Clara Watson v. Fort Worth Bank & Trust

Tyler. suit. We Insofar as doubts underlying lost the Robb of the record legal adequa- a consideration have existed on the turn to now had relating to whether USF & G claim, evidence to establish its cy of USF subrogation cause to institute the probable precaution the additional of con- & G took suit. filing sulting counsel before suit. Mr. Har- Sneed, ry practicing attorney Mississip- Mississip- noting begin by that under We pi, the same facts available to Ms. reviewed undisputed, it facts pi law “[w]hen subroga- Reugger and concluded that the determine of the court to is the function tion suit should be filed. existed.” probable not cause whether Armco, 846; Owens, at 430 So.2d G, acting counsel, by& USF advice Keeton, su- also Prosser at 1137. See probable despite cause to had file the suit (Second) 882; Restatement at pra, § Reugger’s subjective Ms. doubts about its undisputed The facts avail- Torts 681B. § ability damages to recover on circumstan- filed the & G at the time it able to USF Owens, alone. tial evidence 430 So.2d at adequate to subrogation clearly suit were Ott, 847; 246 Miss. Pulliam probable to believe give & G cause USF (1963); So.2d 146-47 Prosser and Kee- through started fire appellees 120, 879; (Sec- ton, supra, at Restatement § handling smoking materials. careless ond) of Torts §§ that he and his wife smoked Robb admitted We conclude facts available to morning of cigarettes in the house on the subroga- at the time it USF & G filed the They smelled an odor which Robb the fire. and the advice it received from tion suit burning plastic searched described gave probable USF & G cause to counsel not source of odor but could for the appel- it could recover its loss from believe Department The Biloxi inves- find it. Fire lees. fire and that it was tigated the concluded by improper disposal of ignited use or judgment the district court Meeks, an in- smoking materials. Thomas is ren- accordingly judgment reversed and fire dependent adjuster, with the concurred appellant, in favor of USF & G. dered department’s conclusion. REVERSED and RENDERED. principal argument evolves Appellees’ Reug- statements made Ms. around two during claims her

ger, adjuster, & G’s USF

handling Reugger stated of the case. Ms. report subrogation

in a status before the that, prove filed cannot

suit was “[W]e time that tenant indeed caused Later, after the the coun- fire.” suit and WATSON, Plaintiff-Appellant, filed, Clara more terclaim were she stated “we have likely will our suit dismissed. dropped, at us.” And if suit clear shot TRUST, WORTH BANK FORT & argue infer from Appellees that we should Defendant-Appellee. Reugger did not these statements Ms. G could have an honest belief that USF & No. 85-1074. Reugger Ms. testified at prove its case. Appeals, United States Court her doubts USF & G’s trial about Fifth Circuit. stemmed ability appellees to recover required from the fact that USF & G was Aug. solely on evidence to rely circumstantial Rehearing and Rehearing En Banc fire. No evi- establish cause Sept. 30, 1986. Denied Reugger adduced that Ms. dence was by im- the fire caused doubted that smoking

proper disposal of materials GOLDBERG, RANDALL,

Before JOHNSON, Judges. Circuit JOHNSON, Judge: Circuit Plaintiff-appellant appeals Clara Watson judgment from the district in court’s favor defendant-appellee of Fort Bank Worth & in Trust Watson’s Title VII Civil Rights action alleging discrimination on the seq; U.S.C. 2000e et of race. 42 basis § following reasons, U.S.C. 1981. For the § judgment this Court affirms the of the part, district court in but vacates dis- court’s judgment regarding trict the appli- cant class claims.

I. FACTS (“the Bank”) Fort Worth Bank Trust & August hired Watson as in a 1973. operator. promoted The Bank Watson to position of teller trainee approximately years two later. After a two to three month training period, Watson became a in January teller Bank’s motor bank Subsequently, of 1976. the Bank transfer- lobby red to the Bank’s main Watson promoted position later to the Watson February commercial teller on year, next Over course of the Watson unsuccessfully applied for four different First, February promotions. pro- unsuccessfully applied Watson for position supervisor motion to the of tell- ers, resig- due to the which became vacant England. nation of cashier Brian assistant Watson; Burt, a male who Richard white supervisor bookkeeping then the was Levitt, department; Gail a white female supervisor then of motor who was bank Worth, Tex., Brender, plain- Art for Fort tellers; Cullar, a white female who Pat tiff-appellant. teller, applied then a all commercial Michener, McGee, Gandy, Bruce W. position. Gary Shipp, senior for vice Pratt, Worth, Swindle, & Fort Whitaker president and Bank cashier at the since Tex., defendant-appellee. for supervi- the person 1977 and to whom the reported, sor of tellers selected Richard Second, England’s replacement.1 Burt as 1977,working May part ployee January first in Bank hired Burt 1976as a time, general ledger year, department one for then as time motor bank teller. At Burt was months, finally analyst em a credit for six full time student. Burt became full time unsuccessfully applied pro- Watson for ly persons situated on the basis of race in position motion to the of motor bank teller violation of 42 U.S.C. 1981 and Title VII § Watson, Cullar, supervisor. Pat and four Rights the Civil Act of 42 U.S.C. persons applied posi- or five other for the seq.4 et 2000e § tion vacated Gail Levitt. Pat Cullar conducting After an evidentiary hearing Third, promotion.2 received the Watson issue, on the class certification unsuccessfully applied a second time for consisting certified a class of “blacks position lobby supervisor teller when applied employed who to or de- again promoted Watson, the Bank Burt. fendant on or after October 1979 or Cullar, Hardin, Sylvia a black female com- employment who applications submit teller, Patsy Weatherly, mercial defendant the future.” Subsequently, white female supervisor who was then the district court decertified the broad class proof department, applied all for the employees applicants and because the position. Fourth, Burt chose Cullar. as a concluded, district light court in of all the promotion, result of Cullar’s second trial, evidence at there was not “a teller, position supervisor of motor bank question common of law or fact between vacant, again became and Watson unsuc- applicants unsuccessful black and those cessfully applied position. for the Other employed by blacks the Bank.” The dis- applicants included Hardin and Kevin split trict court then the class into two Brown, a white male teller in the motor (1) distinct consisting classes appli- black recommendation, bank. Based on Cullar’s (2) cants and black employees. The district position.3 Burt selected Brown for the court further found that the class of black employees numerosity did not meet the Watson took a leave of from re- absence quirement 23(a) in Rule January work 1981 in decertified the undergo order to employee class. foot surgery. applied She for the last two promotions described while on sick leave. merits, theOn the district court conclud- Watson did not return to work after Janu- although ed first that Watson demonstrat- 1981, ary resigned and she subsequently prima discrimination, ed a facie case of she August of 1981. failed to demonstrate that the Bank’s artic- failing ulated reasons promote for her II. PROCEDURAL HISTORY pretextual. The district court then exhausting After her rem- administrative addressed the applicant claims of the class edies, timely Watson holding filed the instant suit that Watson’s statistical evidence 21,1981, alleging on October present that the Bank failed to prima a facie case of against discriminated her and other similar- discrimination in because per- supervisor bookkeeping department previous experience for six months. His includ- supervisor 1979 until his of tellers. person ed depart- seven months as a sales at a degree Burt banking obtained a bachelor’s approximately years’ store expe- ment four May and finance in of 1980. Texas, Flags at rience Six Over which included supervising teenage some work seasonal em- 2. Both Watson and Cullar were commercial tell- ployees. position ers when the of motor bank teller su- pervisor became vacant. Watson had six and Circuit, specific In this consideration of an 4. years’ experience one-half with the Bank while necessary only alternate claim under § 1981 only Cullar had worked for the Bank for two grounds if its violation is made out on different Cullar, however, years. and one-half had al- from those available under Title eighteen VII. Watson years experience banking most at differences, bank, does not assert such ele years another with more than sixteen experience employment ments of a in the teller comparably substantive claim of areas. Cullar and Wat- point son scored parallel on the Bank’s 104 § discrimination under the ele job performance evaluation: Watson Page scored 70 ments of a Title VII claim. v. U.S. Indus and Cullar scored 72. tries, Inc., (5th 1041 n. 2 Cir. 1984); Falls, City see Rivera v. Wichita part 3. The Bank hired Brown as a time teller in (5th Cir.1982). F.2d 534 n. 4 October of He became a full time teller May of 1980 and served as Cullar’s assistant “ unequal force ‘across the centage of in the Bank’s work board’ attack on all blacks employment practices alleged in Tar- percentage of blacks to have been mirrored Texas, County, employer pursuant Fort Worth committed rant area, citing policy Hazelwood metropolitan racial discrimination.” 457 U.S. States, 152; See, School District United e.g., S.Ct. at John- Inc., Georgia Express, Highway son v. Cir.1969). (5th Falcon, challenges the district appeal, On Watson Supreme practice curtailed Court of the broad class court’s decertification holding that was error for the district applicants employees composed of both certify in that case both challenges the district court’s and further applicants because the dis- both individual claim and resolution of her presumed, erroneously trict court without a For the applicant the claims of class. specific presentation, that the requirements reasons, affirms the following this Court of Fed.R.Civ.P. 23 were reit- met. “[W]e part, court in but judgment of the district action, today erate that a Title VII class judgment re- the district court’s vacates action, may only like other class be claims, remand- garding applicant class satisfied, certified if the trial court after ing for the to dismiss solely district rigorous analysis, prerequisites preju- claims without 23(a) of Rule have been satisfied.” 457 dice. 161, 102 U.S. at S.Ct. at 2372.5 III. CERTIFICATION CLASS Falcon, however, does not all foreclose A court’s class certifica district composed applicants employ classes of and of tion is reviewed under an abuse order 15; 457 U.S. n. ees. at 159 102 S.Ct. at v. Raymark discretion standard. Jenkins See, Vuyanich n. 15.6 e.g., Repub Industries, Inc., 468, (5th Bank, 1195, National 1199- lic Cir.1986). certification, initial a Even after 1200, denied, (5th rehearing 736 F.2d 160 may — determine that certifica district court Cir.), U.S.—, denied, cert. 105 S.Ct. improvidently granted, a dis tion was and 567, (1984); 83 L.Ed.2d 507 Richardson v. decertify, remains free to sub- trict court 1016, (5th Cir.), 1019-20 Byrd, the class certification classify modify or denied, 464 U.S. cert. 23(c)(1); previously entered. Fed.R.Civ.P. (1983). L.Ed.2d 270 The “entirely subjec Telephone Company the General of decisionmaking process” in tive articulated Falcon, 457 U.S. Southwest presents Footnote 15 one factual situation 2364, 2372, S.Ct. putative might in which a class meet the 23(a). requirements of Rule Justice Supreme the in Chief Prior to Court’s decision concurring Falcon, Berger, dissenting in his permitted this Court and a suggests 23(a) opinion, another: Rule alleging race discrimination assert 23(a) pro- of Rule Rule Civil district certified the class as a Federal Procedure 23(b)(2) opposing party "the class vides: grounds the class has acted or refused act on may more of a class sue or One or members class, applicable thereby generally to the milk- representative parties of be sued as on behalf ing appropriate injunctive or corre- final relief (1) only if the class is so numerous that all declaratory respect sponding to the relief with (2) impracticable, joinder of all members 23(b)(2). class as a Fed.R.Civ.P. whole[.]” questions are law or there of fact common class, (3) or of the the the claims defenses Supreme In footnote the Court stated: parties typical representative claims of the proof operated Significant employer that an class, (4) represent- and or defenses general policy con- under a of discrimination parties fairly adequately protect will and ative appli- ceivably justify class could a of both class. the interests employees if the cants and discrimination commonly to these as the Courts refer criteria hiring promotion manifested itself in and numerosity, commonality, typi- requirements of fashion, practices general such as the same cality, adequacy representation. and decisionmaking through entirely subjective addition, must action meet one In class processes. case, 23(b). provisions In of Rule this might showing upon be met that “the Watson asserts the district court erred commonality because the person requirement who persons made same the chal- be aby showing satisfied same lenged by preju- decisions motivated persons types make both of decisions. As- against class], protected dice [the suming, arguendo, correct, that Watson is prejudice itself in manifested both inquiry this Court’s does not end with that hiring decisions and decisions not to conclusion. We cannot conclude that certi- promote [members class].” fication of a class both employees and n., at 162 & 102 2373 & n. at applicants is merely mandated because case, the In the instant district court questions common Rather, exist.7 the oth- opinion on the Chief to cer- relied Justice’s er factors 23(a) enunciated in Rule also composed applicants both tify must be considered. employees. After the evidentiary Thus, assuming a question common was hearing, the district found that a presented case, in the instant e.g., whether individual, Shipp, single Gary respon- group the same supervi- limited of white hiring promotion sible for both deci- sors hiring pro- discriminated both fact, That sions. court rea- motions, question that common was not in soned, commonality require- satisfied the proof fact a central feature in the actual composed for a class appli- ment both presented applicant trial. The employees. cants and After the trial on claims primarily relied flow merits, however, district court con- contrast, statistics. asserted Shipp’s cluded that role was more limited. support promotions claims focused The evidence at trial demonstrated that a on statistical evidence the Bank’s treat- department group supervi- limited of white ment of black employee individuals process, promotions evaluation process, sors made all deci- compensation process sions, employ- and other employee well as evaluations used practices. ment Consequently, the actual compute compensation, upper proof presented demonstrates that Wat- management approved routinely those deci- promotion son’s claim was of typical not result, sions. As a the district court con- claims, applicant and she not was to cluded Watson failed show the ex- representative.8 an adequate class questions istence common between the applicants’ employees’ and claims because This Court concludes it was same responsible individual was not not an discretion abuse of for the district hiring because, for both and decertify decisions. court to the class as fairly The issue in the instant case is not whether it ests of the class members and will be initially adequately protected correct for the district court to was in their absence.” 457 13; certify applicants a broad of both and U.S. at n. 102 n. 157 & S.Ct. at 2370 & 13. employees holding typicality Court presumed or whether this would have cannot be appeal. specific showing on identifying affirmed that certification absent a This common fact, expressly question questions to Supreme Court declines address the of law Court applicants evidentiary approaches whether a class of and focused on the neces permissible sary compared would have been under the facts of to sustain the individual as Rather, question 159, presented this case. the sole class claims. 457 U.S. at S.Ct. at 102 Lilly whether the facts of this case mandate a Supermar class of 2371. See also ket, v. Harris-Teeter 326, (4th applicants employees. Cir.1983), both and This Court con- 720 F.2d 334 de cert. nied, 951, 2154, instant cludes facts of the case do not 466 U.S. 104 S.Ct. 80 L.Ed.2d (1984) (although mandate such class treatment. 539 claims of individual discriminatory class wide over termination lapped proof important pieces Falcon, on several Supreme 8. As the Court noted in promotions, with claims of discrimination in commonality, typicality, adequacy repre- properly the district denied broad class 23(a) requirements sentation of Rule tend to promotions certification raised merge. because claims All focus on a class whether action is significant proof separate from those issues adjudicating an economical method implicated evidentiary by the plaintiff’s issues termination claims and whether the claims and claims). class claims are "so interrelated that the inter-

797 matter, ultimately concluded the “maintenance that Watson was not practical [Wat- did not ad- the victim of racial discrimination. class action action as a son’s] economy litiga- efficiency and ‘the vance matter, As an initial Watson as purpose of the principal is a tion which the district court erred in serts that not ”9 159, Falcon, U.S. at 457 procedure.’ disparate impact analysis applying to her (quoting Pipe American at 2371 102 S.Ct. promotion.11 claims of discrimination in 538, Utah, 414 v. U.S. Co. & Construction Contrary position appeal, on Watson’s 756, 766, 553, L.Ed.2d 713 38 94 S.Ct. precedent this Court’s recent establishes (1974)). proof at trial demon- As the actual challenge allegedly that a Title VII to an strated, promotion claims discretionary promotion system properly id., separately, tried might well have been disparate analyzed under the treatment of discretion to so not an abuse and was disparate impact model rather than the proceed.10 See, NLRB, e.g., model. Lewis v. 750 F.2d (5th Cir.1985); 1266, n. 1271 & 3 Carroll v. CLAIM INDIVIDUAL IV. WATSON’S Sears, 183, Company, Roebuck 708 F.2d & OF DISCRIMINATION (5th Cir.1983); 188 Carpenter Stephen v. 608, University, indi- F. Austin State 706 F.2d analyzed district court Watson’s (5th Cir.1983); Pouncy under the 620 v. of discrimination Prudential vidual claim Co., 795, (5th Insurance 800 Department in Texas Cir. test enunciated Burdine, 1982).12 Having decertify 450 U.S. decided to v. Community Affairs 1089, (1981), class, 248, properly the district court then treat 67 L.Ed.2d 101 S.Ct. Green, Corp. dispar ed Watson’s claim as an individual Douglas and McDonnell claim, correctly ate treatment and the court 93 S.Ct. 36 L.Ed.2d 668 U.S. test, analyzed this claim under the model. Under this Green dissent, Id.; cantly impact Contrary of the adverse on one race. Do- to the assertion 321, 329, Rawlinson, proof does not hold that the actual thard v. 2720, 2726, 433 U.S. Court employee (1977); applicant claims behalf of the Walls v. in order to maintain a class Mississippi Department Welfare, must be identical State Public employ- composed applicant 306, 315, (5th Cir.1984); action of both Page, 321-22 Rather, only we hold that a class ee claims. 726 F.2d at 1045. efficiency econo- action should advance the my litigation complete and the failure of Walls, 321-22; Vuyanich, 12. See also 730 F.2d at overlap any significant the actual 1201-02; Pegues Mississippi 723 F.2d at State degree that it leads this Court to conclude Service, (5th Employment try separately abuse of discretion to not an denied, Cir.), cert. employee and claims (1983); Payne L.Ed.2d 679 ries, Inc., v. Travenol Laborato 798, (5th Cir.), cert. 673 817 Although point only Watson raises the in her 1038, 451, denied, 459 U.S. 103 S.Ct. 74 L.Ed.2d brief, reply the district this Court concludes that (1982). 605 determining court did not abuse its discretion in (district Page, But see 726 F.2d at 1046 employee class failed to meet the nu- evaluating subjective promotional did not err in 23(a). merosity requirement of Rule model). system disparate impact under Watson heavily Page proposition relies on for the that plaintiff may bring a Title VII action under 11. A disparate impact analysis appropriate is disparate theory dispar- the treatment or either by Carpen instant case. As stated ter, this Court in theory recovery. impact the ate Under dis- impression ‘Were this a case first in this parate theory, prove treatment a class must the court, we concluded that would likewise have pattern practice of discrimi- existence of [challenged practices] clearly fell the other ... nation. International Brotherhood Teamsters model, disparate impact the since under ... 324, 1843, States, v. United 431 U.S. 97 S.Ct. 52 ‘limit, segregate, classify1employees they in a (1977). disparate A treatment theo- L.Ed.2d 396 deprive deprive that 'would or tend to intent, manner discriminatory ry requires employment opportunities ...’ individual of by either direct or which must be established race____" contrast, Neverthe because of 706 F.2d at 620. circumstantial evidence. the dis- less, impression, this is not a case of first impact theory require proof parate not does Rather, by Pouncy discriminatory plaintiff Court is constrained and its this intent. the apply disparate analysis employment progeny treatment to facially must show that a neutr.al signifi- practice producing Watson’s has the result of claims. 798

Both the Swint, urge Watson and dissent that dard. Pullman-Standard v. 456 under analyze we this case a different mod- 1781, U.S. 72 S.Ct. L.Ed.2d 66 approval el. Given our of the district (1982). We conclude that the district decertify class, court’s the decision to how- finding court’s the explana- Bank’s ever, suggestion unavailing. this tions for were pretexts its action not for however, say, This is not to not clearly the discrimination is erroneous. plethora which of statistics Watson intro- finding The district court’s will not be set trial, upon duced at which the dissent aside unless this Court on the entire evi- relies, heavily so are irrelevant in an indi- dence is left the with “definite firm disparate vidual case. only treatment Not conviction that a mistake has been commit- may relevant the statistics be at the initial ted.” United States v. Gyp- United States stage establishing litigation of the Co., sum 364, 395, discrimination,13 prima facie case of but (1948). 92 L.Ed.2d 746 “Where there they stage at the third are "also relevant permissible evidence, are two views of the analysis plaintiff attempting when the the fact-finder’s choice between them can- prove proffered by the reasons clearly not be Anderson erroneous.” defendant for its action are either unwor- City City, Bessemer U.S. thy pretexts mere credence or for dis- 1504, 1512, See, Green, e.g., crimination. U.S. at challenges Watson ul- court’s 804-05, case, 1825. In S.Ct. at this timate noof discrimination on three decertify district court did not decide to specific (1) grounds: that the district court class until after complet- the trial had been on erroneously subjective- ed relied the Bank’s and all the statistical evidence had been evidence, ly evaluations, introduced. of the performance Much administered course, primarily was to the plain- related proven which Watson asserts to be tiff’s class Even claims. once the class racially biased, (2) that the district court suit, dropped however, claims erroneously relied a reason not articu- plaintiffs data retained relevance by lated for promote the Bank its failure to it individual claim since continued to bear her, (3) district errone- veracity on the explana- of the defendant’s ously considered a series of articulated promotion tions for its decisions.14 qualifications for in- which were evidence, consistent, hearing

After all the including contradictory, and in- therefore evidence, statistical district court credible. concluded that the reasons offered pretextual. specifically

Bank The district court judge were not We credit this holding clearly under the ed promoted erroneous stan- the Bank’s assertion that stage litigation: 13. Other courts held that have an individual at the third when plaintiff may prima See, Title VII establish a attempts pretext. e.g., facie establish case of racial the use Green, 804-05, discrimination of statis- 411 U.S. at 93 S.Ct. at 1825. See, e.g., Califano, tics alone. Davis v. case, Thus, in statistical data which (D.C.Cir.1980) (‘‘[S]tatistical evidence presented pertinent Watson even remained prima employment establish a case of though fade eventually the class decertified. case.”); discrimination in an individual Reed v. record, There is no indication nor is there (9th Corp., Lockheed 613 F.2d 762 Aircraft any suggestion by Watson or the dis- —either Cir.1980) ); (following Davis Chrisner v. Com- neglected sent—that the district court to consid- Transit, Inc., plete Auto 1259 & n. presented by er the statistical evidence Watson (6th Cir.1981) Davis). (following Carmi- Cf. evaluating credibility in terms of Works, Birmingham chael v. Saw explanations proffered promotion Bank’s for its (11th Cir.1984) ("Statistics can be relevant decisions. case____ important in individual an But statistics alone cannot make a case of individual that, point given 14. We out our should also disparate treatment.”). We need not decide this V, instructions Part evi- in statistical prima infra issue since Watson established a case under Green without facie might dence relevant in class also be action relying exclusively on brought applicants. the class of Moreover, future statistical data. statistics are indis- putably individual Title relevant in an VII case promotion cant class her rather than Watson be- because claims Burt and Cullar claims, had typical applicant in all three instances Watson were not of the cause experience experience supervisory court less district nevertheless chose to address (cid:127) promotion. applicant individual chosen for than the the merits of the claims. The Burt Although the district court noted that district court found that Watson failed to performance evaluations prima received excellent present a facie case of race discrimi- ratings and Watson’s and that Cullar’s percentage nation because the clearly comparable, the district court in the Bank’s blacks work force mirrored placed primary emphasis on Burt’s and Cul- percentage of population blacks no experience lar’s discrimination County of Tarrant and the Fort Worth met- employee evalua- emphasis and little ropolitan area. say cannot that the dis-

tions. This Court Rather than address the correctness of clearly finding was trict court’s ultimate the district population court’s reliance on erroneous. data, figures applicant rather flow parenthetically grave note is more troubled we our con This Court promotion approach, Brown because Brown cerns with the district court’s see Bank’s 823-24, experience Payne, than Watson. 673 F.2d at this va clearly had less Court highly judgment that Cullar cates of the The district court noted district court as promotion, re applicant Brown for the to the recommended it relates class claims. The a teller and as lying performance on his case is remanded to the district court to addition, relied In the Bank applicant preju her assistant. dismiss the claims without supervising tempo experience on Brown’s prejudice dice. We note the unfair Flags Texas! employees at Six Over rary might flow from a determination of the Finally, district court noted that Wat claims class when both the district court position on sick leave when the son was and this Court have held that the named contrast, Brown, in vacant and became proper representa is not a Bank, The how immediately. available 1200; Vuyanich, 723 F.2d at tive. Wheel ever, urge this last reason as a failed to Columbus, City er v. promote for Watson. basis its failure (5th Cir.1983). See also Goodman v. Luk upholding the Disregarding for this basis (3d Co., 777 F.2d Cir. ens Steel decision, never the record district court’s 1986).15 permissible supports still “two theless Specifically, even

views of the evidence.” VI. CONCLUSION though reasons articulated for Brown’s This finds no abuse of discretion Court inconsistent with promotion somewhat court’s class decertification de- reasons for Burt’s the Bank’s articulated addition, this affirms the cision. Court promotions, the district and Cullar’s district court’s conclusion that Watson was explanation. clearly credited the Bank’s Fi- victim of racial discrimination. not the any inconsistency to be so We do not find nally, this Court vacates the district court’s proffered striking as to make the Bank’s judgment as relates to Consequently, reasons incredible. and remands the case to the district claims finding regarding holds Court applicant class to dismiss those clearly

Brown is not erroneous. judgment prejudice. without claims the district court is THE APPLICANT CLASS CLAIMS V. PART, IN AFFIRMED IN VACATED concluding

After that Watson was PART, appli- AND REMANDED. adequate representative not court, pending class action. of reliance on the Court notes that a result Accordingly, 15. As did the district this may enter applicant district court equity requires within the that no black necessary protect to filing it deems period from orders on remand the relevant time be barred applicant members. class alleging the claims of black claims or class claims suit individual GOLDBERG, bank). Judge, IRVING L. Circuit applicants The must start over dissenting: square one,3 and the employees have no choice but to shoulder a far more oner- equivocation, I Respectfully, but without ous evidentiary prosecute burden and their dissent. claims by by one one one. This result today The majority continues and wor- serves efficiency neither economy. nor sens this circuit’s evisceration class significantly, More it disserves Title VII fight against action’s role in the the preventing the from recognizing and scourge of race discrimination. The ero- is, eradicating on what the record before began Republic sion with Vuyanich Na- us, clearly Bank,1 pattern practice a grows today and of tional and it with the dis- certify majority’s ap- refusal to a class of majority crimination. The has left the sub- plicants employees in the and face of com- stantive norms Title twisting of VII in the mon typical questions and of fact and law cold wind of Fifth Circuit’s Rule 23. proof and unrebutted statistical of a class- opinion majority’s The has at least two pattern practice wide of discrimination. readily apparent consequences. First, the Nothing in 23 or this Rule inter- circuit’s opinion compel would a that pretation compels of the rule this result. district court’s initial decision certify to The has been greatest class action class was an of abuse discretion. This enforcing promise instrument in Title VII’s apparent result because the nature invidious race discrimination shall plaintiff’s proof statistical the ma- —which workplace. have no role in the Without the jority typicality deems fatal to the same —is efficiency economy procedural of this whether one group individual of indi- tool, say injuries it is safe to viduals makes decisions affecting thousands would have remained both undis- Thus, every class. if single even decision yet, covered and unredressed.2 And had exclusively by Shipp been made instead very efficiency name of the and economy supervisors, of the white this circuit would give action being, the class its certify now refuse to the class because the only majority disposes of one individual’s representative, class in the absence of a claim and forecloses forever of a pattern smoking gun, rely sepa- was forced to practice discrimination appellee (the Ft. Bank & rate prove up Worth Trust sets of to statistics intent.4 denied, rehearing 1. 723 F.2d 736 F.2d 160 difference a class between action and an indi- — U.S.—, (5th Cir.), 628,; also, cert. denied Chayes, vidual suit.” see Id. The ' (1984). Court, Supreme 1981 Term—Foreword: Public Court, Litigation Burger Law and the 96 Harv.L. 2. As one commentator has noted (1982). Rev. 38-39 broad [T]he foreclosure of class actions de- person’s ability bring creases a a title VII Assuming arguendo applicants bring only suit. An individual can an action case, proceed separately must in this attorney willing if he can find an take his inappropriate. dismissal of the class is plaintiff suing individually A or on be- case. half of a procure cases, proper course is a remand to the district may find it small class difficult appointment proper court for the of a attorney. competent In title VII Greenville, representative. City Satterwhite v. attorney’s the size fee award (5th Cir.1980) (en banc); Carpenter 634 F.2d 231 usually corresponds plain- to the number of Stephen University, v. 608, F. Austin State tiffs involved in the suit. As the number of (5th Cir.1983). 619-20 decreases, plaintiffs attorney’s so too does the Thus, person incentive to handle case. majority open 4. While the footnote leaves impossible bring find it an individual possibility the district court’s initial suit or a narrow action even when he certify decision to class would not have been has a meritorious claim. discretion, hope Note, empty. an abuse of Certifying Classes Subclasses in Title Suits, appellate atypical Once an declares claims VII 99 Harv.L.Rev. law, Moreover, majority as a matter of as the has scope done because differences in here, magic discovery proof, a trial court cannot waive the wand see "Individual burdens infra, judicial Claims’’ "the discretion to resurrect difference between the suc- claims’ Moreover, typicality. cess and the failure of a valid claim is often the even if the trial court Second, important, majority crimination has deter- and more the occurred neither practice suits to the pattern may and mines whether a class action be main- consigns history. Whether this circuit’s dustbin of tained in accordance with Rule 23 nor de- overflowing or from inadvertance fear may class that fines the be certified.” Id. dockets, erecting insurmount- this circuit action, Accordingly, “a Title class VII like to the full enforcement able obstacles action, may only other class be certi- stop to This dam threatens Title VII. satisfied, fied' if the trial court is after a rights statutory and holds the flow of analysis, rigorous prerequisites and The promise of an arid barren future. 23(a) Rule have been satisfied.” Id. 102 duties, from rights, and liabilities that arise at 2372. S.Ct. freely and statutes flow constitution 23(a) imposes upon plaintiffs Rule who impeded that and not to be the fear are represent a duty to class the to seek show We have there will be a flood cases. that: cry days of the hue and since the heard this (1) join- the class is so that numerous nativity, and it has never constitution’s (2) der of all impracticable, members is judicial stopped our instrumentalities questions are there of law or fact com- to carrying out their duties. It threatens class, (3) mon to the claims or defens- today. do so representative parties typi- es of the hand, directly ap- this To the matter or class, cal of the claims defenses of the significant The peal raises two issues. (4) representative parties will the district abused its first is whether fairly adequately protect the inter- bifurcating I the class. be- discretion ests of class. accordingly it did and re- lieve that would commonly These four elements are refered issue, certify the class. second which requirements numerosity, to as com- reach, majority does not is whether the monality, adequacy repre- typicality, plaintiff successfully prima established sentation.5 treat- disparate of class-wide facie case question ment. I would answer this Supreme Prior to the decision in Court’s well, and hold in addition affirmative as Falcon, majority among the rule cir appellant’s failed the bank rebut cuits, particular, this circuit in see Accordingly, I case. would reverse Georgia Express, Highway Johnson appropriate relief. remand for Inc., (5th Cir.1969),

Class permitted at generally “across-the-board” Certification racially discriminatory employ tacks on Although “racial discrimination is def practices upon showing merely ment discrimination,” Tele inition class General plaintiffs they and the phone Company v. Fal Southwest sought represent were of the same race. 2364, 2370, con, 147, 157, 102 Note, generally Certifying Classes See (1982), Feder Rule 23 of the Suits, Title VII Subclasses al of Civil nonetheless re Rules Procedure Falcon, Harv.L.Rev. degree courts stricts the which the however, approach aground this ran on the simple structuring fact deploy this commonality, typicality, and ade- allegation shoals that such dis- actions. “[T]he case, cases, so, I think it is a on our as in most VII cernid do system justice sad reflection Title 23(b)(2), substan- vindication of certified the class under which rights hang can in on an essen- tive civil effect requires judge's tially unreviewable exercise of the trial opposing party acted or re- the class has refusing certify class. discretion in Cf. grounds applicable generally fused to act on supra 2 and note note 9. infra class, thereby making appropriate final to the declaratory injunctive corresponding relief must the class 5. The district court also find that respect to as a relief with the class whole---- may proceed under b of Rule 23. In subsection quacy representation.6 Supreme As the run afoul Rule 23’s prerequisites. In reasoned, particular, Court the Court noted: Significant proof

Conceptually, gap wide employer oper- there is a be- that an (a) general ated a policy tween claim under an individual’s that he of discrimina- conceivably tion justify has been could a class of promotion denied a on discrimi- applicants employees both and natory grounds, if dis- unsup- and his otherwise crimination hiring manifested ported itself in allegation company has a promotion practices and gen- (b) the same policy discrimination, the exist- fashion, through eral such as entirely persons ence of a class of who have subjective decisionmaking processes. injury suffered the same as that individu- al, such that the claim individual’s and Id. at 2371 n. 15. While footnote 15 of ques- the class claims common will share carves exception Falcon out an to what tions of law or fact and that individu- could be considered general against ban typical al’s claim will be the class certifying a class of both employees and claims. applicants, it more accurately no does more simply way describe one in which a at 2370. Id. putative representative class satisfy may Falcon, In a Mexican-American who had requirement Rule 23’s that demon- she sought, denied a as in been this questions strate claims and or of law fact case, represent applicants to unsuccessful typical and common to the class.7 Foot- well in a broad attack on defendant’s note does not purport to describe employment practices. The district court whole universe of questions common of law certified the across-the-board class. The and fact that are appli- sufficient to unite Supreme reversed, unanimously Court employees cants and in a common class. It holding: procedural is not a straight-jacket. any specific Without presentation iden- Since Falcon at least one decision tifying questions of law or fact that upheld circuit has a class of applicants both were common to the claims class [the employees.8 Byrd, Richardson v. representative] and of the members of (5th Cir.), denied, 709 F.2d 1016 cert. sought represent, class he it was U.S. presume error for the District Court (1983), the district court had certified a respondent’s typical that claim was consisting of applicants class both and em against petitioner by other claims Mexi- ployees in a sex against discrimination case employees applicants. can-American employment practices. a Sheriff’s In hold at 2371. Id. ing district court had not erred in Court, however, Supreme did not class, certifying the this court first noted completely possibility foreclose that fu- employees had not held Falcon “that plaintiffs might represent- represent ture succeed applicants never can or that an ing an across-the-board that did not across-the-board appropri- class is never recognized burden, require- 6. Falcon three these Falcon had not met this merge, ments tend to as the first- two "serve as person because "there is no claim that the same guideposts determining for under whether persons challenged who made the decisions particular circumstances maintenance of a class by prejudice against were motivated Americans, Mexican- action is economical and whether the named prejudice and that this manifested plaintiffs claim and the claims are so hiring both the itself in decisions and deci- interrelated that the interests of the class mem- promote respondent." sions not Id. fairly adequately protected bers will be their absence." Id. at 2370 n. 13. Carpenter Stephen 8. See also F. Austin State Cir.1983) (sta- (5th University, 706 F.2d Burger, concurring Chief Justice and dissent- channeling tistical in both custodial ing, separately suggested plain- wrote that a positions and clerical set forth issues law or satisfy tiff Rule 23 if she shows "those justify who made fact sufficient class of custodial decisions are the same both persons promoted." employees). who determined who and clerical Id. at 2373. The Chief Justice found that the did certifying then found a The district court not err in at 1020. The court Id. ate.” 23(a) in the defend- Rule nexus” this class. “sufficient restricting the as- practice of ant Sheriffs Id. deputies to the all new female signment of represent Watson’s Faced with claim to which, the number because

jail, practice applicants class of at Ft. was smaller offered females positions Trust, Worth Bank & and mindful of the males, limited necessarily offered than that Falcon, Supreme Court’s recent decision in then be of females could number that the properly day’s the district court held a full positions to more desirable transferred evidentiary hearing plaintiff’s request. on “this office. The court found the Sheriffs assigned to employees between connection following findings The court made the applicants plainly suffi- jail job ... the decision-making process to the common af- at support of both.” Id. to class cient fecting applicants and employees: found that the The court then Hiring at decisions the Bank are made repre- proper was a named department supervisors, by the who then is- “her claim involved because sentative Gary Shipp decisions submit their to for fact to those of law or common sues of approval. rarely Shipp formal vetoes employees assigned to the applicants hiring made by supervi- decisions those jail.” Id. him. reporting Shipp personally sors to plaintiffs finding based this on The court applicants some but makes interviews showing the hiring only the final for those decisions employment practices were Sheriffs working persons directly under his su- deci- by “entirely subjective infected During all pervision. periods relevant recognized in sion-making processes” suit, Shipp authority had over this final policy as a manifestation of Falcon personnel all matters. might con- impact sufficient to whose be pro- Performance evaluations per- differently otherwise situated nect super- motion decisions made The district found that sons. employees for those under their visors established Sheriffs Office had no “[t]he authority. employees Since 1978 have merit to determine seniority system yearly given written evaluations been eligibility promotion. for transfer o[r] completed by supervi- which are their for guidelines it have Nor did written Salary increases are calculated on sors. Instead, pro- promotion or transfers. performance ratings. the basis of motions and transfers were determined supervisors present the evaluations supervisors, by almost all of whom Committee, Salary Review which male, subjective largely based on president consists of the or executive This demonstrates factors.” Bank, president of the the officer vice sense” “discrimination its broadest opera- charge personnel and the senior only Rich- claim common to was not Occasionally change tions officer. sought repre- and the class she ardson made, Supervisor’s rating with the Compare City Co- sent. Wheeler v. Gary of the full concurrence committee. Cir.1983). lumbus, (5th F.2d Salary Shipp has been member met when The concerns of Falcon were during peri- the entire Review Committee employ- proof surfaced an accused However, he relevant to this case. od adversely affected practice ment employee no more influence over the has employees her and the certified class of ratings do the other committee two applicants. Carpenter See v. Ste- members. University, 706 F. Austin phen State Thus, Opinion, (5th Memorandum Rec. Cir.1983)(custodial workers exclusively supervisory white proper representatives of the same held to be also hiring makes the decisions affected staff that clerical workers since both were affecting procedure). essentially all decisions by subjective job assignment makes depart- respective hiring promotion decisions, their within the Court Salary rep- ments. The Review Committee has determined that there is not a com- process, only resents aberration in question mon or fact law between the Shipp in that it rather than has the final applicants unsuccessful black and those However, say in decisions. raises salary employed by the blacks Bank. The evi- hinge employee score an receives although dence showed Shipp has evaluation, supervisor’s and these her authority final personnel over all deci- rarely by the evaluations are disturbed re- sions, largely his function one of re- then, supervisors effect viewers. viewing depart- decisions made those employee’s for determine part the most supervisors reporting ment to him. The compen- raise as well as her initial rate of supervisors evidence showed that make sation. decisions for their class, opinion certifying In its departments, subject Shipp’s approval, concluded district court that Watson had general and that as a rule to he defers presented “exactly type that of evidence” judgment. Supervisors their also make by Falcon’s 15. envisioned footnote Rec. initial employee upon the evaluation appel- at 220. evidence of This consisted calculated, raises subject which to showing Gary Shipp lant’s that was “re- approval by Salary the three member sponsible hiring for the both and Shipp Review Committee. is a member bank, at defendant and has for over been of committee but does not have Although years____ five defendant as- disproportionate impact on the commit- Shipp serts that Mr. does not make the tee’s decisions. decisions, hiring it is does have obvious he Accordingly, hearing after more evi- decisions, poten- ‘input’ into those with the scope Shipp’s on the of partic- dence or their ‘sway’ tial to otherwise influence range ipation personnel in the wide of through his with the outcome discussions Bank, decisions made the Court supervisors. The evidence before Shipp finds that not did make all Shipp reports directly Mr. Court shows that subsequent as decisions and all decisions officers and never the bank has ad- employees’ and of terms conditions position supervisor.” to a vanced a black Therefore, employment. within the dis- Rec. at 221. district therefore court to alter cretion under Rule 23 the class consisting certified a class of all blacks certification, the finds Court that two employed applied who have been for (1) distinct classes exist: those blacks employment with Bank since October applied who have the Bank for em- 21, 1979, may bank in apply or who to the 21, 1979, ployment since October but The court the class future. found that not applying were hired and those blacks applicants numbered over one hundred future; (2) those blacks who past black and the class and current employed by have been the Bank since employees numbered fifteen as of June 21, October at 404. Rec. A district court remains free under Rule We review the district court’s certifica- 23(c)(1)to and alter certifica- reassess its only tion or decertification a class for prior tion order at time to a decision on discretion, Byrd: abuse v. Richardson “if, upon development the merits fuller facts, recognize complex original ap- We that these cases determination pears cannot be run from the tower of the Advisory unsound.” Committee Comment; given also v. its Byrd, appellate see Richardson distinct institu- supra, 709 F.2d at 1019. print- The district role and that it has before it tional splitting exercised this freedom in the class people. words ed rather than It follows following and offered the reasons: class decisions must be certification Upon hearing testimony protected by a level review that ac- trial on the scope Gary Shipp’s substantial discretion. participation cords

805 certified), expanded plaintiff I heed the bank’s 1019.9 also F.2d at 709 grounds vacated on other sub nom. Lom thing, given the is one warning that Marcera, 915, bard v. 442 prerequisites U.S. 99 S.Ct. mandatory numerous 2833, Paxton v. 23, (1979); to find 61 L.Ed.2d 281 under Rule satisfied must be Bank, 552, National Union its discretion district court abused that a denied, another, (8th Cir.1982) (certification), cert. class, given quite certifying a (“An 1772, 23(b) 76 L.Ed.2d language of Rule permissive Wallace, (1983); Appleyard a class action be maintained as action (11th Cir.1985); Bogosian added), a dis- F.2d 957-59 ”) to hold that (emphasis ... Corp., (3d Oil failing 448-57 discretion in court abused its trict Gulf denied, (antitrust case), cert. case, Cir.1977) or, in decerti- as in this certify a class U.S. fying a class.10 discretion, “plain- show an abuse

To facts in appeal must demonstrate tiffs plainly case the district court indicate, among other the record below concluding ques- erred that there nowas of their claims things, typicality tion of law or fact common to both the adequacy representatives their applicants employees.11 black It putative class.” members of abundantly excluded clear from both the record and Co., Inc., Electric v. Western opinion district court’s the claims Crawford plaintiffs When supra, applicants F.2d at 1305. of both First, or other by questions these facts united common have demonstrated of fact. issues, appellate persons generally and the same made the hir- questions common evaluation, ordering ing, rarely promotion and decisions for have hesitated courts respective departments. of the class. their As the dis- or recertification certification See, University Pitts- acknowledged, trict court e.g., “evidence Samuel Cir.1976) (re- and (3d supervisors hiring showed that make burgh, Chinlund, Marcera v. certification); promotion departments, decisions for their (defendant (2d Cir.) Shipp’s approval, subject and that as a 1237-40 protect- judge plaintiffs adequate representa- 9. While class certification decisions are types of a class that other review that accords substantial tives included ed discretion, a level of employees nonemployees, perceive and we no seem that this level of re- it would uniformly applied on which to find error or an abuse of not be to all basis discretion.”) view should added). judge’s (emphasis guide the district decision. elements that example, whether there the determinations For questions common to the class 11. The trial are of law or fact judge based this conclusion on his repre- or defenses of the hiring and whether the claims finding "Shipp did not make all parties typical should be and are sentative are subsequent decisions and all decisions as to the straightforward. questions, relatively On these employees’ employ- terms and conditions of accords substantial discre- a level of review that ment." This conclusion in turn undermined his appellate inappropriate, is tion is as the Shipp preju- initial decision "whether competent equally than the trial if not more against prejudice diced blacks and whether this make those determinations. uniformly employment court to is reflected in the Bank's practices provided question the common to sat- hand, generally On other the trial court commonality require- isfy typicality and position whether the in a better to determine decision, ments.” Rec. at 403. This initial al- joinder of all mem- class is so numerous that itself, prem- though correct in had turn been impracticable. The trial court is also bers is misreading Burger’s upon ised Chief Justice position generally to determine in a better judge opinion The read the in Falcon. trial fairly representative parties will whether the opinion a common class, Chief Justice’s to mean that adequately protect the interests of the and per- question present only was when the same insofar as the determination involves assess- hiring promotion son made both decisions. competency and the zeal ment of the of counsel Justice, however, did not limit him- The Chief plaintiff. of the recognized single person, but that com- self to a Co., Inc., questions presented when the mon themselves see v. Western Electric 10. But Crawford " ("Since (5th Cir.1980) person persons plain- made decisions affect- “same Falcon, employees. hearing ing applicants point pretrial both to no evidence in the tiffs added). (emphasis S.Ct. at 2373 that would mandate a general judgment.” rule he defers to their majority’s The equivalent assertion is added). (emphasis Rec. at 404 These mana- nothing following: more than the ap- “The gerial arrangements only are disturbed plicant class claims relied on statistics rele- Salary when the three member Review applicants, vant to the employee approve intrudes Committee raises. class claims relied on statistics relevant to However, supervisors who make the employees.” I fail to see how this can hiring promotion decisions also make First, typicality.12 be fatal to there is no employee the initial evaluations on which relevant “contrast”. Both sets of statistics based, strictly are the raises and these represent the decisions of the group same Thus, evaluations seldom disturbed. supervisors. of white The fact that these Shipp himself the fact that does not loom supervisors white were not raked over the prominently the formulation and exe- coals or did not have their motives exam- policy personnel thought cution of as once explicitly ined is irrelevant. Statistical pressing pres- does little to undermine the proof allows a prove to infer and question ence of a common of fact concern- expected intent in the absence of candid ing supervisory the role of the all-white admissions of intent to discriminate. That personnel. is what Thus, statistical is all about. however, majority, deny would certi- the decisions supervisors of these white proof present- fication “the actual because were indeed a central feature in the actual ed demonstrates that Watson’s proof presented at trial. typical claim was not Second, proof disparate treatment upon claims.” This conclusion rests against applicants following assertion: impossible would be without both sets of Thus, assuming question a common was employer statistics. If an discriminates case, presented in the e.g., instant wheth- against applicants, plausible black infer- group super- er the same limited of white suddenly ence is that he does not become a visors discriminated both Douglass employees. Frederick to his promotions, question that common Each set of statistics bolsters the other and proof in not a central feature the actual possible finding pattern makes a of a and presented applicant at trial. The practice of simply discrimination. There primarily applicant relied on claims flow all-encompassing does not exist one statisti- contrast, proof statistics. the assert- by plaintiffs cal measure which can de- support promotions ed in of the claims affecting the appli- scribe decisions both focused on statistical evidence of the employees. cants and majority’s The re- treatment of in Bank’s black individuals quirement proof be identical for pro- employee process, the evaluation groups logically impossible both process, compensation process and motions practices, requirement amounts to a employment and other that the named [em- phasis plaintiff injuries suffer identical to those of added] However, the class members. profound This assertion embodies a misun- Supreme Had the Court in derstanding of what the statistical Falcon meant represents. require injuries, to identical it would not findings disparate 12. While the district court’s bifurcated treatment on behalf of himself and a disparate impact on the individual claims could be and class claim of on behalf of the class. Falcon, for substantially cause 2371, some 102 S.Ct. at These two claims involve different concern. Here, findings the fact that and class proof. individual and unrelated elements of how- separately possibly ever, stated can be cannot serve as Watson advances both her individual and blanket excuse for the denial of class certifica- theory disparate class claims under a of treat- so, If this were tion. Watson would have been require proof ment. Both of these claims improper representative simply intent, had she discriminatory finding and a of intent on sought represent employees to a class of denied nexus, either claim will benefit the other. This promotions. presence together with the of a substantial com- fact, question adequate mon is more than to This concern in Falcon arose from the class satisfy representative’s attempt prosecute requirement typicality. the claim Byrd, ways there examples seniority to estab- was no established have offered system guidelines relationships employment or merit and no written between lish remain a assist in either positions. Nor there deci- would “Instead, analysis typicality; promotions the for an sions. and need [hires] plaintiff would either be representative supervisors, were determined the ... all class. This [white], a member of the of whom were largely or not be based on congres- Id. at 1020. undermines the approach subjective both factors.” underlying Title VII and intent sional ability represent As to Watson’s the of Falcon. holding misconstrues adequately, sig- I find particularly it Newberg Actions Newberg, on Class 4 N. found, nificant that the district court with (2d 1985). The district 24.13 ed. record, § complete support thé class, and the decertifying erred proceeded “plaintiff zealously on behalf of enshrine that error majority has chosen to group applied em- blacks who for law of this circuit. as the Bank, ployment as well as those employed by the Bank.” Rec. at blacks provides an addi- Falcon’s footnote Moreover, though even appli- class of certifying for tional basis split appli- from the First,- as will be employees. cants cants, passed up option appointing of the impending from the discussion clear representative15 proceeded a new “sig- liability,13 plaintiff presented bank’s reach the merits of class’ operated un- proof” that the bank nificant rep- claim on the basis of Watson’s zealous “general policy of discrimination.”14 der a Thus, resentation. on the record before Second, manifested it- “the discrimination me, I first, would hold that the district court general same self fashion” — finding its a lack discussed, discretion through the common abused already questions of law or common to the Shipp; and supervisors bond fact class, second, I would direct the court to recer- through entirely subjective “an de- As in Richardson class. Accord Samuel v. cisionmaking process.” tify Byrd, supra, Carpenter Stephen Supreme East Mo- F. Austin Court noted in Texas concluding Rodriguez, University, supra, by plaintiffs Freight System tor 395, Inc. v. Vuyanich had not carried their burden of 1898 n. "general proving policy of discrimination”: "The district court’s Bank relied certified, however, Where no class has been objective experi inputs on two tried, —education and the class claims remain to be necessarily subjective hiring pro ence—in its plaintiffs should decision whether the named precludes ‘general poli on this cess ... reliance appropriately represent made a class cy exception.” Vuyanich of discrimination’ at record, including developed the facts at full bar, employees’ In the case at the 1199-1200. plaintiffs’ the trial of the individual claims. experience were considered in education and fortiori, A when a class has been certified promotion decisions. For the reasons ex tried, already certification the class claims the pressed in the dissent from the denial of rehear may properly all the take into account decision 160, 162, ing Vuyanich, in I en banc 736 presented. one commentator has evidence As compelled misgivings I would have serious noted. aspect Vuyanich. presence The to follow this permitted to merits Courts are to look the subjective objective necessarily factors in a controversy in to determine if of a order process any hiring process does not render that proof liability theories or their are common. discriminatory. subjective any or less less frequently present- to the class. Statistics are prima rely Byrd, in plaintiffs prove I therefore on v. ed to facie Richardson discrimination, policy general giving of a of discrim- rise after the which case premised part questions ination was in on decision-mak- common to the class. fact to subjective Newberg ing largely Newberg, 24.- "based on factors.” 709 § 4 N. on Class Actions added). 1985). prior (2d (emphasis Byrd ed. F.2d at Vuyanich, this circuit wishes to in time to and if Vuyanich Republic Bank In v. National highest point flag- Vuyanich on the to the hoist 14. denied, Dallas, (5th Cir.), — F.2d 1195 cert. pole jurisprudence, can do so of Fifth Circuit it U.S.—, (1984), 83 L.Ed.2d 507 only through opinion of this circuit. an en banc applicants and decertified a class of court supra distinguished v. See note 3. Richardson 15. University Pittsburgh, supra, the chance get of a white at 997.16 job; hired, per- should black be her Class Claims apt formance to be thirty evaluated points apt paid lower and she is to be particularly in The not voluminous record per month less than identically $46.00 any this case does not disclose substantial qualified white; and the likely Bank is of racial In anecdotal evidence animus. greater advance fact, Trust, responsibilities her to at a partic- Ft. Worth Bank & a not ularly large approximately pay with rate grade per year bank six-tenths Texas, Worth, eighty employees Ft. slowly more the equally qualified employ- at of its black called trial several white. Watson herself unsuccessfully ees, they who testified that had never de- sought promotion on four su- occasions to during tected racial discrimination pervisory positions. employment course of their with the bank. A plaintiff attempt may bring a cause however, numbers, The belie the bank’s VII, of action under Title 42 U.S.C. 2000e § against claim that it has not discriminated seq., et. disparate on either treatment the class on the of race. When basis Wat- disparate impact or the theory recovery. at began proof son her career the bank as a outset, At the one faced appellant’s with operator August the bank em- contention district court erred ployed fifty four other blacks on its mem- failing to assess her under the dis- printed ber work force. checks in Two parate impact plaintiff model. Because has basement, attendant, kitchen one was a proving succeeded in class-wide racial dis- porter. the last was a bank has never disparate crimination under treatment officer, had it a black director nor has theory, I find it unnecessary to decide supervisor. ever had a black Watson’s un- proceeded whether she could have under a rebutted statistics indicate that a black who applies job disparate for a at the bank has impact one-fourth model as well.17 (1983); Although concluding Repub basis for Vuyanich 16. I have no v. Dallas, named the interests of the and other lic National Bank 723 F.2d at 1202. during members conflict class stage, would relief hand, language On the other that is difficult so, they may should do Pouncy, Page to reconcile with court in pursuant employ subclasses to Fed.R.Civ.P. Inc., Industries, (5th U.S. Cir. 23(c)(4)(B). "When the class members are unit- 1984), disparate impact held that model liability ed in interest on the issues but have applied properly pro- could be to assess "a regarding potential conflicts the nature of the system upon subjective motional which is based award, monetary of a relief or the division criteria,” system selection because "such a can potential avoid the conflict creat- facially yet discriminatorily be but neutral be ing Newberg, Newberg subclasses." 1 N. on applied impacts adversely so that one (2d 1985). Class Actions 3.31 ed. § group.” Carlin, Id. at In Griffin (11th Cir.1985), Judge F.2d 1516 Tuttle wrote course, taking appears I avoid what precedent that former Circuit Fifth which —with developing be a intra- and inter-circuit conflict Pouncy implicitly was found to be in conflict— impact analysis. disparate on the reach In. impact challenges disparate to the end “allow[s] Co., Pouncy v. Prudential Insurance 668 F.2d 795 multi-component procedures result of selection (5th Cir.1982), disparate this court held that “the subjective procedures.” and to selection Id. ‘overt, impact theory applied clearly to an iden 1523. The court also found use Griffin nondiscretionary tified selection criteri[on] theory disparate impact of in those circumstanc- applied single point at a in a selection [was] appropriate es is in and of itself. Accord Haw- (citations omitted) process.”’ (em Id. at 800 500, Bounds, (10th kins v. 752 F.2d Cir. 503 added). phasis Accordingly, practice 1985) . evaluating employees by subjective means of dispute insignificant, directly This is not as it ‘facially criteria was held not he "akin to the plaintiffs proof. affects a burden of In contrast employment practices’ disparate neutral im plaintiffs disparate to the burden under the designed pact model test." Id. at 801. model, plaintiff prove dis- treatment need not Travenol, 798, (5th Payne 673 Accord v. 817 criminatory disparate impact a motive under 451, Cir.), denied, 1038, cert. U.S. 459 103 S.Ct. model, showing disparate impact nor does a (1982); Pegues Mississippi 74 L.Ed.2d 605 v. implication discriminatory carry with Service, (5th Employment State 699 F.2d 760 Thus, intent. while both models assess the “im- Cir.1982), denied, 991, 464 U.S. cert. 104 S.Ct.

809 favorably under Title less class-wide dis- tected VII a The burden ”) (citation persons.' omitted).] than other is well established: case parate treatment However, disparity if the statistical prove the plaintiff must Title VII [T]he plaintiffs’ evidence is shown insuf- pattern practice of a existence prima a ficient alone establish facie International race discrimination. treatment, disparate case of we have v. United Teamsters Brotherhood of plaintiff “may get held that a Title VII 1843, States, 324, 97 S.Ct. 52 by combining over his or her hurdle sta- (1977). in a dis- To succeed L.Ed.2d 396 historical, individual, tistics with or cir- case, plaintiff a must parate treatment Payne, supra, cumstantial evidence.” more than the mere occurrence “prove 817; Carroll, supra, F.2d at 708 673 sporadic ‘accidental’ or dis- isolated or prima F.2d at 190. In order to rebut a 16, criminatory acts.” Id. at 336 n. 97 & treatment, disparate facie case of must at 1855 & n. 16. He or she plaintiff’s discredit defendant must preponderance of the evi- by a “establish provide non-discriminatory evidence or a racial discrimination was dence that explanation apparently for the discrimi- operating proce- company’s standard Ibid. natory result. the un- regular rather dure —the Industries, Inc., Page v. Ibid. U.S. disparate In a 726 F.2d practice.” usual 1038, (5th Cir.1984). discriminatory ease intent 1045-46 “General as- treatment good hiring only either direct or faith or of must established sertions be Teamsters, however, su- applicants, best circumstantial evidence. insufficient 15, employer n. If pra, 431 U.S. at 335 97 S.Ct. meet this burden. fails to case, City v. Colum- 15; Wheeler plaintiff’s rebut the district court 1854 n. bus, Miss., 1144, (5th 1150 Cir. conclude that Title VII has been vio- Laboratories, Payne v. Travenol 1982).... lated.”. Inc., supra, 673 F.2d at 817. disparate analy treatment Under the sis, plaintiff may a a Title VII establish Supreme has held that a sta- Court disparate case of treatment prima facie tistical difference between the treatment if the statistics using statistics alone a class and that accorded other accorded “gross disparity” in the treat show a requisite “gross persons reaches the dis- discriminatory ment of workers based on difference between the parity” when the such as race. Hazelwood School factors treat- expected treatment and the actual States, 299, v. 433 District United U.S. greater than two or three standard ment is 2741, 307-08, 2736, 53 L.Ed.2d Partida, 97 S.Ct. deviations. Castaneda v. 430 v. Roebuck & (1977); Carroll Sears 768 17, 1272, 482, 496-97 n. 97 S.Ct. U.S. Co., 190; supra, Payne 708 F.2d at 17, (1977); Hazelwood n. 51 L.Ed.2d Laboratories, Inc., Travenol U.S., 299, Dist. v. U.S. 311 n. School denied, (5th Cir.), cert. U.S. 2736, 2743 n. 97 S.Ct. 74 L.Ed.2d 605 (1977). way “The ‘standard deviation’ is a Pouncy also v. Prudential the likelihood that chance is [See to calculate America, supra, 668 responsible Insurance Co. for the difference between result____ (“When show F.2d at 802 ‘the statistical and an actual predicted result strong disparate ing sufficiently to discard chance as an Statisticians tend action, plaintiffs’ prima when deviations explanation treatment for result [the] expected approach without additional value two stan- facie case can be made Travenol, Payne establishing defend dard deviations.” evidence [the] formula). (providing pro- F.2d at 821 n. 32 purposefully treated minorities ant Industries, Page parate impact theory. employment practices v. U.S. pact” of a defendant’s class, requires (disparate treatment upon 726 F.2d at 1054 this difference showing "gross disparity," while a "marked proof burden of creates a situation in which prove disparate impact triggers prima disproportion” im- suffices which the threshold at pact). liability significantly dis- facie is less under the 810

Thus, testing sifting the standard deviation exceeds withstand informed when result, explanation and an from the defendant both as to method and is a two mission explains comparable something difficulty arriving other than race ... [in] forthcoming, diagnosis the defendant at a correct disparity is not disease. held will be liable. We are no more statisticians than we physicians, are expect counsel who may express also statistical Plaintiffs usof informed and consistent treatment in terms other than standard disparities proofs of such pro- well advised to case, example, in For deviations. ceed as do knotty those who advance chi-square test to ex plaintiff has used problems medical for resolution. in- Our in press findings her terms of the statisti capacity nate in such matters extends to significance disparity. of a A cal perhaps, “the inexorable zero” and un- significant disparity statistically is that a evenly, beyond; day somewhat but the means that there the 0.05 or 0.01 level” “at long past past at least since the Su- percent probability, percent five or one — is a preme sophisticated analysis Court’s disparity is respectively, that due to Partida, 482, v. Castaneda 430 U.S. 97 samples, large the test of two chance. For 1272, (1977) 51 L.Ed.2d 498 S.Ct. deviations found or three standard —when proceed any we with confidence toward to constitute sufficient Supreme Court broad conclusions from crude and incom- equivalent essentially “is to a rule plete everyone statistics. That who has significance at level in the requiring eaten bread has died tell us some- v. Min Craik range 0.05 or 0.01.” below bread, thing very about but not much. Board, University nesota State (8th Cir.1984) 465, (quoting 476 n. 13 Bal Houston, University Wilkins v. 654 omitted), Cole, Statistical Discrimi dus & 388, (5th Cir.1981) (citation 410 Proof of 9.03, (1980)); accord Riv nation § at 297 denied, 822, rt. 459 103 U.S. ce Falls, 531, City v. era Wichita 51, (1982).18 Accordingly, Cir.1982); see Hazel (5th also n. 22 rely heavily adversary pro courts U.S., 299, Dist. wood School strengths illuminate cess to both the n. 2747 n. proffered proof. weaknesses of statistical (Stevens, J., dissenting). L.Ed.2d party facially Where a chooses to leave unrebutted, significant proof essentially guides in With these minimal statistical party proceeds peril, at her own for a hand, plaintiff’s I turn now to statistical presume court will not to shoulder her bur do, however, Before I one cau- evidence. den of rebuttal.19 note, before, tionary sounded is in order: base, Working stipulated The bar is reminded that sound statisti- from a data appellant presented regard- analysis complex cal is a task both first evidence Indeed, obtaining ing hiring. arduous. sound re- discrimination Of 533 white means, applicants during period can and 144 sults these results that black mixing employees, example perils black none 18. For an un- white officers and.three judicial any special expertise informed analysis, statistical intuition with of whom had statistical Rizzo, Pennsylvania F.Supp. to, see only testify and who could the case of the (E.D.Pa.1979), in which district whites, faith, and, good the bank’s in the case of sample court found that a small size defeated blacks, any the absence of noticeable dis- plaintiffs' showing significance. As of statistical criminatory climate. None of the black wit- Cole, (1985 pointed supra out in Baldus & 9.1§ nesses, however, any knowledge had of the sta- however, Supp.), plaintiffs proof of statistical best, disparities. At these witnesses re- tistical significance already had taken into account the evidence. Where the but anecdotal court, effect, sample "The count- size. double evidence, however, relying on statistical these (oth- sample.” ed the influence of the Id. small are about as useful as a football in a witnesses cited). er cases Moreover, game basketball. as will be ex- text, attempts by plained in the defendant’s Except salary, note in the area of see infra on cross-ex- counsel to undermine the statistics presented skimpiest defendant of rebuttal unavailing. amination are witnesses, evidence. As the bank called four whites and facie case of race discrimination. Blacks of the years, four over 16.7% of em- defendant’s represent received offers non-ex- of the blacks 13.1% 4.2% expert that empt employees popula- Plaintiff’s testified of the ployment.20 11.8% 0.0001, significant at disparity County, pop- tion of Tarrant of the 10.2% that this re- probability meaning Metropolitan ulation of the Fort Worth one in ten to chance was was due population sult area and of Fort 22.8% calcula- My 119. own Rec. at thousand. Accordingly, the Worth. Court finds between the show that the difference tions against that no discrimination blacks as a and the ex- number of black offers actual proved class has been on the basis three standard greater pected value hiring practices. defendant’s repeated itself to pattern This deviations. Rec. at 407. appellant’s extent a somewhat lesser fact, finding As a the district court’s applicants who analysis of offers to those finding on the existence of dis- ultimate position21 a teller specifically requested crimination not be overturned unless 0.01) position22 or a clerical (significant at clearly erroneous. Pullman-Standard v. addition, 0.05). appellant (significant at Swint, 1781, 1788, cycles in the see whether certain tested to (1982). A of fact is during which the hiring period, bank’s reviewing if clearly erroneous court is fluctuated, could ac- hiring needs bank’s and firm left with “the definite conviction disparity. Appel- for the observed count a mistake has been committed.” possibility that blacks looked for the lant Gypsum United States v. United States greater when apply in numbers tended to Co., 364, 395, 525, 542, U.S. less. How- hiring needs were the bank’s L.Ed. 746 ever, indicate that blacks and the data significantly differ- apply did not whites unnecessary I believe it to decide wheth- hiring cycle.23 the bank’s ent times vis-a-vis by er the conclusion drawn court, unarticu- population clearly district for reasons data is court from the ignored opinion, completely erroneous, in its agree ap- lated because I would with Instead, it held as follows: these data. pellant that the district court erred as a working popula- matter of law considering the statistical evidence After figures flow tion rather than plaintiffs regarding the introduced defendant, argues correctly Defendant data. of blacks Court figures preferable they present prima population when do not finds 22. following in the chart: 20. The data are described OFFERS TO CLERICAL APPLICANTS, OFFERS BY RACE EMPLOYMENT, OF BY RACE WHITES BLACKS WHITES BLACKS (89) (6) OFFER 16.7% 4.2% (30) OFFER (3) 15.2% 4.8% 83.3%(444) 95.8%(138)

NO OFFER 84.8%(168) 95.2%(60) NO OFFER 100.0%(533) 100.0%(144) TOTAL 100.0%(198) 100.0%(63) TOTAL (hereafter “P-x”) Exhibit 10. Plaintiffs P-x 17. following The data are summarized APPLICANTS, BY RACE TO TELLER OFFERS and cover nine six-month table periods: BLACKS WHITES (6) (32) 5.3% 20.1% OFFER 94.7%(54) 79.9%(127) NO OFFER 100.0%(57) 100.0%(159) TOTAL

P-x 13. Reinhardt, De 822; Medina v. applicant signifi- data is to be at flow shown Travenol, Payne cantly flawed. (D.C.Cir.1982). argu- The same 823, However, significant absent F.2d at applies equal ment with force to the bank’s data, applicant flow these data flaws regarding duplicate contention submis- general popula- are far more relevant than sions.25 analysis employer’s of an tion data to an light appel- the clear and unshaded of 834-24; see Id. also hiring practices. evidence, lant’s statistical I would conclude

Hazelwood, (applicant 97 S.Ct. at 2742 n. 13 that the district ap- court’s conclusion that relevant”). “very flow data pellant prima failed to make out a facie only applicant attack The bank’s on hiring case of discrimination in clearly flow data is a claim that the data fail to wholly erroneous. Because the bank failed applicants’ take into account either appellant’s proof, to rebut I conclude that possibility dupli- qualifications or skew the data As- applications against cative base. the bank has discriminated suming arguendo the bank’s non-ex- hiring. class on the basis of race in its require qualifi- minimal empt positions do I would conclude as well that the bank point on which the defendant cations —a has discriminated the basis of race no evidence24 —the bank none- offered against employee members of the class. suggested no reason to assume that theless By compelling far the most evidence on qualifications unevenly distrib- these point one that also went unrebut- —and blacks and whites. uted between Absent disparate ted —concerns the treatment ac- contrary, courts should decline proof to process.26 corded the class the evaluation to assume that blacks and whites do not period covering Over a four annual evalua- qualifications equal possess the relevant Travenol, tions, proportions. Payne v. average blacks rated an of eleven to APPLICANTS, RACE, BY IN DIFFERENT applied positions, blacks had for the 35 and that HIRING PERIODS of 8% blacks and 28% the non-blacks showed, appellant’s expert As were hired. how- WHITES BLACKS ever, favor, appellant’s these data still cut in PERIODSDURING disparity statistically significant at 0.01. LESS THAN WHICH 2; Defendant's Exhibit Rec. Vol. V at 132-33. APPLICANTS 10% OF 48.6%(259) (76) HIRED 52.8% supervisor 26. Each PERIODSIN WHICH rates the under supervision categories THAN10% or her MORE his twelve on a seven, nine, eight, OF APPLICANTS scale from zero to or ten. 5I.4%(274) (68) work; (1) (2) HIRED 47.2% categories Accuracy The are: ' Alertness; (3) (4) Appearance; Super- Personal 100.0%(533) (144) 100.0% TOTAL relations; Work; (5) Quantity visor-co-worker (6) Fitness; (7) Attendance; (8) Physical De- chi-square probability is 0.37. (9) ("The Stability ability pendability; to with- P-x 22. pressure stand tions”); (10) and remain calm in most situa- ("Ambition”); (11) Drive Friendli- point testimony, Shipp 24. At one in his asserted (12) Courtesy; Knowledge. Job ness that, applicant on his recollection of the based Exhibit 4. Plaintiffs flow, "basically generally whites do have more categories objective New of these have much previous experience" than blacks. Rec. Vol. V. example, “personal appearance,” However, content. For "drive,” preserved at 43. he had not the data courtesy” and "friendliness and on which this recollection was based and I subjective "Quanti- credence; clearly on their face. While unworthy would find it therefore ty objective Work” could lend itself to mea- unacceptable amounts to little more surement, rating system subjec- itself is also "[gleneral good faith or of assertion! 1 0-1, Travenol, require- only applicants.” Payne tive: ment”; 2-3, "does not meet minimum best just enough get by”; supra “does 673 F.2d at 817. "very satisfactory"; of work is 5-6. “volume 7-8, required”; industrious does more than is analysis 25. The bank also submitted its own production type "superior record.” This work data flow which was restricted subjective to dis- applications days measurement lends itself received fourteen within bias, criminatory thirty-five analysis conscious or uncon- be it hires. This showed that 21, 1979, since scious. October 63 blacks and 108 non- points fifteen lower than their non-black non-exempt affected employees. Blacks These co-workers. differences are statisti- averaged consistently less across cally significant from 0.05 to 0.001.27 In presentation board.29 Because the of raw order to see whether factors other than averages alone generally not considered disparities, appel- for these race accounted probative treatment, disparate see Poun multiple regression presented analy- a lant cy v. Prudential Insurance Co. Amer data, controlling employ- for the sis ica, supra, 802-03, 668 F.2d at appellant prior experience grade ees’ and initial multiple regression conducted another placement analy- at the time of hire. This analysis to control for various factors —list sis showed a coefficient for race -34.37 in might ed note 29 below—that have af on the first evaluation and -39.31 on the averages. fected the analysis This again evaluation, that, second which means after significant disparate reflected treatment of controlling for the effects of experience blacks, revealing disparity a in salary of hire, grade at blacks scored 34.37 and per month.30 figure $45.98 This latter points 39.91 below non-blacks on the first statistically significant .05, at appel which evaluations, respectively, and second dur- expert lant’s characterized as “compelling” ing period of the class. Both coeffi- “actually remarkable, kind of given significant cients are at 0.001.28 how much went into equation and the

Appellant analyzed pro- quantity also the bank’s of the number of black employees.” compensation practices they motions and as Rec .Vol. V at 174.31 TION SECOND EVALUA- 29. The FIRST EVALUATION VARIABLE DEPENDENT 27. FOURTH EVALUATION FIRST EVALUATION SECOND EVALUATION ^[*] THIRD ^[**] ***— table: P-x 28. P-x 26. —Statistically —Statistically Statistically In tabular The data are set STATISTICAL REGRESSIONS FOR EMPLOYEE EVALUATION MEAN data are EVALUATIONS, EVALUATIONS, BY significant significant significant form, PERIOD OF CLASS (A) (B) (A) summarized AND CONTROLLED EXPERIENCE GRADE HIRE the results are as follows: VARIABLES out at at at .01 .05 .001 NON-BLACKS (B) BY AT HIRE 85.9 82.8 78.0 84.6 RACE, RACE following AT DURING COEFFICIENT FOR RACE following -34.37 -39.91 BLACKS ***63.0 table: **69.2 **73.9 *74.7 ***— * —Statistically FINAL FINAL FINAL FINAL GRADE AVERAGE INCREASE 30. These P-x 30. ing table: Statistically DEPENDENT VARIABLE PROMOTION SALARY GRADE GRADE GRADE ANNUAL (A) IN significant at analyses significant AND (E) (D) (C) (B) (C) (A) (A) (B) EXPERIENCE EDUCATION (B) FIRST EVALUATION MIDPOINT OF SALARY EDUCATION SECOND EVALUATION FIRST EVALUATION EXPERIENCE EDUCATION EXPERIENCE GRADE RANGE PER FINAL EDUCATION FIRST GRADE DURING FINAL DATE FINAL DATE DATE CLASS PERIOD COMPENSATION REGRESSIONS are summarized in the follow- CONTROLLED .05. VARIABLES .001. AT FINAL AT AT COEFFICIENT FOR RACE -$45.98* -1.38*** -1.21*** -1.22*** -.6 ^[***] During hearing, appellee the certification of- PROMOTIONS COMPENSATION, AND model, expert presented fered a statistical who RACE BY developed through multiple regression analy- NON-BLACKS BLACKS sis, employee Using salaries. current white AVERAGE ANNUAL variable, dependent salaries as the the statisti- INCREASE GRADE .53 .18 IN developed predict cian first a model that would AVERAGE ANNUAL given following the salaries of whites varia- INCREASE SALARY 14.9 % 12.0 % IN tenure, employee’s job grade, AVERAGE bles: the and date GRADE 4.13 5.29 departure. FINAL plotted The data were then on a AVERAGE graph, salary with actual on the x-axis and "re- SALARY/MONTH $917.15 $861.47 FINAL sidual" —the difference between the actual sala- ry predicted P-x 29. salary y-axis. and the —on (1973) progeny.32 find- its When an summarized his individ- expert Appellant’s against a proves ual discrimination certi- ings follows: member, fied class of which she is a her differences, most are race-related [There] proceeds pos- in a individual claim different significant in all of those varia- of them ture. bles, hiring part both present employees____ treatment liability on The establishment of the class pattern race-re- get a consistent You operates prima claim establish facie differences, depending on how lated member case on behalf each you and what the—the many people have class. Once the individual you talking number characteristics proves applied unsuccessfully, that he. stronger Sometimes about. employer burden shifts to es- others, very consistent very, it is but that its hire failure to that indi- tablish And, direction— particular one legitimate was the vidual result non- consistency is I that that frankly, think discriminatory reasons. important than more equal or about Committee, Phillips v. Legislative Joint significance or the single figure Etc., (5th Cir.1981), 1014, 1031 levels. denied, 960, 2035, cert. 456 102 S.Ct. U.S. added). (emphasis V at 175-176

Rec. Vol. Payne also (1982). See v. 72 483 L.Ed.2d statistical evi- appellant’s the basis of On Travenol, 818; v. Min Craik at dence, appellee’s failure to because Board, supra, University nesota State by a at- either direct rebut evidence 469-71. F.2d at means, by other I on the statistics tack against finding A defendant whom proved ex- has the appellant conclude class-wide discrimination has been entered pattern practice of racial of a istence “proved in the of a position finds itself employment practices discrimination longer wrongdoer,” and no en- therefore Ft. Bank & Trust. appellee Worth presumption its joys the decisions Claims Individual Inter- discriminatory intent. were free of dispar- national Brotherhood Teamsters v. finding light of a of class-wide In States, 324, 1843, district United treatment, 97 S.Ct. I hold that U.S. would ate 45, (1977). fact, In considering appellant’s indi- 1867 n. 52 L.Ed.2d 396 erred evidentiary presumption that all defendant’s framework claim the vidual Green, Corp. by discriminatory in- v. 411 decisions were tainted Douglas of McDonnell Thus, is not Id. 1817, at 1868. suffi- 36 L.Ed.2d 668 tent. U.S. fact, (indicating expected below the value. In ranged —180 blacks fall residual values -37.64, salary predicted average than the residual for blacks $180 actual less value (where is, definition, salary equals salary) through average actual zero while the for whites salary) lines predicted Thus, Horizontal 180. appellee’s model shows that + zero. own expected represent were drawn zero—to per average $37.64 on month blacks received represent two 150—to value—and —150 and whites, + less than which tends to. corroborate plotted ran- data fell standard The deviations. appellant’s that blacks rather than rebut gener- domly zero on either of the line side less whites. While each $45.98 received than ally representing two standard within the lines point might fall within two stan- individual data The indicated that deviations. distribution value, expected this result dard deviations accurately graph predicted white salaries. appellant's evidence because the fails to rebut analysis step wheth- to see The next the low points are towards end data skewed predict black salaries er the white model would fact, expert’s only appellee’s com- the scale. statistically degree. significant The data to a ringing was a less ment on this distribution points fell two standard deviations all within "Well, clearly nor- is not endorsement: the data this, appellee’s expected From the expert value. but, then, mal, clearly again, not non-nor- it is graph concluded that described mal.” Id. where was not a factor. Rec.Vol. situation race Ill at 232. See, Community e.g., Department Texas I would not consider this evidence sufficient Burdine, 101 S.Ct. Affairs following showing appellant’s for the to rebut L.Ed.2d points for All but the eleven data reason: two of dent, here, in Furnco repeatedly it was Construction has been to strike down Waters, 438 Corp. discourage U.S. legitimate claims. The 2943, 2950, (1978), back, may turning clock be but let us at employer merely legit “articulate some longer least its stay hands a little to fore- imate, nondiscriminatory reason for the apparent stall the bleakness that seems employee’s rejection,” nor the defend the horizon. Burdine, escape, ant as in 101 S.Ct. at failing district court erred in to find “persuadpng] the without racially disparate against treatment actually proffered it was motivated proper applicants and employees, contrary, employer reasons.” On the and I accordingly would reverse and re- proving “has the burden of that the indi appropriate mand for relief. vidual denied an employment claimant was legitimate opportunity for reasons.” Rich supra, 709 Byrd,

ardson v. F.2d at also, Phillips

See v. Joint Legislative

Committee, supra (employer must affirm

atively its decision establish that “was reasons”) legitimate (emphasis

result of added); Craik v. Minnesota State Univer EITEL, Gary R. Plaintiff-Appellant, (“In Board, sity 731 F.2d at supra, pattern cases, however, practice pre sumption employer only shifts to not HOLLAND, al., Verla Sue et production, the burden of but also the bur Defendants-Appellees. persuading den of the trier of fact that No. 85-2499. likely more not the employer did not unlawfully against discriminate the individ United States Appeals, Court of ual.”) (footnote omitted). I would remand Fifth Circuit. appellant’s individual claim so that it Aug. 29, 1986. be considered in this framework.

Conclusion Rehearing En Rehearing Banc 26, 1986. Denied Sept.

This case have should been a reminder that need not discrimination manifest itself

through spoken word in order to exist.

While gun” of the “smoking absence rare,

might see, now be but e.g., Sylvester Services, Inc.,

v. Callon Energy (5th Cir.1986) (employer “wasn’t

sleeping nigger”), with no Title VII allows

plaintiffs to seek redress from discrimina

tion operates covertly overt well as

ly. deep, While still waters run case this they have

should shown are not neces

sarily pure.

Instead, majority has shown

circuit has the lesson of too learned Falcon Although

well. Falcon is not funeral actions,

pyre for majority broad class place yet stumbling

has chosen to another path long

block of those who have justice. denied I

been have no doubt majority’s opinion used, will be as it

Case Details

Case Name: Clara Watson v. Fort Worth Bank & Trust

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 27, 1986

Citation: 798 F.2d 791

Docket Number: 85-1074

Court Abbreviation: 5th Cir.