555 F.2d 270 (10th Cir. 1977), 76-1264, Horn v. Associated Wholesale Grocers, Inc.

Docket Nº:76-1264.
Citation:555 F.2d 270
Party Name:Dec. P 7542 Jethro HORN, Individually, and on behalf of all fellow employees of the Defendant who are similarly situated, Plaintiff-Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., Defendant-Appellee.
Case Date:May 11, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 270

555 F.2d 270 (10th Cir. 1977)

Dec. P 7542

Jethro HORN, Individually, and on behalf of all fellow

employees of the Defendant who are similarly

situated, Plaintiff-Appellant,



No. 76-1264.

United States Court of Appeals, Tenth Circuit

May 11, 1977

Argued and Submitted March 18, 1977.

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William H. Pickett of Pickett & Midkiff, Kansas City, Mo. (Sandra C. Midkiff of Pickett & Midkiff, Kansas City, Mo., on the brief), for plaintiff-appellant.

R. Pete Smith of McDowell, Rice, Baska & Smith, Kansas City, Kan. (Joseph H. McDowell of McDowell, Rice, Baska & Smith, Kansas City, Kan., on the brief), for defendant-appellee.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The principal questions in this case are first, whether the trial court erred in delaying the certification or noncertification of a class action until the trial on the merits had been completed; second, whether the numerosity requirement of Rule 23 has or has not been satisfied since the class as of the time of filing numbered 41, although at the time of trial it was 46; and third, whether the court erred in denying class relief based on the fact that the plaintiff's individual case was held to have failed for lack of evidence.

Our holding is that the class should have been certified at the earliest possible time and that injunctive relief at least should have been granted since the trial court did find that employment discrimination existed as to the class. We further hold that the numbers were sufficient under the circumstances here presented to warrant class certification.

The action sought relief on behalf of all of the black persons employed at the Associated Wholesale Grocers, Inc., who were similarly situated. Suit was brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., together with the Civil Rights Act of 1866, 42 U.S.C. Section 1981. The discrimination alleged was deprivation of employment opportunities, as well as discrimination in employment conditions and job promotions.

Defendant-appellee, Associated Wholesale Grocers, Inc., is a cooperative grocery with approximately 600 members who own or operate retail stores throughout the Midwest. The main office is in Kansas City, Kansas, which is within Wyandotte County, Kansas. The main distribution warehouse is in Kansas City, Kansas, although a second one is located in Springfield, Missouri.

The appellant is a black male person who has been employed by Associated Grocers (AG) since 1968. During all that time he has been assigned to jobs involving unskilled labor at the Kansas City, Kansas warehouse.

A charge of discrimination was filed by plaintiff-appellant before the EEOC on September 10, 1970. This alleged that he was being subjected to harassment and discrimination in the conditions of his employment and that the unlawful practices were the result of his race. Based upon the complaint, the EEOC made an investigation and determined that a reasonable cause existed to believe that broader-based racial discrimination existed in all of the departments and with respect to all employees of Associated Grocers. Following this, the EEOC entered into a conciliation agreement with Associated Grocers in which an effort was made to remedy the broad-based discrimination. No effort, however, was made to remedy the alleged violations against the appellant. The appellant received a notice of right to sue from the EEOC and proceeded to file the present action in the United States District Court on behalf of himself and his fellow employees.

At trial the evidence showed that the percentage of blacks in Wyandotte County

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was 19.11% in 1970. It was 17% in Jackson County, Missouri. The percentage of blacks, according to the evidence, in the employ of AG never exceeded 9% at its Kansas City warehouse. The total percentage of blacks in all of the AG warehouses was a maximum of 6%. No black persons were employed by AG in managerial positions until 1972, despite the fact that there were 135 management level employees working in Associated Grocers in Kansas City, Kansas and Springfield, Missouri. At the time of the employment of the first black employee as a warehouse supervisor, the average number of managerial employees was 140. The percentage of black clerical personnel at the Kansas City facility was 4% in 1969. Since then it has been 2%. For a period of five years prior to trial, only one black manager was employed, although there were six positions filled at managerial levels. This one promotion occurred after the EEOC had commenced investigating. Managerial employment is generally carried out by Associated Grocers through promotions from within. Most personnel evaluations leading to promotions were shown to have come about as a result of informal discussions among the supervisors.

EEOC reports were not filed by Associated Grocers for the years 1968 to 1974 until requests for production of documents on behalf of appellant here demanded production of these forms. Only then did Associated Grocers prepare and file them.

The trial court denied relief to plaintiff-appellant and also on behalf of the class. As to the plaintiff, the court found that:

The specific instances related by the plaintiff regarding extra duties assigned him, denial of seniority rights, and general harassment, if they existed, are not the result of racial discrimination. The defendant has shown to the Court's satisfaction that in each instance there were legitimate reasons for the treatment plaintiff received. The unusual personnel problems existing at the Kansas City warehouse when the Springfield staff was transferred there made assignment of duties, management of operations, and supervision of employees difficult. The additional work load assumed in Kansas City also aggravated this condition. Many of plaintiff's specific complaints therefore can be attributed to the need to have priority jobs attended to and completed with dispatch. Further, the plaintiff's own poor performance record clearly shows the need for his individual supervision and direction. Furthermore, the plaintiff has not shown that any invidious discrimination has been suffered by a fellow black employee on any specific occasion.

The court further found that contrary to plaintiff's charge, he was given the same opportunity as other employees to select or bid for job classifications in the warehouse; that he had never been fired, formally disciplined or laid off. The court also found that he had made no attempt to show that he or anyone else deserved promotion to another department on any specific occasion or that he was as well qualified as other candidates who received promotions. On that account the court said that he had not proven any instance of Associated Grocer's discrimination against him.

On the other hand, the trial court found that from the facts it could be inferred that Associated Grocers had engaged in practices which discriminated against black persons generally. On this subject the court said:

The black laborers in defendant's Kansas City warehouse never numbered over 9% of its total warehouse staff although percentages substantially more than this resided in the surrounding communities. No blacks at all were employed as warehouse laborers at Springfield. The overall percentage of blacks in defendant's warehouse work force, therefore, falls below 6%.

For a period of nine years covered by the evidence in this case, defendant has employed only one black person in its management division, which division had a combined labor force of 160 at both the Kansas City and Springfield facilities in 1974. Thus the percentage of blacks in this division is under 1% of the total.

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The percentage of blacks in defendant's entire clerical division equaled only 3% (sic) at its highest level, this being in 1969. That percentage has since fallen.

Commenting on the above statistics, the court said that they showed discrimination and that they were corroborated by evidence of Associated Grocer's employment patterns, practices and policies. Further, the management staff was not shown to have been familiar with the Civil Rights Act of 1964. It had no objective written standards for determining promotions, nor did it have criteria for hiring. One management employee admitted to practicing discrimination in hiring and promotion. The court then described the informal methods which were used by Associated Grocers in hiring its employees and finally said that while the statistics were not overwhelming they were at least suggestive of intentional and unlawful discriminatory conduct on the part of defendant-appellee.

The court held that it had jurisdiction over the class action and that the allegations of the complaint were sufficient. The court said that racial discrimination is by definition class discrimination and hence Civil Rights Act cases are therefore inherently class suits. It then went on, however, to hold that the impracticability of joinder and adequate representation must be proven. It conceded that pleadings are to be read so as to provide relief from racial discrimination on the broadest front. It then held that the plaintiff had satisfied the requirement that all members of the class have common questions of fact to be determined and that the plaintiff's claims are typical of the class generally. Also, the plaintiff was found to be representative of the class and to have ability to protect the interests of the class.

As to numerosity, it was conceded that impracticability does not mean that joinder must have been shown to have been impossible, but only that it would have been difficult...

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