578 F.2d 987 (5th Cir. 1978), 75-3377, Satterwhite v. City of Greenville, Tex.

Docket Nº:75-3377.
Citation:578 F.2d 987
Party Name:Dec. P 8560 Minda SATTERWHITE, on behalf of herself and others similarly situated, Plaintiffs-Appellants, v. CITY OF GREENVILLE, TEXAS, Defendant-Appellee.
Case Date:August 23, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 987

578 F.2d 987 (5th Cir. 1978)

Dec. P 8560

Minda SATTERWHITE, on behalf of herself and others similarly

situated, Plaintiffs-Appellants,

v.

CITY OF GREENVILLE, TEXAS, Defendant-Appellee.

No. 75-3377.

United States Court of Appeals, Fifth Circuit

August 23, 1978

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        Larry R. Daves, Tyler, Tex., for plaintiffs-appellants.

        Paul Mirengoff, Atty., E.E.O.C., Washington, D. C., amicus curiae.

        John A. Martin, Rod Phelan, Dallas, Tex., for defendant-appellee.

        Douglas S. McDowell (Equal Employment Advisory Council), Washington, D. C., amicus curiae.

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

        Before BROWN, Chief Judge, and COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY and RUBIN, Circuit Judges, [*]

        ALVIN B. RUBIN, Circuit Judge:

        The appeal in this case, originally filed as a class action, raises the question whether Article III 1 of the Constitution and Rule 23, 2 Federal Rules of Civil Procedure, permit a named plaintiff whose individual claim has been properly dismissed on the merits to represent a putative class where the district court, prior to the loss of the individual claim, denied certification of the class without conducting an adequate hearing.

        Minda Satterwhite, the named plaintiff, applied for the position of manager of Greenville's municipal airport. She was denied that office on the asserted basis that she would have a conflict of interest because her husband's business was the primary user of the airport. After a male was hired, she filed a class action on behalf of all present and prospective female employees of the city allegedly victimized by (1) a discriminatory hiring policy, (2) sexually segregated job classifications, and (3) a discriminatory compensation scheme, in violation of Title VII, 42 U.S.C. § 2000e, Et seq.

        Mrs. Satterwhite moved for certification of the class without introducing any evidentiary material with respect to its maintainability other than a computer printout of city employees indicating their position and gender. On February 4, 1975, without conducting an evidentiary hearing, the district court denied certification. After the later trial on the merits of Mrs. Satterwhite's individual claim, the court entered judgment for the city, Satterwhite v. City of Greenville, Tex., N.D.Tex.1975, 395 F.Supp. 698, on the basis that a male applicant with a similar conflict of interest would likewise have been denied the position. A panel of this court affirmed on the merits with respect to her individual claim, but reversed the denial of class certification. Satterwhite v. City of Greenville, Tex., 5 Cir. 1977, 549 F.2d 347.

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        Upon rehearing, a divided panel vacated its prior decision with respect to the class action issues, Satterwhite v. City of Greenville, Tex., 5 Cir. 1977, 557 F.2d 414. It found that the district court had failed to conduct an adequate evidentiary hearing with respect to maintainability, and that Article III and Rule 23 would permit Mrs. Satterwhite to represent the class notwithstanding the loss of her individual claim if: the denial of certification was improper under the circumstances existing at the time of the ruling; 3 the putative class members presently have sufficient interest in the outcome of the litigation to serve as Article III plaintiffs; and Mrs. Satterwhite can still adequately represent that class, notwithstanding her loss on her individual claim. Finding the record insufficient to permit it to decide whether these criteria were satisfied, the panel remanded for an evidentiary hearing. For reasons detailed in this opinion, the panel opinion is vacated, and we conclude that, on the record as a whole, Mrs. Satterwhite is not a proper class representative because she neither has claims typical of the members of the class nor has an adequate common interest or nexus with them. Therefore, the judgment of the trial court dismissing the class claims is affirmed. Because, under these circumstances, the class action cannot meet the requirements of Rule 23, Federal Rules of Civil Procedure, we need not reach the issue whether the plaintiff has the requisite standing to sue under Article III, Section 2 of the Constitution.

       I.

        As the panel correctly perceived, our course must be charted by the recent Supreme Court decisions in Sosna v. Iowa, 1975, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532, and Franks v. Bowman Transportation Co., Inc., 1976, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444. Unlike the panel, however, we conclude that our destination is determined by East Texas Motor Freight System Inc. v. Rodriguez, 1977, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453.

        In both Sosna and Franks the court considered separately each of the issues involved here, constitutional standing to sue, and adequacy of the class representative. In each case, a class had been properly certified by the district court, but the claims of the individuals who sought to represent the class had become moot during the appellate process. The court reasoned that certification bestows upon the class a "legal status separate from the interest asserted by (the named representative)." Sosna, Supra, 419 U.S. at 399, 95 S.Ct. at 557. Hence, if unnamed class members maintain a personal stake in the outcome, a live controversy satisfying the requirements of Article III exists. Franks, Supra, 424 U.S. at 756-57, 96 S.Ct. at 1260; Sosna, Supra, 419 U.S. at 402, 95 S.Ct. at 559. The court then determined that the named representatives would "fairly and adequately protect the interests of the class," as required by Rule 23(a), F.R.C.P., notwithstanding the mootness of their individual claims. 4

        In Rodriguez, Supra, the putative class had never been certified, and it had been determined upon trial that the named representative-plaintiffs' individual claims were without merit. This court certified the class while the case was on appeal. The

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Supreme Court reversed, "for the simple reason that it was evident by the time the case reached (the Court of Appeals) that the named plaintiffs were not proper class representatives under Fed.Rule Civ.Proc. 23(a)," because they "were not members of the class of discriminatees they purported to represent . . . (A) class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." 395 U.S. at 403, 97 S.Ct. at 1896. Thus, in Rodriguez the court based its decision on the failure of the class representatives to meet the requirements of Rule 23 and did not consider the question of standing.

        Similarly, it is now apparent that Mrs. Satterwhite is not a member of the class of discriminatees she seeks to represent. Unlike the individual representatives in Sosna And Franks, who suffered the same injury as other class members, but whose claims were mooted before the appellate process was exhausted, Mrs. Satterwhite has never suffered any legally cognizable injury either in common with the class or otherwise. 5 That Mrs. Satterwhite's individual claim lacks merit does not, of course, determine that she cannot adequately represent the class, but her lack of nexus with, and membership in, the class is fatal. She is not an employee of the city, and she has neither alleged in her complaint nor proved at the trial any facts indicating that she has herself been injured or will be injured by any of the policies that she complains of other than those relating to her airport manager claim now shown to be untenable. This court has affirmed that Mrs. Satterwhite was not the victim of discrimination on the part of the defendant. Hence, she is not at present a member of the class, and we now know that she was not a member even at the time that suit was filed, See Payne v. Travenol Laboratories, Inc., 5 Cir. 1978, 565 F.2d 895, 898, Amended, March 23, 1978; Thurston v. Dekle, 5 Cir. 1976, 531 F.2d 1264, 1269-1270. It is this lack of nexus, rather than a lack of merit to her claim of discrimination, that proves she is not a proper class representative. See Long v. Sapp, 5 Cir. 1974, 502 F.2d 34, 42.

        There may be instances where a plaintiff whose individual claim has been lost retains a personal stake in the outcome of the suit, or a "sufficient homogeneity of interests" with the class to represent it, Sosna, Supra, 419 U.S. at 403 n. 13, 95 S.Ct. at 559. For example, a female employee qualified for promotion, but passed over in favor of a more qualified male, may complain of a policy of not promoting females that threatens to injure her in the foreseeable future. Compare Horn v. Associated Wholesale Grocers, Inc., 10 Cir. 1977, 555 F.2d 270, 276-277, and cases cited therein; Donaldson v. Pillsbury Co., 8 Cir. 1977, 554 F.2d 825, 831 n. 5, Cert. denied, 1977, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128, and cases cited therein; Moss v. Lane Co., Inc., 4 Cir. 1973, 471 F.2d 853, 855 (cited with approval in Rodriguez, Supra, 97 S.Ct. at 1898 n. 12); with Rodriguez, Supra, and Walker v. World Tire Corp., Inc., 8 Cir. 1977, 563 F.2d 918, 922. 6 But Mrs. Satterwhite now lacks any such tie to the class.

       II.

        Mrs. Satterwhite contends that, even though it is now known that she has never

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been a class member, the trial court could not know this at the time of the initial certification decision. Thus, Mrs. Satterwhite argues that, because the failure to accord an evidentiary hearing was error and because, on remand, she could establish that such a hearing would have resulted in certification of the class with her as representative, the class must now be certified so that she can proceed to represent it as she would have been able to...

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