Falcon v. General Tel. Co. of Southwest
| Decision Date | 22 September 1980 |
| Docket Number | No. 78-3587,78-3587 |
| Citation | 626 F.2d 369 |
| Parties | 23 Fair Empl.Prac.Cas. 1610, 24 Empl. Prac. Dec. P 31,247, 7 Fed. R. Evid. Serv. 1409 Mariano S. FALCON, Plaintiff-Appellee Cross-Appellant, v. GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Defendant-Appellant Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E. Russell Nunnally, Dallas, Tex., Stephen W. Holt, San Angelo, Tex., for defendant-appellant cross-appellee.
John E. Collins, Irving, Tex., Frank P. Hernandez, Garland, Tex., for plaintiff-appellee cross-appellant.
Appeals from the United States District Court for the Northern District of Texas.
Before TUTTLE, RANDALL and TATE, Circuit Judges.
This is an appeal from a judgment for the plaintiffs in a class action Title VII employment discrimination suit. We affirm part of the trial court's decision and remand the rest for further proceedings.
This class action, filed originally by Mariano S. Falcon, a Mexican-American, challenged the hiring and promotion practices of the defendant employer, General Telephone Company of the Southwest (General), on the ground that General impermissibly discriminated on the basis of national origin against Mexican-Americans (Spanish speaking Americans). 1 Falcon applied for a job with General in July of 1969. He was hired as part of an affirmative action program, and after a training period, he began work as a groundman. After one month, he was promoted to lineman and a short time later, he was promoted to lineman in charge. One year after he was hired, he turned down a promotion to installer-repairman, and he did not receive any other promotion prior to October, 1972, at which time he applied for a promotion to Field Inspector. He did not receive this promotion although several other non-Mexican-Americans with less seniority than Falcon received the promotion. Falcon then filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging that General discriminated in the area of promotions. 2 He filed suit in early 1975, challenging both the hiring and promotion policies of General in a class action suit. The trial court certified the class, but limited the class to those Mexican-American employees who had applied for employment or were employed in General's Irving, Texas division.
At Phase I of the trial, 3 the district court decided that General had discriminated against the plaintiff with respect to promotion, but not with respect to hiring, and that General had discriminated against the other members of the class with respect to hiring, but not with respect to promotions. The court apparently based its finding of discriminatory hiring on statistics, introduced by the plaintiff, which indicated that Mexican-Americans represented 5.24% of the work force in the Dallas/Fort Worth area, the relevant area for Irving, while only 1.22% of General's employees in 1972 were Mexican-American. The trial court also relied on the fact that 20 Caucasians were hired in 1972, as opposed to no Mexican-Americans, and that in 1973, only 4% of those hired were Mexican-American. 4 See note 16 infra.
With respect to hiring at Phase I, there was testimony that General had a policy of keeping all applications active for only three months. The court found that none of the applicants were informed of this time limit, that the applicants were not informed as to what positions were open, and that they were not informed as to the qualifications for any of these positions. Thus, General was given the burden of proving at Phase II that there had not been any job openings for which the class members had been qualified after the three month period. 5
As stated previously, the trial court also decided that Falcon was discriminated against in promotions. The court based its decision there on its finding that General's proferred reasons for promoting the other men, rather than Falcon, were insufficient and subjective. Therefore in Phase I, as a preliminary part of its relief order, the court ordered the defendant to take numerous affirmative action steps and the judge held that the plaintiff and the class were entitled to attorney's fees.
At Phase II of the trial, the court ruled that General had not met its burden of proving that there had been no available openings for the class applicants who wished to be hired after the three month "active" application period. All 13 class members therefore received back pay awards and job security awards to compensate them for the fact that if they had been hired by General, they would have been in a union. The judge also awarded attorney's fees to the plaintiff and class.
Both sides appeal from this judgment. The appellant, General, bases its appeal on a number of issues. It argues that:
(a) The trial court erred in certifying the class;
(b) The trial court did not have jurisdiction over the discriminatory hiring claim since the EEOC charge related solely to a discriminatory promotion policy claim;
(c) The trial court erred in finding that the plaintiff below had been discriminated against with respect to promotion;
(d) The trial court erred in finding that the defendant below had discriminated against the class with respect to hiring;
(e) The trial court erred in admitting reports from the General Services Administration (GSA);
(f) The trial court erred in making back pay awards without sufficient evidence that job openings existed for which the class members were qualified;
(g) The trial court erred in finding the application procedure unreasonable;
(h) The trial court awarded too much in back pay;
(i) The trial court awarded too much in attorney's fees.
The appellee, Falcon, argues that:
(a) The trial court erred in limiting the class to those employed in the Irving division;
(b) The trial court awarded too little in back pay.
We shall examine each of these issues in the approximate order they were raised at trial.
The appellant argues that under Rule 23, the trial court erred in certifying the class at all. On his cross-appeal, Falcon claims that the only error involved in the certification was the trial judge's limiting of the class to Mexican-Americans who are employed at or have applied to the Irving division of General, rather than all of the divisions. We shall examine each of those issues in turn.
The appellant bases its argument on three theories. It says the claim of the class representative was not typical of the claims of the class; that the class representative could not fairly and adequately protect the interests of the class, and that the questions of law and fact raised by the claims of the class representative were not common to the questions of law and fact raised by the claims of the class. General also argues that the failure of the trial court to hold an evidentiary hearing on this matter may, in itself, require a reversal of certification.
General alleges that the failure to hold an evidentiary hearing on the issue of certification requires reversal of the certification, citing Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc), vac. and remanded, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980). Falcon says, in opposition, that such a hearing was not necessary.
We disagree with General's contention that the failure to hold such a hearing, in itself, requires a reversal of certification. It is true that this Court has repeatedly stressed the importance and value of such an evidentiary hearing on the certification issue. Satterwhite v. City of Greenville, 578 F.2d 987, 998 (5th Cir. 1978) (en banc), vac. and remanded on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980); King v. Gulf Oil Co., 581 F.2d 1184, 1186-87 (5th Cir. 1978); Huff v. N.D. Cass Co. of Alabama, 485 F.2d 710 (5th Cir. 1973). But such a hearing is important only in the context of showing whether or not a class should have been certified. If later evidence shows the decision to certify to have been a correct one, there was obviously no need to have held such a hearing. King at 1186-87. To prevail solely on a contention that a hearing was required, an appellant must show that if a hearing had been held, it could have affected his rights substantially. That can only occur in a situation in which the district court made a decision to deny certification without a hearing, since it is only in that case that a party can show that there was a substantial issue as to certification and that he was denied an effective opportunity to litigate it. We therefore hold that the mere fact that a class has been certified without a hearing is not a ground for reversal of that decision. Even when no hearing is held before certification is granted, a party has an adequate opportunity later to argue the substantive merits of the decision to certify. We therefore turn to the merits of General's arguments concerning certification.
Although the appellant argues that the class did not meet three of the requirements of Rule 23(a) 6, most of these claims are based on the appellant's contention that Falcon, who was complaining of discrimination with respect to promotion, could not represent a class complaining of discrimination with respect to hiring. General maintains that according to East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), Falcon cannot represent both hiring and promotional discriminatees because he has not established a sufficient nexus between his claims of promotional discrimination and the other class members' claims of hiring discrimination. See also Scott v. University of Delaware, 601 F.2d 76 (3rd Cir.), cert. denied 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979); Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir.), cert. denied 444 U.S....
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