Internal Procedures, United States Court of Appeals for the District of Columbia Circuit, XII (2) (August 1, 1987); Fed.R.App.P. 41(a). Accordingly it suggests that the 1987 opinion has been voided and that even on those issues not appealed and thus not addressed by the Supreme Court, this Court is free to disregard the earlier holdings of the Court of Appeals and decide the case at this stage without reference to those holdings.
Price Waterhouse's position will not be sustained. The Court is not convinced that, in vacating its earlier "mandate," which directed this Court to proceed in accordance with the Court of Appeals' prior mandate, the Court of Appeals intended to vacate its judgment on issues that the Supreme Court did not address. The Court of Appeals' action is admittedly somewhat confusing. When the August 1989 mandate came down, the Court repeatedly pressed counsel to seek clarification from the Court of Appeals. The parties chose not to do so.
As a matter of common sense and judicial economy, the Court of Appeals had no reason to vacate aspects of the decision dealing with remedy which were analytically unrelated to the decision on liability. The law of the case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983). This doctrine is "an expression of good sense and wise judicial practice." Melong v. Micronesian Claims Commission, 207 U.S. App. D.C. 15, 643 F.2d 10, 17 (D.C.Cir. 1980). Here, where there are no new facts or intervening authority that would provide a basis for questioning crucial unappealed holdings by the Court of Appeals on the same factual record, the Court sees no logical basis for upsetting them.
Finally, it is worth noting that the Court of Appeals' decision in Hopkins has been repeatedly cited in this Circuit, in every case on the precise issue -- constructive discharge -- that Price Waterhouse now wants to avoid.
Although all but one of the opinions citing Hopkins was issued prior to the issuance of the Court of Appeals' August 1989 mandate, it would be difficult to argue that they are no longer good authority on the constructive discharge issue because a wholly distinct aspect of an opinion they cite was reversed by the Supreme Court. The Court also notes that the Court of Appeals declined to rehear Hopkins en banc, and no subsequent case in this Circuit has criticized the Court of Appeals' judgment in that case. If the unappealed findings by the Court of Appeals' reflect a legal standard for purposes of other cases, surely this Court is bound to comply. In so doing this Court is well aware of the far-reaching implications this has with respect to remedy in this case.
Following the original trial, this Court concluded that Ms. Hopkins was not entitled to partnership or to back pay because she had failed to prove that she was constructively discharged. 618 F. Supp. at 1121. The Court of Appeals reversed on this point, holding that Ms. Hopkins was constructively discharged when OGS decided not to repropose her. 825 F.2d at 472-73. As Justice Brennan noted, Price Waterhouse did not appeal this holding to the Supreme Court, 109 S. Ct. at 1781 n. 1. This Court is bound by it.
Price Waterhouse argues that the Court of Appeals' finding on constructive discharge was predicated on that court's erroneous view of the liability issue. But there is no logical reason to believe that the constructive discharge finding was in any way dependent on a "clear and convincing" evidence requirement at the liability stage. The issues are totally distinct. Nothing in the Supreme Court's decision suggested that the remand on liability had any implication whatsoever for the substance of the Court of Appeals' findings on remedy.
This Court also found that Ms. Hopkins had established entitlement to claim for back pay from the date she would have been elected partner had she not been held, July 1, 1983, until her January 17, 1984, resignation. However, the Court concluded that it had no basis for granting such relief because no proof was presented as to the compensation Ms. Hopkins would have received as a partner, owing to the fact that the parties agreed, without consulting the Court, to defer resolving the back pay issue until liability was resolved. 618 F. Supp. at 1121. The Court of Appeals, holding that this Court erred in penalizing Ms. Hopkins for conduct by counsel for both sides, reversed on this point as well, 825 F.2d at 473, and the Supreme Court was not asked to address this issue. Once again, this Court is bound.
Thus Ms. Hopkins, having now the benefit of her constructive discharge, may claim for back pay, both before and after her resignation from Price Waterhouse, without limitation, except as governed by the equitable rules of mitigation, and she may press her claim to be made a partner by court-ordered injunction, effective when she was held over. The latter claim will be addressed first.
Ms. Hopkins asks for an order directing Price Waterhouse to "invite" her to be a partner. She insists this has always been her goal, but Price Waterhouse has equally insisted it does not want her as a partner.
Whether the Court should force Price Waterhouse to make Ms. Hopkins a partner presents a difficult and unresolved issue. It involves an appeal to the Court's discretion, but the Court's authority to so direct is clear. Hishon v. King & Spalding, 467 U.S. 69, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), firmly established that partnership admission decisions are subject to the reach of Title VII. While Hishon did not involve an order directing that the claimant be made a partner, because the claimant was not seeking such relief, the reasoning of Hishon provides this Court ample authority to order partnership in the circumstances presented. If, as Hishon held, Title VII liability may be premised on denial of partnership, then there is no logical reason that the full range of Title VII remedies aimed at making the claimant whole are not appropriate.
In deciding whether to exercise its discretion to make Ms. Hopkins a partner, the Court has weighed a number of factors. The Court of Appeals for this Circuit recently reiterated that
District Courts must strive to grant "the most complete relief possible" in cases of Title VII violations. Franks v. Bowman Transp. Co., 424 U.S. 747, 764 [47 L. Ed. 2d 444, 96 S. Ct. 1251] (1976). In particular, the courts must make the victim "whole" by " placing him, as near as may be, in the situation he would have occupied if the wrong had not been committed.'" Albemarle Paper Co. v. Moody, 422 U.S.  at 418-19 [95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975)] (quoting Wicker v. Hoppock, 73 U.S. 94, 99, 18 L. Ed. 752 (1867)).
Lander v. Lujan, 281 U.S. App. D.C. 140, 888 F.2d 153, 156 (D.C.Cir. 1989).
In light of this controlling law, ordering Price Waterhouse to make Ms. Hopkins a partner would appear to be the appropriate remedy unless some factor makes such an order inequitable or otherwise inappropriate. The Court finds that no significant factor of this kind exists.
The fact that Price Waterhouse opposes her admission to the partnership cannot control. Although a clear likelihood of extreme workplace hostility and disruption may influence a court to deny reinstatement, see Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987), cert. denied, 484 U.S. 1047, 98 L. Ed. 2d 870, 108 S. Ct. 785 (1988), this is not such a case and "[a] district court's discrimination remedy cannot turn on the employer's preferences." Lander v. Lujan, 888 F.2d at 158.
Price Waterhouse has traditionally sought to function as a partnership. As it has expanded into a national concern providing a diversity of accounting and non-accounting services at more locations to varying businesses, the number of partners has now reached approximately 900 spread out over some 90 offices in the United States.
There is no indication that Price Waterhouse has placed a ceiling on its number of partners. Committees selected by the partners run the firm and, indeed, at this point only a small percentage of the partners have ever even met Ms. Hopkins. Price Waterhouse lacks the intimacy and interdependence of smaller partnerships, so concerns about freedom of association have little force.
Ms. Hopkins is not an accountant. If she becomes a partner she will function, as do some other partners, in the less exacting non-accounting sector of the firm's activities and will probably be subject to accountant supervision. Partnership, particularly for a non-accountant in this widely scattered enterprise, carries increased pay and opportunity. It has less to do with status within the firm than it does with status in the eyes of outside observers. True status within the firm has to be earned. For one in Ms. Hopkins' circumstances partnership is a promotion, the ultimate significance of which depends on her subsequent performance. Since in this instance money, not significant influence in the firm's affairs, appears to be initially involved, the discriminatory condition points toward exercising discretion to make her a partner, which will provide greater opportunity.
Ms. Hopkins had the necessary skills to be a management consulting partner. There was little question as to this point among the Price Waterhouse partners in 1983. Price Waterhouse has offered only unproven speculation in support of its claim that changing technology in her field -- big computer systems -- has rendered Ms. Hopkins less capable of adequate performance.
Ordering Price Waterhouse to simply reconsider Ms. Hopkins for partnership would be futile and unjust, because the testimony of Price Waterhouse's chairman at the relief trial suggested that the deck is stacked against her. Price Waterhouse plainly does not want her and would not voluntarily admit her. Partnership, not simply a new vote, is the logical remedy, given the finding that Ms. Hopkins was likely to have been made a partner if not for unlawful discrimination.
Since Ms. Hopkins' claim that partnership was always her objective cannot be tested, the alternative of front pay for the rest of Ms. Hopkins' business life does not appear to make her whole and, in any event, might well provide a wholly unwarranted windfall. The Court cannot determine whether she will be a successful, inadequate or superior partner. Nor can it determine how factors affecting her health, availability or the firm's own fortunes will impinge on her earnings. In addition, the Court is skeptical as to whether monetary relief alone provides a sufficient deterrent against future discrimination for a group of highly-paid partners. Given these considerations, equity favors the course that will most vindicate the purpose of the sex discrimination statute, consistent with established national policy.
The Court will order that Ms. Hopkins be made a partner of Price Waterhouse effective July 1, 1990. Upon admission, Price Waterhouse must grant Ms. Hopkins sufficient partnership shares so that she will receive during the Price Waterhouse fiscal year (July 1, 1990 to June 30, 1991) the average compensation given management consulting partners admitted on July 1, 1983. Price Waterhouse shall in respect to any collateral benefits treat Ms. Hopkins as if she had been admitted to the partnership on July 1, 1983. Price Waterhouse will be enjoined from retaliating against her for having brought this case or for having pursued her full remedies.
It is, indeed, a strained partnership relationship that lies ahead in the immediate future. Ms. Hopkins' perception of her mistreatment, on the one hand, and her conduct during the hold period, on the other, will require mutual accommodation.
Back pay must now be considered. Ms. Hopkins left Price Waterhouse in January 1984. She must be deemed to have become a partner as of July 1, 1983, for purposes of computing lost back pay. Between July 1, 1983, and July 1, 1990, she would theoretically be entitled to the present value of the average level of compensation received by the partners in her class who were not passed over, less the compensation she did receive during the period, provided she adhered to her obligation to mitigate.
Ms. Hopkins' expert estimates the amount owed, with interest, to be $ 682,481.
Upon leaving Price Waterhouse in January 1984, Ms. Hopkins established her own consulting firm, which she later incorporated as The Hopkins Company, Inc. She continued with her own business until mid-1987, when she sought full-time employment with one of her clients, the International Bank for Reconstruction and Development (World Bank). She became a senior budget and policy review officer at the World Bank in September 1988 and now earns approximately $ 92,500 annually.
The following table compares the stipulated average annual earnings for Price Waterhouse management consulting partners admitted July 1, 1983, n12 with Ms. Hopkins' actual earnings. These figures form the basis of her back pay claim.
Fiscal Year n13 Average partner Ms. Hopkins Net Loss
1984 $ 107,157 $ 80,015 $ 27,142
1985 $ 111,000 $ 56,112 $ 54,888
1986 $ 124,240 $ 54,299 $ 69,941
1987 $ 159,265 $ 68,842 $ 90,423
1988 $ 176,420 $ 45,524 $ 129,896
1989 $ 172,957 $ 67,106 $ 105,851
TOTAL $ 851,039 $ 372,898 $ 478,141 n14
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