Anderson v. City of Albuquerque, 80-1679

• Decision Date: 12 October 1982
• Docket Number: No. 80-1679,80-1679
• Citation: 690 F.2d 796
• Parties: 29 Fair Empl.Prac.Cas. 1689, 30 Empl. Prac. Dec. P 33,093, 11 Fed. R. Evid. Serv. 1966 Kirsten J. ANDERSON, individually and on behalf of all other persons similarly situated, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 796

690 F.2d 796

29 Fair Empl.Prac.Cas. 1689,

30 Empl. Prac. Dec. P 33,093,

11 Fed. R. Evid. Serv. 1966

Kirsten J. ANDERSON, individually and on behalf of all other

persons similarly situated, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellee.

No. 80-1679.

United States Court of Appeals, Tenth Circuit.

Oct. 12, 1982.

Ann Yalman, Sante Fe, N. M., for plaintiff-appellant.

Albert N. Thiel, Jr., Asst. City Atty., Albuquerque, N. M., for defendant-appellee.

Sandra G. Bryan, Washington, D. C. (LeRoy D. Clark, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Paul E. Mirengoff, Attys., E. E. O. C., Washington, D. C., with her on brief), for amicus curiae for E. E. O. C.

Before SETH, McWILLIAMS and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Kirsten Anderson instituted this class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the City of Albuquerque discriminated on the basis of sex in its employment practices. The trial court denied Anderson's motion to certify the class. It also held that the position for which Anderson unsuccessfully applied was exempt from Title VII coverage under section 701(f), 42 U.S.C. 2000e(f), and in any event that no violation of Title VII had occurred with respect to her individual claim. On appeal Anderson contends that: (1) the court's refusal to certify the class was an abuse of discretion; (2) the court's determination that the position was exempt under section 2000e(f) was erroneous; and (3) the court failed to properly consider statistical evidence relevant to her individual claim. We agree and therefore reverse.

The facts giving rise to this suit are briefly as follows. Anderson, a white female, began working for the City of Albuquerque in October 1974, as a research analyst on the staff of the City's Human Rights Board. She was later promoted on the staff to director of public contracts. During her employment with the City she received her law degree and was licensed to practice in New Mexico. In June 1976, while still employed by the City, she learned that the staff director for the Human Rights Board was planning to resign and she applied for that position. In August 1976, Anderson voluntarily left her job with the City to accept a position as an assistant district attorney with the state. However, she did not withdraw her application for the staff director's position, and indicated that she still wished to remain under consideration. The selection of a male Hispanic to fill the position was made after Anderson resigned.

Anderson then instituted this class action under Fed.R.Civ.P. 23(a) and (b) (2), describing the class as "all females who have applied or will apply for jobs with Defendant, are employees with Defendant or are former employees of Defendant." Rec., vol. I, at 1. The complaint stated Anderson's individual claim and additionally alleged unlawful policies and practices by the City which deprive females of equal employment opportunities in recruitment, hiring, promotion, and other conditions of employment. Anderson sought injunctive and monetary relief individually and on behalf of the class.

I. Denial of Class Certification

Initially we address the City's contention that Anderson lacks standing to appeal the denial of class certification. This argument is wholly without merit.

In Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), and United States v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), the Supreme Court held that notwithstanding the named plaintiff's individual claim had become moot pending appeal, the plaintiff nonetheless had standing to appeal the district court's earlier denial of class certification. The facts in the instant case are even more persuasive in favor of standing. Here Anderson's individual claim was decided against her at the trial level and is not moot on appeal. She clearly has standing to appeal the individual adverse determination and in so doing may appeal interlocutory orders decided against her below. "(A)n order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff ...." Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); accord Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480 & n.6, 98 S.Ct. 2451, 2453 & n.6, 57 L.Ed.2d 364 (1978); United Airlines, Inc. v. McDonald, 432 U.S. 385, 393 & n.13, 97 S.Ct. 2464, 2469 & n.13, 53 L.Ed.2d 423 (1977).

In its order denying certification, the district court concluded that Anderson could not adequately represent the class described in her complaint because she had voluntarily terminated her employment with the City prior to the act of alleged discrimination, citing Hernandez v. Gray, 530 F.2d 858 (10th Cir. 1976). However, the facts in Hernandez are distinguishable.

In Hernandez the named plaintiffs had voluntarily resigned their jobs with the defendant city when it refused to recognize a union as their bargaining agent. Nevertheless, the plaintiffs sought to make an across-the-board attack on post-termination employment practices which could no longer affect them individually. Here, to the contrary, although Anderson voluntarily resigned her job with the City before the new staff director was selected, she did not withdraw her application for that position and indicated that she wished to remain under consideration. Moreover, she testified that prior to the time she resigned, she was told by the current staff director that the new director was being preselected and would be a male Hispanic. Anderson's voluntary termination was irrelevant to her ability to adequately represent the described class because she remained an applicant for City employment who could be affected by the alleged discriminatory practices. Cf. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975) (adequacy of representation depends on all circumstances of particular case).

In its order denying certification, the trial court also noted its belief that Anderson could not prevail on her individual claim. If the denial of class certification was influenced by the court's preliminary evaluation of the merits of Anderson's claim, the court committed error. "(N)othing in either the language or history of Rule 23 ... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). See also Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir. 1975); Rich v. Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir. 1975). " 'In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.' " Eisen, 417 U.S. at 178, 94 S.Ct. at 2152 (quoting Miller v. Mackey International, Inc., 452 F.2d 424, 427 (5th Cir. 1971)).

Class action certification is a matter committed to the discretion of the trial court. Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511 F.2d 1073, 1077 (10th Cir. 1975). In this case we have rejected the only two bases in support of the denial of certification appearing in the district court's order. We must therefore conclude that the refusal to certify was an abuse of discretion, and remand this action to the district court for a redetermination whether the requirements of Rule 23 have been met.

The Supreme Court has recently reiterated that " 'suits alleging ... discrimination are often by their very nature class suits, involving classwide wrongs,' and that '(c)ommon questions of law or fact are typically present.' " General Telephone Co. v. Falcon, --- U.S. ----, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982) (quoting East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977)). The City argues on appeal that Anderson does not meet the typicality requirements of Rule 23(a)(3). The district court did not address this contention. On remand, the court should keep in mind "the well established rule that the claims of all the class need not be identical to those of the plaintiffs or that all the class plaintiffs must be involved in identical work ...." Taylor v. Safeway Stores, Inc., 524 F.2d 263, 271 n.8 (10th Cir. 1975). Accord Rich, 522 F.2d at 340-41; see also Brown v. Eckerd Drugs, Inc., 663 F.2d 1268, 1274-76 (4th Cir. 1981); Donaldson v. Pillsbury Co., 554 F.2d 825, 830-31 (8th Cir. 1977), cert. denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977); see generally Bartelson v. Dean Witter & Co., 86 F.R.D. 657 (E.D.Pa.1980). Based on an evidentiary hearing, the court must determine whether "the individual's claim and the class claims ... share common questions of law or fact and (whether) the individual's claim will be typical of the class claims." General Telephone, --- U.S. at ----, 102 S.Ct. at 2371, 72 L.Ed.2d 740.

II.

Exemption under Section 2000e(f)

After trial on the merits of Anderson's individual claim, the district court concluded that the position of staff director for the Albuquerque Human Rights Board is exempt from Title VII coverage under 42 U.S.C. 2000e(f). Section 2000e(f) excludes from the definition of an "employee" covered by Title VII

"any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include...