Vuyanich v. Republic Nat. Bank of Dallas

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation723 F.2d 1195
Docket NumberNo. 81-1357,81-1357
Parties33 Fair Empl.Prac.Cas. 1521, 33 Empl. Prac. Dec. P 34,160 Joan Rance VUYANICH, Plaintiff-Appellee Cross-Appellant, and Marisu Fenton, Intervenor-Appellee, Marjorie Lee Jackson and Dorothy Hooks, Intervenors-Appellants, and Portia Williams and Martha Davis, Movants-Appellants, v. REPUBLIC NATIONAL BANK OF DALLAS, Defendant-Appellant Cross-Appellee. Ellen JOHNSON, Plaintiff-Appellee Cross-Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS, Defendant-Appellant Cross-Appellee.
Decision Date30 January 1984

Donald W. Anderson, Chicago, Ill., Wayne S. Bishop, Bruce L. Downey, Richard K. Walker, Bishop, Liberman, Cook, Purcell & Reynolds, Washington, D.C., for Republic Nat. Bank.

JoAnn Peters, Dallas, Tex., for Vuyanich, Jackson, Hooks, Williams and Davis.

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

Richard L. Arnold, Dallas, Tex., for Fenton.

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

Before CLARK, Chief Judge, GARZA and POLITZ, Circuit Judges.

CLARK, Chief Judge:

Two decisions by the Supreme Court of the United States handed down after the district court's final judgment significantly altered the pertinent law of this Circuit. These decisions require that we vacate the district court's underlying class certification order. This holding, in turn, necessitates a remand for reconsideration of the more limited class rights that the plaintiffs could properly assert and vacation of the order allowing intervention by persons seeking to assert rights not within the periphery of those limited class claims.

I

A thorough recitation of the facts and procedural history of this massive Title VII class action litigation is available in the published district court opinions. See 409 F.Supp. 1083 (N.D.Tex.1976); 78 F.R.D. 352 (N.D.Tex.1978); 82 F.R.D. 420 (N.D.Tex.1979); 505 F.Supp. 224 (N.D.Tex.1980); 521 F.Supp. 656 (N.D.Tex.1981). For the reader's convenience, we briefly summarize here the facts necessary for our disposition of the case.

Joan Vuyanich began working as an agent contact clerk in Republic National Bank's Money Order Department on April 29, 1969. She was the only black employee in that department. Shortly after beginning her job, she began having problems with two white female co-workers. She complained to her supervisors, and the situation was temporarily rectified.

On June 29, 1969, Vuyanich married a white male. One month later, her supervisors met her husband. Shortly thereafter, her supervisor told Vuyanich she should resign. The supervisor gave as reasons her clashes with her co-workers, her complaints about her workload, and her not being suitable for the job. When Vuyanich inquired about a transfer, her supervisor replied that she probably did not need a job since her husband was white. Vuyanich was discharged on July 28, 1969.

Less than two weeks later, Vuyanich filed a race discrimination charge against the Bank with the Equal Employment Opportunity Commission. She alleged a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17. The EEOC issued a finding that a reasonable basis existed to believe that a Title VII violation may have occurred. Conciliation efforts were unsuccessful, and the EEOC issued a statutory right-to-sue letter. On March 22, 1973, Vuyanich filed suit in the district court.

Ellen Johnson applied at the Bank in September 1971 for a position as a management trainee or in personnel administration. After being told that there were no openings in these positions, she asked for any position available. She was not offered a job of any kind. In October 1971, Johnson filed a charge against the Bank with the EEOC asserting race and sex discrimination in several employment practices. The EEOC issued a determination of reasonable cause for most of the allegations. On December 3, 1973, one month after a right-to-sue letter was issued, Johnson filed suit in the district court. The cases were consolidated in 1976.

On March 15, 1978, after a two-day hearing, the district court certified the following class:

All females of all races and all blacks of either sex; 1) who are or have been employed by the Republic National Bank on or after February 16, 1969, and 2) who applied for employment but were not hired at the Republic National Bank on or after February 16, 1969 to date.

78 F.R.D. at 354. After a second hearing, the court reaffirmed its class composition and divided the class into five subclasses. The district court simultaneously approved three intervenors as additional class representatives. These three intervenors were Marjorie Lee Jackson, Marisu Fenton, and Dorothy Hooks, all female former employees. The five certified subclasses and designated representatives were as follows:

                                                   Subclass
                          Subclass             Representative(s)
                          --------             -----------------
                black and female employees     Ellen Johnson
                who were exempt from the       Majorie Lee Jackson
                provisions of the Fair
                Labor Standards Act
                female nonexempt employees     Marisu Fenton
                black nonexempt employees      Joan Vuyanich
                                               Dorothy Hooks
                unsuccessful black and female  Ellen Johnson
                applicants for exempt
                positions
                unsuccessful black applicants  Ellen Johnson
                for nonexempt positions
                

505 F.Supp. at 233 (footnote omitted).

After the liability phase of the trial, which lasted twenty-four days, the district court found that the Bank had discriminated against some of the subclasses in certain employment practices for a period of the time alleged. Specifically the court found that the Bank discriminated against (1) black applicants for nonexempt jobs from 1969-1974; (2) female applicants for exempt jobs from 1969-1974; (3) black employees in pay from 1973-1978; (4) black exempt employees in promotion and placement from 1973-1978; (5) black and female nonexempt employees in promotion and placement from 1969-1978; and (6) female employees in maternity leave practices during 1969-1970. The court dismissed the plaintiffs' claims of discrimination in hiring, pay, promotion, placement, maternity leave practices, and terminations.

II

Following Fifth Circuit precedent, the district court relied on the across-the-board theory of class certification. See 505 F.Supp. at 234-37. After the district court rendered its decision, however, the Supreme Court, in reversing a panel of this court, ruled that the across-the-board theory is appropriate only in limited instances. General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 2371 & n. 15, 72 L.Ed.2d 740 (1982), rev'g 647 F.2d 633 (5th Cir.1981).

Falcon teaches that an allegation of discrimination neither determines the appropriateness of a class action nor defines the scope of any potential class. 102 S.Ct. at 2371. Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims.

Id. (footnote omitted).

The Court reiterated the rule that the requirements of Rule 23(a) "limit the class claims to those fairly encompassed by the named plaintiff's claims." Id. at 2370 (quoting General Telephone Co. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). In addition, a class representative must "possess the same interest and suffer the same injury" as the class members. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929-30, 41 L.Ed.2d 706 (1974); see also East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977).

In the present case, Vuyanich and Johnson, who both possessed limited claims, have been permitted to assert class claims that are neither common nor typical of their personal claims. Vuyanich's claims should have been limited to race discrimination in her termination as a nonexempt employee. Her complaint filed with the EEOC contained only these allegations. Yet her complaint in this action alleged on behalf of herself and other blacks and females presently or previously employed, wide ranging claims of sex and race discrimination in, among other areas, placement, compensation, and promotion. Johnson's claims should have been limited to sex discrimination in hiring exempt employees. In her complaint, Johnson alleged sex and race discrimination in hiring. Her class claims, however, alleged only sex discrimination. The district court certified her as a representative of all black and female applicants for both exempt and nonexempt positions and of all black and female exempt employees with promotion, compensation, and transfer claims.

In arguing that Falcon did not foreclose all across-the-board class actions, the plaintiffs rely on this language by the Court:

If petitioner used a biased 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 decisionmaking processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved...

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