Sperry Rand Corp. v. Larson

Citation554 F.2d 868
Decision Date09 May 1977
Docket NumberNo. 76-1734,76-1734
Parties14 Fair Empl.Prac.Cas. 1455, 14 Empl. Prac. Dec. P 7564 SPERRY RAND CORPORATION, Petitioner, v. Honorable Earl R. LARSON, United States District Judge for the District of Minnesota, Respondent, and Delores Elliott and Helen Ambrose, and all other persons similarly situated, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

David S. Doty, Minneapolis, Minn., Richard C. Hotvedt, of Popham, Haik, Schnobrich, Kaufman & Doty, Minneapolis, Minn., and Gerald S. Hartman, Washington, D. C., on brief, for Sperry Rand Corp. William Pentelovitch, Minneapolis, Minn., for International Brotherhood of Electrical Workers.

James T. Hansing, Minneapolis, Minn., made argument for Local Union No. 2047.

Richard Bland, Minneapolis, Minn., on brief for respondents.

Before GIBSON, Chief Judge, HEANEY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Sperry Rand Corporation, a defendant in a Title VII action brought by female employees, petitions this Court for a writ of mandamus to compel decertification of class action status previously granted conditionally to plaintiffs by the District Court. 1 The complaint seeks injunctive relief against class-based sex discrimination in employment practices. In addition, back pay and attorneys' fees are demanded. Also named as defendants are Local Union No. 2047 of the International Brotherhood of Electrical Workers, and the International Brotherhood of Electrical Workers, AFL-CIO. 2

I. Availability of Mandamus

Petitioner did not seek interlocutory review of the class action certification under 28 U.S.C. § 1292(b). Instead, it sought relief by way of the extraordinary writ of mandamus. This was a conscious procedural choice and it severely limits the scope of our review. 3

" The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). As we said in In re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 68 (8th Cir. 1976):

The remedy of mandamus is available only in those circumstances where the district court exceeds "the sphere of its discretionary power." Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 278, 19 L.Ed.2d 305, 315 (1967). See In re Cessna Aircraft Distributorship Antitrust Litigation, supra, 8 Cir., 518 F.2d 213 at 216; Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir. 1972). See also Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 775 (2d Cir. 1972). Mandamus is an extraordinary remedy reserved only for extraordinary situations. Stein v. Collinson, 499 F.2d 91, 95 (8th Cir. 1974); Gialde v. Time, Inc., 480 F.2d 1295, 1302 (8th Cir. 1973).

Mandamus may be appropriate to review orders granting class action designation when the issue presented is one of clear usurpation of power by the district court. Thus, in Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir. 1975), we issued the writ where the District Court had granted Rule 23 4 class action certification in an action brought under the Fair Labor Standards Act notwithstanding the special and conflicting "opt in" requirements of that Act. See 29 U.S.C. § 216(b). Mandamus was similarly granted in Pan American World Airways, Inc. v. United States District Court, 523 F.2d 1073 (9th Cir. 1975), and McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976), where the district court had ordered that next of kin of passengers killed in airline crashes be notified of other pending litigation against the airlines, thus exceeding its power under any statute, rule or equity power of the court.

It is our task to determine whether the action of the District Court in this case so exceeded its discretion as to be a usurpation of power requiring the issuance of the supervisory writ.

II. The Merits

Employment discrimination by definition has been construed as class-wide discrimination and the class action requirements have thus been broadly interpreted by the courts. See Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir. 1969); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). This of course does not obviate compliance with the requirements of Rule 23, see Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968), nor will individual claims automatically become class claims without a showing that others in the class were victims of the same or similar employment patterns and practices. See Wright v. Stone Container Corp., supra, 524 F.2d at 1062.

The complaint in the present action alleges no claims peculiar to the named plaintiffs, Elliott and Ambrose; instead, it charges that plaintiffs and members of the class "have been and are being deprived of income in the form of wages and of prospective retirement benefits, social security and other benefits due to them as workers, solely because of their sex." The discriminatory employment practices affecting the class which are alleged to have jeopardized jobs and adversely affected opportunities for advancement are set forth in the margin. 5

The main thrust of petitioner's claim to relief by way of mandamus is that the District Court's certification of the class under Rule 23(b)(2), combined with the order of notice to class members similar to that required under Rule 23(b) (3), operated to lock in antagonistic members of the class and at the same time foment litigation. It was this method of proceeding, ordered by the District Court pursuant to Rule 23(d), that petitioner contends was a usurpation of power by the District Court. In order to assess this contention, we must determine (1) whether the class action certification was so plainly inappropriate that it exceeded the court's discretion, and (2) whether the additional notice requirements were, under the circumstances present in this case, clearly outside the discretion of the District Court.

A. Class Action Certification

The factual determinations upon which the District Court found that plaintiffs had satisfied the class action prerequisites of Rule 23(a), 6 even if arguably erroneous, do not warrant resort to supervisory mandamus. The District Court held that the requirements of numerosity, commonality of issues, and typicality had been met. See Fed.R.Civ.P. 23(a). These determinations are well within the trial court's "sphere of its discretionary power." See Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); In re Cessna Aircraft Distributorship Antitrust Litigation, 518 F.2d 213, 216 (8th Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282 (1975). No discussion of these factors is required.

A more concerted challenge is made to the District Court's finding that plaintiffs would fairly and adequately represent the class. See Rule 23(a)(4). 7 Our review under a petition for mandamus is limited to a determination of whether the District Court acted outside its discretion or so clearly ignored a compelling showing of inappropriateness that granting class action certification amounted to a denial of due process.

No challenge is made to the competency of plaintiffs' counsel. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). Instead, it is claimed that plaintiffs, as past officers of the union, engaged in activities in and out of office that were not consistent with the interests of other members of the class. Five sources of antagonism were brought to the District Court's attention:

1. Intra-union disputes which occurred from 1968-1970 while plaintiffs were union officers;

2. Plaintiffs, as former union officers, may be called as witnesses to defend the Local against charges that it is liable for discriminatory practices that occurred during the time they were in office;

3. Plaintiffs were suspended from office in 1970 by the International and prohibited from holding office for five years. Since that time they have initiated three different proceedings against the unions, suggesting an ulterior motive for this suit.

4. The class itself does not support this suit, as evidenced by a resolution of nonsupport passed 83-0 at a union meeting and by unsolicited petitions in which the signers stated they did not support the action.

5. Since plaintiffs' suspension period has ended, they are likely to run for office again and may be using this lawsuit to advance their political ambitions.

The District Court gave careful consideration to whether these factors disqualified plaintiffs as fair and adequate representatives of the class, guided by the following principles, which we hold to be correct:

(1) the antagonism which will defeat maintenance of a class action must relate to the subject matter in controversy, as when the representative's claim conflicts with the economic interests of the class; (2) disagreements as to the remedy do not necessarily defeat a class action, especially in Title VII cases where the Court has broad powers in fashioning appropriate remedies; (3) the mere existence of political divisions or factionalism within a union does not require class decertification; (4) disagreements as to the wisdom of a union member's suing the union are not a proper basis for decertification; (5) union officers are not necessarily disenabled from suing on behalf of union members when the interests asserted are solely the interests of members and employees; (6) evidence of antagonism based on membership votes should be carefully scrutinized and should be clear and convincing; and (7) while questions of motive are secondary, the Court should be cognizant of the limitations of its supervisory powers and should be sensitive to the possible existence of ulterior motives which might jeopardize the interests...

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