereafter, she moved in the district court, where her Title VII action was pending, for partial summary judgment*fn3 seeking such fees under section 706(k) of Title VII. Sullivan sought attorneys' fees for work done in connection with the EEOC proceedings and the Title VII litigation in federal court, not for work done in connection with the arbitration itself.

The district court denied her motion on December 24, 1980. The district court noted that in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980), the Supreme Court held that attorneys' fees could be recovered under section 706(k) for work done in state administrative and judicial proceedings that were a statutory prerequisite to Title VII relief in federal court. From this, the district court reasoned that because the arbitration in which Sullivan prevailed was an enforcement mechanism additional to, and not required by, Title VII's enforcement scheme, it was not an "action or proceeding under" Title VII within the meaning of section 706(k), and hence attorneys' fees under that section were not available. 504 F. Supp. ...

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