Romasanta v. United Air Lines, Inc.

• Decision Date: 18 November 1983
• Docket Number: 82-6660 and 82-2661,Nos. 82-2647,s. 82-2647
• Citation: 717 F.2d 1140
• Parties: 32 Fair Empl.Prac.Cas. 1545, 32 Empl. Prac. Dec. P 33,830 Carole Anderson ROMASANTA, et al., and Liane Buix McDonald, on her own behalf and on behalf of all others, Plaintiffs-Appellants-Cross-Appellees, v. UNITED AIR LINES, INC., a corporation, Defendant-Appellee-Cross-Appellant, Association of Flight Attendants, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1140

717 F.2d 1140

32 Fair Empl.Prac.Cas. 1545,

32 Empl. Prac. Dec. P 33,830

Carole Anderson ROMASANTA, et al., and Liane Buix McDonald, on her own behalf and on behalf of all others, Plaintiffs-Appellants-Cross-Appellees, v. UNITED AIR LINES, INC., a corporation,

Defendant-Appellee-Cross-Appellant,

Association of Flight Attendants, Intervenor-Appellee.

Nos. 82-2647, 82-6660 and 82-2661.

United States Court of Appeals, Seventh Circuit.

Argued May 9, 1983.

Decided Sept. 21, 1983.

Rehearing and Rehearing En Banc Denied Oct. 20 and Nov. 18, 1983.

Thomas R. Meites, Meites & Frackmam, Kenneth N. Flaxman, Chicago, Ill., Judy Trent Ellis, E.E.O.C., Washington, D.C., for plaintiffs-appellants-cross-appellees.

Stephen B. Moldof, Cohen, Weiss & Simon, New York City, for intervenor-appellee.

Paul M. Tschirhart, United Air Lines, Inc., Chicago, Ill., for defendant-appellee-cross-appellant.

Before PELL and CUDAHY, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

PELL, Circuit Judge.

These interlocutory appeals concern the district court's determinations, following a hearing, as to the seniority relief to which former flight attendants of United Air Lines, Inc. (United), who left United because of that airline's "no-marriage" rule, are entitled upon reinstatement with the airline.

The principal issue raised on appeal is whether the district court properly applied the rule in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), in granting seniority for competitive purposes equal only to the number of days the claimants had previously been employed as flight attendants by United. On cross-appeal, United challenges the grant of seniority retroactive to date of original hire for purposes of compensation and other non-competitive benefits. Consolidated with this appeal and cross-appeal is the class' appeal from the district court's denial of injunctive relief upon United's recall in October, 1982, of 175 furloughed flight attendants.

I. BACKGROUND

A. Prior Proceedings

Prior to November, 1968, United prohibited the continued employment as a flight attendant of any female employee who married. United also employed a small number of male flight attendants who were permitted to retain their positions after marriage. On November 7, 1968, United On November 27, 1968, Mary Burke Sprogis brought suit in the Northern District of Illinois alleging that the no-marriage rule was violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e--2000e-17 (Title VII). The district court granted summary judgment in favor of Sprogis. Sprogis v. United Air Lines, Inc., 308 F.Supp. 959 (N.D.Ill.1970). That result was affirmed by a majority of this court in June, 1971. Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.1971).

and the flight attendants' union agreed to revoke this no-marriage rule. Reinstatement was offered to those flight attendants terminated because of the rule only if they had filed a grievance with the union or a complaint with the Equal Employment Opportunity Commission (EEOC).

During pendency of the Sprogis appeal, Carole Anderson Romasanta filed a class action in the Northern District of Illinois on behalf of herself and other United flight attendants terminated because of the no-marriage rule. The district court ruled that the Romasanta case should not proceed as a class action but by individual intervention of those discharged flight attendants who had either filed a union grievance or an EEOC complaint. A settlement was reached by the parties providing for reinstatement and backpay awards to the plaintiffs and a final order was entered by the district court approving the settlement.

One of the discharged flight attendants who had been excluded from the Romasanta case because of the adverse class ruling, Liane Buix McDonald (McDonald), sought to intervene to challenge the class determination. The district court denied intervention and an appeal was taken to this court. A majority of this court reversed, remanding the case with instructions to permit McDonald to intervene, to treat the case as a class action, and to fashion relief for the class. Romasanta v. United Air Lines, Inc., 537 F.2d 915, 920 (7th Cir.1976), aff'd sub nom. United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977).

On remand, the district court limited the class to persons actually discharged by United. Those who had resigned because of the rule were excluded. This court again reversed, holding that resigners were entitled to be class members and noting that the class might include all persons who left United because of the rule within the period from ninety days before the filing of EEOC charges to the date on which the no-marriage rule was abolished. McDonald v. United Air Lines, Inc., 587 F.2d 357 (7th Cir.1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979).

On remand, the Association of Flight Attendants (AFA), the union representing incumbent flight attendants at United, was permitted to intervene. After notice was given, approximately 1,750 potential class members were identified. Before the commencement of individual hearings to determine actual class membership, United and the AFA successfully urged that the district court hold an evidentiary hearing to determine whether reinstatement with retroactive seniority to the date of original hire would result in an "unusual adverse impact" on incumbent flight attendants, see, Franks v. Bowman Transportation Co., 424 U.S. 776, 779 n. 41, 96 S.Ct. at 1270, 1271 n. 41 (1976). In the course of the ensuing hearing, the class plaintiffs clarified that they sought reinstatement only as openings among the ranks of flight attendants occurred (openings proposal) rather than immediate reinstatement of the entire class.

In a memorandum and order issued January 8, 1982, the district judge found the openings proposal, as conditioned by the class, to be unworkable. He also found that "unusual adverse impact" would surely result if the class members were reinstated immediately with full retroactive seniority for competitive purposes. The relief granted credited the class members with seniority based on the number of days they had actually worked at United as flight attendants for those benefits requiring competition among flight attendants. The district judge granted the claimants seniority from date of original hire for those benefits representing a cost to the airline but not impacting In August, 1982, United indicated that it would recall 175 flight attendants from furlough on October 1. The plaintiff class sought to enjoin this recall, believing that it prejudiced the seniority rights awarded claimants pursuant to the order of July 12, 1982. The district court denied the requested stay, refused to require the recall of claimants rather than furloughees, and declined to rule on the claimant class' alternative request that they be permitted to accrue seniority during the period of the recall. The plaintiffs' appeal from this ruling, No. 82-2647, has been consolidated with Nos. 82-2660 and 82-2661 for purposes of argument and decision.

directly on incumbent flight attendants. The class immediately filed a motion to reconsider, urging that they at least be accorded "relative seniority" for competitive purposes (relative seniority proposal). Under this proposal, a class member whose seniority for competitive purposes placed her at the ninetieth percentile when she left United would be inserted into the current seniority list at that same percentile. This motion was denied without opinion. On July 12, 1982, the district judge issued an order implementing his earlier memorandum and order. He certified for immediate appeal the question whether less than full retroactive seniority could be granted class members for competitive purposes. See 28 U.S.C. Sec. 1292(b). The class' appeal on that issue, No. 82-2660, and United's cross-appeal pertaining to the award of full retroactive seniority for purposes of compensation and other company benefits, No. 82-2661, followed.

B. Factual Background Relevant to Reinstatement Issues

1. Competitive and Company Seniority.

Seniority is extremely relevant to the flight attendant position. The term "seniority" is used in several different contexts. The first, company seniority, determines a flight attendant's number of vacation days and the number of passes to which he or she is entitled, as well as other similar benefits provided by the airline. Company seniority reflects the employee's total service with the airline. Because all of the matters determined by company seniority represent a cost to the airline, but are not otherwise limited in their availability, the amount of company seniority awarded the class members is extremely important to United but has little direct impact on incumbent flight attendants.

Classification seniority, on the other hand, reflects the amount of time an employee has worked as a flight attendant. Classification seniority is utilized in an absolute sense to determine the flight attendant's salary. Like company seniority, the classification seniority awarded class members for purposes of salary calculation is of primary concern to United and of minimal concern to incumbent flight attendants.

Classification seniority also is utilized in a relative sense and is pertinent to those aspects of the flight attendant job that require United to distinguish among the flight attendants. For instance, the airline maintains eleven separate "domiciles" to which flight attendants are assigned. Some, like Seattle and Miami, are considered far more attractive by flight attendants than others, such as Chicago. Because flight attendants bid for domiciles based on their classification seniority, the flight attendant with the greatest classification seniority relative to other flight attendants, has the best chance of being stationed where ...