Petition for Writ of Certiorari — Abate v. Pittsburgh Plate Glass Co.

AUG B 1974

j ~ WIUCHAEL HOGAK, JR..C! cax

Ix THE a Re

Supreme Cot of the United States

OQeroner Teno, 1974

No. 74- 74 = 64 ‘

Marie Aware, ef al...

Petitioners,

Vs.

Prrrspurcu Phare Guass Company, ef al.,

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Jaxe M. Picker

Rita Pace Reuss

CHARLES E. GUERRIER

Lispetu A. Moopy

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Martix Lvrow

3630 Mellon Bank Building

si 525 William Penn Place

7. Pittsburgh, Pennsylvania 1521)

Euizasetn R. Rixpskorr

253 Blake Road

WMamden, Connecticut 06517

(203) 777-7601

Attorneys for Petitioners

——— __——_———

————————————__ ee

mi

Certificate of Service

INDEX

PAGE

J SASS SSIS att et al Oe en CE 1

oi cc. EES Pe Lhe POA SOON ARR 2

tiga ail oe oc Een ep RENEE OEE EEE ee 2

Statutory Provisions Tnvolved ooo cceececcceeeceeeee 3

Ge RE gO UEG ea ae 3

Reasons for Granting the Writ 0.000.000.0000. 9

A. The Settlement Is Inadequate 00000000. 9

B. The Court Below Erred in Denying Petition-

ers the Opportunity to Opt Out of the Settle-

ROUEN stapes tc ids roel sitsanesoraaasadabbliicinenianninnedaes dllleanacaninen 18

UNIO 9h dt Si halen cased ices yanlxioscpushwasmieniiannnsaiatorasshisnad 23

APPENDIX—

Opinion of the Court of Appeals 0.00. la

Opinion of the Court of Appeals on denial of

motion for rehearing and for rehearing ex bane 1a

Judgment and Mandate of the Court of Appeals ... 12a

Opinion of the District Court

Rule 23, Federal Rules of Civil Procedure ........... 20a

Tithe VIT 6f the Civil Rights Act of 1964, 42 United

PRI AGU, TI, ERO, oasis cannnvarnconsenccacecsinoesenenee 24a

li

PAGE

TABLE or Cases

shir Line Stewards aud Stewardesses: Assn. Laval 330

Ve damerican Nirlius, Tne. 4900 Pit 6360 (7th Cir,

1905). cert. denied sub wom Aer Line Stewards aud

Stew ardesses wlssn, Local 50 ¥; Zipn soo U.S.

wees 5, Pk! SNe RECT mate patel Setasninnescereucceti ae

Bowe v, Colgate-Palmolir, Co., 416 F.2d 711 (7th Cir.

WP saeco oie saaiccns hacen aS ag a: 14,17

Eisen vy, Jacqueline & Carlisle, —— U.S. —— (1974) 21

Griggs v. Duke Power Co,, 401 U.S, 424 (1971) 0... 12

Heady. Timken Roller Be aring Co. AS6 F.2d 870 (6th

pola sic) He oO RET Te 17

Johnson vy. Georgia High way Express, Inc., 417 F.2d

RUS2 (Sth Cir, W9G9) oss ccseeeese 2]

Johusony. Goodyvar Tire & Rubbi rCo., 491 F.2d 1364

pigeon stig: Se ceases LN en 17, 20

BON ivisbvnnaooimansen nan a cl na os 14,16

Kober v. Westinghouse Elcctric Corp., 480 F.2d 240

canons eosin BO a me LEN Hao ne RE 16,18

LeBlane v. Southern Bell T, lephow & Telegraph Com-

pany, AV Fed 1228 (Sth Cir. 1972), cert. denied, 409

atte a Re eT 9 ee SME A Sig 17,18

Manning v. General Motors Corp., 466 F.2d 812 (6th

PRMD ecccetrenn eae ee het ea 17,18

lil

PAGE

Michel v. South Coreliva State Employmeiat Service,

oe Bid 250 (4th Cir, 1967), cert. denied. 389 U.S.

WO RUE a sscrencsisea nik oa aaa 16

Mood: th Alhi martes Paper (Co., 474 F.2d 134 (4th Cir.

Newman ve Piagie Park Luterprises, 390 US. 400

[ged a LOREAL IEEE OLDS WEL Ce NON EN EET 17

Newman v. Sicin: 45 bP .2d GSO (2nd Cir. 1972) See ee 19

Veuwirth vy. Allen, —— ¥. Supp. —-- (S.D.N.Y. 1964),

afd 338 F.2d. (2nd Cir, 1964) oe. oan 19

Pettway vx. American Cast Iron Pipe Co., 494 F.2d 211

RPG RN pease ceteas Seabed et aseee ea ers 17

Protective Committee for Independent Stockholders of

TMT Ferry Inc. vy. Anderson, 390 U.S, 414 (1968) ...9, 19

Robinson v. P. Lorrilard Cory., 444 F.2d 791 (4th Cir.

1901). cert. denied, 406 US. 906 (1972) oo. 14,16

Rosen v. Public Service Electric and Gas Co., 477 F.2d

a OUI a gee 16

Rosenfeld v. Southern Pacific Ceca 295 F.Supp.

1219 (C.D. Cal. 1968) af’d in part, 444 F.2d 1219

RUE SAN MOU Gece ation ic ee uemameceimasicnn 14, 15,17

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

See ON ee er eee Halon nie 14

Weeks v. Southeru Bell Tdeploue & Telegraph Com-

pany, 408 F.2d 228 (Sth Cir, 19GB) oon cccnccecrcccccsneses 14

Williamson v. Bethlehem Steel Corp, 468 ¥F. od 1201

fh NRE ile alien Goll rt AEA EA Ie

Young v. Katz, 447 F.2d 431 (Sth Cir. 1971)

iv

PAGE

CONSTITUTIONAL AND STATUTORY Provisions

Fifth Amendment to the United States Constitution ...18, 21

42 United States Code, Section 2000a-3(b) oo... 17

42 United States Code, Section 2000e, ef seq. 0.0.2... passim

Rule 23, Federal Rules of Civil Procedure 2.000000... passim

IN THE

Supreme Court of the United States

Ocroper Term, 1974

No. 74-

Manire Apate, ef all...

Petitioners,

vs.

PirrspurcH PiLatre Griass Company, ef al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

;UNITED STATES COURT OF APPEALS

i FOR THE THIRD CIRCUIT

Petitioners pray that a writ of certiorari issue to the

United States Court of Appeals for the Third Circuit to

review the judgment entered in the above-entitled case on

April 4, 1974, rehearing of which was denied May 7, 1974.

Gpinions Below

The opinion of the United States Court of Appeals for

the Third Circuit is reported at 494 F.2d 799 (1974) and set

forth in the appendix, ixfra, at pp. la ff. The order deny-

ing rehearing and rehearing en banc is as yet unreported;

it is set forth in the appendix, infra, at pp. 11-a ff. The

opinion of the United States Distriet Court for the Western

District of Pennsylvania is reported at 59 F.R.D. 616 (June

2°

12, 1972) and is set forth in the appendix, infra, at pp.

14-a ff.

Jurisdiction

The juggment of the United States Court of Appeals for

the Third Cireuit was entered on April 4, 1974 and motion

for rehearing was denied on May 7, 1974.

The jurisdiction of this Court is invoked pursuant to the

provisions of 23 United States Code, Section 1254(1), re-

view of a judgment of the United States Court of Appeals

for the Third Circuit having been requested.

Question Presented

1. Did the court below err in upholding the district

court order, approving the compromise and settlement of

ali issues in this class action claiming sex discrimination

under Title VII of the Civil Rights Act of 1964 (42 United

States Code, § 20002, et seq.) where:

A. One fifth of the members of the class and one

quarter of those with timely charges filed with the

Equal Employment Opportunity Commission objected

to the terms of the settlement; and

B. Only a small percent of one of three elements

of relief prayed for was realized under the terms of

the settlement; and

C. The only opportunity class members had to ex-

clude themselves from further participation in the ac-

tion came immediately prior to trial and made no

mention of the fact of or terms of settlement discus-

sions,

3

Statutory Provisions Involved

1. This case involves the provisions of Rule 23, Federal

Rules of Civil Procedure, fully -et forth in the appendix,

wfra, at p. 20-a ff.

2. This case also involves various provisions of Title Vil

of the Civil Rights Act of 1964. 42 United States Code,

© 20000, ef seq., relevant portions of which are fully set

forth in the appendix, (vfra at p. 24a ff.

Statement

Petitioners here constitute approximately one fifth of

the original class of plaintiffs in this action, who sought

to object to the settlement of this action when first pro-

posed in the district court in January of 19732

The facts underlying this action for sex discrimination

under Title VII of the Civil Rights Act of 1964 (hereafter

“Title VII") actually arose much earlier in the 1940's.

At that time, respondent Pittsburgh Plate Glass (hereafter

“PPG”") was, as it now is, engaged in the fabrication of

glass products at the Creighton, Pennsylvania plant. Be-

ginning in 1942 cach of the plaintiffs sought and obtained

work at the Creighton plant. As hourly employees of

PPG's Creighton plant, each of the plaintiffs was also rep-

resented by the respondent union here, in a series of col-

lective bargaining agreements extending to the present

time,

By the early 1950's, PPG had found it necessary to begin

laying off employees in their order of seniority. The class

During the course of these proceedings the exact number of

plaintiffs objecting to the settlement has varied. The percentages

have remained the same. and therefore do not significantly alter

the percentages here.

4

of plaintiffs in the present action, with seniority dates

ranging from \ugust 12, 1748 to August 2, 1951, were

accordingly affected by these lay-otis, together with numer-

ous of their male counterparts,

The late 1950's and early 1960's saw Increased produc-

tion at the PPG Creighton plant. Accordingly furloughed

employees were recalled in order of seniority, until by 1966

each furloughed male employee had been recalled to the

Creightor plant. However, none of the original 452 women

who comprised the original cinss of plaintiifs in this action

were recalled. And when, in 1966. PPG began to hire new

employees at the Creighton plant, all of those hired were

male, while the 452 furloughed women remained unem-

ployed.’

Contemporaneously with the recall process affecting male

employees, PPG also sought in the early 1960's to alter

the seniority provisions in the collective bargaining agree-

ment which guaranteed enplovees on layoff “perpetual”

seniority. Thus, in 1962 PPG sought io alter its seniority

system by adding a provision to the collective bargaining

agreement which would automatically terminate anyone

on lay-off for more than two years; a similar five vear

cut-off provision Was proposed in 1964. Each of these pro-

posals would have operated to “ rminate men, as well as

women then on lay-off. Both proposals were rejected by

the unions. Finally, on August 14, 1968, PPG and the

unions agreed to a “seniority cut-off” in the collective bar-

gaining agreement then being negotiated. That agreement

ended the former “perpetual seniority’ system and caused

the tmmediate discharge of any person not actively em-

ployed with the company within the five years preceeding

the date of the agreement. The direct result of this agree-

* PPG hired its last woman into a bargaining unit position in

1951. Appendix, vol. Tat p. 43 ia the court below, No. 73-1697.

5

ment was the termination of the 452 women employees

who form the class of pluintiti’s in this action. No men were

terminated as a result of the agreement.

Notification of the terminations caused by the new senior-

ity system came by letters daicd September 26, 1968, Upon

receipt thereol, some 51 women filed timely charges of sex

discrimination with the Equal Employment Opportunity

Commission (hereafter “Mm focC') 4 The EEOC began in-

vestigation of the charges, but ultimately refused to reach

a determination op the issue of whether PPG and the

unions had violated Tithe VIPs eonsmand against sex dis-

crimination. Instead, tae ENOC notified each of the charg-

ing parties of her right to sne in federal eourt.®

This action was timely begun after receipt of a right to

sue letter on August 4, 1970. Plaintiffs sought full relief

for the sex discrimination practiced by the company and

the unions, Both defendaw's immediately moved to dismiss

the suit on grounds that plaintiffs had failed to file timely

charges of discrimination with the EEOC." This motion

* During this period, wonien eprplos ees constituted between 22

and 25%) of the toons decal membership. Appendix. vol. TT at

p. V1) in the court below, No. 73-1697.

* Rach such charge was properly lodged with the EEOC within

90 days of the respective charging party’s reecipt of her letter of

terinination,

Ths EROS failnre to reach a determination in the present

set of charges was the result of a conflict oceasioned by the Com-

Missions position in a seeond set of sex discrimination charges

filed by active PPG employees. These fifteen charges, filed in 1966,

claimed diseriinination in the company’s policy of limiting jobs

to one sex. These charges were ultimately resolved in an EEOC

conciliation execute! on Novon der 18. This agreement opened

sone. but not al. formerly malo Jobs. Those jobs which continued

to be restrieted to mien onty were agreed by all parties to be jobs

that only tied could adequete © perform. Naturally. none of the

presont class of plaintuts was present during these proceedings.

’

"42 United States Code, 250d) required. prior to its 1972

amendment. that elarges of discrimination be lodged with the

EEOC within 90 days of the date of the act complained of.

6

was denied by order of the district court entered April

21, 1971. On July 15, 1971, following initiation of pre-

trial discovery, the action was certified as a class action

under Rule 23(b)(2), with notice waived. That order

was later amended in 1972, when the action was again cer-

tified for class treatment, this time under Rule 23(b)(3).

The required notice for a 2?3(b)(3) class was given to

each of the 492 elass members force tiest dine on July 31,

W72. That notice contained the proposed date of trial and

informed class members that “Ju]nless you express a de-

sire in writing to this Court te be excluded from this ae-

tion... the judgment will include you as a member of

the elass and you will be bound by it. If vou desire to be

included in this class action, you do vot have to reply to

this Notice? (original emphasis). The notice also included

a statement that all class members were then being repre-

sented by the plaintiffs’ lawyers, but that any class mem-

ber might enter an appesrance with separate counsel,

The trial of this iatter proceeded in a bifurcated fash-

ion, With Hability and damages designated for hearings in

that order. Piaintifs began and completed the presentation

of the merits of their ease on the issue of linbility in the

first day of trial, held November 27, 1972. At the coneln-

sion of this hearing, a second notice to elas< members was

ordered. This second notice was identical in content to the

previous Sugust, 1972 notice,

The proceedings re-convened on December 21, 1972 with

the defendant company’s presentation of its case on thie

issue of liability. After a Christmas recess, the matter

was rescheduled for Jannary 8, 1973. At the beginning of

this hearne, however, all counsel announced that they had

reached an agreement in full and final settlement of this

ease. After comnsel had outlined briefly the elements of

* Appendix, velo boat p. iS in the court below, No. 73-1697.

7 i

the settlement, numerous class members, including each

of the three named plaintiffs, requested and was allowed

to testify to her objections to the content of the settle-

ment proposal.* No class member spoke in favor of the

settlement at this hearing.

Additional notification to the class membership was or-

dered next, in order to expinin the terms of the settlement

and give notice that the court had reviewed the settlement

preliminarily and intended to approve it, “subject to hear-

ing the views ef individual class members, A hearing was

then set for January 29, 1973, for this purpose.

At this hearing, cighty-cight class members appeared

to testify against the settlement, withont benefit of counsel.

Their objections to the compromise fell into three eat-

egories:

(a) The settlement offered inadequate compensation

in the form of hock pay. providing only 15% of back

Waves actually lost and resulting from the defendants’

sex discrimination from 1966 to date;

(b) The settlement offered no pension eredits for the

years plaintiff~ would have worked but for unlawful

sex discrimination on the part of the defendants:

(ce) The settlement denied the plaintiffs the right of

reinstatement, irrespective of individual dates of se-

niority.®

A common thread throughout this testimony was the

surprise with which the plaintiffs mei the settlement, Sev-

* This testimony appears in Appendix. vol. [IT at p. 183 ff. and

15 9) i the court below, No. 75-1697.

“This testimony appears ai pp. 1s ff. in the trauseript of the

hearing of January 29 1973 whieh forms a part of the record in

the court below, No, 73-1697.

8

eral of those testifying as to their objections noted that no

previous mention of settlement had ever been made.’ In

response to these objections, the district cour. ordered a

recess of three months, within which the objectors might

obtain their own counsel and submit briefs. Argument on the

question of the settlement was held on June 4. 1973 and the

settlement as originally proposed, adopted and approved

by order of the district entered June 12, 1973. That opinion

and judgment of the district court was aflirmed by the

Third Cireuit Court of Appeals in an opinion entered April

4, 1974. Motion for rehearing or for rehearing en bane

was denied on May 7, 1974.

_ The Court of Appeals based its decision on the fact that

it found approval of the settlement by the district court

not an “abuse of discretion” <inee ii wes “fair and reasen-

able’. This finding of reasonablenes was premised on the

following weaknesses claimed to exist in plaintiffs’ case:

(a) the seniority cut-off was fer a valid business pur-

pose and of “questionable discriminatory effect”:

(b) plaintiffs “appear{ed] net to have met” the re-

quirement of filing a timely EEOC charge:

(¢) there was a strong likelihood that plaintiffs would

properly be denied any back pay had they gone to trial:

The Court of Appeals also rejected the view of plaintiff-

“gbjectors, as well as of the EOC as amicus curiae, that

a“yajority of Class members inisht not covree the minority

into settlement. In adopting this position, the lower court

rejected pertinent decisions of other circuits in which the

course of private litigants’ actions were held unimpaired

by actions taken by the attorney general in companion liti-

Transeript of January 24. 1973 hearing at pp. 28 and 43, in

the court beiow, No. 73-1697,

9

gation. See generally Williamson v. Bethlehem Steel Corp.,

468 F.2d 1201 (2nd Cir. 1972), Air Line Ste cards v. Amer-

ican Airlines, Inc., 490 F.2d G3G (7th Cir. 1973).

And finally the Court of Appests rejected tie view, sug-

gested by plaintiffs, that a comlict between class members

made necessary the use of seb-eclossest ps a proper sub-

Class, plaintiff-objectors, potition rs here, might not. be

compelled to accept a settleniont, nufaverable when viewed

in terms of their aims for the [tivatiou.

Reasons for Granting the Writ

This case raisessa question of great importance to the

increasing number of litigants sceking judicial redress

from discrimination under Tithe Vil of the Civil Rights

Act of 164: May a private litigant be compelled to settle

his cause of action on terms he does not favor, merely

hecause the majority of his fellow class members wish to

accept such a seithement?) This question has never before

precisely been answered by this Court. Nevertheless, strong

authority exists in analovous areas to prevent the com-

promise of an individual's rights in a settlement against

his will. See Protective Ce minitice for Independent Stock-

holders of TMT Ferry, Inc. v. Anderson, 390 U.S. 414

(1968).

A. The Settlement Is Inadequate

The settlement wider dispute here involves a total amount

of $1,151,524.00 in tinal -ettlement of the claims of 371

class members, cach claiming back wages, pension rights

and reinsiatement as a result of unlawful sex diserimina-

tion under Title VIE of the Civil Rights Aet of 1964.4

"This amount was allocated as follows: back pay to 371 class

members—s93 1 724 OG, atterness’ fees— $201,250.00: additional

amounts To named plaintiffs—817.500.00; expenses of the litigation

$1,350.00, See opinion of the district court. dufra, at p. da ff.

10

As a “lump sum” dollar amount, the settlement figure is

impressive. But its fairness and adequacy can only be

judged when the actual amounts received by individual

plaintiffs are compared with their monetary losses during

the period from 1966 to a point of settlement in January

of 1973. From 1966 to 1968, respondent PPG hired a total

of 380 new male employees at the Creighton plant, while

plaintiffs here remained on continuous lay-off. As a result,

each individual plaintiff lost employment and wages, which

when compared with the amounts allocated to each under

the settlement, establish the percent of recovery range

froma high of 26 toa low of 172° Taken as an average,

the class received but 15° of the actual back wages lost

as a result of the defendants’ sex discrimination.

The fairness of the settlement does not rest on the dollar

amount of back pay offered each class member alone. The

settlement almost completely omits any reference to pen-

sion rights for class members, and completely excludes

the right to rein-tatement. These two omissions are the

basis of petitioners’ oljjections to the settlement here as in

both courts below.

** Lost wages fer each of the plaintii’s has been estimated in the

following manner: for each year a minimum level of earnings at

PPG was ealeulated, based upon the lowest hourly wage stated in

the applicable collective bargaining agreement. This amount. which

excluded over-time, shift differertiais. piece rate and all other up-

ward variations of the basic wage, was then reduced by an amount

representing “interim earnings”. as requircd by 42 United States

Code, $20000-56¢). These interim earnings were ealeulated based

upon the applicabie minimum wage for the years involved, 1966-

1975. as set forth in 29 United states Code, §203. Based on this

model, each class member lost back wages amounting to $19,047.40

for the period. This figure was then compared to actual amounts

allocated to individual elass members. using both a high figure of

SESI00 Stan Halupes and a low figure of $261.28 (Margaret

Voytecky ).

11

As women whose average age was between 45 and 65",

petitioners saw their pension rights as the most important

element of relief sought by this law suit. In order to obtain

these pension rights, petitioners were ready to return to

work. And as a mininnun, they sought a settlement that

would credit their pensions with the years they could have

worked at PPC, but for the unlawful sex discrimination

practiced by the defendants.

Without bencfit of counsel, cighty-seven women, includ-

ing each of the three named plaintiffs, testified against

the settlement in the first district court hearing of January

29,1973. And each Fisted pension rights as her main reason

for opposing the compromise offer, One of the named plain-

tiffs, Elvira Kissel, expressed the groups dissatisfaction in

the following words:

“Witness Kissen: As a “44 girl, January 3, I lost

seven years seniority towards pension—-average wage

per year 7,000 times seven is 49,000. I would be in

there working today. Seven years Blue Cross, that is

about $540 a year: that ix about 3,780 for the seven

years, About 200 a year sub-pay that they pay times

seven; that is 1400, T lost vacation pay at ten percent

of gross wages, I lost cost of living that they pay,

sixteen cents per hour worked; I lost severance priv-

ileges. That is a total of 57,180 plus lost in seven

years,

“T never expected to get it all. T never expected to

get half of it. But at least a third of it, we deserve.

“Had they called us women and gave us the oppor-

tunity to work, these women would have their pension

available to them, all this money they lost, benefits,

fringe benefits. Your Honor. money isn’t everything

™ Appendix, vol. TH. at p. 159 in the court below, No. 73-1697,

12

but the pension is all us women have to look forward

to. That is all we have to look forward to. Three

months [pension credit], to me, is very, very little for

what they are offering in this tetal package” '*

The courts below-sought to justify the limited: relief

afforded by the settlerrent,—15‘7 of but one of three ele-

ments of relief prayed,-—by resort to the rule that approval

of a class action settlement requires a settleinent to be fair,

reasonable and adequate when judged by the strengths and

weaknesses of the parties’ respective cases, Leaving aside

for the moment the question of how this standard, first

articulated and applied in the field of antitrust and cor-

porate reoragnization, applies to a Title VIT action where

individual civil rights are involved, it is apparent that

plaintiifs’ case displayed no such weakness as to justify so

minimal a settlement award.

At the announcement of the settlement, plaintiffs bad

completed persentation of their case on liability, The issue

of damages, essentially individual in nature, had, however,

been reserved. Thus the district court had before it facts

establishing to a certainty that from 1951 forward, PPG

had hired and recalled male employees only. During this

period not one new woman was hired and only a handful

were recalled, leaving 452 women employees of PPG on

lay-off. Having completed the process of recall for its male

eniployees, PPG and the unions sought to terminate those

women still on lay-off by revising the “perpetual seniority

system” operative in the plant since the first collective

bargaining agreement in 1943,

The court below recognized that given the foregoing his-

tory of priva facie vex discrimination, the defendant com-

pany was faced with the burden of justifying its seniority

1 Appendix, vel Liat p. 143. if in the court below, No. 74-1697.

13

eut-off decision..> Two such justifications are possible and

both were considered and improperly applicd by the lower

court. The “business necessity” defense was first articu-

lated by this Court in Griggs v. Duke Power Company,

401 U.S. 424 (1971). The Court of Appeals suggests that

beeause “the termination provision was instituted to pro-

mote PPG’s ‘business purpose’ of securing a work force

of balanced age” and because the provision was of “ques-

tionable discriminatory effect”, the district court migiit

properly conclude no sex discrimination present.’®

This rationale conflicts with both this court’s decision in

Griggs, as well as with evey other major decision of courts

of appeal applying the “business necessity” doctrine since

Griggs. The fact that PPG’s decision against reeall and

hire of its women employees on lay-off was based on valid

business reasons and made in good faith does not establish

“business necessity. This Court said in Griggs:

Congress directed the thrust of the Act to the con-

sequences of employment practices, not simply the

motivation. 401 U.S. at 432.

What the court below may have meant with its “ques-

tionable discriminatory effect” language is unclear. It is

difficult to understand how failure to recall women em-

ployees, all the while recalling men steadily and even hir-

ing new men for the first time, could be anything but sex

discrimination.

In certain cases the business purpose may over-ride the

fact of discrimination, but that seems an unlikely pos-

sibility here. “Business necessity, as first articulated by

this Court in Griggs, and later applied by the courts of

15 See opinion of the court below, infra, at p. 4a ff.

1° See opinion of the court below. infra, at p. 5a ff.

14

appeal, connotes something far beyond convenience. it has

been described as an “irresistable demand”, United States

v. Bethlehem Steel Cerp., 446 F. 2d 652 (2nd Cir. 1971)

and as something «ssential to the safe and efficient oper-

ation of the employer's business, Robinson v. P. Lorillard

Corp., 444 F. 2d 791, cert, denied 406 U.S, 906 (1972). But

here the business purpose underlying the company’s ter-

mination of “perpetual seniority” has been expressed as a

need to have a work force of varied age distribution.”

That this does not rise to the level of an “irresistible

demand” is seen by the fact that twice previously the same

proposal was waived by PPG during collective bargaining.

The second possible defense to plaintiffs’ prima facie

ease of sex discrimination is the “bona fide occupational

qualification” defense embodied in Section 703(e) of the

Act. The court below discusses this defense cursorily and

suggests that by allegations alone, PPG has presented ad-

equate grounds to justify the acceptance of a minimal set-

tlement."*

The lower court thus appears to have misconstrued the

“BFOQ” defense. This exception to sex discrimination

has been narrowly applied by the courts of appeal. Unless

“all or substantially all women are unable to perform a

given job, disqualification of any woman, from such job

category must proceed on an individual basis. See Weeks

vy. Southern Bell Telephone d Telegraph Co., 408 F. 2d

298 (5th Cir. 1969): Bewe v. Colgate-Palmolive Co., 416

F. 2d 711 (7th Cir. 1969); Jurinko v. Wiegand, 477 F. 2d

1038 (3rd Cir. 1973); and Rosenfeld v. Southern Pacific

Co., 444 F. 2d 1219 (9th Cir. 1971).

7 See the Brief of the Defendant-Appellee PPG in the court

below at p. 11; the transcript of the proceedings in the district

court held December 21, 1972 at p. 67 ff; and the opinion of the

court below at p. da.

18 Opinion of the lower court, infra, at p. 14a.

15

Stated differently, once a policy such as PPG’s has been

shown to discriminate, application of the “BFOQ” stan-

dard will, in the majority of cases, be a matter of individ-

ual proof of damages. Women employees, like their male

counterparts, must be given an opportunity to compete.

As the court in Rosenfeld, supra, noted:

The premise of Title VIL... is that women are now

to be on equal footing with men, [citation omitted]

The footing is not equal if a male employee may be

appointed to a particular position on a showing that

he is physically qualified, but a female employee is de-

nied an opportunity to demonstrate personal physical

qualification. Equality of footing is established only

if employees otherwise entitled to the position, whether

male or feinale, are excluded only upon a showing or

individual incapacity. 444 F. 2d at 1225.

In evaluating the strength of the plaintiffs’ case here,

the “BFOQ” defense is useless. Neither court below had

before it any evidence on the individual abilities of the

plaintiffs, since the issue of damages had not been reached.

There could have been no basis to discount the strength

of plaintiffs’ claim by reliance on the “BFOQ” defense.

Indeed, had there been proof indicating that some of the

plaintiffs would not in 1966 or would not now be able to

perform the jobs at PPG's Creighton plant, it would have

been error to discount the entire case on that basis.

The court below concludes its weighing of the merits of

plaintiffs’ claims with a reference to two procedural de-

fenses available to the defendants. The first eoncerns

timely filing of the plaintiffs’ several charges of discrim-

ination with the Equal Fimployment Opportunity Coni-

Mission, as required by 42 United States Code, § 2000e-5(e).

This issue was in mediately raised by both defendants in

16

the district court on motion to dismiss. That court found

timely filing and ruled for the plaintiffs in April of 1971.

This ruling was never challenged ‘ad no appeal was taken

from it, yet the court of appeals concludes that “plaintitts

appear not to have met that [filing] prerequisite.’'’ In

support of this view it cites only Mickel y. South Carolina

State Employment Service, 377 F.2d 239 (4th Cir. 1967),

cert. denied 389 US. 877 (1967), a case which stands for

the proposition that a charge must be filed with the EEOC

prior to commencing court action under Tithe VIT, an

issue never before in question here. The significance of

Mickel to the plaintiffs’ case here is thus unelear.

Finally, the court of appeals suggests justification for

the small percent of back pay offered by the settlement

on the grounds that back pay awards are “discretionary”

and “it is not clear that failure to award such relief [back

pay] here, were plaintiffs successful, would constitute an

abuse of discretion”. The court coucludes that “{i]n light

of their defenses, we believe there is a strong likelihood

that PPG and the Union would not have been held liable

to plaintiffs for back pay’." The only authority cited for

this conclusion is Nober vy. Westinghouse Electric Corp.

480 F.2d 240 (Srd Cir, 1973), a case denying back pay

where sex discrimination resulted from the direet appli-

cation of state protective legislation.

The decisions of the panel below is thus contrary to

decisions by other panels of the Third Cireuit, as well as

decisions of the Fourth, Fifth, Sixth and Seventh Cireuit

Courts of Appeal.*!| Authority of this Court in an analo-

* Opinion of the court below, infra, at p. Ga.

*° Opinion of the court below, infre, at p. 6a.

* Those decisions are: Jurinko v. Wicgand, 477 F.2d 1038 (3rd

Cir. 1975) and Roson v. Publie Service Elvetrie and Gas Co. 477

F.2d 90 (3rd Cir. 1973); Robinson v. P. Lorillard Corp., supra,

17

gous area supports this majorirty view that, absent ex-

ceptional circumstances, back pay should be awarded where

discrimination has been establixhed. In Newmen v. Piggie

Past, Badevpriven, BI WSS. We CERAY, Wiere awards of

attorneys’ fees under Tithe I] of the Civil Rights Act of

1964, 42 United States Code, © 2000a-3(b), were consid-

ered, this Court defined “discretion” :

It follows that one who sneceeds in obtaining an

injunction under that Tithe should ordinarily recover

an attorney's fee unless special circumstances wonld

render such an award unjust. 390 U.S. at 402.

The only exception to awards of back pay has occurred

in the narrow area where sex discrimination suits have

arisen in the context of conflicting state protective legisla-

tion. Sec, og. Rosenfeld v. Southern Pacific Co., 444 F.2d

1219 (9th Cir, 1971); Manning v. General Motors Corp.,

466 F.2d 812 (6th Cir, 1972); and LeBlane v. Southern Bell

Telephone & Telegraph Company, 460 F.2d 1228 (Sth Cir.

1972), cert, denied, 409 USS, 890 (1972). Each of these

cases involved sex discrimination suits where conflicting

state protective legislation existed—not at issue here, Ab-

sent such state protective legislation, a majority of circuit

courts have held that back pay is the rule, not the excep-

tion, once discrimination is established.

In the area of back pay, then, “special circumstances”

are narrowly construed. To date, no authority exists for

the proposition that anything Lif state protective legisla-

tion conflicting with sex discrimination qualifies for treat-

and Moody ve Albcmarte Paper Co., 474 F.2d 134 (4th Cir. 1973);

Johnson 8. Goodyoar Tire & Rubber Co.. AN F.2d 1364 (Sth Cir.

1974) and Pettway ve ctinericen Cast Tron Pipe Co., 494 F.2d 211

(9th Cir, 1974): Head vo Vinkeon Rolly Bearing Co., 486 F2d

S70 (6th Cir. 1973): and Bouw v. Colgate Palmolive, 416 F.2d 711

(7th Cir. 1969).

18

ment under the exception”? Kober y, Westinghouse Elec-

tric Corp. supra, stands for this proposition and provides

no authority for weakening the case of plaintiffs here,

since no protective legislation is involved.

The most that can be said in support of the lower court’s

reliance on Kober is that it erroneously attempis to extend

the “special circumstances” exception to action py the

EEOC, Aside from the obvious due process considerations

raised, no authority supports the lower court’s view that

an EEOC conciliation, of which present plaintiffs had

neither knowledge nor control, may be now used to reduce

their valid claims for back pay under Title VIL.

B. The Court Belo: Erred in Denying Petitioners the

Opportunity to Opt Out of the Settlement

Petitioners argued in the court below, as in the district

court, that the settlement in this action need not hind ail

of the plaintiffs or none of them. They suggested in the

lower courts, as here, that the procedures embodied in Rule

23, Federal Rules of Civil Procedure, do not contemplate

such an “all or nothing” result in class actions arising

under Rule 23(b) (3). Considerstions of due process under

the Fifth Amendment to the United States Constitution

suggest that unless private Title VII litigants are free to

exercise control of their law suits, Rule 23 may be subject

to constitutional attack,

Both Courts below viewed approval of the instant settle-

ment as essentially a matter of majority rule? In so doing,

For cases applying this exception, ser, ag. Rosenfdld y. South-

ern Pacijie Co, 444 F.2d 1219 (9th Cir. 197] 1: Manning v. General

Motors Corp. 456 F2a 812 (6th Cir. v2): and LeBlane vy.

Southern Bll Tlephonse & Telegraph Compan, 460 F2a 1228

(oth Cir, 1972), ccrt. denied, 409 US, 990 (1972).

“At the district court hearing on the settlement’s adequacy,

the district court judge commented: “LT have one question: Should

19

they attempted to apply an improper standard of review

which originated in areas of corporate litigation, such as

stockholder derivative actions, patent ‘-fringement suits

and antitrust litigation. In areas such as these, where cor-

porate health and activity are involved, majerity approval,

coupled with cour: review under Rule 23(e), Federal Rules

of Civil Procedure?! insures absent class members. of

whether “there is any fraud or collusion in arriving at

the compromise and... whe vag the compromise if fair,

adequate and reasonable... Poowa ve. Katz, 447 F. 2d

451, 455 (oth Cir. 1971). In such situations, the court stands

asa guardian for those class niciiers not present. And in

such cases, the rights involved are common and joint in the

focus of the litigation, typically corporate well-being. See

Young v. Katz, supra, at 432, applying the “best interests

of the corporation” test as stated in Neuwirth v. Allen,

—— F.Supp. ——- (S.D.N.Y. 1964), aff'd. 338 F.2d 2 (2nd

Cir. 1964).

The standards of review of class scithements involving

individual interests rather thau litigation on behalf of cor-

porate funds are not identical See, Newman v. Stein, 464

F, 2d 689 464 I. 2d 689, 692 fn. G (2nd Cir. 1972).

This distinction was noted by this Court in Protective

Committee for Independent Siockiolders of TMT Trailer

Ferry, Inc. v. Anderson, 390 U.S. 414 (1968), a proceeding

I or should T not approve this settlement that has been stated to

the Court; should 22 percent overrule 78 percent?” Appendix,

vol. IT at p. 253 in the court betow, No. 73-1697,

“Rule 236) reads: “Distiissal or Compromise. A class action

shall not be dist. d or compromised without the approval of the

court. and notice of the prope sed dismissal or compromise shail be

given to all members of the e¢lass in such manner as the court

directs.”

As amended February 28, 1966, eff. July 1, 1966.

. “~e

20

for reorganization of a corporation under Chapter X of the

Bankruptey Act. There it was stated:

Moreover, this Court has held that a plan ef reor-

ganization which is unfair to some persous may not be

approved by the court even though the vast majority

of erediiors have approved it. 390 U.S. 435.

Typical of the differences between cases arising under

a conmmon corporate question, and those raising both com-

inon and individual rights, are Tithe Vil actions such as

that of petitioners here, arising under Rule 23° (b)(3).*%

Insofar as the class members songlit to litigate broad ques-

tions of liability for unlawful sex discrimination, the in-

terests of the class were identical. At the point of settle-

ment, however, individual factual differences predominate.

This is so because a settlement must ultimately be nego-

tiated in terms of back pay, which is in turn essentially

an individual matter. See. Jotison ve Goodyear Tire avd

Rubber Co, supra, where the Fitth Circuit noted the need

for “separate determinations on an individual basis as to

Who is entitled to recovery and the amount of such recov-

ery’, 491 Pitd at 1575. At this point it is likely that the

weakest individual claims will press for a favorable set-

tlhement on the basis of the strengths of other elass mem-

bers’ claims. This Court previously disenssed this conflict

in /lansbury v. Lee, SL US. 82 (1940). It is stated there:

“It is one thing to say that some members of a class

may represent oilier members in a litigation where

“Rule 25¢b. 3) in relevant part states: “Class Actions Main-

tainable, An action may be maintained as a class action if the

prerequisites of subdivision (a) are satisfied. and in addition:

ee * 3) the court finds that the questions of law or facet common

to the meinbers of the class predominate over any questions affeet-

ing only individual rienbers, and that a class action is superior

to other available methods for the tair and efficient adjudication

of the controversy. “

21

the sole and common interest of the class in litigation,

is either to assert a common right or to challenge an

asserted obligation. [citations omitted] It is quite

another to hold that all those who are free elterna-

tively either to assert rights or to challenge them are

of a single class, so that any group merely because

iis of the class so constituted may be deemed ade-

quately to represent auy others of the class in liti-

gating thea interests in vither alternative. Such a

selection of representatives for purposes of litigation.

Whose substantial interests are not necessarily or even

probably the saine as those whom they are deemed to

represent. does uot afford that protection to absent

parties which due process required. The doctrine of

representation of absent parties in a class suit has

not hitherto been thonght to eo so far.” [citations

omitted) Si1 U.S. at 444. (emphasis added).

As a solution to this problem, petitioners suggested to

both courts below that they be reeonstituted as a “sub-

class” under Rule 23(¢)(4)(B). As a subclass they might

then have been allowed to “opt out” of the settlement pro-

posal while going forward with the litigation on their own

right.’ Although such a procedure finds support in this

Court’s decision in Eisen vy, Carlisle & Jacquelin, US.

(1974), as well as that of Johnson v. Georgia Highway

Erpress, Inc., 417 F. 2d 1122 (5th Cir. 1969), it was re-

jected by the courts below as outside the ambit of Rule

23(e).

We believe this conclusion to be error and in direct con-

flict with recent authority in the Seventh Cireuit. Tssues

nearly identical to those raised here were decided along

*" As hes heen noted. petitiouers bere represented 25% of those

originaliy filing EEOC charges in this action. As such numbers

of them might have maintained her own action independent of the

present suit. Supra, at p. 3.

22

the lines petitioners suggest in Air Line Stewards and

Stewardesses Assn., Local 550 v, American Airlines, Ine.,

400 F. 2d) 636 (7th Cir. 1973) cert. denied sub nom Air

Line Stewards and Stewardesses Assn, Local 550 v. Zipes,

U.S. (1974). The similarities in the actions are

striking. Both are class actions raising claims of sex dis-

crimination under Tithe VIL. In both the class subdivided

along the lines of the relief sought: in both counsel for

plaintiffs negotiated a settlement without consulting the

Wishes of individual class members during the process ;

and in both a meaningful opportunity to “opt out” was

lacking.*?

Yet the results obtained by petitioners here differ mark-

edly from those of the Seventh Circuit in lar Lines Stew-

ards, That case was remanded with directions, first, that

the settlement be set aside to allow for the formation of

appropriate subclasses, each properly represented; and,

second, so that class members might enjoy a meaningful

opportunity to opt out of the litigation, if they desired. If

class actions are to continue as a successful device for

litigating multiple claims, the confliet between these deci-

sions must be resolved in favor of the Air Lines Stewards

approach. Any other decision will cause the prudent class

litigants to “opt out” at the earliest opportunity as the

only way to maintain a semblence of control over their

lawsuits. Such a result violates the fundamental rationale

behind Rule 22 as well as the principles of efficient court

administration. This writ of certiorari should be granted

to resolve this contlict between the Cirenits and prevent

the misapplication of Rule 25.

The Vopr out” notices to petitioners bere made no mention of

the then on-going setthanent negotiations and failed to suggest

that plaintitfs wouid be bound by the results of a court approved

settioment. as Well as a jud@mient.

23

CONCLUSION

For all of the foregoing reasons, the petition for writ

of certiorari should be granted.

Respectfully submitted,

JANE M. Picker

Rira Pace Reuss

Cuar.es BE, GuERRIER

Lisseti A. Moony

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Mariin Lupcw

3630 Mellon Bank Building

525 William Penn Place

Pittsburgh, Pennsylvania 15219

Exizasetu R. Rixpskorr

253 Blake Road

Hamden, Connecticut 96517

Attorneys for Petitioners