The opinion of the court was delivered by: INFANTE
I. Introduction and Background
Plaintiff T. Patrick Hannon, an attorney representing himself with associated co-counsel, was previously granted partial summary judgment on his claim that, while applying to become an administrative law judge ("ALJ") with the Social Security Administration ("SSA"), he was the victim of gender discrimination in violation of Tide VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Under the 1991 amendments to Title VII, it is unlawful for an employer to use gender as a motivating factor in a hiring decision, even though other factors may have also motivated the decision, 42 U.S.C. § 2000e-2(m), and in this case an SSA declarant admitted that in 1993 gender was a factor favoring a female candidate, Anita Shapiro, who was selected instead of Hannon and another male applicant to be an ALJ in Los Angeles (the so-called "position 12").
Fashioning an appropriate remedy was an issue expressly left unaddressed in the Court's ruling, but it was observed that the remedy "may be circumscribed depending on the Government's ability to convince the trier-of-fact that [it] would have offered an ALJ position to the female applicant regardless of her gender".
The hypothetical question what the SSA would have done had it entirely ignored gender considerations was tried before a jury, which returned the following special verdict on August 18, 1995:
"Has defendant proved, by a preponderance of the evidence, that the defendant would have made the same employment decision concerning plaintiff even if unlawful motive, namely plaintiff's gender, was not present? YES."
Thereafter, the parties were directed to brief the question of the appropriate remedy in light of the jury's special verdict, and the matter was argued and submitted on September 6, 1995.
Hannon proposes that the Court issue one of the following mandatory injunctions:
"A. Compel SSA to complete selection of the ALJ position number 12 as it existed in 1993; selecting from the two remaining ALJ eligibles [including Hannon];
"B. Place plaintiff T. Patrick Hannon at the top of the next ALJ certificate [of eligibles for hire] with the same geographic preferences as in 1993 until plaintiff shall have been considered at least three times;
"C. Place plaintiff T. Patrick Hannon at the top of the next ALJ certificate until plaintiff shall have been considered at least three times and that the SSA justify to the Court any failure to select plaintiff; or
"D. Grant plaintiff a preference on the next ALJ certificate such that plaintiff shall be considered no less than three times and that SSA justify to the Court any failure to select plaintiff."
Hannon also requests declaratory relief and an award of attorney's fees and costs in the total amount of $ 29,912.72.
The Government does not oppose Hannon's request for declaratory relief.
The Government argues that, because the jury found that Hannon would not have been hired in any event, he "is now in the position he would have been absent the discriminatory action".
Nonetheless, the Government asserts it is amenable to an injunction precluding gender from operating as a motivating factor in any future ALJ selection process involving Hannon, who remains on an Office of Personnel Management ("OPM") register of potentially-eligible ALJ applicants.
Further, the Government contends that, for several reasons, Hannon is not entitled to attorney's fees or costs (apart from the initial filing fee). First, the Government argues that Hannon is not a requisite "prevailing party". Second, the Government says, even if Hannon is a prevailing party, his victory was a technical one unworthy of a fee award. Third, the Government urges that fees and costs incurred were not "directly attributable only" to a claim of discrimination on the basis of a mixture of legitimate and illegitimate motives. Fourth, the Government insists that, insofar as Hannon represented himself, he is not entitled to fees.
"On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates the respondent would have taken the same action in the absence of the impermissible motivating factor, the court -- (i) may grant declaratory relief, injunctive relief (except as provided in clause ii), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment . . ." 42 U.S.C. § 2000e-5(g)(2)(B).
Hannon's request for declaratory relief is specifically authorized by statute, is unopposed and, as such, is granted.
"The district courts may exercise their traditional equitable powers in Title VII actions", Boone v. Mechanical Specialties, 609 F.2d 956, 958 (9th Cir. 1979), and have "wide discretion in fashioning appropriate Title VII remedies". Thorne v. City of El Segundo, 802 F.2d 1131, 1133 (9th Cir. 1986). Because the SSA has demonstrated that it "would have taken same action in the absence of the impermissible motivating factor", 42 U.S.C. § 2000e-5(g)(2)(B), this Court cannot order the SSA to hire Hannon, but may order, within its sound discretion, another form of injunctive relief. See, Hicks v. Dothan City Bd. of Ed., 814 F. Supp. 1044, 1048 (M.D.Ala. 1993). The exercise of a district court's equitable powers in a mixed motive failure-to-hire case may include tinkering with the defendant employer's prospective hiring processes in an effort to tailor the most appropriate injunction to the particular circumstances of the case. See id.8
In this case, the Court is unpersuaded by the parties' respective proposals for injunctive relief. Hannon's proposals are overreaching and the ...