Lana Pallas v. Pacific Bell Pacific Telesis

940 F.2d 1324 56 Fair Empl.Prac.Cas. 1022 , 57 Empl. Prac. Dec. P 40,917 , 60 USLW 2145 , 14 Employee Benefits Ca 1057 Lana PALLAS, Plaintiff-Appellant, v. PACIFIC BELL; Pacific Telesis, et al., Defendants-Appellees. No. 90-15559. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 15, 1991. Decided Aug. 12, 1991. Maria Blanco, Equal Rights Advocates, and Robert Hirsch, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for plaintiff-appellant. C. Douglas Floyd, Pillsbury, Madison & Sutro, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before SCHROEDER and FARRIS, Circuit Judges, and DUMBAULD, * District Judge. SCHROEDER, Circuit Judge: 1 Lana Pallas filed this suit against her employer, Pacific Bell, and its predecessor companies (collectively "Pacific Bell"), claiming that the company has discriminated against her on the basis of gender and pregnancy. Pacific Bell denied her retirement benefits in 1987 based on a method of calculating employee service time that does not credit pregnancy leaves taken prior to 1979 but credits temporary disability leaves…

Lana Pallas filed this suit against her employer, Pacific Bell, and its predecessor companies (collectively “Pacific Bell”), claiming that the company has discriminated against her on the basis of gender and pregnancy. Pacific Bell denied her retirement benefits in 1987 based on a method of calculating employee service time that does not credit pregnancy leaves taken prior to 1979 but credits temporary disability leaves taken during the same period. Pallas brought this action under the Pregnancy Discrimination Act provisions of Title VII, 42 U.S.C. §§ 2000e et seq.; ERISA, 29 U.S.C. §§ 1001 et seq.; and the California Fair Employment and Housing Act, Cal.Gov’t Code §§ 12900 et seq.

The district court interpreted Pallas’s complaint to allege only that discrimination occurred prior to 1979, when the law did not require employers to treat pregnant women like temporarily disabled men. See General Electric Co. v. Gilbert, 429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976). Thus, the district court dismissed the complaint for failure to state a federal claim. Because we hold that the complaint states a claim for discrimination occurring in 1987 when Pacific Bell denied Pallas…

dissenting:

Respectfully, and regretfully, I dissent. Appellant portrays to us, in the words of an English poet,

Of things done long ago, and ill-done.” 1

In my interpretation of Congressional legislation 2 and authoritative case *1328 law 3 we confront a situation which we have no power to alleviate or remedy. The ap-pellee telephone company has simply applied a seniority system, 4 which it uses as the criterion for according many kinds of employee benefits, and appellant simply did not have enough seniority to qualify for the early retirement which she sought.

A seniority system is simply a method of record-keeping and mathematical calculation which determines how long an employee has worked for the employer. Economics has been called “the dismal science” and a rigorous economist might exclude all time not spent by the employee on actual productive work. Sound public policy and even corporate self-interest, however, surely permit the inclusion of time off work due to job-related injuries or unhealthful working conditions, or, indeed, any disease, disability, or other medical condition preventing the employee from performing his or her job in normal fashion. The telephone…