Petition for Writ of Certiorari — McDonald v. United Air Lines, Inc.

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“— MAR & 1985

Supreme Court of the Gnites datates. srevas

CLERK

OCTOBER TERM, 1984

LIANE BUIX McDONALD

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

Vv.

UNITED AIR LINES, INC.,

a corporation,

and

ASSOCIATION OF FLIGHT ATTENDANTS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

THOMAS R. MEITES

Counsel of Record

LYNN SARA FRACKMAN

MICHAEL M. MULDER

MEITES & FRACKMAN

135 South LaSalle Street

Chicago, Illinois 60603

(312) 263-0272

JEROLD S. SOLOVY

JEFFREY D. COLMAN

WILLIAM D. SNAPP

LINDA L. LisTROM

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Counsel for Petitioner

Of Counsel

Isaac N. GRONER

WALTER H. FLEISCHER ©

JAMES A. BENSFIELD

COLE AND GRONER, P.C.

1730 K. Street, N.W.

Washington, D.C. 20006

‘

Pandick Midwest, Inc., Chicago © (312) 454-7600 nv .

QUESTIONS PRESENTED

1. May plaintiffs be forever deprived of appellate review

of an interlocutory order entered during the course of a class

action and deciding a significant substantive issue, because the

court of appeals believes that plaintiffs should have taken some

unspecified action not required by any statute, Federal Rule of

Civil Procedure or court order, such as seeking rehearing of, or

a permissive appeai from, the interlocutory order, earlier than

they did?

2. If a court of appeals ever could permanently deprive

plaintiffs of their right to appellate review of an interlocutory

order, could it do so and disturb the district court’s adminis-

tration of a class action, when the district court which was most

familiar with the procedures followed and the diligence and

timeliness of the parties’ conduct in that court, perceived no

delay, decided the issue on the merits and stated that it should

be decided on appeal?

PARTIES TO THE PROCEEDINGS

(a) Petitioner Liane Buix McDonald is a plaintiff, repre-

senting a class of female United Air Lines flight attendants.

She was an appellant in the court below.

(b) Respondent United Air Lines, Inc., a corporation, is a

defendant. It was an appellee in the court below.

vened in the district court to represent the interests of in-

cumbent United Air Lines flight attendants. It was an appellee

in the court below.

(d) Carole Anderson Romasanta, and eleven other

named individuals,’ were respectively the original named plain-

1Susan Fusco, Mary Whitmore, Rita King, Marlene Carney,

Carol Barounes, Judith Pendleton, Terry Van Horn, Brenda Bailes

Altman, Carol Elaine Brackle, Sandra Hoiles and Joanne Hamersley.

tif and subsequent intervenors who obtained relief. A final

judgment as to them was entered in 1975, and thereafter

petitioner McDonald has represented the class.

(e) Petitioners Mary Arlene Lemley, Sharon McCoy Bing-

ham, Irene M. Bondurant, Patricia Ellen Hodiak, Linda Wil-

liams Andrews, Deanna Dorsey Schulze, Lynn Runyon Over-

ton, and Marceilla Brown Brown were claimants to reinstate-

ment in the court below. As to each, a special master

recommended that they be denied reinstatement, and the

district court adopted the recommendation. [he court of

appeals affirmed the district court as to Mary Ariene Lemley,

Sharon McCoy Bingham, Irene M. Bondurant, Patricia Ellen

Hodiak, Linda Williams Andrews, and Deanna Dorsey Schulze

and vacated and remanded for further proceedings as to

petitioners Lynn Runyon Overton and Marceilla Brown Brown.

(f) Barbara Thomas Notch, an appellant below, also had

received an adverse recommendation from the special master,

which was adopted by the district court. The court of appeals

reversed this ruling and ordered her reinstated.

iii

TABLE OF CONTENTS

OPINIONS AND JUDGMENTS BELOW...

JURISDICTION

REASONS FOR GRANTING THE WRIT

CONCLUSION

POSSESSES EE EEE EE ETE EE EESEEEEEEEEEEEEEEEEEESEEEEEEEEEEEEEEEES

POOREST E THEE EHH EEEEE EEE EEEEEEEEEEEES

POPPE E ESET EEE EEE EEE OEE EEEEEEEEEEEES

SAPS HEHEHE O EEE ESEEEEEE EEE EEEEEESEEEEEEEEEEEEEHEEEEEEEEEES

TABLE OF AUTHORITIES

Cases:

Association Against Discrimination v. City of

Bridgeport, 647 F.2d 256 (2d Cir. 1981),

cert. denied, 455 U.S. 988 (1982)...

Baltimore Contractors, Inc. v. Bodinger, 348

Sy BIE EE ccdiceiticcicteenceticatiaeatinndenitans

Carson v. American Brands, Inc., 450 U.S. 79

We Pr uesatatncabehanbansbicseicniieiouuacia ene estat

In re Chicken Antitrust Litigation, 669 F.2d

Be INES BID viceciccineaniastdiiincncecgnacecboniies

City of Newport v. Fact Concerts, Inc., 453

Jf Mk.) RRR era or aie antennae

Commissioner of Internal Revenue v. Gor-

oe tes ee LE: | | a ree

Coopers & Lybrand v. Livesay, 437 U.S. 463

INT saldetcrisitutiisiicadiide otis a

Curtiss-Wright Corp. v. General Electric Co.,

ie ELS, ROSE

Dayton Board of Education v. Brinkman, 433

5 RU ina een asennad

Deckert v. Independence Shares Corp., 311

no | ER

Firestone Tire & Rubber Co. v. Risjord, 449

SF IE 0 WEE Wcecsnicnidslsbreiealcdicaialitetiiciioass

Franki Foundation Co. v. Alger-Rau & Asso-

ciates, Inc., 513 F.2d 581 (3rd Cir. 1975) ..

Franks v. Bowman Transportation Co., 424

SR rN its a re en

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) woo...

PAGE

10, 14

8, 10, 14,

Si BE ease nets i Nie AlAs AS ow

th i NS hse

A Is An RR eh

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

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

Se CGO P sciisteinstsstssrriraunaioianiniaianes

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir.

Piper Aircraft Co. v. Reyno, 454 U.S. 235

CED sasinscnintswtianaiicinehanatabiiiieanesnsnicemntenionisiins

Rexford v. Brunswick-Balkie-Collender Co.,

yo RB Rs LG. o : oe

Richardson v. Byrd, 709 F.2d 1016 (5th Cir. ),

cert. denied, — U.S.—, 104 S.Ct. 527

0 PII P istaisinicssninsssaaiabinskilerenainenasnintcnnenaniianiptiona

Romasanta v. United Air Lines, Inc., 717 F.2d

1140 (7th Cir. 1983), cert. denied,

— US. —, 1048.Ct. 1928 ( 1984)................

Santosky v. Kramer, 455 U.S. 745 (1982) ......

Sears Roebuck & Co. v. Mackey, 351 U.S. 427

SERED ssteceinserenpstnisicntensnscntinibentioetaliebnabbecanieinidiianien

Sherrill v. Royal Industries, Inc., 526 F.2d 507

COC SE) maememneninnnsenmncinin

Sprogis v. United Air Lines, Inc., 308 F. Supp.

959 (N.D. Ill. 1970), affd 444 F.2d 1194

(7th Cir.), cert. denied, 404 U.S. 991

FEET D.. svccisinensenincainsnnnniaiicnininmiansiaiiaiaabeamen

Teamsters Joint Welfare Fund v. Nolan, 549

Oe S7i ESRC BREED citecccimanininnn

Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981) wn. eee

United Air Lines, Inc. v. McDonald, 432 U.S.

385 (1977), affg Romasanta v. United Air

Lines, Inc., 537 F.2d 915 ( 7th Cir. 1976).....

PAGE

“vi

PAGE

United States v. Cline, 388 F.2d 294 ( 4th Cir.

CEES SE ee 9

Victor Talking Machine Co. v. George, 105

F.2d 697 (3d Cir.), cert. denied, 308 U‘S.

I 11

White v. New Hampshire Dept. of Employ-

ment Security, 455 U.S. 445 (1982) wo... ll

Will v. Calvert Fire Ins. Co., 437 U.S. 655

a 15

In re Winship, 397 U.S. 358 (1970) 12

Woodby v. INS, 385 U.S. 276 (1966) .......0...... 12

Statutes:

Title VII, Civil Rights Act of 1964 42 U.S.C.

ne avlusuiounnnn 4

United States Code

Ses ME RM D scccrnssnrasinnanaibinschnouninnta 3

PE ne BLY GD eae 7,9

I OE MOD oa cnscnsnhienahancnninnhians 14

Federal Rules of Civil Procedure:

EER eee aes Se es 17, 14

8 RNG TIE AR RS RED AE ED 3, 4,5

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

LIANE BUIX MCDONALD

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

UNITED AIR LINES, INC.,

a corporation,

and

ASSOCIATION OF FLIGHT ATTENDANTS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Liane Buix McDonald, on her own behalf and as repre-

sentative of a class of female flight attendants whose employ-

ment with Respondent United Air Lines was terminated be-

cause of the employer’s discriminatory “no-marriage” rule, and

Mary Arlene Lemley, Sharon McCoy Bingham, Irene M.

Bondurant, Patricia Ellen Hodiak, Linda Williams Andrews,

Deanna Dorsey Schulze, Lynn Runyon Overton and Marceilla

Brown Brown who sought and have been denied reinstatement

to that position, petition for a writ of certiorari to the United

States Court of Appeals for the Seventh Circuit.

OPINIONS AND JUDGMENTS BELOW

The Memoranda and Orders of the United States District

Court for the Northern District of Illinois which were the

subject of the Appeal were entered on October 27, 1982,

September 9, 1983, January 5, 1984 and February 1, 1984.

(App. 34a, 20a, 29a, 33a.)2 The recommendations of special

masters were entered prior to the district court’s opinions.

(App. 4la-84a.) The Opinion of the United States Court of

Appeals for ne Seventh Circuit (App. la), and its Judgment

(App. 87a), were entered on September 28, |984.

The pertinent earlier opinions in this case er related cases

include the following:

1. Sprogis v. United Air Lines, Inc., 308 F. Supp. 959

(N.D. Ill. 1970), aff'd, 444 F.2d 1194 (7th Cir.), cert. denied,

404 U.S. 991 (1971) (these decisions established that respond-

ent United’s “‘no-marriage” rule violated Title VII of the Civil

Rights Act of 1964);

2. United Air Lines, Inc. v. McDonald, 432 U.S. 385

(1977), aff’g Romasanta v. United Air Lines, Inc., 537 F.2d

915 (7th Cir. 1976), rev’g unpublished Order (N.D. Ill., Oct. 4,

1975) (the appellate decision held that petitioner should have

been granted leave to intervene for purposes of appealing

denial of class certification ); and

3. McDonald v. United Air Lines, Inc., 587 F.2d 357 (7th

Cir. 1978), cert. denied, 442 U.S. 934 (1979), rev’g unpublished

Order (N.D. Ill. March 1, 1978) (the appellate decision held

that the class should be defined, as requested by petitioner, to

include all persons damaged by the no-marriage rule ( within

certain time limits) ).

4. Romasanta v. United Air Lines, Inc., 717 F.2d 1140

(7th Cir. 1983), cert. denied, — U.S.—, 104 S.Ct. 1928 (1984)

(affirming the district court’s ruling that class members on

reinstatement receive no retroactive seniority for competitive

bidding purposes, but receive full retroactive seniority for

compensation and benefits}.

2”’App.” refers to the Appendix to this Petition.

JURISDICTION

The Opinion and Judgment of the United States Court of

Appeals for the Seventh Circuit were entered on September 28,

1984 (App. la, 87a). A timely Petition for Rehearing was filed

on October 12, 1984 and denied on December 5, 1984 ( App.

86a).

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(3).

STATUTORY PROVISION

The pertinent provision of Rule 53(c) of the Federal Rules

of Civil Procedure reads as follows:

specify or limit his powers and may direct him to report

only upon particular issues or to do or perform particular

acts or to receive and report evidence only and may fix the

time and place for beginning and closing the hearings and

for the filing of the master’s report. Subject to the

specifications and limitations stated in the order, the

master has and shall exercise the power to regulate all

proceedings in every hearing before him and to do all acts

and take all measures necessary or proper for the efficient

performance of his duties under the order. He may require

the production before him of evidence upon all the matters

embraced in the reference, including the production of all

books, papers, vouchers, documents, and writings appli-

cable thereto. He may rule upon the admissibility of

evidence unless otherwise directed by the Order of Refer-

ence and has the authority to put witnesses on oath and

may himself examine them and may call the parties to the

action and examine them upon oath. When a party so

requests, the master shall make a record of the evidence

offered and excluded in the same manner and subject to

the same limitations as provided in the Federal Rules of

Evidence for a court sitting without a jury.

STATEMENT OF THE CASE

This petition presents issues as to the rights of members of

a class to appellate review on entry of a final order of

interlocutory orders entered during the course of the action.

The district court in the first interlocutory order, an Order of

Reference under Federal Rule of Civil Procedure 53(c) to

special masters hearing claimants seeking reinstatement in the

remedial phase of this class Title VII case, had as it later

explained placed the burden of persuasion throughout the

hearing on the claimant (App. 34a). Then, when considering

the first objections to reach it from the masters’ recommenda-

tions against certain claimants’ reinstatement, that court in

further interlocutory orders reconsidered, in part modified but

in pertinent part reaffirmed the allocation of the burden of

proof (App. 21a). On appeal the Seventh Circuit held that the

right to appellate review of these interlocutory rulings had been

lost by petitior 1s — several of the unsuccessful claimants

before the masters and the class representative — because they

had not sought interlocutory review by the court of appeals or

district court reconsideration of the allocation of proof before

the hearings began (App. 9a).

The underlying action here was brought under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000 er seg., and

attacked the rule of Respondent United Air Lines which

required the termination of any female flight attendant who

married. The illegality of United’s rule had been determined in

a related case, Sprogis v. United Air Lines, Inc., 444 F.2d 1194

(7th Cir.), cert. denied, 404 U.S. 991 (1971), and this suit was

filed on behalf of a class of former flight attendants, ultimately

certified and remanded for entry of appropriate relief.

McDonald v. United Air Lines, Inc., 587 F.2d 357 (7th Cir.

1978), cert. denied, 442 U.S. 934 (1979).3 Thereafter, the

district court determined that relief to eligible claimants includ-

3 Much of the earlier procedural history is summarized in the

Opinion of this Court in United Air Lines, Inc. v. McDonald, 432 U.S.

385 (1977).

Ce Ge

ed an offer of reinstatement. Romasanta v. United Air Lines,

Inc., 717 F.2d 1140 (7th Cir. 1983), cert. denied, — U.S. —,

104 S.Ct. 1928 (1984).

Approximately 1700 claimants to relief were identified,

and the district court determined to utilize individual eviden-

tiary hearings before special masters appointed under Federal

Rule of Civil Procedure 53 to determine whether a particular

claimant was entitled to reinstatement (R. 416).4 It then asked

the parties for suggestions on an Order of Reference to govern

the hearings (R. 416). With regard to the allocation of proof,

the class urged that after a prima facie showing of entitlement

to relief by a claimant, the burden of persuasion shifted to

respondent United as the adjudicated wrongdoer (R. 473 at 3-

9, S.A. 1, S.A. 4). Respondents argued that the burden of

persuasion remained on claimants throughout (R. 445).

On October 27, 1982 the distric’ court issued its Order of

Reference pursuant to Rule 53(c) w thout accompanying dis-

cussion (App. 34a). The Order provided (94) that the

“claimant has the burden of proving that she is a member of

the class” (App. 36a). It further provided (45), as the class

had sought, that a claimant made out a prima facie case by

demonstrating that her flight attendant employment ended with

United within 90 days of her marriage while the mandatory

termination no-marriage rule was in effect (App. 36a). The

Order further provided (95) that thereupon “those opposing

reinstatement will have the burden of going forward with a

showing that some reason other than the no-marriage rule led

to the end of her employment as a flight attendant” (App.

36a).

In January, 1983 eight “test” hearings were set to be heard

by the presiding special master (R. 1237 at 1). Before the

hearings began, respondent AFA in a motion to reconsider the

Order (in which respondent United joined) asked the district

4”R.”, “S.R.” or “S.A.” cites to portions of the record on appeal.

court to modify the Order of Reference by eliminating its

provision in Paragraph 5 that a claimant made out her prima

facie case on demonstrating she left United within 90 days of

her marriage when compelled to do so by the rule (R. 682).

United joined in the motion, noting that paragraph 5 was

susceptible to a reading that the burden of persuasion, not just

the burden of going forward, shifted to respondents on the

prima facie showing (R. 684 at2). The class urged this reading

when the test cases began in January, 1983 (R. 1237 at 9-11).

The motion to reconsider was still pending when the eight

test cases were heard, as well as when the hearings began on a

regular basis in April, 1983 (R. 1238, Vol. 3). In May, 1983

the district court addressed the motion to reconsider and orally

ruled that defendants were correct to the extent that the burden

of persuasion remained on the claimant throughout (R. 1239,

Vol. 4 at 4-6). In stating this, it relied for the first time on

Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981).

Thereupon, the class prosecuted a consolidated objection

to the district court from nine of the adverse masters’ recom-

mendations, bringing the allocation of proof provisions of the

Order of Reference before the district court for further consid-

eration in light of the court’s May, 1983 oral ruling and its

reliance on Burdine ( which petitioners considered inapplicable

at the remedial stage of Title VII litigation). In a written

decision issued September 9, 1983 (App. 21a) the district court

fully reconsidered its burden of proof decision. It agreed with

the class that its reference to Burdine was “insufficient and

perhaps misleading” (App. 22a). It modified its Order so that

the burden of persuasion shifted in the limited instance of a

claimant who demonstrated in her prima facie case that she had

been discharged by United on refusing to resign as the rule

required (App. 22a-23a). However, for the rest of the claim-

ants (who comprise the vast majority and included the petition-

ers now before the court), those who resigned as required by

the mandatory rule on marriage, the court refused to change its

prior ruling and held that the burden of persuasion remained

on the claimant throughout the hearing (App. 23a).

On the same date the district court adopted adverse

recommendations as to a number of claimants applying the

burden of proof standards it had simultaneously announced

(App. 30a). Petitioners then prosecuted appeals from the

adverse rulings to the court of appeals under 28 U.S.C.

1292(a)(1) as orders denying them the injunctive relief of

reinstatement or, alternatively, under Rule 54(b) having ob-

tained the required certificate for interlocutory review from the

district court (R. 1100, S.R. 1239, Vol. 6 at 8, 9). In granting

the certificate under Rule 54(b), the district court stated that it

welcomed appellate review at that time (S.R. 1239, Vol. 6 at 8-

9, Tr. Nov. 3, 1983).5

In the decision which petitioners now ask this Court to

review, the court of appeals recognized that a substantial issue

was presented as to whether International Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977), or the

Burdine decision, provided the appropriate model for allocation

of the burden of persuasion here (App. 7a-9a). However, the

court then held that petitioners were not entitled to appellate

review of the issue (App. 9a). The court stated that the

meaning of paragraphs 4 and 5 of the Order of Reference

seemed clear, and the class had lost its right to appellate review

because it had failed to seek either interlocutory appellate

5 Thereafter, the class prosecuted a second consolidated objec-

tion to the district court involving six claimants as to whom adverse

recommendations had been rendered by the masters (R. 1121). In

orders of January 5; 1984 and February 3, 1984 the district court

affirmed five of the six claims, which were also appealed to the

Seventh Circuit (R. 1201). By order of February 16, 1984 the

Seventh Circuit granted the class’ request to consolidate the two

appeals and to set an expedited argument date.

review of the question or reconsideration in the district court

before the hearings began (App. 9a). It noted that since

appellate consideration at this time would require, if petitioners

were correct, rehearing in a number of cases, review would “not

further the goal of efficient judicial administration” (App. 9a).

It then held that it would review the individual decisions

denying reinstatement to the extent appellant claimants were

challenging the manner in which the principles announced in

the Order of Reference were applied, as distinct from the

substance of the Order itself (App. 9a). It reversed outright as

to one claimant, remanded as to two for further proceedings

and affirmed as to six (App. 17a). These eight individual

claimants, as well as the class representative, are petitioners

now before the Court.

REASONS FOR GRANTING THE WRIT

I. AD HOC RESTRICTION OF APPELLATE JURISDIC-

TION FOSTERS PIECEMEAL APPEALS AND IS IN-

IMICAL TO HISTORIC POLICIES OF THE COURT

The judgment deprives petitioners of appellate review

concerning the correct burden of proof governing their individ-

ual reinstatement hearings in a case where the employer’s

wrongdoing has been established. While this is of critical

importance to petitioners, the decision below is worthy of this

Court’s review since it leaves parties in complex litigation with

no choice: they must seek appellate review of clearly inter-

locutory orders issued during the case lest they find they have in

the name of “efficient administration of justice” lost their right

to appellate review (App. 9a). The policy applied below is in

direct conflict with “the historic federal policy against piece-

meal appeals”, Sears Roebuck & Co. v. Mackey, 351 U.S. 427,

438 (1956), cited with approval in Curtiss-Wright Corp. v.

General Electric Co., 446 U.S. 1, 7 (1980); Carson v. American

Brands, Inc., 450 U.S. 79, 84 (1981). Moreover, appellate

Sd pee te

courts have no more power to restrict than they have to expand

their jurisdiction. Baltimore Contractors, Inc. v. Bodinger, 348

U.S. 176, 181 (1955). As this Court there noted, “Any such ad

hoc decisions disorganize practice by encouraging attempts to

secure Or oppose appeals with a consequent waste of time and

money.” Jd. at 181. The decision, which places in peril all

claimants and unsettles longstanding black letter rules as to

when they must act to preserve their appeal rights, should be

reviewed by this Court.

Even though the court of appeals found the allocation of

the burden of persuasion to be a significant issue (App. 7a-9a),

it denied appellate review of orders setting (and then ex-

plicating and modifying) the burden because the class had not

sought reconsideration in the court below before the hearings

began or sought to take “a direct timely” appeal to that court

earlier (App. 9a). However, the October, 1982 Order of

Reference to the special master under Rule 53(c) which set the

burden of proof was an unappealable, interlocutory order.

Deckert v. Independence Shares Corp., 311 U.S. 282, 290-91 n.

4 (1940); Rexford v. Brunswick-Balkie-Collender Co., 228 U.S.

339 (1913); Teamsters Jt. Welfare Fund v. Nolan, 549 F.2d

871, 872-73 (2d Cir. 1977); Mabey v. Regan, 537 F.2d 1036,

1041 & n.6 (9th Cir. 1976). Such orders of reference can be

and are brought up for review when the district court issues a

final judgment adopting or rejecting the masters’ recommenda-

tions. Deckert, supra, 311 U.S. at 291. E.g., United States v.

Cline, 388 F.2d 294 (4th Cir. 1968). Moreover, any appeal

before then would have surely been premature since the Order

of Reference was not finally settled before the hearings

started, but instead was considered, explained and in part

6 Here, the class in fact did not wait until the completion of the

entire litigation. Rather, they sought appellate review as soon as

available under 28 U.S.C. 1292(a)(1), when the first recommenda-

tions denying the injunctive relief of reinstatement were adopted by

the district court.

modified by the court on two occasions.’

This Court on a number of occasions has reiterated the

historic policy against piecemeal appeals. Curtiss-Wright Corp.

v. General Electric Co., 446 U.S. 1, 7 (1980); Coopers &

Lybrand v. Livesay, 437 U.S. 463, 476 (1978); Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 374, 377-78 (1981). Even

when interlocutory review is available, it is optional: no case

should hoid as this one does that the failure to take an

interlocutory appeal ( whether permissive or as of right) results

in a forfeiture of review when the order became appealable as

of right. Indeed, it is hornbook law that a party aggrieved by

an interlocutory order is not required to attempt to take an

interlocutory appeal — even one the party has by nght — to

protect its rights:

and, where it is not taken, [that] does not impair or

abridge in any way the previously existing nght upon

appeal from the final decree to challenge the validity of the

prior interlocutory decree. The aggrieved party may,

7A motion to reconsider the Order of Reference filed by

respondent AFA was pending when the hearings began on a regular

basis in April, 1983. Respondent United, in joining the motion, noted

that paragraph 5 of the Order was susceptible to a reading that on a

claimant’s prima facie showing the burden of persuasion, not just the

burden of going forward, shifted to respondents (R. 684 at 2), a

reading urged by petitioners when the hearings began. (R. 1237 at 9-

11). The court oraily ruled on the motion for reconsideration in May,

Stating that as in Burdine the burden of persuasion would remain on

the claimant throughout the hearing (R. 1239, Vol. 4 at 4-6). The

class then sought further consideration of this issue in prosecuting the

first objections to adverse masters’ recommendations. The district

court in its September 9, 1983 opinion fully reconsidered the alloca-

tion of the burden of persuasion. It found its prior invocation of

Burdine “insufficient and perhaps misleading” (App. 22a), and for

the first time detailed the grounds for its allocation decision, in part

modifying the Order’s allocation (as to claimants who were fired on

refusing to resign) but reaffirming it as to those like petitioners who

obeyed the discriminatory rule and resigned as required on marriage

(App. 22a-23a).

AE MON EAE LPAAOOERE NRO AD IGN Date 2g nas eb ds

therefore, await the final determination of the case and

upon appeal therefrom raise all questions involved in the

case.

Victor Talking Machine Co. v. George, 105 F.2d 697, 699 (3d

Cir.), cert. denied, 308 U.S. 611 (1939). Accord, In re Chicken

Antitrust Litigation, 669 F.2d 228, 236 (Sth Cir. 1982).8

However, under the rule announced by the court below ( which

cited no cases for its ruling), parties have no choice in extended

cases but to seek appellate review by mandamus or by per-

mission of important interlocutory orders, thereby engendering

the very multiplicity of protective appeals deplored by this

Court in Baltimore Contractors, supra. See also White v. New

Hampshire Dept. of Employment Security, 455 U.S. 445, 453

(1982). Cf. McDonald, 432 U.S. at 394 n.15.

The issues which the court below held had been lost to

review are of crucial importance to petitioners. As both the

district court (App. 3la) and the Seventh Circuit observed

(App. 8a), at issue in the interplay of marriage, the end of

flight attendant employment and the mandatory termination on

marriage rule are imponderables: since the rule was mandatory,

all are dealing in “what would have beens.” Each petitioner

here had in her case in chief linked her termination to the

mandatory no-marriage rule. The district court in the Septem-

ber 9th ruling that the court of appeals held unreviewable said

that because the claimant had “resigned” (as the mandatory

rule required) rather than insisted on being fired she had the

burden of persuasion throughout (App. 22a-23a). Because of

the ruling below, claimants lost their right to appellate consid-

eration of whether under Teamsters this determination is

correct or whether the proven wrongdoer, rather than the

innocent claimant, should bear the burden of inevitable specu-

8 Nor is the taking of “formal exceptions to rulings or orders of

the court” a prerequisite for appeal. Fed.R.Civ.P. 46. Similarly the

filing of motions for reconsideration is not required prior to the taking

of an appeal. See Franki Foundation Co. v. Alger-Rau & Associates,

Inc., 513 F.2d 581, 587 (3d Cir. 1975); Sherrill v. Royal Industries,

Inc., 526 F.2d 507, 509 n.2 (8th Cir. 1975).

lation and imprecision in this reconstruction as other post-

Teamsters cases have consistently required.9

This Court has recognized that the allocation and quantum

of proof traditionally has been “left to the judiciary to resolve

..” Woedby v. INS, 385 U.S. 276, 284 (1966). This

resolution is to be guided by “a societal judgment about how

the risk of error should be distributed between the litigants.”

Santosky v. Kramer, 455 U.S. 745, 755 (1982); In re Winship,

397 U.S. 358, 371-73 (1970) (Harlen, J., concurring). The

arguably incorrect allocation of proof which the court of

appeals here refused to review in the name of “efficient judicial

administration” occurred in the remedial phase of class Title

VII litigation, an area where this Court has stressed society’s

interest that the judiciary fashion the fullest remedy available

under the circumstances. Franks. v. Bowman Transportation

Co., 424 U.S. 747, 763-64 (1976).

Despite these obligations, the appellate court denied re-

view, even though the district court was clearly aware that

rehearings might be required when it fully considered petition-

ers’ challenge to the allocation of proof and then stated that it

welcomed appellate review as and when sought by petitioners

(S. R. 1239, Vol. 6 at p. 8-9 Tr. Nov. 3, 1983). Moreover,

respondents acknowledged that the interlocutory orders here

were subject to appellate review and correction at the con-

clusion of the litigation on entry of a final judgment (AFA’s

Court of Appeals brief at 1). Even on its own terms the stated

concern of the court below for efficient judicial administration is

overbroad if applied to the approximately 800 claimants who

have not yet had hearings since appellate correction of the

9 See Richardson v. Byrd, 709 F.2d 1016, 1021 (5th Cir.), cert.

denied —U.S.—, 104S.Ct. 527 (1983); McKenzie v. Sawyer, 684 F.2d

62, 77 (D.C. Cir. 1982); Association Against Discrimination v. City of

Bridgeport, 647 F.2d 256, 289 (2d Cir. 1981), cert. denied, 455 U.S.

988 (1982).

Mee nie ini oe aaa Saiki

burden of persuasion would not entail rehearings as to them. 1°

In sum, no circumstances warranted the refusal of the court

below to reach the issue on the proper burden of persuasion. If

even one case were decided under the wrong burden of proof,

that is an egregious error that requires appellate correction and

rehearing under the proper standard. This Court should correct

the refusal to review and remand for appellate consideration of

the allocation question.

The “ad hoc” reduction of appellate jurisdiction by the

court below here is both unwarranted and improper. Requiring

attempts to obtain review of clearly interlocutory orders in

extended litigation lest review be lost is inimical to the historic

policy against piecemeal appeals and contrary to the effective

administration of justice. By enforcing its policy by the loss of

appellate review, the court below improperly restricted its

jurisdiction. Certiorari should be granted so that this Court’s

historic policies can be reaffirmed.

II. THE COURT OF APPEALS’ UNWARRANTED AC-

TION INTERFERED WITH THE _ DISTRICT

COURT’S MANAGEMENT OF COMPLEX CASES

The case raises an important issue of the court of appeals’

interference with the district court’s management of complex

litigation. Even if the court of appeals could reduce its

jurisdiction and deprive petitioners of their right to appeal an

interlocutory decision on entry of final judgment, its ruling here

invaded the discretion vested in the district court to manage

complex and extended class litigation such as this and eroded

the division of functions between the district court and the court

of appeals which this Court has been careful to preserve.

The management of complex class litigation, particularly

in the equitable relief phase of Title VII litigation, is customa-

10 The hearings process as to these claimants has been stayed

until at least July 1, 1985 while the district court completes action on

certain matters relating to the distribution of an award of classwide

back pay.

rily the province of the district court. /nternational Brotherhood

of Teamsters v. United States, 431 U.S. 324, 375-76 (1977);

Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 770

(1976).11 Moreover, this Court has stressed that in the timing

of interlocutory review the district court acts as a “dispatcher,”

in whose sound discretion rests the determination of the

“appropriate time” when multiple parts of a complex action are

ready for appeal. Curtiss-Wright Corp. v. General Electric Co.,

446 US. 1, 8 (1980) (Rule 54(b)); Coopers & Lybrand v.

Livesay, 437 U.S. 463, 474 (1978) (district court has similar

function under 28 U.S.C. § 1292(b)). Here, the district court

concurred with petitioner that the instant appeals should be

taken. Indeed, in granting petitioners a Rule 54(b) certificate it

noted that it “too” thought “the burden of proof issue ought to

be decided on appeal” at that time and expressly held that the

“hearings keep going at the maximum number we can do.”

(S.R. 1239, Vol. 6 at 8-9, Tr. Nov. 3, 1983.) Thus, it was the

district court actively managing this complex case that author-

ized interlocutory review while continuing the hearings, even

though it was aware that if petitioners succeeded on appeal a

number of rehearings would be required. Nonetheless, the

court of appeals concluded that the district court’s management

plan-—-continuing review and refinement of the Order of Refer-

ence in light of the experience in actual hearings—was contrary

to “efficient judicial administration,” and then imposed a

forfeiture of appeal rights on petitioners as the penalty (App.

9a).

This Court has noted that issues as to the proper allocation

of functions between the district and appellate courts are

important, and that it will preserve the district court’s dis-

cretionary case management authority when undercut by the

11 Indeed, the court of appeals here when affirming the district

court’s denial of retroactive competitive seniority in this case explicitly

deferred to the district court and employed an abuse of discretion

standard in reviewing the remedy it had fashioned. Romasanta v.

United Air Lines, Inc., 717 F.2d 1140, 1148-49 (7th Cir. 1983), cert.

denied, —U.S.—, 104 S.Ct. 1928 (1984).

court of appeals. Dayton Board of Education v. Brinkman, 433

U.S. 406, 417-18 (1977); Will v. Calvert Fire Ins. Co., 437 U.S.

655, 665-66 (1978); Curtiss-Wright, supra. The district court of

course was fully aware of the course of proceedings, including

how and when the parties had presented their positions on

burden of proof issues and the need for rehearing if petitioners

were correct on their request that the burden of persuasion shift

to the wrongdoer on proof of a prima facie case. ‘2

The court of appeals, however, did not even find that the

district court had abused its discretion in giving further consid-

eration to the allocation of proof while the hearings were in

process; it applied no such standard (App. ia-19a). If there

were any qualifications to class members’ rights to prosecute

challenges to interlocutory orders upon a final judgment then at

the least this Court should insist that the court of appeals give

due respect to the district court’s views, and not substitute their

own ad hoc judgment as to what will best serve judicial

economy in the circumstances.'3 Just as this Court in the past

has reviewed and revised comparable intrusions into district

court’s discretion, Dayton Board of Education, supra, Curtiss-

Wright, supra, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252

(1981), it should do so here.

12 Here the district court found no procedural default, but even in

instances where a default has been excused the appellate court will

customarily review the merits of the decision where the lower court

has fully decided an issue. City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 255-256 (1981); Com’r of Internal Revenue v. Gordon, 39|

U.S. 83, 95 n.8 (1968).

13 The court of appeals’ intrusion here was exacerbated since no

party had suggested to that court that there had been a forfeiture of

appellate review of the interlocutory order and the issue was neither

ruled on or argued. As a result, the class had no notice that by

starting the hearing process in this long-delayed case they had

acquiesced in that which they consistently maintained was an in-

correct and highly prejudicial allocation of the burden of persuasion.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

THOMAS R. MEITES

Counsel of Record

LYNN SARA FRACKMAN

MICHAEL M. MULDER

MEITES & FRACKMAN

135 South LaSalle Street

Chicago, Illinois 60603

(312) 263-0272

JEROLD S. SOLOVY

JEFFREY D. COLMAN

WILLIAM D. SNAPP

LINDA L. LISTROM

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Counsel for Petitioner

Of Counsel

Isaac N. GRONER

WALTER H. FLEISCHER

JAMES A. BENSFIELD

COLE AND GRONER, P.C.

1730 K. Street, N.W.

Washington, D.C. 20006

APPENDIX

TABLE OF CONTENTS

TO THE APPENDIX

OPINION, Court of Appeals for the Seventh Circuit

(Zepesmnber 2B, 1966) ..ncccscsestiiesninteciulainindalaiakatasiiiias

MEMORANDUM AND ORDER, District Court for

the Northern District of Illinois (September 9, 1983) .

MEMORANDUM AND ORDER, District Court for

the Northern District of lilinois (September 9, 1983) .

MEMORANDUM AND ORDER, District Court for

the Northern District of Illinois ( January 5, 1984)......

AMENDED ORDER, District Court for the Northern

District of Illinois ( February 1, 1984) ....00000000000000...

ORDER OF REFERENCE TO SPECIAL ADMINIS-

TRATIVE MASTER, District Court for the Northern

District of Illinois (October 27, 1982 ) ............2.0ceeeeeeeees

SPECIAL ADMINISTRATIVE MASTER’S SUM-

MARY MEMORANDUM AND APPENDIX TO

REPORTS AND RECOMMENDED DECISIONS

(Febsuary 18, 19GB)...

SPECIAL ADMINISTRATIVE MASTER’S REPORT

AND RECOMMENDED DECISION CLAIM OF

MARY ARLENE LEMLEY, CLAIM NO. 7 ( Febru-

LOE | |)

—SPECIAL ADMINISTRATIVE MASTER’S RE-

PORT AND RECOMMENDED DECISION

CLAIM OF SHARON McCOY BINGHAM, CLAIM

OD. 80 (idee 11, EGED I ccccscacssntinecscgiensineeaaans

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION OF CLAIM OF IRENE M.

BONDURANT, CLAIM NO. 24 ( May 6, 1983)........

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION OF CLAIM OF PATRICIA

ELLEN HODIAK, CLAIM NO. 25 ( May 6, 1983)...

PAGE

20a

26a

29a

33a

34a

4la

48a

54a

58a

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION OF CLAIM OF BARBARA

THOMAS NOTCH, CLAIM NO. 183 (July 1, 1983).

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION CLAIM OF MARCEILLA

BROWN BROWN, CLAIM NO. 276 (August 3,

TOE sopinsiupncnciniipaiiitteintiaiiniasniaficettalaunmadadissiitiaiiniiaiibiainemisteen

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION CLAIM OF LINDA WIL-

LIAMS ANDREWS, CLAIM NO. 472 (September

es TRIED dreniicieceicinlannercniccniviniiatndnalinaancnactanpuliligiaisieniion

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION CLAIM OF DEANNA

DORSEY SCHULZE, CLAIM NO. 547 (September

7 a a rN a a OO eT a

—SPECIAL MASTER’S REPORT AND RECOM-

MENDED DECISION CLAIM OF LYNN RUN-

YON OVERTON, CLAIM NO. 677 (October 7,

JUDGMENT, Court of Appeals for the Seventh Circuit,

affirming in part, reversing in part, and vacating and

remanding in part Judgment of the District Court

oe aeuiubibiaiareze

ORDER, Court of Appeals for the Seventh Circuit,

denying Petition for Rehearing (December 5, 1984) ..

PAGE

62a

65a

72a

77a

80a

85a

86a

in the

United States Court of Appeals

Bor the Seventh Cirrnit

Nos. 83-3013 and 84-1237

LIANE Bulx McDONALD, on her own behalf and on behalf

of all others,

Plaintiff-Appellant,

Vv.

UNITED AIR LINES, INC., a corporation,

Defendant-A ppellee,

and

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor-Appellee.

Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division

No. 70C 1157—James B. Moran, Judge.

ARGUED JUNE 6, 1984—DECIDED SEPTEMBER 28, 1984

Before CUDAHY, EDWARDS*, and ESCHBACH, Circuit

Judges.

CuDAHY, Circuit Judge. This appeal is but the latest

step in the long and tortuous attempt by former United

Airlines (“United”) stewardesses to obtain a remedy for

* Honorable George Clifton Edwards, Jr. for the Sixth

Circuit, is sitting by designation.

2 Nos. 83-3013 and 84-1237

sex- based discrimination. This discrimination was engen-

dered by United’s former rule which required that ail

female flight attendants resign their jobs upon marriage.

While the rule itself was abrogated in 1968 and its illegali-

ty was definitively determined in 1971, litigation to deter-

mine the precise form of relief and the membership of the

plaintiff class has continued and appears likely to continue

for some time into the future.' This appeal concerns the

proceedings below by which the claimants are required to

establish in adversarial hearings conducted by special

masters that they are members of the plaintiff class. The

claimants must show that they either were fired or forced

by United to resign or that they resigned because of the

no- marriage rule. By this showing they would become en-

titled to reinstatement as flight attendants with the

forms of competitive and company seniority previously

awarded by the district court and affirmed by this court.

Romasanta v. United Air Lines, Inc., 717 F.2d 1140 (7th

Cir. 1983), cert. denied, 1048S. Ct. 1928 (1984).

Two appeals are in fact involved at this stage. The first

involves primarily the interpretation of an order issued

by Judge Moran on November 9, 1983, clarifying the

Order of Reference of October 29, 1982 to the special

masters. The Order of Reference set out the legal princi-

ples which the masters are to follow in conducting the

hearings and determining each claimant’s right to be con-

sidered part of the class. This first appeal also involves a

group of claimants as to whom adverse reinstatement

recommendations from the masters were affirmed by the

district court. The district court granted plaintiffs a Rule

54(b) certificate and also noted that its decision was ap-

pealable under 28 U.S.C. § 1292(a)(1) as an order denying

an injunction. The second appeal involves the district

1 For a fuller discussion of the history of this litigation and the

decided cases, see Romasanta v. United Air Lines, Inc., 717

ima — 1142-44 (7th Cir. 1983), cert. denied, 104 S. Ct. 1928

1 :

Nos. 83-3013 and 84-1237 3

court’s subsequent affirmance of the masters’ adverse

recommendations with respect to an additional five claim-

ants and its entry of an order allowing an appeal for this

second group under 28 U.S.C. § 1292(a)(1) as well as pur-

suant to a Rule 54(b) certificate. Both of these appeals

were later consolidated.

Appellants raise two issues. First, they challenge the

principles involving allocation of the burdens of proof and

production as contained in the Order of Reference and as

clarified in the November 9, 1983 order. Second, appel-

lants challenge the manner in which the masters have ap-

plied these principles to individual claimants, in particular

the nine claimants whose appeals are now before this

court. For the reasons stated below, we affirm in part,

reverse in part and remand to the district court for fur-

ther proceedings, as necessary, which are not inconsistent

with this opinion.

The plaintiff class had originally proposed in 1980 the

use of an affidavit procedure to determine whether a par-

ticular claimant was entitled to be a member of the class.

The district court, however, rejected this procedure and

decided to utilize adversary hearings to be presided over

by special masters to determine the status of individual

claimants. The Order of Reference issued by the district

court set out legal principles involving primarily eviden-

tiary considerations which the masters were to apply in

formulating their recommendations to the district court

concerning reinstatement. The district court also appar-

ently limited the masters’ hearings to the determination

of entitlement to reinstatement and excluded the issue of

eligibility for backpay. The relevant provisions of the

Order of Reference include the following:

Principles

4. Only a claimant who resigned or was terminated

as a United flight attendant between July 29, 1965

and November 7, 1968 (the “class period”) is eligible

Nos. 83-3013 and 84-1237

to attempt to prove that she is a member of the class.

The claimant has the burden of proving that she is a

member of the class.

5. When an eligible claimant proves she was mar-

ried at the time of her irjesignation or termination,

or that she married within 90 days after her resigna-

tion or termination, those opposing reinstatement

will have the burden of going forward with a showing

that some reason other than the no- marriage rule led

to the end of her employment as a flight attendant.

6. Some indication[s] that an eligible claimant may

have resigned or been terminated because of the no-

marriage rule are the following:

(a) she concealed her marriage and continued

to fly; or

(b) she on marriage sought transfer to ground

employment with United; or

within 90 days after her termination or

resignation; or

(d) she is found by the Special Master to have

made contemporaneous protests to her supervi-

sor or United management about her dissatisfac-

tion with tl.e no- marriage rule.

7. Some indication(s] that an eligible claimant may

have resigned or been terminated for a reason other

than the no- marriage rule are the following:

(a) she gave United a reason inconsistent with

the no- marriage rule as the reason for her resig-

nation or termination; or

(b) she failed to apply for a transfer with

United, to seek other employment outside the

company, or to apply for unemployment compen-

sation at or about the time of her resignation or

termination.

Nos. 83-3013 and 84- 1237 5

Following issuance of the Order of Reference, the

defendant, United Air Lines, Inc., and the intervenor, the

Association of Flight Attendants (“AFA”), asked the dis-

trict court to reconsider the provisions of the Order of

Reference which concern the allocation of burdens of

proof and production during the hearings. In its memoran-

dum to support its motion to reconsider the Order of

Reference, AFA argued that paragraph 5 should be elim-

inated and the claimant’s marital status at the time of

termination or resignation merely added as an additional

factor to be considered under paragraph 6. AFA based its

argument primarily on the fact that the burden of proof

was to remain always on the claimant as the “law of the

case” established in a prior Seventh Circuit decision. That

decision stated in a footnote: “The stewardesses who

resigned must, as counsel for the plaintiff acknowledged

at oral argument, show that their retirement was involun-

tary and on account of the invalid rule to be entitled to

relief.” McDonald v. United Air Lines, Inc., 587 F.2d 357,

360 n.4 (7th Cir. 1978).

The class opposed the motion to reconsider primarily on

the ground that, under an analogy to International

Brotherhood of Teamsters v. United States, 431 U.S. 324

(1977), the “burden” or “burden of explanation” shifts to

the employer once the claimant makes a threshold show-

ing of discrimination. According to the plaintiff class, this

interpretation of Teamsters was consistent with the foot-

note quoted above from McDonald because “the footnote,

in plaintiffs’ view, says only that the burden of persuasion

that the termination is because of the [no marriage] rule

stays on the claimant.” R. Doc. 685 at 3. It thus seems

clear that the plaintiffs interpreted the Order of Refer-

ence to shift only the burden of production, and not the

burden of proof, to the defendant once the claimant has

made the threshold showing. This, of course, is consistent

with paragraph 4 of the Order of Reference which expli-

citly states that the claimant has the burden of proving

she is a member of the class. At no point prior to initiation

6 Nos. 83-3013 and 84-1237

of the appeals from the masters’ determinations did the

plaintiff class apparently challenge, even indirectly, para-

graph 4 of the Order of Reference.

In their appeal to Judge Moran from the masters’ ad-

verse determinations, the class asserted that, in line with

Teamsters, once the claimant makes a prima facie

showing, the employer has the burden of proving by clear

and convincing evidence that its illegal policy was not the

cause of the stewardess’ termination. In his Noven.ber

1983 order, however, Judge Moran rejected the applica-

tion of this principle to the claimants primarily on the

ground that those stewardesses who resigned (as opposed

to those who were discharged by United upon marriage)

were similar to the nonapplicants in Teamsters who had

the burden of proving that they were actual discrimina-

tees and thus entitled to be treated like the rejected appli-

cants who were presumptively entitled to relief.2 Judge

Moran then concluded that “the manner and burden of

proof is not the same for all the varying circumstances in

Title VII cases. It must be tailored to the realities of the

case, including how the evidence could or would be

presented.” In addition, however, he referred approvingly

to the model “suggested, but not mandated,” by the deci-

sion in Texas Department of Community Affairs uv.

Burdine, 450 U.S. 248 (1981).

Much of the argument concerning the proper allocation

of burdens centers on whether the case before us should

follow the Burdine model, the Teamsters applicants

model or the Teamsters nonapplicants model. Burdine set

2 The plaintiff class has referred to the statement in

McDonald, 587 F.2d at 360, that those stewardesses who were

fired should be treated the same as those who resigned

involuntarily. This statement is undoubtedly correct but does

not conflict with the principle that resignees must carry the

burden, in order to be considered class members, of proving

that they did resign involuntarily. Once resignees achieve class

=. —¥ are and should be treated the same as those who

were fired.

Nos. 83-3013 and 84-1237 7

out a structure in which the plaintiff first establishes a

prima facie case of discrimination which creates a factual

presumption that the employer unlawfully discriminated.

Id. at 254. The burden of producing evidence to rebut this

presumption then shifts to the employer who must articu-

late a valid reason for having rejected the plaintiff. If the

defendant meets this burden, then the burden of produc-

tion shifts back to the plaintiff to show either that the

employer was motivated by a discriminatory reason or

that the proffered explanation is unworthy of credence.

Id. at 254-56. The burden of persuasion, however, remains

on the plaintiff to defeat the employer’s showing of a non-

discriminatory reason.

As even Judge Moran recognized, the reference to

Burdine in the present context is “insufficient and perhaps

misleading.” The entitlement hearings are clearly a dif-

ferent stage of proceedings than that at issue in Burdine

because the former stewardesses need not carry any

burden of proving that the defendant United Air Lines

acted illegally. The illegal discrimination embodied in the

“no- marriage” rule has been established and is no longer

at issue. However, this prior adjudication did not, of

course, identify exactly who was injured by this illegal

conduct, and only those who were in fact injured are en-

titled to relief.

The issue presented by these entitlement hearings is

thus much closer to the issue in Teamsters where the ille-

gality of the challenged practice had alsc been previously

determined than to Burdine. The issue in Burdine, of

course, was whether discrimination had actually

occurred. The issue in both Teamsters and the present

case is the method to be used in determining who belongs

to the plaintiff class, that is, who has been a victim of the

proven discrimination. In Teamsters, the Court stated

that those blacks who had applied for line-driver positions

were presumptively to be treated as discriminatees. The

employer could rebut the presumption only by showing

that the applicant had been rejected for nondiscriminatory

reasons. On the other hand, those who did not apply but

8 Nos. 83-3013 and 84-1237

claimed they were discouraged because of the employer’s

well-known discriminatory policy had to carry the burden

of proving that they would have applied but for the policy.

The stewardesses who resigned their positions in

temporal proximity to their marriages and who did not

file union grievances or EEOC charges are in fact directly

comparable to neither group in Teamsters. They are

closer to actual discriminatees than the Teamsters nonap-

plicants because their contemporary inherent interest in

and qualification for the position of stewardess (once

marital status is removed from consideration) are

unquestioned. On the other hand, unlike the Teamsters ap-

plicants or those stewardesses who were fired, it may be

virtually impossible to know now what the actual intention

and motivation of some stewardesses were at the time

they resigned their positions. Of course, the claimants

need only establish by a preponderance of the evidence

that they resigned as a2 result of the rule.

The parties also dispute which Teamsters model is more

applicable based on whether a resignation caused by the

existence of the rule should be considered an employment

decision of United Airlines or a decision of the former

stewardesses. It is not necessarily useful to the analysis,

however, to dwell on a characterization of a coerced resig-

nation or a resignation in response to the no-marriage

rule as being the stewardess’ own employment decision. It

was, after all, the defendant’s employment decision to

have an illegal policy. The issue is only whether the illegal

rule was the cause-in- fact of the resignation.

In the final analysis, it is perhaps most useful only to

recall the maxim that each Title VII case may be unique

to its own factual setting and therefore courts must be

prepared to employ innovative procedural structures in

facilitating the necessary determinations. Burdine, 450

U.S. at 253-54 n.6.

In this connection, we do not need to consider the partic-

ulars of the Order of Reference because the meaning of

paragraphs 4 and 5 seems abundantly clear and the class

Nos. 83-3013 and 84-1237 9

failed to object to the Order when it had ample opportuni-

ty to do so before the beginning of the individual

hearings.? Judge Moran’s subsequent order, despite the

perhaps ambiguous references to the Burdine model, did

not significantly change the allocation of burdens enun-

ciated in the Order of Reference. Hence, to give the plain-

tiff class the relief requested from the November 1983

order would also require modification of the previous

Order of Reference. To permit the plaintiffs to wait to

challenge the Order until after several hundred hearings

have been held and then to attempt to force rehearings on

those claims which received adverse recommendations

does not further the goal of efficient judicial

administration. If, however, the plaintiffs had presented a

direct and timely challenge to the allocation of the ulti-

mate burden of proof in the Order of Reference, we would

have had to consider carefully the principle that the

proven wrongdoer must frequently bear the burden of

persuasion. Insofar as the plaintiff class is instead chal-

lenging the manner in which the principles of the Order of

Reference are applied in specific cases either by the mas-

ters or by Judge Moran, we must pursue a different line

of analysis. We turn next to this problem.

As previously discussed, the Order of Reference places

the initial burden of production on the claimant, who can

3 By not reaching the merits of the Order of Reference, we

need not express any opinion on the appropriateness of such a

procedure in determinations of class membership in future

Title VII cases. Given the unique characteristics of these claim-

ants and their differences from the usual Title VII claimants in

that they already heid the employment positions which they

wished merely to retain, the affidavit procedure originally sug-

gested by the plaintiff class might conceivably have had some

merit. However, the class did not and does not now challenge

the use of. adversary hearings and we thus see no error in

adopting this procedure.

10a

10 Nos. 83-3013 and 84-1237

establish her prima facie case by demonstrating a tempo-

ral link between her termination as a stewardess and her

marriage. Paragraph 6, in addition, lists several factors,

such as subsequent employment, which are considered

probative of her intent to continue employment but for

the no- marriage rule. Once the claimant has met her ini-

tial burden, the burden of production shifts to the defend-

ant to rebut the factual presumption that the claimant

resigned because of the rule, although the ultimate

burden of persuasion remains on the claimant. The follow-

ing discussion of appropriate procedures is not based on

Burdine, which, as previously pee specifically involved

the liability phase. It is, instead, based on paragraphs 4

and 5 of the Order of Reference but uses the Burdine

explanation of the shifting of burdens as a recent applica-

tion of burden-shifting by the Supreme Court.

In Burdine, the Court stated that, once the burden of

production shifted, the defendant needed only to articulate

a legitimate, nondiscriminatory reason for rejecting the

plaintiff. However, this explanation cannot be a mere pre-

text but, rather, “must be legally sufficient to justify a

judgment for the defendant.” 450 U.S. at 255. It must be

based on admissible evidence and not merely an answer to

the complaint or argument of counsel. /d at 255 nJ.

While creating fine distinctions about the allocation of

burdens is often a pointless judicial exercise, in the pre-

sent case, where the final determination often comes

down to a “swearing match,” the allocation of burdens

may be decisive. It is therefore necessary to emphasize

that where United and AFA have not come forward with

any evidence—whether based on extrinsic factors such as

the claimant’s subsequent employment history or on im-

peachment through cross-examination of the claimant

herself—the defendant will have failed to rebut the pre-

sumption established by the claimant’s prima facie case.

A mere recitation of defendant’s rote contention that

the stewardess’ resignation was not the result of the no-

marriage rule or a general denial of the stewardess’ factu-

al allegations would not seem sufficient to meet the de-

lla

Nos. 83-3013 and 84-1237 ll

fendant’s burden of production. The master, of course, can

make a determination that the claimant’s professed past

intention to continue her employment is not credible.

Nevertheless, the master’s determination should be based

on specific evidence adduced by United or AFA, whether

by cross-examination or otherwise. If such evidence is not

available in any form, then the master should conclude

that the defendant has failed to meet its burden and thus

also failed to rebut the factual presumption that the claim-

ant’s resignation was the result of the no- marriage rule.

Further, the masters and, in turn, the district court in

adopting the findings of the masters are, of course, bound

by the requirements of Fed. R. Civ. P. 52(a) and 53(e)

that the court must find the facts specially and state its

conclusions of law separately. These findings must be suf-

ficiently complete to facilitate meaningful review by this

court. Kelley v. Everglades Drainage District, 319 US.

415, 422 (1943); Rucker v. Higher Educational Aids

Board, 699 F.2d 1179, 1183 (7th Cir. 1982). Given the

sometimes complex nature of the determinations required

of the masters, despite the relatively simple character of

the evidence involved, it is particularly useful for the mas-

ters to set out which facts they are relying on in reaching

their conclusions.

Our review of the appeals of the nine individuals is con-

fined to a determination whether the masters’ findings

are clearly erroneous, McCluney v. Jos. Schlitz Brewing

Co., 728 F.2d 924, 927 (7th Cir. 1984) (applying clearly er-

roneous standard of review to trial court’s findings in

Title VII case).* Incertain instances, the masters’ failure

* In Nellis v. Brown County, 722 F.2d 853, 859-60 (7th Cir.

1983), this court subjected the district court’s ultimate conclu-

sion as to intentional discrimination in a Title VII case to

searching review. We, however, distinguish Nellis because we

are concerned here with ly factual determinations of

causation, the ultimate determination that United’s no-

ee not being at issue at

time.

12a

12 Nos. 83-3013 and 84-1237

to make sufficient findings of the facts on which they

relied or to adequately explain their conclusions requires

remand. We have considered carefully the nine individual

claims presented on this appeal. We address in detail

three of these claims below and affirm the district court’s

disposition of the other six claims.

1. Barbara Thomas Notch, Claim No. 183. Ms. Notch flew

for United Airlines from November 1963 to April 1968.

She married on May 25, 1968. She was domiciled first in

Washington, D.C., then in Los Angeles and, in September

1967, moved to Chicago O’Hare. From September to

April, she lived with her parents near Milwaukee and

commuted to O’Hare, working three days on, four days

off. After her marriage, she lived in Pewaukee,

Wisconsin, a small town west of Milwaukee with a similar

commute to O’Hare. Upon her marriage she transferred

to a ground position with United in Milwaukee but left

that job because the hours were poor and she could not

control her schedule as she had been able to as a

stewardess. She then obtained full-time employment with

a local bank. Her husband enjoyed sailing and wanted her

to have weekends off in order to sail with him.

The special master, in denying Ms. Notch’s claim,

referred only to her husband’s desire that she have week-

ends off and to the fact that Ms. Notch did not protest the

no-marriage rule and did not apply for unemployment

compensation. She, of course, could not apply for unem-

ployment compensation because she was employed virtu-

ally continuously after her resignation. Ms. Notch’s com-

mitment to the labor force appears obvious and her tes-

timony that her desire to have weekends available could

have been satisfied if she had been able to continue as a

flight attendant was unrebutted. The fact that Ms. Notch

did not lodge a contemporary complaint concerning the

rule is, under the circumstances, only minimally probative

and does not negate the other facts in the record.

United Airlines apparently failed to present any

evidence, even based on cross-examination of Ms. Notch,

Set ee te

13a

Nos. 83-3013 and 84-1237 13

which would rebut the claimant’s prima facie case and so

did not meet its burden of production The “free week-

ends” explanation was legally insufficient to rebut the

claimant’s prima facie case. On appeal, United Airlines

has attempted to argue that Ms. Notch would not have

been willing to commute from Pewaukee to O’Hare.

However, she did commute that distance for approximate-

ly eight months, and there is nothing in the record to indi-

cate that she would not have been willing to continue to do

so after her marriage. Finally, during the hearing, United

and AFA argued that Ms. Notch’s inability to recall some

of the details concerning her departure from United in-

dicated that she did not resign because of the rule.

However, it is not necessary for a claimant to recall all

the details of what happened when she resigned, partic-

ularly when the established facts of her subsequent work

record and other criteria remain unrebutted. In addition,

the master did not find Ms. Notch’s explanation of her in-

tentions to be incredible. Hence, the master’s conclusion

appears unsubstantiated by the evidence and our review

of the record. We therefore conclude that the master’s

recommendation is clearly erroneous and reverse the

denial of Ms. Notch’s claim.

2. Lynne Runyon Overton, Claim No. 677. Ms. Overton

flew for United from July 1965 to April 1, 1967. She was

married a week after her resignation and moved to

Anniston, Alabama for five months while her husband un-

derwent infantry training. Before her resignation,

Ms. Overton requested a transfer to a ground job with

United in Birmingham, Alabama or Atlanta, Georgia. She

also told her supervisor that she believed she must resign

because of the no-marriage rule, although she did not

protest the rule. In Anniston, Ms. Overton worked full-

time for Sears, Roebuck and Company. Following her hus-

band’s departure for Vietnam, Ms. Overton returned to

Los Angeles and obtained a ground position with United

which she has held continuously until the present.

Again, Ms. Overton’s commitment to the labor force ap-

pears unquestionable and, given the fact that her husband

l4a

14 Nos. 83-3013 and 84-1237

was overseas, there could be little issue whether her job

as a flight attendent would have interfered with her mar-

ried lifestyle. The only factor upon which the master

seems to have relied in denying her claim is that it was un-

certain whether Ms. Overton would have been successful

in arranging for a personal leave of absence in order to ac-

company her husband to Alabama. Such leaves were

available but were not automatically granted.

Ms. Overton also testified that, if she could not obtain a

leave, she would have arranged her schedule so as to have

& maximum of days off during the five months that her

husband was in Alabama.

Ms. Overton introduced evidence at her hearing that it

would have been possible, although not certain, that she

could have obtained a personal leave. The master,

however, seems to have placed on her the burden of prov-

ing that she would have obtained the leave. United

Airlines presented no evidence concerning its personal

leave policy. In response to interrogatories requesting in-

formation about the leave policy, United and AFA an-

swered that they had no such information. This question

of whether Ms. Overton could have obtained leave appears

to be an uncertainty which can never be resolved.

In Association Against Discrimination v. City of

Bridgeport, 647 F.2d 256, 289 (2nd Cir. 1981), cert.

denied, 445 U.S. 988 (1982), the nonofferees, like the

claimants here, had the burden of proving that they ap-

plied to take the qualifying exam or would have but were

deterred by the city’s discriminatory policy. However,

they did not have the burden of proving that they would

have met the other requirements, such as physical and

medical criteria. Rather, the defendant had the burden of

proving that a candidate would not have been otherwise

qualified or that there were no vacancies. While it would

be difficult for the city to prove the nonofferees’ past

physical and medical condition based on the general una-

vailability of such data, the court concluded that the city

had created this uncertainty and any such uncertainty

should be resolved against it.

15a

Nos. 83-3013 and 84-1237 15

The question whether Ms. Overton would have been

successful in obtaining a personal leave presents a com-

parable uncertainty which, because of United’s rule, can

never be resolved. However, this appears to be an uncer-

tainty which, for legal purposes, should be resolved

against the creator of that uncertainty.5 Further, once

the claimant met her burden of establishing a prima facie

case, United apparently introduced no evidence, other

than the cross-examination of the claimant, in its attempt

to rebut the presumption that she would have continued

working as a flight attendant. Her commitment to the

labor force and her statement to her supervisor stand as

unrefuted and seemingly persuasive evidence of her

intentions.

The only other factor relied on by the master was his

observation of the witness’ demeanor during her

testimony. This somewhat conclusory statement leaves it

unclear whether he simply disbelieved her testimony that

she would have continued as a flight attendant or whether

he found that she would not have been successful in ob-

taining the leave. Particularly in view of this statement,

we cannot conduct a meaningful review of the master’s

conclusions and so remand this claim for more complete

findings of fact either by the master or by the district

court.

3. Marceilla Brown Brown, Claim No. 276. Ms. Brown

worked for United Airlines from December 1964 to

March 1968 and was married the next month At the time

5 We may contrast the master’s apparent assumption in the

decision on this claim with the assumption in other claims that

women would have been able to obtain satisfactory maternity

leaves of absence and thus would have continued their employ-

ment as flight attendants despite the birth of children. See, e.g,

Claim No. 287 (Vol. 7, # 1272). The resolution of such an uncer-

tainty in the claimant’s favor seems to be the correct result in

terms of comparable Title VII decisions and general considera-

tions of equity.

l6a

16 Nos. 83-3013 and 84-1237

of her marriage, she was domiciled in San Francisco, but

she and her husband then moved to Kansas where they

had both grown up. Ms. Brown testified, however, that

they considered moving to Denver, which was a domicile

city (that is, a city in which flight attendants were

based), and having her conceal her marriage in order to

keep flying. She rejected this course, however, for fear

that, if discovered, United would fire her thus leaving a

black mark on her employment record. She and her hus-

band did move to Denver in 1973 and she applied then for

a position as a flight attendant, although apparently as an

“after-thought.” In Kansas, Ms. Brown obtained full-time

employment as a nurse’s aid for several months but quit

because she found the work depressing and

unsatisfactory.

In rejecting Ms. Brown's claim, the master seems to

have relied primarily on the Browns’ move to Kansas and

the impracticability of a commute from Kansas to a

domicile city. Ms. Brown, however, never claimed that

she would have attempted such a commute. On the other

hand, the master does not seem to have considered

Ms. Brown’s assertion that she would have moved to

Denver if she could have stayed on in her flight attendant

position or that the Browns did in fact later move to

Denver where her husband was able to find satisfactory

employment. The master also never made any finding con-

cerning Ms. Brown’s claim that she called United to in-

quire about reinstatement when she learned that the no-

marriage rule had been abolished.

While the masters are not required to give detaiied

findings concerning every factual allegation made by a

claimant, it seems that, in this case, the master neither

considered nor made findings about the central thesis of

the claimant’s allegations and, instead, considered and

rejected a theory never propounded by the claimant. The

denial of this claim must therefore also be remanded for

further consideration and additional findings of fact. See

Rucker v. Higher Educational Aids Board, 669 F.2d

1179, 1183 (7th Cir. 1982) (district court’s decision re-

eon ate.

17a

Nos. 83-3013 and 84-1237 17

manded for inadequate findings because judge failed to

discuss other evidence presented by plaintiff).

Perhaps running as a thread through the nine specific

claims 9n appeal is the sense that often the masters’ con-

clusions may be insufficiently explained or inadequately

supported by the facts in the record. While these cases

may be routine to the masters, who are conducting hun-

dreds of these hearings, the masters and the district court

must keep in mind that an appellate court may eventually

be called upon to review the sufficiency of the findings

and their support in the record as well as other questions

of law. Even under the “clearly erroneous” standard of

review, an appellate court requires adequate findings and

an explanation to make its review meaningful.

In addition, it is not enough to reiterate that the burden

of proof remains on the claimant throughout the hearing.

This is clear from the Order of Reference. The masters

must keep equally in mind that United has a distinct

burden to introduce evidence rebutting the factual pre-

sumption created by the claimant’s prima facie case. This

means that, if United fails to introduce evidence, the

master cannot simply reject the claim unless the master

makes a clear credibility determination which negates the

claimant’s assertion that she would have continued her

employment as a stewardess but for the no- marriage rule.

Once the claimant establishes a prima facie case and

United fails to rebut it by admissible evidence, even under

the Burdine standard the master’s denial of the claim

cannot stand. The mere numbers of these hearings should

not deter the district court from demanding adherence to

the requirements of both sufficiency of findings and an ad-

equate basis in law and fact for the masters’ ultimate

conclusions.

We therefore affirm in part, reverse in part and vacate

and remand in part for further proceedings not inconsis-

tent with this opinion. Each party shall bear its own costs.

Circuit Rule 18 shall not apply.

18a

18 Nos. 83-3013 and 84-1237

ESCHBACH, Circuit Judge, concurring in part and dis-

senting in part:

I concur in that part of the court’s opinion which affirms

the district court’s allocation of the burdens of proof and

production. I write separately only to express my view

that, in light of this court’s decision not to review the

merits of the Order of Reference, any discussion of what

we might have done in the first instance, or what we

might have considered had we reviewed the Order, is

unwise and might serve as the impetus to protract further

these already protracted proceedings.

I also concur in the court’s resolution of eight of the

nine individual claims before us. However, because -I

cannot find that the Special Master’s resolution of the

Overton claim is clearly erroneous, I dissent from that

part of the opinion which directs that the Overton claim

be remanded.

Ms. Overton testified that she delayed marriage until it

was almost certain that her fiance, who had enlisted in the

service, would be sent to Vietnam. When it became clear

that her fiance would see combat, Ms. Overton resigned

from her stewardess job, married, and moved to

Anniston, Alabama, where she remained with her husband

until he was sent overseas five months later. The Special

Master found that Ms. Overton and her fiance “decided to

get married as soon as possible, decided that Claimant

would resign her position . , . and that she would travel to

Anniston... ,” and based on her testimony and demeanor,

determined that she had resigned in order to spend the re-

maining months with her new husband.

At her hearing, Ms. Overton testified that, had there

been no discriminatory rule, she would have applied for a

leave of absence or traded trips with other stewardesses

in order to spend some time with her husband. On cross-

examination, Ms. Overton admitted that she did not know

what United’s policy was with respect to personal leaves,

and that she thought they were available for only 90 days.

Moreover, she admitted that she had been unable to trade

19a

Nos. 83-3013 and 84-1237 19

trips very often during the period before she married.

The majority believes that the Special Master unfairly re-

quired Ms. Overton to demonstrate that she would have

been able to obtain a personal leave had she requested

one. I believe, however, that the Special Master viewed

Ms. Overton's inability to reconstruct how she could have

reconciled both her responsibilities to her job and her

desire to spend the remaining few months with her hus-

band as bearing adversely on her credibility. My view is

consistent with the Special Master’s finding that

Ms. Overton and her husband decided that she should

resign and move. Unlike the majority, I do not believe

that there is any requirement that the Special Masters

make express credibility determinations when it is clear

that the facts as found by the Master cannot be reconciled

with the claimant’s testimony about what she would have

done absent the rule.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

20a

UNITED STATES DistRICT COURT

Northern District of Illinois

Eastern Division

Name of Presiding Judge, Honorable JAMES B. MORAN

Cause No. 70 C i157 Date: Sept 9, 1983

Title of Cause) ROMASANTA ET AL VS UNITED AIR

LINES, INC. ET AL.

Brief Statement of Motion: Memorandum and Order

The rules of this court require counsel to furnish the names of all parties entitled

to notice of the entry of an order and the names and addresses of their attorneys.

Please do this immediately below (separate lists may be appended ).

Enter Memorandum and Order. (DRAFT) For those reasons

they move for the reversal, or at least rehearing of the adversely

decided claims of ten claimants. Without, at this time, specific-

ally ruling on the ten appeals, this court rejects the contentions

advanced by plaintiffs. (See DRAFT for particulars)

Moran, J

2ia

UNITED STATES DISTRICT COURT

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, )

et al., and LIANE BUIX

McDONALD, on her own behalf

and on behalf of all others,

Plaintiff,

No. 70 C 1157

vs. 5

Judge Moran

UNITED AIR LINES, INC., a sine

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. 5

MEMORANDUM AND ORDER

In a consolidated appeal, plaintiffs contend that the special

masters are improperly allocating the burden and quantum of

proof. They contend that, after a claimant has made a prima

facie showing, the employer has the burden of proving by clear

and convincing evidence that its adjudicated wrongdoing was

not the cause of the termination. They also contend that the

special masters have devalued the claimants’ testimony and

have excessively relied on post-United employment by the

adoption of improper evidentiary rules. For those reasons they

move for the reversal, or at least rehearing, of the adversely

decided claims of ten claimants. Without, at this time, specific-

ally ruling on the ten appeals, this court rejects the contentions

advanced by plaintiffs.

This court agrees that a determination made pursuant to

an incorrect burden of proof or evidentiary standard must

22a

normally be remanded for a rehearing. I also agree that a

reference to Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981) is insufficient and perhaps mis-

leading. I believe, however, that plaintiffs’ reliance upon

“employment decision” and class backpay cases is misplaced.

Once a discriminatory practice has been established, as

here, a potential victim of a discriminatory employment deci-

sion need only make a prima facie showing of membership in

the affected class before the burden of proof shifts to the

employer to prove, generally by clear and convincing evidence,

that the challenged employment decision was for non-

discriminatory reasons. Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976), so held; that holding was reinforced in

Teamsters v. United States, 431 U.S. 324 (1977); and Trout v.

Lehman, 702 F.2d 1094 (D.C. Cir. 1983), McKenzie v. Sawyer,

684 F.2d 62 (D.C. Cir. 1982), and Taylor v. Teletype Corp., 648

F.2d 1129 (8th Cir. 1981), are their progeny. In each of those

cases the plaintiffs, as applicants or persons demoted, were

identifiable persons subject to specific employment decisions

which had been proved to be tainted by discriminatory prac-

tices. The employer in those circumstances must justify its

decision if it is to escape liability. If a claimant in this action

had been discharged upon marriage United would have that

heavy burden here.

It is, of course, conceptually possible for United to prove

that a flight attendant who resigned because of the invalid rule

would have been terminated anyway because of incompetence,

poor attendance or some other legitimate reason for discharge

(but with failure to follow grievance procedures a complicating

factor). That is, however, a burden which United has not

attempted to sustain and, on the basis of this court’s experience

with this case, it is a burden United is unlikely to shoulder in the

future.

The hearings before the special masters, however, involve

flight attendants who resigned and who, in almost all cases, did

23a

not initiate grievances or file discrimination charges. The

decision to leave was theirs, and the issue before the special

masters is whether or not that decision was induced by the no-

marriage rule. They are, then, similar to the non-applicants in

Teamsters v. United States, supra, who “must be given the

opportunity to undertake their difficult task of proving that they

should be treated as applicants and therefore are presumptively

entitled to relief accordingly.” Jd. at p. 364. It is that posture

which, this court believes, caused the Court of Appeals to

comment in McDonald v. United Air Lines, Inc., 587 F.2d 357,

360 n.4 (7th Cir.), cert. denied, 442 U.S. 934 (1979) that

claimants “must, as counsel for plaintiff acknowledged at oral

argument, show that their retirement was involuntary and on

account of the invalid rule to be entitled to relief.” That same

distinction finds expression in McKenzie v. Sawyer, supra;

Association Against Discrimination v. City of Bridgeport, 647

F.2d 256 (2d Cir. 1981) and Baxter v. Savannah Sugar

Refining Corp., 495 F.2d 437 (Sth Cir. 1974).

Finally, this court does not believe that class backpay

cases, such as Stewart v. General Motors Corp., 542 F.2d 445

(7th Cir. 1976) and Pittway v. American Cast Iron Pipe Co.,

681 F.2d 1259 (llth Cir. 1982), are apposite because they

relate to the allocation of an established class award. This court

has held a class backpay hearing in part because of the highly

speculative nature of awards based on attempted reconstruction

of what a claimant might have done with her life over the past

fifteen years, absent her leaving United upon marriage. How a

class backpay award should be divided, in light of that

consideration, is a matter for future agreement or decision, but

the allocation of an established class award is far different than

the issue in the reinstatement hearings.

Plaintiffs also complain that the special masters have

adopted evidentiary rules of decisions announced by Special

Administrative Master Otis on February 18, 1983. It should

perhaps be noted that in their April 7, !983 reply to AFA

24a

objections to reinstatement rulings contemporaneous to the

Summary Memorandum they supported both reliance upon

immediate post-termination employment if that occurred

(although not the converse) and the master’s reliance upon the

claimants’ testimony. In that same reply they take issue with

the AFA’s suggestion that the master had ignored and limited

his consideration of evidence because he did not directly refer

to it in his report, although thereafter in the consolidated appeal

a continuing basis for objection is that the master must have

relied solely upon those matters to which he directly referred.

Finally, United and AFA also question the substance of the

February 18, 1983 Summary Memorandum.

First, there is nothing to suggest that the other masters

have, in reaching their decisions, felt bound by those comments.

Second, this court does not consider those comments to be

anything other than reflections based on initial experience. As

plaintiffs point out, the reinstatement decisions are largely

dependent upon the claimant’s credibility. The masters are

necessarily relying upon not only what a claimant, after more

than 15 years, testifies she thought at the time of her leaving

United but also what she testifies she did or said prior to her

leaving and for a time thereafter.

The extent to which a claimant actively sought employ-

ment and her employment history during some period follow-

ing termination are both meaningful factors, among others, to

be considered by a special master. Although they are not

necessarily determinative they may well be the factors which

stand out in the special master’s mind as those, when consid-

ered in light of all the evidence, which most often provided that

final evidence that a claimant is or is not a member of the class.

That was Master Otis’ observation, based upon his initial

hearings, and this Court does not consider it to have been any

more than that.

It should be kept in mind that each special master has been

and will be hearing many claims of substantially similar nature.

25a

They are, in that respect, somewhat akin to administrative law

judges or hearing officers whose perceptions are honed and

refined by the hearing process itself. It is likely, and not

improper, that they will come to rely more heavily on some

kinds of evidence than on other kinds. This court, lacking the

repetitive hearing experience of the special masters, will be

particularly mindful that findings of fact are binding upon it

unless clearly erroneous. It intends to, and it will, review

carefully all objections to the determinations of special masters

and all memoranda filed with respect to objections. It does not

intend, however, to spell out it own views with any specificity

unless it reverses or questions a determination.

Finally, this court recognizes that the manner and burden

of proof is not the same for all the varying circumstances in

Title VII cases. It must be tailored to the realities of the case,

including how the evidence could or would be presented. See

Teamsters v. United States, supra. Given the nature of the

hearings so far conducted, this court is satisfied that the

structure suggested, but not mandated, by Texas Department of

Community Affairs v. Burdine, supra, should continue to be

followed.

James B. MORAN _

James B. Moran

United States District Judge

Date: September 9, 1983

26a

Unitep States District Court

Northern District of Illinois

Eastern Division

Name of Presiding Judge, Honorable JAMES B. MORAN

Cause No. 70 C 1157 Date: Sept 9, 1983

Title of Cause) ROMASANTA ET AL VS UNITED AIR

LINES, INC. ET AL.

Brief Statement of Motion: Memorandum and Order

The rules of this court require counsel to furnish the names of all parties entitled

to notice of the entry of an order and the names and addresses of their attorneys.

Please do this immediately below (separate lists may be appended ).

Enter Memorandum and Order. (DRAFT) The objections to

the Masters reports and recommendations are overruled with

respect to the following claimants upon the court’s determina-

tion that the masters findings are not clearly erroneous: claim-

ants 3, 6, 7, 10, 11, 14, 15, 20, 21,24 and 25. The court requests

the objectors to file with the court the hearing transcripts

pertaining to claimant 9, Irene Bene Johnson, and claimant 59,

Carolyn Hodges Wheeler. In the latter claim, because a

resignation directly coerced by United would significantly re-

duce the showing required of the claimant, it may be necessary,

depending upon the hearing testimony, to seek a specific factual

finding from the special master on that issue. The conditional

objection to claimant 26, Toby Ryan Mattingly, is overruled as

unnecessary; the seniority relief is governed by the July 12,

1982 Order. (See DRAFT for particulars )

Moran, J

27a

Unrtep States District Court

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, ‘

et al., and LIANE Burx

McDONALD, on her own behalf

and on behalf of all others,

Plaintiff,

No. 70 C 1157

VS.

Judge Moran

UNITED AIR LINES, INC., a

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. ;

MEMORANDUM AND ORDER

The objections to the masters’ reports and recommenda-

tions are overruled with respect to the following claimants upon

the court’s determination that the masters’ findings are not

clearly erroneous:

Claimant 3, Sandra Edwards Hernandez

Claimant 6, Elaine Huetten Majchrzak

Claimant 7, Mary Arlene MacAdam Lemley

Claimant 10, Sharon McCoy Bingham

Claimant 11, Drusilla Anderson Engle

Claimant 14, Donna Bothen Canetti

Claimant 15, Charlotte Motsell Cerruti

Claimant 20, Anna Katherine Pugh Smiley

Claimant 21, Barbara Lamb McIntire

Claimant 24, Irene M. Bondurant

Claimant 25, Patricia Powers Hodiak

28a

The court requests the objectors to file with the court the

hearing transcripts pertaining to Claimant 9, Irene Benz John-

son, and Claimant 59, Carolyn Hodges Wheeler. In the latter

claim, because a resignation directly coerced by United would

significantly reduce the showing required of the claimant, it

may be necessary, depending upon the hearing testimony, to

seek a specific factual finding from the special master on that

issue. The conditional objection to Claimant 26, Toby Ryan

Mattingly, is overruled as unnecessary; the seniority relief is

governed by the July 12, 1982 Order.

JAMES B. MORAN

James B. Moran

United States District Judge

Date: September 9, 1983

29a

UNITED STATES District COouRT

Northern District of Illinois

Eastern Division

Name of Presiding Judge, Honorable JAMES B. MORAN

Cause No. 70 C 1157 Date: Jan 5, 1984

Title of Cause) ROMASANTA ET AL. VS UNITED AIR-

LINES, INC. ET AL.

Brief Statement of Motion: Memorandum and Order

The rules of this court require counsel to furnish the names of all parties entitled

to notice of the entry of an order and the names and addresses of their attorney.

Please do this immediately below (separate lists may be appended ).

Enter Memorandum and Order. (DRAFT) The class has

appealed, in this Second Consolidated Appeal, from adverse

determinations by masters respecting five claims. Upon review

of the memoranda and masters’ reports, this court remands the

claim of Janet Meyers Shelton, Claim no. 284, for clarification,

and adopts the recommendations of the masters, as not being

clearly erroneous, respecting Deanna Dorsey Schulze, Claim

no. 547, Linda Williams Andrews, Claim No. 472, Barbara

Thomas Notch, Claim No. 183 and Lynne Runnyon Overton,

Claim No. 677. (See DRAFT for particulars )

Moran, J

30a

IN THE UNITED STATES DistTRICT COURT

For the Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et al., ]

and

LIANE BuIx MCDONALD, etc.,

Plaintiffs,

vs. ' No. 70 C 1157

UNITED AIRLINES, INC., a Judge Moran

corporation

Defendant.

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. J

MEMORANDUM AND ORDER

The class has appealed, in this Second Consolidated

Appeal, from adverse determinations by masters respecting five

claims. Upon review of the memoranda and masters’ reports,

this court remands the claim of Janet Meyers Shelton, Claim

No. 284, for clarification, and adopts the recommendations of

the masters, as not being clearly erroneous, respecting Deanna

Dorsey Schulze, Claim No. 547, Linda Williams Andrews,

Claim No. 472, Barbara Thomas Notch, Claim No. 183 and

Lynne Runnyon Overton, Claim No. 677.

Much of the argument in these appeals has centered in

legal concepts such as “clearly erroneous”, “credibility”,

“mixed questicns of law and fact”, and “undisputed facts”,

with plaintiffs contending that a greater deference must be

given to the claimant’s conclusion that she would have contin-

ued to fly when her dscription of the then existing factual

context is supportable of that conclusion and that this court

3la

should accord the masters’ determinations a rather broad

review. This court disagrees.

The claimants left service as flight attendants fifteen or

more years ago. The hearings necessarily involve an explo-

ration into what claimants then did, recollections quite possibly

affected by time and by present desires. They also involve what

claimants otherwise would have done, absent the no-marriage

rule, a present reconstruction of what one then would have

done even though, the choice not then being present, the

claimant may not have then consciously contemplated the

alternatives. The masters have been faced with the difficult and

uncertain task of determining what would have happened in

the past had circumstances been different. While that determi-

nation may well not rest upon “credibility” in the narrow

sense—a conclusion that someone was lying—it cannot be

ignored that claimants are testifying to present subjective

beliefs as to what they would have done in the somewhat

distant past if they then had had alternatives. Such beliefs are

obviously, despite the utmost good faith, subject to the twin

distortions of time and self-interest.

A master’s determination rests upon whether or not the

evidence presented, in its totality, persuades the master that the

claimant left because of the no-marriage rule. It requires, in a

sense, the master to share in the reconstruction of what might

have happened in a woman’s life; and what did happen, the

ease with which other things could have happened, and the

extent to which marriage might have impacted the likelihood

that other things would have happened, all play a role. The

master is asked to determine what a particular person, who is

before him or her as a witness, would have done in other

circumstances.

That is an intensely factual exploration; it is not the stuff

for determination upon a cold record. Were it otherwise, the

concerns plaintiffs have reiterated from time to time, but which

this court cannot discern in the reports, might well material-

32a

ize—that determinations would become the results of per se

rules, a kind of computer-programmed result. As this court has

remarked before, the masters in each hearing have the advan-

tage of their experience in other hearings. Their recommenda-

tions in Claims Nos. 547, 472, 183 and 677 are amply

supported by the record, and they are adopted.

Claim No. 284 stands on a somewhat different footing.

The recommendation is clear, but the findings upon which it is

based are not. The master leaves ambiguous whether or not he

believed that the claimant would have continued to fly for a

finite period, absent the no-marriage rule, and that factual

conclusion is determinative of the propriety of the recommen-

dation. That claim is, therefore, remanded for the indicated

clarification and, if appropriate, reconsideration.

JAMES B. MORAN

Judge, United States District Court

January 5, 1984.

33a

UNITED STATES DistTRICT COURT

Northern District of Illinois

Eastern Division

Name of Presiding Judge, Honorable JAMES B. MOBAN

Cause No. 70 C 1157 Date: Feb 1, 1984

Title of Cause) ROMASANTA ET AL. VS UNITED AIR-

LINES, INC. ET AL.

Brief Statement of Motion: AMENDED ORDER

The rules of this court require counsel to furnish the names of all parties entitled

to notice of the entry of an order and the names and addresses of their attorney.

Please do this immediately below (separate lists may be appended).

The Memorandum and Order dated January 5, 1984 respecting

Second Consolidated Appeal is amended as follows: “The

Court adopts the recommendation of the masters respecting

Marcilla Brown Brown, claim no. 276” all other aspects of the

order to stand.

Moran, J

34a

UNITED STATES DISTRICT COURT

Northern District of Illinois

Eastern Division

Name of Presiding Judge, Honorable JAMES B. MORAN

Cause No. 70 C 1157 Date: Oct 27, 1982

Title of Cause: ROMASANTA ET AL. VS UNITED AIR

LINES, INC. ET AL.

Brief Statement of Motion: Order of Reference to Special

Administrative Master

The rules of this court require counsel to furnish the names of all parties entitled

to notice of the entry of an order and the names and addresses of their attorneys.

Please do this immediately below (separate lists may be appended).

Enter Order of Reference to Special Administrative Master.

(DRAFT) (See DRAFT for particulars)

Moran, J

35a

IN THE UNITED STATES DISTRICT COURT

For the Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et |

al., and LIANE Burx Mc DONALD, on

her own behalf and on behalf of

others,

Plaintiffs,

No. 70 C 1157

VS.

Judge Moran

UNITED AIR LINES, INC., a corpo-

ration,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. .

ORDER OF REFERENCE

TO SPECIAL ADMINISTRATIVE MASTER

Appointment and Powers

1. James T. Otis, a member of the Bar admitted to practice

in this Court, is hereby appointed presiding Special Adminis-

trative Master (““SAM7’’) to administer and conduct hearings on

claims of women asserting they are members of the class in this

matter, defined as “all women who were employed by United

Air Lines, Inc. as stewardesses, and who resigned or were

terminated because of United’s no-marriage policy between

July 29, 1965 and November 7, 1968 when the no-marriage

rule was abolished.” The SAM will also oversee other Special

Masters in this action as may be appointed by the Court. The

Special Masters will hear and report to the Court as to the

36a

validity of the women’s claims to be members of the class and

as to the relief to be granted.

2. The SAM and other Special Masters will proceed as

appropriate pursuant to Rule 53(c) FRCP.

3. For each claimant, a Special Master will prepare a

report and recommended decision and, if requested by a party,

proposed findings of fact and conclusions of law pursuant to

Rule 53(e) FRCP.

Il.

Principles

4. Only a claimant who resigned or was terminated as a

United flight attendant between July 29, 1965 and November

7, 1968 (the “class period”) is eligible to attempt to prove that

she is a member of the class. The claimant has the burden of

proving that she is a member of the class.

5. When an eligible claimant proves she was married at

the time of her designation or termination, or that she married

within 90 days after her resignation or termination, those

opposing reinstatement wil! have the burden of going forward

with a showing that some reason other than the no-marriage

rule led to the end of her employment as a flight attendant.

6. Some indication that an eligible claimant may have

resigned or been terminated because of the no-marriage rule

are the following:

(a) she concealed her marriage and continued to fly;

(b) she on marriage sought transfer to ground em-

ployment with United; or

days after her termination or resignation; or

37a

(d) she is found by the Special Master to have made

contemporaneous protests to her supervisor or United

management about her dissatisfaction with the no-

marriage rule.

7. Some indication that an eligible claimant may have

resigned or been terminated for a reason other than the no-

marriage rule are the following:

(a) she gave United a reason inconsistent with the no-

marriage rule as the reason for her resignation or termina-

tion; or

(6) she failed to apply for a transfer with United, to

seek other employment outside the company, or to apply

for unemployment compensation at or about the time of

her resignation or termination.

8. Any claimant who received notice of the class action in

a timely fashion from the Internal Revenue Service, who did

not appear through separate counsel and who failed to mail her

questionnaire to class counsel on or before June 15, 1980 is not

entitled to be a member of the class.

9. Any claimant who did not receive notice of the class

action from the Internal Revenue Service and failed to respond

by April 1, 1981 to the notice by publication ordered by this

Court on January 30, 1981 is not entitled to be a member of the

class.

10. Any claimant who pressed her claim and received a

final order or settled her claim in this or another forum is

presumptively barred and is not entitled to be a member of the

class, subject to rebuttal.

11. Any claimant who accepted United’s offer of

reemployment as a flight attendant and withdrew her grievance

or EEOC compiaint as a condition of that acceptance is

presumptively barred and is not entitled to be a member of the

class, subject to rebuttal.

38a

IIL.

Procedures for Hearings

(Other Than the First Ten)

12. Counsel from time to time shall submit to the SAM an

agreed-upon list, in order of priority, of the names of those

claimants whose claims are to be heard. If counsel are unable

to agree on the order of priority in a timely manner it will be set

by the SAM. Members of the random sample of claimants who

have responded to discovery requests will be heard first.

13. The SAM will send notice of each individual hearing,

time and location, to all counsel not later than 90 days before

such individual hearings.

14. Not later than 60 days before a hearing, counsel for

the claimant whose claim is to be heard will file with the SAM

(except the items listed in “b” below) and serve on United and

Association of Flight Attendants (“AFA”) a statement of her

claim which will include: (a) a brief statement of the facts to be

aserted in support of the claim and of the specific relief sought

by the claimant, (b) a copy of claimant’s answers to any

Interrogatories and Request for Production of Documents, and

of exhibits.

15. Not later than 40 days before a hearing, counsel for

United and counsel for AFA will each file the responsive

Statement to the claim, if it is to be contested, which will

include: (a) a statement of agreed facts which need not be

proved at hearing, (b) a statement of contested facts, (c) a

statement of any affirmative defense, including supporting facts,

(d) notices of depositions, if necessary, (¢) a copy of its

Answers to Plaintiff's Interrogatories and Request for Produc-

tion of Documents relating to individual claimants, and (f) a

witness list.

39a

16. The SAM shall designate the Special Master for a

hearing at least two weeks prior to the hearing date and so

advise counsel.

17. Counsel may at any time agree by stipulation, without

hearing, that a claimant is or is not entitled to be a class

member.

18. Hearings will be recorded similarly to magistrates’

hearings. Each party will pay for a reporter’s services if

requested and his or her own copy of the transcript, if ordered.

19. The Federal Rules of Evidence will apply to the

conduct of the hearings. Interlocutory rulings of the Special

Master on matters of discovery or evidence may be presented to

the Court for review provided, however, that proceedings on a

particular claim will not be stayed pending such Court review

unless, in the opinion of the Special Master and the SAM, such

a ruling may materially advance the subsequent conduct of the

hearings.

IV.

Relief

20. Each claimant found by the Special Master to be a

member of the class will be recommended for reinstatement, as

appropriate, in accordance with the Court’s order of July 12,

1982, in conformity with the Memorandum and Order of

January 8, 1982 and any modification thereof unless the Special

Master finds a compelling equitable reason militating against

her reinstatement. Any finding of a compelling equitable

reason shall be immediately reviewable by the Court.

Vv.

Costs

21. The SAM and each Special Master will be com-

pensated in the amount of $100 for each hour spent in hearing

40a

preparation (including review of the records and ruling on

preliminary matters), actually hearing each claim and prepar-

ing a report and recommended decision on each claim.

22. United will pay the Special Master for time spent as

described in paragraph 20, except if written findings of fact and

conclusions of law are requested for any claim, in which event

the fees for such preparation will be paid by the requesting

party, and except if the Special Master shall specify, for stated

reasons such as the extent to which a position lacked merit,

failure to cooperate in the establishment of largely undisputed

facts, the unnecessary prolonging of proceedings or (in the case

of AFA) prolonging proceedings to establish points or positions

germane to AFA rather than United, that AFA, the claimant, or

both, shall pay a portion or all of the costs and fees.

23. Either United or AFA may withdraw opposition to any

particular claim, in which event the other party will bear the

sole risk of costs thereafter incurred.

24. Bills for services for the SAM and the Special Masters

will be tendered by the SAM to the appropriate parties c/o

their counsel on a monthly basis. Bills for services will be paid

promptly. Objections to any billing will be filed immediately

with the Court for resolution.

JAMES B. MORAN

Judge, United States District Court

October , 1982.

4la

Unrirep States District Court

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et )

al., and LIANE Burx MCDONALD, on

her own behalf and on behalf of all

others,

Plaintiff,

No. 70 C 1157

Judge Moran

vs.

UNrITeD Air LINES, INC., a

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. J

SPECIAL ADMINISTRATIVE MASTER’S

SUMMARY MEMORANDUM AND APPENDIX TO

REPORTS AND RECOMMENDED DECISIONS ON

CLAIM NOS. 1 AND 3-8, INCLUSIVE

Attached to this Summary Memorandum and Appendix

are my Reports and Recommended Decisions on the seven

claims fully heard by me during the week of January 17-21,

1983, at Chicago, Illinois. The record on the claim of Pamela

Laycock Bowles, Claim No. 2, remains open pending advice by

counsel. As more fully set forth in the several Reports and

Recommended Decisions, I am recommending that the Court

order reinstatements of Mary McGuire Bradbury, Claim No. 1;

Sandra Edwards Hernandez, Claim No. 3; Nancy Spurlock

Kopp, Claim No. 4; Barbara Sauers Zawila, Claim No. 5;

Elaine Huetten Majchrzak, Claim No. 6; and Nancy King

Summarco, Claim No. 8. I am recommending that Mary

Arlene MacAdam Lemley, Claim No. 7, not be reinstated.

42a

I offer the following comments and observations for the

benefit of the Court and counsel in evaluating the processing of

these claims and in further considering how to handle forth-

coming claims.

1. I have attached to this Summary Memorandum an

Appendix listing these portions of transcripts and exhibits from

other proceedings in this action designated by counsel, rather

than attach these designations to each of the several Reports

and Recommended Decisions. I reviewed all of this material

before attempting to evaluate each of the claims. I found all of

the material interesting, if not always relevant and helpful to

the very narrow question before me. (See: Transcript of

Proceedings before District Judge Moran, 8/27/82.)

2. I question whether individual oral hearings are the best

way to resolve most of these kinds of claims. All of the

claimants and non-party witnesses were “good witnesses” as

that phrase is generally understood by judges and experienced

trial lawyers. Given the backgrounds and experiences of the

claimants, the high quality of their testimonial demeanors

should not be surprising. I think that the extent of the thorough

cross-examination on these claims perhaps reflects that com-

mon perception by all participating counsel. I suggest that

counsel give renewed consideration to more mechanization of

the claims process and reducing the need for and scope of oral

hearings.

3. On the merits, in general I found the evidence as to

what each claimant did, more persuasive than what she said,

without questioning the latter. I did not sense any serious

credibility problems, other than the kind inherent in changes of

perception with the passage of time and altered circumstances.

I thought a claimant’s demonstrated commitment full-time to

the labor market with, or outside of, United at or about the time

of resignation was highly persuasive, if not determinative.

EEG aaa

43a

I would be pleased to discuss these comments and observa-

tions with the Court and counsel after all have had an

opportunity to review these first Reports and Recommended

Decisions.

JAMES T. OTIS

James T. Otis

Special Administrative Master

Chicago, Illinois

February 18, 1983

44a

UNITED STATES District CouRT

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et !

al., and LIANE BuIx MCDONALD, on

her own behalf and on behalf of all

others,

Plaintiff,

vs. q No. 70 C 1157

UNITED Air Lines, INC., a Judge Moran

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. )

SPECIAL ADMINISTRATIVE MASTER’S

REPORT AND RECOMMENDED DECISION

CLAIM OF MARY ARLENE LEMLEY, CLAIM NO. 7

Pursuant to the Order of Reference (10/27/82) and the

applicable provisions of the Federal Rules of Civil Procedure,

for the reasons more fully set forth below, I recommend to the

Court that the entitlement claim of Mary Arlene Lemley

(hereinafter “Claimant”) against Defendant United Air Lines,

Inc. ( hereinafter “United”’), be denied.

1. The Record

a. Summary of Fieadings—The pleadings consist of

Claimant’s Statement of Claim and List of Witnesses and

Exhibits, United’s Amended Answer to Statement of Claim

(12/15/82) and the Responsive Statement of Association of

Flight Attendants (hereinafter “AFA”) to Statement of Claim

of Mary MacAdam Lemley.

45a

Claimant does not allege that she married within 90 days

of her resignation but she does allege and United admits that

she concealed her marriage and continued to fly. Claimant

seeks back pay (including interest and benefits) and reinstate-

ment with restoration of orginal seniority. United asserts that

Claimant failed to protest her termination to United at the time

she terminated her employment as a flight attendant; that

Claimant failed to apply for a transfer to another position with

United when she terminated her employment as a flight

attendant; Claimant failed to obtain full-time employment

within two years after terminating her employment as a flight

attendant; that Claimant never again applied for employment

as a flight attendant; and that Claimant failed to apply for

unemployment compensation within 90 days after terminating

her employment as a flight attendant. United denies the claim.

AFA, for want of knowledge, denies material allegations of the

claim, alleges a variety of affirmative defenses and reserves

additional unspecified defenses.

b. Witnesses—Claimant; William A. Lemley, offered by

Claimant; and Caroline Genevive Newton, offered by United.

c. Exhibits—

Exhibit No. Item

Lemley Defendant Excerpted from article entitled “Jet

Exhibit | Age Stewardess,” United Airlines

Mainliner magazine, p. 3 (January,

1961)

Lemley Defendant UAL Retirement Income Plan

Exhibit 2 Non-subscriber Card for M. A.

MacAdam

In addition to the foregoing, the parties designated and I

reviewed the transcripts of testimonies and documentary exhib-

its from other court proceedings in this action, all as listed in the

Appendix to Summary Memorandum (2/18/83) filed con-

currently with this Report.

2. Material Facts

I find the following material facts from the testimonial and

documentary evidence adduced at the hearing on this claim on

January 20, 1983.

Claimant (then Mary Arlene MacAdam) began working

as a United flight attendant in July, 1960. At that time she

knew of United’s no-marriage rule.

In late 1965 or early 1966 Claimant became engaged to be

married to William A. Lemley. Claimant and Mr. Lemley were

married on April 2, 1966. Claimant hid her marriage, contin-

ued to fly, and then resigned as a United flight attendant on

June 16, 1966.

Claimant testified that she felt that by hiding her marriage

she was “becoming paranoid” and was “being watched.” She

testified that she found it difficult to communicate with her co-

workers and that she was fearful of being fired if found out.

Claimant testified that she would have deferred her marriage if

she had known of the prospective abrogation of the no-

marriage rule.

There is scant evidence that Claimant seriously sought to

remain in the labor force upon her ending her position as a

United flight attendant. Except for one attempt some years

later (the record does not disclose the precise date, except that

it could not have been before November, 1974) when Claimant

sought employment with the United States Postal Service at

Issaquah, Washington, there is no evidence that she ever sought

to reenter the labor force full-time after leaving United.

3. Conclusions of Law

Claimant is not a member of the class.

47a

4. Recommended Decision

I recommend that Claimant Mary Arlene Lemley not be

reinstated as a flight attendant with Defendant United Airlines,

Inc.

JAMES T. OTIS

James T. Otis

Special Administrative Master

Chicago, Illinois

21 February, 1983

(231/Q)

48a

UnNrTeD STATES DistTrRicT COURT

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, ef al..

and

LIANE BuUIX MCDONALD, on her own

behalf and on behalf of all others,

Plaintiff,

No. 70 C 1157

Judge Moran

vs.

UNITED AIR LINES, INC., a

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. J

SPECIAL ADMINISTRATIVE MASTER’S

REPORT AND RECOMMENDED DECISION

CLAIM OF SHARON MC COY BINGHAM, CLAIM NO. 10

Pursuant to the Order of Reference (10/27/82) and the

applicable provisions of the Federal Rules of Civil Procedure,

for the reasons more fully set forth below, I recommend to the

Court that the entitlement claim of Sharon McCoy Bingham

(hereinafter “Claimant”) against Defendant United Air Lines,

Inc. (hereinafter “United”), be denied.

1. The Record

a. Summary of Pleadings—The pleadings consist of

Claimant’s Statement of Claim and List of Witnesses and

Exhibits, United’s Answer to Statement of Claim and the

Responsive Statement of Association of Flight Attendants

(hereinafter “AFA”) to Statement of Claim of Sharon McCoy

Bingham.

49a

Ciaimant alleges that she married within 90 days of

termination. United and AFA plead want of knowledge as to

the material allegations and allege various facts in opposition to

the claim.

b. Witnesses—Claimant, Barbara Oster and Carol Bing-

ham, both called by Claimant.

c. Exhibits—

Exhibit No. Item

Bingham AFA Bingham social security

Exhibit | earnings record

In addition to the foregoing, the parties designated and I

reviewed the transcripts of testimonies and documentary exhib-

its from other court proceedings in this action, all as listed in the

Appendix to the Summary Memorandum (2/18/83) filed

February 21, 1983.

2. Material Facts

I find the following material facts from the testimonial and

documentary evidence adduced at the hearing on this claim on

April 18, 1983.

Claimant (then Sharon Frances McCoy) began working as

a United flight attendant in April 1961. She became aware of

United’s no-marmiage rule.

In 1967 Claimant met her husband-to-be, a United pilot.

They became engaged in July 1968. Claimant resigned as a

flight attendant in October and they married in November,

1968.

In accordance with pre-marital discussions and plans,

Claimant and her new husband spent much time in January

and February, 1969, looking at properties in the Napa Valley in

California, the search culminating in the purchase of an old

ranch which they personally rehabilitated and commenced to

develop. Together they searched out and selected suitable

50a

architectural plans, undertook the construction of their new

home and they did most of the work. Claimant devoted almost

full time to the project. In 1970 the structure was sufficiently

roughed-in and closed so that they were able to move in and set

up house, Claimant’s mother also coming to live with them. In

1971 and 1972 they started to develop vineyards on the

property and together completed construction of the house in

1974.

Claimant testified she did not wish to contest the no-

marriage rule at the time of her resignation lest it put her

husband’s job in jeopardy. She had previously heard rumors

that the union was trying to set aside the rule but she did not

pursue the rumors by further inquiry. Claimant never notified

the union of any dissatisfaction with the no-marriage rule and

she did not file any grievance. Claimant never sought

unemployment compensation and has not sought employment

since her resignation as a flight attendant.

Witness Oster had been a roommate of Claimant while se

was a flight attendant. Witness Oster testified that they

frequently discussed the no-marriage rule and that Claimant

thought the rule was “unfair.” She also testified that during her

engagement period Claimant expressed the hope that the rule

would be changed.

Claimant’s husband also testified that he said they had

discussed possible concealment of the marriage but this was

unacceptable. Mr. Bingham corroborated Claimant’s full-time

commitment to building their house. He said he had come

from a farm background and had long intended to develop a

farm as “a way of life.”

3. Conclusions of Law

Claimant was employed by United as a flight attendant

and resigned her position as a flight attendant for a reason

other than United’s no-marriage policy during the class period.

Claimant is not a member of the class.

Sla

4. Recommended Decision

I recommend that Claimant Sharon McCoy Bingham not

be reinstated as a flight attendant with Defendant United Air

Lines, Inc.

JAMES T. OTIS

James T. Otis

Special Administrative Master

Chicago, Illinois

6 May, 1983

(378/X)

52a

CERTIFICATE OF SERVICE

I certify that I caused a copy of the foregoing document to

be served as indicated on each of the following addressees on

May I1, 1983.

BY MAIL

Paul M. Tschirhart, Esq.

United Air Lines, Inc.

P. O. Box 66100

Chicago, IL 60666

Stephen B. Moidof, Esq.

Cohen, Weiss & Simon

3X West 42nd Street

25th Floor

New York, New York 10036

Kenneth N. Flaxman, Esq.

55 East Monroe Street

Suite 4005

Chicago, IL 60603

Mark B. Bigelow, Esa.

10700 West Higgins Road

Rosemont, IL 60018

BY MESSENGER

Thomas R. Meites, Esq.

Meites & Frackman

135 South LaSalle Street

Suite 1035

Chicago, IL 60603

Irving M. Friedman, Esq.

Katz, Friedman, Schur & Eagle, Chid.

Seven South Dearborn Street

Suite 1734

Chicago, IL 60603

53a

Calvin P. Sawyier, Esq.

Winston & Strawn

One First National Plaza

50th Floor

Chicago, IL 60603

Jeffrey D. Colman, Esq.

Jenner & Block

One IBM Plaza

44th Floor

Chicago, IL 60611

James T. Oris _

James T. Otis

Special Administrative Master

54a

IN THE UNrrep States District Court

For the Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, e¢t al.,

and LIANE Burx MCDONALD, on her behalf

and on behalf of all others,

Plaintiffs, | No. 70 € 1157

e Judge Moran

UNITED Air LINES, INC.,

a corporation,

Defendant. Z

SPECIAL MASTER’S REPORT AND

RECOMMENDED DECISION OF CLAIM OF

IRENE M. BONDURANT,

CLAIM NO. 24

Pursuant to the Order of Reference (10/27/82) and Rule

53 of the Federal Rules of Civil Procedure, for the reasons set

forth below, I recommend to the Court that the entitlement

claim of IRENE M. BONDURANT (hereinafter “CLAIM-

ANT”) against defendant, UNITED AIRLINES, INC. (here-

after “UNITED”), be’ denied.

1. The Record

a. Summary of Pleadings—The pleadings consist of

CLAIMANT’s Statement of Claim and List of Witnesses and

Exhibits, UNITED’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

(hereafter “AFA’”’) to Statement of Claim.

CLAIMANT alleges that she married within 90 days of

termination. CLAIMANT alleges but UNITED denies that she

protested to her supervisor or UNITED about her dissatisaction

55a

with the no-marriage rule. CLAIMANT does not allege that

she concealed her marriage and continued to fly or that she

sought to transfer to a ground position with UNITED or sought

other employment outside of UNITED within 90 days of her

termination, UNITED denies the claim. AFA also contests the

claim.

b. Witnesses—CLAIMANT, Jane Wannamaker Becher

(called by CLAIMANT), Janet R. Goodali (called by AFA).

c. Exhibits

Exhibit No. Item

Plaintiff Exhibits 1-32 “Orchid Letters” from United to

Claimant and In-Flight Observa-

tion Reports

In addition to the foregoing, I reviewed the transcripts of

proceedings, documents, opinions and other material desig-

nated by the parties, as listed in the Appendix to the Summary

Memorandum (5/6/83) filed concurrently with this Report.

2. Material Facts

I find the following material facts from the evidence

adduced at the hearing on this claim on April 25, 1983.

CLAIMANT (then Irene M. McCausland) began working

as a flight attendant in April, 1962. She grew up in Scotland

where she graduated from high school and worked in a factory.

She emigrated to the United States in 1960. She worked as a

file clerk from 1960 until she got her job with UNITED.

CLAIMANT appears to have had an exceptional record at

UNITED. Numerous “orchid letters” (letters of com-

mendation from UNITED, often reflecting letters of praise

from passengers ) were introduced, indicating CLAIMANT was

a poised, considerate flight attendant who took her job seriously

and probably charmed everyone with her Scottish accent.

CLAIMANT met her husband, from whom she is now

divorced, in 1965. They became engaged in November, 1965

56a

and married on April 23, 1966. CLAIMANT resigned her

position on March 15, 1966, in anticipation of her upcoming

marriage.

After leaving UNITED, CLAIMANT did not again work

in a paid position until December, 1982. She lived in Chicago,

Illinois. Following her marriage, she did not seek employment.

She did become involved in volunteer work with the Junior

League, the Women’s Board of Presbyterian-St. Luke’s Hospi-

tal, the Girl Scouts, the North Avenue Day Nursery and

“Clipped Wings”, an alumni organization for former United

flight attendants. In this capacity she worked 2-3 days a week

for several years, until the birth of one of her children.

Apparently, CLAIMANT’s husband, who was a bank officer,

encouraged CLAIMANT’s charity work.

CLAIMANT did not protest the no-marriage rule at the

time she quit her job. She says she told her supervisor she

would like to work at UNITED’s training school in Chicago,

but she did not seek a transfer to any ground position at

UNITED. CLAIMANT did not seek unemployment com-

pensation.

CLAIMANT did not think anything could be done about

the no-marriage rule and so did not file a union grievance. She

thinks she heard the rule had been changed about 1970.

CLAIMANT says she would have continued flying but for

the no-marriage rule, at least until she had her first child. Her

counsel also argues that she was not trained for any other work

and that it was unrealistic to expect her to attempt to find

anything else. CLAIMANT, however, had done some paid

public relations work for Continental Baking Company while

employed by UNITED.

Janet R. Goodall, a current flight attendant, testified for

the AFA. She said she flew with CLAIMANT her last month

of employment and that when she suggested CLAIMANT

attempt to conceal her marriage, CLAIMANT said she had

57a

worked long enough and wanted to quit “and stay home and

eat bon-bons.”

I have given Ms. Goodall’s testimony little consideration in

reaching a decision on this claim. The conversation Ms.

Goodall allegedly remembered occurred 17 years ago and it

seems unlikely it would have seemed important enough to

remember at the time. She could not remember anyone else

among the crew of the airplane on which she says she and

CLAIMANT were fiying, or other details apart from the

conversation stated. CLAIMANT denied ever having mef Ms.

Goodall, let alone having the conversation described.

Even discounting Ms. Goodall’s testimony, the evidence

indicates CLAIMANT did not intend to continue working after

her marriage. There is evidence that her husband wanted her

to do charity work and entertain. She did not protest the rule at

the time. She did not apply for a single position with any

potential employer. Perhaps she could not have found any

other acceptable employment, but it seems more likely that if

she was interested in continuing a career she would have made

an attempt to see if some position of interest was available.

3. Conclusions of Law

CLAIMANT is not a member of the class.

4. Recommended Decision

I recommend that Claimant, IRENE M. BONDURANT

not be reinstated as a flight attendant with defendant, UNITED

AIRLINES, INC.

ELAINE E. BUCKLO

Elaine E. Bucklo

Special Master

Chicago, Illinois

May 6, 1983

58a

IN THE UNITED STATES District COURT

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, ,

et al., and LIANE Bux

McDONALD, on her own behalf and

on behalf of all others,

Plaintiff No. 70 C 1157

vs. Judge Moran

UNITED Arr LINES, INC., a

corporation,

Defendant

SPECIAL MASTER’S REPORT AND

RECOMMENDED DECISION OF CLAIM OF

PATRICIA ELLEN HODIAK,

CLAIM NO. 25

Pursuant to the Order of Reference (10/27/82) and Rule

53 of the Federal Rules of Civil Procedure, for the reasons set

forth below, I recommend to the Court that the entitlement

claim of PATRICIA ELLEN HODIAK (hereafter “CLAIM-

ANT”) against defendant UNITED AIR LINES, INC. (here-

after “UNITED” ), be denied.

1. The Record

a. Summary of Pleadings—The pleadings consist of

CLAIMANT'S Statement of Claim and List of Witnesses and

Exhibits, UNITED’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

(hereinafter “AFA”) to Statement of Claim.

CLAIMANT alleges that she married within 90 days of

her resignation. CLAIMANT seeks back pay (including

59a

interest and benefits) and reinstatement with restoration of

original seniority. UNITED denies the claim. AFA also

opposes the claim.

b. Witness—CLAIMANT.

c. Exhibits—

Exhibit No. Mem

Claimant’s Exhibit | “Orchid Letter”

In addition to the foregoing, the parties designated and |

reviewed the transcripts of proceedings, documents, opinions

and other material designated by the parties, as listed in the

Appendix to the Summary Memorandum (5/6/83) filed con-

currently with this Report.

2. Material Facts

I find the following material facts from the evidence

adduced at the hearing on this claim on April 25, 1983.

CLAIMANT became a United Flight attendant in May,

1962. Prior to this time she attended three semesters of college.

CLAIMANT testified she loved her job. She liked the

passes she got (on which she usually went home) and the

reduced fare trips she was able to take to Europe. She liked

feeling “special” when she went home to the small town she

grew up in. She liked the public contact and personal attention

she could give her passengers. She like the flexible hours her

job gave her.

CLAIMANT met her husband in 1963. She began dating

him in 1964 and they became engaged in 1965. They were

married on January 29, 1966. She resigned her position as of

January 22, 1966. She did not consider attempting to conceal

her marriage because she felt it would be wrong to violate a

rule.

From the time CLAIMANT left UNITED until the sum-

mer of 1982, when she worked for approximately 96 hours, as a

60a

“shopper” for another airline, CLAIMANT has had no paid

employment except for a few days as a demonstrator at

conventions sometime during the 1970’s. CLAIMANT says she

did not seek another position at UNITED when she got

married because she did not want any other position. She says

she did not seek any other employment because she did not

have skills and because it would be a tax disadvantage for her

to work.

At the time CLAIMANT left UNITED, she did not protest

the no-marriage rule. She does not recall discussing the rule

with her fiance other than that they agreed she would follow the

rule. She did not apply for unemployment compensation.

CLAIMANT’s child was born in October, 1967.

CLAIMANT says she would have continued flying, but for

the no-marriage rule. The evidence does not indicate any

reason why she could not have easily continued flying but for

the rule. According to her testimony, however, she made no

protest at all about the rule, not even to her supervisor or

fiance. She lived in Los Angeles.

She had some college as well as her public relations skills

developed as a flight attendant, and lived in an area where it

would be expected that a variety of jobs might be available,

including at least the possibility of some interesting positions.

Yet she never attempted to find any other employment. In

addition, CLAIMANT testified that, taxwise, it would not have

made sense for her to work. Under all these circumstances, I

conclude that CLAIMANT would probably have quit work

even if the no-marriage rule had not been in effect.

3. Conclusions of Law

CLAIMANT is not a member of the class.

6la

4. Recommended Decision

I recommend that CLAIMANT, PATRICIA ELLEN

HODIAK not be reinstated as a flight attendant with defend-

ant, UNITED AIR LINES, INC.

PATRICIA ELLEN HODIAK,

BY: _ ELAINE E. BUCKLO

ELAINE E. BUCKLO

Special Master

Chicago, Illinois

May 6, 1983

62a

IN THE UNITED StTaTES District COURT

For the Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et al., >

and LIANE BUIxX MCDONALD, on her

behalf and on behalf of all

others,

Plaintiffs, | No. 70 C 1157

VS. Judge Moran

UNTIED Air LINES, INC.,

a corporation,

Defendant. J

SPECIAL MASTER’S REPORT AND RECOMMENDED

DECISION OF CLAIM OF

BARBARA THOMAS NOTCH, CLAIM NO. 183

Pursuant to the Order of Reference (10/27/82) and Rule

53 of the Federal Rules of Civil Procedure, for the reasons set

forth below, I recommend to the Court that the entitlement

claim of BARBARA THOMAS NOTCH (hereafter “CLAIM-

ANT”) against defendant, UNITED AIR LINES, INC. (here-

after “UNITED” ), be denied.

1. The Record

a. Summary of Pleadings—The pleadings consist of

CLAIMANT’s Statement of Claim and List of Witnesses and

Exhibits, UNITED’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

(hereafter “AFA”) to Statement of Claim.

CLAIMANT alleges that she married within 90 days of

her resignation and that on marriage she sought to transfer to a

ground position with UNITED. CLAIMANT seeks back pay

63a

(including interest and benefits) and reinstatement with resto-

ration of original seniority. UNITED denies the claim. AFA

also contests the claim.

b. Witnesses—CLAIMANT

c. Exhibits

No. Item

AFA Notch Ex. | Chart VI, Answers to _ Inter-

rogatories

I reviewed the transcripts of proceedings, documents,

opinions and other material designated by the parties, as listed

in the Appendix to the Summary Memorandum (7/1/83) filed

concurrently with this Report.

2. Material Facts

CLAIMANT began flying for UNITED in November,

1963. She was domiciled first in Washington, D.C., and then in

Los Angeles. CLAIMANT transferred to Chicago O’Hare in

September, 1967.

CLAIMANT met her husband in the summer of 1967.

They became engaged that fall and CLAIMANT applied for

transfer to a ground job in Milwaukee. She did obtain a

position as a ticket counter agent in downtown Milwaukee in

June, 1968. CLAIMANT did not like the hours because she

could not control the days she had off and left the job after

about six weeks. She obtained another job, with a local bank,

after that.

After CLAIMANT transferred from Los Angeles to

O’Hare, she lived at home with her parents in an area near

Milwaukee. She drove to and from O’Hare, working a three

day on, four day off schedule. CLAIMANT’s husband lived in

Pewaukee, Wisconsin, a small town west of Milwaukee. Pe-

waukee is between a 14% and 2 hour drive from O’Hare.

CLAIMANT’s husband was a livestock broker. He also sailed,

which was the reason CLAIMANT wanted weekends off.

64a

CLAIMANT left her flight attendant position in April,

1968. She married on May 25, 1968. CLAIMANT did not

protest the no-marriage rule with UNITED or with the union.

She did not file for unemployment compensation. After

listening to CLAIMANT’s testimony and considering the evi-

dence, I conclude that CLAIMANT would probably have left

her position as a flight attendant in April, 1968 even if the no-

marriage rule did not exist.

3. Conclusions of Law

CLAIMANT was employed by UNITED as a flight

attendant and resigned her position as a flight attendant for a

reason other than UNITED’s no-marriage policy. CLAIM-

ANT is not a member of the class.

4. Recommended Decision

I recommend that CLAIMANT, BARBARA THOMAS

NOTCH, not be reinstated as a flight attendant with defendant,

UNITED AIR LINES, INC.

ELAINE E. BUCKLO

Special Master

Chicago, Illinois

July 1, 1983

65a

UNITED STATES District Court

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et al., 5

and

LIANE BuIX MCDONALD, on her own

behalf and on behalf of all others,

Plaintiff,

in | No. 70 € 1157

UNITED AIR LINES, INC. a Judge Moran

corporation,

Defendant

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. -

SPECIAL MASTER’S

REPORT AND RECOMMENDED DECISION

CLAIM OF MARCEILLA BROWN BROWN,

CLAIM NO. 276

Pursuant to the Order of Reference (10/27/82) and the

applicable provisions of the Federal Rules of Civil Procedure,

for the reasons more fully set forth below, I recommend to the

Court that the entitlement claim of Marceilla Brown Brown

(hereinafter “Claimant”) against defendant United Air Lines,

Inc. (hereinafter “United”’), be denied.

1. The Record

a. Summary of Pleadings—The pleadings consist of

Claimant’s Statement of Claim And List of Witnesses and

Exhibits, United’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

{hereinafter “AFA”] To Statement of Claim. Claimant alleges

that she was married within 90 days of her termination from

66a

United (United and AFA deny knowledge or information

sufficient to form a belief as to the truth of that allegation);

Claimant further alleges that she sought other employment

before or within 90 days after her termination from United;

United denies and AFA contests that further allegation. Claim-

ant seeks back pay (including interest and benefits) and

reinstatement with restoration of original seniority. United

asserts: that Claimant failed to protest her termination at the

time she terminated her employment; that Claimant failed to

apply for a transfer to another position with United when she

terminated her employment as a flight attendant; that Claimant

failed to apply for unemployment compensation within 90 days

after terminating her employment; that Claimant changed her

residence upon marriage or within one year after marriage to a

location from which it would have been difficult if not impos-

sible to remain as a United flight attendant; and that Claimant

left the labor force within a finite period following termination

from United. AFA asserts: that Claimant failed to protest her

termination to United at the time she terminated her employ-

ment with them; that Claimant failed to apply for a transfer to

another position with United when she terminated her employ-

ment as a flight attendant; that Claimant failed to apply for

unemployment compensation at or about the time of her

termination; that Claimant changed her residence upon mar-

riage or within a finite period after marriage to a location from

which it would have been difficult if not impossible to remain as

a United flight attendant; and that Claimant left the labor force

within a finite period following termination.

b. Witnesses—Claimant.

67a

c. Exhibits—

Exhibit No. Item

Brown Plaintiff Various Orchid letters

Group Exhibit |

Brown Plaintiff Various Stewardess In-Flight

Group Exhibit 2 Observation Reports

Brown Plaintiff Three Letters Re Volunteer

Group Exhibit 3 Work for Red Cross

AFA Brown Notice of Employee Status

Exhibit |

AFA Brown 1968 W-2 Form For St. Anthony

Exhibit 2 Hospital

In addition to the foregoing, the parties designated, and |

reviewed various materials contained in the Orientation Kit

described in the Appendix to my Summary Memorandum

dated May 24, 1983, and served by James T. Otis, Special

Administrative Master on May 27, 1983.

d. Attorneys: Claimant was represented by Kaarina Salo-

vaara, United was represented by Steven Goldberg, and AFA

was represented by Peter Herman.

2. Material Facts:

Considering the testimony and documentary evidence ad-

duced at the hearing on June 27, 1983, and the various

documents (listed in the Appendix attached to the May 24,

1983 Summary Memorandum ) designated by the parties, I find

the following material facts:

Claimant (then Marceilla Faye Brown) began working as

a stewardess for United on December 9, 1964. She resigned on

March 28, 1968, and became married on April 22, 1968.

Claimant was aware of the “No-Marriage Rule” [{herein-

after “Rule”] when she became a stewardess.

At the time of her marriage, Claimant was domiciled in

San Francisco, California. Her husband and she had grown up

in a small town in Kansas. When they became married, they

68a

moved to Dodge City, Kansas, from which commuting to a

United domicile would have been difficult; no evidence was

given that indicates that such a commute would have been

endured.

Claimant did not apply for another position with United

when she resigned. In 1973, she did apply to them, but that

was apparently an after-thought when she accompanied a

young friend who wanted to apply to United; Claimant had not

even informed her husband that she would be making the

application and did not list that application on her Inter-

rogatory Answers.

Claimant claims to have worked full-time for about seven

months as a Nurses’* Aid shortly after leaving United; how-

ever, her W-2 indicates that only $785.06 was earned at St.

Anthony Hospital.

Claimant never applied to another airlines.

She apparently did not complain about having to resign

because of United’s Rule.

Claimant resigned from United simply because she had

decided to quit and move to a small town with her husband.

3. Conclusions of Law

Claimant was employed by United as a flight attendant

and resigned for reasons other than United’s Rule. Claimant is

not a member of the class.

69a

4. Recommended Decision

I recommend that Claimant Marceilla Brown Brown not be

reinstated as a flight attendant with Defendant United Air

Lines, Inc.

Bruce A. LEVIN

Bruce A. Levin

Special Master

Chicago, Illinois

July 9, 1983

70a

AFFIDAVIT OF SERVICE

I certify that I caused a copy of the foregoing document to

be served as indicated on each of the following addresses on

August 3, 1983.

BY MAIL

Paul M. Tschirhart, Esq.

United Air Lines, Inc.

P. O. Box 66100

Chicago, Illinois 60666

Stephen B. Moldof, Esq.

Cohen, Weiss & Simon

330 West 42nd Street

25th Floor

New York, New York 10036

Kenneth N. Flaxman, Esq.

55 East Monroe Street

Suite 4005

Chicago, Illinois 60603

Mark B. Bigelow, Esq.

10700 West Higgins Road

Rosemont, Illinois 60018

Elaine E. Bucklo, Esq.

Johnson & Buckio

30 North LaSalle Street

Suite 3200

Chicago, Illinois 60602

Bruce A. Levin, Esq.

IIT Chicago/Kent College of Law

77 South Wacker Drive

Chicago, Illinois 60606

Mayer G. Freed, Esq.

Professor

Northwestern University School of Law

357 East Chicago Avenue

Chicago, Illinois 60611

Tla

Arnold B. Kanter, Esq.

1226 Judson Avenue

Evanston, Illinois 60202

Joseph R. Lundy, Esq.

Schiff, Hardin & Waite

233 South Wacker Drive

Suite 7200

Chicago, Illinois 60606

BY MESSENGER

Thomas R. Meites, Esq.

Meites & Frackman

135 South LaSalle Street

Suite 1035

Chicago, Illinois 60603

Irving M. Friedman, Esq.

Katz, Friedman, Schur & Eagle, Chrd.

Seven South Dearborn Street

Suite 1734

Chicago, Illinois 60603

Calvin P. Sawyier, Esq.

Winston & Strawn

One First National Plaza

50th Floor

Chicago, Illinois 60603

Jeffrey D. Colman, Esq.

Jenner & Block

One IBM Plaza

44th Floor

Chicago, Illinois 6061 1

JAMES T. OTIS

James T. Otis

Special Administrative Master

72a

UNITED STATES DISTRICT COURT

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et al.,

and

LIANE BuIxX MCDONALD, on her own

behalf and on behalf of all others,

Plaintiff,

o No. 70 C 1157

UNITED AIR LINES, INC. a Judge Morar

corporation,

Defendant

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. }

— Yr Ch

SPECIAL MASTER’S

REPORT AND RECOMMENDED DECISION

CLAIM OF LINDA WILLIAMS ANDREWS,

CLAIM NO. 472

Pursuant to the Order of Reference (10/27/82) and the

applicable provisions of the Federal Rules of Civil Procedure,

for the reasons more fully set forth below, I recommend to the

Court that the entitlement claim of Linda Williams Amirews

(hereinafter “Claimant”) against defendant United Air Lines,

Inc. (hereinafter “United”’), be denied.

1. The Record

a. Summary of Pleadings—The pleadings consist of

Claimant’s Statement of Claim And List of Witnesses and

Exhibits, United’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

[hereinafter “AFA”] To Statement of Claim. Ciaimant alleges

73a

that she was married within 90 days of her termination from

United , United and AFA deny knowledge or information

sufficient to form a belief as to the truth of that allegation);

Claimant further alleges that: upon marriage, she sought trans-

fer to ground employment with United; and she made contem-

poraneous protest to her supervisor or United management

about her dissatisfaction with the No-Marriage Rule (here-

inafter “Rule”); United denies and AFA contests both further

allegations. Claimant seeks back pay (including interest and

benefits) and reinstatement with restoration of original senior-

ity. United asserts: that Claimant failed to protest her termina-

tion at the time she terminated her employment; that Claimant

failed to seek other employment outside the company at or

about the time of her termination; that Claimant failed to apply

for unemployment compensation at or about the time of her

resignation; and that Claimant never again applied for employ-

ment as a flight attendant. AFA asserts: that Claimant failed to

seek other employment outside the company at or about the

time of her termination; that Claimant failed to apply for

unemployment compensation at or about the time of her

termination; that Claimant failed to obtain full-time employ-

ment within a finite period following termination; that Claimant

never again applied for employment as a flight attendant; and

that Claimant left the labor force within a finite period follow-

ing termination.

b. Witnesses—Claimant.

c. Exhibits—None.

The parties designated, and I reviewed various materials con-

tained in the Orientation Kit described in the Appendix to my

Summary Memorandum dated May 24, 1983, and served by

James T. Otis, Special Administrative Master on May 27, 1983.

d. Attorneys: Claimant was represented by Raymond T.

Reott, United was represented by Mary A. Martin, and AFA

was represented by Mark Bigelow.

74a

2. Material Facts:

Considering evidence adduced at the hearing on August 4,

1983, and various documents (those listed in the Appendix

attached to my May 24, 1983 Summary Memorandum, and

those designated in my subsequent Summary Memoranda filed

along with my decisions rendered after that date) designated

by the parties, I find the following material facts:

Claimant (then Linda Williams) began working as a

stewardess for United on September 15, 1965. She resigned on

December 15, 1967 and became married on March 2, 1968.

Claimant was aware of the Rule when she worked for

United.

Claimant was first domiciled in Chicago and then trans-

ferred to Los Angeles; Claimant’s first choice would have been

Los Angeles in order to be near her family and boyfriend in San

Diego (where United did not have a domicile) but Los Angeles

was not available because of her lack of seniority. Therefore,

she began in Chicago and transferred after six months in order

to achieve her original plan.

She started dating her future husband, William Andrews,

in 1963 and was dating him exclusively when she became a

flight attendant. She became engaged in November, 1967.

They married in March, 1968. Claimant’s fiance and Claim-

ant’s family lived in San Diego, and she spent 75% of her time

off there. She says she left, earlier than her marriage would

have required, because of family pressure; her brother was

leaving for Viet Nam, and her family wanted everyone together

for Christmas. She does not recall how she had bid her

December schedule. Her explanation is not persuasive—if

Claimant was close to her family, knew her brother was going

to Viet Nam, and spent 75% of her time off in San Diego, then

she should have bid a convenient schedule (assuming her

seniority was good when she left, as she claimed it was) if that

was a compelling desire. Even if she neglected to do so, or was

75a

unable to, it seems that she would recail that fact if it was so

much a factor in her leaving her job earlier than necessary (that

assumes the job meant as much to her as she insists).

Claimant maintains that if no Rule existed she would have

lived in San Diego and commuted to Los Angeles. A flight took

less than one-half hour and cost $6.35 one way. She claims that

she would have had to make only two trips per week. She

argues that spending so much of her time off in San Diego

proves that she would have made the commute. It proves the

opposite; spending so much of her time off in San Diego does

establish her desire to be there, as does her transfer from

Chicago to Los Angeles to be near her boyfriend and family;

however, living in Los Angeles for more than one and a half

years despite such strong ties to San Diego establishes that she

would not commute from San Diego. She did not do so even

though she spent the vast bulk of her time in San Diego when

she could; obviously, she found it necessary or extremely

desirable to live in Los Angeles when working there for United.

When resigning, she asked about ground employment in

San Diego but was informed that no jobs were available.

About five and a half months after leaving United, she obtained

a full-time job at a restaurant. It was advertised as a

secretarial/receptionist job, but did not meet that description,

and she quit after about five months.

She obtained employment again in January, 1969, as

manager for a mailorder sportswear company. That was not

full-time employment, but she did work almost every day; the

hours varied. She left that job at the end of 1972 when the

business closed.

Claimant learned, early in 1969, that United had abro-

gated its Rule. She did not inquire into her eligibility and did

not apply for reinstatement or for becoming a new hire.

In 1976, Claimant became divorced and then applied to

United for a flight attendant position; she was not hired.

76a

Claimant did not seek unemployment compensation after

leaving United and did not file a grievance with the union

(however, she was not a member) or protest to the EEOC or

any governmental agency.

Claimant was a United flight attendant for about two years

and three months. When she began with United, she was

dating her future husband. That relationship was serious, and

she transferred domiciles from Chicago to Los Angeles in order

to be nearer to him and her family. She continued to live in Los

Angeles while a flight attendant, despite the fact that she spent

75% of her time off in San Diego. When she moved to San

Diego upon marriage, she would not have commuted to Los

Angeles even if possible to continue with United. When

Claimant learned about the abrogation of United’s Rule, she

did not contact United about reinstatement or rehiring. In

1976, she did apply to United to become a flight attendant, but

that was only after she had become divorced. Claimant

resigned for reasons other than United’s Rule.

3. Conciusions of Law

Claimant was employed by United as a flight attendant

and resigned for reasons other than United’s Rule. Claimant is

not a member of the class.

4. Recommended Decision

I recommend that Claimant Linda Williams Andrews not

be reinstated as a flight attendant with Defendant United Air

Lines, Inc.

Bruce A. LEVIN

Bruce A. Levin

Special M.ster

Chicago, Illinois

September 20, 1983

77a

UNITED STATES DISTRICT COURT

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, et |

al., and LIANE BuIx MCDONALD, on

her own behalf and on behalf of all

others,

Plaintiff,

VS. : No. 70 C 1157

UNITED AIR LINES, INC., a Judge Moran

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. }

SPECIAL MASTER’S REPORT AND

RECOMMENDED DECISION;

CLAIM OF DEANNA DORSEY SCHULZE,

CLAIM NO. 547

Pursuant to the Order of Reference (10/27/82) and the

applicable rules of the Federal Rules of Civil Procedure, for the

reasons more fully set forth below, I recommend to the Court

that the entitlement claim of Deanna Dorsey Schulze (here-

inafter “Claimant”) against defendant United Air Lines, Inc.

(hereinafter ““United”’), be denied.

1. The Record

a. Summary of Pleadings. The pleadings consist of

Claimant’s Statement of Claim and List of Witnesses and

Exhibits, United’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

(hereinafter ““AFA”) to Statement of Claim. Claimant con-

tends she worked as a United flight attendant from October 31,

1963 until late October 1965, and that she married on April 16,

78a

1966. She further contends, and United and AFA deny, that

upon marriage she sought transfer to a United ground job, and

sought other employment within 90 days after termination.

Claimant seeks back pay (including interest and benefits) and

reinstatement with restoration of original seniority. United

asserts in Opposition to the claim that Claimant failed con-

temporaneously to, protest her termination, failed to seek other

employment outside United after termination, and failed to

apply for unemployment compensation; that she changed her

residence upon marriage to a location from which it would have

been difficult or impossible to remain a United flight atten * ont;

that Claimant never again applied for employment as a flignt

attendant; and that Claimant left the labor force within a finite

period after termination. AFA asserts essentially the same facts

as United in opposition to the claim.

b. Witnesses. Claimant; and Cyril H. Schulze, Claimant’s

husband.

c. Exhibits. None.

d. Other Materials. In addition to the foregoing, the

parties designated and I reviewed the transcripts of testimony

and documentary exhibits from other court proceedings in this

action, all as listed in the Appendix to the Summary Memo-

randum (9/2/83) filed concurrently with this report.

2. Material Facts

I find the following material facts from the testimonial and

documentary evidence adduced at the hearing on this claim on

August 12, 1983.

Claimant (then Deanna M. Dorsey) worked as a United

flight attendant from October 31, 1963 to October 3!, 1965.

Claimant met Cyn H. Schulze in March of 1965 while he was

employed as a senior field engineer for the Federal Aviation

Administration based in New York City. Claimant dated Mr.

Schulze casually (3-4 times) during the summer of 1965. They

decided to marry in late August or early September of 1965,

and became formally engaged in December of 1965. When

79a

Claimant and Mr. Schulze discussed their marriage plans, they

did not discuss Claimant’s career plans, because, as she testi-

fied, she did not project any such plans at that time.

In September of 1965, after Claimant had decided to

marry, she asked her supervisor to find out about the possibility

of a ground job in Cleveland, Ohio. Cleveland was not then a

domicile for United flight attendants, but it was to be the next

place her husband was to be assigned in his FAA job.

Following her inquiry, Claimant obtained a ground job with

United in Cleveland.

Based on my observation of Claimant during her testi-

mony, I find that she resigned her job as a United flight

attendant in order to be able to live with her future husband in

Cleveland, the new site of his employment, and not because of

United’s no marriage rule. I find that Claimant was committed

to her impending marriage, and that this, along with relocation

to the Cleveland area which it required, was the reason for her

resignation as a flight attendant.

3. Conclusions of Law

Based on the foregoing findings of fact and the applicable

legal principles as set forth in the Order of Reference and

elsewhere, I reach the following conclusions of law.

Claimant resigned as a United flight attendant for reasons

other than the no marmiage rule, and is not a member of the

class.

4, Recommended Decision

I recommend that Claimant Deanna Dorsey Schulze not

be reinstated as a flight attendant with defendant United Air

Lines.

JOSEPH R. LUNDY

Joseph R. Lundy

Special Master

Chicago, Illinois

September 2, 1983

80a

UNITED States District Court

Northern District of Illinois

Eastern Division

CAROLE ANDERSON ROMASANTA, ét al., :

and

LIANE Burix MCDONALD, on her own

behalf and on behalf of all others,

ites No. 70 C 1157

VS.

Judge Moran

UNITED Air LINES, INC., a

corporation,

Defendant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor. J

SPECIAL M\STER’S REPORT AND

RECOMMENDED DECISION;

CLAIM OF LYNNE RUNYON OVERTON,

CLAIM NO. 677

Pursuant to the Order of Reference (10/27/82) and the

applicable rules of the Federal Rules of Civil Procedure, for the

reasons more fully set forth below, I recommend to the Court

that the entitlement claim of Lynne Runyon Overton (here-

inafter “Claimant”) against defendant United Air Lines, Inc.

(hereinafter “United”), be denied.

1. The Record

a. Summary of Pleadings. The pleadings consist of

Claimant’s Statement of Claim and List of Witnesses and

Exhibits, United’s Answer to Statement of Claim, and the

Responsive Statement of Association of Flight Attendants

(hereinafter “AFA”) to Statement of Claim. Claimant con-

8la

tends she worked as a United flight attendant from July 28,

1965 until April 1, 1967, and was married on April 8, 1967.

Claimant further contends, and United and AFA deny, that on

marriage she sought transfer to a United ground job, and

sought other employment within 90 days after termination.

Claimant seeks back pay (including interest and benefits) and

reinstatement with restoration of original seniority. United and

AFA assert in opposition to the claim that Claimant failed

contemporaneously to protest her termination; failed to apply

for unemployment compensation following termination;

changed her residence upon marriage to a location from which

it would have been difficult or impossible to remain a United

flight attendant; never again applied for employment as a flight

attendant; and left the labor force within a finite period after

termination.

b. Witnesses. Claimant

c. Exhibits.

Exhibit No. Description

Overton Plaintiff's Exhibit

No. | Excerpts of 1967-69 Agree-

ment between United and

ALPA relating to leaves of ab-

sence

d. Other Materials. In addition to the foregoing, the

parties designated and I reviewed the transcripts of testimony

and documentary exhibits from other court proceedings in this

action, all as listed in the Appendix to the Summary Memo-

randum (10/7/83) filed concurrently with this report.

2. Material Facts

I find the following material facts from the testimonial and

documentary evidence adduced at the hearing on this claim on

September 30, 1983.

Claimant (then Lynne P. Runyon) began flying with

United in July of 1965 and left that job on April |, 1967.

82a

Claimant was first domiciled in Detroit, and transferred to Los

Angeles in May of 1966.

Claimant met Peter Wood in 1963 while she was a student

in high school and he was attending Pasadena City College.

They began to date exclusively and became engaged in May of

1966, when Claimant changed her United domicile from De-

troit to Los Angeles.

In May of 1966 when they became engaged, Claimant and

Mr. Wood did not set a date to be married because Mr. Wood

had just graduated from college and knew that he would soon

be drafted or would have to enlist in the armed forces. In

August of 1966, after having been told that he would be

assigned to a position in finance and would not be stationed

overseas, Mr. Wood enlisted in the U.S. Army.

In February of 1967 Mr. Wood learned that he would not

be assigned to a finance unit, but would be assigned to the

infantry. This assignment made it clear to Mr. Wood, and he

communicated to Claimant, that after completing infantry

training he w

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