Padilla v. United Air Lines

• Decision Date: 05 July 1989
• Docket Number: Civ. A. No. 88-A-400.
• Citation: 716 F. Supp. 485
• Parties: Alan PADILLA, Plaintiff, v. UNITED AIR LINES, Defendant.
• Court: U.S. District Court — District of Colorado

716 F. Supp. 485

Alan PADILLA, Plaintiff, v. UNITED AIR LINES, Defendant.

Civ. A. No. 88-A-400.

United States District Court, D. Colorado.

July 5, 1989.

John Mosby, Elisa J. Moran, Denver, Colo., for plaintiff.

Steven J. Merker, Cecilia N. Serna, Davis, Graham & Stubbs, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER ON POST TRIAL MOTIONS

ARRAJ, District Judge.

This disparate treatment action, brought by plaintiff Alan Padilla ("Padilla") under 42 U.S.C. § 1981, was tried to the court on May 22 and 23, 1989. The parties filed post-trial briefs and oral argument was heard on June 5. The court ordered judgment in plaintiff's favor on June 14, finding that defendant United Air Lines, Inc. ("United") had discriminated against plaintiff because of his race and that plaintiff was entitled to $4,117.68 back pay. This amount constituted lost earnings for a period beginning April 19, 1985, the day after plaintiff was terminated, and ending on June 16, 1985, the end of an eighty-nine day temporary employment period.

Each party has filed a post-trial motion. Plaintiff has moved to alter or amend the judgment pursuant to F.R.C.P. 59(e) or in the alternative grant relief from judgment pursuant to F.R.C.P. 60(b)(6). Defendant has moved to amend the judgment pursuant to F.R.C.P. 52 or to grant a new trial pursuant to F.R.C.P. 59.

Counsel for both parties have litigated this action vigorously. The attorneys have ably represented their clients throughout these proceedings. I find that further briefing and oral argument on the post-trial motions would not be helpful.

I) Plaintiff's Motion

Plaintiff contends that the court erred as a matter of law by placing the burden on the plaintiff to prove that he would have been employed beyond the eighty-nine day period. It is plaintiff's position that the defendant had the burden to prove by a preponderance of the evidence that Padilla would not have been hired as a permanent full-time employee but for discrimination by the defendant. Plaintiff cites Day v. Mathews, 530 F.2d 1083 (D.C. Cir.1976), in support of his position. In Day, a black employee of the Department of Health, Education and Welfare brought a Title VII suit charging that he was denied a promotion because of racial discrimination. The Court of Appeals held that plaintiff, upon establishing a prima facie showing of discrimination, was entitled to back pay and retroactive promotion if defendant was unable to prove by clear and convincing evidence that, absent the admitted discrimination, the employee would not have been promoted. The court explained why the defendant should bear this burden:¹

The reason for this is straight forward. `Unquestionably, it is now impossible for an individual discriminatee to recreate the past with exactitude.' Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364 at 1379 5th Cir.1974. Such a showing is impossible precisely because of the employer's unlawful action; it is only equitable that any resulting uncertainty be resolved against the party whose action gave rise to the problem. Thus, once discrimination is shown, relief should not be narrowly denied.

Id. at 1086.

Plaintiff argues that defendant failed to produce any evidence that Padilla would not have obtained permanent status had the discrimination by defendant not occurred. On the other hand, plaintiff contends that, although it was not his burden, that he established at trial that more than 50% of similarly situated employees became permanent employees, citing Plaintiff's Trial Exhibit 8. Plaintiff's Exhibit 8 contains the names of 52 employees purportedly working as full-time permanent ramp-servicemen employees who were originally hired as temporary ramp-servicemen between December 2, 1983 and April 18, 1985. Comparison to Plaintiff's Exhibit 7, which lists 163 individuals who were hired as temporary ramp-servicemen in the same time period, reveals that, in fact, less than one-third of the individuals originally hired on temporary status are currently working as full-time permanent ramp-servicemen.

In any event, the Day case is distinguishable from the present case. United employees, including Charlie Bartish, Matthew Johnson, and the plaintiff himself, testified at trial that the decision to hire a former temporary employee as a permanent employee was entirely up to United. These witnesses said that United made no representations that a permanent position would be awarded to those who adequately performed as temporary employees. This is different from the plaintiff's situation in Day where the plaintiff had applied for a higher position which was later filled by a white applicant. There the plaintiff had a legitimate expectation that the most qualified person would be chosen to fill the position for which he had applied. In contrast, the record does not include evidence that Padilla ever sought a permanent position. Therefore, his assertion that he has been prevented from becoming a permanent employee is unconvincing. When Padilla was terminated, he did not have a reasonable expectation that he would remain employed by United beyond the eighty-nine day temporary employment period. Defendant should not be forced to prove that Padilla would not have been hired as a permanent employee, but for the discrimination, because there is no credible evidence that he would have ever applied for such a position.²

Plaintiff also complains that he was not allowed to compare himself to similarly situated employees who were later hired into permanent full-time positions. It is clear from Exhibits 7 and 8 that plaintiff discovered the names of the permanent employees who started at United as temporaries. As previously mentioned, comparison of Exhibits 7 and 8 shows that less than one-third of the employees originally hired as temporaries now work in a permanent position. This fact does not establish that plaintiff would have obtained permanent status.

Apparently, plaintiff feels that he was prejudiced because he was not allowed to discover how other similarly situated employees were treated in terms of discipline for mishaps or near accidents. Evidence of this type of disparate treatment goes to the issue of discriminatory treatment of employees, not to the likelihood that plaintiff would have acquired permanent status. Because the court decided that plaintiff was treated disparately, it is evident that plaintiff has not been prejudiced in this regard.

Plaintiff presents the court with an additional issue in his most recent Motion. Padilla has not previously asked the court to clear his record and remove the "Ineligible For Rehire" notation from his employee file at United. However, in the present Motion he seeks this equitable relief. I exercise my discretion to grant plaintiff's request.

Unquestionably, "the trial court has wide discretion in fashioning remedies to make victims of discrimination whole." Sears v. Bennett, 645 F.2d 1365, 1378 (10th Cir.1981), cert. denied 456 U.S. 964, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982); E.E.O.C. v. General Lines, Inc., 865 F.2d 1555, 1560 (10th Cir.1989) (quoting Sears v. Bennett). This discretion must be exercised to remove the vestiges of past discrimination. See United States v. Ironworkers Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). In fact, "where racial discrimination is concerned, `the district court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975) (citation omitted). Thus, the court may grant appropriate equitable relief even where it was not sought in the pleadings. Whatley v. Skaggs Companies, Inc., 707 F.2d 1129 (10th Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983).

Recovery was sought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,³ in the cases cited in the paragraph above. Title VII provides:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ..., or any other equitable relief as the court deems appropriate...."

42 U.S.C. § 2000e-5(g). The scope of remedies available under § 1981 is at least as broad as that available under Title VII. Davis v. County of Los Angeles, 566 F.2d 1334, 1342 (9th Cir.1977) ("Although the decided cases have primarily involved either Title VII or § 1983, and not § 1981, we feel the extensive case law under both sections approving affirmative relief is directly applicable here. We see no reason to limit the relief available under § 1981 merely because in the past § 1981 and Title VII have been read in tandem.") vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Carrion v. Yeshiva University, 535 F.2d 722, 729 (2d Cir.1976); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 243 (5th Cir.1974).

I have previously determined that Padilla was entitled to relief because he was treated disparately due to his race. Memorandum Opinion and Order, June 14, 1989, at 9. United terminated Padilla without conducting an investigation aimed at determining whether Padilla had committed the safety violation for which he was allegedly disciplined. Padilla's supervisor, Gilbert Paquet ("Paquet"), ensured that Padilla would never be rehired by United by marking the "Recommended For Rehire" space on Padilla's Exit Interview Form, "No." Plaintiff's Exhibit 4. Paquet testified that he did this because of the seriousness of Padilla's offense....