E.E.O.C. v. Pan American World Airways, Inc.
| Decision Date | 02 March 1990 |
| Docket Number | Nos. 88-15672,89-15192,s. 88-15672 |
| Citation | 897 F.2d 1499 |
| Parties | 52 Fair Empl.Prac.Cas. 990, 52 Empl. Prac. Dec. P 39,698 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellee, v. Morgan D. KING, Kelvin H. Keith, Objectors-Appellants, v. CERTAIN CLAIMANTS, Claimants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William Bernstein, Mulholland, Bernstein and Peterson, San Rafael, Cal., Kelvin H. Keith, South Miami, Fla., in pro. per., for objectors-appellants.
Donna J. Brusoski, E.E.O.C., Washington, D.C., for plaintiff-appellee.
Judith Z. Gold, Heller, Ehrman, White and McAuliffe, San Francisco, Cal., for defendant-appellee.
Sanford Jay Rosen, Rosen and Phillips, James C. Sturdevant, Sturdevant and Sturdevant, San Francisco, Cal., for claimants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before WIGGINS and KOZINSKI, Circuit Judges, and STOTLER, * District Judge.
Morgan King and Kelvin Keith are two former Pan American World Airways pilots who did not share in the benefits of a consent decree entered in an ADEA action brought by the Equal Employment Opportunity Commission against Pan Am. They appeal from a district court order denying them participation in the settlement and approving the decree.
Since 1964, the Federal Aviation Administration has prohibited anyone over the age of 60 from serving as a commercial airline pilot. See 14 C.F.R. Sec. 121.383(c) (1989). Until this lawsuit was brought, Pan Am required its pilots to retire when they turned 60, even though many of them, including King and Keith, wished to continue working in the cockpit as flight engineers, a job with no age maximum.
The EEOC brought suit in 1981, under sections 16(c) and 17 of the Fair Labor Standards Act, 29 U.S.C. Secs. 216(c), 217 (1982), charging that Pan Am's forced retirement policy violated section 4(a) of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 623(a) (1982). The EEOC's complaint sought relief on behalf of two named pilots and "any other persons who would have remained in the Company's employment past the age of 60 in a Flight Engineer position but for the Company's refusal to employ that person after he reached the age of 60." Clerk's Record (CR) 1 at 2.
Shortly after filing the complaint, the EEOC asked Pan Am for a list of former pilots, so that the Commission could notify all pilots who qualified for inclusion in the lawsuit. Pan Am produced a list of 514 pilots but, inexplicably, provided mailing addresses for only 445 of them. King and Keith were both among the 514; Keith was among those whose addresses Pan Am gave to the EEOC, King was not.
On June 9, 1982, the EEOC mailed the following letter to each of the 445:
Dear Retired Pan Am Pilot or Flight Engineer:
The United States Equal Employment Opportunity Commission is currently suing Pan Am for age discrimination caused by its refusal to permit persons over the age of 60 to hold the position of flight engineer. We are attempting to identify each pilot retired since September 15, 1978 who would have taken a bump-down to flight engineer rather than be forced to terminate his employment at the age of 60. We are also trying to locate each career flight engineer who was forced to terminate his employment in that position at the age of 60 since September 15, 1978. If you fall into either of the above categories and desired to continue your employment with Pan Am past the age of 60 as a flight engineer at the time of retirement, please contact Connie Haydari of this office at the above address or phone number as soon as possible. Your prompt response will ensure that you are included in the EEOC's efforts to gain relief for the victims of Pan Am's refusal to employ flight engineers over the age of 60.
If we do not hear from you, we will assume that you were not interested in continuing your employment as a flight engineer with Pan Am past the age of 60 and will not contact you further. If you have already notified this office of your interest in this position at the time you were retired, you do not need to contact us again as you are already included in the case.
Keith Excerpts of Record (ER) 39. Although Keith claims he never received this letter, the district court found to the contrary. EEOC v. Pan American World Airways, Inc., No. C-81-3636 RFP at 28-29 (N.D. Cal. June 17, 1988) () (hereinafter "Order"). King, of course, did not receive the letter because the EEOC did not have his address. On September 1, 1982, the EEOC filed a statement with the district court listing those pilots who were eligible for relief; the list contained the names of 93 pilots who had responded to the mailing. 1
Even before the EEOC's mailing, information about the suit had begun to circulate among pilots. Many Pan Am pilots knew of the dispute as early as 1978, and it was widely discussed thereafter. In November 1981, the bimonthly newsletter of the Pan Am Clipper Pioneers, an organization of former Pan Am pilots and flight engineers, included a memorandum from retired pilot Ray Egan to all retiring and former Pan Am pilots. Egan was one of the claimants named in the First Amended Complaint filed October 8, 1981. Egan's memo explained:
The ... lawsuit seeks to enjoin Pan Am from refusing to permit persons between the ages of 60 and 70 to hold the position of Flight Engineer. The original complaint specifically seeks relief on behalf of Frederick P. Vanderhoof and Raymond L. Russell and "any other persons who would have remained in the Company's employment past the age of 60 in a Flight Engineer position but for the Company's refusal to employ that person after he reached the age of 60.["]
A FIRST AMENDED COMPLAINT was filed on Oct. 8, 1981 to include [17 additional named claimants] and any other person who would have remained in the Company's employment past the age of 60 in a Flight Engineer position but for the Company's refusal to employ that person after he reached the age of 60.
There is a 3 year statute of limitations which dates back from Sept. 15, 1981, the date the case was originally filed in court. Thus, the only persons discriminated against since 9/15/78 are covered by the suit.
Pilots who were deterred from applying for bump down to flight engineer because they knew of the age 60 rule and consequently did not bid down are covered in the same manner as persons who formally bid for bump down and were rejected by Pan Am.
The EEOC's lawyer, Mr. Fritz Wollett, Equal Opportunity Commission, San Francisco District Office, 1390 Market Street, Suite 1010, San Francisco, CA 94102 states, "Any person who wants to learn more about the suit may contact me (Mr. Wollett) by collect call." Mr. Wollett cites the Western Airlines judgement of a few months ago as a precedent for optimism. In a letter to me dated September 30, 1981 he states, "should we be successful in our efforts potential remedies include back pay, liquidated damages and the opportunity to accept reemployment with Pan Am as a flight engineer."
If you are interested, there is no cost to you other than your own time and effort to provide the information required by the EEOC as soon as possible.
Supplemental Record Excerpts (SRE) 339 (emphasis original).
King and Keith denied having received the newsletter. The district court dismissed as incredible Keith's claim of non-receipt. Order at 28-29. However, the court found that the newsletter addressed to King and to at least one other retired pilot contained typographical errors in the zip codes. Order at 15-16. The court, however, deemed it unnecessary to determine whether King had actually seen Egan's memo because it found that King had notice of the litigation from other sources. Order at 16 n. 3.
In May 1983, Pan Am and the EEOC entered into a settlement agreement providing for the rehire of 46 former pilots as flight engineers, and for a back pay award of $250,000 to be divided among 30 other former pilots. The district court disapproved the settlement because the Supreme Court had just granted certiorari in TWA v. Thurston, a case presenting similar issues, and the law was accordingly unsettled. EEOC v. Pan American World Airways, Inc., 34 Fair Empl.Prac.Cas. (BNA) 321, 323 (N.D.Cal.1984).
After the Supreme Court decided Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), Pan Am and the EEOC modified the settlement to provide for a recovery of $1.5 million, to be divided among 81 claimants. Forty-five of the claimants objected to the agreement, and the district court rejected the settlement, finding that "[t]he settlement agreement offers claimants inadequate compensation for their years of involuntary retirement." EEOC v. Pan American World Airways, Inc., 622 F.Supp. 633, 648 (N.D.Cal.1985). Pan Am appealed but we dismissed for want of jurisdiction. EEOC v. Pan American World Airways, Inc., 796 F.2d 314 (9th Cir.1986) (per curiam), cert. denied, 479 U.S. 1030, 107 S.Ct. 874, 93 L.Ed.2d 829 (1987).
All this litigation did not pass unnoticed. Ray Egan deposited letters describing the dispute in the company mailboxes of all Pan Am pilots in 1978, 1979 and 1981. Order at 14. Many issues of the Clipper Pioneers newsletter carried information about the suit, and it was discussed at a number of Clipper Pioneers meetings. Declaration of W.R. Chamberlin, SRE at 179-81. Information about the suit was also included in numerous Pan Am annual reports to shareholders. Order at 14. In addition, news of the two disapproved settlements was reported widely in the press. Joint Excerpts of Record at 156-60. Finally, information about recent age discrimination suits against Pan Am and other airlines appeared in at least one issue of the newsletter of the Airline Pilots Association, in a 1986 issue of the ...
To continue reading
Request your trial
-
Bureerong v. Uvawas
...... in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation." See also E.E.O.C. v. Pan American World Airways, Inc., 897 F.2d 1499, 1505 (9th Cir.), cert. denied, 498 U.S. 815, 111 S.Ct. 55, 112 L.Ed.2d 31 (1990) ("private lawsuits are secondary in the statutor......
-
United States v. Kovall
...in proceedings before the district court and the equities weigh in favor of hearing the appeal." EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1504 (9th Cir. 1990). This judicially created exception has never been extended to the criminal context, and we decline to do so here.7 We are......
-
Kootenai Tribe of Idaho v. Veneman
...County). 8. Majority Op. at 1110. 9. Majority Op. at 1111. 10. There is precedent going the other way. See EEOC v. Pan American World Airways, 897 F.2d 1499, 1509-10 (9th Cir.1990) (when would-be intervenor's substantive rights terminated by EEOC action, no jurisdictional basis for permissi......
-
Equal Emp't Opportunity Comm'n v. Timeless Investments Inc. Dba Ez Trip Golden State Convenience, 1:08-cv-1469 AWI SMS
...practices through "informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(d); EEOC v. Pan American World Airways, Inc., 897 F.2d 1499, 1505 n. 5 (9th Cir.1990). One court has characterized conciliation as "notably anassignment to be played by ear for it requires flex......
-
Deposing & examining the plaintiff
...by the judgment and may bring a subsequent private action. Leuthold , 224 F.R.D. at 466 (citing EEOC v. Pan Am. World Airways, Inc. , 897 F.2d 1499, 1508 n. 11 (9th Cir. 1990)). Recently, the Ninth Circuit confirmed a two-step inquiry for certification of a FLSA action. Campbell , 903 F.3d ......