Wheeler v. American Home Products Corp., 75-3954.
| Decision Date | 23 January 1978 |
| Docket Number | No. 75-3954.,75-3954. |
| Citation | 582 F.2d 891 |
| Parties | Carole WHEELER et al., Plaintiffs-Appellees, v. AMERICAN HOME PRODUCTS CORPORATION (BOYLE-MIDWAY DIVISION) et al., Defendants-Appellees, v. Bonnie BOSS et al., Intervenors-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Joseph E. Cheeley, Buford, Ga., H. A. Stephens, Jr., Atlanta, Ga., for intervenors-appellants.
Patrick M. Scanlon, Robert S. Giolito, Atlanta, Ga., J. R. Tadlock, James J. Cronin, Denver, Colo., for Oil, Chemical & Atomic Workers et al.
John D. Marshall, Donald G. Mayhall, Atlanta, Ga., for American Home.
E. Lundy Baety, Atlanta, Ga., for Carole Wheeler et al.
Before GOLDBERG and TJOFLAT, Circuit Judges, and WYATT,* District Judge.
This is an appeal by plaintiffs-intervenors from an order of the United States District Court for the Northern District of Georgia (Honorable Charles A. Moye, Jr., District Judge). The order appealed from is dated September 26, 1975, and was filed September 29, 1975.
There was no compliance with Fed.R.Civ.P. 58 in that on the decision of the District Court, no judgment was set forth on a separate document and entered. In accordance with an order of this Court filed June 29, 1977, this was called to the attention of the Clerk of the District Court and an order of the District Court was made and filed on August 31, 1977, amending nunc pro tunc the above order dated September 26, 1975, so as to dismiss the complaint with prejudice and also to dismiss the complaint of the intervenors. The Clerk then filed a judgment on a separate document which provided that the intervenors take nothing, that the action be dismissed and that defendants recover their costs from intervenors. This judgment was filed and entered August 31, 1977, nunc pro tunc September 29, 1975. The filing of the earlier notice of appeal is deemed under the circumstances to be a sufficient compliance with Fed.R.Civ.P. 58.
The action was commenced by four female employees of American Home Products Corporation ("Home") at its plant in Chamblee, Georgia. The defendants were (a) Home, (b) Oil Chemical and Atomic Workers International Union ("the International"), and (c) Local 3-531 ("the Local") of the International. The action was brought as a class action under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e and following; "the Act"). The claim was that Home discriminated against women employees because of their sex and that the International and the Local failed to represent plaintiffs fairly because (among other things) they consented to the discrimination. Thereafter plaintiffs-intervenors, who are eight other female employees of Home at its Chamblee plant, were by order allowed to intervene; they then filed an "Intervenors' Complaint."
In the fulness of time, the original plaintiffs made a settlement agreement with the three defendants. This agreement was conditioned "on the dismissal with prejudice of this action as to all parties, including intervenors." The intervenor plaintiffs were not consulted in any way about the settlement agreement and did not sign it or consent to it.
The order filed on September 29, 1975, recited that plaintiffs-intervenors objected to the proposed settlement "because no monetary provisions were provided for the intervenors" but that "such objection is without merit". The order granted the motion of plaintiffs for approval of the settlement and directed that "the complaint is hereby dismissed with prejudice". The parties treated the order as one dismissing the action as against all parties, including plaintiffs-intervenors, and as denying intervenors any further opportunity to seek any relief in the Court below. The later order and judgment filed on August 31, 1977, made this clear.
Because we believe that the procedure followed in the District Court was unauthorized and that it denied rights to which intervenors were entitled, we reverse and remand for proceedings consistent with this opinion.
The action was commenced on August 23, 1972. The complaint was framed as a class action under Fed.R.Civ.P. 23(b)(2). The class was broadly described but in substance was all women employed by Home at the Chamblee plant, represented by the International and the Local, and adversely affected by the discriminatory practices said to violate the Act. These practices were alleged to be the assignment of women to the lowest paying jobs, the keeping of separate seniority lists for men and women, and the like. Plaintiffs asked for an injunction restraining such discriminatory practices, for a mandatory injunction directing corrective action, and for a money award (amount unspecified) to make them and the class whole for everything lost by reason of the discriminatory practices.
Home filed its answer on January 15, 1973; the International and the Local filed a joint answer on January 18, 1973.
On February 14, 1973 the eight present plaintiffs-intervenors filed a motion for leave to intervene. They showed their situation to be the same as the four original plaintiffs, claimed redress under the Act and "recovery of monetary damages because of sex discrimination . . .". Among other things, they asserted: "Their interest is not adequately represented by existing parties". A proposed complaint in intervention was said to be attached to the motion but no such proposed complaint appears in the record on appeal.
The original plaintiffs did not oppose the motion to intervene. The defendants did oppose.
By order filed April 19, 1973, the motion to intervene was stayed pending determination whether or not the action could be maintained as a class action.
By order filed August 27, 1973, the District Court determined that the action could not be maintained as a class action but gave plaintiffs 15 days within which to amend their complaint to meet the several points noted by the Court. No such amendment was made.
By order filed October 2, 1973, the motion to intervene was granted, not as of right (Fed.R.Civ.P. 24(a)(1)) but as a matter of permission (Fed.R.Civ.P. 24(a)(2)). On the same date, appellants filed a pleading which was styled "Intervenors' Complaint." This adopted the averments of the complaint and stated that defendant Home was indebted to each intervenor for $9,000 "or more" as the pay differential caused by discrimination. The prayer for relief was that the "injunctive and declaratory relief" asked for by plaintiffs be granted and in addition that each intervenor recover $9,000 from Home or "such other sum" as might be found owing.
On October 24, 1973, the defendant unions filed a motion to dismiss the intervenors' complaint.
On November 20, 1973, defendant Home moved for summary judgment in its favor as against the intervenors.
The original plaintiffs then brought to the Court's attention that their counsel had been disbarred. By order filed January 31, 1974, plaintiffs were allowed to substitute new counsel and were given 30 days "to make the positive showing that this action should proceed as a class action". The District Court noted in its order that the intervenors might be members of the "purported class" and, if so, their intervention might be "unnecessary" and the motions of defendants against them might be "inapplicable". The Court therefore deferred any ruling on those motions.
The original plaintiffs then on March 7, 1974, filed a "response" that they did not desire, and had never desired, that the action be a class action. They asked for an order "dismissing the class action aspects of the case". A copy of this "response" was served on counsel for intervenors, who apparently did not object to dismissal of the "class action aspects". The District Court took no action on the "response" so far as its class action determination was concerned. The order denying class action status was left standing.
After the "response" the District Court did find that the motions of defendants were "ripe for consideration."
The point made by defendants in support of their motions was that no intervenor had ever filed a charge with EEOC nor ever received any notice from EEOC; reliance was on Beverly v. Lone Star Lead Constr. Corp., 437 F.2d 1136 (5th Cir. 1971). The intervenors relied on Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968).
The District Court believed Oatis, maintained as a class action, to be distinguishable in that members of a class in a class action need not each file a charge with EEOC. But the District Court believed that in an action, not a class action, each plaintiff and each intervenor must have filed a charge with EEOC in order to make a claim for back pay in an action under Title VII. Since the intervenors had not each filed charges with EEOC, the District Court ruled that they could not recover back pay in the action. By order filed May 16, 1974, the motions of defendants were denied but the intervention of plaintiffs-intervenors was stated to be "allowed only with respect to participation in a trial concerning the issue of injunctive relief."
Thereafter defendant Home moved for judgment on the pleadings. This motion was denied by order with memorandum opinions, filed June 9, 1975.
The four original plaintiffs and the three defendants then made a written agreement of settlement, dated September 18, 1975. The intervenors were not parties to the settlement agreement.
The settlement agreement provided that plaintiffs would receive $10,000 from defendants in satisfaction of all their claims, specifically including back pay. Plaintiffs agreed to do everything necessary to dismiss the action with prejudice "as to all parties, including intervenors". The settlement agreement further stipulated "that no injunctive relief is required or necessary".
The original plaintiffs then filed a motion "for an order approving the proposed settlement of the . . . action and its dismissal with...
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