Inda v. United Air Lines, Inc.

• Decision Date: 28 November 1977
• Docket Number: Nos. 75-1527 and 75-2174,s. 75-1527 and 75-2174
• Citation: 565 F.2d 554
• Parties: 16 Fair Empl.Prac.Cas. 251, 15 Empl. Prac. Dec. P 7956 Kathleen C. INDA, and Kathleen F. Moritz, Plaintiffs-Appellees, v. UNITED AIR LINES, INC., Defendant-Appellant. Kathleen C. INDA, and Kathleen F. Moritz, Plaintiffs-Cross Appellants, v. UNITED AIR LINES, INC., Defendant-Cross Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 554

565 F.2d 554

16 Fair Empl.Prac.Cas. 251, 15 Empl. Prac.

Dec. P 7956

Kathleen C. INDA, and Kathleen F. Moritz, Plaintiffs-Appellees, v. UNITED AIR LINES, INC., Defendant-Appellant.

Kathleen C. INDA, and Kathleen F. Moritz, Plaintiffs-Cross Appellants, v. UNITED AIR LINES, INC., Defendant-Cross Appellee.

Nos. 75-1527 and 75-2174.

United States Court of Appeals, Ninth Circuit.

Nov. 28, 1977.

Donald D. Connors, Jr. (argued), of Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant-appellant.

Carole A. Hughes (argued), San Francisco, Cal., for plaintiffs-appellees.

Lutz Alexander Prager, Equal Employment Opportunity Commission as amicus curiae.

On Appeal from the United States District Court for the Northern District of California.

Before MERRILL and CHOY, Circuit Judges, and BONSAL, ^* District Judge.

MERRILL, Circuit Judge:

On October 18, 1972, Kathleen Inda and Kathleen Moritz filed this suit in the District Court for the Northern District of California, alleging that United Air Lines and the Air Line Pilots Association (ALPA) had discriminated against them on the basis of their sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and § 1 of the Civil Rights Act of 1870, 42 U.S.C. § 1981. The alleged discrimination arose out of United's "no-marriage" rule which required female, but not male, flight cabin attendants to be single and to resign immediately or be terminated upon marriage.

The suit was filed by Inda and Moritz on behalf of themselves and all other women who, because of the no-marriage rule, had either been denied initial employment as stewardesses or had been forced to resign such positions. They sought a permanent injunction restraining United from engaging in such discriminatory employment practices and requiring United to reinstate with full seniority and benefits (including back pay) the named plaintiffs and all members of the class who had been forced to resign or who had been terminated because of the rule.

On January 8, 1973, United filed a Rule 12(b) motion to dismiss the action on the ground that plaintiffs had failed to file timely charges with the Equal Employment Opportunity Commission (EEOC) and that the district court thus was without jurisdiction. The district court denied this motion.

On April 8, 1974, plaintiffs filed a Rule 23 motion for a preliminary determination that their action be permitted to go forward as a class action. The district court also denied this motion.

The § 1981 claim was dismissed by an order entered by the district court on July 11, 1974. The action against ALPA was dismissed by stipulation on November 18, 1974.

A court trial was then held on December 16, 1974, on the Title VII issue of whether Inda and Moritz had been forced to resign under the no-marriage rule or had voluntarily resigned. The district court found the plaintiffs would have continued to work but for the no-marriage rule. Hearings were subsequently held on the questions of damages and attorney fees. On January 30, 1975, the district court filed its findings of fact and conclusions of law. Judgment was rendered in favor of Inda in the sum of $41,917, and in favor of Moritz in the sum of $57,823, both sums plus interest. United was also ordered to reinstate both plaintiffs with full seniority from the dates on which they originally had been hired and to pay plaintiffs' attorneys' fees in the amount of $38,066.42.

Two major issues are presented on appeal. United's principal ground on appeal is that the plaintiffs did not file timely charges with the EEOC, a necessary precondition to suit by a plaintiff under Title VII. Inda and Moritz appeal from the denial of their motion for an order that the case proceed as a class action.

APPEAL OF UNITED; TIMELY FILING OF CLAIMS WITH EEOC

Inda worked for United as a stewardess from December 29, 1965, to June 15, 1968, when she submitted her resignation because of her plan to marry. After resigning she was employed in a clerical ground position by United, from August, 1968, through August, 1969. Moritz worked for United as a stewardess from February 9, 1966, until March 5, 1968, when she resigned because of her plan to marry.

Both plaintiffs testified that they would not have resigned had the no-marriage rule not required it. Plaintiffs also testified that they had resigned because their supervisors had told them that if they did not resign they would be fired; and that under its hiring policy United would not rehire one who had been fired; and that if plaintiffs resigned and the rule requiring termination should be abandoned, they would have preference in being re-employed. Two of United's supervisors confirmed that such advice had been given. ¹ Neither Inda nor Moritz filed a grievance with ALPA or a complaint with the EEOC or a state agency at the time of their forced resignation.

On November 7, 1968, eight months after Moritz's and five months after Inda's resignation, following negotiations with ALPA acting on behalf of United stewardesses, United adopted a new policy to the effect that marriage would not disqualify a stewardess from continuing to act as such. ²

Under the new policy United still would not initially employ married women. Nor was the policy made to apply to those who had resigned and had not filed grievances or complaints. Instead of favoring those who had accepted company policy by openly disclosing their plans to marry and resigning, the new policy favored those who had chosen not to disclose the fact of marriage but to submit to being fired when that fact was discovered and who had then filed grievances or charges. Thus, the supervisors' representations on which Inda and Moritz had relied, despite the fact that they were given in all good faith, proved out to be false.

On November 14, 1968, one week after United had adopted this new policy, Moritz sought employment with United as a stewardess and Inda sought a transfer from her ground job with United to a position as a stewardess. Both were denied. Complaints were filed with the EEOC by Moritz on November 13, 1968, and by Inda on November 18, 1968.

Section 706(d) of the Civil Rights Act of 1964 (now 42 U.S.C. § 2000e-5(e)) at the time the charges were filed required the aggrieved person to file a charge with the Commission within 90 days after the alleged unlawful employment practice had occurred. Neither Inda nor Moritz met this requirement and United contends that their claims accordingly are barred.

Tolling of the Ninety Day Statute

Appellants and the EEOC as amicus curiae have argued that the claims of both appellants were timely because other United employees had already filed complaints with the EEOC challenging the same policy of United. They contend that the complaints of Mary Sprogis, filed with the EEOC in August, 1966, Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971), and Carol Romasanta, filed in 1967, Romasanta v. United Airlines, Inc., 537 F.2d 915 (7th Cir. 1976), aff'd sub nom., United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), made the filing of additional complaints by other aggrieved United stewardesses unnecessary and redundant. For support of this contention appellants and the Commission rely on language contained in Albemarle Paper Co. v. Moody 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). There the Supreme Court held that back pay could be awarded on a class basis under Title VII without exhaustion of administrative procedures by the unnamed class members. From this holding, appellants reason, either one of two results rationally follows: either (1) one need no longer file a charge with the EEOC in order to obtain a right to sue in one's own behalf once someone else has filed a charge based on the same violation; or (2) the time within which one must file an EEOC charge is tolled by the filing of such a charge by someone else.

We cannot agree that either result rationally flows from Albemarle.

Title VII painstakingly spells out the procedure by which one obtains a right to sue on his own behalf and the times within which certain steps must be taken. In United Air Lines v. Evans, 553 U.S. 431, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court strictly enforced these provisions, holding that Evans' claim was barred by her failure to file a timely charge with the EEOC. Albemarle was not dealing with a right to sue; it dealt with class membership in a class action. It held only that relief can be awarded on a class basis to those who have suffered the same violation of Title VII, and that compliance with the procedural requirements by which one obtains a right to sue under Title VII is not essential to class membership. 422 U.S. at 414 n. 8, 95 S.Ct. 2362. In so holding the Court noted that decisions of courts of appeals were uniformly to this effect prior to the amendment of the Act in 1972, and that legislative history indicated congressional ratification of this view through enactment of the 1972 amendments. Id. Nothing in the amendments remotely suggests that Congress intended to eliminate the concept of a right to sue or to abolish the procedures by which one obtains such a right.

Nor does it follow from Albemarle that the filing of a charge by one person operates to toll the time within which another person must file such a charge if a right to sue is to be obtained. Albemarle did not involve a tolling of the 90 day statute of limitations. The question was not one of timely filing; the question was whether a charge need be filed at all in order to enjoy membership in a class.

Some courts have suggested that the filing of a charge by one employee should toll the statute for all others who, at the time of the filing, could themselves have filed for the same violation, and that the statute should not again commence to run until the Commission had...