417 F.2d 1122 (5th Cir. 1969), 26974, Johnson v. Georgia Highway Exp., Inc.

Docket Nº:26974.
Citation:417 F.2d 1122
Party Name:Richard JOHNSON, Jr., Plaintiff-Appellant, v. GEORGIA HIGHWAY EXPRESS, INC., Defendant-Appellee.
Case Date:October 30, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1122

417 F.2d 1122 (5th Cir. 1969)

Richard JOHNSON, Jr., Plaintiff-Appellant,



No. 26974.

United States Court of Appeals, Fifth Circuit.

October 30, 1969

Rehearing Denied Dec. 16, 1969.

Page 1123

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., Jack Greenberg, New York City, Gabrielle K. McDonald, Houston, Tex., Robert Belton, Gabrielle A. Kirk, New York City, for plaintiff-appellant.

John W. Wilcox, Jr., Wilson, Branch & Wilcox, Alexander E. Wilson III, Charles C. Benedict, Atlanta, Ga., for appellee.

Marian Halley, Atty., Equal Employment Opportunity Commission, Washington, D.C., Daniel Steiner, Gen. Counsel, Russell Specter, Asst. Gen. Counsel, amicus curiae.

Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and CABOT, district judge.

CABOT, District Judge:

This is an interlocutory appeal pursuant to 28 U.S.C. 1292(b), from an order dated June 24, 1968, of the United States District Court for the Northern District of Georgia which denied appellant's motion to strike the appellee's demand for a jury trial and holding that appellant could not maintain this suit as a class action until he proved that he had been discharged because of race. Additionally, the order restricted the scope of the class to those persons who had been discharged because of their race. The issues to be decided, therefore, are whether or not the court erred with respect to these holdings.

Application of the rule pertaining to class actions is to be considered in the light of the particular circumstances of the case and generally, unless abuse is shown, the trial court's decision as to whether a proper class action has been brought is final. Cypress v. Newport News General and Non-Sectarian Hospital Assn., 4 Cir. 1967, 375 F.2d 648. We hold that such abuse does appear and the trial court must be reversed.

This suit is an employment discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The appellant Johnson was employed by the appellee Georgia Highway Express, an interstate carrier of freight, in the capacity of a 'stripper' and 'stacker' in the appellee's Atlanta terminal for a number of years. It was alleged that in February of 1966 the company held a meeting with numerous Negro employees for the purpose of affording them an opportunity to present grievances to the company. The appellant, acting as spokesman for the group, inquired of the company how long it would be before Negro employees would be allowed to apply for jobs not then held by members of their race. Several weeks after the meeting appellant was discharged from his job. Appellant asserts that his discharge was racially motivated. The appellee denies that appellant was a spokesman for the group and contends that the appellant was discharged because of his failure to 'regularly report to work' and to 'regularly report to work on time.'

On or about March 31, 1966, appellant filed a charge of racial discrimination with the Equal Employment Opportunities Commission (EEOC) complaining of certain policies and practices of the appellee all in violation of the Civil Rights Act of 1964, supra. The Commission notified appellant that while it had found reasonable cause to believe that the practices alleged by him had been committed by the company it had been unable to secure the company's voluntary compliance.

Upon the failure of EEOC to conciliate, the appellant on February 27, 1968, filed this complaint on behalf of himself and, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all other similarly situated Negroes seeking equal employment opportunities without discrimination on the grounds of race or color. The complaint set forth various acts of discrimination and coupled the same with an assertion of a companywide policy of discrimination and segregation on the basis of race. The appellant sought to enjoin those practices and sought back pay. The appellee denied the material allegations of the complaint and moved to dismiss on the grounds that

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the suit was not a proper class action within the meaning of Rule 23 and requested a jury trial on 'any issues of...

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