Appendix — BARR v. UNITED AIR AIRLINES, INC. (Nos. 83-1377, 83-1180, 83-1391)

BO. 83-1377

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

JOYCE BARR, Petitioner,

UNITED AIR LINES, INC.,

ASSOCIATION OF FLIGHT ATTENDANTS,

and LIANE BUIX MCDONALD,

Respondents.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

POR THE SEVENTH CIRCUIT

Kenneth K. Flaxman

55 Bast Monroe Street

Suite 4005

Chicago, Illinois 60603

(312) 236-8558

Attorney for Petitioner

Opinion of the Court of Appeals....... la

Judgment Order, Court of Appeals...... 40a

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APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 82-2647, 82-2660, 82-2661

CAROLE ANDERSON ROMASANTA, et al., and

LIANE BUm McDONALD, on her own behalf and

and behalf of all others,

Plaintiffs-Appellants-

Cross-Appellees,

V.

UNITED Am LINES, INC., a corporation,

Defendant-A ppellee-

Cross-Appellant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor-A ppellee.

Appeal from the United States District Court

for the Northern District of Illinois

No. 70 C 1157—James B. Moran, Judge

ARGUED May 9, 1983—DeEciDED SEPTEMBER 21, 1983

Before PELL and CUDAHY, Circuit Judges, and

GIBSON, Senior Circuit Judge.*

Floyd R. Gibson, Senior Circuit Judge for the Eighth Circuit,

sitting by designation.

PELL, Circuit Judge.

These interlocutory appeals concern the district court’s

determinations, following a hearing, as to the seniority

relief to which former flight attendants of United Air

Lines, Inc. (United), who left United because of that

airline’s “no-marriage” rule, are entitled upon reinstate-

ment with the airline.

The principal issue raised on appeal is whether the

district court properly applied the rule in Franks v. Bow-

man Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47

L.Ed.2d 444 (1976), in granting seniority for competitive

purposes equal only to the number of days the claimants

had previously been employed as flight attendants by

United. On cross-appeal, United challenges the grant of

seniority retroactive to date of original hire for purposes

of compensation and other non-competitive benefits. Con-

solidated with this appeal and cross-appeal is the class’

appeal from the district court’s denial of injunctive relief

upon United’s recall in October, 1982, of 175 furloughed

flight attendants.

I. BACKGROUND

A. Prior Proceedings

Prior to November, 1968, United prohibited the con-

tinued employment as a flight attendant of any female

employee who married. United also employed a small

number of male flight attendants who were permitted to

retain their positions after marriage. On November 7,

1968, United and the flight attendants’ union agreed to

revoke this no-marriage rule. Reinstatement was offered

to those flight attendants terminated because of the rule

only if they had filed a grievance with the union or a

complaint with the Equal Employment Opportunity Com-

mission (EEOC).

: On November 27, 1968, Mary Burke Sprogis brought

_ suit in the Northern District of Illinois alleging that the

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no-marriage rule was violative of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (Title

VII). The district court granted summary judgment in

favor of Sprogis. Sprogis v. United Air Lines, Inc., 308

F.Supp. 959 (N.D Ill. 1970). That result was affirmed by

a majority of this court in June, 1971. Sprogis v. United

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

During pendency of the Sprogis appeal, Carole Ander-

son Romasanta filed a class action in the Northern Dis-

trict of Illinois on behalf of herself and other United

flight attendants terminated because of the no-marriage

rule. The district court ruled that the Romasanta case

should not proceed as a class action but by individual in-

tervention of those discharged flight attendants who had

either filed a union grievance or an EEOC complaint. A

settlement was reached by the parties providing for re-

instatement and backpay awards to the plaintiffs and

a final order was entered by the district court approving

. the settlement.

One of the discharged flight attendants who had been

excluded from the Romasanta case because of the adverse

class ruling, Liane Buix McDonald (McDonald), sought

to intervene to challenge the class determination. The dis-

trict court denied intervention and an appeal was taken

to this court. A majority of this court reversed, remand-

nom. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97

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

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period from ninety days before the filing of EEOC

charges to the date on which the no-marriage rule was

abolished. McDonald v. United Air Lines, Inc., 587 F.2d

357 (7th Cir. 1978), cert. denied, 442 U.S. 934, 99 S.Ct.

2869, 61 L.Ed.2d 303 (1979).

On remand, the Association of Flight Attendants

(AFA), the union representing incumbent flight attend-

ants at United, was permitted to intervene. After notice

was given, approximately 1,750 potential class members

were identified. Before the commencement of individual

hearings to determine actual class membership, United

and the AFA successfully urged that the district court

hold an evidentiary hearing to determine whether rein-

statement with retroactive seniority to the date of original

hire would result in an “unusual adverse impact” on

incumbent flight attendants, see, Franks v. Bowman

Transportation Co., 424 U.S. 776, 779 n.41, 96 S.Ct. at

1270, 1271 n.41 (1976). In the course of the ensuing

hearing, the class plaintiffs clarified that they sought re-

instatement only as openings among the ranks of flight

attendants occurred (openings proposal) rather than im-

mediate reinstatement of the entire class.

In a memorandum and order issued January 8, 1982,

the district judge found the openings proposal, as condi-

tioned by the class, to be unworkable. He also found that

“unusual adverse impact” would surely result if the class

members were reinstated immediately with full retro-

active seniority for competitive purposes. The relief

tive purposes (relative seniority proposal). Under this

proposal, a class member whose seniority for competitive

purposes placed her at the ninetieth percentile when she

left United would be inserted into the current seniority

list at that same percentile. This motion was denied with-

out opinion. On July 12, 1982, the district judge issued

an order implementing his earlier memorandum and order.

He certified for immediate appeal the question whether

less than full retroactive seniority could be granted class

members for competitive purposes. See 28 U.S.C. § 1292

(b). The class’ appeal on that issue, No. 82-2660, and

United’s cross-appeal pertaining to the award of full

retroactive seniority for purposes of compensation and

other company benefits, No. 82-2661, followed.

In August, 1982, United indicated that it would recall

175 flight attendants from furlough on October 1. The

plaintiff class sought to enjoin this recall, believing that

it prejudiced the seniority rights awarded claimants pur-

suant to the order of July 12, 1982. The district court

denied the requested stay, refused to require the recall of

claimants rather than furloughees, and declined to rule on

the claimant class’ alternative request that they be per-

mitted to accrue seniority during the period of the recall.

The plaintiffs’ appeal from this ruling, No. 82-2647, has

been consolidated with Nos. 82-2660 and 82-2661 for

purposes of argument and decision.

B. Factual Background Relevant to Reinstatement Issues

1. Competitive and Company Seniority.

Seniority is extremely relevant to the flight attendant

position. The term “seniority” is used in several different

contexts. The first, company seniority, determines a flight

attendant’s number of vacation days and number of

passes to which he or she is entitled, as well as other

similar benefits provided by the airline. Company senior-

ity reflects the employee’s total service with the airline.

Because all of the matters determined by company senior-

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ity represent a cost to the airline, but are not otherwise

limited in their availability, the amount of company sen-

iority awarded the class members is extremely important

to United but has little direct impact on incumbent flight

attendants.

Classification seniority, on the other hand, reflects the

amount of time an employee has worked as a flight at-

tendant. Classification seniority is utilized in an absolute

sense to determine the flight attendant’s salary. Like

company seniority, the classification seniority awarded

class members for purposes of salary calculation is of

primary concern to United and of minimal concern to

incumbent flight attendants.

Classification seniority also is utilized in a relative sense

and is pertinent to those aspects of the flight attendant

job that require United to distinguish among the flight

attendants. For instance, the airline maintains eleven

separate “domiciles” to which flight attendants are as-

signed. Some, like Seattle and Miami, are considered far

more attractive by flight attendants than others, such as

Chicago. Because flight attendants bid for domiciles based

on their classification seniority, the flight attendant with

the greatest classification seniority relative to other flight

attendants, has the best chance of being stationed where

she chooses. The impact of relative classification senior-

ity, therefore, is directly felt by other flight attendants.

Because of this effect, we will hereafter in this opinion

refer to such seniority as “competitive seniority.” '

Besides determining the attendant’s domicile, competi-

tive seniority is utilized in furloughing, or laying off,

flight attendants if such action is required, with the least

senior employee being the one most vulnerable to fur- *

lough. Within each domicile, competitive seniority deter- ;

mines whether the flight attendant is a “lineholder,” who Og

“Competitive seniority” is therefore synonymous to “relative

classification seniority.”

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flies a predetermined fixed monthly schedule, or one who

must serve on “reserve,” in which case the flight attend-

ant’s lines of flying are determined by the airline, at its

option, and according to its needs. Competitive seniority

also determines whether the individual will work only

during weekdays or also during the weekend and whether

he or she will work a flight that offers premium pay.

Finally, and of extreme importance to the flight attend-

ants, whether one is subject to involuntary transfer to a

different domicile is determined by competitive seniority

within the domicile from which the flight attendants are

to be transferred.

Although much of the evidence presented in the trial

below on reinstatement issues will be developed later in

this opinion, it is important to note that assignment of a

domicile is considered extremely important by flight at-

tendants. The evidence indicated, for instance, that some

flight attendants would be more willing to fly “reserve” at

a more desirable domicile than to be a lineholder at a less

desirable domicile. Accordingly, the possibility of involun-

tary transfers is regarded with great concern. Such a

transfer presents the flight attendant with a choice of

relocating or “commuting” from one’s home to one’s

domicile. The cost of commuting—both in terms of time

and money—are significant. Similarly, the costs of re-

location can be exceedingly high in personal terms, par-

ticularly if the flight attendant has been assigned to one

domicile for a lengthy period of time and/or has a spouse

and children with work and community ties in that locale.

Not surprisingly, the other part of the flight attendant

experience affected by competitive seniority that is of

overriding concern to flight attendants is the possibility

of furloughs. A furloughed flight attendant does not

receive regular compensation during the furlough, does

not continue to accrue seniority, and all recall rights are

extinguished after the lapse of five years.

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2. Economic Factors.

Particularly relevant to disposition of this case are eco-

nomic factors affecting United in the past several years.

In the years 1979, 1980, and 1981, United experienced

operating losses, after taking into account the tax ad-

vantages of these losses, of $99,583,000, $15,043,000, and

$104,368,000, respectively. Undoubtedly reflecting this

economic picture, United has not hired a single flight at-

tendant since 1979 and has furloughed 1,530 employees

during that period. Although 547 of these employees were

furloughed because of cutbacks necessitated by the air

traffic controllers’ strike in 1981, and one would therefore

assume their lay-off to be temporary, the AFA brief

submitted in this case indicates that there are currently

1,255 furloughed flight attendants.

The district court also found that reinstatement of

1,480 claimants* would create an immediate non-recur-

ring cost to United in excess of $10,000,000. The annual

recurring cost to the airline of reinstating the claimants

would be approximately $21,000,000.

8. Factors Not Yet Determined by the District Court.

Although this court has accepted this interlocutory ap-

peal on the reinstatement issues, there are several facts

not yet determined that are relevant to the seniority issues

we address herein. First, the size of the class is not yet

certain. Subsequent to oral argument in this case, hear-

ings before special masters have commenced. The purpose

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of these hearings is to determine whether a claimant left

United because of the no-marriage rule or for other rea-

sons. Only upon completion of these hearings will there

be certainty as to the size of the class. Whether all class

members, once they are determined, will actually seek

reinstatement is similarly unknown.’

Second, the district court held hearings in November

and December, 1982, relating to the issues of back pay

and front pay for class members in this action. Front

pay is the amount that United would be required to pay

class members whole they await actual reinstatement by

the airline. Although the district judge did not consider

the impact of front pay in his order, that potential cost

is relevant to this appeal. Because of the financial im-

pact it would have on United, the airline has indicated

that it both could, consistent with the collective bargain-

ing agreement, and would furlough incumbent flight at-

tendants in order to permit a more rapid reinstatement

of claimants.

II. ISSUES RAISED BY INTERVENOR BARR

The initial issue we must consider is whether the dis-

trict court’s use of the number 1,400 as an estimate of

class members likely to seek reinstatement misrepresents

the size of the class and prejudices the results of analyz-

ing the impact on incumbents of the proposed seniority

remedies. Joyce Barr, a member of the class represented

by McDonald, urges that a substantially smaller number

should be utilized and that the class should be subdivided

between those former flight attendants who want to re-

turn to work and those who primarily seek a financial

remedy.

Barr’s argument is that the number 1,400 is unrealistic

because many of the persons who responded to the class

In portions of this opinion, the term “class members” is used

in speaking of all those persons who potentially will be found

entitled to relief and who will seek reinstatement.

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notice will be unable to prove that they left United

because of the no-marriage rule and, of those who survive

that threshold determination, many will not want to

return to a position they left fifteen or more years ago.

Barr asserts that McDonald is using this inflated number

in order to force financial concessions from the airline.

The result is that those class members who actively want

to return to ''nited are being sacrificed to a litigation

strategy that favors those seeking financial benefits,

rather than work, from this suit.

Contrary to Barr’s contentions, the 1,400 figure is not

simply McDonald’s estimate. It is the number upon which

the AFA, United, and McDonald agreed at pretrial con-

ferences in September, 1980, and February, 1981, because

all the parties recognized that some figure had to be used

for purposes of resolving the reinstatement issues in this

case. By the time the hearing below was held, all three

parties were urging different numbers, of which Me-

Donald’s 1,069, was the lowest.

The district court utilized the figure 1,400 after care-

fully analyzing the methodology used by McDonald in

arriving at the 1,069 figure. The district judge’s conclu-

sion was that any one mistaken assumption in McDonald’s

calculations would raise the figure by three to five hun-

dred class members and therefore the 1,400 figure was

more realistic.

The real difficulty here, as recognized by the judge be-

low, is that the relevant assumptions are untestable. Only

after the conclusion of the class membership hearings now

in progress, and scheduled over the next two to three

years, will it be clear who is in the class. Even that fig-

ure may not reflect the number of claimants who finally

seek reinstatement. That variable is virtually impossible

to assess at this time, especially because the attractiveness

of reinstatement may depend, in the view of some claim-

ants, on the resolution of this appeal.

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In International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 376, 97 S.Ct. 1843, 1875, 52 L.Ed.2d

396 (1977), the Court observed that until “both the

number of identifiable victims and the consequent extent

of necessary relief have been determined, it is not possible

to evaluate the abstract claims concerning the equitable

balance that should be struck between the statutory rights

of victims and the contractual rights of nonvictim em-

ployees.” This passage suggests that the reinstatement

issues now before this court would be better addressed by

the district court only after the number of persons at

least entitled to reinstatement is determined. Delaying

resolution of the seniority questions to that time would be

the only practical way of responding to intervenor Barr’s

concerns.

The district court decided to proceed, however, and

this court has accepted the resulting interlocutory ap-

peal, because a case that has already been unresolved too

long threatens to extend indefinitely if resolution of the

seniority questions are delayed until completion of the

class eligibility hearings. Because the district court

found it imperative to proceed before the precise num-

ber of class members was determined, we can demand

no more than that the estimate of class members reflect

the varying positions of the parties and that the basis

for choosing the figure 1,400 be demonstrated in the

record. Both conditions are satisfied here.

Not only do we find the number 1,400 a reasonable

estimate of persons who will seek reinstatement, but, like

the district court, we are persuaded that McDonald is

not undermining the interests of some members of the

class. She has presented alternative proposals regarding

seniority relief, briefed each at length, and actively sought

full, retroactive seniority for class members. We find

no error in the district court’s refusal to subdivide the

class. Not only is subclassing unnecessary in view of

Me Donald's vigorous representation, but it would be im-

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possible to determine at this point which potential class

members “really” want to return to their positions at

United and which “really” seek only a financial remedy.

In light of our decision that the district court did not

err in utilizing the figure 1,400 and in refusing to sub-

divide the claimant class, we hereby deny the various mo-

tions pending before this court that pertain to materials

bearing on a reevaluation of the number of claimants

likely to seek reinstatement.‘

III. COMPETITIVE SENIORITY

The primary issue raised by the plaintiffs on this

appeal is whether the district judge abused his discre-

tion, particularly in view of Franks v. Bowman Trans-

portation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d

444 (1976) (Franks), in declining to grant the class

members full, retroactive competitive seniority upon their

being rehired by United. The class members are entitled,

under the court’s ruling, to only the competitive seniority

they had actually accrued at the time they left United

because of the no-marriage rule.

A. Franks and Its Progeny ~

In Franks, the Supreme Court, reversing the Fifth

Circuit, held that nonemployees who had applied for and

been refused employment as over-the-road truck drivers

by Bowman Transportation Co. (Bowman) solely because

of their race were entitled, pursuant to Title VII, to sen-

~ lority status retroactive to the dates of their employment

* The following motions are accordingly denied: (1) Intervenor

Barr’s motion to supplement record on appeal (filed 5/18/83); (2)

AFA’s motion for leave to comment on intervenor Barr’s Circuit

Rule 11 submissions (filed 6/18/83); (3) class’ motion for leave to

file response to post-argument submissions (filed 4/20/83); (4)

response of intervenor Barr to AF A's motion for leave to file com-

ment (filed 5/20/83); and (5) responses of AFA to class’ motion

to file response to post-argument submissions (filed 5/27/83).

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applications. The Supreme Court reasoned that one of

the central purposes of Title VII is “ ‘to make persons

whole for injuries suffered on account of unlawful em-

ployment discrimination.’” 424 U.S. at 763, 96 S.Ct.

at 1268 (quoting Albemarle Paper Co. v. Moody, 422

U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280

(1975) ), and that ordinarily a grant of seniority refleet-

ing the discrimination victim’s date of application is nec-

essary to achieve that “make-whole” purpose, 424 U.S. at

766-67, 96 S.Ct. at 1265.

One of the arguments advanced by Bowman in support

of the lower courts’ refusal to grant the seniority relief

was that the district court had correctly exercised its

discretion in denying retroactive seniority because of the

competing interests of incumbent employees. The Su-

preme Court rejected this argument for two reasons:

first, because the district court had not mentioned these

considerations in denying the relief,“ and, second, because

lilf relief under Title VII can be denied merely be-

cause the majority group of employees, who have not

suffered discrimination, will be unhappy about it, there

will be little hope of correcting the wrongs to which the

Act is directed.’” Id. at 775, 96 S.Ct. at 1269 (quoting

United States v. Bethlehem Steel Corp., 446 F.2d 652,

663 (2nd Cir. 19710). Although the Court

that the burden of granting competitive seniority falls

primarily on innocent incumbent employees, see 424 U.S.

at 773 n. 33, 776-78, 96 S.Ct. at 1268 n. 33, 1270-71, it

held that a “sharing of the burden of past discrimina-

tion” is “presumptively necessary,” id. at 777, 96 S.Ct.

at 1270.

The Court recognized, however, that an award of full,

retroactive seniority may not be appropriate in every

case. In footnote, the Court clarified that it did not

5 There is no indication in the Franks opinion that the question

of impact on incumbents had even been presented to the district

court.

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intend to abrogate the equity powers of the district

courts:

Rather our holding is that in exercising their eq-

uitable powers, district courts should take as their

starting point the presumption in favor of rightful-

place seniority relief, and proceed with further legal

analysis from that point; and that such relief may

not be denied on the abstract basis of adverse impact

upon interests of other employees but rather only on

the basis of unusual adverse impact arising from

facts and circumstances that would not be generally

found in Title VII cases.

Id. at 779 n. 41, 96 S.Ct. at 1271 n. 41.

The appellants interpret Franks as holding that a di-

minution of incumbents’ job expectations can never con-

stitute unusual adverse impact. Although they are less

explicit as to what would, in their view, constitute the

degree of impact envisioned by the Franks Court as suf-

ficient to preclude the granting of full, retroactive sen-

jority, two possibilities are suggested. First, circum-

stances unrelated to the impact on incumbents might sup-

port a finding of unusual adverse impact. Second, im-

plementing a seniority remedy so as to cause the dis-

charge of incumbent employees might result in “unusual

adverse impact.”

We find little support in Franks, the appellate decisions

of this and other courts that have applied Franks, or the

Supreme Court disposition in International Brotherhood

of Teamsters v. United States, 481 U.S. 324, 97 S.Ct.

1843, 52 L.Ed.2d 396 (1977) (Teamsters), for such a

limited interpretation of the “unusual adverse impact”

standard. Because the Franks Court was well aware that

the burden of granting retroactive seniority to discrimi-

nation victims falls primarily on innocent incumbents,

see 424 U.S. at 773 n. 33, 776-78, 96 S.Ct. at 1268 n.

33, 1270-71, there is no basis in either law or logic for

concluding that “unusual adverse impact” must reflect

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factors unrelated to the impact of the remedy upon in-

cumbent employees. Similarly, the Franks opinion no-

where states that only the resulting discharge of in-

cumbents will constitute unusual adverse impact. What

Franks does clarify is that full retroactive seniority

should not be routinely denied discrimination victims

merely because such relief will have some impact, as it

always will, on incumbents. Because neither the district

nor appellate courts in Franks had relied on the compet-

ing rights of incumbents as a ground for denying sen-

iority relief, the impact in that case was indeed “ab-

stract,” id. at 779 n. 41, 96 S.Ct. at 1271 n. 41, and was

not demonstrated by “facts and circumstances that would

not generally be found in Title VII cases,” id.

Our conclusion that Franks did not limit the “unusual

adverse impact” inquiry to the extent urged by the class

is supported by the Supreme Court disposition in Team-

sters. Again emphasizing that it is within the equitable

discretion of the district court, in the first instance, to

fashion a seniority remedy, the Court referred to the

“equitable balance that should be struck between the

statutory rights of victims and the contractual rights of

nonvietim employees,” 431 U.S. at 376, 97 S.Ct. at 1875,

and suggested in footnote that the number of victims, the

number of non-victim employees affected, the alternatives

available to incumbents, and the economic circumstances

of the industry would be relevant to the district court’s

exercise of discretion, id. at 376 n. 62, 97 S.Ct. at 1875,

n. 62. Focusing on the timing of the equitable remedy,

the Court observed that:

Especially when immediate implementation of an

equitable remedy threatens to impinge upon the ex-

pectations of innocent parties, the courts must “look

to the practical realities and necessities inescapably

involved in reconciling competing interests,” in order

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to determine the “special blend of what is neces-

sary, what is fair, and what is workable.”

Id. at 375, 97 S.Ct. at 1874 (citation omitted).

The courts of appeals similarly have not read Franks

as mandating so limited an inquiry as that urged by the

class. For instance, in Moore v. City of San Jose, 615

F.2d.1265, 1272 (9th Cir. 1980), the Ninth Circuit noted

the district court’s findings that, not only would no in-

cumbent lose his job, but that the seniority relief granted

the twelve class members would have “minimal” impact

on the incumbent workforce of 590 people. In Air Line

Stewards and Stewardesses Association, Local 550 v.

Trans World Airlines, Inc., 680 F.2d 1164, 1169 (7th

Cir. 1980), affd sub nom. Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234

(1982), this court relied in part on the likelihood that the

claimants, who constituted three percent of the incum-

bent workforce, could be reinstated in less than one-half

year through normal attrition. In Air Line Stewards and

Stewardesses Association, Local 550 v. American Airlines,

Inc., 573 F.2d 960 (7th Cir. 1978), cert. denied, 439

U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190, this court relied

in part on the representation made to the district court

_ that the class members, who again constituted approxi-

mately three percent of the incumbent workforce, would

return only to domiciles where openings occurred. Id.

This court also noted that the district court had made

“an admirable effort to sort out the likely impact of and

the ‘balance of equities’ surrounding the provision of ret-

roactive occupational seniority,” id. at 965, and had as-

sured itself that no present employees would lose their

jobs and “also that the number of returning employees

was not so large as to create undue problems,” id. Fi-

nally, in Association Against Discrimination in Employ-

ment, Inc. v. City of Bridgeport, 647 F.2d 256 (2nd

Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71

L.Ed.2d 847 (1982), the Second Circuit, in affirming the

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district court’s order of a freeze on incumbent promo-

tions in order to equalize promotional seniority among

current employees and victims of discrimination, noted

that it was possible the City could act to minimize the

burden on incumbents. Id. at 287.

The appellate cases discussed above compe! the conclu-

sion that courts have considered numerous factors, not

just whether current employees would lose their jobs, in

granting or reviewing a grant of seniority relief.“ We

therefore reject the appellants’ argument that the court

below abused its discretion in considering the many differ-

ent kinds of impact a grant of full, retroactive seniority

would have on those persons currently employed by United

as flight attendants.

* The only court of appeals case that arguably could be construed

to hold that it is an abuse of discretion, under Franks, not to grant

full, retroactive competitive seniority is Association Against Dis-

crimination in Employment, Inc. v. City of Bridgeport, 647 F.2d

256 (2nd Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71

L.Ed.2d 847 (1982). In a portion of that opinion not discussed

supra, the Second Circuit held that the district court had erred in

granting less than all the benefits of seniority to discrimination

victims. The court noted that the plaintiffs had not specified what

benefits they had been denied, id. at 288, but suggested that the

plaintiffs should be provided with vacation and sickpay appropriate

to their “rightful place” in the seniority system and should have

the benefits of seniority for purposes of avoiding lay-off if the City

maintained a last-hired-first-fired seniority system.

Initially, we note that benefits such as vacation days and sick

pay are not within the realm of “competitive” seniority. To the

extent that the Second Circuit did order an award of competitive

seniority without the benefit of any inquiry into what impact that

relief might have on incumbent employees, we decline to follow

the Bridgeport court’s interpretation of Franks in light of this

court’s previous observation that it is both proper and necessary

to “sort out the likely impact of and the ‘balance of equities’ sur-

rounding the provision of retroactive occupational seniority.” Air

Line Stewards and Stewardesses Association, Local 550 v. American

Airlines, Inc., 573 F.2d 960, 965 (7th Cir. 1978), cert. denied, 489

U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190.

18a

B. Application of Franks and Teamsters to this Case

Franks mandates that a finding of “unusual adverse

impact” be based on factors not generally found in a

Title VII case. 424 U.S. at 779 n.41, 96 S.Ct. at 1271

n. 41. Teamsters suggests that the relevant considerations

would include the number of victims, the number of non-

victim employees affected, the alternatives available to

incumbents, and the economic circumstances of the in-

dustry. 431 U.S. at 376 n. 62, 97 S.Ct. at 1875 n. 62.

Relying on the first two factors enunciated in Team-

ters, the appellants argue that the ratio of class members

to incumbents in this case, sixteen percent, is less than

that in Franks, Teamsters and Association Against Dis-

crimination in Employment, Inc. v. City of Bridgeport,

647 F.2d 256 (2nd Cir. 1981), cert. denied, 455 U.S. 988,

102 S.Ct. 1611, 71 L.Ed.2d 847 (1982).7 Because none

of those cases precluded an award of full, retroactive com-

petitive seniority, and particularly because the Second

Circuit in the Bridgeport case held that the district court

had abused its discretion in ordering less than full sen-

iority, the appellants claim that the judge below should

have ordered the full measure of competitive seniority.

The difficulty with the class’ argument is that it focuses

on only two of the factors enunciated by the Teamsters

Court. The current economic conditions affecting the air-

line industry are extremely relevant to the present case

and, under Teamsters, were properly considered by the

district court. By contrast, economic considerations have

not been deemed pertinent to other courts of appeals de-

cisions regarding competitive seniority. We conclude,

7 The appellants assert that the class members in Bridgeport

constituted twenty percent of the incumbent workforce. This repre-

sents the ratio of the 102 persons ordered entitled to priority in

hiring by the district court to the workforce of 512. Because the

‘court of appeals reduced the number on the priority hiring list

to 73, the correct percentage would appear to be fourteen percent.

19a

therefore, that the prior case law has limited relevance to

evaluation of the district court’s application of Franks

and Teamsters to this case and reject the appellants’

° suggestion that an award of retroactive competitive sen-

iority is required in this case because of the ratio of

class members to incumbents.

Having determined that the district court neither ig-

nored nor misapplied the controlling principles of law, our

task on review is to determine whether evidence in the

record supports its conclusions that an award of full,

retroactive competitive seniority would result in an “un-

usual adverse impact” on incumbents. Before undertak-

ing that review, however, we address the appellants’

contention that the district court mischaracterized the

relief they sought.

During the course of the trial below on reinstatement

issues, the class clarified that it sought reinstatement at

United only as openings permitted. This proposal was

conditioned in several ways, which are developed in detail,

infra. In his memorandum opinion, the district judge did

consider this openings proposal. He found it unworkable

because of the conditions upon which the class insisted.

The district court then also considered the impact of

Having determined that Franks and Teamsters require the dis-

trict court to evaluate carefully the many facets of impact that an

award of competitive seniority will have on innocent, incumbent

employees, the fact that we herein review the district court’s

denial, as a matter of discretion, of full competitive seniority relief

further distinguishes this case from previous decisions in which

this and other courts of appeals have reviewed a grant of full

seniority. See, e. g., Air Lines Stewards and Stewardesses Associa-

° tion, Local 550 v. Trans World Airlines, Inc., 680 F.2d 1164 (7th

Cir. 1980), af d sub nom. Zipes v. Trans World Airlines, Inc., 446

? U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 284 (1982); Moore v. City of

4 San Jose, 615 F.2d 1265, 1271-72 (9th Cir. 1980) ; Air Lines Stewards

and Stewardesses Association, Local 550 v. American Airlines, Inc.,

4 _ $73 F.2d 960 (7th Cir. 1978), cert. denied, 489 U.S. 876, 99 S.Ct.

7 214, 58 L.Ed.2d 190.

20a

immediate reinstatement of all the class members and

concluded that “unusual adverse impact” would result.

He similarly considered the impact that would result if

the openings proposal were workable and were imple-

mented and, as to some of the categories of consequences

reviewed, found it to be somewhat less than the impact

of immediate reinstatement.

We find no error in the district court’s consideration of

the impact that would result from immediate reinstate-

ment of the class. Such analysis was wholly appropriate

in light of the mandate in Franks and Albermarle Paper

Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45

L.Ed.2d 280 (1975), that the district court should fashion

a remedy that would “make [the class] whole” for the

injuries suffered as a result of discrimination. Further,

the district court did not ignore the openings proposal but,

rather, found it both unworkable and the cause of signifi-

cant, adverse impact on incumbents if it were workable.

We are not persuaded, therefore, that the district court’s

“error” lay in its mischaracterization of the relief sought

by the class.

C. Review of the District Court's Findings

A total of three proposals regarding seniority relief

were presented by the class. We first review the findings

regarding immediate reinstatement of the class. Second,

we review the determinations regarding the openings

proposals and, finally, we consider the class’ request for

relative seniority.

Throughout his opinion, the district judge grouped the

consequences of granting the requested relief as follows:

(1) the possibility of furloughs and firings; (2) the po-

tential for involuntary transfers; (3) demotions to re-

serves; (4) impact on lineholder schedules; (5) the eco-

nomic impact on United; and (6) the impact on minority 92

hiring. The findings of unusual adverse impact“ relate

primarily to the considerations relevant to groups (1)

214

and (2). In reviewing the lower court’s findings, there-

fore, we shall address primarily the possibility of fur-

loughs and firings and the potential for involuntary

transfers.

1. Immediate Reinstatement.

The district judge found that if the 1,400 class mem-

bers were immediately reinstated by United, all incum-

bent attendants hired by United since March 7, 1977,

would be furloughed. Those incumbents who were fur-

loughed would suffer immediate financial consequences

from loss of income. Further, it is possible that many of

those furloughed as a result of reinstating the class, as

well as those flight attendants already on furlough, would

not be recalled before the five-year limit and would there-

fore effectively be “fired.”

As discussed in Section III (A), supra, the appellants

themselves seem to suggest that a discharge of incumbents

because of relief granted to discrimination victims might

constitute “unusual adverse impact.” The combination of

a very large class and an economically depressed airline

industry might well result in a significant number of

current United flight attendants losing their jobs. We

find ample support in the record for this finding and for

the district judge’s conclusion that such an impact would

be “unusually adverse.”

Immediate reinstatement would also result in a large

number of involuntary transfers. As indicated supra,

United maintains eleven separate domiciles for which

flight attendants “bid” based on their seniority. Working

from the assumption that returning class members would

seek assignment to the domicile nearest their current

residence, the district judge found that 147 claimants

would choose to go to Seattle, one of the inost popular

domiciles. If they did, thirty-five percent of the flight

attendants currently domiciled in Seattle would be sub-

ject to involuntary transfer to another domicile. Those

22a

subject to transfer would be all Seattle-based flight at-

tendants hired after September 30, 1969.

Because the popular Miami domicile is considerably

smaller than the Seattle one, the impact there would be

even more striking. If the 143 claimants who live nearest

the Miami domicile all returned, seventy-six percent of

the current Miami domiciliaries would be subject to

transfer. This would include all flight attendants cur-

rently stationed in Miami who were hired after February

28, 1966.

The effect of an involuntary transfer is to force a flight

attendant either to disrupt his or her family and com-

munity life or to commute to the new domicile. There is

evidence in the record of this case that many of these

displaced incumbent flight attendants would resign their

positions with United rather than suffer the disruption

associated with transfer or incur the costs, in both time

and money, involved in commuting.

Choosing to resign in the face of two equally unsatis-

factory alternatives—relocating or commuting—may be

marginally preferable to being furloughed for an extended

time or effectively discharged upon the expiration of recall

rights. The difference, however, is merely a matter of

degree. There is ample evidence in the record to support

the district judge’s findings regarding the impact of in-

voluntary transfers on incumbents and the likelihood that

such transfers would result from the immediate reinstate-

ment of the class members. We cannot say that the dis-

trict judge abused his discretion in characterizing this

impact as unusually adverse.

Of the other consequences of immediate reinstatement

discussed by the district court, the most significant is the

impact on minority flight attendants currently employed

by United. Pursuant to a consent decree entered in 1976,

EEOC v. United Airlines, Inc., No. 73 C 973 (N. D. Il.

1976), af d, 560 F.2d 224 (7th Cir. 1977), cert. denied,

23a

434 U.S. 1063, 98 S.Ct. 1237, 55 L. Ed. 2d 764 (1978),

United has hired an increasing number of flight attend-

ants who are members of minority groups in recent year:.

Accordingly, these persons have relatively low seniority.

They would, therefore, be more affected as a group by the

immediate reinstatement of the class than the other in-

cumbent flight attendants. Evidence in the record sug-

gests that immediate rehiring of all class members would

decrease the percentage of minority flight attendants

from fifteen to ten percent. Further, because of the many

furloughs that would result from implementation of this

remedy, there would be less or no hiring by United in the

next several years and the number of minority members

working as United flight attendants would not be in-

creased by new hires. .

The judge below did not find that the consequences to

minority flight attendants would, by themselves, consti-

tute “unusual adverse impact.” Nonetheless, we believe

the district judge correctly considered this impact to be

significant. When it is considered along with the possi-

bility of furloughs, possible firings, and involuntary trans-

fers, the impact on minorities buttresses the district

court’s conclusion that “unusual adverse impact” would

result if the class members were immediately reinstated.

2. Openings Proposal.

The claimants do not suggest that they will wait pas-

sively for openings to occur among the rank of flight

attendants without regard to how long the delay in re-

instatement might be. The class conditioned their open-

ings proposal on all claimants being fully reinstated

within two and one-half to three years. McDonald indi-

cated that if that timetable were not met, she would

“undoubtedly . . . petition the court to modify the decree.”

Second, all openings were to be filled by class members

before any furloughed incumbent flight attendant was

24a

“front pay” consisting ci full pay and benefits . all

class members were reinstated.’

The proposal also required United to “take appropriate

steps to encourage the creation of openings.” Two spe-

cific suggestions were made by the class: initiation of an

early retirement program and the creation of a continuing

“shared work” program.

The district court found that it lacked power to impose

either the early retirement or shared work program. Ab-

sent any allegation that the United-AFA collective bar-

gaining agreement violates the Civil Rights Act or wrong-

fully perpetuates the effects of past discrimination, the

court below lacked the power to rewrite the terms of that

agreement to provide for either of the programs sug-

gested by plaintiff class. See Myers v. Gilman Paper

Corp., 544 F.2d 837, 857 (5th Cir. 1977), amended and

modified on other grounds, 556 F.2d 758, cert. dismissed,

434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59.

Absent affirmative action to encourage openings, the

district court found that the openings proposal was un-

workable, primarily because of the two and one-half to

three year time limit. The feasibility of meeting the time

limit turns primarily on two factors: the anticipated at-

trition from the ranks of flight attendants and the antici-

pated growth in the total number of flight attendants

required by United.

Experts for both the plaintiffs and United testified as

to attrition rates. The plaintiffs’ expert, Dr. Carl Hoff-

man, predicted an attrition of between 670 and 833 flight

attendants by year-end 1983. These figures represent an

attrition rate of approximately three and one-half percent.

United’s expert, however predicted that the attrition rate

would be something under one percent over the next five

years, resulting in 367 available places for flight attend-

* As indicated in Section I(B) (3), the district court has not yet

resolved the issue of front pay.

- " by

lip So oe ** * *

* * 4 ＋ ia > “4 > - : -_" —

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25a

ants. Judge Moran did not credit one expert over an-

other. He noted that both were subject to challenge on

methodological grounds, and “most importantly, both are

subject to certain imponderables beyond the control of

the airline or the flight attendants that will greatly affect

the rates of attrition.”

The failure to resolve definitively how much attrition

will occur among United flight attendants is not critical,

however, because it is clear that 1,400 class members

could not be reinstated within the me frame set by Me-

Donald without some growth in the total number of active

flight attendants required by the airline.

United had originally projected an annual growth rate

of four to five percent. This would have resulted in the

recall of 102 furloughees in 1981. Instead, 125 flight at-

tendants were furloughed in July, 1981. Another 350

flight attendants were furloughed in September, 1981,

and because of the strike by the professional air traffic

controllers and the resulting reduction in the number of

United flights, another 547 were furloughed in October,

1981. United’s “growth projections” for 1981 were ac-

cordingly off by 1,124 individuals.

United now projects no growth for the next few years.

According to the brief submitted by the AFA, there are

still 1,255 United flight attendants on furlough. It is

apparent that, absent a dramatic change in the economies

affecting the airline industry, it will be impossible for

United both to recall those flight attendants currently on

furlough and to provide places for the 1,400 class mem-

bers within the two and one-half to three year limit set

by the class. Even if the class members could all be re-

instated within that period, which appears unlikely, the

result is that some current furloughees would be effec-

tively discharged at the expiration of their ts.

This is the same effect that the district judge found, when

considering immediate reinstatement of the class, to con-

stitute “unusual adverse impact.”

a} ; ’ ö 15

*.

26a

Even if the openings proposal were “workable,” there-

fore it is likely that some furloughees would eventually lose

their job with United. This effect would be exacerbated

if the district court awards front pay to the class and 0

United creates artificial vacancies by furloughing incum-

bent flight attendants. United has indicated that it would

take such action in order to avoid paying full salaries to

those waiting for reinstatement. Although no award of

front pay has yet been made, this possibility is relevant

because it suggests that the impact of the openings pro-

posal would be virtually indistinguishable from that of

immediate reinstatement insofar as furloughs and pos-

sible firings are concerned.

Further, even if the openings proposal were workable

within the conditions set by the class, there is no indica-

tion that the impact, in terms of involuntary transfers,

would be appreciably less than if the class members were

reinstated immediately. The greatest attrition occurs

among the more junior flight attendants. As a result,

the majority of openings will occur at the less popular

domieiles. Because of the significant competitive seniority

that returning class members would have, they would gen- |

erally be able to utilize that seniority to be stationed at |

the domicile of their choice. There is simply no guarantee

that openings would occur at the domiciles that class

members would request. If they did not, incumbents now

stationed at those domiciles would have to be involuntarily

transferred to the less popular domiciles where the open-

ings had occurred.

The only other alternative would be for class members

to wait until an opening occurred at the domicile of his

or her choice or to accept employment wherever a vacancy

occurred, regardless of domicile. The class members have

not indicated a willingness to do either. The time limit

set by the class precludes the first option which might, as

the district court recognized, involve an inordinately long

wait. Further, even if the class members indicated a will-

27a

ingness to suffer such a long delay in reinstatement,

United might be expected, if front pay were awarded, to

create false vacancies to put the class members back to

work at domiciles of their choice. The result in this case

would be virtually the same as if the class members were

immediately reinstated.

Both in terms of furloughs or firings and the potential

for involuntary transfers, there is ample support in the

record for the district court’s conclusion that the impact

on incumbents resulting from implementation of the open-

ings proposal would be only slightly less than if the entire

class were immediately reinstated. More importantly,

there is support for the judge’s conclusion that the condi-

tions insisted upon by the class as part of the openings

proposal simply cannot be met. Bearing in mind that, in

Teamsters, the Supreme Court indicated that in “devising

and implementing remedies under Title VII.. . a court

must. . determine the ‘special blend of what is neces-

sary, what is fair, and what is workable,’” 431 U.S. at

375, 97 S.Ct. at 1874 (citation omitted, we find no abuse

of discretion in the district court’s rejection of the class’

openings proposal.

3. Relative Seniority.

Pursuant to the class’ motion to reconsider, the district

judge considered and rejected an alternative proposal

which would have given class members the same “rela

tive” seniority they had when they left United. Under

this relative seniority proposal, a class member who was

in the sixty-seventh percentile for seniority purposes when

she left United because of the no-marriage rule would,

upon reinstatement, be placed at that same percentile.”

10 The district court denied the motion to reconsider without

opinion. We reject the plaintiffs’ contention that the court’s failure

to issue an opinion constitutes “clear error” under Franks. The

court had advised the parties, prior to the trial on reinstatement

issues, that he would consider the full “ of

28a

At the time of the plaintiffs’ terminations, sixteen percent

were in the top quarter of the seniority rankings, twenty-

seven percent were in the second quarter, thirty-five per-

cent were in the third quarter, and twenty-two percent

were in the bottom quarter.

Under the remedy devised by the district court, approxi-

mately ninety-three percent of the claimants will be in

the bottom quarter of the seniority list. The plaintiffs

argue that stagnation at the top of the seniority list

means that they will remain at the bottom of the list for

the rest of their careers. They therefore suggest that the

relative seniority proposal at least achieves the district

court’s apparent goal of placing them where they were

when they left United, whereas the relief granted by the

court below actually gives them far less.

The difficulty with the relative seniority proposal stems

largely from the change in how flight attendants view

their flying experience in the 1980’s as compared to the

1960’s. What was once viewed as a temporary, glamorous

job is now considered a career position. As a result, a

flight attendant who began working for United in 1966

had accrued as much relative seniority by late 1968 as a

flight attendant who began in 1970 had by 1982. The rela-

tive seniority proposal effectively equates twenty months

of experience fifteen years ago to twelve years of more

recent experience. Such a result places a great burden on

incumbents who were in no way responsible for United’s

no-marriage rule.

Whether that burden would, in a different economic

setting, be consistent with the shared-burden rationale

remedies. The detailed opinion issued by the district judge demon-

strates that he fulfilled this promise. As our review of the relative

seniority proposal indicates, see infra, its impact is different in only

a matter of degree from the proposals discussed at length by the

district court. We find no error in the district judge's failure to

write yet another lengthy opinion concerning the same issues that

had already been treated in depth in the memorandum opinion.

} **

29a

° articulated in Franks, 424 U.S. at 777, 96 S.Ct. at 1270,

need not be resolved because implementation of the rela-

tive seniority proposal would, in the context of this case,

result in “unusual adverse impact” on incumbents. In

light of the small attrition rate at United and, more im-

portantly, the lack of anticipated growth in the total num-

ber of flight attendants required, the effect of granting

the plaintiffs relative seniority would be to require the

existence of 951 openings in the ranks of flight attendants

before the most senior of the current furloughees would

be recalled. Because there are currently 1,255 flight at-

tendants on furlough, there would have to be over 2,000

openings for flight attendants within the five-year limit,

at the conclusion of which furloughees lose their recall

rights, in order for the class members to return to United

without some percentage of incumbent furloughees losing

their job as a result.

The relative seniority proposal, if implemented on an

“openings” basis, as apparently the class intends, does

not resolve the impossibility of reinstating the class mem-

bers within the time limit set by the class. The district

court found it unlikely that sufficient openings would oc-

cur to accommodate the class members if they were hired

before any furloughees were recalled. Utilizing the rela-

tive seniority approach, some furloughees would be re-

called before some of the least senior class members. As

a result, more than 1,400 openings would be required to

reinstate both the class and the more senior of the current

furlougtiees within the time limit. The relative seniority

proposal, implemented on an openings basis within the

time limit set oy the class, is even less workable than the

openings approach presented by the class during the trial

below.

To reintegrate immediately the 1,400 class members

into the active work force, even with relative seniority,

5 would differ from immediate recall with full seniority

é only in a matter of degree. The furlough of flight attend-

30a

ants now in active service would be necessary. The possi-

bility is strong that many of the furloughees, quite likely

those laid-off as a result of the reinstatement of the plain-

tiffs and almost certainly some of the present furloughees,

would not be recalled within the five years and would,

therefore, lose their jobs.

Similarly, because many of the class members would

enter the ranks of flight attendants with substantial sen-

iority, the likelihood of involuntary transfers of incum-

bents remains extremely high. This is true whether

reinstatement were implemented immediately or on an

openings basis.

In summary, we conclude that those factors compelling

a conclusion of unusual adverse impact under the immedi-

ate reinstatement or openings proposals are mitigated to

only a slight extent if the class members are granted rela-

tive seniority. The remaining “unusual adverse impact”

on the incumbents makes this remedy, under Franks,

inappropriate and the district judge did not abuse his

discretion in declining to adopt it.

IV. ISSUES RAISED ON CROSS-APPEAL

On cross-appeal, United urges that the district court

ecred in awarding the plaintiff class seniority from the

date of original hire for purposes of compensation and

various benefits such as the number of vacation days and

number of passes a flight attendant receives.“ Unlike

competitive seniority, see Section I(B)(1) supra, the

burden associated with this award of non-competitive sen-

jority falls primarily on United rather than on incum-

bent flight attendants.

1 Referring to the terminology developed in Section I(B) (1),

supra, seniority from date of original hire was awarded the class

for purposes of company seniority and classification seniority

utilized in the absolute sense. Apparently, compensation is the

only variable determined by this absolute use of classification

seniority.

31a

United asserts that Franks requires a district court to

“balance the equities” in awarding seniority relief and

offers two arguments in support of its conclusion that the

equities favoring the plaintiffs are few. As discussed in

Section III(A) supra, Franks created a presumption in

favor of full retroactive seniority relief, implemented on

an openings basis, in Title VII cases. Franks, 424 U.S.

at 779 n. 41, 96 S.Ct. at 1271 n. 41. Arguably, the ap-

proach taken by the Teamsters Court could be charac-

terized as a balancing of equities. 431 U.S. at 374-76, 97

S.Ct. at 1874-75. The court below reconciled the language

in Franks and Teamsters by applying the Franks pre-

sumption, requiring United and the AFA to carry the

burden of demonstrating “unusual adverse impact,” and

relying on the factors enumerated in Teamsters as rele-

vant to that showing. Absent any explicit statement in

Teamsters that the standard enunciated in Franks was

no longer viable, we believe the approach taken by the

district court is correct and have followed the same mode

of analysis on appeal. We are not persuaded, therefore,

that United’s characterization of this case as one involv-

ing a mere balancing of equities is correct.

Our reluctance to resolve this case by a balancing of

equities is quite relevant to evaluation of one of the argu-

ments posed by United. United stresses the equities in

its favor: that the airline promptly abrogated the no-

marriage rule once it became clear that the rule violated

Title VII, and that, although other airlines had similar

rules during the period that United’s was in effect, only

United is subject to a potential liability that includes an

increase in annual operating expenses of approximately

$21,000,000. United also stresses the change in how flight

attendants view their position—what was once a job of

limited duration is now a career position—and concludes

that there is only a one-in-three chance that a flight at-

tendant who married between 1965 and 1968 would still

be flying for the airline, even if the no-marriage rule had

never existed. In this regard, United finds it significant

: *

’ * 3 1 (WA. \ *

Fele

that less than ten percent of the potential class members

reapplied to United as preferred hires after abrogation

of the rule.

Finally, United asserts that the incumbent flight attend-

ants are extremely hostile to the class members and that

such hostility, together with service reductions United

will be forced to make as a result of the relief granted

the class, will have a negative impact on the public served

by the airline.

Although the judge below did not address all of these

factors in the portion of his opinion discussing company

seniority, the district court opinion, read as a whole, does

recognize the “equities” favoring United. The conclusion

drawn by Judge Moran regarding these issues differs

from that of United primarily because the district court

read Franks as mandating the fullest possible relief for

the class. Because we concur with the district judge’s

reliance on, and interpretation of, Franks, we are not

persuaded by United’s argument that the district court

failed to weigh properly the equities in this case.

The second argument raised by United in support of its

contention that the award of non-competitive seniority was

an abuse of the district court’s discretion relies on United

Air Lines, Inc. v. Evans, 431 U.S. 558, 97 S.Ct. 1885, 52

L.Ed.2d 571 (1977), Zipes v. Trane World Airlines, Inc.,

455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), and

Ford Motor Co. v. EEOC, —— U.S. ——, 102 S.Ct. 3057,

73 L.Ed.2d 721 (1982). United asserts that because many

members of the plaintiff class did not individually file

timely charges with the EEOC and did not subsequently

return to United as preferred hires after abolition of

the no-marrige rule, they have failed to meet the prerequi-

sites necessary to an award of retroactive seniority for

non-competitive purposes.

1 United also relies on this argument as an alternative ground

in support of the district court’s judgment regarding competitive

33a

In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97

S.Ct. 1885, 52 L.Ed.2d 571 (1977), the plaintiff, who had

left United because of the no-marriage rule,“ did not

file a charge with the EEOC within ninety days. Approxi-

mately four years later, in 1972, she returned to United

but was not granted retroactive seniority upon her return.

The following year, Evans filed charges with the EEOC

alleging that United had discriminated against her and

continued to do so. The Supreme Court held that, because

of Evans’ failure to filed a timely charge before the

EEOC in 1968, the airline’s discriminatory action in dis-

charging her was of no legal consequence. Jd. at 558, 97

S.Ct. at 1889. Further, the Supreme Court held that

Evans demonstrated no continuing violation of Title VII

because she introduced no evidence that she was being

treated differently, pursuant to United’s seniority system,

from other flight attendants—male or female—who had

been discharged for non-discriminatory reasons and sub-

sequently rehired. Id.

Evaus is distinguishable from the present case in that

Evans was not a class action whereas the present case is.

It is well established that, in a Title VII class action,

unnamed plaintiffs are not precluded from class member-

ship merely because they did not individually file timely

EEOC charges. Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 396, 102 S.Ct. 1127, 1134. 71 L.Ed.2d 234

(1982) ; United Airlines, Inc. v. McDonald, 432 U.S. 385.

389 n. 6, 97 S.Ct. 2464, 2467 n. 6, 53 L.Ed.2d 423 (1977);

Franks v. Bowman Transportation Co., 424 U.S. 747, 771,

96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976); Albermarle

Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362,

2370 n. 8, 45 L.Ed.2d 280 (1975). United recognizes this

distinction yet urges that the failure of individual class

seniority. Because we have resolved that issue on the grounds set

forth in the district court opinion, we will not consider United’s

alternative ground in that context.

13 Evans is a member of the claimant class in this case.

4 N 5 3 2 . FS 8

II SB i, oe Te Se e c em, One 2

34a

members to file timely EEOC charges is nonetheless rele-

vant to the “balancing of equities” required in this case.

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102

S.Ct. 1127, 71 L.Ed.2d 284 (1982), is relevant to this

prong of United’s argument.

The plaintiff class in Zipes involved a large percentage

of persons who had neither themselves filed charges with

the EEOC nor been discharged, pursuant to Trans World

Airlines’ rule prohibiting mothers from employment as

flight attendants, within ninety days preceding the filing

of charges by other class members. This court had held

that this subgroup of the plaintiff class was jurisdiction-

ally barred from relying on Title VII. In re Consolidated

Pretrial Proceedings, 582 F.2d 1142 (7th Cir. 1978),

rev'd sub nom. Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

_ While petitions for certiorari were pending on the jur-

isdictional issue, the plaintiff class and the airline reached

a settlement agreement that was approved by the district

court and by the Seventh Circuit. That agreement pro-

vided for retroactive seniority relief for the entire class,

including those members whom the Seventh Circuit had

held jurisdictionally barred from Title VII relief.

Although the Supreme Court reversed the Seventh Cir-

cuit’s decision regarding jurisdiction, it affirmed this

court’s approval of the settlement agreement. Zipes, 455

U.S. at 401, 102 S.Ct. at 1136. Concurring in the result

as to the award of retroactive seniority, Justice Powell

wrote:

[When the victims of discrimination have slept on 5

their rights, it will often be unfair to award them oe

full retroactive seniority at the expense of employees 25

who may have accrued their present seniority in good

faith. When timely charges have not been filed, a dis-

trict court should consider these equities in determin-

35a

ing whether to award competitive-status seniority,

and the presence of a settlement between the em-

ployer and the plaintiffs should not affect the balanc-

ing of these equities.

Id. at 401 n. 1, 102 S.Ct. at 1137 n. 1 (opinion of Powell,

J., concurring in the judgment in No. 80-951).

The above-quoted language from Justice Powell’s opin-

ion forms the primary basis for United’s argument that it

is inequitable to award retroactive seniority for non-

competitive purposes to the plaintiff class in this action.

The argument is inapposite for two reasons. First,

Justice Powell’s remarks are directed to competitive rather

than non-competitive seniority. Second, United overlooks

the fact that the class members in this case are not in

the same position of having “slept on their rights” as the

subclass of plaintiffs in Zipes. The class membership in

this case was carefully limited to include only flight at-

tendants who had left United pursuant to the no-marriage

rule within the period from ninety days before the filing

of EEOC charges until United’s abolition of the rule.

Unlike the relevant subclass of plaintiffs in Zipes, all

members of the class in the instant case have a timely

EEOC charge upon which to rely. To penalize them for

not having individually filed EEOC charges would be con-

trary to the well established rule that individual, timely

filings are not essential to a class action. We therefore

reject United’s argument insofar as it rests on the prem-

ise that class members were remiss in not filing individual

EEOC charges.

The third prong of United’s argument is based on Ford

Motor Co. v. EEOC, —— U.S. ——, 102 S.Ct. 3057, 73

L.Ed.2d 721 (1982). In that case, several women were

denied employment at Ford. An EEOC charge was filed.

Two of the women obtained other employment. Ford then

offered each of them the position that had previously been

wrongfully denied. Ford made no offer of retroactive sen-

iority to the date of original hire. Reversing the Fourth

36a

Circuit, the Supreme Court held that, absent unusual cir-

cumstances, an employer’s unconditional offer of the job

previously withheld ends the accrual of potential back pay

liability.

United relies on Ford, by broad analogy, for the propo-

sition that the failure of the plaintiffs to seek available

rehire by United weighs the equitable balance in favor of

the airline. We are not persuaded that Ford has relevance

to the present case. Not only does this appeal not involve

issues of back pay, but more importantly, it is not a case

in which United unconditionally offered employment to

any of the flight attendants who had left during the era

of the no-marriage rule. United’s “offer” was no more

than a statement, in its publicity aimed at potential flight

attendants, to the effect that priority would be given to

applicants who had previously worked in positions involv-

ing “customer service.” This is obviously something short

of an unconditional offer of employment made directly to

the victim of discrimination. Further, although the

former flight attendants may have known that United had

abandoned its no-marriage policy and may have known

that they would be given hiring preference if they re-

applied, neither of these facts is established in the record.

We therefore conclude that Ford has little relevance to

this case.

We conclude that the district judge did not abuse his

37a

economic impact on the airline could not be considered

“unusually adverse.” Although a greater measure of non-

competitive than competitive seniority was awarded, the

district judge sought to insure that each type of seniority

relief was the maximum measure that would not result

in “unusual adverse impact.” We find no abuse of dis-

cretion, under Franks, in this approach.

V. DENIAL OF INJUNCTIVE RELIEF

In August, 1982, United indicated that on October 1,

1982, it would recall 175 furloughees. The class petitioned

for a stay of the recall. The class proposed that plaintiffs

with greater days-of-service seniority (the measure of

competitive seniority awarded by the district court)

should be recalled instead of the incumbent furloughees or,

alternatively, that action such as denying the recalled

furloughees the accrual of competitive seniority should

be ordered to prevent deterioration of the class’ competi-

tive position. The district judge did not grant the sought

relief and, according to the class, abused his discretion in

so doing.

We find no abuse of discretion in the district judge’s

refusal to require that claimants be recalled in place of

incumbent furloughees because, absent the results of any

class membership hearings at that time, it would have

been impossible to know if the claimants recalled would

ultimately be found to be members of the class.

We similarly find that the district judge did not abuse

his discretion in refusing to order that recalled fur-

loughees be denied the accrual of competitive seniority.

Such a denial would be contrary to the terms of the col-

lective bargaining agreement between United and the

AFA, and, absent any assertion of illegality in that agree

ment or an assent to the denial of competitive seniority, —

the district court lacked power to alter the terms of the

5 See Myers v. Gilman Paper Corp., 544 F.2d

837 (7th = 1977), amended and modified on

38a

grounds, 556 F. 2d 758, cert. dismissed, 434 U.S. 801, 98

S. Ct. 28, 54 L.Ed.2d 59.

Two other forms of relief suggested by the class per-

tained to the granting of extra competitive seniority to

claimants in light of the recall. The district judge de-

clined to rule on these requests.

The first of the alternative suggestions was to permit

claimants with greater seniority than the recalled fur-

loughees to accrue competitive seniority from the date of

the recall. The primary difficulty that would arise if such

relief were granted is that if the 300 to 350 claimants

with greater competitive seniority than the most senior

furloughees were awarded this “extra” seniority, the re-

lief bears a limited relationship to the recall which

involved only 175 furloughees. If, on the other hand, the

extra seniority were awarded only the 175 most senior of

the claimants, the possibility exists that the beneficiaries

of this seniority grant would subsequently be determined

not to be members of the plaintiff class.

The second of the alternatives suggested by the class

was to permit all claimants to begin accruing competitive

seniority from the date of the recall or from the date of

of this extremely complicated case sought to grant class

declining

merely because 175 furloughees were recalled.

balance

Although we find no abuse of discretion in the district

court’s failure to alter at this time the seniority remedy

89a

granted, we are cognizant that many variables remain in

this case. If the economic conditions affecting United,

conditions that are largely responsible for the finding of

“unusual adverse impact,” take a drastic turn for the

better and numerous furloughees are recalled, or if the

class determination hearings stretch on for longer than

anticipated, it is possible that the district judge will need

to make adjustments as to when class members begin

accruing competitive seniority. Nothing in this opinion,

of course, precludes the district judge from ordering such

additional relief upon a showing that modification of the

original order is required.

CONCLUSION

Having considered all the arguments urged by the

parties and intervenors on this appeal, for the reasons

stated in the foregoing opinion, the judgments of the

district court regarding the appropriate measure of senior-

ity relief and the denial of injunctive relief are

AFFIRMED.

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UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Title Omitted in Printing)

September 21, 1983

JUDGMENT—ORAL ARGUMENT

This cause was heard on the record from the United

States District Court for the Northern District of Illinois,

Eastern Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the

same is hereby, AFFIRMED, with costs, in accordance

with the opinion of this Court filed this date.