Stastny v. Southern Bell Tel. and Tel. Co.

• Citation: 628 F.2d 267
• Decision Date: 28 July 1980
• Docket Number: 78-1362,Nos. 78-1361,s. 78-1361
• Parties: 23 Fair Empl.Prac.Cas. 665, 23 Empl. Prac. Dec. P 31,155, 24 Empl. Prac. Dec. P 31,241 Marguerite STASTNY et al., Appellees, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY (2 cases), Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 267

628 F.2d 267

23 Fair Empl.Prac.Cas. 665,

23 Empl. Prac. Dec. P 31,155,

24 Empl. Prac. Dec. P 31,241

Marguerite STASTNY et al., Appellees, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY (2 cases), Appellant.

Nos. 78-1361, 78-1362.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1979.

Decided July 28, 1980.

R. Lawrence Ashe, Jr., Atlanta, Ga. (Donald R. Stacy, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Vincent L. Sgrosso, Gen. Atty., Southern Bell Telephone & Telegraph Company, Atlanta, Ga., Robert D. Dearborn, Moore & Van Allen, Charlotte, N. C., on brief), for appellant in 78-1361 and 78-1362.

George S. Daly, Jr., Charlotte, N. C. (Casey & Daly, P.A., Jonathan Wallas, Louis J. Lesesne, Jr., Chambers, Stein, Ferguson & Becton, P.A., Jeffrey L. Bishop, Charlotte, N. C., on brief), for appellees in 78-1361 and 78-1362.

Before HAYNSWORTH, Chief Judge, WIDENER and PHILLIPS, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

In this appeal Southern Bell Telephone and Telegraph Company (Southern Bell) challenges the district court's conclusions, as embodied in an interlocutory injunctive decree, that it had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by engaging in discriminatory promotion and pay practices in respect of a broadly-defined class of female employees in its various facilities in North Carolina and in respect of four individual plaintiffs whom it permitted to act as representatives of the class. Southern Bell's chief contentions on appeal go to the court's determination under Fed.R.Civ.P. 23(c)(1) that the action might be maintained as a class action. A closely related contention is that considerations of res judicata and of comity precluded maintenance of the class action during the pendency of a government pattern and practice discrimination suit against American Telephone & Telegraph Co. (AT&T) and its associated Bell System companies, including Southern Bell, in the United States District Court for the Eastern District of Pennsylvania where consent decrees affecting class claims in the instant case had been entered.

Finding reversible error in the class action certification and in the determination of liability on the individual pay claims but no reversible error in the determination of liability on the individual promotion claims, we accordingly reverse in part and affirm in part.

I

In January 1973 the Department of Justice, the Department of Labor and the Equal Employment Opportunity Commission (EEOC), proceeding pursuant to §§ 706(f)(1), 42 U.S.C. § 2000e-5(f)(1), and 707(e), 42 U.S.C. § 2000e-6(e), of Title VII, filed a complaint against AT&T and its associated Bell System companies, including Southern Bell, in the United States District Court for the Eastern District of Pennsylvania, charging discrimination against women and minorities in violation of Title VII. Shortly thereafter, a consent decree prepared by the parties was approved by the district court. This 1973 decree established goals, timetables, and priorities for the placement of women and minorities in certain jobs and provided for payment of monetary awards to certain employees. The decree included a model affirmative action plan that established fifteen hierarchical job classifications throughout the Bell System's management and nonmanagement ranks. The decree further provided for employee information programs, a promotion pay plan, a plan for assessment of job qualifications, and a provision for assessment of opportunities provided to female college graduate employees. By its terms this consent decree remained in effect for six years, until January 17, 1979, and the Pennsylvania district court retained jurisdiction over the provisions of the agreement in order to supervise and enforce its terms.

In May 1974 a second consent decree was entered by the Pennsylvania district court. It established a method for setting uniform entry salaries for the various levels of management and provided for monetary awards to certain employees. This judgment remained in effect until May 1979 with jurisdiction retained for supervision. Employees accepting monetary awards under either consent decree were required to execute releases of any claims of alleged violations of Title VII that occurred before the date of the consent judgment.

While the Pennsylvania proceeding was still pending under the two consent decrees, Stastny, a management employee of Southern Bell at its Charlotte facility, commenced this action as an individual plaintiff in January 1975, alleging discrimination against her in promotions, pay, and other conditions of employment. In April of 1975 she amended her complaint to allege class claims. In late 1975 and in 1976 the other three named plaintiffs in this action, Andrews, Springs and Rogers, commenced individual actions alleging claims similar to Stastny's. Each of these three additional plaintiffs was also employed at Southern Bell's Charlotte facility. All four named plaintiffs had filed timely charges with the EEOC, the earliest being Stastny's of December 18, 1970. The four cases were consolidated for discovery and trial, and on June 22, 1976, over Southern Bell's objection, the district court determined under Fed.R.Civ.P. 23(c)(1) that the action might be maintained as a class action with Stastny the representative of a class defined as including two subclasses: ¹

a. All females employed in North Carolina in management positions since August 20, 1970, who have been classified, restricted, discriminated against, or otherwise deprived of employment opportunities or status because of their sex, and

b. All females (including female craft employees of the defendant) who, since August 20, 1970, have been denied employment in management positions in North Carolina on account of their sex.

The action then proceeded to trial with this alignment of individual and class claims and claimants. At trial plaintiffs presented testimony of the named plaintiffs and the husband of one of them concerning their treatment as individual employees; testimony of the former general manager of Southern Bell in North Carolina concerning the company's employment policies and practices; and statistical evidence, including opinion evidence from a statistical expert. Plaintiff's statistical evidence was based upon data drawn from all of Southern Bell's North Carolina facilities, totalled in a way that reflected statewide effects of its challenged practices. This suggested that on a statewide basis women in management were concentrated in its lower levels; that although statewide the company filled 87% of its management vacancies by promotion from nonmanagement, the percentage of women promoted from the statewide nonmanagement ranks was less than their percentage in those ranks; that the percentage of women promoted within the management ranks was lower than their percentages in the ranks from which promotions were made; that annual appraisals of employees for advancement purposes were more likely to be made by men than by women because a greater percentage of supervisors on a statewide basis were male; and that within certain salary classes male average salaries exceeded to a significant degree the average salaries paid to women.

Southern Bell presented in rebuttal and by way of defense its own statistical evidence and the testimony of an expert, evidence concerning the Pennsylvania consent decrees, and testimony by a former commissioner of the EEOC and by employees of AT&T and Southern Bell. This evidence suggested that the statistical disparities revealed by plaintiffs' evidence were either statistically insignificant or resulted from the operation of factors other than the sex of the employee, for example, level of education.

With all the evidence in, the individual plaintiffs moved that Andrews, Springs and Rogers be added as representatives of the class as defined in the court's June 22, 1976 order. Southern Bell resisted this motion, and renewed its original objection to the district court's determination that the action could be maintained as a class action. The district court allowed the addition of these three plaintiffs as representatives and in the process tacitly rejected Southern Bell's renewed objection to the class action's maintenance.

Turning then to the merits, the district court made extensive findings of fact and concluded that a pattern or practice of discrimination against the defined class of women employees justifying class relief had been proved. The court also made extensive findings on the question of discrimination against the four named plaintiffs as individuals. On the basis of these findings, the court concluded that since September 19, 1970 (ninety days prior to the filing of Stastny's first charge with the EEOC), Southern Bell had discriminated against the defined class by denying women employees entry into management, ² promotion within management, equal pay within the same salary class, and cross-training and developmental job assignments; that the annual appraisal system operated in a discriminatory manner against women; and with respect to the four named plaintiffs, that each had been deprived of management opportunities because of her gender. The court also rejected defendant's argument that the action was barred by laches.

Based on these conclusions, the court entered a "partial judgment" that granted immediate injunctive relief to the defined class; ³ adjudged the named plaintiffs and other members of the class entitled to remedial front and back pay awards to be individually determined by a master in referred proceedings; and made an interim award of costs and witness and attorney fees. Expressly determining that the Pennsylvania decrees were entitled to no generally preclusive effect in respect of the class claims, the court nevertheless avowedly shaped its judgment to avoid direct conflicts with and to give defendant "the...