Reply Brief for the Petitioner — United Air Lines, Inc. v. Sprogis

supreme _— Vows

LIBRARY ei:

a SEF ENE COURT. Ug nov_ 9 197)

ie E. ROBcRI SEAVER, CL

IN THE

Supreme Court of the Gnited States

Octroszr Term, 1971.

No. 71-468

UNITED AIR LINES, INC.,

Petitioner,

v8.

MARY BURKE SPROGIS, *

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPPALS FOR THE SEVENTH CIRCUIT.

REPLY BRIE¥ FOL PETITIONER.

ae

H. Temprtzton Brown,

Stuart Beansrern,

Aztruueg J. Kowrrt,

231 South LaSalle Street,

Chicago, Illinois 60604,

Counsel for Petitioner. © *

Of Counsel:

Mayer, Brown & Part,

231 South LaSalle Street,

Chicago, Illinois 60604.

IN THE

Supreme Court of the Guited States

Octozer Term, 1971.

No. 71-468,

UNITED AIR LINES, INC.,

Petitimer,

vs.

MARY BURKE SPROGIS,

Respondent.

ON PETITION FOR A IT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THB SEVENTE CiRCUIT.

REPLY BRIEF FOR PETITIONER.

-_

I.

a. In an obvious attempt to change the facts of this

case to fit those of Phillips v. Martin Marietta Corp., 400

U. S. 542 (197 1)—where females with pre-school age chil-

dren were ineligible for employment but males were

eligible for the same job without regard to age of their

children—respondent now argues that the job classification

under consideration here is not that of 4900 stewardesses

but also includes the 116 male stewards used solely on

overseas flights. ‘‘The actual employment of male stewards

serving essentially the same functions as stewardesses

2

maxes factually inaccurate United’s contention that ‘stew-

ardess’ is a unique occupational grouping.’’ (Resp. Br. 11.)

But this is not the argument respondent made to the

Court of Appeals; and the Court majority did not decide

this case on the assumption that males and females occupied

the same position. Further, if this new contention is now

considered to be relevant by respondent, then additional

disputed facts are raised which cannot he disposed of

summarily against United.

We noted in our petition that counsel for respondent,

in response to a question from the Court of Appeals

during oral argument, replied that if female sex was a

BFOQ for. the position of stewardess, then the no-marriage

rule would not violate the Act. (Pet. 15.) But that answer

is completely irconsistent with the argument now raised

that the classification included both males and females.

The majority of the Court decided the case on the as-

sumption that stewardesses occupied a unique classifica-

tion. The basis of its opinion in this area was not that

males were employed in the same classification, but rather

that the no-marriage rule was not applied to any male

in United’s employ, including male flight personnel.

(Opinion, Pet. A16.) ‘‘Considerations of the peculiar

characteristics of the position only pertain to the claim of

a bona fide occupational qualification under Section

703(e)(1).’? (Opinion, Pet. A17.) Although we consider

this statement to be a misreading of the Act, it hardly

suggests an acceptance of the argument that the position

included males and females.

In any event, United’s affidavits spelled out in detail

the differences between the job of the male steward em-

ployed solely cn Hawaii flights and charter flights for the

United States Military Airlift Command and that of stew-

ardess. The steward stows baggage, cleans the cabin,

3

lounges and lavatories of planes. On the Hawaiian oper-

aticn, he must have spent a minimum of ten years as a

resident of the Islands and have acquired an understanding

of Hawaiian culture and tradition so that he can answer

questions and volunteer information on the Islands. To

add to this ‘‘color’’ he wears native Island dress. He does

not displace a stewardess, but is additional personnel on

these flights, and his presence does not affect the duties

of the stewardess. He is never used on domestic flights.

He is covered by separate collective bargaining agreement.

He is carried in a separate classification, has a separate

job description, and is under separate supervision. (App.

67-71, 72, 81.)

None of these facts were disputed by respondent. If

respondent now contends the two jobs are really the same,

that issue certainly cannot be resolved against United

on summary judgment.

b. In attempting to state United’s positon on the female

sex BFOQ issue, respondent writes: ‘‘[United] argues

that summary judgment on the issue of sex as a BFOQ

was unjustified. Such an argument was rejected by both

the majority and minority in the Court of Appeals and

is in conflict with the Supreme Court holding in Phillips.’’

(Resp. Br. 12.)

The majority did not reject the argument; it simply

avoided it. Knowing full well that che issue of sex as a

BFOQ could not be decided on summary judgment since

it clearly raised disputed issues of fact and required an

evidentiary hearing under Phillips, the majority found ‘‘it

unnecessary to consider the validity of United’s claim

that sex constitutes a bona fide occupational requirement

for the job of airline stewardess.’’ (Opinion, Pet. A17.)

Judge Stevens never reached the question of female

sex as a BFOQ since he found there was no violation of

+

Section 703(a)(1) in the first instance; hence there was

no necessity for reaching the BFOQ defense under Section

703(e). ‘*. . . United did not violate § 703(a)(1) by

discharging plaintiff from a position which she could not

have retained if she had been a man.”’ (Min. Opinion, Pet.

A32.)

Once the majority rejected J ndge Stevens’ point, then

the BFOQ issue had to be faced. The refusal of the

majority to consider whether female sex was a BFOQ

for the position of stewardess and the propriety of sum-

mary disposition of the question by the trial court, because

it was ‘‘unnecessary’’ (Opinion, Pet. A17), is precisely

what has created the confusion over the meaning of the Act

described in the petition. (Pet. 12-16.)

Respondent now seeks to rectify this patent defect by

trying to change the facts.

I.

In support of its argument that the General Counsel

opinion upon which United claims reliance did not meet

the requirements of Section 713 (b), respondent cites Local

189, United Papermakers and Paperworkers vy. United

States, 416 F. 2d 980 (C. A. 5, 1969), cert. den. 397 U. §.

919 (1970). (Resp. Br. 15-16.)

There the Court noted that the letter upon which reliance

was claimed was not written by the General Counsel of

the Commission and was not designated as an opinion

letter. 416 F. 2d at 997.

The letter relied upon by United was written by the Gen-

eral Counsel of the Commission and was designated as an

‘‘opinion.”’

The Court in Local 189 noted that a broader reading of

the Commission’s regulation ‘‘might bind the Commission

to informal or unapproved opinions volunteered by mem-

bers of its staff.’? (416 F. 2d at 997, emphasis added.)

5

Here the Commission published the digest of the opinion

on two occasions and stated in its own publication that it

was “‘specifically adopted by the Commission.’? (Pet. 18.)

Local 189 is not very good authority for respondent’s

position.

United relied on a letter written by the General Counsel

of the Commission, designated as an “fopinion’”’ and spe-

cifically adopted by the Commission. The Commission can-

not abandon that document after such reliance by

claiming it was only an ‘‘internal memorandum,”’ or that

it was designated as a ‘‘General Counsel Opinion,’’ and

not ‘‘General Counsel Opinion Letter,’’ or by publishing

an after-the-fact disclaimer in the Federal Register. (See

Pet. 23, n. 7.) ;

ITI.

a. Respondent now Suggests that it is premature for

this Court to consider petitioner’s contention that it would

be improper to convert an individual claim into a class

action after judgment. The Court of Appeals ‘‘merely

allowed the court to proceed to hear arguments and evi-

dence, ‘including references to the safeguards of Rule 23

..’’? (Resp. Br. 20.) Perhaps, argues respondent, the

relief will be ultimately limited to Mrs. Sprogis, in which

event the ‘‘issue will be mooted.’’ And if not, then United

can ‘‘again petition this Court for ccrtiorari,”’ (Resp.

Br. 20-21.)

But the question is not whether United can raise argu-

ments on remand and contest the propriety of class relief.

The question is whether the issue is the same after judg-

ment. The critical ‘‘safeguard’’ of Rule 23 is that the

ee

6

determination of all questions of the propriety of the

class action, and its composition if class action is appro-

priate, be made before judgment. For then the outcome

is in doubt and risk of defeat and its attendant sharing

of cost is on the putative class members. The considera-

tions are not the same after judgment when ihe risk has

been removed.

b. Title VII of the Civil Rights Act of 1964 imposes an

obligation upon claimants to come forward within pre-

scribed time limits. See section 706(d), (e). This require-

ment for each claimant may be waived, at least as to

equitable relief, in an appropriate class action instituted

by a representative who has satisfied the time limits and

other jurisdictional requirements. But when the class

representation is not asserted until after judgment, the

passage of time is critical to a defendant who finds the

number of claimants expanded far beyond his expecta-

tions based on a reading of the statute and Rule 23.

A defendant is entitled to know before trial precisely the

scope of potential liability.

The effect of the class inquiry after judgment is to

toll retroactively the statutory period for non-litigants

who may now come in risk free, but with respect to whom

the statutory time limits had already run.

e. If the trial court is empowered to make the inquiry

after judgment as to whether relief should be extended

to others, it must have the power to grant such relief.

But this is in direct conflict with Danner v. Phillips

Petroleum Co., 447 F. 2d 159 (C. A. 5, 1971), a case fully

7

discussed in the Petition, 26-27. Respondent makes no

attempt to distinguish this case. In fact, it is not even

mentioned in the Opposition Brief.

Respectfully submitted,

H. Tempteton Brown,

Stuart BesnsTein,

Artaur J. Kowrrt,

231 South LaSalle Street,

Chicago, Illinois 60604,

Coumsel for Petitioner.

Of Counsel:

Mayer, Brown & Pratt,

231 South LaSalle Street,

Chicago, Illinois 60604.

November 9, 1971.