Gerstle v. Continental Airlines, Inc., 72-1292

• Decision Date: 02 October 1972
• Docket Number: No. 72-1292,72-1293.,72-1292
• Citation: 466 F.2d 1374
• Parties: Irmgard S. GERSTLE et al., Plaintiffs, Elizabeth M. Sansing and Marilee G. Krinitt, Plaintiffs-Appellants, v. CONTINENTAL AIRLINES, INC., a Nevada corporation, and Air Line Pilots Association, International, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

466 F.2d 1374 (1972)

Irmgard S. GERSTLE et al., Plaintiffs, Elizabeth M. Sansing and Marilee G. Krinitt, Plaintiffs-Appellants, v. CONTINENTAL AIRLINES, INC., a Nevada corporation, and Air Line Pilots Association, International, Defendants-Appellees.

Nos. 72-1292, 72-1293.

United States Court of Appeals, Tenth Circuit.

October 2, 1972.

Hugh J. McClearn, Denver, Colo. (Van Cise, Freeman, Tooley & McClearn, Denver, Colo., on the brief), for plaintiffs-appellants.

Bruce W. Sattler, Denver, Colo. (Gordon G. Greiner and Holland & Hart, Denver, Colo., of counsel, on the brief), for defendant-appellee Continental Airlines, Inc.

Cynthia E. Gitt, John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, and Charles L. Reischel, Atty., Washington, D. C., for U. S. Equal Employment Opportunity Comm., as amicus curiae.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

The narrow issue here to be resolved is whether the trial court abused its discretion in refusing to allow two would-be intervenors to join as parties plaintiff in a pending Civil Rights action. We conclude that in so doing the trial court did not abuse its discretion and that its order must therefore be affirmed. To end this opinion at this point is tempting, but to do so would tell little to the parties and nothing to the casual reader. Accordingly, we see no escape from relating considerable detail if our conclusion is to have meaning.

On August 18, 1969, Irmgard S. Gerstle, a former stewardess for Continental Airlines, Inc., commenced an action against Continental based on an alleged violation of Title VII of the 1964 Civil Rights Act. The gist of her complaint was that she had been discriminated against as the result of the application of Continental's "no-marriage" rule for its flight hostesses to the end that in 1965 her employment with that company was unlawfully terminated. In this connection, Gerstle further alleged that in 1966 she demanded reinstatement to her former position and that when her request was denied she filed, on May 31, 1966, a charge of sex discrimination with the Equal Employment Opportunity Commission. In this latter connection, it was alleged that on April 30, 1969, the EEOC issued its decision that there was probable cause to believe that Continental's no-marriage policy, which incidentally was abandoned by Continental in 1966, was unlawful and that on July 21, 1969, the EEOC issued its notice of right to sue.

It was in this setting that Gerstle on August 18, 1969, initiated her action against Continental, her claim initially being an individual claim and not a claim for a class. However, on September 3, 1969, Gerstle filed an amended complaint which was denominated as being a class action seeking back pay, reinstatement, an injunction and other relief. Thereafter, the trial court in due time issued a conditional ruling pursuant to Fed.R.Civ.P. 23(c)(1) that the case would be maintained as a class action on behalf of all flight hostesses "whose employment with the defendant was terminated because of marriage between the effective date of Title VII (July 2, 1965) and the present" and those "who terminated because of marriage before July 2, 1965, but who were available for reinstatement after that date * * * and who made their availability known to the defendant after July 2, 1965." In thus ruling, the trial court specifically stated that its ruling was conditional, since Gerstle had not met the numerosity requirement of Fed.R.Civ.P. 23(a)(1). In this regard, the trial court noted that "it is possible that when the members of the class are finally indentified their number may be small enough to permit joinder and in this event, the Court can strike the class allegation." Gerstle v. Continental Airlines, Inc., D.C., 50 F.R.D. 213.

Thereafter, certain lists setting forth the names of former stewardesses and their last known addresses were furnished by Continental and on May 27, 1961, a notice approved as to form and content by the parties was sent to those persons whose names appeared on such lists. Approximately 382 notices were mailed, about half of which were returned undelivered. The notice advised the recipient that she would be bound by the judgment entered in the Gerstle proceeding unless she excluded herself. The notice also required that each member of the class, in order to obtain reinstatement and back pay, indicate on or before July 1, 1971, an intention "to present evidence of entitlement to relief at the trial of Mrs. Gerstle's case." Finally, the notice advised all class members who planned to participate to appear at a pre-trial conference set for August 6, 1971.

Thereafter, at the pre-trial conference, fourteen persons appeared through counsel and sought to be included in the class for whose benefit the action was then being prosecuted. At this hearing, the trial court, sua sponte but without objection, ordered that the action would no longer proceed as a class action and that the fourteen who had thus indicated a desire to assert a claim against Continental would be permitted to join as parties plaintiff, with the further order that the fourteen thus joined "would not be subject to defenses not available in a class action." This latter condition was deemed significant in view of the fact that none of the fourteen thus joined had ever filed a charge of discrimination with the EEOC.

On October 15, 1971, Elizabeth Sansing filed a "Motion to Join Action as Plaintiff," alleging that she did not have notice of Gerstle's pending proceeding against Continental until September 1971. On January 6, 1972, Marilee G. Krinitt filed a similar "Motion to Join Action as Plaintiff," alleging that she did not have such notice until December 1971. These two motions each asked for an order joining the movant as a party plaintiff in the Gerstle action against Continental and "permitting her to adopt all the pleadings previously submitted by plaintiffs in this action." Neither motion mentioned a specific rule under which the joinder was being sought; nor did either assert a right to join as party plaintiff on the class action aspects of the case.

The motions to join came on for hearing on February 25, 1972, some six weeks before the date theretofore set for trial. At this hearing, counsel attempted to interject into the hearing the correctness of the trial court's earlier order "declassifying" the action, arguing that notwithstanding this order of the court the action was still a class action and that accordingly Sansing and...