Hebert v. Monsanto Co., Texas City, Tex., 76-2836

Decision Date10 July 1978
Docket NumberNo. 76-2836,76-2836
Citation576 F.2d 77
Parties18 Fair Empl.Prac.Cas. 102, 17 Empl. Prac. Dec. P 8416 Samuel E. HEBERT, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. MONSANTO COMPANY, TEXAS CITY, TEXAS, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Henry M. Rosenblum, Robert B. O'Keefe, Houston, Tex., for plaintiffs-appellants.

Wm. N. Wheat, Houston, Tex., for Texas Metal Trades.

Tom M. Davis, Houston, Tex., for Monsanto Co.

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

Before MORGAN and GEE, Circuit Judges, and KING, District Judge. *

LEWIS R. MORGAN, Circuit Judge:

Appellant appeals the district court's denial of class certification pursuant to FRCP Rule 23. As a basis for its opinion, the court below held that res judicata, or in the alternative, the failure of satisfaction of the statutory requirements preclude class certification. Because we hold that res judicata does not apply, and that the Rule 23 criteria for certification were satisfied, we reverse and remand.

Before proceeding to the procedural facts of the case, it is necessary to develop the background history of this class action and the Monsanto Company. In 1971, a class action suit was instituted against Monsanto and the Texas Metal Trade Council, by George Sanders on behalf of all black employees similarly situated. Prior to class certification, the parties presented a consent order for the court's approval. Generally, the consent order provided both injunctive relief against company and union practices and back pay to the affected class. The consent order allowed objecting class members to opt out upon request. Appellant along with 39 other members exercised their right to be excluded.

Based upon the 1971 conduct, in July of 1974, appellant Hebert requested and received from the EEOC, a "right to sue" letter, enabling him to proceed in the instant litigation. He then filed this suit on October 1, 1974. Appellee denied the allegations and moved to dismiss the class claim. The court agreed with the appellee holding that the maintenance of the prior class action precluded appellant from taking advantage of the class action mechanism. Additionally, the court held that pursuant to Rule 23(a), neither the numerosity nor the typicality requirements of Rule 23(a) were satisfied. From this order the plaintiff appeals.

Before proceeding with the "substantive" issue of this appeal, we must address appellee's contention that the district court lacks jurisdiction. Appellee argues that more than three years elapsed between failure of administrative remedies and institution of suit, in contravention of 42 U.S.C. § 2000e-5(e). Prior to the 1972 amendments, 42 U.S.C. § 2000e-5(e), as judicially construed, provided that the aggrieved must sue within thirty days after notice that administrative remedies were exhausted. In Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1972), a panel of this court held that in order to activate running of the thirty day limit the aggrieved party must receive a formal notice that administrative remedies are exhausted. 437 F.2d at 1138. We agree with the district court that the missives received by appellant do not satisfy this standard. The letters cursorily state that the commission finds the claims to be unsubstantiated. Nowhere is there notice to the aggrieved that the commission will take no further action. Neither is there notice that the aggrieved is under the burden of proceeding. We therefore hold that appellant did not receive the necessary notice until the "right to sue" letter of July 1974.

Even if the EEOC letters did not constitute notice, appellees argue, more than thirty days elapsed between the right to sue letter and filing. This would be the proper legal conclusion if the law as of 1971 were applied. Because no notice was given prior to 1972, however, the 1972 amendments apply; with their longer filing limit. Section 14 of Public Law 92-261 provided:

The amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act (March 24, 1972) and all charges filed thereafter.

Because Hebert did not receive notice of exhaustion until 1974, as far as he or the world knew, his charge was still pending before the commission. Hence, the 1972 amendments are applicable. Because 42 U.S.C. § 2000e-5(e) was amended by 42 U.S.C. § 2000e-5(f)(1) to provide a 90-day filing period, appellant timely filed and jurisdiction exists in the district court.

Satisfied with our jurisdictional base, we may now proceed with appellant's contention that the court erred in failing to certify the class. Appellant first contends that the court erred in holding that opting out of the prior class action precluded maintenance of a subsequent class action based on the same claim. Although the court recognized that the consent order, by its terms, provided for dismissal as to optees to be "without prejudice," the court reasoned that the dismissal was without prejudice only to substantive rights not "procedural." Therefore, the court held that although each individual class member could pursue their individual claim, they were precluded from the advantages of the class action procedural machinery. We disagree. The effect of a dismissal without prejudice is to return the party to the position enjoyed prior to suit, absent conditions and notice to the parties of the condition. Prior to the 1971 order, appellant enjoyed the right...

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