Hervey v. City of Little Rock, s. 84-1407

Citation787 F.2d 1223
Decision Date22 May 1986
Docket Number85-1159 and 85-1160,Nos. 84-1407,s. 84-1407
Parties40 Fair Empl.Prac.Cas. 928, 39 Empl. Prac. Dec. P 36,050, 5 Fed.R.Serv.3d 190 Robert HERVEY, Jr.; Robert Walker; Robert McGruder, Appellants, v. The CITY OF LITTLE ROCK, Appellee. Estella M. ROBINSON; Mollie White and Belinda Mitchell, Appellants, v. The CITY OF LITTLE ROCK, Arkansas; Donald J. Mehlburger; Charles Bussey; Myra Jones; A.M. Sandy Keith; Lottie Shackleford; John Langston; and Webster Hubbell, individually and in their official capacities as members of the Board of Directors of the City of Little Rock, Arkansas, Appellees. Robert HERVEY, Jr. and Robert Walker, Appellants, v. CITY OF LITTLE ROCK, Appellee. Leo Anderson and Jesse MacHenry Johnson, Jr., Appellants. (2 Cases) Mollie WHITE v. CITY OF LITTLE ROCK, ARKANSAS; Donald Mehlburger, Charles Bussey, Myra Jones, A.M. Sandy Keith, Lottie Shackleford, John Langston and Webster Hubbell, individually and in their official capacities as members of the Board of the City of Little Rock, Arkansas. (2 Cases) Estella ROBINSON v. CITY OF LITTLE ROCK. (2 Cases)
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Janet Pulliam, Little Rock, Ark., for Leo Anderson.

Richard Quiggle, Little Rock, Ark., for other appellants.

Philip K. Lyon, Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

Appellants in this class action employment discrimination litigation challenge the district court's 1 decertification of the class and dismissal of all claims. We affirm.

The procedural history of these consolidated actions is set out in the court's two opinions, Hervey v. City of Little Rock, 101 F.R.D. 45, 46-48 (E.D.Ark.1984) (Hervey I ), and Hervey v. City of Little Rock, 599 F.Supp. 1524, 1525 (E.D.Ark.1984) (Hervey II ), and will not be discussed in detail here. Appellants are several employees and former employees of the City of Little Rock. Robert Hervey and Robert Walker, two black male employees of the City, filed the individual and class complaint in the lead case on January 24, 1980. The individual actions of Mollie White and Estella Robinson were subsequently consolidated with the lead case, and several individuals including Belinda Mitchell and Leo Anderson were allowed to intervene in the consolidated action. The City was charged with several violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., and of 42 U.S.C. Secs. 1981 and 1983. The class was divided into promotion, discharge, and terms and conditions subclasses and was certified by the court.

The trial was divided into three sessions. During the first session the court tried the discharge subclass claim and the individual discharge claim of Belinda Mitchell. Following this session the court decertified the discharge subclass and dismissed the individual claim of Mitchell. Hervey I, 101 F.R.D. at 56. The court then tried the claims of the remaining two subclasses and the remaining individuals during the final two sessions. Following these sessions the court decertified the entire class and dismissed all of the individual claims. Hervey II, 599 F.Supp. at 1542. It is from these judgments that these appeals arise.

I.

Appellants first contest the court's decertification of all three subclasses. The parties entered into a class stipulation which was adopted by the court in its class certification order on October 26, 1981. In that order the subclasses were defined as follows:

1. All nonuniformed, nonmanagement, nonsupervisory black persons employed by the defendant who have allegedly been discriminated against because of their race in promotions or transfers since January 24, 1977 for purposes of 42 U.S.C. Sec. 1981 and since 180 day [sic] prior to May 28, 1981 for purposes of 42 U.S.C. Sec. 2000e.

2. All nonuniformed, nonmanagement, nonsupervisory black persons employed by the defendant who have allegedly been discriminatorily discharged because of their race from their employment since August 19, 1979 for purposes of 42 U.S.C. Sec. 1981 and since 180 days prior to May 28, 1981 for purposes of 42 U.S.C. Sec. 2000e.

3. All nonuniformed, nonmanagement, nonsupervisory black employees who have been employed by the defendant who have allegedly been discriminated against in the terms, conditions and privileges of their employment because of their race, for purposes of injunctive relief only, since January 24, 1977 for purposes of 42 U.S.C. Sec. 1981 and since 180 days prior to April 2, 1979 for purposes of 42 U.S.C. Sec. 2000e.

"[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 [Fed.R.Civ.P.] 23(a) have been satisfied." General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). While class stipulations by the parties may be helpful, they are not complete substitutes for "rigorous analysis." The purpose of this analysis is to protect unknown or unnamed potential class members, and by definition those people do not and cannot participate in any stipulations concocted by the named parties. As noted, a Rule 23(a) inquiry should be made by the trial court prior to certification, even if the named parties have stipulated to the existence of a class. As the district court ultimately recognized, the subclasses in this case probably never should have been certified, Hervey I, 101 F.R.D. at 56, but the initial certification has not been challenged and we need not dwell upon it further.

Prior to a decision on the merits, the court decertified the subclasses for a number of reasons which it felt constituted inadequate compliance with Rule 23(a). The court's duty to assure compliance with Rule 23(a) continues even after certification, Falcon, 457 U.S. at 160, 102 S.Ct. at 2372, and its decertification of the subclasses in this case must be upheld absent an abuse of discretion. Roby v. St. Louis Southwestern Railway, 775 F.2d 959, 961 (8th Cir.1985).

Rule 23(a) states that an action may be maintained as a class action only if:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

In this case we are presently concerned mainly with the question whether appellants were adequately representing and protecting the interests of potential class members.

One of the major concerns of the court regarding the adequate protection question was the conduct of appellants' counsel. During the three session trial the discharge subclass was represented by different counsel than were the promotion and terms and conditions subclasses. In its two opinions, the court discussed at length the antagonism and animosity which existed among and between appellants' counsel throughout discovery and trial, see Hervey I, 101 F.R.D. at 47-48; Hervey II, 599 F.Supp. at 1525-28, and those discussions need not be repeated here. These unfortunate incidents were serious enough to raise real doubts about appellants' ability to adequately protect class interests, and they were properly considered in the court's decertification decision.

The incorrect Title VII opening date for membership in the promotion class presented another major concern to the court. The stipulated definition of the promotion subclass, which was drafted by appellants' counsel, signed by all parties and adopted by the court in its certification order on October 26, 1981, set "180 day [sic] prior to May 28, 1981" as the beginning date for class membership for purposes of Title VII. With this opening date, appellants managed to exclude the promotion class representative, Robert Hervey, from the Title VII promotion class. The opening date which should have been set out in the stipulated definition was 180 days prior to April 2, 1979, the day Hervey filed his EEOC charge.

Appellants did not notice this error until September 25, 1984, when they filed a motion asking the court to correct the date. This motion was made almost three years after the court's certification order was filed and after better than one-half of the trial had been completed using the erroneous time frame. The court refused to correct the erroneous date, finding that it had become the law of the case. 2

While it appears that the trial court possibly may have been in error in refusing to correct the opening date, see Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 813-14 (5th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982), we need not reach that issue because the incorrect date did not materially affect the decertification decision. The court did use the incorrect date in concluding that some of appellants' class proof was outside of the relevant time frame, but, as will be discussed below, the court's other criticisms of the evidence were sufficient to thoroughly discredit it. While the court may have been mistaken in its unquestioning adoption of the incorrect promotion subclass definition, it surely bears on the competency of the class representation that appellants submitted the incorrect definition to the court and failed to discover the error for almost three years.

Of greatest concern to the court was the completely inadequate class proof presented by appellants. The court's findings as to the class proof are findings of fact and are subject to review under the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). If the court's findings are plausible in view of the record they cannot be clearly erroneous, and if th...

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