540 F.2d 718 (4th Cir. 1976), 75-2234, Nance v. Union Carbide Corp., Consumer Products Div.

Docket Nº:75-2234.
Citation:540 F.2d 718
Party Name:Winifred S. NANCE, Appellee, v. UNION CARBIDE CORPORATION, CONSUMER PRODUCTS DIVISION, a corporation, Appellant.
Case Date:July 28, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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540 F.2d 718 (4th Cir. 1976)

Winifred S. NANCE, Appellee,



corporation, Appellant.

No. 75-2234.

United States Court of Appeals, Fourth Circuit

July 28, 1976

Argued Jan. 7, 1976.

As Modified on Denial of Rehearing and Rehearing En Banc

Sept. 23, 1976.

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J. Frank Ogletree, Jr., Greenville, S.C. (H. Lane Dennard, Jr. and Stuart M. Vaughan, Jr., Greenville, S.C., on brief), for appellant.

Robert Belton, Charlotte, N.C. (Jonathan Wallas, Charlotte, N.C., on brief), for appellee, Susan J. Johnson, Atty., EEOC, Washington, D.C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reishel, Attys., EEOC, Washington, D.C., on brief), as amicus curiae.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This appeal arises out of an action charging sex discrimination in employment rights under Title VII. After trial, the District Court granted both individual and broad class relief. The defendant has appealed. We modify the decree and remand for entry of decree as hereinafter indicated.

The plaintiff is a female employee at the Charlotte, North Carolina battery plant of the defendant. Her employment began in 1952 and has been continuous since, save for layoffs. Following a layoff in January, 1970, she filed with the Equal Employment Opportunity Commission 1 over a period of some eleven months a succession of five charges alleging sex discrimination. All arose basically out of her layoff. Following receipt from the EEOC of a "suit letter," this judicial action was begun, and after trial, resulted in the judgment from which this appeal is taken. 1a

A preliminary issue, earnestly pressed by the defendant and briefed by both parties, is whether this action is to be treated as a

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class action or as an individual action. Concededly it was brought as an individual action. 2 This individual character of the action was not merely affirmed in the complaint as filed, it was so stipulated categorically in the record by the plaintiff herself at an early stage of the proceedings. This stipulation resulted from a motion by the defendant for a more definite statement by the plaintiff, setting forth the persons or class, if any, the plaintiff sought to represent. By this motion the defendant manifestly sought to establish definitely and finally whether the plaintiff intended to make any claim that her action was a class action. The motion was denied by the Court on the express condition "that the plaintiff (would) plead or file stipulations with regard to the class action aspects of the case, indicating more specifically the make-up of the class and the identity of the plaintiffs." By way of answer to such order, the plaintiff filed of record a stipulation to the effect that she did "not contemplate at this time seeking to amend the complaint to allege a class action, however, the plaintiff is of the opinion that whatever benefits she may obtain in this action should inure to the benefit of other similar situated females" at the Charlotte plant. 3

At no time after the entry of this stipulation did the plaintiff seek to convert her individual action into a class action; she made no motion to amend her complaint to state a class action; she at no point endeavored to declare "specifically the make-up of the class and the identity of the plaintiffs" she would represent as a class representative; in sum, she did nothing thereafter to comply with or satisfy the requirements for both alleging and establishing a right to proceed as a class action under Rule 23. Moreover, in a formal order, entered on January 24, 1974, on the eve of the commencement of trial in March of that year, and some eighteen months after this action was commenced, the District Court sustained the plaintiff's objections to certain interrogatories submitted by the defendant because of, as the Court put it, " representations of Plaintiff's counsel that this suit was brought and remains an individual action and not a class action and that back pay is not sought for, and cannot extend as a result of this suit to anyone other than the named plaintiff." 4 Nor did the District Court ever hold a hearing on class certification under Rule 23 or enter an order of class certification or set forth any definition of class or classes of which plaintiff was declared a representative or make any provision for notice to any identified class, all as contemplated under Rule 23. The issue thus is whether, in these circumstances, and in the face of two express "representations" by the plaintiff to the Court that her action was strictly an individual action, and in the absence of any order of any class certification by the Court itself, this action can fairly be declared a class action in compliance with Rule 23.

Despite the fact that Title VII actions often are described as " inherently class suits" and that the requirements of Rule 23 "must be read liberally in the context of suits brought under Title VII and

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Section 1981," 5 the plaintiff in such an action, in order to establish the right to proceed as a class representative, "must (like any other plaintiff) establish that the action meets the requirements of Rule 23(a);" employee discrimination suits do not represent exemptions from the terms of such Rule. 6 Rule 23 contemplates that every plaintiff, in order to qualify for class treatment thereunder, will seek 'class relief * * * in the complaint," 7 and in the absence of such an allegation, class treatment is generally considered inappropriate. An express ruling to this effect was made in Danner v. Phillips Petroleum Co. (5th Cir. 1971) 447 F.2d 159, a case very similar in its facts to the one under review here. In Danner, the plaintiff, a female, contended that, under the defendant's seniority practices, female employees were discriminated against in favor of male employees and that, as a result of such discriminatory seniority system, she had been laid off in violation of the terms of Title VII. She, as has the plaintiff here, filed her action under Title VII as an individual action. In holding "that class action relief must be predicated upon a proper class action complaint satisfying all the requirements of Rule 23," 8 the Court said, at p. 164:

" * * * none of the Rule 23 prerequisites have been satisfied. Mrs. Danner sued as an individual plaintiff; she established a prima facie case of sex discrimination against herself by proving that she had been discharged in a plant economy move because she possessed no seniority or bidding rights, and that no women in the plant had such rights. She showed further that the work she was doing was substantially similar to the work of men in the plant who had seniority and bidding rights, and that she was replaced by men who possessed those rights. Mrs. Danner, however, never took up the banner of women's liberation for all the female employees in the Phillips plant. This, of course, does not mean that female employees of Phillips may not take advantage of Mrs. Danner's judicial victory in the future, or, indeed, that they may not join together in a class action against Phillips if they feel one is justified. But if they decide to bring a class action, it must be brought and identified as such, and the predicate for class action relief must be carefully laid. In the meantime, Mrs. Danner's victory is for her alone to taste and enjoy."

A similar result was reached in Washington v. Safeway Corporation (10th Cir. 1972) 467 F.2d 945, 947, and by us in Carracter v. Morgan (4th Cir. 1973) 491 F.2d 458, 459. In fact, in the latter case, the plaintiffs had indicated in their complaint that they were suing both individually and as representatives of a class but, in the absence of any certification or identification of the class before a decision on the merits, 9 it was held that class treatment was inappropriate, the Court stating:

"Because of plaintiffs' failure to bring to the attention of the trial court, at any time, the matter of the determination of whether the action would be maintained as a class action, and also because of lack of notice to any class of the proposed final order, we are of opinion that the district court was correct in its actions and the opinion below ought to be affirmed. No determination was ever made at any time that the action be

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maintained as a class action. F.R.Civ.P. 23(c)(1). No notice was ever given. F.R.Civ.P. 23(e)." 10

Nor do Senter v. General Motors Corp., supra, and Bing v. Roadway Express, Inc. (5th Cir. 1973) 485 F.2d 441, relied on by the plaintiff in support of the class relief granted herein by the District Court, support her contention. In Senter, the Court at the outset emphasized that there was "no question but that the suit (involved there) was filed as a class action and it proceeded to trial as a class action" and then added that "Appellant (had) identified the suit as a class action in his opening remarks at trial and Appellee (had) responded by freely admitting that the suit had been filed as a class action." In that context, where, as the Court went on to comment, "all the parties (had) proceeded on the assumption that the action was a class action," the Court concluded, citing Bing v. Roadway Express, Inc. (5th Cir. 1973) 485 F.2d 441, 446-47, that the action was not improperly treated as a class action. 11 Bing, in its pertinent facts and ruling, was not substantially different from Senter. In Bing, "(i)t was apparent," the Court said, "from the beginning that Bing intended his suit to be a class action;" he had clearly proclaimed it as such in his complaint; and...

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