*2 CONTIE, imрosed an employees Before MERRITT and Circuit *, of Title Judges, Judge. District unreasonable burden violation DeMASCIO * DeMascio, Michigan. Judge, States District Eastern District of Hon. Robert E. United 21, 1976, resulting in salary per decrease of $45 On October
VII. King claims that CWA denied her under Fed.R.Civ.P. as con- week. certified grievance against sisting non-supervisory request female em- to file a Bell. of all allegedly suffered a This is the basis for her claim that ployees of Bell who CWA plan during pregnan- acquiesced discriminatory practic- in Bell’s result of the benefit 22, 1977, occurred, charge absence that least in es. On June filed a cy-related *3 13, 1, April Equal part, after October 1971. On of sex discrimination with the Em- 1981, (EEOC) ployment Opportunity the Louisiana district court held that Commission by denying guaran- appellees. Title VII both The EEOC investi- Bell violated 28,1983, equal posi- gated April reinstatement to or on issued a deter- teed former finding employees maternity to its female mination reasonable cause to be- tions 9, 1982, stipulation leave. On December there was a Title VII violation. On lieve agreement 2, 1983, August right- a settlement were reached and the EEOC issued a Bell, CWA, settling between class аnd to-sue letter.1 relating maternity all claims Bell to King’s Notice the Class Settlement policies subject
leave of absence to the class action. King first of the became aware 10, 1983, action on March when she re- 11, 1983, February the court entered packet relating ceived a of documents to preliminarily approving an order the settle- proposed class settlement from counsel ment, prejudice rights without to the representing plaintiffs. the named ofOne object proposed to to the class members documents, “Important entitlеd No- agreement. stipulation and settlement A tice,” read as follows: approving agree- final order the settlement 24, August ment was entered 1983. A IF YOU WERE NON-SUPERVISORY FEMALE EMPLOYEE OF SOUTH King’s Claim BELL MATERNITY CENTRAL ON 13, LEAVE BETWEEN OCTOBER August was hired Bell 1959. 7, 1977, AND AUGUST AND YOU giving Prior to the incident rise to this WERE NOT REINSTATED TO YOUR litigation, employed she had been with Bell JOB OR WERE DELAYED IN REIN- years, for 17V2 the last V-k as a frame TO WHEN STATEMENT YOUR JOB 1976, King preg- attendant. became REQUESTED YOU TO RETURN TO leave, maternity than a nant. Rather WORK FROM YOUR MATERNITY requested any type (i.e., other of leave va- LEAVE, MAY BE A YOU OWED SET- leave) cation or sick in order to be assured TLEMENT FROM THE COMPANY. returning position. to her former Under plan, taking employees Bell’s benefit ma- BE SURE TO READ THE ATTACHED guaranteed ternity leave were not rein- MATERIALS. FILE A FAILURE TO jobs. former MAY statement their Bell denied CLAIM RESULT IN YOUR LOS- King’s request non-maternity to take a ING YOUR A RIGHT TO SETTLE- 4, February leave. On 1977 she took a MENT FROM THE COMPANY. giving birth to her child document, Another entitled “Notice day. the next Settlement,” Proposed Class de- Action On March advised Bell that scribes the class advises class mem- ready proposed she was return to work. On bers settlement and their 14, 1977, returned, object, explains procedure March she was not as a attendant, recovering part job, frame but to a different of the settlement.2 receipt purpose 1. contends that her of the EEOC’s Notice is to describe a clаss lawsuit, right-to-sue opportunity Proposed letter was her first advise of the maintain a Title VII claim CWA. of that class to inform Settlement Settlement, your right object Proposed explain procedure recovery under provided, pertinent part: and to 2. The notice being application, King class is described as sent the court the follow- groups, divided into two with a notation ing letter: provides that the mon- I submitting am part attached to be a etary and reinstatement relief to those of the case no. providing 73-1771 (2): category employees accepting the class action does not mean (1) Those who returned to work at South given up my rights to claim Bell directly Central from their ma- following: voluntarily leaves or who ter- 1. important First and most is the loss employment minated their with South days of 10 days ... One [sic] following expiration Central Bell seniority may at some time make the leaves; of their my difference keeping or losing (2) requested Those who to return from my job. their leaves were de- Losing my position Frame Attendant layed in such reinstatement. *4 having accept Assignment Accompanying the notice was a fill-in- position Clerks in оrder to maintain [sic] application,
the-blanks claim which con- my employment (from high pro- on the following tained the note: motion ladder to near the bottom. A UNLESS YOU INTEND TO CLAIM significant salary years.) reduction for 3 THAT SOUTH CENTRAL BELL DE- I relinquish .. do want to LAYED YOUR RETURNING TO for items and 2 above. WORK AT THE DURING OR END OF separate sent a letter to counsel for LEAVE, YOUR MATERNITY YOU representatives, the class forwarding them HERE, CAN AS STOP YOU WILL NOT copies of her application. claim That letter BE ELIGIBLE FOR ANY MONETARY reads, part: OR REINSTATEMENT RELIEF. I you appreciate think my can concern for at appear least two that do not areas Response to the Class to have bеen addressed to the court.
Action Notice am sure that I only am not the one and application filled out the claim sole- hope would litigation that additional ly 8-day delay with necessary wouldn’t be to resolve these request her to return to work and the date additional issues. actually on which Bell returned her. This responded appel- Counsel the class approximately amounted to $400. letter, however, attempt did not lant’s not in terms of make claim for the being wage she lost due to returned loss claim.3 did not seek lower-paying job. independent Shе estimates advice of that this counsel until after interest, presently entry approving totals over of the final stip- order $13,000. Along completed with the agreement. claim ulation and settlement Proposed upon you already, please Settlement. Based If South have not done so file records, appears you Central Bell’s it are a Application directly the Claim form with the class member. YOU ARE THEREFORE up Clerk of the Court. This can be done until URGED TO READ THIS NOTICE CAREFULLY. 31, 1983, May the new deadline established copy the Court. I have enclosed a of the form response May 3. The was datеd 1983 and read longer your copy. in case no as follows: directly While this letter did not address 28, 1983, your April I have received letter of King’s specific whether claim is included in the regarding the above-referenced case. I do not settlement, proposed urged it her to file her your know whether in addition to letter of claim. made a conscious choice to limit objection, you have filled out and filed the eight days her claim to the between the date of Application Claim received in the request to return to work and the accept date Bell mail. If the Court should decide to actually settlement on behalf of the entire reinstated her. class, then we will need to know the amount damages you would be entitled to. parties must have been identical in both Action
The Final Class
Settlement
actions;
prior judgment
must have
15, 1983, the court entered a
June
competent
court of
been rendered
memorandum order
supplemental
consent
jurisdiction;
judg-
there must be a final
crediting
for retroactive
that allowed
ment on
merits and both cases must
King,
employees,
such
who
Kemp
the same cause of action.
involve
request
their
to return
establish that
Co.,
(5th
Birmingham News
530
Rowan,
(6th
651
1223
“Important
unambiguously
Notice”
Nathan v.
F.2d
Cir.
1981)
appeal
delayed
were
shareholder’s
that “if
...
states
dismissed
derivative action
the district
your job
you re-
to
when
reinstatement
grounds
on res
on the
court
basis
your
ma-
to return to work
quested
of a
shareholder’s derivative action
may be
settle-
owed a
corporation
the same
and directors.
company.” King’s claim
from the
ment
Lee,
Hansberry
This court followed
311
to her for-
Bell
to reinstate her
that
failed
(1940)
22
U.S.
S.Ct.
L.Ed.
falls
clearly
attendant
job as frame
mer
holding
process
that due
and full faith and
Moreover, the no-
language.
this
within
credit mandate that absent class members
agreement
proposed settlement
tices and
are not bound
in a class
warnings
failure to
replete
are
representative pro
action unless
class
the
in the loss of a
may
a claim
result
file
adequate
representation.
and full
vided
argued
the
if it can be
of action. Even
ambiguous,
notice was somewhat
adequacy
representation
did not
opt
the action
out because
could
finding for the
a factual
court before whom
privilеge. The most she
include
pending.
F.2d
action
did.
object
the decree and she
do was
Grigsby
See also
v. North
1227-28.
Missis
Center, Inc.,
sippi Medical
There is no satisfied that CWA was By in the settlement. named the class the time al- the class though settlement, the Louisiana court only al- action neared had already represent it seeking low to the class for way up worked her original job. back to her injunctive, monetary, and not relief. CWA Consequently, claim, her third for restora- signatory agreement. to the settlement original job, tion to her longer no existed. argues King’s CWA it King’s wages fourth during lost arise out of the same set of circumstances years the three while worked at the giving rise to the class action there- paying job, King’s (and lower is principal fore, properly agree barred. are We only) perhaps remaining claim. She esti- general policy principles judicata of res mates that with interest it ap- amounts to relating dictate that all claims to Bell’s $13,000. proximately maternity policies leave in- practices, panel’s holding King’s cluding any claim that be directed seeking declaratory relief related to her against CWA, were resolved remaining claim is barred under judica- res action settlement. ta the settlement of the class action Accordingly, grant thе district court’s depends on the conclusion that the class summary judgment appellees in favor of binding King action was as to this claim AFFIRMED. wages. question is, for lost should the Louisiana certified under MERRITT, Judge, dissenting. Circuit 23(b)(2),Fed.R.Civ.P., rule interpreted agree do not suit is barred wages arising include lost from the res effect of the settlement reemployment job paying in a less than the in the Louisiana class action one to which a claimant is entitled? telephone company. According to rule certification under had four claims South Cen- 23(b)(2) proper party opposing when “thе alleged tral Bell that arose from Bell’s Title the class has acted or refused to act on regard VII violations with company’s to the grounds generally class, applicable to the (1) policy: thereby making appropriate injunctive final claim for delay reemploying King Bell’s relief or corresponding declaratory relief requested when she return as a whole.” The leave, (2) injunctive seeking an claim resto- Advisory Committee’s notes to rule result, ration of the lost make clear that subdivision does not “[t]he (3) principal part, delay, of the above extend to appropriate cases which the injunctive seeking reinstatement predomi- final relief relates exclusively or job King had held before her nantly money damages.” (4) monetary during claim for the three worked developed The Fifth Circuit has a mecha- *8 paying job lower after her return from representa- nism to deal with class action types leave. All four of claims the were of tives who wish to assert both claims for dealt with the class action. injunctive relief and for claims substantial monetary relief. Under Fifth Circuit King submitted claim number one in the precedent brought by an action compensation class action such a and received for 23(b)(2) King may the claim class be certified under rule under the settlement. noti- (b)(2) “hybrid” fied the court of her second claim and is referred to ap- but as a class parently did not submit it as a claim. As a action. See Johnson v. Motors General (5th Cir.1979).
Corp.,
your job
598 F.2d
The not reinstated
delayed
or were
“hybrid”
Louisiana action was such a
class
your job
in reinstatement
you
when
re
“hybrid”
this
action. Under
so-called
ac- quested to return to
your
work from
ma
tion,
Further,
class member
wishes to
Suprа p.
absent
who
leave.”
526.
monetary
claims for
re-
assert substantial
only
the notice stated that the
class mem
lief
be bound
the
or set-
will
monetary
bers who were entitled to
relief
right
in
class action and
tlement
has no
requested
were
who
to return
“[t]hose
(although
opt
out of the class
the trial
from
their
leaves and were de
provide
judge has discretion
class mem-
layed in
Supra p.
such reinstatement.”
opt-out rights,
bers with
which he did not
continued,
notice
“Unless
bar).
do in the case at
intend to claim that South Central Bell
delayed your returning
during
to work
or
this circuit
The cоurts of
have never em-
your maternity
at the end of
you can
(b)(2)
“hybrid”
the Fifth Circuit’s
braced
here,
stop
eligible
as
will not be
for
my opinion,
class action scheme.
any monetary or reinstatement
relief.”
process rights
procedure violates the due
Supra p. 527.
possess
of absent class members who
monetary
relief.
If
claims
substantial
The notice of settlement in the Louisiana
parties
to a class action wish to include
ambiguous
class action
King,
and led
potential
in the class the claims of
individu-
says, to believe that the settlement covered
mainly
large
al class members who
have
arising
from Bell’s refusal to
claims,
monetary
process requires
due
promptly reemploy
returning
a worker
such class members be afforded all the
from maternity
gave
leave. The notice
protection
present
that would be
in a rule
impression
returning
that if a
worker were
23(b)(3)
including
opt
action—
immediately reemployed
job,
but to a lesser
Greenspan
out of
class.
Accord
that worker’s claim was not included in the
Club,
(BNA)
22 FEP
Automobile
Cas
Thus, King
settlement.
believed that her
(E.D.Mich.1977) (employment discrimina- claim
8-day delay
reemploying
for Bell’s
in
23(b)(2)
tion suit certified under rule
settlement,
her was covered
and she
equitable
rule
relief and
for back
However, King’s
submitted the claim.
not,
pay).
Because
consistent
seeking
wages equaling
main
lost
claim—
process,
due
in
been bound
re-
pay
original
the difference in
gard
by judgment
to her lost
claim a
paying job
and the lower
to which she
“hybrid”
in the
class
this Court
appear
was returned —did not
includ-
be
should not hold that
the Louisiana class
therefore,
King,
ed in the settlement.
did
action settlement barred
suit.
ques-
not
but raised the
submit
(b)(2)
“hybrid”
if
tion of
seniority resulting
delay
Even
acceptаble,
appear
reemployment,
scheme were
it does not
because the notice
adequate
notice
re-
referred to the
fact that certain claims
barred,
quired
might
in such actions under the Fifth
she notified the court and
Cir-
counsel
opinion
waiving
cuit’s
Johnson v.
Mo-
that she was not
other
General
response
claims. Her
Corp.
“hy-
tors
Johnson holds that
indicates that she did
(b)(2)
process
brid”
class
understand what
settlement includ-
quires
understanding
receive
ed. Her lack of
was reason-
absent
members
able,
perhaps inescapable,
light
“hybrid”
pending
notiсe that the
action is
damage
may
if
the notice.
be barred
proper
not submitted. 598 F.2d
438. If
aware,
The notice did not make
given,
notice is
does not
person
would not make a reasonable
subsequent
bar a
suit
aware,
pay
back
claim would be
claims.
address obvious panel quotes the District notice. The Court Fifth does require Circuit case law stating: required “hybrid” (b)(2) in a that notice Although of the the notification given any particular stage action settlement litigation. notice given Here no was misinterpretation, subject been to some until almost seven after the record makes clear review the entire Louisiana class appears was certified. It adjudicated that the class action all notice that received was presented in case. compromise the notice of or settlement of a doing, panel required by 23(e). аction Log- class as rule Supra p. In so ically, it seems repeats requires the District Court’s error. The that if Johnson adjudicated given action fact the class that notice be to the absent members pro- “hybrid”(b)(2)class, King’s claims is irrelevant because due of a the notice must be requires cess suit not be give barred different from or more information (b)(2) by previous “hybrid” class action of required the notice of than adequate 23(e). which she did not receive notice. required by rule If the notice rule panel continues, if 23(e) it can be enough, “hybrid” is “[e]ven then the class argued that the notice somewhat am- concept nothing more than a biguous, King opt out because stripped of the notice privilege. the action did opt not include privilege. out object The most she could was do say Suffice it is to that the notice Supra p. decree and she did.” 530. As purposes inadequate received was above, discussed denial of the believe (b)(2) “hybrid” Fifth Circuit’s class ac- “privilege” of the opting out class de- precedent. give only tion To scant notice However, process. putting nied due settlement in a actiоn that should class argument, King op- aside that had another (b)(2) properly have been into a divided proper If had tion. notice informed seeking (b)(3) relief and injunctive wages was included in that her lost relief, seeking monetary then to action, have intervened she could use the res effect of the settle- action, being represented by in the class action, King’s subsequent ment to bar counsel, her protect in order to claim. Be- process. King’s right violation notice to in- inadequate cause the failed The class action settlement therefore part claim was form that her against King’s not a valid of the have had no not be held to and should bar thought intervening protect action. claim. quotes the Dis- Additionally, panel
trict Court:
Although plaintiff was uncertain scope
full she filed an of the class
objection to the settlement the event fully did
that the class action cover her