525 F.2d 1354 (9th Cir. 1975), 73--2555, Kaplan v. International Alliance of Theatrical and Stage Emp. and Motion Picture Mach. Operators of United States and Canada

Docket Nº:73--2555, 73--3392.
Citation:525 F.2d 1354
Party Name:Sandra Lee KAPLAN, Plaintiff-Appellee, v. INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES AND MOTION PICTURE MACHINE OPERATORS OF the UNITED STATES AND CANADA, and Local 659, International Photographers of the Motion Picture Industries, Defendants-Appellants.
Case Date:November 05, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1354

525 F.2d 1354 (9th Cir. 1975)

Sandra Lee KAPLAN, Plaintiff-Appellee,

v.

INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES AND

MOTION PICTURE MACHINE OPERATORS OF the UNITED STATES AND

CANADA, and Local 659, International Photographers of the

Motion Picture Industries, Defendants-Appellants.

Nos. 73--2555, 73--3392.

United States Court of Appeals, Ninth Circuit

November 5, 1975

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[Copyrighted Material Omitted]

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T. J. Sargent (argued), of Bodkin, Breslin & Luddy, Los Angeles, Cal., for defendant-appellant in 73--2555.

Robert W. Gilbert (argued), of Robert W. Gilbert & Assoc., Beverly Hills, Cal., for defendant-appellant in 73--3392.

Arthur E. Schwimmer (argued), Encino, Cal., and Arlene Colman-Schwimmer and Ellis J. Horvitz, Encino, for plaintiff-appellee.

Gerald D. Letwin (argued), Washington, D.C., for amicus curiae Equal Employment Opportunity Commission.

OPINION

Before WRIGHT and SNEED, Circuit Judges, and POWELL, [*] District Judge.

POWELL, District Judge:

This is an appeal from a judgment holding that the appellants discriminated against appellee solely on account of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, e--1 to e--17. The district court declared

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invalid a provision of a union collective bargaining agreement and granted damages and injunctive relief to appellee. Appellants are International Alliance of Theatrical and Stage Employees and Motion Picture Operators of the United States and Canada (I.A.T.S.E. or the International) and Local 659, International Photographers of the Motion Picture Industries (Local 659). Appellee is Sandra Lee Kaplan, a white female still photographer residing in the Los Angeles, California area. Leave to intervene as amicus curiae was granted to the Equal Employment Opportunity Commission.

Various employees in the theatrical, stage and motion picture industry are represented by the International and its local affiliates. Local 659 represents the cameramen and photographers for the Los Angeles, California area and the thirteen Western States. The International is the exclusive bargaining representative for all its affiliates. In negotiates a basic agreement with the Association of Motion Picture and Television Producers, Inc. (the producers' association or employers) which includes six major film studios and independent film producers. A separate agreement with the employers is negotiated by the International on behalf of and together with each of its local affiliates. The terms are subject to the basic agreement, but add provisions particularized to the requirements of the affiliate's crafts classifications.

Local 659's agreement with the producers' association establishes an Industry Experience Roster (the Roster). It is used to classify employees as to seniroity and priority in employment opportunity and is maintained by the producers. Eligibility for classification on the Roster is based on work experience during the preceding 365 days and is evaluated by the Industry Cameraman Qualification Committee, appointed by the producers' association according to the terms of the basic agreement. Union membership is not required for eligibility, but an individual must become a union member after placement on the Roster.

Employers must give preference in hiring to Roster individuals. Once the Roster has been exhausted, an employer may secure employees from any source.

Local 659's collective bargaining agreements do not condition employment on union membership, but permit a new employee a 30 day grace period following commencement of employment before union membership is required for continued employment. Prior to 1949, when the Roster was adopted, the union was a 'closed shop' comprised only of male members. In November, 1972, Local 659's membership totalled 1,455, eight of whom were female. Of the eight females, six are not included in Roster classification.

Prior to 1966, appellee was employed with a production company. In late 1966, she telephoned Local 659 to request an application for union membership. She testified that she was told that the 'duty roster' was full and new applications were not being accepted. She intensified her efforts in 1969, and though persistent, met with no success and limited assistance. She testified that numerous employers believed that she was a qualified still photographer, but would not hire her because she was non-union.

In 1969, appellee was hired in Los Angeles as a still photographer subject to approval of New York Local 644, since the motion picture was to be filmed in New York. For undetermined reasons, she was not employed. Appellee further testified that she qualified on four separate occasions as a still photographer, but was not employed because she did not belong to a union.

Appellee subsequently filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging discrimination in union membership and referral for employment on account of sex. On September 20, 1971, the EEOC gave appellee statutory notice of her right to bring a Title VII action.

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I.

Did the Trial Court Err in Finding That Local 659 Violated Title VII?

Local 659 argues that it was clearly erroneous as a matter of law for the district court to base its finding of disproportionate female membership in the union on statistical evidence drawn from general population percentages. Local 659's argument is without merit. The use of statistical evidence is recognized as a means of proof in Title VII cases. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Statistics often supply evidentiary support for claims of unlawful discrimination. Marquez v. Omaha District Sales Office, Ford Division of Ford Motor Co., 440 F.2d 1157, 1161 (8 Cir. 1971). Courts have relied upon statistical evidence as a basis for allocating the burden of proof. United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir. 1971), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Upon showing wholly disproportionate female membership in a union in comparison to the available female work force in a demographic area, an inference arises that the sex imbalance results from discrimination, and the burden of going forward and the burden of persuasion is shifted to the accused, for such a showing is sufficient to establish a prima facie case of sex discrimination. United States v. Hayes International Corp., 456 F.2d 112, 120 (5 Cir. 1972); United States v. Ironworkers Local 86, supra 443 F.2d at 551. Local 659 notes that the absence of variables properly correlating the statistics could undermine the reasonableness of the inference drawn therefrom. However, there was evidence indicating that qualified female still photographers were available in the Los Angeles area, 1 and no individual on the 60 member Roster was a female movie still photographer. 2 The basing of its finding of discrimination in part on these statistics was not clearly erroneous. Sessions, Inc. v. Motion, 491 F.2d 854, 858 (9th Cir. 1974).

The record discloses that the district court did not rely exclusively on statistical evidence to establish a Title VII violation, but supported the finding on specific discriminatory acts of Local 659. Viewing the evidence, as this court must, most favorably to the party who prevailed below, we conclude that the finding of specific discriminatory acts by Local 659 is sufficiently supported.

When the Roster was adopted in 1949, Local 659 was a 'closed shop' comprised solely of male members. Signatory employers continued to hire only union members, and Local 659 was aware of that fact. The 60 member still photographer Roster contained only male members. Testimony indicated that Local 659 waived its experience requirements sometimes for males, but never for females. Further testimony showed that Local 659 granted approval to hire non-union members in order to qualify them for union membership, but later withdrew approval when a non-union female was hired.

The district court did not err in finding that Local 659 violated Title VII.

II.

Was the International Sufficiently Named in the EEOC Charge?

The International argues that the district court never acquired jurisdiction under Title VII because the plaintiff did not name the International in the EEOC administrative charge. Thus, it maintains that it is immune from any liability in this action.

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The EEOC charges must be construed with utmost liberality since they are made by those unschooled in the technicalities of formal pleading. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462--63 (5 Cir. 1970); Cox v. United States Gypsum Co., 409 F.2d 289, 290 (7 Cir. 1969); Antonopulos v. Aerojet-General Corp., 295 F.Supp. 1390, 1395 (E.D.Cal.1968). One function of the administrative charge is to provide information to enable the EEOC to determine the scope of the alleged violation and to attempt conciliation. Jenkins v. United Gas Corp., 400 F.2d 28, 30 n. 3 (5 Cir. 1968).

In appellee's charge filed with the EEOC under 42 U.S.C. § 2000e--5(b), the appellee identified the 'discriminating Party' to be 'I.A.T.S.E. LOCAL 659--INTERNATIONAL PHOTOGRAPHERS OF THE MOTION PICTURE INDUSTRIES.' The crucial element of the charge of discrimination is the factual statement contained therein. Sanchez v. Standard Brands, Inc., supra 431 F.2d at 462. 3 Appellee indicated that one source of discrimination was the 'exclusive referral agreement with the Studios.' (C.R. 15) The International negotiates the major collective bargaining agreement with the producers. She also alleged that the 'Union only has one female member and no female members in the Still Photographer's Union to which I am applying.' (C.R. 15)

Since it is anticipated that lay persons will continue to initiate EEOC action without legal...

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