Garcia v. Gloor

• Decision Date: 22 May 1980
• Docket Number: No. 77-2358,77-2358
• Citation: 618 F.2d 264
• Parties: 22 Fair Empl.Prac.Cas. 1403, 23 Empl. Prac. Dec. P 30,964 Hector GARCIA, etc., Plaintiff-Appellant, v. Alton V. W. GLOOR et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 264

618 F.2d 264

22 Fair Empl.Prac.Cas. 1403,

23 Empl. Prac. Dec. P 30,964

Hector GARCIA, etc., Plaintiff-Appellant, v. Alton V. W. GLOOR et al., Defendants-Appellees.

No. 77-2358.

United States Court of Appeals Fifth Circuit.

May 22, 1980.

James A. Herrmann, Texas Rural Legal Aid, Inc., Harlingen, Tex., for plaintiff-appellant.

Ruben Rendon, Mexican American Legal Defense and Educational Fund, San Francisco Cal., for Mexican American Legal Defense and Educational Fund, amicus curiae.

Joel G. Contreras, Vilma S. Martinez, San Francisco, Cal., William H. Ng, Washington, D. C., for Equal Employment Opportunity Commission, amicus curiae.

Edna E. Canino, Miami, Fla., for amicus League of United Latin American Citizens.

Joan Humphrey Lefkow, Coral Gables, O. C. Hamilton, Neil E. Norquest, McAllen, Tex., for defendants-appellees.

Jerry Nugent, Austin, Tex., for Lumberman's Ass'n of Texas, amicus curiae.

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

Before FAY, RUBIN and HATCHETT, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

IT IS ORDERED that this court's opinion reported at 609 F.2d 156 (5th Cir. 1980) be withdrawn and the following is substituted:

Invoking Title VII, the Equal Employment Opportunity Act, 42 U.S.C. § 2000e-2 (EEO Act), Hector Garcia, a native-born American of Mexican descent, challenges as discriminatory his employer's rule that prohibits employees engaged in sales work from speaking Spanish on the job. Because the group of employees Mr. Garcia sought to represent was not numerous enough to constitute a class, we affirm the trial court's denial of class action certification. We conclude that the "speak-only-English" rule, as it was applied to Mr. Garcia by his employer, does not discriminate on the basis of national origin. We therefore affirm the district court's judgment that Mr. Garcia's discharge for violating the rule was not unlawful.

I.

Hector Garcia, who was twenty-four years of age at the time of trial, completed the first semester of the tenth grade in Texas public schools. He speaks both English and Spanish. His grandparents were immigrants from Mexico; he is native-born, but he has always spoken Spanish in his own household.

In 1975, he was employed as a salesman by Gloor Lumber and Supply, Inc., in Brownsville, Texas. His duties included stocking his department and keeping it in order, assisting other department salespersons and selling lumber, hardware and supplies. He had received compliments from management on his work and in May 1975 had received a bonus of $250. However, there also was evidence that Mr. Garcia was not a satisfactory employee, that management's compliments were bestowed as incentives to better performance when, on occasion, his work showed some improvement and that a bonus was awarded to all employees at year-end without regard to merit.

Gloor had a rule prohibiting employees from speaking Spanish on the job unless they were communicating with Spanish-speaking customers. Most of Gloor's employees were bilingual, but some who worked outside in the lumber yard did not speak English. The rule did not apply to those employees. It also did not apply to conversation during work breaks.

Mr. Garcia testified that, because Spanish is his primary language, he found the English-only rule difficult to follow. He testified that on June 10, 1975 he was asked a question by another Mexican-American employee about an item requested by a customer and he responded in Spanish that the article was not available. Alton Gloor, an officer and stockholder of Gloor, overheard the conversation. Thereafter Mr. Garcia was discharged.

Mr. Gloor testified, and the district court found as a fact, that Mr. Garcia's discharge was for a combination of deficiencies failure to keep his inventory current, failure to replenish the stock on display from stored merchandise, failure to keep his area clean and failure to respond to numerous reprimands as well as for violation of the English-only rule. The court also found that the English-only policy was not strictly enforced but that Mr. Garcia had violated it "at every opportunity since the time of his hiring according to his own testimony."

In addition to offering this evidence to justify firing Mr. Garcia, Mr. Gloor testified that there were business reasons for the language policy: English-speaking customers objected to communications between employees that they could not understand; pamphlets and trade literature were in English and were not available in Spanish, so it was important for employees to be fluent in English apart from conversations with English-speaking customers; if employees who normally spoke Spanish off the job were required to speak English on the job at all times and not only when waiting on English-speaking customers, they would improve their English; and the rule would permit supervisors, who did not speak Spanish, better to oversee the work of subordinates. The district court found that these were valid business reasons and that they, rather than discrimination, were the motive for the rule.

An expert witness called by the plaintiff testified that the Spanish language is the most important aspect of ethnic identification for Mexican-Americans, and it is to them what skin color is to others. Consequently, Mr. Garcia contends, with support from the Equal Employment Opportunity Commission (EEOC), that the rule violates the EEO Act and the Civil Rights Acts, 42 U.S.C. §§ 1981 and 1985(c).

Of the eight salesmen employed by Gloor in 1975, seven were Hispanic, a matter perhaps of business necessity, because 75% of the population in its business area is of Hispanic background and many of Gloor's customers wish to be waited on by a salesman who speaks Spanish. Of its 39 employees, 31 were Hispanic, and a Hispanic sat on the Board of Directors. There is no contention that Gloor discriminated against Hispanic-Americans in any other way.

The narrow issue is whether the English-only rule as applied to Mr. Garcia imposed a discriminatory condition of employment.

II.

Mr. Garcia properly complains that the court arrived at its denial of class certification by deciding that he had no case on the merits. The question of class certification is a procedural one, distinct from the merits of the action. Huff v. N. D. Cass Co., 5 Cir. 1973 (en banc), 485 F.2d 710; Miller v. Mackey International, Inc., 5 Cir. 1971, 452 F.2d 424, 427-28. Whether a class should be certified depends entirely on whether the proposal satisfies the requirements of Fed.R.Civ.P. 23. See generally 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil §§ 1759-1770 (1972).

However, the result reached by the trial judge was correct. A prerequisite for a class action is that the class be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). "The raison d'etre of the class suit doctrine is necessity, which in turn depends upon the question of number." 3B Moore's Federal Practice P 23.05, at 23-149 (2d ed. 1979). This depends on the facts of each case and no arbitrary rules have been established, 7 C. Wright and A. Miller, Federal Practice and Procedure: Civil, § 1762 (1972), nor indeed should be. The basic question is practicability of joinder, not number of interested persons per se. Practicability of joinder depends on size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion. See id.; 3B Moore's Federal Practice P 23.05 (2d ed. 1979).

Only thirty-one persons, those Gloor employees who were Hispanic, were affected by the English-only rule. Their identity and addresses were readily ascertainable, and they all lived in a compact geographical area. The suggested class therefore failed to meet the elementary requirement that supports the whole theory of class actions representation by one person of a group so numerous that joinder in one suit would be impracticable.

III.

Although the trial judge concluded that Mr. Garcia was fired for a number of reasons, including deliberately speaking Spanish on the job in purposeful violation of Gloor's rule, the judge made no finding concerning the substantiality of the language violation in contributing to the matrix of motive. Perhaps under the evidence he could not, once the omelet had been cooked, determine what each egg had contributed to it.

Employer action does not violate Title VII merely because a reprobated reason plays some part in the employer's decision, see Rogers v. Equal Employment Opportunity Commission, D.C.Cir. 1977, 551 F.2d 456; yet the forbidden taint need not be the sole basis for the action in order to condemn it. The record would support a finding that Mr. Garcia's use of Spanish was a significant factor and, therefore, rather than remand for a determination by the trial court, we will assume for present purposes that it was. We turn then to the issue that appears to both parties and the several amici to be at the core of the case.

The EEO Act sought to assure equality of employment opportunity by making it unlawful for an employer "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

In interpreting the statute ¹ we start with its plain words without pausing to consider whether a statute differently framed would yield results more consonant with fairness and...