Wheeler v. American Home Products Corp. (Boyle-Midway Div.), BOYLE-MIDWAY

• Decision Date: 01 December 1977
• Docket Number: No. 75-3954,BOYLE-MIDWAY,75-3954
• Citation: 563 F.2d 1233
• Parties: 16 Fair Empl.Prac.Cas. 157 Carole WHEELER et al., Plaintiffs-Appellees, v. AMERICAN HOME PRODUCTS CORPORATION (DIVISION) et al., Defendants-Appellees, v. Bonnie BOSS et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1233

563 F.2d 1233 16 Fair Empl.Prac.Cas. 157 Carole WHEELER et al., Plaintiffs-Appellees,
v.
AMERICAN HOME PRODUCTS CORPORATION (BOYLE-MIDWAY DIVISION)
et al., Defendants-Appellees,
v.
Bonnie BOSS et al., Intervenors-Appellants. No. 75-3954. United States Court of Appeals,
Fifth Circuit. Dec. 1, 1977.

Page 1234

Joseph E. Cheeley, Buford, Ga., H. A. Stephens, Jr., Atlanta, Ga., for intervenors-appellants.

Patrick M. Scanlon, Robert S. Giolito, Atlanta, Ga., J. R. Tadlock, James J. Cronin, Denver, Colo., for Oil, Chemical & Atomic Workers et al.

John D. Marshall, Donald G. Mayhall, Atlanta, Ga., for American Home.

E. Lundy Baety, Atlanta, Ga., for Carole Wheeler et al.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG and TJOFLAT, Circuit Judges, and WYATT, ^* District Judge.

Page 1235

WYATT, District Judge:

This is an appeal by plaintiffs-intervenors from an order of the United States District Court for the Northern District of Georgia (Honorable Charles A. Moye, Jr., District Judge). The order appealed from is dated September 26, 1975, and was filed September 29, 1975.

There was no compliance with Fed.R.Civ.P. 58 in that on the decision of the District Court, no judgment was set forth on a separate document and entered. In accordance with an order of this Court filed June 29, 1977, this was called to the attention of the Clerk of the District Court and an order of the District Court was made and filed on August 31, 1977, amending nunc pro tunc the above order dated September 26, 1975, so as to dismiss the complaint with prejudice and also to dismiss the complaint of the intervenors. The Clerk then filed a judgment on a separate document which provided that the intervenors take nothing, that the action be dismissed and that defendants recover their costs from intervenors. This judgment was filed and entered August 31, 1977, nunc pro tunc September 29, 1975. The filing of the earlier notice of appeal is deemed under the circumstances to be a sufficient compliance with Fed.R.Civ.P. 58.

1.

The action was commenced by four female employees of American Home Products Corporation ("Home") at its plant in Chamblee, Georgia. The defendants were (a) Home, (b) Oil Chemical and Atomic Workers International Union ("the International"), and (c) Local 3-531 ("the Local") of the International. The action was brought as a class action under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e and following; "the Act"). The claim was that Home discriminated against women employees because of their sex and that the International and the Local failed to represent plaintiffs fairly because (among other things) they consented to the discrimination. Thereafter plaintiffs-intervenors, who are eight other female employees of Home at its Chamblee plant, were by order allowed to intervene; they then filed an "Intervenors' Complaint."

In the fulness of time, the original plaintiffs made a settlement agreement with the three defendants. This agreement was conditioned "on the dismissal with prejudice of this action as to all parties, including intervenors." The intervenor plaintiffs were not consulted in any way about the settlement agreement and did not sign it or consent to it.

The order filed on September 29, 1975, recited that plaintiffs-intervenors objected to the proposed settlement "because no monetary provisions were provided for the intervenors" but that "such objection is without merit". The order granted the motion of plaintiffs for approval of the settlement and directed that "the complaint is hereby dismissed with prejudice". The parties treated the order as one dismissing the action as against all parties, including plaintiffs-intervenors, and as denying intervenors any further opportunity to seek any relief in the Court below. The later order and judgment filed on August 31, 1977, made this clear.

Because we believe that the procedure followed in the District Court was unauthorized and that it denied rights to which intervenors were entitled, we reverse and remand for proceedings consistent with this opinion.

2.

The action was commenced on August 23, 1972. The complaint was framed as a class action under Fed.R.Civ.P. 23(b)(2). The class was broadly described but in substance was all women employed by Home at the Chamblee plant, represented by the International and the Local, and adversely affected by the discriminatory practices said to violate the Act. These practices were alleged to be the assignment of women to the lowest paying jobs, the keeping of separate seniority lists for men and women, and the like. Plaintiffs asked for an...