Robinson v. Union Carbide Corp.

• Decision Date: 10 January 1977
• Docket Number: No. 75-1008,75-1008
• Citation: 544 F.2d 1258
• Parties: 14 Fair Empl.Prac.Cas. 266, 13 Empl. Prac. Dec. P 11,386 Freddie D. ROBINSON et al., Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1258

544 F.2d 1258

14 Fair Empl.Prac.Cas. 266,

13 Empl. Prac. Dec. P 11,386

Freddie D. ROBINSON et al., Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION, etc., Defendant-Appellee.

No. 75-1008.

United States Court of Appeals, Fifth Circuit.

Jan. 10, 1977.

J. U. Blacksher, Mobile, Ala., Jack Greenberg, Melvyn Leventhal, New York City, Caryl P. Privett, Birmingham, Ala., for plaintiffs-appellants.

Vella M. Fink, EEOC, Washington, D. C., (Equal Employment Opportunity Commission) amicus curiae on rehearing.

Vincent McAlister, Sheffield, Ala., for defendant-appellee.

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

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion September 10, 1976, 5 Cir. 1976, 538 F.2d 652.)

Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, District Judge.

INGRAHAM, Circuit Judge:

The original opinion is modified by withdrawing the language following the first sentence under the section entitled "Class Action Claim" found on page 662 and continuing to the end of the opinion, substituting the following therefor.

We preface this discussion by noting that the action probably should have proceeded under Rule 23(b)(2) rather than 23(b)(3). ¹⁰

The former compels inclusion and therefore promotes judicial economy, consistency of result, and binding adjudication more effectively than 23(b)(3). Mungin v. Florida East Coast Ry. Co., 318 F.Supp. 720, 730 (M.D.Fla.1970), aff'd per curiam, 441 F.2d 728 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 203, 30 L.Ed.2d 175 (1971). See also Bing v. Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973). However, (b)(3) type actions do bind all persons who do not opt out of the action. Fed.R.Civ.P. 23(c)(2). Rule 23 does not require notice for (b)(2) type actions. Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 254-57 (3rd Cir. 1975). Rule 23(c)(2) provides for mandatory notice to class members in (b)(3) type actions, whereby each has a right to exclude himself, or opt out of, the class. This "Book-of-the-Month Club" ¹¹ approach prevents "sideline sitting" by eligible class members. Compare Escott v. Barchris Construction Corp., 340 F.2d 731, 735-36 (2nd Cir. 1965) (Friendly, J., concurring).

Appellants' attack is directed at the supplemental provision of the district court's "Notice of Pendency of Class Action" requiring class members to opt in to obtain back pay. ¹² The district court undoubtedly realized that there are some class actions where it is necessary for class members who do not opt out "to take some affirmative action as a condition of ultimate recovery." 3B Moore's Federal Practice P 23.55 at 23-1161 (1975). The key word here is "ultimate." This has particular relevance to Title VII actions, wherein a bifurcated procedure is utilized to determine, first, liability and then relief. Swint v. Pullman-Standard, 539 F.2d 77, 94 (5th Cir. 1976); Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 733-34 (5th Cir Upon remand, the court should consider the claims of those class members who would have been excluded by their earlier failure to opt in for back pay purposes. It may be necessary to obtain some affirmative action before the final determination of appropriate relief. While not necessarily erroneous, the language of the supplemental provision is not especially informative as to what relief was available to the class members. The district court should inform class members that back pay is included among possible types of relief.

1976); Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 443-44 (5th Cir. 1974). Although there may be some Title VII actions in which unnamed individual plaintiffs will have to come forward to establish their entitlement to portions of the recovery, such requirement should not be imposed upon them until necessary for adjudication. In this case, coming forward to establish an entitlement was futile in light of the initial determination by the district court that that defendant was not liable. Opting in was not necessary before the determination of liability. The district court apparently relied upon the language of 23(d)(2) ¹³ for its opt-in requirement. Although 23(d)(2) might be read to impinge upon the preceding subsections of Rule 23, we cannot believe that it was intended to negate the clear thrust of the rule which is to minimize the requirement of active intervention by numerous members of an affected class.

We REVERSE this part of the district court's judgment.

CONCLUSION

We AFFIRM the district court on the hiring practices issue; we REVERSE and REMAND on the no-discrimination findings as to Union Carbide's system of promotion and on the class action issue.

WISDOM, Circuit Judge (concurring specially):

After further consideration of Robinson v. Union Carbide Co., No. 75-1008, September 10, 1976, the Court has withdrawn the section of its opinion entitled "Class Action Claim" and has substituted a new opinion. Because the majority opinion restricts too narrowly the discretion of district courts to gather information in class action suits, I file this special concurrence.

The plaintiffs-appellants brought a class action job discrimination case against the company's Materials Systems Division. The district court held that neither the hiring policies nor the job promotion practices of the division violated the Civil Rights Acts. We affirmed the holding about hiring but reversed that portion of the holding relating to job promotions, because the company had not satisfactorily rebutted the plaintiffs' statistical showing of racial discrimination.

The plaintiffs based their appeal, in part, on notice sent to the members of the class by the district court at the outset of the suit:

If you are black and an employee or have an outstanding job application with defendant . . . and desire other appropriate relief in addition to injunctive relief, you must notify the undersigned in writing . . . . If you desire to be included in the class for any such other appropriate relief and notify the undersigned or the Court of the same, you will be notified when the case is set on the merits, at which time you must appear and prove your claim in accordance with the law and be prepared to prove what efforts you have taken to mitigate your damages, if any.

The workers argue that this notice violates the opt-out provisions of Rule 23(c)(2) of the Federal Rules of Civil Procedure ¹ because it requires class members to take affirmative action to secure back pay or other damages. At first glance, the unfortunate wording of the supplemental notice provision appears to require members to take affirmative action to join the class. If the notice actually constituted an opt-in order, it would clearly violate Rule 23. See Tentative Draft, Manual for Complex Litigation 72-74 (fourth revision, July 21, 1976). Closer analysis of both the supplemental and primary notices reveals, however, that they do not require the plaintiffs to opt into the class action in violation of the Rule. As a result, I cannot accept the plaintiffs' objection to the notices, although I would remand them for further action by the district court on other grounds.

Rule 23, as amended in 1966, requires the trial court in a class action to issue an "opt-out" notice informing class members that they will be bound by the law suit unless they notify the court of their intention not to be bound. If they so notify the district judge, the judgment in the class action will neither affect them nor prevent them from filing a later suit on the same matter. The authors of the Rule preferred this approach over an "opt-in" procedure whereby members of the class would notify the district court if they desired inclusion in the suit. Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 397 (1967). The amendment therefore prevents potential class members from delaying their decision about whether to join the action until the case reaches judgment. Such "sideline sitting" would enable them to receive the benefits of a judgment in their favor and to avoid the res judicata effect of a decision against their interests. 3B Moore's Federal Practice P 23.55 at 23-1160 (1975). Now, they will be bound unless they "opt-out" at an early stage of the litigation.

The supplemental notice in this case does not violate the amendment to Rule 23(c)(2) because it does not require members to opt-into the class action in order to be bound by it. As the trial court explained in its primary notice, ² the class members were bound unless they notified the court of their desire to be excluded. The supplemental notice, directed only to those members who had not excluded themselves, merely conditioned the receipt of individualized non-injunctive relief on the submission and proof of the claim for such relief. If the members had not submitted their claims, they could not have brought other suits because, under the court's primary notice, the class action had res judicata effect upon all claims arising from the alleged job discrimination. Consequently, the two notices prevented sideline sitting and did not violate Rule 23(c)(2).

Correctly analyzed, the supplemental notice in Robinson arises from Rule 23(d) (2), ³ not (c)(2). Because the authority to issue such notices is discretionary rather than mandatory, the question is whether the district court abused its discretion by issuing a supplemental notice that conditioned damage recovery on certain affirmative action by class members. I would hold that an abuse occurred because the notice burdens too severely the right of small claimants to benefit from the class action.

The class action device enables small claimants, who could not afford to bring individual law suits, to vindicate their common rights. Hawaii v. Standard Oil Co., 1972, 405 U.S. 251, 265-66, 92 S.Ct. 885, 31 L.Ed.2d 184; Korn v. Franchard...