Moore v. Hughes Helicopters, Inc., a Div. of Summa Corp.

Decision Date16 June 1983
Docket Number81-6022,Nos. 81-5747,s. 81-5747
Citation708 F.2d 475
Parties32 Fair Empl.Prac.Cas. 97, 32 Empl. Prac. Dec. P 33,688 Tommie Y. MOORE, Plaintiff-Appellant, v. HUGHES HELICOPTERS, INC., A DIVISION OF SUMMA CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Cecil W. Marr, Loew & Marr, Los Angeles, Cal., for plaintiff-appellant.

Kenneth A. Anderson, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHOY and WALLACE, Circuit Judges, and THOMPSON, * District Judge.

CHOY, Circuit Judge:

This case concerns the proper use of the "disparate impact" model of proof in employment discrimination cases. Tommie Moore is a black female employee of Hughes Helicopters, Inc. ("Hughes"), a manufacturer of commercial and military helicopters. Moore, suing on behalf of a class of black female Hughes employees, alleges that Hughes has discriminated against black females in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e, et seq. 1 The alleged discrimination occurred in the selection of employees for supervisory and upper-level craft positions from 1975 through 1979. The case went to trial before Judge Robert J. Kelleher in October 1980. At the conclusion of Moore's case, Hughes moved for an involuntary dismissal pursuant to Fed.R.Civ.P. 41(b). In May 1981, the case was transferred to Judge Manuel L. Real, to whom, by stipulation of the parties, the Rule 41(b) motion was submitted on the transcript and exhibits from the presentation of Moore's case. On August 27, 1981, the district court granted Hughes' motion and made an award of costs.

Moore appeals the dismissal of her case, the denial of her earlier motion for summary judgment, the limited scope of the class certification, and the award of court costs to Hughes. We affirm the district court.


Hughes is an aerospace employer located primarily in Culver City, California. At the time of trial, Hughes employed over 4,000 persons. Among these employees, 1,562, including the present plaintiff class, were within a bargaining unit represented by the Electronics and Space Technicians, Local No. 1553 AFL-CIO ("EAST"). The EAST unit encompasses 192 different job classifications that range in complexity from janitorial positions to highly skilled machinist, mechanic, and electrician positions. The job classifications have each been assigned a labor grade to reflect rates of pay. Labor Grade 1 is the lowest paid job and Labor Grade 20 is the highest.

Moore claims that her class of black female EAST unit employees has been discriminated against in the selection of employees for Labor Grades 15-20, and for the position of "first level supervisor." The core of Moore's case is a statistical summary of Hughes' work force in the disputed job classifications broken down by race and sex. On the dates set forth below, composition of Labor Grades 15-20 by race and sex within the EAST bargaining unit was as follows:

                                 9/24/76       10/2/77       10/1/78        6/3/79
                Total          245   (100%)  292   (100%)  323   (100%)  435   (100%)
                White Males    209  (85.3%)  246  (84.2%)  260  (80.5%)  339  (77.9%)
                White Females    0   (0.0%)    1   (0.3%)    4   (1.2%)    6   (1.4%)
                Black Males      8   (3.3%)   14   (4.8%)   23   (7.1%)   35   (8.0%)
                Black Females    0   (0.0%)    0   (0.0%)    0   (0.0%)    0   (0.0%)
                -------------  ------------  ------------  ------------  ------------
                Males          245   (100%)  291  (99.7%)  318  (98.5%)  427  (98.2%)
                Females          0   (0.0%)    1   (0.3%)    5   (1.5%)    8   (1.8%)

Hughes hired and promoted persons into Labor Grades 15-20 based on subjective evaluations of capability and experience. 2

"First level supervisors" are individuals who had responsibility for directly supervising EAST unit employees. Not all the first level supervisors were themselves members of the EAST unit. During the relevant period, the makeup of the first level supervisory positions was as follows:

                                Jan. '76     June '76     June '77      June'78     June '79
                Total          56   (100%)  57   (100%)  62   (100%)  76   (100%)  91   (100%)
                White Males    43  (76.8%)  41  (71.9%)  44  (70.9%)  56  (73.7%)  64  (70.3%)
                White Females   1   (1.8%)   2   (3.5%)   3   (4.8%)   3   (3.9%)   3   (3.3%)
                Black Males     5   (8.9%)   8  (14.0%)   8  (12.9%)   8  (10.5%)  10  (10.9%)
                Black Females   0   (0.0%)   0   (0.0%)   0   (0.0%)   1   (1.3%)   2   (2.2%)
                -------------  -----------  -----------  -----------  -----------  -----------
                Males          55  (98.2%)  55  (96.5%)  59  (95.2%)  72  (94.7%)  85  (93.4%)
                Females         1   (1.8%)   2   (3.5%)   3   (4.8%)   4   (5.3%)   6   (6.6%)

These employment figures compare to an overall percentage of black female employees in the EAST bargaining unit that began at 3.9% in September 1976 and grew to 5.95% by June 1979. The weighted average of black female representation in the EAST unit throughout the relevant time frame was 4.9%. It is Moore's contention that the disparity between the percentage of black female employees in upper-level jobs and in the EAST bargaining unit generally suffices to establish a prima facie case of employment discrimination.


A threshold question is whether Moore was improperly denied the right under Fed.R.Civ.P. 23 to bring this action on behalf of a broader class that would include all black and/or all female EAST unit employees. We review the district court's Rule 23(a) 3 determination on Moore's class-certification motion for abuse of discretion or application of impermissible legal criteria. Yamamoto v. Omiya, 564 F.2d 1319, 1325 (9th Cir.1977).

After briefing and argument, the lower court certified a class of "[a]ll black female employees in the bargaining unit of Electronic [and] Space Technicians, Local 1553 AFL-CIO, who have been employed by Hughes Helicopters at any time on or after December 3, 1975." The court would not allow Moore to represent white females because Moore had never claimed before the EEOC that she was discriminated against as a female, but only as a black female. The court determined that this raised serious doubts as to Moore's ability to adequately represent white female employees. See Fed.R.Civ.P. 23(a)(4). Moore was not permitted to represent black male employees for two reasons. First, the court determined from a reading of Moore's deposition that Moore did not believe that black males were discriminated against in the selection of supervisors. This also raised concerns about the adequacy of Moore's representation. Second, the court determined that Moore could not make out a prima facie case of discrimination against black males since the percentage of black males in the Hughes work force exceeded the percentage of black males in the Los Angeles County labor force.

We affirm the lower court's class determination on the basis of inadequacy of representation. "[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372-73, 72 L.Ed.2d 740 (1982). Mere membership in a sexual or racial group does not justify a finding that a plaintiff will adequately represent all members of a particular group. See id. at 159, 102 S.Ct. at 2371 n. 15; East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S.Ct. 1891, 1897-98, 52 L.Ed.2d 453 (1977). Inadequate representation could unfairly lead to a foreclosure of the rights of absent members to seek relief under Title VII in their own behalf. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1126 (5th Cir.1969) (Godbold, J., specially concurring), cited with approval, Falcon, supra, 457 U.S. at 161, 102 S.Ct. at 2372. The lower court's stated doubts as to Moore's belief that black males and white females were discriminated against is a reasonable ground for holding that Moore could not adequately represent these groups. We have some qualms about the trial court's alternate ground for denying Moore the right to represent black males in that it appears to go to the merits of Moore's case. Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). Nevertheless, we are satisfied that the district court did not abuse its discretion in limiting its class certification on the basis of inadequate representation.

A. Standard of Review

The findings of fact made by a trial court following the granting of a Rule 41(b) motion for involuntary dismissal will not be set aside unless clearly erroneous. Sime v. Trustees of the California State University and Colleges, 526 F.2d 1112, 1113 (9th Cir.1975). The court below found that Moore had failed to establish a prima facie case of employment discrimination and that, even assuming a prima facie case, Hughes had successfully overcome any presumption of discrimination. Our past cases are divided as to whether our review of a lower court's ultimate finding regarding establishment of a prima facie case is de novo or under a "clearly erroneous" standard. See generally Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 539-46 (9th Cir.1982). In this case, as in Gay, we reach the same conclusion under either standard and...

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