Eastland v. Tennessee Valley Authority

• Citation: 704 F.2d 613
• Decision Date: 02 May 1983
• Docket Number: No. 82-7008,82-7008
• Parties: 31 Fair Empl.Prac.Cas. 1578, 31 Empl. Prac. Dec. P 33,571 Frank L. EASTLAND, Individually, et al., Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 613

704 F.2d 613

31 Fair Empl.Prac.Cas. 1578,

31 Empl. Prac. Dec. P 33,571

Frank L. EASTLAND, Individually, et al., Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY, et al., Defendants-Appellees.

No. 82-7008.

United States Court of Appeals Eleventh Circuit.

May 2, 1983.

Rehearing and Rehearing En Banc Denied Sept. 12, 1983.

Paul C. Saunders, New York City, Richard T. Seymour, Lawyers' Comm. for Civ. Rights Under Law, Washington, D.C., for plaintiffs-appellants.

Herbert S. Sanger, Jr., Gen. Counsel, TVA, Justin M. Schwamm, Sr., Thomas F. Fine, A. Jackson Woodall, Jr., Knoxville, Tenn., for defendants-appellees.

Appeals from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, FAY and SMITH ^*, Circuit Judges.

GODBOLD, Chief Judge:

Plaintiffs brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., alleging that the Tennessee Valley Authority (TVA) engaged in racially discriminatory employment practices. The original complaint was filed in 1973 by Frank L. Eastland. The district court granted summary judgment against all but two of the plaintiffs. On appeal the Fifth Circuit reversed in part, affirmed in part and remanded the case for further proceedings. The history of these earlier proceedings is set forth in Eastland v. Tennessee Valley Authority, 398 F.Supp. 541 (N.D.Ala.1974), rev'd in part, aff'd in part, 553 F.2d 364 (5th Cir.1977), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) (Eastland I ).

On remand the district court certified James, Nash and Sheffield as representatives of a class consisting of past and present black employees represented by the Salary Policy Employee Panel of TVA's Office of Agricultural and Chemical Development (OACD). Subsequently the individual claims of Eastland ¹ and Long were consolidated for trial with the claims of the class and the class representatives.

The non-jury trial was bifurcated under Rule 42(b), Fed.R.Civ.P. Stage I was limited to liability and injunctive relief. Trial of this stage lasted seven weeks; 45 witnesses testified and 790 exhibits were received. The district court held in favor of TVA on all claims and thus never reached the damage stage. We affirm the judgment as to the class claims and the individual claims of the class representatives. We reverse as to Eastland and Long.

I. Class Claims

TVA is a wholly owned government corporation that provides electricity to the Tennessee Valley region and develops agricultural fertilizers among other projects. OACD is a division of TVA involved in fertilizer research and production. ²

As originally certified the plaintiff class includes

all past and present black salary policy employees represented by the Salary Policy Employee Panel of Tennessee Valley Authority's Muscle Shoals, Alabama, Office of the Agricultural and Chemical Development, from January 17, 1973 until the present.

The Salary Policy Employee Panel represents white collar employees not in management positions. The positions represented by the Panel are classified into the following salary schedules:

SA--administrative

SB--clerical

SD--engineering and scientific

SE--aides and technicians

SF--custodial. ³

Each job is given a level or grade within the particular schedule. There are also "steps" within each grade. Higher grades and higher steps within grades have correspondingly higher pay.

The plaintiff class (hereinafter referred to as Eastland) alleges that TVA unlawfully discriminates against black employees in promotion, job assignment, transfer, training and other conditions of employment. The controversy centers around the operation and effect of TVA's personnel system. Eastland contends that this system delegates "excessive subjective discretion" to a predominately white supervisory force and that blacks have suffered as a result.

The personnel practices and policies attacked by Eastland include: (1) the written job descriptions ⁴; (2) the system for classifying jobs at a particular grade ⁵; (3) lack of a formal training program; (4) employee service reviews; and (5) promotion and reclassification procedures. ⁶

Eastland's case included both statistical and anecdotal evidence. The district court determined that the quality of both modes of proof was insufficient to establish a prima facie case. We agree.

On appeal Eastland raises a myriad of objections. Because "it is neither practicable nor useful to write appellate opinions dealing in detail with every facet of each case[,]" Ste. Marie v. Eastern Railroad Ass'n, 650 F.2d 395, 397 (2d Cir.1981), we confine our discussion to issues whose resolution is necessary to our decision.

A. Class certification

The original complaint was filed on behalf of a class consisting of

all past, present, and future black employees and applicants for employment in TVA's Muscle Shoals, Alabama area operations and facilities, and all black persons who would apply or would have applied for employment in said operations but for the defendant's racially discriminatory recruitment and employment practices or reputation therefor.

The district court initially certified a class consisting of all past and present black employees represented by the Salary Policy Panel at OACD. Following the trial, the court further limited the scope of the class by decertifying the Administrative or SA schedule.

There are key differences between the class as alleged and the class as ultimately certified. The certified class excludes all managerial employees and all employees represented by the Tennessee Valley Trades and Labor Council. It also excludes applicants and those denied employment or deterred from seeking employment because of TVA's discriminatory practices or reputation.

Eastland argues that the district court abused its discretion in narrowing the class. "[S]uits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs." East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977). Eastland emphasizes that the requirements of Fed.R.Civ.Proc. 23 have been met and that under the "across- the-board" approach to Title VII, parties have been permitted to represent those who "suffe[r] from different practices motivated by the same policies." Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 900 (5th Cir.), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978) (citations omitted).

These arguments are unpersuasive. The Supreme Court recently has reiterated the importance of careful attention to the requirements of Rule 23 ⁷ and cautioned against the overzealous application of the "across-the-board" approach. General Telephone Co. v. Falcon, 457 U.S. 147, 157-160, 102 S.Ct. 2364, 2370-72, 72 L.Ed.2d 740, 749-52 (1982). "The mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination." Id. 457 U.S. at 157, 102 S.Ct. at 2370, 72 L.Ed.2d at 750 (quoting Rodriguez, 431 U.S. at 405-06, 97 S.Ct. at 1897-98).

The district court limited the scope of the class based on a determination that the representative parties lacked sufficient nexus with the putative class members to adequately protect their interests. The determination that a party would adequately protect the interests of a class is factual and depends on the circumstances of each case. Guerine v. J & W Investment, Inc., 544 F.2d 863, 864-65 (5th Cir.1977). Given the character of the employees' claim and the nature of the evidence required to substantiate it, we find that the district court did not abuse its discretion in narrowing the class.

B. Legal framework

A Title VII action may be based upon disparate treatment or disparate impact or both. In a disparate treatment case proof of discriminatory motive or intent is essential. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). A plaintiff can create an inference of discriminatory intent by proving the four elements of the McDonnell Douglas test ⁸ or by "offering [other] evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." Id. at 358, 97 S.Ct. at 1866 (footnote omitted).

In an action alleging class-wide discrimination plaintiffs must "establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure--the regular rather than the unusual practice." Id. at 336, 97 S.Ct. at 1855 (footnote omitted). A prima facie case of disparate treatment may be established by statistics alone if they are sufficiently compelling. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 328-29 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Even when the statistics are compelling, the prima facie case is bolstered if the plaintiff offers anecdotal evidence to "[bring] the cold numbers convincingly to life." Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856.

Once plaintiff establishes a prima facie case of disparate treatment, the burden shifts to defendant to rebut the inference of discrimination by showing that plaintiff's statistics are misleading or by presenting legitimate non-discriminatory reasons for the disparity. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Defendant's burden is production not persuasion. If defendant meets its burden, plaintiff may show that the asserted explanations are inaccurate or otherwise unworthy of credence. The ultimate burden of persuasion remains at all times with plaintiff.

A plaintiff may also bring a Title VII action under the disparate impact theory. Disparate impact is used to attack...