Petition for Writ of Certiorari — United Airlines, Inc. v. Frank

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Supreme Court, U.S.

FILE D

age”

00 . 948 DEC - 6 2000

No. 00-

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

UNITED AIRLINES, INC.,

Petitioner,

LESLIE FRANK, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JENNIFER ANSBRO HALE WALTER E. DELLINGER

United Airlines, Inc. (Counsel of Record)

1200 East Algonquin Road TOM A. JERMAN

Elk Grove Village, IL 60007 PAMELA HARRIS

(847) 700-4194 SRI SRINIVASAN

JOHN B. OWENS

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Whether a federal court may refuse to enforce a judg-

ment in a prior federal class action, properly certified un-

der Rule 23, either (a) because the prior class action did

not permit class members to opt out of the class (a ques-

tion that this Court has granted several times but never

answered); or (b) by relying on a subsequent change in

the facts underlying the judgment, but without any con-

sideration whether the change was significant or material

to the plaintiff class’s claim, in direct conflict with Mon-

tana v. United States, 440 U.S. 147 (1979), and numer-

ous decisions of the courts of appeals.

2. Whether a claim for disparate impact is cognizable under

the Age Discrimination in Employment Act (“ADEA”),

as the Ninth Circuit held below, or whether the ADEA

does not recognize such claims, as other circuits, follow-

ing Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993),

have held.

PARTIES AND CORPORATE DISCLOSURE

Petitioner is United Airlines, Inc., defendant-appellee be-

low. UAL Corporation, a publicly traded corporation, owns

100 percent of United Airlines, Inc.

Respondents in this case were plaintiffs-appellants in the

court below. They are Leslie Frank, Pat Parnell, Susan

Broderick, Carole Kirk, Nichkol Melanson, Sandra Huff,

Diane Davis, Sharon Benjamin, Sharron K. Taylor, Bland

Lane, Joan Balla Weaver, Donna Durkin, and Ellen McCor-

mick, individually and as class representatives.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...2....c.cccccscssssessssssosseeeseseosesse.... i

PARTIES AND CORPORATE DISCLOSURE ................. ii

TABLE OF AUTHORITIES ...0........sssecccssssssssseoeoeeoeecccs... Vv

ici ety ey te TCS |

ial Ne ccc oss l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.........ccccssessccssssssescooeeoeessssssccs.... |

STATEMENT OF THE CASE.00......ccccccssscsssccssseeeeeeeeccccs.. 2

REASONS FOR GRANTING THE WRIT....................... 9

I. THE NINTH CIRCUIT’S RULING ON THE

PRECLUSIVE EFFECT OF THE ALPA

CLASS ACTION JUDGMENT MARKS A

DRAMATIC CHANGE IN PRECLUSION

LAW AND CONFLICTS WITH

NUMEROUS COURT OF APPEALS

Acct ncnitsencstemsonsesecee.. 11

A. The Ninth Circuit’s Rule That Opt-Out

Rights Are Necessary Before Class Action

Judgments Will Be Given Full Preclusive

Effect Raises A Fundamental Question

About Preclusion Law That This Court

Previously Has Granted, But Never

ee) ag AES 1]

TABLE OF CONTENTS

(continued)

Page

B. The Ninth Circuit’s Holding That

Immaterial Factual Changes Deprive A

Judgment Of Any Preclusive Effect

Conflicts With The Decisions Of This

Court And Of Numerous Courts Of

II. THE FEDERAL CIRCUITS ARE SHARPLY

DIVIDED ON WHETHER DISPARATE

IMPACT CLAIMS ARE COGNIZABLE

UNDER THE ADEA AFTER THIS

COURT’S DECISION IN HAZEN PAPER............ 26

CG NIN ws sscishinitninninsuiesstipniatiaintinitninnahiiunasiedaiacijani 30

TABLE OF AUTHORITIES

Page(s)

CASES

Adams v. Robertson,

at SL: See aN Rema NE 9, 10, 12

Albemarle Paper Co. v. Moody,

422 U.S. 405 CE FUP eaideickiisenibapactesisisniisiintigtin cinta 3

ALPA v. United Airlines, Inc.,

26 Fair Empl. Prac. Cas. (BNA) 607

oe AE: . MANNE Se ee Te passim

ALPA v. United Airlines, Inc.,

26 Fair Empl. Prac. Cas. (BNA) 622

A: ING cctetiiiincsicctst Nace ae te passim

Amchem Prod. v. Windsor, -

PP PE niltihieiiiimpisin gi i at 19

Arkla, Inc. v. United States,

37 F.3d 621 (Fed. Cir. ED en MON Ne eM Te: 24

Arnett v. California Public Employees

Retirement System,

179 F.3d 690 (9th Cir. 1999), vacated

and remanded on other grounds, exes Oa

__, 1208S. Ct. 631 (2000) 00.00.0000... icalialinibanteid tata hoe 8,9

Broaddus v. Florida Power Corp.,

145 F.3d 1283 (11th Cir. Pe iccdtescnsacaianb tee tee 29

Brown v. Ticor Title Ins. Co.,

982 F.2d 386 (9th Cir. 1993), cert.

granted, 510 U.S. 810, cert. dismissed as

improvidently granted,

Fen Oe BA ED isicicobieniuanc i 14

TABLE OF AUTHORITIES

(continued)

Page(s)

Ce:otex Corp. v. Catrett,

te |. ene 26

Coleman v. Commissioner of Internal

Revenue,

ye fe ls ee 23

County of Washington v. Gunther,

IS Wie Be Gre ticcenttccenccencintistiidieeaiedaa 28

Cutler v. Hayes,

SES cs OEP is Gs BET cteriternintiaininancinaiaiii 24

DeCosta v. Viacom Int'l, Inc.,

SE Fe Gee Ce ee Ce cliiniesetiniscstiebbisietanttininninds 23

DiBiase v. SmithKline Beecham Corp.,

i Pio fe Le RE erence en, 29

District Council 37 v. New York City Dep't of

Parks & Recreation,

RRP Boge os RR eR oe 29

EEOC v. American Airlines, Inc.,

4B FSG EGG Caen Gas Tae Rancsctcnsesecusesetsnccbecconnsnei passim

EEOC v. Francis W. Parker Sch.,

82 8 ic, Le eS eee 29

EEOC v. Local No. 350,

Fae Fa Ok Ce Ge Se ictistnnitinetiecenctien 30

EEOC v. McDonnell Douglas Corp.,

em ff nS 30

Eisen v. Carlisle & Jacquelin,

GET UB. 196 FP csutncevinnssstitiitiiltiaiiiadaaiagiae 13

Vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Ellis v. United Airlines, Inc.,

73 F.3d 999 (10th Cir. ae ccnnnecictilitaleii tas cS a passim

Frank v. United Airlines, Inc.,

216 F.3d 845 (9th Cir. eT passim

Gantt v. Wilson Sporting Goods Co.,

143 F.3d 1042 (6th Cir. ED

Gonzales v. Cassidy,

474 F.2d 67 (Sth Cir. 1973).....-cccccccsoecs-..... eeseenneees 19, 20

Hansberry v. Lee,

| ee 17, 18

Hazen Paper Co. v. Biggins,

bia cca, passim

In re A.H. Robins Co.,

880 F.2d 709 (4th Cir. Ie 16

In re Agent Orange Prod. Liab. Litig.,

996 F.2d 1425 (2d Cir. ee MilciihsetinlacaneaiSicslates 19, 20

Klein v. Commissioner of Internal Revenue,

880 F.2d 260 (10th Cir. Re 23

Kyriazi v. Western Elec. Co.,

647 F.2d 388 (3d Cir. 1981)... ccccccccccssecccsssssseec.... 16, 19

Laskey v. UAW,

638 F.2d 954 (6th Cir. 1981)... cccececccccsssssssseeeeccc.. 20

Local No. 391 v. Terry,

teh e nea ve cece ee ee ee 3

Markham v. Geller,

a a i | EE 28

Viil

TABLE OF AUTHORITIES

(continued)

Page(s)

Martin v. Wilks,

es Se a icincncsilicnidecnnsseisighiedtnantaintiiiiuabicpuniehin 18

Metz v. Transit Mix, Inc.,

Se a ee UN tis WIN Diassctncciasndscenvbinisinencdcanceiss 28

Montana v. United States,

440 US. 147 (1979).............. ecelidiindiainclensigssindicanilaiinal passim

Mullin v. Raytheon Co.,

Be ae re Ge FD crtcttntctsnncnnstessonnenccnntions 27, 29

Murnane v. American Airlines, Inc.,

ee a I icttitiictintascnsdanchsttistiianeneinnsiiia 22

Niagara Frontier Tariff Bureau, Inc. v.

United States,

Be ee es NT Dicncinsesncnicinscninctenssitiniibaneinnntteen 23

North Georgia Elec. Membership Corp. v.

City of Calhoun,

989 F.2d 429 (11th Cir. 1993)................ccccccsssseeees 23, 24

Ortiz v. Fibreboard Corp.,

er Se ee niceisssanicicinchctiidnstiiilineinaigieninal passim

Raytech Corp. v. White,

SF i re eh iiiiikcisiintenlitnndiaiadtntinanten 23

Richards v. Jefferson County,

ee a iti lieiaiiniscesitaaticitia cilities 18, 19

RTS Inv. Corp. v. Commissioner of Internal

Revenue,

rp & | ot. > | en eee nee 23

Sam Fox Pub. Co. v. United States,

Ue ee ME I Miitastiseeihcbiinicicaitden ecikasiininicitractaneniiielicid 18

—

TABLE OF AUTHORITIES

(continued)

Page(s)

Smith v. Xerox Corp.,

196 F.3d 358 (2d Cir. ee intieedaiinadaisiasiiks auteinoiat 29, 30

Ticor Title Ins. Co. v. Brown,

wee Sy BOT Ci passim

Wetzel v. Liberty Mut. Ins. Co.,

508 F.2d 239 (3d Cir. ce MRA Rie Rath otahti/s 16, 20

STATUTES

So be ee pe aa) Ne NS SFE RETR l

seis cetocct feat eT AUR T OR NS LRP RTT AAD 28

I ea 28

~itbpiiecseecch. tiseee gl Sr tM AOE Ed: 28

Pee ID Stiinta se csiannicbbiadaincinccsisc is occ 28

A rene OE BNI io csintninscnsanesinacoseasadsasesneses, 5

RE eR eae ae Oe 3

sos inp ok stag OUT no 0 Ee eT 2

OTHER AUTHORITIES

James Wm. Moore et al., Moore's Federal

passim

Charles Alan Wright et al., Federal Practice

and Procedure (2d ed. 1986) .......ccccccssceccscseceseoeeeees. 15, 16

TABLE OF AUTHORITIES

(continued)

Page(s)

Douglas Laycock, Continuing Violations,

Disparate Impact in Compensation, and

Other Title VII Issues, 49 L. & Contemp.

PO, Fb CIN tsinssiesscaniiniiinvicneistssinliisnkimcanstaaciiasihtiones 28

Fed. R. Civ. P. 23 1966 Advisory

Committee’s Note, reprinted in 39 F.R.D.

i iaisisianercddnadasavnpsdnamaabaieabbhtaadulameisasantonacnacn 15, 16, 20

Herbert Newberg & Alba Conte,

Newberg on Class Actions (3d ed. 1992).................. 3,18

Note, Binding Effect of Class Actions, 67

ROW. Kea: RMI. Fira ee ctihosinitnssicassenovccipanroinicntbhetgabiailn 20

RULES AND REGULATIONS

Bc Bis Hs Bis GN cbsnceisencsbibonncsecinaptittiinsnnedidaniaaiakeiaantl passim

PETITION FOR A WRIT OF CERTIORARI

Petitioner United Airlines, Inc. (“United”), respectfully

prays that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Ninth Circuit in

Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000).

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit in this case is reported at 216 F.3d 845 (9th

Cir. 2000), and reprinted in the Appendix to this Petition

(“App.”) at la. The opinions of the United States District

Court (Legge, J.) are unreported and reprinted at App. 37a.

The opinions of the United States District Court

(Pratt, J.) in the prior class action judgment are reported at

ALPA v. United Airlines, Inc., 26 Fair Empl. Prac. Cas.

(BNA) 607 (E.D.N.Y. 1979), and ALPA v. United Airlines,

Inc., 26 Fair Empl. Prac. Cas. (BNA) 622 (E.D.N.Y. 1979),

and reprinted at App. 71a and 86a.

JURISDICTION

The panel opinion of the Court of Appeals was issued on

June 21, 2000. A timely petition for rehearing and rehearing

en banc was denied on August 11, 2000. App. 127a. On Oc-

tober 20, 2000, Justice O’Connor granted petitioner an ex-

tension until December 9, 2000, to file this petition. The ju-

nsdiction of this Court is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amendment

to the Constitution provides that

[N]or shall any State deprive any person of life, liberty,

or property, without due process of law ....

Ao a an

The Age Discrimination in Employment Act is codified

at 29 U.S.C. §§ 621-634, and is reprinted at App. 128a.

Rule 23 of the Federal Rules of Civil Procedure is re-

printed at App. 160a.

STATEMENT OF THE CASE

A. Prior Litigation and Judgment in the New York Dis-

trict Court.

From the early 1970s until July 1994, United maintained

a weight program for its flight attendants. The program used

separate weight charts for males and females that were inde-

pendently developed and modified over time. App. 2a-3a.

Until 1977, the charts were derived in part from a table of

desirable heights and weights based on mortality data pub-

lished by the Metropolitan Life Insurance Company. App.

102a. In 1977, United revised its female charts upward,

based on data provided by the United States Department of

Health, Education, and Welfare. App. 102a-103a Other

than a two-pound, across-the-board increase and further in-

creases based upon age, identical for men and women, the

charts remained the same from 1977 until United ended the

program in 1994.

In 1973, the predecessor to the Association of Flight

Attendants (“AFA”) and several named class representatives

filed a class action in the Eastern District of New York

against United on behalf of “all present and future female

[United] flight attendants.” AFA alleged that United vio-

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

§ 2000e (“Title VII’) by using separate weight charts that

were not comparable in their treatment of men and women.

AFA also contended that United applied and enforced its

weight program in a manner that discriminated against fe-

male flight attendants. AFA sought declaratory and injunc-

tive relief, including backpay.

On November 1, 1977, the district court (Pratt, J.) certi-

fied the class under Rule 23(b)(2) of the Federal Rules of

Civil Procedure, App. 88a, which authorizes class actions

when the conduct at issue is “generally applicable” to the

proposed class and declaratory or injunctive relief is appro-

priate “for the class as a whole.” Rule 23(b)(2) class actions

are “mandatory” in that they do not afford an opportunity for

class members to opt out of the action; nor does Rule 23 re-

quire that notice detailing a class member’s rights be given

to 23(b)(2) class members. Nevertheless, AFA and United

~ stipulated in 1977 that class members who currently worked

for United would receive written notice of the litigation in

their United mailboxes, and former United flight attendants

would receive notice via regular mail sent to their last known

addresses. This notice described the complaint, provided the

name and address of the class’s legal counsel, and informed

the class members that they could intervene in the litigation

with their own counsel if they so wished. App. 165a.

On June 12, 1979, the district court issued an opinion de-

ciding the merits of that case. The court rejected the plain-

tiffs’ claim that United’s separate weight charts were facially

invalid, and ruled that the differences in allowable weighis

for male and female flight attendants — differences identical

to those in effect through 1994 — were permissible. ALPA vy.

United Airlines, Inc., 26 Fair Empl. Prac. Cas. (BNA) 607,

' Under Title VII, back pay has generally been treated as equitable

relief rather than monetary damages. See 42 U.S.C. § 2000(e)(5) (1994);

Local No. 39] v. Terry, 494 U.S. 558, 571-72 (1990); Albemarle Paper

Co. v. Moody, 422 U.S. 405, 415-18 (1975). Accordingly, there is no

* Class members received the same notice as part of the subsequent

California litigation. The notice appears at App. 166a.

617-20 (E.D.N.Y. 1979) (““ALPA”). App. 113a-118a. The

district court was aware of the Metropolitan Life Insurance

tables that had, until 1977, been part of the basis for United’s

weight allowances. App. 102a. But experts for both AFA

and United relied instead on statistics from a different

source, a Health Examination Survey conducted by the

United States Public Health Service (“HES study”). App.

llla-112a. The district court found that the appropnate

point of comparison was not statistics for the general popula-

tion, but those for the “relevant labor market.” App. 116a-

117a. Within that group, the district court found, figures

from the HES study showed no meaningful difference be-

tween the percentage of men and women who could meet

United’s pre-1977 standards; the court also found that a /ar-

ger percentage of women than men would be able to qualify

under the standards in effect from 1977 until 1994. Jd. On

the plaintiffs’ second claim, the court ruled against United,

holding that United had enforced its weight program in a

discriminatory manner. App. 118a-125a.

On October 30, 197%, the court issued a judgment and

permanent injunction in accord with its opinion. United was

“free to continue using” its separate male and female weight

charts, which the court had found consistent with Title VII.

App. 76a. At the same time, United was required to alter its

weight program policies to eliminate discrimination in en-

forcement. App. 84a.

B. Compliance with the Judgment.

Pursuant to the ALPA judgment, United and AFA agreed

to a revised enforcement policy that removed all subjective

discretion from United’s enforcement of its weight program.

App. 60a. At AFA’s request, United also agreed to increase

its weight limits by two pounds for both men and women,

and to provide all flight attendants three additional pounds at

ages 35, 45, and 55. Declaration of Judith Hart, Ninth Cir-

cuit Excerpt of Record 299. Though these alterations were

submitted to the court, no ruling on the revised policy was

sought. Both parties agreed not to appeal those aspects of

the ALPA decision unfavorable to them. App. 61a. On Feb-

Tuary 1, 1980, the revised program went into effect. App.

58a.

C. Re-Litigation in the California District Court.

In 1992, respondents filed the present action in the

Northern District of California. Attacking the same program

adjudicated in ALPA, they claimed that United’s separate

weight charts for men and women were facially invalid un-

der Title VII. Respondents also alleged that the weight pro-

gram had a disproportionate impact on older flight attendants

and thus violated the Age Discrimination in Employment

Act, 29 U.S.C. §§ 621-634 (“ADEA”). Respondents sought

declaratory and injunctive relief, as well as monetary dam-

ages, on behalf of all flight attendants employed by United

after 1989. United eliminated its weight program altogether

in 1994 and reinstated the handful of flight attendants who

had been terminated under the program, leaving only a pos-

sible back pay and damages remedy. The district court

(Legge, J.) certified the class under Rule 23(b)(3) of the Fed-

eral Rules of Civil Procedure. As required for a Rule

23(b)(3) class, and unlike a “mandatory” Rule 23(b)(2) class,

potential class members were given the opportunity to opt

out of the class.°

: Respondents also alleged that United’s policy violated the ADEA

under a disparate treatment theory, violated the Americans with Disabili-

ties Act, 42 U.S.C. §§ 12101-12213 (“ADA”), and violated state law.

Respondents’ ADEA disparate treatment claims and ADA claims were

rejected by the Ninth Circuit and are not relevant to this petition. Be-

cause the state-law claims “rise or fall with plaintiffs’ federal claims,”

see App. 6a n.3, a decision by this Court to reverse and remand on any of

the federal claims would necessarily require the Ninth Circuit to reverse

the corresponding state-law claims.

The district court rejected respondents’ Title VII claim

on preclusion grounds. Because the ALPA litigation “neces-

sarily decided that the differences in the weight schedules

between men and women did not violate Title VII,” the court

held, respondents could not litigate that claim for a second

time. App. 6la. The district court found that United’s slight

equivalent increases to male and female charts, made at

AFA’s request, were favorable to the class and did not render

res judicata inapplicable. Jd. Finally, the court rejected re-

spondents’ argument that res judicata should not apply be-

cause flight attendants hired after the ALPA litigation wished

to challenge a “continuing violation.” Because the class cer-

tified in ALPA included not only present but also future

flight attendants, the court concluded, post-ALPA employees

were bound by the judgment as “future members of the class

defined in [ALPA].” App. 63a.

The district court also rejected respondents’ ADEA

claim, holding that disparate impact claims were not cogni-

zable under the ADEA. The court relied on the Tenth Cir-

cuit’s decision in Ellis v. United Airlines, Inc., 73 F.3d 999

(10th Cir. 1996), upholding the same weight program at is-

sue in this case, and on Ellis’s analysis of Hazen Paper Co.

v. Biggins, 507 U.S. 604 (1993), in which this Court left a

“strong impression” that the ADEA does not permit dispa-

rate impact claims. App. 55a; Ellis, 73 F.3d at 1009.

D. The Ninth Circuit Decision.

1. A divided panel of the Ninth Circuit reversed on both

counts. In an opinion written by Judge William Fletcher and

joined by Judge Reinhardt, the court held that the 1979

ALPA judgment in favor of United did not preclude the cur-

rent litigation. The core of the majority’s reasoning was as

follows: Class actions seeking monetary damages — the only

relief available after United eliminated its weight program in

1994 ~ are certified under Rule 23(b)(3), which requires in-

dividualized notice and an opportunity to opt out of the liti-

gation. The ALPA class, on the other hand, was certified as a

so-called “injunction class” under Rule 23(b)(2), which does

not require the same notice or the right to opt out. Any dif-

ference in notice requirements was not dispositive; the Ninth

Circuit expressly declined to rely on any difference because

it could not determine on the record before it whether the

ALPA notice “was distributed to all class members who

would have been entitled to notice of a Rule 23(b)(3) class

action.” App. 10a-lla. But the difference as to opt-out

rights was critical. Because the ALPA judgment was entered

in a 23(b)(2) action in which class members were not af-

forded an opt-out right, the panel held, the ALPA judgment

could not preclude the same class members from bringing a

subsequent claim for money damages. App. 1 la.

The panel majority offered what were ostensibly two ad-

ditional reasons why the ALPA judgment lacked preclusive

effect. First, respondents were asserting Title VII claims

based on alleged violations arising after 1980, the court rea-

soned, and the ALPA judgment, entered in 1979, could not

“preclude claims based on events occurring after that date.”

App. 9a. Second, because United revised its program pursu-

ant to the ALPA judgment, slightly increasing the allowable

weights equally for men and women, the two suits did “not

arise from the ‘same transactional nucleus of facts,’” render-

ing preclusion inoperative. App. 10a.‘

* The court also held that United could not rely on what it described

as the ALPA “settlement,” as opposed to the judgment, to preclude the

current litigation — thus rejecting a position that United had never ad-

vanced. This was so, the court held, because the district court in ALPA

had never approved of a settlement under Rule 23(e), and because the so-

‘called settlement “appear{ed] not to protect the interests” of the plaintiff

class in this action. App. 1la. Because United is not, in fact, relying in

this case on the preclusive effect of any settlement, this petition does not

address the Ninth Circuit’s discussion of this point.

Having held that the ALPA judgment did not preclude

litigation of respondents’ Title VII claim, the majority went

on to reach the merits of that claim. The panel majority re-

lied exclusively on a comparison between United’s weight

standards and data provided by the 1953 Metropolitan Life

Insurance mortality tables, notwithstanding Judge Pratt’s de-

termination in ALPA — based on expert testimony — that any

such comparison is inapposite. On that ground, the majority

concluded that United’s separate weight tables were facially

invalid under Title VII, and entered summary judgment in

favor of the class for the alleged Title VII violations. App.

14a-19a.

As for respondents’ ADEA claim, the court acknowl-

edged the Tenth Circuit’s holding in Ellis, as well as this

Court’s decision in Hazen Paper. The court held, however,

that the Ninth Circuit had “squarely decided” that the ADEA

does recognize disparate impact claims in Arnett v. Califor-

nia Public Employees Retirement System, 179 F.3d 690, 696

(9th Cir. 1999), vacated and remanded on other grounds,

___ US. __, 120 S. Ct. 631 (2000). App. 19a-20a. The

court saw “no reason to depart” from Arnett despite the fact

that this Court had vacated the decision. The Ninth Circuit

reaffirmed Arnett’s holding “that a disparate impact claim is

cognizable under the ADEA,” and reversed the district

court’s ADEA ruling. App. 20a.

2. In a comprehensive dissent, Judge O’Scannlain char-

acterized the panel’s decision as “conflict[ing] fundamen-

tally with preclusion doctrine.” App. 23a. The dissent re-

jected the majority’s position that a mandatory Rule 23(b)(2)

class action cannot preclude a subsequent damages class ac-

tion challenging the very same policy, and cited the deci-

sions of other courts of appeals that “recognized that a judg-

ment entered against a class certified under Rule 23(b)(2)

may satisfy the demands of due process and bind the mem-

bers of that class as though it had been certified under Rule

23(b)(3).” App. 28a. Because respondents had failed to

show any violation of due process in this case, Judge

O’Scannlain concluded, they should be bound by the prior

judgment. App. 30a-32a.

Nor, according to Judge O’Scannlain, was it relevant that

United had liberalized its weight standards after the ALPA

litigation, for only a change in “material operative facts” can

prevent res judicata from attaching. App. 25a-26a. And

United’s revisions to its policy, which were favorable to the

class and increased weight allowances by the same number

of pounds for both men and women, were entirely immate-

rial to respondents’ legal claim. “The lockstep increases in

maximum permissible weights, in short, are no more mate-

nal to the plaintiffs’ cause of action than the possibility that

the new policy was printed and circulated on a different

color of paper.” Jd. On this point, the dissent noted, the

Ninth Circuit decision directly conflicts with- EEOC vy.

American Airlines, Inc., 48 F.3d 164 (Sth Cir. 1995), and

“cabins preclusion doctrine so narrowly as to render it use-

less.” App. 26a.

Judge O’Scannlain also dissented from the majority’s

holding that a disparate impact claim is cognizable under the

ADEA, criticizing the majority for relying exclusively on the

vacated and hence “defunct” decision in Arnett to support its

conclusion. App. 33a.

REASONS FOR GRANTING THE WRIT

This case presents the Court with an opportunity finally

to decide a question on which it has granted certiorari three

times in the past: whether members of a “mandatory” Rule

23(b)(1) or (2) class are freed from the preclusive effect of a

class judgment if they subsequently pursue a damages action.

See Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) (cer-

tiorari dismissed as improvidently granted); Adams vy.

Robertson, 520 U.S. 83 (1997) (certiorari dismissed as im-

providently granted); Ortiz v. Fibreboard Corp., 527 U.S.

815 (1999) (decided on other grounds). The Ninth Circuit’s

answer — that class members without opt-out nghts are not

bound in subsequent damages suits — means that Rule

23(b)(1) and (2) class actions can bring no finality for defen-

dants, as this case so amply illustrates, and thus cannot oper-

ate as intended. The Ninth Circuit’s rule is also in conflict

with decisions of other courts of appeals, which treat ade-

quate representation, rather than opt-out nights, as the key to

preclusion in the class action context.

The decision below rests in part on a second, and equally

unsound, rule of preclusion. According to the Ninth Circuit,

any subsequent change in the facts underlying a judgment

deprives the judgment of preclusive effect, regardless of

whether that change has any bearing at all on the legal claims

at issue. Here, the plaintiff class’s Title VII claim focuses on

the differences in allowable weights for men and women.

But according to the Ninth Circuit, the fact that United in-

creased its weight allowances by identical amounts for men

and women somehow nullifies the effect of the original class

judgment — which sustained precisely the same differential

between male and female weight allowances. The Ninth

Circuit’s new test cannot be reconciled with Montana v.

United States, 440 U.S. 147, 157-58, 62 (1979), under which

factual changes defeat preclusion only when they are “sig-

nificant” and “material” to the underlying claims, and di-

rectly conflicts with EEOC v. American Airlines, 48 F.3d

164 (Sth Cir. 1995), as well as numerous other court of ap-

peals decisions.

Finally, the decision below deepens a persistent circuit

split on an entirely separate question: whether disparate im-

pact claims are cognizable under the Age Discrimination in

Employment Act (“ADEA”). The Court reserved this ques-

tion in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993),

though its reasoning suggested that only disparate treatment

claims are cognizable under the ADEA. In fact, the Tenth

Circuit reviewed this same United policy and concluded that

the ADEA did not permit disparate impact claims. Ellis vy.

United Airlines, Inc., 73 F.3d 999 (10th Cir. 1996). Given

the practical importance of this question to the millions of

employees and employers affected, the Court should take

this opportunity to clarify the import of Hazen Paper and

resolve the issue.

I. THE NINTH CIRCUIT’S RULING ON THE PRE-

CLUSIVE EFFECT OF THE ALPA CLASS AC-

TION JUDGMENT MARKS A _ DRAMATIC

CHANGE IN PRECLUSION LAW AND CON-

FLICTS WITH NUMEROUS COURT OF APPEALS

DECISIONS.

The Ninth Circuit offered two reasons as to why the

ALPA judgment did not preclude re-litigation of United’s

policy: that the Rule 23(b)(2) ALPA class did not permit

class members to opt out, and that United’s revisions to its

policy — the two pound increase for both women and men —

rendered preclusion inoperative. Both of these extraordinary

justifications conflict with the decisions of this Court and

numerous courts of appeals, and require this Court’s review.

A. The Ninth Circuit’s Rule That Opt-Out Rights

Are Necessary Before Class Action Judgments

Will Be Given Full Preclusive Effect Raises A

Fundamental Question About Preclusion Law

That This Court Previously Has Granted, But

Never Resolved.

The Ninth Circuit’s first rationale can be stated simply: a

judgment in a class action does not have full preclusive ef-

fect — that is, it will not preclude subsequent claims for

monetary damages — unless potential class members were

entitled to opt out of the action. This rule would render Rule

23(b)(2) of the Federal Rules of Civil Procedure, which al-

lows for class certification without an opt-out right, a tool for

binding defendants but not plaintiffs. It runs directly con-

trary to the terms and purpose of Rule 23, and departs

sharply from decisions in other courts of appeals.

This Court has three times granted certiorari to resolve

whether and when members of a “mandatory class” — class

members without opt-out nghts — may be bound by a class

judgment, but the Court was unable to reach the issue in any

of those cases. See Ticor Title Ins. Co. v. Brown, 511 US.

117 (1994) (certiorari dismissed as improvidently granted);

Adams v. Robertson, 520 U.S. 83 (1997) (certiorari dis-

missed as improvidently granted); Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) (decided on other grounds).° This case

does not present the vehicle problems that plagued Ticor Ti-

tle and Adams, and the Court should take this opportunity to

resolve this very important question.°

* The question presented in Ticor Title was, “Whether a federal court

may refuse to enforce a prior federal class action judgment, properly cer-

tified under Rule 23, on grounds that absent class members have a

constitutional due process right to opt out of any class action which

asserts monetary claims on their behalf.” The question presented in

Adams was, “Whether the certification and settlement of this nationwide

state court class action, with no right to opt out, violate the Due Process

Clause of the Fourteenth Amendment when the claims extinguished by

the settlement are predominately, if not exclusively, monetary damages

claims.” One of the questions granted in Ortiz, but not definitively

answered, was, “Does the Due Process Clause permit a federal court to

bind absent class members (including residents of the state where the

action is brought) to a class action judgment that alters their in personam

claims for money damages without giving them a chance to opt out,

when those class members lack minimum contacts with the forum state.”

° The Court dismissed Adams as improvidently granted because the

question presented to the Court for review was not “addressed by or

properly presented to the state court that rendered the decision.” 520 U.S.

at 86. Because the Ninth Circuit explicitly ruled on the preclusive effect

of a Rule 23(b)(2) class action, the problem of Adams is not present here.

1. With virtually no explanation or supporting citation,

the Ninth Circuit concludes that the procedural protections

offered the ALPA class members were “not sufficient under

Rule 23 to preclude monetary claims in later suits, for the

class in ALPA was certified and given notice as a Rule

23(b)(2) ‘injunction’ class action.” App. 10a. What the

court deems dispositive is that unlike Rule 23(b)(3) — under

which the instant class was certified — Rule 23(b)(2) does not

require that potential class members be able to opt out. Jd.

10a-1la. Because the ALPA class had no opt-out rights, the

court holds, the ALPA judgment could not preclude the

monetary claims raised in this Rule 23(b)(3) action. Jd.’

The only case the Ninth Circuit cites to support this hold-

ing, Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), is

entirely inapposite. It does not address preclusion, Rule

23(b)(2), or opting out, but merely Rule 23(b)(3) notice and

who must pay for it. See Eisen, 417 U.S. at 173-79 (Rule

23(b)(3) requires that plaintiff class receive notice and bear

costs of notice).

Though nowhere cited in the decision below, the Ninth

For a discussion of the vehicle problem in Ticor Title (and its absence in

this case), see note 8 infra.

” The Ninth Circuit addressed and rejected United’s preclusion ar-

guments only under the rubric of claim preclusion, paying no serious

attention to United’s alternative claim that re-litigation of respondents’

allegations concerning its former weight requirements is barred by issue

preclusion principles. App. 13a-14a; id. at 7a n.4 (distinguishing claim

and issue preclusion). Though United believes, for the reasons set out in

this petition, that claim preclusion applies in this case, it also preserves

its alternative argument for application of issue preclusion principles

under Montana v. United States, 440 U.S. 147 (1979). As argued to the

district court and the Ninth Circuit, even if the technical requirements of

claim preclusion do not apply, the issue decided by the Ninth Circuit -

whether the differences between United’s male and female charts consti-

tute unlawful sex discrimination — was squarely decided in United’s fa-

vor in the ALPA litigation.

Circuit’s prior decision in Brown v. Ticor Title Ins. Co., 982

F.2d 386 (9th Cir. 1993), cert. granted, 510 U.S. 810, cert.

dismissed as improvidently granted, 511 U.S. 117 (1994),

seems clearly to be the basis for the court’s holding. In Jicor

Title, the Ninth Circuit held that under the Due Process

Clause, class members may not be bound by a class judg-

ment disposing of monetary claims unless they had been af-

forded an opportunity to opt out of the class litigation. 982

F.2d at 392. Because the prior class action in Jicor Title had

been certified under Rules 23(b)(1) and (b)(2), neither of

which provides opt-out nghts, the court concluded that the

prior class judgment had no preclusive effect with respect to

damages claims. J/d.; see also Ticor Title, 511 U.S. at 120

(discussing Ninth Circuit opinion).

The opinion below makes sense only as an application of

the constitutional rule announced in Ticor Title — the rule this

Court has already granted certiorari to review.® In the Ninth

Circuit, absent class members have a due process nght to opt

out of any class action that asserts monetary claims on their

behalf. Ticor Title, 982 F.2d at 392; see also 511 U.S. at 120

(describing Ticor Title). It apparently follows, as the court

held below, that if potential class members are not given a

right to opt out of litigation leading to a class judgment — as

* The ground on which the Court dismissed certiorari in Ticor Title

does not apply in this case. In Ticor Title, as noted above, the initial Rule

23(b)(2) class sought monetary as well as equitable relief. This raised the

question whether, under the Federal Rules of Civil Procedure, the initial

class was properly certified under Rule 23(b)(2), or whether it should

have been certified under Rule 23(b)(3) — in which case opt-out nghts

would have attached. Because that non-constitutional question could

have disposed of the case, but was not properly before the Court, the

Court dismissed the writ as improvidently granted. Ticor Title, 511 U.S.

at 121-22.

In this case, by contrast, there is no question that the ALPA class,

which sought only equitable relief, was properly certified under Rule

23(b)(2). See supra n. 1. The alternative rationale discussed by the

Court in Ticor Title is therefore unavailable.

in 23(b)(2) class actions — then that judgment cannot pre-

clude their subsequent monetary claims. App. 1 la.

2. The Ninth Circuit’s rule basing the preclusive effect

of a class action judgment on the presence or absence of opt-

out rights is inconsistent with the structure and purpose of

Rule 23. Rule 23(b)(2), like Rule 23(b)(1) and in pointed

contrast to Rule 23(b)(3), does not provide for any right to

opt out. But the essential function of certifying a class action

under any of the subsections of Rule 23, including Rule

23(b)(2), is to give the resulting judgment binding effect on —

all class members under normal principles of res judicata.

See Rule 23(c)(3) and Fed. R. Civ. P. 23 1966 Advisory

Committee’s Note, reprinted in 39 F.R.D. 69, 105-06; 5

James Wm. Moore et al., Moore’s Federal Practice § 23.11

(3d ed. 1997); 7B Charles Alan Wright et al., Federal Prac-

tice and Procedure § 1789 (2d ed. 1986) (hereinafter

“Wright & Miller”). To deny full preclusive effect to class

actions under Rule 23(b)(1) and (b)(2), as is the rule under

Ticor Title and the decision below, effectively invalidates

class certification under those provisions whenever claims

for monetary damages are subsequently raised.

The practical effects of this rewriting of Rule 23 are

stark. First, the decision below creates a no-win Situation for

the defendant in a Rule 23(b)(2) class action. If the defen-

dant loses, it is subject to declaratory and equitable relief,

including back pay, and may be fully bound by that result in

a subsequent suit for monetary relief. If the plaintiff class

loses, on the other hand, it is entirely free to re-litigate the

merits of the case, simply by filing a second lawsuit seeking

damages. This “heads I win, tails you lose” scenario is pre-

cisely what the drafters of Rule 23 sought to avoid when they

amended the Rule in 1966: the 1966 amendments eliminated

so-called “one-way interventions,” in which potential class

members could secure the benefits of class judgments with-

out being bound by them, by providing that all class judg-

ments were entitled to full preclusive effect. See Advisory

Committee’s Note, 39 F.R.D. at 105-06.

Second, the decision below permits duplicative litigation

of the same issues — exactly what has occurred here. Repeti-

tious litigation of this sort always burdens both the courts

and litigants.” But it is especially problematic when — as is

necessarily the case under the Ninth Circuit rule — the prior

judgment denied preclusive effect comes in a Rule 23(b)(1)

or (2) class action. Under those provisions, class treatment is

appropriate precisely because separate proceedings might be

inequitable or impracticable, creating a risk of inconsistent or

incompatible relief or exhausting a limited pool of funds be-

fore all plaintiffs can be compensated. See Fed. R. Civ. P.

23(b)(1)(2). By definition, depriving such a class judgment

of full preclusive effect promotes the risk of unfair and in-

consistent treatment of plaintiffs and defendants, the very

results that a properly certified 23(b)(1) or (b)(2) class action

is designed to avoid.'°

Nor will the undesirable effects of the Ninth Circuit’s

* The unfairness of the burden that may be imposed on a defendant is

amply illustrated here, where the Ninth Circuit not only allowed re-

litigation of the claim, but reached exactly the opposite conclusion from

the ALPA court on the same issue — whether the differences between

United’s male and female charts were unlawful — despite the fact that the

ALPA court rejected as inapposite the same evidence upon which the

Ninth Circuit relied as a matter of law.

'° Indeed, in these cases the interest in avoiding separate litigation is

so strong that other circuits and leading commentators have expressed a

preference for certifying class actions under Rules 23(b)(1) and (b)(2)

where their standards are met — even if Rule 23(b)(3), with its opt-out

rights, is also available — explaining that it is a virtue and not a vice that

class members may be bound without a right to opt out of the litigation.

See, e.g., Kyriazi v. Western Elec. Co., 647 F.2d 388, 393 (3d Cir. 1981);

Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 249, 253 (3d Cir. 1975); In

re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); 7A Wright &

Miller, supra, § 1772, at 424-26.

rule be limited to that circuit, at least in any practical sense.

A plaintiff class can file a class action against a national cor-

poration like United in virtually any federal district court.

Thus, a 23(b)(2) class that has lost a judgment can avoid the

judgment by “forum shopping” — retooling its complaint to

seek damages and proceeding as a 23(b)(3) class in any dis-

trict court in the Ninth Circuit. A rush to re-litigate in the

Ninth Circuit is especially likely to occur in Title VII cases.

Until the Civil Rights Act of 1991, Title VII provided only

for equitable relief, including backpay, so that Title VII class

actions were certified almost exclusively under Rule

23(b)(2), with no opt-out rights. Accordingly, unless this

Court reverses the decision below, any pre-1991 judgment in

a Title VII class action, as well as most post-1991 class

judgments, would be open to re-litigation if the class simply

seeks damages and files in the Ninth Circuit.

3. The decision below ignores a long line of Supreme

Court precedent regarding the preclusive effect of a class ac-

tion judgment. It is also in conflict with decisions of other

courts of appeals that have rejected the Ninth Circuit’s prem-

ise and instead have followed the approach set out by this

Court.

a. The opinion below, like Ticor Title, departs dra-

matically from well established Supreme Court precedent

that bases the preclusive effect of a class action judgment not

on whether the original class litigation provided an opportu-

nity to opt out, but instead on whether class members were

adequately represented in the previous litigation. In its

seminal class action case, Hansberry v. Lee, 311 U.S. 32

(1940), the Court acknowledged the general principle that

everyone is entitled to his or her day in court, id. at 40, but

concluded that “there is scope within the framework of the

Constitution for holding in appropriate cases that a judgment

rendered in a class suit is res judicata as to members of the

class who are not formal parties to the suit,” id. at 42. Ac-

cording to the Court, the touchstone of res judicata in the

class action context is adequate representation: “It is famil-

iar doctrine of the federal courts that members of a class not

present as parties to the litigation may be bound by the

judgment where they are in fact adequately represented by

parties who are present.” Jd. at 42-43; see also id. at 42

(“this Court is justified in saying that there has been a failure

of due process only in those cases where it cannot be said

that the procedure adopted, fairly insures the protection of

the interests of absent parties who are to be bound by it”).

In numerous cases since Hansberry, the Court has con-

tinued to stress the critical role of adequate representation in

evaluating the preclusive effect of a class judgment. See,

e.g., Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989) (“We

have recognized an exception to the general rule [that every-

one is entitled to his or her day in court] when, in certain

limited circumstances, a person, although not a party, has his

interests adequately represented by someone with the same

interests who is a party.”); Sam Fox Pub. Co. v. United

States, 366 U.S. 683, 691 (1961) (“the judgment in a class

action will bind only those members of the class whose in-

terests have been adequately represented by existing parties

to the litigation.”); Richards v. Jefferson County, 517 U.S.

793, 800-02 (1996) (holding that an earlier judgment had no

preclusive effect because class representatives did not ade-

quately represent interests of class members). See also Her-

bert Newberg & Alba Conte, Newberg on Class Actions

§1.13 (3d ed. 1992) (rights of absent class members are pro-

tected as matter of due process if members are adequately

represented in litigation).

The Court recently has highlighted the importance of

adequate representation in the context of mandatory class

actions like the one at issue here. In Ortiz v. Fibreboard, the

Court noted the “tension” between the “day-in-court ideal”

and mandatory class actions, in which class members have

no legal right to opt out of the litigation. 119 S. Ct. at 2314.

But the Court never has suggested that mandatory class

judgments are excluded from the normal rules of res judi-

cata. Instead, the Court held, federal courts must exercise

“heightened attention” when certifying mandatory classes to

ensure that class members are adequately represented. Id. at

2316. See also Amchem Prod. v. Windsor, 521 U.S. 591,

621 (1997) (noting the need for careful review of class certi-

fication to ensure adequate representation “‘so that absent

members can fairly be bound by decisions of class represen-

tatives”).'!

b. The Ninth Circuit’s conclusion that the absence

of opt-out rights itself suffices to deprive Rule 23(b)(1) and

(b)(2) class judgments of full preclusive effect is — not sur-

prisingly — in conflict with decisions of other courts of ap-

peals. Those courts have held that a class judgment pre-

cludes monetary claims regardless of whether class members

are entitled to opt out of the litigation. See Kyriazi, 647 F.2d

at 393 (judgment in Rule 23(b)(2) class action binds class

members as to monetary claims despite lack of opt-out

rights); In re Agent Orange Prod. Liab. Litig., 996 F.2d

1425, 1435 (2d Cir. 1993) (rejecting argument that due proc-

ess requires opt-out rights before class members unaware of

injuries may be bound as to monetary claims); see also

Gonzales v. Cassidy, 474 F.2d 67, 74 & n.12 (Sth Cir. 1973)

(Rule 23(b)(2) class actions generally afforded preclusive

effect despite absence of opt-out rights).

' It is not clear whether notice plays any independent role in deter-

mining the preclusive effect of a class judgment where the adequate rep-

resentation standard is met. See Richards, 517 U.S. at 799-800 (assum-

ing without deciding that adequate representation may “cure” a lack of

notice). That question is not implicated here. Although the Ninth Circuit

briefly discussed notice requirements, it expressly declined to base its

holding on the notice provided to the ALPA class members. App. 10a-

Ila.

Following the lead of this Court, the courts of appeals

other than the Ninth Circuit treat adequate representation,

rather than a night to opt out, as the critical factor necessary

to bind absent class members to a class judgment under both

Rule 23 and the Due Process Clause. See, e.g., In re Agent

Orange, 996 F.2d at 1435 (absent class members’ interests

best protected by “ensuring that they receive vigorous and

faithful vicarious representation”); Gonzales, 474 F.2d at 74

(due process requires adequate representation for class

judgment to be res judicata as to absent class members);

Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 256 (3d Cir.

1975) (“as long as the representation is adequate and faithful,

there is no unfairness in giving res judicata effect to a judg-

ment against all members of [a Rule 23(b)(2)] class”);

Laskey v. UAW, 638 F.2d 954, 956-57 (6th Cir. 1981) (ade-

quate representation, rather than opt-out nght, as precondi-

tion for binding absent class members to judgment). '”

By resurrecting TJicor Title in the decision below, the

Ninth Circuit reiterated its disagreement with an entire line

of Supreme Court cases and with the majority approach in

the courts of appeals.'’ In light of the profound implications

'2 In these federal circuits, the vehicle for challenging the adequacy

of representation is generally a collateral attack in the court in which the

prior class judgment is offered as a defense. See, e.g., Gonzales, 474

F.2d at 75 (permitting plaintiff to collaterally attack adequacy of prior

class representation). This is in keeping with the “recognized principle

that the court conducting the action cannot predetermine the res judicata

effect of the judgment; this can be tested only in a subsequent action.”

Advisory Committee’s Note, 39 F.R.D. at 106; see also 7B Wright &

Miller, supra, § 1789, at 245-46; Note, Binding Effect of Class Actions,

67 Harv. L. Rev. 1059, 1060 (1954).

'? In discussing the effect on subsequent litigation of the ALPA “set-

tlement,” the court below did “rote that the terms of the settlement in

ALPA appear not to protect the interests” of all class members. App. 1 la.

But as explained supra at n. 4, United relied solely on the ALPA judg-

ment and not any settlement for its preclusion arguments. In any event,

the panel’s allusion to the merits of the post-judgment agreement be-

tween the plaintiff class and United cannot have been intended as a find-

ie ee

La TT ee es

of this ruling for the viability of Rule 23(b)(1) and (2) class

actions, the Ninth Circuit’s decision merits the Court’s im-

mediate attention.

B. The Ninth Circuit’s Holding That Immaterial

Factual Changes Deprive A Judgment Of Any

Preclusive Effect Conflicts With The Decisions Of

This Court And Of Numerous Courts Of Appeals.

Although the Ninth Circuit ostensibly offered two addi-

tional reasons why the ALPA judgment cannot be given pre-

clusive effect — that a “new” Title VII claim arose after the

1979 ALPA judgment and that this new claim was based on a

different weight policy — these separately stated reasons are

merely two ways of saying the same thing: United’s imple-

mentation of a revised and more liberal policy in 1980, pur-

suant to the ALPA judgment, stripped the 1979 ALPA judg-

ment of preclusive effect. See App. 24a (O’Scannlain, J.,

dissenting) (rationales are “part and parcel of the same ar-

gument” and “logically indistinguishable”). This is so, under

the Ninth Circuit’s rationale, regardless of whether the

changes to United’s weight policy — which in fact applied

even-handedly to men and women — had any material bear-

ing on the legal claims at issue. The Ninth Circuit’s conclu-

sion squarely conflicts with decisions of several other courts

of appeals, ignores controlling Supreme Court precedent, and

represents a fundamental change in preclusion law that will

be felt nationwide. '

ing of inadequate representation by the ALPA class representatives. Re-

spondents never challenged the adequacy of the ALPA representation

before the district court or the Ninth Circuit, and there was accordingly

nO Opportunity to defend the adequacy of that representation. As Judge

O’Scannlain recognized, by failing “to assert that they were inadequately

represented,” respondents “have simply waived the “inadequate represen-

tation’ argument.” App. 31a.

'* To the extent the Ninth Circuit intended to put independent weight

on its “first” rationale and suggest that a class action judgment cannot

1. Until now, it had long been understood that “[a]bsent

significant changes in controlling facts,” an earlier judgment

on the merits precludes re-litigation of the same issue. Mon-

tana v. United States, 440 U.S. 147, 157-58 (1979); see id. at

162 (“normal rules of preclusion should operate” when the

factual context “in which the issues . . . arise has not materi-

ally altered”) (emphases added); see also 18 Moore et al.,

supra, § 132.02[2][e] (whether preclusion applies depends

“on whether controlling facts have changed significantly

since the earlier judgment’). In other words, immaterial fac-

tual changes do not override the important principles of pre-

clusion.

The Ninth Circuit’s decision directly conflicts with

EEOC v. American Airlines Inc., 48 F.3d 164 (5th Cir.

1995), in which the Fifth Circuit faced a situation virtually

identical to this one but came to a very different result. That

case began with a 1970s class action challenging American’s

employment policy under the ADEA. The Court of Appeals

for the Distnct of Columbia Circuit upheld the policy in

1981. Murnane v. American Airlines, Inc., 667 F.2d 98

(D.C. Cir. 1981). American subsequently revised its policy

in favor of the class, expanding the pool of individuals eligi-

ble for employment. American Airlines, 48 F.3d at 166. The

EEOC then filed suit against American, arguing that its re-

vised policy violated the ADEA. When American argued

that the 1981 judgment precluded re-litigation of the policy’s

legality, EEOC responded that the “new, more liberal pol-

icy” negated any preclusive effect that the 1981 judgment

may otherwise have had. Jd. at 167. Applying Montana, the

bind future class members, its reasoning flies in the face of longstanding

preclusion principles. It is well established that a judgment in a class

action “may actually bind future claimants, i.e., those persons whose

claims have not ripened at the time the judgment is entered but who sub-

sequently come within the defined class.” 18 Moore et al., supra,

§ 131.40[3][e] [iii].

Fifth Circuit described the EEOC’s position — identical to the

Ninth Circuit’s here — as “both counterintuitive and illogi-

cal.” Jd. at 169. As the Fifth Circuit stated, “i]t is not

enough to avoid the preclusive effect of the prior determina-

tion for the EEOC to show merely a change in facts: a

change must have occurred in facts that were essential to the

judgment and were ‘of controlling significance.’” Jd. at 168

(citing Montana, 440 U.S. at 159-61).

The Ninth Circuit’s decision also conflicts with virtually

every court of appeals that has considered this question.

Like the Fifth Circuit, the federal courts of appeals — with the

exception of the Ninth Circuit in the opinion below — have

consistently applied Montana’s “significant changes” test to

determine whether subsequent factual changes deprive an

earlier judgment of preclusive effect. See, e.g., DeCosta v.

Viacom Int'l, Inc., 981 F.2d 602, 605, 610-12 (1st Cir. 1992)

(Breyer, C.J.) (holding that an earlier judgment had preclu-

sive effect because there were no significant factual

changes); Niagara Frontier T. ariff Bureau, Inc. v. United

States, 826 F.2d 1186, 1190 (2d Cir. 1987) (applying Mon-

tana to hold judgment preclusive absent “changes in control-

ling facts”); Raytech Corp. v. White, 54 F.3d 187, 193-95 (3d

Cir. 1995) (applying Montana to hold Judgment preclusive

because evidence of new facts did not “establish a change in

facts essential to the [earlier] judgment.”); Coleman v. Com-

missioner of Internal Revenue, 16 F.3d 821, 830-31 (7th Cir.

1994) (holding judgment preclusive because there was “no

significant change in the controlling facts”); RTS Inv. Corp.

v. Commissioner of Internal Revenue, 877 F.2d 647, 650 (8th

Cir. 1989) (citing Montana for proposition that there is no re-

litigation when “factual and legal context . . . [are] not mate-

nally altered” since the original judgment); Klein v. Commis-

sioner of Internal Revenue, 880 F.2d 260, 262-64 (10th Cir.

1989) (applying Montana to hold judgment preclusive be-

cause new testimony did not “alter the controlling facts”);

North Georgia Elec. Membership Corp. v. City of Calhoun,

989 F.2d 429, 436 (11th Cir. 1993) (applying Montana to bar

re-litigation because there was no change to “[tJhe facts es-

sential to the judgment’); Cutler v. Hayes, 818 F.2d 879, 890

n.88 (D.C. Cir. 1987) (applying Montana to hold that the al-

leged new facts were “immaterial to the legal basis on which

the [earlier] court’s ultimate findings on standing rested, and

so could not demonstrate a change in controlling facts suffi-

cient to justify an exception to [preclusion] principles.”);

Arkla, Inc. v. United States, 37 F.3d 621, 625 (Fed. Cir.

1994) (applying Montana to hold that “because neither fac-

tual difference in this case alters any of these facts essential

to the judgment [in the earlier litigation], the differences do

not prevent operation” of preclusion).

The Ninth Circuit, by contrast, has ignored the clear lan-

guage of Montana and applied a different test for determin-

ing when factual changes deprive a prior judgment of preclu-

sive effect: preclusion does not apply unless “the two suits

arise out of the same transactional nucleus of facts,” App.

10a, and regardless of whether any factual change is signifi-

cant or material to the legal claims at issue. Under this test,

it appears that any revision to a previously approved policy —

no matter how immaterial and even if favorable to plaintiffs

— will necessarily thwart the defense of preclusion. In the

Ninth Circuit, whether a change was significant or involved

a controlling fact — the key inquiry in Montana and the

courts of appeals following Montana — is wholly irrelevant.

The difference is much more than semantic. If the Ninth

Circuit had applied Montana’s “significant changes” test,

which governs in the First, Second, Third, Fifth, Seventh,

Eighth, Tenth, Eleventh, D.C., and Federal Circuits, United’s

across-the-board two-pound increase in allowable weights

and further increases based upon age — revisions favorable to

the plaintiff class and applied equally to men and women —

would not constitute a change sufficiently material to deprive

the ALPA judgment of preclusive effect. See App. 26a

(O’Scannlain, J., dissenting) (applying correct standard and

finding that “the new policy does not differ from the old one

in any way that is itself material to the plaintiffs’ claim”).

If, on the other hand, the Fifth Circuit in EEOC v. Ameri-

can Airlines had applied the standard that now governs in the

Ninth Circuit, there is no doubt that the EEOC could have re-

litigated the legality of American’s revised and liberalized

policy on the theory that its new claim did not arise from the

“same transactional nucleus of facts” as the prior judgment.

In fact, if American Airlines has revised its policy since the

Fifth Circuit’s decision in American Airlines, the EEOC will

now be free to challenge American’s policy simply by filing

yet another suit in a Ninth Circuit district court. Equally

perplexing, if United reinstates its weight policy and adds

two pounds to its charts (or even deducts two pounds),

United apparently could re-litigate the validity of its weight

policy despite the Ninth Circuit’s holding below, for accord-

ing to the Ninth Circuit, the “new” policy would not arise

from the “same transactional nucleus of facts” underlying the

claims in this case.

2. The Ninth Circuit’s new test creates a giant preclu-

sion loophole, permitting unsuccessful plaintiffs to re-litigate

the legality of hundreds of policies already upheld by other

courts throughout the country simply by filing suit in the

Ninth Circuit. Policies like the one at issue here — litigated,

approved, and subsequently revised in favor of a plaintiff

class — will become fair game for complete re-litigation,

even though all of the parties had understood that the matter

was settled years ago and acted accordingly. If this decision

is allowed to stand, plaintiffs and defendants alike will suffer

the consequences: defendants, because their policies, once

upheld, will remain subject to attack if they make even the

‘most insignificant of changes; and plaintiffs, because they

will soon find that defendants are unwilling to open them-

selves up to repeat litigation by making accommodations that

would have been favorable to the plaintiffs’ interests. The

doctrines of preclusion exist to prevent these very results.'°

Il. THE FEDERAL CIRCUITS ARE SHARPLY DI-

VIDED ON WHETHER DISPARATE IMPACT

CLAIMS ARE COGNIZABLE UNDER THE ADEA

AFTER THIS COURT’S DECISION IN HAZEN

PAPER.

The Ninth Circuit’s holding that the ADEA permits a

disparate impact claim directly conflicts with decisions of

the First, Seventh, and Tenth Circuits. Those courts of ap-

peals, which have carefully analyzed the question in light of

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), have con-

cluded that the ADEA provides no action for disparate im-

pact. The Ninth Circuit, on the other hand, like the Second

. and Eighth Circuits, continues to cling to pre-Hazen case law

and hold that the ADEA allows disparate impact actions.

The question is one of immense practical importance both to

employees and employers, given that tens of millions of

workers qualify for ADEA protection. The pronounced cir-

cuit conflict on this question merits this Court’s review.

1. In Hazen Paper, the question before the Court was

whether “an employer violates the ADEA by acting on the

basis of a factor . . . that is empirically correlated with age.”

507 U.S. at 608. The Court distinguished between disparate

treatment claims, which turn on whether the protected trait

motivated the employer, and disparate impact claims, which

involve facially neutral practices that in fact fall more

harshly on one group than another and cannot be justified by

business necessity. Jd. at 610. The Court then concluded

'S Even if the Ninth Circuit correctly concluded that the ALPA judg-

ment lacked preclusive effect, it erred in granting respondents summary

judgment on the issue of Title VII liability, as there were undoubtedly

material issues of fact still in dispute. See Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

that no cause of action for disparate treatment is available

under the ADEA when a factor other than age motivates an

employer, even if that factor is correlated with age. Id. at

609.

Hazen Paper specifically left open the question whether

the ADEA permits an action for disparate impact. See id. at

610. The opinion, however, makes clear that “[d]isparate

treatment . . . captures the essence of what Congress sought

to prohibit in the ADEA.” Jd. What Congress was con-

cerned about, the Court held, was the denial of employment

opportunities to older workers based on their age and on “‘in-

accurate and stigmatizing stereotypes” that they would be

unproductive because of their age. Jd. at 610-11. But “the

problem of inaccurate and stigmatizing stereotypes disap-

pears” when an employer’s conduct is “motivated by factors

other than age.” Jd. at 611. And “{t}his is true even if the

motivating factor is correlated with age.” Id.

What the Court in Hazen Paper describes as falling out-

side the concerns that animated the ADEA is a disparate im-

pact claim — a claim that an employment policy, though not

actually based on age, correlates so closely with age that it

has a disproportionate impact on older employees. “{T]he

inescapable implication of [the Court’s] statements is that the

imposition of disparate impact liability would not address the

evils that Congress was attempting to purge when it enacted

the ADEA.” Mullin v. Raytheon Co., 164 F.3d 696, 701 (1st

Cir. 1999). Indeed, in a separate concurring opinion to

Hazen Paper, Justice Kennedy, joined by the Chief Justice

and Justice Thomas, emphasized this point, referring to

“substantial arguments that it is improper to carry over dispa-

rate impact analysis from Title VII to the ADEA.” 507 US.

at 618.

2. The text and history of the ADEA support the Court’s

indication in Hazen Paper that the ADEA does not recognize

disparate impact claims. The ADEA prohibits employment

decisions based upon the age of any employee forty years or

older. 29 U.S.C. §§ 623(a), 631(a) (1994). But the ADEA

also expressly provides that “(i]t shall not be unlawful for an

employer . . . to take any action otherwise prohibited . . .

where the differentiation is based on reasonable factors other

than age.” 29 U.S.C. § 623(f)(1) (1994) (emphasis added).

By definition, a disparate impact claim rests upon a factor

“other than age;” an employment decision actually based

upon age is an action for disparate treatment, not disparate

impact. It follows that § 623(f)(1) precludes a disparate im-

pact claim under the ADEA. See Markham v. Geller, 451

U.S. 945, 949 (1981) (Rehnquist, J., dissenting from denial -

of certiorari) (citing 29 U.S.C. § 623(f)(1) as conclusive evi-

dence that Congress did not intend the ADEA to recognize

disparate impact claims).

Not surprisingly, the Court came to just this conclusion

when reviewing virtually identical language in the Equal Pay

Act, 29 U.S.C. § 206(d), which prohibits wage discrimina-

tion based on sex but excepts payment of differential wages

to men and women “based on any other factor other than

sex.” 29 U.S.C. § 206(d)(1)(iv) (1994) (emphasis added).

See County of Washington v. Gunther, 452 U.S. 161, 169-70

(1981). A disparate impact claim simply cannot be recon-

ciled with such limits on liability: “The prohibition and ex-

ception appear identical. The sentence is incomprehensible

unless the prohibition forbids disparate treatment and the ex-

ception authorizes disparate impact.” Douglas Laycock,

Continuing Violations, Disparate Impact in Compensation, -

and Other Title VII Issues, 49 L. & Contemp. Probs. 53, 55

(1986) (discussing Equal Pay Act). Even before the decision

in Hazen Paper caused the Seventh Circuit to change its

course, Judge Easterbrook observed that the “language,

structure, and history of the ADEA have led thoughtful peo-

ple to conclude . . . that disparate impact analysis is inappli-

cable in ADEA cases.” Metz v. Transit Mix, Inc., 828 F.2d

1202, 1220 (7th Cir. 1987) (Easterbrook, J., dissenting).

rr i ee

3. Despite the import of Hazen Paper and the terms of

the ADEA itself, the federal circuits are deeply divided over

whether the ADEA permits disparate impact claims. Several

courts of appeals have analyzed the issue carefully in light of

Hazen Paper and concluded that the ADEA does not recog-

nize disparate impact claims. See Mullin, 164 F.3d at 700,

703-04 (“[t]he tectonic plates [of ADEA disparate impact

law] shifted” after Hazen Paper, precluding disparate impact

liability under the ADEA); Ellis v. United Airlines, Inc., 73

F.3d 999, 1009 (10th Cir. 1996) (reviewing the same United

policy and holding that “one cannot read [Hazen Paper]

without receiving the strong impression that the Supreme

Court is suggesting that the ADEA does not encompass a

disparate impact claim.”); EEOC v. Francis W. Parker Sch.,

41 F.3d 1073, 1076-78 (7th Cir. 1994) (Hazen Paper bars

ADEA disparate impact claims).'®

The Second, Eighth, and Ninth Circuits, on the other

hand, have considered the question after Hazen Paper but

continue to rely on their own pre-Hazen Paper case law to

recognize disparate impact claims under the ADEA. The

Second Circuit has acknowledged both Hazen Paper and the

conflict in the courts of appeals, but continues to hold that

the ADEA allows for suits under disparate impact theories.

District Council 37 v. New York City Dep't of Parks & Rec-

reation, 113 F.3d 347, 351 (2d Cir. 1997); see also Smith v.

'° Other circuits have suggested that Hazen forecloses disparate im-

pact claims under the ADEA. Broaddus v. Florida Power Corp., 145

F.3d 1283, 1287 (11th Cir. 1998) (citing Hazen for the proposition that

the “ADEA does not prohibit an employer from making an employment

decision on the basis of higher salaries, increased benefits, pension

Status, or claims for medical expenses even though these characteris: s;

are often correlated with an employee’s age.”); Gantt v. Wilson Sporting

Goods Co., 143 F.3d 1042, 1048 (6th Cir. 1998) (Hazen creates “consid-

erable doubt” that disparate impact claims are available under the

ADEA) (citation omitted); DiBiase v. SmithKline Beecham Corp., 48

F.3d 719, 733 (3d Cir. 1995) (op. of Greenberg, J.) (“it is difficult to see

how disparate impact liability can survive” Hazen).

Xerox Corp., 196 F.3d 358, 367 n.6 (2d Cir. 1999) (reiterat-

ing that ADEA permits disparate impact claims but recogniz-

ing split with First, Seventh, and Tenth Circuits). The Eighth

Circuit takes the same position. EEOC v. McDonnell Doug-

las Corp., 191 F.3d 948, 950 (8th Cir. 1999) (recegnizing

split among federal circuits but adhering to circuit precedent

allowing disparate impact claims under ADEA). And the

Ninth Circuit repeatedly has refused to acknowledge that

Hazen Paper has any impact upon ADEA disparate impact

law, despite what the other courts of appeals may think. See,

e.g., EEOC v. Local No. 350, 998 F.2d 641, 648 n.2 (9th Cir.

1993) (“We perceive no conflict between Hazen” and an

ADEA disparate impact challenge). As the First Circuit has

noted, these opinions substitute “reliance on pre-Hazen Pa-

per precedents and the law of the circuit doctrine” for careful

analysis of Hazen Paper. Mullin, 164 F.3d at 701.

This case, in which the Ninth Circuit held that respon-

dents’ claims were not actionable under disparate treatment

theory but were actionable under a disparate impact theory,

see note 3, supra, squarely presents the question whether the

ADEA recognizes disparate impact claims. The Ninth Cir-

cuit’s holding deepens the split in the federal circuits on that

question. The Court should grant review to clarify the im-

pact of Hazen Paper and resolve this important issue.

CONCLUSION

For the foregoing reasons, the petition for writ of certio-

rari should be granted.

“a

JENNIFER ANSBRO HALE

United Airlines, Inc.

1200 East Algonquin Road

Elk Grove Village, IL 60007

(847) 700-4194

Attomeys for Petitioner

Respectfully submitted,

WALTER E. DELLINGER

(Counsel of Record)

TOM A. JERMAN

PAMELA HARRIS

SRI SRINIVASAN

JOHN B. OWENS

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Nos. 98-15638, 98-16687

LESLIE FRANK; PAT PARNELL; SUSAN BRODERICK; CAROLE

KIRK; NICHKOL MELANSON; SANDRA HUFF; DIANE DAVIS;

SHARON BENJAMIN; SHARRON K. TAYLOR; BLAND LANE;

JOAN BALLA WEAVER; DONNA DURKIN; ELLEN

McCormick,

Plaintiffs-Appellants,

UNITED AIRLINES, INC.,

Defendant-Appellee.

Appeals from the United States District Court for the

Northern District of California.

June 21, 2000

Before: REINHARDT, O'SCANNLAIN, and W.

FLETCHER, Circuit Judges.

W. FLETCHER, Circuit Judge:

From 1980 to 1994, defendant United Airlines, Inc.

("United") required flight attendants to comply with

maximum weight requirements based on sex, height and age.

Failure to maintain weight below the applicable maximum

subjected a flight attendant to various forms of discipline,

including suspension without pay and termination. In 1992,

plaintiffs filed this action on behalf of a class of female flight

attendants to challenge these weight requirements.

Plaintiffs contend that by adopting a discriminatory

weight policy and enforcing that policy in a discriminatory

manner, United discriminated against women and older flight

attendants in violation of Title VII of the Civil Rights Act of

1964 ("Title VII"), 42 U.S.C. § 2000e; the Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§

621-634; the Americans with Disabilities Act ("ADA"), 42

US.C. §§ 12101-12213; and the Califomia Fair

Employment and Housing Act ("FEHA"), Cal. Gov't Code

§§ 12900- 12996. The district court granted summary

judgment for defendant on all of plaintiffs’ class and

individual claims. We have jurisdiction under 28 U.S.C. §

1291. We reverse in part and affirm in part.

During the 1960s and early 1970s, the standard practice

among large commercial airlines was to hire only women as

flight attendants. The airlines required their flight attendants

to remain unmarried, to refrain from having children, to meet

weight and appearance criteria, and to retire by the age of 35.

See Gerdom v. Continental Airlines, Inc., 692 F.2d 602,

605-06 (9th Cir.1982) (en banc) (collecting cases). Like

other airlines, defendant United had a long-standing practice

of requiring female flight attendants to maintain their weight

below certain levels. After it began hiring male flight

attendants in the wake of Diaz v. Pan Am. World Airways,

Inc., 442 F.2d 385 (Sth Cir.1971), United applied maximum

weight requirements to both male and female flight

attendants.' Flight attendants--a group comprised of

' Although United historically had male flight attendants of Hawaiian

descent on flights to Hawaii, those positions were treated as a separate

category from other flight attendant positions, and United did not require

the "Hawaiian stewards” to meet weight restrictions. Even after United

began hiring men as flight attendants on non-Hawaiian flights and

approximately 85% women during the time period relevant

to this suit--are the only employees United has ever subjected

to maximum weight requirements. United abandoned its

weight requirements for flight attendants in 1994.2

Between 1980 and 1994, United required female flight

attendants to weigh between 14 and 25 pounds less than their

male colleagues of the same height and age. For example,

the maximum weight for a 5'7", 30-year-old woman was 142

pounds, while a man of the same height and age could weigh

up to 161 pounds. A 5'11", 50-year-old woman could weigh

up to 162 pounds, while the limit for a man of the same

height and age was 185 pounds. United's weight table for

men during this period was based on a table of desirable

weights and heights published by the Metropolitan Life

Insurance Company ("MetLife"). The comparable weight

table for women was based on a table of maximum weights

established by Continental Air Lines ("Continental"). A

comparison of United's MetLife-derived limits for men to the

Continental-derived weight limits for women reveals that

United generally limited men to maximum weights that

corresponded to large body frames for men on the MetLife

charts but generally limited women to maximum weights that

corresponded to medium body frames for women on MetLife

charts.

The thirteen named plaintiffs worked for United as flight

attendants while United's 1980-1994 weight policy was in

effect. The named plaintiffs attempted to lose weight by

various means, including severely restricting their caloric

established maximum weight requirements for male flight attendants, the

Hawaiian stewards remained exempt from weight requirements.

* United suspended its weight program for approximately one year from

September 1991 to September 1992. While that suspension may be

relevant to damages, it is not relevant to the legal validity of plaintiffs’

claims.

Bake Rees al rn

iy ate ne We en eet

intake, using diuretics, and purging. Ultimately, however,

plaintiffs were each disciplined and/or terminated for failing

to comply with United's maximum weight requirements. In

1992, plaintiffs filed this employment discrimination action.

They sought to represent plaintiff classes of female flight

attendants for claims of sex and age discrimination, and they

asserted various claims of individual discrimination.

On March 15, 1994, the parties stipulated to certify a

plaintiff class for the Title VII sex discrimination claim and a

plaintiff subclass of members over 40 years old for the

ADEA age discrimination claim. On April 12, 1994, the

district court certified a Title VII class comprised of

all female flight attendants employed by United,

currently or in the future, and all female flight

attendants who were terminated, retired or resigned

on or after January 5, 1989, as a result of their failure

to comply with United's weight requirements[;]

and an ADEA subclass comprised of

all female flight attendants, age 40 or above,

employed by United currently, or who were

terminated, retired or resigned after January 5, 1989

as a result of their failure to comply with United's

weight requirements.

Neither party challenges the 1989 cutoff date for certification

of the class.

The parties stipulated in the class certification order that

individual notice would be sent to all members of the Title

VII class and all potential members of the ADEA subclass.

Although the order stated that the class was certified under

Federal Rule of Civil Procedure 23(b)(2), as a so-called

"injunction" class action, the notice actually sent satisfied the

heightened notice required for a Rule 23(b)(3) "damages"

class action, set forth in Rule 23(c)(2). The parties agree that

the suit subsequently became a Rule 23(b)(3) class action

after United abolished its weight program in 1994, thereby

eliminating the need for injunctive relief. A form of notice,

attached to the stipulation, provided that class members

could "opt out" of the class certified for the Title VII claim.

A second form of notice, also attached to the stipulation,

provided that potential class members could “opt in" to the

subclass certified for the ADEA claim.

Shortly after the class and subclass were certified, United

suspended its weight policy “until further notice" and

retumed to service all attendants then held out of service

under its weight policy. On August 16, 1994, United

eliminated the weight policy entirely. In 1995, United

offered to reinstate many class and subclass members who

had been terminated under the weight policy. United did not

require individuals accepting reinstatement to waive any

potential claims against it arising from earlier discipline or

termination.

The parties filed cross-motions for summary judgment on

plaintiffs’ class claim that United's weight policy

discriminated against female flight attendants in violation of

Title VII. On August 16, 1995, the district court denied

plaintiffs’ motion and granted summary judgment for United.

The court held that any facial attack on the weight policy was

foreclosed by claim preclusion resulting from Air Line Pilots

Ass'n Int'l v. United Air Lines, Inc. ("ALPA "), 26 F.E.P.

Cases 607, 1979 WL 34 (E.D.N.Y.1979), a decision

resolving a facial challenge to an earlier United weight

policy. The district court permitted plaintiffs to go forward

under Title VII only on claims that United discriminated in

the administration of its weight policy.

On February 26, 1997, the district court granted summary

judgment for United on plaintiffs’ remaining class claims of

sex and age discrimination. The court held that plaintiffs had

failed to present evidence of a pattern or practice of sex or

age discrimination in the administration of the weight policy.

The court further held that plaintiffs could not assert a

disparate impact claim for sex discrimination based on

United's administration of medical exceptions to the weight

policy. Finally, applying the Tenth Circuit's decision in Ellis

v. United Airlines, 73 F.3d 999 (10th Cir.1996), the court

held that a disparate impact theory was not available under

the ADEA.

On March 1!, 1998, the district court entered an order

granting summary judgment for United on all of plaintiffs’

individual claims. The court decertified the age and sex

discrimination classes and denied plaintiffs’ application for

costs.’

We review de novo decisions granting summary

judgment. See Robi v. Reed, 173 F.3d 736, 739 (9th

Cir.1999). Viewing the evidence in the light most favorable

to plaintiffs, we must determine whether genuine issues of

material fact preclude summary judgment and whether the

district court correctly applied the relevant substantive law.

See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th

Cir.1998). Questions of claim and issue preclusion are also

reviewed de novo. See C.D. Anderson & Co., Inc. v. Lemos,

832 F.2d 1097, 1100 (9th Cir.1987).

Ill

> The district court did not, in most instances, separately address

plaintiffs’ FEHA claims, but the parties acknowledge that those claims

rise or fall with plaintiffs’ federal claims.

As a threshold matter, plaintiffs contend that the district

court erred in holding that claim preclusion ‘ foreclosed their

facial attack under Title VII. "[A] valid final adjudication of

a claim precludes a second action on that claim or any part of

it." Baker ex rel. Thomas v. General Motors Corp., 522 U.S.

222, 233 n. 5, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). For

claim preclusion to apply, there must be (1) an identity of

claims in the two actions; (2) a final judgment on the merits

in the first action; and (3) identity or privity between the

parties in the two actions. See Western Radio Servs. Co. v.

Glickman, 123 F.3d 1189, 1192 (9th Cir.1997) (citing

Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402

U.S. 313, 323- 24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971)).

The district court concluded that plaintiffs’ facial Title

VII claim is precluded by the 1979 district court decision in

ALPA v. United Air Lines, Inc., cited above. Plaintiffs in

ALPA, the Air Line Pilots Association and individual named

plaintiffs, claimed on behalf of a class of United flight

attendants that United's 1977 weight policy discriminated

against female flight attendants in violation of Title VIL.

Plaintiffs and United stipulated to class certification, and the

district court certified a Rule 23(b)(2) class defined as

all female flight attendants who are employed by

United or who may become so employed in the

future, and all former female flight attendants who

were employed by United on or after October 14,

* Rather than using the terms “res judicata” and “collateral estoppel,” the

Supreme Court has generally used the terms “claim preclusion” and

“issue preclusion.” See Migra v. Warren City School Dist. Bd. Of Educ.,

465 U.S. 75, 77 n.1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). “Claim

preclusion” refers to the preclusive effect of a judgment in foreclosing

relitigation of claims that were raised or should have been raised in

earlier litigation, and “issue preclusion” refers to the preclusive effect of

a judgement in foreclosing relitigation of issues that have been actually

and necessarily decided in earlier litigation. See id.

1971 and were suspended, removed from service, or

terminated by United for failure to meet United's

flight attendant weight standards.

Id. at 609. Notice to current employees was accomplished

by placing the notice in their employee boxes. Notice to

former employees was attempted by sending it to their

last-known addresses. Because the class was certified under

Rule 23(b)(2), plaintiffs could not opt out of the class.

The district court in ALPA found that United's weight

standards were not facially discriminatory, see 26 F.E.P.

Cases at 615, 618, but that United had discriminated in

applying those standards. See id. at 621-22. The court

enjoined United from discriminating on the basis of sex in

enforcing its weight standards, and it ordered reinstatement,

back pay, and seniority credit for female flight attendants

who had suffered discrimination. See id. at 626. The court

wrote:

United is free to continue using the flight attendant

weight standards promulgated by United in May

1977. Nothing in the court's decision or order is

intended to pass upon the validity of any other weight

standard for male or female flight attendants that

United might adopt in the future.... United's current

weight standards for male and female flight

attendants are valid,... United is not prohibited from

adopting other standards, and ... the validity of any

other standard has not been determined.

Id. at 626 (emphasis added).

After entry of judgment and while cross-appeals were

still available, the parties settled the litigation. For their part,

plaintiffs agreed not to appeal the district court's holding that

the 1977 weight policy was not facially discriminatory. For

its part, United agreed to alter its weight charts by slightly

increasing the weight limits and agreed not to appeal the

district court's decision that United had discriminated in

administering the weight policy. The terms of the settlement

were described in a letter to the district court,’ but the court

was never asked to approve the settlement, as it would have

been required to do under Rule 23(e) if the parties had

entered into the same settlement prior to entry of judgment.

For several reasons, the district court in this case erred in

giving claim preclusive effect to the ALPA judgment. First,

the plaintiffs in this suit assert claims based on alleged Title

VII violations arising after 1980. A claim arising after the

date of an earlier judgment is not barred, even if it arises out

of a continuing course of conduct that provided the basis for

the earlier claim. See Lawlor v. National Screen Serv. Corp.,

349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955)

("While the 1943 judgment precludes recovery on claims

arising prior to its entry, it cannot be given the effect of

extinguishing claims which did not even then exist and

which could not possibly have been sued upon in the

previous case."). Because the judgment in ALPA was

entered in 1979, under Lawlor it cannot preclude claims

based on events occurring after that date. See id.; see also

International Techs. Consultants, Inc. v. Pilkington, PLC,

137 F.3d 1382, 1388 (9th Cir.1998) ("By winning the first

action, the defendants ‘did not acquire immunity in

perpetuity from the antitrust laws.'").

* After the district court entered its order and judgment in ALPA, counsel

for the plaintiff class wrote to the court "to confirm that ... neither side

will appeal from any Order, Decision or Judgment heretofore issued by

the Court[.]"_ A subsequent letter from class counsel Stated, inter alia:

"United has agreed to revise its flight attendant weight program, effective

February 1, 1980. For the information of the Court, a copy of the new

program is annexed hereto[.}"

10a

Second, plaintiffs’ litle VII claim is based on a different

weight policy from that challenged in ALPA. The central

criterion in determining whether there is an identity of claims

between the first and second adjudications is "whether the

two suits arise out of the same transactional nucleus of

facts." Costantini v. Trans World Airlines, 681 F.2d 1199,

1201- 02 (9th Cir.1982) (setting forth test for identity of

claims); see also Hawaiian Tel. Co. v. Public Utils. Comm'n,

827 F.2d 1264 (9th Cir.1987). Recognizing the possibility of

litigation over a new weight policy, the district court in

ALPA explicitly stated that it was not passing on the validity

of any weight standards United might adopt in the future.

Because United changed its weight tables and weight policy

in 1980 as part of the post- judgment settlement, we hold that

plaintiffs’ claims in this case do not arise from the "same

transactional nucleus of facts" underlying the claims in

ALPA.

Third, notice in ALPA was not sufficient under Rule 23

to preclude monetary claims in later suits, for the class in

ALPA was certified and given notice as a Rule 23(b)(2)

"injunction" class action. The present suit, by contrast, is a

Rule 23(b)(3) "damages" class action. Rule 23(c)(2) requires

a higher standard of notice for a Rule 23(b)(3) class action,

under which individual notice must be provided to "all

members who can be identified through reasonable effort."

See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173, 94

S.Ct. 2140, 40 L.Ed.2d 732 (1974). Further, all potential

members in a Rule 23(b)(3) class must be allowed to opt out

of the class. In a Rule 23(b)(2) class action, by contrast,

there is no requirement for individualized notice beyond that

required by due process, and class members are not allowed

to opt out. We are unable to determine on the record before

us whether the notice given in ALPA was distributed to all

class members who would have been entitled to notice of a

lla

Rule 23(b)(3) class action. However, we do know that class

members in ALPA could not opt out of the class. Under

Eisen, class members in a Rule 23(b)(3) class may be bound

to the result of that action only if the notice and opt-out

requirements applicable to Rule 23(b)(3) actions are

satisfied. Because ALPA did not satisfy the requirements

applicable to a Rule 23(b)(3) class action, ALPA cannot

preclude the Rule 23(b)(3) class action in this case.

Fourth, to the degree that United seeks to rely on the

post-judgment settlement in ALPA, we need only point out

that the settlement is not incorporated into a judgment and

therefore cannot have preclusive effect. See Hydranautics v.

FilmTec Corp., 204 F.3d 880, 885 (9th Cir.2000). But even

if it were a judgment, we cannot know whether it sufficiently

protected the interests of the unnamed class members as that

class then existed. A class action settlement can be approved

and entered as a judgment only after a proceeding under Rule

23(e) at which unnamed class members are invited to express

their opinions of the proposed settlement. Such a

proceeding, often called a "fairness hearing,” is designed to

protect the unnamed members of the class against the

misjudgment (and, occasionally, the self-interest) of the

named plaintiffs and class attorneys. We are simply not

allowed to give preclusive effect to a post-judgment

settlement that was never subjected to the scrutiny

contemplated by Rule 23(e) and never entered as a judgment.

Finally, we note that the terms of the settlement in ALPA

appear not to protect the interests of flight attendants, such as

plaintiffs in this case, who might later have been subjected to

discipline for failing to comply with United's post-settlement

weight restrictions. The class representatives in ALPA

* In response to plaintiffs’ argument that the class members have changed

over the 20 years since the ALPA decision, the district court noted that

the class certified in ALPA included all future flight attendants and cited

12a

failed to appeal the district court's decision that United's

weight policy did not facially discriminate on the basis of

sex. They elected, instead, to accept reinstatement and back

pay for the members of the class who had been subjected to

discriminatory application of the 1977 weight policy.

Female flight attendants who were then employed and had

not previously been adversely affected by the weight limits,

but who might have been so affected in the future, had an

interest in appealing the district court's order on the legality

of United's policy. Those flight attendants had no interest in

obtaining reinstatement and back pay. Similarly, women not

then employed (but later hired) as flight attendants by United

had no interest in back pay or reinstatement. Consequently,

when the class representatives chose not to appeal the

adverse ruling on the facial validity of the weight policy,

they abandoned any representation of the interests of those

present and potential future class members in order to protect

present class members seeking back pay and reinstatement.’

See Tice v. American Airlines, 162 F.3d 966, 969 (7th

Cir.1999), cert. denied, 527 U.S. 1036, 119 S.Ct. 2395, 144

L.Ed.2d 795 (1999) (refusing to give preclusive effect to

NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 741 (9th

Cir.1984). We stated in NAACP v. Los Angeles that "[a] judgment on

behalf of a class binds all persons belonging to the class and all those

who subsequently come into the class." Id. But in that case the plaintiffs

did not assert that they had been inadequately represented by the class

representatives in the earlier action. See id. Concerns about the

adequacy of representation are heightened where the first action was a

class action in which the plaintiffs in the subsequent action were

unnamed, absent members. See Hiser v. Franklin, 94 F.3d 1287, 1293

(9th Cir.1996).

? Named plaintiffs Leslie Frank, Pat Parnell, Carole Kirk, Joan Balla

Weaver, and Donna Durkin had been employed by United for several

years prior to the ALPA decision, but there is no evidence that they

benefitted from the ALPA settlement, received notice of the settlement,

or had an opportunity to object to the terms of the settlement.

13a

prior class action because plaintiffs had been too young to

join in earlier litigation and their interests had diverged from

those of the earlier class representatives insofar as younger

pilots would benefit from age discrimination against older

pilots); Rutherford v. City of Cleveland, 137 F.3d 905, 910

(6th Cir.1998) (holding decision to abandon opposition to

consent decree governing hiring in exchange for amendment

to consent decree governing promotion demonstrated failure

to adequately represent interests of applicants); Gonzales v.

Cassidy, 474 F.2d 67 (Sth Cir.1973) (holding failure to

appeal denial of retroactive relief constituted inadequate

representation). Because the interests of the plaintiff class in

this suit were not adequately represented by the plaintiffs in

ALPA, we cannot give preclusive effect in this suit to the

post-judgment settlement in ALPA.

United contends in a two-sentence footnote in its brief to

this court that even if plaintiffs’ challenge to United's weight

policy is not barred by claim preclusion, it is barred by issue

preclusion. United is correct in stating that "once an issue is

actually and necessarily determined by a court of competent

jurisdiction, that determination is conclusive in subsequent

suits based on a different cause of action involving a party to

the prior litigation." Montana v. United States, 440 US.

147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). But the

requirements of identity of parties, identity of the factual

claim or issue, adequate notice, and adequate representation

apply to both claim and issue preclusion. See Richards v.

Jefferson County, Ala., 517 U.S. 793, 800-01, 116 S.Ct.

1761, 135 L.Ed.2d 76 (1996) (setting forth due process

requirements for granting prior judgment preclusive effect);

Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 85 L.Ed.

22 (1940) (same). The particulars of those requirements are

different in claim preclusion and issue preclusion, but the

underlying ideas are substantially the same. Because United

14a

does not and, indeed, could not, seriously argue that issue

preclusion applies on the facts of this case, we think it

unnecessary to analyze the question at length.

We therefore proceed to the ments of plaintiffs’ claims.

Title VII makes it unlawful "to discriminate against any

individual with respect to... compensation, terms, conditions,

or privileges of employment, because of such individual's...

sex....". 42 U.S.C. § 2000e-2(a)(1). Courts have recognized

two bases on which plaintiffs may proceed: disparate

treatment and disparate impact. See International Bhd. of

Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct.

1843, 52 L.Ed.2d 396 (1977). Disparate treatment arises

when an employer "treats some people less favorably than

others because of their ... sex." Id. Disparate impact arises

when an employer's practice is "facially neutral ... but ... in

fact fall[s] more harshly on one group than another.” Id.

Disparate treatment is permissible under Title VII only if

justified as a bona fide occupational qualification ("BFOQ").

A BFOQ is a qualification that is reasonably necessary to the

normal operation or essence of an employer's business. See

42 U.S.C. § 2000e-2.

An employer's policy amounts to disparate treatment if it

treats men and women differently on its face. For example,

in UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196,

113 L.Ed.2d 158 (1991), defendant Johnson Controls barred

fertile women, but not fertile men, from jobs entailing high

levels of lead exposure. The Court concluded this was

disparate treatment: "Johnson Controls’ policy is not neutral

because it does not apply to the reproductive capacity of the

company's male employees in the same way as it applies to

that of the females." Id. at 199-200, 111 S.Ct. 1196. The

Court has made it clear that such an "explicit gender-based

15a

policy is sex discrimination under § 703(a) [of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ] and

thus may be defended only as a BFOQ." Id. at 200, 111

S.Ct. 1196.

Similarly, in Healey v. Southwood Psychiatric Hosp., 78

F.3d 128 (3d Cir.1996), defendant Southwood Psychiatric

Hospital explicitly treated men and women differently in

scheduling its employees’ shifts. The court held that

"Southwood's gender-based policy is not a pretext for

discrimination--it is per se intentional discrimination." Id. at

131. "When open and explicit use of gender is employed ...

the systematic discrimination is in effect 'admitted' by the

employer, and the case will tum on whether such overt

disparate treatment is for some reason justified under Title

VII. A justification for overt discrimination may exist if the

disparate treatment is ... based on a BFOQ." Id. at 132. The

court in Healey held that facial discrimination was

permissible as a BFOQ because staffing both males and

females on all shifts was necessary to provide the therapeutic

care that was the "essence" of the hospital's business. See id.

at 132-33.

We view plaintiffs’ case as analytically indistinguishable

from Johnson Controls and Healey. The uncontroverted

evidence shows that United chose weight maximums for

women that generally corresponded to the medium frame

category of MetLife's Height and Weight Tables. By

contrast, the maximums for men generally corresponded to

MetLife's large frame category. The bias against female

flight attendants infected United's weight maximums for all

age groups.* Because of this consistent difference in

* The weight maximums that applied to female flight attendants under

age 34 all fell within MetLife's range for medium-framed women. By

contrast, the weight maximums that applied to males under age 34 all fell

within MetLife's range for large-framed men. The weight maximums for

l6a

treatment of women and men, we conclude that United's

weight policy between 1980 and 1994 was facially

discriminatory.’

On its face, United's weight policy "applie[d] less

favorably to one gender." Gerdom v. Continental Airlines,

692 F.2d 602, 608 (9th Cir.1982) (en banc). Under United's

policy, men could generally weigh as much as large-framed

men whether they were large-framed or not, while women

could generally not weigh more than medium-framed

women. As we held in Gerdom, "[w]here a claim of

discriminatory treatment is based upon a policy which on its

face applies less favorably to one gender ... a plaintiff need

not otherwise establish the presence of discriminatory

intent." Id.

United defends its weight tables as _ permissible

"grooming" or appearance standards. It is true that not all

sex-differentiated appearance standards constitute disparate

treatment that must be justified under Title VII as BFOQs.

An appearance standard that imposes different but essentially

equal burdens on men and women is not disparate treatment.

female flight attendants between 35 and 44 straddled the medium and

large frame categories for women, while the weight maximums for male

flight attendants between the same ages fell exclusively in the large

frame category for men. Female flight attendants between 45 and 54

were subjected to weight maximums that fell barely into the large frame

category for women. These maximums never exceeded the top of the

medium frame range for women by more than three pounds. Their male

counterparts the same age were subjected to maximums at the upper end

and beyond the upper end of MetLife’s large frame range for men. These

maximums exceeded the maximum weight for medium frames for men

by anywhere between 4 and 17 pounds; for men 5'11" or taller, the

maximums exceeded MetLife's large frame range for men.

° Plaintiffs also make a disparate impact challenge to the weight

maximums. Because we hold that plaintiffs are entitled to summary

judgment on their disparate treatment claim, we do not reach the merits

of their disparate impact claim.

a aii Ta eI io

17a

For example, in Fountain v. Safeway Stores, Inc., 555 F.2d

753 (9th Cir.1977), we held that a store may impose different

hair length requirements on men and women, and may

require men but not women to wear neckties. As we wrote in

that case, "regulations promulgated by employers which

require male employees to conform to different grooming

and dress standards than female employees is not sex

discrimination within the meaning of Title VII." Id. at 754.

We need not decide whether a rule or regulation that

compels individuals to change or modify their physical

structure or composition, as opposed to simply presenting

themselves in a neat or acceptable manner, qualifies as an

appearance standard. Even if United's weight rules

constituted an appearance standard, they would still be

invalid. A sex- differentiated appearance standard that

imposes unequal burdens on men and women is disparate

treatment that must be justified as a BFOQ. Thus, an

emvloyer can require all employees to wear

sex-differentiated uniforms, but it cannot require only female

employees to wear uniforms. See Carroll v. Talman Fed.

Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th

Cir.1979). An airline can require all flight attendants to wear

contacts instead of glasses, but it cannot require only its

female flight attendants to do so. See Laffey v. Northwest

Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973); see also

Nadine Taub, Keeping Women in Their Place: Stereotyping

Per Se as a Form of Employment Discrimination, 21 B.C.

L.Rev. 345, 387 (1980).

We also need not consider whether separate weight

Standards for men and women in themselves constitute

discriminatory treatment under Johnson Controls. Even

assuming that United may impose different weight standards

on female and male flight attendants, United may not impose

18a

different and more burdensome weight standards without

justifying those standards as BFOQs.

United is thus entitled to use facially discriminatory

weight charts only if it can show that the difference in

treatment between female and male flight attendants is

justified as a BFOQ. See Johnson Controls, 499 U.S. at 200,

111 S.Ct. 1196; Healey, 78 F.3d at 131. The burden is on

United to show that its weight policy fits in this "extremely

narrow exception to the general prohibition of discrimination

on the basis of sex." Dothard v. Rawlinson, 433 U.S. 321,

334, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). To escape

summary judgment, United must raise a genuine issue as to

whether its discriminatory weight maximums are "reasonably

necessary" to the "normal operation" of its "particular

business," and that they concern job-related skills and

aptitudes. Johnson Controls, 499 U.S. at 187, 111 S.Ct.

1196; 42 U.S.C. § 2000e-2(e)(1).

United provided no evidence that its facially

discriminatory weight standard is a BFOQ. United made no

showing that having disproportionately thinner female than

male flight attendants bears a relation to flight attendants’

ability to greet passengers, push carts, move luggage, and,

perhaps most important, provide physical assistance in

emergencies. The only evidence in the record is to the

contrary. Far from being "reasonably necessary" to the

"normal operation" of United's business, the evidence

suggests that, if anything, United's discriminatory weight

requirements may have inhibited the job performance of

female flight attendants. We therefore reverse the decision

of the district court and hold that because United's policy of

applying medium- frame weight maximums to female flight

attendants and large-frame weight maximums to male flight

attendants is facially discriminatory and not justified as a

19a

BFOQ, plaintiffs are entitled to summary judgment on their

disparate treatment class claim."

The ADEA prohibits employers from discriminating

against "any individual with respect to his compensation,

terms, conditions, or privileges of employment because of

such individual's age." 29 U.S.C. § 623(a)(1). The district

court correctly concluded that a disparate treatment class

claim is not available to plaintiffs because United's weight

policy discriminated on the basis of sex and weight, not on

the basis of age. An employer does not violate the ADEA by

discriminating based on a factor that is merely empirically

correlated with age. See Hazen Paper Co. v. Biggins, 507

U.S. 604, 609-11, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993);

Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir.1996)

(concluding that United's weight requirement did not violate

ADEA).

Plaintiffs should, however, be permitted to go forward

with their age discrimination class claim under a disparate

impact theory." In its order of February 26, 1997, the district

court noted that it had previously found, on August 16, 1995,

that plaintiffs' age-based disparate impact claim presented

triable issues of fact. But the district court concluded that the

Supreme Court's decision in Hazen, as interpreted by the

Tenth Circuit in Ellis in 1996, foreclosed a disparate impact

claim in an ADEA case. We have since squarely decided

judgment on plaintiffs’ corresponding discrimination claim under FEHA.

'' United contends that plaintiffs have waived their ADEA class claims

of age discrimination on appeal. We disagree. An appellant ordinarily

must raise an argument in its opening brief on appeal in order to preserve

it for our review. See, e.g., Officers for Justice v. Civil Serv. Comm'n,

979 F.2d 721, 726 (9th Cir.1992). Plaintiffs have satisfied this standard

in sections VI.C.5.e and VI.D of their opening brief.

20a

that a disparate impact claim is cognizable in an ADEA case.

See Arnett v. California Pub. Employees Retirement Sys.,

179 F.3d 690, 696 (9th Cir.1999) vacated and remanded on

other grounds, --- U.S. ----, 120 S.Ct. 930, 145 L.Ed.2d 807

(2000). The Supreme Court vacated our decision in Amett

and remanded for further consideration in light of Kimel v.

Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145

L.Ed.2d 522 (2000), in which the Court held that the ADEA

does not abrogate the Eleventh Amendment. The Eleventh

Amendment issue is irrelevant to a case, such as this one, in

which a private rather than state entity is a defendant, and the

Court's vacation of our decision has no bearing on the

correctness of our conclusion that a disparate impact claim is

cognizable under the ADEA. We see no reason to depart

from our conclusion in Armett and we again hold that a

disparate impact claim is cognizable under the ADEA. See

also EEOC v. Local 350, Plumbers and Pipefitters, 998 F.2d

641, 648 n. 2 (9th Cir.1992). We therefore conclude that

plaintiffs should be allowed to proceed with their disparate

impact class claim.”

The district court concluded that none of the named

plaintiffs presented viable individual claims of

discrimination under Title VII, the ADEA, the ADA, and

FEHA. In light of our holding on the class claim under Title

VII, we reverse summary judgment for defendant on named

plaintiffs’ individual claims of sex discrimination. Similarly,

in light of our holding on the class claim under the ADEA,

we reverse summary judgment on named plaintiffs’

individual claims of age discrimination. On remand, the

district court should reassess their individual claims under

'2 We also reverse the district court's implicit dismissal of plaintiffs’

corresponding age discrimination claim under FEHA.

2la

Title VII and the ADEA and their corresponding individual

claims under FEHA in light of this opinion.

We affirm the district court's decision granting summary

judgment for United on named plaintiffs’ individual claims

under the ADA and their corresponding claims under FEHA.

The district court correctly concluded that none of the named

plaintiffs presented evidence to make a prima facie case that

their eating disorders "substantially limited" a major life

activity and were therefore disabilities within the meaning of

the ADA. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555,

119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999). A major life

activity is a function such as "caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working." 29 C.F.R. § 1630.2. While eating

disorders can substantially limit major life activities,

plaintiffs have not presented evidence that their eating

disorders have that effect.

With respect to the named plaintiffs’ other asserted

disabilities, the district court correctly concluded that none of

the named plaintiffs had exhausted their administrative

remedies by filing charges with the EEOC or with

California's Department of Fair Employment and Housing.

Named plaintiffs did file charges claiming disability

discrimination based on obesity, but obesity is not like or

reasonably related to other conditions, such as cancer, from

which plaintiffs allegedly suffer and on which they base their

other individual charges of discrimination. Named plaintiffs

have therefore not exhausted their administrative remedies

with respect to these conditions. See Yamaguchi v. United

States Dep't of the Air Force, 109 F.3d 1475, 1480 (9th

Cir.1997).

Vil

22a

Because the district court should have granted summary

judgment to plaintiffs on their Title VII disparate treatment

class claim and should have denied United's motion for

summary judgment on plaintiffs’ disparate impact ADEA

class claim, we reverse the district court's decertification of

the class and denial of plaintiffs’ application for an award of

costs.

CONCLUSION

For the foregoing reasons, we REVERSE the district

court's grant of summary judgment to defendant on plaintiffs’

disparate treatment class claim under Title VII, and we

REVERSE its denial of plaintiffs’ motion for summary

judgment on that clam. We AFFIRM the district court's

grant of summary judgment on plaintiffs’ disparate treatment

class claim under the ADEA, and we REVERSE its grant of

summary judgment to defendant on plaintiffs’ disparate

impact class claim under the ADEA. We similarly

REVERSE and AFFIRM the district court's rulings on

plaintiffs’ class clams under FEHA that correspond to their

class claims under Title VII and the ADEA. We REVERSE

the district court's grant of summary judgment to defendant

on plaintiffs’ individual claims under Title VII, the ADEA,

and corresponding claims under FEHA. We AFFIRM the

district court's grant of summary judgment to defendant on

plaintiffs’ individual claims under the ADA _ and

corresponding claims under FEHA. We REVERSE the

district court's class decertification and denial of plaintiffs'

application for award of costs in the district court.

REVERSED in part, AFFIRMED in part, and

REMANDED for further proceedings consistent with this

opinion. Each party shall bear its own costs on appeal.

O'SCANNLAIN, Circuit Judge, concurring in part and

dissenting in part:

23a

I fully concur in the court's affirmance of the district

court's summary judgment for United on the plaintiffs’

"disparate treatment" claims under the Age Discrimination in

Employment Act and individual claims under the Americans

with Disabilities Act. I must respectfully dissent, however,

from the reversal of the district court's grant of summary

judgment for United on the plaintiffs’ remaining claims under

Title VII and the Age Discrimination in Employment Act.’

Although the majority deploys a raft of arguments in the

alternative to support its holding that the plaintiffs’ facial

attack on United's weight policy is not precluded by the

judgment entered in Air Line Pilots Association,

International v. United Air Lines, Inc. ("ALPA "), 26 F.E.P.

Cases 607, 1979 WL 34 (E.D.N.Y.1979), none of those

arguments is compelling--indeed, some of them conflict

fundamentally with preclusion doctrine, in my view.”

The majority's first two arguments against granting the

ALPA judgment preclusive effect in this litigation are that

the relevant claim under Title VII of the Civil Rights Act of

' | shall not separately address the plaintiffs’ claims under the California

Fair Employment and Housing Act ("FEHA”), Cal. Gov't Code §§

12900-12996, but would affirm the district court's judgment thereon for

the reasons that follow

* The majority suggests that the issue is whether the “post- judgment

settlement," as opposed to the actual district court judgment in ALPA,

precludes these claims. See supra at 852 (rejecting United's argument

"to the degree that [it] seeks to rely on the post-judgment settlement in

ALPA " because the settlement was not incorporated into the district

court’s judgment and did not protect the interests of absent class

members). The post-judgment settlement is not relevant to the

preclusion issue here. It is undisputed that the district court tendered a

final judgment in ALPA, and it is the preclusive effect of that judgment

that is before us.

24a

1964 ("Title VII"), 42 U.S.C. § 2000e, did not "arise” until

after 1979 (i.e., after that judgment was entered), supra at

850, and that "the claim is based on a different weight policy

from that challenged in ALPA,” supra at 851.

As an initial matter, these two contentions seem to me to

be part and parcel of the same argument. The claim did not

"arise" before 1979 either because the ALPA plaintiffs did

not think (or bother) to make it before then or because the

distinct factual circumstances--United's implementation of its

new weight policy--did not obtain before then. If the

majority's reference to the "arising" of the plaintiffs’ claim is

captured by the second possible reading, the majority's first

two arguments are logically indistinguishable.

It is plain that the first possibility cannot militate against

giving the ALPA judgment preclusive_ effect,

notwithstanding the decontextualized dictum from

International Technoiogies Consultants, Inc. v. Pilkington,

PLC, 137 F.3d 1382, 1388 (9th Cir.1998), that the majority

quotes for the overstated proposition that prior favorable

judgments do not "preclude claims based on events occurring

[there]after.” See supra at 851 (" 'By winning the first action,

the defendants "did not acquire immunity in perpetuity from

the antitrust laws." '"). As the very purpose of preclusion

doctrine "is to protect a defendant from being worn down by

a plaintiff who sues him over and over again for the same

allegedly wrongful conduct," Marrese v. American Acad. of

Orthopedic Surgeons, 726 F.2d 1150, 1152 (7th Cir.1984),

rev'd on other grounds, 470 U.S. 373, 105 S.Ct. 1327, 84

L.Ed.2d 274 (1985), someone who has once successfully

defended his allegedly obnoxious behavior in court is indeed

presumptively immune from suit thereon (by the same

parties) though he should persist in his offensive behavior

thereafter. Cf. Go-Video, Inc. v. Matsushita Elec. Indus. Co.

(In re Dual-Deck Video Cassette Recorder Antitrust Litig.),

25a

11 F.3d 1460, 1464 (9th Cir.1993) (giving prior judgment

preclusive effect because the subsequent claim appeared to

rely on the misplaced theory "that every day is a new day, so

doing the same thing today as yesterday is distinct from what

was done yesterday.").

It is conceivable, of course, that United's new weight

policy might avoid the preclusive effect of the ALPA

judgment even though the mere passage of time could not.

"Material operative facts occurring after the decision of an

action with respect to the same subject matter may in

themselves ... comprise a transaction which may be made the

basis of a second action not precluded by the first.”

Restatement 2d of Judgments § 24 cmt. a; see Costantini

(Cite as: 216 F.3d 845, *859 ) v. Trans World Airlines, 681

F.2d 1199, 1202 (9th Cir.1982) (noting that "whether the two

Suits arise out of the same transactional nucleus of facts" is

"the most important" criterion in determining whether the

judgment in an earlier lawsuit precludes litigation of a

second). The majority summarily concludes that United's

new weight policy is in fact a distinct transaction because it

was "part of the post-judgment settlement" reached after

ALPA. Like the district court, I think it plain that an

across-the-board increase in maximum permissible weights

and relaxed standards for older flight attendants does not

amount to a "[mJaterial operative fact[ ]" with respect to an

allegation that those maxima are sexually discriminatory. In

order for uniform, absolute increases--which is essentially all

that is "new" on the face of United's post-1979 weight

policy--to be relevant to a discrimination claim, the margin

of the increase itself must be more or less accommodating to

one gender than another. Such a claim has not been made in

the course of this litigation and is not credible on its face.

The lockstep increases in maximum permissible weights, in

short, are no more material to the plaintiffs’ cause of action

26a

than the possibility that the new policy was printed and

circulated on a different color of paper.

The fact that the plaintiffs’ Title VII claims in this case

arise from United's new weight policy rather than its

predecessor is not material to a claim of sex discrimination

because the new policy does not differ from the old one in

any way that is itself material to the plaintiffs' claim. Thus

the fact that the policy was changed after the ALPA

judgment cannot alone defeat that judgment's preclusive

effect. Cf. EEOC v. American Airlines, Inc., 48 F.3d 164,

169 (Sth Cir.1995) ("It is not enough to avoid the preclusive

effect of the prior determination ... to show merely a change

in facts: a change must have occurred in facts that ... were of

controlling significance.”). To hold otherwise, as the court

does today, cabins preclusion doctrine so narrowly as to

render it useless, for a plaintiff hoping to evade it might do

so simply by emphasizing irrelevant distinctions in his

pleadings.’

> The plaintiffs take some pains to argue that this lawsuit cannot be

barred by "claim preclusion,” as the district court held, as distinct from

"issue preclusion.” Even if that were so, "we may affirm the district

court's decision based on any reason finding support in the record,”

Welch v. Fritz, 909 F.2d 1330, 1330 (9th Cir.1990), and it is apparent

that "issue preclusion” would suffice to preclude the present lawsuit.

This is so notwithstanding the plaintiffs’ attempt to distinguish the

judgment in ALPA as being limited to a disparate impact theory rather

than the disparate treatment theory that is at issue in this case. It is an

exercise in fruitless abstractions to hypothesize that one could recover

under a disparate treatment theory relying on evidence of a pattern or

practice after failing to recover under a disparate impact theory. Cf.

Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777,

101 L.Ed.2d 827 (1988). The distinguishing features of the factual issues

that typically dominate in disparate impact cases do not imply that the

ultimate legal issue is different than in cases where disparate treatment

analysis is used. Nor do we think it is appropriate to hold a defendant

liable for unintentional discrimination on the basis of less evidence than

27a

The majority's third argument against granting preclusive

effect to the judgment entered in ALPA is that the procedural

protections for absent class members in that litigation were

insufficient to bar the individual claims of those absent class

members for monetary relief. In particular, the majority

notes that the ALPA court certified the plaintiff class in that

case under Fed.R.Civ.P. 23(b)(2), which applies to actions

predominantly for declaratory and injunctive relief and does

not require the same level of procedural protections for

absent class members that a "damages" action brought by a

class certified under Fed.R.Civ.P. 23(b)(3) has. See supra at

851. In a class action under Rule 23(b)(3), "the court {must]

direct to the members of the class the best notice practicable

under the circumstances, including individual notice to all

members who can be identified through reasonable effort,"

and this notice must indicate that members of the class may

opt out of the litigation to avoid being bound by its result.

Fed.R.Civ.P. 23(c)(2); see Eisen v. Carlisle & Jacquelin,

417 US. 156, 173, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

The Supreme Court has declared that the protections

mandated for classes certified under Rule 23(b)(3) are "an

is required to prove intentional discrimination. Rather, the necessary

premise of the disparate impact approach is that some employment

practices, adopted without a deliberately discriminatory motive, may in

operation be functionally equivalent to intentional discrimination. Id. at

987, 108 S.Ct. 2777 (citation omitted). Furthermore, plaintiffs’

Suggestion that the judgment in ALPA disposed of only a disparate

impact claim and not a disparate treatment claim is unsupported by

anything but a citation to United's statement that "Judge Pratt conducted

what was indisputably a disparate impact analysis." Judge Pratt may

well have recognized that conducting a disparate impact analysis on the

type of facial challenge there at issue disposed of any disparate treatment

claim as well. This recognition would explain the plaintiff's apparent

contention in this case that Judge Pratt did not effectively distinguish

between disparate impact and disparate treatment claims.

28a

unambiguous requirement of Rule 23" in order "to insure that

the judgment ... w[ill] bind all class members who did not

request exclusion from the suit." Id. at 176, 94 S.Ct. 2140.

From the Court's observation, the majority apparently infers

that only judgments relating to classes certified under Rule

23(b)(3) can have preclusive effect--at least with respect to

claims for damages. There are two problems with the

majority's inference.

The first problem is that the inference is logically

untenable and manifestly unfounded. Strictly as a matter of

logic, the mere fact that the critical notice and opt-out

protections are mandatory for classes certified under Rule

23(b)(3) does not mean that the same protections were

unavailable to a class certified under Rule 23(b)(2). Indeed,

four years before it entered judgment in ALPA, the Federal

District Court for the Eastern District of New York had held

that protections entailed by Rule 23(b)(3) certification should

be extended to classes certified under Rule 23(b)(2) when, as

in the ALPA litigation, the plaintiffs seek significant

monetary as well as equitable relief. See Gates v. Dalton, 67

F.R.D. 621, 632-33 (E.D.N.Y.1975) (holding that it was

immaterial whether the plaintiff class was certified under

Rule 23(b)(2) or Rule 23(b)(3), because, "in view of the

reimbursement claim, notice to the class and an opportunity

to ‘opt-out’ must be provided in any event. That, as noted, is

the only real practical difference between the two

designations...."). | We and other circuits have also

recognized that a judgment entered against a class certified

under Rule 23(b)(2) may satisfy the demands of due process

and bind the members of that class as though it had been

certified under Rule 23(b)(3) and lost "a class action suit for

money damages.” Crawford v. Honig, 37 F.3d 485, 487 n. 2

(9th Cir.1994) (noting that the case "was a class action for

injunctive relief certified under Fed.R.Civ.P. 23(b)(2), which

29a

does not require notice or permit members to opt out,

aithough a court in its discretion may provide for an opt-out

or notice."); see Fontana v. Elrod, 826 F.2d 729, 732 (7th

Cir.1987) (acknowledging that, "when monetary damages are

sought in a(b)(2) class action, ‘due process does require

notice before the individual monetary claims of absent class

members may be barred.’ "); Johnson v. General Motors

Corp., 598 F.2d 432, 437 (Sth Cir.1979) ("[W]e have

previously suggested that when both monetary and injunctive

relief are sought in an action certified under Rule 23(b)(2),

notice may be mandatory if absent class members are to be

bound.”").

It is of course true that the members of the plaintiff class

in this case may not have enjoyed adequate protections as

members of the class certified under Rule 23(b)(2) in ALPA,

notwithstanding the fact that the ALPA court could very well

have extended such protections to them.‘ The fact that the

plaintiffs might have been deprived of their due process

rights to notice and the opportunity to opt-out, however,

cannot bar the normal preclusive effect of the judgment

entered in ALPA. This is the second problem with the

majority's position. We are not in the habit of presuming

violations of due process, especially when, as here, the

parties supposedly suffering such a violation have never so

* It bears noting at this juncture that whether these protections were

appropriately extended does not depend on the experience of any

particular member of the class, because the preclusive effect of a class

action depends upon the adequacy of the entire notice scheme and not

upon a determination of whether the member of the class to be precluded

actually received notice. See, e.g., Fontana, 826 F.2d at 732 (" ‘[A]n

absent class member will be bound by any judgment that is entered if

appropriate notice is given, even though that individual never actually

received notice." quoting 7B Charles Alan Wright, Arthur R. Miller, &

Mary Kay Kane, Federal Practice and Procedure § 1789, at 253 (2d

ed. 1986)).

PST re EPP ee a, eR RE Re ee NAN Paw, <

RVG IR Mig iae esto eS nth amir ial aed ee Mla gn Cl

30a

much as alleged the fact thereof. See, e.g., Park v.

California, 202 F.3d 1146, 1154 (9th Cir.2000) (rejecting a

habeas petitioner's due process claim because he "failed to

fulfill his burden adequately to allege and demonstrate ... a

violation of due process" despite having both specified the

trial court's error and cited "to the Fifth, Ninth, and

Fourteenth Amendments"); Howlett v. Salish and Kootenai

Tribes of the Flathead Reservation, 529 F.2d 233, 240 (9th

Cir.1976) (noting that the plaintiffs bore the burden of

demonstrating a violation of due process). Hence, even if it

were within the power of this court to establish

independently that the ALPA court did not require adequate

notice to the members of the plaintiff class in that litigation,

the plaintiffs here cannot benefit from this discovery in light

of their failure to carry the burden of demonstrating (or even

alleging) as much themselves.

The majority finally notes that the judgment entered in

ALPA cannot have preclusive effect because the named

plaintiffs in ALPA settled their claims against United with

reinstatement and an award of back pay rather than appealing

the ALPA court's adverse judgment, thus proving that the

named plaintiffs were insufficiently representative of the

absent class members who had not yet been harmed by the

° The majority also notes that the preclusive effect of the judgment in

ALPA cannot be inferred from the fact that the new weight program was

the result of a settlement between United and the plaintiff class in ALPA.

See supra at 852 ("Fourth, to the degree that United seeks to rely on the

post-judgment settlement in ALPA, we need only point out that the

settlement is not incorporated into a judgment and therefore cannot have

preclusive effect."). I see no need to address the validity of the majority's

observation, for it is irrelevant that United's new weight program was the

result of a settlement between the ALPA parties except insofar as it

clearly establishes that the changes in United's weight policy could not

3la

representatives in ALPA failed to appeal the district court's

decision that United's weight policy did not discriminate on

the basis of sex."). The district court in this case held that

the plaintiff class in ALPA included, as the ALPA court had

indicated, all former, present, and future flight attendants at

United and cited our decision in NAACP v. Los Angeles

Unified School District, 750 F.2d 731,741 (9th Cir.1984),

for the proposition that class actions may bind even future

members of the class. The majority declares NAACP

inapplicable, because "the plaintiffs [in that case] did not

assert that they had been inadequately represented by the

class representatives in the earlier action." Supra at 852 n. 6.

The problem with the majority's handy point is that the

plaintiffs in this case have also failed to assert that they were

inadequately represented. To the extent that the majority

infers the critical allegation from arguments made by the

plaintiffs here, the majority ignores our previous admonition

that "we will not second-guess a prior decision that counsel

adequately represented a class" and our recognition that the

burden is squarely on the plaintiffs to "present facts which

indicate a lack of adequate representation." Brown v. Ticor

Title Ins. Co., 982 F.2d 386, 390-91 (9th Cir.1992). The

plaintiffs have simply waived the "inadequate

representation" argument here, and thus it too cannot strip

the judgment in ALPA of its preclusive effect.

For the foregoing reasons, I dissent from the majority's

refusal to acknowledge that the ALPA judgment precludes

the plaintiffs' facial attack of United's weight policy as

possibly provide a distinct basis for suit (as those changes were merely

concessions sought by the plaintiff class). As the changes to the weight

program were immaterial to a Title VII claim on their face, the fact that

they were the result of a settlement is neither here nor there.

32a

unlawful sex discrimination under Title VII. I thus believe

the majority errs in reaching the merits of the complex Title

VII issue. I would only note here that the majority's

purported grant of summary judgment for the plaintiffs is

unsupportable. It relies on a "finding"--made for the first

time here and on the basis of figures for the population at

large when the plaintiff class is hardly drawn therefrom--that

the evidence establishes that United's weight program is

more burdensome for female flight attendants than male

flight attendants. The majority's conclusion presses the

envelope too far. Cf. Gerdom v. Continental Airlines, Inc.,

692 F.2d 602, 608 (9th Cir.1982) (Noting that "[t]he general

principle is that the plaintiff has the initial burden of offering

evidence which is sufficient to create an inference of

intentional discrimination" and holding that evidence that a

weight limit was applied only to females was sufficient

therefor (emphasis added)).°

While I concur in the majority's affirmance of the district

court's summary judgment for United on the plaintiffs’

claims under the Age Discrimination in Employment Act,

("ADEA"), 29 U.S.C. §§ 621-634, insofar as those claims

rest on a "disparate treatment" theory, I must dissent from the

court's reversal of the district court's summary judgment

insofar as the plaintiffs’ claims rests on a "disparate impact"

theory. Quite simply, the plaintiffs have waived this issue on

appeal by failing to offer any argument whatsoever against

the district court's decision.

There is no room for doubt that the district court granted

summary judgment for United on the plaintiffs’ disparate

® As I would affirm the district court's summary judgment on the class

claim under Title VII, I would also affirm the district court's summary

judgment on individual claims.

33a

impact claims because it concluded that such claims are not

cognizable under the ADEA after the Supreme Court's

decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113

S.Ct. 1701, 123 L.Ed.2d 338 (1993). In reversing the district

court, the majority contends that we have "squarely decided”

since Hazen was handed down that a disparate impact claim

is, in fact, cognizable in an ADEA case. Supra at 856. We

have "squarely decided" this issue, however, only in the

context of a case that is now a legal nullity. See Amett v.

California Public Employees Retirement System, 179 F.3d

690, 697 (9th Cir.1999), vacated, --- U.S. ----, 120 S.Ct. 930,

145 L.Ed.2d 807 (2000). The majority makes much of the

fact that Amett was vacated "on other grounds,” see supra at

856 ("The Eleventh Amendment issue [on the basis of which

the Supreme Court appears to have vacated Amett ] is

irrelevant to a case[ } such as this one ...."), but the majority's

distinction does not alter the fact that Amett is utterly devoid

of legal force. See, e.g., O'Connor v. Donaldson, 422 US.

563, 577 n. 12, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) ("Of

necessity our decision vacating the judgment of the Court of

Appeals deprives that court's opinion of precedential

effect...."); United States v. Munsingwear, Inc., 340 U.S. 36,

39, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (noting that, when a

decision is vacated, the path has been cleared "for future

relitigation of the issues"). Indeed, we have rebuked litigants

for attempting to resurrect vacated decisions on precisely the

same logic. See Durning v. Citibank, N.A., 950 F.2d 1419,

1424 n. 2 (9th Cir.1991) ("Although the Authority contends

that the decision was ‘vacated on other grounds,’ we find that

contention curious. A decision may be reversed on other

grounds, but a decision that has been vacated has no

precedential authority whatsoever."). I would require more

than a citation to our defunct decision in Amett before

endorsing the conclusion that the district court erred.

34a

That citation, however, is all there is on the issue. The

_ only argument offered by the plaintiffs in opposition to the

district court's summary judgment for United on their ADEA

claims has nothing at all to do with the appropriateness of

disparate impact theories and is instead limited to the all-

but-conclusory statement that "the evidence establishes a

genuine issue of intentional age discrimination. "In addition

to being entirely beside the point, the plaintiffs" argument" is

wholly insubstantial. Even with descriptions of and citations

to a few items in the record to support their characterization

of the evidence, the plaintiffs manage in the course of more

than a hundred pages of briefing to fill less than two with

their arguments relating to the ADEA.’

I think it somewhat curious to hold, solely on the strength

of a perfunctory observation, see supra at 856 ("We see no

reason to depart from our conclusion in Amett ...."), that the

district court erred in concluding that a disparate impact

claim under the ADEA does not survive Hazen. To do so

without any relevant briefing on the issue is worse yet.

Because the plaintiffs have manifestly waived their ADEA

claims on appeal, I would affirm the district court's summary

judgment for United on those claims.

Because I cannot agree with the court's reversal of the

summary judgment for United, I must also disagree with the

reversal of the district court's decertification of the class and

denial of plaintiffs’ application for costs.

” If there were any lingering skepticism that the plaintiffs have

abandoned their disparate impact claims under the ADEA, both the fact

that the plaintiffs did not take exception in their reply brief to United's

statement to this effect and the fact that the plaintiffs failed to alert us to

this court's purportedly dispositive--and decidedly helpful--decision in

Amett, see Fed. R.App. P. 28(j), should put such skepticism to rest.

35a

The district court's failure to require notice of the

decertification under Fed.R.Civ.P. 23(d)(2) was not an abuse

of discretion, because obvious practical considerations

militated strongly against requiring notice here. See Bauman

v. United States District Court, 557 F.2d 650, 658 (9th

Cir.1977) (reviewing requirement of notice pursuant to

Fed.R.Civ.P. 23(d)(2) for an abuse of discretion).

First, United had discontinued its weight program four

years before the decertification of the class. The simple

staleness of the class promised to render the typical unnamed

member relatively difficult to locate.

Second, the number of individuals requiring notice would

have been disproportionate to the benefits derived from

notice. This is particularly true because the supposed benefit

from the notice was that members of the class with

individual claims were to be informed that their claims were

tolled during the pendency of the class action and the claims

thus tolled were exactly those that the court had already

disposed of. See Crown Cork & Seal Co. v. Parker, 462 U.S.

345, 103 S.Ct. (Cite as: 216 F.3d 845, *864) 2392, 76

L.Ed.2d 628 (holding only that claims identical to those

advanced in the putative class action are tolled during the

pendency of the class certification).

I respectfully disagree as well with the court's reversal of

the district court's denial of the plaintiffs' application for

costs, because the fact that the district court properly found

the plaintiffs’ claims to be meritless rendered the plaintiffs’

request of an award entirely frivolous. Cf. National

Information Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471

(9th Cir.1995) (noting that the "loser bears th[e] burden" of

36a

overcoming a presumption that costs will be awarded to the

prevailing party in civil litigation under Fed.R.Civ.P. 54(d)).

I would affirm the district court's grant of summary

judgment for United on the plaintiffs’ Title VII, ADEA, and

FEHA claims. Because the majority declines to do so on the

strength of dubious arguments never made by the plaintiffs

and authority lacking precedential force of any sort, I dissent

from that part of the court's disposition. Moreover, because

the district court correctly granted summary judgment for

United, I dissent from the reversal of the district court's order

decertifying the class and denying the plaintiffs’ application

for costs.

It may seem inappropriate in this day and age to have

seemingly arbitrary weight limitations for employees (a

proposition with which United seems no longer to disagree),

but our anti-discrimination statutes and law of civil

procedure rest on policies more diverse than the eradication

of business practices that strike us as distasteful or unfair.

Those policies include protecting to the extent practicable the

flexibility of private enterprise to respond to the demands of

the market and protecting individuals from endlessly

rehearsing (at potentially crippling expense) their defenses to

allegations of unlawful conduct. In order to vindicate these

other policies, the courts and Congress have drawn lines

limiting what conduct is actionable and under what

circumstances an employer may be called upon to defend his

conduct. Because the majority ignores those lines, many of

them well established, I concur in the court's opinion only in

part and dissent as to the remainder.

37a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OFCALIFORNIA

No. C-92-0692-CAL

LESLIE FRANK, et al.,

Plaintiffs,

Vv.

UNITED AIRLINES, INC.,

Defendant.

February 26, 1997,

ORDER ON DEFENDANT’S MOTIONS

Four motions by defendant are presently before the court

for decision. They are defendant’s motions: for summary

judgment on plaintiffs’ class-wide disparate treatment

claims; to decertify those class claims; for summary

judgment on plaintiffs’ age discrimination claims; and for

summary judgment on the age discrimination claims of

certain opt-in plaintiffs.

There have been extensive prior motions and orders. A

brief review of some is necessary in order to define the

claims of plaintiffs that are now pending and the scope of the

evidentiary record.

Mon]

cas:

524

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bank]

i, 3)

38a

Pursuant to stipulation, an order for class certification

was entered on April 29, 1994. As a result of numerous

motions, this court issued an order on August 16, 1995 ruling

on certain issues and defining the issues remaining for tral.

This court will not here restate its reasons for the decisions

made in that order, but will simply note what those decisions

were, because they are necessary to define the present status

of this case. The order noted that this case alleges four types

of discrimination with respect to defendant’s weight program

for its flight attendants:' gender, age, handicap-disability,

and race. The court concluded that plaintiffs’ gender

discrimination claims were barred by res judicata, except for

their claims that defendant’s weight program has been

applied in a discriminatory manner. The court stated that this

“as applied” claim must be analyzed under the principles of

disparate treatment. The court held that plaintiffs’ age

discrimination claims were not barred by res judicata. This

court then defined plaintiffs’ remaining claims as follows

(order, pg. 14 lines 15-22):

(1) Gender discrimination insofar as plaintiffs allege

that defendant’s weight program is applied in a

discriminatory manner. The court believes that this

must be analyzed under disparate treatment theory.

(2) Age and race discrimination, under both disparate

impact and disparate treatment analyses. (3)

Handicap-disability discrimination under the

elements of the [ADA] statute.

That order also made certain procedural decisions and set

a further schedule for pretrial proceedings and for trial. On

February 6, 1996 this court issued a further procedural order

bifurcating and setting trials on the remaining issues. The

' Defendant terminated the weight program in July 1994. It also

suspended application of the program from October 1992 to late 1992

or early 1993.

39a

order also set the first trial for October 1996, and scheduled

other pretrial procedures.

The February 1996 order was, however, followed by

serious discovery disputes. For purposes of the present

motions, the court need only note that a March 1, 1996 order

compelled plaintiffs to respond further to defendant’s

interrogatories and depositions. When plaintiffs did not

comply with that order, this court issued an order on May 31,

1996. The court there ordered, in summary, that unnamed

class members whose identity had not previously been

disclosed to defendant in discovery could not provide

testimony at trial, and no evidence of events which occurred

to them could be presented at trial.

Defendant then made the motions which are now before

the court. Pending resolution of those motions, this court

vacated the trial and pretrial dates’.

As a result of those prior proceedings, plaintiffs have the

following claims remaining:

1. Gender discrimination “as applied,” to be

analyzed under a disparate treatment theory. This is a

class claim.’

2. Age discrimination, under both disparate impact

and disparate treatment analyses. This is also a class

claim.‘

? That vacation was because of these imotions, but also because of the

court’s crowded trial docket of criminal cases and civil cases with a

higher priority.

* The class claims are subject to the evidentiary limitations stated in the

order of May 31, 1996.

* Also subject to the evidentiary limitations stated in the order of May

31, 1996.

Po OATES ine eles By ieee . :

Se a Pe aoe SR ES TR ee Bea ‘

40a

3. Race discrimination, under both disparate impact

and disparate treatment analyses, which is not a class

claim.

4. Handicap-disability discrimination, under the

ADA and the California FEHA,° also not a class

claim.

Il.

In the four motions presently before the court, defendant

first seeks summary judgment on the class gender and class

age discrimination claims. Defendant contends that plaintiffs

do not have sufficient evidence of class wide discrimination

in the application of defendant’s weight program. This

motion must meet the standard of Rule 56 of the Federal

Rules of Civil Procedure and Celotex Corp. v. Catrett, 477

U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Second,

defendant argues that if there are genuine issues of material

fact to preclude such a summary judgment, the class should

be decertified. The contention is that the evidence has

demonstrated that plaintiffs’ claims require individualized

case-by-case assessments, primarily on why weight

exceptions were or were not granted for each female flight

attendant who applied for one. This motion requires a Rule

23 analysis. Third, further as to the age discrimination

claims, defendant moves for summary judgment on the

grounds that: plaintiffs have no evidence to support their

disparate treatment age claims,° and their disparate impact

age claims cannot proceed because of recent case law.’ And

fourth, defendant moves for summary judgment on the age

discrimination claims of certain opt-in plaintiffs who

* This court’s order of August 16, 1995, omitted reference to the

California FEHA.

° This ground must meet the standards of FRCP and Celotex.

’ This ground presents an issue of law.

4la

allegedly suffered no wage losses. This motion is based on

the arguments that plaintiffs who were not terminated or

removed cannot recover damages, and that there is no claim

remaining for declaratory or injunctive relief because

defendant has terminated its weight program. The issues in

this fourth motion are ones of law.

Extensive briefs and factual records were submitted in

support of and in opposition to the motions. The motions

were argued over a period of several days, and were

submitted for decision. This court has reviewed the very

extensive fact records, the moving and opposing briefs, the

arguments of counsel, and the applicable authorities.

Il.

As stated, this court has previously concluded that the

analysis of defendant’s weight program for alleged gender

discrimination must be an “as applied” analysis. That

analysis must be under a disparate treatment theory, which

requires a showing of intentional discrimination. Insofar as

the age discrimination and race discrimination claims also

involve disparate treatment analysis, there must be the same

showing of intentional discrimination. In this case, the “as

applied” claims have now come down to a question of the

grant or denial of weight exceptions to female flight

attendants. Plaintiffs now define their “as applied” class

discrimination claims as follows (plaintiffs’ opposition to

defendant’s motions, dated July 17, 1996, pages 1 and 7):

Plaintiffs’ sex and age discrimination claims focus on

defendant’s liability for a pattern and practice of

discrimination in the standards and criteria [defendant’s]

flight surgeons used in evaluating flight attendants for

‘weight exceptions.’ ‘Weight exceptions’ or ‘medical

exceptions’ as they were sometimes called, increase the

standardized weight maximum imposed on all flight

42a

attendants ...._ Discrimination issues{] are raised by

preferential treatment of men in the amount and duration of

weight exceptions and in the standards used for defining

‘medical conditions’ which justified weight exceptions.

The parties agree that this is an alleged “pattern and

practice” of discrimination against the plaintiff class

members on the basis of sex or age. The standard for

evaluating such a pattern and practice claim was defined by

the United States Supreme Court in Teamsters v. United

States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396

(1977). The Court said that in order to prevail in a pattern

and practice case, plaintiffs must prove more than the mere

occurrence of isolated or accidental or sporadic

discriminatory acts; Id. at 336. Plaintiffs must instead

establish by a preponderance of the evidence that

discrimination was the company’s standard operating

procedure -- the regular rather than the unusual practice; Id.

In order to establish such a prima facie case, plaintiffs must

usually rely on a combination of statistical and anecdotal

proof. In the presentation of statistical evidence, the

disparities must be significant enough to create a “greater

likelihood” that any single exception decision was a

component of an overall pattern of discrimination; 431 U.S.

at 339-340, n.20, and 359 n. 45.

Defendant claims that plaintiffs’ evidence is insufficient

to establish a prima facie case of such pattern and practice

discrimination, or at least that the evidence is so

individualized that such claims cannot be class claims. This

court therefore turns to an analysis of the evidence which

plaintiffs have offered.*

* A considerable quantity of this evidence, and the parties’ discussion of

it, was submitted by plaintiffs during the oral arguments on these

motions and not in plaintiffs’ pre-argument briefs.

43a

1. Statistical evidence.

Plaintiffs submitted statistical evidence prepared by Dr.

Richard Drogin, and defendant submitted the statistical

report of Dr. Sandy Zabell. Ordinarily, differences between

the conclusions of opposing experts would be a subject for

trial. However, in this case, plaintiffs’ statistical evidence

does not satisfy plaintiffs’ burden of establishing a prima

facie case.

Dr. Drogin’s key findings about weight exceptions were,

first of all, not based upon a foundation of information which

he prepared or even assembled. Rather, they were based

upon information compiled and provided to Dr. Drogin by

plaintiffs’ counsel. The only foundational information which

Dr. Drogin reviewed concerned the rate at which flight

attendants were “put on weight report.” The consequence of

being “put on weight report” was not explained to this court.

But the court concludes from the little information that is

available that the reports were interim listings that in

themselves resulted in no discipline to a flight attendant.

Even if this conclusion were incorrect, those reports are

insufficient to form the foundation for the findings that are

relevant to plaintiffs’ claims.

Dr. Drogin’s statistics regarding weight exceptions only

compared the number of male flight attendants receiving

exceptions with all male flight attendants, and the number of

female flight attendants receiving weight exceptions with all

female flight attendants. But those comparisons do not make

the key analysis that is imporiant here: that is, whether there

was a difference between males and females in the number of

exceptions that were granted compared with the number

requested.

Dr. Drogin’s statistical analysis also shows that male

flight attendants received a larger number of permanent

44a

weight exceptions, while female flight attendants received a

larger number of temporary weight exceptions. Again

however, those numbers do not show the number of such

exceptions granted compared with the number requested.

A statistically proper comparison should be based upon

the number of requests, since the requests are the bases for

defendant taking or denying some action. Plaintiffs do

attempt to discuss “requests” in paragraph 13 of Dr. Drogin’s

report. However, that discusses only the number of men and

women, and not the number of requests.

Plaintiffs contended at oral argument that because

women got more temporary exceptions, they had to apply

more frequently and therefore more requests were granted to

women. That argument makes an improper leap from the fact

that women got more temporary exceptions, to the

conclusion that women had to apply or could only apply for

temporary exemptions which is not supported by any

evidence.

On the other hand, Dr. Zabell’s report did focus on the

number of weight exceptions granted compared with the

exceptions requested. And it was based on data derived from

1,270 flight attendant medical files, with a summary of that

data filed with the court. Dr. Zabell concluded that the rate at

which female flight attendants were granted weight

exceptions exceeded the rate at which male flight attendants

were granted weight exceptions -- 89.91% for females and

85.71% for males. As to the permanent weight exceptions

requested and granted, Dr. Zabell concluded 88.22% were

granted to females and 11.78% were granted to males.” On

the issue of age discrimination, Dr. Zabell’s report focused

on those over and under the age of forty. She found that

91.23% of the requests for weight exceptions by attendants

° However, this did not compare grants with requests.

45a

under 40 were granted, and 89.14% of the requests by flight

attendants over forty were granted. She also found that as to

the permanent weight exceptions which were granted,

78.24% were to flight attendants over forty and 21.76% were

to flight attendants under forty.

These statistics are devastating to plaintiffs’ claims. They

show a higher, or at least statistically comparable, percentage

of female weight exceptions granted, compared with the

percentage of male exceptions. And on the issue of age

discrimination, they show an essentially similar rate of

granting weight exceptions for those attendants over forty

and under forty. As to permanent versus temporary

exceptions, overwhelming percentages were granted to

women and to persons over forty (although this data did not

compare grants with requests). There is, at the very le>st, an

absence of statistical evidence showing any discriminatory

pattern and practice. Taken as a whole, the statistics show at

least neutrally-enforced policies. As to age, the enforcement

has either resulted in a higher number of flight attendants

over forty in defendant’s flight attendant workforce, or at

least has not discriminated against persons over forty.

Plaintiffs of course make certain attacks on Dr. Zabell’s

report. However, those attacks do not undercut the validity of

her statistical conclusions. The key question is whether there

is a statistically significant disparity between the granting of

weight exceptions to men versus women, and to persons over

forty versus persons under forty. Dr. Zabell’s statistics make

the valid comparisons, and the resulting conclusion is an

absence of discrimination, by a standard of no genuine issues

under FRCP 56.

2. Flight attendants’ medical files.

Plaintiffs make arguments based upon information

derived from the medical files, which were produced by

46a

defendant to plaintiffs, of each flight attendant who applied

for a weight exception. Plaintiffs stated their intention to use

a summary of the files at trial, under Rule 1006 of the

Federal Rules of Evidence.'® Defendant argues that the files

are not a proper subject for summary evidence under Rule

1006, but that there must be scrutiny of each individual file.

Defendant also argues that individualized use of the files

would violate this court’s order of May 31, 1996. Defendant

is correct, at least in part.

Some information from the files could perhaps be used in

a statistically appropriate manner, ignoring for the moment

the question of whether the information in each file has to be

admissible evidence. But in any event, plaintiffs’ statistician

did not use those files in these pending motions. Instead, all

we have are arguments regarding them by plaintiffs’ counsel.

And plaintiffs’ arguments undercut their assertion that these

claims can be handled on a class-wide basis. The information

plaintiffs want to use would have to be extracted from each

file in order to identify the relevant variables for each

attendant. Based upon plaintiffs’ arguments, there are

numerous variables which would have to come from each

medical file: Did the applicant ask for a temporary or a

permanent exception? Was the grant of an exception

temporary or permanent? How much overweight was each

flight attendant? Were body fat percentages used in the

calculations? If medication was a reason for the overweight

problem, was that temporary medication or permanent

medication such as honnones following menopause? What

discipline was imposed, if any, for failure to comply with the

weight requirements? What standards and criteria were used

by each flight surgeon in each case? What use was made of

body build? Was the effect of eating disorders considered?

47a

How much of an exception was granted? Were there other

reasons for weight problems, or a history of weight

problems? Were there other factors in which weight was

otherwise beyond the applicant’s control?

A mere listing of these considerations raised by plaintiffs

compels the conclusion that if the medical file of each flight

attendant has to be analyzed, then the claims are individual

and not class claims. And in these summary judgment

motions, plaintiffs’ use of the medical files, which plaintiffs

say is for statistical summary purposes, has not in fact been

used for that purpose. The individual files do not themselves

create any inference of class wide gender or age

discrimination. If instead the individual files are to be used

by plaintiffs for the cases of individual flight attendants, such

use violates this court’s order of May 31, 1996. That order

directed that at trial there could be “no evidence of events

which occurred to specific unnamed class members.”

3. The Denenberg arbitration decision.

Plaintiffs cite to a 1988 decision by referee Denenberg in

an arbitration between the Association of Flight Attendants

and defendant. The issue in that arbitration was whether

defendant had improperly administered the medical

exceptions to the weight program. Ms. Denenberg concluded

that defendant had improperly administered the medical

exceptions.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.