Davis v. Roadway Exp., Inc., 77-3478

• Decision Date: 23 February 1979
• Docket Number: No. 77-3478,77-3478
• Citation: 590 F.2d 140
• Parties: 19 Fair Empl.Prac.Cas. 243, 19 Empl. Prac. Dec. P 8967 Christina DAVIS, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., Defendant-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 140

590 F.2d 140

19 Fair Empl.Prac.Cas. 243, 19 Empl. Prac.

Dec. P 8967

Christina DAVIS, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., Defendant-Appellee.

No. 77-3478

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Feb. 23, 1979.

Samuel E. Hooper, Houston, Tex., for defendant-appellee.

Thomas C. Petley, Houston, Tex., for plaintiff-appellant.

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

Before COLEMAN, FAY and RUBIN, Circuit Judges.

PER CURIAM:

Christina Davis filed this class action lawsuit against her former employer, Roadway Express, Inc., in March of 1973, alleging violations of 42 U.S.C. § 1981 and Title VII of the 1964 Civil Rights Act. After extensive discovery and much procedural maneuvering, the case was tried to the court, which directed a verdict for the defendant at the conclusion of the plaintiff's case. Davis appeals from the final judgment that was entered against her. ¹

I.

In October 1970, Roadway hired Davis as a General Office Clerk, Junior at its Houston, Texas terminal. She was hired despite the fact that she failed the company's typing test several times, but the lower court found that these failures were not held against her. Her job included such tasks as filing freight bills, distributing incoming teletype messages, sending outgoing teletype messages, operating the postage meter, and retrieving filed freight bills. The bulk of her time apparently was consumed in filing the freight bills. On January 21, 1972, some fourteen months after her initial hiring, Roadway discharged her. Three days later, she filed written charges of racial and sexual discrimination with the Equal Employment Opportunity Commission, which issued her a right-to-sue letter in December 1972. This suit followed.

At the trial, the judge ruled from the bench at the conclusion of the plaintiff's case that she had failed to prove even a prima facie case that Roadway had discriminated against her on the basis of race or sex. The memorandum of decision, which the judge issued some months later, noted that Davis had "testified as to vague feelings that her training was inadequate," but concluded that she had failed to adduce any evidence that anyone else received any better or more comprehensive training. The judge also noted that Davis testified that everyone else seemed to know how to do their jobs, but he found that such testimony could create only speculation as to the reasons for Davis' inability to grasp the essentials of her job and certainly did not demonstrate a prima facie case of discrimination, especially in light of the fact that her successor, also a black woman, apparently adjusted to the demands of the job without difficulty. Davis also testified that a white female employee also seemed to be having problems but was not discharged. The judge discounted this evidence on the basis of other testimony from one of the plaintiff's own witnesses, Ronald Bayer, a coworker of the two women. He testified that the other woman's work was satisfactory. Mrs. Davis also testified that she had complained to her supervisor about some improper remarks made to her by a black male employee and that nothing had been done about his comments. However, she could not say that his comments had affected her job performance or that they had any bearing on her dismissal. As found by the trial judge, her final assertion to support her claims of discrimination was "that her supervisor, Mr. Mayer, made certain improper advances. The sum total of these advances were two separate comments on how attractive she looked in a particular outfit and Mr. Mayer's looking at her in what she interpreted to be a lascivious manner on these two occasions." Confronted with such scanty evidence, the trial judge ruled that Davis had failed to establish a prima facie case of either racial or sexual discrimination, and he accordingly did not require any rebuttal by Roadway.

II.

Our initial difficulty with this case concerns its procedural posture. The lower court tentatively certified Davis as the representative of a class of black and female clerical employees at Roadway's Houston terminal, ² but before the introduction of any evidence the Court indicated that the case would not proceed as a class action. Counsel for Davis then requested an opportunity to introduce some statistical evidence before the Court made its final ruling on decertification of the class. After hearing that testimony, the judge made a final ruling that the case could not proceed as a class action. The trial thus involved only Davis' individual claims of discrimination, which claims the trial judge resolved against Davis.

The judgment did not become final until the Court denied Roadway's motion for attorney's fees, from which Roadway appealed and Davis cross-appealed. The only indication of which issues Davis intended to appeal appears in her designation of the record on appeal. According to those papers, Davis "presents for Appeal several class related issues, namely, whether the trial judge erred in: decertifying the class once it had been certified, denying the existence of the class and in denying the existence of statistically established nationwide discrimination by Appellant against its Female and Black employees."

It therefore appears that Davis intended to appeal only the class action issues, and in fact she did exactly that. Of the eight issues presented in her appellate brief, all eight deal with the class action. There is no discussion of the merits of her individual claims; and the statement of facts does not even address any of the proof concerning her individual claims. The brief submitted in response by Roadway argues that Davis lacks standing to maintain this appeal or to represent any class of discriminatees because a final judgment has been entered against her individual claims and she has not appealed that judgment, citing East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); and Satterwhite v. City of Greenville, 5 Cir. 1978, 578 F.2d 987, Petition for cert. filed, 47 U.S.L.W. 3465 (U.S. Jan. 9, 1979) (No. 78-1008). Those two cases clearly establish the law that one who lacks a nexus with the purported class cannot be a proper class representative and control the instant case. The only difference between this case and Rodriquez is the fact that no class was ever certified in Rodriquez whereas in this case the class was decertified prior to trial; this distinction does not change the result today. In both cases, the district courts found the individual claims without merit.

With this issue thus clearly raised by Roadway in its brief, Davis has failed to file any reply brief. With the case in this posture, we can only conclude that Davis has not appealed the final judgment denying relief on her individual claims.

We further conclude that, with the law so clear and well-established under Rodriguez and Satterwhite, both of which were decided before Davis ever filed her brief with this Court, Davis' failure to appeal and brief the individual issues justifies granting Roadway's request that it be awarded its costs, including attorney's fees, on appeal. In the words of the Supreme Court, Davis has "continued to litigate (her class action claim) after it clearly became (groundless)." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978).

The award of attorney's fees will be confined to the cost of this appeal, however. ³ Since Roadway has voluntarily dismissed its appeal from the District Court's refusal to award attorney's fees for the trial work, that issue is not before us. It is proper, however, to award attorney's fees for services rendered on appeal. See, e. g., McGowan v. King, Inc., 5 Cir. 1978, 569 F.2d...