553 F.2d 581 (9th Cir. 1976), 75-2729, Manhart v. City of Los Angeles, Dept. of Water and Power

Docket Nº:75-2729, 75-2807 and 75-2905.
Citation:553 F.2d 581
Party Name:Marie MANHART et al., Plaintiffs-Appellees, v. CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, a body corporate and politic, et al., Defendants-Appellants.
Case Date:November 23, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 581

553 F.2d 581 (9th Cir. 1976)

Marie MANHART et al., Plaintiffs-Appellees,



corporate and politic, et al., Defendants-Appellants.

Nos. 75-2729, 75-2807 and 75-2905.

United States Court of Appeals, Ninth Circuit

November 23, 1976

As Amended Dec. 23, 1976.

Rehearing and Rehearing In Banc Denied April 18, 1977.

As Amended May 5, 1977.

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[Copyrighted Material Omitted]

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David J. Oliphant, Deputy City Atty. (argued), Los Angeles, Cal., for defendants-appellants/cross-appellees.

David J. Dohrmann (argued), Schwartz, Steinsapir & Dohrmann, Los Angeles, Cal., for plaintiffs-appellees/cross-appellants.

Michael Evan Gold and Fred Okrand, ACLU Foundation, Los Angeles, Cal., amicus curiae, for plaintiffs-appellees.

Mary-Helen Mautner, Washington, D.C. (Abner W. Sibal, Joseph T. Eddins, Jr., Beatrice Rosenberg, Charles L. Reischel, Washington, D.C., with her on brief) for E.E.O.C., amicus curiae.

Before CHAMBERS, DUNIWAY and KILKENNY, Circuit Judges.

DUNIWAY, Circuit Judge:

The question presented in this case is whether a retirement plan which requires women employees to contribute from their wages 15% more than similarly situated male employees because of the longer average life expectancy of women violates the Civil Rights Act of 1964, Title VII, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-2. The district court held that the plan violated Title VII, 1 enjoined the employer from charging the higher contribution rate against women, and awarded a refund of all excess contributions made on or after April 5, 1972. Manhart v. City of Los Angeles, Department of Water and Power, C.D.Cal., 1975, 387 F.Supp. 980.

This is a class action brought by women employees and retirees of the City of Los Angeles, Department of Water and Power (hereinafter "Department"). The defendants are the Department, the members of the Board of Commissioners of the Department, the members of the Board of Administration of the Department's Employees' Retirement, Disability, and Death Benefit Insurance Plan, the Department's chief accounting officer, and the Department's general manager.

All employees of the Department are required to participate in the established retirement plan which is funded and managed solely within the Department. Each employee must make a monthly contribution to the retirement plan, and the Department matches that contribution 110%. These funds are deposited with the city treasurer but are kept separate and apart from all other monies of the city. The chief accounting employee of the Department is the only person authorized to withdraw money from the retirement account.

The aspect of this program which gives rise to this case is that women employees are required to contribute approximately 15% more than men employees who are identically situated. The Department's justification is that because women get the same monthly benefits upon retiring and because, on the average, they live approximately five years longer, they must, as a group, contribute more.

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In June of 1973, the International Brotherhood of Electrical Workers, Local # 18, representing the named plaintiffs, filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that the higher contribution requirement for women was sex discrimination in violation of the Civil Rights Acts of 1871 and 1964. The United States Department of Justice issued a Notice of Right to Sue letter in September of 1973, and this action was filed during that same month.

In their second amended complaint, filed on July 18, 1974, the plaintiffs stated four separate claims for relief, each of which, however, was based upon the same set of facts. The first claim was based upon Title VII, the second upon the Civil Rights Act of 1871, 42 U.S.C. § 1983, the third upon the Fourteenth Amendment to the Constitution, and the fourth, a pendent claim, upon Article 1, §§ 1 and 21, of the Constitution of California.

The plaintiffs' first amended complaint had also asserted claims resting on the same four theories, but had not set them up as separate claims. On March 26, 1974, the court granted in part and denied in part the defendants' motion to dismiss. It granted the motion of the Department, the two boards, and their members in their capacities as members, to dismiss the claim that was based upon 42 U.S.C. § 1983, on the ground that the Department and the Board are not "persons" within the meaning of that section. It denied the motion of the Board members in their individual capacities to dismiss the § 1983 claim, holding that they are "persons," and that they are not immune from suit under § 1983. It granted the motion of all defendants to dismiss the § 1983 claim insofar as any of it accrued more than three years before the action was filed on September 26, 1973. It denied the motion to dismiss the Title VII claim, except that it granted the motion as to any claim arising before March 24, 1972. It dismissed the claim under the California Constitution. It did not rule on the claim under the Fourteenth Amendment. And it allowed 20 days for the filing of a second amended complaint. After the second amended complaint was filed, no motion was made by any of the defendants to strike or otherwise dispose of those of the allegations that were inconsistent with the court's order of March 26, 1974.

On June 20, 1975, the court granted the plaintiffs' motion for summary judgment, holding that the plan violated Title VII. On the same day it entered a judgment, declaring that the plan, insofar as it requires larger contributions from female employees than from their male counterparts, violates Title VII, and specifically § 703(a)(1) (42 U.S.C. § 2000e-2(a)). The judgment also enjoins requiring larger contributions from females and orders that the Department refund the excess contributions collected on and after April 5, 1972, plus interest at 7%, and that defendants pay counsel for plaintiffs' reasonable attorneys' fees. The judgment says nothing about the claims based on § 1983, the Fourteenth Amendment or the California Constitution.

On July 7, 1975, the defendants appealed from the judgment. This appeal is our No. 75-2729. On July 11, 1975, the plaintiffs appealed from "that portion of the judgment . . . which denies relief to the plaintiffs based on the causes of action and defendants dismissed by the Court in its Order Granting and Denying in Part Defendants' Motion to Dismiss, entered on or about March 26, 1974." This appeal is our No. 75-2807. On July 17, the district judge denied a motion by the defendants for a stay of the judgment. They appealed on July 30, 1975. This is our No. 75-2905. We later entered an order staying the judgment pending appeal, insofar as it requires the refund of contributions.

After oral argument before us, and in response to an inquiry from the bench, counsel for plaintiffs stipulated, and we ordered, that the plaintiffs "have heretofore abandoned all claims under 42 U.S.C. § 1983 against individual officials in their individual capacities."

I. Our Jurisdiction.

  1. No. 75-2729.

    The judgment of June 20, 1975, embodies an injunction against requiring larger

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    contributions from women than from men, and requiring restitution of excess contributions previously paid. As an injunction, it is appealable under 28 U.S.C. § 1292(a)(1). It is not appealable as a final judgment under 28 U.S.C. § 1291. It does not dispose of any claim except the claim under Title VII. It runs only against the defendants, the Department, the two Boards, and their members as such, but not the defendant members individually. It says nothing about the claims or defendants dismissed in the district court's order of March 26, 1974. There is no "express determination that there is no just reason for delay" nor "express direction for the entry of judgment." (F.R.Civ.P. 54(b)).

  2. No. 75-2807.

    We have no jurisdiction of this appeal. The judgment does not do what the notice of appeal says that it does. The order of March 26, 1974, was interlocutory. It did not purport to determine any issue finally. It permitted amendment of the complaint, and the amendment restated, separately, all of the claims asserted but commingled in the original complaint. The plaintiffs were entitled to amend as they did, and the defendants, to protect their record, should have called to the attention of the court the fact that the amended complaint did not fully comply with the court's order of March 26, 1974. The court was not required to reconsider that order but the defendants should have at least suggested that it embody in its subsequent judgment the decision that it made in its March 26, 1974, order, thus disposing of the plaintiffs' claims. The claims remain pending because the judgment does not dispose of them. We have no jurisdiction in No. 75-2807.

    It is no answer to say that the plaintiffs have voluntarily abandoned their claims under 42 U.S.C. § 1983 against the individual defendants. That abandonment binds the plaintiffs, but it does not affect their claims against the Department and its Boards and their members and employees in their official capacities under § 1983. Those claims are still pending in the district court and are not properly before us.

  3. No. 75-2905.

    Because we have granted a stay, and because we are now affirming the judgment in No. 75-2729, this appeal is moot.

    II. The Merits of the Judgment.

    The basis of the defendants' appeal is that, while requiring women to make larger contributions discriminates against women, there is a sound basis for the requirement, making it a discrimination based on longevity, not sex, and therefore not the kind of invidious discrimination that Title VII was intended to abolish. We disagree.

    It is undisputed that the overriding purpose of Title VII is to require...

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