Frank v. United Airlines

• Decision Date: 12 July 1999
• Docket Number: Nos. 98-15638,98-16687,s. 98-15638
• Citation: 216 F.3d 845
• Parties: (9th Cir. 2000) 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, v. UNITED AIRLINES, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 845

216 F.3d 845 (9th Cir. 2000)

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, v. UNITED AIRLINES, INC., Defendant-Appellee.

Nos. 98-15638, 98-16687

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted July 12, 1999--San Francisco, California

Filed June 21, 2000

[Copyrighted Material Omitted]

Edith J. Benay, San Francisco, California, for the plaintiffs-appellants.

Tom A. Jerman, Douglas E. Dexter, and David J. Reis, O'Melveny & Myers, San Francisco, California, for the defendant-appellee.

Appeals from the United States District Court for the Northern District of California; Charles A. Legge, District Judge, Presiding. D.C. No. CV-92-00692-CAL

Before: Stephen Reinhardt, Diarmuid F. O'Scannlain, and William A. 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. S 2000e; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. SS 621-634; the Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12101-12213; and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code SS 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. S 1291. We reverse in part and affirm in part.

I

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, 60506 (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 (5th Cir. 1971), United applied maximum weight requirements to both male and female flight attendants. ¹ Flight attendants -a group comprised of 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 1994².

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 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 returned 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 (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 11, 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.³

II

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).

III

As a threshold matter, plaintiffs contend that the district court erred in holding that claim preclusion⁴ 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 (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...