Briggs v. Brown & Williamson Tobacco Corp., Inc.

Decision Date19 May 1976
Docket NumberCiv. A. No. 73-0551-R.
Citation414 F. Supp. 371
CourtU.S. District Court — Eastern District of Virginia
PartiesJoan N. BRIGGS et al., Plaintiffs, v. BROWN & WILLIAMSON TOBACCO CORPORATION, INC., Defendant.


Robert B. Wallace, Alexandria, Va., Henry L. Marsh, III, Richmond, Va., Peter B. Work, Washington, D. C., for plaintiffs.

Francis V. Lowden, Jr., Hunton & Williams, Paul M. Thompson, Hill B. Wellford, Jr., Jack W. Burtch, Jr., Richmond, Va., Bernard M. Mamet, Chicago, Ill., for defendant.


MERHIGE, District Judge.

Plaintiffs, black and female employees and applicants for employment for the defendant at its Petersburg, Virginia plant, bring this action pursuant to 42 U.S.C. §§ 1981, 2000e to redress alleged racial and sexual discrimination in defendant's employment practices. Plaintiffs allege that defendant engages in discriminatory hiring, discharge, promotion and compensation practices and seek declaratory, injunctive and other appropriate relief. Jurisdiction is attained pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5. The matter comes before the Court on plaintiffs' motion to certify the action as a class action pursuant to Fed.R.Civ.P., Rule 23(c)(1) and defendant's response thereto.

Plaintiffs complain of a broad assortment of alleged discriminatory policies and practices relating to hiring, conditions of employment, and termination.1 In presenting these claims, plaintiffs propose to represent "all blacks and women who are now employed by defendant, who were or might have been employed by defendant since July 2, 1965, or who may be employed by defendant in the future." Defendant contends that class certification is inappropriate for claims arising from several of the contested practices, the maternity benefits issue is not properly before the Court, and that class membership for claims arising out of 42 U.S.C. § 2000e must be limited to persons who applied or were employed by defendant on or after 90 days prior to the filing of the earliest Equal Employment Opportunity Commission charge. The Court is of the opinion, however, that the matter is properly one maintainable as a class action under Fed.R.Civ.P., Rule 23(b)(2).

The burden of establishing the propriety of class certification falls on the moving party. Poindexter v. Tuebert, 462 F.2d 1096, 1097 (4th Cir. 1972); Marshall v. Electric Hoses and Rubber Co., 68 F.R.D. 287 (D.Del.1975). Plaintiffs must thus satisfy the mandatory requirements of Rule 23(a), Fed.R.Civ.P. The degree to which the numerosity, typicality of claims, commonality of questions of law and fact, and the adequacy of representation is satisfied is largely a function of the size and scope of the claims to be adjudicated. Plaintiffs in this action, challenge defendant's hiring, promotion, compensation, benefits and discharge policies on a sexual and racial basis. As such, the complaint involves "`an across the board' attack on all discriminatory actions by defendant." Barnett v. W. T. Grant Co., 518 F.2d 543, 547 (4th Cir. 1975) citing Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969).

It is alleged that defendant's Petersburg plant employs in excess of 1,400 black males, more than 500 black females, and more than 800 white females. Plaintiffs further allege that approximately 1,000 persons have been subjected to defendant's allegedly discriminatory hiring practices. Accordingly, the Court is satisfied that the class is so numerous that joinder of all members is impracticable. Fed.R.Civ.P., Rule 23(a). See Cypress v. Newport News General and Nonsectarian Hospital Ass'n, 375 F.2d 648 (4th Cir. 1967).

There are questions of law and fact common to the class. Specifically, there is a common question of law concerning the alleged racial or sexual discriminatory nature of the practices herein complained of. Defendant contends that plaintiffs have failed to establish that many of these practices are, in fact, discriminatory. The merit of such a contention must await a full development of the facts. The Court is not required to make, and indeed is precluded from making, a preliminary inquiry into the merits of a proposed class action for the purposes of certification. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176-77, 94 S.Ct. 2140, 2151-52, 40 L.Ed.2d 732, 747-748 (1974); Miller v. Mackey International, 452 F.2d 424, 427 (5th Cir. 1971).2

Typicality of the claims presented and the adequacy of representation may be treated together for the purposes of the instant action. Named plaintiffs include four black female applicants, one white former employee allegedly denied employment upon reapplication, and six black males who were former or are current employees of the defendant. Each has allegedly been adversely affected by one or more of the practices complained of in this action. A party, moreover, may "be aggrieved by employment practices to which he is not immediately subject". Graniteville Co. v. EEOC, 438 F.2d 32, 37 (4th Cir. 1971) citing Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970). The United States Court of Appeals for the Fourth Circuit has stated that when the plaintiff "directed his attack at discriminatory policies of defendant's manifested and various actions, and as one who has allegedly been aggrieved by some of those actions he has demonstrated a sufficient nexus to enable him to represent others who have suffered from different actions motivated by the same policies." Barnett v. W. T. Grant Co., 518 F.2d 543, 548 (4th Cir. 1975). See also Long v. Sapp, 502 F.2d 34, 43 (5th Cir. 1974); Rich v. Martin Marietta Corp., 522 F.2d 333, 341 (10th Cir. 1975); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970). Thus, while the claims of particular individuals may vary in detail from one to another, the collective claims focus on particular policies applicable to each class member thereby satisfying the typicality requirement of Rule 23(a). Defendant has not challenged the adequacy of representation of a class by these plaintiffs. Given the diversity and numbers of the plaintiffs and exhibited vigor at which this litigation has thus far proceeded, the Court has no reservations concerning the adequacy of representation. Finally, actions brought pursuant to Title VII of the Civil Rights Act of 1964 fit comfortably within Rule 23(b)(2), Fed.R. Civ.P. and are classified as such. See Barnett v. W. T. Grant Co., supra, 518 F.2d 543 (4th Cir. 1975); Rich v. Martin Marietta Corp., supra, 522 F.2d 333 (10th Cir. 1975); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975).

Defendant argues that the claims relating to maternity leave and benefit policies should not be cognizable in this action. Defendant's position is bottomed on the fact that the initial charge of discrimination filed with the EEOC did not raise this issue.3 More importantly, it was not the subject of the EEOC's investigatory and conciliatory efforts. It would be unfair, so defendant contends, to require an employer to litigate issues under Title VII and face potential back pay liability without the benefit of the EEOC's conciliation efforts. The importance of the Commission's conciliatory function was recently underscored when the United States Court of Appeals for the Fourth Circuit held that a portion of an action brought by an individual employee should be dismissed when the EEOC failed to negotiate with a defendant. Patterson v. American Tobacco Co., 535 F.2d 257, 272, No. 75-1259 (4th Cir. 1976). See also EEOC v. Raymond Metal Products Co., 530 F.2d 590 (4th Cir. 1976). The Patterson case does, however, leave open the "possibility that exceptional circumstances may excuse a failure to attempt conciliation". 535 F.2d at 272. The Court is of the view that the instant case warrants such an exception.

Only recently the United States Court of Appeals held that a lawsuit filed pursuant to Title VII need not be restricted to the allegations contained in the charge itself and that any discrimination uncovered during the course of investigation may be the subject of adjudication. EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976). In that case, EEOC was permitted to bring an action to redress both alleged sexual and racial discrimination when the charge filed alleged only the latter. The Court of Appeals admittedly limited the broad sweep of its opinion by pointing out that the additional "discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed by the Act." Id., at 366. Thus, while it is not clear that that Court would countenance the same broad expansion of issues to be resolved via litigation absent conciliation efforts, EEOC v. General Electric Co., supra, highlights the policy of allowing broad, rather than hyper-technically narrow, discrimination actions to effectuate the remedial purposes intended by Congress in the enactment of Title VII.

Plaintiffs contend that the above-quoted language from EEOC v. General Electric Co., supra, does not restrict this action for two reasons. First, it is plaintiffs' position that the Commission's failure to investigate the maternity issue was "a dereliction of its statutory responsibility." While it is unquestionably true that "a Title VII complainant is not charged with the Commission's failure to perform its statutory duties", Russell v. The American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975), the situation in the instant litigation is not analogous. The charges filed with the EEOC in this matter raised a broad spectrum of issues. The sexual discrimination charges, however, related primarily to hiring practices. The Court cannot conclude that the failure of EEOC to uncover every conceivable discriminatory practice during the course of an investigation constitutes what plaintiffs describe as a "dereliction of its statutory responsibility"....

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