Hill v. Western Elec. Co., Inc.
| Decision Date | 06 April 1979 |
| Docket Number | No. 76-2439,76-2439 |
| Parties | 19 Fair Empl.Prac.Cas. 490, 19 Empl. Prac. Dec. P 9097 Ollie T. HILL, John W. Ward, Charles R. Merriwether, Jr., Edward A. Minatee, Minnie Marbel, Mary E. Carter, Individually and on behalf of all other persons similarly situated, Appellees, v. WESTERN ELECTRIC COMPANY, INC., Appellant. The American Society for Personnel Administration, Amicus Curiae. Equal Employment Advisory Council, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thompson Powers and Kenneth I. Jonson, Washington, D. C. (Michael P. Berman, John R. Labovitz, Steptoe & Johnson, William G. Christopher, John M. Edsall, Washington, D. C., on brief), for appellant.
Paul S. Reichler, Washington, D. C. (James A. Beat, Jeffrey A. Burt, Arnold & Porter, Washington, D. C., Geoffrey J. Vitt, Cohen, Vitt & Annand, Alexandria, Va., Elizabeth Rindskopf, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., on brief), for appellees.
William N. Ng, Atty., E. E. O. C., Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, E. E. O. C., Washington, D. C., on brief), as amicus curiae (Charles P. O'Connor, Harry A. Rissetto, Susan S. Sauntry, Morgan, Lewis & Bockius, Washington, D. C., on brief), for amicus curiae The American Society for Personnel Administration.
Before HAYNSWORTH, Chief Judge, LAY * and RUSSELL, Circuit Judges.
Six black male and female plaintiffs instituted this class action against Western Electric, alleging that the company had engaged in a pattern of discrimination against blacks and females in hiring, in job assignments, and in promotions to salaried and supervisory positions in its facilities in Arlington, Virginia. The district judge upheld all of the plaintiffs' claims and granted extensive relief. Because no named plaintiff is a member of the excluded classes, we think the district court improperly considered the discrimination in hiring claims and the claim of discrimination against women in promotions in the Installation facility. We accept the findings of discrimination in job assignments in the Service facility as being not clearly erroneous, but we conclude that there was a failure to prove a Prima facie case of discrimination in promotions.
Western Electric has a Service Center in Arlington, Virginia. Its principal work is the repair, refinishing and reassembly of telephone sets and other telephone equipment. There is an area in the shop, however, called "Shop Trades" in which wooden and metal telephone booths are repaired, refinished and assembled, and miscellaneous other woodwork and metalwork is done there. Some fourteen wood and metal workers, all of whom are white males, were assigned to that work.
The work in the Service facility is supported by a warehouse and by an administrative and technical office, both of which are housed in the same building in which the Service shops are operated.
A small portion of the building is occupied by the administrative office of the Installation division. Only office workers are there. The installers, who work under that administrative unit, are engaged in installing switching and receiving equipment in business and professional establishments in the metropolitan Washington area.
The named plaintiffs are two black females employed in the Service Shop and four black males employed, or formerly employed, as installers of switching equipment in the Washington area. No one of the six was denied employment, and no one is a member of a class of black or female applicants who were denied employment allegedly on the basis of race. 1
At the time of his decision, the district court had for guidance our opinion in Barnett v. W. T. Grant Company, 518 F.2d 543 (4th Cir. 1975). There we allowed Barnett to represent a class which included some people who had not been disadvantaged directly in the same way Barnett alleged that he had been disadvantaged. In footnote 4, however, we noticed the problem which is created when representatives are allowed to represent a class which includes people who have not been disadvantaged directly just as the representatives have been. We permitted it in that case, however, because Barnett sought to represent only persons seeking positions as over-the-road drivers and had not launched a general attack upon racial discrimination in the employer's other employment practices.
If Barnett arguably might authorize these named plaintiffs, who were employed, to represent unsuccessful applicants, who were denied employment, the basis for any such application was foreclosed by the Supreme Court's subsequent decision in East Texas Motor Freight v. Rodriquez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). In Rodriquez, the Supreme Court emphasized that a class representative must "possess the same interest(s) and suffer the same injury" as the class members they seek to represent. All blacks and females have an interest in being free from discrimination in employment. In a very broad and loose sense, any member of any such class who suffers discrimination has the same interest as other members of the class who suffered discrimination in very different circumstances and by very different means, but clearly that is not the thrust of Rodriquez. The interest of these named, employed plaintiffs in being free of discrimination in job assignments and in promotions is so different in kind from that of people who were denied any employment that the named plaintiffs may not properly maintain an action for redress of alleged discrimination in hiring. Under Rodriquez, certification of a class including victims of alleged hiring discrimination who never were employed by Western Electric was in error.
If Rodriquez limited Barnett in application, it did not leave it a derelict. Under Barnett a named plaintiff may represent a class of persons whose injuries and interests are of a kind with the representative's. A person who has been injured by unlawful, discriminatory promotion practices in one department of a single facility may represent others who have been injured by the same discriminatory promotion practices in other departments of the same facility. In such a case, the representatives of the class all have the same interests in being free from job discrimination, and they have suffered injury in precisely the same way in the denial of promotion. Rodriquez did not require the fractionization of similar claims by a class of employees in a single facility, nor does it destroy the utility of the class action device by requiring separate suits on an episodic basis.
What is left of Barnett, however, is not broad enough to permit a named representative to represent a class of people who suffered different injury or those having similar claims but who are employed in other facilities. The Installation facility is not a single facility with the Service Shop. It is a separate one. 2
It is true that the small office component of the Installment facility is located in the same building housing the Service Center, but the affected people, the installers, are not employed there. They do their work entirely in the field. Their job sites change. They range all over the area, and their work is done on premises belonging to others than Western Electric. There is no apparent basis for a finding that they have a community of interests with the employees in the Service Center.
In Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976), we treated two plants of the same employer as a single facility for the purpose of class action representation. There, the two plants were within a few blocks of each other. Each plant had a prefabrication department in which tobacco was mixed and blended, and it was principally the employees of those departments who complained of discrimination in promotion. We emphasized the fact that the two plants drew their employees from the same labor market, and, of course, they were drawn to do similar work.
In this case, however, though we may assume that the installers live in the same geographic area as the employees of the Service Center, that is, the entire metropolitan Washington area, they are not drawn from the same labor market as they were in Patterson. The work of the hourly paid employees of the Service Center is relatively unskilled, while the installers are engaged in installing, servicing and fixing sophisticated electronic equipment requiring many and varied skills. Newly employed installers are not required to have previous training or experience. After employment, they are given formal training and provided with experience. As new skills are acquired, they progress in five steps, each step being called an index, until the most skillful and experienced reach step 5. People with the gifts and ambition to become such technicians simply do not compete in the same labor market with unskilled workers. 3
The plaintiffs first allege discrimination in the assignment of employees to jobs in Shop Trades, to jobs in the warehouse and to jobs in the office.
The employees holding jobs in Shop Trades have all been white males. Its foreman testified that on two different occasions when there were vacancies to be filled in Shop Trades, through other foreman in the Service Center, he invited a list of employees who might be interested in a transfer to Shop Trades. On each occasion he received a list with a substantial number of names upon it, and some of the listed people were black and some were female. All of them were interviewed and were allowed to see the jobs in which there were vacancies, but afterwards no one of those persons, black or white, male or female, was interested in actually being transferred. This is not inconceivable since woodworking and metalworking may require greater skills than most of the...
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