Ficalora v. Lockheed California Co.

• Decision Date: 08 January 1985
• Docket Number: No. 84-5540,84-5540
• Citation: 751 F.2d 995
• Parties: 36 Fair Empl.Prac.Cas. 1172, 35 Empl. Prac. Dec. P 34,877, 1 Fed.R.Serv.3d 162 Rosemary A. FICALORA, Plaintiff-Appellant, v. LOCKHEED CALIFORNIA CO., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 995

751 F.2d 995

36 Fair Empl.Prac.Cas. 1172,

35 Empl. Prac. Dec. P 34,877, 1 Fed.R.Serv.3d 162

Rosemary A. FICALORA, Plaintiff-Appellant, v. LOCKHEED CALIFORNIA CO., Defendants-Appellees.

No. 84-5540.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1984.

Decided Jan. 8, 1985.

Richard N. Grey, A. Thomas Hunt, Hunt & Cochran-Bond, Los Angeles, Cal., for plaintiff-appellant.

Rosemary Ficalora, in pro. per.

Gordon E. Krischer, O'Melveny & Myers, Los Angeles, Cal., for defendants-appellees.

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

Before GOODWIN, POOLE and BOOCHEVER, Circuit Judges.

PER CURIAM.

Rosemary Ficalora challenges the approval of a settlement decree terminating a class action in which she sued Lockheed California Company for employment discrimination. We remand for findings of fact and an explanation of possible conflicts of interest between the counsel for the plaintiff class and representatives of the class.

Ficalora originally filed her action against Lockheed in pro per. She claimed violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq., which prohibits employment discrimination by reason of sex. The action became a class action on January 27, 1983. The complaint alleged a pattern of employment discrimination by Lockheed which disproportionately excluded women from employment opportunities in all salaried positions except those positions requiring an engineering degree or background.

Following extended settlement negotiations between Lockheed and an attorney representing the plaintiff class, a proposed settlement decree was lodged on September 12, 1983. The district court approved notice to potential class members and held a fairness hearing before approving the consent decree on December 5, 1983.

Ficalora presented written objections to the proposed settlement, arguing, inter alia, that the settlement was not substantively fair to the plaintiff class and that the attorney for plaintiff class did not adequately represent Ficalora's personal interests. One of the terms of the agreement was that Ficalora, who had commenced the action, not be rehired by Lockheed. She contends that this apparently retaliatory term of the agreement is unexplained by anything in the record. We have found nothing to rebut her claim, and, on the face of it, an inference of impermissible retaliation does not appear to be far fetched. Ficalora also alleges that another woman who assisted in bringing the action was not rehired. That matter is likewise unexplained in the record.

Unlike most civil settlements, settlements of class actions require approval of the district court. Fed.R.Civ.P. 23(e). The primary purpose of Rule 23(e) is to protect class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties. Officers for Justice v. Civil Service Commission, 688 F.2d 615, 624 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983). In reaching a compromise in settlement of a class action, the attorney representing the plaintiff class is placed in a particularly difficult position because he or she bears responsibility both toward the class as a whole and toward individual class members. Mandujano v. Basic Vegetable Prods. Inc., 541 F.2d 832, 834-35 (9th Cir.1976). The attorney also can be forced into a situation in which his or her own fee can be enlarged or reduced by concessions made by the class or by members of the class in order...