Ezell v. Mobile Housing Bd., 81-7032

Citation709 F.2d 1376
Decision Date06 July 1983
Docket NumberNo. 81-7032,81-7032
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Parties32 Fair Empl.Prac.Cas. 594, 32 Empl. Prac. Dec. P 33,727, 13 Fed. R. Evid. Serv. 953 Dorothy M. EZELL, Ronald S. Smith and Walter Lee Mixon, Administrator of the Estate of Bettye Jo Powell Evans, deceased, Plaintiffs-Appellants, v. MOBILE HOUSING BOARD, et al., Defendants-Appellees.

Blacksher, Menefee & Stein, P.A., Gregory B. Stein, Mobile, Ala., for plaintiffs-appellants.

Mylon R. Engel, Edgar P. Walsh, Mobile, Ala., for Mobile Co. Personnel Bd.

Collins, Galloway & Smith, Thomas M. Galloway, William H. Sisson, Mobile, Ala., for Mobile Co. Housing Bd.

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

Before RONEY, TJOFLAT and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

This appeal involves a suit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2000e-17 (1976 & Supp. V 1981), alleging employment discrimination based on race. 1 Several claims of error are presented. We reverse and remand the district court's ruling against one claimant, Dorothy M. Ezell; we find no merit in the remaining claims.

I.

On March 17, 1976, after properly filing charges with the Equal Employment Opportunity Commission (EEOC) and receiving a right-to-sue letter, Dorothy M. Ezell brought this suit on behalf of herself and all others similarly situated seeking legal and equitable relief against two agencies of Mobile County, Alabama: the Housing Board and the Personnel Board. 2 The purpose of the Personnel Board at all times relevant to this suit was to govern by civil service rules the classified service of all local governments and agencies in Mobile County. Among other things, the Personnel Board administered both entrance-level and promotional examinations for classified positions in county agencies, including the Housing Board.

Ezell, a black classified employee with the Housing Board, alleged various discriminatory employment acts and practices on the part of each defendant. She asserted that the Personnel Board administered to her a racially discriminatory promotional examination for the classified position of Social Services Advisor with the Housing Board, and that although she passed this examination and received Personnel Board certification for the position she sought, the Housing Board considered her low performance on this exam in denying her the promotion. She alleged also that the examination was a sham because the Housing Board had preselected the white employee who eventually got the promotion. Finally, she complained about low service ratings she had received from the Housing Board, about the Personnel Board's failure to investigate her low service ratings, about the failure of the Housing Board to promote her on various occasions, about retaliation on the part of both defendants for her filing of charges with the EEOC, and about a general campaign of discriminatory harassment by both defendants.

On August 20, 1976, Ronald S. Smith, a black probationary employee in the classified position of Social Worker with the Housing Board, intervened in the action after properly filing charges with the EEOC and receiving a right-to-sue letter. 3 Smith alleged that the Housing Board discriminated against him by discharging him from his probationary position. He sought reinstatement to his position with the Housing Board, along with back pay, and he sought compensatory and punitive damages against both defendants. 4

On August 25, 1976, the court certified the following class:

(1) All black persons who have since August 11, 1973, been employed or who may in the future be employed with the Mobile Housing Board; and

(2) All black persons who have since August 11, 1973, applied unsuccessfully to the Mobile Housing Board or the Mobile County Personnel Board for employment in jobs within the classified service with the Mobile Housing Board, or who may in the future apply unsuccessfully to the Mobile Housing Board or the Mobile County Personnel Board for employment in jobs within the classified service with the Mobile Housing Board.

The Housing Board subsequently moved the court to reconsider its class certification. On December 9, 1977, the district court ordered an evidentiary hearing on the certification issue. In the same order, the court severed the plaintiffs' claims against the Housing Board from their claims against the Personnel Board, finding that the claims did not present common issues of fact and law. On February 22, 1978, following the evidentiary hearing, the district court decertified the class because there was insufficient evidence of class-wide discrimination against either the Housing Board or the Personnel Board.

On February 28, 1978, the court granted Bettye Jo Powell Evans leave to intervene against the Personnel Board. Evans, a black applicant for the classified position of Accountant I, alleged that the Personnel Board administered to her a racially discriminatory examination which she failed to pass. Evans sought various forms of legal and equitable relief.

On August 7, 1978, the claims of Ezell and Smith against the Housing Board commenced before a jury. 5 After seven days of testimony, the jury returned verdicts against both plaintiffs and in favor of the Housing Board. On September 22, 1980, the claims of Ezell, Smith, and Evans against the Personnel Board came to trial before the court. On December 5, 1980, the court ruled in favor of the Board on all of the plaintiffs' claims, and entered final judgment thereon.

All three plaintiffs appealed, and they now raise four issues:

1. Did the district court err in decertifying the class?

2. Did the district court err in dismissing Evans' claim because of her failure to file a complaint with the EEOC?

3. Did the district court err in holding that Ezell failed to make out a prima facie case of discrimination under either a theory of discriminatory intent or discriminatory impact?

4. Did the district court's failure to give certain jury instructions require reversal of the claims of Ezell and Smith against the Housing Board?

We affirm the district court's rulings on issues 1, 2, and 4 listed above. 6 We reverse the district court's ruling on issue 3 and remand Ezell's claim against the Personnel Board for further proceedings consistent with this opinion.

II.

The first issue appellants present is whether the district court erred in decertifying this action as a class action. Initially, we note that it is irrelevant that the district court initially certified a class. "Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation." General Telephone Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982) (citing Fed.R.Civ.P. 23(c)(1)). Second, "a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Falcon, 457 U.S. at 161, 102 S.Ct. at 2372-73. This analysis requires the district court to distinguish between:

(a) an individual's claim that he has been denied a promotion [for example] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims.

Id. 157, 102 S.Ct. at 2371 (footnote omitted). Third, "[i]t is well settled that questions concerning class certification are left to the sound discretion of the district court." Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1347 (11th Cir.1983). With these principles in mind, we review the decertification ruling of the district court.

Because "in class actions under the civil rights statutes, the trial court bears a substantial management responsibility over the conduct of the litigation," the district court properly conducted an evidentiary hearing on the propriety of the litigation proceeding as a class action. Jones v. Diamond, 519 F.2d 1090, 1098 (5th Cir.1975). We have instructed trial courts on the nature of such a hearing:

If the court finds ... that an evidentiary hearing on the class is appropriate or essential, it should inform the parties that a full hearing will precede the decision on certification [or decertification], and that any facts on which they intend to rely to support the motion must be introduced in evidence at that time. Once the court has thus delineated the nature and scope of the hearing, the burden of proof on the propriety of certification rests with the advocate of the class.

Id. at 1099 (footnote and citations omitted).

In this case, appellants simply failed to satisfy their burden of proof that class certification was proper. Instead of introducing evidence of class-wide discrimination, appellants introduced only evidence of the two Boards' treatment of them individually. For example, Ezell testified that she took a Personnel Board test for a promotion with the Housing Board, that she passed the test, but that she did not get the promotion because the job was given to a white person who achieved a higher score on the exam. Ezell also testified that she was harassed at work for filing a complaint with the EEOC. Smith testified primarily about his personality conflict with his supervisor at the Housing Board. Evans, who at the time of decertification was not yet a party, testified that she failed the Personnel Board exam for an accounting position, despite her lengthy experience as an accountant. This was the extent of the evidence introduced at the hearing.

Although appellants introduced absolutely no evidence at the evidentiary hearing to support their...

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