Noreen Hulteen Eleanora Collet, Linda Porter Elizabeth Snyder Communications Workers of America v. At & T Corporation

441 F.3d 653 Noreen HULTEEN; Eleanora Collet, Linda Porter; Elizabeth Snyder; Communications Workers of America, Plaintiffs-Appellees, v. AT & T CORPORATION, Defendant-Appellant. No. 04-16087. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 20, 2005. Filed March 8, 2006. Joseph R. Guerra (argued) and Joseph Palmore, Sidley Austin Brown & Wood LLP, Washington, D.C.; Charles C. Jackson and Allegra R. Rich, Seyfarth Shaw LLP, Chicago, IL; Laura A. Kaster and Valerie Fant Custer, AT & T Corporation, Bedminster, NJ, for the defendant-appellant. M. Suzanne Murphy (argued) and Blythe Mickelson, Weinberg, Roger & Rosenfeld, Oakland, CA; Henry S. Hewitt, Erickson, Beasley, Hewitt & Wilson, Oakland, CA; Noreen Farrell, Equal Rights Advocates, San Francisco, CA; Judith E. Kurtz, San Francisco, CA, Mary K. O'Melveny, Communications Workers of America, AFL-CIO, Washington, D.C., for the plaintiffs-appellees. Paul D. Ramshaw, U.S. Equal Employment Opportunity Commission, Washington, D.C., for amicus Equal Employment Opportunity Commission. Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins,…

This is a Title VII Civil Rights case. 1 It requires us to decide whether AT & T, in making current retirement benefits determinations, discriminates in violation of Title VII against women who took pregnancy-related leaves before 1979.1979 was the year when the Pregnancy Discrimination Act of 1978(PDA), an amendment to Title VII, became effective. 2

Prior to the PDA, an AT & T employee on pregnancy leave was not awarded service credit for the entire period of her absence, whereas employees on other temporary disability leaves received full service credit for that time period. Although AT & T today awards full credit for pregnancy leaves, plaintiffs in this case, four female employees and the Communications Workers of America (CWA), complain that the company’s failure to give employees full service credit for their pre-PDA leaves affects their eligibility for and computation of retirement benefits and is therefore a present violation of the PDA. AT & T marshaled a number of arguments based on the current state of the law.

The district court, while acknowledging the “great logical and legal force” of AT & T’s arguments, felt compelled by this court’s decision in Pallas v. Pacific…

dissenting:

I reluctantly part company even though I do not disagree with my colleagues’ take on what a correct analysis, on a fresh slate, should look like. As I see it, however, the slate is not clean. Like the district court, I believe that our opinion in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir.1991), controls. The parties do too, though AT & T asks us to hold that Pallas has since been undermined because Pallas imper-missibly gave retroactive effect to the PDA contrary to intervening Supreme Court authority in Landgraf v. USI Film Prodzicts, 511 U.S. 244 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994), relied upon the “continuing violation” doctrine that the Supreme Court subsequently invalidated in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002), and failed to apply the leading Supreme Court case addressing Title VII challenges to seniority systems, International Bhd. of Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977). As I cannot accept these arguments, or play ostrich to Pallas , I must dissent.

I

In my view, AT & T’s appeal turns entirely on whether Pallas is good law. If so, there is…