Newmon v. Delta Air Lines, Inc., Civ. A. No. 15681.

• Decision Date: 31 December 1973
• Docket Number: Civ. A. No. 15681.
• Parties: Mrs. Linda NEWMON v. DELTA AIR LINES, INC.
• Court: U.S. District Court — Northern District of Georgia

374 F. Supp. 238

Mrs. Linda NEWMON v. DELTA AIR LINES, INC.

Civ. A. No. 15681.

United States District Court, N. D. Georgia, Atlanta Division.

December 31, 1973.

Elizabeth R. Rindskopf, Atlanta, Ga., for plaintiff.

Michael C. Murphy, Atlanta, Ga., for defendant.

ORDER

HENDERSON, District Judge.

This is a class action brought pursuant to Title VII of the Civil Rights Act of 1964 (hereinafter referred to as the "Act") 42 U.S.C. § 2000e et seq., for injunctive relief, back wages and restoration of benefits because of alleged sex discrimination by the defendant, Delta Air Lines (hereinafter referred to as "Delta") in the effectuation and operation of its maternity leave policy.

The plaintiff was employed by Delta for almost ten years, from December 1, 1960 to June 15, 1970. During this time she held clerical assignments in the reservations department including that of "Quick Reference Clerk" for five years, reservationist for two years and finally, "Information Clerk", a position she retained until she began her maternity leave. Under Delta's maternity leave policy for ground employees, the plaintiff was required to go on unpaid maternity leave at the end of the fifth month of pregnancy. Upon leaving she received accrued vacation pay but, in accordance with the airline's policy, was not entitled to accrued sick pay, additional seniority or group insurance except that portion covering child birth expenses.

Six weeks after the birth of her child, and with her physician's approval, she notified her supervisor of her desire to return to work but was informed that no position was available which was suitable to her qualifications. She was further advised that her successor, who was to start maternity leave November 14, 1970, would not be replaced because of economic difficulties Delta was experiencing at that time. After eight months of contacting Delta by telephone and in person, the plaintiff filed, on May 31, 1971, a charge of sex discrimination against Delta with the Equal Employment Opportunity Commission (hereinafter referred to as "EEOC".) On August 15, 1971, she amended the charge for purposes of verification. She received her 30-day "right to sue" letter from EEOC on September 7, 1971 and filed this action shortly thereafter.

The plaintiff's motion for preliminary injunction, reinstatement and back pay was heard and denied by the court on May 31, 1972. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed and remanded the case for trial. Newmon v. Delta Air Lines, Inc., 475 F.2d 768 (5th Cir. 1973).

At the hearing on the preliminary injunction, the plaintiff learned that her reinstatement rights would not be affected by taking other employment. She thereafter sought work with other Atlanta-based airlines but was unsuccessful because of the general "slow down" in the industry. Further efforts to find a job with other businesses nearer her home proved fruitless except for one offer which she rejected for reasons of personal convenience. Finally, on May 14, 1973, she was offered reinstatement by Delta to a shift assignment in the reservation department, the position she now holds.

Delta's maternity leave policy was developed through four distinct periods of time. Prior to 1958 all Delta female ground employees who became pregnant were required to resign their jobs at a date agreed upon by the employee and her supervisor. Because of problems inherent in such a system, the policy was changed in 1958 to provide for termination at the end of the fifth month of pregnancy. Once on leave, the employee accrued no seniority and received only vacation pay then due. Reinstatement was dependent upon there being an opening suitable to her qualifications. In 1968, the policy was again modified to permit a return to work on a preferred basis within 90 days after the birth of the child with no loss of seniority if positions were available. This was the maternity leave policy which governed the plaintiff's employment status. Prior to 1970 stewardesses were required to resign as soon as they learned of their pregnancy, but in 1970, this plan for stewardesses was revised to correspond more favorably to the 1968 ground personnel position. The stewardesses, however, were still required to leave their jobs immediately upon learning of their pregnancy. During leave, the stewardesses accrued three months seniority. The last maternity leave policy revision became effective in November, 1972 and allows female ground employees to work through the eighth month of pregnancy and to continue accruing seniority during the pregnancy absence.

The issues raised in this case as set forth in the pre-trial order are as follows:

(1) Whether the defendant's maternity leave policy constitutes sex discrimination under Section 703 of the Civil Rights Act of 1964 in the following respects:

(a) By requiring all ground employees to take leave automatically by the end of the specified month of pregnancy without regard to the abilities of individual women to continue working into the later stages of pregnancy;

(b) By denying pregnant employees the use of sick leave or any other employment benefits normally available to those on sick leave, i. e., accrual of seniority and the use of medical insurance benefits;

(c) By permanently replacing pregnant women but giving them priority for future openings in similar positions and preserving their benefits which are based on length of service;

(2) Whether all physical conditions which temporarily disable employees from working should be treated by employers in exactly the same manner;

(3) Whether the EEOC's guidelines of 1972 pertaining to maternity leave are entitled to great deference in this case.

Before giving consideration to the merits of the case there remain three motions filed immediately prior to the trial which must be decided: (1) The plaintiff's motion for certification of the class, (2) the motion of Mrs. Dian T. Thompson, a Delta stewardess, to intervene, and (3) the plaintiff's motion to sever pursuant to Rule 42, Fed.R.Civ.P.

The plaintiff defines the class she seeks to represent as "all female employees of defendant Delta . . . based at any Atlanta facility, whose employment with the defendant and employment related benefits were broken by furlough, discharge or forced resignation occasioned by reason of pregnancy from May 13, 1969 until present." It is alleged that the company's maternity leave policy applies to all women employees automatically and without exception.¹ The plaintiff contends that Rule 23(a)(2), Fed.R.Civ.P. is satisfied since her claims are typical of those of the class and therefore common questions of law and fact are involved. Additionally, she argues that the purported class satisfies the Rule's numerosity requirement² and she will fairly and adequately represent the class since her counsel is experienced and competent in class litigation.³ Finally, she asserts that the proposed class is manageable yet large enough to be treated as such.

The defendant replies that (1) the mandate of Rule 23(a)(4), Fed.R.Civ.P. is not satisfied because the plaintiff cannot fairly protect the interests of the class, (2) the plaintiff is without standing to attack Delta's denial of sick leave benefits, (3) the plaintiff did not file a timely charge on the denial of sick pay, (4) there are not questions of law and fact common to the entire class membership as proposed and (5) proper notice has not been given to the class pursuant to Rule 23(c)(2), Fed.R.Civ.P.

To be maintainable as a class action, a suit generally must meet all the requirements set forth in Section 23(a) and also fall within one of the subsections of 23(b) of the Federal Rules of Civil Procedure. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 561 (2nd Cir. 1968). First, the plaintiff must establish the following requirements of Rule 23(a):

(1) The class is so numerous that joinder of all members is impracticable.

(2) there are questions of law or fact common to the class.

(3) the claims . . . of the representative parties are typical of the claims . . . of the class.

(4) the representative parties will fairly and adequately protect the interests of the class.

Second, 23(b)(3) requires that, additionally:

the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in a particular forum; (D) the difficulties likely to be encountered in the management of a class action.

There are two prerequisites to the institution of a Title VII class action: (1) Rule 23 Fed.R.Civ.P. must be satisfied and (2) the issues raised must be those the plaintiff has standing to raise and in fact did raise before the EEOC. Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968). See also Smith v. North American Rockwell Corp., 50 F.R.D. 515, 524 (N.D. Okl.1970). The requirement of "exhaustion" before the EEOC, and thus standing to file a civil action, is not interpreted to mean that all the niceties of legal pleadings must be fulfilled. Usually, persons filing EEOC complaints are not schooled in legal technicalities and some flexibility must be allowed. The standard for EEOC exhaustion is ably described in King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968):

The correct rule is that the complaint in the civil action is confined to those issues the original complaint has standing to raise, but may properly encompass any

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