Hebert v. Monsanto Co., AFL-CIO

Decision Date09 August 1982
Docket NumberNo. 81-2395,AFL-CIO,81-2395
Citation682 F.2d 1111
Parties29 Fair Empl.Prac.Cas. 802, 29 Empl. Prac. Dec. P 32,976 Samuel E. HEBERT, et al., Plaintiffs-Appellants, v. MONSANTO COMPANY and Texas City, Texas Metal Trades Council (), Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Thomas O. Brashier, Houston, Tex., for plaintiffs-appellants.

Tom M. Davis, Lawrence J. McNamara, Houston, Tex., for Monsanto Co.

William N. Wheat, Robert W. Rickard, Houston, Tex., for Texas Metal Trades Council.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.


The judgment is affirmed on the basis of the opinion of the district court dated September 2, 1981. A copy of Judge Gibson's opinion is attached as an appendix to this opinion. We note that Judge Gibson's opinion states that "... the scope of the Title VII class action in this case is limited to issues of employment discrimination within the trucking department that bear some relationship to the issue of overtime work assignment," although the scope of the section 1981 class action is not so limited. We construe the scope of the judgment so far as it pertains to the class actions to be limited as indicated by Judge Gibson's opinion, including, with respect to the Title VII class action (but not the section 1981 class action), the limitation expressed by the above-quoted language from the opinion.



This is a class action employment discrimination suit brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., (1976), and the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1976). Plaintiffs are adult black citizens of the United States and residents of the State of Texas, who at all times material to this lawsuit have been employed by the defendant Monsanto Company at its facilities in Texas City, Texas, and represented by defendant Texas City, Texas Metal Trades Council (Union) for the purpose of collective bargaining with Monsanto. Individually and for the class, plaintiffs seek injunctive, declaratory, and monetary relief.

Plaintiffs allege that Monsanto has maintained and continues to maintain discriminatory employment policies with respect to hiring, compensation, promotions, transfers, training, and other terms and conditions of employment which have the effect of limiting, classifying and segregating black employees solely on account of race. Defendant Union, it is alleged, has acquiesced and contrived to acquiesce in defendant Monsanto's unlawful employment policies. Defendants deny that they have engaged in any employment practices in violation of Title VII or section 1981.

This action came on for trial before the Court without a jury on March 2-6, 1981, the Court having jurisdiction over the parties and subject matter of this lawsuit pursuant to 42 U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1981, and 28 U.S.C. § 1343(4). The Court, having considered the evidence presented at trial, and the arguments of the parties as reflected in their trial and post-trial briefs, now enters this memorandum opinion pursuant to Rule 52 of the Federal Rules of Civil Procedure, reflecting its findings of fact and conclusions of law.


In 1971 a class action suit was instigated against Monsanto and the Texas City Metal Trades Council by George Sanders on behalf of all black employees similarly situated. 1 Prior to class certification, the parties presented a consent order for the Court's approval. Generally, the consent order provided both injunctive relief against the company and union practices and back pay In July of 1974, Hebert requested and received from the EEOC a "right to sue" letter, enabling him to proceed under Title VII in the instant litigation. He then commenced this suit on October 1, 1974, in conjunction with four other Monsanto employees who were definitionally excluded from the Sanders class by the terms of the consent decree. 3 The named plaintiffs sought to maintain the suit as a class action on behalf of black employees who were within the class certified in Sanders, but who elected to opt out, black Monsanto employees who were definitionally excluded from the Sanders class, and blacks who might apply for employment with Monsanto in the future. On April 15, 1976, Federal District Judge James Noel entered an order conditionally certifying a class in this action pursuant to Rule 23(b)(2), Fed.R.Civ.P. Excluded from that class, however, were the 40 employees who had elected to opt out of the Sanders consent decree. An interlocutory appeal was taken from this decision, and the Fifth Circuit Court of Appeals reversed with instructions to certify the class sought by plaintiffs. Hebert v. Monsanto Co., Texas City, Texas, 576 F.2d 77 (5th Cir. 1978). Subsequently, however, the Supreme Court held that interlocutory orders denying class action certifications were not appealable. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478 (98 S.Ct. 2451, 57 L.Ed.2d 364) (1978). In light of Gardner, the Court of Appeals vacated its opinion in Hebert and dismissed the appeal for want of jurisdiction. 580 F.2d 178 (5th Cir. 1978).

to the affected class. 2 The consent order allowed objecting class members to opt out upon request. Plaintiff Hebert, along with 39 other members of the class defined by the terms of the consent decree, exercised their right to be excluded.

In 1979 the plaintiffs sought to redefine the conditionally certified class pursuant to Federal Rule of Civil Procedure 23(c)(1). The plaintiffs' motion was consolidated with the defendants' motion to limit the issues which could be raised under Title VII of the Civil Rights Act. On October 6, 1980, this Court entered an order 4 conditionally certifying the following class pursuant to Federal Rule of Civil Procedure 23(b)(2):

(1) All blacks who were within the class certified in Sanders, but who elected to opt out;

(2) All black employees of Monsanto Company hired on or after June 4, 1963; and

(3) All blacks who apply for employment with Monsanto in the future.

With respect to defendants' motion to limit issues that could be raised by the plaintiffs under Title VII, the Court ruled that the scope of the plaintiffs' judicial complaint was limited to the scope of the EEOC investigation which reasonably could be expected to grow out of the charge of discrimination filed by plaintiff Hebert. See Sanchez v. Standard Brands, Inc., 431

                F.2d 455, 466 (5th Cir. 1970).  This was because, of the named plaintiffs in this action, only Hebert had satisfied the jurisdictional prerequisites to a Title VII lawsuit by timely filing a charge with the EEOC and obtaining notice of his "right to sue."  Thus, while plaintiffs in their original complaint alleged "across the board" discrimination by Monsanto with respect to its employment practices and policies, the Court concluded that the plaintiffs might raise these issues in the Title VII action only insofar as they related to discrimination in overtime work assignments in the trucking department at Monsanto.  5  The scope of the plaintiffs' section 1981 action, of course, was not affected by the Court's ruling

At trial and in their post-trial briefs plaintiffs urge the Court to reconsider its prior ruling limiting the scope of issues to be considered pursuant to the Title VII action, relying principally on Plaintiffs' Exhibit No. 2, the EEOC Field Director's Findings of Fact in Case No. YAU 1-021, which consolidated the charges made the subject of the Sanders lawsuit with Hebert's charge of discrimination in overtime assignment in the truck department. Plaintiffs contend that because Hebert's charge was investigated concurrently with the Sanders charges, the scope of the issues in this action should be as broad as the scope of the issues in the Sanders action, particularly since those members of the present class who "opted out" from the Sanders consent decree were allowed to do so "without prejudice." Plaintiffs also rely on Hebert's testimony that he was requested by an EEOC investigator to arrange at least one meeting of the various charging parties in Case YAU 1-021 to discuss their charges, and that this meeting took place.

The Court previously indicated in its ruling on October 6, 1980, that the only issues that may be raised under Title VII in this action are those raised by Hebert's EEOC charge, together with those issues that may reasonably be expected to grow out of the EEOC investigation of that charge. See Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th Cir. 1981); Tillman v. City of Boaz, 548 F.2d 592, 594 (5th Cir. 1977); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 566-67 (5th Cir. 1970). The principles underlying the rule of reason adopted by the Fifth Circuit permitting the scope of a Title VII suit to extend as far as, but no further than, the scope of the EEOC investigation which reasonably could grow out of the administrative charge are well established. The remedial purposes of Title VII, and the paucity of legal training among those whom it is designed to protect require that a court construe an EEOC charge with the utmost liberality. Terrell v. United States Pipe & Foundry, supra, at 1123. Additionally, the framework of Title VII and its goal of encouraging voluntary compliance through EEOC conciliation mandate judicial deference to the EEOC's interpretation of a charge. Id.

The Court remains unable to conclude that Hebert's administrative charge provides a mandate for the "across the board" Title VII action plaintiffs seek to maintain here. The Field Director's Findings of Fact in Case YAU 1-021 offer no evidence that the Commission's view of Hebert's charge and the concomitant investigation of that charge went beyond the issue of racial discrimination in the assessment of overtime. Although Hebert's charge was consolidated with the...

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