Arizona Civil Rights Div., Dept. of Law v. Hughes Air Corp.

• Decision Date: 17 November 1983
• Docket Number: CA-CIV,No. 1,1
• Citation: 678 P.2d 494,139 Ariz. 309
• Parties: , 33 Empl. Prac. Dec. P 34,286 ARIZONA CIVIL RIGHTS DIVISION, DEPARTMENT OF LAW, State of Arizona, Plaintiff-Appellant, v. HUGHES AIR CORPORATION, dba Hughes Airwest; Robert Walker, Director of Maintenance of Hughes Air Corporation; William Wade, Manager of Base Overhaul Section of Maintenance Department of Hughes Air Corporation, Defendants-Appellees. 5141.
• Court: Arizona Court of Appeals

Page 494

678 P.2d 494

139 Ariz. 309, 33 Empl. Prac. Dec. P 34,286

ARIZONA CIVIL RIGHTS DIVISION, DEPARTMENT OF LAW, State of Arizona, Plaintiff-Appellant, v. HUGHES AIR CORPORATION, dba Hughes Airwest; Robert Walker, Director of Maintenance of Hughes Air Corporation; William Wade, Manager of Base Overhaul Section of Maintenance Department of Hughes Air Corporation, Defendants-Appellees.

No. 1 CA-CIV 5141.

Court of Appeals of Arizona,

Division 1, Department B.

Nov. 17, 1983.

Review Denied March 13, 1984.

Robert K. Corbin, Atty. Gen. by Anthony B. Ching, Chief Counsel, Sol. Gen. Div., Phoenix, for plaintiff-appellant

Gallagher & Kennedy by Michael K. Kennedy and J. Ruth Sproull, Phoenix, for defendants-appellees.

OPINION

GRANT, Judge.

The issue presented in this appeal is whether the Arizona Civil Rights Division may seek class-wide relief from employment discrimination practices. We hold that it may and reverse the judgment entered by the trial court.

The Arizona Civil Rights Division (ACRD), appellant herein, filed an action on December 29, 1978, against appellee Hughes Airwest (Hughes) pursuant to Arizona Civil Rights Act, A.R.S. § 41-1481(D). The complaint stated that an employee of Hughes, James Ray, who is black, filed a charge pursuant to A.R.S. § 41-1481 alleging that Hughes engaged in unlawful employment practices in violation of A.R.S. § 41-1463. Count two of the complaint alleged that Hughes has engaged and continues to engage in unlawful employment practices which discriminate against blacks as a class. Hughes moved to dismiss count two under rule 12(b)(6) of the Arizona Rules of Civil Procedure on the grounds that the Arizona Civil Rights Act did not provide for ACRD to bring an action for class-wide relief and that ACRD cannot satisfy rule 23 requirements for class actions. After a hearing on the matter, the trial court dismissed count two of the complaint. ACRD moved for a new trial which was denied. Notice of appeal was filed on November 1, 1979. We have jurisdiction pursuant to A.R.S. § 12-2101(A) and (B).

The Civil Rights Division's power to file a court action is found in A.R.S. § 41-1481(D) which provides:

D. If within thirty days after the division has made a determination that reasonable cause exists to believe that the charge is true the division has not accepted a conciliation agreement to which the charging party and the respondent are parties, the division may bring a civil action against the respondent, other than the state, named in the charge. The charging party shall have the right to intervene in a civil action brought by the division. If a charge filed with the division pursuant to subsection A is dismissed by the division or if within ninety days from the filing of such charge the division has not filed a civil action under this section or has not entered into a conciliation agreement with the charging party, the division shall so notify the charging party. Within ninety days after the filing of such notice a civil action may be brought against the respondent named in the charge by the charging party or if such charge was filed by a member of the division, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon timely application, the court may in its discretion permit the division to intervene in civil actions in which the state is not a defendant upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the further efforts of the parties or the division to obtain voluntary compliance.

Class actions are neither expressly authorized nor explicitly forbidden by this statute. Hughes argues that this silence is evidence of legislative intent to limit the power of the division to specific individual cases. ACRD argues that subsection G, which governs the scope of judicial relief in an action brought under A.R.S. § 41-1481(D), manifests the legislative intent to permit class-wide relief. Subsection G provides:

G. If the court finds that the defendant has intentionally engaged in or is intentionally engaging in an unlawful employment practice alleged in the complaint the court may enjoin the defendant 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, payable by the employer, employment agency or labor organization, as the case may be, responsible for the unlawful employment practice, or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of the charge with the division. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement or promotion of an individual as an employee or the payment to him of any back pay if such individual was refused admission, suspended or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex or national origin, or violation of § 41-1464.

ACRD argues that the above paragraph provides for the broadest possible judicial relief and thus, manifests the legislative intent to permit class-wide relief. ACRD also argues that use of the statutory term "employees" when read with the word "practice" leads to the conclusion that judicial relief is to be given to the class of "employees" because of the discriminating "practice" of the employer.

In interpreting the Civil Rights Act, we are guided by general legal concepts regarding statutory construction. We must follow the language of the statute if it is plain and unambiguous and clear meaning does not lead to an absurdity. United States Fidelity & Guaranty Co. v. Michigan Bank, 27 Ariz.App. 478, 556 P.2d 326 (1976). Where the statute is plain and unambiguous, there is no need to go outside the language itself for interpretation. Employment Security Commission of Arizona v. Fish, 92 Ariz. 140, 375 P.2d 20 (1962). If, on the other hand, this court should conclude that A.R.S. § 41-1481 contains an "apparent ambiguity" as to whether ACRD may bring a statutory class action, we must then consider the statute as a whole to determine its intent and purpose. Employment Security Commission. Since A.R.S. § 41-1481 equally supports the idea that a class action can be brought and the idea that it cannot (that is--there is no inference either way) we shall assume that A.R.S. § 41-1481 supports the allowance of class actions and thus is not completely free from ambiguity. Hotel, Motel, Restaurant, etc., Union Local 879 v. Thomas, 551 P.2d 942 (Alaska 1976). We therefore examine the entire Civil Rights Act in order to reach a reasonable interpretation.

Pursuant to the statutory scheme of the Arizona Civil Rights Act, a charge is filed with ACRD by or on behalf of the complainant. A.R.S. § 41-1481(A). ACRD notifies the employer, serves it with a copy of the complaint and conducts an investigation. If ACRD concludes that there is cause to believe the charge is true it attempts to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. Id. at subsection B. Only after efforts at conciliation have failed does the division have the right to bring an action in court. Arizona Civil Rights Division v. Olson, 132 Ariz. 20, 643 P.2d 723 (App.1982); High School District No. 106 v. Civil Rights Division, 121 Ariz. 444, 590 P.2d 1390 (1979).

ACRD draws our attention to General Telephone Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), in which the United States Supreme Court affirmed the long-standing rule of lower federal courts that the Equal Employment Opportunity Commission has the power to seek class-wide relief in a suit pursuant to 42 U.S.C. 2000e-5(f)(1), the federal analogue to A.R.S. § 41-1481(D). By analogy to the federal EEOC cases, argues ACRD, A.R.S. § 41-1481 should be interpreted as allowing it to bring suit to obtain class-wide relief. The Supreme Court of this state recently said: "The Arizona Civil Right Act is modeled after and generally identical to the federal statute in the area (Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e,). Accordingly, we find federal Title VII case law persuasive in the interpretation of our Civil Rights Act." Higdon v. Evergreen International Airlines, Inc., 138 Ariz. --- at ---, n. 3, 673 P.2d 907 (1983).

Hughes points out, however, that our Act which was modeled on portions of Title VII of the federal statutes, circumscribed ACRD's power in ways the EEOC is not limited, and in particular omitted § 707 of the federal act which provided governmental authority to seek redress for system-wide discrimination. The court's holding in General Telephone, argues Hughes, is dependent on the undisputed federal power to bring "pattern-or-practice" cases against employers pursuant to § 707 of Title VII. ACRD counters this argument by asserting that the decision in General Telephone (holding that the EEOC can obtain class-wide relief under Title VII) was not based on the pattern or practice language of § 707, but was based on the language of §§ 706(a), (f)(1) and (g), provisions which parallel A.R.S. § 41-1481.

Prior to 1972, the only civil actions authorized under the federal civil rights act of 1964, other than private lawsuits, were actions by the Attorney General upon reasonable cause to suspect "a pattern or practice" of discrimination. General Telephone, 446 U.S. at 327, 100 S.Ct. at 1704-05, 64 L.Ed.2d...