564 F.2d 1304 (9th Cir. 1977), 76-1460, Doninger v. Pacific Northwest Bell, Inc.

Docket Nº:76-1460 and 76-1461.
Citation:564 F.2d 1304
Party Name:Dec. P 8017 Dolores DONINGER et al., Appellants, v. PACIFIC NORTHWEST BELL, INC., Appellee.
Case Date:November 25, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1304

564 F.2d 1304 (9th Cir. 1977)

Dec. P 8017

Dolores DONINGER et al., Appellants,



Nos. 76-1460 and 76-1461.

United States Court of Appeals, Ninth Circuit

November 25, 1977

Page 1305

Edward Heavey (argued), Heavey & Woody, Seattle, Wash., for appellants.

Mary Ellen Krug (argued), Kenneth E. Rekow, Marianne Holifield, Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Page 1306

Before KOELSCH and ELY, Circuit Judges, and VAN PELT, [*] District judge.

ELY, Circuit Judge:

These consolidated appeals are from Orders of the District Court, denying appellants' motions for class certification under Fed.R.Civ.P. 23. 1 The complaint was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). It alleged that the appellee, Pacific Northwest Bell (PNB), had engaged in illegal sex discrimination practices. The appellants, plaintiffs below, are 31 female employees of PNB. They seek, according to the complaint, to represent the class of "female persons who are now employed or were employed, or who might have become employed by the corporation at its plants or offices, and who have been, continue to be; or might be adversely affected by the practices complained of herein." The complaint thereafter alleges violations of Title VII and the Equal Pay Act by PNB in "job assignments in facilities assigning, frame assembly, and test desk. . . ." The appellants sought broad injunctive relief and backpay awards as remedies to compensate for, and to halt, the alleged discriminatory practices.

PNB answered the complaint by denying the allegations of sex discrimination and by asserting that a consent decree entered in EEOC, et al. v. American Telephone & Telegraph (AT&T), et al., Civil Cause No. 73-149, reported at 1 Emp.Prac.Guide (CCH) P 1860, at 1533-3 to 1533-14 (1973), prevented the present suit from being processed as a class action. This consent decree, entered by the United States District Court for the Eastern District of Pennsylvania, settled controversies between the United States and AT&T and all of its 22 operating companies arising from alleged violations of the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and the Equal Employment Opportunity Act. PNB was a party to the action and to the consent decree. The decree provided for back payments of approximately $15 million. Additionally, the decree directed implementation of affirmative action programs to prevent discrimination in employment, including setting goals and timetables for the programs covering transfers, promotions, layoffs,

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recalls, employee information, testing, promotion pay, hiring of female college graduates directly into management, and pay rate adjustments.

The consent decree provided specifically for individual employees to avail themselves of the third-party relief offered under the decree. The decree also described the effect of such voluntary acceptance of the third-party relief. Part B(II)(B) of the decree, entitled "Effect of Decree," provides:

  1. Acceptance by any person of individual relief ordered in PART A. Section VIII of this Decree shall constitute a waiver and release by such person of any claims for alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981, 1983, Executive Order 11246, as amended, or any applicable state fair employment practice laws or regulations based upon occurrences prior to the date of this Decree.

Individual employees taking advantage of the monetary relief offered under the decree were required by PNB to sign waiver forms that were parts of the drafts made payable to the employees. The waiver and release clause stated:

By endorsement the payee waives, releases, and covenants not to sue any Bell company with respect to any claims for violations of any federal or state fair employment practice law or regulation based on occurrences prior to January 18, 1973.

The pay drafts were accompanied by explanatory material advising the employees of their rights under the consent decree.

It was PNB's contention in the District Court that the consent decree negated the possibility of class treatment in the case now before us on the grounds that substantial numbers of the class that appellants seek to represent already had accepted the benefits available under the consent decree and had waived their right to bring suit for violations covered by the release. Therefore, PNB argued, class treatment was inappropriate because many in the putative class would be precluded from seeking certain of the remedies sought by appellants. PNB does not, nor could it properly, dispute the right of individual employees who had not voluntarily accepted relief under the decree to bring suit for alleged sex discrimination, whether or not the alleged violations were covered by the consent decree. Even though third-party relief was made available by the decree, since no employee was a party to the AT&T litigation or the consent decree, employees remained free, absent waiver, to reject the relief offered under the decree and seek individual relief through private litigation. See United States v. Allegheny-Ludlam Indus., Inc., 517 F.2d 826, 836-37, 840 (5th Cir. 1975), cert. denied sub nom., Harris et al. v. Allegheny-Ludlam Industries, Inc., 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); Reed v. Arlington Hotel Co., Inc., 476 F.2d 721, 724 (8th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973).

Approximately two months after the filing of the complaint, appellants submitted a set of 16 interrogatories to PNB. These interrogatories sought to probe the extent of PNB's computer capabilities in respect to personnel information. This attempted discovery was an obvious prelude to further discovery by the appellants of PNB's employment structure. PNB objected to the interrogatories, primarily on the ground that the only information that could be gained from the interrogatories pertained solely to the class action issue and that a class action was not appropriate because of the consent decree. The interrogatories and objections were filed with the District Court on June 9, 1975. On October 1, 1975, almost four months later, appellants submitted a motion to compel answers. The District Court denied the motion as being untimely and instructed the appellants first to move for class certification, reasoning that the interrogatories could become appropriate only after class certification, if at all. Subsequently, on November 3, 1975, the appellants moved for certification of a class. A hearing on the appellants' motion was conducted on December 12, 1975. Thereafter, on December 22, 1975, the District Court entered an Order denying the

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motion for class certification on the ground that appellants had not made an adequate showing that the requirements of Rule 23(a) had been met. On January 5, 1976, appellants moved that District Court to reconsider its Order, or, in the alternative, amend the Order to permit appellants to renew their motion for class certification after further discovery aimed at establishing the required elements of section (a) of Rule 23. On January 20, 1976, the District Court entered an Order denying appellants' motion on two grounds. First, the court held that discovery measures were "not likely to produce the information necessary to demonstrate that a class action is appropriate. . . ." Second, the court found that in light of the consent decree, class action treatment would not be superior to other available methods of handling the litigation. This appeal from the two Orders of the District Court denying class certification was then taken. We affirm.


At the outset, we note the jurisdictional basis for the appeal. Although class certification orders under Rule 23 are interlocutory in nature, such orders may be appealed, in certain circumstances, prior to the entry of a final judgment in the action in which the orders are made. If denial of class certification forecloses the broad injunctive relief sought on behalf of the putative class, jurisdiction in this court is proper under 28 U.S.C. § 1292(a) (1). 2 Gay v. Waiters' and Dairy Lunchmen's Union, 549 F.2d 1330, 1331-32 (9th Cir. 1977); Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir. 1974); Spangler v. United States, 415 F.2d 1242 (9th Cir. 1969). Since broad injunctive relief was here sought by the appellants, denial of class certification had the effect of narrowing and foreclosing that relief; consequently, we have jurisdiction to review the challenged Orders.


Appellants raise four principal contentions. First, they claim...

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