Air Lines Stewards, etc., Loc. 550 v. American Airlines, Inc., 71-1614

Citation455 F.2d 101
Decision Date18 January 1972
Docket Number71-1615.,No. 71-1614,71-1614
PartiesAIR LINES STEWARDS AND STEWARDESSES ASSOCIATION, LOCAL 550, et al., Plaintiffs-Appellees, and Equal Employment Opportunity Commission, Applicant for Intervention-Appellant, v. AMERICAN AIRLINES, INC., and Trans World Airlines, Inc., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Lutz A. Prager, John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, Equal Employment Opportunity Commission, Washington, D.C., for appellant.

Laurence A. Carton, Joseph P. Carr, Gardner, Carton, Douglas, Chilgren & Waud, Chicago, Ill., for defendants-appellees.

Gilbert Feldman, Barbara J. Hillman, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS, PELL, and STEVENS*, Circuit Judges.

CUMMINGS, Circuit Judge.

In these two class actions, the Union1 and certain former stewardesses asserted that both defendant airlines had violated Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) by terminating stewardesses who had become pregnant. They sought reinstatement, back pay, and other relief. On June 1, 1970, the Union filed appropriate charges with the Equal Employment Opportunity Commission, and a month thereafter the Commission notified the Union that it was entitled to initiate civil actions in the district court in accordance with 42 U.S.C. § 2000e-5(e) and (f). These suits were filed a fortnight thereafter.

Although the district court initially refused to permit the Commission to participate as amicus curiae, in March 1971 it was granted leave to file an amicus brief in support of plaintiffs' motion for summary judgment and did so on April 30, 1971.

After our decision in Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir.1971), certiorari denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 the parties entered into settlement negotiations resulting in July 14, 1971, memoranda of understanding. The two airlines agreed to place pregnancy-discharged stewardesses on a hiring list according to their seniority at the time of discharge (plus 90 days in the American Airlines case). Upon the occurrence of a vacancy, a stewardess would have ten days to accept reemployment on condition that she meet weight restrictions and other qualifications in effect at the time of her discharge. As the Commission notes, the proposed settlement did not entitle the stewardesses to immediate, unconditional reinstatement, full seniority from time of first hire, and back pay from date of discharge.

At a hearing on July 16, 1971, the district court entered orders permitting the suits to proceed as class actions, and permitting notice of the proposed settlement and an August 30, 1971, hearing thereon to be given to the stewardesses' class by publication in the union newspaper. A copy of the notice was also mailed to each stewardess at her last known address. On August 18 and 19, 1971, the airlines mailed copies of the proposed settlement to members of the class.

On August 5, 1971, the Commission sought to intervene as of right in both suits under Rule 24(a) of the Federal Rules of Civil Procedure. However, the motions to intervene were denied on August 11, 1971, on the ground that

"These parties have always been fairly represented, they have been represented by competent counsel."

Thereupon the Commission appealed, and on August 25, we granted a stay pending resolution of the consolidated appeals.

Rule 24(a) of the Federal Rules of Civil Procedure governs intervention of right. Clause 1 of that Rule permits intervention when a statute of the United States confers an unconditional right to intervene. No such statute has yet been enacted as to the Commission2. Significantly, 3B Moore's Federal Practice ¶ 24.062 p. 24-94 (2d ed. 1969), notes that Congress has allowed the United States to intervene in various types of proceedings under the Civil Rights Act of 1964, but nothing is said about Commission intervention.

Clause 2 of Rule 24(a) also permits intervention of right "1 when the applicant claims an interest relating to the property or transaction which is the subject of the action and 2 he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, 3 unless the applicant's interest is adequately represented by the interested parties." These three conditions have not been met.3

I. The Commission's Interest in the Subject Matter of the Action and Practical Impairment of its Interests.

In an attempt to satisfy the first condition, the Commission asserts that its interest in these cases is predicated on Section 706(i) of the Act, which provides:

"In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under subsection (e) of this section, the Commission may commence proceedings to compel compliance with such order." (42 U.S.C. § 2000e-5(i)).

Under this Section the Commission claims an interest both as the government agency empowered by Congress to enforce court orders and as the representative of the class on whose behalf these suits were brought. The Commission characterizes its interest as that of monitoring remedies in private Title VII cases to make certain that they vindicate the policies of the Act and afford appropriate relief. If this were the actual nature of the Commission's interest, it might be sufficiently related to a judicial proceeding approving a consent decree to justify intervention. However, the Commission's self-characterization is overstated.

Clearly Section 706(i) empowers the Commission to initiate court proceedings to compel compliance only when (1) a court order, coercive or consensual, has issued and (2) the subject of that order has failed to obey it.4 This provision does not, as the Commission contends, charge it with responsibility in fashioning relief as opposed to determining the existence of a violation, and it does not "authorized its participation in all suits brought by private individuals upon the entry of judgment in their favor." (Emphasis in Commission's main brief.)

When Congress provided for the intrusion of the Commission in Section 706(i), it did not make a dichotomy between establishing the underlying offense, from which the Commission was deliberately excluded,5 and fashioning complainants' remedies. Here the Commission asserts that the proposed settlement violates the Act and that it affords narrower relief than would be awarded upon successful litigation.6 This is simply the Commission's subjective assertion that conduct that will be permitted to the defendants is conduct violative of Title VII. Plainly the Commission cannot bring suit to establish that contention.7 Since relief is always tailored to remedy the conduct found offensive, dissatisfaction with the court's appraisal of the conduct can always be articulated in terms of inadequacy of the relief afforded. Consequently, without subverting the manifest intent of Congress that only private litigants and the Attorney General may sue to establish an unfair employment practice,8 we cannot accept the notion that Congress meant to invest in this Commission a participating interest in formulating Title VII remedies. Braddy v. Southern Bell Telephone & Telegraph Co., No. 71-2172 (5th Cir., decided January 11, 1972). Indeed, Section 706(i) embodies the judgment that Commission action against non-compliance with court orders will promote more scrupulous obedience, ensure against intimidation of successful plaintiffs' attempts to enforce court orders, and relieve private plaintiffs of the burden of a second action to secure the relief to which a first action found them entitled.

Section 706(i) does not authorize Commission participation in all suits as soon as judgment is rendered for plaintiffs. Simply stated, the interest afforded under Section 706(i) is the limited one of the ability to initiate contempt proceedings upon the defendant's failure to comply with the order of the trial court.9 Failure to comply with the court's decree is the condition for Commission action under Section 706(i). Contumacious behavior is not something that can readily be assumed. Therefore, the Commission's legitimate interest under Section 706(i) is contingent and not direct, as required by Rule 24(a)(2). See Hobson v. Hansen, 41 F.R.D. 18, 24 (D.D.C.1968); 3B Moore's Federal Practice ¶ 24.09-1 2 at 24-301 (2d ed. 1969).

What limited interest the Commission has under Section 706(i) is not practically impaired within Rule 24(a)(2) by denying it rightful intervention. The Commission argues that without intervention it will find itself on the horns of a dilemma: it will be forced to choose between refusing to enforce a defective court order and enforcing an order which does not carry out the policies of the Act. However, we perceive no such dilemma. By the express terms of the statute the Commission simply cannot seek to enforce an order, defective or otherwise, unless it is disobeyed. The Commission's interest is in ensuring compliance with court orders, nd that interest is not impaired by disallowing intervention in court proceedings to determine liability or award relief.

In its reply brief the Commission argues that an interest sufficient for intervention under Rule 24(a)(2) also emanates from Section 706(a) of the Act (42 U.S.C. § 2000e-5(a)) which requires the Commission upon a finding of reasonable cause to believe the Act is being violated, to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." The Commission further contends its interest in effective conciliation will be impaired by the "stare decisis" effect of a defective court order. First, the Commission does not have sufficient interest in the success of the conciliation negotiations in its own right to justify...

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