Smith v. Delta Air Lines, Inc., 71-3197.

• Decision Date: 05 October 1973
• Docket Number: No. 71-3197.,71-3197.
• Citation: 486 F.2d 512
• Parties: Arthur Lee SMITH, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

486 F.2d 512 (1973)

Arthur Lee SMITH, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.

No. 71-3197.

United States Court of Appeals, Fifth Circuit.

October 5, 1973.

Oscar W. Adams, Jr., Birmingham, Ala., William L. Robinson, Jack Greenberg, New York City, for plaintiff-appellant.

William Gardner, Birmingham, Ala., Sidney F. Davis, Asst. Gen. Counsel, Frank Cotter, Legal Div., Atlanta, Ga., for defendant-appellee.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

This is another Equal Employment Opportunity case which the court has withheld pending a decision by the Court, sitting en banc, of Brisco Huff, etc. v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973) which modified on rehearing the original decision in Brisco Huff, etc. v. N. D. Cass Company of Alabama, 468 F.2d 172 (5th Cir. 1972).

There are three issues before the court in this case, one of which has now been resolved by the en banc decision of this Court in Huff. The others still remain for our consideration in view of the action taken by the Court in its en banc decision that it is not proper for a trial court to dismiss a class action solely on the basis of a preliminary determination that the single named plaintiff representing the class is not entitled to relief on the merits of his individual claim. If the Court had decided this issue against the individual plaintiff's contention there would have been left for us to consider only the single question whether the trial court's findings of fact respecting the discharge of the plaintiff were clearly erroneous. As it is, we have in addition to the review of the factual matter, the contention of the appellee that the class action pleaded by Smith deals with conduct of the defendant that was not encompassed within the claim he originally made before the EEOC.

We consider first the appeal on the fact findings by the trial court resulting in its conclusion that Smith could not recover in his own right on the ground that his termination of employment was racially motivated. The plaintiff, who had been an "agent" of Delta Airlines in Birmingham for approximately nine months was discharged on the stated ground that he had not complied with grooming requirements of the company, dealing with facial hair.¹ Briefly, it was the contention of the plaintiff that his sideburns did conform to the policy and that further it was more difficult for black persons to conform strictly to these provisions dealing with sideburns and mustaches than it would be for persons of the white race.

The trial court had ample evidence before it to determine, as it did, that the grooming requirements were not invalid and that they were not racially motivated; nor were they racially applied or enforced in order to accomplish plaintiff's dismissal. The trial court said:

"It may be that the requirement or the stating of a condition that sideburns will not be bushy or that the hair shall be well trimmed may impose some additional burden on persons of the negro race, because of the hair, that I think is under the evidence, tends to be a general attribute of the race ... The question is when there is a rule that to some degree may fall not exactly the same on persons of all races, for that reason alone the rule must fall. And my conclusion, where there is no great difficulty in complying with the rule and which can be complied with by all, that the rule does not have to go out on that account.

"In this particular case, it seems clear to the Court that a black person can have a closely trimmed sideburn, or if the company requires it, can have closely trimmed hair. It may require more trimming more often to do that. I do not see then that the rule itself is being discriminatory."

The court also commented as follows:

"It is perhaps unfortunate in this case, at least I feel it, that we find the plaintiff that I feel like probably shouldn\'t have been discharged, but I don\'t feel like the facts show that this is a case of racial discrimination in what happened. And that is the area of my jurisdiction under the Title VII of the Act and Section 1981 Act."

We review findings of fact in Title VII cases in the same manner as other fact findings of the trial court are reviewed. This Court may not set them aside unless it is able to conclude that such findings are "clearly erroneous." Rule 52(a) F.R.Civ.P. Upon considering the record in this case we conclude that there was evidence upon which the trial court could base these findings. The denial of the plaintiff's individual claim that he was discharged on account of racial discrimination must therefore be affirmed.

As we have indicated above the Huff case has settled the question whether a trial court can dismiss a class action brought by a single named plaintiff, seeking to represent both himself and the class, solely because the trial court concludes that the plaintiff cannot succeed to recover individually on his own claim.

This matter was dealt with by the trial court in a manner which indicates clearly that dismissal of the suit was based on its finding that Smith was not entitled to recover in his individual capacity. Dealing with this subject the trial court said:

"(b) Plaintiff also alleged that defendant has committed other unlawful employment practices in establishment of job classifications, use of aptitude tests, and hiring and promotion practices generally. Plaintiff has not indicated that he has heretofore suffered any injury on account of such alleged practices. The Court finds that, unless the plaintiff is successful in attributing his discharge and entitlement to reinstatement, the plaintiff would not have standing personally to challenge such practices nor be a representative party adequate to protect the interests of the class under Rule 23. If the plaintiff prevails on the discharge issue, then this case shall be continued for determination on its being maintained for further hearings as a class action; if the plaintiff is unsuccessful on

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