Novack v. Northwest Airlines, Inc.

• Decision Date: 03 January 1995
• Docket Number: No. C9-94-900,C9-94-900
• Citation: 525 N.W.2d 592
• Parties: Holly NOVACK, et al., Appellants, v. NORTHWEST AIRLINES, INC., Respondent, Republic Airlines, Defendant.
• Court: Minnesota Court of Appeals

Page 592

525 N.W.2d 592

Holly NOVACK, et al., Appellants, v. NORTHWEST AIRLINES, INC., Respondent Republic Airlines, Defendant.

No. C9-94-900.

Court of Appeals of Minnesota.

Jan. 3, 1995.

Syllabus by the Court

1. Failure to move for a new trial limits the appellate court's scope of review to determining whether the evidence supports the findings and whether the findings sustain the conclusions of law.

2. Because the Minnesota Human Rights Act provides two standards for an employer to defend against a disparate impact claim, the trial court did not err by finding that the evidence supports both standards.

3. An employer may not defend against an alleged discriminatory practice by showing that the members of the protected class are adequately represented at the employer's "bottom-line."

4. The trial court did not abuse its discretion by refusing to certify a class that contained less than 40 members.

Barry Goldstein, Kristine Poplawski, Colleen Martin, Saperstein, Mayeda & Goldstein, Oakland, CA, Paul C. Sprenger, Susan M. Coler, Sprenger & Lang, Minneapolis, for appellants.

Thomas Tinkham, Jean Holloway, David Y. Trevor, Dorsey & Whitney, Minneapolis, for respondent.

Helen Norton, Donna R. Lenhoff, Judith L. Lichtman, Women's Legal Defense Fund, Mary E. Hartnett, Rebecca A. Matthias, Nancy J. Rosenfeld, Washington, DC, for defendant.

Mark Greenman, Law Offices of Wayne Kenas, Minneapolis, for amicus curiae Women's Legal Defense Fund.

Considered and decided by PARKER, P.J., and KALITOWSKI and FOLEY, JJ.

OPINION

DANIEL F. FOLEY, Judge. ^*

Flight attendants claim that Northwest Airlines' 5'2"' minimum height requirement violates the Minnesota Human Rights Act and (1) challenge the trial court's statutory interpretation of Minn.Stat. § 363.03, subd. 11 (1992); (2) allege that the record lacks sufficient evidence to support Northwest Airlines' proffered business justification; and (3) argue that the court erred by failing to certify a class and by dismissing one flight attendant's claim as untimely. Northwest Airlines appeals the trial court's finding that the height requirement has an adverse impact upon women. We affirm.

FACTS

Plaintiff Nimali Sondel initiated a discrimination suit against respondent Northwest Airlines (NWA) in July 1992. ¹ Appellants Holly Novack, Kim Shaller, and Brenda Glapa (appellants) later joined the suit, claiming that NWA refused to hire them as flight attendants because they did not meet NWA's 5'2"' minimum height requirement. Appellants alleged that this policy had a disparate impact on women and thus violated Minn.Stat. § 363.03, subd. 11 (1992). Before trial, the court denied appellants' motion for class certification.

To support the disparate impact claim, appellants presented statistical evidence showing that women were 66 times more likely to be excluded by the height requirement than men. Appellants also argued that NWA's proffered business justifications of passenger safety, customer service, and reduced flight attendant injury failed to rationalize the resulting discrimination. Appellants argued that (1) other major airlines have lower height requirements; (2) NWA lowered its height requirement from 5'2"' to 5'0"' in April 1992; (3) federal regulations contained no height restrictions for flight attendants; (4) NWA employed flight attendants under 5'2"'; (5) NWA presented no credible studies validating the need for 5'2"' requirement; and (6) NWA's studies were based on improper methodology and failed to incorporate the federal Uniform Guidelines on Employee Selection Procedures. ²

Numerous experts testified in support of NWA's 5'2"' height requirement. Cynthia Hoene, inflight service, safety, and health specialist, testified that flight attendants must be able to assist passengers in stowing baggage, to access emergency equipment, and to fasten overhead compartments. Hoene opined that, because of the extensive reaching and lifting required by the position, a person less than 5'2"' would be more prone to injury.

David Zanick and Michael Goertz, Airport Medical Clinic physicians, supported Hoene's assertion and both concluded that the 5'2"' height requirement was job-related. In reaching this conclusion, each doctor relied on familiarity with the flight attendant position, conversations with supervisory personnel, treatment of flight attendant injuries, ergonomic studies, and research of relevant medical texts. ErgoTech, Inc. also presented the results of an ergonomic study, showing that the 5'2"' standard was job-related and justified by business necessity. The ErgoTech study incorporated "existing studies of height selection criteria and an analysis of the functional reach and force generation requirements dictated by the cabin configurations of the current NWA fleet." ErgoTech's study concluded that a taller standard of 5'3"' to 5'4"' was preferable.

To rebut these studies, appellants presented Carl Hoffmann, a PhD sociologist and expert in statistics and research methodology. Dr. Hoffmann criticized the methodology of NWA's studies, stating that none of them involved proper procedure pursuant to the EEOC Uniform Guidelines on Employment Selection Procedures. Dr. Hoffmann opined that NWA, in setting a job-related medical standard, failed to define the essential functions of the job and then to evaluate these critical job functions in light of the selection standards.

The trial court found that the 5'2"' minimum height requirement had an adverse impact on women but determined that NWA had proved that the height requirement was manifestly related to the job and significantly furthered three important business purposes: customer service, passenger safety, and reduced flight attendant injury.

The court also rejected appellants' lesser restrictive alternatives, finding that using the step rail along the passenger seat, the passenger seat itself, or a step stool was unacceptable and dangerous. The court declined to accept appellants' "reach-based test" in lieu of a height standard because a person's reach is not a "generally well-known measure, * * * contain[s] more variables, and hence more possibility for inaccurate measurement." Additionally, the court found that appellants had failed to prove that a reach-based "standard would have a significantly lesser impact on women. Given the high correlation between height and reach, a reach standard would exclude most women under 5'2"' and a significant number of taller women as well." Trading job duties was not a viable alternative because it ran contrary to the employment agreement and the bid-selection process. Likewise, the court found that redesigning the aircraft to accommodate shorter height was not feasible and would be "extraordinarily expensive." The court also refused to certify a class, finding that the appellants had failed to meet their burden of showing that the class was sufficiently numerous. NWA noticed review on the trial court's finding that its height requirement had an adverse impact on women.

ISSUES

I. Is the issue of statutory interpretation of the Minnesota Human Rights Act properly before the appellate court where no motion for a new trial was made?

II. Does the evidence support the trial court's findings that NWA's minimum height requirement for flight attendants is manifestly related to the job and/or significantly furthers an important business purpose?

III. Did the trial court err by rejecting flight attendants' lesser restrictive alternatives?

IV. Did the trial court err by finding that NWA's minimum height requirement had an adverse impact on women where actual impact in hiring is not significant because 80% of flight attendants are women and the airline hires women at a higher rate than men?

V. Did the trial court err by refusing to certify a class where the defined class numbered less than 40 members?

VI. Did the trial court err by dismissing Brenda Glapa's claim as untimely?

ANALYSIS

I.

The construction of a statute is clearly a question of law and fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). The proper standard of review however is not at issue in this appeal. Rather appellants raise a statutory construction argument requiring this court to determine whether the issue is within our scope of review.

Appellants claim that the trial court misread the Minnesota Human Rights Act (MNHRA) in light of federal case law and therefore misapplied the dual standard provided by Minn.Stat. § 363.03, subd. 11 (1992). NWA argues that appellants' statutory construction argument is outside this court's scope of review because appellants did not raise the issue in the trial court and failed to move for a new trial.

Generally on appeal from a judgment where no motion for a new trial was made, "the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment." Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). A post-trial motion for a new trial raising individual errors allegedly occurring at trial "is a prerequisite to appellate review of those errors." Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn.1986). The Sauter court elaborated that "matters such as trial procedure, evidentiary rulings, and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters were assigned as error." Id.

Nonetheless, the court of appeals has conducted de novo review of cases involving "questions of law" even absent a new trial motion. County of Isanti v. Peterson, 469 N.W.2d 467, 469 (Minn.App.1991) (interpretation of an ordinance is a question of law and hence reviewable even without a new trial motion); accord Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 124 (Minn.App.1992), pet. for rev. denied (Minn. Apr. 29, 1992); Schmidt v. St. Paul Fire...