Vogel v. Trans World Airlines

• Decision Date: 02 October 1970
• Docket Number: Civ. A. No. 17706-3.
• Citation: 346 F. Supp. 805
• Parties: Juanita VOGEL, Plaintiff, v. TRANS WORLD AIRLINES, Defendant.
• Court: U.S. District Court — Western District of Missouri

346 F. Supp. 805

Juanita VOGEL, Plaintiff, v. TRANS WORLD AIRLINES, Defendant.

Civ. A. No. 17706-3.

United States District Court, W. D. Missouri, W. D.

September 25, 1970.

As Amended October 2, 1970 and May 10, 1971.

Sol M. Yarowsky, Leonard B. Rose, Kansas City, Mo., for plaintiff.

James J. Mollenkamp, Kansas City, Mo., for defendant.

MEMORANDUM FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

WILLIAM H. BECKER, Chief Judge.

This is an action under the Equal Employment Opportunity Act, Section 2000e-5, Title 42, United States Code, brought by plaintiff who charges sex discrimination in defendant's refusal to permit her to work overtime solely because of her sex. It has been agreed by the parties, and it is independently found by the Court, that plaintiff has exhausted administrative remedies as required under Section 2000e-5, supra.¹

The facts in this case, which have been stipulated by the parties, are as follows. Plaintiff is a fully qualified mechanic who had the seniority which entitled her to work overtime during the week ending February 12, 1967, and other weeks subsequent thereto, but was denied by defendant (after her request) the opportunity to work more than 54 hours weekly because of her sex. On the other hand, male employees of defendant who had less seniority than plaintiff were permitted to work more than 54 hours in such weeks. In the assignment of overtime work to its female employees in Missouri, defendant at all relevant times uniformly limited their hours of employment to no more than nine (9) hours during any one day and to no more than 54 hours during any single week in reliance upon § 290.040 RSMo, V.A.M.S. (which limits the working hours of female employees in certain industries, including transportation and common carriers to 9 hours per day and 54 hours per week), Opinion No. 45, dated January 31, 1967, of the Attorney General of Missouri (holding that the Missouri statute creates a "bona fide occupational qualification within the meaning of Section 703(e) of Title VII of the Civil Rights Act of 1964") and the statement of the Equal Employment Opportunity Commission issued August 19, 1966 (stating that the "Commission will consider limitations or regulations imposed by state laws as a basis for application of the bona fide occupational qualification exemption" but would not currently determine the validity of state statutes.)² After the week ending February 12, 1967, there were other occasions when plaintiff worked 54 hours and requested additional overtime which was available to male employees with less seniority, but which was refused to her by reason of defendant's compliance with the Missouri statute mentioned above. As a result plaintiff lost $200.00 additional salary. Additionally, after the week ending February 12, 1967, plaintiff worked several 48 hour weeks but elected not to work the overtime which was available to her because she would not have been permitted to work in excess of 54 hours because of defendant's compliance with the Missouri statute. It is agreed that plaintiff has lost $1,500.00 in additional salary from this cause. Plaintiff therefore prays for $1,700.00 as back pay in damages. In addition, plaintiff seeks a declaratory judgment under the provisions of § 2201, Title 28, United States Code, that "plaintiff shall be considered for overtime work by defendant without regard to her sex and without regard to any limitations imposed on employers pursuant to § 290.040 RSMo., 1959, V.A.M. S. as amended"; an injunction "forever restraining and enjoining defendant in the conduct of its employment practices from relying upon, or acting under, the provisions of § 290.040 R.S. Mo.1959, V.A.M.S., as amended, or any opinion relating thereto of the Attorney General of the State of Missouri insofar as the same discriminates between men and women" and an award of her attorney's fees expended in this action.

At the outset, the issue of whether a three-judge court should be convened pursuant to § 2281, Title 28, United States Code, must be resolved. On this question, the Equal Employment Opportunity Commission, as amicus curiae, has provided a brief. The applicable statute reads as follows:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such state in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under Section 2284 of this title."

It is thus well established that under the literal wording of § 2281, a three-judge district court is required to enjoin the enforcement of a state statute "upon the ground of the unconstitutionality of such statute." It is equally well established, however, that such a court has jurisdiction only if the state statute conflicts with a provision of the Constitution other than the Supremacy Clause. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194. Section 290.040 of the Missouri Revised Statutes is possibly repugnant to the Constitution solely because, and only to the extent, that it conflicts with Title VII of the Civil Rights Act of 1964 and the Supremacy Clause. Cf. Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163.³ Further, it is found herein that no issue of the validity of the Missouri statute is raised by the facts presented. Therefore, it is concluded that a three-judge court should not be convened in this cause.

At an earlier juncture in the pretrial course of this case, defendant moved for a summary judgment under the provisions of Rule 56, F.R.Civ.P., asserting that plaintiff was denied overtime work in accordance with Section 290.040 RSMo, which prohibits the working of women in excess of 54 hours weekly, and that, in so denying overtime work to plaintiff, defendant acted in reliance on an EEOC statement issued August 19, 1966, in which the EEOC announced its intention not to invalidate state laws of this type except "in cases where the clear effect of a law in current circumstances is not to protect women but to subject them to discrimination." Although the statement was rescinded by the EEOC on February 24, 1968, defendant contends that it was in effect at the times of the alleged discriminations complained of in the case at bar. In denying the motion for summary judgment, the Court reasoned as follows:

"Defendant moves for a summary judgment. In support of that motion, defendant asserts that plaintiff was denied overtime work in accordance with Section 290.040 RSMo which prohibits the working of women in excess of 54 hours weekly, and that, in so denying overtime work to plaintiff, defendant acted in reliance on an EEOC statement issued August 19, 1966, in which the EEOC announced its intention not to invalidate state laws of this type except `in cases where the clear effect of a law in current circumstances is not to protect women but to subject them to discrimination'. Although the statement was rescinded by the EEOC on February 24, 1968, defendant contends that it was in effect at the times of the discriminations complained of in the case at bar.

"Under the controlling provision, Rule 56, F.R.Civ.P., a summary judgment may be granted if the prevailing party is entitled to judgment as a matter of law and there is no `genuine issue of material fact'. This is not the condition of the case at bar. If it can be assumed, as defendant argues, that its compliance with the Missouri statute provides a complete defense to the action in this case, a question of fact remains whether defendant did in fact act to protect plaintiff and not to subject her to discrimination. According to the charge filed by plaintiff with the Equal Employment Opportunity Commission, she was `allowed to work all overtime available if I so requested' prior to February 10, 1967, but was denied any overtime after that date. Although the applicable statute was amended in 1967 to include, among other things, certain exemptions, it appears that the statute was applicable to defendant both before and after February 10, 1967. Therefore, the statute may not have been applied to protect plaintiff and the denial of overtime work may have been imposed without reference to the state statute and to discriminate against plaintiff. These questions of fact prevent the granting of a motion for summary judgment based on the defense of refusal of overtime work in accordance with the state statute. A question of fact exists with respect to the defense of reliance upon the statement of the EEOC issued August 19, 1966. Further, it does not appear conclusively that the EEOC was erroneous in finding `probable cause' to believe that discriminatory practices existed, and that therefore defendant is entitled to judgment as a matter of law . . .."

Further, under the facts which have now been stipulated by the parties, it is clear that, even if the plaintiff might currently be denied overtime work in reliance by defendant on the Missouri statute, such a denial is not in accordance with current federal principles and that plaintiff would therefore be entitled to a declaratory judgment to that effect and an injunction restraining the further refusal, if the denial were continuing at the present time. The statute relied on by defendant, Section 290.040 RSMo, currently reads as follows:

"1. No female shall be employed, permitted, or suffered to work, manual or physical, in any manufacturing, mechanical, or mercantile establishment, or factory, workshop, laundry, bakery, restaurant, or any place of amusement, or to do any stenographic or clerical work of any character in any of the diverse kinds of establishments and places of industry, herein

...