Burney v. North American Rockwell Corporation

• Decision Date: 04 June 1969
• Docket Number: Civ. No. 68-258.
• Citation: 302 F. Supp. 86
• Court: U.S. District Court — Central District of California
• Parties: Frederick BURNEY, Plaintiff, v. NORTH AMERICAN ROCKWELL CORPORATION, Defendant.

302 F. Supp. 86

Frederick BURNEY, Plaintiff, v. NORTH AMERICAN ROCKWELL CORPORATION, Defendant.

Civ. No. 68-258.

United States District Court C. D. California.

June 4, 1969.

COPYRIGHT MATERIAL OMITTED

Richard I. Wideman, Marina del Rey, Cal., and Barry A. Schulman, Beverly Hills, Cal., for plaintiff.

Stephen E. Tallent, Los Angeles, Cal., Gibson, Dunn & Crutcher, Los Angeles, Cal., of counsel, for defendant.

David R. Cashdan, Equal Employment Opportunity Commission, Washington, D. C., for Equal Employment Opportunity Commission.

MEMORANDUM AND ORDER GRANTING MOTION TO INTERVENE AND MOTION TO STRIKE AND DENYING MOTION TO DISMISS

PREGERSON, District Judge.

This is an action brought by plaintiff, Frederick L. Burney, under 42 U.S.C. § 2000e et seq., based on alleged discrimination in employment. On March 28, 1969 Lillie Mobley, John G. Motley, and Cleo Watkins filed a motion to intervene as plaintiffs. On April 14, 1969 defendant filed a motion to dismiss the complaint or to strike the allegations pertaining to a class action. These matters came on for hearing and were submitted to the Court for its decision. The Equal Employment Opportunity Commission appeared as amicus curiae.

Plaintiff was employed by defendant as a "patrolman." On May 19, 1967 he was discharged by defendant, purportedly for violation of defendant's Industrial Security Rules. Plaintiff filed a charge with the Equal Employment Opportunity Commission (hereinafter referred to as EEOC) alleging discrimination on the basis of race or color and sex. In the charge, plaintiff explained that he was discharged for being tardy two times within a 60-day period and that he felt he was discriminated against partly because of sex, because certain female employees of defendant were tardy more often than he but were not discharged.

As required by 42 U.S.C. § 2000e-5(b), the EEOC forwarded the charge to the California Fair Employment Practices Commission and deferred action on the matter. The California Fair Employment Practices Commission found no cause for the charge, and the EEOC was requested to assume active jurisdiction. Pursuant to plaintiff's request, the EEOC notified him on February 13, 1968 that efforts to resolve the matter by voluntary compliance had failed. Plaintiff filed his complaint in this action on February 20, 1968. On March 13, 1969 plaintiff was permitted to file a First Amended Complaint.

In the First Amended Complaint, plaintiff states that he is bringing this action for himself and for all Negro employees of defendant from and after July 2, 1965 (the effective date of the relevant provisions of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.). The First Amended Complaint alleges that plaintiff was discharged solely because of his race and that defendant discriminated against plaintiff and other Negro employees by more stringent and strict application of work rules, company rules, regulations, and the terms and conditions of employment, in such a way as to result in a difference in treatment between Negro and Caucasian employees. Plaintiff seeks monetary damages, reinstatement, and an order enjoining defendant from discriminatory application of its rules and regulations.

MOTION TO DISMISS

Dealing first with the motion to dismiss, defendant contends that this Court lacks subject matter jurisdiction because the allegations in the First Amended Complaint are broader than and different from the allegations plaintiff made in his charge filed with the EEOC. Defendant contends that plaintiff has attempted to bypass the EEOC and that plaintiff has not exhausted his administrative remedies.

It is true, as defendant contends, that the allegations in the First Amended Complaint are somewhat broader than the allegations in the charge filed with the EEOC. The charge filed with the EEOC alleged discriminatory discharge because of race (and partly because of sex); it did not expressly allege a company-wide policy of discriminatory application or enforcement of work rules, regulations, and conditions of employment. But the issue raised by plaintiff's charge was whether he was discharged because he was tardy too often or because he was tardy too often and was Negro. By alleging that his discharge was discriminatory, rather than a bonafide application or enforcement of company work rules and regulations, plaintiff implicitly alleged that defendant applied and enforced its work rules and regulations in a discriminatory manner.

It should be of no surprise to defendant that plaintiff now contends that his discharge was not an isolated and unprecedented act of discrimination. It does not appear to this Court that there is a material variance between the charge filed with the EEOC and the allegations of the First Amended Complaint.

Defendant cites Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967); Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), and Cox v. United States Gypsum Co., 284 F.Supp. 74 (S.D. Ind.1968) reversed in part 409 F.2d 289 (7th Cir. April 9, 1969). These cases do not apply here. In Stebbins and Mickel the plaintiff failed to perfect the filing of any charge with the EEOC. In Cox the plaintiffs brought an action alleging discriminatory recall, whereas their charges filed with the EEOC alleged discriminatory layoffs; the Court held that the act complained of in the complaint was of a different type and character from the act complained of in the charge filed with the EEOC, and that the EEOC and the defendant were not adequately informed of the actual grievance. Here, on the other hand, plaintiff alleges discrimination which is of the same type and character as the discrimination alleged in the charge filed with the EEOC.

MOTION TO STRIKE CLASS ACTION

Dealing next with the motion to strike, defendant contends that plaintiff has failed to show that there are common questions of law or fact between plaintiff and all other Negroes employed by defendant since July 2, 1965. Defendant further contends that plaintiff cannot adequately represent the interests of the other Negro employees of defendant.

In order to determine whether there are common questions of law or fact and whether plaintiff will fairly and adequately protect the interests of the class, one must first define the relevant class. Plaintiff's counsel contends that the relevant class is all Negro employees of defendant since July 2, 1965.

Plaintiff does not have standing to represent the interests of all Negro employees of defendant since July 2, 1965. In order to obtain relief for himself, plaintiff need not necessarily prove every act of alleged discrimination against Negroes that defendant may have committed since 1965. The Court cannot assume, for example, that plaintiff will fairly and adequately represent the interests of other Negroes who were discriminated against in such areas as job assignments, overtime, or vacations. Nor can it be expected that plaintiff, who has not been employed by defendant in the past two years, will fairly and adequately represent the interests of current employees as to all alleged discrimination practiced by defendant within the broad scope of "work rules, company rules, regulations, and the terms and conditions of employment."

As the Court stated in Johnson v. Georgia Highway Express, Inc., 47 F. R.D. 327 (N.D.Ga. October 8, 1968):

"One of the problems presented by the case is that plaintiff has nowhere identified in clear, precise language the exact class he seeks to represent. By deduction from an analysis of his complaint and particularly of the remedies sought therein, however, the class is seemingly that of `all persons who have been wrongfully discharged by, or are presently employed by, or who may seek employment with the defendant, and who may be discriminated against in the process because of their race or color.' By any rational construction of the preliminary requirements of Rule 23, this is not a proper group for a class action, as it includes far too many different interests and questions of law or fact for this plaintiff or any combination of plaintiffs to effectively assert in any manageable litigation. This plaintiff's proper class is only that of `all persons wrongfully discharged for reason of their race or color.'

There is no indication whatsoever that he has standing himself at this time to effectively represent the rights of either potential job applicants or of present employees.

* * * * * *

Similar reasoning applies to the plaintiff's claim to represent all of the present Negro employees. Neither a discharged ex-employee nor a (potential) applicant may effectively assert or represent rights which only grow out of a present employment relationship." 59 LC page 6758.

See also, Sawyers v. Grand Lodge, etc., 279 F.Supp. 747 (E.D.Mo.1967) (expelled

union member has no standing to bring class action on behalf of current union members). Accord, King v. Georgia Power Co., 295 F.Supp. 943 (N.D. Ga.1968); Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.Tenn.1966) (current employee alleging that promotions and training were available to white employees but not to Blacks, permitted to proceed in class action with respect to continuing harm but not for redress of past effects of the alleged discrimination).

Plaintiff relies primarily on Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968), and Carr v. Conoco Plastics, Inc., 295 F.Supp. 1281 (N.D.Miss.1969). In Jenkins the plaintiff complained of company-wide discrimination in job promotion and sought an injunction against discrimination in job promotion and damages for back pay differential. The Court of Appeals held that the action could not be dismissed as moot simply because the plaintiff was given a promotion after the action was brought. The Court correctly held that the action was not moot, for the mere fact that Jenkins had been given one promotion did not mean that defendant would not...