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Donnelly v. Glickman

October 22, 1998

LESA L. DONNELLY AND GINELLE O'CONNOR, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
v.
DANIEL GLICKMAN, SECRETARY, U.S. DEPARTMENT OF AGRICULTURE AND G. LYNN SPRAGUE, REGIONAL FORESTER FOR REGION 5, U.S. FOREST SERVICE, DEFENDANTS-APPELLEES.
v.
WILLIAM P. LEVIS, WILLIAM D. SPYRISON, ALAN DOERR, AND DONALD WILL, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS.



Before: Melvin Brunetti, A. Wallace Tashima, and Susan P. Graber, Circuit Judges.

The opinion of the court was delivered by: Graber, Circuit Judge

FOR PUBLICATION

Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, District Judge, Presiding

Argued and Submitted August 11, 1998--San Francisco, California

D.C. No. CV 95-04389-DLJ

Two female employees brought this individual and class action, claiming that their employer had subjected them and other female employees to gender-based discrimination in violation of Title VII of the 1964 Civil Rights Act, as amended (Title VII), 42 U.S.C. S 2000e, et seq. Four male employees moved to intervene on behalf of themselves and all other employees not within the plaintiff class, either as of right (Fed. R. Civ. P. 24(a)(2)) or permissively (Fed. R. Civ. P. 24(b)(2)). The district court denied both motions. The proposed intervenors appeal. We affirm the former ruling and dismiss the appeal from the latter.

FACTUAL AND PROCEDURAL HISTORY

A. Prior Actions

1. Female Employees

This is the second Title VII action brought by female employees of the United States Forest Service ("Forest Service") in Region 5. In 1973, a female employee sued on behalf of herself and similarly situated employees, claiming that the Forest Service in Region 5 had discriminated in making hiring and promotion decisions. The parties entered into a consent decree in 1979, which the district court approved in 1981. The terms of that decree were to remain in effect until 1986.

In 1986, the female employees' class filed a motion for contempt of court, in which they alleged that the Forest Service had not complied with the consent decree. The district court granted the motion and ordered the consent decree to remain in effect until 1991. In 1992, the parties agreed to a new settlement, which expired in 1994.

2. Male Employees

In 1990, a group of male employees in Region 5 moved to intervene in the female employees' Title VII action. The district court denied their motion, holding that it was untimely. This court affirmed in an unpublished Disposition. Bernardi v. Yeutter, 945 F.2d 408 (9th Cir. 1991) (Table).

Thereafter, male employees brought a separate action against the Forest Service, challenging the terms of the consent decree. The district court dismissed that action holding, in part, that the male employees could not bring an independent action challenging the terms of a consent decree. Levitoff v. Espy, 1993 WL 557674 (N.D. Cal. Dec. 14, 1993). This court affirmed that holding in an unpublished Disposition. Levitoff v. Espy, 74 F.3d 1246 (9th Cir. 1996) (Table). The male employees petitioned for a writ of certiorari, which the United States Supreme Court denied. Levitoff v. Glickman, 117 S. Ct. 296 (1996).

B. Current Action

1. Plaintiffs' Action

On December 8, 1995, plaintiffs Lesa L. Donnelly and Ginelle O'Connor filed an individual and class action against the Forest Service. In the initial complaint, plaintiffs' class claims alleged that the Forest Service in Region 5 had subjected female employees to a gender-based hostile work environment and that it had discriminated against female employees in hiring, promotions, and training.*fn1 On February 15, 1996, plaintiffs filed a first amended complaint, in which they deleted their class claims respecting hiring, promotions, and training.

On February 24, 1997, the district court certified a class of plaintiffs to include:

All past and current non-supervisory female employees of the U.S. Forest Service Region 5 who have been or are subject to a sexually hostile work environment at any time since [February 1, 1994,] and who are seeking equitable relief only.

In its order certifying the class, the district court noted that plaintiffs had abandoned their class claims that the Forest Service discriminated against women in hiring, promotions, and training. On March 6, 1997, plaintiffs amended their complaint again to include the class claims that the district court had certified.

Even though plaintiffs had abandoned their underlying claims for discrimination in hiring, promotions, and training, the second amended complaint retained a remedial request for affirmative action in hiring, work assignments, and promotions. In particular, plaintiffs sought an injunction:

Requiring defendants to abolish sex discrimination, sexual harassment, hostile work environment for women, and reprisal against women hired under the Bernardi consent decree or who have complained of sex discrimination by means of an affirmative action plan establishing goals and timetables for the implementation of all actions necessary to ...


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