Rosenfeld v. Southern Pacific Company, 23983

Citation444 F.2d 1219
Decision Date01 June 1971
Docket Number23984.,No. 23983,23983
PartiesLeah ROSENFELD, Appellee, v. SOUTHERN PACIFIC COMPANY, a Delaware corporation, Appellant. Leah ROSENFELD, Appellee, v. SOUTHERN PACIFIC COMPANY, a Delaware corporation, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jefferson Frazier, Deputy Atty. Gen., (argued), Evelle J. Younger, Cal. Atty. Gen., Jay S. Linderman, Deputy Atty. Gen., San Francisco, Cal., for appellants.

Frank G. Wells (argued), of Gang, Tyre & Brown, Hollywood, Cal., Louis M. Brown, Los Angeles, Cal., Bodle, Fogel, Julber & Reinhardt, Los Angeles, Cal., Schoene & Kramer, Washington, D. C., for appellee.

David W. Zugschwerdt, Washington, D. C., Charles P. Scully, Donald C. Carroll, San Francisco, Cal., for amicus curiae.

Before CHAMBERS, HAMLEY and KILKENNY, Circuit Judges.

HAMLEY, Circuit Judge:

Leah Rosenfeld brought this action against Southern Pacific Company pursuant to section 706(f) of Title VII of the Civil Rights Act of 1964 (Act), 42 U.S.C. § 2000e-5(f).1 Plaintiff, an employee of the company, alleged that in filling the position of agent-telegrapher at Thermal, California, in March, 1966, Southern Pacific discriminated against her solely because of her sex, by assigning the position to a junior male employee.

Plaintiff originally asked for injunctive relief and damages specifically related to the Thermal incident.2 However, in a pretrial order thereafter entered, supplementing the pleadings, issues were posed which went beyond the circumstances of that incident and which could result in determinations affecting the company's general labor policy respecting the employment of women.3

The court permitted the State of California to intervene because of its interest in defending the validity of the state's labor laws. Following extensive proceedings, a summary judgment was entered, as summarized in the margin.4 It will be noted that while the judgment is generally favorable to plaintiff, the court did not award damages against the company. Southern Pacific and the State of California appeal.

At the time of oral argument in this court it was disclosed that, on July 15, 1968, while the case was pending in the district court, Southern Pacific closed its agency at Thermal. We therefore remanded the cause to the district court for the limited purpose of considering whether this case became moot because of the closing of the Thermal agency.

In the remanded proceedings the district court entered findings of fact and conclusions of law leading it to hold that the case is not moot and that the judgment under review is in full force and effect. Southern Pacific and the State of California have appealed from this district court determination and, even in the absence of such a challenge, it would be our responsibility to rule upon the question of mootness. A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. Local No. 8-6, Oil, Chemical and Atomic Workers, etc. v. Missouri, 361 U.S. 363, 367, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960).

Plaintiff did not originally seek a declaratory judgment or injunctive relief pertaining to general company employment practices pertaining to sex discrimination. But, as noted at the outset of this opinion, the issues were broadened in the pretrial order in such manner as to contemplate such general declaratory and possibly injunctive relief. Consistent therewith, the judgment entered, as summarized in note 4, grants extensive declaratory and injunctive relief not limited to the Thermal agency, and operates prospectively.

The findings and conclusions on remand disclose why the district court thinks the controversy extends beyond Thermal.5 As before noted, the judgment under review reflects the same analysis of the controversy and provides relief designed to meet the problem. If the case is now declared moot this will not eradicate the controversy, it will simply remain undecided.

In essence, the mootness problem here is like that dealt with in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L. Ed.2d 1 (1969). In that case, candidates in the general elections of 1968 challenged the validity of Illinois statutory procedures for nominating independent candidates. A three-judge district court dismissed the action for failure to state a cause of action, citing MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 (1948). By the time the Moore case reached the Supreme Court, the 1968 general elections were a matter of history. For this reason appellees moved the cause to be dismissed for mootness. Denying this motion the Supreme Court said:

"But while the 1968 election is over, the burden which MacDougall v. Green, supra, allowed to be placed on the nomination of candidates for state-wide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore `capable of repetition, yet evading review,\' Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L.Ed. 310. The need for its resolution thus reflects a continuing controversy in the federal-state area where our `one man, one vote\' decisions have thrust." (394 U. S. at 816, 89 S.Ct. at 1494).

Similarly here, the burden which Southern Pacific's general labor policy and the state statutes in question place on Southern Pacific's employment of women remains and controls the company's future work assignments. Moreover, the fact that this cause arose under Title VII of the Civil Rights Act of 1964 provides additional support for the view that the action has not been mooted by the closing of the Thermal agency. That Title is so designed that, in the attainment of its objectives, the administrative agency primarily renders a conciliation service. The ultimate sanction is judicial enforcement initiated by individuals who are aggrieved. Section 706(e) of the Act, 42 U.S.C. § 2000e-5(e). In many such cases, including this one, declaratory and injunctive relief is sought, the need for which is not necessarily dependent upon proof that a particular discrimination has continued.

Thus while the resulting litigation is private in form, it is intended to effectuate the policies of the legislation. So considered, such a suit constitutes more than the assertion of a private claim and, consequently, it is not necessarily defeated by the disappearance of the particular grievance which gave rise to the action. The controverted issue of unlawful employer discrimination remains; it may, and should be, judicially resolved and relief granted or denied. See Jenkins v. United Gas Corp., 400 F.2d 28, 30-33 (5th Cir. 1968).

The discontinuance of the particular grievance which gave rise to this action may call for a denial of some of the relief requested. See Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 429 (8th Cir. 1970). It does not moot the litigation.

On the merits, Southern Pacific argues that it is the company's policy to exclude women, generically, from certain positions. The company restricts these job opportunities to men for two basic reasons: (1) the arduous nature of the work-related activity renders women physically unsuited for the jobs; (2) appointing a woman to the position would result in a violation of California labor laws and regulations which limit hours of work for women and restrict the weight they are permitted to lift. Positions such as that of agent-telegrapher at Thermal fall within the ambit of this policy. The company concludes that effectuation of this policy is not proscribed by Title VII of the Civil Rights Act due to the exception created by the Act for those situations where sex is a "bona fide occupational qualification."

While the agent-telegrapher position at Thermal is no longer in existence, the work requirements which that position entailed are illustrative of the kind of positions which are denied to female employees under the company's labor policy described above. During the harvesting season, the position may require work in excess of ten hours a day and eighty hours a week.6 The position requires the heavy physical effort involved in climbing over and around boxcars to adjust their vents, collapse their bunkers and close and seal their doors. In addition, the employee must lift various objects weighing more than twenty-five pounds and, in some instances, more than fifty pounds.

The critical question presented by this argument is whether, consistent with Title VII of the Civil Rights Act of 1964, the company may apply such a labor policy. The pertinent provision of Title VII is section 703(a) of the Act, 42 U.S.C. § 2000e-2(a), reading as follows:

"Sec. 703(a) It shall be an unlawful employment practice for an employer —
"(1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\'s race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual\'s race, color, religion, sex, or national origin."

Southern Pacific's employment policy under which, for example, it has denied Mrs. Rosenfeld an employment assignment on the ground that women, considered generically, are not physically or biologically suited for such work, results in distinguishing employees, thus discriminating against some because of sex, within the meaning of subsection (1) of this provision. It also constitutes a limitation upon, segregation of, or classification of the company's employees in a way which would deprive or tend to deprive an individual of employment opportunities...

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