Roberts v. Western Airlines

Decision Date12 October 1976
Docket NumberNo. C-71-1194-CBR.,C-71-1194-CBR.
Citation425 F. Supp. 416
CourtU.S. District Court — Northern District of California
PartiesShannon ROBERTS, aka Shannon Kimball, on behalf of herself and others similarly situated, Plaintiff, v. WESTERN AIRLINES et al., Defendants.


Barbara Ashley Phillips, Carter, Cook, Phillips & Voltz, San Francisco, Cal., for plaintiff.

Edwin L. Currey, Jr., Gilmore F. Diekmann, Jr., Bronson, Bronson & McKinnon, San Francisco, Cal., for defendant Western Airlines.

John Paul Jennings, John Francis Henning, Jr., Jennings, Gartland & Tilly, San Francisco, Cal., for defendants B.R.A.C. and B.R.A.C. # 3001.


RENFREW, District Judge.

This is an action charging sex discrimination in the employment practices of Western Airlines, Inc. ("Western"), the Brotherhood of Railway and Airline Clerks ("B.R.A. C."), and the Brotherhood of Railway and Airline Clerks, Local # 3001 ("B.R.A.C. # 3001"). Plaintiff Shannon Roberts, suing on behalf of herself and others similarly situated, seeks relief against Western under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Supp. II, 1972), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). Plaintiffs seek relief against B.R.A.C. and B.R.A.C. # 3001 under Title VII.1 Jurisdiction is alleged to exist under 28 U.S.C. § 1337 and 42 U.S.C. § 2000e-5(f) (Supp. II, 1972).

Plaintiff Shannon Roberts filed a charge with the Equal Employment Opportunity Commission ("EEOC") on March 2, 1970, alleging that Western had discriminated against her because of her sex. The EEOC notified Roberts of her right to sue on May 21, 1971, and plaintiff filed this suit against Western on June 18, 1971. Roberts's EEOC charge against B.R.A.C. # 3001 was filed on June 17, 1971, and her right-to-sue notice was issued on September 30, 1971. Roberts amended her complaint against Western on October 26, 1971, at which time she joined B.R.A.C. and B.R.A.C. # 3001 as co-defendants.


On May 31, 1974, the Court held that plaintiffs could tentatively maintain this suit as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class was defined as "all women who were employed on or after December 1, 1969 by defendant Western Airlines as senior or regular Customer Service Representatives in Passenger Service who were members of B.R.A.C. subject to that certain agreement between Western Airlines and B.R.A.C. effective October 1, 1969." For purposes of this decision, the Court will establish an "equal employment opportunities" subclass consisting of all female Customer Service Representatives employed by Western during the period December 2, 1969 through August 17, 1970, in California, Nevada, Oregon, or Utah who were members of B.R. A.C. subject to that certain agreement between Western and B.R.A.C. effective October 1, 1969.

Plaintiffs also seek to recover damages from Western for violation of the Equal Pay Act, 29 U.S.C. § 206(d), which forbids employers paying unequal wages for equal work because of an employee's sex. Plaintiffs may not bring such a suit as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 29 U.S.C. § 216(b) provides that an action against any employer for violation of § 206 may be maintained by an employee on behalf of himself and other employees similarly situated, but that "no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Rule 23(c)(3), on the other hand, provides that all members of a class to be determined by the court are bound by a decision in a Rule 23(b)(2) class action, even if they are not notified of the suit. Since a class action may be maintained for a violation of 29 U.S.C. § 206 only if all the members have "opted in," and since a Rule 23 class action does not give plaintiffs that option, an Equal Pay Act suit may not be maintained as a class action under Rule 23. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5 Cir. 1975); Sims v. Parke Davis & Co., 334 F.Supp. 774, 780-781 (E.D.Mich.), aff'd 453 F.2d 1259 (6 Cir. 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972).

Plaintiffs have requested that Western employees be allowed to opt into this suit under § 216(b) after the case is decided on the merits. While § 216(b) does not specify when an employee must become a party,2 individuals should not be allowed to do so after judgment has been entered. Such a practice would allow employees to be bound when a judgment is advantageous and to be free when it is unfavorable. One of the primary purposes of the 1966 amendments to the Federal Rules of Civil Procedure was to eliminate this type of "one way intervention" in spurious class actions under the then-existing Rule 23,3 and this Court will not encourage similar conduct under the Fair Labor Standards Act. Accordingly, the class action asserted against Western for violation of 29 U.S.C. § 206(d) will be dismissed.


In 1972, Congress amended § 706 of the Civil Rights Act of 1964 to provide for a two-year limitation on the period for which back pay may be awarded under Title VII.4 Prior to that time, Title VII did not specify the period for which back pay could be awarded.5 Because of the potentially disastrous economic impact on employers, federal courts were loath to hold defendants liable for back pay accrued during the entire period since the effective date of the 1964 Civil Rights Act (July 2, 1965). Instead, courts characterized back pay under Title VII as a federal right for which Congress did not prescribe a "statute of limitations," and applied the state statute of limitations that would have been appropriate had the suit been brought in state court. E. g., United States v. Georgia Power Company, 474 F.2d 906, 922-924 (5 Cir. 1973). See Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

The 1972 amendment, however, makes reliance upon state statutes of limitations unnecessary. In Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 522 (6 Cir. 1976), the Sixth Circuit rejected the defendant's contention that a Title VII claim for back wages should be governed by the Tennessee statute of limitations:

"Title VII establishes its own statute of limitations, and state law is irrelevant in determining whether a private individual has lost his right of action under Title VII through the passage of time. * * *
"* * * Under the 1972 amendments, which apply to the case at bar, `back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.' 42 U.S.C. § 2000e-5(g). Thus state law does not apply to determine the timeliness of the action or to limit the relief available to Draper."

Accord, Stroud v. Delta Airlines, Inc., 392 F.Supp. 1184, 1190 n. 3 (N.D.Ga.1975). As the Supreme Court stated in Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946):

"If Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive."6

Because plaintiffs filed this action prior to 1972, the two-year federal period will govern only if it is to be applied retroactively. The Court of Appeals for the Fifth Circuit has held that suits in which judgments were entered before the effective date of the 1972 amendment (March 24, 1972) should be governed by the applicable state statute of limitations.7 Courts in at least two cases where judgment was entered after March 24, 1972, have also held that the federal period does not apply because the action was filed before the effective date of the 1972 amendment.8 None of these decisions has given any rationale for refusing to apply the federal period of recovery in cases decided after March 24, 1972. In fact, they have not even considered the question.

It is well settled that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) (retroactive application of 20 U.S.C. § 1617 (Supp. II, 1972) which provides for attorneys' fees in school desegregation cases). The Court will apply the two-year period of recovery to this case, which was pending in court in March 1972, because doing so will not result in injustice to the parties and is consistent with the purpose of the 1972 amendment.

Most of the litigation surrounding the retroactivity of the 1972 amendment has concerned § 11, which makes Title VII applicable to employment discrimination by the federal government. While the Court of Appeals for the Sixth Circuit has held that § 11 is not to be applied retroactively, every other circuit court considering the question has held that the section should be so applied and the Supreme Court has now vacated the Sixth Court decision.9 Each circuit court has emphasized that no injustice will result from retroactive application because "the government has no vested right to discriminate against its employees on the basis of race." Koger v. Ball, 497 F.2d 702, 706 (4 Cir. 1974).10

In Davis v. Valley Distributing Company, 522 F.2d 827 (9 Cir. 1975), the Court of Appeals for this circuit accorded retroactivity to the same section of the 1972 amendment involved in this case. In Davis an employee had filed his claim with the EEOC on March 14, 1972, 135 days after the alleged act of discrimination. At the time Davis filed his charge, Title VII required such complaints to be filed within 90 days. The court held that Davis's claim was within the 180 days allowed by the 1972 amendment, and that the new time limit should...

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