Dosier v. Miami Valley Broadcasting Corp., Nos. 79-4118

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before HUG and CANBY, Circuit Judges, and EAST; CANBY
• Citation: 656 F.2d 1295
• Decision Date: 24 September 1981
• Docket Number: Nos. 79-4118,79-4149
• Parties: 26 Fair Empl.Prac.Cas. 824, 26 Empl. Prac. Dec. P 31,800, 8 Fed. R. Evid. Serv. 133 Lee DOSIER, Appellant and Cross-Appellee, v. MIAMI VALLEY BROADCASTING CORPORATION, d/b/a KTVU, Channel 2 Oakland, Dick Weise; Ray Jacobs; Bill Schwartz; and O. J. Reiss, Appellees and Cross- Appellants.

Page 1295

656 F.2d 1295 26 Fair Empl.Prac.Cas. 824,
26 Empl. Prac. Dec. P 31,800,
8 Fed. R. Evid. Serv. 133 Lee DOSIER, Appellant and Cross-Appellee,
v.
MIAMI VALLEY BROADCASTING CORPORATION, d/b/a KTVU, Channel 2
Oakland, Dick Weise; Ray Jacobs; Bill Schwartz;
and O. J. Reiss, Appellees and Cross- Appellants. Nos. 79-4118, 79-4149. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Dec. 9, 1980.
Decided May 4, 1981.
As Amended Sept. 1, 1981.
Rehearing Denied Sept. 24, 1981.

Page 1297

E. Garth Black, San Francisco, Cal., argued, for Miami Valley Broadcasting; Alan M. Reinke, E. Garth Black, Cooper, White & Cooper, San Francisco, Cal., on brief.

Louis Highman, San Francisco, Cal., for Dosier.

Appeal from the United States District Court for the Northern District of California.

Before HUG and CANBY, Circuit Judges, and EAST, District Judge. ^*

CANBY, Circuit Judge.

Appellant Lee Dosier sued appellee Miami Valley for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. The district court granted summary judgment in favor of Miami Valley on all claims. The court denied Miami Valley's request for attorneys' fees. Dosier appealed, and Miami Valley cross-appealed on the attorneys' fees issue. We reverse the district court's decision on Dosier's claim of retaliation, brought under 42 U.S.C. § 2000e-3 and under § 1981. We also reverse the district court's decision on Dosier's § 1981 claim based on incidents occurring after December 16, 1976, and remand for further consideration of that claim. In all other respects, we affirm.

FACTS

Dosier has been employed by Miami Valley as an artist since January 1971. On September 20, 1974, Dosier filed a charge with the Equal Employment Opportunity Commission, claiming that he was a victim of an atmosphere of racial harassment at Miami Valley. On December 13, 1974, he filed a second charge that he was being harassed in retaliation for filing the first charge. On March 11, 1976, the EEOC found that there was reasonable cause to believe Dosier's charges, and issued a notice that it would attempt to work out a settlement between Dosier and Miami Valley. On September 29, 1976, Dosier filed a third charge that he was denied a promotion because of his prior complaints. Dosier also filed charges based on these incidents with the California Fair Employment Practices Commission.

Dosier's complaints of discrimination at Miami Valley were not the only ones. On January 21, 1974, Larry Wydermyer also filed a charge with the EEOC, and later he filed a lawsuit based on that charge. Wydermyer

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v. Miami Valley Broadcasting Corp., No. C75-1829 ACW (N.D.Cal., filed Aug. 29, 1975). Wydermyer brought the suit as a class action on behalf of all minority persons employed by Miami Valley at any time from August 25, 1971, to the date of entry of judgment. Specifically, he alleged that he had been given lower pay, denied promotion, and harassed because of his race.

Wydermyer and Miami Valley agreed to settle the class action in late 1976. A notice of the proposed settlement was sent to all class members, including Dosier. Dosier appeared through his attorney at two settlement hearings in district court. He objected to his inclusion in the class, to the adequacy of Wydermyer as the class representative, and to the settlement itself. The district court overruled his objections, and approved the settlement. Wydermyer v. Miami Valley Broadcasting Corp., No. C75-1829 ACW (N.D.Cal. Dec. 16, 1976) (order dismissing complaint with prejudice). No appeal was taken from this judgment.

When its efforts to settle Dosier's charges of discrimination failed, the EEOC issued a right-to-sue letter on April 14, 1978. Dosier filed this suit, alleging violations of Title VII and § 1981. He based his complaint on the incidents occurring in 1974 and 1976, before the class action settlement, and on two incidents in 1977. On April 1, 1977, Dosier was reprimanded for refusing to work overtime. He filed an untimely charge based on this incident with the FEPC. On June 30, 1977, a supervisor accused Dosier of trying to sabotage the company, and threatened him. Dosier filed no charge based on this incident. In his complaint, he alleged that these incidents were part of a continuing scheme of harassment in retaliation for his prior charges of racial discrimination.

PRE-SETTLEMENT CLAIMS

The district court granted summary judgment in favor of Miami Valley on Dosier's pre-settlement discrimination claims. The district court ruled that these claims were barred by the doctrine of res judicata. We agree with the district court that Dosier cannot now litigate claims which were covered by the class action settlement. Dosier was a member of the class certified in Wydermyer v. Miami Valley, a class action discrimination suit brought under Title VII and § 1981 on behalf of all minority employees of Miami Valley. To the extent that Dosier's claims were included among the Wydermyer class claims, he was bound by the December 16, 1976, settlement of the class action. Kemp v. Birmingham News Co., 608 F.2d 1049, 1054 (5th Cir. 1979).

Our review of the record convinces us that Dosier's claims of retaliation, brought under 42 U.S.C. § 2000e-3 and under § 1981, were not covered by the class action settlement. The amended complaint in the Wydermyer class action alleged an individual claim of retaliation against the named plaintiff, but the class claims did not include charges of retaliation. ¹ Therefore, Dosier's pre-settlement claims of retaliation

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are not barred by the doctrine of res judicata. Rutherford v. American Bank of Commerce, 12 FEP Cas. 1184, 1186 (D.N.M.1976) aff'd, 565 F.2d 1162 (10th Cir. 1977); see Abramson v. University of Hawaii, 594 F.2d 202, 206-07 (9th Cir. 1979). Dosier's other pre-settlement claims of discrimination, brought under 42 U.S.C. § 2000e-2 and under § 1981, are fairly covered by the class action settlement. Dosier cannot now relitigate those claims.

Dosier argues that he should not be bound to any extent by the class action settlement because he was not adequately represented during that suit. It is true that a class member is not bound by a class action judgment if he was not adequately represented. Fowler v. Birmingham News Co., 608 F.2d 1055, 1058 (5th Cir. 1979). But a class member who is represented by counsel during a class action settlement hearing is bound by the settlement agreement. In re Antibiotic Antitrust Actions, 333 F.Supp. 296, 298 (S.D.N.Y.) aff'd, 450 F.2d 1119 (2d Cir. 1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2496, 33 L.Ed.2d 343 (1972). Although Dosier was not a named party in the Wydermyer class action, he was represented during the settlement conference by his own attorney. Dosier cannot now complain that the named plaintiff did not adequately represent his interests. He is bound by the settlement because of his own participation in the suit. Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 118-119, 85 L.Ed. 22 (1940).

Dosier also argues that he should not be bound by the class action because he was not given a chance to opt out of the class. He points out that the unnamed plaintiffs in Antibiotic Antitrust were given a chance to opt out, and chose not to do so. But the unnamed plaintiffs in Antibiotic Antitrust were given that chance because of the requirements of Rule 23(b)(3), Federal Rules of Civil Procedure. The Wydermyer class action was brought under Rule 23(b)(2), which contains no such requirement. Nor does due process require...