WILLIAM W SCHWARZER, District Judge:
Sias, who prevailed below (appearing in propria persona), seeks reversal of several rulings by the trial court which, among other things, denied reinstatement and full back pay. The trial court determined that Sias was discharged in violation of Title VII in retaliation for his opposition to alleged acts of racial discrimination by the City of Los Angeles.
Sias entered the employ of the City Demonstration Agency (CDA), an agency of the City of Los Angeles established under the Model Cities Act, in June of 1971. While employed at the CDA, Sias was a member of an affirmative action group which sought qualified Mexican-Americans for CDA positions. Sias was concerned that an insufficient number of Mexican-Americans held executive positions with the CDA, and that Mexican-Americans were not well represented in administrative positions at the CDA Central Office. In late July of 1971, Sias was promoted. The promotion was rescinded the next day, however, following the discovery of a misrepresentation in Sias' application. Subsequently, Sias was suspended for five days for "going over his superiors' heads" by writing a letter to HUD complaining about the rescinding of his promotion.
On May 19, 1972, Sias wrote to Charles Frankel, Regional Administrator for HUD, complaining of a deficiency in the number of Mexican-American employees at the CDA. Sias was discharged on June 21, 1972, on the stated ground that the letter to Frankel violated the "anti-politicking" policy of the CDA which prohibited employees from registering complaints with federal or local agencies or officials without first obtaining authorization from a CDA administrator.
Sias filed a charge with the EEOC in August, 1972. The Commission issued a right to sue letter in October, 1975, and this action was filed in December of that year, approximately three years and six months after Sias' discharge.
Did the Trial Court Err in Finding That Appellant's Discharge Violated Title VII?
In its cross-appeal, the City urges a reversal of the trial court's determination that Sias' discharge constituted a violation of 42 U.S.C. § 2000e-3(a) on the ground that actual discrimination had not been proved.
The trial court found that Sias' discharge had racial implications in that Sias, a Mexican-American, was discharged because of his insistence that he be promoted, his persistence in urging that the CDA employ more Mexican-Americans, and his support for the planning of programs which would be helpful to the housing and social problems encountered by Mexican-American people. It concluded that his discharge resulted from the racially discriminatory practices of the CDA. The trial court did not expressly find, however, that the CDA practices which Sias opposed were, in fact, violations of Title VII. The issue thus presented is whether a section 2000e-3(a) violation requires a finding that the employment practice complained of was in fact a Title VII violation.
Section 2000e-3(a) provides, in part, as follows:
This section contains two different clauses known, respectively, as the "participation" and the "opposition" clause. See, Schlei
The considerations controlling the interpretation of the opposition clause are not entirely the same as those applying to the participation clause. The purpose of the latter is to protect the employee who utilizes the tools provided by Congress to protect his rights. If the availability of that protection were to turn on whether the employee's charge were ultimately found to be meritorious, resort to the remedies provided by the Act would be severely chilled. See, Pettway v. American Cast Iron Pipe Co., supra, 411 F.2d at 1004-1007.
The opposition clause, on the other hand, serves a more limited purpose. Moreover, it is more narrow by its terms, being limited to opposition to "any practice made an unlawful employment practice." Arguably, its protection could be said to be limited to cases where the employer has in fact engaged in an unlawful employment practice. Such a narrow interpretation, however, would not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation or informal adjustment of grievances. We agree with the views expressed by the court in Hearth v. Metropolitan Transit Commission, 436 F.Supp. 685, 688-689 (D.Minn.1977):
The same interpretation has been adopted by the EEOC. See, also, Doe v. AFL-CIO, 405 F.Supp. 389 (N.D.Ga.1975) aff'd., 537 F.2d 1141 (5th Cir. 1976); Schlei and Grossman, supra, 428-429. It is consistent with a liberal construction of Title VII to implement the Congressional purpose of eliminating discrimination in employment.
The trial court found that Sias had been discharged for writing a letter to the Regional Administrator of HUD complaining about hiring practices and job conditions. The court further found the discharge to have racial implications because Sias complained of discrimination against him and other Mexican-Americans in employment and promotion. Although the court made no explicit finding that Sias'
Did the Trial Court Err in Finding That It Could Not Order Reinstatement?
Sias contends, and the City concedes,
In an action under 42 U.S.C. § 2000e, it is within the discretion of the trial court to order reinstatement of a wrongfully discharged employee. Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975). The case must therefore be remanded for consideration of the reinstatement issue.
Did the Trial Court Err in Limiting Its Award of Back Pay?
Sias seeks back pay for a period beginning in September 1965. However, 42 U.S.C. § 2000e-5 specifically provides that back pay shall not accrue from a date more than two years prior to the filing of the EEOC charge, filed in this case in August, 1972. The trial court could have awarded back pay for a period of approximately four and one-half years covering the period from June 21, 1972, the date of Sias' discharge, through January 18, 1977, the date of judgment. It concluded, however, that the circumstances of this case justified an award of back pay for a period of only two and one-half years following the wrongful discharge. The issue thus presented is whether the trial court exceeded the limits of its discretion.
Although an award of back pay in a Title VII action is within the discretion of the trial court,
The burden of proving a failure to mitigate damages in an employment discrimination suit is on defendant. Kaplan v. Intern. Alliance of Theatrical, etc., 525 F.2d 1354, 1363 (9th Cir. 1975). To satisfy this burden, defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i. e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position. See Kaplan v. Intern. Alliance
The trial court concluded that "after his discharge Sias spent only minimal efforts to mitigate damages by seeking other comparable employment and largely devoted his time and talents to the furtherance of the instant lawsuit." In the absence of findings conforming to the Kaplan standard, it cannot be determined whether the court applied that standard in concluding that Sias' efforts to mitigate had been minimal. Remand on this issue is therefore required. On remand, the City should be afforded an opportunity, if it desires, to sustain its burden of proving that suitable employment was available for Sias but that he failed to make reasonable efforts to obtain it.
The remaining claims raised by Sias and the City's cross-appeal have been considered and found to be without merit.
The appeal is remanded for further proceedings consistent herewith.