This is the second appeal in this class action employment discrimination case. This appeal presents the question whether it was proper for the District Court to deny class certification on remand after the former Fifth Circuit reversed the District Court’s judgment against the class on the issue of liability. We conclude that the District Court should not have decertified the class; therefore, we reverse and remand for consideration of the claims of the members of the class for back pay.
I.
The named plaintiffs brought this Title VII class action in 1975 claiming racial discrimination by the Public Works Department of the City of Anniston in failing to promote qualified black employees. The District Court bifurcated the issues of liability and damages and decided the issue of liability only. In the original suit the District Court fоund that the City Civil Service Board used written examinations for the purpose of evaluating employees for promotion and that the use of the exams had a racially disproportionate impact on black employees. But the District Court held that in order to establish a case of employment discrimination against a state or local government there must be proof of discriminatory intent, a burden the plaintiffs had failed to satisfy. The District Court also held that two of the named plaintiffs, Mack Scott and Earnest Hall, failed to prove their individual claims of racial discrimination.
The former Fifth Circuit reversed in part and affirmed in part. The court concluded that the District Court had applied an improper legal standard requiring the plaintiffs to prove intentional discriminаtion and held “that proof of intentional discrimination is not essential to recovery in a Title VII action even when the employer is a governmental agency.”
Scott v. City of Anniston,
On remand the defendants moved for a redetermination and decertification of the class. When the case was originally in the District Court the plaintiffs had proposed the following stipulation, accepted by the defendants:
For purposes of this action the class for litigation is defined as all past, present and future Black employees of the Public Works Department of the City of Anni-ston, Alabama, who have been employed since December 6, 1972.
The Court finds that this class action meets the requirements of Rule 23(a) and (b) and that the named plaintiffs have standing to raise the issues for purposes of injunctive relief and backpay (but not as to future employеes) to which they are or may be entitled.
The District Court had adopted this stipulation as a definition of the class. No eviden-tiary hearing was conducted to determine whether class action treatment was appropriate. Beyond adopting this stipulation and incorporating it within its findings of fact the District Court did not specifically designate the class as a Rule 23(b)(2) action for injunctive rеlief or a Rule 23(b)(3) action for damages. The suit was simply treated as an action for injunctive and other appropriate relief.
On remand the District Court noted that “the initial certification of the class was not given careful attention.”
Scott v. City of Anniston,
The District Court ordered that an evi-dentiary hearing be held to consider the question of class treatment. Class members were notified that they were entitled to appear at the hearing and present any objections. One class member individually filed a notice with the court that he objected to the motion to reevaluate class status and a petition was filed which objected to decertification and requested “that our damages be determined as soon as possible.”
At the hearing the District Court received evidence to resolve several related questions: Whether any of the named plaintiffs were apрropriate class representatives or alternatively whether anyone else could be substituted as the class representative or whether there could be class treatment without a representative; whether there was a class within Rule 23(b); and whether there was a live controversy. After the hearing the District Court made findings of fact on each of these issues, resolving each disputed issue against the continuance of the class.
The District Court found that none of the named plaintiffs was an appropriate class representative for a variety of reasons, including the fact that none of the three named plaintiffs are now eligible for promotion because none is now employed by the city and none questions in this case the termination of employment. Mack Scott was not an appropriate representative, the court found, because he voluntarily left his employment with the defendant for another job more than one year before the filing of this action. The court reasoned that an individual who attached more importance to his employment with another employer than to his job with the defendant was likely to inadequately represent the interests of a class composed of employees of the defendant.
Second, the District Court found that Earnest Hall, who never had applied for promotion while an employee of the defendant, did not satisfy the requirements of typicality and commonality with the class claim of discrimination in promotions. Mr. Hall’s testimony indicated that his сlaims were highly individualized. Moreover, the court found that he lacked understanding as to the nature of the case and was not a credible witness.
Third, the District Court found that Edward Spears was not a proper representative of the class because he did not have sufficient interest in his employment or the lawsuit to prosecute vigorously the interests of the class. The court considerеd the fact that Spears did not testify at the trial an indication that he lacked an active interest in the lawsuit. The court concluded that the limited evidence as to Spears’ individual claims suggested that at best he had no more than a “limited and speculative claim” of employment discrimination.
Therefore, the District Court held that none of the named plaintiffs were proper representatives. The court also held that no one else could be treated as a class representative because there was no request by anyone to intervene and no one else came forward to be substituted as a class representative.
Moreover, the court provided two additional reasons the class should be decerti-fied. The stipulation adopted by the court did not specify whether the class satisfied the requirements of subdivision (b)(2) or (b)(3) of Rule 23. Rule 23(b)(2) cases are those in which the primary relief sought is injunctive or declaratory whereas in Rule 23(b)(3) suits the primary relief is monetary. The court found that “there is no sustainable theory on which injunctive or declaratory relief could be sought” because the use of written promotional examinаtions had been discontinued since at least 1975.
Finally, the court held that because there was no class representative and no basis for injunctive relief the class must be dismissed for lack of a continuing controversy. The issue on appeal is whether the District Court erred in its decision to decertify the class after the case had been tried, appealed and reversed and remanded by the former Fifth Circuit.
II.
The District Court gave three reasons for its decision to dismiss the class action: (1) there was no proper class representative; (2) the class was not properly certified under any subsection of Rule 23(b); and (3) there was no continuing controversy. We examine each of these points in order.
A.
(1,2] Assuming that the District Court is correct in its findings that none of the named plaintiffs is now an adequate class representative, this finding does not necessarily destroy the class action after certification and trial on the question of liability to the class. In
East Texas Motor Freight System, Inc. v. Rodriguez,
In a footnote in Rodriguez the Supreme Court noted that the result would be different if the class had been certified before the plaintiffs’ claims had been found to be un-meritorious.
Obviously, a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives. In such a case, the class claims would have already been tried, and, provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyеd because subsequent events or the proof at trial had undermined the named plaintiffs’ individual claims. See, e.g., Franks v. Bowman Transportation Co.,424 U.S. 747 , at 752-757,96 S.Ct. 1251 , 1258-1261,47 L.Ed.2d 444 ; Moss v. Lane Co.,471 F.2d 853 , 855-856 (CA4).
Id.
This case fits the footnote in Rodriguez. The claims common to the class were fully presented at trial and on appeal. The District Court certified the class when it adopt *1357 ed the stipulation of class treatment. The representation of the class was complete for all practical purposes. There is no indication that the representation was deficient or less than vigorous. To decertify at this late date actually has the effect of denying the class adequate representation rather than insuring it.
The Fourth Circuit recently noted that [t]he determination of inadequacy [of class representation] .. . may have been concerned only with a technical lack of identity of interest and injury between representative and class, e.g., Hill v. Western Electric Co.,596 F.2d at 101-02 , or only with the actual ineffectiveness of a technically qualified representative, e.g., Nance v. Union Carbide Corp.,540 F.2d 718 (4th Cir. 1976), vacated and remanded on other grounds,431 U.S. 952 ,97 S.Ct. 2671 ,53 L.Ed.2d 268 (1977), or with both, e.g., East Texas Motor Freight System, Inc. v. Rodriguez,431 U.S. at 405 ,97 S.Ct. at 1898 . To the extent inadequacy is based solely upon lack of sufficient identity of interest, any presumed adverse effect on the merits stemming from this may in fact be utterly belied by the outcome.. ..
Hill v. Western Electric Co.,
Furthermore, we note that Rule 23(c)(1) which authorizes a court to “alter or amend” a class determination “before the decision on the merits” does not appear to permit a court, absent unusual circumstances, to amend the class
after
a decisiоn on the merits. In this case the common class claims related to liability were resolved by the former Fifth Circuit in favor of the class. The Fifth Circuit rejected the requirement imposed by the District Court that the plaintiff class prove intentional discrimination by the city. Instead the court held that the “disparate impact” standard of
Griggs v. Duke Power Co.,
B.
The stipulation of class treatment adopted by the District Cоurt did not specify whether the class was regarded as an action for injunctive relief under Rule 23(b)(2) or for monetary damages under subsection (b)(3). The class claim consisted of an attack on the use of written promotional examinations. The District Court has found that after the lawsuit was filed the defendants stopped using the challenged examinations. It concluded that the case continues solely as a suit for damages, not for injunctive relief, and had to be dismissed because there was no evidence that 23(b)(3) treatment was appropriate.
At the time the suit was brought the conduct of the defendant, i.e., use of invalid promotional examinations, in the language of Rule 23(b)(2), was actionable “on grounds generally applicable to the class” and the injunctive relief sought was “relief with respect to the class as a whole.” The class shared the common characteristic of being subjected to the same discriminatory practice and, therefore, presumably had the cohesiveness typical of 23(b)(2) actions. The class was thus well suited for Rule 23(b)(2) treatment. The fact that damages in the form of back pay was also sought “is not inconsistent with the maintenance of a Rule 23(b)(2) class action,” and the class members must “raise their claims before the court in such an action or be forever barred.”
Bolton v. Murray Envelope Corp.,
C.
Finally, the District Court decertified the class on the grounds that there was no continuing controversy between the class and the defendant. The court relied upon its сonclusion, discussed above, that there was no appropriate class representative and the fact that no one moved to intervene or be substituted for one of the named plaintiffs. We have concluded this was error. Second, the court reasoned that because injunctive relief was unnecessary there was no continuing controversy. The fact that injunctive relief is no longer necessary because the city no longer uses the tests in question does not demonstrate the absence of a continuing controversy. As discussed above the suit may continue as a Rule 23(b)(2) action although the primary relief now sought is back pay. See the Bolton and Wetzel cases, supra.
III.
Accordingly, we hold that the District Court erred when it decertified the class after all common issues of liability to the сlass were litigated at trial and on appeal. Our decision to reverse and remand for further proceedings does not foreclose consideration of unlitigated non-common issues *1359 such as causation in the presentation of individual claims for back pay.
The action is therefore remanded to the District Court for consideration of the claims of the members of the class for back pay.
REVERSED and REMANDED.