OPINION PER CURIAM
This Equal Pay Act-Title VII class action concerns the former practices of Northwest Airlines (NWA) with regard to the employment of cabin attendants. Women employed by NWA in the all-female category "stewardess" received less pay than men in the all-male "purser" category. In addition, NWA required female cabin attendants to share double rooms on layovers while providing single rooms to male cabin attendants; it paid male attendants, but not females, a cleaning allowance for uniforms; and it imposed weight restrictions upon females only.
The lawsuit challenging these practices commenced in the summer of 1970 and has been intensely litigated since its inception. District court adjudications were twice appealed at interlocutory stages; in response, panels of this court meticulously reviewed an extensive record. On November 30, 1982, the district court concluded all tasks within its charge and entered final judgment. NWA appealed and plaintiffs cross-appealed.
We affirm the challenged rulings in principal part. On the few points on which we do not uphold the district court's determinations, we specify, precisely, the required modification so that adjustments to the final judgment can be calculated without further adversarial contest. Our opinion thus serves as the court's closing chapter in this nearly fourteen-year-old controversy.
A. Prior Proceedings
Trial of plaintiffs' multiple charges of NWA violations of the Equal Pay Act, 29 U.S.C. § 206(d) (1982), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (1976 & Supp. V 1981) (Title VII), commenced in late 1972 and concluded in early 1973. In November 1973 findings and conclusions, Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973) [hereafter, 1973 Findings], the district court determined that NWA had violated the law in each of the respects alleged in the complaint. Of dominant importance to the monetary relief awarded plaintiffs, the district court found that stewardesses and men serving as pursers performed substantially equal work. The purser/stewardess salary differential, the less desirable layover accommodations for women, and the cleaning allowance limited to men, were held impermissible under both the Equal Pay Act and Title VII; the weight limits for women were declared unlawful under Title VII. In an April 1974 remedial order, Laffey v. Northwest Airlines, Inc., 374 F.Supp. 1382 (D.D.C.1974) [hereafter, 1974 Remedial Order], the district court decreed injunctive relief and specified back-pay computation formulas. Judgment pursuant to the April order was entered May 20, 1974.
Both sides appealed. In a painstaking opinion, released October 20, 1976, a panel of this court affirmed the district court "on all substantive questions of statutory infringement" and "uph[e]ld most but not all the [district] court's specifications on relief." Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 437 (D.C.Cir.1976) [hereafter, Laffey I]. NWA's petition for rehearing and suggestion for rehearing en banc were denied September 8, 1977; its petition for certiorari was denied February 21, 1978. 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792.
When the case returned to the district court, in March 1978, NWA moved for relief from 1974 injunctive provisions, which had been stayed pending appeal and petition for certiorari, requiring it to furnish female cabin attendants single rooms on
Again after careful review, on October 1, 1980, we affirmed the district court's order. Laffey v. Northwest Airlines, Inc., 642 F.2d 578 (D.C.Cir.1980) [hereafter, Laffey II]. In the process, we observed that the 1974 order, reviewed in Laffey I, did not qualify as a final judgment because the district court had not at that point completed its work and disassociated itself from the case. Id. at 583-84. We noted, however, that the 1974 adjudication, awarding extensive injunctive relief, was appealable of right under 28 U.S.C. § 1292(a)(1) (1982), and that "the permanence and pervasiveness of the order's injunctive provisions enabled review on the merits of all interrelated features of the order save those the District Court had reserved for future adjudication." Id. at 584 n. 49.
While clarifying that the 1974 district court adjudication was not a "final decision" within the meaning of 28 U.S.C. § 1291 (1982), we hastened to declare the district court "entirely right," Laffey II, 642 F.2d at 584, in declining NWA's request to modify the injunction; modification would have involved reopening issues already decided by that court and "laid to rest" when we affirmed the district court's directives in Laffey I. Id. at 584-85. We then stated with emphasis impossible to obscure that even if we were convinced of the error of a decision made on an earlier appeal in this litigation, we would adhere to the established "law of the case" absent extraordinary cause to depart from our precedent. Id. at 585-86. Pointedly, we cited the First Circuit's admonition against reconsideration "after denial of petitions for rehearing and certiorari." Id. at 585 & n. 58 (citing Legate v. Maloney, 348 F.2d 164, 166 (1st Cir.1965)).
The district court has now resolved all disputed matters in this protracted case. We approach the multiple issues raised by NWA and the three raised by plaintiffs mindful that "[i]f justice is to be served," Laffey II, 642 F.2d at 585, "[t]here must be an end to dispute." Id. (quoting Legate v. Maloney, 348 F.2d at 164, 166 (1st Cir.1965)).
B. Issues on Appeal
We indicate here the order in which this opinion discusses the issues raised by the cross-appeals, and state, summarily, our disposition as to each issue.
1. NWA's Appeal
a. Alleging supervening Supreme Court decisions, NWA asks us to overturn i) the root determination that the purser/stewardess pay differential was based on sex, and ii) the already twice-reviewed determination that the cleaning allowance for men but not women discriminated impermissibly on the basis of sex. Discerning no clear change — indeed no change at all — in the governing law, we adhere to the law of the case on both issues.
b. Asserting a flaw in the determination that stewardesses and pursers performed "equal work," double faults in the measurement of backpay, oversights in the delineation of the Title VII class, and error in characterizing the Equal Pay Act violations as "willful," NWA urges alteration of prior dispositions on these questions. In view of the full and fair opportunity NWA had to litigate these issues in the district court and on appeal in Laffey I, we hold that "the strong policy of repose," Laffey II, 642 F.2d at 585, precludes consideration of NWA's earlier rehearsed arguments and more recent afterthoughts.
c. As to the Title VII back-pay accrual period, we adhere to the law of the case on the nonretroactivity of that statute's current two-year limitation. However, we modify the district court's specification of a three-year period borrowed from the District of Columbia's minimum wage law or general statute of limitations. Instead, we hold that, in the unique circumstances presented here, the time frame most appropriately borrowed is Minnesota's two-year limitation on "the recovery of wages ... under any federal or state law." Minn.Stat.Ann. § 541.09(5) (West Supp.1982-1983).
2. Plaintiffs' Cross-Appeal
a. As to credit for service prior to the passage of the Equal Pay Act and Title VII, Laffey I instructed only a "look at the collective bargaining agreement" on remand to determine whether "longevity" rather than "seniority" controlled. 567 F.2d at 476. Our opinion did not contemplate stripping plaintiffs of the pre-Act experience credits that the district court initially allowed them for the limited purpose of calculating the backpay NWA owed for post-Act service. Failure to accord plaintiffs longevity credit for all their days of service to NWA as stewardesses, in determining their post-Act pay level, would impermissibly project into the post-Act period a sex-based differential. We therefore reverse the district court's post-Laffey I ruling on this point and instruct that court to recognize plaintiffs' pre-Act longevity in calculating backpay for the relevant, post-Act, time periods.
b. As to interest, the district court properly declined plaintiffs' invitation to revisit the 1974 remedial order provision on the rate of pre-judgment interest. However, no "law of the case" settled the question of post-judgment interest on liquidated damages. That issue ripened on remand after our Laffey I decision. Reviewing the district court's ruling on the merits, we reverse the determination and hold plaintiffs entitled to post-judgment interest on liquidated damages.
In sum, we instruct the district court on remand to 1) allow backpay under Title VII beginning two years, not three years, prior to the filing of the first EEOC charge; 2) credit plaintiffs with pre-Act longevity in calculating backpay due for post-Act service; and 3) allow post-judgment interest on liquidated damages. In all other respects, we affirm the district court's dispositions.
II. ALLEGED SUPERVENING SUPREME COURT PRECEDENT
Laffey I affirmed district court determinations that the purser/stewardess pay differential, and the cleaning allowance for men's uniforms but not women's, violated the Equal Pay Act and Title VII. Supervening Supreme Court decisions, NWA maintains, reveal that those affirmations were wrong. NWA cites County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), as supervening precedent establishing that the purser/stewardess pay differential was lawful, and relies on General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), with regard to the cleaning allowance. Neither High Court decision, we conclude, alters the law earlier applied in this case. We therefore reaffirm Laffey I as the law of the case and of the circuit.
A. The Purser/Stewardess Pay Differential
The alleged supervening decision, County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), resolved this "sole issue": whether female jail guards who did not prove their work equal in skill, effort, and responsibility to the work of male jail guards, and therefore failed to establish an Equal Pay Act violation, could nonetheless challenge their rate of pay as discriminatory under Title VII. 452 U.S. at 166 n. 8, 101 S.Ct. at 2246 n. 8. The Supreme Court answered "yes"; it held that despite complainants failure to satisfy the equal work standard, they could remain in court under Title VII on their charge that the County had set "the wage scale for female guards, but not for male guards, at a level lower than its own survey of outside markets and the worth of
In imaginative argument, NWA asks us to spy a silver lining for employers in Gunther. NWA urges that the Supreme Court, in the process of rejecting a proffered restricted reading of Title VII, enlarged the scope of the Equal Pay Act's residuary affirmative defense, which permits payment of different wages if "made pursuant to ... a differential based on any other factor other than sex."
For two reasons we cannot indulge NWA's endeavor to persuade us that Gunther widened the Equal Pay Act's exception for pay differentials "based on a bona fide use of `other factors other than sex.'" Gunther, 452 U.S. at 170, 101 S.Ct. at 2248 (quoting 29 U.S.C. § 206(d)(1)(iv) (1982). First, NWA's position is incompatible with the statutory design. Under the Fair Labor Standards Act, which Congress adopted as the procedural and remedial framework for Equal Pay Act claims, a court has discretion to disallow, in whole or in part, liquidated (double) damages "if the employer shows to the satisfaction of the court that the act or omission giving rise to [the violation] was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of t[he Act]." 29 U.S.C. § 260 (1982). NWA contends that an employer's actual but erroneous belief that two jobs are in fact different wholly shelters the employer from equal pay for equal work liability, NWA Brief at 14, 33; that contention is not synchronous with a congressional direction giving judges discretion only to limit, not to eliminate, damages when an employer, in "good faith," erroneously but reasonably believed his conduct conformed to legal requirements.
Second, NWA's inflation of the Equal Pay Act's residuary defense to exonerate employers who in fact failed to reward equal work with equal pay, so long as they honestly believed the jobs in question in fact were different, Reply Brief of Northwest Airlines, Inc. [hereafter, NWA Reply Brief] at 3-4, 19, is not sensibly extracted from Justice Brennan's opinion for the Court in Gunther. That decision interpreted Title VII to accommodate sex-based
NWA features most prominently, see NWA Brief at 28-29, lines clipped from a passage in Gunther in which Justice Brennan focused on the Equal Pay Act's fourth affirmative defense, applicable to differentials "based on any other factor other than sex." 29 U.S.C. § 206(d)(1)(iv) (1982). In this passage, Justice Brennan stated that genuinely non-sex-based factors, for example, "a bona fide job rating system," might be used by an employer in setting compensation, without offense to federal law, even when such factors have a disparate impact on one sex. Gunther, 452 U.S. at 170-71 & n. 11, 101 S.Ct. at 2248-2249 & n. 11.
Basing wages on "a bona fide job rating system" — a sex-neutral, objective measure — exemplifies the legitimate employer conduct Congress envisioned as a permissible "use of `other factors other than sex,'" Gunther explained. Id. NWA, however, employed no "bona fide job rating system" or other sex-neutral, objective standard
Gunther, in the portion featured by NWA, addressed only the impact Equal Pay Act affirmative defenses might have on "the outcome of some Title VII sex-based
The Title VII decisions NWA cites unexceptionally involve situations in which the employer did not classify jobs overtly by sex (or race). E.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In that setting, where sex-based categorization, if it exists, is covert, the Court has elaborated rules for establishing discriminatory intent or the lack thereof. This case, however, involves overt sex classification — explicitly disparate treatment. Purser jobs were reserved for men only; the stewardess class was all-female.
In sum, so far as we can tell, neither Congress nor the Court has ever entertained the notion that an employer who intentionally classifies jobs by sex, and in fact pays women less for the same work, can achieve exoneration by showing he sincerely thought the jobs he separated by sex were different. But see NWA Brief at 33; NWA Reply Brief at 3-4, 19. Justice Brennan's opinion in Gunther, it is certain, establishes no such novel law. Where, as here, there is an actual intent to separate jobs by sex, and the employer is found in fact to have paid women less for equal work, all precedent in point indicates that disparate treatment is solidly established.
In Goodrich v. International Brotherhood of Electrical Workers, 712 F.2d 1488, 1493 n. 11 (D.C.Cir.1983), we noted that the Equal Pay Act's residuary defense covering "factors other than sex" affords no "convenient escape from the Act's basic command." Unless and until Congress or the Supreme Court declares otherwise, our dominant guides remain the command that
B. The Uniform Cleaning Allowance
Laffey I affirmed the district court's determination that NWA discriminated on the basis of sex by providing a male-only uniform cleaning allowance. 567 F.2d at 456. Laffey II held a second challenge to the district court's ruling on the cleaning allowance unwarranted by any "circumstance capable of generating injustice from adherence to the law of the case." 642 F.2d at 586. Despite the stern "law of the case" analysis and admonition in Laffey II, id. at 585-86, and the court's further statement that it considered Laffey I's cleaning allowance holding "fully accurate," id. at 586,
Gilbert was a Title VII challenge that turned on the Court's conclusion that the disability program in question did not group persons by "gender as such." Gilbert, 429 U.S. at 134-35, 97 S.Ct. at 407-408 (quoting Geduldig v. Aiello, 417 U.S. 484, 496 & n. 20, 94 S.Ct. 2485, 2492 & n. 20, 41 L.Ed.2d 256 (1974)). The issue was an employer's exclusion of women unable to work due to pregnancy or childbirth from disability benefits. The program did not divide potential recipients by "gender as such," the Court reasoned, because one of the two groups comprised "nonpregnant persons," and thus "include[d] members of both sexes." Gilbert, 429 U.S. at 134-35, 97 S.Ct. at 407-408. In the absence of classification based upon "gender as such," the Court inquired whether there was any "gender-based discriminatory effect." Id. at 137-39, 97 S.Ct. at 408-410. NWA relies on the "discriminatory effect" portion of the Gilbert analysis. NWA Brief at 53.
Even in Gilbert itself, however, the Court indicated that "discriminatory effect" analysis should not come into play when the program at issue divides recipients into groups classified by "gender as such." 429 U.S. at 136-37 & n. 15, 97 S.Ct. at 408-409 & n. 15.
Congress has overruled Gilbert prospectively "to prohibit sex discrimination on the basis of pregnancy,"
In Laffey II, the court described the cleaning allowance "as simply another supplement to male salaries." 642 F.2d at 589. Gilbert presents no occasion for us to study again that twice-studied issue. See id. at 586.
III. ADDITIONAL LAW OF THE CASE AND WAIVER ISSUES
A. Laffey I Holdings Challenged as "Clearly Erroneous"
NWA does not dispute that Laffey I "actually decided" two issues which it now seeks to relitigate: first, that "equal work" was performed by NWA stewardesses and pursers, and second, that NWA, as a matter of law, could have "willfully" violated the Equal Pay Act notwithstanding the absence of an "iniquitous ... state-of-mind." Laffey I, 567 F.2d at 461; NWA Brief at 11 n. 1, 13. NWA seeks to reopen these two issues, not by positing the existence of supervening case law, but by arguing that our prior holdings were "clearly erroneous" and that adherence to law of the case in these instances "would work a manifest injustice." Melong v. Micronesian Claims Commission, 643 F.2d 10, 17 (D.C.Cir.1980) (quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967)).
Moreover, we take this opportunity to emphasize that this court will not, absent truly "exceptional circumstances," Laffey II, 642 F.2d at 585, look favorably on arguments against the law of the case which fall only under the "manifest injustice" rubric.
1. Equal Work
In its 1973 Findings, the district court concluded that the jobs of purser and stewardess at NWA "require equal skill, effort and responsibility and are performed under similar working conditions." 366 F.Supp. at 788, 789 (Findings of Fact (FOF) 78; Conclusions of Law 2, 4). In Laffey I, this court explicitly affirmed this finding and conclusion, 567 F.2d at 453, thus establishing the equal work prerequisite to Equal Pay Act liability as the law of the case.
NWA's challenge to this holding hinges on its interpretation of two of the district court's findings of fact in 1973. In one pivotal finding, FOF 65, the district court described the "chain of command" for an NWA flight:
1973 Findings, 366 F.Supp. at 785. The nature and scope of a Senior Cabin Attendant's supervisory responsibilities is described in another critical finding, FOF 67:
Id. The district court also noted in this latter finding that NWA had no merit pay adjustment whereby either pursers or stewardesses who "supervise" effectively were paid more than less capable or effective supervisors.
Seizing upon the district court's recognition in FOF 65, above, that pursers supervised stewardesses, but not vice versa, NWA argues vehemently that the two jobs cannot be deemed "equal" because "[j]obs that entail different degrees of supervisory responsibility are not equal within the meaning of the Equal Pay Act." NWA Brief at 41. Next, relying upon the court's description in FOF 67, above, of the cabin attendants' "accountability" for the discharge of their supervisory duties, NWA maintains that the district court's findings "compel the conclusion that the supervisory responsibility had real content" and that Laffey I's conclusion that the pursers' supervisory function was "insignificant" thus "actually contradicted the trial judge's findings." Id. at 42.
We cannot accept either branch of NWA's argument. It is, of course, elementary that "jobs need not be identical in every respect before the Equal Pay Act is applicable...." Corning Glass Works v. Brennan, 417 U.S. 188, 203 n. 24, 94 S.Ct. 2223, 2232 n. 24, 41 L.Ed.2d 1 (1974). In Laffey I, this court explained:
567 F.2d at 449 (citations omitted). This "substantially equal" test, which has been adopted by no fewer than nine other circuits, Thompson v. Sawyer, 678 F.2d 257, 272 n. 12 (D.C.Cir.1982), necessarily implies that there can be job responsibilities — including supervisory duties — so "`insubstantial or minor'" as not to "`render the equal pay standard inapplicable.'" Laffey I, 567 F.2d at 449 (quoting 29 C.F.R. § 800.122 (1975)).
Therefore, to the extent that NWA's argument suggests that any difference
NWA's claim that Laffey I's finding of equal work "actually contradicted" the district court's findings is also patently incorrect. As we understand NWA's argument, FOF 67, when read together with FOF 65, "compels" the conclusion that the district court viewed the supervisory responsibilities as not insubstantial. This contention, however, plainly overlooks the district court's express finding that the pursers' supervisory functions "require no greater skill, effort or responsibility than the other functions assigned to all cabin attendants," 1973 Findings, 366 F.Supp. at 786 (FOF 69), and its further explicit finding of equal "skill, effort and responsibility" on the part of stewardesses and pursers, id. at 788-89 (FOF 78; Conclusions of Law 2, 4). It follows as ineluctably as night follows day that the district court found that the pursers' supervisory duties did not alter the equivalence of the two jobs under scrutiny in this case.
Under 29 U.S.C. § 255(a) (1976), a "willful" violation of the Fair Labor Standards Act (FLSA), of which the Equal Pay Act is a part, triggers a three-year, as opposed to the Act's ordinary, two-year statute of limitations. In Laffey I, this court determined that NWA's violation of the Equal Pay Act had been "willful" within the meaning of section 255(a), 567 F.2d at 463, thus rendering NWA liable for a third year of backpay. In reaching this conclusion, the court canvassed the legislative history of section 255(a) and rejected NWA's suggestion that a violation must be animated by a bad purpose or evil intent to be deemed willful. Id. at 461. Instead, the court determined that employer noncompliance with the Equal Pay Act is "willful" in at least two other instances: where the employer "is cognizant of an appreciable possibility that he may be subject to the statutory requirements and fails to take steps reasonably calculated to resolve the doubt," and where "an equally aware employer consciously and voluntarily charts a course which turns out to be wrong." Id. at 462.
NWA was held to have failed the second branch of this test:
Id. at 463 (citation omitted).
In this appeal, NWA argues that the law of the case established in Laffey I is "clearly erroneous" and the source of "manifest injustice," once again urging upon us a contrary analysis of the legislative intent undergirding section 255(a). NWA contends that a proper reading of the legislative history of the 1966 FLSA amendments "confirms that Congress meant [the willfulness standard] to encompass only intentional disregard for the law, rather than the deliberate-but-erroneous test adopted" in Laffey I. NWA Brief at 23. For the reasons stated below, we disagree with NWA as to the proper test of willfulness under the Equal Pay Act. Accordingly, we reaffirm Laffey I's finding that NWA willfully violated the Act within the meaning of section 255(a).
In recasting its version of the relevant legislative intent, NWA argues that the Laffey I court was erroneously of the view
The original administration-sponsored bill, H.R. 8259, sought, inter alia, to increase the limitations period to three years for all FLSA claims, and accordingly did not prescribe willfulness as a precondition to liability for the third year. NWA attempts to fashion a favorable interpretation of the willfulness provision ultimately incorporated into section 255(a) in the following manner: first, NWA summarizes a few snippets of testimony against H.R. 8259,
NWA's argument proves no such thing. The single sentence upon which it relies from the minority statement provides woefully inadequate support for its restrictive reading of the "willfulness" language. That sentence stands all by itself in the introduction to the minority report. Nowhere in this document is there any description of the amendments which the minority proposed, why it proposed them, what the majority said in response to the proposals, or why the proposals were adopted by the full Committee. Moreover, the minority report does not contain a single word about the "willfulness" provision in H.R. 10815. This brings us, then, to a broader point about this provision. The proposed legislation was lengthy, complex,
Given the relative silence of the legislative record in this respect, Laffey I, 567 F.2d at 460, a silence which NWA has not persuasively broken with its theory advanced on this third appeal, we defer to the careful treatment and final settlement of this issue in Laffey I. The law of the case we honor here rests on the Laffey I court's painstaking review of the legislative history, including Congress' pivotal concern over small, unsophisticated businesses — a category that manifestly excludes NWA — which might not recognize the sweep of the FLSA's coverage. Id. at 460-61. Equally important, Laffey I recognized the need for a liberal construction of remedial statutes, and at the same time appropriately took into account the absence of clear congressional intent to impose upon plaintiffs the heavy burden of demonstrating an employer's evil intent. Id. This latter point is especially important in light of the fact that the Equal Pay Act merely allows a plaintiff to recover, after an appropriate showing, wages which have been improperly denied, and does not involve the imposition of criminal sanctions.
In short, we find nothing compelling, and certainly nothing demonstrating "clear error" in this court's earlier opinion, in the 1965 sources relied upon by NWA. The careful analysis of the meaning of 29 U.S.C. § 255(a) set out in Laffey I must stand.
Moving from the domain of the Equal Pay Act's legislative history to an issue under Title VII, the district court's 1974 Remedial Order awarded each Title VII plaintiff
The court in Laffey I determined that NWA had failed to show that any portion of the pursers' pay was attributable to "foreign flying." 567 F.2d at 452 n. 153. See infra section III. B.2. The Laffey I decision also affirmed the back-pay formula adopted by the district court. Id. at 478.
In 1978, following the remand of these proceedings to the district court after Laffey I, NWA for the first time attacked the use of the full purser rates, apart from its unsuccessful, earlier argument with respect to the alleged "foreign flying" component. NWA at this juncture claimed that the district court should use a hypothetical wage rate which would have been paid to a single, combined class of "cabin attendants," rather than purser rates, in computing backpay. Record Document ("R.") 16. The district court, however, refused to entertain NWA's argument, on the ground that "the relief requested is precluded by the Judgment of the Court of Appeals in that it is beyond the Mandate of that Court and seeks to raise issues not challenged on appeal...." Order Denying Motion to Modify Award of Backpay to the Title VII Class (D.D.C. July 9, 1979), R. 50.
Because this court affirmed the back-pay awards in Laffey I, and inasmuch as we discern no relevant supervening change in the law embodied in the decisions relied upon by NWA, we decline the invitation to overturn the law of the case as to the computation of backpay.
1. Wage Rate for Hypothetical Combined Cabin Attendant Classification
NWA strenuously contends that if it had not maintained the sex-segregated job classifications of purser and stewardess and had, instead, used only a single "cabin attendant" classification, the wage rate paid to employees in that hypothetical classification would have closely approximated the rates paid by other airlines with only a single classification, rather than the "premium pay level" NWA established for pursers. In support of this proposition, NWA relies upon an affidavit proffered in 1978. See Declaration of Terry M. Erskine, Joint Record Excerpts ("J.R.E.") 139.
NWA argues that the use of the pursers' pay rate in the back-pay formula, rather than the lower rate which arguably would have been paid to those in the hypothetical, combined cabin attendant classification, violates the bedrock rule that Title VII back-pay may not "catapult [plaintiffs] into a better position than they would have enjoyed in the absence of discrimination." Ford Motor, supra, 458 U.S. at 234, 102 S.Ct. at 3067. It also argues that Manhart, in particular, establishes that the back-pay remedy here was improper. NWA Brief at 43-44.
We disagree. In the first place, and most critically, we do not read these three High Court decisions as establishing any pertinent new rule of law as respects this case under Title VII. The fundamental proposition that the purpose of Title VII remedies is to "make whole" the victims of discrimination has been settled for some time, see, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975), and was clearly recognized by this court in Laffey I. See 567 F.2d at 476 ("The remedial order in this case is to make employees whole, but not more than whole."). Therefore, we perceive nothing new, as respects NWA's argument, in these three decisions.
We also find unpersuasive NWA's assertion that Manhart compels the abandonment of the back-pay formula affirmed in Laffey I. Above all, Manhart arose out of the extraordinarily sensitive setting of a sex-based contributory system in a pension plan, circumstances far removed from the situation here of treating female employees differently although they performed the same work as male employees. Second, the only language that provides comfort to NWA is set forth in a single footnote,
Moreover, in the absence of supervening, controlling authority, NWA cannot properly request — for the first time — that this court mandate the use of "averaging techniques" in the back-pay formula.
Adherence to the rule that a party waives a "contention that could have been but was not raised on [a] prior appeal," Munoz v. County of Imperial, 667 F.2d 811, 817 (9th Cir.), cert. denied, 459 U.S. 825, 103 S.Ct. 58, 74 L.Ed.2d 62 (1982), is, of course, necessary to the orderly conduct of litigation. Failure to follow this rule would lead to the bizarre result, as stated admirably by Judge Friendly, "that a party
2. Foreign Flying
As previously indicated, NWA reargues its already rejected position that purser pay included compensation directly traceable to "foreign flying" and that this component of compensation should be excluded as a "factor other than sex" under the Equal Pay Act back-pay computations, and from the Title VII back-pay computations under the Supreme Court decisions discussed supra in section III.B.1.
We disagree. We find, for the reasons outlined in the preceding section, that the Supreme Court decisions in Manhart, Teamsters, and Ford Motor do not bring into question the treatment in Laffey I of the "foreign flying" issue, as those cases merely articulate already established principles of Title VII law.
C. Composition of the Title VII Class
NWA challenges the composition of the Title VII class on several grounds. It argues that the district court's order of December 5, 1980, J.A. 168, improperly added to the class "hundreds of new employees" who had been "hired after the cut-off date for the last round of notices" of the class action. NWA Brief at 55-56. NWA also appeals from the district court's order of June 6, 1980, J.R.E. 162, which included in the Title VII class two groups of stewardesses which NWA seeks to exclude — those on leave from their jobs as stewardesses as of the cut-off date who subsequently decided not to return to work, and those who as of the cut-off date had transferred permanently to non-stewardess jobs at NWA. We consider each of these arguments separately.
1. Stewardesses Not Notified of Class Action
In its February 1971 order, the district court certified the instant case as a class action under both Fed.R.Civ.P. 23(b)(2) and 23(b)(3). The court defined the Title VII class as "all female in-flight cabin attendants currently employed by [NWA] and/or employed by [NWA] any time since July 2, 1965." 321 F.Supp. 1041, at 1043. Thereafter, two rounds of notices were sent to class members, in 1971 and 1972, pursuant to the requirements of Fed.R.Civ.P. 23(c)(2).
The district court, in its 1974 Remedial Order, again defined the term "Title VII plaintiff(s)" to include "all female cabin attendants employed by [NWA] at any time on or after July 2, 1965, excluding only those who filed timely written elections with this Court to be excluded from this lawsuit in its entirety." 374 F.Supp. at 1384. In its appeal from this order in Laffey I, NWA did not challenge the foregoing definition of the class on the grounds it now advances. NWA did, however, challenge
Seeking to avoid waiver and law of the case obstacles to appellate review, NWA claims, in effect, that it was not on notice at the time of Laffey I that the district court would include in the class stewardesses never furnished the requisite notice or opportunity to opt out under Rule 23(b)(3). NWA interprets the district court's refusal to exclude those stewardesses who had not received notice of the class action, J.A. 168, as dependent upon the district court's view that the parties and the court had shared, as of the time of the 1971 and 1974 orders, "the intent and understanding" that the definition of the Title VII class adopted therein was broad enough to encompass the disputed group of stewardesses. NWA Brief at 56-57.
NWA argues that there was no such "understanding" between the parties, and claims that it "proceeded to trial with the understanding that the backpay class had been fixed by the universe of cabin attendants to whom notice was sent." NWA Brief at 57. It further argues that the December 1980 order was improper, inasmuch as Rule 23(c)(1) permits a court to "alter" a class certification only prior to the decision on the merits. NWA perceives here the evil of "one-way intervention."
Appellees, on the other hand, heatedly dispute NWA's claim as to the original "understanding" that the Title VII class did not include the disputed group of stewardesses. Appellees cite to substantial portions of the record as support for the true "understanding" of an open-ended class.
Without deciding whether the parties had the disputed "understanding" as to the meaning of the 1971 definition of the Title VII class, we conclude that NWA's attack on the 1980 order (and definition) is barred by the doctrines of waiver and law of the case. We reach this conclusion in light of the fact that the 1974 Remedial Order, issued long after the 1972 cut-off date now urged by NWA, contained essentially the same open-ended class definition as the 1971 certification order. NWA knew, or should have known, that the express terms of the 1974 order — sweeping into the class "all female cabin attendants employed by [NWA] at any time on or after July 2, 1965" (emphasis added) —
In addition, we note that NWA's argument regarding the impropriety of "one-way intervention" has been rejected by other courts which have held that "classwide backpay under Title VII can be awarded in a [Rule 23] (b)(2) class action."
2. Former Stewardesses
In Laffey I, NWA argued that the district court erred, in its 1974 Remedial Order, "in granting relief pursuant to Title VII in the form of backpay to stewardesses whose employment with [NWA] [had] terminated more than ninety days prior to the first filing by an employee of [a] ... charge with the Equal Employment Opportunity Commission." 567 F.2d at 472. NWA's argument was based upon the settled rule that "only those employees who could have filed charges with the Commission individually when the class filing was made are properly members of the ... class." Id. NWA reasoned that the discrimination in this case "could not be deemed continuing as to those who left [NWA's] employ more than ninety days prior to the class filing with the [EEOC]," id. at 473, and that, as a result, those employees were not entitled to recover as members of the Title VII class.
The Laffey I court agreed with NWA's contention in this respect:
Id. (citations omitted). Accordingly, the Laffey I opinion directed the district court, on remand, to "exclude from the Title VII recovery those employees whose connection with NWA was dissolved more than ninety days before the class filing with the [EEOC]," while retaining those terminated stewardesses "who would have brought themselves within the Equal Pay Act class...." Id. at 476.
After remand, NWA then sought the exclusion of two additional groups of ex-stewardesses: those on leaves of absence on the 90th day prior to the filing of the first EEOC charge and who, subsequent to that date, left the employ of NWA without having returned to work as stewardesses; and those who were employed by NWA at least until the 90th day prior to the first EEOC filing, but who had transferred to non-stewardess positions. The district court denied NWA's requested exclusions
NWA challenges the June 6, 1980 order, arguing that the district court misunderstood Laffey I. Downplaying the fact that Laffey I dealt explicitly only with terminated stewardesses, NWA claims that a truer indication of that court's mandate was its recognition that "only those employees who could have filed charges with the Commission individually when the class filing was made are properly members of the litigating class." 567 F.2d at 472. This language, NWA argues, empowered the district court to consider its claims that certain stewardesses, other than those in the terminated group expressly dealt with in Laffey I, had no viable claims allowing their inclusion in the class. NWA traces the district court's failure to so interpret the mandate of Laffey I to its overly "wooden reliance" on the "phrase `left the Company's employ ....'" NWA Brief at 61.
Without reaching the merits of NWA's arguments against inclusion of the two disputed groups of stewardesses, we hold that the district court correctly construed the Laffey I mandate. NWA had the opportunity in Laffey I to raise the issue of the status of these two additional groups of class members, just as it had the opportunity to raise the issue of the terminated stewardesses. NWA simply and indisputably failed to do so. Its failure to raise these arguments constituted a waiver of them. See supra at pp. 1089-1090. Moreover, as to the law of the case, in Laffey I the court "affirm[ed]," 567 F.2d at 478, the award of backpay to all class members except those "whose connection with [NWA] was dissolved more than 90 days before the class filing with the Commission." Id. at 476 (emphasis added). NWA's attack on the district court's December 1980 ruling is thus barred by the principles of waiver and law of the case.
IV. THE LIMITATION PERIOD ON TITLE VII BACKPAY
In the 1972 amendments to Title VII, Congress limited back-pay liability to no more than two years prior to the filing of charges with the Equal Employment Opportunity Commission. Laffey I held that the 1972 amendments did not apply to this case and directed the district court on remand to "determine the local statute of limitations most appropriate to this case," 567 F.2d at 469. On remand, the district court referred to District of Columbia law, noted that the District has no borrowing statute and generally applies its own statute of limitations as a "procedural" prescription, and determined that the most relevant statutes are the D.C. Minimum Wage Law, D.C.Code Ann. § 36-416 (1973) (now codified at D.C.Code Ann. § 36-216 (1981)), and the general statute of limitations, D.C.Code Ann. § 12-301 (1981). See Laffey v. Northwest Airlines, Inc., 481 F.Supp. 199, 200-01 (D.D.C.1979). Both of these laws provide for a three-year limitations period.
Were we writing on a clean slate, we might well decide that the two-year rule specified in the 1972 Title VII amendments should apply, if not directly, then at least by analogy, as the best indicator of the federal legislators' view of the appropriate back-pay liability limitation period. We are reluctant, however, to depart from the law of the case on the nonretroactivity of Title VII's current two-year limitation. Nevertheless, we modify the district court's decision specifying a three-year period borrowed from the District of Columbia's minimum wage law or general statute of limitations. In the unique circumstances presented here, we hold that the time frame most appropriately borrowed is Minnesota's two-year limitation on "the recovery of wages ... under any federal or state law." Minn.Stat.Ann. § 541.07(5) (West Supp.1982-1983).
Absent a federal limitation period which we can apply, we generally borrow the
Having refused to apply the federal two-year limit, Laffey I stated:
567 F.2d at 468-69 (footnotes omitted). The current two-year federal statutory cap on recovery, 42 U.S.C. § 2000e-5(g), for which Laffey I wished to find a "federal common law" substitute, is not addressed, as a statute of limitations would be, to the timeliness of the filing of charges or the institution of a lawsuit. Timeliness of filing with the Commission is governed by section 2000e-5(e) and that of the institution of a lawsuit by section 2000e-5(f)(1). But when those provisions are satisfied by timely filings, and when a plaintiff has made his substantive case, section 2000e-5(g) comes into play for the first time to define the maximum remedy. As the court stated in Miller v. Miami Prefabricators, Inc., 438 F.Supp. 176, 181 (S.D.Fla.1977):
As a limit on liability rather than a statute of limitations, section 2000e-5(g) is a substantive rather than a procedural measure. Where there is no similar back-pay cap in state law, a state statute of limitations will be used for federal purposes, here a substantive purpose. Where the issue is substantive, the District of Columbia does not automatically apply its own prescription. See In re Air Crash Disaster at Washington, D.C., 559 F.Supp. 333, 341-42 (D.D.C.1983); Williams v. Williams, 390 A.2d 4, 5 (D.C.1978).
In this case, we have been pointed to no jurisdictions other than Minnesota and the District of Columbia that have a relevant connection to the parties and actions involved in this litigation.
Minnesota law is more to the point and there is no doubt that the parties and actions at issue touch and concern that state. Appellant is a Minnesota corporation; appellant's headquarters are in Minnesota; the wage scales challenged in this case were all set by collective bargaining agreements negotiated and signed in Minnesota; the employment relationship of every member of the appellee class was established in Minnesota and was controlled by decisions taken there; all interviews and hiring occurred in Minnesota; the employment contract of each appellee class member stated that it was to be "viewed as a Minnesota contract of employment governed by the laws of that state in every respect"; and, when this case was certified as a class action, notice was directed to 2,634 stewardesses, of whom only ten lived in the District of Columbia while 1,694 lived in Minnesota. See Declaration of James A. Abbott, R. 61 at ¶¶ 2-4.
In contrast to the District of Columbia, Minnesota does have a statute closely analogous to Title VII, i.e., the Minnesota Human Rights Act, Minn.Stat.Ann. § 363.01 (West 1983). Like Title VII, the Minnesota Human Rights Act extends its protection beyond sex-based classes to other groups and prohibits discrimination in aspects of employment besides compensation. The Minnesota Equal Pay Act that appellant would have us adopt merely prohibits wage differentials and protects only sex-based groups. Minn.Stat.Ann. § 181.67 (West 1983). Significantly, the Minnesota Supreme Court, in discussing the Minnesota Human Rights Act, has applied case law interpreting Title VII. See Brotherhood of Railway & Steamship Clerks v. State, 303 Minn. 178, 188-91. 229 N.W.2d 3, 9-11 (1975).
The Minnesota Supreme Court has decided that Minn.Stat.Ann. § 541.07(5) (West Supp.1982-1983) is the statute of limitations that should govern claims of discrimination brought under the Human Rights Act. See Brotherhood of Railway & Steamship Clerks, 303 Minn. at 195-96, 229 N.W.2d at 13-14. Section 541.07(5) prescribes a two-year limitations period "for the recovery of wages or overtime or damages, fees or penalties accruing under any federal or state law respecting the payment of wages or overtime or damages, fees or penalties...." We find that the limitations period for recovery of backpay should be established by recourse to that statute. Accordingly, the recovery period is two years.
V. THE LIQUIDATED DAMAGES AWARD
The district court's 1974 Remedial Order, 374 F.Supp. at 1390, disallowed liquidated damages under the Equal Pay Act. On appeal in Laffey I, we "remand[ed] the matter of liquidated damages in toto for reconsideration by the District Court." 567 F.2d at 466 n. 279. With our Laffey I instructions as its guide, the district court permitted further discovery and ultimately found that the relevant facts mandated a liquidated damages award. Laffey v. Northwest Airlines, Inc., 24 Empl.Prac.Dec. (CCH) ¶ 31,384 (D.D.C. Nov. 21, 1980) [hereafter, Nov. 21, 1980, Decision]. NWA contends that the district court erred in finding liquidated damages mandatory and in calculating the amount of the award. We reject both contentions as insubstantial and sustain the district court's liquidated damages adjudication in all respects.
A. Plaintiff's Entitlement to Liquidated Damages
As Laffey I recounted, 567 F.2d at 463-65, the Fair Labor Standards Act, which serves as the procedural and remedial framework for Equal Pay Act claims, initially provided that prevailing employees were entitled to an automatic award of liquidated damages in an amount equal to unpaid wages. Congress amended the
Initially, the district court concluded that NWA had acted "in good faith": NWA committed a "willful" violation of the Equal Pay Act, the court explained, because it "was fully aware of [the Act] and adopted a deliberate and knowing course of conduct despite its awareness"; but the evidence did not indicate "an intentional, bad faith, attempt [by NWA] to evade the law." 1974 Remedial Order, 374 F.Supp. at 1390.
On review, we held "the reasons given by the District Court for disallowing liquidated damages ... legal[ly] inadequa[te]." Laffey I, 567 F.2d at 465. "The good faith of which the Act speaks," we restated, "is `an honest intention to ascertain what the ... Act requires and to act in accordance with it.'" Id. at 464 (quoting Addison v. Huron Stevedoring Corp., 204 F.2d 88, 93 (2d Cir.), cert. denied, 346 U.S. 877, 74 S.Ct. 120, 98 L.Ed. 384 (1953)). "Good faith" must be established affirmatively, we observed; it is not enough that "it appear that the employer probably did not act in bad faith." Laffey I at 465.
Four of the five reasons supplied by the district court for finding NWA reasonably believed it complied with the law related to then traditional industry practice and employee acquiescence.
On this appeal, by contrast, we find no legal infirmity in the district court's assessment. Instead, we are satisfied that the district court closely followed the guidance supplied in Laffey I, which constitutes the law of the case and of this circuit. Approaching the district court's fact findings with appropriate regard to that tribunal's function and to the need for finality served by FED.R.CIV.P. 52(a), we have no occasion to disturb the liquidated damages award.
We summarize here the principal points made by the district court, with ample record support, in explanation of its ultimate finding that NWA did not have "a reasonable foundation for a positive belief that in fact its policies compl[ied] with the law." Nov. 21, 1980, Decision, 24 Empl.Prac.Dec. at 18,286 (emphasis in original). First, NWA officials concluded that the jobs of purser and stewardess were in fact different "without consulting the in-flight supervisors responsible for knowing the duties of each, without commissioning a study of the jobs (as they did nine years later), and without scrutinizing the jobs for differences in duties." Id.
Additionally, NWA could not establish its "good faith" by reason of its termination of "other discriminatory personnel practices — after considerable delay and an EEOC finding
In Laffey I, we cautioned the district court that the employer bore a "`substantial burden' of proving that his failure to comply was in good faith and also was predicated on reasonable grounds for a belief that he was in compliance." 567 F.2d 464-65 (quoting in part Rothman v. Publicker Indus., Inc., 201 F.2d 618, 620 (3d Cir.1953)) (footnote omitted). "If the employer cannot convince the court in these respects," we emphasized, "an award of liquidated damages remains mandatory." Id. at 465 (footnote omitted). The district court, for solid, plainly stated reasons, was unconvinced that NWA acted with the requisite "good faith" and "reasonable grounds."
B. The Liquidated Damages Calculation
NWA next argues that, even if the district court properly determined that the statute entitled the Equal Pay Act plaintiffs to liquidated damages, the years 1974 and 1975 should have been left out of the calculation. These are the relevant facts. NWA's contract with the cabin attendants' union expired at the end of 1973. Negotiations for a new contract took place in 1974 and 1975. During that two-year interval, pursers and stewardesses were paid under the terms of the expired contract, which accorded higher pay to pursers. The new contract, signed December 20, 1975, equalized purser and stewardess wage rates
Thus, in early 1976, the stewardesses received "retro-pay" for the difference between wages paid pursers and stewardesses in 1974 and 1975. The parties agreed on subtraction of this retro-pay from NWA's basic back-pay liability. NWA unsuccessfully sought credit for the retro-pay against liquidated damages as well, and now challenges the district court's refusal to subtract the retro-pay from the liquidated damages award. See Laffey v. Northwest Airlines, Inc., 582 F.Supp. 280 at 281, 282-284 (D.D.C.1982)
In opposing credit for the retro-pay against liquidated damages, plaintiffs relied on the district court's November 1973 Findings, 366 F.Supp. at 789, holding that the purser/stewardess pay differential violated the Equal Pay Act.
We conclude that the district court appropriately refused to "relate back" the retro-pay, and thereby exclude 1974 and 1975 from the liquidated damages calculation. The wages involved in fact were not received until two years after they were earned. That reality, in the circumstances here presented, is dispositive of plaintiffs' statutory entitlement to liquidated damages.
In rejecting NWA's "relate back" argument, the district court stressed this central consideration: "liquidated damages are not punitive"; they are intended to compensate employees for a payment delay "which might result in damages too obscure and difficult of proof" to be redressed by any other means. Oct. 25, 1982, Mem.Op. at 282-283, reprinted in J.R.E. 185-86 (quoting language appearing in Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 583-84, 62 S.Ct. 1216, 1222-23, 86 L.Ed. 1682 (1942)); see cases cited supra 1096. As its principal ground of objection to the district court's ruling,
The Railway Labor Act provision NWA cites fosters bargaining over disputes to avert the disruption of commerce strikes and lockouts occasion. See, e.g., Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 148-50, 90 S.Ct. 294, 298-299, 24 L.Ed.2d 325 (1969). But the Equal Pay Act requires equalizing the wages of the lower paid sex up to the level of the higher paid sex. See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 206-07, 94 S.Ct. 2223, 2233-2234, 41 L.Ed.2d 1 (1974). A court determination of an Equal Pay Act violation leaves nothing for the employer and union to bargain about. Just as the National Labor Relations Act's prohibition against an employer's unilateral change in wages under negotiation
Stewardesses did not receive until 1976 pay made to pursers in 1974 and 1975; NWA must now compensate for the withholding period, during which it remained out of compliance with the Equal Pay Act, by paying the liquidated damages ordered by the district court.
VI. ISSUES RAISED BY LAFFEY AS CROSS-APPELLANT
A. Pre-Act Longevity
In calculating the amount of backpay due for NWA's post-Act wage violations, the district court held that the women should receive credit only for stewardess service performed subsequent to the Act under which they were recovering. The district court reasoned that the Supreme Court's decisions in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), and International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), precluded crediting the women with pre-Act longevity. Because we find that the district court improperly applied these decisions, we reverse.
The back-pay recovery period covers the years 1967 through 1976. During that time NWA had a pay ladder for pursers such that salary rose with increased years of service or "longevity." Under this policy a man hired as a purser in 1957 would have accumulated ten years' longevity by 1967 and would have been paid accordingly. The issue facing the district court was whether, for purposes of computing backpay,
We think that a woman hired in 1957 should today be credited with the same longevity as a man hired in that year. This does not involve finding that discrimination prior to the passage of the Act was somehow illegal. The stewardesses claim no damages for pre-Act pay differentials, nor could they. Their claim is that their current status be the same as that of men who have the same job characteristics, including job longevity. That claim of equal treatment seems to us required by the law. Indeed, the only case authority we have found dealing expressly with this subject holds squarely that a back-pay award should take into account "the length of service of the employees," including years of service prior to the effective date of Title VII. Sears v. Atchison, T. & S.F. Ry., 645 F.2d 1365, 1378 (10th Cir.1981), cert. denied, 456 U.S. 964, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982).
United Air Lines, Inc. v. Evans and Teamsters v. United States are not to the contrary. In these cases the Supreme Court held that bona fide seniority systems do not violate Title VII even where they perpetuate the effects of prior discrimination. The Court based its decisions on section 703(h) of that Act, which provides that "it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin ...." Section 703(h), 42 U.S.C. § 2000e-2(h) (1976). These decisions do not apply to cases, such as the present one, where there is no allegation that a seniority system violates Title VII, but only a claim for an appropriate remedy.
431 U.S. at 559, 97 S.Ct. at 1889-1890 (footnote omitted) (emphasis added). Clearly, section 703(h) does not preclude the crediting of retroactive pre-Act longevity in the present case. Indeed, Franks v. Bowman Transportation highlights this point by stating:
424 U.S. at 761-62, 96 S.Ct. at 1262-1263.
Having demonstrated that the district court's holding was not required by Evans and Teamsters, we turn to the affirmative reasons for according pre-Act longevity. To deny women longevity credit for their pre-Act service, when men were given such
1. Rate of pre-judgment interest for the 1974-82 period
In paragraph 19 of its 1974 order, the district court made the following ruling on pre-judgment interest:
1974 Remedial Order, 374 F.Supp. at 1389. In 1974, the district court believed that the judgment it was entering was a final one (R. 7, at 4; R. 115, at 25, 26). The panel in Laffey II, however, ruled in 1980 that the 1974 order was not a "final judgment," 642 F.2d 578, 583-84 (1980). This ruling had the effect of extending the prejudgment period from May 20, 1974 through the entry of final judgment on November 30, 1982.
Following the decision in Laffey II, plaintiffs moved for a determination of the prejudgment interest that should apply to this additional period. Plaintiffs noted that interest rates generally had risen greatly after 1974 and recommended that the rate for each year of the 1974-82 period be 90% of the average prime rate for that year, compounded quarterly. At the hearing on plaintiffs' motion, the district court concluded that its prior ruling should not be revised. We affirm.
We are unpersuaded by plaintiffs' argument that the district court did not make a decision as to the rate of interest that should be awarded from 1974 to 1982. In rejecting plaintiffs' contention, the district judge stated that he had "determined the interest to be awarded without regard to the length of the pre-judgment period." R. 120; Laffey v. Northwest Airlines, Inc., 29 Empl.Prac.Dec. (CCH) 25,330, 25,332 (D.D.C. Oct. 6, 1981). Moreover, the express terms of the 1974 order set no limit on the length of the pre-judgment period. We stress that although the 1974 judgment was ultimately declared non-final, we entertained in Laffey I all objections to dispositive rulings that the parties placed before us. See Laffey II, 642 F.2d at 584 n. 49. We have discussed above the salutary purposes served by the doctrine of the law of the case. According to that doctrine,
1B J. Moore, Moore's Federal Practice ¶ 0.404 (1983). Reconsideration of a prior decision, unappealed at an earlier stage although the opportunity to do so was present, is justified only in a limited number of circumstances:
White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). See also Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1189-90 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Jennings v. Patterson, 488 F.2d 436, 441 n. 4 (5th Cir.1974). None of the above criteria for reopening the district court's decision obtains here. We therefore affirm the district court's holding that plaintiffs are entitled to pre-judgment interest at six percent simple for the 1974-82 period.
2. Post-judgment interest on liquidated damages
In 1981 the district court held that the law of the case precluded it from awarding post-judgment interest on liquidated damages. In paragraph 19 of its 1974 order, the district court noted, it had not awarded post-judgment interest on pre-judgment interest. By analogy, it reasoned, that ruling "is fully applicable to liquidated damages since liquidated damages are a substitute for pre-judgment interest" (R. 119, at 2). We do not believe that law of the case settles this issue. Our evaluation of the merits leads us to conclude that plaintiffs are entitled to post-judgment interest on liquidated damages. Consequently, we reverse.
The district court did not award liquidated damages until 1980; it thus had no occasion to decide in 1974 — and it did not decide in 1974 — whether plaintiffs were entitled to post-judgment interest on liquidated damages. That question did not arise until 1981, following our Laffey I decision. Since the district court had not previously decided this question, it was "free to rule thereon as it thought proper." Salvoni v. Pilson, 181 F.2d 615, 619 (D.C.Cir.), cert. denied, 339 U.S. 981, 70 S.Ct. 1030, 94 L.Ed. 1385 (1950).
The district court's 1974 ruling refusing to award post-judgment interest on pre-judgment interest does not apply by analogy here, for liquidated damages are not merely "a substitute for pre-judgment interest" (R. 119, at 2). As defined by this court in Thompson v. Sawyer, 678 F.2d 257, 281 (1982), liquidated damages are "compensatory, intended to reimburse workers for intangible losses — difficult to prove but nonetheless the very real consequences of unfair wages." Liquidated damages differ in amount and, to some extent, in kind from pre-judgment interest. Inasmuch as the law of the case did not control the question whether post-judgment interest should accrue on liquidated damages, that issue was and is open for determination on the merits.
The federal post-judgment interest statute, 28 U.S.C. § 1961 (1982), provides, in relevant part:
This statute has been interpreted to mean that
Perkins v. Standard Oil Co., 487 F.2d 672, 675 (9th Cir.1973); see R.W.T. v. Dalton, 712 F.2d 1225 (8th Cir.1983). The law requires the awarding of post-judgment interest on all elements of the judgment, including liquidated damages. We therefore reverse the determination below and hold that plaintiffs are entitled to post-judgment interest on liquidated damages.
For the reasons stated, we instruct the district court on remand to (1) allow backpay under Title VII beginning two years, not three years, prior to the filing of the first EEOC charge; (2) credit plaintiffs with pre-Act longevity in calculating backpay due for post-Act service; and (3) allow post-judgment interest on liquidated damages. In all other respects, we affirm the district court's dispositions.
It is so ordered.
Laffey I, 567 F.2d at 465 (footnotes omitted; quotations in brackets from id. at 464).
No such aberrations are present in the instant case.
Indeed, NWA grossly misreads Usery's holding. In Usery, the court explicitly followed the Eighth Circuit's use of the "substantially equal" standard of comparison in evaluating the work of a male cook and four female cooks. 558 F.2d at 1320. That case in no wise stands for the proposition that any difference in supervisory responsibilities, without more, automatically works a cognizable legal difference in jobs. To the contrary, NWA conveniently and inexplicably overlooks the clear statements in Usery that the male employee had different responsibilities than female employees, worked during the cafe's busiest hours, was given greater duties of heavy lifting, was responsible for training other employees, and "had authority to make effective recommendations with regard to discipline." All this was sufficient for the Eighth Circuit to conclude, in affirming the district court's factual findings, that the job of the male employee had "[e]nough substantial distinctions [as to both] effort and responsibility ..." to render it legally different from the jobs of the four female employees. That case is a far cry from the instant situation.
Similarly, in Noles the district court employed a "substantially equal" analysis in finding that the work of one male employee, who was "in charge of" an entire shift in one department of a textile mill, was not equal to that of the plaintiffs. Since the Noles opinion does not describe the nature of the male worker's supervisory responsibilities, NWA cannot plausibly maintain that the case stands for the proposition that any difference in supervisory duties renders jobs unequal. Moreover, another male worker had heavy lifting functions and was one of only a few employees trained in the operations of a particular kind of plant machinery.
Finally, NWA can find no support in the cited Wage and Hour Division of the Department of Labor regulations. On the contrary, 29 C.F.R. § 800.122 clearly states that "[i]nsubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable." Far from offering support to NWA at this late stage of the litigation, this section, as noted in the text above, was invoked by the Laffey I court in its discussion of equal work. Nor does § 800.130 provide any comfort to NWA. That section states, inter alia, the common-sense proposition that if an employee assumes supervisory responsibilities during the absence of the regular supervisor, higher wage rates to such a "relief" supervisor may be appropriate. But to embrace this proposition scarely means that we should read out of the regulations the bedrock principle that "insubstantial or minor differences" in skill or responsibility do not constitute a legally significant distinction between jobs. The issue is not, as NWA would have it, whether there are "different degrees of supervisory responsibility" but whether the differences are insubstantial and minor. As to that issue, NWA's arguments fail completely.
435 U.S. at 720 n. 36, 98 S.Ct. at 1381 n. 36.
Reprinted in 29 C.F.R. § 800.106 (1983). The district court appropriately rejected NWA's various attempts to cloud this clear statement. See Nov. 21, 1980, Decision, 24 Empl.Prac.Dec. at 18,286 (citing Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 663 (4th Cir.1969)) ("If [employer] did not know, it was because he did not look, or looking, did not see, or want to see what was so plainly there.").
NWA now argues for rigid separation of "good faith" from "reasonable grounds" and incorrectly reads our Laffey I opinion to leave untouched the district court's original finding of good faith. See NWA Brief at 20, 72 n.*. We note, however, that NWA itself has exhibited less than perfect consistency in deciding whether to characterize a factor as relevant to "good faith" or to "reasonable grounds." Compare Appellant's [NWA] Combined Reply Brief and Brief on Cross-Appeal at 54-55, Laffey I (arguing that collective bargaining history and stewardess acquiescence demonstrated NWA acted in good faith), with NWA Brief at 72 n.* (arguing that, when Laffey I rejected these factors, the court addressed only "reasonableness," not "good faith").
We further note our agreement with the district court's remarks on a Fair Labor Standards Act regulation cited by NWA, 29 C.F.R. § 778.303 (1983) (employer who grants retroactive pay increase must also increase overtime pay retroactively). This regulation serves to insure employees' receipt of overtime compensation on retroactive pay increases; it is not addressed to situations involving an "underlying unlawful differential in wages" or any other delinquency in meeting statutory obligations. See Oct. 25, 1982, Mem.Op. at 283-284, reprinted in J.R.E. 187-88.
29 U.S.C. § 206(d)(2) (1982). See also, e.g., Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 249-53, 90 S.Ct. 1583, 1591-1594, 26 L.Ed.2d 199 (1970) (to advance objectives of other legislation, court may sanction exception to Norris LaGuardia Act that does not undermine that Act's purposes); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 39-42, 77 S.Ct. 635, 639-641, 1 L.Ed.2d 622 (1957) (same); Brotherhood of Railway, Airline & Steamship Clerks v. REA Express, Inc., 523 F.2d 164, 168-69 (2d Cir.1975) (Railway Labor Act's unilateral wage change prohibition does not block trustee's unilateral change made to keep bankrupt operating), cert. denied, 423 U.S. 1017, 96 S.Ct. 451, 46 L.Ed.2d 388 (1975), 423 U.S. 1073, 96 S.Ct. 855, 47 L.Ed.2d 82 (1976).