Washington v. Brown & Williamson Tobacco Corp.

• Decision Date: 08 May 1992
• Docket Number: No. 91-8242,91-8242
• Citation: 959 F.2d 1566
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 800, 58 Empl. Prac. Dec. P 41,481, 22 Fed.R.Serv.3d 799 George WASHINGTON and Edward P. Barnes, Sr., Individually and as Class Representatives, et al.; Cynthia Knight, Margie Andrews and Pamela Tobler, Individually and as Class Representatives, et al.; Donald Davis (Plaintiff in Intervention) Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant-Appellee.

Page 1566

959 F.2d 1566

60 Fair Empl.Prac.Cas. (BNA) 800,

58 Empl. Prac. Dec. P 41,481, 22 Fed.R.Serv.3d 799

George WASHINGTON and Edward P. Barnes, Sr., Individually and as Class Representatives, et al.; Cynthia Knight Margie Andrews and Pamela Tobler, Individually and as Class Representatives, et al.; Donald Davis (Plaintiff in Intervention) Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant-Appellee.

No. 91-8242.

United States Court of Appeals Eleventh Circuit.

May 8, 1992.

Charles A. Mathis, Jr., Mathis, Sands, Jordan & Adams, P.C., Brian G. Combs, Milledgeville, Ga., Steve Ralston, NAACP Legal Defense Fund, New York City, for plaintiffs-appellants.

Frank C. Jones, William A. Clineburg, Jr., Richard A. Schneider, L. Joseph Loveland, King & Spalding, Atlanta, Ga., Buckner F. Melton, Joseph M. Popper, Jr., Sell & Melton, Macon, Ga., Louisa Hall, L. Elizabeth Foley, Brown & Williamson Tobacco Corp., Louisville, Ky., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before KRAVITCH and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Named plaintiffs in a proposed class action appeal the district court's denial of class certification, restrictions on classwide discovery, and ultimate decision on the merits of their individual claims.

FACTS

Plaintiffs George Washington and Edward Barnes started this proposed class action in June 1980 against Brown & Williamson Tobacco Corporation ("B & W") alleging race-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1981. Their complaint specifically targeted B & W's cigarette-manufacturing plant in Macon, Georgia. Washington claimed he had been improperly disciplined and discharged because of his race and in retaliation for filing Equal Employment Opportunity Commission ("EEOC") charges. ¹ Barnes raised similar allegations. ²

Two other plaintiffs, Cynthia Knight and Pamela Tobler, joined the action through an amended complaint filed in July 1980. ³ Knight charged that B & W discriminatorily denied her training and initially failed to reimburse her for a college course at a local university. She also alleged racial discrimination in her annual performance appraisals and denial of promotion. Tobler claimed she was unfairly discharged for leaving the plant without her supervisor's permission. Donald Davis, an unsuccessful applicant for employment, intervened in 1983 to become the fifth named plaintiff. ⁴

In addition to their individual discrimination claims, the named plaintiffs sought to represent "all black persons currently or formerly employed at B & W's Macon plant, as well as black unsuccessful past applicants and black future applicants for employment at B & W's Macon plant." Plaintiffs' July 22, 1980 Amended Complaint, Paragraph 6. The complaint alleged racial discrimination in recruiting, hiring, job assignments, training, evaluations, promotions, transfers, discipline, retaliation--basically every employment decision the company made. Plaintiffs' "Memo of Law in Support of Motion to Certify Class" of February 27, 1981, confirmed the group's goal of asserting an "across-the-board" attack on B & W's employment practices and asserting a class defined by race.

After a March 1981 discovery conference, the district court limited discovery to the class-certification issue, postponing discovery on the merits. ⁵ Over the next three years, plaintiffs requested and defendants generated much information about B & W's employment practices. During this period, plaintiffs made no attempt to certify the class. In early 1984, when plaintiffs submitted requests B & W believed went beyond the scope of discovery appropriate on the certification issue, B & W moved to reconvene the discovery conference; and plaintiffs filed a motion to compel discovery.

The district court conducted an evidentiary hearing in September 1984, to determine whether plaintiffs could show a sufficient possibility of class certification to warrant discovery on the merits of the class claims. After hearing testimony from the five named plaintiffs and a statistical expert, ⁶ the court concluded plaintiffs lacked "the requisite nexus with the proposed class members." Believing the requested discovery was irrelevant to class certification, the court denied plaintiffs' motion to compel and continued to limit discovery to the class certification issue. ⁷

Plaintiffs moved for reconsideration of the discovery order several months later; the motion was denied. In the alternative, plaintiffs asked that the court decide the class-certification issue on the existing record with no trial or, if certification were denied, to rule on the individual claims on the existing record with no trial. The district court refused, upholding its earlier discovery ruling and formally denying class certification. The court then directed the parties to complete discovery on the individual claims within 90 days.

At the ensuing non-jury trial, none of the plaintiffs testified, choosing instead to rest on the existing record. After the trial, the court decided that statistical evidence and evidence of pattern discrimination might be relevant in deciding the individual claims of race discrimination and therefore ordered B & W to produce payroll computer tapes for plaintiffs' expert to review. Both parties submitted expert commentary on the tapes.

The district court rendered a final decision in 1991, see, Washington v. Brown & Williamson Tobacco Corp., 756 F.Supp. 1547 (M.D.Ga.1991), denying plaintiffs' individual claims and specifically finding that (1) Washington's termination was due to his inability to supervise his employees properly; (2) Barnes' discipline was the result of poor performance; (3) Knight's poor ratings were related to the poor performance of her subordinates; (4) Tobler's discharge was due to a continuing attendance problem and, more specifically, to her failure to notify her supervisor that she was leaving the plant on one particular occasion; and (5) Davis was simply unqualified for the highly technical position for which he applied. All five plaintiffs now appeal.

DISCUSSION

Class Certification

The district court has broad discretion in determining whether to certify a class. Coon v. Georgia Pacific Co., 829 F.2d 1563, 1566 (11th Cir.1987). Federal Rule of Civil Procedure 23(a) lists the prerequisites to a class action: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class [commonality], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality], and (4) the representative parties will fairly and adequately protect the interests of the class." ⁸

When this suit was originally filed, the Fifth Circuit permitted across-the-board class actions, in which commonality or typicality requirements were presumed to be met when an employment discrimination victim representing a class based on race or sex attacked all of the employer's unequal employment practices committed pursuant to a policy of racial or sexual discrimination. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.1969) (racial discrimination). So, it was unsurprising that plaintiffs with highly individual claims, like plaintiffs Washington, Barnes, Knight, and Tobler, would seek to represent all blacks that had ever had contact with B & W in an employment context and try to attack nearly every employment decision the company made.

But two years into this litigation, the Supreme Court ended the practice of across-the-board class actions in General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Although the Court recognized that "racial discrimination is by definition class discrimination," id. at 157, 102 S.Ct. at 2370,

the allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. 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. Instead, each of the Rule 23(a) requirements must be demonstrated independently of the fact that the members of the proposed plaintiff class were all of the same race, sex, or national origin. See Coon, 829 F.2d at 1567 (plaintiff precluded from representing all past, present and potential women employees in all facets of employment); Griffin v. Dugger, 823 F.2d 1476, 1489 (11th Cir.1987) (blacks), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (1988); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1558 (11th Cir.1986) (women).

Falcon allows for the certification of race-based or sex-based classes if the class challenges specific employment practices. See, e.g., Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. at 2371 n. 15 (both applicants and incumbents could challenge test if both required to take it and both potentially prejudiced by test ⁹); Cox, 784 F.2d at 1558 (limiting certification to class of women with claims of sexual discrimination in compensation, promotion and training); Giles v. Ireland, 742 F.2d 1366, 1371 (11th Cir.1984) (class limited to blacks in specific work group claiming unequal pay and denial of promotions); see also Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th...