554 F.2d 825 (8th Cir. 1977), 76-1288, Donaldson v. Pillsbury Co.

Docket Nº:76-1288.
Citation:554 F.2d 825
Party Name:Marceline M. DONALDSON and others similarly situated, Appellant, v. The PILLSBURY COMPANY et al., Appellees.
Case Date:April 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 825

554 F.2d 825 (8th Cir. 1977)

Marceline M. DONALDSON and others similarly situated, Appellant,


The PILLSBURY COMPANY et al., Appellees.

No. 76-1288.

United States Court of Appeals, Eighth Circuit

April 14, 1977

Submitted Sept. 24, 1976.

Rehearing and Rehearing En Banc Denied May 9, 1977.

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Deborah Greenberg (argued), New York City, Percy L. Julian, Jr., Kenneth P. Casey and Daphne Webb, Julian & Associates, Madison, Wis., Delores C. Orey, St. Paul, Minn., and Jack Greenberg, New York City, on briefs, for appellant.

Thomas P. Kane, and James C. Noonan, St. Paul, Minn. (argued); Robert R. Reinhart, Jr., St. Paul, Minn., on brief, for appellees.

Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, Lutz Alexander Prager and Susan J. Johnson, Attys., Equal Employment Opportunity Commission, Washington, D. C., on brief, for amicus curiae, U. S. Equal Employment Opportunity Commission.

Before BRIGHT, ROSS and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Marceline Donaldson, a black woman, appeals from a judgment in favor of the defendants, The Pillsbury Company and certain of its employees, in her employment discrimination action. Appellant contends that the District Court erred both in refusing to certify her suit as a class action, and in ruling on certain discovery and evidentiary matters in the trial of her individual claim.

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Appellant was employed by Pillsbury at its Twin Cities headquarters in Minneapolis-St. Paul, Minnesota, from February 1, 1972, to January 31, 1973. She originally held a management position in the Personnel Department. In September, 1972, she was transferred at her request to a position in the International Operations Division. Some time thereafter, her supervisors became dissatisfied with her work in International, and in December or January, 1973, the decision to discharge her was made.

Appellant's amended complaint alleged numerous acts of discrimination against her. She contended that, in her job in Personnel, she was not originally provided a job title or description; that the job provided for her in International was below that for which she was qualified; that various individuals withheld from her the standards, guidance, and training necessary to job performance; that her working place, telephone arrangements, and secretarial arrangements in International were inferior to those provided to others in similar positions; that Pillsbury did not provide educational aid so that she could take Spanish courses; that her attempts to eliminate discrimination against herself and other employees were rebuffed; that she was not furnished with objective evaluations; that she was not paid the same compensation as white males in similar positions; and that she was discharged on the basis of her race and her sex, and her opposition to Pillsbury's discriminatory practices.

In the complaint, appellant sought to represent a class composed of all black and female persons who are or were employed by Pillsbury at its Twin City headquarters, and all black and female persons who have been denied such employment on account of race or sex. Such class would, of course, be circumscribed by the effective dates of the jurisdictional statutes and the applicable statutes of limitations. 1 She alleged that Pillsbury's general employment practices were discriminatory in many respects, particularly that the company maintained separate hiring offices for men and women, engaged in word of mouth recruitment, paid lower wages to females and minority group males, placed such persons into positions below those for which they were qualified, failed to furnish objective evaluations, promoted whites rather than blacks with more seniority, used unreliable testing instruments, excluded women and blacks from company-sponsored educational programs, harassed those who opposed unlawful employment practices, and withheld training and guidance from black and female employees.

After filing the amended complaint, appellant moved to certify the action as a class action under Fed.R.Civ.P. 23. On September 15, 1975, the District Court denied this motion. In doing so, the Court relied principally on the typicality requirement of Rule 23(a)(3). The Court said:

Plaintiff's claims are unique to herself and not typical or representative of the classes she seeks to represent. She was especially hired outside the normal channels to do a special kind of work. She claims personal mistreatment relating to inadequate training and discharge and personal complaints about having a secretary, individual office or telephone. She also attacks Pillsbury's personnel policies as being discriminatory.

Plaintiff personally well may have a good cause of action and Pillsbury's personnel policies well may be subject to attack, but this plaintiff is not an appropriate representative for the class because the requisites of Rule 23(a) (3), requiring typicality of claims, is not satisfied. It is also questionable whether the other requisites, numerosity, commonality of issues and adequacy of representation, are met, but it is very clear to me that Marceline Donaldson would not be an appropriate person under the standards set in Rule 23 to represent all Blacks and all women whom she seeks to represent.

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Appellant filed a motion to reconsider the denial of class standing. This motion was denied; an appeal from the denial was dismissed by this Court for lack of jurisdiction. Donaldson v. The Pillsbury Co., 529 F.2d 979 (8th Cir. 1976).

Appellant conducted extensive pretrial discovery. Her attorneys undertook a statistical analysis of Pillsbury's employment practices. In response to a first round of interrogatories and motions for production of documents, Pillsbury allowed her attorneys access to many documents, including employment applications and personnel files. Pillsbury also produced computer printouts containing a good deal of information relating to the characteristics of Pillsbury's labor force.

Appellant's attorneys contended that this information was not sufficient for their purposes. They filed a second round of interrogatories, requesting detailed information about the files maintained in Pillsbury's electronic data processing system. The purpose of these interrogatories was to enable the attorneys to file requests for production of magnetic tapes containing the data stored in certain of Pillsbury's computer files, so that appellant's experts could perform their own computer analysis of the data. Pillsbury, in response to the interrogatories, replied that it would be "literally impossible to provide the information requested" because "between 500 and 2,000 different file and report formats exist." Appellant then moved to compel answers to these interrogatories. A U. S. Magistrate, to whom the matter had been referred by the District Court, denied the motion to compel answers, finding that the interrogatories "have been asked in other ways and have been answered." The District Court, on motion to reconsider this order, denied discovery of the computer information.

There followed a lengthy trial. Appellant was her own principal witness. She testified to what she believed were numerous instances of discrimination against her. When she first was assigned to Personnel, she was not given a job description. In Personnel, her principal function became resolving the complaints of female and minority employees. She encountered resistance within the company in her attempts to do so. She received no performance review while in Personnel. On her transfer to International, she was assigned to a secretary's desk rather than the office she had been promised. Her telephone arrangements were unsatisfactory. (These were corrected, after appellant's complaint in October.) She testified that she was unjustly accused of making errors in her work. Much of the work assigned to her was of a clerical nature, or was "makework." When she was assigned markets to handle, the necessary files were in the hands of another employee, so that she was unable to handle them. She testified that her supervisor made sexual advances to her. Finally, appellant was terminated.

As part of her case, appellant made an offer of proof of testimony of fifteen minority employees who contended that they had been victims of discrimination at Pillsbury and who had spoken with appellant about their problems. The District Court at time of trial declined to admit this evidence, finding it irrelevant. Appellant also submitted computer printouts and charts containing statistical information on Pillsbury's hiring processes. The District Court admitted certain of these exhibits into evidence, but excluded others.

Pillsbury produced considerable evidence, including testimony by managerial personnel, contradicting appellant's claims of discrimination. L. D. Compton, an official in the International Division, testified that at no time had there been plans to provide appellant with office, telephone, and secretarial facilities inferior to those provided others at her level. In fact, she was provided with comparable facilities. Compton testified that appellant's performance on several projects was unsatisfactory, that she received numerous personal phone calls, and that she sometimes absented herself from the office without permission. He also testified that one of the assignments characterized by appellant as "makework" was in fact a training exercise, designed to

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give appellant knowledge of the problems of exporting consumer products, a knowledge essential to her job performance.

On February 6, 1976, the District Court entered a memorandum and order finding for the defendants on the merits. It found appellant to...

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