decided: April 4, 1974.
SARAH M. BRYAN, ANNA MAE DEMEO AND ELVIRA KISSEL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
PITTSBURGH PLATE GLASS COMPANY, (PPG INDUSTRIES, INC.) AND UNITED GLASS AND CERAMIC WORKERS OF NORTH AMERICA, AFL-CIO AND UNITED GLASS AND CERAMIC WORKERS OF NORTH AMERICA, CREIGHTON LOCAL NO. 12 OBJECTING PLAINTIFFS, MARIE ABATE, LILLIAM BOWSER ALBITUS, SARAH ENTERLINE ANSELMO, OLGA ARDJEWSKI, ANNA BALOG, MARY BARKASI, BLANCHE BECK, MARY J. BEDNAS, HELEN BERTOLINO, MINERVA BONZANI, JOESPHINE BOWERS, ETHEL BRENNAN, JEAN B. CASHELL, CECELIA CLOWES, HATTIE CRIBBS, AGNES CRUMLEY, FLORENCE D'AMICO, SOPHIA DAYLIDA, BETTY DREWENCKI, VERONICA DURCHO, STELLA EVANS, ROSE FAZEKAS, THELMA FINK, MARGARET GEAHRY, KATIE GIACOARDO, STELLA GIFT, MARY GILLETTE, ANNA GLACIK, ANNA GLAISTER, VIOLET GRDEN, SUSAN HALUPA, ANNA HATALSKY, CHRISTING JANOSEK, VICTORIA JOHNSON, HELEN JOSEFOSKI, ANNA BELLE KANKOWSKI, MARY KIESZEK, MARGARET KNAPEK, SOPHIA LEVANDOSKI, SOPHIE LEWANDOWSKI, HARRIET MACHEN, FRANCES MALINOWSKI, MARGARET MALISZEWSKI, JOSEPHINE MANGONE, MARIE MATTIE, MARGARET MCBRIDE, PEARL MCKINNEY, ALICE MERCURIO, FRANCES MOSKOWSKI, IRENE OLBETER, MARY C. PECK PAGLIARI, ETHEL PAJEWSKI, VERONICA B. PASTVA, ALBINA PERRIELL, JOSEPHINE PITTS, BETTY POSET, MARY POWELL, NELLIE RACZKA, DOROTHY RAMACK, JULIA REDMOND, VALERIE SEITZ, HELEN SHANK, BEULAH SHEARER, FLORENCE SHERBON, MARY SHURINA, ANNA SMOLAK, ROSELIA SNIZASKI, MARTHA SOCHA, LAURA M. SOKALSKI, MARGARET SOSIGIAN, MARCELLA SUTTON, NELLIE SZYMANSKI, VALJEAN SZYROKI, ELIZABETH THOMEY, FLORENCE THOMPSON, ARLEAN THROWER, MARY TONEY, MARY TRESHOK, MARTHA VALASEK, STELLA VALASEK, HELEN VASIL, MARGARET VOJTECKY, STELLA WOIEWODSKI, HELEN ZABOSKI, ANNA ZIENCIK, APPELLANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, and Kalodner and Aldisert, Circuit Judges.
Appeal is taken here, pursuant to 28 U.S.C. § 1291 (1970), from an order of the district court for the Western District of Pennsylvania approving settlement of a class suit and dismissing the complaint with prejudice. The suit was filed on behalf of women presently or formerly employed at the Pittsburgh Plate Glass Company's Creighton plant. Plaintiffs allege that defendants Pittsburgh Plate Glass Company ("PPG") and the United Glass and Ceramic Workers ("the Union") engaged in sex discrimination violating Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (1970).
The factual setting for this suit is not complex. Both before and after the effective date of the Civil Rights Act of 1964, PPG classified jobs at its Creighton plant as available to men only or to women only; no job was open to both men and women. Because men and women were not eligible for the same jobs, separate seniority lists were kept. In the 1940's and 1950's, PPG laid off a great number of its Creighton employees. These employees, however, continued to accrue seniority while on lay-off since the bargaining agreement between PPG and the Union contained no termination provision.
When PPG's Creighton operation experienced a brief upsurge in business, in 1966 and 1967, men were recalled from lay-off and new employees were hired to fill male-only positions. No women were recalled, although had the seniority lists been merged, many women would have been senior to most of the recalled male employees. Complaints filed with the Equal Employment Opportunity Commission (EEOC) resulted in a conciliation agreement pursuant to which PPG merged seniority lists and opened certain jobs to both men and women. Other jobs remained open to only one sex.
In 1969, PPG and the Union negotiated an agreement covering Creighton employees by which employment rights of employees laid off for more than five years were terminated. This agreement immediately terminated the rights of 452 women, but no men. Sex discrimination charges again were filed with EEOC. EEOC made no final determination, but issued a "right-to-sue" letter to the complainants. Three women who had filed charges with the EEOC brought suit against PPG and the Union.
The district court found maintenance of a class action proper under Rule 23(b) (2) and (b) (3), and the class was defined as the 452 women initially terminated by the cut-off provision negotiated by defendants. Notice was given to the class, and a number of class members opted out of this litigation. After plaintiffs had completed presentation of their case and defendants had presented a substantial part of theirs, agreement on a settlement was reached. Class members were notified of the proposed settlement's terms and were given the opportunity to voice, and brief, objections. Subsequently, the district court approved the settlement, and 82 objecting plaintiffs appealed.
The district court has considerable discretion in determining whether a settlement is fair and reasonable, and its determination will be reversed only for abuse of discretion. Appellants, objecting plaintiffs, contend that the district judge abused his discretion in approving the settlement here. The first argument advanced to support this contention is that the plaintiffs' case was relatively strong as compared to defendants' and, therefore, that it was clearly not reasonable to grant plaintiffs a very small percentage of claimed back pay.
Consideration of the merits of the case is one step in determining the likely rewards the class would secure, if any, from prosecuting the litigation to a conclusion. United Founders Life Insurance Co. v. Consumers National Life Insurance Co., 447 F.2d 647, 655-56; (7th Cir. 1972); cf. Protective Committee v. Anderson, 390 U.S. 414, 424-25, 20 L. Ed. 2d 1, 88 S. Ct. 1157 (1968). The court, of course, need only evaluate the probable outcome of the litigation and is not required to weigh and decide each contention; further, the probable result at trial must be balanced against the probable costs, in both time and money, of continued litigation. Id. With these caveats in mind, we turn to a consideration of the plaintiffs' and defendants' cases.
Plaintiffs would seem to have made out a prima facie case of violation of Title VII's prohibition on sex discrimination. See 42 U.S.C. § 2000e-2(a) & (c) (1970); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). They have shown a past discriminatory policy and an action having immediate discriminatory impact on employment rights. Because plaintiffs probably would be found to have established a prima facie case of sex discrimination, defendants would bear the burden of justifying their discriminatory conduct. Muniz v. Beto, 434 F.2d 697, 700 (5th Cir. 1970).
Defendants assert that negotiation of the seniority cut-off provision was not discriminatory. They point out that the provision, although initially terminating rights only of women employees, thereafter terminated the employment rights of numerous male employees. Indeed, continued adherence to this provision is likely to terminate the rights of more men than women. Defendants insist that the termination provision was instituted to promote PPG's "business purpose" of securing a work force of balanced age. Coupled with a questionable discriminatory effect, this business purpose might well lead the district court to conclude that the negotiation of the seniority cut-off did not constitute discrimination on the basis of sex and, ...
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