Nаmed plaintiffs in a proposed class action appeal the district court’s denial of class certification, restrictions on classwide discovery, and ultimate decision on the merits of their individual claims.
FACTS
Plaintiffs George Washington and Edward Barnes started this proposed class action in June 1980 against Brown & Williamson Tobacco Corporation (“B & W”) alleging race-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1981. Their complaint specifically targeted B & W’s cigarette-manufacturing plant in Macon, Georgia. Washington claimed he had been improperly disciplined and discharged because of his race and in retaliation for filing Equal Employment Opportunity Commission (“EEOC”) charges.
Two other plaintiffs, Cynthia Knight and Pamela Tobler, joinеd the action through an amended complaint filed in July 1980.
After a March 1981 discovery conference, the district court limited discovery to the class-certification issue, postponing discovery on the merits.
The district court conducted an evidentia-ry hearing in September 1984, to determine whether plaintiffs could show a sufficient possibility of class certification to warrant discovery on the merits of the class claims. After hearing testimony from the five named plaintiffs and a statistical expert,
Plaintiffs moved for reconsideration of the discovery order several months later; the motion was denied. In the alternative, plaintiffs asked that the court decide the class-certification issue on the existing record with no trial or, if certification were denied, to rule on the individual claims on the existing record with no trial. The district court refused, upholding its earlier discovery ruling and formally denying class certification. The court then directed the parties to completе discovery on the individual claims within 90 days.
At the ensuing non-jury trial, none of the plaintiffs testified, choosing instead to rest on the existing record. After the trial, the court decided that statistical evidence and evidence of pattern discrimination might be relevant in deciding the individual claims of race discrimination and therefore ordered B & W to produce payroll cоmputer tapes for plaintiffs’ expert to review. Both parties submitted expert commentary on the tapes.
The district court rendered a final decision in 1991, see, Washington v. Brown & Williamson Tobacco Corp.,
Class Certification
The district court has broad discretion in determining whether to certify a class. Coon v. Georgia Pacific Co.,
When this suit was originally filed, the Fifth Circuit permitted across-the-board class actions, in which commonality or typicality requirements were presumed to be met when an employment discrimination victim representing a class based on race or sex attacked all of the employer’s unequal employment practices committed pursuant to a policy of racial or sexual discrimination. See Johnson v. Georgia Highway Express, Inc.,
But two years into this litigation, the Supreme Court ended the practice of across-the-board class actions in General Telephone Co. v. Falcon,
the allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims.
Id. Instead, each of the Rule 23(a) requirements must be demonstrated indepеndently of the fact that the members of the proposed plaintiff class were all of the same race, sex, or national origin. See Coon,
Falcon allows for the certification of race-based or sex-based classes if the сlass challenges specific employment practices. See, e.g., Falcon,
The five named plaintiffs have five different disparate treatment claims;
Discovery
The standard of review for discovery issues is whether the district court abused its discretion. Langston v. ACT,
The scope of discovery in Title VII cases is not without limits.
In the class aсtion context, one of the first issues confronting the court is class certification. See Fed.R.Civ.P. 23(c)(1) (“As soon as practicable after the commencement of the action brought as a class action, the court shall determine by order whether it is to be so maintained”). To make early class determination practica
Like the plaintiffs in Stewart, plaintiffs in this case requested much discovery that was irrelevant to the class-certification issue. In addition, plaintiffs’ assertion that the district court failed to allow “virtually all classwide discovery” overlooks the еxtensive classwide information B & W provided over the course of discovery on the certification issue.
Merits of the Individual Claims
The district court’s ruling on the merits of the individual claims is affirmed. Plaintiffs have not identified, nor do we view any of the court’s factual findings as clearly erroneous. See Butler v. Hamilton,
AFFIRMED.
Notes
. Wаshington and Barnes had both filed charges of discrimination with the EEOC pursuant to Title VII on more than one occasion. Each time their charges were rejected by the EEOC.
. Barnes was still employed by B & W when the complaint was filed. He alleged his discharge three years after the suit was filed was racially motivated as well.
. Another employee of the Macon plant, Margie Andrews, joined at thе same time but later voluntarily dismissed her claims.
. Knight, Tobler and Davis never filed an EEOC charge; all relied on Washington and Barnes' EEOC filings to satisfy the plaintiff class’ Title VII requirement of exhausting administrative remedies before bringing suit. But as incumbent employees of B & W, Washington and Barnes lacked standing to object to the compa
. A transcript of the conference shows counsel for plaintiffs agreed to this approach.
. The expert identified certain job classifications (which none of the five named plaintiffs held) in which blacks might be underrepresented. He claimed additional information was needed before he could сonclusively state that a pattern of discrimination or individual discrimination existed.
.Plaintiffs responded by filing a petition for a writ of mandamus and a writ of prohibition in this court; both were denied.
. The requirements of commonality, typicality and adequacy of representation tend to merge. General Telephone Co. v. Falcon,
. Incumbent employees generally cannot represent a class containing unsuccessful applicants. Falcon,
. That plaintiffs raise disparate treatment claims, while not dispositive, weighs against finding the commonality and typicality required by Rule 23. "Disparate impact cases typically involve readily identified, objectively applied employment practices such as testing procedures. The common reach of such practices is likely to be clearer and easier to establish than a general policy of race discrimination alleged to unite otherwise factually dissimilar disparate treatment claims.” Nelson v. United States Steel Corp.,
. Plaintiffs also complain that the court improperly considered the merits of the case in deciding to deny class certification. We disagree. "[A] district court holding a pre-trial certification hearing has no 'authority to conduct a preliminary inquiry into the merits of the suit,' ... [but] evidence relevant to the commonality requirement is often intertwined with the merits." Nelson,
.Most of the opinions plaintiffs cite in support of broad discovery involve discovery restrictions that were much more severe than the restrictions imposed in this case. See, e.g., Trevino v. Celanese Corp.,
. Plaintiffs argue that they did not have “the number and names of persons, by race, who sought initial employment, promotion or transfer,” and "the impact, by race, of each step of each such process and the impact ... of the process as a whole.” Among other information, B & W provided the following:
(1) a list of the plant’s departments and all job classifications for each year from 1975 through 1981;
(2) a description of changes in the composition and structure of the plant's departments, as well as job positions that were added;
(3) a list of any job or series of jobs that were held by white employees only or by black employees only;
(4) the dates upon which B & W submitted “Employer Information Report EEO-l Forms”;
(5) the EEO-l forms themselves;
(6) the identity of the unions;
(7) a 14-page chart showing the number of vacancies in each job title during the period from 1975 through 1981, displaying whether those vacancies were filled by hire, relocation, or promotion, subdivided by racе;
(8) a chart showing the job titles, employment dates, races, and names of all persons holding policy-making positions for the Macon plant;
(9) a chart showing the same information with respect to decision-making positions;
(10) a narrative description of tests administered since 1975 with respect to promoting or transferring incumbent employees;
(11) a chart shоwing the number of persons who took certain of B & W’s tests who were not promoted or transferred;
(12) a narrative description of the plant’s supervisory identification center for promoting persons to supervisory jobs, including charts showing the persons (and their race) that served as assessors and the names and races of persons who received a passing score at the center and werе not promoted;
(13) a narrative description of the qualifications for promotion of hourly and salaried employees;
(14) a chart showing each job classification from 1975 through 1981, displaying the number of white and black incumbents in each year and the minimum salary for each job;
(15) additional charts showing the minimum annual salaries for all job classifications at the plant covering the years 1981 through 1983; a narrative description of the manner in which vacancies were filled; and
(16) a chart showing jobs filled between 1976 and 1981 through lateral transfer.
. Plaintiffs claim the order releasing the tapes came too late because possession of these tapes at an earlier point in the litigation could have aided their attempt at class certification. Plaintiffs provide no explanation of how the tapes supported certification or why plaintiffs did not raise the certification issue again once they had the tapes. See Falcon,
