Evans v. U.S. Pipe & Foundry Co.

• Decision Date: 24 January 1983
• Docket Number: No. 81-7125,81-7125
• Citation: 696 F.2d 925
• Parties: 33 Fair Empl.Prac.Cas. 1620, 30 Empl. Prac. Dec. P 33,288 Thomas A. EVANS, Plaintiff-Appellant, v. U.S. PIPE & FOUNDRY COMPANY, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 925

696 F.2d 925

33 Fair Empl.Prac.Cas. 1620,

30 Empl. Prac. Dec. P 33,288

Thomas A. EVANS, Plaintiff-Appellant, v. U.S. PIPE & FOUNDRY COMPANY, etc., Defendant-Appellee.

No. 81-7125.

United States Court of Appeals Eleventh Circuit.

Jan. 24, 1983.

Robert L. Wiggins, Jr., Birmingham, Ala., for Evans, et al.

Bradley, Arant, Rose & White, James P. Alexander, Stephen E. Brown, Robert K. Spotswood, Birmingham, Ala., for defendant-appellee.

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

Before HILL and HENDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

GARZA, Senior Circuit Judge:

On January 13, 1971, Thomas Evans filed a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC) naming U.S. Pipe & Foundry and the Molders Union as respondents. Evans alleged that the company failed "to permanently promote me"; that he was discriminated against with respect to unspecified terms and conditions of employment; that he was harassed on the job; and that the union failed to adequately represent him. His charge arose after U.S. Pipe disqualified him from the position of charging crane relief operator, a job he attained by bid, on the 29th day of a thirty-day qualification period. ¹ On February 27, 1973, the EEOC issued a determination finding "reasonable cause" to believe that Evans had been disqualified for racially discriminatory reasons. When conciliation failed, the EEOC issued Evans a right to sue letter, and this suit was instituted as a class action on January 14, 1977. ²

In the first pretrial conference in December, 1977, the court stated that a class certification hearing would be held to consider the claims of plaintiff Evans and any potential intervening plaintiff. ³ On July 18, 1978, a class certification hearing was held where Evans presented as evidence his own deposition, answers to interrogatories from U.S. Pipe, and the undisputed facts set forth in the briefs. Based on this evidence, the district court denied class certification on November 21, 1978, finding: (1) the putative class would include members whose claims were outside the scope of the EEOC charge and could not, therefore, be represented by Evans; (2) a smaller class which Evans could properly represent had not been shown to meet the "numerosity" requirement of Rule 23; and (3) Evans, since no longer employed by U.S. Pipe due to a disability, could not adequately represent injunctive claims of other class members. ⁴

At a second pretrial conference on January 16, 1979, Evans informally requested the district court to reconsider its denial of class certification. No action, however, was taken at that time by the court. Finally, on March 3, 1980, a third pretrial conference was held in which the court agreed to "hear any additional evidence plaintiff may wish to present concerning the issue of class certification" at the trial on the merits of Evans' claim. ⁵

On October 9, 1980, before the trial on the merits, the district court entered a memorandum opinion granting summary judgment with respect to three intervenors: Matthew Brock, Frank Clark and Major Epting. The court denied Evans' request to reconsider its class certification decision stating that Evans had had the full opportunity to present evidence at the July 18, 1978, certification hearing, and, therefore, was not entitled to relitigate that question. With respect to intervenor Eddie Ezell who was also seeking class certification, the court reiterated that it would hear any additional evidence on that issue at trial.

On January 5, 1981, after a trial on the merits, the district court found Evans' individual discrimination claim meritorious. The court found against intervenor Ezell on his individual discrimination claim and his request for class representation. Plaintiff Evans now appeals the district court's denial of his class certification claim. We must determine whether the district court erred in denying certification of a class with plaintiff-appellant as the class representative.

The "Like or Related" Rule

Appellant first asserts that the district court erred in its application of the "like or related" rule to the case at bar. There has been much dispute over exactly what the district court held in regard to this issue. Our reading of the court's Memorandum Opinion of November 21, 1978, reveals that the district court ruled as follows. The court found that the putative class as defined by the appellant--that is, a class of "all black employees of the defendant company ... from January 13, 1969, to the present time who may have been discriminated against in initial job assignments, promotions, reductions-in-force, discipline and terminations"--included members whose claims were beyond the scope of (and therefore, not like or related to) the EEOC charge filed by Evans and investigated by the Commission. The court perceived Evans' EEOC charge to encompass racial discrimination in the areas of promotions, job harassment, and union representation. We first consider the propriety of this ruling.

In Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970), this court set forth what has been termed the "like or related" rule or "reasonable expectation" test which defines the scope or degree to which the discrimination alleged in a Title VII plaintiff's complaint can vary from that charged in the EEOC complaint and that investigated by the Commission. In Sanchez, we held "that the allegations in a judicial complaint filed pursuant to Title VII 'may encompass any kind of discrimination like or related to the allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission.' " Id. at 466, quoting King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968). The court further stated that "the 'scope' of the judicial complaint is limited to the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id.

In this case, appellant contends that he sought to represent a class of employees who were discriminated against by the employment practices of the defendant involving subjective opinions, evaluation and decisionmaking by the upper level white supervisory staff. The class requested by the appellant identified those areas where subjective opinions by supervisors operated to discriminate against the defendant's employees. Those areas included "initial job assignments, promotions, reductions-in-force, discipline and terminations." Hiring, for example, was not included since plaintiff believed that appellee's procedures did not involve subjective decisionmaking in that area. Appellant contends that the EEOC investigation into Evans' charge was one which essentially encompassed or should have encompassed an investigation into these subjective practices which allegedly pervade defendant's discriminatory acts. Accordingly, it is asserted that these discriminatory acts rooted in the subjective decisionmaking of the white supervisory staff are "like or related" to those same practices which should have "grown out" of Evans' EEOC charge alleging discrimination in promotions, harassment, union representation and other terms and conditions of employment.

There is some support for appellant's argument in this and other court's application of the "like or related" rule. The pervasiveness of discriminatory practices has supported a finding that discrimination in terminations and hirings may be "like or related." See EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir.1975). In Falcon v. General Telephone Company of Southwest, 626 F.2d 369, 376-77 (5th Cir.1980), vacated and remanded, 450 U.S. 1036, 101 S.Ct. 1752, 68 L.Ed.2d 234 (1981), reinstated in part, 647 F.2d 633 (5th Cir.1981), reversed on other grounds, --- U.S. ----, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), this Circuit found hiring and promotion practices to be "like or related" where the EEOC investigation had encompassed both. ⁶ In Falcon, this Court recognized that other courts had interpreted the "like or related" rule to permit virtually any claim of discrimination in any area of employment to be considered an "outgrowth" of the charge of discrimination filed with the EEOC. 626 F.2d at 377. See, e.g., McBride v. Delta Air Lines, Inc., 551 F.2d 113, 115 (6th Cir.), vacated on other grounds, 434 U.S. 916, 98 S.Ct. 387, 54 L.Ed.2d 273 (1977); Tipler v. E.I. DuPont DeNemours and Co., 443 F.2d 125 (6th Cir.1971); Arey v. Providence Hospital, 55 F.R.D. 62, 67 (D.D.C.1972). The "like or related" rule, on the other hand, has also been interpreted conservatively where the EEOC charge and investigation were more limited. See, e.g., Ray v. Freeman, 626 F.2d 439 (5th Cir.1980), cert. denied, 450 U.S. 997, 101 S.Ct. 1701, 68 L.Ed.2d 198 (1981); Bussey v. Hamilton Kent Manufacturing Co., 23 FEP 745 (N.D.Ga.1980); EEOC v. Griffin Wheel Co., 12 FEP 523 (N.D.Ala.1976).

The starting point for determining the permissible scope of the judicial complaint is the EEOC charge and investigation. The record reveals that the substantive inquiry by the Commission was limited to defendant's claims of discrimination in promotion and harassment. Appellant's concept of widespread discrimination rooted in the subjective decisionmaking of the white supervisory staff was not a part of investigation by the Commission. Among the principles underlying the "like or related" rule is the belief that the Commission should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts. In light of these principles, we cannot say that the district court erred in finding that plaintiff's broad class included members whose claims were beyond the scope of Evans' EEOC charge.

Application of Rule 23

It is apparent, however, that at least with respect to...