Petition — Delta Air Lines, Inc. v. McBride
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IN THE | SEP 1 977 |
Supreme Court of the United States’
OCTOBER TERM, 1977
No.
77-336 4
DELTA AIR LINES, INC.,
Petitioner,
VERSUS
JAMES McBRIDE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SIDNEY F. DAVIS
Law Department
Delta Air Lines, Inc.
Hartsfield Atlanta International
Airport
Atlanta, Georgia 30320
WILLIAM F., KIRSCH, JR.
2020 First Tennessee Bank Building
Memphis, Tennessee 38103
Counsel for Petitioner
TT
TABLE OF CONTENTS
Page
Cee Dew eT TEV FIR Ue ON ok oc cc cc cc cccces 1
PD, sR GUM UU Ui ded cet led ee ees dt tbc pacccccees 2
GARI TUM TUL Vici ceca coccccceccbeccccccccs 2
Statutory Provisions Involved .............0 00sec eeeneee 3
I ROR ee ced ec ecepecopeees 3
I. McBride's Employment History ...............5.. 3
ll. McBride’s Individual Claim of Dis-
BS rer 5
Ill. The Scope of Class Allegations of
SPURNED GUECRD Si SoS Se ccc ccc cccces 5
IV. Ruling of Court of Appeals on Class
GE GOD FONDS Vk Welds CESS SEDO. ce vec er cedogcs 7
Reasons the Writ Should Be Granted ..............6.6055: 10
1. The Decision Below Conflicts with the
Decisions of Other Courts of Appeals
as to the Permissible Scope of a
Judicial Complaint Based upon a
Limited EEOC Charge, Investigation
pe PTTL TS eC eee 10
»
TABLE OF CONTENTS (Continued)
*eenereneneneneneneneeeneteeeeneenepeeeneeeeeeeeeeee
TABLE OF CONTENTS (Continued)
Orders and Opinions of the District Court
for the Western District of Tennessee:
(a) April 16,1973; unreported ...........
(b) January 8,1974;unreported ..........
(c) September 11, 1974; unreported .......
(d) March 5, 1975; unreported............
(e) March 17, 1975; unreported...........
Charge of Discrimination filed with EEOC,
FY 1D, IDTD 0 eiiveditv elec deve Web voses
EEOC District Director's Findings of Fact,
September 8, 1971 2.0... cece eee ewseeees
Section 706 (a) through (g), Civil Rights
Act of 1964, as amended; 42 U.S.C.
§ 2000e-5 (a) through (g)....... 0.0000 eceuee
Rule 23 (a) through (d), Federal Rules of
I er eo en ya Pe eee
TABLE OF AUTHORITIES
Cases
Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974) once cece csccsvneveveeseeesessseeseees 11
East Texas Motor Freight System, Inc. v.
Rodriguez, __. U.S. __., 97 S.Ct. 1891
(1DTT) .cccccccccccccccccccccvceesscoveccees 19, 20
Hecht v. Cooperative for American Relief
Everywhere, Inc, 351 F.Supp. 305
(S.D.N.Y., 1972) bo CEU CSRC HOTS Bot ecb cccevcees 13
International Business Machines Corp. 0.
Edelstein, $26 F.24 37 (2d Cir., 1975)... 66 cece eee eeee 18
Jenkins v. Blue Cross Mutual Hospital Ing-
rance, Inc., $38 F.2d 164 (7th Cir., 1976) .... 6.606055: 13
Johnson v. Georgia Highway Express, Inc., |
417 F.2d 1122 (Sth Cir., 1969) . 6c. cc cece cc ewwecenee 18
King v. Seaboard Coast Line R.R., $38 F.24
581 (4th Cir., 1976)... 0 ee cece e eee neibooer’> Hehbed 13
Kinsey v. Legg, Mason & Co., Inc., 60 F.R.D.
PE DDL... WTB) cccccccccccccccccsccccccsccccces 13
Macklin v. Spector Freight Systems, Inc., 478
F.2d 979 (D.C. Cir., 1973) 0. ccc cece cece en eeneenens 15
IV
TABLE OF AUTHORITIES (Continued)
Page
Cases
Ostapowicz v. Johnson Bronze Co., 541 F.2d
pe Ra a 12,15
Oubichon v. North American Rockwell Corp.,
ey I I ic ccc cacccececnc 13
Rish v. United States, 272 F.2d 60 (4th Cir.,
a aM ltd ae ee bbe bt b's cd's bc ccbecnke 18
Sanchez v. Standard Brands, Inc., 431 F.2d
I I ck vs cwecccccscvce eee eececees 7,11
Sciaraffa v. Oxford Paper Co., 310 F.Supp.
EE I kt ae 13
Smith v. United States, 331 F.2d 265 (8th
De oc cccccece 17
Steinberg v. United States, 162 F.2d 120
SS a a 17
Tipler v. E. I. duPont de Nemours and Com-
pany, Inc., 443 F.2d 125 (6th Cir., 1971) ........... 7,14
United States v. Tyrrell, 329 F.2d 341 (7th
DEE SELLE SELL 18
2
Wright v. Stone Container Corp., 524 F.2d
SE ET ee 18
TABLE OF AUTHORITIES (Continued)
Texts
9 Wigmore, Evidence § 2483 (3d ed. 1940) ....
WUE SUMMA 5. HAAS:
SG Ts 60s hho 04 hhh bcanees
QB UGG: BOGE hi iiisin ints base Weekes
42 U.S.C. 8 2000e-5 (a) through (g), Section
706 (a) through (g) of the Civil Rights Act
of 1964, as amended ............-+-+5-:
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
NO.
DELTA AIR LINES, INC.,
Petitioner,
VERSUS
JAMES McBRIDE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
The petitioner, Delta Air Lines, Inc., respectfully prays
that a ‘writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Sixth Circuit entered
in the above case on March 11, 1977.
OPINIONS BELOW
The Opinion of the Court of Appeals for the Sixth Circuit,
reported at 551 F.2d 113, is reproduced in the Appendix
hereto (App. p. A-1).
The Opinion of the District Court for the Western District
of Tennessee, dated September 11, 1974, which is not reported,
is reproduced in the Appendix hereto (App. p. A-22). The
District Court’s Opinion, dated March 5, 1975, which is not
reported, is reproduced in the Appendix hereto (App. p. A-27).
The District Court’s Final Decree, dated March 17, 1975,
which is not reported, is reproduced in the Appendix hereto
(App. p. A-33).
JURISDICTION
The judgment of the Court of Appeals for the Sixth Circuit
was estered on March 11, 1977. A timely filed petition for
rehearing en banc was denied on June 3, 1977, and this petition
for certiorari was filed within ninety (90) days of that date.
This Court's jurisdiction is invoked under 28 U.S.C. 8 1254(1).
QUESTIONS PRESENTED
1. What are the standards by which the EEOC charge,
investigation and conciliation limit the permissible scope of
an individual’s Title VII judicial complaint?
2. Do the policy considerations of Title VII set a special
standard so that courts of appeals may direct district courts on
remand to consider matters beyond the scope of the pleadings,
evidence at trial and assignment of error on appeal?
3. In a Title VII suit where the individual named plaintiff
was found not to be a victim of discrimination and therefore
not entitled to relief, may he nevertheless, consonant with
Rule 23 of the Federal Rules of Civil Procedure, represent
members of a purported class who allegedly were subject to
discrimination?
STATUTORY PROVISIONS INVOLVED
Section 706(a) through (g) of the Civil Rights Act of 1964,
as amended by the Equal Employment Opportunity Act of
1972, 42 U.S.C. § 2000e-5(a) through (g), and Rule 23(a)
through (d) of the Federal Rules of Civil Procedure are repro-
duced in the Appendix hereto (App. pp. A-42 through A-53).
STATEMENT OF THE CASE
The plaintiff, James McBride, initiated this action under the
provisions of Title VII of the Civil Rights Act of 1964, as
amended, and 42 U.S.C. § 1981 alleging that Delta Air Lines,
Inc. (Delta) discriminated against him on the basis of race when
he was discharged following his conviction of assault and
battery on local police officers. McBride also asserted that he
was seeking relief on behalf of other black Delta employees and
applicants for employment at the Memphis terminal, claiming
that Delta had discriminated with respect to hiring, promotion,
compensation, terms, conditions and privileges of employment.
Jurisdiction was based on § 706(f) of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-5(f), and on 28 U.S.C.
8 1343(4).
&
I. McBride’s Employment History
Delta employed the plaintiff McBride, a black person, as a
skycap at the Memphis International Airport on November 4,
1968, at a time when it was hiring few new employees any-
where on its system. Within a very few months on February 10,
1969, McBride was advanced in effect two levels to the position
of Cargo Service Agent in Delta’s freight division, skipping in
the process the intermediate position of Cabin Service Support
Agent. By this two-step promotion at a time when for economic
reasons promotions at Delta were relatively rare, McBride
became the first black in Delta’s freight division at Memphis
and was treated as favorably as, if not more favorably than,
other black or white Delta employees.
During the year following his double promotion, McBride’s
service record was marred by a series of accidents. While
handling Company equipment on the premises he failed to
meet the high standard of care demanded of common carriers,
being involved in three accidents, one of which resulted in
damage to a customer's property and all of which resulted in
damage to Company property. To compound the problem,
McBride violated Company policy by concealing his respon-
sibility for one of the accidents until pressured by fellow
employees to admit his fault. He was also reprimanded on
several occasions for tardiness and for one unauthorized
absence.
On May 3, 1969, while off duty, McBride participated in an
assault upon Memphis Police Officers during the course of a
police investigation of an automobile accident in which he was
involved. When the officers attempted to elicit information
about the accident, McBride and other members of his family
became belligerent, attacking the officers with such severity
that it was necessary to summon additional police cars. The
altercation and ensuing arrest did not involve racial implica-
tions since one of the two police officers attacked was black.
Though under indictment, McBride continued to work
for Delta during the year prior to his trial for assault. On
May 8, 1970, he was convicted of assault and battery and
was sentenced to thirty days in the Shelby County Penal Farm.
Delta then terminated his employment on May 14, 1970, for
conduct unbecoming an employee because of his conviction
of and incarceration for a crime of violence and because of
his poor work record. His discharge was consistent with Delta’s
nationwide policy of discharging persons convicted of crimes
without regard to race, creed, color, sex or national origin.
In short, McBride’s employment record was such as to justify
his discharge for cause.
Il. McBride’s Individual Claim of Discrimination
On July 13, 1970, McBride filed a charge with the EEOC
stating simply “The company discharged me because of my
Negro race.”” A copy is reproduced in the Appendix (App.
p. A-35; Trial Exhibit 31). Based upon this narrow charge
the EEOC confined its investigation to Delta’s policy of dis-
charging employees convicted of a violent crime and the effect
of that policy on Delta’s Memphis terminal employees. A copy
of the District Director’s Findings of Fact is ghana: in
the Appendix (App. p. A-36; Trial Exhibit 31).
Following the EEOC investigation and attempts at concilia-
tion, McBride filed this suit. The trial of the issues was carried
out as two separate hearings. All proof of McBride's individual
claim was introduced at a hearing in January, 1974, at the
conclusion of which the district court determined that McBride
had been discharged for cause and that Delta’s policy of dis-
charging convicted employees was racially neutral both in
purpose and in effect. The Court of Appeals for the Sixth
Circuit, affirmed the district court’s dismissal of McBride’s
individual claim. -
III. The Scope of Class Allegations of Racial Discrimination
While the EEOC charge, investigation and conciliation efforts
were limited to Delta’s discharge policies at the Memphis
Terminal, McBride alleged in his district court complaint that
he represented in this action a class “composed of Negro
persons who are employed, or might be employed, by Delta Air
Lines, Inc., at its district office located in Memphis, Tennessee,”
whom he alleged had been discriminated against “with respect
to compensation, terms, conditions and privileges of employ-
ment” and particularly with respect to Delta’s system of hiring
and promotion. A motion by Delta to strike these claims on the
ground that they went beyond the scope of the charge and the
EEOC investigation was rejected early in the proceedings by
the district court, which refused to limit the issues and evidence
to Delta's discharge policy. (App. p. A-18).
At the second hearing, held in December, 1974, the court
heard additional proof on the class claims. Never at any time
prior to or in the course of either hearing did McBride seek to
have a class certified under Rule 23(c). As a matter of fact,
McBride did not again appear in court after the district court
ruled adversely to him on his individual case, and the second
hearing proceeded without his presence or participation.
Following the first hearing the district court entered an
Order inviting further proof in respect to Delta's employment
practices at the Memphis terminal. (App. p. A-22). Plaintiff
offered no objection to this restriction of the proof to be
presented at the subsequent hearing and offered no evidence
concerning systemwide employment policies other than dis
charge. He presented evidence concerning Delta's other
employment practices only in respect to the Memphis terminal,
allegations and declared that “the Court had not found defen-
with the unsupported statement of the majority opinion of the
court of appeals that the “district court implicitly finds that
there was a pervasive pattern of discriminatory employment
practices at Delta.” (App. p. A-3).
At no point in the proceedings did either party or the district
court consider that the class claims involved other than Mem-
phis terminal employees - as reflected by the claims asserted
in the complaint, the evidence adduced at trial and the opinion
the court. Nor did the plaintiff assign as error or
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or for expansion of the scope of the
beyond the areas inquired into by the district court, the
court of appeals remanded the case for review of the class
rf
IV. Ruling of Court of Appeals on Class Claims
As the basis for its instructions on remand, the Sixth Circuit
Court of Appeals purported to rely on its decision in Tipler v.
E. I. duPont de Nemours and Company, Inc., 443 F.2d 125
(6th Cir., 1971), which was avowedly based upon the Fifth
Circuit rule expressed in Sanchez v. Standard Brands, Inc., 431
F.2d 455 (Sth Cir., 1970). Quoting the rule from Sanchez,
Tipler had stated that:
[T]he complaint in the judicial proceedings is only
limited to the scope of the EEOC investigation
reasonably expected to grow out of the charge of
discrimination. 443 F.2d at 131.
x 2
However, in McBride v. Delta Air Lines, Inc., the Sixth
Circuit opinion distorted the Sanchez standard beyond recogni-
tion in the paragraph which states:
McBride's complaint to the EEOC alleged that
he had been discharged because of his race. The
EEOC’s conciliation effort might reasonably have
been expected to be restricted to Delta's discharge
policies, and perhaps even particularly to the convic-
tion rule which, according to McBride, was racially
discriminatory in effect. However, in order to
determine whether the discharge policy was racially
motivated or was racially discriminatory in effect,
the investigative effort would certainly have required
review of any racially discriminatory practices within
Delta's large and complex personnel structure
Indeed, a pervasive pattern of discriminatory effects
may support an inference of intenti. nal discrimina-
tion underlying the individual charge of discrimina-
tory firing. See Village of Arlington Heights
v. Metropolitan Housing Development
—— U.S. _., 97 S.Ct. 555, 50 L.Ed. 2d
(1977). Therefore, the case must be remanded
for a determination of the appropriate scope of the
class in light of the Tipler standard. 551 F.2d 115.
33
With this holding the Sixth Circuit threw out the rule of reason
enunciated in Sanchez replacing it with an unbending rule of
law best expressed as a syllogism:
expected to grow out of the EEOC charge.
2. The EEOC investigative effort, even on a limited
charge, requires inquiry into all employment
practices within the employer's large and complex
personnel structure.
3. Therefore, the judicial complaint is unlimited
in scope and must extend to all employment
practices within the employer's nationwide
personnel structure.
The court of appeals directed the district court to reevaluate
the class question without regard to the limited scope of the
issues embraced in McBride's charge, the EEOC investigation,
findings, and conciliation process, or the scope of plaintiff's
pleadings, proof and assignments of error. Sharply departing
from the traditional notion of American jurisprudence which
the issues litigated and the proof offered at trial
be left in the hands of the parties litigant, the court of appeals
overrode all previously recognized limits to class certification.
It prescribed a full scale inquiry into Delta's nationwide employ-
ment practices without regard to plaintiff's costs or selected
strategy in fashioning his own lawsuit or the fact that Delta's
employment practices had been the subject of a nationwide
consent decree between Delta and the United States under the
auspicies of the District Court for the Northern District of
Georgia only nine months before the opening of the McBride
z
The instructions of the court of appeals are contrary to
Title VII, Rule 23 of the Federal Rules of Civil Procedure, and
the law expressed by other courts of appeals. If this standard
is allowed to become the class certification mule, even the
simplest EEOC charge will create a project of gargantuan
proportions, heavily burdening already beleaguered litigants
and courts. Judge Weick, in his vigorous dissent in this case,
demonstrated the unreasonableness of the rule and its inevitable
results when he stated:
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REASONS THE WRIT SHOULD BE GRANTED
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(1974).
The earliest and most frequently cited appellate decision
Hi al ut i
how far a Title VII complaint may depart from the
the
EEOC charge is Sanchez v. Standard Brands, Inc.,
455 (Sth Cir., 1970). The court analyzed the relation-
ship bétween the EEOC charge and the judicial proceedings,
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In King v. Seaboard Coast Line R.R., 538 F.2d 581 (4th Cir.,
1976), the court declared:
[The EEOC] charge, enlarged only by such EEOC
investigation as reasonably proceeds therefrom,
fixed the scope of the charging party's subsequent
right to institute a civil suit. The suit filed may
encompass only the ‘discrimination stated in the
charge itself or developed in the course of a reason-
able investigation of that charge.’ Jd. at 583.
The Seventh and Ninth Circuit Courts of Appeals have
adopted a slightly different approach which emphasizes the
words of the EEOC charge rather than the EEOC’s opportunity
to conciliate in defining the scope of the judicial complaint.
Nevertheless both circuits have recognized that the scope of
the litigation must bear a reasonable relationship to the scope
of the EEOC charge. Oubichon v. North American Rockwell
Corp., 482 F.2d 569 (9th Cir., 1973); Jenkins v. Blue Cross
Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir., 1976).
With the sole exception of the Sixth Circuit, every circuit which
has passed upon the question has recognized that the scope of
the EEOC charge, investigation and conciliation imposes limits
upon the scope of Title VII litigation.
In circuits where the courts of appeals have not considered
the question, district courts, have also espoused the practice
favoring voluntary compliance by limiting the scope of a
Title VII judicial complaint to those issues which grow out
of or are reasonably related to the EEOC’s investigation and
conciliation. Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891
(D. Me., 1970); Hecht v. Cooperative for American Relief
Everywhere, Inc., 351 F.Supp. 305 (S.D.N.Y., 1972); Kinsey v.
Legg, Mason & Co., Inc., 60 F.R.D. 91 (D.D.C., 1973).
All circuits which have considered the matter, other than
the Sixth Circuit agree that district courts should be required to
consider only those practices which bear a reasonable relation-
ship to the EEOC charge. In McBride v. Delta Air Lines, Inc.,
however, the Sixth Circuit has expressly and radically departed
from that standard (including its own former standard in
Tipler v. E. I. duPont de Nemours, Inc., supra) by declaring as
a matter of law that the EEOC investigation which the limited
charge might “reasonably” be expected to stimulate includes
investigation of all of Delta’s employment practices throughout
the nation. This construction deprives the term “reasonable”
of all meaning. It ignores both the words of McBride’s EEOC
charge and the reasonable EEOC investigative and conciliatory
efforts expected to grow therefrom, let alone the scope of the
EEOC investigation actually conducted in this case. It requires
the district court to consider all of Delta’s nationwide employ-
ment practices regardless of their relationship to the words of
the charge or to the wrong as to which McBride alleged in his
judicial complaint that he was aggrieved. No other circuit has
remanded a Title VII case for consideration of matters beyond
the scope of the charge, pleadings, proof or assignments of
Furthermore, the Sixth Circuit entirely ignored the actual
scope Oe oe
expressed in the District Director’s Findings of Fact in this
case. Tho Ptodinis ef Pest diet tiek te SBOE tained th
investigation to Delta’s policy of discharging those Memphis
terminal employees who were convicted of crimes. (App.
p. A-36). Where a court is presented with evidence of the actual
scope of the EEOC investigation, it should not be permitted
to ignore that evidence. The court of appeals usurped the
statutorily mandated function of the EEOC when it declared
that the EEOC’s “investigative effort would certainly have
required review of any racially discriminatory practices within
Delta’s large and complex personnel structure.” The EEOC did
not find that the issues raised by the charge should range so
-14-
broadly and neither should the courts. Since the EEOC is
vested by Congress with responsibility for investigation and
conciliation, “the matters the Commission proceeds to investi-
gate should assist in determining the scope of the complaint for
purposes of applying Title VII's jurisdictional requirements.”
Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 988
(D.C. Cir., 1973). See, e.g., Ostapowicz v. Johnson Bronze Co.,
supra at 399. Thus, in this respect as well the Sixth Circuit has
departed from the approach of other courts of appeals by
denying any importance to the actual EEOC investigative and
conciliatory efforts in the determination of the permissible
scope of Title VII litigation.
The Sixth Circuit has jettisoned the rule of reason by
destroying all strictures which other courts of appeals have
found to limit Title VII judicial complaints. Through the
fiction that the EEOC investigation of a limited charge must
“reasonably” extend to all employment practices within Delta’s
large and complex personnel structure, the court of appeals
so holding the Sixth Circuit Court of Appeals is in direct
conflict with all decisions of other courts of appeals and has
negated potter: Maer cx Barmera hee tig
Rights Act of 1964. If the decision is allowed to stand, each
plaintiff who brings suit against a nationwide employer in the
Sixth Circuit will be saddled with the expense and burden of
policy, no matter how limited, is raised in an EEOC charge.
The already overburdened courts will be turned into adminis-
trative or investigative policemen, examining every employment
practice of every national employer. This result is neither
required nor permitted by the Civil Rights Act of 1964.
2. In Ordering Consideration of Matters Beyond the Scope
of the Trial and the Matters Raised by the Parties on
Appeal, the Decision Below So Far Departs from the
Accepted and Usual Course of Judicial Proceedings as to
Call for an Exercise of this Court’s Supervisory Power.
In mandating an examination of all employment policies in
Delta’s nationwide organization, the Sixth Circuit’s instructions
on remand require the district court to consider matters beyond
the scope of the trial and the matters raised by the parties on
appeal. The class allegations of the Complaint extend only to
“Negro persons who are employed, or might be employed, by
Delta Airlines, Inc. at its district office located in Memphis,
Tennessee.” (Emphasis supplied). As the record plainly shows
plaintiff never offered any evidence on Delta’s employment
policies (other than the conviction-discharge policy) on a
nationwide basis and never indicated any desire to expand his
proposed class beyond the Memphis terminal employees. Nor
did the plaintiff argue in the court of appeals that the distric:
court had limited in any manner the scope of the class he
sought to represent. He assigned as error the district court’s
refusal to certify him as a representative of blacks in the local
terminal operation at Memphis, Tennessee, but at no time
during trial or on appeal did he indicate a desire to represent a
class broader then Delta’s black terminal employees at Memphis
or to introduce evidence concerning Delta’s employment
court limited their consideration of the class issues to Delta’s
Memphis terminal facility.
e
The Court heard nationwide evidence concerning Deita’s policy of
persons convicted of crimes in connection with McBride’s
individual claim. This proof was the only nationwide evidence offered.
Nevertheless, the court of appeals on its own initiative raised
for the first time the issue of whether the class issues under
consideration should be expanded to include all employment
practices within Delta’s large and complex personnel structure
and remanded for a “reformulation of the scope of the
[purported] class” in the light of these broader issues. This
ruling by the Sixth Circuit does violence to a number of the
foundational principles of the Anglo-American adversary
system.
First, the parties to litigation and not the courts determine
by proper pleadings and proof the parameters of the issues they
expect to litigate. Professor Wigmore states:
The apportionment of the task of adducing evidence
is one of the most characteristic features of the
Anglo-American system. It is placed wholly upon the _
parties to the litigation; it is not required or expected
of the Judge. 9 Wigmore, Evidence § 2843 (3d ed.
1940)
Any excursion into evidentiary matters not presented by the
parties is discretionary with a trial court, and a court of appeals
should not disturb the trial court’s exercise of that discretion
unless it is abused. Steinberg v. United States, 162 F.2d 120
(Sth Cir., 1947); Smith v. United States, 331 F.2d 265 (8th
Cir., 1964). The district court considered all of the issues raised
and evidence submitted by the plaintiff, and the plaintiff raised
no issue and made no offer of proof as to Delta’s employment
policies on a nationwide basis, other than discharge. A remand
to consider matters entirely beyond the scope of the pleadings
and the evidence adduced by either party is an act contrary to
the function of an appellate court in the American jurispruden-
tial system.
Second, by directing the district court to make findings with
-17-
respect to issues which were never properly before it, the court
of appeals has violated the concept of appellate review and has
acted in excess of its powers. A court of appeals does not have
the power to review matters outside the record or to direct that
other matters should go into the record unless the district court
hus erroneously excluded evidence submitted by a party.
Furthermore, a court of appeals will not rule on issues which
were not raised in the pleadings or in the evidence in the district
court or which have not been urged on appeal. United States v.
Tyrrell, 329 F.2d 341, 345 (7th Cir., 1964); Rish v. United
States, 272 F.2d 60, 61 (4th Cir., 1959); International Business
Machines Corp. v. Edelstein, 526 F.2d 37, 46 (2d Cir., 1975).
The action taken by the Sixth Circuit Court of Appeals in this
case must be termed something other than appellate review
since the court entirely disregarded the pleadings, the evidence
adduced and the assignments of error on appeal. There is no
support in the record for the court’s action.
The intervention by the court of appeals into evidentiary
matters is particularly inappropriate in this case because of the
involvement of Rule 23 of the Federal Rules of Civil Procedure.
The determination of the proper scope of a purported class is
a matter peculiarly within the trial court’s discretion. Johnson
v. Georgia Highway Express, Inc., 417 F.2d 1122, 1123 (Sth
Cir., 1969); Wright v. Stone Container Corp., 524 F.2d 1058,
1061 (8th Cir., 1975). Moreover, the question of whether to
bring a suit as a class action, and if so, what class to represent
is in the first instance a question ‘or the plaintiff. No one is
compelled to file his suit as a class action or to represent per-
sons he does not wish to. The Rule 23 requirement of adequate
representation prohibits McBride from representing persons
in cities other than Memphis whose interests he has never even
attempted to protect.
Under these circumstances the remand by the Sixth Circuit
for a “reformulation of the scope of the class” is tantamount
Fo
to the action of the Fifth Circuit which was reversed by this
Court last term in East Texas Motor Freight System, Inc. v.
Rodriguez, U.S. ___, 97 S.Ct. 1891 (1977). In that case
the court of appeals had invaded the province of the district
court by making a class certification at the appellate level. In
this case the court of appeals has usurped both the district
court’s discretion to determine the scope of the purported class
appropriate for consideration and the plaintiff's discretion to
decide whom he wishes to represent.
This result cannot be tolerated in a Title VII action any more
than in any other type of case. The provisions of Rule 23,
the rules of evidence and the concept of appellate review apply
with equal force in Title VII cases and other types of litigation.
See, e.g., East Texas Motor Freight System, Inc. ». Rodriguez,
supra. For these reasons your petitioner respectfully invokes
the supervisory powers of this Court to overturn this improper
decision of the Court of Appeals for the Sixth Circuit which
grossly deviates from the normal course of judicial proceedings
and from that court’s appellate review function.
3. The Decision Below Conflicts with the Decision of
this Court in East Texas Motor Freight System, Inc. v.
Rodriguez as to the Representation of a Class by a
Person who has Suffered No Discrimination.
The decision of the Court of Appeals in this case conflicts
with the holding of this Court in East Texas Motor Freight
System, Inc. v. Rodriguez, __.. U.S. ___., 97 S.Ct. 1891
(1977), decided during the last term of this Court. Despite the
class allegations in the Complaint, the plaintiff did not move
prior to trial for certification of a class pursuant to Rule 23,
Federal Rules of Civil Procedure, and the district court did not
certify a class. Thus, when McBride’s individual claim was
denied at the conclusion of the January 1974 hearing, the case
had not been certified as proper for class treatment.
McBride lacks all of the elements necessary to qualify him as
a proper representative of any class of Delta employees or
applicants for employment under the provisions of Rule 23 of
the Federal Rules of Civil Procedure. The district court itself
expressed misgivings about McBride's ability to represent any
class but nevertheless allowed him to introduce further evidence
on the class claims over the defendant's contention that the
plaintiff was not entitled to represent a class in this case.
(App. p. A-25). At the hearing on the class matters McBride
was not personally present. The evidence shows that McBride
was favored over other black and white employees in hiring
and promotion, and. McBride did not assert in his testimony
that he personally had suffered from any discriminatory action
other than the allegedly discriminatory discharge following his
criminal conviction. In fact, McBride affirmatively testified that
he was not denied promotion because he was black.
Under these circumstances a remand by the court of appeals
to consider class certification conflicts with the ruling of this
Court in East Texas Motor Freight System, Inc. v. Rodriguez,
supra, where the Court stated:
As this Court has repeatedly held, a class repre-
sentative must be part of the class and ‘possess the
same interest and suffer the same injury as the class
members.’ Jd., 97 S.Ct. at 1896.
the
more, the court of appeals affirmed the dismissal of McBride's
individual claim. Therefore, a remand to the district court to
consider representation of a class by a person who “could have
suffered no injury as a result of the alleged discriminatory
practices, and [is] , therefore, simply not eligible to represent a
class of persons who did allegedly suffer injury” is both futile
and Ct. at 1897. In accordance with the
decision of this Court in East Texas Motor Freight System, Inc.
¢ the Complaint “insofar as
y class, is dismissed without
.” 2/ This result should not be disturbed.
!
.
ment
does court “that a grant of injunctive or
other relief would be ‘unwise.’ Rather, the district court expressly found
that Delta was not guilty of discrimination and as a result that no relief
was appropriate, and this ruling is supported by the substantial evidence
in the record. This Court will not need to review this evidentiary question
-21-
McBride is Wogical and contrary to the decisions of
Courts of Appeals for the th
Ninth Circuits. It ignores the intent of Congress in
Title VII, the requirements of Rule 23 as set out in this Court's
In this Petition we have discussed the EEOC investigation and
conciliation functions interchangeably as have the cases in most
circuits. But nowhere have the courts clearly delineated the
function of investigation or conciliation or the bearing of either
upon the scope of a Title VII judicial complaint. These ques-
tions urgently require the attention of this Court.
For these reasons, a writ of certiorari should issue to review
the judgment and opinion of the Sixth Circuit.
Respectfully submitted,
SIDNEY F. DAVIS
Law Department
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
Atlanta, Georgia 30320
WILLIAM F. KIRSCH, JR.
2020 First Tennessee Bank Building
Memphis, Tennessee 38103
HEISKELL, DONELSON, ADAMS,
WILLIAMS & KIRSCH
2020 First Tennessee Bank Building
Memphis, Tennessee 38103
CERTIFICATE OF SERVICE
I hereby certify that on this _3)st. day of August, 1977,
three copies of the Petition for Writ of Certiorari were mailed,
postage prepaid, to A. G. Burkhart, Jr., 1016 Dermon Building,
Memphis, Tennessee 38103, Counsel for Respondent. | further
certify that all parties required to be served have been served.
Gin LZ. Fon
WILLIAM F. KIRSCH, JR.
2020 First Tennessee Bank Building
Memphis, Tennessee 38103
Counsel for Petitioner
No. 75-1955
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
v. Court for the West-
Dexta Ain Lines, Inc., erm District of Ten-
Defendant-Appellee.| ““****:
Decided and Filed March 11, 1977.
Before: Wecx, Eowanps, and McCnee, Circuit Judges.
The Court delivered a per curiam opinion, in which Weicx,
Circuit Judge, (pp. 5-15) filed a separate dissenting opinion.
Pen Curiam. James McBride appeals from the dismissal
of his individual and class claims against Delta Air Lines. In
his complaint he alleged that Delta had disc ‘minated against
him in particular and against black employees and black ap-
plicants for employment in general because of their race, in
violation of 42 U.S.C. §§ 1981 and 2000e-2.
Delta had a national policy requiring dismissal for “conduct
unbecoming a Delta employee,” and regarded conviction of a
crime as within that standard. In 1970, appellant was con-
2 McBride v. Delta Air Lines No. 75-1955
termined, after comparing the race of all enployees discharged
because of the national policy about convictions with the
race of all dischargees, that the national policy was not dis-
criminatory in effect. Of course, an employment practice
which is discriminatory in effect on the basis of race, sex,
religion or national origin violates 42 U.S.C. § 2000e-2(a)
(1) and (2). Griggs v. Duke Power Co., 401 U.S. 424 (1971).
But these determinations are supported by the evidence and
are not erroneous. We therefore affirm the judgment of the
district court insofar as it dismisses McBride's individual claim.
We do not believe, however, that the district court cor-
rectly applied our circuit standard expressed in Tipler v.
DuPont, 443 F. 2d 125 (6th Cir. 1971), defining the scope of a
class in a Title VI1 complaint. The district court's order does
not make clear whether the class aspects of McBride's com-
plaint were dismissed because no class could properly be
certified, because the scope of the class would be more narrow
than that which McBride had sought, because Delta had not
violated 42 U.S.C. § 2000e-2, or because on the evidence
presented no relief, injunctive or otherwise, was warranted for
a violation of the statute.
In Tipler, we stated that the complaint filed by an aggrieved
employee limits in some respects the scope of the class which
may be certified in judicial proceedings. However, we held
that the district judge should not restrict the scupe of the class
more narrowly than the ambit of the EEOC investigativn that
the individual's complaint might reasonably have been
expected to stimulate. Because administrative complaints are
filed by completing a form designed to elicit specificity in
charges, and because the forms are not legal pleadings and
are rarely filed with the advice of legal counsel, any other
standard would unreasonably limit subsequent judicial pro-
ceedings which Congress has determined are necessary for
effective enforcement of the legal standards established by
A-2
No. 75-1955 McBride v. Delta Air Lines 3
Title VII. See House Report No. 92-238, U.S. Code Cong. and
Admin. News 2141, 2147-48 (1972).
McBride's complaint to the EEOC alleged that he had been
discharged because of his race. The EEOC’s conciliation effort
might reasonably have been expected to be restricted to Delta's
discharge policies, and perhaps even particularly to the con-
viction rule which, according to McBride, was racially dis-
criminatory in effect. However, in order to determine whether
the discharge policy was racially motivated or was racially
discriminatory in effect, the investigative effort would cer-
tainly have required review of any racially discriminatory
practices within Delta's large and complex personnel structure.
Indeed, a pervasive pattern of discriminatory effects may sup-
port an inference of intentional discrimination underlying the
individual charge of discriminatory firing. See Village of Ar-:
lington Heights v. Metropolitan Housing Development Corp.,
45 U.S.L.W. 4073, 4077 (1977). Therefore, the case must be
remanded for a determination of the appropriate scope of the
class in light of the Tipler standard."
Furthermore, whatever may be the proper scope of the class,
the district court’s dismissal of the class claims on the merits —
is unwarranted. In its written opinion the court implicitly
finds that there was a pervasive pattern of discriminatory
employment practices at Delta when McBride’s admin-
istrative and judicial complaints were filed. Nevertheless, it
does not determine whether or not Delta has violated Title
VII. Instead, the opinion states that a grant of injunctive or
other relief would be “unwise.” This determination may have
been based in part on Delta’s evidence of good faith {forts
' , as in all class actions, any certification must conform to
the requirements of Rule 23 of the F Rules of Civil Procedure.
Because district court did not reach this issue. we express
4 McBride v. Delta Air Lines No. 75-1955
to remedy the earlier discrimination. and in part on the
difficulty of coordinating relief with the administration of a
system-wide discrimination suit brought by the United States
against Delta in the Northern District of Georgia. See United
States v. Delta Air Lines, No. C-18175 (N.D. Ga., April 27,
1973).
We agree with the district court that an appropriate dispo-
sition should afford the Memphis employees the opportunity
to have their claims of discriminatory employment practices
at their terminal fully considered, should recognize the interest
-of Delta in avoiding inconsistent remedies or unnecessarily
onerous liability, and should not interfere with the orderly
implementation of the Atlanta system-wide decree. The pro-
cedures for multidistrict litigation, see 28 U.S.C. § 1407, may
be useful in reconciling these objectives.
The casé¢ is therefore remanded for reformulation of the
scope of the class. for findings of fact and conclusions of law
on the charge that Delta has violated the rights of the class
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2, and 42 U.S.C. § 1981, and for appropriate class
remedies if a violation is found. The foregoing is without
prejudice to the utilization of the procedures for multidistrict
litigation, if the district court should in its discretion determine
that those procedures would be useful.
No. 75-1955 McBride v. Delta Air Lines 5
Wercx. Circuit Judge, Dissenting. I would affirm the judg-
ment of the District Court in its entirety. 1 regard McBride's
claim for discriminatory discharge as frivolous, and the remand
ordered by the majority opinion as wholly unnecessary.
McBride was employed by Delta as a Skycap in 1968. His
employment came about as a result of the friendship and in-
fluence of his father with Delta's Memphis Terminal Manager.
The following year McBride, who is black, was given a double
promotion to the position of Cargo Service Agent, which was
a responsible position, and in receiving the promotion McBride
skipped the intermediate position of Cargo Service Supply
Agent.
After receiving the promotion. however. his work product
deteriorated. He had three accidents on company premises due
to his negligence in operating a company vehicle, which negli-
gence resulted in property damage. The District Judge, in
his opinion. indicated that it was shown in several areas that
McBride was accident prone. He further stated:
A great deal of emphasis was given to the fact that in
one of these accidents there was an alleged defective con-
dition of brakes, which the Court feels was really imma-
terial to any question here. The condition of the brake of
the object hit seems scarcely to the Court to be material
to whether the person hitting it with another object was
careless or not, and the proof and evidence, the Court
feels, demonstrated that the carelessness occurred in the
case of this employee and that we don’t find that with
respect to the time that Mr. McBride was employed by
Delta that it has been established that there was dis-
crimination practiced against him with respect to any
discipline that may have been imposed by reason of these
different episodes.
It has also been shown that Mr. McBride, in connection
A-S
6 McBride v. Delta Air Lines No. 75-1955
and was testified about by one of the supervisory officers
in appraising Mr. McBride's trustworthiness in that
respect.
In addition to his being accident prone, which is not a
virtue for an airline employee whose employer is required by
law to maintain at all times a high standard of safety for its
passengers and crew, McBride was subject to discipline for
being tardy and absent from work. Notwithstanding this poor
employment record, Delta took no action to discharge him
until after he had been convicted upon his plea of guilty and
had served a sentence of a serious violent crime of assault and
battery committed upon two police officers of Memphis,
Tennessee.
On May 3, 1969, while off duty, and following an automobile
accident in- which he and his brother were involved, an alter-
cation took place between McBride, his brother and the two
police officers who were at the scene and were investigating
the accident. One of the officers was white and the other was
black. McBride and his brother, both of whom were intoxi-
cated, attacked the two officers, injuring one of them. It was
necessary to cal] out additional police cars to the scene in
order to rescue the officers. No racial connotations were in-
volved in this incident since the attack was upon both white
and black arresting officers.
McBride was arrested and charged with assault and bat-
tery on the officers. Even this incident did not result immedi-
ately in his discharge. The company cautiously waited until
after his trial before taking any action. McBride's criminal
case did not come up for trial until a year later, i.e., May, 1970,
when he entered a plea of guilty to the charge and was sen-
tenced to thirty days’ imprisonment in the Shelby County
Penal Farm. Delta’s officials from its Georgia office then dis-
charged McBride because of his conviction and sentence for
the commission of a violent crime, and because of his poor
A+6
No. 75-1955 McBride v. Delta Air Lines 7
work record. This action was pursuant to its national policy
permitting discharges for conduct unbecoming a Delta
employee.
McBride then filed a charge with EEOC, which stated
simply: “[T])he Company discharged me because of my
Negro race.”
McBride filed a class action against Delta in the District
Court, with a pauper’s affidavit, although the District Court
found that he had at that time secured other employment with
substantial remuneration. In his complaint he alleged with
respect to his personal claim:
1. The following policies, practices, customs and
usages made unlawful by Title VII of the Civil Rights Act
of 1964 have been instituted and/or maintained by the
defendant, Delta Airlines, Inc.
2. (A) The defendant refuses, to allow Negro em-
ployees to continue employment for defendant after said
Negro employees have been convicted of a crime, felony
or misdemeanor. The defendant has allowed and con-
tinues to allow white employees of said defendant's or-
ganization to continue employment after they have been
convicted of a crime, felony or misdemeanor.
McBride also alleged discrimination in the hiring, promotion
and seniority practices of the company, none of which were
applicable to him.
His prayer was for injunctive and back pay relief for him-
self and for his class.
The only trouble with McBride's claim for discriminatory
discharge was that it lacked evidentiary support and sub-
stantiality.
er
8 McBride v. Delta Air Lines No. 75-1955
As before stated, Delta had « system-wide rule providing
for the dismissal of employees for “conduct unbecoming of a
Delta employee.” Under this rule the company considered
conviction of a violent crime, such an assault and battery, to
be conduct warranting discharge. Between January, 1970 and
January, 1974, the time of the first hearing in the present case.
Delta, system-wide, terminated the employment of 79 of
its employees for conduct unbecoming of an employee; of these
79 employees 49 were whitc, and 30 were black. 17 employees,
four of whom were black, were discharged for misconduct
away from company property. Additionally, 15 of these 79
employees were convicted of a crime, and of these 15 cm-
ployees 9 were white, 4 were black, one was Spanish-Ameri-
can, and one’s status was unclear from the record.”
This does not prove a discriminatory discharge in any
respect. To the contrary, many more whites were discharged
for misconduct than were blacks. The record does not show
that any of these whites ever filed charges with EEOC, al-
leging discrimination, nor did any of the blacks other than
McBride.
The District Judge heard the evidence for three days, and
at the conclusion of the evidence on January 4, 1974 he de-
livered an oral opinion which is set forth at length on four-
teen pages of Appendix Vol. I. In his opinion the Judge
made findings of fact and conclusions of law. He found that
the national policy of Delta, providing for discharge of em-
ployees for conduct unbecoming a Delta employee, where
criminal, or allegedly criminal, or immoral or wrongful con-
duct is involved, was a facially neutral policy and was not
intentionally discriminatory in any respect. After detailing the
evidence, which included the fact that Delta waited for a
year until McBride was tried, convicted, sentenced, and had
served his sentence, before discharging him, the Court held
A-8
2 It is unclear from the record in which group the Spanish-American
included. /
No. 75-1955 McBride v. Delta Air Lines g
that he had not met his burden of proof required under 42
U.S.C. § 2000e-5 to establish that Delta had intentionally
engaged, or is engaging, in an unlawful employment practice
in regard to his discharge, and found in favor of the defendant.
The Court continued for a further hearing the class action
aspects of the case by a preliminary order entered on January
8, 1974. |
On September 11, 1974 the District Judge entered another
order in which he reaffirmed his previous order and again
held, after further recitation of the evidence, that the policy
of discharge in these circumstances was facially neutral and
was carried out in a racially non-discriminatory fashion.
These findings of fact are supported by substantial evidence
and are not clearly erroneous; in fact, no other conclusion
could be reached without doing violence to established legal
principles.
The Court continued the case further to permit counsel to
respond to certain questions relating to the class action aspects
of the case, including the applicability of the consent decree
which had been negotiated with the Civil Rights Division of
the Department of Justice and the Department of Labor
in the pattern and practice action filed by the United States
v. Delta, in the District Court in Atlanta, Georgia, dated
April 27, 1973, Civil Action #18175, which had system-wide
application and had been availed of by employees at the
Memphis Terminal.
The final hearing of the class action was conducted on
December 20, 1974. McBride did not even attend that hearing:
he apparently was no longer interested since his personal
claim had been dismissed.
In an order entered on March 17, 1975 the Court, after |
discussing the evidence and the applicability of the consent
decree in the Atlanta case, stated:
The Court has discussed the class aspects of the com-
plaint and considered relief only with respect to the
prayer for general relief from racial discrimination as it
A-9
10 McBride v. Delta Air Lines No. 75-1955
may affect other Delta employees besides McBride. No
notice has been given in this case to potential class mem-
bers, and the Court has made no F.R.C.P. 23 determina-
tion that it should be constituted as a class action. There
has been considerable doubt that McBride is an appro-
priate class representative except with regard to those
who may claim to have been discharged improperly by
reason of race during the relevant period here involved.
The E.E.O.C. investigation on the simple and concise
charge that “The company discharged me because of my
Negro race” would evidently and logically be confined
S
terminations only.’ Appropriate consideration of the
charge made should consistently then be limited to dis-
charge situations, not those dealing with promotions,
seniority systems, bidding, transfer and hiring policies.
Sanchez v. Standard Brands, 431 F.2d 455 (5th Cir.
1970); Oatis v. Crown Zellerbach, 390 F.2d 496 (5th Cir.
1968); E.E.0.C. v. New York Times, d/b/a WREC-TV,
364 F.Supp. 651 (W.D. Tenn. 1973). See also Tipler v.
DuPe~t, 443 F.2d 125 (6th Cir. 1971).
'This is borne out by the District Director’s findings and
[sic] fact dated September 8, 1971, in McBride's case.
The Court then entered a final order dismissing, with pre-
judice, McBride's great claim and dismissing, without pre-
‘Ried ens tink vate eas EE the District
Court's order. First, ae only charge ever filed by McBride
with EEOC was the one in which he stated, “The company
discharged me because of my Negro race.” The charge filed
by McBride with EEOC caused EEOC to investigate only his
discharge. That matter was investigated by the Regional
Director of EEOC, and he adopted the findings of fact here-
inbefore quoted in footnote 1, indicating that there was no
basis for the charge.
EEOC had no reason to investigate the hiring, promotion
and seniority practices of a national airline throughout its
A-10
No. 75-1955 McBride v. Delta Air Lines 11
entire system, because no charge had ever been filed with
it that would reasonably cause it to make such an extensive
investigation.
In Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125
(6th Cir. 1971), the Court, in an opinion written by the late
Judge William E. Miller, recognized that “the complaint in
the judicial proceedings is only limited to the scope of the
E.E.O.C. investigation reasonably expected to grow out of
the charge of discrimination.” Authority for this statement
cited and relied on by the Court was Sanchez v. Standard
Brands, 431 F.2d 455 (5th Cir. 1970), and King v. Georgia
Power Co., 295 F.Supp. 943 (N.D.Ga. 1968). Cf. Marlowe v.
Fisher Body, 489 F.2d 1057, 1064 (6th Cir. 1973).
In Sanchez, supra, the Court said:
Thus within the statutory scheme, it is only logical to
limit the scope of the civil action to the scope of the
E.E.O.C. investigation which can reasonably be expected
to grow out of the charge of discrimination. (Id. 466)
This rule, broadly in effect limits the civil
action to that range of issues that would have been the
subject matter of the conciliation efforts between EEOC
and the employer. If the civil action were not so limited,
‘then the primary emphasis of this Title would be circum-
vented, i.e., an emphasis upon voluntary settlement of all
issues without an action in the District Court. (Id. 947)
See also E.E.O.C. v. National Cash Register Co., 405 F Supp.
562, 567 (N.D.Ga. 1975), and the cases cited therein; E.E.O.C.
v. Western Elec. Co., 382 F.Supp. 787, 799 (D. Md. 1974); and
Kinsey v. Legg, Mason & Co., 60 F.R.D. 91, 97 (D.D.C. 1973).
When McBride complained to EEOC he limited his claim
solely to his discharge. To expand this single issue into prac-
tices as different and diverse from discharges as those relative
to hiring, promotions, and seniority practices over its entire
A-11
12 McBride v. Delta Air Lines No. 75-1955
system, which practices did not apply to McBride, would be
unfair to Delta. The company would hardly expect to be put
under a microscopic investigation of all of its hiring, promo-
tion, and seniority policies in its nationwide organization, mere-
ly because of a neutral company discharge rule governing all
employees irrespective of race, which rule had been applied
to only one employee in its Memphis terminal, because of his
conviction of a violent crime.
One would reasonably expect EEOC to investigate the
charge of racial discrimination in McBride's discharge, which
it did, and to direct its conciliation efforts in that direction.
The rule is an objective standard applied by the company
throughout the entire area which it serves. No matters of
hiring, promotion or seniority were really at issue here; either
the company rule was valid, or it was not.
“[A] class action must proceed within the bounds of the
issues properly raised by the plaintiff . . . representing the
class.” In a Title VII class action only those issucs raised
before the EEOC “delineate the scope of the issues which may
properly be raised in the subsequent lawsuit.” Smith v. North
American Rockwell Corp., 50 F.R.D. 515, 524 (N.D.Okla.
1970). See also Oatis v. Crown Zellerbach Corp., 398 F.2d
496, 499 (5th Cir. 1968).
Second, even though a single charge of employment dis-
crimination may be sufficient, under some circumstances, to
initiate a broader inquiry into the employer's employment prac-
tices of a similar nature, “the district court is vested with some
discretion in determining the parameters of the class.” Green
v. Missouri Pac. R.R., 523 F.2d 1290, 1299 (8th Cir. 1975).
Only an abuse of this discretion by the District Judge should
change the proper scope of the class, Johnson v. Georgia High-
way Express, Inc., 417 F.2d 1122, 1123 (5th Cir. 1969), and
_ Wright v. Stone Container Corp., 524 F.2d 1058, 1061 (8th
Cir. 1975), “because the district court is in the best position
to consider the most fair and efficient procedure for conducting
A-12
No. 75-1955 McBride v. Delta Air Lines 13
any given litigation.” Price v. Lucky Stores, Inc., 501 F.2d
1177, 1179 (9th Cir. 1974).
Under the circumstances of this particular case it is clear
that the District Judge did not abuse his discretion in de-
termining the scope of the class to be employees whose em-
ployment was terminated, and his findings should not be dis-
turbed. Green v. Missouri Pac. R.R., supra, at 1299.
The District Court was correct in questioning the propric
of McBride, who was convicted and served a sentence forthe
a crime, acting as representative of a
class of employees having complaints in which McBride did
not share, with respect to hiring, promotion and seniority
practice. McBride had nothing in common with their com-
plaints as he had been treated differently by Delta. He had
received a double promotion and would be working for Delta
today if he had not pleaded guilty to and was convicted and
served a sentence for a violent crime. Delta ought not to be
faulted for getting rid of accident prone, tardy and absentee
persons who commit violent crimes, irrespective of their race.
The public would not stand for being served on airplanes by
such employees who might endanger their own lives and the
lives of the passengers.
As was well stated by the Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424, 430-31 (1971):
In short, the Act does not_command that any person
be hired simply because he was formerly the subject of
discrimination, or because he is a member of a minority
group. Discriminatory preference for any group, minori-
ty or majority, is precisely and only what Congress has
proscribed. What is required by Congress is the removal
of artificial, arbitrary, and unnecessary barriers to em-
ployment when the barriers operate invidiously to dis-
criminate on the basis of racial or other impermissible
classification.
A-13
14 McBride v. Delta Air Lines No. 75-1955
The Court dismissed the class action without prejudice. No
other employee sought to intervene.
There is no point in remanding the case to the District
Court as ordered by the majority, for “findings of fact and con-
clusions of law on the charge that Delta has violated Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 and 42
U.S.C. § 1981 and for appropriate remedies if a violation is
found.” In my opinion the District Judge has already adopted
such findings of fact and conclusions of law in his original
opinion and order of January 4 and 8. and orders of September
11, 1974 and March 17, 1975. He found specifically that
McBride's discharge was not discriminatory, but was because
of his conviction and sentence for a violent crime, and because
he was accident prone, tardy and absent. We should not re-
quire the Court to do its work all over again, particularly since
the majority appears to concede that the findings of the Court
supported the judgment in favor of Delta on McBride's per-
sonal claim.
It also appears that the Memphis employees already have
“the opportunity to have their claims of discriminatory prac-
tices at their terminal fully considered . . .” by the Atlanta
court, and a number of them already have done so. It is
therefore not necessary for us to remand for any such purpose.
We applied a similar consent decree in Martini v. Republic
Steel Co., 532 F.2d 1079 (6th Cir. 1976). There can be no
purpose served in having two class action proceedings.
As to racial impact, the Supreme Court in Washington v.
Davis, 426 U.S. 229, 239 (1976), stated:
... [O)ur cases have not embraced the proposition that
a law or other official act, without regard to whether it
reflects a racially discriminatory purpose, is unconstitu-
tional solely because it has a racially disproportionate
impact
The bringing of this action by McBride was clearly a misuse
of the Civil Rights Act. This suit has been extensively litigated
A-14
No. 75-1955 McBride v. Delta Air Lines 15
over a period of years and has no doubt already subjected
Delta to considerable expense. If such practice continues to
abound no employer could safely risk refusing to hire, or to
discharge, any person of a minority group, even for a valid
reason, unless it desired to defend itself in costly litigation.
Griggs v. Duke Power Co., supra, does not sanction any such
practice. The Court is simply not following Griggs here
The doctrine of respondeat superior is based on the right
of an employer to select his own employees, or to discharge
them if no contract is involved. If an employer no longer
possesses this right, then the time-honored doctrine of respon-
deat superior ought to be re-examined.
District Judge Harry Wellford handled this extensive litiga-
tion, along with many other cases on his docket, in a careful,
deliberate and patient manner. He even “leaned over back-
ward” when he allowed McBride’s lawyer an attorney's fee
_ Of $500, to be paid by Delta, although McBride had not pre-
vailed and such allowance of fee was unauthorized. It is time
_ to write finis to this unsubstantial and needless litigation.
The judgment of the District Court should be affirmed.
A-15
NO. 75-1955
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED: June 3, 1977
JAMES McBRIDE,
Plaintiff-Appellant,
DELTA AIR LINES, INC.,
Defendant-Appellee.
ORDER
Before: WEICK, EDWARDS and PECK, Circuit Judges.
On receipt and consideration of a motion for rehearing and
a suggestion for rehearing in banc; and
The majority of the actives judges in this court not having
voted for rehearing in banc and the petition having been re-
ferred to the panel which heard the case, with Judge Peck
assigned by the Chief Judge to replace Judge McCree on said
panel; and
Noting no issue presented by said motion for rehearing
which had not been thoroughly cceusidered by the panel in
advance of issuance of the opinion,
A-16
—_- loo SB
Now, therefore, with Judge Weick adhering to his dissent,
the petition for rehearing is denied.
Entered by order of the Court
John P. Hehman
Clerk
A-17
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FILED: April 16, 1973
JAMES McBRIDE,
Plaintiff,
vs. NO. C-72-339
DELTA AIRLINES, INC.,
Defendant.
ORDER
Plaintiff has filed this class action alleging that the defendant
is guilty of racially motivated discriminatory employment
practices. Defendant has moved to strike portions of plaintiff's
complaint, or in the alternative, for a more definite statement
on the basis that many of plaintiff's allegations as contained
in his complaint are beyond the scope of and not encompassed
by the charge filed by plaintiff before the Equal Employment
Opportunity Commission.
Upon careful consideration, the Court is disposed to deny
defendant’s motion. A single broad charge of employment
discrimination under Title VII found by the E.E.0.C. to rest
upon reasonable grounds may serve under appropriate circum-
stances for a full scale inquiry into the alleged unlawful pettern
and practice. Parham v. Southwestern Bell Telephone Co.,
433 F.2d 421 (8th Cir. 1970). Allegations contained in a
complaint, moreover, charging unfair employment practices
A-18
for a more definite statement.
Accordingly, it is ORDERED that defendant’s Motion to
Strike, or, in the Alternative, For a More Definite Statement
be, and the same is, denied.
s/ Harry W. Wellford
, UNITED STATES DISTRICT JUDGE
Date: 4/16/73
A-19
Tr
IN THE UNITED STATES DISTRICT COURT
FOR fHE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FILED: January 8, 1974
JAMES McBRIDE,
Plaintiff,
vs. NO. C-72-339
DELTA AIRLINES, INC.,
Defendant.
ORDER
At the conclusion of the hearing in this cause on the case
of James McBride personally vs. Delta Airlines, the matter
being submitted subject to further proof on the class action
aspects of this case, the Court rendered on oral opinion to the
effect that the plaintiff, James McBride, had failed to carry
his burden of proof of establishing against the defendant Delta
Airlines that the said defendant has engaged, or is engaging in
an unlawful employment practice with respect to his discharge.
A final order will be entered pertaining to Mr. McBride’s
case and to the class action aspect of this case, however, at a
subsequent time after the parties have had an opportunity to
submit memoranda pertaining to the class aspects of this
case.
A-20
This 8th day of January, 1974.
,
s/ Harry W. Wellford
UNITED STATES DISTRICT JUDGE
1-8-74
A-21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FILED: September 11, 1974
JAMES McBRIDE,
Plaintiff,
vs. NO. C-72-339
DELTA AIR LINES, INC.,
Defendant.
ORDER
After a hearing in this suit based upon asserted violation
by defendant airlines of plaintiff's right to equal employment
and equal employment opportunities without racial dis-
crimination, the Court entered a preliminary order denying
relief to plaintiff personally for failure to carry his burden of
proof. The parties have filed supplemental memoranda, and
upon the entire record in the cause, the Court enters this
Order as dispositive of the cause of action with respect to the
class action aspect. The United States District Court at
Atlanta, the home office of defendant, entered an order
dated April 16, 1973, Civil Action No. 18175 in an action
brought by the United States against Delta and determined
certain remedies available to black employees affected by
Delta’s practices with regard to employment and future op-
portunities with that employer. The provisions of that order,
A-22
incorporating an approved agreement, were subject to elec-
tion on the part of those black employees who were in the
class covered.
The Court found in McBride’s case that he had been pro-
moted in 1969, to the position of cargo service agent (pre-
viously a classification composed almost entirely of whites)
from the status of skycap, which has traditionally been al-
most exclusively black. A little more than a year later in
1970, he was discharged following his conviction and sen-
tencing for an alleged off-duty assault upon a Memphis
Policeman or Policemen. He claimed the discharge to be
based on his race. In fact, Delta has had a policy of discharg-
ing any employee convicted of a charge of this character,
whether or not the illegal, or allegedly illegal, act occurred
while the employee was actually “‘on the job.” At the time
of discharge, McBride had experienced three accidents at-
tributable to a greater or lesser degree to his negligent or care-
less conduct. He was not, then, a man with a highly com-
mendable record at the time of his termination, which the
Court found to be essentially non-discriminatory in its
nature. A minority of employees discharged by Delta in a
relevant period before the trial of this cause on the policy in
controversy were black.2 The policy of discharge in these
circumstances was facially neutral and was carried out in a
racially non-discriminatory fashion. Indeed, plaintiff testi-
1. McBride was hired initially as a skycap in 1968.
2. The E.E.0.C, District Director's findings of fact found Delta’s list
of terminated employees in Memphis showed six caucasians discharged
for misconduct compared to only one bieck, McBride.
fied that another black employee with a criminal conviction
was not discharged by Delta, and that another employee
with a similar accident record, also a black, was not dis-
charged. It is true that the percentage of assaults, for crimi-
nal statistics purposes, both in Memphis and nationally was
about three times the proportion of blacks to the total pop-
ulation (except in suburban or rural areas).
There was other testimony in the record to the effect
that Delta at the time of McBride’s discharge, had a relative-
ly low proportion of blacks in the more skilled and higher
paying jobs. From the time that McBride had been hired,
however, Delta had improved its statistical and actual per-
formance with respect to hiring and promoting blacks, even
in departments hitherto entirely or almost entirely white.
Delta carried out a policy of testing in some areas, but Mc
Bride had evidently taken and passed the tests to be eligible
for his promotion. Some departments, however, at the date
of trial were still very predominantly white in their make-
up.
Defendant urges that the class action aspect of the case
be now dismissed because McBride has been found not to
be a proper representative of a class of present or past black
employees allegedly discriminated against, and because the
Atlanta decree provides a means of relief for these em-
ployees, if any, at Memphis.
Without ruling definitively at present on this aspect of
this cause of action, the Court will designate a further time
to permit counsel to show:
1. Whether there are black employees in the air passen- .
ger, ticket personnel, cargo service, concourse agent, ramp,
A-24
he
= an erceefigsnocteneante
air freight and supervisory departments who were discrimi-
nated against during the relevant period at Memphis.
2. Whether any of the affected blacks at Memphis have
elected to accept the relief provided for in the Atlanta
decree.
3. Whether this Court should provide any general or af-
firmative relief in view of the facts and evidence adduced in
this cause for the benefit of any alleged appropriate class of
black Delta employees at Memphis, particularly in light of
the agreement incorporated in the said Atlanta federal Dis-
trict Court Order; and Blackburn v. Delta Air Lines, No. C-
72-1226 (N.D. Cal. 2-472), and Smith v. Delta Air Lines,
No. C-70-954 (N.D. Ala, 1973).
Defendant may respond in 30 days from this date to any
of the three areas above indicated in which the plaintiff's
counsel may seek to discover or present proof or submit a
memorandum. The Court does note that it would appear
doubtful that McBride is a proper class representative for
any allegedly affected black employees of Delta at Memphis
under the circumstances. Plaintiff's counsel may, however,
have a period of 30 days to indicate whether he will attempt
and proceed to discover and/or produce additional proof
under the standards and limitations herein prescribed, other
than the testimony submitted .of Joe. Isom and Grover
Odom. The Court is also mindful that other aggrieved
Delta individuals, if they assert or allege racial discrimina-
tion without the fear of lawful retaliation, may in proper
cases file charges with E.E.O.C. and under the 1972 amend-
ments to the Civil Rights Act be represented in court by
that agency after investigation and efforts to conciliate
3. Defendant may also, of course, respond to plaintiff's indicated sub-
mission under this Order under the Federal Rules of Civil Procedure.
the differences. To dismiss this action, then, would not pre-
judice their rights, if any.
FILED: March 5, 1975
NO. C-72-339
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JAMES McBRIDE,
DELTA AIR LINES, INC.,
vs.
COURT JUDGE
s/ Harry W. Wellford
UNITED STATES DISTRICT
day of September, 1974.
This
Defendant.
ORDER
complaint under Title VII of the
. This matter has been considered in
Court’s
failed
Lines
well as
on the
in this
ts Act
tive action agreement having system-wide
ta negotiated with the Civil Rights Divi-
sion of the Department of Justice incorporated in a consent
order dealing with alleged racial discrimination, U.S.A. v.
Delta Air Lines (No. C-18175, N.D. Ga., 4-27-73).
this
to have
ta Air
, as
submitted
t
Righ
by
iz
a 5s
24314234
A-27
A-26
1964 Civil Rights Act, Delta with respect to its Defense De-
partment relationship initiated an affirmative action pro-
gram to hire blacks in otherwise white, or almost entirely
white, categories. By approximately 1971, testing (such as
was required of and satisfied by McBride) was discontinued
and some educational requirements were eliminated by
reason of their disparate impact on blacks. During the
period in question to be examined under the McBride com-
plaint, 1969 approximately through 1971, recessionary
pressures adversely affected Delta nation-wide as well as at
Memphis. Relatively little new hiring took place, and the
Delta Memphis terminal was a place of stable employment
with little turnover in personnel. More recent years in the
airline industry have been influenced by the fuel shortage,
allocations, and in some instances by lay-offs rather than
growth in employment. During certain peak work times
and during heavy travel months in 1973 and 1974, however,
Delta initiated a business practice at Memphis of hiring part-
time employees with no seniority and without usual fringe
benefits of regular employees. Promotions from part-time
positions to regular positions have been made almost in
equal number from blacks and whites. Overall, the percent-
age of black employees over the past several years has im-
proved perceptibly.
Plaintiff, however, points to the fact that a number of
departments in Memphis still remain predominantly white
or all white, and that the skycap department is all black,
(including, however, a black supervisor) and that cabin
clean-up division of customer service is overwhelmingly
black. Ten black employees at Memphis have been paid
awards or benefits under the Atlanta decree (as of January
A-28
Be. ERAS MT BUREN A te)
ee
5, 1975) hereinabove referred to, a total of $2800.00. Plain-
tiff points particularly to what formerly were referred to as
air passenger agents, ticket counter personnel, concourse
agents, ramp agents and the air freight personnel with res-
pect to class action aspects of the suit indicative of racial
discrimination. In these areas, plaintiff’s attorney has
pointed to evidence which assertedly shows proportionately
few blacks, disparate pay, and effects of a seniority system
that purportedly perpetuate alleged discriminatory treat-
ment of blacks at Memphis.
New permanent openings filled in the Memphis terminal
since 1973 have been few, but at least one-half have been
black. All employees on the ramp, at the gate, or in the
ticket office have been equalized in status and pay and are
now designated customer service agents. This has had the
effect of raising the pay of more blacks proportionately
than whites. In some instances transfer from ramp to ticket
counter has been accomplished, now a lateral transfer in-
stead of a promotion. A system-wide bid system has been
initiated under the Atlanta decree designed for more minori-
ty opportunity but this has not been particularly effective
to date in Memphis due to the fact that few openings have
been available. The import of the Delta plan incorporated
in the aforesaid Atlanta decree, however, is to give blacks
at least a limited priority in bidding on promotions and
advancements along with females. Those testifying for
plaintiff expressed disappointment in their failure to ad-
vance from or to customer service agent status and in res
pect to unsuccessful bids submitted for openings which
they considered advancements. In all but two instances,
however, out of some ten bids submitted by them, posi-
tions were filled by other blacks or females with greater
seniority. The Delta plan therefore seems to be working
A-29
for black advancement, albeit slowly. A considerable majority
of blacks at the Delta Memphis terminal submitting bids since
that decree have succeeded in gaining advancement, and for
the most part, those unsuccessful were defeated by other black
or female bidders.
One area of concern to plaintiff's attorney was that relating
to senior customer service agent, a higher paying position
achieved not by seniority but by merit from customer service
agent status. One-half of the blacks in that category have
been advanced to senior status, whereas a lower proportion
(but a greater number) of whites were so advanced according
to the evidence submitted. Also, a black has subsequent to
McBride’s claim been advanced to a position of customer
service agent supervisor.
Approximately one-third of the temporary employees
hired during 1973 and 1974 have been black, a higher per-
centage than the black ratio of regular employees. These
temporary employees have opportunities to bid on openings
under the Delta Plan aforementioned. Only two supervisors
at the Delta Memphis terminal are black, but this is a significant
advancement over conditions at the time of McBride’s termina-
tion. Only by replacement, lay-off, or demotion of white
employees could present ratios be improved, except by reason
of gradual attrition, resignations, and hoped-for future growth.
Salary differentials shown are found to be the result of
annual increments due to in-service seniority in a particu-
lar position or category. Because blacks generally have not
been employed as long as whites in salary categories,
they are paid slightly less, on the sverage, than are whites.
|
|
:
|
base the time of hire so that blacks advane from skycap
to customer service agent, for example, would be entitled to
salary increments as customer service agent based upon sky-
cap experience. A Delta employee is, however, given one
year’s credit for each two year’s service in lower paying
positions so that in the example above given, a customer
service agent promoted from skycap would receive annual
“seniority good service’’ increments based upon one-half of
his years experience as skycap. This is a policy applied
equally, is facially neutral, and the Court does not find it to
be discriminatory in effect.
The Court has discussed the class aspects of the com-
plaint and considered relief only with respect to the prayer
for general relief from racial discrimination as it may affect
other Delta employees besides McBride. No notice has been
given in this case to potential class members, and the Court
has made no F.R.C.P. 23 determination that it should be
constituted as a class action. There has been considerable
doubt that McBride is an appropriate class representative
except with regard to those who may claim to have been
discharged improperly by reason of race during the rele-
vant period here involved. The E.E.O.C. investigation on
the simple and concise charge that ‘The company dis-
charged me because of my Negro race” would evidently
and logically be confined to terminations only.’ Appropri-
ate consideration of the charge made should consistently
then be limited to discharge situations, not those dealing
with promotions, seniority systems, bidding, transfer and
hiring policies. Sanchez v. Standard Brands, 431 F.2d 455
1. This is borne out by the District Director's findings and fact
September 8, 1971, in McBride's case. y —_
A-31
(Sth Car. 1970); Oatis v. Crown Zellerbach, 390 F.2d 496
(Sth Cir. 1968); E.£.0.C. v. New York Times, d/b/a WREC-
TV, 364 F.Supp. 651 (W.D. Tenn. 1973). See also Tipler
v. DuPont, 443 F.2d 125 (6th Cir. 1971).
The Court declines to issue injunctive or other relief on
the basis of these findings, nor can it determine that this
should be construed as a proper class action case. The
Court has, however, encouraged plaintiff's attorney to de-
velop the issues herein discussed as they may reasonably
have related to the complaint and appreciates that much
time and service has been dedicated by both counsel in this
important case. Even though judgment is awarded to the
defendant on the merits, for equitable purposes, and be-
cause some practices of defendant at least on the basis of
statistical information have evidenced a possible past course
of racial discrimination, the Court will award plaintiff's
counsel a modest attorney fee. This is unusual, it is recog-
nized, since the Court has not found defendant guilty of
any pattern or practice of racial discrimination since 1968,
under all the circumstances at Memphis.
Relief, of course, may still be available to Delta Memphis
black employees under the Atlanta Court's decree. Plain-
tiff and his attorney have served a useful purpose in ac-
quainting black Delta employees here of their further op-
portunities in this and other respects. Mr. Burkhart is
ordered, accordingly, a fee of $500.00 for his services.
Each party will bear his or its own costs. Plaintiff’s cause of
action is dismissed (without prejudice, however, as to any
other purported class member).
This day of March, 1975.
s/ Harry W. Wellford
UNITED STATES DISTRICT JUDGE
A-32
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FILED: March 17, 1975
JAMES McBRIDE,
Plaintiff,
vs. No. C-72-339
DELTA AIR LINES, INC.,
Defendants.
FINAL DECREE
This cause came on to be heard before the Honorable Harry
W. Wellford, Judge for the Western District of Tennessee,
Western Division, upon the Complaint heretofore filed by the
Plaintiff, James McBride, and the Answer of the Defendant,
Delta Air Lines, Inc., and it appearing to the Court, as more
fully set forth in the opinions of this court dated September 11,
1974 and March 5, 1975, which opinions are incorporated
herein by reference, that the individual action of the Plaintiff,
James McBride, alleging racial discrimination against the Defen-
dant, Delta Air Lines, Inc., should be dismissed with prejudice
and that the class action aspect of this case should be dismissed
without prejudice;
And, it further appearing to the Court that A. G. Burkhart,
Jr., should be awarded the sum of $500.00 for his services
in the cause, and that each party hereto shall bear his or its
own costs;
A-33
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED by the Court that the Complaint of the Plaintiff,
James McBride, insofar as it asserts a claim of discrimination
against the Plaintiff personally, is hereby dismissed with preju-
dice, and, insofar as it asserts a claim on behalf of any class,
is dismissed without prejudice;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Defendant, Delta Air Lines, Inc., pay the Attorney
for the Plaintiff, A. G. Burkhart, Jr., the sum of $500.90 and
that each party hereto bear his or its own costs for which
let execution issue.
s/ Harry W. Wellford
JUDGE
APPROVED:
s/ A. G. Burkhart, Jr.
Attorney for Plaintiff
s/ William F. Kirsch, Jr.
Attorney for Defendant
A-34
6 Ae aes
ae
CHARGE OF DISCRIMINATION
If you have a complaint, fill in this form and mail it to the
Equal Employment Opportunity Commission’s Regional Office
in your area. In most cases, a charge must be filed with the
EEOC within a specified time after the discriminatory act took
place. IT IS THEREFORE IMPORTANT TO FILE YOUR
CHARGE AS SOON AS POSSIBLE.
This form is to be used only to file a charge of discrimination
based on RACE, COLOR, RELIGION, SEX, or NATIONAL
ORIGIN.
Case File No. _ TNIEI-0017_
(PLEASE PRINT OR TYPE)
1 Your Name (Mr,, Mrs., Miss) _James McBride _
Phone Number _-942-4001_ (Mother)
Street Address __956 Wellington, Apt. No. 3
City _Memphis_ State _Tennessee__ Zip Code __ 38126
e
2 WAS THE DISCRIMINATION BECAUSE OF: (Please check
A-35
3 Who discriminated against you? Give the name and address
of the employer, labor organization, employment agency
and/or apprenticeship committee. If more than one, list all.
Name __Delta Air Lines Incorporated _
Street address Memphis International Airport
City _Memphis_ State _Tennessee __ Zip Code
AND (other parties if any)
4 Have you filed this charge with a state or local government
Yes[ ] When .
MONTH DAY YEAR
5 If your charge is against a company or union, how many
employees or members?
Under 25 [ ]
Over 25 [X]
6 The most recent date on which this discrimination took
place:
Month __May_ Day 3 Year __1970
7 Explain what unfair thing was done to you. How were other
persons treated differently? (Use extra sheet if necessary.)
.—The company discharged me because of my Negro race.
A-36
8 I swear or affirm that I have read the above charge and that
it is true to the best of my knowledge, information and
belief.
Date __7/13/70 s/__James E. McBride _
(Sign your name)
Subscribed and sworn to before me this _13th__ day
of _July 1970
s/ Winfred R. Cravens Equal Employment Officer
(Name) (Title)
If it is difficult for you to get a Notary Public to sign this,
sign your own name and mail to the Regional Office. The
Commission will help you to get the form swom to.
RECEIVED: July 13, 1970
EEOC
Memphis Area Office
FORM APP.: BUR. OF BUDGET - No. 124 - RO0OO1
FORM EEOC-S (REV. 7-68)
A-37
Equal Employment Opportunity Commission
46 North Third Street, Suite 1004
Memphis, Tennessee 38103
DISTRICT DIRECTOR’S FINDINGS OF FACT
In Re:
James McBride
Charging Party Case No. YME2-043
vs.
Delta Air Lines, Inc.
Memphis, Tennessee
Respondent
Date of alleged violation: May 3, 1970
Date of filing of charge: July 13, 1970
Date of service of charge: June 29, 1971
SUMMARY OF CHARGE:
Charging Party alleges that Respondent has engaged in an
unlawful employment practice in violation of Title VII of
the Civil Rights Act of 1964 by discharging him because of
his Negro race.
JURISDICTION:
The charge was filed with the Commission on July 13, 1971
within the time limitations prescribed by Title VII.
Respondent is engaged in air transportation affecting inter-
state commerce.
A-38
Respondent employed approximately 381 ‘/petsons at the
time of the investigation. Of that number approximately
42 or (11%) are Negro.
SUMMARY OF CONTENTIONS AND EVIDENCE:
1.
It is undisputed that Charging Party was employed by
Respondent as a Cargo Station Porter on November 1,
1968 and continued there until he was terminated on
May 2, 1970.
Charging Party alleges that Respondent discharged him
because of his Negro race.
In a written statement of position dated July 16, 1971,
Respondent’s Administrative Assistant states that Charg-
ing Party was discharged for conduct unbecoming of a
company employee.
Respondent’s Administrative Assistant stated in his
statement of position that Charging Party was a satis-
factory employee and that Charging Party was promot-
ed to Cargo Service Agent February 16, 1969.
Respondent's Administrator stated in a position letter
dated July 16, 1971 that Charging Party was convic-
ted on May 8, 1970 of assaulting a police officer, fined
and sentenced to 30 days in the local penal farm.
Respondent’s Administrator stated that Charging Party
was permitted to continue his employment with the
company from the time of his arrest and until the time
of his conviction.
Respondent’s Administrator further stated that the
A-39
8.
10.
11.
12.
company sets a standard of conduct for its employees
commensurate with its status as a public carrier with
an obligation by law to meet the public convenience
and necessity.
Respondent’s Standard Practice regulations, which is
is given to all employees indicates on page 3, under
“Policy”’ that:
“An employee whether on or off duty is a reflec-
tion of Delta and may be subject to disciplinary
action if his conduct brings an unfavorable reflec-
tion upon the company. Delta has no desire to
interfere in personal affairs of employees and will
not do so unless it is necessary. Outside business
activities which tend to reduce the employee’s at-
tention, efficiency, or energy on his Delta job;
reduce his availability for duty; or which adversely
affect Delta or his relationship with Delta are pro-
hibited.
Respondent’s termination report shows that Charging
Party was terminated for assaulting a police officer.
Respondent’s list of terminated employees shows that
six Caucasians were discharged for misconduct com-
pared to one Negro, who is Charging Party.
The Tennessee Department of Employment Security
Board Review stated that Charging Party was discharg-
ed for misconduct.
Charging Party stated at the time of filing his charge
that a Negro employee who served a sentence was
given his job back.
A-40
13.
Respondent's Administrative Assistant states in his
which Charging Party committed.”
s/ Charles A. Dixon,
Charles A. Dixon,
9/8/71 Pane en
Date
A-41
SECTION 706(a) THROUGH (g),
CIVIL RIGHTS ACT OF 1964, AS AMENDED:
42 U.S.C. § 2000e-5 (a) THROUGH (g)
(a) The Commission is empowered, as hereinafter provid-
ed, to prevent any person from engaging in any unlawful
employment practice as set forth in section 2000e-2 or
2000e-3 of this title.
(b) Whenever a charge is filed by or on behalf of a per-
son claiming to be aggrieved, or by a member of the Com-
mission, alleging that an employer, employment agency,
labor organization, or joint labor-management committee
controlling apprenticeship or other training or retraining,
including on-the-job training programs, has engaged in an
unlawful employment practice, the Commission shall serve
a notice of the charge (including the date, place and cir-
cumstances of the alleged unlawful employment practice)
on such employer, employment agency, labor organization,
or joint labor-management committee (hereinafter referred
to as the “‘respondent’’) within ten days, and shall make an
investigation thereof. Charges shall be in writing under oath
or affirmation and shall contain such information and be in
such form as the Commission requires. Charges shall not be
made public by the Commission. If the Commission deter-
mines after such investigation that there is not reasonable
cause to believe that the charge is true, it shall dismiss the
charge and promptly notify the person claiming to be ag-
grieved and the respondent of its action. In determining
‘whether reasonable cause exists, the Commission shall ac-
cord substantial weight to final findings and orders made by
State or local authorities in proceedings commenced under
State or local law pursuant to the requirements of sub-
A-42
sections (c) and (d) of this section. If the Commission de-
termines after such investigation that there is reasonable
cause to believe that the charge is true, the Commission
shall endeavor to eliminate any such alleged unlawful em-
ployment practice by informal methods of conference, con-
ciliation, and persuasion. Nothing said or done during and
as a part of such informal endeavors may be made public by
the Commission, its officers or employees, or used as evi-
dence in a subsequent proceeding without the written con-
sent of the persons concerned. Any person who makes
public information in violation of this subsection shall be
fined not more than $1,000 or imprisoned for not more
than one year, or both. The Commission shall make its
determination on reasonable cause as promptly as possible
and, so far as practicable, not later than one hundred and
twenty days from the filing of the charge or, where appli-
cable under subsection (c) or (d) of this section, from the
date upon which the Commission is authorized to take
action with respect to the charge.
(c) In the case of an alleged unlawful employment prac-
tice occurring in a State, or political subdivision of a State,
which has a State or local law prohibiting the unlawful
employment practice alleged and establishing or authoriz-
ing a State or local authority to grant or seek relief from
such practice or to institute criminal proceedings with res-
pect thereto upon receiving notice thereof, no charge may
be filed under subsection (b) of this section by the person
aggrieved before the expiration of sixty days after proceed-
ings have been commenced under the State or local law, un-
less such proceedings have been earlier terminated, provided
that such sixty-day period shall be extended to one hundred
and twenty days during the first year after the effective
date of such State or local law. If any requirement for the
commencement of such proceedings is imposed by a State
A-43
or local authority other than a requirement of the filing of
a written and signed statement of the facts upon which the
proceeding is based, the proceeding shall be deemed to have
been commenced for the purposes of this subsection at the
time such statement is sent by registered mail to the appro-
priate State or local authority.
(d) In the case of any charge filed by a member of the
Commission alleging an unlawful employment practice
occurring in a State or political subdivision of a State which
has a State or local law prohibiting the practice alleged and
establishing or authorizing a State or local authority to
grant or seek relief from such practice or to institute crim-
inal proceedings with respect thereto upon receiving notice
thereof, the Commission shall, before taking any action
with respect to such charge, notify the appropriate State or
local officials and, upon request, afford them a reasonable
time, but not less than sixty days (provided that such sixty-
day period shall be extended to one hundred and twenty
days during the first year after the effective day of such
State or local law), unless a shorter period is requested, to
act under such State or local law to remedy the practice al-
leged.
(e) A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employ-
ment practice occurred and notice of the charge (including
the date, place and circumstances of the alleged unlawful
employment practice) shall be served upon the person
against whom such charge is made within ten days there-
after, except that in a case of an unlawful employment
practice with respect to which the person aggrieved has ini-
tially instituted proceedings with a State or local agency
with authority to grant or seek relief from such practice or
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to institute criminal proceedings with respect thereto upon
receiving notice thereof, such charge shall be filed by or on
behalf of the person aggrieved within three hundred days
after the alleged unlawful employment practice occurred,
or within thirty days after receiving notice that the State or
local agency has terminated the proceedings under the State
or local law, whichever is earlier, and a copy of such charge
shall be filed by the Commission with the State or local
agency.
(f)(1) If within thirty days after a charge is filed with the
Commission or within thirty days after expiration of any
period of reference under subsection (c) or (d) of this sec-
tion, the Commission has been unable to secure from the
respondent a conciliation agreement acceptable to the Com-
mission, the Commission may bring a civil action against
any respondent not a government, governmental agency, or
political subdivision named in the charge. In the case of a
respondent which is a government, governmental agency, or
political subdivision, if the Commission has been unable to
secure from the respondent a conciliation agreement accept-
able to the Com. .ission, the Commission shall take no
further action and shall refer the case to the Attorney Gen-
eral who may bring a civil action against such respondent in
the appropriate United States district court. The person or
persons aggrieved shall have the right to intervene in a civil
action brought by the Commission or the Attorney General
in a case involving a government, governmental agency, or
political subdivision. If a charge filed with the Commission
pursuant to subsection (b) of this section is dismissed by the
Commission, or if within one hundred and eighty days from
_ the filing of such charge or the expiration of any period of
reference under subsection (c) or (d) of this section, which-
ever is later, the Commission has not filed a civil action
A-45
under this section or the Attorney General has not filed a
civil action in a case involving a government, governmental
agency, or political subdivision, or the Commission has not
entered into a conciliation agreement to which the person
aggrieved is a party, the Commission, or the Attorney Gen-
eral in a case involving a government, governmental agency,
or political subdivision, shall so notify the person aggrieved
and within ninety days after the giving of such notice a civil
action may be brought against the respondent named in the
charge (A) by the person claiming to be aggrieved or (B) if
such charge was filed by a member of the Commission, by
any person whom the charge alleges was aggrieved by the
alleged unlawful employment practice. Upon application
by the complainant and in such circumstances as the court
may deem just, the court may appoint an attorney for such
complainant and may authorize the commencement of the
action without the payment of fees, costs, or security. Up-
on timely application, the court may, in its discretion, per-
mit the Commission, or the Attorney General in a case in-
volving a government, governmental agency, or political sub-
division, to intervene in such civil action upon certification
that the case is of general public imprtance. Upon request,
the court may, in its discretion, stay further proceedings
for not more than sixty days pending the termination of
State or local proceedings described in subsections (c) or
(d) of this section or further efforts of the Commission to
obtain voluntary compliance.
(2) Whenever a charge is filed with the Commission and
the Commission concludes on the basis of a preliminary
investigation that prompt judicial action is necessary to
carry out the purposes of this Act, the Commission, or the
Attorney General in a case involving a government, govern-
mental agency, or political subdivision, may bring an action
A-46
for appropriate temporary or preliminary relief pending
final disposition of such charge. Any temporary restraining
order or other order granting preliminary or temporary re-
lief shall be issued in accordance with rule 65 of the Feder-
al Rules of Civil Procedure. It shall be the duty of a court
having jurisdiction over proceedings under this section to
assign cases for hearing at the earliest practicable date and
to cause such cases to be in every way expedited.
(3) Each United States district court and each United
States court of a place subject to the jurisdiction of the
United States shall have jurisdiction of actions brought
under this subchapter. Such an action may be brought in
any judicial district in the State in which the unlawful em-
ployment practice is alleged to have been committed, in
the judicial district in which the employment records rele-
vant to sucn practice are maintained and administered, or
in the judicial district in which the aggrieved person would
have worked but for the alleged unlawful employment prac-
tice, but if the respondent is not found within any such dis-
trict, such an action may be brought within the judicial
district in which the respondent has his principal office.
For purposes of sections 1404 and 1406 of Title 28, the
judicial district in which the respondent has his principal
office shall in all cases be considered a district in which the
action might have been brought. ~
(4) It shall be the auty of the chief judge of the district
(or in his absence, the acting chief judge) in which the case
is pending immediately to designate a judge in such district
to hear and determine the case. In the event that no judge
in the district is available to hear and determine the case,
the chief judge of the district, or the acting chief judge, as
the case may be, shall certify this fact to the chief judge of
A-47
the circuit (or in his absence, the acting chief judge) who shall
then designate a district or circuit judge of the circuit to hear
and determine the case.
(5) It shall be the duty of the judge designated pursuant
to this subsection to assign the case for hearing at the earliest
practicable date and to cause the case to be in every way
expedited. If such judge has not scheduled the case for trial
within one hundred and twenty days after issue has been
joined, that judge may appoint a master pursuant to rule 53
of the Federal Rules of Civil Procedure.
(g) If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful employ-
ment practice charged in the complaint, the court may enjoin
the respondent from engaging in such unlawful employment
practice, and order such affirmative action as may be appro-
priate, which may include, but is not limited to, reinstatement
or hiring of employees, with or without back pay (payable
by the employer, employment agency or labor organization,
as the case may be, responsible for the unlawful employment
practice), or any other equitable relief as the court deems
appropriate. Back pay liability shall not accrue from a date
more than two years prior to the filing of a charge with the
Commission. Interim earnings or amounts earnable with reason-
able diligence by the person or persons discriminated against
shall operate to reduce the back pay otherwise allowable.
No order of the court shall require the admission or reinstate-
ment of an individual as a member of a union, or the hiring,
reinstatement, or promotion of an individual as an employee,
or the payment to him of any back pay, if such individual
was refused employment or advancement or was suspended
A-48
or discharged for any reason other than discrimination
account of race, color, religion, sex,
in violation of section 2000e-3(a) of this
A-49
or
title
national origin
RULE 23(a) THROUGH (4),
FEDERAL RULES OF CIVIL PROCEDURE
CLASS ACTIONS
(a) Prerequisites to a Class Action. One or more mem-
bers of a class may sue or be sued as representative parties
on behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are ques-
tions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the
claims or defenses of the class, and (4) the representative
parties will fairly and adequately protect the interests of
the class.
(b) Class Actions Maintainable. An action may be main-
tained as a class action if the rerequisites of subdivision (a)
are satisfied, and in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish in-
compatible standards of conduct for the party opposing the
class, or
(B) adjudications with respect to individual members of
- the class which would as a practical matter be dispositive of
the interests of the other members not parties to the adjudi-
cations or substantially impair or impede their ability to
protect their interests; or
A-50
declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact com-
of the claims in the particular forum; (D) the difficulties
likely to be encountered in the management of a class
action.
(c) Determination by Order Whether Class Action to
be Maintained; Notice; Judgment; Actions Conducted
Partially as Class Actions.
(1) As soon as practicable after the commencement of an
action brought as a class action, the court shall determine
by order whether it is to be so maintained. An order under
this subdivision may be conditional, and may be altered or
amended before the decision on the merits.
(2) In any class action maintained under subdivision (b)
(3), the court shall direct to the members of the class the
best notice practicable under the circumstances, including
individual notice to all members who can be identified
A-S1
through reasonable effort. The notice shall advise each member
that (A) the court will exclude him from the class if he so
requests by a specified date; (B) the judgment, whether favor-
able or not, will include all members who do not request
exclusion; and (C) any member who does not request exclusion
may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action
under subdivision (b) (1) or (b) (2), whether or not favorable
to the class, shall include and describe those whom the court
finds to be members of the class. The judgment in an action
maintained as a class action under subdivision (b) (3), whether
or not favorable to the class, shall include and specify or de-
scribe those to whom the notice provided in subdivision (c) (2)
was directed, and who have not requested exclusion, and
whom the court finds to be members of the class.
(4) When appropriate (A) an action may be brought or
maintained as a class action with respect to particular issues,
or (B) a class may be divided into subclasses and each subclass
treated as a class, and the provisions of this rule shall then
be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions
to which this rule applies, the court may make appropriate
orders: (1) determining the course of proceedings or prescribing
measures to prevent undue repetition or complication in the
presentation of evidence or argument; (2) requiring, for the
protection of the members of the class or otherwise for the
fair conduct of the action, that notice be given in such manner
as the court may direct to some or all of the members of any
step in the action, or of the proposed extent of the judgment,
or of the opportunity of members to signify whether they
consider the representation fair and adequate, to intervene
and present claims or defenses, or otherwise to come into the
action; (3) imposing conditions on the representative parties
A-52
or on intervenors; (4) requiring that the pleadings be amended
to eliminate therefrom allegations as to representation of
absent persons, and that the action Proceed accordingly ;
(5) dealing with similar procedural matters. The orders may be
combined with an order under Rule 16, and may be altered
or amended as may be desirable from time to time.
A-53
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.