563 F.2d 918 (8th Cir. 1977), 76-1834, Walker v. World Tire Corp., Inc.

Docket Nº:76-1834.
Citation:563 F.2d 918
Party Name:Dec. P 7882 Howard T. WALKER, on his own behalf and others similarly situated, Appellant, v. WORLD TIRE CORPORATION, INC. and Robert Ross, Appellees.
Case Date:October 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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563 F.2d 918 (8th Cir. 1977)

Dec. P 7882

Howard T. WALKER, on his own behalf and others similarly

situated, Appellant,


WORLD TIRE CORPORATION, INC. and Robert Ross, Appellees.

No. 76-1834.

United States Court of Appeals, Eighth Circuit

October 18, 1977

Submitted May 17, 1977.

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Michael J. Hoare, Mid-America Employment Rights Project, St. Louis, Mo., for appellant; Susan Spiegel, St. Louis, Mo., on brief.

Theodore D. Ponfil, Clayton, Mo., for appellees; Jerome Kalishman, Clayton, Mo., on brief.

Before STEPHENSON and WEBSTER, Circuit Judges, and BENSON, Chief Judge. [*]

WEBSTER, Circuit Judge.

The principal issue on appeal in this employment discrimination action is whether the District Court erred in denying class certification. Although we do not endorse the procedure followed by the District Court in denying certification, we conclude, on the basis of the entire record, that appellant is not a suitable class representative. Accordingly, we affirm the denial of certification.

On March 18, 1975, Howard Walker brought an action against his former employer, World Tire Corporation, and its chief executive officer, Robert Ross. The complaint alleged that World had discriminated against plaintiff and other black persons with respect to the terms and conditions of employment. Particularly, Walker claimed he was denied advancement to higher level, better paying positions, and was discharged because of race. He sought to represent a class composed of

all black persons who unsuccessfully applied or will apply for entry level and/or advanced positions with the Defendant Company or who might have applied but for the discriminatory practices complained of herein, and of all black persons who were or might be discharged by Defendant Company because of its discriminatory policies and practices.

The complaint was framed in a single count under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. 1

On May 2, following grants of requests for extension of time, defendant Ross filed a motion to dismiss and defendant World filed its separate answer. On June 2, the District Court ordered plaintiff to file an amended complaint, with his § 1981 and Title VII claim in different counts. The amended complaint was filed on July 10, and was subject to a second motion to dismiss, which was denied on August 7. During this period, plaintiff had initiated a first round of discovery.

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On August 7, the same day it denied the second motion to dismiss, the District Court, sua sponte and without notice to the parties, ruled on the class action question. The Court said:

This action was filed March 18, 1975. Plaintiff, a black man, was discharged, allegedly by reason of race discrimination. He alleges that he also represents a class. The complaint prays that the case be advanced on the docket and heard at the earliest practicable date. On August 4, 1975, we set the case for trial on October 6, 1975. To date, not only has neither party requested a certification respecting the right of plaintiff to maintain the action as a class action under Rules 23(a) and 23(b)(2), F.R.C.P., but we find nothing in the file other than the conclusory allegations of the complaint on this issue. There has been no showing of numerosity nor of plaintiff's ability to represent the class fairly and adequately. So, too, the alleged class is broadly stated to include all black persons who might in the future be affected.

Plaintiff having failed to demonstrate that the requirements of a class action have been met, IT IS HEREBY ORDERED that this action not be maintained as a class action. However, it should be borne in mind that if the facts warrant, we have both the authority and duty to frame a decree on the trial of plaintiff's claim to include injunctive and declaratory relief, sufficiently broad to enure to the benefit of the amorphous class (Cf. Brito v. Zia Company, 10 Cir., 478 F.2d 1200) without the necessity of resort to the class action device.

The case proceeded to trial on appellant's individual claim of discrimination. The evidence showed that World Tire is a very small, wholesale tire distributor, having eighteen employees at time of trial. The company was divided into two departments: the office, in which virtually all employees were white, 2 and the warehouse, in which the majority of employees were black. Walker attempted to show that he sought promotion from the position of warehouseman to the office position of tire adjuster; promotion had been denied because of his race; he had later been injured while on the job as warehouseman; and he had been discharged because he was physically no longer able to perform that job. He contended that the discharge was therefore the result of the earlier denial of a promotion.

The District Court allowed Walker unlimited use of pattern and practice evidence in support of his claim. He was allowed to introduce evidence showing in detail the racial composition of World's work force. He was allowed also to adduce evidence that World hired on a word-of-mouth basis; that the company had for thirty years bought lunches one day a week for office employees, but not for warehouse employees; that the company bought birthday cakes for white office employees, but for the black office employees only on demand; that a black employee was once disciplined for having an outside business, while white employees were not; that a black employee was once refused use of a company vehicle, while a white employee was not; that sports tickets were inequitably distributed; that the company maintained a kitchen for office employees that warehouse employees and the one black office employee were not allowed to use; and that, at an earlier location the company maintained separate bathrooms for warehouse and office employees.

World defended by attempting to prove it did not engage in discrimination, and that plaintiff's individual claim was without merit because he had never sought and was unqualified for the tire adjuster position that he claims he was improperly denied. The District Court, in findings of fact that appellant does not challenge, found for

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World on the promotion and discharge issue. It denied appellant all relief. This appeal followed.

Appellant's principal contention is that the District Court abused its discretion in denying class status on its own motion and without notice to the parties or a hearing on the issue. It is true that under Fed.R.Civ.P. 23(c) an order determining whether an action should proceed as a class action should be entered "(a)s soon as practicable after the commencement of an action." If the parties have not moved for a ruling on certification within an appropriate time, an early decision on the issue can be achieved only if the district court acts sua sponte. Senter v. General...

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