Sears v. Atchison, Topeka & Santa Fe Ry., Co., s. 82-2549

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, BARRETT and LOGAN; LOGAN
Citation749 F.2d 1451
Parties36 Fair Empl.Prac.Cas. 783, 35 Empl. Prac. Dec. P 34,848, 53 USLW 2324, 40 Fed.R.Serv.2d 1081 Joe Vernon SEARS, an individual, in person and for all other persons similarly situated, Plaintiffs-Appellees, and The Brotherhood of Sleeping Car Porters, and Ray E. Landrum, et al., Intervenors-Plaintiffs, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY, COMPANY, Defendants, United Transportation Union, successor to Brotherhood of Railway Trainmen, a labor organization, Defendants-Appellants, Mildred COLLINS, Executrix of the Estate of James Collins, Jr., Deceased, Plaintiff-Appellee, v. UNITED TRANSPORTATION UNION, a successor to Brotherhood of Trainmen, a labor organization, Defendant-Appellant.
Docket NumberNos. 82-2549,83-1726 and 83-1736,82-2550,s. 82-2549
Decision Date10 December 1984

William Sitzer, St. Louis, Mo. (William B. Smith of Dubail, Judge, Kilker, O'Leary & Smith, St. Louis, Mo., and E. Lee Kinch of Ratner, Mattox, Ratner, Ratner & Barnes, Wichita, Kan., with him on the brief), for defendant-appellant United Transp. Union.

Terry G. Paup, Wichita, Kan. (Jim L. Lawing, Wichita, Kan., and Lee H. Woodard of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan., with him on the brief), for plaintiffs-appellees.

Before SETH, BARRETT and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

The United Transportation Union appeals from the district court's order on remand concerning damages in this Title VII action. Appellee Joe Sears filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) in March 1966 against the Atchison, Topeka & Santa Fe Railway (Santa Fe) and the United Transportation Union's predecessor. Once the EEOC issued a right to sue letter, Sears filed this class action on behalf of the railroad's train porters alleging a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17, based on discrimination resulting from the railroad's segregated job structure for brakemen (whites) and train porters (blacks).

The trial court ruled that Santa Fe and the union were liable to part of the class of train porters and awarded damages. Sears v. Atchison, Topeka & Santa Fe Ry., 454 F.Supp. 158, 180 (D.Kan.1978) (order concerning liability); Id., 19 Fair Empl.Prac.Cas. (BNA) 1007, 1014-15 (D.Kan. Oct. 23, 1978) (order concerning seniority and back pay relief). This court reviewed that decision, affirming it in part, reversing it in part, and remanded the case to the trial court to fashion a back pay award for the entire class. Sears v. Atchison, Topeka & Santa Fe Ry., 645 F.2d 1365 (10th Cir.1981). After we denied the union's petition for rehearing the United States Supreme Court denied certiorari. 456 U.S. 964 (1982). On remand the district court issued an order responding to the directives in our opinion, Sears v. Atchison, Topeka & Santa Fe Ry., 30 Fair Empl.Prac.Cas. (BNA) 1084 (D.Kan. Dec. 1, 1982), from which the union has appealed.

On appeal the union asserts the following: (1) that the court of appeals erred in its prior decision in finding the union liable for back pay and attorney's fees; (2) that the district court erred in holding the union liable to class members whom Santa Fe did not have to pay under a court-approved settlement agreement between Santa Fe and the class and in not limiting the union's liability to its relative degree of fault; (3) that the district court erred in permitting Sears to represent the entire class, rather than creating a separate subclass with its own class representative to represent the train porters who had a seniority date after April 20, 1942, and who were demoted from train porters to chair car attendants pursuant to a 1959 National Railroad Adjustment Board award; and (4) that the district court erred in including a tax component in the back pay award to class members. We reject each of these contentions and affirm the district court's judgment.


The union contends that we must reverse our prior judgment upholding the union's liability to the class because the decision was inconsistent with four recent Supreme Court cases: General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982); Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); and American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). We will not dignify this argument by any extended discussion. We have examined the decisions and find nothing in them to convince us that we erroneously decided the earlier appeal. We also note that all of those cases were argued in the Supreme Court before it declined, on May 3, 1982, to review our prior opinion; two of the cited cases were decided before the Supreme Court denied certiorari and the other two were decided before the Court's term ended two months later. Under these circumstances we believe that if the Supreme Court had thought any of those decisions required reconsideration of our opinion, it would have granted certiorari and summarily remanded the case for our reconsideration in light of its determinations.


Relatively early in this litigation Santa Fe entered into a court-approved settlement agreement with the class that covered back pay relief and attorney's fees. See Order Approving Compromise and Dismissal of Back Pay and Attorney's Fees Claim (Sept. 8, 1975), R. III, 1094. Santa Fe remained in the litigation for determination of issues concerning its future practices and the seniority relief to be granted to current Santa Fe employees who were members of the class. The court explicitly approved the provision in the settlement agreement releasing Santa Fe from having to pay back pay and attorney's fees to porters who retired, became disability annuitants or died prior to May 1, 1972. R. III, 1096. Paragraph 9 of the settlement order expressly provided, however, that "this Order does not affect the liability issue of the United Transportation Union for back pay relief and attorney's fees [under Title VII]." R. III, 1097. In its initial decision on damages, the district court found that Santa Fe was not liable for additional money damages to any plaintiff, beyond what it had paid in its settlement, but that the union was liable "for any additional monetary loss suffered by the train porter subclass members over and above the Santa Fe settlement...." Sears, 19 Fair Empl.Prac.Cas. (BNA) at 1015.

Following our decision in the first appeal, the district court ordered the union to pay relief to a class of plaintiffs that included former porters or their representatives who had retired, become disability annuitants, or died prior to May 1, 1972--persons denied payment under the settlement agreement with Santa Fe. The court rejected the union's arguments that it was unfair for the union to be held liable to these persons when Santa Fe had escaped liability. Sears, 30 Fair Empl.Prac.Cas. (BNA) at 1086. The union makes the same unfairness argument on appeal. It also contends that the district court should have determined the relative fault of Santa Fe and the union and required the union to pay only that proportion of the total back pay award reflecting the union's degree of fault.

There might be merit in the contentions if this were an ordinary case of joint tortfeasors who were liable to each other for contribution. See Restatement (Second) of Torts Secs. 886A & comment m, at 337, 343-44 (1979) (listing three alternative solutions to the problem created by settlement with and release of one tortfeasor with respect to the right of other tortfeasors to seek contribution from the one released). This case is a Title VII action, however. Although the Supreme Court has never considered the situation before us, it has decided a closely analogous case. It refused to find a right of contribution for an employer held liable under Title VII against a union that was not joined in the original suit but nevertheless was partly responsible for the discriminatory treatment. See Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 98, 101 S.Ct. 1571, 1584, 67 L.Ed.2d 750 (1981). The Supreme Court stated that it was unwilling to create a contribution remedy for a statutory violation when Congress had not manifested any intent that a right of contribution should exist. Id. at 94-95, 97, 101 S.Ct. at 1582-1583, 1583. Cf. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) (antitrust defendants not entitled to contribution from coconspirators). Further, the wrong that the union committed was a separate wrong from that of the employer, defined by separate subsections of the statute. See 42 U.S.C. Sec. 2000e-2(a), (c). Cf. Dobson v. Camden, 725 F.2d 1003, 1005-06 (5th Cir.1984) (en banc) (no problem arises requiring contribution or credit for settlement in Sec. 1983 suit when no joint liability existed between codefendants).

Surely the law should encourage settlement of Title VII disputes. If we were to hold the trial court erred in not requiring further contribution from Santa Fe, or that it should have limited the union's liability to its "share" of the fault, we would discourage settlement of these cases. Santa Fe would not have settled if it had known it would still remain liable in the event the nonsettling union defendant lost the case. Similarly, the aggrieved porters also would have been unlikely to settle with Santa Fe if they risked being made less than whole because of a subsequent court finding on the union's percentage of fault. The instant case illustrates the desirability of settlement and the cruel effect of litigation delays on older class members; more than eighteen years have passed since Sears brought his complaint to the attention of the EEOC.

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