National Airlines, Inc., In re

• Decision Date: 17 March 1983
• Docket Number: No. 82-5376,82-5376
• Parties: 31 Fair Empl.Prac.Cas. 369, 31 Empl. Prac. Dec. P 33,438 In re NATIONAL AIRLINES, INC., Maternity Leave Practices and Flight Attendant Weight Program Litigation.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 695

700 F.2d 695

31 Fair Empl.Prac.Cas. 369,

31 Empl. Prac. Dec. P 33,438

In re NATIONAL AIRLINES, INC., Maternity Leave Practices and Flight Attendant Weight Program Litigation.

No. 82-5376.

United States Court of Appeals, Eleventh Circuit.

March 17, 1983.

Donald B. Myers, Jones, Grey & Bayley, James A. Miller, Seattle, Wash., for Gardner, Knipple and White.

Barry R. Davidson, John M. Barkett, Miami, Fla., for Pan Am.

James Ritchie, Henning, Walsh & Ritchie, San Francisco, Cal., George H. Tucker, Miami, Fla., for Independent Union of Flight Attendants.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, HENDERSON and CLARK, Circuit Judges.

PER CURIAM:

The plaintiffs-appellants, National Airlines (National) female flight attendants, appeal the decision of the United States District Court for the Southern District of Florida denying their request for an injunction against Pan American World Airways (Pan American), in a class action brought pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. The district court had earlier held that National's maternity leave policy violated Title VII as discriminatory on the basis of sex. The attendants later moved for an injunction to prohibit Pan American, which had acquired National after the initial adjudication of sex bias, from enforcing its identical maternity leave policy. At issue here is whether the district court abused its discretion in denying the appellants' application for an injunction.

In the 1970's, female flight attendants employed by several airlines instituted various actions against their employers challenging their maternity leave policies on the grounds that the rules constituted unlawful sex discrimination. By order of the Judicial Panel on Multidistrict Litigation, the lawsuits brought against National by its female flight attendants were consolidated for trial in the United States District Court for the Southern District of Florida. In Re National Airlines, Inc. Maternity Leave Practices and Flight Attendant Weight Program Litigation, 399 F.Supp. 1405 (J.P.M.D.L.1975). Unfortunately, even though similar pregnancy leave policies of other airlines were under attack in several district courts throughout the country, the lawsuits were not combined in one action. ¹

The policy under challenge in this appeal requires a female flight attendant to notify the airline immediately upon discovering that she is pregnant. At that time, the attendant is placed on mandatory unpaid maternity leave and is not permitted to return to work until after the termination of the pregnancy. An attendant who fails to furnish such notification is subject to dismissal by the company. ²

During the bench trial on the merits of the case, experts testified about the effects of pregnancy on the abilities of flight attendants to perform their responsibilities. National asserted that the policy was necessary because pregnancy could prevent flight attendants from adequately insuring the safety of the passengers. The district court held that the policy constituted a prima facie violation of Title VII's prohibition of sex discrimination. Examining National's reasons for the policy, the court concluded that National's interest in the safety of its passengers justified the mandatory leave as a bona fide occupational qualification after the twentieth week of pregnancy. The court found, however, that the attendants should be allowed to fly during the first trimester because that stage of pregnancy would not interfere with the flight attendants' performance of their safety duties and that they could continue to work during the thirteen-twenty week period of pregnancy, so long as they were certified capable by a National Airlines physician. In re National Airlines, Inc. Maternity Leave Practices and Flight Attendant Weight Program Litigation, 434 F.Supp. 249 (S.D.Fla.1977).

Approximately three months after the announcement of the Southern District of Florida decision, the United States District Court for the Northern District of California determined that Pan American's identical maternity leave practice did not violate Title VII. That court was persuaded that Pan American's duty to provide for the safety of its passengers justified the policy because pregnancy could obstruct the safety functions of its attendants. Harriss v. Pan American World Airways, 437 F.Supp. 413 (N.D.Cal.1977), aff'd in relevant part 649 F.2d 670 (9th Cir.1980).

This disparity in the district court judgments might have been nothing more than academically troublesome at this point. However, the theoretical problem became an actual conflict in 1980 when Pan American acquired National through a merger. After the acquisition was announced, the Ninth Circuit affirmed the Harriss decision thereby validating Pan American's policy. This opinion did not mention the acquisition or the judgment favorable to the appellants in the Southern District of Florida. Thus, the first opportunity to address this collision of decisions did not provide a resolution of the problem.

Following the acquisition, Pan American continued to enforce its mandatory maternity leave policy against pregnant flight attendants of both National and Pan American. ³ In September, 1980, the former National flight attendants filed a motion in the Florida district court to enjoin Pan American from applying its policy to the former National plaintiff class. The district court substituted Pan American as a defendant for National in January, 1982. Subsequently, in February, 1982, the district court denied the injunction. The court concluded that although Pan American would be liable as a successor corporation for money damages arising from the National lawsuit, on balance, it would be inequitable to restrain Pan American from pursuing a course of action theretofore declared valid by another federal district court. This appeal followed.

It should be noted at the outset that the merits of the district court's 1977 decision are not before this court for review in this appeal. We therefore express no opinion concerning the propriety of the district court's original decision finding National's mandatory maternity leave policy unlawful. These same policies have been examined by several courts, without any emerging uniform resolution. See, e.g., Burwell v. Eastern Air Lines, Inc., 633 F.2d 361 (4th Cir.1980); Air Line Pilots Association et al. v. Western Air Lines, Inc., 23 Fair Empl.Prac.Cas. (BNA) 1042 (N.D.Cal.1979); Maclennan v. American Airlines, Inc., 440 F.Supp. 466 (E.D.Va.1977); Condit v. United Air Lines, Inc., 13 Fair Empl.Prac.Cas. (BNA) 689 (E.D.Va.1976), aff'd 558 F.2d 1176 (4th Cir.1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978); United Air Lines, Inc. v. State Human Rights Appeal Board, 61 A.D.2d 1010, 402 N.Y.S.2d 630 (N.Y.App.Div.1978), cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58 L.Ed.2d 653 (1978). For purposes of this appeal, we assume that the district court's substantive decision is correct and confine ourselves to the remedial issues.

As a general rule, district judges have broad discretion in the fashioning of orders to remedy past and present discrimination. See, e.g., Harper v. Thiokol Chemical Corp., 619 F.2d 489, 494 (5th Cir.1980). See also, 42 U.S.C. Sec. 2000e-5(g). Nevertheless, this discretion has been severely limited in cases involving ongoing discrimination. In such instances, this court has stated that "injunctive relief is mandatory absent clear and convincing proof that there is no reasonable probability of further noncompliance with the law." NAACP v. City of Evergreen Alabama, 693 F.2d 1367, at 1370 (11th Cir.1982) (emphasis in original). See also, James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Consequently, if this was the usual case of discriminatory employment practices, it is likely that an injunction would not only be appropriate, but, indeed, such a result would be mandated. Pan American's acquisition of National subsequent to the Florida district court opinion, however, removes this action from the category of ordinary cases. Rather than relying upon cases interpreting the Title VII remedial provisions, the acquisition necessitates our focus on the current conflict between the decisions rendered by the Florida and California district courts in terms of successor liability. ⁴

The Supreme Court has addressed the question whether a corporation that takes the place of another corporation through merger, acquisition or otherwise (a "successor corporation") should be held liable for unfair labor practices of its predecessor, should be bound by labor contracts between the predecessor and its employees, or, instead, should not be affected by the labor relationships of its predecessor. See Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). A review of these cases indicates that the Court balances the interests of the employees and the employer and labor law policy generally. See, e.g., Howard Johnson Co., 417 U.S. at 262, n. 9, 94 S.Ct. at 2243, n. 9, 41 L.Ed.2d at 56-57, n. 9. Such factors as the extent to which the successor corporation essentially continues the operations of the former corporation and whether the new corporation had notice of the former corporation's practices and policies are also a part of this inquiry. See, e.g., Golden State Bottling Co., 414 U.S. at 171-174, 94 S.Ct. at 418-420, 38 L.Ed.2d at 395-397. See also, ...