Forsberg v. Pacific Northwest Bell Telephone Co.

• Decision Date: 27 May 1988
• Docket Number: Nos. 86-4054,86-4144 and 87-3536,s. 86-4054
• Citation: 840 F.2d 1409
• Parties: 54 Fair Empl.Prac.Cas. 1873, 45 Empl. Prac. Dec. P 37,758, 46 Empl. Prac. Dec. P 37,996 Stephanie E. FORSBERG, individually and on behalf of all other similarly situated persons, Plaintiff-Appellant, and Carol Ann Bastiani; Linda Beaty; Barbara Berberick, et al., Applicants in Intervention-Appellants, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, Defendant-Appellee, v. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 9201, Non-Aligned Party-Appellant, and Communication Workers of America (International); Communication Workers of America, Local 9204; Communication Workers of America, Local 9206; Communication Workers of America, Local 9208, Non-Aligned Parties. Stephanie E. FORSBERG, individually and on behalf of all other similarly situated persons, Plaintiff-Appellee, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, Defendant-Appellant, and Communications Workers of America (International); Communications Workers of America, Local 9201; Communication Workers of America, Local 9204; Communication Workers of America, Local 9206; Communication Workers of America, Local 9208, Non-Aligned Parties-Appellees. Stephanie E. FORSBERG, individually and on behalf of all other similarly situated persons, Plaintiff-Appellee, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, Defendant-Appellant, Communication Workers of America, Local 9201, Non-Aligned Party-Appellee, and Communication Workers of America (International); Communication Workers of America, Local 9204; Communications Workers of America, Local 9206; Communication Workers of America, Local 9208, Non-Aligned Parties.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1409

840 F.2d 1409

54 Fair Empl.Prac.Cas. 1873,

45 Empl. Prac. Dec. P 37,758,

46 Empl. Prac. Dec. P 37,996

Stephanie E. FORSBERG, individually and on behalf of all

other similarly situated persons, Plaintiff-Appellant, and

Carol Ann Bastiani; Linda Beaty; Barbara Berberick, et

al., Applicants in Intervention-Appellants, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, Defendant-Appellee, v. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 9201, Non-Aligned

Party-Appellant, and Communication Workers of America

(International); Communication Workers of America, Local

9204; Communication Workers of America, Local 9206;

Communication Workers of America, Local 9208, Non-Aligned Parties.

Stephanie E. FORSBERG, individually and on behalf of all

other similarly situated persons, Plaintiff-Appellee, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, Defendant-Appellant, and Communications Workers of America (International);

Communications Workers of America, Local 9201;

Communication Workers of America, Local 9204; Communication

Workers of America, Local 9206; Communication Workers of

America, Local 9208, Non-Aligned Parties-Appellees.

Stephanie E. FORSBERG, individually and on behalf of all

other similarly situated persons, Plaintiff-Appellee, v. PACIFIC NORTHWEST BELL TELEPHONE COMPANY, Defendant-Appellant,

Communication Workers of America, Local 9201, Non-Aligned

Party-Appellee,

and

Communication Workers of America (International);

Communication Workers of America, Local 9204;

Communications Workers of America, Local 9206;

Communication Workers of America, Local 9208, Non-Aligned Parties.

Nos. 86-4054, 86-4144 and 87-3536.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 11, 1987.

Decided Feb. 8, 1988.

As Amended May 27, 1988.

David H. Wilson, Jr., Bullard, Korshoj, Smith & Jernstedt, P.C., Portland, Or., for defendants-appellees.

Stephen H. Buckley, Carney, Buckley, Kasameyer & Hays, Portland, Or., for nonaligned parties.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Stephanie Forsberg, on behalf of all similarly situated past, present, and future females employed as "Maintenance Administrators" (MAs) by Pacific Northwest Bell Telephone Company (the company) since March 7, 1983, appeals the district court's orders denying class certification and granting summary judgment to the company on a variety of state and federal sex discrimination claims. Forsberg sought monetary and injunctive relief. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331, 29 U.S.C. Sec. 216(b), and 42 U.S.C. Sec. 2000e-5(f)(3) on the federal claims and exercised pendent jurisdiction over one of the state claims. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

In 1979, the company employed both men and women as test desk technicians (TDTs). The majority of TDTs were men. The TDTs used a manual testing device located on a testboard in order to diagnose malfunctions in customer telephone lines. A TDT would receive a "trouble ticket" containing a clerk's description of a customer's complaint. The TDT would then perform a series of manual tests on the testboard, which contained a complex panel of switches and keys. The TDT would use these switches and keys to diagnose a malfunction. The TDT would then analyze the results and dispatch a crew to solve the problem. TDTs performed this function in forty-one different repair service bureaus throughout the Northwest. The collective bargaining agreement, which the American Telephone and Telegraph Company (AT & T) and the Communication Workers of America (union) negotiated, classified the TDT position as a "craft" level position.

In 1980, AT & T (then the parent telephone company) introduced a computerized testing device known as MLT-1 (mechanized loop testing). The MLT system uses computer terminals and keyboards, instead of a manually operated testboard, to analyze customer complaints about malfunctioning telephone lines. In light of the MLT-1 system, AT & T and the union entered collective bargaining negotiations in 1980 and created the MA position. The negotiating parties did not classify the MAs as "craft" level employees. Instead, they agreed that they would classify the MAs as G-5 clerks, but would pay the MAs at the G-8 rate. In order gradually to fill the MA positions over the ensuing two years, the company promoted clerks who the company would have otherwise terminated. Most of these clerks were women who previously performed manual record keeping functions. Although some TDTs continued to function, the MAs who used the MLT-1 system performed about seventy-five percent of the work that TDTs formerly performed and nearly all of the manual record keeping that the MAs had formerly performed as clerks.

In 1982, AT & T introduced MLT-2, an improved MLT system. The company retrained the MAs who had been operating the MLT-1 system. By January 1983, these retrained MAs were using the MLT-2 system to perform all of the testing that the TDTs formerly performed manually. As a result, the company phased out the TDT position. In addition, by introducing the MLT-2 system, the company centralized the testing facilities into fifteen maintenance centers, rather than operating forty-one repair service bureaus which it had when it used TDTs to diagnose telephone line malfunctions.

Under the MLT-2 system, an MA uses a computerized testing device consisting of a keyboard and a computer screen. Unlike the TDT, the MA does not receive a narrative slip with a customer complaint and then conduct a series of tests to identify the malfunction. Instead, when the company receives a complaint, a message clerk enters the customer's complaint into the MLT-2 system. The MLT-2 then automatically conducts a series of tests on the customer's telephone lines. The MLT-2 then electronically produces a report that identifies the problem and suggests a solution. It is through this report that an MA first learns that a customer is having trouble with his or her telephone line. The MA then analyzes the report and assesses the MLT-2's recommendation.

In some cases, the MA must use the MLT-2 to perform additional verification tests. This is done by "telling" the MLT-2 to conduct certain tests by entering certain simple keystrokes. For example, to determine whether there is a foreign current on a certain line, an MA types the customer's telephone number into the computer and presses "F." The MA then presses the send/receive button on the keyboard. Within one minute, the MLT-2 completes the appropriate test and the results appear on the screen. The MLT-2 provides a diagnosed solution. The MA then relays the diagnosis to a technician to cure the problem.

In 1983, AT & T and the union negotiated another collective bargaining agreement. The 1983 agreement retained the MA job classification and title and continued the G-8 pay rate.

The company has employed Forsberg as an MA at least since March 7, 1983. On November 16, 1984, Forsberg sued the company, on behalf of all similarly situated past, present, and future females that the company has employed as MAs since March 7, 1983. Forsberg's complaint alleged that wages were low because the company discriminated against women in violation of Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e (Title VII), the federal Equal Pay Act (EPA), 29 U.S.C. Sec. 206, the Oregon Fair Employment Practices Act (Oregon FEPA), Or.Rev.Stat. Sec. 659.030, the Oregon Equal Pay Act, Or.Rev.Stat. Sec. 652.220, and the Oregon Wage Claim Statute, Or.Rev.Stat. Sec. 652.355. She claimed that: (1) there was substantial disparity in pay rates between the MAs, a predominantly female group, and the former TDTs, a predominantly male group, and (2) the work done by the MAs and TDTs was "substantially equal." Forsberg, the purported class, and approximately 80 federal EPA opt-in plaintiffs sought monetary and injunctive relief.

The company moved to join the union and Locals 9201, 9204, 9206, and 9208 of the union as defendants, on the grounds that the union had bargained for and agreed to the wage rates that the MAs alleged to be discriminatory. The company argued that if Forsberg and the class proved the alleged pay discrimination, then the union could be liable for the discrimination. In addition, the company argued that if Forsberg received the relief sought, such relief would necessarily affect the terms of the union contract. Finally, the company maintained that the district court should decline to assert pendent jurisdiction over Forsberg's state law claims.

The district judge joined the union and the union locals as defendants under Fed.R.Civ.P. 19 to establish any potential liability of the union or the union locals, as well as to avoid the possibility that the company would be subject to inconsistent obligations. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F.Supp. 117, 121 (D.Or.1985) (Forsberg ). She also declined to exercise pendent jurisdiction over Forsberg's claims under the Oregon Wage Claim Statute and Oregon Equal Pay Act, but asserted jurisdiction over the claims arising under the Oregon FEPA. Id. at 127-28.

Subsequently, the district judge reconsidered her earlier order and issued a new order that realigned the union and the union locals as non-aligned parties joined solely for the limited purposes of ensuring (1) that any relief granted to Forsberg would be binding on the union, and (2) that the company would not be subject to inconsistent obligations based upon any relief the court would grant. Forsberg v. Pacific Northwest Bell Telephone Co., 622 F.Supp. 1147, 1150 (D.Or.1985) (Forsberg ). The district court also assigned Forsberg's motion for class certification to a United States Magistrate. The magistrate recommended certifying the class as to the Title VII and Oregon FEPA claims, but not as to the EPA claims. The...