Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 70C 1157 -- James B. Moran, Judge.
Before CUDAHY, EDWARDS,*fn* and ESCHBACH, Circuit Judges.
CUDAHY, Circuit Judge. This appeal is but the latest step in the long and tortuous attempt by former United Airlines ("United") stewardesses to obtain a remedy for sex-based discrimination. This discrimination was engendered by United's former which required that all female flight attendants resign their jobs upon marriage. While the rule itself was abrogated in 1968 and its illegality was definitively determined in 1971, litigation to determine the precise form of relief and the membership of the plaintiff class has continued and appears likely to continue for some time into the future.*fn1 This appeal concerns the proceedings below by which the claimants are required to establish in adversarial hearings conducted by special masters that they are members of the plaintiff class. The claimants must show that they either were fired or forced by United to resign or that they resigned because of the no-marriage rule. By this showing they would become entitled to reinstatement as flight attendants with the forms of competitive and company seniority previously awarded by the district court and affirmed by this court. Romasanta v. United Air Lines, Inc., 717 F.2d 1140 (7th Cir. 1982), cert. denied, 466 U.S. 944, 104 S. Ct. 1928, 80 L. Ed. 2d 474 (1984).
Two appeals are in fact involved at this stage. The first involves primarily the interpretation of an order issued by Judge Moran on November 9, 1983, clarifying the Order of Reference of October 29, 1982 to the special masters. The Order of Reference set out the legal principles which the masters are to follow in conducting the hearings and determining each claimant's right to be considered part of the class. This first appeal also involves a group of claimants as to whom adverse reinstatement recommendations from the matters were affirmed by the district court. The district court granted plaintiffs a Rule 54(b) certificate and also noted that its decision was appealable under 28 U.S.C. § 1292(a)(1) as an order denying an injunction. The second appeal involves the district court's subsequent affirmance of the masters' adverse recommendations with respect to an additional five claimants and its entry of an order allowing an appeal for this second group under 28 U.S.C. § 1292(a)(1) as well as pursuant to a Rule 54(b) certificate. Both of these appeals were later consolidated.
Appellants raise two issues. First, they challenge the principles involving allocation of the burden of proof and production as contained in the Order of Reference and as clarified in the November 9, 1983 order. Second, appellants challenge the manner in which the masters have applied these principles to individual claimants, in particular the nine claimants whose appeals are now before this court. For the reasons stated below, we affirm in part, reverse in part and remand to the district court for further proceedings, as necessary, which are not inconsistent with this opinion.
The plaintiff class had originally proposed in 1980 the use of an affidavit procedure to determine whether a particular claimant was entitled to be a member of the class. The district court, however, rejected this procedure and decided to utilize adversary hearings to be presided over by special masters to determine the status of individual claimants. The Order of Reference issued by the district court set out legal principles involving primarily evidentiary considerations which the masters were to apply in formulating their recommendations to the district court concerning reinstatement. The district court also apparently limited the masters' hearings to the determination of entitlement to reinstatement and excluded the issue of eligibility for backpay. The relevant provisions of the Order of Reference include the following:
4. Only a claimant who resigned or was terminated as a United flight attendant between July 29, 1965 and November 7, 1968 (the "class period") is eligible to attempt to prove that she is a member of the class. The claimant has the burden of proving that she is a member of the class.
5. When an eligible claimant proves she was married at the time of her resignation or termination, or that she married within 90 days after her resignation or termination, those opposing reinstatement will have the burden of going forward with a showing that some reason other than the no-marriage rule led to the end of her employment as a flight attendant.
6. Some indications that an eligible claimant may have resigned or been terminated because of the no-marriage rule are the following:
(a) she concealed her marriage and continued to fly; or
(b) she on marriage sought transfer to ground employment with United; or
(c) she sought other employment before or within 90 days after her termination or resignation; or
(d) she is found by the Special Master to have made contemporaneous protests to her supervisor or United management about her dissatisfaction with the no-marriage rule.
7. Some indication[s] that an eligible claimant may have resigned or been terminated for a reason other than the ...