Williams v. Owens-Illinois, Inc.

• Decision Date: 11 January 1982
• Docket Number: No. 79-4410,OWENS-ILLINOI,INC,79-4410
• Citation: 665 F.2d 918
• Parties: 27 Fair Empl.Prac.Cas. 1273, 28 Fair Empl.Prac.Cas. 1820, 28 Empl. Prac. Dec. P 32,404 Floyd W. WILLIAMS, Jr., et al., Plaintiffs/Cross-Appellees, Alice Brice, Plaintiff/Appellant/Cross-Appellee, Robert Harold and Aunita Jones, Plaintiff-Intervenors/Appellants/Cross-Appellees, and Charlotte Harris, et al., Plaintiff-Intervenors/Cross-Appellees, v., Defendant/Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 918

665 F.2d 918

27 Fair Empl.Prac.Cas. 1273,

28 Fair Empl.Prac.Cas. 1820,

28 Empl. Prac. Dec. P 32,404

Floyd W. WILLIAMS, Jr., et al., Plaintiffs/Cross-Appellees,

Alice Brice, Plaintiff/Appellant/Cross-Appellee,

Robert Harold and Aunita Jones, Plaintiff-Intervenors/Appellants/Cross-Appellees, and Charlotte Harris, et al., Plaintiff-Intervenors/Cross-Appellees, v. OWENS-ILLINOIS, INC., Defendant/Appellee/Cross-Appellant.

No. 79-4410.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1981.

Decided Jan. 11, 1982.

G. Todd Withy, Berkley, Cal., argued for plaintiff/appellant/cross-appellee; Ann Hill, San Francisco, Cal., on brief.

Raymond Baca, E.E.O.C., Washington, D. C., argued for defendant/appellee/cross-appellant; Marvin D. Morgenstein, Steinhart, Falconer & Morgenstein, San Francisco, Cal., Lloyd Sutter, Toledo, Ohio, on brief.

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

Before TANG and CANBY, Circuit Judges, and WILLIAMS, ^* District Judge.

CANBY, Circuit Judge.

This action was brought by twelve named plaintiffs representing themselves and a class of current and former black and female employees of Owens-Illinois' Oakland glass container plant. They alleged that the company's employment and promotion practices violated Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 and Executive Orders 11246 and 11375. In addition to their individual claims, appellants asserted classwide claims of discrimination by race or sex in hiring, initial job assignments, transfers and promotions. They also alleged discriminatory harassment and discharge. They sought injunctive relief, back pay and compensatory and punitive damages. Following a lengthy trial, the jury found in favor of only three individual plaintiffs on their § 1981 claims. On issues tried to the court with the advice of the jury, the district court rejected the class race claims and found sex discrimination only with regard to initial hiring for management training positions and promotions into supervisory and managerial positions. 469 F.Supp. 70, 74, 77 (N.D.Cal.1979). Appellants, the three individuals who prevailed below, limit their appeal to issues relating to the class actions. They assert numerous errors concerning pretrial proceedings, the trial itself, the remedial order and the award of attorneys' fees.

I

The Oakland plant is located on the edge of Alameda County. During the 1971-78 period, it employed between 1600 and 2000 workers. Employees produce, pack and ship glass bottles, make the cartons in which the bottles are packed and administer the operation. "Selectors" inspect the glass and place acceptable bottles in cartons. "Lehr attendants" stack the filled cartons on pallets. The packed bottles are kept in the warehouse and eventually delivered by drivers working in the trucking department. The plant also has a maintenance department and a central mold shop, where molds are produced for use in a number of Owens-Illinois glass bottle plants.

The plant is organized into 20 departments which are grouped into five general areas (production, finished products, packaging and distributing, administration and other). Four of the departments, employing approximately 10% of the workers, are composed entirely of salaried employees. The remaining 16 departments employ hourly workers who belong to various unions and whose wages, hours and terms of employment are controlled by collective bargaining agreements.

Seven named plaintiffs filed suit on behalf of themselves and similarly situated blacks and women in June 1975. They alleged that Owens-Illinois had discriminated against them in violation of Title VII, 42 U.S.C. § 1981 and Executive Orders 11246 and 11375. Five additional plaintiffs subsequently intervened. Shortly before trial, the court certified two classes: blacks employed at the plant after March 7, 1971 and women employed there after March 23, 1974. The court ruled that any earlier claims were time-barred. It further ruled that because the unions were not parties to the suit, any actions by Owens-Illinois which were undertaken in compliance with independently entered collective bargaining agreements would not provide the basis for any claim of discrimination. The trial court granted summary judgment to Owens-Illinois on appellants' executive order claims. Appellants do not challenge this last ruling on appeal. The court left for trial individual and class race claims which were based on 42 U.S.C. § 1981 and Title VII as well as individual and class sex discrimination claims brought pursuant to Title VII.

The § 1981 individual claims were tried to a jury which also considered the class claims in an advisory capacity. The trial court rejected appellants' contention that the jury be permitted to determine compensatory and punitive class damages pursuant to § 1981. The court held that because the class was certified under Federal Rule of Civil Procedure 23(b)(2), recovery was limited to equitable relief. The court consequently struck the prayer for compensatory and punitive class relief.

The jury found against seven of the eleven named plaintiffs ¹. It found in favor of three plaintiffs and disagreed as to one. In its advisory capacity the jury split six to three in the company's favor on the issue of black class liability and found discrimination against women only in promotions to management positions and placement in supervisory and management training jobs. The trial court entered judgment in accordance with the jury's verdict on the individual claims and the jury's recommendations on the class actions.

The court entered a remedial order requiring the company to implement new policies for the promotion of women to supervisory and management positions. The court rejected, however, appellants' request for specific affirmative action goals. The court ordered that all back pay claims of the female class be heard by a magistrate, but directed that the magistrate deny relief to any class member whose claim could have been addressed through the grievance procedure established by the collective bargaining agreements.

The court also rejected appellants' request for approximately $650,000 in attorneys' fees. It awarded $50,000, which it concluded was more than adequate compensation.

II

Pre-trial Rulings: Continuing violations

In a class action, a class representative's EEOC complaint tolls the statute of limitations for all class members. Inda v. United Air Lines, Inc., 565 F.2d 554, 559 (9th Cir. 1977), cert. denied, 435 U.S. 1007, 98 S.Ct. 1877, 56 L.Ed. (1978). The trial court established the limitations period for the two classes by subtracting the 180 day statute of limitations for filing with the EEOC from the date of the first EEOC complaint filed by a member of each class. The court therefore concluded that claims of sex discrimination based on acts prior to March 1974 and of race discrimination based on acts prior to March 1971 were time-barred. ² The court rejected the continuing violation doctrine as inapplicable.

The doctrine of continuing violations, as one court observed, is "actually a conglomeration of several different ideas." Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585 (D.Minn.1978). For present purposes, however, the relevant strain of continuing violation doctrine is that a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period. Id. at 585-86. The reason is that the continuing system of discrimination operates against the employee and violates his or her rights up to a point in time that falls within the applicable limitations period. Such continuing violations are most likely to occur in the matter of placements or promotions. A minority employee who is not promoted in 1973, for example, and is subject to a continuing policy against promotion of minorities, may then file a timely charge in 1976, because the policy against promoting him or her continued to violate the employee's rights up to the time the charge was filed. With regard to such discrimination in promotion, this court has accepted the following formulation:

(A) challenge to systematic discrimination is always timely if brought by a present employee, for the existence of the system deters the employee from seeking his full employment rights or threatens to adversely affect him in the future.

Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761 (9th Cir. 1980), quoting Elliott v. Sperry Rand Corp., 79 F.R.D. at 586; accord, Higgins v. Oklahoma ex rel. Oklahoma Employment Security Comm'n, 642 F.2d 1199, 1200 n.2 (10th Cir. 1981); Clark v. Olinkraft Inc., 556 F.2d 1219, 1221-22 (5th Cir. 1977), cert. denied, 434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2d 772 (1978); Rich v. Martin Marietta Corp., 522 F.2d 333, 348 & n.15 (10th Cir. 1975); Wetzel v. Liberty Mutual Life Ins. Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975).

The situation may be different, however, with regard to complainants who have ceased to be employees or never were employees. A refusal to hire or a decision to fire an employee may place the victim out of reach of any further effect of company policy, so that such a complainant must file a charge within the requisite time period after the refusal to hire or termination, or be time-barred. If in those cases the victims can show no way in which the company policy had an impact on them within the limitations period, the continuing violation doctrine is of no assistance or applicability, because mere "continuing impact from past violations is not actionable. Continuing violations are." Reed v. Lockheed Aircraft Corp., 613 F.2d at 760; see United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977).

We agree with the trial court that in this case Owens-Illinois' refusals to hire and...