National Ass'n for the Advancement of Colored People v. Wilmington Medical Center, Inc.

POLLAK, District Judge,

concurring:

In Sullivan v. Bureau of Vocational Rehabilitation, 504 F.Supp. 582 (E.D. Pa. 1980), the question presented was whether plaintiff was entitled to an award of attorney's fees. The question arose under the following circumstances: Plaintiff, an employee of Pennsylvania’s Bureau of Vocational Rehabilitation, had sought promotion to a higher position. When a male fellow-employee was selected to fill the position, plaintiff asked her union to grieve the failure to promote her, contending that the selection of her fellow-employee was an act of sex discrimination violative of the governing collective bargaining agreement. Shortly thereafter, plaintiff, through her own retained counsel, filed a Title VII charge with the EEOC. When the grievance process produced no results, the union decided to delay further action while the EEOC considered the charge. In due course, the EEOC, assisted by the considerable information assembled by plaintiff’s counsel, (a) determined that there was reasonable cause to believe plaintiff’s non-promotion violated Title VII, and (b) issued a “right to sue” letter. Plaintiff thereupon filed suit in the district court and, the following month, the union demanded arbitration of plaintiff’s claim. The arbitration was handled by union counsel but the union presentation depended heavily not only on the record before the EEOC but on plaintiff’s counsel’s enterprising pre-trial discovery in the district court. The arbitrator found in the union’s favor and plaintiff was ordered reinstated with back pay — a result which mooted all of plaintiff’s Title VII prayers for relief except her application for attorney’s fees.

Sitting in the district court, I concluded that plaintiff was not entitled to attorney’s fees for the reason that the “action or proceeding” in which plaintiff had prevailed was not the title VII suit but an unrelated arbitration proceeding. The decision in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980) , authorizing an award of attorney’s fees where a claimant had prevailed “in state administrative and judicial proceedings that Title VII requires federal claimants to invoke,” id, at 56, 100 S.Ct. at 2027 (emphasis in original), seemed to me to preclude an award where a claimant had prevailed in a proceeding not part and parcel of the Title VII process.

This court reversed, stating that “the crucial question under sections 706(k) and 1988 is not whether a plaintiff actually prevailed in a Title VII or civil rights lawsuit, but whether the plaintiff may be deemed to have prevailed in the civil rights action because of the causal connection between the suit filed and the relief obtained.” Sullivan v. Commonwealth of Pennsylvania Department of Labor, 663 F.2d 443, 450 (1981), cert. denied, 455 U.S. -, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982) (emphasis in original).

A case can be made for the proposition that the application for attorney’s fees pressed by plaintiffs in the instant case is less warranted than the application sustained in Sullivan. Here, as Judge Hunter shows in paragraphs 7-12 of his opinion, the single element of relief to which plaintiffs can point — namely, the Supplemental Agreement1 — was perceived by plaintiffs as a woefully inadequate product of an administrative detour mandated by Chief Judge Latchum in the teeth of plaintiffs’ strong objections both before and after the fact. On the other hand, unwelcome as the Supplemental Agreement appeared to plaintiffs at the time, it was achieved as a consequence of this litigation. Thus I conclude that this case, like Sullivan, is one in which plaintiffs “may be deemed to have prevailed in the civil rights action because of the causal connection between the suit filed and the relief obtained.”2 For these *1173reasons, I join Judge Gibbons’ opinion and the judgment of reversal.

. I entirely agree with Judges Gibbons and Hunter that the plaintiffs’ success in establishing on appeal the doctrinal validity of their private-cause-of-action theory did not itself constitute a substantive victory warranting an award of attorney’s fees.

. Since Sullivan was decided by this court only a short time before the entry of the order and *1173opinion here under review, it seems not unlikely that the Sullivan decision was not brought to Chief Judge Latchum’s attention.