Richardson v. Byrd, 82-1220

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before INGRAHAM, WILLIAMS and HIGGINBOTHAM; PATRICK E. HIGGINBOTHAM
• Citation: 709 F.2d 1016
• Parties: 32 Fair Empl.Prac.Cas. 603, 32 Empl. Prac. Dec. P 33,749 Marsha A. RICHARDSON, Plaintiff-Appellee Cross-Appellant, and Darlyn Kay Copeland and Carol Gassner, Plaintiffs-Appellees, v. Don BYRD, Sheriff, Etc., Defendant-Appellee, and Commissioners Court of Dallas County, et al., Defendants-Appellants Cross-Appellees.
• Docket Number: No. 82-1220,82-1220
• Decision Date: 22 July 1983

Page 1016

709 F.2d 1016 32 Fair Empl.Prac.Cas. 603,
32 Empl. Prac. Dec. P 33,749 Marsha A. RICHARDSON, Plaintiff-Appellee Cross-Appellant,
and
Darlyn Kay Copeland and Carol Gassner, Plaintiffs-Appellees,
v.
Don BYRD, Sheriff, Etc., Defendant-Appellee,
and
Commissioners Court of Dallas County, et al.,
Defendants-Appellants Cross-Appellees. No. 82-1220. United States Court of Appeals,
Fifth Circuit. July 22, 1983.

Page 1018

Earl Luna, Dallas, Tex., for Com'rs Court.

Sue Lagarde, Asst. Dist. Atty., Dallas, Tex., for Sheriff Byrd.

Linda N. Coffee, Dallas, Tex., for class.

Clifton, L. Holmes, Kilgore, Tex., for Darlyn Kay Copeland.

Joann Peters, Dallas, Tex., for Carol Gassner.

Appeals from the United States District Court for the Northern District of Texas.

Before INGRAHAM, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This Title VII sex discrimination class action was filed by Marsha Richardson against the Dallas County Commissioners Court and the Dallas County Sheriff's Office alleging discrimination on account of sex in employment practices. The Commissioners, Richardson, and one other class member here contest the findings of liability and the relief granted by the district court. We affirm the district court's judgment in all respects except its award of attorneys' fees. We remand that award to the district court for reconsideration in light of a decision of the Supreme Court handed down while the case was before this panel.

After exhausting administrative prerequisites, Richardson filed on behalf of herself and a class of female applicants and employees a Title VII suit against the Dallas County Commissioners Court and Sheriff Clarence Jones alleging sex discrimination in the transfer and promotion of employees of the Sheriff's department. ¹ With consent of the parties, the district court combined the class certification hearing with the liability phase of the suit. After trial the district court held that Richardson was denied a transfer to an "outside" district of the Civil Division of the Dallas County Sheriff's Office because of her sex. It also certified a class of past, present, and future employees and applicants pursuant to Fed.R.Civ. 23(b)(2) and held that this class "was discriminated against in hiring, transfer, promotion, and job assignment in violation of Title VII."

Notice of these findings then was sent to over 1000 members of the putative class. Of these 1000, twenty-seven testified at a series of hearings. On May 30, 1980, the district court determined that two of twenty-one applicants, Terry Jewett and Josie Warren, and three of six employees, Richardson, Debra Pullin, and Carol Gassner, were entitled to backpay or other relief. After holding several more hearings, the district court awarded backpay and other relief to these five claimants and enjoined the Sheriff's Office from continuing its practice of assigning proportionately more female than male deputies to the jail. It

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also awarded $37,370 to Richardson's attorney, $2864 to Gassner's attorney, and $7951 to three paralegals found to be "performing work that has traditionally been done by an attorney." At the same time, the court concluded that disciplinary procedures brought against Gassner and Pullin had not been based on retaliatory motives growing out of their suit. It also rejected Richardson's claim for the value of the use of a county car, holding that "the record fully supports the Court's findings that it was the policy of the Sheriff's Office from 1973 to the present that county vehicles could not be used by deputy Sheriffs in their personal business."

The court entered judgment on April 6, 1982. The Commissioners now appeal, arguing that the district court erred in certifying the class, in finding that the five claimants were entitled to relief, and in awarding attorneys' fees. Richardson cross-appeals, contending that the court erred in denying the additional relief requested. While Gassner does not characterize herself as a cross-appellant, she also seeks additional relief.

Class Certification

The definition of a class is reviewable only for abuse of discretion. Under Rule 23 the district court is charged with the duty of monitoring its class decisions in light of the evidentiary development of the case. The district judge must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts. We recognize that these complex cases cannot be run from the tower of the appellate court given its distinct institutional role and that it has before it printed words rather than people. It follows that class certification decisions must be protected by a level of review that accords substantial discretion. At the same time we keep in mind that while Rule 23 is not self defining and employs sometimes internally overlapping indexes, it is, nonetheless, a rule with limits both internal to the rule and without. In this spirit of reviewing a trial court decision due substantial discretion we turn to this case.

The Commissioners first argue that the district court abused its discretion in certifying a class consisting of "all past, present, and future female commissioned employees and all past, present, and future female applicants for commissioned employee positions at the Sheriff's Office." Citing General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), they contend that Richardson, an employee, is not permitted to maintain a class action on behalf of applicants whom the Sheriff did not hire. ² We do not so read Falcon. We are persuaded that the Supreme Court did not intend that Rule 23 be administered in such a categorical fashion.

In Falcon, the Supreme Court reminded that a proposed class of persons seeking relief under Title VII must meet the requirements of Rule 23, underscoring the request that "the class claims [be] those fairly encompassed by the named plaintiff's claims." Id. at 2370. The Court found that the proposed class representative there did not meet these requirements because his complaint provided an insufficient basis for the trial court to conclude that adjudication of his claim of discrimination in promotion would require the decision of any question of law or fact common to assertedly discriminatory hiring practices. Id. at 2371. ³ The class representative was found to have not alleged sufficient facts to support an "across-the-board" attack. But the court did not translate that found deficiency to a

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holding that employees never can represent applicants or that an across-the-board class is never appropriate. Instead, it noted:

If petitioner used a bias testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a). Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision-making processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.

Id. at 2751 n. 15 (emphasis in original).

Unlike the disapproved class representative in Falcon, we find that Richardson demonstrated a sufficient Rule 23(a) nexus to enable her to represent a class consisting of both employees and applicants. One of the Sheriff's practices that Richardson attacked involved the assignment of all new female deputies to the jail and a restriction on their transfer to more desirable sections. Because the section of the jail available for females was smaller than the male section, the Sheriff's policy by necessity limited the number of female deputies that could be employed by the Sheriff's Office. As such, both applicants and employees were adversely affected by the same practice.

While this connection between employees assigned to the jail and job applicants is plainly sufficient to support a class of both, the question remains whether Richardson at the time of class certification was a proper representative of that class. At the time of class certification Richardson no longer worked in the jail and was suing the Sheriff for not transferring her from the Civil Division. Yet, her claim involved issues of law or fact common to those of applicants and employees assigned to the jail. Evidence at the Phase I trial showed that the Sheriff's employment practices were infected by the "entirely subjective decision-making processes" recognized in Falcon...