Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1991)

MEMORANDUM^* 

Rosemary A. Ficalora moves for specific enforcement of a consent decree entered into with Lockheed California Co. (Lockheed) in a class suit in which she was the named representative of the class. The district court denied her motion. We affirm in part, reverse in part and remand.

BACKGROUND

Ficalora originally filed her action pro per claiming sex discrimination in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000(e), et seq. The action was converted into a class action, and a proposed settlement was negotiated between Lockheed and A. Thomas Hunt, counsel for the class. The proposed decree contained in Paragraph 14 a provision that persons who had made written application for job classifications covered by the targets of the decree, and who had made these applications between February 16, 1981 and the effective date of decree, should be given priority consideration. The targets of the decree were salary grades 5, 6, 7, and 8.

Paragraph 16 of the proposed decree stated that Lockheed would remove any reference in Ficalora's personnel file to her involvement in the suit and would not inform prospective employers of her involvement and would, in addition, pay her $5,000. In consideration of this amount, Ficalora was to execute a release of all claims for damage and to promise not to "apply for or in any manner seek employment or reemployment with Lockheed." On September 13, 1983 Ficalora applied for reinstatement in her previous position. Her application was referred to Lockheed's counsel, Gordon E. Krischer of O'Melveney & Myers, who sent a copy of the application to Hunt. Krischer's letter to Hunt said,

As you know, Ms. Ficalora's claims against Lockheed will be settled as part of the overall settlement and that she waived reinstatement and/or recall and agrees not to apply or seek employment with Lockheed.

The district court approved the proposed consent decree on December 5, 1983. However, Ficalora objected and refused to sign the release. She appealed the approval of the decree. This court vacated the decree and remanded with the following directions to the district court:

The allegations in Ficalora's briefs before this court present a serious charge that her interests were sacrificed in order to achieve a settlement that was good for the class attorney but bad for her. There may be valid, nonretaliatory business reasons for Lockheed to get rid of the employee who sued. These reasons, if they exist, should be set forth in findings of fact relevant to the reasonableness of the settlement as it affected the named plaintiff.

Ficalora v. Lockheed California Co., 751 F.2d 995 (1985).

On remand the district court took the position that, since Ficalora had not signed the individual release, there was no retaliatory provision in the decree that was effective against her. The district court concluded in a Memorandum Opinion on May 14, 1985:

Therefore plaintiff has remained in exactly the same position as all other members of the class.... Under the terms of the consent decree Ms. Ficalora is eligible for rehire to the same extent as any other class member.

In the light of Ficalora's equal status within the class and "the absence of any individual retaliatory provision" the district court found the settlement had been fair as to Ficalora as it was to other members of the class.

Ficalora appealed this decision. Her case was heard by the same panel that had heard the previous appeal. This court noted that the provision of the consent decree that referred to the release had not been removed. This court entered an order that this portion of the decree and the accompanying release were of "no effect and are void." This court, on December 16, 1986, then affirmed the district court's finding that the settlement was fair to all persons including Ficalora.

Ficalora continued to seek employment from Lockheed. She made over a dozen applications. Each time Lockheed apparently gave her application priority consideration. Each time Lockheed refused to hire her.

On October 19, 1987 Ficalora brought, pro per, a motion for contempt against Lockheed. The district court construed her motion as one for specific enforcement of the consent decree. On December 18, 1987, without an evidentiary hearing or oral argument, the district court denied her motion.

Two distinct issues were addressed by Ficalora's motion. She sought access to Lockheed's annual reports under the consent decrees. She refused to promise to keep the reports confidential. The district court held that she had made no showing why the reports should be made public and denied her request.

The second issue was Lockheed's refusal to employ her. The district court cited the provision of the consent decree that only the plaintiff class could institute proceedings to enforce the decree and held that Ficalora had no standing to seek enforcement.

The district court further held that, even if she did have standing, Ficalora had not shown a violation of the decree. Two of her applications had been for her old position at salary grade 4, which was not a target position under the decree. As to the applications for salary grades 5, 6, and 7, the only targets had been met so Lockheed had discharged its obligations without the need to rehire Ficalora.

Ficalora appeals to this court.

ANALYSIS

Something seems to be wrong when three appeals come to this court after the entry of a consent decree in settlement of a class action suit. It would be easy, but mistaken to blame the persistence of Ficalora for these multiple appeals. That Ficalora and class counsel Hunt were in sharp disagreement at the time of the settlement is a partial key to these difficulties. At the same time, a serious question has been raised as to whether Lockheed dealt fairly and candidly with Ficalora and with the district court.

One of the documents filed by Lockheed in opposition to her motion for enforcement was a xerox of what purported to be a notice she was given at the time of her layoff on November 20, 1981. The first half of this xerox, under the printed caption "Employee's Reason for Severance," has typed beneath it, "Layoff due to lack of work." Beneath this statement, and apparently forming a single continuous document with it, is a form entitled, "Department Evaluation." Opposite this heading are three categories: Ability, Conduct, and Production. Ficalora was marked Average in Ability; Below Average in Production; and Poor--the lowest rating possible--in Conduct. Under this rating there is a subheading

Recommendations: Rehire () Yes () No.

The "no" box is checked. There follows in type,

Employee had been advised that her performance as it relates to documentation and correspondence was not acceptable. In addition, she was reticent [sic] to accept constructive criticism or direction. Employee was advised on several occasions that her tardiness was unacceptable.

These comments have underneath them the signature of a department head, "B. Wendling." The signature "B.E. Wendling" with the date also appears on the first part of the form. This first part also carries the signature of the "Personnel Representative," "E.T. Richardson." On the lower part of the page after the negative evaluation, there is a space entitled "Comments By Employee." The space is blank. By the printed word, "Interviewer," appears the signature "Tammy Richardson" and the date of November 20, 1981.

In the course of oral argument of this appeal, the court expressed surprise that Ficalora did not know of the negative evaluation and recommendation not to rehire her that apparently appeared as a part of the notice that she received of severance. Ficalora then offered to the court the notice she had received. This notice corresponded only to the top half of the xeroxed document that Lockheed had filed in this case. There was absolutely nothing like the second half of the document with its negative evaluation and recommendation not to rehire.

The court then questioned Lockheed's counsel, Douglas E. Dexter of O'Melveney and Myers, as to the discrepancy between the notice given Ficalora and the xeroxed document filed with the court. Dexter at once produced for the court another copy of the notice of layoff. The front part of this notice corresponded to the notice given Ficalora. The back of this notice corresponded to the bottom part of the xeroxed document given the court. The court asked Dexter if the xeroxed document was not misleading in apparently being a single document which Ficalora had received. Dexter replied that counsel had not "affirmatively misled" the court. The two documents submitted by Ficalora were lodged with this court and will be transmitted to the district court to be received as evidence.

There are at least two possibilities. One is that now suggested by Ficalora that the back of the discharge notice was filled in later when Lockheed, for retaliatory reasons, did not want to rehire Ficalora. There is enough indication, in Krischer's premature letter of September 13, 1983 and in the proposed explicit provision of the decree, of Lockheed's desire not to rehire Ficalora for this possibility to be plausible. The apparent inconsistency between the stated reason for what is called a layoff and the negative evaluation; the very low rating of Ficalora's "conduct"; the apparent inconsistency between this very low rating and the actual conduct commented on as objectionable; the inconsistency in Wendling and Richardson's way of signing; and the submission by Lockheed to the court of the misleading xerox copy are all factors to be considered in support of this possibility. On remand it would be appropriate for the district court to examine the circumstances under which the back of the notice was filled in; the authenticity of the two signatures that appear on the back of the notice; Lockheed's usual practice in giving such notices to the employees; the reason why Ficalora was not given the notice in the files or told of its existence; and the reasons why counsel for Lockheed gave to the court a misleading xerox of the notice.

Another possibility is that the information on the back of the notice was recorded at the time that Ficalora was laid off. If that is the case Lockheed was aware from the beginning that Ficalora had a poor employment record and that there was a recommendation in the files not to rehire an employee whose production was below average and whose conduct was poor.

With the kind of employment record that Lockheed says Ficalora had on November 20, 1981 she was in no realistic sense eligible for promotion or even for rehire at the salary 4 level. Her employment history at Lockheed is so bad that the district court in its most recent order concluded, "It would be futile for Ficalora to submit future applications." But if it is futile for Ficalora now to submit future applications, it was also futile for her to submit applications at any time after November 20, 1981. For her any rights secured by the consent decree were illusory.

By not revealing the information that Lockheed says it had in its possession, Lockheed may have permitted the district court to be under the impression that Ficalora would be treated equally with other eligible members of the class. In fact, if Lockheed's present contention is correct, a black mark had been registered against her. Ficalora had no chance of employment. She was never, as the district court was led to believe, "in exactly the same position as all other members of the class."

If Lockheed, by its language or conduct, induced the district court to act on the basis that Ficalora was in exactly the same position as all other members of the class, Lockheed is now estopped to assert the bad employment record it has belatedly produced. In re J.F. Hink & Son, 815 F.2d 1314, 1218 (9th Cir. 1987). "The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden." Dickerson v. Colgrove, 100 U.S. 578, 580 (1880).

Under the circumstances of this case it would be to sacrifice substance to form to rely on the language of the consent decree that authorizes only counsel for the class to seek its enforcement. Ficalora is not effectively represented by counsel for the class. On the facts presented, she may have been the victim of a fraud as to her employment record or she may have been the victim of Lockheed's deliberate concealment of her employment record. In either case, as the person who initiated the law suit and has received only an illusory benefit from the settlement, Ficalora has standing to bring this motion and this appeal.

A consent decree is not cast in concrete. Although entered by consent, the decree remains open to change "as events may shape the need." United States v. Swift & Co., 286 U.S. 106, 114 (1932) (per Cardozo, J.). In this case, a new event has occurred: the court has discovered that either Lockheed, for retaliatory reasons, fabricated a pretextual record of poor performance by Ficalora, or Lockheed possessed this record and did not disclose it to the court when Lockheed was representing that Ficalora was equal in eligibility to other members of the class.

By its terms the decree remains in effect "for 5 years from its date of entry or until such time as all of the obligations of this Decree have been met, whichever first occurs." The decree was entered December 5, 1983. The decree did not, however, become effective until this court reformed it and, as reformed, approved it by the memorandum decision of December 16, 1986. The effective date of "entry" was the latter date, and by its terms the decree will expire on December 16, 1991, unless the obligations of the decree have been met. As the obligations of Lockheed to Ficalora under the decree have not been met, the decree is still in effect. The district court may, therefore, equitably reform it.

In the course of reforming the decree to do justice to Ficalora, the court may appropriately appoint experienced counsel for Ficalora if she so desires, or the court may, in the light of its broad experience, fashion its own remedy for Ficalora in the light of what is either Lockheed's deliberate retaliation or Lockheed's concealment of critical facts.

We affirm the district court's holding that Ficalora has no right to make public the annual consent decree reports.

Any further appeals--we hope there may be need for none--are to be referred to this panel of the court.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Costs of the appeal are to be awarded to Appellant.