731 F.2d 175 | 4th Cir. | 1984
This suit pending since May 1975 has been three times before the district court and twice already before us.
This action involved a charge of an “across-the-board” pattern of discrimination in hiring, job assignments, and promotions at the defendant’s Arlington, Virginia, facility. The plaintiffs were three employees at the defendant’s Arlington facility. The district court, on plaintiffs’ motion, certified the action as a class action with the plaintiffs as class representatives of all persons discriminated against in hiring, job assignments and promotions at defendant’s Arlington facility. After considerable discovery, the action proceeded to trial in February 1976 resulting in a judgment generally in favor of the plaintiffs. On appeal we reversed. We found the class certification for discrimination in hiring improper because of the absence of a qualified class representative and dismissed the claim of discrimination in promotion because of “a failure to prove a prima facie case of discrimination in promotions.” We concluded our decision by ruling that “on this record a finding of discrimination against blacks and females [was] warranted only in job assignments to Shop Trades and against females in job assignments in the warehouse in the Service Center” at the Arlington facility.
Three months after the first decision herein became final the appellants Betty Bailey, Victor L. Furr III, and Darlene Johnson petitioned to intervene, asserting the right to appear as the class representatives on behalf of “all blacks and all women who unsuccessfully sought employment with Defendant at Defendant’s facility in Arlington, Virginia, or successor facilities at any time since July 2, 1965.” The parties engaged in some discovery and filed a number of exhibits consisting largely of statistical tables. After a hearing on the record, which included the new material developed on discovery as well as the prior record in the suit, the district judge denied the motion to intervene. He assigned “two essential reasons” for his denial. These reasons, as summarized in our opinion reviewing the district court’s order, were:
“First, the length of time that the case had continued from its filing in May 1975. On this the court observed that ‘[i]t’s time this case got concluded.’ Second, said the court, intervention would require a hearing on the hiring claims, and this would delay relief on the job assignment claims now upheld on the first appeal because ‘its impractical if not impossible to be running part of the case here and part before the master on the job assignments claims.’ ”3
“These objections [i.e., ‘the formal qualifications’ of the proposed interve-nors] should be addressed in the first instance by the trial court, as a preliminary to its reconsideration of the propriety of allowing intervention by any of the proposed intervenors found qualified as representatives. If a proposed interve-nor is found not formally qualified to act as a class representative the intervention inquiry as to that person obviously need proceed no further.
“If the district court finds any of the proposed intervenors formally qualified to represent the class, it should then reconsider the motion for intervention in light of our discussion of the appropriate standards and factors applicable in this case.”4
The district court, obedient to that direction, proceeded to have a hearing on the issues remanded to it. After reviewing the evidence in the record it concluded that the petitioners had failed to establish their qualifications to maintain a suit as class representatives and it ordered the action dismissed.
In reaching his conclusion, the district judge recognized that there was a factual difference between the situation of the petitioner Bailey and the other two petitioners. He, therefore, addressed separately the claims of Bailey and those of Purr and Johnson. The district judge first addressed the qualifications of the petitioner Bailey to act as a class representative on behalf of blacks and females claiming discrimination in hiring. He held that “in order to be a class representative, you have to have been able to file a suit on your own.” He found as a fact that the last denial of employment or act of hiring discrimination suffered by this petitioner individually occurred in May 1973, and that the petitioner had not filed a charge of discrimination with the EEOC within 180 days after such alleged violation. Clearly, the effect of this failure to file within the required statutory time under 42 U.S.C. § 2000e-5(e) of the Act would normally have been fatal to petitioner’s individual claim. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). In that case, the Supreme Court held that a violation which is not made the subject of an EEOC charge within 180 days after its commission is “the legal equivalent of a discriminatory act which' occurred before the statute was passed” and is “merely an unfortunate
The district court, however, went on to consider whether the petitioner could qualify as a class member by relying on the filing date of the original plaintiffs’ charge of hiring discrimination under the rule stated in B. Schlei & P. Grossman, Employment Discrimination Law, 1262-63, (2d ed. 1983):
“Only the named plaintiff need exhaust the EEOC administrative process prior to filing a Title VII class action; the absent class members need not satisfy the jurisdictional requirements of filing an EEOC charge or receipt of a right-to-sue letter. However, the class will generally be limited to claims of those employees which could have been asserted at the time of the named plaintiff’s charge, i.e., on or after the 180th or 300th day prior to said charge.”
The initial plaintiffs herein filed their first charge of hiring discrimination on August 8, 1974.
The petitioner Bailey’s claim had, therefore, been time-barred before either the original plaintiffs, or any other party, had filed a charge of discrimination in hiring with the EEOC. The district judge accordingly found that, however you considered it, the petitioner Bailey could qualify as a class representative neither on the basis of a charge filed by her with the EEOC within 180 days after the violation complained of by her nor by claiming the date when the original plaintiffs or any other party filed a charge of discrimination in hiring with the. EEOC.
The other two petitioners, Furr and Johnson, on the other hand, had not applied for employment as installers either before the original plaintiffs filed a charge with the EEOC or before this action was begun. It was more than 4 years after this suit was filed that Furr and Johnson first sought work as installers with the defendant. When they did seek work, they did so at defendant’s Landover, Maryland, facility and not at the Arlington facility. In considering the status of these petitioners, the district judge first discussed whether the Landover installation facility was the successor of the Arlington installation facility. He found specifically on this point that “the Landover, Maryland, facility is not the complete, functional successor to Arling
We do not understand that the petitioners in this appeal take issue with the district judge’s finding of fact in his decision dismissing the petitions to intervene. To do so they would be required to show that, such findings were clearly erroneous, Pullman-Standard, v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Comment, An Analysis of the Application of the Clearly Erroneous Standard of Rule 52(a) to Findings of Fact in Federal NonJury Cases, 53 Miss.L.J. 473, 489-497 (1983), and they do not appear to have undertaken this burden. The attack on the district judge’s decree is directed rather at the legal rules or reasoning he used for the result he reached in giving effect to such finding. We address, first, the challenge to the legal principles and reasoning applied by the district judge in connection with the claim of the petitioner Bailey.
The first objection of the petitioner to the district judge’s conclusion is directed at the finding that the petitioner Bailey’s claim was barred by failure to file such claim with the EEOC within 180 days of its occurrence. It is her contention that hers was a “continuing violation”
Actually, we had occasion recently to examine this continuing violation theory and we held that in order to apply this theory that there must be a “present violation” within the required time period. Woodard v. Lehman, 717 F.2d 909, 914-15 (4th Cir.1983). In that case we said: “It is only where an actual violation has occurred within that requisite time period [i.e., within the period of 180 days before the filing of a charge with the EEOC] that under any possible circumstances the theory of continuing violation is sustainable.” (Italics in text)
The primary ground on which the petitioner bases her claim of error in the decision of the district judge, though, is not so much the continuing violation theory but that the requirement of filing with the EEOC within 180 days after a violation is not applicable in connection with petitions to intervene if there are filings of like EEOC charges of discrimination in hiring by others whether the parties filing the claim are plaintiffs in the pending action or not.
The three individuals, who, according to the petitioner, had filed claims of discrimination in hiring before the petitioner’s claim arose, were Leonard Williams, Jr.,
The actual charge filed by Jacqueline Kohls (Banister) is not in the appendix. There is, though a reference to her charge in a notice to the defendant sent by the EEOC. This form notice had an “x” marked opposite the term “Hiring.” However, there is other evidence in the record that makes clear what Ms. Kohls’ claim was. She had been employed by the defendant but had taken maternity leave. At the time the defendant had a policy that at the end of maternity leave the employee was given a job only if one was open at the time. Under this policy Ms. Kohls was denied employment when she reapplied. She, and a number of others similarly situated, received right-to-sue letters and began a class action attacking the maternity policy apparently as sex discrimination. That suit was settled and Ms. Kohls (who had in the meantime become Ms. Banister) received a settlement in the amount of $4,285 and executed a release.
The petitioner suggests another possible excuse for her failure to apply for employment after May 1973. She alleged in an affidavit attached to the petition to intervene and apparently prepared by petitioner’s counsel (who was the counsel for the original plaintiffs) that she had not made any further applications for employment at the Arlington facility after May 1973, “since Western continues to discriminate against blacks and females.” However, in her deposition later taken, she testified that she never came to believe that the defendant had discriminated against her until 1979: in fact, she said she “didn’t think about it” until 1979.
It follows that the petitioner Bailey has not raised any sound ground for disturbing the denial of her petition to intervene. She unquestionably did not have the formal qualifications to act as a class representative in this action. Any discrimination claim she had had expired. 180 days after she applied for and was denied a job by the defendant in May 1973.
Turning to the claims of the petitioners Furr and Johnson: Neither of these petitioners ever applied for work at the Arlington facility; both applied, as we have observed in summarizing the district judge’s opinion, at the defendant’s Land-over, Maryland, installation. Both applied five years after this suit was filed and four years after it was tried. The theory on which these petitioners base their right to appear as class representatives of all unsuccessful applicants for hiring as installers at Arlington is that the Landover installation facility is the successor of the Arlington installation facility. Such an argument assumes that the Arlington installation was shifted, in whole or in part, to Landover. The record is barren of any substantial evidence to support such an assumption. We have no statistics from 1976 to 1979 but we do have statistics for 1979 (the year in which both petitioners applied for employment) and 1980. There was active employment of installers at the two facilities. Employment as installers at both facilities was different both in applicant-flow and racial composition. Thus, in these years the applicant-flow (which was the test used for determining prima facie discrimination in the first decision) for employment as installers at Landover consisted of 314 applicants and at Arlington 225 applicants. The actual hirings in those two years as installers were 63 at Arlington and 78 at Landover. The volume of applicants and of hirees it is true was somewhat higher at Landover than at Arlington but the applicant-flow and the hirings at Arlington did not indicate that the installation operations at Arlington had been transferred to Landover. Moreover, there was a substantial difference in the proportion of blacks and females in the applicant-flow at the installation unit of the two facilities, making the comparison of the two facilities, employment-wise, inappropriate. Thus, there were almost twice as many black applicants at Landover than at Arlington (60.2% vs. 36.7%). The hiring rates at the two facilities were also substantially dissimilar. The percentage of black hirees as installers at Landover was 11.2% and at Arlington 18.3%.
The district judge found on this and other evidence both that the Landover installation facility was not the successor of the Arlington installation and that there was a substantial difference in the applicant-flow at the two facilities, which was the “meas
For the reasons stated, the decision of the district court denying the petitions to intervene and dismissing the action is affirmed.
AFFIRMED.
. Hill v. Western Elec. Co., Inc., 672 F.2d 381 (4th Cir.), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982); Hill v. Western Electric Co., 596 F.2d 99 (4th Cir.), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979).
. 672 F.2d at 389-90.
This case is commented on in Note, Reinstating Vacated Findings in Employment Discrimination Class Actions: Reconciling General Telephone Co. v. Falcon with Hill v. Western Electric Co., 4 Duke L.J. 821 (1983).
See, however, Vuyanich v. Republic National Bank of Dallas, 723 F.2d 1195 (5th Cir.1984):
"The district court allowed intervention by three female former employees who sought to intervene and assert claims of injury relating to promotion, transfer, compensation, job classification, and job assignment. Since these intervenors had not filed timely charges with the EEOC, they were required to ‘proceed ... within the periphery of the issues which [the named plaintiffs] could assert.’ Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir.1968). Thus, intervention cannot bootstrap the court’s jurisdiction to encompass claims regarding practices broader than the hiring and termination claims properly assertable by the named plaintiffs.
"... Since Vuyanich and Johnson had standing to assert only sex discrimination in hiring or race discrimination in termination, Oatis v. Crown Zellerbach Corp. is determinative of the impropriety of allowing intervention."
. There may be some question whether this rule would have any applicability to this case since we held in Hill I that the original plaintiffs never had standing to represent as class representatives claimants of discrimination in hiring. See Vuyanich v. Republic National Bank of Dallas, supra. We, however, find it unnecessary to decide such issue since it is manifest for the reasons set forth in the text that the rule, even if applicable under the unique facts here, would not support the petitioner’s qualifications as a class representative.
. The finding of the Court was:
"As I read the EEOC complaints as originally filed and as amended by the original, named plaintiffs, the first EEOC complaint that mentioned hiring was on August 8, 1974.”
. The court said in this regard:
"I would say that, while the [charge] was filed in May of 1974, that, if prior to the expiration of her 180 days an EEOC complaint alleging discrimination and hiring had been filed by her or by one of the original, named plaintiffs that her 180 days would have been tolled, because there wouldn’t be any point in filing with the EEOC hundreds of firing [sic] complaints in order to keep the hiring claim alive for her and others.
"But by the time the August 8 hiring complaint was filed, Mrs. Bailey had nothing left to be tolled, and, therefore, since she could not, through tolling or otherwise, have filed a suit, on May, 1975, she can’t act, in my view, as a class representative.”
. A number of cases hold that the continuing violation theory is confined to promotion and assignment discrimination claims (i.e., confined to existing employees) and specifically does not apply to hiring or discharge discrimination claims. See Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.1982), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283. However, it is unnecessary for us to consider this question since it is clear that the continuing violation theory is unavailable to the petitioner on other grounds.
. Id. at 915.
See also Bronze Shields, Inc. v. N.J. Dept. of Civil Serv., 667 F.2d 1074, 1084 (3d Cir.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384, in which there was a charge of a continuing violation:
"The statute (42 U.S.C. § 2000e-5(e)) requires that ‘the person aggrieved’ file charges within 180 days of 'the alleged unlawful employment practice.’ This statutory language indicates that some act must aggrieve the complaining party. The record does not show that the defendants acted in any way which aggrieved plaintiffs within the 180 days before plaintiffs filed their EEOC charge. The only act of which plaintiffs complain was the promulgation of the eligibility roster on May 3, 1975. Plaintiffs’ EEOC charge was filed more than a year later, in June, 1976, far more than 180 days after the list’s promulgation, and therefore was untimely.”
. In Dalton v. Employment Security Comm. of N.C., 671 F.2d 835, 838 (4th Cir.1982), cert. denied, 459 U.S. 862, 103 S.Ct. 138, 74 L.Ed.2d 117, we held that such right of a party to rely on another party’s filing is, in any case, dependent on the right asserted by both being “substantially identical”.
. Williams seems to have been a late discovery on the part of the petitioner because he was not disclosed at first as a claimant; the petitioner confined this contention to the charges filed by Newman and Kohls. This is the reason that in her petition Ms. Bailey referred only to charges filed “as early as January 21, 1971,” a statement obviously referring only to the charges filed at that time by Newman and Kohls. It is equally plausible that petitioner did not cite Williams’ claim because Williams abandoned it years before the petitioner ever sought employment at the defendant’s facility.
. The record herein shows that the class, described as "Maternity Leave Claimants — Schedule of Eligible Claimants,” consisted of 28 persons.
. Moreover, the petitioner had shortly after she failed to obtain employment at the defendant’s Arlington facility obtained employment with the post office and has since been continuously employed at the post office. She is entirely satisfied with her employment at the post office and testified unequivocally that she would not accept employment by the defendant if offered such employment. Whether a person who does not actually seek employment and would not accept it if offered can qualify as class representative for persons seeking employment may be open
. We have no occasion to consider whether such a plea would have any validity under the facts of this case but see on the point, Delaware State College v. Ricks, 449 U.S. 250, 261, n. 15, 101 S.Ct. 498, 506, n. 15, 66 L.Ed.2d 431 (1980).
