Kincade v. General Tire and Rubber Co.

• Decision Date: 30 January 1981
• Docket Number: 78-2864,Nos. 78-2863,s. 78-2863
• Citation: 635 F.2d 501
• Parties: 24 Fair Empl.Prac.Cas. 1693, 25 Empl. Prac. Dec. P 31,517 Paris KINCADE et al., Plaintiffs-Appellants, v. GENERAL TIRE AND RUBBER CO., Defendant-Appellee, and William F. Halliburton, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 501

635 F.2d 501

24 Fair Empl.Prac.Cas. 1693,

25 Empl. Prac. Dec. P 31,517

Paris KINCADE et al., Plaintiffs-Appellants, v. GENERAL TIRE AND RUBBER CO., Defendant-Appellee, and William F. Halliburton, Plaintiff-Appellee.

Nos. 78-2863, 78-2864.

United States Court of Appeals, Fifth Circuit.

Jan. 30, 1981.

E. Brice Cunningham, Dallas, Tex., for plaintiffs-appellants in both cases.

Carrington, Coleman, Sloman, Johnson & Blumenthal, Marvin S. Sloman, Peter Tierney, Dallas, Tex., John W. Walker, Little Rock, Ark., for defendants-appellees in both cases.

Edward R. Dye, Akron, Ohio, for plaintiff-appellee in No. 78-2864.

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

Before THORNBERRY, GEE and REAVLEY, Circuit Judges.

GEE, Circuit Judge:

This appeal involves a class action brought against General Tire and Rubber Company ("General Tire") by six named plaintiffs on behalf of a class consisting of more than 500 members. Five of the original six named plaintiffs, joined by one other class member, appeal the trial court's approval of a settlement in this case. We affirm the trial court's approval of the settlement.

Background

Plaintiffs' complaint, filed in February of 1975, alleged that General Tire had engaged in plantwide racial discrimination in employment at its Waco, Texas, plant. During the discovery stage of the lawsuit, from 1975 until the summer of 1977, depositions of the named plaintiffs and of General Tire's plant manager and personnel manager were taken; interrogatories and supplemental interrogatories were answered; and General Tire's personnel records were produced. The settlement at issue was negotiated over a period of several months. On October 25, 1977, the parties filed a proposed settlement with the trial court. Under this agreement General Tire established goals and timetables for improving job opportunities for blacks, particularly in the skilled trade and supervisory positions. To achieve these goals, the agreement further provided for supervisory training programs, counseling for minorities with respect to advancement possibilities, and educational assistance. In addition, the settlement provided for the establishment of a fund of $60,000, ¹ the precise distribution of which among the class was not addressed.

On February 8, 1978, the district judge directed the parties to file briefs in support of the proposed settlement agreement and ordered the plaintiffs to file a schedule setting forth the distribution of the settlement fund among the class. On March 8, 1978, the distribution schedule was filed; the amounts listed to be paid to each beneficiary of the fund were determined pursuant to a formula that had been submitted to the district court some two weeks earlier. Under the distribution formula the $60,000 was to be divided among some 100 class members who had been employed by General Tire for an eighteen-month period from October 1971 to April 1973, according to the total years of service each participating employee had with General Tire. Each of the six named plaintiffs qualified for participation in the distribution of the fund; their awards ranged from $263.78 to $1,167.62.

On March 16, 1978, the district court certified the case as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure; defined the class; designated the named plaintiffs as class representatives; and appointed John W. Walker ("Walker") as general counsel for the class. On the following day the trial judge signed an order tentatively approving the settlement agreement, including the proposed distribution of the $60,000. The order also provided that notice be sent to all class members of the terms of the settlement agreement, the submission of objections to the proposed settlement, and the hearing for final approval of the agreement, which was to be held on May 31, 1978.

About two weeks later, the six named plaintiffs filed with the district court a letter that they had written to Walker. This letter stated their refusal to accept the proposed settlement; while they objected in general terms to the affirmative action provisions of the agreement, the size of the settlement fund, and the representation they had received from Walker, their primary complaint was that the entire settlement fund should have been distributed solely to them because they had brought the lawsuit and "born the burden of all the testimony." Several weeks later, Paris Kincade, one of the named plaintiffs, filed another objection to the proposed settlement in which he requested that his claim, which he estimated was worth $75,000, be tried separately.

Thirteen additional objections were filed in response to the notice of the proposed settlement. On May 31, 1978, the district court held a hearing at which nine persons, including three of the named plaintiffs, voiced objections to the settlement. On July 5, 1978, the district judge made findings of fact and conclusions of law ² in which most of the various objections to the proposed settlement were addressed, though rather briefly. The judge found the settlement agreement to be fair, adequate, and reasonable and not the product of collusion; accordingly, the settlement was approved. Appellants then filed a timely appeal of the trial court's approval of the settlement.

Issues Raised on Appeal

The threshold issue presented by this appeal is whether the appellants seek to have the settlement set aside with respect to the entire class or only with respect to appellants themselves. The objectors' brief contains three indications that they are appealing the trial court's approval of the settlement on behalf of the class as a whole. First, in the Summary of Argument section of the brief, the appellants state that they are "entitled ... to have said Compromise Settlement Agreement set aside. In the alternative, Appellants claim that the agreement should be set aside as to the individual Appellants ...." Second, the argument section of the brief makes the contention that, under the standards set forth in Cotton v. Hinton, ³ the trial judge abused his discretion in approving the settlement. Third, one portion of the argument section of the brief concludes that "(f)or these additional reasons the Trial Court's judgment should be reversed and the Compromise Settlement Agreement set aside, at least as to the individual named appellants ...."

As a general rule, briefs are read liberally with respect to ascertaining what issues are raised on appeal; in light of the portions of the brief referred to above, application of the general rule normally would result in our concluding that the appellants have adequately raised the issue of the trial court's approval of the settlement with respect to the class as a whole. For several reasons, however, we find that the only issue presented on this appeal is whether the trial court erred in approving the settlement with respect to the appellants over their express objections. First, the appellants have indicated three times that they are seeking to have the trial court's approval of the settlement set aside only as to them. In the Relief Requested section of their brief the appellants pray:

That the Judgment entered by the Trial Court below, be reversed and this case remanded to the Trial Court below, with instructions that said Compromise Settlement Agreement be set aside as to these named Appellants, and set aside as to them as the representatives of the Class and as to the objecting members of the Class. That upon remand, and additional hearings herein and/or Trial, that Judgment be entered for the Appellants named herein granting them damages for back wages, front pay, and for the other relief prayed for in their Amended Complaint, and they recover attorneys' fees incurred by them in this Court. Appellants further pray that the Appellees be enjoined from the actions complained of herein and for such other relief as the Court may deem proper.

Following oral argument the appellants submitted two letter briefs which further reflect that they are objecting to application of the settlement agreement to them and not to its application to the class. The first states that "Appellants submit that there was a total abuse of the discretion by the Trial Court in approving the Compromise Settlement as to these Appellants and cutting off their right to have their claims adjudicated, irregardless of what action the Court took with respect to the Class aspects of the case." The letter brief concludes, "(t)herefore, these appellants submit that the Compromise Settlement Agreement as to them should be set aside in all respects" and does not request that the settlement be set aside as to the class. Similarly, the second letter brief concludes:

all that the individual named Plaintiffs and the one Appellant class member seek is to have their day in Court, because they did not receive adequate procedural protection by Counsel "purportedly" representing them or the Trial Court. Regardless of what their demands are, they submit that they have a right to have their individual claims heard in the appropriate Court, win, loose (sic) or draw. This they have not received. This they request this Court to grant by a reversible (sic) as to them individually, thereby granting them their day in Court.

There is no request that the settlement be set aside as to the class.

In addition to these express indications that the only relief sought by appellants is that the settlement be set aside as to them, there are other reasons why we find that the issue of whether the settlement is fair, adequate, and reasonable with respect to the class as a whole is not raised. Appellants' argument that, under Cotton v. Hinton, supra, the trial judge abused his discretion in approving the settlement is based on the fact that the settlement was approved even though the appellants objected to its terms. The argument does not address the substantive...