Watson v. Fort Worth Bank & Trust

• Decision Date: 27 August 1986
• Docket Number: No. 85-1074,85-1074
• Citation: 798 F.2d 791
• Parties: 41 Fair Empl.Prac.Cas. 1179, 41 Empl. Prac. Dec. P 36,633, 5 Fed.R.Serv.3d 1264 Clara WATSON, Plaintiff-Appellant, v. FORT WORTH BANK & TRUST, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 791

798 F.2d 791

41 Fair Empl.Prac.Cas. 1179,

41 Empl. Prac. Dec. P 36,633, 5 Fed.R.Serv.3d 1264

Clara WATSON, Plaintiff-Appellant, v. FORT WORTH BANK & TRUST, Defendant-Appellee.

No. 85-1074.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 1986.

Art Brender, Fort Worth, Tex., for plaintiff-appellant.

Bruce W. McGee, Gandy, Michener, Swindle, Whitaker & Pratt, Fort Worth, Tex., for defendant-appellee.

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

Before GOLDBERG, RANDALL, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Plaintiff-appellant Clara Watson appeals from the district court's judgment in favor of defendant-appellee Fort Worth Bank & Trust in Watson's Title VII and Civil Rights action alleging discrimination on the basis of race. 42 U.S.C. Sec. 2000e et seq; 42 U.S.C. Sec. 1981. For the following reasons, this Court affirms the judgment of the district court in part, but vacates the district court's judgment regarding the applicant class claims.

I. FACTS

Fort Worth Bank & Trust ("the Bank") hired Watson in August of 1973 as a proof operator. The Bank promoted Watson to the position of teller trainee approximately two years later. After a two to three month training period, Watson became a teller in the Bank's motor bank in January of 1976. Subsequently, the Bank transferred Watson to the Bank's main lobby and later promoted Watson to the position of commercial teller on February 2, 1980.

Over the course of the next year, Watson unsuccessfully applied for four different promotions. First, in February of 1980, Watson unsuccessfully applied for promotion to the position of supervisor of tellers, which became vacant due to the resignation of assistant cashier Brian England. Watson; Richard Burt, a white male who was then the supervisor of the bookkeeping department; Gail Levitt, a white female who was then supervisor of motor bank tellers; and Pat Cullar, a white female who was then a commercial teller, all applied for the position. Gary Shipp, senior vice president and cashier at the Bank since 1977 and the person to whom the supervisor of tellers reported, selected Richard Burt as England's replacement. ¹ Second Watson unsuccessfully applied for promotion to the position of motor bank teller supervisor. Watson, Pat Cullar, and four or five other persons applied for the position vacated by Gail Levitt. Pat Cullar received the promotion. ² Third, Watson unsuccessfully applied a second time for the position of lobby teller supervisor when the Bank again promoted Burt. Watson, Cullar, Sylvia Hardin, a black female commercial teller, and Patsy Weatherly, a white female who was then supervisor of the proof department, all applied for the position. Burt chose Cullar. Fourth, as a result of Cullar's second promotion, the position of motor bank teller supervisor again became vacant, and Watson unsuccessfully applied for the position. Other applicants included Hardin and Kevin Brown, a white male teller in the motor bank. Based on Cullar's recommendation, Burt selected Brown for the position. ³

Watson took a leave of absence from work in January 1981 in order to undergo foot surgery. She applied for the last two described promotions while on sick leave. Watson did not return to work after January of 1981, and she subsequently resigned in August of 1981.

II. PROCEDURAL HISTORY

After exhausting her administrative remedies, Watson timely filed the instant suit on October 21, 1981, alleging that the Bank discriminated against her and other similarly situated persons on the basis of race in violation of 42 U.S.C. Sec. 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ⁴

After conducting an evidentiary hearing on the class certification issue, the district court certified a class consisting of "blacks who applied to or were employed by defendant on or after October 21, 1979 or who may submit employment applications to defendant in the future." Subsequently, the district court decertified the broad class of employees and applicants because the district court concluded, in light of all the evidence at trial, that there was not "a common question of law or fact between the unsuccessful black applicants and those blacks employed by the Bank." The district court then split the class into two distinct classes consisting of (1) black applicants and (2) black employees. The district court further found that the class of black employees did not meet the numerosity requirement of Rule 23(a) and decertified the employee class.

On the merits, the district court concluded first that although Watson demonstrated a prima facie case of discrimination, she failed to demonstrate that the Bank's articulated reasons for failing to promote her were pretextual. The district court then addressed the claims of the applicant class holding that Watson's statistical evidence failed to present a prima facie case of discrimination in hiring because the percentage of blacks in the Bank's work force mirrored the percentage of blacks in Tarrant County, Texas, and the Fort Worth metropolitan area, citing Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977).

On appeal, Watson challenges the district court's decertification of the broad class composed of both applicants and employees and further challenges the district court's resolution of both her individual claim and the claims of the applicant class. For the following reasons, this Court affirms the judgment of the district court in part, but vacates the district court's judgment regarding the applicant class claims, remanding solely for the district court to dismiss the applicant class claims without prejudice.

III. CLASS CERTIFICATION

A district court's class certification order is reviewed under an abuse of discretion standard. Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir.1986). Even after initial certification, a district court may determine that certification was improvidently granted, and a district court remains free to decertify, subclassify or modify the class certification previously entered. Fed.R.Civ.P. 23(c)(1); General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982).

Prior to the Supreme Court's decision in Falcon, this Court permitted a plaintiff alleging race discrimination to assert an " 'across the board' attack on all unequal employment practices alleged to have been committed by the employer pursuant to a policy of racial discrimination." 457 U.S. at 152; 102 S.Ct. at 2367. See, e.g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir.1969). In Falcon, the Supreme Court curtailed that practice holding that it was error for the district court in that case to certify a class of both applicants and employees because the district court erroneously presumed, without a specific presentation, that the requirements of Fed.R.Civ.P. 23 were met. "[W]e reiterate today that 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." 457 U.S. at 161, 102 S.Ct. at 2372. ⁵

Falcon, however, does not foreclose all classes composed of applicants and employees. 457 U.S. at 159 n. 15; 102 S.Ct. at 2371 n. 15. ⁶ See, e.g., Vuyanich v. Republic National Bank, 723 F.2d 1195, 1199-1200, rehearing denied, 736 F.2d 160 (5th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984); Richardson v. Byrd, 709 F.2d 1016, 1019-20 (5th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 270 (1983). The "entirely subjective decisionmaking process" articulated in Footnote 15 presents one factual situation in which a putative class might meet the requirements of Rule 23(a). Chief Justice Berger, in his concurring and dissenting opinion, suggests another: Rule 23(a) might be met upon a showing that "the same person or persons who made the challenged decisions were motivated by prejudice against [the protected class], and that this prejudice manifested itself in both the hiring decisions and the decisions not to promote [members of the class]." 457 U.S. at 162 & n., 102 S.Ct. at 2373 & n.

In the instant case, the district court relied on the Chief Justice's opinion to certify a class composed of both applicants and employees. After the evidentiary hearing, the district court found that a single individual, Gary Shipp, was responsible for both hiring and promotion decisions. That fact, the district court reasoned, satisfied the commonality requirement for a class composed of both applicants and employees. After the trial on the merits, however, the district court concluded that Shipp's role was more limited. The evidence at trial demonstrated that a limited group of white department supervisors made all hiring and promotion decisions, as well as employee evaluations used to compute compensation, and that upper management routinely approved those decisions. As a result, the district court concluded that Watson failed to show the existence of common questions between the applicants' and employees' claims because the same individual was not responsible for both hiring and promotion decisions.

Watson asserts the district court erred because the commonality requirement may be satisfied by a showing that the same persons make both types of decisions. Assuming, arguendo, that Watson is correct, this Court's inquiry does not end with that conclusion. We cannot conclude that certification of a class of both employees and applicants is mandated merely because common questions exist. ⁷ Rather, the other factors enunciated in Rule 23(a) also must be considered.

Thus, assuming a common question was presented in the instant case, e.g., whether the same limited group of white supervisors discriminated in both hiring and...