Jenkins v. Blue Cross Mut. Hosp. Ins., Inc.

• Decision Date: 08 September 1975
• Docket Number: No. 75-1231,75-1231
• Parties: 11 Fair Empl.Prac.Cas. 707, 10 Empl. Prac. Dec. P 10,382 Beverly Jeanne JENKINS, Plaintiff-Appellant, v. BLUE CROSS MUTUAL HOSPITAL INSURANCE, INC., and Blue Shield Mutual MedicalInsurance, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1235

522 F.2d 1235

11 Fair Empl.Prac.Cas. 707,

10 Empl. Prac. Dec. P 10,382

Beverly Jeanne JENKINS, Plaintiff-Appellant, v. BLUE CROSS MUTUAL HOSPITAL INSURANCE, INC., and Blue Shield

Mutual MedicalInsurance, Inc., Defendants-Appellees.

No. 75-1231.

United States Court of Appeals,

Seventh Circuit.

Argued May 28, 1975.

Decided Sept. 8, 1975.

John O. Moss, Indianapolis, Ind., Paul J. Spiegelman, Berkeley, Cal., for plaintiff-appellant.

D. Reed Scism, Indianapolis, Ind., for defendants-appellees.

Before TUTTLE, ^* TONE and BAUER, Circuit Judges.

TUTTLE, Circuit Judge.

The plaintiff Beverly Jeanne Jenkins brought this action on her own behalf and for a class she purported to represent, charging the defendants, Blue Cross Mutual Hospital Insurance, Inc., Blue Cross Medical Insurance, Inc. (Blue Cross-Blue Shield), her former employer, with racial and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. and 42 U.S.C. § 1981. The district court determined that the action could not proceed as a class action; thereafter the court denied the plaintiff's motion for a preliminary injunction to enjoin the defendants' promotion and employee evaluation practices, which were alleged to have discriminatory effect.

The plaintiff appeals the denial of her requested preliminary injunction, pursuant to 28 U.S.C. § 1292(a)(1). The preliminary injunction which was requested would have enjoined the defendants' current employee evaluation and promotion practices. As the plaintiff was no longer employed by the defendants at the time suit was filed, she clearly could not allege irreparable injury to herself resulting from the continued use of these practices. Rather, as the plaintiff candidly admits, it is the harm allegedly suffered by the class of present employees which the plaintiff argues justifies enjoining the defendants' supervisory performance rating system.

Thus, the real issue which the plaintiff seeks to appeal is whether she should be permitted to maintain her suit as a class action; only if the district court erred in denying the plaintiff the right to proceed as a representative of a class of all past and present employees could its subsequent refusal to grant a preliminary injunction be seriously challenged.

I. APPEALABILITY.

Generally a trial court's decision that a suit is inappropriate to proceed as a class action is not a "final decision" and thus cannot be appealed under 28 U.S.C. § 1291, ¹ 3B Moore's Federal Practice, P 23.97 at 23 1911-52. While certain limited exceptions to 28 U.S.C. § 1291's requirement of a final order of the district court have developed permitting interlocutory appellate review of certain class action determinations where those decisions have in some sense a final effect on the action, ² these exceptions have been rejected in this circuit as a basis for permitting an appeal from an order refusing class status, ³ and the plaintiff does not attempt to invoke them. Rather, the plaintiff seeks to review the district court's class action determination by the limited interlocutory appeal permitted by 28 U.S.C. § 1292(a)(1) which provides:

"The courts of appeals shall have jurisdiction of appeals from: (1) interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court . . . ."

While the plaintiff cites no authority for this approach, a substantial body of case law has in fact developed for the view that

"when injunctive relief is sought and the denial of class action treatment has the effect of denying the broad injunctive relief requested in the complaint, the order is appealable under 28 U.S.C. § 1292(a)(1) as an order denying an injunction."

3B Moore's Federal Practice, P 23.97 (1973 Supp.) at 130. See Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th Cir. 1974); Hackett v. General Host Corp., 455 F.2d 618, 622 (3rd Cir. 1972); Yaffee v. Powers, 454 F.2d 1362 (1st Cir. 1972); Spangler v. United States, 415 F.2d 1242 (9th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Shapiro Bernstein & Co. v. Continental Record Co., 386 F.2d 426 (2d Cir. 1967); Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), Cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963). ⁴

We find these authorities convincing. Certainly in this case there is an order denying a preliminary injunction, which would permit review under the terms of § 1292(a)(1). Further, there can be no doubt that the district court's earlier refusal to certify the suit as a class action directly controlled its subsequent decision on the requested preliminary injunction. ⁵

Because the class action determination of the district court directly controlled the subsequent disposition of the request for a preliminary injunction, we believe it, too, is reviewable under 28 U.S.C. § 1292(a)(1). By refusing to certify the action as a class action, the district court effectively precluded a grant of preliminary injunction relief; as the plaintiff was no longer employed by the defendants, Blue Cross-Blue Shield, she clearly suffered no continuing harm from the challenged promotional and employee evaluation practices. Accordingly, in our view, the refusal to certify the suit as a class action limited the potential injunctive relief which the plaintiff could obtain, and accordingly can be appealed at this time.

A conflict has developed in the circuits as to whether a class action decision, standing alone, without an order denying a preliminary injunction is also reviewable under 28 U.S.C. § 1292(a)(1). See Williams v. Mumford, 511 F.2d 363 (D.C.Cir. 1975); Yaffee v. Powers, 454 F.2d 1362 (1st Cir. 1972); City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (2d Cir. 1969); Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), Cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963). We note, however, that we do not confront this question in this case. Here the plaintiff specifically and expressly moved for a preliminary injunction, and that request was denied; the plaintiff's appeal is formally from that denial of her motion for preliminary injunction, and thus the question whether an appeal may lie from the refusal to certify a suit as a class action standing alone is not presented by the facts of this case. We express no view as to whether the plaintiff could similarly appeal from the earlier order refusing to certify her suit as a class action. ⁶

II. CLASS ACTION.

The plaintiff attempted to bring this action on behalf of a class composed of "all black and female persons who are employed, or might be employed, by Blue Cross-Blue Shield, Inc.," alleging discriminatory patterns and practices in employee hiring, promotion, and job evaluation. The plaintiff's Title VII claim asserted both racial and sex discrimination, while her § 1981 claim asserted racial discrimination. The district court refused to certify the action as a class action because it found that the plaintiff's original complaint to the EEOC was too narrow to permit the type of broad claims of racial and sex discrimination presented in the complaint, and accordingly held that the plaintiff was limited by the terms of her prior EEOC charge. ⁷

The district court noted that nowhere in the EEOC charge did the plaintiff specifically raise the question of sex discrimination; the court noted that the plaintiff in her EEOC charge did not challenge the hiring and testing practices of Blue Cross-Blue Shield, and while her charge that she was denied a promotion because of her Afro hairstyle had an "arguable connection to race by allegation of hairstyle discrimination, such is not sufficient to raise the panorama of alleged evils the plaintiff seeks to adjudicate."

The district court determined that any class which the plaintiff could represent must be limited by the terms of her EEOC charge, that is, to a class of persons denied promotion due to wearing a natural Afro hairstyle. Accordingly, the district court held that because there was no allegation of numerosity of class members or commonality of legal claims of a class so defined, the plaintiff failed to allege a class which could be maintained under Rule 23 of the Federal Rules of Civil Procedure.

The district court appears not to have considered what effect the plaintiff's second claim based on 42 U.S.C. § 1981 should have on its class action determination.

In our view, the plaintiff was entitled to make the broad allegations of racial discrimination she did, under § 1981. In our view this action provides a sufficient basis for adjudicating the claims presented in the plaintiff's complaint. We agree with the district court, however, that the failure of the plaintiff to allege sex discrimination in her charge before the EEOC precludes her from raising the issue in this proceeding.

A. 42 U.S.C. § 1981.

42 U.S.C. § 1981 provides that:

"All persons within the jurisdiction of the United States shall have the same right in every state . . . to make and enforce contracts . . . enjoyed by white citizens . . . ."

This provision has been uniformly construed to prohibit private discrimination in employment. Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970), Cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), Cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973). See generally Comment, Racial Discrimination and Employment Under the Civil Rights Act of 1866, 36 U.Chi.L.Rev. 615 (1969). This court has held that the passage of Title VII in no way impliedly repealed § 1981, Waters v. Wisconsin Steel Works, supra, 427 F.2d at 485, noting that "the legislative history of Title VII...