Rosenfeld v. Southern Pacific Company, Civ. No. 67-1377-F.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: FERGUSON
• Citation: 293 F. Supp. 1219
• Parties: Leah ROSENFELD, Plaintiff, v. SOUTHERN PACIFIC COMPANY, a Delaware corporation, and Transportation-Communication Employees Union, and State of California; Department of Industrial Relations, Division of Industrial Welfare, and Industrial Welfare Commission, Defendants.
• Docket Number: Civ. No. 67-1377-F.
• Decision Date: 25 November 1968

293 F. Supp. 1219

Leah ROSENFELD, Plaintiff,
v.
SOUTHERN PACIFIC COMPANY, a Delaware corporation, and Transportation-Communication Employees Union, and State of California; Department of Industrial Relations, Division of Industrial Welfare, and Industrial Welfare Commission, Defendants.

Civ. No. 67-1377-F.

United States District Court C. D. California.

November 22, 1968.

Supplemental Findings of Fact and Conclusions of Law November 25, 1968.

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COPYRIGHT MATERIAL OMITTED

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Gang, Tyre & Brown, Hermione K. Brown, Frank G. Wells, Hollywood, Cal., and Louis M. Brown, Century City, Cal., for plaintiff

William R. Denton and Thomas H. Gonser, San Francisco, Cal., Randolph Karr, Los Angeles, Cal., Bodle, Fogel, Julber & Reinhardt, Los Angeles, Cal., Schoene & Kramer, Washington, D. C., Thomas C. Lynch, Atty. Gen., of Cal., Jay S. Linderman, Deputy Atty. Gen., San Francisco, Cal., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FERGUSON, District Judge.

This cause came on to be heard on plaintiff's Motion for Summary Judgment in favor of plaintiff and against defendant Southern Pacific Company, a Delaware corporation, on September 10, 1968, before the above-captioned Court, the Honorable Warren J. Ferguson, Judge presiding; * * * and on defendant Southern Pacific Company's Motion for Reconsideration, Motion to Stay Injunctive Order, and Objections to Findings of Fact and Conclusions of Law, on the 21st day of October, 1968, before the above-captioned Court, the Honorable Warren J. Ferguson, Judge presiding; * * * and the Court having considered all of the documents filed with respect to said motions, the

293 F. Supp. 1222

pleadings, affidavits, memoranda, agreed facts and stipulations on file and entered into in this action, and having made an Order adding the State of California as a party defendant, and having made an Order that, pursuant to stipulation of the parties, the within action is deemed an action for Declaratory Relief in addition to an action for the relief previously requested, and having heard and considered the arguments of counsel, and the Court being fully advised in the premises, now makes its Findings of Fact and Conclusions of Law, as follows

FINDINGS OF FACT

1. Plaintiff is a woman. At all times since October 25, 1944, plaintiff has been employed by defendant Southern Pacific Company, a Delaware corporation (hereinafter referred to as "Company").

2. In March, 1966, an opening occurred in the position of Agent-Telegrapher at defendant Company's facilities at Thermal, California (hereinafter referred to as the "Thermal position"). Plaintiff placed a timely bid for the Thermal position. (A copy of plaintiff's bid is annexed as Exhibit A to plaintiff's Answers to Defendant's Interrogatories to Plaintiff hereinafter referred to as "Plaintiff's Answers").

3. On March 21, 1966, plaintiff was denied the Thermal position by defendant Company (Exhibit B annexed to "Plaintiff's Answers").

4. At all times herein relevant, plaintiff has been a member of defendant Transportation-Communication Employees Union (hereinafter referred to as "Union"). During all times relevant hereto Union has been the duly designated and authorized collective bargaining representative for certain employees of defendant Company, including plaintiff. Union is a standard railway labor organization, organized pursuant to the Railway Labor Act (45 U.S.C. Sections 151-164). Union represents persons who are members of the so-called station, tower and telegrapher crafts who are employed by defendant Company, as well as by other carriers throughout the United States subject to the Railway Labor Act.

5. At all times herein relevant, there has been in effect between defendant Company and Union a Collective Bargaining Agreement (hereinafter referred to as the "Collective Bargaining Agreement"), Rule 19, Section (a) of which provides as follows:

"Employes shall be regarded as in line for promotion, advancement depending upon faithful discharge of duties and capacity for increased responsibility. Where ability is sufficient, seniority shall govern."

6. Plaintiff was the most senior employee bidding for the Thermal position. Plaintiff was fully qualified for the Thermal position by all standards established by the Collective Bargaining Agreement. Plaintiff was fully qualified for the Thermal position by all standards established by defendant Company, except that plaintiff is a female. Plaintiff is fully qualified to perform the services required by the Thermal position including the overtime work and physical duties required for said position.

7. A male employee, with less seniority than plaintiff, was assigned to the Thermal position on or about March 21, 1966.

8. None of the parties hereto commenced grievance procedures under the Collective Bargaining Agreement; any attempt to do so was without legal effect and any such attempt was abandoned by plaintiff before a final decision was reached, in favor of proceedings under Title VII of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000e through 2000e-15).

9. At no time did defendant Company test or evaluate plaintiff's ability to perform the work required by the Thermal position. The sole basis for defendant Company's refusal to assign plaintiff to the Thermal position was that, by reason

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of plaintiff's sex, her assignment to that position would

(i) Violate Section 1350 of the California Labor Code (relating to number of hours per day and per week of employment), and Section 1251 of the California Labor Code and paragraph 17 of the California Industrial Welfare Commission Order No. 9-63 Regulating Wages, Hours, and Working Conditions for Women and Minors in the Transportation Industry (referring to the number of pounds a female employee may be required to lift). For convenience, said Code sections and said Regulation are separately and collectively hereinafter referred to as the "California hours and weights legislation".

(ii) Be contrary to the exercise of the Company's discretion as an employer.

10. Plaintiff contends that the provisions of California Labor Code Sections 1171 through 1256 and 1350 through 1357 and the administrative regulations issued under or pursuant thereto (including but not limited to paragraph 17 of the California Industrial Welfare Commission Order No. 9-63 Regulating Wages, Hours, and Working Conditions for Women and Minors in the Transportation Industry) do not create a bona fide occupational qualification within the meaning of Section 703 of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e-2(e)) and said legislation and regulations discriminate against women on account of sex, contrary to the provisions of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000e through 2000e-15). Defendants contend that said legislation and regulations do create a bona fide occupational qualification within the meaning of Section 703 of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e-2 (e)) and are not contrary to the provisions of Title VII of the Civil Rights Act of 1964.

11. On May 31, 1966, plaintiff filed a written charge under oath with the Equal Employment Opportunity Commission (hereinafter referred to as the "EEOC"), pursuant to Section 706(a) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e-5(a)) alleging that defendant Company's refusal to assign her to the Thermal position constituted discrimination against her on the basis of sex (Exhibit F annexed to Plaintiff's Answers). Plaintiff's complaint was filed within 90 days after plaintiff was denied the Thermal position.

12. On June 29, 1966, a copy of the charge of discrimination was served on defendant Company.

13. On August 20, 1967, plaintiff received notice from the EEOC of its Decision based upon the charge filed by plaintiff. (By stipulation of the parties, the Decision is included in evidence herein, a copy thereof being attached as Appendix A to the Brief of the United States Equal Opportunity Employment Commission as Amicus Curiae and Appendices, and is hereinafter referred to as the "EEOC Decision".) The EEOC Decision concluded that the Commission would make no determination regarding the merits of plaintiff's charges and advised plaintiff of her right to bring suit within 30 days under Title VII of the Civil Rights Act of 1964.

14. This action was brought within 30 days of receipt by plaintiff of the EEOC Decision.

15. The duties required by the Thermal position are not such as to create a bona fide occupational qualification based upon sex within the meaning of Section 703 of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e-2(e)).

16. At no time did plaintiff have control over, nor was plaintiff at any time responsible for, the failure, if any, of the EEOC to attempt to obtain voluntary compliance by defendant Company with the Civil Rights Act of 1964 pursuant to Sections 706(a) and 706(e) (42 U.S.C. Section 2000e-5(a) and (e)) thereof, or to act within the time period

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provided in Section 706(e) (42 U.S.C. Section 2000e-5(e))

17. Defendant Company did not rely on any written interpretation or opinion of the Commission within the meaning of Section 713 of Title VII of the Civil Rights Act of 1964 (42...