Crawford v. Western Elec. Co., Inc.

Decision Date08 April 1980
Docket NumberNo. 77-2565,77-2565
Citation614 F.2d 1300
Parties22 Fair Empl.Prac.Cas. 819, 22 Empl. Prac. Dec. P 30,831 James E. CRAWFORD et al., Plaintiffs-Appellants, v. WESTERN ELECTRIC COMPANY, INC., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Reese Marshall, Henry Lee Adams, Jr., W. Benjamin Kyle, Jacksonville, Fla., Algie Cooper, Tallahassee, Fla., for plaintiffs-appellants.

Guy O. Farmer, II, Jeffrey H. Klink, Charles G. Cofer, Jacksonville, Fla., Patrick M. Scanlon, James B. Coppess, Atlanta, Ga., for Communications Workers of America & CWA Local 3290.

Appeal from the United States District Court for the Middle District of Florida.

Before THORNBERRY, GEE and HATCHETT, Circuit Judges.

GEE, Circuit Judge:

Plaintiffs sought to proceed against defendants Western Electric Company ("Western Electric") and Communication Workers of America ("the union") in a nonjury class action under both Title VII 1 and 42 U.S.C. § 1981. Plaintiffs charged that the defendants discriminated against blacks at Western Electric by denying them, among other things, promotions at a rate equal to that achieved by whites. The district court declined to certify a class and granted partial summary judgment in favor of defendants on the Title VII claims. The section 1981 claims proceeded to trial, and plaintiffs lost on the merits. They appeal, complaining of several alleged errors committed by the trial court: failure to certify a class under Fed.R.Civ.P. 23; dismissal of the Title VII claims for lack of jurisdiction; failure to find racial discrimination under section 1981; dismissal of the section 1981 claims against the union; and the award of attorneys' fees to defendants. For simplicity's sake we will discuss the facts pertinent to each issue during our discussion of that issue.

Denial of Class Certification

The district court held an evidentiary hearing on February 20, 1976; in an order a week later the district judge denied plaintiffs' 2 application for class certification "without prejudice to plaintiffs' reapplication at the conclusion of discovery." After that reapplication, on December 17, 1976, the district court entered an order denying class certification on the ground that the class was not so numerous that all plaintiffs could not be joined in the suit. Plaintiffs filed a motion for reconsideration of that order on April 6, 1977. On May 25, 1977, the district judge again denied plaintiffs' renewed application. The language of this order states three grounds for denial of class certification: untimeliness of the motion; impropriety under Rule 23 of repetitive applications for class certification, especially after a case has been set for trial; and the fact that the only employees shown to have a common ground for relief were the installers in the Jacksonville Division of Western Electric, a group not so numerous as to require class action treatment. The judge concluded his order of May 25 by stating, "The class action device is, therefore, not a superior device for the fair and efficient adjudication of the controversy." Even if we assume arguendo that the first two grounds articulated in this order are erroneous, 3 we will not disturb this denial of certification if the third ground, lack of numerosity, is correct. We note additionally that numerosity appears to have been uppermost in the trial judge's mind, since on May 27, 1977, in his formal denial of plaintiffs' motion to reconsider, he stated that the only appropriate class would include all installers in the Jacksonville Division of Western Electric and that that class was not so numerous that all plaintiffs could not be joined.

The district court, in making these decisions, considered the evidence heard on February 20, 1976, memoranda submitted by both parties, and evidence presented at a hearing on December 13, 1976. Unfortunately, this court was not provided with the transcript of the evidentiary hearings on the class certification issue. Our appellate rule, Fed.R.App.P. 10(b), clearly places the duty on appellants to provide such transcripts. McDonough v. M/V Royal Street, 608 F.2d 203, 204 (5th Cir. 1979) (per curiam); Green v. Aetna Insurance Co., 397 F.2d 614 (5th Cir. 1968). Plaintiffs appear to insist in their brief that a class should have been certified that included all present and past black employees, not just installers, plus all blacks whom the company had refused in the past to hire. Since plaintiffs point to no evidence in the pretrial hearing that would mandate a finding by the district judge that plaintiffs were adequate representatives of a class that included other types of employees and nonemployees, we perceive no basis on which to find error or an abuse of discretion. The fact that plaintiffs are members of the same race as the other employees and rejected job applicants whom they seek to represent in a class action is not enough in itself to require a finding under Rule 23 that their representation was adequate or that their claims were typical of the class. See East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977).

Plaintiffs admitted in a pretrial brief that employees in the Installation Division of Western Electric do not share similar functions, collective bargaining representatives, physical locations, or supervisory personnel with employees in the Distribution Center. In addition, the duties done and the promotion systems differ. See Hill v. Western Electric Co., 596 F.2d 99, 102-03 (4th Cir. 1979), --- U.S. ----, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979).

We recognize that employees may, on occasion, properly represent nonemployees and vice versa. See Payne v. Travenol Labs, Inc., 565 F.2d 895 (5th Cir. 1978); Gray v. Greyhound Lines, East, 178 U.S.App.D.C. 91, 545 F.2d 169 (D.C.Cir. 1976); Long v. Sapp, 502 F.2d 34 (5th Cir. 1974); Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir.), cert. denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257 (1970); Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969); Note, Antidiscrimination Class Actions Under the Federal Rules of Civil Procedure: The Transformation of Rule 23(b)(2), 88 Yale L.J. 868 (1979). We merely hold here that when the trial court refuses to certify a class, plaintiffs on appeal must demonstrate facts in the record below that indicate, among other things, the typicality of their claims and their adequacy as representatives of the excluded members of the putative class. The evidence at the pretrial hearing could very well have shown the trial judge that plaintiffs' complaints pertained exclusively to the promotion system at the Installation Division of Western Electric, not to its hiring practices and not to other employees. Plaintiffs have failed to meet their burden on appeal, and the trial judge's ruling must be sustained.

Plaintiffs also argue that, in addition to the fifteen 4 named plaintiffs, there were nineteen former black installers who had been laid off by the company 5 and that the combined figure of 34 was sufficient to meet the numerosity requirement of Rule 23, even if the class was limited to past and present installers. This argument fails for several reasons. First, the trial judge indicated in the pretrial conference that numerosity was not the only factor that affected his decision to deny class certification. From the trial judge's remarks at that conference, we can infer that, in his judgment, adequacy of representation, typicality, and commonality were also lacking. Second, a district court's determination of numerosity is considered final unless abuse is shown or unless the trial court applied impermissible legal criteria or standards. Carey v. Greyhound Bus Co., 500 F.2d 1372, 1380 (5th Cir. 1974). We certainly cannot say that a class of 34 satisfies the numerosity requirements as a matter of law. See Garcia v. Gloor, 609 F.2d 156, 160 (5th Cir. 1980) (no arbitrary rules for numerosity should be established). Plaintiffs have pointed to no factor that would indicate an abuse of discretion on the part of the trial judge; therefore, we will not overturn that decision on appeal.

After the trial court refused to certify the class, plaintiffs succeeded in amending their complaint to add the remaining seven, presently employed black installers at Western Electric. 6 If plaintiffs had requested at that time to add as plaintiffs the 19 other black installers who had been laid off by Western Electric, that addition, if granted, could probably have been upheld on appeal. 7 However, plaintiffs did not move to do so, and they make no complaint to us regarding the 19 former black installers except in the context of their arguments about denial of class certification. Thus, the claims of those 19 layoff victims are not before us.

We wish to emphasize here that, because we uphold the denial of class certification, the only practice of Western Electric now before us is its Index Plan; its hiring practices and practices regarding employees other than the Jacksonville installers are not now at issue.

Title VII Jurisdiction

The trial court dismissed the Title VII claims of the eight original plaintiffs against Western Electric on May 27, 1977. The court based its decision to dismiss the Title VII claims of plaintiffs Dupree, L. Hodge, Smith, and Tunsill on the fact that they had received an alleged "right to sue" notice more than 90 days before suit was brought, citing Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977). The Title VII claims of plaintiffs Crawford, Crump, Higginbotham, and McKinney against Western Electric were dismissed because they had failed to file any administrative charge with the Equal Employment Opportunity Commission (EEOC). On June 1, 1977, the trial court dismissed the Title VII claims of the seven plaintiffs who were added to the complaint after denial of class certification, again on grounds that they had failed to file...

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