Petition — United Air Lines, Inc. v. Inda

In the Supreme Court of the:

United States

OcTOBER TERM, 1977

No. ..... 0771182

UNITED AIR LINES, INC.,

Petitioner,

VS.

KATHLEEN C., INDA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

DoNALD D. CONNORS, JR.

Spear Street Tower

One Market Plaza

San Francisco, California 94105

Telephone: (415) 442-0900

Attorney for Petitioner

United Air Lines, Inc.

Of Counsel:

BROBECK, PHLEGER &

HARRISON

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

In the Supreme Court of the

United States

OcTOBER TERM, 1977

a

UNITED Arr LINES, INC.,

Petitioner,

vs.

KATHLEEN C. INDA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Petitioner United Air Lines, Inc. respectfully prays that a

writ of certiorari issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit in Kathleen C. Inda and

Kathleen F. Moritz v. United Air Lines, Inc., No. 75-1527 and

75-2174 below.

OPINIONS BELOW

The opinion of the Court of Appeals is reported as Inda v.

United Air Lines, Inc., 565 F.2d 554 (9th Cir. 1977), and is

set forth in the Appendix A attached hereto. The opinion of the

2

District Court is reported at 405 F.Supp. 426 (N.D.Cal. 1975),

and is set forth in Appendix B attached.

JURISDICTION

The judgment of the Court of Appeals was entered on

November 28, 1977.

This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1).

The Court of Appeals had jurisdiction under 28 U.S.C. § 1291.

The District Court had jurisdiction under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seg. and

28 US.C. § 1343(3).

QUESTION PRESENTED

Whether Section 14 of the Equal Employment Opportunity Act

of 1972 retroactively renders timely a previously untimely charge

of discrimination where the alleged act of discrimination occurred

more than three and one half (3¥2) years prior to the effective

date of the 1972 amendments to Title VII; and, if Section 14

is given such effect, whether petitioner is deprived of its property

contrary to the due process clause of the Fifth Amendment.

STATUTES INVOLVED

Section 14 of the Equal Employment Opportunity Act of 1972,

86 Stat. 103, 113, provides:

“The amendments made by this Act to Section 706 of the

Civil Rights Act of 1964 shall be applicable with respect

to charges pending with the Commission on the date of

enactment of this Act and all charges filed thereafter.”

Section 706(d) of the Civil Rights Act of 1964, 78 Stat. 241,

260, 42 U.S.C. § 2000e-5(d), provided in pertinent part:

“A charge under subsection(a) shall be filed within

ninety days after the alleged unlawful employment practice

occurred, . . .”

3

Section 706(e) of the Equal Employment Opportunity Act of

1972, 86 Stat. 103, 105, 42 U.S.C. § 2000e-5(e), provides in per-

tinent part:

“A charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful employ-

ment practice occurred. . . .”

STATEMENT OF THE CASE

Respondent Kathleen C. Inda, to whom this petition is limited,

was employed by United Air Lines, Inc. (United) as a flight

attendant from December 29, 1965 to June 15, 1968 when she

was forced to resign because she planned to be married on

June 29, 1968.

At the time of Inda’s resignation United maintained a policy

of refusing to employ or continue in employment female flight

attendants who were or became married.”

On November 18, 1968, some 156 days after her resignation,

Inda filed charges of sex discrimination with the EEOC against

United and the Airline Pilots Association.

At the time Inda’s charges were filed, Section 706(d) of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(d), provided that

charges of discrimination must be filed “within ninety days

after the alleged unlawful employment practice occurred.” This

was the law until March 24, 1972 when Section 706 was amended

by Congress to require that all charges be filed “within one hun-

dred and eighty days after the alleged unlawful employment

practice occurred.”

On December 22, 1970, the EEOC issued a decision as to Inda’s

charges concluding that there was reasonable cause to believe

that United had engaged in unlawful employment practices.

On October 16, 1972, the EEOC issued a notice of right to sue

to Inda.

1. Although it was subsequently decided that such a policy violated

Title VII, Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971),

cert. denied, 404 U.S. 991, Inda was not a party to that case.

4

And then, on October 18, 1972, respondent Inda filed a com-

plaint against United and the Airline Pilots Association in the

United States District Court for the Northern District of Cali-

fornia alleging sex discrimination.”

Before answering the complaint, United filed a motion seeking

dismissal of the action on the grounds that Inda was time barred

because she had failed to file her charge of discrimination within

ninety days as the statute required. That motion was denied with-

out opinion.

Trial followed and on January 30, 1975 the District Court

entered judgment against United. Inda was awarded $41,917.00

in back pay and reinstated as a flight attendant. See Appendix B.

Appeal was taken to the Ninth Circuit.

On November 28, 1977 the Ninth Circuit affirmed the Dis-

trict Court’s judgment as to Inda. In affirming that judgment the

Ninth Circuit held that Inda’s charge was timely filed even though

it had been filed one hundred and fifty six (156) days after

her June 15, 1968 resignation. The Court reasoned that Section

14 of the Equal Employment Opportunity Act of 1972 made

the new one hundred aad eighty (180) day limitation period

retroactively applicable to all charges of discrimination on file

with the EEOC on March 24, 19723 In short, the Ninth Circuit

has held that, even though Inda’s charge was untimely when

filed on November 18, 1968, and was untimely for the whole

of the years 1969, 1970, and 1971, it was rendered timely on

March 24, 1972 by act of Congress. Inda, supra, 565 F.2d at

560-61; Appendix A, pp. 10, 11. As of March 24, 1972, it will

be seen that 1.378 days had elapsed since the date of the forced

resignation (June 15, 1968).

2. The Airline Pilots Association was subsequently dismissed.

3. The date of enactment of the Equal Employment Opportunity Act

of 1972.

5

REASONS FOR GRANTING THE WRIT

1. The Decision of the Ninth Circuit Below Confiicts in Principle

With the Decision of this Court in United Air Lines v. Evans,

431 U.S. 553 (1977).

Last term this Court addressed itself to the question of whether

a United flight attendant who also had been forced to resign

in 1968 because of United’s no-marriage policy had filed timely

charges of discrimination in February 1973 concerning denial

of seniority for time accrued during her previous employment

with United. United Air Lines v. Evans, 431 U.S. 553 (1977).

In affirming the dismissal of that action as untimely, this Court

noted:

“, . . United was entitled to treat that past act [the forced

resignation of Evans} as lawful after respondent failed to

file a charge of discrimination within the 90 days then

allowed by § 706(d). A discriminatory act which is not made

the basis for a timely charge is the legal equivalent of a

discriminatory act which occurred before the statute was

passed. It may constitute relevant background evidence in

a proceeding in which the status of a current practice is at

issue, but separately considered, it is merely an unfortunate

event in history which has no present legal consequences.”

431 US. at 558.

In the present action, after the passage of 90 days respondent

Inda had failed to file any charge of discrimination. Thus, under

Evans, United was entitled to treat the alleged act of discrimina-

tion as “lawful.” Under Evans, because Inda’s forced resignation

was not made the basis of a timely charge, it was “the legal

equivalent of a discriminatory act which occurred before the

Statute was passed.” It was “merely an unfortunate event in

history which has no present legal consequences.”

The Ninth Circuit's opinion finding that Inda’s charge was

timely conflicts in principle with the decision of this Court in Evans.

6

2. The Decision of the Ninth Circuit Below Has So Far Departed

from Applicable Decisions of This Court as to Require

Reversal.

In the light of this Court's recent decision in Evans, supra,

the Ninth Circuit's holding is in conflict with this Court's hold-

ing in William Danzer & Co. v. Gulf & Ship Island R.Co., 268

US. 633 (1924).

The applicability of Danzer to the 1972 amendments of Title

VII was most recently addressed by this Court in Electrical W ork-

ers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 243 (1976).

In Electrical Workers, supra, 429 U.S. at 243, this Court held

that in enacting Section 14 of the Equal Employment Opportunity

Act of 1972 Congress intended the 180 day limitation period

to apply to all charges on file with the EEOC on the effective

date of the 1972 amendments on/y so long as the charge ‘‘alleged

a discriminatory occurrence within 180 days of the enactment

of the Act.”

Under the facts of Electrical Workers, supra, 429 U.S. at 243,

this Court concluded that petitioners there gave Danzer an overly

broad reading in asserting that it stood as a bar to any retroac-

tive application of the 180 day limitation period by Congress.

But, Electrical Workers, supra, was decided before Evans and

it did not decide the question raised by this petition. This Court

limited its decision in Electrical Workers to the facts then before

it; it did not decide:

‘.. . whether the enlarged limitations period also redounds

to the benefit of persons who filed a charge more than 90,

but less than 180, days from the date of the alleged ‘occur-

rence, where the 180 days had run prior to March 24, 1972.”

429 US. at 243, n. 17. Here, as has been seen, the “occurrence”

took place many more than 180 days prior to March 24, 1972.

7

In deciding this quesiton the Ninth Circuit has held:

“The question so reserved by the Court is the one before

us: whether Electrical W orkers must be held to its facts, i.e.,

whether the fact that the discriminatory action occurred

within 180 days of the enactment of the Act is crucial. We

hold that it is not.”

565 F.2d at 560-61; Appendix A, p. 10. In other words, the

Court below held that under the 1972 Act a change was timely

even though more than 180 days had elapsed as of March 24,

1972 following the unlawful discrimination.

By failing to limit Electrical Workers to its facts, the Ninth

Circuit has misapplied the pertinent provisions of the 1972 Act

and has sanctioned the taking of United's property without due

process of law.

It was the passage of time which caused back pay liability

to accrue against United. In 1968, after Inda failed to file timely

charges, all back pay liability had been cut off, for the act

of discrimination had been rendered “lawful;’ it was as if the

act of discrimination had occurred before the statute was passed.

Evans, supta, 431 U.S. at 558.

If the decision below is allowed to stand, the act of discrimina-

tion which had been rendered lawful and had no legal conse-

quences for more than three years is suddenly and retroactively

rendered unlawful with enormous legal consequence. Such a

holding is contrary to the Court's teaching in Danzer.

The statute involved in Danzer, supra, the Interstate Com-

merce Act, like Title VII, contained a limitation period which

was an integral part of the liability, it did not merely involve

a matter of remedy. And, as here, there was subsequent legisla-

tion in Danzer which changed the limitation period.

In sustaining the dismissal of a complaint for $307.15 in

damages and interest, the Danzer court held that:

8

“It is settled by the decisions of this court that the lapse

of time not only barred the remedy but also destroyed the

liability of defendant to plaintiff. [citation omitted.} On the

expiration of the two-year period, it was as if liability had

never existed.”

268 US. at 636.

The decision of this Court in Evans has established that Title

VII's limitation period not only bars the remedy (back pay and

reinstatement) but also destroys the liability of defendant to

plaintiff; it establishes that upon expiration of the limitation

period, it is as if the liability never existed. To quote again from

Evans, supra, 431 U.S. at 558:

“... United was entitled to treat that past act as lawful after

respondent failed to file a charge of discrimination within

the 90 days then allowed by § 706(d). A discriminatory act

which is not made the basis for a timely charge is the legal

equivalent of a discriminatory act which occurred before

the statute was passed.”

And nothing in the Electrical Workers case saves Inda from

the application of this salutary principle.

3. The Decision of the Ninth Circuit Below Raises an Important

Question of Federal Law Which Has Not Been, But Should

Be, Settled by This Court.

The question raised in this petition was left unanswered by this

Court in Electrical Workers, supra, 429 U.S. at 243, n. 17.

There have now been three courts which have addressed this

question; the Ninth Circuit below, the Northern District of Illinois

in Crook v. Penn. Central Transportation Co., 427 F. Supp. 956

(N.D.Ill. 1977) and the Eastern District of Pennsylvania in

Dickerson v. U.S. Steel Corp., 439 F. Supp. 55, 69 n. 11 (E.D.Pa.

1977). Each of these courts has erroneously concluded that the

180 day limitation period is retroactively applicable to a// charges

on file with the EEOC on March 24, 1972. There is no reason

9

to believe that more cases will not follow. Without proper

guidance from this Court on this threshold jurisdictional question

there wil! be much unnecessary litigation.

CONCLUSION

We respectfully submit that the petition should be granted.

Dated: San Francisco, California, February 24, 1978

DoNALD D. CONNORS, JR.

Attorney for Petitioner

United Air Lines, Inc.

Of Counsel:

BROBECK, PHLEGER &

HARRISON

(Appendices Follow)

Appendix A

United States Court of Appeals, Ninth Circuit

Nos. 75-1527 and 75-2174

Kathleen C. INDA, and Kathleen F. Moritz,

Plaintiffs-Appellees,

v.

UNITED AIR LINES, INC.

Defendant-Appellant.

Kathleen C. INDA, and Kathleen F. Moritz,

Plaintiffs-Cross Appellants,

v:

UNITED AIR LINES, INC.,

Defendant-Cross Appellee.

Nov. 28, 1977

On Appeal from the United States District Court for the

Northern District of California.

Before MERRILL and CHOY, Circuit Judges, and BONSAL,*

District Judge.

MERRILL, Circuit Judge.

On October 18, 1972, Kathleen Inda and Kathleen Moritz

filed this suit in the District Court for the Northern District of

California, alleging that United Air Lines and the Air Line Pilots

Association (ALPA) had discriminated against them on the basis

of their sex in violation of Title VII of the Civil Rights Act of

*Honorable Dudley B. Bonsal, Senior United States District Judge for

the Southern District of New York, sitting by designation.

2 Appendix

1964, 42 U.S.C. $§ 2000e et seg. and § 1 of the Civil Rights Act of

1870, 42 U.S.C. § 1981. The alleged discrimination arose out of

United's “‘no-marriage” rule which required female, but not male,

flight cabin attendants to be single and to resign immediately or

be terminated upon marriage.

The suit was filed by Inda and Moritz on behalf of themselves

and all other women who, because of the no-marriage rule, had

either been denied initial employment as stewardesses or had been

forced to resign such positions, They sought a permanent injunc-

tion restraining United from engaging in such discriminatory

employment practices and requiring United to reinstate with full

seniority and benefits (including back pay) the named plaintiffs

and all members of the class who had been forced to resign or who

had been terminated because of the rule.

On January 8, 1973, United filed a Rule 12(b) motion to dis-

miss the action on the ground that plaintiffs had failed to file

timely charges with the Equal Employment Opportunity Commis-

sion (EEOC) and that the district court thus was without juris-.

diction. The District court denied this motion.

On April 8, 1974, plaintiffs filed a Rule 23 motion for a

preliminary determination that their action be permitted to go

forward as a class action. The district court also denied this

motion.

The § 1981 claim was dismissed by an order entered by the

district court on July 11, 1974. The action against ALPA was

dismissed by stipulation on November 18, 1974.

A court trial was then held on December 16, 1974, on the Title

VII issue of whether Inda and Moritz had been forced to resign

under the no-marriage rule or had voluntarily resigned. The

district court found the plaintiffs would have continued to work

but for the no-marriage rule. Hearings were subsequently held

on the questions of damages and attorney fees. On January 30,

1975, the district court filed its findings of fact and conclusions of

Appendix 3

law. Judgment was rendered in favor of Inda in the sum of

$41,917, and in favor of Moritz in the sum of $57,823, both sums

plus interest. United was also ordered to reinstate both plaintiffs

with full seniority from the dates on which they originally had

been hired and to pay plaintiffs’ attorneys’ fees in the amount of

$38,066.42.

Two major issues are presented on appeal. United’s principal

ground on appeal is that the plaintiffs did not file timely charges

with the EEOC, a necessary precondition to suit by a plaintiff

under Title VII. Inda and Moritz appeal from the denial of their

motion for an order that the case proceed as a class action.

APPEAL OF UNITED; TIMELY FILING

OF CLAIMS WITH EEOC

Inda worked for United as a stewardess from December 29,

1965, to June 15, 1968, when she submitted her resignation be-

cause of her plan to marry. After resigning she was employed in

a clerical ground position by United, from August, 1968, through

August, 1969. Moritz worked for United as a stewardess from

February 9, 1966, until March 5, 1968, when she resigned because

of her plan to marry.

Both plaintiffs testified that they would not have resigned had

the no-marriage rule not required it. Plaintiffs also testified that

they had resigned because their supervisors had told them that if

they did not resign they would be fired; and that under its hiring

policy United would not rehire one who had been fired; and that

if plaintiffs resigned and the rule requiring termination should be

abandoned, they would have preference in being re-employed.

Two of United’s supervisors confirmed that such advice had been

given.’ Neither Inda nor Moritz filed a grievance with ALPA or

————_—

1. Cathy Coane stated: “I really believed that * * * if the rule were

to be changed they would have a better chance to be re-employed.” Sue

Halstead Profilet stated: ‘‘We sincerely felt that when this policy would

change that these girls would certainly be allowed to return to their jobs.”

4 Appendix

a complaint with the EEOC or a state agency at the time of their

forced resignation,

On November 7, 1968, eight months after Moritz’s and five

months after Inda’s resignation, following negotiations with

ALPA acting on behalf of United stewardesses, United adopted

a new policy to the effect that marriage would not disqualify a

stewardess from continuing to act as such.*

Under the new policy United still would not initially employ

married women. Nor was the policy made to apply to those who

had resigned and had not filed grievances or complaints. Instead

of favoring those who had accepted company policy by openly

disclosing their plans to marry and resigning, the new policy

favored those who had chosen not to disclose the fact of marriage

but to submit to being fired when that fact was discovered and

who had then filed grievances or charges. Thus, the supervisors’

representations on which Inda and Moritz had relied, despite the

fact that they were given in all good faith, proved out to be

false.

On November 14, 1968, one week after United had adopted

this new policy, Moritz sought employment with United as a

stewardess and Inda sought a transfer from her ground job with

United to a position as a stewardess. Both were denied. Com-

plaints were filed with the EEOC by Moritz on November 13,

1968, and by Inda on November i8, 1968.

Section 706(d) of the Civil Rights Act of 1964 (now 42 U.S.C.

§ 2000e-S(e)) at the time the charges were filed required the

2. The letter agreement between ALPA and United stated in part:

“The Company agrees that marriage will not disqualify a Steward-

ess from continuing in the employ of the Company as a Stewardess

* oe

All Stewardesses who .1ave been terminated by the Company

because of marriage and have filed a valid grievance protesting such

policy, or who have as of this date filed a valid complaint before the

Equal Employment Opportunity Commission or State Agencies, will

be offered the opportunity to return to active Stewardess service.”

Appendix 5

aggrieved person to file a charge with the Commission within 90

days after the alleged unlawful employment practice had occurred.

Neither Inda nor Moritz met this requirement and United con-

tends that their claims accordingly are barred.

Tolling of the Ninety Day Statute

Appellants and the EEOC as amicus curiae have argued that the

claims of both appellants were timely because other United em-

ployees had already filed cemplaints with the EEOC challenging

the same policy of United. They contend that the complaints of

Mary Sprogis, filed with the EEOC in August, 1966, Sprogis v.

United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404

US. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971), and Carol Roma-

santa, filed in 1967, Romasanta v. United Airlines, Inc., 537 F.2d

915 (7th Cir. 1976), aff'd sub nom., United Airlines, Inc. v. Me-

Donald, ...... US. ......, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977),

made the filing of additional complaints by other aggrieved United

stewardesses unnecessary and redundant. For support of this con-

tention appellants and the Commission rely on language contained

in Albemarle Paper Co. v. Moody 422 US. 405, 414 n. 8, 95 S.Ct.

2362, 45 L.Ed.2d 280 (1975). There the Supreme Court held

that back pay could be awarded on a class basis under Title VII

without exhaustion of administrative procedures by the unnamed

class members. From this holding, appellants reason, either one of

two results rationally follows: either (1) one need no longer

file a charge with the EEOC in order to obtain a right to sue

in one’s own behalf once someone else has filed a charge based

on the same violation; or (2) the time within which one must

file an EEOC charge is tolled by the filing of such a charge

by someone else.

We cannot agree that either result rationally flows from

Albemarle.

6 Appendix

[1] Title VII painstakingly spells out the procedure by which

one obtains a right to sue on his own behalf and the times within

which certain steps must be taken. In United Air Lines v. Evans,

saloon US. ......, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme

Court strictly enforced these provisions, holding that Evans’ claim

was barred by her failure to file a timely charge with the EEOC.

Albemarle was not dealing with a right to sue; it dealt with class

membership in a class action. It held only that relief can be award-

ed on a class basis to those who have suffered the same violation

of Title VII, and that commliance with the procedural require-

ments by which one obtains a right to sue under Title VII is not

essential to class membership. 422 U.S. at 414 n. 8, 95 S.Ct. 2362.

In so holding the Court noted that decisions of courts of appeals

were uniformly to this effect prior to the amendment of the Act in

1972, and that legislative history indicated congressional ratifica-

tion of this view through enactment of the 1972 amendments. Id.

Nothing in the amendments remotely suggests that Congress

intended to eliminate the concept of a right to sue or to abolish

the procedures by which one obtains such a right.

Nor does it follow from A/bemarle that the filing of a charge

by one person operates to toll the time within which another

person must file such a charge if a right to sue is to be obtained.

Albemarle did not involve a tolling of the 90 day statute of

limitations. The question was not one of timely filing; the ques-

tion was whether a charge need be filed at all in order to enjoy

membership in a class.

Some courts have suggested that the filing of a charge by one

employee should tol! the statute for all others who, at the time of

the filing, could themselves have filed for the same violation, and

that the statute should not again commence to run until the Com-

mission had completed its efforts to mediate the dispute and had

issued a right to sue letter or had dismissed the charge. E.g..,

United States v. Georgia Power Co., 474 F.2d 906, 925 (Sth Cir.

1973).

Appendix 7

The analogy often relied on is American Pipe & Construction

Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).

That case was an antitrust action where no analogous administra-

tive proceeding precedes the suit. The tolling was of the time

within which one must act on his own behalf in bringing suit for

antitrust violation. The case held that a class action brought for

antitrust violation tolls the statute as to all members of the class

until the class is denied by the court and the class members are

thus ejected from the suit. 414 U.S. at 561, 94 S.Ct. 756. The case

proceeded on the theory that if one has a certain time within which

to take certain action, action of that sort taken on his behalf by

another within the time limit is timely taken and effectively protects

one against the running of the statute until the representation is

nullified by court action. The Court noted that by filing the class

action the representative “notifies the defendants not only of the

substantive claims being brought against them, but also of the

number and generic identities of the potential plaintiffs who may

participate in the judgment.” 414 U.S. at 555, 94 S.Ct. at 767.

Here, however, an employee, by filing an EEOC charge on his

own behalf, is not acting on behalf of a class. As in the case of

Sprogis (who sued only on her own behalf, Sprogis v. United Air

Lines, Inc., supra, 444 F.2d 1194), he may never act on behalf

of a class. Until he does so others cannot say that he has done for

them that which is required of them by law.

[2] The result is that timely filing of an EEOC charge is not

a necessary condition to the obtaining of relief by one as a member

of a class in whose behalf suit has been brought. However, if one

brings suit on his own behalf, or as named plaintiff on behalf of

a class, he must have secured a right to sue by timely following

the procedures set forth in Title VII.

It does not follow that EEOC charges cannot be filed on behalf

of a class. Title VII provides for such filing. Section 2000e-5 (b)

8 Appendix

provides that a charge can be “filed by or on behalf of a person

claiming to be aggrieved, or by a member of the Commission.”

Section 2000e-5(f) (1) provides that if the charge was filed by a

member of the Commission any person whom the charge alleges

was aggrieved by the unlawful employment practice should be

notified of his right to bring a civil action. The EEOC Regulations

provide:

“To come within the purview of this section an individual

may either be specifically designated by name or be among

the class of persons aggrieved by the practices complained

of in the charge.”

29 CFR. §1601.25c(a). In cases involving Commissioner

charges, “where the Commission has found reasonable cause but

has been unable to obtain voluntary compliance with title VII, the

Commission shall so notify the respondent and all identifiable

members of the class.” 29 C.F.R. § 1601.25c(c). This notice in-

forms class members of their right to demand that a ‘Notice-of-

Right-to-Sue” issue and to bring a civil suit. Id.

{3} Thus, when a member of the Commission files on behalf

of others, they can obtain their rights to sue without having filed

in their own behalf. With such provisions in the Act we see no

need to provide for additional class representation through judicial

improvisation.

[4] We conclude that the 90 day statute was not tolled by the

filing of charges by others than Inda or Moritz.

Other Timely Filing Issues

Other factors enter into the question of timely filing, however.

In 1972, Title VII was amended to extend the 90 day period to

180 days. 86 Stat. 103 (Mar. 24, 1972), 42 U.S.C. § 2000e-5(e).

Section 14 of the amendments, 86 Stat. 113, provides:

Appendix 9

“The amendments made by this Act to section 706 of the

Civil Rights Act of 1964 shall be applicable with respect to

charges pending with the Commission on the date of enact-

ment of this Act and all charges filed thereafter.”

Inda’s charge filed November 18, 1968, as to a violation occurr-

ing on June 15, 1968, was filed within 180 days. Moritz’s charge,

filed November 13, 1968, as to a violation occurring March 5,

1968, was not filed within 180 days. It was, however, filed within

90 days of the denial of employment on November 14, 1968, and

was timely if such denial can be regarded as a separate violation,

independent of the earlier one.

United's contention that the charges were not timely filed thus

presents different issues in the two cases. As to Inda, the question

is whether the charge filed November 18, 1968, was “pending

with the Commission on [March 24, 1972} the date of enact-

ment of the Act.” As to Moritz, the question is whether the denial

of employment on November 14, 1968, was itseif a separate

violation independent of the earlier one or was simply a reasser-

tion of the time-barred earlier violation.

(a) Inda’s Charge

Electrical Workers Local 790 v. Robbins & Myers, Inc., 429

U.S. 299, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), considered the

meaning of the language, “pending with the Commission” as used

in the 1972 Act. In that case a charge had been filed more than

90 days but less than 180 days after the charged violation. The

employer contended that since the charge was untimely when

filed it could not have been pending with the Commission when

the Act was enacted. The court rejected this contention. It stated:

“This reading of ‘pending’—confining it to charges still

before the Commission and timely when filed—is not the

only possible meaning of the word, is largely rebutted by the

legislative history, and renders the language of § 14 virtually

meaningless insofar as the enlarged limitation period is con-

10 Appendix

cerned. Since Congress also applied the enlarged limitations

period to charges, whether or not untimely on March 24,

‘filed thereafter,’ we should not presume Congress created

this odd hiatus in retroactivity suggested by Robbins & Myers

unless congressional intent to do so was conveyed by lan-

guage more precise than ‘pending,’ cf. Love v. Pullman Co.,

404 US. 522, [92 S.Ct. 616, 30 L.Ed.2d 679] (1972).

‘Pending’ is simply not a term of art that unambiguously

carries with it a meaning precisely suited for this situation;

equally logical, for example, would be an interpretation that

read ‘pending’ to mean ‘filed and not yet rejected,’ cf. Com-

mittee Legis. Hist., supra, n. 16, at 1851.”

429 U.S. at 242-43, 97 S.Ct. at 450.

The precise holding of the Court in Electrical Workers was as

follows:

“We hold that Congress intended the 180-day period to be

applicable to charges such as that filed by Guy, where the

charge was filed with the EEOC prior to March 24, 1972,

and alleged a discriminatory occurrence within 180 days of

the enactment of the Act.”

Id. at 243, 97 S.Ct. at 450. The Court added, in note 17:

“Accordingly, we need not decide whether the enlarged

limitations period also redounds to the benefit of persons

who filed a charge more than 90, but less than 180, days

from the date of the alleged ‘occurrence,’ where the 180

days had run prior to March 24, 1972.”

Id.

The question so reserved by the Court is the one before us:

Whether Electrical W orkers must be held to its facts, 7. e., whether

the fact that the discriminatory action occurred within 180 days

of the enactment of the Act is crucial. We hold that it is not.

Accord, Crook v. Penn Central Transportation Co., 427 F.Supp.

956, 958-59 (N.D.II1.1977); Dickerson v. U.S. Steel Co.,

Appendix 11

F.Supp. n. 11 (E.D.Pa. 1977). If the charge was, on

the date of enactment, on file with the Commission, and if final

action had not yet been taken by the Commission with respect to

the charge, the charge was pending in the sense in which that

term is commonly used. It is that sense that we have attributed

to Congress,

{5} Inda filed her charge against United with the Commis-

sion on November 18, 1968. On December 22, 1970, the Com-

mission issued a decision concluding that there was reasonable

cause to believe that United had engaged in unlawful employ-

ment practices. The issuance of that decision did not terminate

the jurisdiction of the Commission on the charge, but led to a

period during which there were efforts to obtain conciliation and

voluntary compliance. See, Occidental Life Ins. Co. v. E.E.0.C.,

US. > : , 97 S.Ct. 2447, 53 L.Ed.2d 402

(1977); Cunningham v. Litton Industries, 413 F.2d 887, 890 (9th

Cir. 1969). On October 16, 1972, the Commission issued a notice

of right to sue to Inda. Under the test set forth above, Inda’s

charge was still pending before the Commission on March 24,

1972, when the amendments were enacted.

We conclude that Inda’s charge was timely filed as to the June

15, 1968, violation and that judgment of the district court should

be affirmed in that respect.

(b) Moritz’s Charge

As we have noted, Moritz did not file her charge with the

EEOC within 180 days of her discharge and her action was not

timely under our interpretation of the 1972 amendments. The

question as to this charge, therefore, is whether the denial of

employment on November 14, 1968, constituted a separate and

independent violation which, standing alone, would support a

charge of unfair employment practice.

In Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir.

1975), this court dealt with the question whether denial of rein-

12 Appendix

statement is an offense separate from the original discharge. That

case involved the same employer and the same no-marriage rule

involved here. That case also involved an involuntary resignation

in the face of the rule, and a rejection of an application for rein-

statement made after the 1968 change in company policy. We held

the application to be untimely, rejecting the appellant's conten-

tions in the alternative that the initial violation was a continuing

one and that the denial of reinstatement was an independent

violation. We quoted from NLRB v. Textile Machine Works, 214

F.2d 929, 932 (3d Cir. 1954):

““A discharged employee who seeks to be reinstated is

really litigating the unfairness of his original discharge be-

cause only if the original discharge was discriminatory is he

entitled to be reinstated as if he had never ceased working

for the employer.’ ”

514 F.2d at 596-97.

Collins was, however, quite a different case factually from this

one. Collins had resigned in May, 1967. Four-and-one-half years

later, in October, 1971 (three years after the 1968 change in

company policy), she applied for reinstatement “to full status

as stewardess, with full seniority and back pay.” After being

denied reempioyment, she promptly filed charges with EEOC in

November, 1971. Nothing is said in the opinion as to any com-

pany inducement to secure resignation, nor as to any circumstances

that would render the initial violation a continuing one or the

denial of reinstatement an independent violation. One can readily

infer, in absence of some explanation for the delay, that the

application for reinstatement was made for the sole purpose of

serving as a sham basis for a tardy EEOC charge directed at the

initial resignation.

{6} Our case is distinguishable from Collins. Here plaintiffs

acted with exemplary promptness. Only one week elapsed (as

against Collins’ delay of three years) after announcement of the

Appendix 13

rule change before both plaintiffs applied for re-employment.

Here new elements of unfairness, not existing at the time of the

original violation, attached to denial of re-employment, and it

cannot be said, as it was in NLRB v. Textile Machine Works,

supra, that the discrimination attaching to the original discharge

was the only basis for reinstatement. While no fault could be said

to have attached to the making of good faith representations as

to future hiring preferment, inequity did arise from United's fail-

ure to protect those who had relied upon the company represen-

tations. Under these circumstances equitable principles analogous

to those of estoppel demand that United honor the representations

relied on by plaintiffs to their detriment. Failure to do so renders

the denial of re-employment an independent breach of duty,

sharing with the original termination its nature as a discrimina-

tion on the basis of sex and thus a violation of the Act, as to

which violation the EEOC charges were timely filed by Moritz.

The substance of the representation to which we hold United

was that should the no-marriage rule be terminated those stew-

ardesses who had, because of the rule, resigned would be

re-employed. It was the company’s failure to re-employ Moritz

on November 14, 1968, that constituted the violation in her case.

The relief to which she is entitled must then be directed to that

violation rather than to the earlier time-barred violation. The

district court awarded back pay to the earlier violation. This we

hold to be error. The judgment in Moritz’s favor should be modi-

fied to award back pay to the November 14, 1968, violation and

adjust seniority accordingly.

/ Mitigation of Damages; Attorney Fees

[7] Attacking the damages awarded to both appellees as

excessive, United contends that there was no substantial evidence

that either Inda or Moritz had made reasonable efforts to mitigate

14 Appendix

damages by diligently pursuing other employment.* The record

contains credible testimony as to the efforts made. The question

is as to the degree of diligence that should be required and the

promptness with which plaintiffs should be required to have

abandoned efforts to secure employment in their chosen field and

to have sought employment in other fields. We note again that

only five months elapsed in the case of Inda, and eight months in

the case of Moritz, between resignation and application for re-

employment. In our judgment the court's findings in these respects

were not clearly erroneous.

We find no merit in United's contention that the attorneys’ fees

awarded Inda and Moritz were excessive.

APPEAL OF INDA AND MORITZ;

PROPRIETY OF CLASS ACTION

{8} In denying appellants’ motion for an order that the action

continue as a class action under Rule 23, Federal Rules of Civil

Procedure, the district court entered an order as follows:

“Plaintiff's Motion to Determine Class and Motion That

The Action Continue As A Class Action came on for hearing

on May 17, 1974, and the Court having heard the arguments

of counsel, having read the memoranda on file, and being

fully advised in the premises now ORDERS that Plaintiffs’

Motion to Determine Class be, and it hereby is, denied; and

FURTHER ORDERS that Plaintiffs’ Motion That The

Action Continue As a Class Action be, and it hereby is,

denied.”

From this order we have no way of knowing the ground upon

which the court acted and thus no way of reviewing the propriety

of that action.

3. 42 U.S.C. § 2000e-5(g) provides in part:

“Interim earnings or amounts earnable with reasonable diligence by

the person or persons discriminated against shall operate to reduce

the back pay otherwise allowable.”

Appendix 15

In Price v. Lucky Stores, Inc., 501 F.2d 1177, 1179 (9th Cir.

1974), we held that a trial court, “in determining whether or not

the case should proceed as a class suit, should make certain find-

ings as to the Rule’s provisions and their application to the case

at bar.” In the case before us the trial court should, at the least,

state the reasons for denial with such specificity that findings can

be supplied by implication.

United argues that Price was decided after the district court's

decision denying plaintiffs’ motion to permit their action to

proceed as a class action and that Price should not be given retro-

active effect. But in Price we noted that the need for findings by

the trial court was implicit in prior cases and Rule 23 itself.

Id. at 1170. Thus, the holding of Price is applicable to this case.

See generally United States v. Bowen, 500 F.2d 960, 975 (9th

Cir. 1974) (Part II, Wallace, J.) aff'd 422 U.S. 916, 95 S.Ct. 2569,

45 L.Ed.2d 641 (1975).

United points out that in Price there was no record other than

the complaint, answer and motion to dismiss; it asserts that here

there is such a record and that from examination of it grounds for

denial of class action status clearly appear. Thus, we are asked not

to determine whether a specific basis for denial finds support in

the record, but to determine in the first instance whether or not

existence of a ground is to be found in the record. In our judg-

ment basis for denial does not appear from the record with the

clarity United attributes to it. For us to make the necessary deter-

min*tion we would have to deal with subsidiary questions requir-

ing resolution of factual disputes or exercise of discretion—judicial

actions which are not appropriately a part of the appellate func-

tion.

We conclude that the order denying class action status must be

vacated and the matter remanded for entry of a sufficiently explicit

order. The district court is at liberty, within its discretion, to

16 Appendix

entertain further hearing on the question. Much has happened

since the order in question was entered. The Supreme Court has

handed down decisions involving the same no-marriage rule and

related issues and may have clarified the law in some relevant

respects.* A class, possibly with the same members, has been

certified in another action against United, Romasanta v. United

Airlines, Inc., supra, 587 F.2d at 919-20. More information re-

specting the proposed class may have become available, and a

redefinition oi the class may have become appropriate. We make

no suggestions in any such respects, but offer the district court a

free hand in extending or limiting the area of inquiry and in

entertaining motions with respect to it.

Upon the appeal of United, judgment in favor of Inda is

affirmed; judgment in favor of Moritz is vacated and the matter

remanded with instructions to modify the award of back pay to

run from November 14, 1968, and to adjust seniority to conform

with re-employment as of that date. Upon the appeal of Inda and

Moritz, the order denying class status is vacated and the matter

remanded for further proceedings. Costs are awarded to Inda and

Moritz.

4. United Air Lines, Inc. v. McDonald, — US. —, 97 S.Ct. 2464,

53 L.Ed.2d 423 (1977); United Air Lines, Inc. » Evans, — US. —,

97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Franks «. Bowman Transporta-

tion Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Albemarle

Paper Co. v. Moody, 422 US. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280

(1975).

Appendix 17

Appendix B

Kathleen C. INDA and

Kathleen F. Moritz, Plaintiffs,

We

UNITED AIR LINES, INC. and Air Line Pilots Association,

International,

Defendants.

No. C-72-1890 SW.

United States District Court,

N. D. California.

Jan. 30, 1975.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SPENCER WILLIAMS, District Judge.

I. Findings of Fact

A. Liability

1. Until November 8, 1968, defendant United Air Lines, Inc.

(hereinafter referred to as “United”’) maintained a policy which

required female flight attendants to resign or to suffer discharge

upon marriage. That policy did not extend to male flight attend-

ants.

2. Plaintiff Kathleen C. Inda (hereinafter referred to as

“Inda”) worked for United as a flight cabin attendant from

December 29, 1965 until June 15, 1968, at which time she re-

signed her employment.

3. Inda, at the time of her resignation, wished to continue

her employment as a flight cabin attendant with United. How-

ever, she had made plans to be married on June 29, 1968, and,

in fact, was married on that date. Inda was aware of United’s

policy of requiring female flight cabin attendants to retire from

18 Ap pendix

that position upon marriage, and her sole reason for resigning

was her belief that she was compelled to do so by United.

4. After resigning, Inda worked for United as a clerk, a non-

flight position, at United’s San Francisco Maintenance Base from

August 1968 through August 1969.

5. Inda transferred to said clerk position, for the most part,

to maintain her company seniority with United.

6. Plaintiff Kathleen F. Moritz (hereinafter referred to as

“Moritz”) worked for United as a flight cabin attendant from

February 9, 1966 to March 5, 1968, at which time she submitted

her resignation.

7. Moritz, at the time of her resignation, wished to continue

her employment as a flight cabin attendant with United. How-

ever, she had made plans to be married on March 30, 1968, and

in fact, was married on said date.

8. Moritz was aware of United's policy of requiring female

flight cabin attendants to retire from that position upon marriage,

and her sole reason for resigning was her belief that she was

compelled to do so by United.

9. On November 7, 1968, by letter of agreement, United

entered into a collective bargaining agreement with the Air Line

Pilots Association which contained a procedure for the adjust-

ment of grievances and provided in pertinent part:

“|. . that marriage will not disqualify a Stewardess from

continuing in the employ of the Company as a Stewardess

“All Stewardesses who have been terminated by the Com-

pany because of marriage and have filed a valid grievance

protesting such policy, or who have as of this date filed a

valid complaint before the Equal Employment Opportunity

Commission or State Agencies, will be offered the oppor-

tunity to return to active Stewardess service. Such Steward-

esses shall make application for reinstatement with no loss

of seniority to the Director of Stewardess Service within

Ap pendix 19

thirty (30) days of receipt of such notification from the

Company of such offer.”

10. Insofar as the procedure for the adjustment of grievances

precluded the rehiring of former United female flight cabin at-

tendants who, as a result of United's ‘‘no-marriage” rule, had

resigned before November 7, 1968 and had not previously filed

a valid complaint before the Equal Employment Opportunity

Commission or State Agencies, United still maintained an em-

ployment policy and practice of refusing to hire married women,

as opposed to married men, as flight cabin attendants.

11. Upon hearing of the change of policy effected by the

letter of agreement of November 7, 1968, Inda sought orally on

or about November 7 or 8 of 1968 and in writing on November

14, 1968, to be transferred from her non-flight position and re-

employed as a flight cabin attendant.

12. United denied Inda’s request to be re-employed as a flight

cabin attendant on or about November 18, 1968.

13. On November 18, 1968 Inda filed charges of sex dis-

crimination with the Equal Employment Opportunity Commis-

sion.

14. The Equal Employment Opportunity Commission ren-

dered a decision in December 1970, finding that there was prob-

able cause to believe that United had violated Inda’s rights on

the basis of her sex. On October 16, 1972 the Equal Employment

Opportunity Commission furnished Inda a ninety (90) day letter

authorizing her to sue in the United States District Court.

15. Inda filed this action on October 18, 1972.

16. On or about November 8 or 9 of 1968, upon learning

of United’s agreement with the Air Line Pilots Association,

Moritz asked Sue Husted, a United stewardess supervisor, for

re-employment as a flight cabin attendant. Said request was

denied.

20 Appendix

17. On or about November 13, 1968 Moritz filed charges of

sex discrimination with the Equal Employment Opportunity

Commission.

18. The Equal Employment Opportunity Commission ren-

dered a decision in December 1970, finding that there was

probable cause to believe that United had violated Moritz’s

rights on the basis of her sex. On October 16, 1972 the Equal

Employment Opportunity Commission furnished Moritz a ninety

(90) day letter authorizing her to sue in the United States

District Court.

19. Moritz filed this action on October 18, 1972.

20. United’s policy of refusing to hire or rehire married

women as flight cabin attendants was the only reason Inda and

Moritz were denied reinstatement by United; both plaintiffs were

otherwise qualified for employment as flight cabin attendants.

B. Damages: Herein of Earnings and Benefits

1. From the time of plaintiffs’ original employment by United

to the time of their resignations, stewardesses employed by

United were paid a monthly salary based on 70 hours of flying

per month, plus an hourly incentive rate for all hours flown in

that month over 70 hours and up to 85 hours.

2. Effective April 1, 1973, the monthly salary for steward-

esses was based on 67 hours of flying, and that was reduced to

65 hours of flying effective August 1, 1973.

3. The amount of time flown monthly was largely deter-

mined at each flight domicile by the flight schedules awarded

to the stewardesses pursuant to monthly bidding.

4. The stewardesses who possessed greater seniority were

given preferential treatment in the awarding of flight schedules,

and the flights bid for varied in a number of respects, including

the amount of time involved, the flight times, and the departure

and arrival locations.

Appendix 21

5. At the time of their resignations both plaintiffs bid pri-

marily for flights with more time and for the locations that they

desired.

6. Both plaintiffs were domiciled at San Francisco at the

time of their terminations.

7. During plaintiffs’ respective backpay claim periods, the

monthly base pay for the minimum required flying hours for

stewardesses with the seniority plaintiffs would have enjoyed

but for their resignations is as follows:

March 1, 1968 $400.00

October 1, 1968 410.00

January 1, 1969 435.00

October 1, 1969 495.00

January 1, 1970 525.00

October 1, 1970 570.00

January 1, 1971 590.00

October 1, 1971 649.00

January 1, 1972 676.50

January 1, 1973 693.00

October 1, 1973 738.00

January 1, 1974 764.50

May 1, 1974 817.00

8. United's records of yearly earnings for those eight to ten

stewardesses who had seniority immediately preceding or subse-

quent to that which plaintiffs would have had indicate yearly

average earnings as follows:

INDA MORITZ

1968 $ 6,038 $5,963

1969 6,896 6,599

1970 8,285 7,808

1971 8,633 8,636

1972 9,857 9,980

1973 10,289 9,884

9. United’s records indicate that plaintiff Moritz, prior to

her termination on March 5, 1968, had earned $1,789.20 in

22 Appendix

1968. This sum included December 1967 earnings and thus rep-

resented earnings of $131.56 per week. Had Moritz continued

to be employed throughout 1968, earning at the same rate, her

yearly earnings for 1968 would have been $6,841.12.

10. United’s records indicate that plaintiff Inda earned a

total of $5,401.39 in 1968 from employment both as a stewardess

until June 15, 1968 and as a clerk commencing in August.

11. In order to determine plaintiff Inda’s earnings as a stew-

ardess at the time of her termination in 1968, it is necessary to

segregate from her total 1968 earnings the remuneration she

earned on account of her non-flight clerk position.

12. United’s records reflect Inda’s total earnings in 1969,

solely from her employment as a clerk, of $2,899.38 or $322.15

per month for nine (9) months as her December 1968 earnings

were included in the $2,899.38 total.

13. Using this monthly rate of pay for the four months of

her non-flight employment in 1968, it is seen that Inda earned

$1,288.60 from said employment and $4,112.79 in her capacity

as a flight cabin attendant. On a monthly basis Inda earned

$587.54 as a flight cabin attendant in 1968. Thus, had Inda con-

tinued to be employed as a flight cabin attendant throughout

1968, her total yearly earnings would have been $7,050.48.

14. In addition to salary, United provided a stewardess dur-

ing the backpay claim periods here involved with the following

benefits:

a) free flight passes for herself and her immediate family;

b) substantial allowances for meals, lodging and transporta-

tion to and from the airport at layover stations;

c) replacement of all uniforms and insignia due to normal

wear and tear or a major style change;

d) accident/sickness, dental and life insurance coverage;

e) effective June 1972, a retirement plat. which required no

employee contribution.

Appendix 23

C. Damages: Herein of Amounts Earnable Within the

Claims Period With Reasonable Diligence

1. The requirements, perquisites and substance of the steward-

€ss position are amply set forth in John E. Courtright’s affidavit

filed by plaintiffs herein as Exhibit No. 9. In that affidavit Mr.

Courtright, United's Director of In-Flight Services in 1969, charac-

terized the job as a “unique one, different from all others in terms

of objectives, qualifications, duties and working conditions.” Spro-

gis v. United Air Lines, Inc., Civil No. 68-C-2311 (N.D.Iil.1974)

(Affidavit of J. E. Courtright, { 5).

2. As compared with non-flight jobs, such as maintenance

base clerk, the stewardess, among other things, earned approxi-

mately twice as much per hour; had a substantial range of choices

including where, when, with whom, and how much she would

work; could arrange her schedule to allow blocks of time off;

enjoyed perquisites such as substantial allowances for meals,

free transportation, hotels; and enjoyed the benefits of union

representation, seniority rights and the rights to file grievances.

Plaintiff. Moritz:

3. In addition to high school, plaintiff Moritz’s education

included a semester of college at Harris Teachers’ College in

St. Louis, Missouri.

4. Prior to her employment as a flight cabin attendant with

United, plaintiff Moritz had worked in St. Louis for a year as a

clerk-typist for the telephone company, and two years as a clerk-

typist and relief receptionist for an architectural firm.

5. She left that employment in January of 1966 to become

a United stewardess, and worked in that position until .iarch 5,

1968, when she resigned because of United's “no-marriage”’ rule.

6. From the summer of 1968 through May of 1969 Moritz

sought employment as a flight cabin attendant with several air-

lines including Universal Airlines, World Airways, Trans Interna-

tional Airlines, Air California, Holiday and Flying Tiger. She

had also attempted to be rehired by United in lvovember of 1968.

24 Appendix

7. All of these attempts were unsuccessful because Moritz

was married and the airlines’ industry-wide policy prohibited the

hiring of married women as flight cabin attendants.

8. From November of 1968 to May of 1969, Moritz was

registered with the California Department of Humar Resources

Development (hereinafter referred to as “HRD"’), and collected

approximately $1,440.00 in unemployment compensation benefits.

9. Throughout this period HRD referred Moritz to only one

job—as a flight cabin attendant with a private charter airline.

10. Moritz accepted this job and worked from approximately

May to August, 1969, when said charter airline went bankrupt

and the owner-operator disappeared without paying Moritz any

of the salary due her.

11. After the annulment of her marriage in May 1970, Moritz,

who was then living in the Los Angeles area, again unsuccessfully

sought employment as a flight cabin attendant with several air-

lines including American, Western, TWA and United.

12. Moritz also attempted to find employment in other capaci-

ties through an employment agency in Los Angeles. Said agency

found her clerical and typing skills too poor to refer her to any

such office jobs.

13. Moritz remarried in February of 1971.

14. In September of 1971, Moritz was informed by EEOC

that said agency had determined that her charge of sex dis-

crimination against United was well-founded, and said agency

would attempt conciliation with United on her behalf.

1s. As a result of this notification Moritz was under the

mistaken notion that she would shortly be reinstated as a flight

cabin attendant with United and therefore ceased pursuing further

employment opportunities.

Appendix 25

Plaintiff Inda:

16. In addition to her formal high school education, plaintiff

Inda attended Nevada Southern University at Las Vegas for

nearly two years as a technical theatre major.

17. Prior to her employment as a flight cabin attendant for

United, plaintiff Inda worked as a checker for Vegas Village,

a large discount house in Las Vegas, Nevada.

18. She left that employment in November 1965, to become

a United stewardess, and worked continuously in that capacity

until June of 1968 when she submitted her resignation in accord-

ance with United's “‘no-marriage’”’ rule.

19. After her termination, Inda worked in a ground position

with United as a clerk at the San Francisco Maintenance Base

from August 1968 through August 1969, at a salary of $322.15

per month.

20. Plaintiff Inda was dissatisfied with this position because

it did not allow her a chance to fly, to use any of her qualifications

and training in public contact work, or any choice in her hours

or amount of work. In addition, the pay was substantially less

than the salary Inda had made as a flight cabin attendant.

21. Plaintiff Inda unsuccessfully attempted transfer to another

position with United that would utilize her public service training

and experience. She was informed that it would take her fifteen

years of company seniority for her to become either a hostess

in United's Red Carpet Room, a passenger service representative

or even to be a ticket agent in United's Redwood City office.

Inda resigned her employment as a clerk in August 1969.

22. During the summer of 1969, both prior to and after her

resignation of her clerk position, Inda sought employment as a

flight cabin attendant with several airlines including Quantas,

TWA, American, Pacific. BDAC, Pan American, National, Delta

and Air West.

26 Appendix

23. All of these attempts were unsuccessful because Inda

was married and the airlines industry-wide policy prohibited

the hiring of married women as flight cabin attendants.

24. In addition, at Quantas Airlines Inda unsuccessfully

attempted to obtain employment as a passenger service representa-

tive.

25. Thereafter plaintiff Inda relied on employment adver-

tisements in the newspapers to unearth possible employment

which appeared interesting, entailed satisfactory remuneration and

afforded her some freedom in choosing her hours of employment.

Upon investigating those advertised job opportunities which

seemed to offer the desired employment perquisites, Inda dis-

covered that she was either unqualified, that the job did not

exist, or she was simply not hired.

26. In September of 1971, Inda was informed by EEOC that

said agency had determined that her charge of sex discrimination

against United was well-founded, and said agency would attempt

conciliation with United on her behalf.

27. As a result of this notification Inda mistakenly felt that

she would shortly be reinstated as a flight cabin attendant with

United, and therefore ceased pursuing any other substitute employ-

ment.

28. Plaintiff Inda’s son was born April 10, 1972, and she is

at this time nine months pregnant.

II. Conclusions of Law

A. As to Liability

1. This Court has jurisdiction over the parties and the subject

matter hereof.

2. The rule, regulation or policy of United which required

female flight attendants to resign or to suffer discharge upon mar-

riage is unlawful as in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 20006 ef seq.

Appendix 27

3. United's modification of its “no-marriage’” policy (said

policy having been referred to in paragraph 2 of Conclusions of

Law, supra) by letter of agreement dated November 7, 1968

between United and the Air Line Pilots Association carried for-

ward the consequences of United’s past discriminatory policies.

Application of this modified “no-marriage’’ policy still denied

plaintiffs employment or reinstatement as flight cabin attendants

solely because they were female and married, and was thus dis-

criminatory and in violation of 42 U.S.C. § 2000e et seq.

4. The resignations of Inda and Moritz, and each of them,

were caused by United’s discriminatory policies, and thus the

result of unfair employment practices in violation of 42 U.S.C.

§ 2000e ef seq.

5. The discharge violations found in paragraph 4, supra,

had continuing discriminatory effects, and each day that plain-

tiffs remained unemployed by United thereafter constituted a

day in which United violated 42 U.S.C. § 2000e et seg. as to each

plaintiff.

6. United's refusal to rehire Inda on November 18, 1968,

constituted an act of discrimination in violation of 42 U.S.C.

§ 2000e, ef seq.

7. United’s refusal to rehire Moritz on November 8 or 9,

and again on November 14, constituted acts of discrimination in

violation of 42 U.S.C. § 2000e ef seg.

8. Plaintiffs Inda and Moritz have sustained their burdens ~

of proof by establishing that the preponderance of evidence

shows:

a) their original resignations from United as flight cabin at-

tendants were substantially caused by United’s discriminatory

“no-marriage’”’ policy; and

b) United's refusal to rehire or reinstate plaintiffs in Novem-

ber 1968 was motivated solely by an illegal and discriminatory

policy in violation of 42 U.S.C. § 2000e et seq.

28 Appendix

9. Inda filed sex discrimination charges with the Equal Em-

ployment Opportunity Commission within 90 days subsequent

to acts of discrimination against her by United.

10. Moritz filed sex discrimination charges with the Equal

Employment Opportunity Commission within 90 days subsequent

to acts of discrimination against her by United.

B. As to Damages

11. In order to effectuate the purposes underlying Title VII

of the Civil Rights Act, back pay is properly awarded to an

aggrieved person found to have been discriminated against in

violation of said Title. An award of back pay has been recog-

nized as not a ‘mere adjunct of some more basic equity” but as

an “integral part of the whole relief which seeks, not to punish

the {defendant} but to compensate the victim of discrimination.”

Pettway wv. American Cast Iron Co., 494 F.2d 211, 252 (Sth

Cir. 1974).

12. The amount of damages permissibly awarded here is

controlled by Section 706(g) of the Civil Rights Act, 42 U.S.C.

§ 2000e-5(g¢), which provides in part:

“If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful

employment practice charged in the complaint, the court

may enjoin.. such... practice, and order such affirmative

action as may be appropriate, which may include . . rein-

statement or hiring of employees, with or without back pay

. or any other equitable relief as the court deems appro-

priate.”

13. Since this Court has determined that plaintiffs have

sustained economic loss from defendant's discriminatory employ-

ment practices, back pay should be awarded unless special cir-

cumstances are demonstrated. No special circumstances are pres-

ent here. Pettway, supra, at 252-53.

14. Plaintiff Inda’s back pay claim period commenced on

June 15, 1968 and, save her two pregnancies, continues uninter-

Appendix 29

rupted until she is reinstated under the terms and conditions of

this order. Plaintiff Moritz’s back pay claim period began on

March 5, 1968 and likewise continues until she is reinstated in

accordance with this order.

15. Although counsel for plaintiff Inda intimated that Inda’s

two pregnancies probably would not have occurred had she been

employed as a flight cabin attendant at the time, no testimony

was elicited to corroborate such a conclusion.

16. In any event, the facts are that Inda did become pregnant,

that her pregnancies were voluntarily planned and not just acci-

dents or casual illnesses, and that her pregnancies would have

rendered her unavailable for service as an airline stewardess at

some point even if the opportunity to work had been open to her.

17. Hence, it is the opinion of this Court that Inda’s claim

period referred to in paragraph 14, supra, was interrupted by

her two pregnancies for the number of months specified in plain-

tiffs’ trial exhibit number 11, /o wit, 8.3 months for Inda’s first

pregnancy and, to the extent that the damages provided for in

this order seek to make Inda whole through December 1974,

5.3 months for her second pregnancy. In short, United is entitled

to a reduction in its back pay liability by reason of Inda’s two

pregnancies.

18. Title VII provides that, “Interim earnings or amounts

earnable with reasonable diligence by the person or persons

discriminated against shall operate to reduce the back pay other-

wise allowable.” 42 U.S.C. § 2000e-5(g).

19. This ‘“‘mitigation’’ provision is in accord with and is

interpreted in light of the common law measures of damages

for breach of contract of employment and the practice under the

National Labor Relations Act. Ochoa v. American Oil Co., 338

F.Supp. 914, 919 (S.D.Tex.1972) ; Pettway, supra, at 252.

20. The burden is on defendant United to show interim

earnings or amounts earnable with reasonable diligence by plain-

30 Appendix

tiffs. Hegler v. Board of Educ., 447 F.2d 1078, 1081 (8th Cir.

1971); Rolfe v. County Bd. of Educ., 391 F.2d 77, 81 (6th Cir.

1968); N.L.R.B. v. Madison Courier, Inc., 153 US. App.D.C.

232, 472 F.2d 1307, 1318 (1972).

21. Defendant, contending that it does not carry the burden

but that the burden rests on plaintiffs, made little or no effort

to meet it. Plaintiffs, although asserting that the burden was

defendant's, made an adequate showing that plaintiffs used

reasonable diligence to find other suitable, similar or substan-

tially similar employment.

22. Defendant argued that Inda’s and Moritz’s applications

to other airlines for employment as flight cabin attendants did

not evince conduct reasonably calculated to procure other em-

ployment since they knew of the industry-wide proscription

against hiring married stewardesses. This is a most specious con-

tention. To subscribe to defendant's argument would be in effect

condoning not only isolated employment discrimination by in-

dividual employers, but wholesale discrimination on an industry-

wide basis. In essence, defendant would have this Court permit

discriminating employers to escape full Title VII liability by

merely pointing to the fact that substantially similar employ-

ment could never be found since all employers in the same field

followed the identical discriminatory practices. This Court will

not countenance such a result, for no person should be allowed

to profit from his or her wrong merely because he or she happens

to share in its perpetration.

23. Apart from the matter of available stewardess jobs at

other airlines, defendant contends that plaintiffs made inadequate

efforts to find employment in the San Francisco area.

24. As was noted above (paragraph 20), it has long been well

established that in damage claims for what was here, in effect, a

wrongful discharge, the burden is upon the employer to show that

the employees did not act reasonably to procure other employ-

ment.

Appendix 31

25. Although plaintiffs’ efforts in seeking substitute similar

employment cannot be characterized as overwhelming, there is

substantial evidence in the record showing that they did pursue

other employment and did so in a reasonably diligent fashion.

26. This Court concludes that defendant United has failed to

show that there were substantially similar jobs available to plain-

tiffs Moritz and Inda which they could have discovered and for

which they were qualified.

27. Plaintiffs Moritz and Inda have shown that they exercised

reasonable diligence to find substantially similar employment dur-

ing the back pay claim period, but that no such employment was

available to them.

28. State unemployment compensation benefits are made to

carry out an independent social policy and are, therefore, not to be

considered “interim earnings” deductible from a discriminatee’s

back pay award. Tidwell v. American Oil Co., 332 F.Supp. 424,

437-38 (D.Utah 1971.) As such, the $1,440.00 in unemployment

compensation benefits received by plaintiff Moritz are not to be

deducted from her back pay award.

29. Therefore, pursuant to 42 U.S.C. § 2000e-5(g), United

is liable to plaintiffs Moritz and Inda for the following amounts

of back pay damages:

NDA MORITZ

1968 $ 1,649 $ 5,052

1969 3,997 6,599

1970 8,285 7,808

1971 8,633 8,636

1972 9,857 9,980

1973 10,289 9,884

1974 10,289 9,884

less (1971-72 maternity) —6,538

less (1974 maternity) —4,544

TOTALS = $41,917 $57,843

32 Appendix

30. United is liable to plaintiffs for pre-judgment interest on

the above back pay awards, at the rate of 6% per annum, to be

calculated on a quarterly earnings basis.

31. United is further liable to plaintiffs for back pay in 1975

until such time as they are reinstated pursuant to this Court’s order.

32. United is ordered to reinstate plaintiffs with full senior-

ity from their respective dates of hire, with all of the employment

rights and benefits to which they are entitled by virtue of said

seniority, including restoration into United's retirement plan.

33. Jurisdiction is retained to determine the amount of attor-

ney's fees and costs incurred in prosecuting this action.

It is so ordered.