Gray v. Greyhound Lines, East

• Decision Date: 13 October 1976
• Docket Number: Nos. 75-1159,75-1631,s. 75-1159
• Citation: 545 F.2d 169,178 U.S.App.D.C. 91
• Parties: 13 Fair Empl.Prac.Cas. 1401, 12 Empl. Prac. Dec. P 11,211, 178 U.S.App.D.C. 91 Elton E. GRAY, Individually and on behalf of all other persons similarly situated, Appellant, v. GREYHOUND LINES, EAST, a Division of Greyhound Lines, Inc., et al. Mr. Edward BELL et al., Appellants, v. EASTERN GREYHOUND LINES et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 169

545 F.2d 169

13 Fair Empl.Prac.Cas. 1401,

12 Empl. Prac. Dec. P 11,211, 178 U.S.App.D.C. 91

Elton E. GRAY, Individually and on behalf of all other

persons similarly situated, Appellant, v. GREYHOUND LINES, EAST, a Division of Greyhound Lines, Inc., et al.

Mr. Edward BELL et al., Appellants, v. EASTERN GREYHOUND LINES et al.

Nos. 75-1159, 75-1631.

United States Court of Appeals, District of Columbia Circuit.

Argued June 4, 1976.

Decided Oct. 13, 1976.

Robert B. Fitzpatrick, Washington, D.C., for appellants.

James P. Scanlan, Atty., E.E.O.C., Washington, D.C., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of court, with whom Beatrice Rosenberg and Charles L. Reischel, Attys., E.E.O.C., Washington, D.C., were on the brief, for the E.E.O.C. as amicus curiae.

David W. Rutstein, Washington, D.C., with whom Robert F. Rolnick and Edward R. Levin, Washington, D.C., were on the brief, for appellee Greyhound Lines, East.

Linda R. Hirshman, Chicago, Ill., was on the brief for appellee National Council of Greyhound Divisions.

Before WRIGHT and ROBINSON, Circuit Judges, and JAMESON, ^* Senior District Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Plaintiffs-appellants in these two cases, consolidated for purposes of appeal, are bus drivers employed ¹ by defendant-appellee Greyhound Lines, East, a division of Greyhound Lines, Inc. (hereinafter Greyhound). They are also members of defendant-appellee National Council of Greyhound Divisions, Amalgamated Transit Union (hereinafter the union), the collective bargaining representative of Greyhound drivers. In their suits, which they sought to maintain as class actions, they charged defendants ² with maintaining discriminatory hiring practices ³ in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970), and of Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1970). The District Court granted summary judgment for defendants in both suits on the ground that as employees plaintiffs were not injured by the allegedly discriminatory hiring practices and therefore had no standing to challenge those practices. The court also held that any claims plaintiffs might have had as discriminated-against applicants were time-barred and that plaintiffs could not proceed on that basis either individually or as class representatives. Since we conclude that, as to the first basis for the District Court's holding, defendants have not met the heavy burden placed on the proponent of a motion for summary judgment, see, e. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 153-161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Weiss v. Kay Jewelry Stores, Inc., 152 U.S.App.D.C. 350, 352-353, 470 F.2d 1259, 1261-1262 (1972), we reverse. ⁴

I

The six ⁵ plaintiffs in Bell, No. 75-1631, filed essentially identical charges of racial discrimination against Greyhound and the union with the Equal Employment Opportunities Commission (EEOC) in December 1971 and March 1972. The charges alleged that the seniority system was unfair because it perpetuated the effects of the racially exclusive hiring practices Greyhound had followed prior to 1965. In addition, the complainants asserted that Greyhound's present hiring practices continued to exclude blacks from employment as bus drivers. After referring the complaints to the Office of Human Rights of the District of Columbia, which took no action, EEOC assumed jurisdiction. EEOC also took no action until September 29, 1972, when it issued the statutory Notices of Right to Sue. On October 3, 1972 plaintiffs filed their complaint in the District Court.

Plaintiffs brought their action on behalf of all

black persons who are currently employed, or have been employed, or might be employed as bus drivers by Eastern Greyhound Lines at any of its various terminals throughout the Division; and who are members, or have been members, or might become members of the National Council of Greyhound Divisions of the Amalgamated Transit Union; who have been or continue to be, or might be adversely affected by the unlawful employment practices complained of herein. * * *

App. 46-47. Greyhound immediately moved for a 60-day stay for the purpose of allowing conciliation under the auspices of EEOC, see 42 U.S.C. § 2000e-5(f) (1), and on January 31 the action was stayed until April 2, 1973. That stay was extended until May 31, 1973 by stipulation of counsel. From then until the end of December, the docket sheet indicates, plaintiffs filed one set of interrogatories to defendant Greyhound while Greyhound took depositions from four plaintiffs. ⁶ Settlement negotiations were also taking place, but the parties remained far apart. ⁷

With the stated expectation that their action would assist the settlement negotiations, plaintiffs moved on December 21 to amend their complaint by deleting the allegations relating to the seniority system. ⁸ Plaintiffs also suggested that if their motion were granted notice should be provided to the putative class members. ⁹ On January 14, 1974 the court granted plaintiffs' motion to amend, with prejudice to the named plaintiffs and without requiring notice. ¹⁰ Simultaneously the court ordered the class allegations stricken from the complaint because of plaintiffs' failure to seek certification within the time limit established by Local Rule 1-13(b). ¹¹

Appellant Gray's suit was filed on February 4, 1974. His complaint was essentially identical with the amended complaint in Bell, and he claimed to represent the same class the Bell plaintiffs had sought to represent. The Bell plaintiffs' attorneys also served as Gray's counsel. On May 1 Gray filed a timely motion to certify the class action. Defendants opposed that motion and moved for summary judgment. ¹²

Greyhound based its motion for summary judgment on the proposition that, because Gray had been hired by Greyhound on his first application, he had suffered no injury from the challenged hiring practices and therefore had no standing to bring either an individual or a class action against those practices. Gray responded that his injuries resulted from the effects of Greyhound's allegedly discriminatory hiring policies on his treatment at work and on his own psychological well-being. ¹³ He claimed that by improperly restricting the number of blacks hired Greyhound's policies rendered those blacks who were employed vulnerable to arbitrary discipline, discriminatory treatment in assignment of routes and equipment, and inadequate representation by the union. He also claimed that the isolation he felt as a result of being one of the favored blacks who had slipped through the allegedly discriminatory screening practices adversely affected his mental state.

In a memorandum opinion filed December 3, 1974 the District Court found that plaintiff was hired by defendant Greyhound pursuant to his first and only application; and that plaintiff has not been subsequently discharged nor denied promotional opportunity by defendant Greyhound. In light of the foregoing, the Court finds plaintiff has failed to present a justiciable case or controversy with respect to himself.

App. 22. The court also concluded that Gray could not maintain the action on behalf of those who might have been refused employment on account of their race because he had

failed to allege in his complaint any specific personal injury in fact suffered by himself on account of defendant Greyhound's hiring practices with respect to others. * * * Moreover, the Court does not view the unlawful employment practices described in § 2000e-2(a) of Title 42, U.S.C., as sufficiently broad in scope to embrace any indirect emotional injuries which plaintiff might have suffered as a result of defendants' conduct with respect to other members of his race.

Id. Accordingly, the court denied plaintiff's motion to certify the action as a class action and granted defendants' motions for summary judgment. Approximately six months later the District Court, relying on its earlier decision in Gray, granted summary judgment for the defendants in Bell.

II

The question before us is whether the plaintiffs in these two suits have standing, on the basis of present rather than past injuries, ¹⁴ to challenge the allegedly discriminatory hiring policies of defendants. ¹⁵ Before considering the question, it is crucially important to notice that it arises in the context of a motion for summary judgment.

A party is entitled to summary judgment only

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *

Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of presenting evidence which demonstrates the nonexistence of any issue of material fact. Adickes v. S. H. Kress & Co., supra, 398 U.S. at 159, 90 S.Ct. 1598. Until the movant has met its burden, the opponent of a summary judgment motion is under no obligation to present any evidence. Id. at 160-161, 90 S.Ct. 1598. When evidence has been presented, "the inferences to be drawn from the factual material before the court must be viewed in the light most favorable to the party opposing the motion." Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 116, 479 F.2d 201, 208 (1973). Moreover, in determining what issues are material, "(t)he formal issues framed by the pleadings are not controlling * * *; the court must consider the issues presented by the other material offered by the parties on the motion to determine whether the Rule 56 request should be granted." 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 475 (1973); see Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704 (1964).

Defendants presented no evidence to prove either that plaintiffs have not...