Cates v. Trans World Airlines, Inc.

• Decision Date: 05 August 1977
• Docket Number: D,No. 489,489
• Citation: 561 F.2d 1064
• Parties: 15 Fair Empl.Prac.Cas. 329, 14 Empl. Prac. Dec. P 7792 Solomon CATES, Jonathan George and James Whitehead, Jr., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TRANS WORLD AIRLINES, INC. and Airlines Pilots Association, Defendants- Appellees. ocket 76-7420.
• Court: U.S. Court of Appeals — Second Circuit

Page 1064

561 F.2d 1064

15 Fair Empl.Prac.Cas. 329, 14 Empl. Prac.

Dec. P 7792

Solomon CATES, Jonathan George and James Whitehead, Jr., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TRANS WORLD AIRLINES, INC. and Airlines Pilots Association Defendants- Appellees.

No. 489, Docket 76-7420.

United States Court of Appeals Second Circuit.

Argued March 3, 1977.

Decided Aug. 5, 1977.

Barbara A. Morris, New York City (Nathaniel R. Jones, William D. Wells, New York City, of counsel), for plaintiffs-appellants.

Peyton H. Moss, New York City (Poletti Freidin Prashker Feldman & Gartner, Richard Schoolman, New York City, of counsel), for defendant-appellee Trans World Airlines, Inc.

Michael E. Abram, New York City (Cohen, Weiss & Simon, Robert S. Savelson, New York City, of counsel), for defendant-appellee Air Line Pilots Ass'n, International.

Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, Vincent J. Blackwood, Atty., Washington, D.C., for Equal Employment Opportunity Commission, amicus curiae.

Robert E. Williams and Douglas S. McDowell, Washington, D.C., for Equal Employment Advisory Council, amicus curiae.

Before LUMBARD and OAKES, Circuit Judges, and BRYAN, Senior District Judge. ^*

FREDERICK van PELT BRYAN, Senior District Judge:

Solomon Cates, Jonathan George, and James Whitehead appeal from a July 22, 1976 order of the United States District Court for the Southern District of New York, Charles L. Brieant, J., dismissing their second amended complaint on behalf of themselves and others similarly situated.

The principal issues on appeal concern the timeliness of the assertion of claims of unlawful employment practices under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and unlawful discrimination under 42 U.S.C. § 1981. On an analysis which differs somewhat from that employed by the court below, we affirm the dismissal of the second amended complaint.

I.

Appellants are qualified black flight crew personnel. Appellee Trans World Airlines, Inc. (TWA), a domestic and international airline, is an "employer" within the meaning of 42 U.S.C. § 2000e(b). Appellee Air Line Pilots Association, International (ALPA), is a "labor organization" within the meaning of 42 U.S.C. § 2000e(d) and a "representative" within the meaning of 45 U.S.C. § 151.

Appellants Cates and George both alleged that on February 28, 1966 they first applied for flight positions with TWA and, although they were qualified for such employment, were rejected because of their race. Subsequent employment applications by both men were unsuccessful for the same reason, they claim, until 1969. On August 1, 1969, George was hired as a flight engineer, and on October 17, 1969, Cates was also hired in that capacity. On those dates, they became represented for collective bargaining purposes by ALPA and were assigned seniority according to actual date of hire pursuant to the TWA-ALPA seniority system which is the nub of the present controversy. That system, incorporated in the collective bargaining agreements between ALPA and TWA, governs each pilot's job assignments, compensation, eligibility for transfer or promotion, liability to furlough, ¹ and order of recall throughout his employment with TWA.

Shortly after the hiring of Cates and George, unfavorable business conditions beset TWA. In January, 1970, all flight crew hirings were halted as an economy measure. Then the company began furloughing flight crew personnel who had already been hired. On September 1, 1970 and October 5, 1970, Cates and George, respectively, were furloughed in accordance with the terms of the "last hired-first fired" seniority system. They have not yet been recalled.

The allegations of appellant Whitehead are somewhat different. From September, 1957 through May, 1967 he was employed as a pilot in the United States Air Force. Whitehead desired employment in a flight position with TWA from 1957 on, and was at all times fully qualified for such a position. He claims, however, that because of the known discriminatory hiring practices of TWA he was dissuaded from applying for employment at that time. He subsequently did apply, was accepted for employment with TWA in a flight position on March 28, 1966, and entered on duty on May 5, 1967. The seniority Whitehead had accumulated allowed him to withstand the furloughs in 1970, and he has remained in the regular employ of TWA since first entering on duty.

On March 24, 1972, all three men filed charges against TWA and ALPA with the Equal Employment Opportunity Commission (EEOC). On November 27, 1973, Cates received an amended notice of right to sue from the EEOC. George and Whitehead received similar notices the following day, November 28, 1973. On December 27, 1973 a complaint was filed in the Southern District of New York, which was first amended on March 4, 1974.

The first amended complaint sought declaratory and injunctive relief for the three plaintiffs and a class consisting of

all other black persons who may be employed with the defendant TWA in the position of flight engineer, co-pilot, pilot, or captain or who may be presently on furlough from such positions, or who would be employed in such positions but for the defendant TWA's discriminatory employment policies and practices. ²

The principal discriminatory practices specified were TWA's alleged consistent failure and refusal to hire qualified blacks as crew members because of their race, and TWA's and ALPA's maintenance of the date-of-hire seniority system, the effect of which

has been and continues to be (to) limit, segregate and classify and discriminate against black employees at TWA's facilities in ways which jeopardize the jobs of and tend to deprive the said black employees of employment opportunities and otherwise adversely affect their status as employees because of their race and color. The seniority system referred to above is not necessary to the operation of the defendant TWA's business.

The first amended complaint also charged that TWA had retaliated against employees for filing charges with the EEOC, had failed to take affirmative steps to rectify the effects of its past discriminatory practices, and that both defendants had applied criteria for job advancement and retention which discriminated against black flight crew employees. These employment policies and practices were said to violate Title VII and § 1981. In addition, plaintiffs claimed that ALPA had violated its duty of fair representation with respect to them and the class as a whole.

The defendants moved to dismiss the first amended complaint on the ground that the claims under both Title VII and § 1981 were untimely. Specifically, they contended that the Title VII claim must fail because no charge had been filed with the EEOC within 180 days after the alleged unlawful employment practice had occurred as required by § 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), ³ and that the § 1981 claim was barred since it had not been asserted within the applicable three-year statute of limitations. ⁴ Judge Brieant denied the motions to dismiss the complaint. He ruled that the Title VII claims were timely since "the complaint, on its face, clearly alleges a pervasive pattern of racial discrimination which continues to date." He also concluded that the § 1981 claim was not barred, reasoning that the timely filing of charges with the EEOC tolled the running of the statute of limitations.

After the denial of the motions to dismiss, counsel for both sides engaged in negotiations aimed at further distilling the legal issues presented by the case. The result was a "stipulation and order" and "letter of agreement" entered into by plaintiffs and TWA and filed on December 9, 1975. The substance of the agreement was that, in return for certain concessions by TWA which would resolve some ancillary disputes between the parties, the plaintiffs would move to file a second amended complaint which would omit all claims of current discrimination and retaliation against black flight crew members by TWA and would claim that the application to them of the seniority system "perpetuates past alleged discrimination and constitutes a violation of Title VII." It was further agreed that TWA would move to dismiss such an amended complaint on the grounds that none of the claims alleged had been timely asserted and that the complaint fails to state a claim for relief since a "bona fide seniority system operating on a 'last in, first out' basis does not violate Title VII. . . ."

Leave to file was granted, and the second amended complaint was filed on December 15, 1975. As agreed, it alleged basically that, since it began doing business until the cessation of all hiring in 1970, TWA had failed and refused to hire qualified blacks as flight crew personnel because of their race, and that the date-of-hire seniority system adversely affected present black flight crew members, many of whom had not been hired at the time of their initial application solely because of their race. Once again, these policies were claimed to violate Title VII and § 1981. In addition, the second amended complaint alleged that by negotiating and entering into the collective bargaining agreements establishing the seniority system, and refusing to modify those agreements to lessen the adverse impact of the system upon black flight crew personnel, both ALPA and TWA had failed in their duty of fair representation of plaintiffs and their class imposed by 45 U.S.C. §§ 151, 181, and 182.

As anticipated, motions to dismiss the complaint were again made. The defendants renewed their objections to the Title VII and § 1981 claims as time-barred, and contended that the complaint failed to state a claim since the seniority system qualified as "bona fide" under § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). ⁵ This time Judge Brieant granted...