Barnett v. W.T. Grant Co.

• Decision Date: 12 June 1975
• Docket Number: Nos. 74-1638,74-1639,s. 74-1638
• Citation: 518 F.2d 543
• Parties: 10 Fair Empl.Prac.Cas. 1057, 9 Empl. Prac. Dec. P 10,199 Hyland Lewis BARNETT, Appellant, v. W. T. GRANT COMPANY, a corporation, et al., Appellees. Hyland Lewis BARNETT, Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, an unincorporated labor organization, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 543

518 F.2d 543

10 Fair Empl.Prac.Cas. 1057,

9 Empl. Prac. Dec. P 10,199

Hyland Lewis BARNETT, Appellant, v. W. T. GRANT COMPANY, a corporation, et al., Appellees.

Hyland Lewis BARNETT, Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, an unincorporated

labor organization, Appellant.

Nos. 74-1638, 74-1639.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 9, 1975.

Decided June 12, 1975.

Jonathan Wallas, Charlotte, N. C. (Robert Belton, J. LeVonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Jack Greenberg and Morris J. Baller, New York City, on brief), for appellant in No. 74-1638 and for appellee in No. 74-1639.

Francis M. Fletcher, Jr., Charlotte, N. C. (Harkey, Faggart, Coira & Fletcher, Charlotte, N. C., on brief), for appellee, Local 71, in No. 74-1638.

James J. Baldwin, Greenville, S. C. (James B. Spears, Jr., and Haynsworth, Baldwin & Miles, Greenville, S. C., on brief), for appellee, W. T. Grant Co., in No. 74-1638.

Sidney Dickstein, George Kaufmann, Ira R. Mitzner and Dickstein, Shapiro & Morion, Washington, D. C., on brief for appellee, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, in Nos. 74-1638 and 74-1639.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Hyland Lewis Barnett brought this suit under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5(f), and 42 U.S.C. § 1981 seeking redress for alleged racially discriminatory practices by defendants. After a trial the district court denied relief on Barnett's individual claim, and held that the class action numerosity requirement was not met with respect to the only class that Barnett could appropriately represent, which was a much narrower class than Barnett had sought to represent. We affirm the district court as to Barnett's individual claim, but reverse his narrowing of the class action and hold both that Barnett can represent the broader class and that that class is entitled to relief.

I.

W. T. Grant Company is a Delaware corporation with a large retail marketing enterprise in Charlotte, North Carolina. Its operations in Charlotte (the subject of this suit) are divided into two departments: the Fleet Operation, a relatively small longline trucking operation that supports its basic marketing business; and the Consolidation Operation, which includes its warehouse facilities.

Barnett began work with Grant in the summer of 1970 as a warehouseman and occasional clerk in the Consolidation Operation. In the fall he became a switcher, moving and parking trailers at the Grant facilities and driving trailers to other trucking terminals in the Charlotte area. But his real desire was to be an over-the-road driver in charge of tractor-trailer rigs making long hauls on the open highway. Grant employed at the time 27 such drivers, all of them white. Barnett's individual charge of discrimination is that he was denied the company's normal 60-day probationary period for fledgling over-the-road drivers because he was black. The record, however, amply supports the district court's finding that instead of suffering invidious discrimination Barnett may actually have received preferential treatment.

In early 1972, when Barnett first expressed his interest to Grant's fleet manager, Barnett was only 21 years old and had had no over-the-road training or experience. Thus he did not meet Grant's specific criteria that over-the-road drivers be at least 23 years old and have two years' driving experience. ¹ These requirements, which Grant had never waived, are reasonable ones for the responsible position of over-the-road driver. Nor have they been shown to exclude a disproportionate number of black applicants. ²

In addition to his failure to meet these objective criteria, Barnett had had two accidents within the previous year while performing his switching duties, including one that occurred when he was by his own admission "angry and upset" at a fellow employee. Moreover, Barnett had once been allowed to try his hand at open highway driving by an experienced driver with whom he was riding, but had quickly pulled over and stopped driving because he was admittedly upset and nervous and was "making a lot of mistakes."

Despite all of this, the fleet manager agreed to allow Barnett to make a "test run" with a driver of Barnett's own choosing, and to put Barnett on probationary status if that driver's report was favorable. ³ Barnett took the test run with a man named Davis because he considered him a fair man who would report honestly. Davis' report was unfavorable. The fleet manager subsequently denied Barnett probationary status based on Davis' report, Barnett's failure to meet the age and experience requirements, and Barnett's "immature attitude" as shown by the switching yard accident apparently caused by anger.

On this state of facts the district judge found "that the refusal of the defendant to transfer Barnett and promote him to the job of probationary road driver was not based upon racial grounds, but was based upon a reasonable business decision and judgment as to his lack of maturity, lack of experience, tender age, and not yet stable emotional outlook." Even though we believe, unlike the district court, that an inference of racial discrimination should be drawn from Grant's all-white over-the-road driver complement, the facts rebut the inference in Barnett's case and plainly show that he simply came up short when offered a special opportunity.

IIA.

Although Barnett's original complaint alleged only an individual cause of action, the district court permitted him to amend it to include a class action on behalf of "all black persons who have been or who may be affected by the unlawful employment practices complained of herein." The district court entered a conditional order allowing the case to proceed to trial as a class action on behalf of "all blacks presently employed at the Mecklenburg County, North Carolina facilities of the defendant W. T. Grant Company as well as all blacks who have been, continue to be, or might be adversely affected by the alleged racially discriminatory employment practices of the defendants."

In its decision on the merits, however, the district court held that Barnett could represent only "that group of black persons who have unsuccessfully applied for or requested road driving jobs with the Company." The court found that this much narrower class consisted of less than five persons and therefore failed to meet the numerosity requirements of Rule 23(a), so that Barnett's class action failed entirely.

Unless abuse is shown, the decision of a district court on whether the numerosity of a class makes joinder impracticable is final. Cypress v. Newport News General & Nonsect. Hosp. Ass'n, 375 F.2d 648, 653 (4th Cir. 1967); 3B J. Moore, Federal Practice P 23.05, at 23-280 (2d ed. 1974). The court below was certainly within its discretion in deciding that a class action was unnecessary when only those few blacks who had unsuccessfully applied for driver positions were considered. We believe, however, that the district court erred when it narrowed the class from that described in its pre-trial order.

Barnett in his complaint and at trial attacked various discriminatory employment practices of defendants, and sought to represent two specific groups of persons, in addition to black driver applicants, who had been or would be adversely affected by them. One group of practices included the maintenance of separate hiring locations for Fleet Operation and Consolidation Operation workers, recruitment of new over-the-road drivers only from walk-in applicants or by "word of mouth" from present drivers, periodic display of a sign at the hiring facilities of the Fleet Operation stating that no applications were being taken, and the absence of carry-over seniority for anyone who might transfer from the Consolidation Operation to the Fleet Operation to take a job as driver. Barnett sought to represent all those blacks who had been kept ignorant of driver positions or discouraged from applying for them due to these practices. In addition, he sought to represent those black employees of Grant who had been or in the future would be denied promotion to supervisory positions because of the company's nonobjective selection standards for supervisors.

The district court did not explain its reasons for disallowing Barnett's representation of these two groups of blacks. Whatever its reasoning, we believe the court construed too narrowly the proper scope of class actions in employment discrimination cases.

Barnett brought his class action under subsection (b)(2) of Rule 23, which states that a class action is maintainable when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." The Committee Notes to Rule 23(b)(2) indicate that it was intended as a vehicle for civil rights attacks on unlawful discrimination against a class whose members might be incapable of specific enumeration. See 3B J. Moore, Federal Practice P 23.01(10.-2) (2d ed. 1974). Viewed broadly, Barnett's suit is an "across the board" attack on all discriminatory actions by defendants on the ground of race, and when so viewed it fits comfortably within the requirements of Rule 23(b)(2). See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). ⁴ We believe such a characterization is more consonant with the broad remedial purposes of Title VII itself, and that the district court's less charitable view, under which Barnett could as a class representative challenge only those specific actions taken by the defendants toward him, would undercut those purposes.

The Fifth Circuit has recently reiterated its similar approach to class actions in employment discrimination cases....