Kentroti v. Frontier Airlines, Inc.

• Decision Date: 20 October 1978
• Docket Number: No. 76-1750,76-1750
• Citation: 585 F.2d 967
• Parties: 18 Fair Empl.Prac.Cas. 364, 18 Empl. Prac. Dec. P 8830 Theodore A. KENTROTI, Plaintiff-Appellant, v. FRONTIER AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 967

585 F.2d 967

18 Fair Empl.Prac.Cas. 364, 18 Empl. Prac.

Dec. P 8830

Theodore A. KENTROTI, Plaintiff-Appellant, v. FRONTIER AIRLINES, INC., Defendant-Appellee.

No. 76-1750.

United States Court of Appeals, Tenth Circuit.

Argued Nov. 15, 1977.

Decided Oct. 20, 1978.

Thad M. Oviatt, Wheat Ridge, Colo. (Skelton, Oviatt & O'Dell, Wheat Ridge, Colo., on the brief), for plaintiff-appellant.

E. Lee Dale, Denver, Colo. (Dawson, Nagel, Sherman & Howard, Denver, Colo., on the brief), for defendant-appellee.

Jacob I. Karro, Atty., U. S. Dept. of Labor, Washington, D. C. (Carin Ann Clauss, Sol. of Labor, Carl W. Gerig, Jr., Acting Associate Sol., Paul D. Brenner, Atty., and Tedrick A. Housh, Jr., Regional Sol. U. S. Department of Labor, Washington, D. C., on the brief), for The Secretary of Labor as amicus curiae.

Before SETH, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff Theodore A. Kentroti brought this suit for alleged violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, Et seq., (ADEA), ¹ against defendant Frontier Airlines, Inc. He asserted four claims under the ADEA: (1) that defendant wrongfully denied him a seniority number at the time he was hired effective October 2, 1967, and at all times thereafter denied him a seniority number despite numerous requests therefor, because of his age (45 at the time of his employment by defendant) in violation of § 623(a)(1); (2) that the defendant made a wrongful segregation or classification of plaintiff by not treating him as a pilot entitled to a seniority number because of his age, in violation of § 623(a)(2); (3) that plaintiff was wrongfully terminated without good cause and because of age by his discharge on March 1, 1975; and (4) that his discharge was discriminatory and in retaliation for oral and written complaints of age discrimination made by plaintiff, and thus violative of § 623(d). The trial court denied all four claims for various reasons and dismissed the complaint and action, and plaintiff appeals.

We will discuss the facts and the record evidence as we treat plaintiff's appellate contentions. First, we deal with claims of procedural error which will place the case in somewhat better focus.

I

The procedural issues

Much of the factual background was covered by a lengthy stipulation set out in the pretrial order. There was also considerable testimony and documentary evidence offered by the plaintiff. At the conclusion of the plaintiff's case, the defendant moved for dismissal on the ground that the plaintiff had failed to establish a Prima facie case. The trial judge reserved his ruling on the motion. At the conclusion of the presentation of all the evidence and after arguments were made, the court then announced its decision orally.

The court stated that the ruling on the motion to dismiss had been reserved and that the court was granting the motion. With respect to findings and conclusions on the evidence, the court then reviewed the issues, discussed the stipulation and the evidence in some detail, and stated findings and conclusions against the plaintiff on all four of his claims. The court held that claims (1) and (2) were barred by the two-year limitation of 29 U.S.C. § 255(a). The judge also concluded by stating that in his view the plaintiff had not carried the burden of proof required by the statute and that the complaint and action were dismissed and judgment would be entered for the defendant, with costs.

The plaintiff claims that there was procedural error in that the trial judge considered the defendant's evidence in reaching his findings and conclusions. It is true that the findings and conclusions, together with the record, demonstrate that the court considered the whole of the evidence plaintiff's and defendant's but this was clearly proper. The reservation of the ruling was permissible under Rule 41(b), F.R.Civ.P., and indeed has been said to be the preferable practice in some circumstances. See White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir.). Where the ruling is reserved and then later the court rules after all the evidence is in, the court should look to all the evidence in deciding the case on the merits. A. P. Hopkins Corp. v. Studebaker Corp., 496 F.2d 969, 971 (6th Cir.); see K. King & G. Shuler Corp. v. Petitioning Creditors, 427 F.2d 689, 690-91 (9th Cir.); Weissinger v. United States, 423 F.2d 795, 797-98 (5th Cir. en banc). And findings of fact made as in this case as a predicate for a final dismissal and judgment for defendant are like other findings they are not to be set aside on appeal unless clearly erroneous. Id. at 798.

One further word should be added on the procedural posture of the case. Arguments are made about whether a Prima facie case was made under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. The rules laid down there by the Supreme Court are controlling as to establishing a Prima facie case of racial discrimination, and we feel they apply to this age discrimination case. See Laugesen v. Anaconda Co., 510 F.2d 307, 311-12 (6th Cir.). Those guidelines deal with establishing a Prima facie case of discrimination, shifting of the burden of proof to defendant to show a legitimate, non-discriminatory reason for the challenged action, and the opportunity of the plaintiff to rebut the defendant's showing by demonstrating that the reason assigned as justification for the defendant's action was pretextual and in fact a coverup for discriminatory action. McDonnell Douglas, supra, 411 U.S. at 802-05, 93 S.Ct. 1817.

A McDonnell Douglas prima facie showing is not the equivalent of a factual finding of discrimination; rather, it is simply proof of actions by an employer from which discriminatory animus may be inferred. Furnco Construction Corp. v. Waters, --- U.S. ----, ----, 98 S.Ct. 2943, 57 L.Ed.2d 957. And to dispel the adverse inference from such a Prima facie showing, the employer need only articulate some legitimate non-discriminatory reason for his actions. Id. at ----, 98 S.Ct. 2943.

It is true that the trial judge stated at the end of the trial that he was granting the motion made by the defendant to dismiss for failure to establish a Prima facie case. We feel, however, that the judge's findings and conclusions as a whole show that he considered and agreed with the company's showing of legitimate, non-discriminatory reasons for its actions. By considering and agreeing with such reasons outlined in the defendant's proof, we do not infer in this instance that the court was recognizing that a Prima facie case had been made. We do not believe it critical here to determine which process of reasoning the trial court followed rejecting the plaintiff's case because of Prima facie showing had not been made, or holding that the defendant prevailed because the evidence demonstrated legitimate, non-discriminatory reasons for the defendant's actions. We feel the judge was likely focusing on the latter point and then holding that the plaintiff had failed to carry the overall burden of proof. In any event, there was no prejudice from the procedure he followed. ²

II

The trial court's findings and conclusions

The trial court's findings and conclusions were made orally after the conclusion of presentation of the evidence and arguments. (III R. 2-13). The court said that its ruling had been reserved on the defendant's motion to dismiss for failure to establish a Prima facie case, made at the close of plaintiff's case in chief, and that the court was now granting the motion.

The court stated that "with respect to the findings and conclusions on the evidence," first of all jurisdiction of the matter was admitted, it exists under the ADEA, plaintiff has complied with all conditions precedent to suit, and the suit is timely insofar as it relates to plaintiff's discharge in March, 1975. Further the court stated that the facts agreed on in the pretrial order were incorporated by reference, including the fact that plaintiff had been employed by defendant on October 1, 1967, when he was 45 years of age. ³

The court said it was clear that no seniority number was assigned to plaintiff. The application for employment as sought and granted was for a combination position of flight and ground instructor. Plaintiff indicated he would only accept employment in the Denver area and he desired to be stationed there.

The court found that defendant then had a collective bargaining agreement with the Airline Pilots' Association International (ALPA), that a seniority system was established in the agreement, and that the agreement provides that seniority begins to accrue from the date a pilot is first employed as an airline pilot. The seniority system governs promotion, demotion and retention on reduction in force, Inter alia.

The court stated that a determinative question is whether plaintiff was a pilot within the meaning of the contract, that read literally perhaps you could include plaintiff as a pilot, but that the definitions have to be read in terms of the entire agreement, its purpose and context. ⁴ The word "pilot" is defined as including first pilot, first officer and second officer. The court said it is clear that the agreement refers to flight crews and, in terms of the context of the agreement, it was the court's finding and conclusion that pilots within the meaning of the agreement are line pilots, "those who fly payloads consisting of passenger and cargo on regularly assigned routes for the company." (III R. 5). The seniority provisions in the 1967-68 contract are also reproduced in the margin. ⁵ The court found that the evidence does not show that the plaintiff was a pilot within the bargaining unit governed by the contracts at any relevant time. Thus the court said that the seniority system was inapplicable to the terms and conditions of plaintiff's employment. (III R. 5).

The court found that...