classification, with a separate set of monthly schedules to be bid separately, is desired;
(b) If so:
(i) What procedure should be adopted to determine who properly belongs on the purser list, and with what relative placement thereon, in light of the Court's findings as to discrimination in the filing of purser positions; and
(ii) What changes must be made in the criteria for determining entitlement to future placement on said list, and treatment following said placement, in light of the Court's findings of discrimination with respect to said criteria and treatment.
Not later than 60 days after the date of this Order, counsel for the parties shall report to the Court any agreement they have reached on this matter and, in the absence of agreement, they shall report to the Court their respective positions and the arguments in support of their positions. Upon receipt of such reports, the Court shall determine the appropriate remedy for the prior discrimination in the filling of purser vacancies.
19. INTEREST -- With respect to all monies to be paid under the foregoing provisions of this Order, the Company shall pay six percent interest per annum from the date the violation occurred giving rise to said liability through the date upon which payment is made in accordance with this Order, except that pre-judgment interest for any day of Equal Pay Act violation shall be paid only to the extent that the cumulative interest on the backpay for that violation, calculated in accordance with Part I of this Order, would exceed the amount of liquidated damages for that violation ordered by the Court on November 21, 1980.
20. MECHANICS FOR PAYMENT PURSUANT TO THIS ORDER -- Counsel for the plaintiffs and counsel for the Company shall meet promptly following the signing of this Order to establish procedures for determining the precise monetary amounts due to each employee pursuant to the provisions of this Order. All costs incurred in making said determinations shall be borne by the Company. The procedures adopted shall be such as to assure that payments shall be made as soon as possible, but in no event more than six months after this Order (unless the Court, for good cause shown, extends the deadline with respect to particular employees as to whom disputes have arisen concerning entitlement or computation). Any disputes as to entitlement or computation which cannot be resolved by agreement of counsel shall be referred to the Court for disposition.
21. IMPLEMENTATION -- Counsel for the plaintiffs, counsel for the Company, and counsel for the Union shall be responsible, for a period of two years following this Order, to take such steps as may be necessary to assure compliance with this Order, in accordance with the procedure described in this paragraph. Any complaint by any employee or by counsel for any party that the provisions of this Order have been violated shall be discussed initially by counsel. If they unanimously agree as to the correct disposition of a complaint, they may effectuate said disposition without the need for referring it to the Court, but shall maintain a written record of said complaint and disposition. If they do not unanimously agree as to the correct disposition of a complaint any one of them may refer the matter to the Court for disposition. The Company shall pay all expenses incurred by counsel in performing the functions assigned to them in Paragraphs 20 and 21 of this Order, including the travel expenses of plaintiffs' attorneys and shall pay a reasonable attorney's fee to the plaintiffs' attorneys for their services therefor.
22. LITIGATION EXPENSES -- The Company shall reimburse plaintiffs for all reasonable expenses incurred on their behalf in litigating this action. Counsel for plaintiffs and counsel for the Company shall attempt to agree upon the amount thereof. In the absence of such agreement, they shall on or before the 90th day following this Order report their respective positions to this Court, and the Court shall thereupon determine the amount thereof.
23. ATTORNEY'S FEE -- The Company shall pay a reasonable attorney's fee for plaintiffs' legal representation. Counsel for plaintiffs and counsel for the Company shall attempt to agree upon the amount thereof. In the absence of such agreement, they shall, on or before the 90th day following this Order, report their respective positions to the Court, and the Court shall thereupon determine the amount thereof.
24. RETAINED JURISDICTION -- The Court hereby retains jurisdiction of this cause for the purpose of issuing any additional orders or decrees needed to effectuate, clarify, or enforce the full purpose and intent of this Order.
Judgment shall be entered accordingly.
This matter is before the Court for entry of a Final Order with regard to damages and remedies. Findings of Fact and Conclusions of Law establishing liability herein were entered by the Court on November 12, 1973. The parties have intensively and thoroughly briefed and argued the present issues. Two matters merit brief comment.
The Court has not awarded liquidated damages under the Equal Pay Act. Implicit in this is a finding that Defendant has sustained its defense under 29 U.S.C. § 260. The Defendant did have reasonable grounds for belief that it was not violating the Equal Pay Act. While this Court has found as fact that the jobs of purser and stewardess are in fact equal, it was not unreasonable for the Company to have believed otherwise. Five factors support this conclusion: the traditional practice of the Company in treating the positions as unequal, the general industry practice to the same effect, the acquiescence of the stewardesses' bargaining representative in this arrangement, the absence of any grievances or even suggestions from stewardesses to the contrary prior to the present controversy, and the absence of any clear legal precedent or guideline precisely in point. The Court finds "good faith" on the part of the Defendant and this finding is not inconsistent with the earlier finding of a "willful" violation of the Equal Pay Act. See Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir. 1971). The Equal Pay Act violation was willful in that Defendant was fully aware of the Equal Pay Act and adopted a deliberate and knowing course of conduct despite its awareness. The Court does not find an intentional, bad faith, attempt to evade the law. The judgment of the Company that its conduct would not be found to be in violation of the Equal Pay Act has been found to be in error. The conduct of the Company in the exercise of that judgment was willful.
The second matter which warrants discussion is the recovery period for back-pay under Title VII. The Court has allowed a recovery period extending back two years from the date on which the charges herein were lodged with the Equal Employment Opportunity Commission. The Court has discretion to award back-pay to July 2, 1965, but has chosen to limit that award herein. The 1972 amendment to Title VII, 42 U.S.C. § 2000e-5(g), limiting back-pay liability to not more than two years prior to filing of charges with the E.E.O.C. is not applicable to this case. Nevertheless, it does indicate that Congress felt some limitation is appropriate to avoid "windfall" damage awards and to avoid harsh, and sometimes unbearable, economic burdens upon employers. The amendment also indicates that two years is an appropriate and reasonable period for measuring the adequacy of the remedy for the Plaintiffs. In light of these considerations, the Court has, in the exercise of its discretion, limited the recovery period.
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