Kemp v. Birmingham News Co.

• Decision Date: 27 December 1979
• Docket Number: No. 77-2475,77-2475
• Citation: 608 F.2d 1049
• Parties: 21 Fair Empl.Prac.Cas. 830, 21 Empl. Prac. Dec. P 30,537 Phillip KEMP, Plaintiff-Appellant, v. BIRMINGHAM NEWS COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1049

608 F.2d 1049

21 Fair Empl.Prac.Cas. 830,

21 Empl. Prac. Dec. P 30,537

Phillip KEMP, Plaintiff-Appellant, v. BIRMINGHAM NEWS COMPANY, Defendant-Appellee.

No. 77-2475.

United States Court of Appeals, Fifth Circuit.

Dec. 27, 1979.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.

John D. Quenelle, James C. Barton, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Phillip Kemp, an employee of The Birmingham News, sued that company for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, Et seq., and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, Et seq. He alleged numerous discriminatory employment practices surrounding his demotion in 1974 from electrician trainee to general maintenance worker. In granting summary judgment for the defendant, the district court found that the action is barred under the doctrine of Res judicata by a consent judgment in a prior action, Cook v. The Birmingham News, CA-73-M-514 (N.D.Ala.1975). We affirm the district court.

The Cook consent decree arose out of a class action complaint filed against The Birmingham News in May, 1973. Prior to the entering of the decree, The News had had in effect an affirmative action program whereby it transferred older black employees, including Kemp, from jobs under the jurisdiction of the all-black union to previously all-white jobs. The black employees were designated as learners, but were paid full journeyman rates for the jobs they were learning. In May, 1973, three black employees filed the complaint against The News on behalf of all other persons similarly situated and on behalf of The Birmingham Printing Specialties and Paper Products Union, alleging extensive discriminatory practices by The News and several unions with which it had contracts. The Cook complaint charged such discriminatory practices as the establishment of a system to continue a long-standing policy of limiting employment and promotional opportunity because of race, racially segregated departments and job classifications, unequal training opportunities, assignments of black employees to less desirable jobs, unequal pay, discriminatory testing and harassment of black employees in formerly all-white departments.

Pursuant to the affirmative action program, Kemp had been transferred from his job under the jurisdiction of the all-black union to the position of electrician learner. Kemp contends that extensive harassment occurred during this period. In November, 1974, Kemp's foreman declared that Kemp was incompetent to be an electrician and Kemp was transferred to general maintenance worker at a scale of pay lower than that of an electrician learner but higher than his pay in his previously all-black job. Kemp filed a separate claim with the EEOC in November, 1974, concerning his demotion. The same attorney representing the class in Cook also represented Kemp on an individual basis.

On March 25, 1975, a consent decree was entered in Cook v. The Birmingham News which approved the affirmative action program. The court directed that notice of the terms of the decree be given to the class ¹ by posting copies in at least two conspicuous places on the company's premises. Kemp, a member of the union involved, fell within the class defined in the consent decree. He was also a member of a sub-class named in the consent decree that was awarded back pay and he received $2,000 as a result.

On appeal, Kemp contends that the district court erred in holding that he was precluded from litigating employment discrimination practices in the instant case by the doctrine of Res judicata. Specifically, plaintiff urges that, because the complaint in Cook did not allege "downgrading" practices such as layoffs, reductions in force, disciplinary suspensions, demotions or terminations, the prior consent decree involved a different cause of action from the present case. He argues that the complaint in Cook requested injunctive relief only against discriminatory "upgrading" practices in hire, promotion or transfers such as back pay and injunctive relief against further harassment. He also claims that the decree did not involve any question of class-wide harassment. We find these arguments unpersuasive.

For a prior judgment to bar an action on the basis of Res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases. Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir. 1975). The last prong of this test is at issue in this case. Various tests have been advanced to determine whether the substance of two actions is the same for Res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? Acree v. Air Line Pilots Association, 390 F.2d 199, 201 (5th Cir.), Cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968). This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. Stevenson v. International Paper Co., 516 F.2d 103, 109 (5th Cir. 1975).

In applying the doctrine of Res judicata, it is also important to keep in mind that Res judicata is a principle of peace. " 'Under its influence an end is put to controversies. Parties and their privies are made to abide definitive and final judgments and litigations are concluded'. . . . (T)he rule of Res judicata does not go on whether the judgment relied on was a right or a wrong decision. It rests on the finality of judgments in the interest of the end of litigation and it requires that the fact or issue adjudicated remain adjudicated." Id., quoting Bennett v. Commissioner of Internal Revenue, 113 F.2d 837, 839-40 (5th Cir. 1940). It is against these principles that we must test the effect of the prior consent decree on the issues Kemp seeks to litigate in this case.

Plaintiff relies principally on Stevenson v. International Paper Co., supra, in arguing that the cause of action here differs from that involved in Cook. Stevenson, although not directly on point, illustrates that it is important to examine whether the first judgment covered a narrower range of issues than did the second lawsuit. The Stevenson case was a class action brought by black employees of International Paper Company against their employer and various labor unions. The complaint asserted racial discrimination in two categories: first, transfer and promotion practices that were discriminatory and, second, practices that, although neutral on their face, perpetuated the effects of past discrimination. Two earlier consolidated cases had been brought on behalf of substantially the same class against the same labor unions, but not against the employer.

The Court in Stevenson found that the wrongs for which redress was sought in the earlier consolidated cases were (1) the merger of an all-black local union into two previously all-white local unions without protective transitional arrangements and (2) the alleged failure of the two previously all-white locals to represent fairly the interest of their new black members. The Stevenson Court held that the earlier cases, brought solely against the labor unions, barred relitigation of union practices involving the issues of merger and fair representation, but did not prevent litigation of joint union-company policies, such as transfer and advancement practices.

The situation in Stevenson is inapposite to the one at hand. The causes of action involved here are identical: harassment in a previously all-white position and transfer and demotion from that position. As noted, Kemp contends that his demotion was not covered by the Cook decree because the decree did not involve "downgrading" practices. The issues involved in the decree, however, were a "system" of "limiting the employment and promotional opportunity" of class members. Kemp attempts to distinguish "involuntary demotions" from the "transfers" mentioned in the decree because the class as defined includes only claimants of discrimination in hire, tenure, promotion or transfer. "Transfer" is not to be construed so narrowly as to preclude a demotion. It implies a wide range of discriminatory practices such as assigning blacks less desirable jobs...