Petition — Sangster v. United Air Lines, Inc.

Supreme Court brief1981

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80-1 3 MAR 5 1981

NO. ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

LINDA E. S/A.NGSTER,

PETITIONER,

UNITED AIR LINES, INC.,

A DELAWARE CORPORATION,

AND AIRLINE PILOTS

ASSOCIATION, INTERNATIONAL,

A LABOR ORGANIZATION,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Robert W. Tollen

Chickering & Gregory

Three Embarcadero Center

Twenty-Third Floor

San Francisco, California

Telephone: (415) 393-9000

Counsel for Petitioner

March 6, 1981

QUESTION PRESENTED FOR REVIEW

Whether, under Tipe VII of

the Civil Rights Act of 1964, a dis-

criminatee who fails to mitigate back

pay damages may be punished by having

all back pay denied or whether the dis-

criminatee may be denied merely such

amounts as could have been earned with

reasonable diligence.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ...--l

TABLE OF CONTENTS wcccocceccccecevel

TABLE OF AUTHORITIES ceccccsccccveeld

REPORTS BELOW ..cccccceseccscesesesed

JURISDICTION IN THE SUPREME COURT..5

STATUTORY PROVISION INVOLVED

IN THIS CASE Tervrer? rer ttt

STATEMENT OF THE CASE ceoscececceces

REASONS FOR ALLOWANCE OF THE WRIT.15

APPENDIX A

Opinion of the United States

Court of Appeals, Ninth Circuit,

entered December 8, 1980.......1a

APPENDIX B

Opinion and judgment of the

United States District Court

for the Northern District of

California, entered

October 14, be ee ee re re

APPENDIX C

Reporter's Transcript of the find-

ings of fact and conclusions of

law delivered from the bench by

the United States District Court

for the Northern District of

California on November 7,

Cl re SNe ree Serer res

TABLE OF AUTHORITIES

Albemarle v. Moody,

422 U.S. 405 (1975) ecccccvcccesel6

Bullard v. El Dorado Tire Company,

512 F.2d 901 (5th Cir. 1975) .++-21

EEOC v. Kallir, Philips, Ross, Inc.,

420 F. Supp. 919 (S.D. N.Y.

1976) ccccccveccccccccccceescccceas

Franks v. Bowman,

424 U.S. 747 (1964) ccccccccccceead

Grindstaff v. Burger King, Inc.,

494 F. Supp. 622 (E.D. Tenn,

1960) ccccccecccccceccccccccccees au

Hegler v. Board of Education

of Bearden School District,

447 F.2d 1078 (8th Cir. 1971)...18

Inda and Moritz v. United Air Lines,

405 F. Supp. 426 (N.D. Calif.

1975), 565 F.2d 554 (9th Cir.

LOTT) cece ved cosdaveetecesevanséoeda

John S. Doane Co. v. Martin,

164 F.2d 537 (lst Cir. 1947)....19

Parker v. Twentieth Century-Fox Film

Corporation,

3 Cal. 3d 176, 89 Cal. Rptr.

737, 474 P.2d 689 (1970) .eeeeeee22

Sangster v. United Air Lines and

ALPA, 438 F. Supp. 1221,

16 FEP Cases 617 (N.D. Calif.

1977), aff'd 633 F.2d 864,

24 FEP Cases 845 (9th Cir.

WOO) co ccccvcccccccccsccccccccoccsece

U.S. v. Lee Way Motor Freight, Inc.,

625 F.2d 918 (10th Cir. 1979)...19

REPORTS BELOW

The District Court granted

plaintiff's motion for partial summary

judgment and directed the entry of

judgment, reinstating plaintiff with

full seniority, pursuant to FRCP Rule

54(b). The court's opinion in connect-

ion with that ruling is reported as

Sangster v. United Air Lines and ALPA,

438 F.Supp. 1221, 16 FEP Cases 617 (N.D.

Calif. 1977). See Appendix B. Follow-

ing the entry of judgment under Rule

54(b), trial was held, limited to the

issues of monetary relief. The court's

opinion denying back pay, from which

this petition results, is not re-

ported. See Appendix C. The Court of

Appeals' opinion affirming the District

Court is reported as Sangster v. United

Air Lines and ALPA, 633 F.2 864, 24 FEP

Cases 845 (9th Cir. 1980). See Ap-

pendix A.

JURISDICTION IN THE SUPREME COURT

Petitioner seeks a writ of

certiorari to review the judgment and

opinion entered by the Court of Appeals

For the Ninth Circuit on December 8,

1980. Jurisdiction is conferred on this

Court by 28 U.S.C. § 210l1(c).

STATUTORY PROVISION INVOLVED

IN THIS CASE

The sole statutory provision

involved is § 706(g) of the Civil Rights

Act of 1964, as amended, 42 U.S.C.

§ 2000e-5(g), which reads in full:

"If the court finds that

the respondent has_ intention-

ally engaged in or is inten-

tionally engaging in an unlaw-

ful employment practice charged

in the complaint, the court may

enjoin the respondent’ from

engaging in such unlawful en-

ployment practice, and order

such affirmative action as may

be appropriate, which may

include, but is not limited to,

reinstatement or hiring of

employees, with or without back

pay (payable by the employer,

employment agency, or _ labor

organization, as the case may

be, responsible for the unlaw-

ful employment practice), or

any other equitable relief as

the court deems appropriate,

Back pay liability shall not

accrue from a date more than

two years prior to the filing

of a charge with the Commnis-

sion. Interim earnings or

amounts earnable with reason-

able diligence by the person or

persons discriminated against

shall operate to reduce the

back pay otherwise allowable,

No order of the court shall

require the admission or rein-

statement of an individual as a

member of a union, or the hir-

ing, reinstatement, or promot-

ion of an individual as an

employee, or the payment to him

or any back pay, if such in-

dividual was refused admission,

suspended, or expelled, or was

refused employment or advance-

ment or was suspended or dis-

charged for any reason other

than discrimination on account

of race, color, religion, sex,

or national origin or in viola-

tion of section 2000e-3(a) of

this title.”

STATEMENT OF THE CASE

Linda E. Sangster,- then an

unmarried woman 2/ was first employed by

United Air Lines as a stewardess on

November 24, 1961. As a stewardess,

Mrs. Sangster was required to be a mem-

ber of the Air Line Pilots Association

("ALPA"), and her terms of employment

were governed by the collective bargain-

ing agreement between ALPA and United.

At the time Mrs. Sangster was hired,

United and ALPA maintained a then legal

policy of denying employment as steward-

esses to women who were married.

On May 28, 1966, Mrs.

Sangster, then still unmarried, was

promoted to the non-flight position of

stewardess-supervisor. This change of

if For convenience, we use her married

name throughout.

status did not affect her seniority as a

stewardess, which continued to accrue in

accordance with the provisions of the

applicable collective bargaining agree-

ment as though she were still on active

stewardess service. Nor did it preclude

a later return to stewardess status with

full accrued seniority covering both her

tenure as a stewardess and as a super-

visor, should she so choose,

On April 9, 1968, Mrs.

Sangster married. Notwithstanding en-

actment of the Civil Rights Act in 1964,

United and ALPA had not by then modified

their no-marriage rule. They did not do

so until November 7, 1968, when in

response to various grievances and EEOC

charges previously filed by terminated

United stewardesses, United and ALPA

agreed that marriage would no longer

disqualify a stewardess from continuing

in the employ of the company as a

stewardess. The new agreement between

United and ALPA did not modify United's

no-marriage rule insofar as it pro-

hibited the hiring of married women as

stewardesses, nor insofar as it barred

married supervisors from exercising

their contractual rights to resume

stewardess service. Mrs. Sangster

learned of these subtle distinctions on

November 8, 1968, the day after the new

agreement was signed, when she requested

transfer to stewardess status and was

rejected because she was married.

Within 90 days of the reject-

ion of her request, Mrs. Sangster filed

a charge with the EEOC. She had also

initiated an internal company grievance

procedure for non-union personnel, but,

on June 4, 1969, her ‘'=st appeal through

the grievance procedure to the president

of United Air Lines was rejected. On

July 16, 1969. Mrs. Sangster resigned as

an employee of United Air Lines .2/

Mrs. Sangster did not seek

employment from another airline after

termination at United. She was familiar

with the industry practice of refusing

to hire married women and believed she

could not be hired. If she could have

been hired, she would have had to have

been domiciled elsewhere than the San

Francisco Bay Area, where she and her

husband maintained their home, San

Francisco was a senior base for most

' airlines, and she would be starting over

2/ The District Court held that she was

entitled to quit her employment with

United, and that ruling was not

disturbed by the Court of Appeals.

10.

again without the eight years seniority

she had accumulated with United.

Mrs. Sangster made efforts to

obtain employment in local restaurants

and cocktail lounges, and she reviewed

classified want-ads for clerical posi-

tions, but was discouraged because of

the requirement that applicants be ex-

perienced.

According to the defendants’

testimony, an inflight supervisory posi-

tion was available at United beginning

some time in 1970, presumably without

| regard to marital status, although that

point was not brought out at trial.

Mrs. Sangster testified that she was

aware of that position during the last

few years of her unemployment (which

ended in 1977) and had not applied for

it.

ll.

Thus, Mrs. Sangster did not

obtain alternative employment at any

time prior to her reinstatement with

United Air Lines, pursuant to court

order, on November l, 1977.

On April 19, 1972, the EEOC

issued its Decision in Mrs. Sangster's

case, finding reasonable cause to be-

lieve that United and ALPA had violated

Title VII by refusing to allow Mrs.

Sangster tc resume duties as stewardess

because of her status as a married

woman.

Although the EEOC had notified

Mrs. Sangster that it would attempt

conciliation, she heard nothing further

from that agency. In late 1975, Mrs.

Sangster learned indirectly from Mrs.

Kathleen Moritz, plaintiff in Inda and

Moritz v. United Air Lines, 405 F. Supp.

12.

426 (N.D. Calif. 1975), 565 F.2d 554

(9th Cir. 1977), through their respect-

ive husbands, both of whom flew for

United Air Lines, that it was not

necessary to wait for the EEOC. Mrs.

Sangster immediately contacted Mrs.

Moritz’ attorney, and the present law-

suit followed. Jurisdiction in the

District Court was invoked pursuant to

§ 706(£)(3) of the Civil Rights Act of

1964, as amended 42 U.S.C. § 2000e-

5(£)(3).

On October 14, 1977, the trial

judge granted Mrs. Sangster's motion for

partial summary judgment, finding that

United and ALPA had violated the Act and

ordering her’ reinstated with full

eaikiet ie. The court ordered judgment

as to that part of the case entered

pursuant to Rule 54(b).

13.

On November 7, 1977, a one day

trial was held on the issues of backpay

and attorney's fees. At the conclusion

of the trial, the trial judge ruled

that ... “the plaintiff did not

mitigate her damages, has not sought to

mitigate her damages, and, therefore, is

not entitled to any recovery for back-

pay." No evidence had been placed

before the trial court as to the

"amounts earnable with reasonable dili-

gence," §706(9), 42 U.S.C. § 2000e-5(9),

in order that the court could "reduce |

the back pay otherwise allowable", §

706(g). Nevertheless, in what peti-

tioner views as an unauthorized and

impermissible punishment for Mrs.

Sangster's failure to mitigate, the

court ruled that she was entitled to no

backpay whatsoever.

14.

Mrs. Sangster appealed the

trial court's judgment denying her

backpay: CA No. 78-1289. ALPA appealed

the trial court's earlier Rule 54(b)

judgment on liability, arguing issues of

timeliness, laches and so forth, but not

the underlying violation: CA No. 1242.

On December 8, 1980, the Court of Ap-

peals affirmed the District Court in all

respects. In this petition for certi-

orari, Mrs. Sangster seeks review of the

Court of Appeals' judgment in CA No.

1289, affirming the trial court's de-

cision to deny all backpay, without

regard to the amounts otherwise earnable

with reasonable diligence.

REASONS FOR ALLOWANCE OF THE WRIT

At slip opinion page 4, the

Court of Appeals referred to the holding

15.

_—

of this Court in Albemarle v. Moody, 422

U.S. 405, 421 (1975), to the effect that

"back pay should be denied only for

reasons which, if applied generally,

would not frustrate the central statu-

tory purposes of eradicating discrimina-

tion throughout the economy and making

persons whole for injuries suffered

through past discrimination." At slip

opinion page 6, the Court concluded that

"Sangster did not meet her duty to miti-

gate her damages, and that denial of

back pay under the circumstances would

not frustrate Title VII's remedial pur-

poses."

This punitive logic for deny-

ing Sangster all backpay, without regard

to determining approximately how much

she could have earned in mitigating

employment, is in conflict with the

16.

plain language of the Civil Rights of

1964 and with the decisions of other

federal courts of appeals and the court

of last resort in at least California.

It also sanctions such a departure by

the trial court from the accepted and

usual course of judicial proceedings as

to call for an exercise of this Court's

power of supervision.

Section 706(9), 42 U.S.C.

§ 2000e-5(g), provides, in relevant

part, that "Interim earnings or amounts

earnable with reasonable diligence by

the person or persons discriminated

against shall operate to reduce the

backpay otherwise allowable." In Mrs.

Sangster's case-in-chief, she showed

what she would have earned if the de-

fendants had permitted her to resume

stewardess service, notwithstanding her

17.

”

marital status. Assuming that she

failed to mitigate (an issue that

Mrs. Sangster challenged in both courts

below), the plain language of § 706(9)

requires the trial court (1) to make

some finding as to the “amounts earnable

with reasonable diligence" by the plain-

tiff, (2) to deduct those amounts from

"the backpay otherwise allowable," and

(3) to award the plaintiff the balance.

In Hegler v. Board of Educa-

tion of Bearden School District, 447

F.2d 1078 (8th Cir. 1971), a race dis-

crimination case arising under 42 U.S.C.

§§ 1981 and 1983, the Court of Appeals

for the Eight Circuit wrote that "[t]he

overwhelming authority places the burden

on the wrongdoer to produce evidence

showing what the appellant could have

18.

earned to mitigate damages." 447 F.2d

at 1081.

In John § S. Doane Co. V.

Martin, 164 F.2d 537 (lst Cir. 1947), a

case arising under the veterans reem-

ployment provisions of the Selective

Training and Service Act of 1940, 50

U.S.C.A. Appendix, § 308(e), the Court

of Appeals For the First Circuit wrote

that, "[{i]Jn the matter of mitigation of

the damages, the burden is upon the

respondent to produce evidence showing

the amount of money the petitioner did

earn, or with reasonable care and dili-

gence could have earned ... ." 164

F.2d at 541.

In U.S. ve. Lee Way Motor

Freight, Inc., 625 F.2d 918 (10th Cir.

1979), a case arising under Title VII of

the Civil Rights Act of 1964, the trial

19.

court had found that some claimants had

adequately mitigated their backpay

losses and some claimants had not. The

trial court did not punish the

nonmitigating claimants by denying them

all backpay. Instead, the trial court

used the average earnings of the

mitigating claimants as a basis for

calculating interim earnings for the

nonmitigating claimants. This approach

was approved by the Court of Appeals for

the Tenth Circuit. 625 F.2d at 938.

In Grindstaff v. Burger King,

Inc., 494 F. Supp. 622 (E.D. Tenn.

1980), a case arising under Title VII of

the Civil Rights Act, the court found

that the plaintiff had earned $9,338.17

in mitigating employment, but that she

could have earned $12,500.00. The court

deducted $12,500.00 from the gross back

20.

pay of $17,999.78 and awarded the

plaintiff the balance of $5,499.78. 494

F. Supp. at 625.

In EEOC v. Kallir, Philips,

Ross, Inc., 420 *. Supp. 919 (S.D. N.Y.

1976), affirmed by the Court of Appeals

for the Second Circuit without published

opinion at 559 F.2d 1203 (2nd Cir.

1977), a case arising under Title VII of

the Civil Rights Act of 1964, the Dist-

rict Court held that, “[o]nce the gross

back pay owed plaintiff has been de-

termined, the burden shifts to the

defendant to prove what should be

deducted therefrom as ‘'[iJnterim earn-

ings or amounts earnable with reasonable

diligence.'" 420 F. Supp. at 924.

In Bullard v. El Dorado Tire

Company, 512 F.2d 901 (5th Cir. 1975), a

case of wrongful discharge arising under

21.

Florida law, the Court of Appeals For

the Fifth Circuit quoted Dobbs, Reme-

dies, §12.25, p. 925, to the effect

that, "[i]f the employer has obtained a

substitute job, or could obtain one by

reasonable effort, he is chargeable with

the income he obtains or could reason-

ably obtain in this fashion, but only if

the employer sustains the burden of

proving these facts." 512 F2d at 901.

In Parker v. Twentieth Cen-

tury-Fox Film Corporation, 3 Cal. 3d

176, 89 Cal. Rptr. 737, 474 P.2d 689

(1970), a case of breacl of contract to

employ arising under California law, the

California Supreme Court held that

"[t]he general rule is that the measure

of recovery by a wrongfully discharged

employee is the amount of salary agreed

upon for the period of service, less the

22.

amount earned or with reasonable effort

might have earned from other employ-

ment." 3 Cal. 3d at 181. Although this

case did not involve a federal statute,

presumably the California Supreme Court

would apply the same rule of law to any

wrongful discharge.

The Court of Appeals' willing-

ness to punish Mrs. Sangster for not

mitigating her damages is also contrary

to this Court's holding in Franks v.

Bowman, 424 U.S. 747, 764 (1964), quoted

by the Court of Appeals at slip opinion

page 4, to the effect that persons ag-

grieved by discriminatory employment

practices “be, so far as possible, re-

stored to a position where they would

have been were it not for the unlawful

discrimination." In restoring a

discriminatee to a position where he or

23.

she would have been without the unlawful

discrimination, it is fair to deduct

losses willfully incurred, but deducting

more leaves the victim of discrimination

still a victim.3/

Given the Court of Appeal's

decision in the case at bar, there is a

difference of opinion among the circuits

3/ At slip opinion page 5, the Court of

Appeals cited Phelps Dodge Corp. v.

NLRB, 313 U.S. 177, 198 (1941), for

the proposition that: “Under the

NLRA, courts have long held that

back pay is not to be awarded when

the evidence shows a wilful loss of

earnings." Emphasis added. The

actual language reads as follows:

"Since only actual losses should be

made good, it seems fair that

deduction should be made not only

for actual earnings by the worker

but also for losses which he wil-

fully incurred.” 313 U.S. at 198

(emphasis added). The difference

between the Court of Appeais'

paraphrase and this Court's actual

language parallels the difference

between the Court of Appeals' result

and petitioner's position herein.

24.

‘as to whether a discriminatee who fails

to mitigate should be denied all back

pay or may be denied merely such amounts

as could have been earned with reason-

able diligence. The Supreme Court

should allow a writ in order to resolve

this important question in the admini-

stration of Title VII of the Civil

Rights Act of 1964.

DATED: March 6, 1981.

Respectfully submitted,

ROBERT W. TOLLEN

CHICKERING & GREGORY

25.

Pe teeve sp easie sews os 65 SEs77 eee

APPENDIX A

fine sua 2

UES 9 1980

<= a:4#| FILED

UNITED STATES COURT OF APPEALS DEC °

FOR THE NINTH CIRCUIT

RICHARD H. DEANE

AER US CRT OF APPLES

LINDA E. SANGSTER, an individual,

Plaintiff-Appellant, Bo. 78-1242, 78-1289

vs. D.C. Mo. CV 76-2426 SC

corporation, and AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL, a labor

ocganization,

)

’

)

UNITED AIR LINES, INC., a Delaware ) OPINION

)

Defendants-Appellees. )

)

Appeal from the United States District Court

for the Northern District of Califocnis

Samael Conti, District Judge, Presiding

Argued and suomicted August 13, 1980

Before: RIGHT, GOODIN and ALARCON, Circuit Judges.

ALARCON, Ciccuit Judge:

This is an employment discrimination case brougnt

undec Tifle VII of the Civil Rights Act of 1964, 42 U.S.C.

seotaén 2000¢ et seg. Linda B. Sangster, » former airline

stewardess, alleged that her employer, United Aic Lines, Inc.

(United), and her collective bargaining agent, the Air Line

Pilots Association (ALPA) had discriminated against her on tne

asis of hec sex. ALPA appeals on No. 78-1242 from the

istcict couct order granting Sangstec’s motion for pretcial

ummary judgment on the issue of Liability and ordecing her

einstatement with full seniocity.2/ Sangstec appeals in Mo.

8-1289 from the subsequent judgment denying hec an avac3 of

ck pay and awarding attocneys’ fees. ae affice the district

ct in all cespects.

FACTS

Sangstec was hiced by United on November 24, 1961 as

n aicline stewardess oc flight attendant. She was unmarccied

t that tlee. On May 28, 1966 she was promoted to the

nonflight position of stewardess supecvisor. This change in

status did not affect ner seniority as a stewardess, which

continued to accrue in accordance with the provisions of the

applicable collective bargaining agreement as though she were

still in active stewardess service. The transfec did not |

preclude a later return to her position as stewardess with full!

accrued seniority.

On April 9, 1968 Sangster married a United pilot. a

was awate that once married United's cules would bar her from

resuming her former stewardess position and that she would

forfeit her stewardess seniority rights. Nevertheless, she

decided to continue in her employment as a stewardess

supecvisoc after her marriage and to await the outcome of

negotiations between United and ALPA, which sne hoped would

soon tecminate the no-marriage policy.

United and ALPA did reach such an agreement on

November 7, 1968. The agreement was only pactially

retroactive, however, and did not protect marcied stewardess

supervisors who wished to transfer back to a flight position.

When Sangster applied for transfer to stewardess status on

November 8, 1968, United denied her application. The hext day

she filed a formal complaint under United's internal grievance

procedure, and on February 6, 1969, she filed a charge of

Aisccrimination with the Equal Employment Opportunity Commission

(EEOC). Her grievance complaint was denied by United on June

4, 1969. On June 16th Sangster quit her employment with eS

On March 8, 1972 the EEOC found reasonable cause to

believe that Sangsterc's charge of discrimination was

well-founded. On October 12, 1976 the EEOC informed her that

the dispute could not be reconciled and that she hac a cight ‘9

sue. On November 1, 1976 Sangster filed her complaint in

distcict couct seexing reinstatement with full seniority, back

pay and attorneys’ fees.

The court granted Sangster's motion for pretrial

summary judgment on the issue of liability and ordered Sangster

reinstated with full seniority.

A trial was held on the issues of back pay and

attorneys' fees. At the trial, Sangster testified as to her

efforts to seek alternative employment. She had remained un-

employed for the eight years between the day she voluntarily

quit her job and the time United was ordered to restore her to

her position as stewardess with full seniority. She admitted

that she did not seek work with another airline after leaving

United, either as a stewardess or in a supervisory or other

capacity. Her efforts at obtaining other positions were

mininal.— Sangster testified that the stewardess position

at United with her seniority intact was a unique position,

enabling her to adapt her schedule to her pilot-husbana's while

being assigned to the same geographic area.

The district court found that Sangster was not

interested in any other position during her eight-year period

of unemployment and that she had not exercised reasonable

diligence in obtaining substantially equivalent employment.

Concluding that she had not met her obligation to mitigate her

Gamages, and therefore was not entitled to compensation for the

period of her unemployment, the court denied Sangster's request

for back pay. The court awarded attorneys’ fees against the

defendants of $5,537.00, an amount substantially below the

reguested sum.

ALPA‘'sS APPEAL

ALPA contends that Sangster failed to file her charge

of employment discrimination with the EEOC in a timely

fashion. We find no merit in ALPA's contention that the 90-day

filing period commenced on the date of Sangster's marriage. In

+3e

light of the remedial policies behind Title VII, we fefuse to

give the strained interpretation urged by ALPA as to when

Sangster's right of action accrued and thus to deny her

redress. See Mahroom v. Hook, 563 F.2d 1369, 1375 (9th Cir.

1977), cert.denied, 436 U.S. 904 (1978). It was not until

Sangster attempted to thaiaen to a stewardess position on

November 8, 1968 and felt the impact of the discriminatory

transfer rule that the filing time began to run. Therefore,

Sangster's charge filed on February 6, 1969 was timely

filea.2/

SANGSTER'S APPFAL

A. Back Pay

An aware of back pay in employment discrimination

cases is one of the weapons in a court's arsenal to effectuate

the dual purposes of Title VII: (1) to end discriminatory

employment practices; and (2) to make employees whole for

injuries sufferea on account of unlawful employment

discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405,

417-18 (1975). A finding of unlawful discrimination requires

an award of back pay unless reasons exist "which, if applied

generally, would not frustrate the central statutory ove!

of eradicating discrimination throughout the economy and making

persons whole for injuries suffered through past

discrimination." Kaplan v. International Alliance of

Theatrical Stage Employees, 525 F.2d 1354, 1363 (9th Cir. 1975)

(quoting Albemarle, 422 U.S. at 421). Title VII's remedial

provisions are intended to give the courts wide discretion in

exercising their equitable powers to fashion the most complete

relief possible, requiring that persons aggrieved by

discriminatory employment practices “be, so far as possible,

restored to a position where they would have been were it not

for the unlawful discrimination." Franks v. Bowman

Transportation Co., 424 U.S. 747, 764 (1976). The

-4-

discretionary decision of the trial court regarding an award of

back pay is reversible only for an abuse of the court's

discretion. Sias v. City Demonstration Agency, 588 F.2d 692,

696 (9th Cir. 1978).

AS a broad proposition, injured parties are expected

to mitigate the damage they suffer. This notion is expressed

in Title VII in the following language: “Interim earnings nhs

amounts earnable with reasonable diligence by the person or

persons discriminatec against shall operate to reduce the back

pay otherwise allowable." 42 U.S.C. Section 2000e-5(g)

(emphasis acded).

"The backpay provision [of Title VII] was expressly

modeled on the backpay provision of the National Labor

Relations Act." Albemarle Paper Co., 422 U.S. at 419. Under

the NLRA, courts have long held that back pay is not to be

awarded when the evidence shows a willful loss of earnings.

Phelps Dodse Corp. v. NLRB, 313 U.S. 177, 198 (1941).

Developed from this general concept, the nore specific acts

which constitute such willful conduct are: failure to remain in

the labor market, refusal to accept substantially equivalent

employment, failure diligently to search for alternative work,

or voluntarily quitting alternative employment without good

reason. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 174 n.3

(2nd Cir. 1965), cert.denied, 384 U.S. 972 (1966).

United and ALPA had the burden of showing that

Sangster could have mitigated her damages. Kaplan v.

International Alliance of Theatrical Stage Employees, 525 F.2d

at 1363. Sangster claims that United and ALPA failed to

establish that there was substantially equivalent work

available which, in the exercise of reasonable diligence, she

could have obtained. See Sias v. City Demonstration Agency,

588 F.2d at 696. We disagree. Moreover, she admitted that she

—_

knew of an in-flight supervisory position tnoat nad been

available since 1970 for at Least the Last few years of her

unempLoymeant and that other United employees on similar |

circumstances nad obtained jops as stewardesses. Perhaps most

important is Sangstec's admission that she never even attempted

to procure a job as a stewardess, the wor she considered

preferable to her position as stewardess supervisor. The

evidence, from whatever sources, was more than sufficient to

satisfy appellees’ burden of showing that substantially

equivalent work was available to Sangster.

Sangster's reliance on cases that hold that a

plaintiff is not required to seek employment that is outside

hec area of cesidence, distasteful, essentially different, or

inferior is misplaced. Apparently, her main ceason for

preferring tne stewardess position to that of stewardess

supervisor was that she could tailor her schedule to that of

hec pilot-husband. Certainly United was unjustified in denying

her that opportunity solely on the basis of her sex and marital

status. Nonetneless, Sangster was not entitled to remain idle

for eignt years aftec quitting substantially equivalent

employment even if nec right to seek employment with a

iffecent employer is given full recognition, We conclude that

angster did not meet her duty to mitigate her damages, and

hat denial of bac< pay under the circumstances would not

custrate Title VII's remedial purposes. S2e DeLorean

dillac, Inc. v. NLRB, 614 F.2d 554, 555 (6th Cir. 1980)

finding of reasonable diligence unsupported by record as a

hole where based on uncorroborated testimony by discriminatee

f nis efforts to secure a job). Cf. Inda v. United Air Lines,

nc., 565 F.2d 554 (9th Circ. 1977), cert.denied, 435 U.S. 1007

1978) (reasonable diligance on the part of two stewardesses,

ach unemployed for less than nine months, shown by credible

testimony); Sprogis v. United Air Lines, Inc.-, 517 F.2d 387

(7th Cir. 1975) (reasonable diligence after discriminatory

d@ischarge shown on the part of married stewardess by at least

one formal application for employment and the procurement of a :

temporary two-month job during a two-year period of

unemployment).

B. Attorneys’ Fees

An award of attorneys' fees in a Title VII suit is

within the broad discretion of the trial court and should be

proportionate to the extent to which the plaintiff prevails in

the suit. Schaeffer v. San Diego yellow Cabs, Inc., 462 F.2d

1002, 1008 (9th Cir. 1972). The trial judge is in the best

position to evaluate the complexity of the case as well as

other relevant factors. We affirm the award of attorneys’ fees

in the amount set by the trial court, finding no abuse of

discretion.

AFFIRMED.

-J-

FOOTNOTES

1/. The district court issued a written opinion reported at

Sangster v. United Air Lines, Inc., 438 F.Supp. 1221 (N.D. Cal.:

1977).

2/ As summarized by the court, the evidence showed:

The plaintiff has testified that, with reference

to the mitigation of damages in this case, which is

the central and crucial issue, the plaintiff has

testified that she reviewed classified ads for

suitable jobs. However, there is no evidence that sh

made any calls with reference to her perusal of the

classified ad section and we are talking of a period

of almost 8 years from July 1969 to May 1977. Also

that she applied as a cocktail waitress or restaurant

hostess; the great majority of those, about 4

applications, made after she consulted her lawyer in

December 1975, and only 2 before that time.

She inquired by telephone only of 4 travel

agencies regarding employment. She @id not apply to

other airlines and she did not register at any

employment agency for work or with the state nor did

she apply for benefits, all of this during the said

8-year period. (RT: 127-28)

The record bears out this summary. See RT: 54-67, 124.

3/ ALPA also contends that Sangster's claim was barred by the

applicable state statute of limitations. This argument must

fail. See Kirk v. Rockwell Int'l Corp., 578 F.2d 814, 819 (9th

Cir. 1978). We also find no grounas for applying the equitable

doctrine of laches to bar Sangster's claim. The considerable

delay in filing her claim in district court was not an

inexcusable lack of diligence in light of the facts that the

EEOC did not inform Sangster of her right to sue and that she

dia not learn until some time in 1975 that she could sue

without awaiting a final resolution by the EFOC. Cooper v.

Bell, No. 78-2265, slip op. at 4845 (9th Cir. Aug. 21, 1980).

YI Banc tone

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ef Record :

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LINDA E. SANGSTER, an

individual,

Plaintiff, No. C-76-2426 SC

UNITED AIR LINES,INC., a

Delaware corporation, and.

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, a labor

organization,

OPINION

Defendants.

ee ee ee ee ee ee et et eet et eet ee

Linda Sangster sues United Air Lines,Inc. (United),

and the Air Lines Pilots Association, International (ALPA),

a labor organization representing stewardesses, among others,

charging both with unlawful sex discrimination in employment.

42 U.S.C. § 2000e-5. She seeks reinstatement to the

position of stewardess with full seniority and benefits,

backpay with interest, attorney fees and costs. The matter

comes before the court on plaintiff's motion for partial

summary judgment on the issues of liability and Oe oe

with full seniority, and on ALPA's motion for summary judg-

ment, or, in the alternative, to dismiss the complaint for

lack of jurisdiction or failure to state a claim. United

does not oppose plaintiff Sangster's motion except as to

liability for monetary damages. All parties agree as to

10a

a 1 the material facts, though they sometimes differ as to the

a construction which should be placed on then.

3 FACTS

4 Plaintiff Sangster, then an unmarried woman, was

@ 5 employed by United Air Lines, Inc., as a stewardess or cabin

6 attendant on November 24, 1961. On May 28, 1966, then still

7 unmarried and thus eligible for continued flight duty, she

8 accepted promotion to the non-flight position of stewardess

Pd] 9 supervisor. This change of status did not affect her seniority

10 as a stewardess which continued to accrue in accordance with

11 the provisions of the applicable collective bargaining agree-

12 ment as though she were still on active stewardess service.

y 18 Nor did it preclude a later return to stewardess status with

4 full accrued seniority should she so choose.

15 On April 9, 1968, plaintiff Sangster married. She

16 was aware that if she did so United's rules would bar her from|

e a7 resuming her former stewardess position, and that she would

18 forfeit her stewardess seniority econ Nevertheless,

19 though her sole employment interest by then was to return to

30 stewardess status, she decided to marry, to continue as a

6 31 stewardess supervisor for the time being, and to await the

= outcome of negotiations between United and ALPA which she had

ed reason to believe would soon terminate the “no-marriage" policy.

= United and ALPA did reach such an agreement on

5 November 7, 1968, and on November 8, 1968, Mrs. Sangster

7 applied for transfer to stewardess status. But the agreement

” was only partia ly retroactive and it did not protect married

- stewardess supervisors in her circumstances. Following an

e 2 announcement to that effect by ALPA and denial of her appli-

af cation by United, she instituted a complaint on November sath

. according to company grievance procedure. After ALPA twice

oa refused United's suggestion that the agreement be further

2 4 iB

lla

ry 1 extended to include married stewardess supervisors, she filed

3 a charge of unlawfxzl employment practices with the Equal

3 Employment Opportunity Commission on February 6, 1969, at the

4 suggestion of a United officer.

« 5 Plaintiff Sangster continued to work as a stewardess

4 supervisor while her company grievance was pending, but quit

7 United's employ on or about July 16, 1969, following its denial

8 of her complaint on June 4, 1969. Mrs. Sangster's husband

* sd was and is a pilot for United; she desired to coordinate her

_ 10 schedule with his, an eventuality possible only by resuming

11 flight status and conforming her work schedule to his (an

12 outcome possible because of seniority preferences), or by

«e 13 quitting any conflicting job. Refused permission to fly, she

4 quit her conflicting stewardess supervisor sianeeila

15 At no time, however, did Mrs. Sangster ever discon-

cyl tinue her efforts to obtain redress through the EEOC. But

s a7 burdened by its enormous backlog and by the complications

18 caused by a spate of related ou” as EEOC did not find

ad until March 8, 1972, that there was reasonable cause to baie

20 that her charge was true, informing her then that it would

. 7 - begin conciliation efforts on her behalf "as soon as possible,!

= and advising her that she would be kept informed of progress.

3 = Nothing more transpired until October 12, 1976, when the EEOC,

- after some prodding from Mrs. Sangster, notified her that it

e r had been unable to reconcile her dispute, and that she had a

~ right to sue. This action was filed nineteen days later on

” November 1, 1976.

” It would appear that something more should have been

@ ns done during this extended period, but the fault can be laid on

1g no one party or organization. Mrs. Sangster could after six

“ months have removed her claim from the EEOC and come into

8 federal court for the relief she was seeking. However, she

‘4

° -

’

l2a

only inadvertently learned of this option sometime in 1976,

and she was under no legal obligation to bypass the EEOC in

any case. Similarly, she could have pressed the EEOC for

speedier action. But she is no more to blame for failing to

do so than are United and ALPA, which also had means to force

the issué and which, it may be assumed, had even greater

interest in its outcome, being subject to a number of such

charges. Again, the EEOC could have acted with greater

dispatch, or, if unable to do so, could have informed all

concerned of its incapacity and of the availability of other

legal avenues. But to have done this it must in some sense

have abdicated responsibility placed on it by Congress, which

reiterated in 1972 its preference for resolution of these

conflicts through the EEOC though fully aware of the EECC's

acute overload.

No policy or rule restricting employment as

stewards to single males has ever been enforced by United.

Its practice and policy of refusing to employ married persons

as cabin attendants was applied solely to married women, as

opposed to married men. United, as previously stated, did

discontinue this policy on November 7, 1968, with respect to

married women generally, but it continued to bar married

stewardess supervisors from transfer to stewardess positions

though all other stewardess supervisors were permitted to do

so. As no parallel restriction was imposed on similarly

situated male employees, the change of policy simply narrowed

the sweep of United's prior sexually discriminatory policy:

that policy continued in effect with respect to married female

stewardess supervisors who sought flight positions as cabin

Ee To the extent that United's policy pertained

only to job classifications as to which there may have been no

fe ae oe ae ee ae ss ae ee ee

& &

with respect to stewardesses (who were members of the union),

l3a

male counterpart, its marriage ban was not a bona fide occu-

pational qualification.

The Air Line Pilots Association, International,

shared in the maintenance of this practice and policy insofar

as it affected Mrs. Sangster. Although its pressure and

initiatives were responsible for the abandonment of the policy

it resisted for a time United's attempts to extend the same

nondiscriminatory treatment to already married steward super-

visors (who were members of management), notwithstanding

contractual seniority rights afforded stewardess supervisors

who were unmarried. As United's denial of Mrs. Sangster's

application for transfer to stewardess status hinged on

ALPA's opposition, its insistence on continuance of the dis-

criminatory practice with respect to married stewardess super-

visors renders it equally a cause of that denial, and an

equal partner with United in the perpetuation of that discrim-

: &/

inatory practice.

The court finds that United and ALPA engaged in an

unlawful discriminatory employment practice by refusing or

preventing employment as stewardesses to married stewardess

supervisors, in that this distinction discriminated on the

basis of sex without any bona fide ground for such classifi-

cation. The court further finds that United and ALPA con-

curred in the application of this unlawful discriminatory

practice to Linda Sangster on November 8, 1968, when United

denied Mrs. Sangster's application for transfer to stewardess

status.

LAW

ALPA moves for summary judgment and opposes Mrs.

Sangster's motion for partial summary judgment, contending

that her claim under Title VII is barred because she did not

wi lal

oe sa @ or wwe =

Bb & S&S

* &

co piensa ge baat

l4a

file her charge with the EEOC within the filing period then

in effect. In the alternative, it moves to dismiss on the

ground that the action was not filed in this court within

the applicable California statute of limitations, or that she

was guilty of laches. ,

A. Timeliness of EEOC Filing

The court has already twice rejected ALPA's con-

tention that Mrs. Sangster's EEOC filing was untimely. But

ALPA again renews its assertion, Claiming as justification

that the court did not then have the guidance of the Supreme

Court in its decision in United Air Lines, Inc. v. Evans,

supra, a case arising out of the same discriminatory policy.

It asserts once more that the critical date triggering the

filing period was April 9, 1968, the date of plaintiff's

marriage, and not November 8, 1968, the date plaintiff's

application for transfer to stewardess status in fact was

denied. Lest there be doubt as to the basis of the court's

ruling to the contrary, the court will consider the issue

anew.

Although Evans had not been decided when the court

issued its first order, the decision was considered by this

court prior to its reconsideration of its order on June 28,

1977. The court reaffirmed that order because, among other

reasons, Evans is not on point. Nor are the other cases now

cited to the court by ALPA.

In Evans, the Supreme Court ruled that a complaint

filed with the EEOC five years after the person aggrieved

was discharged by United Air Lines, and one year after she

was re-hired by United, though with no seniority, could not

be regarded as having been brought within 90 days of a

triggering discriminatory act. Neither the fact that she

was treated less favorably than males hired after her termin-

| 15a | |

ation in 1968 and prior to her re-employment in 1972, and thus

with less total service, nor the fact that the seniority

system gave present effect to that past discriminatory practice,

was adequate to constitute a present, continuing violation

sufficient to render her EEOC filing timely.

of This case is plainly distinguishable. Not only

does it not raise a question of “continuing” violation, but,

as the court has twice ruled, the actionable injury to Mrs.

Sangster occurred when United denied her application for trans-

fer. The court does not accept ALPA's contention that the

denial of plaintiff's application for transfer was already a

"fait accompli" on April 9, 1968, or that rejection of her

> & & Siw ese «6 @ 6 2 ae eo

" application constituted no more than “crystallization” of an

act of discrimination which automatically took place when

plaintiff married. Although Mrs. Sangster was aware of

United's policy when she married on April 9, 1968, and that

e her marriage would subject her to loss of stewardess seniority

and eligibility for transfer to stewardess status, it did not

in fact have that effect on her until she applied for transfer

and was denied. ALFA's disingenuous sophistry cannot over-

come the facts.

As the court previously ruled, it is the doing of

an actual act of unlawful discrimination against a specific

aggrieved person which makes it an unlawful employment practi

proscribed by Title VII. Only when the deed is done can that | -

aggrieved person be said to possess a cause of action, and

thus only by its doing can the filing period be triggered.

The prospect of its doing or the existence of a policy commit

the doer to the doing is not sufficient, no matter how imminen

or certain application of the policy to the aggrieved person

may be. Unlawful employment practices, the court again sta

do not float free in the air; they exist only when attached

bhthidaibbipbe ae

l6éa

to a particular person. A discriminatory policy does not

become an unlawful discriminatory practice until a specific

person has felt the sting of that policy. Indeed, unless a

complaining party can show enforcement of the policy against

him or her sufficient to provide standing, no suit thereon

could be entertained.

Here, although plaintiff knew that she was con-

sidered by United to have forfeited her seniority and transfer

rights on the day she married, United did not enforce its

policy against her until November 8, 1968. Her cause of

action accrued as of that date, and on that date the 90-day

filing period began. Her filing with the EEOC, therefore,

was timely.

B. Timeliness Under California Statutes of Limitation.

ALPA next contends that plaintiff's action, filed

in this court on November 1, 1976, is barred by either of two

analogous state statutes of limitations. ALPA argues that

either the one-year tort liability statute, Cal. Civ. Proc.

Code § 340(3), or the three-year statutory liability statute,

id. § 338(1), will bar the action, since it was filed more thar

eight years after the cause of action accrued. See, @-g.-,

Kirk v. Rockwell International Corp., 14 E.P.D (CCH) § 7,646

(C.D. Cal. 1977); Clayton v. McDonnell Douglas Corp., 13

F.E.P. Cas. (BNA) 451 (C.D. Cal. 1976), appeal dism'd on other

grounds (9th Cir. 1977).

This contention was foreclosed by the Court of

dei

Appeals for the Ninth Circuit in Cunningham v. Litton Industri

413 F.2d 887, 890-91 (Sth Cir. 1969):

We hold that the ... period within

which suit may be filed in federal

district court begins to run when

the aggrieved party received notice

of failure to effect voluntary

compliance from the EEOC, regardless

-8- 41

17a

e 1 of the time the Commission has

3 taken to process the charge.

a eeee

The statutory scheme of Sec. 706

4 [section 2000e-5] is thus fulfilled

5 by allowing conciliation attempts

oe to continue as long as they may

appear fruitful, while at the same

6 time giving either the aggrieved

5 party or the respondent the right

to precipitate the EEOC action of

a notification, which triggers the

"statutory" period for filing suit..---

oa a

10 See Cleveland v. Douglas Aircraft Co., 509 F.2d 1028 (9th

1 Cir. 1975); Jefferson v. Peerless Pumps Hydronamic, 456 F.

‘a 2d 1359 (9th Cir. 1972).

e 13 There is nothing in Occidental Life Insurance Compan

14 of California v. EEOC, supra, which would render this rule

15 less binding on the court. Insofar as the opinion has any

16 applicability to this private action, Occidental Life dis-

e 17 approves mechanical importation of state statutes of limit-

18 ations. It is important, the Court said, that resort to

19 such statutes

20 not frustrate or interfere with

the implementation of national

2 policies .... State limitations

« periodwill not be borrowed if

2 their application would be incon-

sistent with the underlying poli-

23 cies of (Title VII].

24 §3.L.Ed.2d.at 412.

e 25 As that national policy requires “employment

26 discrimination claims ... [to] be investigated by the EEOC

27 and, whenever possible, administratively resolved before suit

28 is brought in federal court,” id. at 412-13, it would hardly

a 29 ' be appropriate to rely on a state statute of limitations here

30 where plaintiff, perhaps to her present disadvantage, relied

31 on EEOC efforts for eight years. Nothing in the Act explicitly

4‘. 32 requires the EEOC to conclude its conciliation efforts within

oe 3 8& or 4 BW

18a

any maximum period of time, nor should state statutory limits

be permitted to compel an aggrieved person to abandon this

preferred procedure in favor of a private enforcement action.

See id. at 407, 411-14.

Mrs. Sangster was notified by the EEOC on October

12, 1976, that conciliation efforts had failed. She filed

civil suit in this court on November 1, 1976, well within any

applicable federal period of limitations. In view of the

Ninth Circuit's holding in Cunningham, this court cannot hold

that any California statute of limitations bars the action.

This contention, therefore, is rejected.

Cc. Laches.

ALPA finally contends that the action should be

barred under the doctrine of laches. Cf. e.g., Fowler v.

Blue Bell, Inc., 14 F.E.P. Cas. 1009, 1012 (N.D. Cal. 1976).

ALPA claims prejudice to its members by reason of any rein-

statement with seniority which might be ordered, and claims

that Mrs. Sangster's failure to seek an earlier ruling from

the EEOC that conciliation had failed was inexcusable lack

of diligence.

Mrs. Sangster's reliance on the EEOC to conciliate

her dispute with United cannot be characterized as lack of

diligence on her part in view of the strong federal policy

favoring such reliance. She cannot be found chargeable with

neglect which would bar her right to bring this action when,

trusting in the good offices and promise of her government to

seek resolution of her complaint, she commits that grievance

to its care.

Nor would it be just to penalize Mrs. Sangster for

delays as much attributable to ALPA, United and the EEOC as

to her. Though without making a pest of herself she might

have done more, so might have all concerned, and to visit the

19a

: 1 entire burden of that fault on Mrs. Sangster alone would be

2 unfair. EEOC's conciliation efforts, “regardless of the

2 time taken," are designed to aid in effectuation of remedy.

4 The court will not find that its procedure has in this inacaiie

5 prevented it. Franks v. Bowman Transportation Co., 424 U.S.

6 747, 778 (1976); Cunningham v. Litton Industries, supra.

7 Accordingly, the court grants partial summary judgment

8 to Mrs. Sangster to the extent specified below, and denies all

>. ° motions brought by ALPA.

10 Renedy

a3 In considering the extent to which Mrs. Sangster is

12 entitled to a remedy, the court is confronted with the problem

a 13 of the proper weight to be attached to plaintiff's voluntary

- quitting of her job as a stewardess supervisor, and her failur

= to press the EEOC for speedy action on her complaint.

= Clearly, it is the court's duty to render a decree

- " which will so far as possible eliminate all the effects of the

discrimination against her, responsibility for which is shared

8 by United and ALPA. Albemarle Paper Co. v. Moody, 422 U.S.

” 405, 418-19 (1975). But the court's obligation is to give

a aa compensation equal to the injury caused by these parties, no

more and no less. Thus, the court questions whether a remedy

- which includes compensation in various possible forms for the

- period she voluntarily was not an employee of United is needed

t - to make her “whole”.

og In answering, it is necessary to distinguish between

” United's refusal to give Mrs. Sangster the job she wanted and

~ sought, that of stewardess, and the job she did not want and

a “g quit, that of stewardess supervisor. It seems obvious that

” United cannot insulate itself from nor set up a defense to a

“4 claim of unlawful refusal to hire as to one job, by offering

” an applicant therefor a second job which she does not want and

Dv rr—sems ies Y

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20a

which differs in material aspects. See Franks v. Bowman

Transportation Co., supra at 768-69. Such an offer may hav

relevance to issues of damages or mitigation, but it will not

overcome the unlawfulness of its refusal to hire.

On the other hand, where an applicant is found to have

given up his or her effort to secure the position from which

he or she was unlawfully barred, the employer will not be held

to have caused injuries flowing from that unlawful act;

accordingly, the applicant will obtain no remedy. Gerstle v.

Continental Airlines, Inc., supra; cf. United Air Lines v.

Evans, supra.

Mrs. Sangster, therefore, must show by a preponderance

of the evidence that her voluntary departure from her super-

visory job did not amount to a voluntary abandonment of her

claim to the stewardess position. She also must show that

any injury for which she seeks compensation was a product of

United and ALPA's unlawful discrimination, and not of her own

voluntary actions.

The court finds that she has met the first of these

burdens. The stewardess position differed materially from

the supervisory position she occupied. Thus, she was not

obligated to accept or retain that position in lieu of the

position she was unlawfully denied. In fact, her decision

to quit the eepexvieory job was provoked’. by one of the most

material differences between that post and the stewardess

position, namely the incompatibility of her supervisory work

schedule with that of her husband. As at no time did she

cease to seek employment by United as a stewardess, her

quitting the supervisory position did not constitute abandon-

ment of her efforts to obtain her lawful due.

But as to the second of her burdens, Mrs. Sangster

has made a less convincing showing. The court, of course,

2la

@ 1 takes as its starting point a presumption in favor of right-

2 ful seniority relief, relief which may not be denied except on

3 the basis of unusual facts and circumstances that would not

4 generally be found in Title VII cases, or for reasons which

€ 5 “"if applied generally, would ... frustrate the central statu-

6 tory purposes of eradicating discrimination throughout the

7 economy and making persons whole for injuries suffered through

8 past discrimination.'” Franks v. Bowman Transvortation Co.,

ra 9 supra at 771, 779 n. 41. Ordinarily, having shown the unlaw-

10 fulness of United's refusal to permit her transfer, Mrs.Sangster

11 would be entitled to be slotted in that position in the seniorilty

12 system that would have been hers had she been permitted to

* 13 transfer at the time of her application on November 8, 1968.

“4 Id. at 765-66. |

15 However, an award of retroactive seniority is not

16 requisite in all cases, but is subject to the court's sound

& 17 equitable discretion. Id. at 770-71. Equitable remedies, as

18 the Supreme Court pointed out, must be a "'special blend of what

19 is necessary, what is fair, and what is workable ...'"; the

20 court must “'eschew rigid absolutes and look to the practical

* 21 realities and necessities inescapably involved ....°*"

= Id. at 777 n. 39.

ad First of these practical realities is the fact that

a Mrs. Sangster quit United. Although in no sense can her right

* ” to recovery for denial of the stewardess position on November

” 8, 1968, be held contingent upon later retention of the super-

” visory job, it remains true that her right to the stewardess

- job and to full seniority contractually sprang from her

. ssession of the supervisory position. When she gave up that

” st, therefore, she considerably weakened the strength and

7 rgency of her claim by adding a second obstacle to the fact

= f her marriage. That this contributed to the extent of her

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injury seems clear, since otherwise she would have been rein-

stated as a stewardess on October 16, 1969, when United and

ALPA concluded an agreement which would have applied to her.

Further, it indicated that she may have thereby intended to

abandon her claim, an impression which, so far as the evidence

shows, she did nothing to dispel. One may reasonably infer

that this also contributed to the EEOC's slow handling of her

charge, since it may well have believed her claim to have been

dropped.

Secondly, Mrs. Sangster did not pursue her remedy

with much vigor. She may have had a right to rely on the

slow processes of the EEOC, a right which absolves her of any

charge of neglect which would bar her claim from this court,

but she was not entitled to sleep on that right. Even the

best of procedures can sometimes go wrong, and it behooves a

person who claims to be actively pressing for remedy of a

grievance to periodically reassert that fact when nothing is

heard from the accountable agency for lengthy periods, and to

urge it to faster action. Mrs. Sangster's complacency in

the face of an extraordinary passage of time is at least

partly responsible for its duration.

But to take either of these facts as sufficient —

to reduce her remedy would be to state a rule which, "‘if

applied generally, would ... frustrate the central statutory

purposes of eradicating discrimination through the economy

and making persons whole for injuries suffered through past

discrimination. '" Id. at 771, 779 n. 41.

If relief is to be limited in any significant measure

in all instances where an employee quits one job after unlaw-

fully being denied another job by the same employer, then the

employee would be constrainedeither to contribute by his labor

to an employer who has treated him unfairly and who persists

-14-

SURBHRBRBEBBE BEES

S &

23a

in that unfair treatment, or to take less than a whole remedy

for injuries suffered. Again, to reduce a remedy unless the

employee consents to serve his employer during the eleven

years it may take, as here, to obtain that remedy, would force|

impossibly onerous choices on the employee and, because the

employee's readiness to bring charges would be inhibited, the

Act's purpose of ending economic discrimination would be

frustrated.

Similarly, if a portion of the relief otherwise due

is to be denied because the person aggrieved fails to seek

his remedy with adequate industry, where the legally offending

parties are equally culpable for that delay, and where a chief

cause of the delay is reliance on proper and prefer ed process,

then employers would obtain protection for persistence in un-

lawful action, and reliance on the Act would itself be found a

buttress of economic discrimination.

Such rules cannot be apided. Accordingly, though it

may seem bold to grant sixteen years' seniority where less

than five were served, the court concludes that nothing less

will do. Therefore, as United and ALPA by their mutual

opposition to Mrs. Sangster's employment as a stewardess

caused her an injury for which they are liable, injury which

includes, in addition to denial of that position, loss of

seniority which otherwise would have accrued, the court holds

that Mrs. Sangster is entitled by way of relief to reinstate-

ment in the position of stewardess with such seniority as

would have been hers on November 8, 1968, had United's discrim-+

inatory policy never been in effect, plus full seniority credit

for the period since that date to the present. It is so

ordered.

No just reason for yet more delay appearing, partial

Summary judgment with respect to fewer than all the issues

sai 3

BEE B&F ww a OB ee he

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24a

shall be entered for Mrs. Sangster. Fed. R. Civ. P. 54(b).

Judgment will be entered on the issues of liability and

reinstatement with seniority in accordance with the order

herein made, leaving for later resolution the issues of

monetary damages, interest, and attorney fees.

Further, the court considers that this matter has

been pending for an altogether inordinate length of time and,

therefore, will entertain no application for stay of this

order and judgment, but rather orders that Mrs. Sangster be

reinstated with seniority forthwith. See Coffin v. Secretary

of Health, Education and Welfare, 400 F. Supp. 953, 959

(D.D.C. 1975) (appeal pending).

Dated: October wal 1977.

ted Spates District Judge

25a

FOOTNOTES

1/ Due to an administrative oversight, Mrs. Sangster

continued to be carried on United's stewardess

seniority list until February 20, 1969, when her

name was removed because of her marriage.

Ultimately, ALPA and United reached agreement on

contract changes which would have permitted

Mrs. Sangster's return to stewardess status. At

the time she left United, however, Mrs. Sangster

was not privy to the discussions then in prospect,

and knew only, as she was informed by United's

President Keck, that ALPA had twice refused United's

proposal of an extension, that it was unwilling to

discuss alteration of the policy further, but that

further negotiations would begin July 15, 1969.

ALPA and United were unable to agree on the terms

of that extension until October 16, 1969, despite

protestations now that both were fully in favor

of it. As best Mrs. Sangster could discern when

she decided to quit her supervisory job, prospects

for change either through internal grievance

machinery or by way of collective bargaining were

dim.

& & S

> &

3/ See, e.g., United Airlines,Inc. v. McDonald, 53

LT. Ed 423 (U.S., June 20, 1977); Unitec Air

Lines, Inc. v. Evans, 52 L. Ed 2d 571 (U.S., May

31, 1977); Collins v. United Air Lines, Inc.,

514 F.2d 594 (Sth Cir. 1975); Sprogis v. United

Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971);

Lansdale v. United Air Lines, Inc., 437 F.2d 454

ite ; Inda v. United Air Lines, 405

F.Supp. 426 (N.D. Cal. 1975); Kennedy v. 3raniff,

is 403 F. Supp. 707 (N.D. Tex. 1975); Gerstle v.

Contimental Airlines, Inc., 5 E.P.D. (CCH) § 8,647

20 T.Colo.1973); Romasanta v. United Air Lines, Inc.,

6 E.P.D. (CCH) § 8,806 (N.D. lll. 1972).

4/ Occidental Life Ins. Co. of California v. EEOC,

22 L.Ed 2d 402, 40 .

Nor did the United-ALPA agreement of October 16,

1969, which would have permitted Mrs. Sangster's

24 transfer with full seniority had she then been

with United as a stewardess supervisor, bring a full

25 end to this discriminatory policy, but only further

narrowed its impact, as by its terms the agreement

26 applied only to former stewardesses then "currently

in a stewardess management ... position.” Thus,

a7 the policy continued to bar married stewardess

supervisors who had left that position or otherwise

28 failed to maintain continuous seniority, notwith-

29 standing prior application for active stewardess

service and continuous maintenance of efforts to

30 obtain redress.

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26a

Both United and ALPA continue to oppose Mrs.

Sangster's reinstatement as a stewardess on

the same terms as would have applied to other

similarly situated stewardess supervisors.

United is willing to reinstate Mrs. Sangster,

and did so for one day on May 1, 1977, but is

unwilling to pay any back wages. ALPA at one

stage seemed willing to accept Mrs. Sangster's

reinstatement, but it strenuously opposes rein-

statement with full seniority.

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PPI -Gandstone

2-19- T3— 100M— 1008

Copies 2s-1lea ve parties -l-

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27a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LINDA E. SANGSTER, an

individual,

Plaintiff, No. C-76-2426 SC

UNITED AIR LINES, INC., a JUDGMENT

Delaware corporation, and

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, a labor

organization,

Defendants.

me ee ee ee ee et et ee eet ee ee

It is hereby ordered, adjudged and decreed that

plaintiff's motion for partial summary judgment on the issues

of liability and reinstatement with full seniority is granted

and plaintiff shall be reinstated in the position of steward-

ess with such seniority as would have been hers on November

8, 1968, plus full seniority credit for the period since that

date to the present. .

No just reason for yet more Gelay appearing, partial

summary judgment with respect to fewer than all the issues

shall be entered for Mrs. Sangster. Fed. R. Civ. P. 54(b).

Judgment will be entered on the issues of liability and rein-

statement with seniority in accordance with the order herein

made, leaving for later resolution the issues of monetary

damages, interest, and attorney fees.

28a

Defendant Air Line Pilots Association's motion for

summary judgment, or in the alternative to dismiss the

complaint for lack of jurisdiction or failure to state a

Claim, is denied.

Dated: October / y , 1977.

ed eo Judge

ENTERED IN CIVIL COCYtT_ Oct, 171977

29a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BEFORE: HONORABLE SAMUEL CONTI, JUDGE

, | LINDA E. SANGSTER, an individial,

, Vs. C 76-2426 SC

; UNITED AIR LINES, INC., a Delaware

Corporation, and AIR LINE PILOTS

) ASSOCIATION, INTERNATIONAL, a

labor organization,

Defendants.

ee eet ee ee et eet ee et ee ee ee ee ee

REPORTER'S TRANSCRIPT

; (Partial)

November 7, 1977

)

5 REPORTED BY: BETTI A. MURRAY, C.S.R., R.P.R., C.P., C.M.

BETTI MURRAY, C.8.R.,C.P..C.m.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAM FRANCISCO, CALIF. 94102

owTrTee%nseer™’*wpe rw Mmwowoesesrt ese eae ee KY

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30a

APPEAPANCE 8S:

FOR THE PLAINTIFF:

By:

FOR THE DEFENDANT

UNITED AIRLINES:

By:

FOR THE DEFENDANT

ALPA:

Chickering & Gregory

3 Embarcadero Center

23rd Floor

San Francisco, Ca. 94111

ROBERT W. TOLLEN, ESQ.

and

D. WAYNE JEFFRIES, ESQ.

Brobeck, Phleger & Harrison

One Market Plaza

San Francisco, Ca. 94105

DONALD D., CONNORS, JR., ESQ.

HENNING & WALSH

Shell Bldg.

100 Bush St.

San Francisco, Ca. 94104

JOHN F. HENNING, JR., ESQ.

and

STEPHEN B. MOLDOF, ESQ.

BETTI MURRAY, C.8.R.,C.P.,C.m.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAM FRANCISCO, CALIF. 94102

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MONDAY, NOVEMBER 7, 1977

THE COURT: All right. On the facts of this case, the

second phase of the case, with reference to the back pay, duty

to mitigate, inflation factor and attorneys’ fees and amount,

came on regularly for hearing on this date. The facts remain

the same; that on November 8th, 1968, the plaintiff was denied.

transfer to a stewardess position: and on July 16, 1969, she

quit her position with United as a stewardess supervisor, a

position which paid more than the stewardess position she sought

The Court has held that her quitting the supervisory

post may not overcome the unlawfulness of the United's and

ALPA's refusal to hire, although it may have some relevance to t

issues of damages.

There is a strong policy favoring awards of back pay

and the finding of an unfair labor practice and discriminatory

discharge is presumptive proof that some back pay is owed by

the employer; Albemarle Paper Company versus Moody, 422 US 405.

And the burden is on the defendants to prove unreason-

able failure to mitigate. Once the gross amount of back pay

owing is calculated, the burden shifts to the defendant to

prove what should be deducted therefrom as interim earnings or

amounts capable with reasonable diligence. Defendants‘ burden

of proving lack of diligence is not satisfied merely by showing

that there was -- that there were further actions which

plaintiff could have taken in pursuit of the employment. Rather

GETTI MURRAY, C.8.R.,C.P.,C.m.

OFTICIAL REPORTER ,

U.S. DISTRICT COURT

SAN FRANCISCO, CALIF. 84102

Fo eo IT ae Fw KY

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bad 7 non PF

32a

the defendant must show that the course of conduct plaintiff

actually followed was so deficient as to constitute an unreason-

able failure to seek employment.

The range of reasonable conduct is broad and the

injured plaintiff must be given the benefit of every doubt in

assessing her conduct.

In addition, the defendant must show that the plaintif

had she been diligent, she might have found employment and had

some earnings.

And in seeking her work, plaintiff need not look outsi

her own geographic area and for a time, need not accept work

unrelated with her skills and interests. And it is Hornbook

law that the rule is well settled that a discharged plaintiff

is not bound to seek or accept other employment in a different

locality in order to mitigate the damages.

Having that in mind and having the burden of proof

that th plaintiff and the defendant -- having the burden of

proof that the defendant must sustain, the Court is impressed

with the following evidence:

The plaintiff has testified that, with reference “o th

mitigation of damages in this case, which is the central and

crucial issue, the plaintiff has testified that she reviewed

classified ads for suitable jobs. However, there is no evidenc

that she made any calls with reference to her perusal of the

Classified ad section and we are talking of a period of almost

BETTI MURRAY, C.8.R.,C.P.,C.m.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAN FRANCISCO, CALIF. 94102

| eal

33a

eight years from July 1969 to May, 1977. Also that she applied

as a cocktail waitress or restaurant hostess; the great majority

of those, about four applications, made after she consulted her

lawyer in December of 1975, and only two before that time.

She inquired by telephone only of four travel agencies

regarding employment. She did not apply to other airlines and

she did not register at any employment agency for work or with

the State nor did she apply for benefits, all of this during th

said eight year period.

The plaintiff has no children; she's had ample time to

seek other employment in mitigation and the Court finds that

she wanted the position of flight attendant and that's all, and

she did nothing in mitigation of damages for the eight year

period. This plaintiff does not come anywhere near the minimum

standards and her conduct was so deficient as to constitute an

unreasonable failure to seek employment. She has an interest

in one position only, and that was the interest that she had in

being a stewardess, and with only one airline. And ‘though the

stewardess’ position is highly unique and ‘though the position

of stewardess with zero seniority is a different one than with

high seniority, her right to restrict her work search to her

own profession and geographical area is not indefinite and there

comes a time when she must so seek it and here her efforts were

unreasonable.

Here we have a woman who is an intelligent, attractive,

BETTI MURRAY, C.8.R.,C.P.,C.M.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAN FRANCISCO, CALIF. 94102

P@RS Pe 2 & OER FE EF Bo wo SS «a o Ow +

= 34a

competent and capable young woman who was a flight attendant,

a highly competent person who should not have had any trouble

gaining employment if she had wanted it, but she only wanted to

be a flight attendant and that's all, and her activities indica

she had no interest in any other positicn and the Court is

impressed with the fact and finds, as a fact, that the plaintif

really was not interested in any other position during this t °

She was not interested in seeking any employment that would in

any way mitigate the damages that she alleged that she sustainelll

There is a standard, even though the burden of proof

is upon the defendant in cases such as this to show the

unreasonable failure to mitigate, there still remains a standard

of conduct on the part of the plaintiff which must be borne out

by the plaintiff and that standard of conduct in this case was ~-

that was followed, was so deficient as to constitute an

unreasonable failure to seek employment.

We are talking about an eight year period and the amount

of contacts with the employment were -- all during this period-~

deminimus (phonetic).

The Court then finds that the plaintiff did not mitigate

her damages, has not sought to mitigate her damages, and,

therefore, is not entitled to any recovery for back pay.

In a Federal tort claims case, the Ninth Circuit has

held a little different standard with reference to attorneys’

fees. The plaintiff, in a case of this type, is entitled to

BETTI MURRAY, C.S.K.,C.P.,C.M.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAN FRANCISCO, CALIF. 94102

o2®@& & F Deo wow 2B a a Mw -

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35a

attorneys' fees except in very unusual circumstances. And this

issue is distinct from her entitlement to back pay.

The Supreme Court said, in the Albemarle case, that

while Title VII appears to leave attorney fee awards in the

District Court's discretion, the great public interest in having

injunctive actions brought would be vindicated only if

successful plaintiffs act as private attorney generals with

awarded attorneys’ fees in all but unusual circumstances.

The Ninth Circuit has held that the amount of the

award should not be such as would discourage others from

attacking discriminatory practices, but that it should be also a

proportionate amount to which extent the plaintiff prevails.

That's Schaffer (phonetic) versus San Diego Cabs, 462 Fed. 2d.

102, and within that framework, the Court's discretion is

guided by the usual factors applying to awards of attorneys’

fees.

In this case, the plaintiff's attorneys were successful

in gaining the relief sought with reference to her back seniorit

They were successful in that regard. They were unsuccessful in

the receiving of back pay and the Court, taking that into

consideration together with, with reviewing the time schedule

here, awards attorney fees in the sum of $5,537 plus costs.

Now, the Court,directing its attention now to the

attorney for the defendants, I had told you at one time that

the question of apportionment of attorneys’ fees would be

determined by the Court at a later date. Do, you desire, at thi¢

BETTI MURRAY, C.8.R.,C.P.,C.m.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAN FRANCISCO, CALIF. 94102

36a

1 time, the Court to make an allocation of the award of attorneys"

2 fees, or do you want to take that up between yourselves?

; MR. CONNORS: I think we might try to take care of it

4 between ourselves, unless Mr. Moldof disagrees.

5 MR. MOLDOF: I'm agreeable with that, Your Honor.

, THE COURT: Just make the judgment against the defen-

7 Gants in the sum of $5,537; is that agreeable?

8 MR. CONNORS: Yes, we can fight it out some other place

4 THE COURT: Some other place than here, huh?

b MR. CONNORS: Yes.

2 THE COURT: All right. Those are the findings of fact

2 and conclusions of law of the Court and, counsel, will you

5 prepare judgment in that regard and hand it in within the next

4 few days?

5 Thank you, gentlemen.

» Rkkkee

BETTI MURRAY, C.5.R.,C.P.,C.m.

OFFICIAL REPORTER

U.S. DISTRICT COURT

SAN FRANCISCO, CALIF. 94102

37a

CERTIFICATE OF REPORTER

1, THE UNDERSIGNED OFFICIAL REPORTER OF THE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT

OF CALIFORNIA, 450 GOLDEN GATE, SAN FRANCISCO, CALIFORNIA,

DO HEREBY CERTIFY:

THAT THE FOREGOING TRANSCRIPT, PAGES NUMBERED

1 THROUGH _8 , INCLUSIVE, CONSTITUTE A TRUE,

FULL AND CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN

AS SUCH OFFICIAL REPORTER OF THE PROCEEDINGS HEREINBEFORE

ENTITLED, AND REDUCED TO TYPEWRITING TO THE BEST OF MY

ABILITY.

(SIGNED) pie > 2a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.