33 Fair empl.prac.cas. 286, 32 Empl. Prac. Dec. P 33,912 Ora Dell Redditt, Individually, and on Behalf of All Other Similarly Situated v. Mississippi Extended Care Centers, Inc.33 Fair empl.prac.cas. 286, 32 Empl. Prac. Dec. P 33,912 Ora Dell Redditt, Individually, and on Behalf of All Other Similarly Situated v. Mississippi Extended Care Centers, Inc.
Ora Dell Redditt, a black nurse‘s aide at Care Inn Nursing Home in Grenada, Mississippi (Care Inn Grenada), brought this action against defendant, Mississippi Extended Care Centers, Inc., alleging that she was discriminatorily discharged on the basis of her race in violation of Title VII of the Civil Rights Act of 1964,
I. Background
Care Inn Grenada is a nursing home operated by defendant Mississippi Extended Care Centers, Inc. since February 1971. Care Inn Grenada hired plaintiff Redditt as a nurse‘s aide in August 1972. Almost five years later, on July 14, 1977, a charge was brought against plaintiff by Norene Clements, a nonemployee sitter at the nursing home. Clements alleged that plaintiff hit the back of a male patient‘s hand with his shoe because he was trying to help himself have a bowel movement. Plaintiff denied striking the patient. Plaintiff‘s and defendant‘s versions of the details of the incident vary greatly. Briefly, plaintiff and Earline Jones, another nurse‘s aide, had helped the patient to the bathroom when a patient across the hall called out to Jones to get him some ice. Jones left the room for a minute or less to get the ice and when she returned Clements was standing in the doorway or was on her way out of the room. Clements had entered the room to ask plaintiff to help her put Clement‘s patient, who was оn the same floor as plaintiff‘s patient, to bed. The physical abuse of plaintiff‘s patient allegedly occurred during the brief interval when Jones had left the room. Another patient, John Morris, shared the room with plaintiff‘s patient, but a curtain separated the two men so that Morris could not have seen what actually happened. Clements testified that when plaintiff‘s patient began yelling after he was struck, both Sue Harris, a licensed practical nurse (L.P.N.), and Jones rushed back to the room. Harris had been in the room previously to give plaintiff‘s patient his medicine, but the testimony varied as to when Harris was in the room. Plaintiff contends that when Jones returned to the room, Harris was also present. Harris testified that she did not witness the incident but reported that she examined the patient‘s hand as soon as the incident was reported to her and again the next day. On her first examination she found the patient‘s hand to be red and on the second examination she found a bruise.
Clements reported the alleged incident to Harris, and Harris reported it to Larry Parks, the administrator at Care Inn Grenada. That evening Parks called plaintiff into his office to discuss the incident. Plaintiff denied striking the patient and requested that Parks call all people involved to his office, especially Clements. In addition to talking to Sue Harris about the incident, Parks talked to Jones who stated that she did not see plaintiff strike the patient. According to Jones, Parks did not ask her any other questions about the incident. Parks testified that he also talked to Morris who stated that he did not see plaintiff strike the patient but that he did hear the patient yell. Parks did not question Clements about the incident until after the E.E.O.C. investigation had begun and offered no explanation for his not doing so.1 Parks testified that he did not question the patient about the incident because Parks felt that he was too senile to know what had happened. According to Parks, he did not want to make a snap judgment and took the matter under advisement. According to plaintiff, Parks told her to forget about the incident.
On July 24, 1977, рlaintiff was involved in a second incident which was reported to Parks by Sue Harris. Harris’ version was that she gave plaintiff an order which plaintiff initially refused to obey. According to Harris, she asked plaintiff to get some help to bring a male patient who had wandered out of the building back into the nursing home; plaintiff responded that she was tired of the whole business and didn‘t care if the patient got back inside, but eventually did go get several aides to help Harris. Plaintiff denied refusing to assist Harris. According to plaintiff, Harris and another L.P.N., Lois Johnson, had told plaintiff that they would tend to the patient and if he got outside they would let plaintiff and other aides know about it. While plaintiff was putting a tray on a cart in B Wing, Annie Jones, another nurse‘s aid, told plaintiff that Johnson had said the patient had gotten outside and they needed assistance in getting him back inside. Jones and plaintiff then took the geriatric chair outside where Harris, Johnson, and the patient were waiting. Plaintiff claimed that two other aides and another L.P.N. were also present. Plaintiff testifiеd that she then assisted in bringing the patient back inside. Annie Jones’ version was basically the same as plaintiff‘s, although on cross-examination Jones conceded that she could not know whether plaintiff had already been outside before Jones came to B Wing to solicit plaintiff‘s help.
Following this second incident, Parks called plaintiff into his office; she denied the charge of insubordination to Harris. According to plaintiff, when she asked Parks to call in the witnesses to the incident, he responded that he did not have time to be bothered. Parks then sent plaintiff home. Ten days later, on August 4, 1977, he called plaintiff back to his office to talk. According to plaintiff, Parks said that he would have a witness present. When plaintiff arrived, however, and asked where the witness or witnesses were, Parks replied that he did not “need any damn witnesses.” Parks did not deny making this statement, although he did deny using abusive language in that particular context.2 At trial Parks did not make any claim that he interviewed witnesses to this incident. Annie Jones testified that Parks never questioned her about the incident. During the meeting of August 4, Parks terminated plaintiff on the basis of the two charges against her--physical abuse of a patient and insubordination. Plaintiff asked Denver Northrip, the area nursing home administrator, to look into the matter. Northrip, however, testified that he simply relied on the information Parks had given him about plaintiff‘s discharge and did not interview any of the persons involved.
In that same month, August 1977, plaintiff filed a charge of discrimination with the E.E.O.C. and received a right-to-sue letter in August 1979 and the E.E.O.C.‘s determinatiоn of reasonable cause to believe plaintiff was discharged on the basis of her race in violation of section 704(a) of Title VII. On November 5, 1979, plaintiff brought this suit as a class action, asking for declaratory relief, injunctive relief, reinstatement in full, damages, and costs. Plaintiff‘s complaint alleged that defendant discharged plaintiff because she was black, under the pretext of physical abuse of a patient and insubordination. Her complaint also alleged that defendant maintained an оn-going policy, pattern, and practice of discrimination against blacks in hiring, discharging, promoting and other employment practices. Plaintiff sought to represent a class of blacks pursuant to
On February 11, 1981, after an evidentiary hearing, the district court rendered a bench opinion conditionally denying class certification. The order was entered on February 12, 1981. The court refused to certify the class on the basis of the insufficiеncy of plaintiff‘s evidence to show that defendant practiced racial discrimination. The court stated that plaintiff must establish by a preponderance of the evidence that defendant practices racial discrimination in order to bring an action in favor of a class.
At trial plaintiff relied largely on statistics to establish that a class of blacks existed which had been subjected to disparate treatment by defendant. To prove her individual claim plaintiff presented evidence оf white employees who engaged in conduct which constituted grounds for termination according to defendant‘s rules and yet received several warnings (disciplinary actions) prior to termination or received thorough investigations of the charge prior to termination.3 Plaintiff presented evidence that she had had an unblemished work record for almost five years until the two incidents for which she was terminated occurred in July 1977.
The judge who presided at the hearing died before the trial began. After reviewing а transcript of the class certification hearing and hearing plaintiff‘s additional class proof, the district court refused to reverse the denial of class certification. As reasons for the decision, the court cited an insufficiency of proof of disparate treatment between blacks and whites in defendant‘s various employment practices. The court also rejected plaintiff‘s individual claim of discrimination, finding that defendant had successfully rebutted plaintiff‘s prima facie case of discrimination by articulating a legitimate reason for plaintiff‘s discharge and that plaintiff had failed to prove that defendant‘s reason was a mere pretext for racial discrimination.
On appeal plaintiff challenges both the dismissal of her individual claim and the denial of class certification. With respect to her individual claim, she argues that defendant did not rebut her prima facie case, or alternatively, that she demonstrated that the reasons proffered for her termination were pretextual. With respect to her class claim, she argues that the district court erred in failing to evaluate her class claim under
II. The Individual Claim
In a disparate treatment case involving an individual‘s claim of discriminatory discharge, the plaintiff initially bears the burden of proving a prima facie case of discrimination. If the plaintiff succeeds, the burden of production shifts to the employer to rebut the presumption of discrimination by producing evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason. If defendant successfully rebuts the presumption of discrimination, the plaintiff must demonstrate that the proffered reason was not the true reason for plaintiff‘s discharge but was instead a mere pretext for discrimination. Throughout the trial the plaintiff bears the ultimate burden of persuasion that she has been a victim of intentional discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Findings of discrimination and discriminatory intent are subject to the clearly erroneous standard of review. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).
The district court found that plaintiff had met her burden of establishing a prima facie case of disparate treatment under the principles of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court further found that defendant had articulated legitimate reasons for plaintiff‘s discharge--physical abuse of a patient and failure to follow the instructions of a superior. Plaintiff‘s contention that defendant failed to rebut her prima facie case is not well-founded. All the employer need do is to raise a genuine issue of fact as to whether it discriminated against the plaintiff. Burdine, 101 S.Ct. at 1094. The defendant raises а factual issue by introducing into evidence a clear and reasonably specific legally sufficient explanation for the discharge of the employee. Id. In the instant case the two reasons given--physical abuse and insubordination--justified plaintiff‘s discharge according to defendant‘s policy as stated in the employee handbook. Indeed, the defendant need not persuade the court that it was actually motivated by its proffered reasons for discharge; defendant need only raise a genuine factual issue by clearly explaining the nondiscriminatory reasons for its actions. Id. 101 S.Ct. at 1094 and 1097.
Plaintiff‘s contention that the district court erred in not finding that defendant‘s proffered reasons for her discharge were in fact pretext raises cause for concern. The plaintiff succeeds in demonstrating that defendant‘s proffered reason was not the true reason for her discharge “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by shоwing that the employer‘s proffered explanation is unworthy of credence.” Id. 101 S.Ct. at 1095. To show pretext plaintiff introduced evidence of numerous white employees who engaged in conduct constituting cause for dismissal and yet only received warnings or disciplinary actions. Plaintiff also introduced evidence that several blacks were terminated after their first infraction of the rules without receiving prior warnings. In addition, plaintiff introduced evidence that a white nurse‘s aide who had also been dischargеd for physical abuse of a patient received a thorough investigation of the incident, including statements taken from all eyewitnesses, prior to her termination. In an effort to rebut plaintiff‘s evidence of pretext defendant presented evidence that whether an individual received a warning prior to termination depended on the degree of insubordination; that the two employees--plaintiff and a white--who physically abused patients were both discharged; that a black employeе who was terminated had failed to contact the area administrator as he had been instructed to do;4 that two other black employees were warned and not immediately terminated.5
Thus, both plaintiff and defendant presented evidence relevant to the crucial issue of pretext. The district court, however, made no more than a conclusory finding on this issue. The court stated: “A number of both black and white employees have testified in this case that blacks were not treated any differently thаn whites.” This conclusory finding in no way indicates the factual basis for the court‘s conclusion. Indeed, most of the statements by witnesses that blacks and whites were treated alike were merely conclusory statements given in response to the general question whether both races were treated the same. Some of these statements were directed to issues other than discriminatory discharge, e.g., discrimination in hiring. None of these statements were directed specifically to the issue at hand--discrimination in disсharge demonstrated through inadequate investigations of incidents involving blacks or no warnings given to blacks.6
III. The Class Claim
Plaintiff contends that the district court erred in denying class certification in that the court applied an incorrect standard--a preponderance of the evidence standard--to make the
Before considering plaintiff‘s contentions, this Court notes that General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) prohibits рlaintiff, who alleges only discrimination in discharge, from mounting an across-the-board attack on defendant‘s employment practices. Under Falcon, plaintiff cannot serve as class representative with respect to hiring, promotion, or any other employment practices excepting discriminatory discharge because she does not possess the same interest and did not suffer the same injury as the other members of the class. Accordingly, she cannot meet
The decision to grant or deny certification is initially committed to the sound discretion of the district judge and will not be overturned except for abuse of discretion. Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir.1982). The judge must determine whether the case meets the four prerequisites of numerosity, commonality, typicality, and adequacy of representation specified in
But that does not excuse the plaintiff for lack of evidence which satisfies the court that there has been at least some racial discrimination in the practices of the defendant.
It would be unfair to this defendant to bring it into court and to require them to defend a class action suit unless the plaintiff has produced sufficient proof upon which the court can hold that the plaintiff has met the burden of proof as required under the laws.
He concluded his conditional denial of the motion for class certification by stating that plaintiff had failed to meet her burden of showing to his satisfaction that the defendant practiced racial discrimination.
Defendant concedes that the district judge‘s “preponderance of the evidence” language is unfortunate but argues that this was a mere error of terminology. This Court cannot agree. The reference to
Defendant next urges that even assuming error in the standard applied by the district judge at the class certification hearing, this error was corrected by the trial judge. The statements of the district court in its memorandum opinion of September 13, 1982, however, indicate that that court also evaluated plaintiff‘s
The Supreme Court has made it abundantly clear that the district court must give careful attention to the requirements of
The District Court‘s error in this case, ... is the failure to evaluate carefully the legitimacy of the named plaintiff‘s plea that he is a proper class representative under
Rule 23(a) .* * *
* * *
[W]e reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of
Rule 23(a) have been satisfied.
Falcon, 102 S.Ct. at 2372 and 2372-73.
In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of
Rule 23 are met.
Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974). Of course, as the court stated in Falcon, “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff‘s cause of action“, id. 102 S.Ct. at 2372, and this Court is well aware that in an employment discrimination case the district court must interpret
The judgment of the district court is vacated and the cause remanded for proceedings not inconsistent with this opinion.
VACATED AND REMANDED.