Schaeffer v. San Diego Yellow Cabs, Inc.

• Decision Date: 20 June 1972
• Docket Number: No. 71-1442,71-1244.,71-1442
• Citation: 462 F.2d 1002
• Parties: Mary Lou SCHAEFFER, Plaintiff-Appellant, v. SAN DIEGO YELLOW CABS, INC., etc., et al., Defendants-Appellees. Mary Lou SCHAEFFER, Plaintiff-Appellee, v. SAN DIEGO YELLOW CABS, INC., etc., et al., Defendants, Division of Industrial Welfare & Industrial Welfare Commission of the State of California, Intervenor Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

462 F.2d 1002 (1972)

Mary Lou SCHAEFFER, Plaintiff-Appellant, v. SAN DIEGO YELLOW CABS, INC., etc., et al., Defendants-Appellees.

Mary Lou SCHAEFFER, Plaintiff-Appellee, v. SAN DIEGO YELLOW CABS, INC., etc., et al., Defendants, Division of Industrial Welfare & Industrial Welfare Commission of the State of California, Intervenor Defendant-Appellant.

Nos. 71-1442, 71-1244.

United States Court of Appeals, Ninth Circuit.

June 20, 1972.

Blanche Bersche, Deputy Atty. Gen., Evelle J. Younger, Atty. Gen., San Francisco, Cal., James K. Smith (argued), Josiah L. Neeper, of Gray, Cary, Ames & Frye, San Diego, Cal., Bodle, Fogel, Jubler & Reinhart, Los Angeles, Cal., for appellant.

Charles L. Reischel (argued), Julia P. Cooper, John de J. Pemberton, Deputy

Gen. Counsel, Stanley P. Hebert, Gen. Counsel, Washington, D. C., amicus curiae for appellant.

Anthony Glassman (argued), of Miller, Glassman & Browning, Beverly Hills, Cal., for San Diego Yellow Cabs, Inc. and others.

Before BARNES and WRIGHT, Circuit Judges, and BYRNE, District Judge.^*

BARNES, Circuit Judge:

Plaintiff Mary Lou Schaeffer brought this action against her employer, San Diego Yellow Cabs, Inc. (hereinafter the Company), under the Equal Employment Opportunities Act, Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. Plaintiff alleged that the Company had unlawfully discriminated between the sexes by refusing to permit her to work as many hours per day as male employees were permitted to work.

The jurisdiction of the lower court was based upon 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f). Jurisdiction in this court exists under 28 U.S.C. § 1291.

Plaintiff Schaeffer was employed by the defendant Company as a taxicab driver on March 18, 1966. In October of 1966, Schaeffer requested that she be permitted to work 9-hour days. The Company refused as, at that time, it did not permit any of its female drivers to work more than 8-hour days, though male drivers were allowed to work 9-hour days. This limitation on female drivers was in compliance with Section 1350 of the California Labor Code, and Transportation Order No. 9-68 of the California Industrial Welfare Commission, 8 Cal.Admin. Code § 11460.

In January of 1967, Schaeffer filed charges of discrimination with the Equal Employment Opportunities Commission (hereinafter the Commission or E.E.O.C.). Her charge was rejected as the Commission concluded that the California statutes were valid. In January of 1968, she filed another charge with the Commission on the same grounds. While this second charge was pending, and on November 22, 1968, the case of Rosenfeld v. Southern Pacific Company, 293 F.Supp. 1219 (C.D.Cal.1968) was decided. Rosenfeld dealt with sex discrimination in employment, and held that various provisions of the California Labor Code, including § 1350, were invalid as conflicting with the Equal Employment Opportunities Act. On January 22, 1969, the Commission reversed its previous ruling and found that there was reasonable cause to believe that the Company was committing unlawful employment practices.

In September of 1969, Schaeffer received notice from the Commission that attempts to secure voluntary compliance had failed, and that she could institute a civil action. On October 7, 1969, the Company announced to its female drivers that they would be allowed to work full 9-hour days like the male drivers.

On the same day, plaintiff Schaeffer filed her complaint. She named as defendants the Company and her union, the Transportation and Allied Workers of California.¹ She sought in her complaint, one, a declaration that Sections 1350 and 1350.5 of the California Labor Code, and Transportation Order No. 9-68 of the California Industrial Welfare Commission were invalid; two, an injunction directing the Company to allow her to work 9-hour days; three, damages for the amount of pay she would have earned if she had been permitted to work 9-hour days since October 15, 1966; and four, attorney's fees and costs.

Following a trial, the court below entered its judgment declaring the California "hours" laws and regulations invalid, and awarding plaintiff $600 attorney's fees. The court denied damages for the lost work time, and refused to issue an injunction in light of the Company's change in policy. Schaeffer filed appeal No. 71-1442, challenging the refusal to award damages and the allowance of only $600 in attorney's fees. The Commission was permitted to file an amicus curiae brief.

The Division of Industrial Welfare and the Industrial Welfare Commission of the State of California (hereinafter California) then sought to intervene as defendants in order to attack the court's rulings on the validity of the statutes and regulations. Eventually, the court granted the motion to intervene, but denied the request for relief. California then filed appeal No. 71-1244.

I. Appeal No. 71-1244

After judgment was entered by the district court and the appeals were filed, this court on June 1, 1971, handed down its opinion in Rosenfeld v. Southern Pacific Company, 444 F.2d 1219 (9th Cir. 1971). In Rosenfeld, we held that, under the provisions of 42 U.S.C. § 2000e-7, state legislation could not justify discriminatory treatment of women in employment practices which conflicted with federal law. The State of California decided not to appeal this decision to the United States Supreme Court. Instead, it announced on June 24, 1971, that it would no longer enforce the maximum hours provisions of Sections 1350 and 1350.5.

Consequently, the State of California informed this court that in this case it no longer desired to press its claim that those sections of the Labor Code did not conflict with Title VII of the Civil Rights Act of 1964, and withdrew any claim the state statutes are valid. However, California wishes to continue its attack on the jurisdiction of the district court to declare Sections 1350 and 1350.5 invalid. California argues that no case or controversy existed in the district court on this issue as neither the Company nor the union, the two original defendants, were maintaining the validity of those statutes. It was only after the judgment was entered by the district court, and California intervened, that any arguments in defense of the statutes were presented.

We decline to reach the issue urged by California on appeal. By conceding that the state maximum hours statutes in question conflict with federal law, California has effectively mooted the issue of the district court's jurisdiction to rule on the validity of these statutes.

While plaintiff Schaeffer is named as appellee in appeal No. 71-1244, she no longer is directly interested in the question of the jurisdiction of the court below to determine the validity of the California statutes. No one challenges the jurisdiction of that court to rule upon Schaeffer's claim for damages. As the invalidity of the California statutes is now admitted, any action by this court, either affirming or reversing the district court's jurisdiction to consider the issue of the validity of the California statutes, cannot affect Schaeffer's appeal on the issues of damages.

California's sole purpose in pursuing this appeal is to obtain a ruling on the scope of a district court's jurisdiction to declare a state statute invalid when the state is not joined as a party. If we made such a ruling, it would be merely an advisory opinion, for no "live" controversy exists between California and Schaeffer.

"A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. Local No. 8-6, Oil, Chemical and Atomic Workers, etc. v. Missouri, 361 U.S. 363, 367, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960)." Rosenfeld v. Southern Pacific Company, 444 F.2d at 1221.

Therefore, we dismiss appeal No. 71-1244 on the grounds that it does not present a case or controversy between the parties to this action.

II. Appeal No. 71-1442

A. BACK PAY

Plaintiff Schaeffer contends that under § 706(g) of Title VII of the Civil Rights Act of 1964,² she is entitled to back pay for the hour per day she was prevented from working by her employer. The amicus brief filed by the Commission deals almost exclusively with material supporting Schaeffer's damages claim.

Liability under § 706(g) only attaches to an employer who intentionally engages in an unlawful employment practice. We agree with the Fifth, Seventh, and Tenth Circuits, and adopt a broad interpretation of the term "intentionally" to include all employment practices engaged in deliberately rather than accidentally. Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 996 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201 (7th Cir. 1971), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 250 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); see Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The practice of the Company in allowing men to work longer than women comes within this interpretation of § 706(g). The fact that the Company may have been relying on a state statute does not make their actions any less of a violation under § 706(g). LeBlanc v. Southern Bell, 333 F.Supp. 602 (E.D.La.1971).

However, the conclusion that the company violated § 706(g) does not automatically entitle Schaeffer to the damages she demands. A court may enjoin and may award damages, but should only order affirmative action, such as back pay, when such relief is "appropriate". In the case of damages of this nature, a court must balance the various equities between the parties and decide upon a result which is consistent with the purposes of the Equal Employment Opportunities Act, and the fundamental concepts of fairness.

The...