Charles E. Wagner, for Himself and Others Similarly Situated v. Reese H. Taylor, Jr., Chairman, Interstate Commerce Commission

Before STARR, ROBINSON and Circuit Judges, BRYANT,* Senior Judge. District Opinion for the filed Circuit Judge ROBINSON. Concurring Opinion filed Circuit Judge STARR. ROBINSON,

SPOTTSWOOD W. III, Circuit Judge: On appeal this Wagner —his second1— complains of the District Court’s denial seeking his motion a preliminary injunction restraining his employer, the Interstate (ICC), Commerce Commission alleged against discrimination its profession- black al, administrative, and employees technical graded GS-9 above.2 disposition This predicated was upon a ruling, simultaneous which Wagner challenges, also rejecting his motion for certification of employ- those ees as a class on permanent whose behalf injunctive type relief that could be sought.3 For reasons articulated here- in, we affirm. Background

I. proceedings Since the in the District Court will be examined in detail as further warrants, discussion an overview suffices Wagner, E. pro Charles se. Wagner here. employee is a black ICC * Of the der), United States (A. District Court for Appendix Appellant (A) the Dis- App.) A for Columbia, sitting by trict designation pursu- Injunctive parties [hereinafter Order]. The 294(d). ant to 28 U.S.C. § separately-paginated have appen- submitted capital parentheses dices. preced- letter in Wagner I), Taylor (Wagner ing page 1. See v. appendix number indicates the (D.C.Cir.1987) which (appeal reference is made. pre- from denial of liminary injunction against during retaliation pendency litigation); Wagner Taylor (Wag- II), 3.Wagner Taylor (Wagner Civ. No. 82-0444 III), (D.C.Cir.1987) ner (appeal F.2d 596 (D.D.C. 1983) (memorandum), App. Nov. A. claims). from dismissal of retaliation (A) 3-20 [hereinafter Memoran- Certification ]; II), Wagner Taylor (Wagner dum No. Civ. Wagner II), Taylor (Wagner (D.D.C. 1983) (order), Civ. App. No. 82-0444 82-0444 (A) Nov. A. (D.D.C. 8, 1983) (memorandum Nov. and or- 21 [hereinafter Order]. Certification promoted Originally might was not when he the senior executive service.4 otherwise been;9 he has attorney unfairly trial have that been rat- hired as a senior ICC ed; supervisory approximately eighteen authority and that he left after elsewhere, Wagner been undermined.11 but was rehired has has also months to work charged Deputy broadly Di- more that he has suffered August, ICC general pattern practice from a agency’s in the Of- ra- rector for Enforcement Assist- cial discrimination at ICC.12 Compliance and Consumer fice of ance.5 Wagner These claims —individual

Wagner encountered a number developed —have not been before the Dis which he attributes problems at ICC pleading His trict Court.13 initial During the course case, racial discrimination. denominated a “class action com alleged he litigation, he has that when plaint,” alleged cited instances dis not allowed to hired he was against Wagner,15 was first crimination but its aver select subordinates;6 later he was primarily certain ments of ICC’s treatment of were powers of his permitted group,16 to exert its not black as a and it discipline employee;7 requested declaratory injunctive office to a white relief anonymous in- investigated Wag he on behalf of the class rather than for charge bribery;8 that he ner alone.17 moved for class certi- formant’s false Affidavit, App. A. ¶ Certification 110-111; (A) (A) Complaint Complaint, supra Action Class Action see Class II, Injunctive Declaratory Relief ¶ ¶ (filed 17, 1982), (D.D.C.) Feb. Civ. No. 82-0444 Complaint, supra 12. Class Action ¶ A.App. Class Action Com- 74-75 [hereinafter (A) Wagner alleged additional discrim- plaint]. inatory Reply incidents in his to Defendant's Action, Response Certify to Motion to Class 3, supra note 5. See Certification II, (D.D.C.) (filed Wagner Aug. Civ. No. 82-0444 2-3, 3-4; 1-2, (A) App. Deposition A. of Charles at 2, 1982) (A) App. at A. 116-117 [hereinafter II, Wagner, Wagner Elliot Civ. No. 82-0444 Reply], including charge that he encountered (filed 22, 1982), (R. Sept. Record Document process through in the which discrimination he Doc.) Wagner Deposition]. 60A [hereinafter present job. filing was hired for his Id. Before suit, Wagner pressed agency his claim at the 4, 16, Complaint, supra 6. Class Action note A. ¶ through complaint process level and 5, (A) 78; App. Wagner Deposition, supra, note Equal Employment Opportunity Commission at R. 60A. Doc. (EEOC). See note 56 infra. Complaint, Wagner 7. Formal Class Action ¶ procedural posture 13. Because of of this ICC, (Balti EEOC Case No. 033-082-X2038A case, developed no "facts at the trial of the Office) (filed 1981), App. more Dist. Oct. A. plaintiff’s] individual claims" are available for (A) Complaint]; Formal see [hereinafter our review on the issue of class certification. ICC, Wagner v. EEOC Case No. 033-082-X2038A Freight Sys., See East Tex. Motor Inc. v. Rodri- (Baltimore 1982) (decision) Dist. Office Jan. guez, 431 U.S. 406 n. (Ae. (C) Appendix Appellee App.) at C for 463 n. 12 130-140, Wagner Deposition, supra note at R. Complaint, supra 14. Class Action A. Doc. 60A. (A) App. Complaint, supra Class A. Action ¶ 13, 15-18, 25-26, (A) App. 15. Id. A. 77-80. ¶¶ (A) 78; App. Wagner Deposition, supra note 228-232, investigation R. Doc. 60B. This 7-12, 18-24, (A) App. 16. Id. A. 75-79. ¶¶ Wagner any wrongdoing. cleared Relief, (A) Prayer App. 17. Id. for A. 80-81. 9-11, Wagner Wag- See Affidavit of Charles ¶¶ Wagner is some has no There indication that II, (D.D.C.) (filed ner Civ. No. 82-0444 June proceed if desire to on his individual claims 1982), (A) App. Wagner A. Affi- [hereinafter refusing court affirms the tion, class certifica- order davit]. II, (D.D.C. Wagner Civ. No. 17, 1984) (order), May reproduced as Attach- (A) that, App. rating 10. Id. A. 110. The Appellee, ¶¶ ment B to so, for but even if Brief Wagner lodged complaints bearing today. occurred after had decision has no on our extant, Wagner though of racial discrimination with ICC. held "in Those claims are now abeyance pending also asserted these claims in the Class Action the decision of the Court id., notwithstanding Complaint, supra Appeals,” what their ¶[ shortly after his suit was with statistics on representation fication black in upper echelons of agency.21 brought.18 While the District considering Court was complaint and his motion for certification, request for class ICC dis- alleged widespread class certification dis- Wilson, charged Thomas a black GS-12 against crimination black workers at ICC— specialist contract within the class hiring, promotion, and other terms and Wagner hoped represent.22 Wagner of employment conditions violation of —in then preliminary injunction23 moved Rights Title VII of the Civil Act 1964.19 charging that he was fired because of his Wagner plain- asked for certification of a complaints to ICC racial discrimination.24 composed profession- tiff class of all black Wagner sought reinstating an order Wil- al, technical and administrative son, enjoining reprisals against ICC from above, positions graded GS-9 and and all Wagner potential members, and other applicants positions.20 for those black Af- affording insuring relief an environ- completion discovery, Wagner sup- ter ment reprisal.25 free from opposed ICC plemented class-certification motion motion, asserting Wagner had no complaints a citation of discrimination standing represent Wilson,26 and that equal employment filed in ICC’s office and discharged event Wilson had not been Moreover, (Office Management) future status be. were the class tin No. 292-7 of Personnel 29, 1981), very (July reproduced certified—the matter determined —the liti- Attachment as gation presumably will continue. We thus re- Exhibit B to Affidavit of Richard H. Mooers (filed ject argument, 1982), Appellee support ICC’s see Brief for June of Defendant’s 15-22, forego Opposition that a mere intention to individual Memorandum in to Plaintiffs Mo- Class, II, Certify if the is not relief certified somehow di- tion to (D.D.C.) Civ. No. 82-0444 (filed 1982), power July vests this court of to consider and resolve R. Doc. 39 [herein- Affidavit]; 18-19, the issue on class certification. after Mooers id. R. Doc. 39. ¶¶ Class, II, Certify Plaintiffs Motion Motion, Supplemental (D.D.C.) (filed 1982) Civ. No. 82-0444 June (A) 146-148. 22. Motion for Temporary Restraining Order Pub.L. No. VII, tit. 78 Stat. II, Preliminary Injunction Civ. ¶ by Equal Employment Opportunity extended (D.D.C.) (filed 1983), Sept. No. 82-0444 R. Act of Pub.L. No. 86 Stat. 103 Injunction Doc. 92 [hereinafter Motion]. (codified as amended at 42 U.S.C. 2000e et §§ (1982)). seq. Wagner also claimed that ICC’s 23. Id. motion, R. Doc. In 92. the same ¶ impinged upon of conduct course has Exec. Wagner temporary restraining also asked for a (1969), 12,985, Fed.Reg. Order No. 11478 order, Court, stating which District that "im- reprinted following amended U.S.C. irreparable injury” lacking, minent was denied (1982). Complaint, supra § 2000e Class Action day filing. on the Id. at R. Doc. 92. 1, 18-21, (A) Wag- App. A. 78-79. ¶¶ complaint ner’s engaged further asserted that ICC has 24. Id. R. Doc. 92. ¶¶ pattern practice in a and of racial dis- crimination its "virtual exclusion” of black Id. at 5-6, claimed, Wagner R. Doc. 92. on high-level positions, employees from id. A. ¶ grounds, right First Amendment a to an "envi- (A) App. differently and has treated them reprisal.” ronment free from 29, Id. ¶¶ employment the terms and conditions their 92; Surresponse R. Doc. see also to Defend- by denying training, supervisory support them Surreply Opposition Mo- ant's Plaintiffs (A) ¶20, "authority,” App. id. A. 78. 6,5, II, Preliminary tion for Relief ¶¶ (D.D.C.) (filed 1984), 20. Civ. No. 82-0444 Nov. R. Wagner originally consist- envisioned Doc. 103. ing simply professional of technical and em- ployees. Complaint, supra Class Action 26. (A) App. Opposition Injunc- A. He his to Plaintiffs 75-76. later broadened Motion for ¶ employees. Sup- Requiring bid to include administrative tive Relief Reinstatement of Thomas Certification, plemental Wag- Motion Class Wilson While the Certification Motion is Pend- for II, II, (D.D.C.) (filed (D.D.C.) (filed ing, Wagner ner Civ. No. 82-0444 Mar. Civ. No. 82-0444 15-20, 1983), (A) 1983) (B) App. App. Supple- A. Oct. A. [hereinafter [herein- "technical,” Indeed, "pro- Injunction Opposition]. mental The words after Wilson Motion]. litigated discharge fessional” and "administrative” are defined in on his own. See Brief for System, Appellee Federal Personnel Manual FPM Bulle- at 11 n. note 123 infra. requires authorized to improperly.27 us to first conduct — Wagner’s ascertain whether pro- suit can separate issued two The District ceed as a class action rather simply than on Wagner’s motion for orders. One denied basis. individual ordered that the action certification proceed solely Wagner’s on individual appellate jurisdiction Federal vis-a order Accompanying this claims.28 primarily vis district courts extends to “fi explaining the basis for the memorandum nal decisions” of those courts.34 But Con rejected The order court’s action.29 second gress has exceptions prop ordained to this injunction preliminary the motion for on osition, premised litigants on the need of consequence ground Wagner, effectually challenge “to interlocutory or order, standing no to seek the first had conseq serious, perhaps irreparable, ders of of the class.30 relief on behalf statutory exception Since the uence.”35 appealed from both orders.31 relevant here —Section 1292(a)(1) specifi — jurisdiction cally argues jurisdiction upon that we have no confers ICC courts of certification,32 appeals interlocutory consider the issue on class to review orders re ruling urges fusing injunctions,36 on the authority affirmance of our to exam sought-after injunction.33 rejection Wag ine the District Court’s preliminary injunctive

ner’s motion for re lief cannot be doubted.37 II. Jurisdiction must, outset, then, determine wheth- dispute, We at the What remains power er to consider the District we we have whether also consider the court’s disposition Court’s motion for denial of class certification.38 The Su do, preme that we class certification. We hold Court has made clear that an order certification, prelimi- withholding the court’s standing review of refusal alone, injunction clearly Court, nary appealable.39 review we is not how- —a 1292(a)(1) (1982). Injunction Opposition, supra, note § 27. at 32- 36. 28 U.S.C. 84-86, (B) App. A. ICC advanced several grounds injunctive Vance, E.g., additional lief, for denial of re- U.S.App.D.C. Adams v. including alleged failure Flight Eng'rs’Int’l Wilson's to ex- remedies, 20-23, Bd., U.S.App. haust his administrative id. Ass'n v. National Mediation 72-75, (B) App. jurisdiction a lack of to order D.C. relief, 75-78, (B) App. such id. at relief, warranting an absence of conditions such Wagner's appeal ruling prelimi- on (B) App. id. at 78-87. nary injunction focuses whether class certifi- properly Appel- cation was withheld. Brief for Order, (A) supra note A. Certification lant at 24-28. ICC contends that we are without jurisdiction question. to entertain that Brief for notes, however, Appellee at 22-26. note A. Certification agency argued it was the itself that before the injunction District Court that the should be re- ground represent fused on the that he could not Order, Injunctive note A. certified, attempting the class he was Reply to have 1-2. Appellant position Brief for at 16-18—the Appellant Injunction Opposition, 31. Brief for at 4. ICC advanced in its su- 26, 15-20, (B) pra at Appellee 32. Brief for at 22-26. Co., Westinghouse Broadcasting 39. Gardner v. Appellee Brief for at 26-33. 35, supra note 437 U.S. at 98 S.Ct. at 367-368; Coopers 57 L.Ed.2d at & (1982). 34. 28 U.S.C. 1291 § 463, 477, Lybrand Livesay, v. 437 U.S. 98 S.Ct. Contractors, 2462, 2454, 351, Bodinger, (1978). 35. Baltimore Inc. v. 348 57 L.Ed.2d 362-363 In 176, 181, 249, 252, 233, Gardner, plaintiff sought appeal U.S. 75 S.Ct. 99 L.Ed. the under (1955) (footnote omitted); 1292(a)(1) refusing 238 see also Carson § an order class certi Brands, Inc., 79, 83-86, fication, arguing v. practical American 450 U.S. 101 that the effect of that 993, 996-997, 59, (1981); ruling portion S.Ct. 67 L.Ed.2d would be denial of a substantial Co., Westinghouse Broadcasting injunctive sought, Gardner v. 437 U.S. relief 437 at 478, 480, 2451, 2453, U.S. 98 S.Ct. 57 L.Ed.2d 98 S.Ct. at 57 L.Ed.2d at but the trial (1978). respecting court had issued no order such relief.

585 ever, expressly open left question a preliminary injunction, consideration of whether a withholding concomitant of both the denial of a motion for summary judg- class certification and preliminary injunc- ment.44 We stated that provides tive relief a foundation for an “[rjeview quite properly extends to all appeal,40 immediate issue has not matters inextricably up bound with the precisely decision_ heretofore been resolved in this remedial scope of re- [T]he We circuit. are faced with the need to do may view extend further to disposi- allow now, evaluating and in so the relevant case- tion of all appropriately matters raised law, we are mindful of the Court’s admoni- record, including entry of final 1292(a) tion Section “ap- must be judgment. Jurisdiction of the interlocu- proach[ed] gingerly ... somewhat lest a tory appeal large is in jurisdic- measure floodgate opened brings be into the tion to deal with aspects all of the case 41 exception many pretrial orders.” that have been sufficiently illuminated to enable decision by the court of appeals A canvass of the numerous decisions ad- without further trial court develop- dressing scope of review under that 45 ment.” section unanimity reveals substantial that a cautioned, We however, statutorily-authorized that decision appeal from an inter- other aspects of the case must locutory be may open order the door restricted to exami- to those “closely subject related” to the of another nation order not otherwise then the interlocutory appeal appealable.42 authorized.46 One of the many holdings illustrating judicial course is our own Other circuits have echoed the view that in Energy Action Educational Founda- reviewing court address issues v. Andrus,43 tion where we appro- deemed that are “inextricably intertwined”47 or priate, appeal on an from a refusal to issue “substantially interdependent”48 with an 40. Gardner v. Westinghouse Broadcasting appealable order made by 28 U.S.C. § 1292 supra 437 U.S. at 479 n. power 98 S.Ct. at carries with it the to review the merits of 2453 n. case”). 57 L.Ed.2d at 367 n. 3. Cheese Ass’n v. E. Switzerland Home’s Mar Supra note 42. ket, Inc., 23, 24, 193, 195, 385 U.S. 87 S.Ct. 17 L.Ed.2d 25 44. 210 U.S.App.D.C. 654 F.2d at 745. The Supreme Court’s on the reversal merits made no See, alone, Corp. in this Noxell v. circuit any jurisdictional mention of defect in this con- Restaurant, Bar-B-Que Firehouse No. 1 245 U.S. nection. 242, 245, App.D.C. (1985) (on 760 F.2d 315 appeal preliminary injunction, from order on 45. Id. at 30 n. 654 (quoting F.2d at 745 n. 54 ruling review on motion to dismiss for im Miller, Wright, 16 Cooper C. E. & E. Gress proper appropriate); venue is Investment Co. man, (1977)). Federal Practice § at 17 FDIC, 237, 242, Inst. v. U.S.App.D.C. 234 728 (on (1984) appeal F.2d from order Found, Energy Andrus, Action Educ. directing FDIC to determine whether bank U.S.App.D.C. 654 F.2d permitted be could to sell mutual fund shares 746 n. 54. enjoining selling bank from such shares determination, pending that court could decide Long statutory Analysis, Bureau Economic whether scheme committed to unre- (9th Cir.), agency F.2d vacated on viewable other discretion FDIC's decision not grounds, up take Energy question); and decide U.S. 102 S.Ct. L.Ed.2d Found, Sous-Marine, accord, Andrus, Action Educ. Phoceene S.A. U.S.App.D.C. Phosmarine, Inc., v. U.S. (1980), (9th 682 F.2d rev’d on other Cir.1982). grounds, 454 U.S. (1981) (discussed 43-46); at notes Lee infra Port Auth. Police Benevolent Ass'n v. Port Indus., Ply*Gem 112, U.S.App.D.C. Auth., cert. (2d 1983); Cir. see also 2417, (1979) (denial Chinlund, 99 S.Ct. 60 1231, L.Ed.2d 1073 Marcera v. of 595 F.2d 1236 n. 8 personal motion to dismiss for jurisdic (2d Cir.), of grounds, lack vacated on other 442 U.S. proper 915, 2833, tion and want of properly venue (1979); review 99 S.Ct. 61 L.Ed.2d 281 Sand appeal on refusing stay 636, able from Levy, pro (2d order ers v. 1976), 558 F.2d 643 Cir. ceedings arbitration); pending banc, E.P. Hinkel & Co. point on 646, adhered to en 558 F.2d v. Manhattan 140, 143, U.S.App.D.C. (2d 165 grounds Cir.1977), rev’d on other 647-648 201, (1974) ("[a]n Fund, F.2d 204 appeal 506 Oppenheimer Sanders, sub nom. from Inc. v. 586

appealable interlocutory seriously impaired. have, then, order.49 Some of We a mat specifically the circuits have held ter —class “inextricably certification — may denial of class certification be investi up bound remedial deci gated appeal on an action taken on a ruling sion” 53—the on preliminary injunc- injunction;50 preliminary motion for a tive properly relief —which is before us un that, think, Indeed, is as it should we be. 1292(a)(1). der according Section We turn availability provisional when relief is ly to an examination of the District Court’s tightly interwoven into the fabric action on motion for class certifi bar, as it is in the certification case at cation. narrower construction Section 1292(a)(1) impinge upon congres- would III. Class Certification

sionally right conferred an interlocutory appeal injunction.51 from the refusal of an A. General Considerations believe, then, We that we have both the doubt, Without a the District Court power duty to review the District “uniquely is well situated” to rulings make Court’s class-certification order as well as on the propriety of class certification.54 its preliminary order on the motion for a Nonetheless, it responsibility remains our injunction. expressly rejected That court rulings to review those carefully and to solely light “in motion of” its contem rectify any application legal erroneous poraneous denial of class certification.52 criteria Without of the abuse of discretion.55 review determination certification, mind, effective With this proceed review of the limited role in we injunction request order on the would be consider the rejection District Court’s 340, 2380, 440, 1982) (en banc). (3d 437 U.S. 98 S.Ct. 57 L.Ed.2d 253 670 F.2d 449 n. 10 Cir. (1978); 600, Negley, Adashunas v. 626 F.2d 602 support We refer to these cases for their (7th Cir.1980). review, permissible breadth of and not as a suggestion disposition that a on that basis would Laboratories, Inc., 49.Payne v. Travenol 673 F.2d appropriate be here. 798, denied, (5th Cir.), 1038, cert. 459 U.S. 451, (1982); 103 S.Ct. 74 L.Ed.2d 605 see also Port Auth. Police Benevolent Ass’n v. Port cases cited note 50. Commentators have infra Auth., supra note 152; Kershner 698 F.2d at suggested equally broad or broader statements Mazurkiewicz, supra note 670 F.2d at Ward, of this rule. See 9B & B. J. Moore 446-449; Laboratories, Inc., Payne v. Travenol 110.25[1], (2d Moore's Federal Practice at 270 ¶ supra note 808; Adashunas v. 673 F.2d at 1987) ("[t]he appellate ed. is court not ... limit 602; Negley, supra note Jenkins 626 F.2d at solely upon ed to a consideration of the order Ins., Inc., Hosp. v. Blue Cross Mut. 522 F.2d based, appeal jurisdiction which the for its (7th Cir.1975). orders, although embraces such other interlocu tory non-appealable, and in themselves Mazurkiewicz, supra 51. See Kershner v. note such as are basic to and underlie the 670 F.2d at 449. supporting appeal”); Wright, order 16 C. Miller, Gressman, supra Cooper E. & E. Order, Injunctive supra at 16-20, quoted accompanying § in text (A) 1-2. supra. note 45 In a related line of cases courts have held that Found, Andrus, Energy supra Action Educ. inquiry pertaining ruling respecting pre- if to a U.S.App.D.C. at 39 n. 654 F.2d at liminary injunction reveals that the case is en- fully quoted 745 n. more in text ac- tirely without merit and that it would be a waste companying note 45. judicial permit appeal resources continue, entirety. it be dismissed in its Kleindienst, McCarthy Thornburgh U.S.App.D.C. College v. American Obstetri- See 247, 251, Gynecologists, 747, 756-758, cians & 476 U.S. 2169, 2176-2177, S.Ct. 790-791 (1986); 1410; Independence Corp., Deckert v. Shares Id. 741 F.2d at Bermudez 282, 286-287, 229, 232-233, Agric., Dep’t 311 U.S. United States U.S.App.D.C. 61 S.Ct. (1940); 718, 725, Smith v. Vulcan Iron L.Ed. cert. 490 F.2d Works, (1973); 17 S.Ct. U.S. 38 L.Ed.2d 559 Inc., Ply*Gem Hughes Helicopters, L.Ed. Lee v. In- Moore v. dus., (9th 1983); U.S.App.D.C. Convoy, Freeman v. Motor Cir. Mazurkiewicz, Inc., (11th 1983). F.2d at see also Kershner v. Cir.

587 Wagner’s inspection motion.56 some of the circumstances of the case is essential to determine whether the readily apparent It that a is decision prerequisites of Federal Civil Rule 2358 certification cannot in on class be made have been met.59 Necessarily, the court While, course, a court vacuum. does not must examine both the presented claims possess “any authority prelim to conduct a showing and the in support of class certifi inary inquiry into the in merits of a suit cation for may their require order to determine whether it be main adherence to the 57 action,” tained as a class it is evident that ments of Rule 23.60 case, however, holding 56.In addition to had not point makes resolution of this preconditions unnecessary. the normal to met class certifica- tion, the District Court denied his motion there- 156, Jacquelin, 57. Eisen v. Carlisle & 417 U.S. ground timely for on the that he had not 177, 94 S.Ct. 40 L.Ed.2d 748 sufficiently exhausted his individual remedies (1974); Lilly see also Supermar v. Harris-Teeter Memorandum, supra before ICC. Certification ket, (4th Cir.1983), 720 F.2d 332-333 cert. 6-9, (A) 8-11; App. A. 42 see U.S.C. denied, 466 U.S. 104 S.Ct. 2000e-16(c) (1982); § §§ 29 C.F.R. 1613.211- (1984) (court 539 must be “concerned with the court, (1987). According 1613.283 to the some (not commonality merit) apparent Wagner’s complaints administrative were claims"); Photo, Inc., Berkey Kuck v. timely, subject but it ruled that terms of (S.D.N.Y.1979) (”[o]nce plaintiffs have they matter too were narrow serve as a basis demonstrated ... a reasonable basis for credit for a class action. Certification ing aggrieved the assertion that individuals do (A) supra App. at A. they propose, exist in the broader class then it is However, litiga while still in administrative inappropriate attempt for this court to to re tion, Wagner filed a detailed class-action com disputes solve material factual on a motion for plaint complaint appears with ICC—a be certification”) (footnotes omitted). compliance Equal Employment in full with the Opportunity regulations regard Commission’s 23, quoted part 58. Fed.R.Civ.P. in relevant infra ing complaints. Complaint such See Formal note 61. (A) App. complaint note A. alleged only specific not instances of discrimi Co., 59. See v. N.D. Cass 485 F.2d Huff against Wagner individually nation but also (5th Cir.1973) (en banc) (discussing conceivable charged discriminatory practices respect with 23(c)(l)’s tension between Rule demand for members, promotion and retention of class punctuality ruling on class certification and ¶20, id. and buttressed the the ban on decisions on merits at certification charge capable showing with statistics dis Inc., stage); Hughes Helicopters, Moore v. against crimination black at ICC’s (“some inquiry 708 F.2d at 480 into the 22-25, higher grade levels. Id. ¶¶ necessary substance of a case be to ascer- complaint enough This was broad to alert ICC commonality typical- tain satisfaction of the to the claims that was later to assert in 23(a)"); ity requirements of Rule Nelson v. Unit- See, Vance, e.g., the District Court. President v. Corp., ed States Steel 709 F.2d 679-680 300, 307-310, U.S.App.D.C. 627 F.2d (11th Cir.1983) (”[w]e reject argument that [the] (1980); Valley Eastland v. Tennessee relating allegedly evidence to discrimination Auth., (5th Cir.1977), F.2d cert. properly suffered other class members merits"). L.Ed.2d trial on reserved for (1977); Carlin, 755 F.2d Griffin (11th Cir.1985). need delve 60. The into the circumstances of argued We are mindful that ICC compliance before the the case in order to evaluate District Court that administrative class Rule in a Title VII action was elaborated in complaint Co., untimely. Stastny Memorandum De- Southern Bell Tel & Tel. 628 F.2d (4th Cir.1980): Opposition fendant to Plaintiffs Motion to Class, Certify II) (Wagner Taylor purposes broad remedial of Title VII [T]he (filed July 1982) Civ. No. 82-0444 utility and the undoubted and fitness of the Opposition R. Doc. 43a [hereinafter Memoran- many class action device for Title VII actions Wagner, response, dum]. cited events indi- obligation imposed by do not relieve the sub- violation, cating continuing Reply, supra, (a) (b) inquire sections of Rule 23 to into (A) 133-135, fitness, facts, which would specific on its own each Dole, complaint timely. McKinney render the Title VII case which class action status is U.S.App.D.C. 387 n. sought.... (1985); Weinberger, 1140 n. 23 Milton v. adapting In Title VII cases this means U.S.App.D.C. closely issues, commonality inquiries related into Chesapeake claims, Shehadeh v. typicality adequacy & Potomac Tel. of of 326, 339-340, U.S.App.D.C. representation specific to the claims as factual disposition shaped by Our of this or either both of the two substan- 588 inquiries Rule 2361 in the context of Title employer is present deemed to common YII racial discrimination suits have questions fact, of law or regardless of indi- presented peculiar courts with a set of vidual in variations terms of discriminatory problems. fact, These stem from the as practices suffered injuries or sustained, by Court, stated Supreme the that “racial merely by of an allegation virtue that racial by discrimination is definition class discrim- discrimination had occurred.63 These 62 Recognition ination.” of this fact has courts permitted thus a plaintiff named in left degree the permissiveness uncertain of job category one represent to employees in applying in requirements tolerable the of job another category, or discharged a em- litigation, Rule 23 in Title VII and has ployee represent to current employees, rea- promoted a opinion difference of as to the soning although different members of proper certifying for standard Title VII may the class have been harmed in differ- classes. ways, ent “the ‘Damoclean of threat a ra- point At one many adopted courts the cially discriminatory policy hangs over the approach “across-the-board” to Title VII racial class question a of fact com- [and] By

class technique, certification. this ”64 mon to all members of the class.’ featuring case a composed class of all members of minority group recently, however, More con- Supreme the nected in particular some fashion with a Court warned that careful to attention the tive liability disparate (1) theories of treatment if the joinder is so class numerous that — disparate impact and emerged have in impracticable, (2) all members is —that are there Title VII doctrine.... questions class, of law or fact common to the "pattern practice” It is in relation to the or (3) the representa- claims or defenses of the element both substantive theories that the parties typical tive of the claims or defens- commonality criteria for class action mainte- class, (4) es of the representative and nance litiga- become most critical Title in VII parties fairly adequately will protect and point tion. Indeed the class action and interests of the class. inquiries essentially merit coincide. For to procedural questions answer Falcon, General Tel. Co. v. —whether 457 U.S. sufficiently homogeneous there is a class vis- 102 S.Ct. 750 practice permit a-vis an binding identified to see Freight also East Sys., Tex. Motor Inc. v. benefitting judgment; or it class whether Rodriguez, supra 431 U.S. at 97 presented respect the issues putative (“suits S.Ct. at alleging 52 L.Ed.2d at 463 class members’ claims have sufficient com- racial or ethnic discrimination are often monality permit their on an resolution un- suits, very their involving nature classwide basis; individualized whether individual wrongs”). representative plaintiff claim of a ly "typical” is sufficient- permit prototype its use as the 63. The Fifth Circuit first articulated the across- resolution the common claims of the theory the-board Georgia Highway Johnson v. class; whether, given the nature of the Inc., Express, (5th Cir.1969). 417 F.2d 1124 claim, representative’s adequate representa- tion of class members’ can be claims assured (quoting Id. at 1124 Bag Hall v. Werthan representative’s from the efforts—in effect re- Corp., F.Supp. (M.D.Tenn.1966)); quires answering question the substantive Co., Liberty also Wetzel Mut. Ins. 508 F.2d whether, either under available theo- (3d Cir.1975), denied, cert. 421 U.S. ries, requisite "pattern there prac- exists the or (al (1975) S.Ct. 44 L.Ed.2d 679 sufficiently comparably tice" affecting lowing discharged employees represent cur protected employees. identifiable class of employees); Long rent Sapp, F.2d (footnotes omitted); Id. at 273-274 see also (5th Cir.1974) (allowing discharged employee to cases cited Bolger, cf. Gilchrist v. represent potential, past employ current and (S.D.Ga.1981), 405-406 aff’d ees); Arlington Reed v. Hotel 476 F.2d part, (11th relevant (8th Cir.), cert. 414 U.S. Cir.1984) (“[pjlaintiffs proof burden of to dem- (1973) S.Ct. (allowing L.Ed.2d 103 dis onstrate the question existence of this common charged employee represent incumbent em simple entails more than the assertion of its ployees applicants); County Jordan v. Los existence, prima but less than showing facie Angeles, (9th Cir.), vacated liability”). grounds, on other S.Ct. 23(a) provides: 61.Rule (1982) L.Ed.2d (certifying encompass (a) Prerequisites ing to a job Class categories); Action. One or different Rich v. Martin more members a class Corp., (10th sue or be Cir.1975) sued Marietta (same). representative parties only of all behalf requirements ing of Rule 23 “remains none- or law fact common to indispensable” theless in Title VII class representative the class and the members lately, Even more im- actions.65 more proposed.69 the class The Court has portantly, Telephone Company General identified qualifying presentations, two Falcon,66 held the Court erroneous the involving first an employer who used a combining certification of a class dis- testing procedure biased to evaluate both appointed job applicants Mexican-American applicants employment for and incumbent allegedly by victimized discrimination in employees seeking promotions, and the sec- hiring practices with current Mexican- attacking ond an employer general whose employees allegedly suffering American policy of discrimination manifested itself in promotions, discrimination and in hiring promotion and in the general same employ- the terms and conditions of their manner, through such as entirely subjec- ment. The Court said: decisionmaking tive processes.70 Signifi- complaint proof cant provided practice, then, an insuf- of either should [Plaintiff's] concluding adju- ficient basis for that the assure certification of a containing dication of his claim of discrimination potential both actual and employees. promotion require would the decision of Moreover, while in Supreme Falcon the question concerning common the fail- emphasized controlling the effect of petitioner ure of to hire more Mexican- 23(a) Rule standards to Title VII class ac- Americans_ allegation spe- If one tions, clearly it did not foreclose all across- discriminatory cific treatment suffi- were certifications, the-board class nor did it support to cient an across-the-board at- suggest that determinations thereon should tack, every Title case VII would be a turn on the skill pertinent with which alle- potential company-wide class action. We gations pleadings in the are crafted. The nothing find in the statute to indicate complaint fact that the plaintiff aspir- of a Congress intended to authorize such ing post for the representative of class expansion a wholesale of class-action liti- cast in satisfy terms too to broad Falcon's gation.67 prescriptions hardly justifies outright dis- fact,” added, “The mere the Court “that an approval of class status while further ef- aggrieved private plaintiff is a member of fort holds out prospect some discernible persons identifiable class of of the same achieving compliance. may possible, It be origin race or national is insufficient to example, plaintiff for the to accumulate standing litigate establish his on their through discovery the information needed possible behalf all claims of discrimination “specific presentation” incorpo- make a against a employer.”68 common rating by the elements called for Rule 28.71

What the Additionally, may prompt Court demands from the situation the seeking those certification of a class cut District Court to exercise its broad discre- ting employment across job or reshape proposed status cate tion to redefine and the gories “specific presentation” is a identify- point class to qualifies the that it for certi- 65. East Tex. Motor 70. Id. at 159 n. Freight Sys., Inc. v. Rodri- 102 S.Ct. at 2371 n. guez, supra note 431 U.S. at 97 S.Ct. at L.Ed.2d at 751 n. 15. 1898, 52 L.Ed.2d at 463. 71. Sirota v. Solitron Devices, Inc., Supra note 62. (2d Cir.1982); Sears, Roe- Bradford 67. General Tel. Co. v. Falcon, (5th Cir.1982) buck & U.S. at 102 S.Ct. at 72 L.Ed.2d at (reversing develop District Court for failure to (footnote omitted). adequate concerning information facts of the ruling case before on class certification when Id. at 159 n. 102 S.Ct. at 2371 n. commonality typicality serious L.Ed.2d at 751 n. 15. by pleadings). were raised Id. at 102 S.Ct. at L.Ed.2d fication under Rule As in all class each requirements, of these and the Dis- types, actions of other trict rulings the court Court’s a Title thereon.

VII case can narrow the definition of the A. Typicality class,72 divide the class into sub- permit classes class members opt The District Court held that class,74 promotional out be warranted discrimination claims were not typical manner, circumstances. In those of the he desired represent.77 The court finding without based this adversely affecting persons who on the that Wagner, fact as a will member of decision, be bound the ultimate Service, the Senior Executive subject court can remain faithful to the fundamen- to ratings promotional criteria differ- purpose tal of Title stamp VII to em- out ent from those regular general ployment discrimination, though impacts it schedule who up pro- made particular interests of than the more posed class.78 The court also found that complainant.75 Wagner’s inability promotion to win to reviewing In the District Court’s decision high-level positions one-of-a-kind in the case, in this Wagner’s we look to allega- agency was not representative pro- of tions, and presentation to the he in made disappointments motional that had been the District in support of his motion by lower-graded suffered members of the certification, for class in order to determine class.79 The court concluded that Wag- whether the motion correctly evaluat- ner’s “experience as a attorney successful ed in light 23(a)’s of Rule upon insistence and member of the elite SES ‘hardly is commonality, typicality adequacy and of typical widespread of the of acts discrimi- representation.76 address, turn, We in nation he wishes to attack behalf on of the See, e.g., Auth., Valley Eastland v. Tennessee disputes. S.Rep. VII Cong., See No. 92d 1st (11th Cir.1983) (affirming (1971), reprinted Sess. 27 Legislative History, narrowing proposed District Court’s of supra, Title VII Section-by-Section Analysis of class). Equal H.R. Employment the Opportunity Cong.Rec. Act of (1972), See, e.g., County, Rosario v. Cook reprinted Legislative History, supra, at 1847 (BNA) 905, Empl.Prac.Cas. 33 Fair (“[a] provision limiting class actions was con- (N.D.III.1983) (creating subclasses in Title VII tained in the House specifically rejected bill and suit). Committee”). the Conference See, e.g., Brands, Grogan Inc., v. American 23(a)(2)-(4). 76. See Fed.R.Civ.P. We do not (M.D.N.C.1976) F.R.D. (requiring no- numerosity. consider the call for See id. detailing opt-out right tice to be sent to class in 23(a)(1). dealing In of most 23(b)(2)). action under Rule For a discussion claims, class the District Court did not address approaches of different to Title VII class certifi- requirement, that disposition and with our of cation, Note, Certifying Classes and Subclass- the case we do not reach it. Suits, es in Title VII 99 Harv.L.Rev. 619 legislative 75. The history Equal Employ- of the 77. The District Court combined its discussion of Opportunity ment commonality Act of typicality. Pub.L. certainly No. 92- and This was (codified 86 Stat. purview for, authority, as amended at within the of its as the (1982)), noted, U.S.C. Supreme §§ 2000e to 2000e-17 demon- Court has commonality "[t]he Congress strates typicality that requirements 23(a) was well aware of the need Rule of tend for, use, strongly supported merge." Falcon, the of General Tel. Co. v. rectify systematic actions employment dis- 457 U.S. at 157 n. 102 S.Ct. at 2370 Report crimination. The Senate 72 L.Ed.2d at noted 750 n. 13. For the sake of greater such "complex perva- however, conceptual clarity, discrimination was a we have phenomenon,” sive simply and not points a series of reclassified the District Court's under the events," distinguishable heading "isolated and S.Rep. commonality typicality, No. either or Cong., (1971), 92d reprinted 1st Sess. 5 aspect and we discuss each the court’s rea- Comm, Subcomm. soning on Labor the analysis Senate in connection with our of the Welfare, Sess., Labor and Public Cong., corresponding requirement. 92d 2d Legislative History Equal Employment of the Opportunity (1972) Act at 414 [herein- Certification Legislative History], after and both the Senate at 14-15. recognized Conference Committees the fre- quently recurring need for class actions in Title 79. Id. at at 15. ”80 employees. black avers that he class.’ applied for and has himself been refused sure, Wag- show that these factors To be promotions84 his and that chances for fu- they but typical employee, ICC is not a ner promotion dim ture are because his necessarily that his claims establish do not Along employees, race.85 with other ICC atypical discrimination are promotional subject performance is analy- have held of the class. Courts of those ses,86 exposed possible and is adverse destroyed merely by is not typicality consequences analyses if the results the As one court has variations.”81 “factual discriminatory are lowered reasons.87 performed by it, jobs that the put “the fact Though Wagner is a member of an “elite” sense, are, in some plaintiffs named service,88 interest, he has an like all other being class unique, not a bar to their class, being fairly members evalu- were, If it no class of representatives. true, Wagner’s allegations If ated. his certi- employees could ever be professional promotional individual claim of discrimina- fied.” typical tion is claims of those who uniqueness that the We conclude comprise proposed would class. Wagner’s position does not become determining factor when The District Court also felt that requirement. typicality is tested representa would not be a suitable Wag proposition that reject thus We because, said, experi tive of the class it claims high position alone renders his ner’s objectively ence with ICC been favora atypical of those of the class. against ICC opinion The ble.89 court’s memorandum of an assaying hold that in the results We Wagner a “successful attor noted that requirement that to the case application of ney” inappro declared that it would be bar, consider whether the court must represent employees him who priate for injury specific dis Wagner suffered from a promoted.90 ques The real had not been em criminatory promotional practice of the however, tion, is not whether mem ployer in the same manner that the progress been “successful” but whether did, proposed class and whether bers of the greater profes in his toward even success were in Wagner and the class members impeded by reason sional career has been general jured in the same fashion performance his race. If evaluations of policy employment discrimination.83 discriminatory, Wagner has hurt are been any way in the that other member same is that One of claims has, whether “success proposed class are conduct performance ICC’s evaluations that the District manner, ful” or not. We conclude discriminatory producing a ed in a wrong aspects of upon ratings for Court focused disproportionate share low Falcon, Bailar, Empl. (quoting See General Tel Co. v. Rowe v. 26 Fair 83. 80. Id. (BNA) n. 102 S.Ct. at 2371 n. [Available Prac.Cas. 457 U.S. at 159 WESTLAW, (D.D.C. 1981)). 372] 1981 WL L.Ed.2d at 751 15. Co., Pillsbury

81. Donaldson v. 554 F.2d Affidavit, 9, 9, App. A. ¶ 84. (8th Cir.), cert. (A) 110. L.Ed.2d 128 see De la Fuente v. Inc., (7th Stokley-Van Camp, (A) A.App. 110. 85. Id. ¶¶ 1983); Longshore Int'l Cir. Gibson v. Local Union, 543 F.2d men’s & Warehousemen’s (9th Cir.1976); Hosp., Id. Penn v. San Juan 86. Cir.1975). (10th note 109 87. See infra. Publishing Meyer MacMillan (citation omitted); (S.D.N.Y.1982) supra, 88. Certification Bank, Nat'l also Paxton Union (A) App. A. (8th Cir.1982) (holding ‘‘[t]ypicality is that promotional not of the varied defeated because (A) Id. at issue, differing qualifica opportunities at or the members”) (cita plaintiffs tions of and class omitted). Id. at tions Wagner’s position disparate-treatment and achievements in rul- able a Title VII ing typical not that his claims are of those Wagner’s, action such as and thus distorts class. application commonality. the test for An “pat- action of that kind—the so-called Commonality B. practice” requires proof tern or suit— additionally found The District Court challenged discriminatory the treatment commonality did not meet the operating procedure was a “standard —the 23(a), requirement part of Rule because regular prac- rather than the unusual anticipated the court that different meth- plaintiff prima tice.” The can establish a utilized in effort proof ods of would be discriminatory facie case of conduct with- individual and the class to establish the demonstrating out that each class member Wagner’s personal Proof of claims. discriminatory prac- is the victim of the claims, assumed, would be at- the court evidence, tice.95 example, Statistical analysis qualifications tempted by disparities suffice if the in treatment favorably to those of other more relation significant.96 are employees,91 treated the class claims while major played by role statistical evi- primarily analy- “statistical would involve cases, however, practices supplemented ses of dence in these ICC’s does not alleged examples scattered miscon- preclude proof resort in- individual divergent duct.”92 such methods “When Ofttimes, stances of discrimination. proof of individual versus class claims plaintiffs offer a combination of statistics involved,” said, the court “courts have testimony particular instances of enough held that there are not common prove discrimination the effort satisfy of law or fact to the com- Supreme claims of the class.97 The monality typicality requirements of in one such case observed that indi- “[t]he Rule 23.”93 personal viduals who testified about their experiences approach company brought with the

The District Court’s mis aecept- convincingly conceives nature of evidence cold numbers to life.”98 Id. Franks v. Bowman 15. 52 L.Ed.2d at 747, 772, 1251, Transp. 424 U.S. 96 S.Ct. Id. 1268, 444, (1976); Thompson v. 47 L.Ed.2d 406 393, 420, 257, Sawyer, U.S.App.D.C. 219 678 F.2d 13-14, Id. (citing General at (1982). 284 Falcon, 62, Tel. Co. v. note 457 U.S. at 157-159, 2371, 102 S.Ct. 72 at at L.Ed.2d 750- See, e.g., School Dist. v. United Hazelwood 751) (additional omitted). citations States, 299, 2736, 307-308, 433 U.S. 97 S.Ct. 2741-2742, 768, (1977); Interna- 53 L.Ed.2d 777 International v. United Bhd. Teamsters States, supra tional Bhd. v. States, Teamsters United 1843, 1855, 431 U.S. S.Ct. 97 52 20, note S.Ct. at 431 U.S. at 339-340 n. 97 (1977) (footnote omitted). L.Ed.2d 416 The 20; Segar v. n. n. 1856 52 L.Ed.2d 418 "pattern practice" initially term or referred to Smith, U.S.App.D.C. note 119— brought suits EEOC under 42 U.S.C. 120, 131-133, 1265-1266, 1277-1279; F.2d at 2000e-6(c) (1982), Supreme but the Court has § Sec., Inc., Kinsey Regional U.S.App. First recognized that the elements of such a case are (1977); Wheeler D.C. 557 F.2d private the same as of a class action. those See Mo., Columbus, City Bank, 686 F.2d 1150 56, Cooper v. Federal Reserve Carlin, supra (5th Cir.1982); 876 n. 718, 104 S.Ct. Griffin 755 F.2d at 1525. see also International Bhd. 728 n. 9 States, supra, Teamsters v. United 431 U.S. at Serv., Valentino v. United States Postal 97 S.Ct. at 52 L.Ed.2d at (1982). U.S.App.D.C. (judging government "pattern prac or standards). by private tice” suit action class International Bhd. Teamsters v. United Thus, allegations "class-wide of discrimination States, supra U.S. at 97 S.Ct. at commonly ‘pattern practice are referred to as or ” see also Valentino v. 52 L.Ed.2d at Smith, Segar U.S.App.D.C. cases.’ Serv., supra United States Postal (1984), cert. ("the U.S.App.D.C, prima 674 F.2d at 68 U.S. L.Ed.2d facie case is bolstered the court’s evaluation and International Bhd. Teamsters v. United by testimony recounting personal expe- See is aided States, supra members”). 431 U.S. at 97 S.Ct. at riences of class present case is foreclosed for some proposed a disqualifying Far from certification, disparate methods reason. asked the District other class from consisting demonstrating certify discrimination are com a class of dis- Court to type. of this applicants employees in Title YII actions and of who monplace appointed imagine how it could Indeed, fired, is hard to promotions, it eventually were denied Employees unlikely otherwise. against be the terms or discriminated action unless Title VII class a undertake employment.103 He as- conditions of their have en they themselves they feel that question of law or that the common serted When discriminatory treatment. countered common threat of discrimina- fact was “the proposed class to whether it comes tion that confronts all members of requirement of commonality meets However, foregoing discus- class.”104 23(a), undertak fact that the the mere Rule allegation, makes clear that this stand- sion of both individual ing evidence involves alone, among ing is insufficient to establish determinative is not discrimination com- members of the class the way other. or the one 23(a).105 monality mandated Rule decision Falcon Supreme Court’s The presented also statis contrary. The would-be is not to the indicating tics that the ICC’s workforce charg an action prosecuted plaintiff there Again, fell racially his effort unbalanced. hiring discriminatory practices ing laying bare a of the mark. Statistics short only individual produced promotion,99but racially do not make unbalanced workforce promotions respect ized evidence with hiring.100 prima disparate facie treat out a case evidence only classwide drawing com proof of ment absent further evidence merely pointed out The Court against partic a market.106 parisons with the relevant labor promotional discrimination to estab they policy not suffice show a of discrim ular individual would Much less do promotional dis employer’s pro facie case of prima lish a in the ination manifested did not classwide.101 crimination practices.107 motional disparate-treat possibility of rule out the however, attempted, to over- individual encompassing both ment suits offering deficiency by statistics come this claims, simply demanded but and class em- purporting to that black demonstrate requirements of to the stricter adherence traditionally as- have been ployees at ICC 23(a) prior to certification Rule per- of low signed disproportionate share class.102 This, true, ratings.108 if would formance discriminatory practice determination, identify a What remains promotion of black commonality retarded the then, finding is whether 16, 1982) (filed (D.D.C.) at Falcon, June 82-0444 supra note 457 Co. v. 99. General Tel 149, 151-152, 88. S.Ct. at 2367- at U.S. 2368, 72 L.Ed.2d at 746-747. supra 63-71 and at notes See discussion 105. accompanying text. 72 L.Ed.2d at 100. Id. at 750-751. at States, Dist. v. United School 106. See Hazelwood S.Ct. at supra U.S. at 308 n. 101. Id. 13; 777 n. L.Ed.2d at 2742 n. McKenzie U.S.App.D.C. Sawyer, 221 n. 102 S.Ct. at 2371 n. 102. Id. at 159 Washington Metro. Area Metrocare supra 1,500 751; employees, workforce of over also, the fact that e.g., at Bolger, supra Gilchrist v. group 75% of this ("the small was black would not simple note 89 F.R.D. at 406 assertion necessarily systematic applicants policy connote a of dis- have suffered discrimination figures crimination. Wagner, plaintiffs common cited the named ex- with is insuffi manner, 23(a)(2)"). amined in a cient under Rule similar show that We do not doubt also cases, however, employees applicants in white some received 75% of the unsatisfac- employees may tory Statistics, ratings. requisite be shown supra to the ICC have note A. See, commonality. (A) e.g., App. Byrd, figure 64. proves anything Richardson v. Neither (5th Cir.), F.2d cert. about the overall situation of the ICC workforce respect performance L.Ed.2d with to evaluations. misconduct, he left the District employer discrimination, interest freedom from po- with a combination of broad conclu- Court tential conflicts and do arise within a sory allegations widespread discrimina- including class case, both.120 In the instant jumble Clearly, and a of numbers. his tion supervisors who are pro- members of the presentation point on this has failed. posed responsible class have been for eval- uating performances the of other members Adequacy Representation C. class;121 indeed, very the the individual Wag The District held that on injunctive Court whose behalf sought relief is representa ner unsuitable as a class in this allegedly discharged case122 was First, though respects. super tive in two a employee a black potential who is a mem- visor, Wagner nonsupervi- to seeks include ber of the class.123 Additionally, Wagner class, sory personnel within the and the supervisor, has his own accused who ais their court found that interests have been member, potential class of racial discrimi- likely antagonistic continue to will be against Wagner nation himself.124 These supervis who to those class members problems perhaps mitigated by could be Second, the District further ors.115 narrowing class, but, further of the taken Wagner’s prop found that counsel had not point combination with another now to action,116 erly handled the class and that discussed, they be add to the doubt con- improperly appeared pro se Wagner had cerning Wagner’s suitability manage before the court.117 class action. point The District Court’s first raises a The District Court also found question adequacy serious about inappropriate representative be an continued maintenance arising prosecution reasons from the representative. suit as the class As a su- present suit. three had different that, pervisor, Wagner has interests as the and, addition, attorneys represented noted, already court have clashed pro himself in the District Court and acted those of other members of the class envi- in se this court. and one of these Supervisory sioned.118 are often attorneys have filed affidavits as inappropriate representatives nonsuper- and, members,125 as the District Court visory employees because the structure of out, pointed this has raised con- substantial workplace distinctly tends to cultivate implicating different flict-of-interest interests between two groups.119 Although group propriety Wagner rep- each shares serve as class Memorandum, supra supervisory personnel 115. note at nistic those of Certification (A) class). App. A. 16. (A) Id. at App. 116. A. Memorandum, supra 121. See note Certification (A) App. n. A. 20 n. see also Mooers (A) Id. App. A. at 17. Affidavit, supra note R. Doc. 39. ¶ (A) id. at n. App. See supra accompanying 122. See note 26 text. Co., Ramsay, 119. See Wells v. Scarlett & Memorandum, supra 123. See note Certification (5th Cir.1975); Sperling Wilson, (A) at n. A. 20 n. Thomas Donovan, (D.D.C.1984); Grant v. 104 F.R.D. fired, brought who was VII action own Title Co., Morgan Guar. Trust F.Supp. against ICC. in fa- The District Court decided (S.D.N.Y.1982); Rodgers Steel v. United States Taylor, Civ. No. vor of the latter. See Wilson Corp., 69 F.R.D. (W.D.Pa.1975); Steur (D.D.C. 1985) July [Available Co., Baking v. ITT Continental WESTLAW, order). (opinion WL 5941] (E.D.Va.1977). Reply, supra See, 124. See note Ramsay, e.g., Wells v. & Scarlett Memorandum, 122-123; Opposition supra (named plaintiff, 506 F.2d at 437 ****, 7, foreman, 3 n. R. Doc. 43a. inappropriate representative Bolger, longshoremen); Gilchrist v. su- class of (named pra plaintiffs, F.R.D. at Certification personnel, nonsupervisory antago- had interests Court, resentative.126 Like District opinion we on each of the other facets of this think has thus failed to factually establish rich case. propriety representation of his Wagner’s problems class. While

possibly could be overcome retention of counsel, class, for the

new the District experience Wagner’s

Court’s with three at-

torneys and his current pro se status could

hardly leave room for a contention that the Court

District abused its discretion or oth- committed erwise reversible error. WAGNER, Appellant, Charles E. IV. Conclusion TAYLOR, Jr., Chairman, Reese H. not satisfy require- does Interstate Commerce Commission. ments Rule 23 for class certification. No. 84-5865. Accordingly, the District Court did not err denying Wagner’s motion for class certi- United States of Appeals, and, account, request fication District of Columbia Circuit. for a preliminary injunction on behalf of his Dec. proposed class. The orders under review hereby are

Affirmed.

STARR, Judge, Circuit concurring: agreement

I am Judge with much of scholarly opinion

Robinson’s full ac-

cord with judgment my colleagues

that the District Court did not err in de-

clining Wagner’s Mr. invitation to certify action as a class panel action. As the

today again once recognizes, judges

our District Court uniquely well situ-

ated to resolve the apper- difficult issues

taining to class Although certifications. I

am entirely persuaded, not my as are col-

leagues, Wagner’s that Mr. satisfy claims requirement I typicality, am in

agreement that the District Court correctly

discerned that failings fatally other infect-

ed position. Mr. being so, That I it unnecessary

find finally to come rest respect to the nettlesome

posed by the issue of typicality vel non myself

content with expressing my accord judgment

with the court’s and its excellent Id.; Pertschuk, F.Supp. Bachman (E.D.Wis.1975). We also take note of (D.D.C.1977). (1982), Other courts have forbidden the 18 U.S.C. 205 pur- § a criminal statute attorney representa porting to serve as prohibit the class governmental employee Bank, Valley tive. Shields v. acting 56 F.R.D. attorney Nat'l prosecuting as an (D.Ariz.1971); Graybeal against v. American Sav. & claim provision United States. This Ass’n, (D.D.C.1973); Loan 59 F.R.D. interpreted has been cover a situation similar Nicholson, (N.D.Ill. Seiden to the today. one before us See Bachman v. 1976); Kenosha, Conway City Pertschuk, F.Supp. supra, F.Supp. at 976. notes text at L.Ed.2d at 751 n. also Auth., U.S.App.D.C. Transit 66-71. F.2d Motion, Supplemental supra at Serv., 103. See States Postal Valentino v. United 107. See U.S.App.D.C. at at 68. Memorandum of Points Authorities 104. See of Affidavit to Certify ICC statistics attached Support of Plaintiffs Motion to (Wagner Taylor II), Wagner, Wagner v. Class, (Wagner Charles E. Taylor Civ. No. Moreover, as a class.109 these us, statistics In however, the case before appear would question to raise a common effect of this obstacle is compounded by of engaged fact—whether ICC has in a Wagner’s failure to establish a correlation systematic practice keeping performance between even this narrowed class and the ratings employees an artificially black at performance statistics on evaluations that low level.110 favor his claim. It is from the unclear any record whether proffered of the by hopeful Presentation statis plaintiff pertain ostensibly significant Wagner’s tics to proposed statistics class of is not the inquiry, end of the employees however. A graded GS-9 Wag and above. ruling court on a class-certification motion ner’s own analysis figures of the obscures plaintiffs must offering examine rather issue; than clarifies the his list of make an initial determination that there is conclusions merely furnishes fragmen plausible at least a fit between the cover tary picture which makes it difficult to age proposed group and the comprehend the facing situation members Thus, which the statistics figures relate. proposed class as a whole.114 Plain performance ratings forge do a con not seeking tiffs class certification are not re nection employees between current and dis quired prove cases, the merits of their appointed job applicants. The existence of presentations but their specific must be practices, some subjective common such enough to allow the court to discern at decisionmaking,111can form the nexus be rough least a outline of a proper class that tween applicants,112 but ly can be certified. alleged has not existence While the relating statistics identi- practice such a common groups. to both promotional fiable practice of implied ICC difficulty This likely could be overcome at least the possibility confining class to common employees.113 current fact, Wagner District Court could then has not properly con identified such a sider question, whether such a nor appear narrowed class would does one from the satisfy requirements otherwise of Rule record. Instead of assembling bits of evi- dence into question a coherent possible II) (filed 1, 1983), Civ. No. Mar. Montgomery County Johnson v. Dep't, Sheriffs (A) 64-73 [hereinafter ICC (M.D.Ala. 1983). Statistics]. 99 F.R.D. (1982) See 5 U.S.C. (providing § 4303 113. See note 72, supra accompanying text. grade general reduction in employ- schedule ees performance or the removal on the basis of 114. See Brief for Appellant at An at- ratings); (governing id. perform- §§ 4311-4314 tempt to validate from an conclusions ratings employees). ance of SES only examination of great- the record leads to a See, e.g., Chisholm er example, Wagner States dilemma. United Postal For states that Serv., (4th Cir.1981) (com- employees, comprised black who 33.5% of the monality specific pro- March, 1982, satisfied in attack on ICC workforce as of received Marsh, practices); motional 315, Harris v. minimally 76.4% of the satisfactory ratings. Id. (E.D.N.C.1983) (finding commonality statistic, however, at 13. This appears to refer promotional itself). process attack on workforce, merely Wag- to the entire ICC not higher-level ner’s employees. class of 111. See Falcon, General Tel. Co. v. Moreover, just significance what to the attaches 159 n. S.Ct. 2371 n. If, statistic in event is unclear. as was the 72 L.Ed.2d at 751 here, twenty minimally case less than satisfac- See id. tory ratings are handed out for entire ICC 102 S.Ct. at

Case Details

Case Name: Charles E. Wagner, for Himself and Others Similarly Situated v. Reese H. Taylor, Jr., Chairman, Interstate Commerce Commission

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 24, 1987

Citation: 836 F.2d 578

Docket Number: 83-2252

Court Abbreviation: D.C. Cir.