Appendix — Sangster v. United Air Lines, Inc.

Office- Supreme Court, U.S.

80-1520 ; FILED

MAR 5 1981

ALEXANDER L. STEVAS,

IN THE CLERK

NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

LINDA E. SANGSTER,

PETITIONER,

Ve

UNITED AIR LINES, INC.,

A DELAWARE CORPORATION,

AND AIRLINE PILOTS

ASSOCIATION, INTERNATIONAL,

A LABOR ORGANIZATION,

RESPONDENTS.

mee ee ee ee ee ee ee ee ee ee eee

APPENDIX TO

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES e*eeoeeoeeeeee0e8e8 8 ii

APPENDIX A

Opinion of the United States

Court of Appeals, Ninth

Circuit, entered December 8,

EGOS nc cebae Seb eReSsneceoccce La

APPENDIX B

Opinion and judgment of the

United States District Court

for the Northern District of

California, entered

October 14, 1977 weccecveeeeeel9a

APPENDIX C

Reporter's Transcript of the

findings of fact and conclu-

sions of law delivered from

the bench by the United States

District Court for the

Northern District of

California on November 7,

1977 0000000000800 0000000000063a

TABLE OF AUTHORITIES

Page

Cases

Albemarle Paper Co. v. Moody,

422 U.S. 405,

(1975) -ccccccecceveeveeseIa, 10a,

lla, 44a, 66a

Clayton v. McDonneil Douglas

Corp.,

13 F.E.P. Cas. (BNA) 451

(C D. Cal. IGTE eis eeviccsssxcdee

Cleveland v. Douglas Aircraft

Co. ,

509 F.2d 1028 (9th Cir.

IOTS) ccwrecsecccoenpssetsecsecssea

Coffin v. Secretary of Health,

Education and Welfare,

400 F. Supp. 953

(Oc Dis TOTS) vcdecsccesacesececsaae

Collins v. United Air Lines,

Inc.,

514 F.2d 594 (9th Cir. 1975...57a

Cooper v. Bell,

No. 78-2265, Slip Op. at

4845 (9th Cir. Aug. 21,

LBSG) cv cvccerc 6oee6 60 6eKebeense oh

—

Cunningham v. Litton Industries,

413 F.2d 887 (9th Cir.

UDSP)cccccccoscscceeoes 37a, 40a

43a

ii

DeLorean Cadillac, Inc. v. NLRB,

614 F.2d 554 (oth Cir.

ee ree eee ee ee eT

Fowler v. Blue Bell, Inc.,

14 F.E.P. Cas. 1009 (N.D. Cal.

BU Peiwawececeseerecesoevecsees e820

Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976)... ..10a, 43a

45a, 48a

Gerstle v. Continental Airlines,

Inc., 5 E.P.D. (CCH) §§ 8647

(D. Colo. UST Zd cccecceeseeS DG, 58a

Inda v. United Air Lines, Inc.,

565 F.2d 554 (9th Cir. 1977),

cert. denied, 435 U.S. 1007

CEP FBdcccesevevcccescecssaaey, SGA

Jefferson v. Peerless Pumps

Hydronamic,

456 F.2d 1359 (9th Cir.

DOF kccccdesecéecceceveecine saee

Kaplan v. International Alliance

of Theatrical Stage Employees,

525 F.2d 1354 (9th Cir.

BUTE) « cbse cbodcedoesesececceeig 126

Kennedy v. Braniff,

403 F. Supp. 707 (N.D. Cal.

LOTS) - ccdecrecscteccccecscccesece dee

Kirk v. Rockwell International

Corp., 578 F.2d 814 (9th

Cir. 197S) cencscesesteceec cand, 37a

iii

Lansdale v. United Air Lines,

Inc., 437 F.2d 454 (5th

Cate AGT 2) 0 6a oo ee vartveceo cove seen

Mahroom v. Hook, 563 F.2d 1369,

(9th Cir. 1977), cert. denied,

436 U.S. 904 (1978) -ccoccccccce edd

NLRB v. Mastro Plastics Corp.,

354 F.2d 170 (2nd Cir. 1965),

cert. denied, 384 U.S. 972

CLOGS) cc cccccdvicvcescesccees cl de

Occidental Life Insurance Company

of California v. EEOC,

43 U.8S-« . 1 ere: 58a

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941) -ccocccccceedla

Romasanta v. United Airlines, Inc.,

6 E.P.D. (CCH) §§ 8806 (N.D.

(ae SOTA ccs ob beeeesesescicecsee

Sangster v. United Air Lines, Inc.,

438 F. Supp. 1221 (N.D. Cal.

ROTI co ko 6 dH 6 Ons 6488408 90660008 OE

Schaeffer v. San Diego Yellow

Cabs, Inc., 462 F.2d 1002,

(9th Cite LOT 2) c 60040004 ebOBe 73a

Sias v. City Demonstration Agency,

588 F.2d 692 (9th Cir.

Ly) epee eT TS Ter eT TST l3a

Sprogis v. United Air Lines,

Inc., 517 F.2d 387 (7th

Cir. L975) ccccccsecccccs -l5a, 58a

iv

United .iir Lines Inc. v. Evans,

431 U.S. 553 (1977).....3la, 32a,

45a, 57a

United Air Lines, Inc. v.

McDonald, 432 U.S. 385

6g, TS i ne

Statutes

Cal. Civ. Proc. Cede

§§ gS ore irae | Fl

§§ ee ee ee ee 2g

Civil Rights Act of 1964

42 U.S.C. §§ 2000e-5......2a, lla

20a

Federal Rules of Civil Procedure

Rule PALO) chccccvvcesscconate 6la

APPENDIX A

[Filed December 8, 1980

o Richard H. Deane

Clerk, U.S. Court of Appeals]

NO. 78-1242, 78-1289

e UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINDA E. SANGSTER, an individual,

eS Plaintiff-Appellant ,

Ve

UNITED AIR LINES, INC.,

A DELAWARE CORPORATION,

* AND AIRLINE PILOTS

ASSOCIATION, INTERNATIONAL,

A LABOR ORGANIZATION,

Defendants-Appellees.

i i tl i te ee tl

' OPINION

Appeal from the United States

District Court for the Northern

District of California

¢ Samuel Conti, District Judge, Presiding

Argued and Submitted August 13, 1980

Before: WRIGHT, GOODWIN and ALARCON,

Circuit Judges.

ALARCON, Circuit Judge:

This is an employment discrim-

ination case brought under Title VII of

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

Section 2000e et seq, Linda E.

Sangster, a former airline stewardess,

alleged that her employer, United Air

Lines, Inc. (United), and her collective

bargaining agent, the Air Line Pilots

Association (ALPA) had discriminated

against her on the basis of her sex.

ALPA appeals on No. 78-1242 from the

district court order granting Sangster's

motion for pretrial summary judgment on

the issue of liability and ordering her

reinstatement with full senority./

Sangster appeals in No. 78-1289 from the

subsequent judgment denying her an award

of back pay and awarding attorneys’

fees. We affirm the district court in

all respects.

2a

FACTS

Sangster was hired by United

on November 24, 1961 as an airline

stewardess or flight attendant. She was

unmarried at that time. On May 28, 1966

she was promoted to the nonflight posi-

tion of stewardess supervisor. This

change in status did not affect her se-

niority as a stewardess, which continued

to accrue in accordance with the provi-

sions of the applicable collective bar-

gaining agreement as though she were

still in active stewardess service. The

transfer did not preclude a later return

to her position as stewardess with full

accrued seniority.

On April 9, 1968 Sangster mar-

ried a United pilot. She was aware that

once married United's rules would bar

her from resuming her former stewardess

3a

position and that she would forfeit her

stewardess seniority rights. Neverthe-

less, she decided to continue in her em-

ployment as a stewardess supervisor

after her marriage and to await the out-

come of negotiations between United and

ALPA, which she hoped would soon termi-

nate the no-marriage policy.

United and ALPA did reach such

an agreement on November 7, 1968. The

agreement was only partially retroac-

tive, however, and did not protect mar-

ried 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 next

day she filed a formal complaint under

United's internal grievance procedure,

and on February 6, 1969, she filed a

4a

charge of discrimination 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 United.

On March 8, 1972 the EEOC

found reasonable cause to believe that

Sangster's charge of discrimination was

well-founded. On October 12, 1976 the

EEOC informed her that the dispute could

right to sue. On November 1, 1976

Sangster filed her complaint in district

court seeking 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.

5a

A trial was held on the issues

of back pay and attorneys' fees. At the

trial, Sangster testified as to her ef-

forts to seek alternative employment.

She had remained unemployed for _ the

eight years between the day she volun-

tarily quit her job and the time United

was ordered to restore her to her posi-

tion as stewardess with full senior-

ity. 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 ef-

forts at obtaining other positions wute

minimal.2/ 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-husband's while being assigned

to the same geographic area.

6a

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 exer-

cised reasonable diligence in obtaining

substantially equivalent employment.

Concluding that she had not met her ob-

ligation to mitigate her damages, and

therefore was not entitled to compensa-

tion 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 requested sum.

ALPA's 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

7a

contention that the 90-day filing period

commenced on the date of Sangster's mar-

riage. In light of the remedial poli-

cies behind Title VII, we refuse to give

the strained interpretation urged by

ALPA as to when Sangster's right of ac-

tion accrued and thus to deny her re-

dress. 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 transfer to a

stewardess position on November 8, 1968

and felt the impact of the discrimina-

tory transfer rule that the filing time

began to run. Therefore, Sangster's

charge filed on February 6, 1969 was

timely filea.3/

8a

‘

SANGSTER‘S APPEAL

A. Back Pay

An award of back pay in em-

ployment discrimination cases is one of

the weapons in a court's arsenal to ef-

fectuate the dual purposes of Title VII.

(1) to end discriminatory employment

practices; and (2) to make employees

whole for injuries suffered on account

of unlawful employment discrimination.

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

405, 417-18 (1975). A finding of unlaw-

ful discrimination requires an award of

back pay unless reasons exist "which, if

applied generally, would not frustrate

the central statutory purposes of eradi-

cating discrimination throughout’ the

economy and making persons whole for in-

juries suffered through past discrimina-

tion.” Kaplan v. International Alliance

9a

of Theatrical Stage Employees, 525 F.2d

1354, 1363 (9th Cir. 1975) (quoting

Albemarle 422 GeBs 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 possi-

ble, requiring that persons aggrieved by

discriminatory employment practices "be,

so far as possible, restored to a posi-

tion where they would have been were it

not for the unlawful discrimination."

Franks v. Bowman Transportation Co., 424

U.S. 747, 764 (1976). The 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).

10a

AS a broad proposition, in-

jured parties are expected to mitigate

the damage they suffer. This notion is

expressed in Title VII in the following

language: "Interim earnings Or amounts

earnable with reasonable diligence by

the person or persons discriminated

against shall operate to reduce the back

pay otherwise allowable." 42 U.S.C.

Section 2000e-5(g) (emphasis added).

"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 Dodge

Corp. v. NLRB, 313 U.S. 177, 198

(1941). Developed from this general

lla

concept, the more specific acts which

constitute such willful conduct are:

failure to remain in the labor market,

refusal to accept substantially equiva-

lent employment, failure diligently to

search for alternative work, or volun-

tarily 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 mit-

igated her damages. Kaplan Vv.

International Alliance of Theatrical

Stage Employees, 525 F.2d at 1363.

Sangster claims that United and ALPA

failed to establish that there was sub-

stantially equivalent work available

which, in the exercise of reasonable

l2a

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 that had

been available since 1370 for at least

the last few years of her unemployment

and that other United employees on simi-

lar circumstances had obtained jobs as

stewardesses. Perhaps most important is

Sangster's admission that she never even

attempted to procure a job as a stew-

ardess, the work she considered prefer-

able 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.

l3a

Sangster's reliance on cases

that hold that a plaintiff is not re-

quired to seek employment that is out-

side her area of residence, distasteful,

essentially different, or inferior is

misplaced. Apparently, her main reason

for preferring the stewardess position

to that of stewardess supervisor was

that she could tailor her schedule to

that of her pilot-husband. Certainly

United was unjustified in denying her

that opportunity solely on the basis of

her sex and marital status. Nonethe-

less, Sangster was not entitled to re-

main idle for eight years after quitting

substantially equivalent employment even

if her right to seek employment with a

different employer is given full recog-

nition. We conclude that Sangster did

not meet her duty to mitigate her

l4a

damages, and that denial of back pay

under the circumstances would not frus-

trate Title VII's remedial purposes.

See DeLorean Cadillac, Inc. v. NLRB, 614

F.2d 554, 555 (6th Cir. 1980) (finding

of reasonable diligence unsupported by

record as a whole where based on uncor-

roborated testimony by discriminatee of

his efforts to secure a job). Cf. Inda

v. United Air Lines, Inc., 565 F.2d 554

(9th Cir. 1977), cert.denied, 435 U.S.

1007 (1978) (reasonable diligence on the

part of two stewardesses, each

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 discharge shown on

the part of married stewardess by at

least one formal application for

15a

«~

-

employment and the procurement of a tem-

porary 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 fac-

tors. We affirm the award of attorneys’

fees in the amount set by the trial

court, finding no abuse of discretion.

AFFIRMED.

16a

FOOTNOTES

1/ The district court issued a written

opinion reproted 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 mitiga-

tion 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 she made any calls with refer-

ence to her perusal of the classi-

fied 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 applica-

tions, 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 em-

ployment. She did not apply to

other airlines and she did not reg-

ister at any employment agency for

work or with the state nor did she

apply for benefits, all of this dur-

ing the said 8-year period. (RT:

127-28)

l7a

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

Core. S70. F201 814, O49" (Oth Ciri

1978). We also find no grounds for ap-

plying the equitable doctrine of laches

to bar Sangster's claim. The consider-

able delay in filing her claim in dis-

trict 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 did not learn

until some time in 1975 that she could

sue without awaiting a final resolution

by the EEOC. Cooper v. Bell, No.

78-2265, slip op. at 4845 (9th Cir. Aug.

21, 1980).

18a

APPENDIX B

[Filed October 14, 1977

William L. Whittaker, Clerk]

o No. C-76-2426 SC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LINDA E. SANGSTER,

PETITIONER,

Ve

UNITED AIR LINES, INC.,

A DELAWARE CORPORATION,

AND AIRLINE PILOTS

ASSOCIATION, INTERNATIONAL,

A LABOR ORGANIZATION,

RESPONDENTS.

i a

OPINION

Linda Sangster sues United Air

Lines, Inc. (United), and the Air Lines

Pilots Association, Internatinal (ALPA),

a labor organization representing stew-

ardesses, among others, charging both

with unlawful sex discrimination in

19a

employment. 42 U.S.C. § 2000e-5. She

seeks reinstatement to the position of

stewardess with full seniority and bene-

fits, back pay with interest, attorney

fees and costs. The matter comes before

the court on plaintiff's motion for par-

tial summary judgment on the issues of

liability and reinstatement with full

seniority, and on ALPA's motion for a

summary judgment, or, in the alterna-

tive, 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 the material facts, though they

sometimes differ as to the construction

which should be placed on them.

20a

FACTS

Plaintiff Sangster, then an

unmarried woman, was employed by United

Air Lines, Inc., as a stewardess or

cabin attendant on November 24, 1961.

On May 28, 1966, then still unmarried

and thus eligible for continued flight

duty, she accepted promotion to the non-

flight position of stewardess super-

visor. This change of status did not

affect her seniority as a stewardess

which continued to accrue in accordance

with the provisions of the applicable

collective bargaining agreement as

though she were still on active steward-

ess service. Nor did it preclude a

later return to stewardess status with

full accrued seniority should she so

choose.

2la

On April 9, 1968, plaintiff

Sangster married. She was aware that if

she did so United's rules would bar her

from resuming her former stewardess po-

sition, and that she would forfeit her

stewardess seniority rights.1/ Never-

theless, though her sole employment in-

terest by then was to return to steward-

ess status, she decided to marry, to

continue as a stewardess supervisor for

the time being, and to await the outcome

of negotiations between United and ALPA

which she had reason to believe would

soon terminate the "no-marriage" policy.

United and ALPA did reach such

an agreement on November 7, 1968, and on

November 8, 1968, Mrs. Sangster applied

for transfer to stewardess status. But

the agreement was only partially retro-

active and it did not protect married

22a

stewardess supervisors in her circum-

stances. Following an announcement to

that effect by ALPA and denial of her

application by United, she instituted a

complaint on November 9, 1968, according

to company grievance procedure. After

ALPA twice refused United's suggestion

that the agreement be further extended

to include married stewardess super-

visors, she filed a charge of unlawful

employment practices with the Equal

Employment Opportunity Commission on

February 6, 1969, at the suggestion of a

United officer.

Plaintiff Sangster continued

to work as a stewardess supervisor while

her company grievance was pending, but

quit United's employ on or about July

16, 1969, following its denial of her

complaint on June 4, 1969. Mrs.

23a

Sangster's husband was and is a pilot

for United; she desired to coordinate

her schedule with his, an eventuality

possible only by resuming flight status

and conforming her work schedule to his

(an outcome possible because of senior-

ity preferences), or by quitting any

conflicting job. Refused permission to

fly, she quit her conflicting stewardess

supervisor position. 2/

At no time, however, did Mrs.

Sangster ever discontinue her efforts to

obtain redress through the EEOC. But

burdened by its enormous backlog and by

the complications caused by a spate of

related cases ,2/ the EEOC did not find

until March 8, 1972, that there was rea-

sonable cause to believe that her charge

was true, informing her then that it

would begin conciliation efforts on her

24a

behalf "as soon as possible," and advis-

ing her that she would be kept informed

of progress. Nothing more transpired

until October 12, 1976, when the EEOC,

after some prodding from Mrs. Sangster,

notified her that it 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.

should have been done during this ex-

tended period, but the fault can be laid

on no one party or organization. Mrs.

Sangster could after six months have re-

moved her claim from the EEOC and come

into federal court for the relief she

was seeking. However, she only inadver-

tently learned of this option sometime

in 1976, and she was under no legal ob-

ligation to bypass the EEOC in any

25a

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 issue and which, it

may be assumed, had even greater inter-

est 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 in-

formed 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 responsi-

bility placed on its by Congress, which

reiterated in 1972 its preference for

resolution of these conflicts through

the EEOC though fully aware of the

EEOC's acute overload.4/

26a

No policy or rule restricting

employment as stewards to single males

has ever been enforced by United. Its

practice and policy of refusing to em-

ploy married persons as cabin attendants

was applied soley to married women, as

opposed to married men. United, as pre-

viously stated, did discontinue this

policy on November 7, 1968, with respect

to married women generally, but it con-

tinued to bar married stewardess super-

visors from transfer to stewardess posi-

tions though all other stewardess super-

visors 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 dis-

criminatory policy; that policy con-

tinued in effect with respect to married

27a

female stewardess supervisors who sought

flight positions as cabin atten-

dants.>/ To the extent that United's

policy pertained only to job classifica-

tions as to which there may have been no

male counterpart, its marriage ban was

not a bona fide occupational

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 with respect

to stewardesses (who were members of the

union), it resisted for a time United's

attempts to extend the same nondiscrimi-

natory treatment to already married ste-

ward supervisors (who were members of

28a

the management), notwithstanding con-

tractual seniority rights afforded stew-

ardess 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 supervisors renders

it equally a cause of that denial, ard

an equal partner with United in the per-

petuation of the discriminatory

practice.6/

The court finds that United

and ALPA engaged in an unlawful discrim-

inatory 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

29a

ground for such classification. The

court futher finds that United and ALPA

concurred in the application of this un-

lawful discriminatory practice to Linda

Sangster on November 8, 1968, when

United denied Mrs. Sangster's applica-

tion for transfer to stewardess status.

LAW

ALPA moves for summary

judgment and opposes Mrs. Sangster's

motion for partial summary judgment,

coltendine that her claim under Title

VII is barred because she did not 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.

30a

A. Timeliness of EEOC Filing.

The court has already twice

rejected ALPA's contention 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 per-

iod was April 9, 1968, the date of

plaintiff's marriage, and not November

8, 1968, the date plaintiff's applica-

tion 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.

3la

Although Evans had not been

decided when the court issued its first

order, the decision was consdidered 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 ag-

grieved was discharged by United Air

Lines, and one year after she was re-

hired by United, though with no senior-

ity, could not be regarded as having

been brought within 90 days of a trig-

gering discriminatory act. Neither the

fact that she was treated less favorably

than males hired after her termination

32a

in 1968 and prior to her re-employment

in 1972, and thus with less total ser-

vice, nor the fact that the seniority

system gave present effect to that past

discriminatory practice, was adequate to

constitute a present, continuing viola-

tion sufficient to render her EEOC fil-

ing timely.

This case is plainly distin-

guishable. Not only does it not raise a

question of “continuing” violation, but,

as the court has twice ruled, the ac-

tionable injury to Mrs. Sangster occur-

red when United denied her application

for transfer. 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 applica-

tion constituted no more than

33a

"crystallization" of an act of discrimi-

nation 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 her marriage would subject her to

loss of stewardess seniority and eligi-

bility for transfer to stewardess

status, it did not in fact have that ef-

fect on her until she applied for trans-

fer and was denied. ALPA's disingenuous

sophistry cannot overcome the facts.

As the court previously ruled,

it is the doing of an actual act of un-

lawful discrimination against a specific

aggrieved person which makes it an un-

lawful employment practice 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

34a

by its doing can the filing period be

triggered. The prospect of its doing or

the existence of a policy committing the

doer to the doing is not sufficient, no

matter how imminent or certain applica-

tion of the policy to the aggrieved per-

son may be. Unlawful employment prac-

tices, the court again states, do not

float free in the air; they exist only

when attached 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 complain-

ing 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 considered by United to

35a

have forfeited her seniority and trans-

fer 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 pér-

iod began. Her filing with the EEOC,

therefore, was timely.

B. Timeliness Under California

Statutes of Limitation.

ALPA next contends that plain-

tiff's action, filed in this court on

November 1, 1976, is barred by either of

two analogous state statutes of limita-

tions. 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 than eight years after the

cause of action accrued. See, €.9.,

36a

Kirk v. Rockwell International Corp., 14

E.P.D. (CCH) § 7 646 (C.D. Cal. 1977);

Clayton v. McDonnel 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 Appeals for the Ninth

Circuit in Cunningham Vv. Litton

Industies, 413 F.2d 887, 890-91 (9th

Cir. 1969):

We hold that the ... period

within which suit may be filed

in federal district court be-

gins to run when the aggrieved

party received notice of fail-

ure to effect voluntary compli-

ance from EEOC, regardless of

the time the Commission has

taken to process the charge.

The statutory scheme of

Sec. 706 [section 2000e-5] is

thus fulfilled by allowing con-

ciliation attempts to continue

as long as they may appear

fruitful, while at the same

time giving either the ag-

grieved party or the respondent

the right to precipitate the

EEOC action of notification,

which triggers the “statutory”

period for filing suit ...

See Cleveland v. Douglass Aircraft Co.,

509 F.2d 1028 (9th Cir. 1975); Jefferson

v. Peerless Pumps Hydronamic, 4567 F.2d

1359 (9th Cir. 1972).

There is nothing in Occidental

Life Insurance Company of California v.

38a

|

EEOC Supra, which would render this

rule less binding on the court. Insofar

as the opinion has any applicability to

this private action, Occidental Life

disapproves mechanical importation of

state statutes of limitations. Ee. is

important, the Court said, that resort

to such statutes

not frustrate or interfere with

the implementation of national

policies ... State limitations

periods will not be borrowed if

their application would be in-

consistent with the underlying

policies of [Title VII].

53 L.Ed.2d at 412.

As that national policy re-

quires “emp’oyment discrimination claims

»++ [to] be investigated by the EEOC

and, whenever possible, administratively

resolved before suit is brought in

federal court," id. at 412-13, it would

hardly be appropriate to rely on a state

39a

statute of limitations here where plain-

tiff, perhaps to her present disadvan-

tage, relied on EEOC efforts for eight

years. Nothing in the Act explicitly

requires the EEOC to conclude its con-

ciliation efforts within any maximum

period of time, nor should state statu-

tory limits be permitted to compel an

aggrieved person to abandon this prefer-

red procedure in favor of a private en-

forcement action. See id. at 407, 4ll-

414.

Mrs. Sangster was notified by

the EEOC on October 12, 1976, that con-

ciliation efforts had failed. She filed

civil suit in this court on November l,

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

40a

California statute of limitations bars

the action. This contention, therefore,

is rejected.

C. Laches.

ALPA finally contends that the

action should be barred under the doc-

trine of laches. Cf. e.g., Fowler v.

Blue Bell, Inc., 14 F.E.P. Cas. 1009,

1012 (N.D. Cal. 1976). ALPA claims pre-

judice to its members by reason of any

reinstatement 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

4la

strong federal policy favoring such re-

liance. 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 penal-

ize 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 entire burden of the fault

on Mrs. Sangster alone would be un-

fair. EEOC's conciliation efforts, “re-

gardless of the time taken," are de-

signed to aid in effectuation of rem-

edy. The court will not find that its

42a

procedure has in this instance prevented

it. Franks v. Bowman Transportation

Chg: COB. Bee FH ee: Ot,

Cunningham v. Litton Industries, supra.

Accordingly, the court grants

partial summary judgment to Mrs.

Sangster to the extent specified below,

and denies all motions brought by ALPA.

Remedy

In considering the extent to

which Mrs. Sangster is entitled to a

remedy, the court is confronted with the

problem of the proper weight to be at-

tached to plaintiff's voluntary quitting

of her job as a stewardess supervisor,

and her failure 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

43a

effects of the discrimination against

her, responsibility for which is shared

by United and ALPA. Albemarle Paper Co.

v. Moody, 422 U.S. 405, 418-19 (1975).

But the court's obligation is to give

compensation equal to the injury caused

by these parties, no more and no less,

Thus, the court cuestions whether a rem-

edy which includes compensation in var-

ious possible forms for the period she

voluntarily was not an employee of

United is needed to make her "whole".

In answering, it is necessary

to distinguish between United's refusal

to sive: fees Sangster the job she wanted

and sought, that of stewardess, and the

job she did not want and quit, that of

stewardess supervisor. It seems obvious

that United cannot insulate itself from

nor set up a defense to a claim of

44a

-

unlawful refusal to hire as to one job,

by offering an applicant therefor a

second job which she does not want and

which differs in material aspects. See

Franks v. Bowman fTransportation Co.,

supra at 768-69. Such an offer may have

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 bar-

red, 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 Airlines v. Evans, supra.

45a

Mrs. Sangster, therefore, must

show by a preponderance of the evidence

that her voluntary departure from her

supervisory job did not amount to a vol-

untary abandonment of her claim to the

stewardess position. She also must show

that any injury for which she seeks com-

pensation 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 oc-

cupied. 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 supervisory job was provoked by one

of the most material differences between

46a

that post and the stewardess position,

namely the incompatibility of her super-

visory work schedule with that of her

husband. As at no time did she cease to

seek employment by United as a steward-

ess, her quitting the supervisory posi-

tion did not constitute abandonment 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, takes as a starting point a pre-

sumption in favor of rightful seniority

relief, relief which may not be denied

except on the basis of unusual facts and

circumstances that would not generally

be found in Title VII cases, or for rea-

sons which “‘if applied generally, would

ee.» frustrate the central statutory pur-

poses of eradicating discrimination

47a

throughout the economy and making per-

sons whole for injuries suffered through

past discrimination.'" Franks v. Bowman

Transportation Co., supra at 771, 779 n.

41. Ordinarily, having shown the unlaw-

fulness of United's refusal to permit

her transfer, Mrs. Sangster would be en-

titled to be slotted in that position in

the seniority system that would have

been hers had she been permitted to

transfer at the time of her application

on November 8, 1968. Id. at 765-66.

However, an award of retroac-

tive seniority is not requisite in all

cases, but is subject to the court's

sound equitable discretion. Id. at 770-

71. Equitable remedies, as the Supreme

Court pointed out, must be a "'special

blend of what is necessary, what is

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

48a

court must “‘eschew rigid absolutes and

look to the practical realities and ne-

cessities inescapably involved ....‘"

Id. at 777 n. 39.

First of these practical real-

ities is the fact that 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 supervisory job, it remains true

that her right to the stewardess job and

to full seniority contratually sprang

from her possession of the supervisory

positon. When she gve up that post,

therefore, she considerably weakened the

strength and urgency of her claim by

adding a second obstacle to the fact of

her marriage. That this contributed to

the extent of her injury seems clear,

49a

since otherwise she would have been re-

instated 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 ne-

glect which would bar her claim from

this court, but she was not entitled to

50a

,

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 griev-

ance to periodically reassert that fact

when nothing is heard from the account-

able 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 dura-

tion.

But to take either of these

facts as sufficient cause to reduce her

remedy would be to state a rule which,

""if applied generally, would ... frus-

trate the central statutory purposes of

eradicating discrimination through the

economy and making persons whole for in-

juries suffered through past

5la

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

unlawfully being denied another job by

the same employer, then the employee

would be constrained eiher to contribute

by his labor to an employer who has

treated him unfairly and who persists in

that unfair treatment, or to take less

than a whole remedy for injuries suf-

fered. Again, to reduce a remedy unless

the employee consents to serve his em-

ployer during the eleven years it may

take, as here, to obtain that remedy,

would force impossibly onerous choices

on the employee and, because the employ-

ee's readiness to bring charges would be

inhibited, the Act's purpose of ending

52a

economic discrimination would be frus-

trated.

Similarly, if a portion of the

relief otherwise due is to be denied be-

cause 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 re-

liance on proper and preferred process,

then employers would obtain protection

for persistence in unlawful action, and

reliance on the Act would itself be

found a buttress of economic

discrimination.

Such rules cannot be abided.

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.

53a

Therefore, as United and@ ALPA by their

mutual opposition to Mrs. Sangster's em-

ployment 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 reinstatement in the

position of stewardess with such senior-

ity as would have been hers on November

8, 1968, had United's discriminatory

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 ‘judg-

ment with respect to fewer than all the

issues shall be entered for Mrs.

54a

Sangster. Fed. R. Civ. P. 54(b). Judg-

‘ment will be entered on the issues of

liability and reinstatement with senior-

ity 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 appli-

cation for stay of this order and judg-

ment, but rather orders that Mrs.

Sangster be reinstated with seniority

forthwith. See Coffin v. Secretary of

Health, Education and Welfare, 400 F.

55a

Supp. 953, 959 (D.D.C. 1975) (appeal

pending).

Dated: October 14, 1977.

/s/ Samuel Conti

United States District Judge

56a

d/

FOOTNOTES

Due to an administrative oversight,

Mrs. Sangster continued to be car-

ried on United's stewardess senior-

ity 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 dis-

cussions 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 unwill-

ing to discuss alteration of the

policy further, but that further ne-

gotiations would begin July 15,

1969. ALPA and United were unable

to agree on the terms of that exten-

sion until October 16, 1969, despite

protestations now that both were

fully in favor of it. As best Mrs.

Sangster could discern when she de-

cided to quit her supervisory job,

prospects for change either through

internal grievance machinery or by

way of collective bargaining were

dim.

See, e.g., United Airlines, Inc. v.

McDonaid, 53 lb. Bd 24 423 (U.8.,

June 20, 1977); United Air Lines

Inc. v. Evans, 52 Le. Ed 2a 57L

(U.S., May 31, 1977); Collins v.

57a

United Air Lines, Inc., 514 F.2d 594

(9th 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 (5th Cir.

1971); Inda v. United Air Lines, 405

F.Supp. 426 (N.D. Cal. 1975);

Kennedy v. Braniff, 403 F. Supp, 707

(N.D. Tex. 1975); Gerstle Ve

Continental Airlines, Inc., 5 E.P.D.

(CCH) § 8,647 (D.Colo. 1973);

Romasanta v. United Air Lines, Inc.,

6 E.P.D. (CCH) § 8,806 (N.D. fll.

1972).

Occidental Life Ins. Co. of

California v. EEOC, 53 L. Ed 2d 402,

407 (1977).

Nor did the United-ALPA agreement of

October 16, 1969, which would have

permitted Mrs. Sangster's transfer

with full seniority had she then

been with United as a stewardess

supervisor, bring a full end to this

discriminatory policy, but only

further narrowed its impact, as by

its terms the agreement applied only

to former stewardesses then "“cur-

rently in a stewardess management .

e e position." Thus, the policy

continued to bar married stewardess

supervisors who had left that posi-

tion or otherwise failed to maintain

continuous seniority, notwithstand-

ing prior application for active

stewardess service and continous

maintenance of efforts to obtain

redress.

58a

Both United and ALPA continue to op-

pose Mrs. Sangster's reinstatement

as a stewardess on the same terms as

would have applied to other simi-

larly situated stewardess super-

visors. United is willing to rein-

state Mrs. Sangster, and did so for

one day on May 1, 1977, but is un-

willing to pay any back wages. ALPA

at one stage seemed willing to ac-

cept Mrs. Sangster's reinstatement,

but it strenuously opposes” rein-

statement with full seniority.

59a

[Filed October 14, 1977]

WILLIAM L. WHITTAKER, CLERK

No. C-76-2426

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LINDA E. SANGSTER, an

individual,

Plaintiff,

Ve

UNITED AIR LINES, INC., a

Delaware corporation, and

AIR LINE PILOTS ASSOCIA-

TION, INTERNATIONAL, a

labor organization,

Defendants.

ee eee ee eee ee ee ee ee ee ee ee ee

JUDGMENT

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

60a

-

stewardess 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

delay appearing, partial summary judg-

ment with respect to fewer than all the

issues shall be entered for Mrs.

Sangster. Fed. R. Civ. P. 54(b). Judg-

ment will be entered on the issues of

liability and reinstatement with senior-

ity in accordance with the order herein

made, leaving for later resolution the

issues of monetary damages, interest,

and attorney fees.

Defendant Air Lines’ Pilots

Association's motion for summary judg-

ment, Or in the alternative to dismiss

6la

the complaint for lack of jurisdiction

or failure to state a claim, is denied.

Dated: October 14, 1977

/s/ Samuel Conti

United States District Judge

Entered in Civil Docket

October 17, 1977

62a

APPENDIX C

C 76-2426 SC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BEFORE: HONORABLE SAMUEL CONTI, JUDGE

LINDA E. SANGSTER, an individual,

Plaintiff,

Vv.

UNITED AIR LINES, INC., a Delaware

Corporation, and AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL, a

labor organization,

Defendants.

i i

REPORTER'S TRANSCRIPT

(Partial)

November 7, 1977

Reported by: Betti A. Murray,

C.S.Re, R.P.R., CoP. C.M.

Official Reporter

U.S. District Court

San Francisco, California 94102

63a

APPEARANCE 8S:

FOR THE PLAINTIFF:

Chickering & Gregory

3 Embarcadero Center

23rd Floor

San Francisco, Ca. 94111

BY: ROBERT W. TOLLEN, ESQ.

and

D. WAYNE JEFFRIES, ESQ.

FOR THE DEFENDANT

UNITED AIRLINES:

Brobeck, Phleger & Harrison

One Market Plaza

San Francisco, Ca. 94105

By: DONALD D. CONNORS, JR., ESQ.

FOR THE DEFENDANT ALPA:

HENNING & WALSH

Shell Bldg.

100 Bush St.

San Francisco, CA 94104

BY: JOHN F. HENNING, JR., ESQ.

and

STEPHEN B. MOLDOF, ESQ.

64a

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, al-

though it may have some relevance to the

issues of damages.

65a

There is a strong policy fa-

voring awards of back pay and the find-

ing of an unfair labor practice and dis-

criminatory 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 de-

fendants to prove unreasonable 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 reason-

able diligence. Defendants’ burden of

proving lack of diligence is not satis-

fied merely by showing that there was --

that there were further actions which

plaintiff could have taken in pursuit of

the employment. Rather, the defendant

66a

must show that the course of conduct

plaintiff actually followed was so defi-

cient as to constitute an unreasonable

failure to seek employment.

The range of reasonable con-

duct 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 plaintiff, had she

been diligent, she might have found em-

ployment and had some earnings.

And in seeking her work, plan-

tiff need not look outside her own geo-

graphic 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

Gischarged plaintiff is not bound to

seek or accept other employment in a

67a

different locality in order to mitigate

the damages.

Having that in mind and having

the burden of proof that the plaintiff

and the defendant -- having the burden

of proof that the defendant must sus-

tain, the Court is impressed with the

following evidence:

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 classi-

fied ads for suitable jobs. However,

there is no evidence that she made any

calls with reference to her perusal of

the classified ad section and we are

talking of a period of almost eight

years from July 1969 to May, 1977. Also

that she applied as a cocktail waitress

68a

or restaurant hostess; the great major-

| ity 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 em-

ployment. 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 the said eight year

period.

The plaintiff has no children;

she's had ample time to seek other em-

ployment in mitigation and the Court

finds that she wanted the position of

flight attendant and that's all, and she

Gid nothing in mitigation of damages for

the eight year period. This plaintiff

69a

does not come anywhere near the minimum

standards and her conduct was so defi-

cient 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 seek it and here her ef-

forts were unreasonable.

Here we have a woman who is an

intelligent, attractive, competent and

capable young woman who was a flight at-

tendant, a highly competent person who

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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 indicate

she had no interest in any other posi-

tion and the Court is impressed with the

facts and finds, as a fact, that the

plaintiff really was not interested in

any other position during this time.

She was not interested in seeking any

employment that would in any way miti-

gate the damages that she alleged that

she sustained.

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 con-

duct on the part of the plaintiff which

must be borne out by the plaintiff and

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that standard of conduct in this case

was -~ that was followed, was so defi-

cient 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 dif-

ferent standard with reference to attor-

neys' fees. The plaintiff, in a case of

this type, is entitled to attorneys’

fees except in very unusual

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circumstances. And this issue is dis-

tinct from her entitlement to back pay.

The Supreme Court said, in the

Albemarle case, that while Title VII ap-

pears to leave attorney fee awards in

the District Court's discretion, the

great public interest in having injunc-

tive actions brought would be vindicated

only if successful plaintiffs act as

private attorney generals with awarded

attorneys’ fees in all but unusual cir-

cumstances.

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,

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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

seniority. 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

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desire, at this time, the Court to make

an allocation of the award of attorneys’

fees, or do you want to take that up be-

tween yourselves?

MR. CONNORS: I think we might

try to take care of it between our-

selves, unless Mr. Moldorf disagrees.

MR. MOLDOF: I'm agreeble with

that, Your Honor.

THE COURT: Just make the

judgment against the defendants in the

sum of $5,537; is that agreeable?

MR. CONNORS: Yes, we can

fight it out some other place.

THE COURT: Some other place

than here, huh?

MR. CONNORS: Yes.

THE COURT: All right. Those

are the findings of fact and conclusions

of law of the Court and, counsel, will

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you prepare judgment in that regard and

hand it in within the next few days?

® Thank you, gentlemen.

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CERTIFICATE OF REPORTER

I, 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 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 /s/ Betti A. Murray

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Dated: March 6, 1981

Respectfully submitted,

Robert W. Tollen

CHICKERING & GREGORY

78a