Anne B. Zipes v. Trans World Airlines, Inc., and Independent Federation of Flight Attendants, Intervenor-Appellant

MANION, Circuit Judge,

dissenting.

To protect its members’ jobs, the IFFA intervened in this litigation and presented a substantial, good-faith challenge to the settlement between plaintiffs and TWA. When the IFFA’s challenge ultimately proved unsuccessful, the district court awarded attorneys’ fees to plaintiffs as “prevailing parties” against the IFFA under the same standard applicable to defendants who have violated their employees’ civil rights. The majority upholds this award. I respectfully dissent. 1

In Christianburg Garment Co. v. EEOC, 434 U.S. 412 , 98 S.Ct. 694 , 54 L.Ed.2d 648 (1978), the Supreme Court made clear that the standards under which § 706(k) fees are awarded must be assessed in light of the policies underlying that statute. Under § 706(k), a prevailing plaintiff is presumptively entitled to fees from a defendant held liable on the merits *444 unless special circumstances would render awarding fees unjust. Id. 434 U.S. at 416-17 , 98 S.Ct. at 697-98 . A prevailing defendant, however, is not allowed to recover fees from a plaintiff unless “the plaintiffs action was frivolous, unreasonable, or without foundation_” Id. at 421 , 98 S.Ct. at 700 . The reason for this distinction is not contained in the statute’s express language. The statute refers only to “prevailing parties.” The Supreme Court, however, set forth three reasons for distinguishing between defendants and plaintiffs. First, § 706(k) sought to facilitate the enforcement of the civil rights laws through “private attorneys general.” Id. at 416-18, 98 S.Ct. at 698-99 . Second, granting prevailing defendants attorneys’ fees as a matter of course would act as a significant disincentive for plaintiffs to bring civil rights suits. Id. at 421-22 , 98 S.Ct. at 700-01 . Third, “when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law.” Id. at 418 , 98 S.Ct. at 699 .

In this case, the IFFA intervened to assert the federal collective bargaining rights of the incumbent employees. In addition, neither the IFFA nor the incumbent employees were in any way responsible for the “no-motherhood” policy that spawned the underlying litigation and ultimate settlement. In such a situation, the application of the Christianburg Garment policies warrants treating the intervenors as plaintiffs for attorneys’ fees purposes. See Reeves v. Harrell, 791 F.2d 1481, 1484 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 880 , 93 L.Ed.2d 834 (1987). As there is no dispute that the IFFA presented a substantial, good-faith challenge to the settlement, the assessment of fees against it was inappropriate. Moreover, regardless of how the IFFA’s posture in this litigation is characterized, the circumstances of this case render the award of fees unjust.

In the settlement negotiations between plaintiffs and TWA, neither side had a strong interest in protecting the jobs of TWA’s incumbent employees. Plaintiffs obviously had a strong interest in regaining their old jobs. TWA’s primary interest was in settling the lawsuit. TWA was going to have a full complement of flight attendants whether they came from the plaintiffs’ or incumbent employees’ ranks. While the IFFA may not have had a legal obligation to intervene, it certainly would have been unusual for the IFFA to simply ignore a settlement that substantially altered its contract with TWA and the job security of its members. In fact, this circuit dismissed the incumbent employees’ predecessor union as the plaintiffs’ class representative specifically because the union’s interest in representing the collective bargaining rights of the incumbent employees conflicted with its position as class representative. See Air Line Stewards and Stewardesses Ass’n, Local 550 v. American Airlines, Inc., 490 F.2d 636, 639-42 (7th Cir.1973). The fact that the IFFA did what its members elected it to do and this circuit expected it to do, that is, represent the interests of incumbent employees, is not something that should subject it to Title YII attorneys’ fees.

Moreover, the policy of encouraging “private attorneys general” to enforce Title VII does not warrant imposing fees against the IFFA. Section 706(k) seeks to encourage plaintiffs to bring suits against defendants who violate federal law. This policy has attenuated, if any, relevance to inter-venors like the IFFA who did not violate Title VII. In addition, denying fee awards against such intervenors will not significantly diminish plaintiffs’ ability to attract counsel. This is aptly demonstrated in the present case where plaintiffs’ counsel has already received more than $1,250,000 from the $3,000,000 settlement.

Rather than encouraging persons to act as “private attorneys general,” the majority’s construction of § 706(k) will have quite the opposite effect. Title VII lawsuits often affect many employees other than the named plaintiffs. The settlement of a Title VII suit or the granting of remedies by a court may leave some employees in a less desirable employment position or out of a job altogether. Many of these affected employees will have substantial claims that the settlement or remedies violate their *445 own rights under a collective bargaining agreement, Title VII, or even the Constitution. The just resolution of these cases requires the full participation of everyone involved. Mechanically assessing attorneys’ fees against intervening employees who did not violate anybody’s rights and who are not fortunate enough to posture themselves as “plaintiffs,” will ensure that in many cases only two sides will be heard in a multi-sided dispute.

I would reverse the district court’s award of attorneys’ fees.

. In Charles v. Daley, 846 F.2d 1057 (7th Cir.1988), this circuit recently held that under 42 U.S.C. § 1988 the plaintiffs were entitled to attorneys’ fees as a "prevailing party’ against intervening defendants who were not liable on the merits of plaintiffs’ 42 U.S.C. § 1983 claims. I dissented in that case on the ground that the plaintiffs could not be deemed to have "prevailed” against defendants who were not liable to the plaintiffs on the merits. Likewise, I believe that § 706(k) should not have been applied in this case because plaintiffs did not obtain any relief on the merits against the intervening union on their Title VII claims. Because § 706(k) and 42 U.S.C. § 1988 have the same operative language concerning prevailing parties, however, Charles requires that plaintiffs be treated as prevailing parties against the IFFA.