EEOC v. Pacific Southwest Airlines
| Decision Date | 20 April 1984 |
| Docket Number | No. C-84-0452 RFP.,C-84-0452 RFP. |
| Citation | 587 F. Supp. 686 |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. PACIFIC SOUTHWEST AIRLINES, Defendant. |
| Court | U.S. District Court — Northern District of California |
Marian Halley, E.E.O.C., San Francisco, Cal., for plaintiff.
Bruce A. Gothelf, Meserve, Mumper & Hughes, Los Angeles, Cal., for defendant.
Few of the facts in this employment discrimination case are disputed. The controversy began on January 3, 1984, when Pacific Southwest Airlines (PSA) notified all of its skycap employees that PSA was planning to eliminate their jobs, hire a subcontractor, and terminate their employment effective January 31, 1984. At that time, PSA employed a total of twenty-one skycaps: twelve full-time skycaps at San Francisco International Airport, seven full-time skycaps at San Diego Airport, and two part-time skycaps at San Diego Airport. All of the skycaps were black.1 Seventeen of the full-time skycaps were over forty years old, and eleven of them were over fifty years old. The full-time skycaps averaged close to eleven years of service.
PSA paid its skycaps between $6.85 and $7.90 per hour. The skycaps also received tips and fringe benefits including health, dental, and life insurance, paid vacation, paid sick leave, and travel privileges.
On January 13, 1984, PSA informed the skycaps employed in San Francisco that it had postponed their termination until February 24, 1984. The reason for the delay was that the San Francisco Airport Commission had not yet approved a recommended change in its rules that would permit PSA and all other airlines to subcontract skycap services to the vendor of their choice. In February, PSA learned that the Commission would not make the proposed rule change until at least March 20, 1984, so it further delayed the San Francisco skycap termination date to March 31, 1984.
Since January 26, 1984, nine of PSA's skycaps have filed charges of employment discrimination with the Equal Employment Opportunity Commission (EEOC). They allege that PSA's planned elimination of the entire skycap unit constituted discrimination based on race, in that no other group of employees was being similarly treated, and no other employee group was all black.
The EEOC conducted a preliminary investigation and concluded that prompt judicial action in the form of preliminary relief was necessary to carry out the purposes of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (1976), and to prevent an apparent violation of Title VII. Accordingly, on January 30, 1984, it filed a petition for preliminary relief.
On January 31, 1984, five of PSA's San Diego skycaps elected to retire under the favorable conditions of a retirement program that PSA made available to all of its employees from December 1, 1983 to January 31, 1984. PSA terminated the employment of the other four San Diego skycaps.
The next day, this court heard the EEOC's petition for preliminary relief. It denied relief with respect to the San Diego skycaps, but issued a temporary restraining order prohibiting PSA from subcontracting for skycap services in San Francisco. The temporary restraining order remained in effect until Monday, February 27, 1984, when this court heard the EEOC's motion for a preliminary injunction pending completion of its investigation.
PSA has hired an unaffiliated subcontractor, PSAS, to perform skycap services at San Diego Airport. Pursuant to an agreement with PSA, PSAS offered employment to all of the San Diego skycaps who were furloughed on January 31st.2 But PSAS pays its skycaps only $3.35 per hour and does not provide any benefits.3
PSA has explained that its subcontracting of San Diego skycap services and planned subcontracting of San Francisco skycap services are parts of a cost-cutting program necessitated by PSA's financial difficulties. During 1981 and 1982, PSA's airline operating losses totalled approximately twenty-seven million dollars. PSA will report an operating loss in 1983 in excess of ten million dollars. PSA's cost-cutting program, instituted in November of 1983, called for such measures as: a twenty-five percent reduction in management and non-union personnel, a severe cutback in clerical personnel, a substantial reduction in travel and entertainment expenses, an increase in the amount of severance to ease the burden of separation for long-term employees, the elimination of any planning personnel from departments other than the treasurer's office, the centralization of personnel recordkeeping, more stringent job performance evaluation for all employees, the replacement or grounding of all Boeing 727 aircraft within fourteen months, the reduction of the flight attendant complement on all aircraft from four flight attendants per aircraft to three flight attendants per aircraft, and a reduction, where operationally possible, in unionized personnel.
Between September 1, 1983 and January 31, 1984, PSA implemented comprehensive company-wide reductions in its personnel, eliminating a total of 401 employment positions. It significantly reduced the number of station agents, flight attendants, office and clerical employees, and management employees. But the only employment unit that PSA sought to replace with a subcontractor was the skycap unit.4
Of the 401 employees terminated, at least 10.7% (43)5 were black. PSA's employment statistical report for June of 1983 showed, however, that only 5.75% (221) of its 3,844 employees were black.
James Sheehan, a senior vice president for PSA, has estimated that PSA will save approximately $150,000 per year through subcontracting of skycap services. He has also concluded that achieving a comparable savings through wage reductions would require a fifty-two percent reduction in wages, which would be much greater than any wage reduction PSA anticipates imposing on other employees.6
At his deposition, Sheehan reported that PSA subcontracts for skycap services at seventeen of its nineteen stations, San Diego Airport and San Francisco International Airport being the two exceptions. He further stated, both at his deposition and in a declaration, that, in his opinion, per-employee expenditure of management resources for skycaps was disproportionately high because PSA employed skycaps only at those two locations. In addition, at his deposition he explained that the option of subcontracting was not available with respect to most of PSA's employment units, because of union contract restrictions.
On Monday, February 27, 1984, this court heard oral argument on whether it should issue a preliminary injunction to protect PSA's San Francisco and San Diego skycaps pending completion of the EEOC's investigation of the charges against PSA, which should occur in three to four months. The EEOC requested a preliminary injunction ordering PSA to reinstate its nine former San Diego skycaps, nullify the retirements of the four San Diego skycaps who retired under threat of termination, and refrain from terminating the San Francisco skycaps, contracting out their work, or requiring them to make elections as to their employment status. This memorandum and order addresses that request.
The EEOC requests relief pursuant to section 706(f)(2) of Title VII, 42 U.S.C. § 2000e-5(f)(2) (1976), which provides:
Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission ... may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure.
The EEOC alleges that it has conducted a preliminary investigation, that it has concluded that prompt judicial action is necessary, that the standard for granting preliminary relief under section 706(f)(2) is more relaxed than the regular standard for awarding such relief, and that the present case meets both the section 706(f)(2) standard and the regular standard. But PSA contends that the EEOC must meet the regular standard for granting preliminary relief, and that the EEOC has satisfied neither that standard nor the more relaxed standard it advocates.
Under the regular standard for awarding preliminary relief, such relief is appropriate only if the movant demonstrates either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 965 (9th Cir.1983); Kling v. County of Los Angeles, 633 F.2d 876, 879 (9th Cir.1980); Aguirre v. Chula Vista Sanitary Service & Sani-Tainer, Inc., 542 F.2d 779, 781 (9th Cir.1976); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1976). Thus, under both of the methods of meeting the regular standard, courts must evaluate the existence of hardship or injury and the strength of the merits of the case. The EEOC argues that judges deciding whether to grant preliminary relief under section 706(f)(2) should test neither the existence of hardship or injury nor the merits of a case as rigorously as under the regular standard.
The EEOC relies on EEOC v. Pacific Press Publishing Ass'n, 535 F.2d 1182 (9th Cir.1976), for the proposition that when it seeks preliminary relief under section 706(f)(2), it need not prove that irreparable injury would occur or that the balance of hardships tips decidedly in...
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