Wrighten v. Metropolitan Hospitals, Inc.

• Decision Date: 29 February 1984
• Docket Number: Nos. 79-4658,79-4665 and 81-3440,s. 79-4658
• Citation: 726 F.2d 1346
• Parties: 33 Fair Empl.Prac.Cas. 1714, 33 Empl. Prac. Dec. P 34,137 Naomi C. WRIGHTEN, Jesse Blocker, Jr., and Wilma P. Graham, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. METROPOLITAN HOSPITALS, INC., an Oregon non-profit corporation, Emanuel Lutheran Charity Board, Inc., an Oregon non-profit corporation, doing business as Emanuel Hospital, and Red Top Inc., a Delaware Corporation doing business in Oregon as Red Top Hospital Services, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1346

726 F.2d 1346

33 Fair Empl.Prac.Cas. 1714,

33 Empl. Prac. Dec. P 34,137

Naomi C. WRIGHTEN, Jesse Blocker, Jr., and Wilma P. Graham individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. METROPOLITAN HOSPITALS, INC., an Oregon non-profit corporation, Emanuel Lutheran Charity Board, Inc., an Oregon non-profit corporation, doing business as Emanuel Hospital and Red Top Inc., a Delaware Corporation doing business in Oregon as Red Top Hospital Services, Inc., Defendants-Appellees.

Nos. 79-4658, 79-4665 and 81-3440.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 3, 1982.

Decided Jan. 31, 1984.

As Amended Feb. 29, 1984.

Curtis G. Oler, San Francisco, Cal., for Graham.

Diane White, Tigard, Or., for Wrighten.

James H. Clarke, Spears, Lubersky, Campbell & Bledsoe, Harry S. Chandler, E. Joseph Dean, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., for Metro. & Emanuel.

Appeal from the United States District Court For the District of Oregon.

Before KILKENNY, GOODWIN and POOLE, Circuit Judges.

GOODWIN, Circuit Judge.

Naomi Wrighten, Wilma Graham and Jesse Blocker, Jr., appeal from the district court's judgment for the defendants in plaintiffs' employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Sec. 1981. ¹ Plaintiffs claimed that Metropolitan Hospitals Inc. [Metro], Emanuel Hospital [Emanuel], and Red Top, Inc. [Red Top] discriminated against them because they were black, and sought declaratory and injunctive relief as well as damages.

All plaintiffs are former employees of Emanuel, for whom Metro provided management services. Red Top provided training and supervisory personnel for the Emanuel housekeeping department where Blocker worked. Wrighten and Graham were nurses.

On appeal plaintiffs argue that the district court erred in (1) denying class certification; (2) granting summary judgment for Red Top and Metro; (3) ruling that Blocker's claims were time-barred, granting partial summary judgment against him and finding that he was not terminated as a pretext for racial discrimination; (4) ruling that Emanuel did not discriminate against Graham and Wrighten nor improperly discharge them in retaliation for protests against unlawful employment practices; and (5) affirming the clerk's assessment of costs against plaintiffs. We affirm the district court on all issues except those arising out of Wrighten's termination. The district court should reassess her costs in light of this opinion.

Naomi Wrighten is a black registered nurse, employed by Emanuel Hospital from 1974 until her termination in 1976. She worked as a staff nurse. Wilma Graham is a black licensed practical nurse employed by Emanuel for more than 14 years before her termination in 1976. Jesse Blocker, Jr., is a black man, employed in Emanuel's housekeeping department from 1971 until his termination in 1977. He was the union steward for Local 49 of the Service Employees International Union at Emanuel.

In 1975 Emanuel instituted two important changes in personnel administration. It contracted with Red Top, Inc., to provide management and supervisory services in the housekeeping department. It also instituted "primary nursing care" in place of "team nursing," which altered the duties of registered nurses and gave them fewer administrative duties than before.

Some of Wrighten's claims stemmed from the change in nursing duties. She believed her workload under the new primary patient care system was disproportionately heavy. She also believed that she should have been promoted to a head nurse position when that job became vacant in 1975.

In late 1975 and early 1976 Wrighten wrote letters to Emanuel's personnel director stating dissatisfaction with black patient care and her employment situation. Early in March 1976, she and Graham had three unproductive meetings with Emanuel's personnel director and its president, Roger Larson. Several members of the black community ² were in attendance. At one of the meetings Wrighten made dramatic and specific charges of black patient mistreatment. Soon thereafter she and Graham called a press conference off hospital grounds to protest black patient care at the hospital.

The day after the press conference, Barbara Weleber, Wrighten's supervisor, criticized Wrighten's job performance because of the charges and the press conference. Weleber directed Wrighten to stop discussing personal matters during her duty time, to stop accepting so many personal phone calls while on duty, and to remain on the hospital grounds during her half-hour breaks. Weleber's orders upset Wrighten and she and Graham again met with Larson. They were unable to settle the controversy. Larson then appointed a committee of members of the black community to look into matters. The committee's actual mission is unclear. Larson suspended both Wrighten and Graham from patient care duties and assigned them to work, at regular pay, with the committee. He denied both of them access to the hospital grounds during the committee's work.

The committee met sporadically. On April 16, 1976, its chairman informed Larson that Wrighten and Graham had not cooperated and had not provided information to substantiate their complaints. Larson then informed Wrighten that he was terminating her employment as of April 23.

Larson decided to reinstate Graham to her regular nursing duties but she did not respond to his phone calls or mail notices. On April 26, 1976, Larson took Graham's silence and failure to report for work as a constructive resignation. We do not consider Graham's suspension and ultimate termination of employment because she appeals only the assessment of costs against her.

Blocker's complaints of racial discrimination began long before Red Top took over management and supervisory services in the housekeeping department. He perceived a consistent pattern of discrimination against him. He asserts that he was not informed about Red Top management employment opportunities nor accepted by Red Top in his union steward capacity because of his race and because he had often advocated the causes of other black employees who had protested discriminatory employment practices. He contends that his unfavorable job evaluations were unfair and were a mere pretext for firing him in 1977. He claims that he should have been promoted to the position of supervisor of housekeeping, a position filled instead by a black woman. He claims that he was disfavored because he had been active in complaining about discriminatory practices while the person who received the promotion had not complained or protested.

JURISDICTION

Blocker, Graham and Wrighten filed timely Title VII charges with the E.E.O.C. in March 1976. The E.E.O.C. deferred the charges to the State of Oregon. Some thirty days later, Blocker, Graham and Wrighten filed this action in federal district court. In April 1978, the E.E.O.C. issued each plaintiff a "right to sue" letter because "more than 180 days have expired since the filing of the charge." The case went to trial in October 1978.

The trial court found correctly that the subsequent issuance of the "right to sue" letters cured any jurisdictional defects. ³ Berg v. Richmond Unified School District, 528 F.2d 1208, 1212 (9th Cir.1975). Although the case was filed prematurely, the "right to sue" letters issued before trial. There is no evidence that early filing of the Title VII claim precluded the state from performing its administrative function. Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218-1219, n. 6 (5th Cir.1982). Premature suits are always subject to a motion to dismiss and there was none here. Id. at 1218. Further, defendants have made no showing of prejudice. Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972).

CLASS CERTIFICATION

Blocker, Graham and Wrighten initially sought to bring this action as a class action. The trial court refused to certify the class, primarily because it doubted that plaintiffs' counsel would adequately represent the class. The court enumerated a number of deficiencies on the part of counsel. Counsel did not move for class certification until 90 days after the case had been filed, when the motion should have been filed within 60 days; ⁴ he instructed his clients not to answer pertinent questions within the scope of Emanuel's discovery; he did not properly respond to requests for discovery; he disrupted depositions with inappropriate comments; he apparently did not associate local counsel as required by Local Rule 110-2(b) The court cited other reasons for its decision, including the difficulty that Blocker, Graham and Wrighten had in furnishing factual information about discrimination against other members of the class; their lack of the minimum financial ability to carry a class action until it could generate other support; and their response to Emanuel's detailed attack on their ability to serve as class representatives with bare assertions reciting the language of Fed.R.Civ.P. 23(a)(4).

until after filing the class action motion; and his pleadings and interrogatories had an "assembly line" quality that suggested something less than the forthright and vigorous approach required of counsel in class actions.

This court will not overturn denial of class certification unless the trial court abused its discretion. Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983). Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir.1977). A trial court correctly considers the competence of counsel when deciding to grant or deny class certification. Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir.1975). See also, Al-Jundi v. Rockefeller, 88 F.R.D. 244, 248 (W.D.N.Y.1980); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 486 (N.D.Cal.1978).

The magistrate's findings and recommendation, adopted by the trial...