EEOC (USA) v. Pacific Press Pub. Ass'n, No. C-77-1619-CBR.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 482 F. Supp. 1291
• Docket Number: No. C-77-1619-CBR.
• Decision Date: 28 December 1979
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (U. S. A.), Plaintiff, v. PACIFIC PRESS PUBLISHING ASSOCIATION, Defendant.

482 F. Supp. 1291

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (U. S. A.), Plaintiff,
v.
PACIFIC PRESS PUBLISHING ASSOCIATION, Defendant.

No. C-77-1619-CBR.

United States District Court, N. D. California.

December 28, 1979.

482 F. Supp. 1292

COPYRIGHT MATERIAL OMITTED

482 F. Supp. 1293

F. Cancino, Chester F. Relyea, John M. Rea, E. E. O. C., San Francisco, Cal., for plaintiff

Malcolm T. Dungan, James H. Quirk, Melinda S. Collins, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant.

MEMORANDUM OF OPINION

RENFREW, District Judge.

This case presents a difficult and troubling issue, requiring resolution of a confrontation between the state and church in the context of alleged employment discrimination on the basis of sex. Plaintiff Equal Employment Opportunity Commission ("EEOC") brought this suit against Pacific Press Publishing Association ("Press"), a nonprofit corporation affiliated with the Seventh-day Adventist Church, pursuant to ? 706(f)(1) and (3) of Title VII, Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. ? 2000e-5(f)(1) and (3), charging that Press had deprived an employee, Lorna Tobler ("Tobler"), of equal employment opportunities and otherwise adversely affected her status as an employee because of her sex. Specifically, the EEOC alleges two discriminatory practices: First, a denial to Tobler of head-of-household monetary allowances paid to similarly situated male employees from November 10, 1970, until July 1, 1973,¹ in violation of ? 703(a) of Title VII, 42 U.S.C. ? 2000e-2(a); and second, discrimination against Tobler for making charges, assisting and participating in investigations under Title VII with resulting discouragement of participation by other employees in Title VII proceedings an violation of ? 704(a) of Title VII, 42 U.S.C. ? 2000e-3(a). Initially, plaintiff sought damages for Tobler, permanent injunctive relief enjoining Press from in any way discriminating on the basis of sex or because of an employee's participation in Title VII proceedings, and an order requiring Press to implement policies and affirmative action programs to provide equal opportunity for Tobler and other employees who participate in Title VII proceedings. By the time of trial, however, plaintiff narrowed its request for injunctive relief to only that necessary to accomplish the following results:

482 F. Supp. 1294

"(1) Eradication of the continuing effects of past retaliation against Lorna Tobler, including but not limited to future letters of reference to potential secular employers, derogatory information concerning her illegal termination in her personnel file, etc.

"(2) Eradication of the continuing effects of past retaliation on Press' employees' willingness to petition government agencies for redress or cooperate with government inquiries, including posting a copy of this judgment on Press' bulletin board where EEOC and Department of Labor notices are posted, and notification that the law requires Press' future compliance with the terms of Section 704(a) of Title VII." Pretrial Statement filed February 17, 1978, pp. 2-3.

This action, filed on July 27, 1977, and consolidated on September 15, 1977, with two actions² previously filed against Press, represents but a small part of the complex and protracted litigation which has focused upon the employment practices at Press.

In the first suit that was filed, Silver v. Pacific Press Publishing Association ("Silver"), No. C-73-0168-CBR, plaintiff Merikay Silver sought relief on behalf of herself and those women similarly situated charging retaliation under ? 704(a) of Title VII, 42 U.S.C. ? 2000e-3(a), and alleging the payment of discriminatory gender-based living allowances (the "head-of-household issue"), and her receipt of lower pay than a male colleague doing equivalent work, the latter two both under ? 703(a) of Title VII, 42 U.S.C. ? 2000e-2(a). The retaliation and head-of-household claims in Silver were similar to those the EEOC has alleged in this action ("EEOC (Tobler Charges)"). On May 22, 1974, this Court conditionally ordered that the Silver action proceed as a class action. However, based on the nature of the responses received from the Court-ordered notice procedures expressing great concern about the case proceeding as a class action because of the church/state confrontation issue, the Court on June 13, 1975, decertified the class while granting to those women who had responded affirmatively, or not at all, the right to intervene.³

In the interim, on September 20, 1974, the EEOC, pursuant to ?? 706(f)(2), (3), and 706(g) of Title VII, 42 U.S.C. ?? 2000e-5(f)(2), (3), and 2000e-5(g), filed a second action, No. C-74-2025-CBR ("EEOC (Preliminary Relief)"), this time against Press, General Conference of the Seventh-day Adventists, and two other Seventh-day Adventists institutions,⁴ seeking preliminary relief for Silver and Tobler because Press allegedly had threatened to retaliate against them both because of their filing of charges with the EEOC, against Tobler because of her intervening in Silver, and against Silver because of her filing of the Silver action.⁵ Shortly thereafter, Press announced its intention to discharge Silver and Tobler. On February 24, 1975, this Court issued an order temporarily restraining defendants from terminating the two women; renewed that order on March 5, 1975, for an additional ten-day period; and then granted a preliminary injunction on March 25, 1975, requiring Press to refrain from discharging

482 F. Supp. 1295

Silver or Tobler until the Silver action was resolved or until the two women no longer held membership in the Seventh-day Adventist Church, a prerequisite for employment at Press.⁶ On appeal, the Court of Appeals for the Ninth Circuit reversed the order granting the preliminary injunction, holding that the district court could not grant preliminary relief under ? 706(f)(2) since that section was only applicable during the pendency of EEOC administrative proceedings.⁷ This Court then dismissed EEOC (Preliminary Relief) on July 23, 1976

The instant action and Silver were set for consolidated trial in mid-February, 1978, but prior thereto, both cases were settled. However, a dispute about the terms of the settlement in this action subsequently arose, and the matter was tried to the Court on April 27, 1978. Only two witnesses, Lorna Tobler and William Muir, Treasurer of Press, testified at trial, and their testimony focused almost exclusively on the issue of damages. The parties did not call any witnesses to testify on the issue of liability and relied instead upon the submitted record relevant to that phase of this case.⁸

Throughout the litigation in this and the related Press cases, defendants have asserted that the First Amendment and the cases decided thereunder exempt Press's employment practices from regulation under Title VII. Following the filing of post-trial briefs on both the First Amendment and the damages issues and post-trial oral argument on the constitutional issue, EEOC (Tobler Charges) was taken under submission. However, the Court indicated it would not be decided until the First Amendment issues in the most recently filed case, No. C-78-1090-CBR, had been addressed by the parties. During the course of proceedings in that case, the Court indicated it desired to withhold judgment until the Supreme Court decided NLRB v. Catholic Bishop of Chicago in which certiorari had been granted during the preceding term. See 434 U.S. 1061, 98 S.Ct. 1231, 55 L.Ed.2d 760 (1978). Following the issuance of the Supreme Court opinion in that case on March 21, 1979, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533, this Court called for further briefing on the effect of that decision on the Press cases still pending before it.

Upon consideration of all the evidence, the voluminous record herein, and the extensive argument of counsel, the Court renders this Memorandum of Opinion, which shall serve as the Court's Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

BACKGROUND OF THE CASE

Plaintiff EEOC is an agency of the United States Government charged with the administration, interpretation, and enforcement of Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C. ? 2000e et seq. Defendant Press, a nonprofit corporation incorporated under California law, is a Seventh-day Adventist affiliated publishing house which engages in the business of publishing, printing, advertising, and selling religious and religiously oriented materials for the purpose of carrying out the church's denomination work. These materials are sold throughout the United States and overseas. At all times pertinent hereto, Press has required its employees⁹ to be members in good standing of the Seventh-day Adventist Church.

482 F. Supp. 1296

The Seventh-day Adventist Church is a recognized Christian denomination and is distinguished from other Christian denominations by the two aspects of its faith which gives the church its name. Its basic doctrines are completely consistent with the policy set forth in Title VII of equal employment opportunity and equal compensation for men and women. The governing body of the church is the General Conference of Seventh-day Adventists, an unincorporated association. The term "General Conference" subsumes several different organizational entities. The General Conference in Session, a meeting of all members of the General Conference which convenes quinquennially, is the highest authority in the denomination, and is the only body empowered to alter the structure of the church or to change doctrine. Between the quinquennial sessions of the General Conference, the General Conference Executive Committee, also known as the General Conference Committee, has complete administrative powers. The General Conference Committee itself operates in three ways. First, there are two annual meetings of the entire Committee, known as the...