In Re National Airlines, Inc. Maternity Leave Practices & Flight Attendant Weight Program Litigation

OPINION AND ORDER Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM * , EDWARD WEINFELD, EDWIN A. ROBSON * , WILLIAM H. BECKER * , JOSEPH S. LORD, III, and STANLEY A. WEIGEL, Judges of the Panel. *1406 PER CURIAM. This litigation consists of four actions pending in two different districts: the ALP A, Leonard and Johnson actions in the Southern District of Florida and the Gardner action in the Eastern District of Virginia. National Airlines is named as a defendant in every action and the Air Line Pilots Association, the certified collective bargaining representative for all National flight attendants, is an additional defendant in Leonard. Two of the actions, Gardner and Leonard, are brought as class actions, the former on behalf of all females employed by National and the latter on behalf of National's female flight attendants only. 1 Taken as a whole, the four complaints contain allegations that National violated Title VII of the Civil Rights Act of 1964 by discriminating against certain of its female employees in its maternity leave practices, weight requirements, promotional policies and job classifications. National’s maternity leave policies, which are attacked in each of these actions, allegedly discriminate against females because pregnancy is not treated like other accidents or sicknesses suffered by National employees. More specifically, plaintiffs allege, pregnant employees are denied the use of sick leave, vacation time and other benefits that normally accrue to a National employee who is absent because of a non-pregnancy related illness. The Leonard complaint charges National with discrimination in maintaining a weight program that has more stringent requirements for female flight attendants than for male flight attendants and that is applied more strictly to female attendants. And some of the complaints include general allegations of discrimination by National in its promotional policies and job classification systems. National has moved the Panel for an order transferring the Gardner action to the Southern District of Florida for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending there. The Air Line Pilots Association and the plaintiffs in Gardner oppose transfer and, in the alternative, the latter suggest that the Eastern District of Virginia would be the most appropriate transferee forum. We find that these actions involve common questions of fact and that transfer of Gardner to the Southern District of Florida under Section 1407 will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Plaintiffs in Gardner concede the existence of common factual questions among these actions but nevertheless oppose transfer arguing that the differences in the various complaints preclude Section 1407 treatment. They also contend that transfer would be unduly inconvenient to them and would impose a financial hardship. The Air Line Pilots Association opposes the motion basically because it believes that discovery in ALP A is complete and that inclusion of the action in Section 1407 proceedings would delay trial therein. 2 As all parties recognize, every action shares common factual issues regarding National’s maternity leave policies. Thus, transfer under Section 1407 is clearly necessary in order to prevent duplication of discovery. Any discovery unique to a particular action arising from differences among the actions can be scheduled by the transferee judge to proceed concurrently with the common discovery and thereby the litigation can proceed expeditiously in both arenas. See In re Republic National-Realty Eq *1407 uities Securities Litigation, 382 F.Supp. 1403, 1405-06 (Jud.Pan.Mult.Lit.1974). Moreover, since the alleged class in Gardner encompasses the alleged class in Leonard, the need to eliminate the possibility of overlapping class determinations presents another compelling reason to bring these actions together for pretrial in a single jurisdiction. See In re Eastern Airlines, Inc. Flight Attendant Weight Program Litigation, 391 F.Supp. 763, 764 (Jud.Pan.Mult.Lit.1975) and In re Roadway Express Employment Practices Litigation, 384 F.Supp. 612, 613 (Jud.Pan.Mult.Lit.1974). We fail to see how the class of Gardner plaintiffs will suffer any inconvenience by transfer to Florida inasmuch as we are advised that the majority of them reside there. Besides, there is usually no need for the parties and witnesses ever to travel to the transferee court for pretrial proceedings. See, e. g., Fed.R.Civ.P. 45(d)(2). Furthermore, we are convinced that the Gardner plaintiffs will experience an overall savings of expenses as a result of transfer through cooperation with the other plaintiffs in this litigation in an effort to pool their resources with respect to common discovery matters. Also, we are unable to determine from the record before us whether, in fact, ALP A is ready for trial. Since the action, however, would be pending before the transferee court regardless of the transfer we are herewith ordering, we believe that the question of ALPA’s readiness for trial is more properly presented to the transferee judge. In any event, we find that the Air Line Pilots Association’s concern about Section 1407 proceedings interfering with a timely trial in ALP A is wholly without merit because the very nature of coordinated or consolidated pretrial proceedings under Section 1407 is to ensure the most expeditious processing of the entire litigation. And if further pretrial proceedings are necessary in ALPA, whether and to what extent they will be coordinated or consolidated with those required in the other actions is solely within the discretion of the transferee judge. See In re Equity Funding Corporation of America Securities Litigation, 375 F.Supp. 1378, 1384 (Jud.Pan. Mult.Lit.1974). Finally, we agree with National’s suggestion of the Southern District of Florida as the appropriate transferee forum for this litigation. Three of the four actions in this litigation are already pending in that district and, since National is a Florida-based corporation, many of the relevant documents and witnesses are located there. It is therefore ordered that the action on the following Schedule A pending in the Eastern District of Virginia be, and the same hereby is, transferred to the Southern District of Florida and, with the consent of that court, assigned to the Honorable Norman C. Roettger, Jr. for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the actions pending in that district and listed on Schedule A. SCHEDULE A Eastern District of Virginia Barbara Ann Gardner, et al. Civil Action V. National Airlines, Inc. No. 75-329-A Southern District of Florida Air Line Pilots Association International v. National Airlines, Inc. Civil Action No. 74-1149-Civ-JLK Susan Gail Leonard, etc. v. National Airlines, et al. Civil Action No. 75-719-Civ — PF Barbara Baker Johnson v. National Airlines, Inc. Civil Action No. 75 — 785-Civ—JLK * Footnotes [1] The Air Line Pilots Association, plaintiff in ALP A, had initially sought class action relief on behalf of its individual female flight attendant members employed by National. The court in the Southern District of Florida has, however, dismissed that portion of ALPA and that action is now proceeding solely on the basis of alleged injury to the union. [2] National disputes the readiness for trial of that action.