Petition — General Telephone Co. v. Falcon

Supreme Court brief1981

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80-1264

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| Uitice Supreme Court, U.S

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JAN 26 198]

No. ————-

} ALEXANDE} L. STEVAS

; CLERK )

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST,

- Petitioner,

MARIANO 8. FALCON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THOMPSON POWERS

(Counsel of Record)

DOUGLAS HERBERT

STEPTOE & JOHNSON

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 862-2195

E. RUSSELL NUNNALLY

COKE & COKE

3600 First National Bank Building

Dallas, Texas 75202

WARD W. WUESTE, JR.

General Telephone Company

of the Southwest

2701 Johnson Street

San Angelo, Texas 76901

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Whether in employment discrimination cases a per-

son who is employed by the defendant, who was never

rejected for employment by the defendant, and who al-

leged that he had been discriminated against solely with

regard to promotions and not by means of any proce-

dures used by the defendant in hiring may bring suit

under rule 23 of the Federal Rules of Civil Procedure on

behalf of a class of persons who were allegedly discrimi-

nated against solely with regard to hiring.

2. Whether, in order to rebut the plaintiff’s prima

facie case in individual employment discrimination suits,

the defendant must prove by a preponderance of the evi-

dence that those promoted instead of the plaintiff were

better qualified than the plaintiff, or whether defendant

must simply articulate legitimate, non-discriminatory rea-

sons for the promotion of persons other than the plaintiff.

(i)

PARTIES

General Telephone Company of the Southwest *

Mariano S. Falcon

All Mexican-Americans who were employed by or who

sought employment with General Telephone Company of

the Southwest at its Irving, Texas location.

* General Telephone Company of the Southwest has no subsidi-

aries. The parent company of General Telephone Company of the

Southwest is General Telephone and Electronics Corporation. The

following list consists of the significant subsidiaries of the parent

company, as defined by the Securities and Exchange Commission,

including those that have outstanding publicly held issues of securi-

ties in the United States:

GTE Products Corporation of Connecticut; GTE Products

Corporation; GTE Automatic Electric Incorporated; GTE

Automatic Electric Laboratories Incorporated; GTE Len-

kurt Incorporated; GTE Credit Corporation; GTE Finance

N.V.; GTE Laboratories Incorporated; GTE International

Incorporated; GTE Telecommunicazioni S.P.A.; GTE Com-

munications Network Systems Incorporated; GTE Telenet

Corporation; GTE Information Systems Incorporated; GTE

Telecommunications Systems, Incorporated; Anglo-Canadian

Telephone Company; British Columbia Telephone Company;

AEL Microtel Limited; Canadian Telephones and Supplies Ltd.;

Dominion Directory Company Limited; Quebec-Telephone;

General Telephone Company of California; General Telephone

Company of Florida; General Telephone Company of Illinois;

General Telephone Company of Indiana, Inc.; General Tele-

phone Company of Kentucky; General Telephone Company of

Michigan; General Telephone Company of the Midwest; Gen-

eral Telephone Company of the Northwest, Inc.; General Tele-

phone Company of Ohio; General Telephone Company of

Pennsylvania; General Telephone Company of the Southeast;

General Telephone Company of Wisconsin; GTE Directories

Corporation; Hawaiian Telephone Company; GTE Data Serv-

ices Incorporated; GTE Investment Management Corporation;

GTE Realty Corporation; GTE Satellite Corporation; GTE

Service Corporation; GTE Shareholder Services Incorporated;

Telect Insurance Company Limited.

TABLE OF CONTENTS

7 Page

Ne al lacie i

I ai i ii

REET IRA e ON TRON RAL PRCT oR iii

REIT ES TELLER RAR REI 1

a 2

Applicable Constitutional Provisions and Statutes ...... 2

ec EE BY RITE RRC Do ee nee 2

Reasons For Granting the Writ ............0...000..2220.220022000- 6

I. THE PROPER SCOPE OF THE CLASS .......... 6

A. The Holding by the Court of Appeals That

a Current Employee May Represent Un-

successful Applicants Conflicts with the De-

cisions of This Court in Hast Texas Motor

Freight and General Telephone Co. of the

Northwest and with the Decisions of Other

RII We IIE sehr cpecssinecetteccaesntecmclaonccinnscomne 6

1. The Fifth Circuit’s Holding That the

Claims of a Current Employee Are Typi-

cal of the Claim of Unsuccessful Appli-

cants Is Inconsistent with the Approach

of This Court in East Texas Motor

Freight and General Telephone Co. of

the Northwest and Conflicts with the De-

cisions of Several Other Courts of Ap-

RII ices ck Rial ace 9

2. The Fifth Circuit’s Holding That a Cur-

rent Employee Is an Adequate Repre-

sentative of Unsuccessful Applicants

Conflicts with the Decision of This Court

in General Telephone Co. of the North-

west and with a Decision of the Court of

Appeals for the Third Circuit ................ 11

(iii)

TABLE OF CONTENTS—Continued

B. The Fifth Circuit’s Decision Raises Impor-

tant and Recurring Questions Concerning

Employment Discrimination Class Actions

That Urgently Need Resolution by This

A EET GEREN ee Oy Ne Neo rl pat OR gene I

II. THE APPROPRIATE BURDEN OF PROOF

FOR INDIVIDUAL CLAIMS ........000000000000000....

A. The Holding by the Court of Appeals That

a Defendant Must Prove That Others Were

Better Qualified Than the Plaintiff Conflicts

with This Court’s Decision in Sweeney ........

B. The Individual Burden of Proof Issue Should

Not Be Set for Oral Argument ......................

Ee TE ALT Ry AOS LP a SO ae ae

Page

TABLE OF AUTHORITIES

Cases Page

Alexander v. Gino’s, Inc., 621 F.2d 71 (3d Cir.),

cert. denied, 101 S. Ct. 358 (1980) _....... 6

Bartleson v. Dean Witter & Co., 86 F.R.D. 657

Cee eee 12

Board of Trustees of Keene State College v. Swee-

18, 19

Burdine Vv. Texas Dep’t of Community Affairs, 608

F.2d 563 (5th Cir. 1979), cert. granted, 100

a I 18, 19

Chavez v. Tempe Union High School Dist. +213,

565 F.2d 1087 (9th Cir. 1977) 10

DeGrace Vv. Rumsfeld, 614 F.2d 796 (ist Cir.

ES EAA 9,10

EEOC Vv. Detroit Edison Co., 515 F.2d 301 (6th

Cir. 1975), vacated and remanded sub nom.

Local 223, Utility Workers of America v. EEOC,

ee Oe Oe 9,10

East Texas Motor Freight Systems, Inc. v. Rod-

riguez, 431 U.S. 395 (1977) ........... ......4, 8, 9, 10, 11, 14

General Telephone Co. of the Northwest, Inc. v.

EEOC, 100 S. Ct. 1698 (1980) 9,11, 12

Hansberry v. Lee, 311 U.S. 32 (1940) 10, 11, 16

Harris v. Pan American World Airways, Inc., 74

7a oe tee Gon, 2977) .............. 16

Hazelwood School District v. United States, 433

EES Te ey 14

Hill v. Western Electric Co., 596 F.2d 99 (4th

Cir.), cert. denied, 444 U.S. 929 (1979) _.......... 7,9

Johnson Vv. General Motors Corp., 598 F.2d 482

Terence 15

Johnson V. Georgia Highway Express, Inc., 417

F.2d 1122 (6th Cir. 1969) .................................... 6, 7, 15

Kuhn v. Philadelphia Electronic Co., 80 F.R.D.

acest 12

Lewis v. Philip Morris, Inc., 419 F. Supp. 345

(E.D. Va. 1976), vacated, 577 F.2d 1135 (4th

Cir. 1978), cert. denied, 489 U.S. 1089 (1979). 16

TABLE OF AUTHORITIES—Continued

Long V. Sapp, 502 F.2d 34 (5th Cir. 1974) ............

McDonnell Douglas Corp. v. Green, 411 U.S. 792

rel al cocansscendandhasmnoninndneonnndéndaneane

. atterson Vv. General Motors Corp., 631 F.2d 476

I i caliente

Philadelphia Electric Co. v. Anaconda Am. Brass

Co., 48 F.R.D. 452 (E.D. Pa. 1968) ......0000000000....

Scott v. University of Delaware, 601 F.2d 76 (8d

Cir.), cert. denied, 444 U.S. 98 (1979) 0.000000...

Satterwhite v. City of Greenville, 578 F.2d 987

(5th Cir. 1978) (en banc), vacated and re-

manded, 445 U.S. 940 (1980) 0...

Schlesinger Vv. Reservists Committee to Stop the

EE RE GD nc ccccccccccercesece

Sosna V. Iowa, 419 U.S. 898 (1975) 200000000...

Stastny Vv. Southern Bell Tel. & Tel. Co., 628 F.2d

REE I

Talley v. Hoechst Fibers Indus., 24 Fair Empl.

Prac. Cas. 580 (D.S.C. 1979) 20.0......eceeceeeeeeee 10,

Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th

Ns westuwwescns

United States Parole Comm’n v. Geraghty, 445

a svateucnubasees

Vuyanich Vv. Republic Nat’l Bank, 24 Fair Empl.

Prac. Cas. 128 (N.D. Tex. Oct. 22, 1980) ..........

Walker v. World Tire Corp., 568 F.2d 918 (8th

a ccaucsumbonsses

Wajda v. Pennsylvania Mut. Life Ins. Co., 80

a ES)

Wetzel v. Liberty Mut. Insurance Co., 508 F.2d

239 (8rd Cir.), cert. denied, 421 U.S. 1011

me scuuceeubvunennose

Williams v. Wallace Silversmiths, Inc., 75 F.R.D.

633 (D. Conn. 1976), appeal dismissed, 566 F.2d

I so capuevessazbenvecovcs

Wofford v. Safeway Stores, Inc., 78 F.R.D. 460

I ceucssuensecesbetons

7,11

10, 12

15, 16

| -

vii

TABLE OF AUTHORITIES—Continued

Statutes and Regulations Page

Rs I 12,19

ee eS eee 2, 3, 5-9, 14, 16-17

Pas ee ee ee MR COD oc 6,11

le ee eM SS 5 6,11

pee &. Cov. BP. ESCH) (9) .................:.......... 2,3, 15

A te 2

MP ND occas osccccivcccmmteacseicce 2

28 U.S.C. § 2201 senhecsceesentetenesennbesstensastenentenssoutessiives 2

Oe ee 2

I 2

Civil Rights Act of 1964, Title VII, 42 U.S.C.

NT 2

Oe WIAs BION acecccccsesesccece:.-ss.. 2

ne a eS 8

U.S. Const. amendment V ........... 2,14, 16

Books and Journals

Dam, Class Actions: Efficiency, Compensation, De-

terrence, and Conflict of Interest, 4 J. Legal

ie I i 11

13 Harv. C.R.-C.L. L. Rev. 175 (1978) .............. 11

Note, Class Actions: Defining the Typical and

Representative Plaintiff Under Subsections

(a)(3) and (4) of Federal Rule 23, 58 B.U. L.

Se ee I a ee ae) 11

Note, Collateral Attack on the Binding Effect of

Class Action Judgments, 87 Harv. L. Rev. 589

RON chlhhasinaboiieae dae ese ee SN al, 16

Note, Due Process Rights of Absentees in Title

VII Class Actions: The Myth of Homogeneity

of Interest, 59 B.U. L. Rev. 661 i. | an 11

Note, The Importance of Being Adequate: Due

Process Requirements in Class Actions Under

Federal Rule 23, 128 U. Pa. L. Rev. 1217 (1975)... 16

Rutherglen, Title VII Class Actions, 47 U. Chi. L.

I I I ictal iseictinec ean chaps acneneais cs. 6, 14, 17

viii

TABLE OF AUTHORITIES—Continued

Shawe, Processing the Explosion in Title VII Class

Action Suits: Achieving Increased Compliance

with Federal Rule of Civil Procedure 23(a), 19

Wm. & Mary L. Rev. 469 (1978) 2.0...

Miscellaneous

Annual Report of the District of the Administra-

tive Office of the United States Courts (1980)..

Fed. R. Civ. P., Advisory Committee Notes 39

ee eect Ea A en ee

Page

16, 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST,

. Petitioner,

MARIANO S. FALCON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

General Telephone Company of the Southwest petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit in

this case.

OPINIONS BELOW

The judgment and findings of fact and conclusions of

law by the District Court concerning liability were not

reported. See Appendix at 3la, 48a. The orders of the

district court certifying the class and denying motions for

decertification of the class also were not reported. See

Appendix at 45a through 49a. The opinion of the Dis-

trict Court with respect to back pay was reported at 463

F. Supp. 315 (N.D. Tex. 1978). See Appendix at 50a.

The opinion of the United States Court of Appeals for

the Fifth Circuit was reported at 626 F.2d 369 (5th Cir.

1980). See Appendix at la.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on September 22, 1980.

See Appendix at 63a. A timely Petition for Rehearing

and Rehearing En Banc was denied on October 27, 1980.

See Appendix at 65a. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

APPLICABLE CONSTITUTIONAL

PROVISION AND STATUTES

The Due Process clause of amendment V of the United

States Constitution and rules 23(a) and 23(b) (2) of

the Federal Rules of Civil Procedure are set out in the

Appendix at 66a.

STATEMENT

Mariano §S. Faleon (“Falcon”) applied to and was

hired by the Irving, Texas division of General Telephone

Company of the Southwest (“General”) in July 1969.

During 1971 and 1972, he sought and was considered for

a promotion to Field Inspector, a management position.

He did not receive this promotion, although several non-

Mexican-Americans were promoted. He subsequently filed

a complaint alleging that General’s failure to promote

him was the result of General’s discriminatory policy

toward Mexican-Americans and violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17

and 42 U.S.C. § 1981.' Falcon did not allege in the com-

plaint (nor at any time during these proceedings) that

General discriminated against him with respect to hiring.

1 Jurisdiction of the district court was premised on 28 U.S.C.

§§ 1843 (4), 2201 & 2202 and 42 U.S.C. § 2000e-5(f).

* Falcon’s EEOC charge likewise did not mention hiring dis-

crimination. Moreover, he testified that he did not even know any

Mexican-Americans who had unsuccessfully applied for employ-

ment with General. Trial Transcript at 125.

The complaint also stated that Falcon was bringing

suit pursuant to rule 23(b) (2) of the Federal Rules of

Civil Procedure on behalf of all Mexican-Americans who

are or might be employed by General at its Irving loca-

tion. The complaint alleged that General had discrimi-

nated against these persons because of their national

origin with regard to compensation, terms, conditions,

and privileges of employment.

Prior to trial Falcon requested that the trial court

certify a class, with Falcon as its sole representative,

consisting not only of all Mexican-Americans employed

by General but also of all Mexican-Americans who had

applied for employment with General. Falcon did not

introduce any evidence showing that he could meet the

prerequisites to a class action of rule 23(a) of the Fed-

eral Rules of Civil Procedure with regard to these un-

successful applicants. Instead, Falcon argued that no

such evidence was necessary because under the Fifth

Circuit’s “across the board” theory of employment dis-

crimination class actions, if a plaintiff shows himself to

be a member of a minority group and an employee of

the defendant, he may represent all other minority em-

ployees or applicants for employment with the defendant,

even if the types of discrimination allegedly suffered by

members of the proposed class differ (e.g., discrimination

in hiring versus discrimination in promotions). (Fifth

Cir. App. at 49-52.) The trial court certified a class under

rule 23(b) (2) that included unsuccessful applicants, with

Falcon as its sole representative, without holding an evi-

dentiary hearing to determine whether the prerequisites

of rule 23(a) were satisfied and without making findings

of fact to support its conclusion that Falcon was an

appropriate representative of the class. (Fifth Cir. App.

at 52.)

General objected that Falcon could not meet the require-

ments of rule 23(a) with regard to the proposed repre-

sentation of unsuccessful applicants because he had con-

cededly not himself suffered from hiring discrimination

and because of the appearance of impropriety arising

from the fact that his interests were potentially different

from those of this segment of the class. (Fifth Cir. App.

at 101-07, 114, 321-24.) Falcon responded that under the

across the board approach to employment discrimination

class actions it was irrelevant that he had not suffered

from hiring discrimination and that the courts in em-

ployment discrimination cases “have not recognized the

appearance of impropriety where an employee seeks to

represent the interests of a prospective employee.” (Fifth

Cir. App. at 149-52.) The trial court denied all attempts

by General to have the class decertified.

The district court bifurcated the trial into liability and

remedy stages. At the liability stage, the plaintiff intro

duced extensive live testimony and documentary evidence

concerning his allegations of discrimination in promotions.

The sole evidence introduced by Falcon pertaining to

hiring discrimination, however, consisted of statistical ex-

hibits comparing the percentage of Mexican-Americans

in the total work force of the surrounding area to the

percentage of Mexican-Americans in General’s work force

at its Irving location and statistical exhibits showing a

breakdown Ly race and national origin of the numbers

of persons hired by General during certain years. No

live testimony concerning the alleged hiring discrimina-

tion was introduced by plaintiffs, nor did plaintiffs at-

tempt any comparisons between the number of Mexican-

Americans hired by General and the percentage of Mexi-

can-Americans in the relevant applicant pool.

The trial court ruled that General had discriminated

against Falcon by not promoting him and had discrimi-

nated against the class with respect to hiring, but not

with respect to promotions. The trial court filed findings

of fact and conclusions of law and ordered certain injunc-

tive relief at that time. At the remedy portion of the

trial, the court ordered General to pay back wages to

Falcon and to certain members of the class.

On appeal, the Fifth Circuit affirmed the trial court’s

decision certifying Falcon as the representative of a class

including unsuccessful applicants, holding that under the

Fifth Circuit’s rule permitting “across the board” attacks

on employment, discrimination the rule 23(a) prerequi-

sites are satisfied even where an employee complaining

of one employment practice seeks to represent persons

complaining of different practices.* The court of appeals

also affirmed the trial court’s ruling that General’s fail-

ure to promote Falcon was discriminatory, holding that

General had failed to “prove,” in rebuttal to Falcon’s

prima facie case, that those non-Mexican-Americans pro-

moted after Falcon sought a promotion were “better

qualified” than Falcon. Because the district court failed

to explain why it had relied upon statistical hiring data

without reference to General’s evidence concerning appli-

cant flow, the court of appeals did not affirm the district

court’s decision that General had discriminated against

the class with regard to hiring but instead remanded

this portion of the case for a reevaluation of the statisti-

cal data introduced by the parties.

8’ The court of appeals stated that Falcon had shown more in

common with the class than simply discrimination on th: basis of

national origin. “He also showed a similarity of interests based on

job location, job function and other considerations.” Although the

trial court did limit the class represented by Falcon to the Irving

location, it did not limit the class represented by Falcon to any

particular job or type of jobs—he was allowed to represent all

employees at Irving and applicants for all of the jobs at Irving.

These jobs differed considerably, ranging in content from the con-

struction job held by Falcon to, for example, clerical and adminis-

trative positions. The court of appeals did not specify what “other

considerations” it thought relevant.

REASONS FOR GRANTING THE WRIT

I, THE PROPER SCOPE OF THE CLASS

A. The Holding by the Court of Appeals That a Cur-

rent Employee May Represent Unsuccessful Appli-

cants Conflicts with the Decisions of This Court in

East Texas Motor Freight and General Telephone

Co. of the Northwest and with the Decisions of

Other Courts of Appeals

Rule 23(a) of the Federal Rules of Civil Procedure

establishes four prerequisites to the maintenance of a

class action: numerosity, commonality, typicality, and

adequacy of representation. The Fifth Circuit has long

adhered to the so-called “across the board” theory in

employment discrimination class actions to determine

whether the commonality, typicality, and adequacy of

representation requirements are satisfied. Under this

approach, the allegation of the named plaintiff that the

employer discriminates against persons in the same pro-

tected group as the plaintiff is generally sufficient to meet

the commonality, typicality, and adequacy requirements

of rule 23(a) and to permit a plaintiff complaining of

one type of employment discrimination (e.g., termina-

tions) to represent persons complaining of other types

of discrimination (e.g., hiring).* The original rationale

4 See, e.g., Long v. Sapp, 502 F.2d 34, 42-43 (5th Cir. 1974);

Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124-25

(5th Cir. 1969). Cf. Alexander v. Gino’s, Inc., 621 F.2d 71, 75 (3d

Cir.), cert. denied, 101 S. Ct. 358 (1980) (“The essence of [the

across the board] theory is that the named plaintiff may challenge

conduct affecting the class even if he himself has not been affected

by the conduct .... In effect, it loosens the typicality and adequate

representation requirements of rule 23(a) (3) and (a) (4).”); Waj-

da v. Pennsylvania Mut. Life Ins. Co., 80 F.R.D. 3038, 307 (E.D. Pa.

1978) (across the board approach “amounts to a judicial relaxation

of the Rule 23(a) (2) and (3) requirements of commonality and

typicality in Title VII cases”) ; Rutherglen, Title VII Class Actions,

for this special approach to rule 23(a) in employment

discrimination actions was that the question whether a

racially discriminatory policy exists is a question of fact

common to all members of the class and that this single

common question satisfies not only the commonality re-

quirement of rule 23(a) but also the typicality and ade-

quacy requirements. See Johnson v. Georgia Highway

Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969).

This Court’s decision in East Texas Motor Freight

Systems, Inc. Vv. Rodriguez, 431 U.S. 895 (1977), pre-

cludes the continued use of the across the board approach

to class actions. There the Court explained that although

common questions of law or fact are frequently present

in suits alleging discrimination, the inquiry of the trial

court may not end with this single conclusion: “[C]are-

ful attention to the requirements of Fed. Rule Civ. Proc.

23 remains nonetheless indispensable. The mere fact that

a complaint alleges racial or ethnic discrimination does

not in itself ensure that the party who has brought the

lawsuit will be an adequate representative of those who

may have been the real victims of that discrimination.”

Id. at 406-07.

This language in East Texas Motor Freight has led

many courts to reject any further reliance on the across

the board theory and to begin to examine employment

discrimination suits on a case by case basis to determine

whether the rule 23(a) prerequisites are met.® As the

47 U. Chi. L. Rev. 688, 711 (1980) (‘failure to define the class by

reference to the named plaintiff’s individual claim is characteristic

of the ‘across-the-board’ approach to Title VII class actions”; “a

conclusory allegation of classwide discrimination is sufficient for

certification”’ ).

5 See, v.g., Patterson v. General Motors Corp., 631 F.2d 476, 480

(7th Cir. 1980) ; Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d

267, 273-76 (4th Cir. 1980) ; Hill v. Western Elec. Co., 596 F.2d 99,

101-02 (4th Cir.), cert. denied, 444 U.S. 929 (1979); see generally

court below observed, however, the Fifth Circuit has not

read East Texas Motor Freight to preclude use of the

across the board theory. Instead, the Fifth Circuit has

limited East Texas Motor Freight to its precise facts—

where the class representatives were not discriminated

against at all. See Satterwhite v. City of Greenville, 578

F.2d 987, 993 n.8 (5th Cir. 1978) (en banc), vacated and

remanded on other grounds, 445 U.S. 940 (1980). In so

doing, the Fifth Circuit ignored the language quoted above

from the East Texas Motor Freight case that was clearly

of broader applicability.

The Fifth Circuit’s continued adherence to the across

the board approach in the present case was not merely ab-

stract error. Any review of the particular facts presented

would have required the conclusion that certification of

I'aleon as the representative of rejected applicants was

inappropriate because his claims were not typical of the

claims of the class and because he was not an adequate

representative of the class.°®

Rutherglen, supra note 4, at 721-23. The Tenth Circuit had re-

jected the across the board approach prior to this Court’s decision

in East Texas Motor Freigiit. See Taylor v. Safeway Stores, Inc.,

524 F.2d 263, 270-71 (10th Cir. 1975).

® Because the class claims have not yet been fully tried and

because the initial certification of the class and the subsequent

refusals by the trial court to decertify the class were erroneous, the

class must now be decertified and the remand to the trial court

ordered by the Fifth Circuit vacated. See East Texas Motor

Freight, supra, 431 U.S. at 406 n.12. United States Parole Comm’n

v. Geraghty, 445 U.S. 388 (1980), is not to the contrary. That

case involved only considerations of standing under article III,

not the prerequisites of rule 23(a). See id. at 405-07. Moreover,

in Geraghty, but not in the present case, the initial certification

of the class was proper.

1. The Fifth Circuit’s Holding That the Claims of

a Current Employee Are Typical of the Claims

of Unsuccessful Applicants Is Inconsistent with

the Approach of This Court in East Texas Motor

Freight and General Telephone Co. of the North-

west and Conflicts with the Decisions of Several

Other Courts of Appeals

In East Texas Motor Freight, this Court stressed that

the class representative must be a member of the class

and must “possess the same interest and suffer the same

injury” as the class members. 431 U.S. at 403 (quoting

Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208, 216 (1974)). More recently, this Court

noted that the typicality requirement of rule 23(a) “is

said to limit the class claims to those fairly encompassed

by the named plaintiff’s claims.” General Telephone Co.

of the Northwest, Inc. v. EEOC, 100 S. Ct. 1698, 1706

(1980). These rulings clearly require that there be an

inquiry into whether the named plaintiff’s claims are

typical of those of the putative class—an inquiry that the

Fifth Circuit held that the trial court was not required to

conduct in this case. Instead, by a mechanical application

of the across the board approach, the Fifth Circuit con-

cluded that all requirements of rule 23(a), including the

typicality requirement, were satisfied.

Other courts of appeals have inquired into the existence

of typicality in similar cases. They have concluded—

contrary to the decision below—that current employees’

claims generally are not typical of the claims of rejected

applicants, because there is no factual overlap between

the discrimination claims of the current employees and

those of applicants.’ As the First Circuit reasoned in

7 See DeGrace v. Rumsfeld, 614 F.2d 796, 809-10 (1st Cir. 1980) ;

Hill v. Western Elec. Co., 596 F.2d 99, 101-102 (4th Cir.), cert.

denied, 444 U.S. 929 (1979) ; EEOC v. Detroit Edison Co., 515 F.2d

801, 310-11 (6th Cir. 1975) (“serious doubt” that such representa-

tion is proper) (dictum), vacated and remanded on other grounds

DeGrace, in the absence of such a factual overlap there is

no “community of interest” between a current employee

and rejected applicants in seeking the elimination of dis-

criminatory hiring barriers. Thus, the current employee

does not have a sufficient personal self interest in press-

ing the claims of applicants to safely permit him to act

as their representative.’ See 614 F.2d at 809-10. Where,

as here,® the named plaintiff can establish his own per-

sonal claim without resolving a single issue relevant to

the hiring claims of rejected applicants, there is no ef-

ficiency gained by allowing the representative plaintiff

to press hiring claims and the named plaintiff has little

incentive to take vigorous actions to protect the interests

of unsuccessful applicants.’ In such cases, the interests

sub nom. Local 223, Utility Workers of America v. EEOC, 431 U.S.

951 (1977); cf. Scott v. University of Delaware, 601 F.2d 76, 87

(3d Cir.), cert. denied, 444 U.S. 931 (1979) (doubtful after East

Texas Motor Freight that person not injured by hiring practices

can represent class challenging such practices) ; Chavez v. Tempe

Union High School Dist. #218, 565 F.2d 1087, 1094 n.10 (9th Cir.

1977) (individual action; person not suffering hiring discrimina-

tion has no standing to raise such claims); see also Walker v.

World Tire Corp., 563 F.2d 918, 921-22 (8th Cir. 1977).

8 The First Circuit noted in DeGrace that in some cases there

may be a significant factual overlap between the claims of appli-

cants and current employees—for example, where the same test

is used for making hiring decisions and transfer decisions. See

614 F.2d at 809. In such cases, the typicality requirement should

not bar a current employee from representing applicants.

* None of the evidence presented by Falcon on his promotion

claims bore any relevance to the hiring claims of the class. The

evidence presented of promotion discrimination was largely live

testimony designed to support a disparate treatment theory. The

evidence of hiring claims was entirely statistical in nature and, as

such, supported a disparate impact theory.

10 See Talley v. Hoechst Fibers Indus., 24 Fair Empl. Prac. Cas.

580, 584-85 (D.S.C. 1979) ; Williams v. Wallace Silversmiths, Inc.,

75 F.R.D. 633, 635 (D. Conn. 1976), appeal dismissed, 566 F.2d

864 (2d Cir. 1977) ; see generally Hansberry v. Lee, 311 U.S. 82, 45

of current employees and applicants are so different in

kind that claims of current employees may not fairly be

said to be typical of the claims of applicants.

2. The Fifth Circuit’s Holding That a Current Em-

ployee Is an Adequate Representative of Unsuc-

cessful Applicants Conflicts with the Decision

of This Court in General Telephone Co. of the

Northwest and with a Decision of the Court of

Appeals for the Third Circuit

While it is important that the representative plaintiff

have claims typical of those of the class he seeks to repre-

sent, it is even more important that the named plaintiff

not have interests actually or potentially in conflict with

the members of the proposed class: In such cases the class

representative would have an incentive to see that those

he seeks to represent do not prevail on their claims or do

not obtain appropriate redress for their injuries.“ As

this Court made clear in General Telephone Co. of the

Northwest, the adequate representation requirement is

typically construed to preclude a class action where there

are such conflicting interests between the named plain-

tiff and putative class members.’”

(1940) ; Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th

Cir. 1980) ; Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 474-75,

489 (N.D. Cal. 1978); Dam, Class Actions: Efficiency, Compensa-

tion, Deterrence, and Conflict of intersst, 4 J. Legal Stud. 47,

48-54, 73 (1975); 13 Harv. C.R.-C.L. L. Kev. 175, 189 (1978).

11 See generally Hansberry v. Lee, 311 U.S. 32, 44 (1940) ;

Note, Due Process Rights of Absentees in Title VII Class Actions:

The Myth of Homogeneity of Interest, 59 B.U. L. Rev. 661, 673-

80 (1979).

12 See 100 S. Ct. at 1707; see also Sosna v. Iowa, 419 U.S. 393,

403 (1975); East Texas Motor Freight, supra, 431 U.S. at 405;

see generally Note, Class Actions: Defining the Typical and Repre-

sentative Plaintiff Under Subsections (a)(3) and (4) of Federal

Rule 23, 53 B.U. L. Rev. 406, 410, 418-27 (19738).

Moreover, the Court in General Telephone Co. of the

Northwest specifically commented upon the existence of

potential conflicts of interest between employees and ap-

plicants that would preclude the same plaintiff from repre-

senting both classes: “In employment discrimination liti-

gation, conflicts might arise, for example, between em-

ployees and applicants who were denied employment and

who will, if granted relief, compete with employees for

fringe benefits or seniority. Under Rule 23, the same

plaintiff could not represent these classes.” 100 S. Ct. at

1707.

The Third Circuit had earlier reached a similar con-

clusion. In Scott v. University of Delaware, 601 F.2d

76 (3d Cir.), cert. denied, 444 U.S. 93 (1979), the court

held that a current employee could not be an adequate

representative of a class of applicants since his interests

were necessarily in conflict with those of applicants for

two reasons—first, because he had personally benefitted

from the hiring procedures he was seeking to attack on

behalf of applicants, and, second, because he would have

been in sharp competition for contract renewal and tenure

with any applicants who might be offered positions as a

result of his suit. Jd. at 86 & n.21.

This case also presents a clear potential conflict.2 The

relief requested by Falcon for promotion discrimination

included a requirement that General make good faith

efforts to fill its management level positions with Spanish-

13 There may be rare cases where the interests of employees

and applicants are not necessarily conflicting. See, e.y., Bartleson

v. Dean Witter & Co., 86 F.R.D. 657, 671 (E.D. Pa. 1980) (no

apparent conflicts where former employee not seeking reinstate-

ment seeks to represent applicants); Kuhn v. Philadelphia Elec.

Co., 80 F.R.D. 681, 685 (E.D. Pa. 1978) (no antagonism between

named employee plaintiffs and applicants where promotions based

on seniority and all named plaintiffs had been hired prior to date

for which retroactive seniority could be rewarded to applicants).

surnamed Americans until 5.24% of these positions were

held by Spanish-surnamed Americans." Moreover, Gen-

eral had already voluntarily implemented an affirmative

action plan under which there were specific minority goals

and timetables. (Trial Transcript at 357-58.) Most man-

agement positions were filled by internal promotions and

these promotions were not made on the basis of seniority.

(Fifth Cir. App. at 181, 210, 219, 319.) Finally, pro-

motions within the hourly bargaining unit were not made

exclusively on the basis of seniority. (Fifth Cir. App. at

180-81, 283.) In these circumstances, it was in Falcon’s

interest that the total number of Mexican-American em-

ployees be kept low, in order to reduce the number of per-

sons he would be competing with under the pre-existing

affirmative action plan and under the plan he had pro-

posed.

Indeed, the facts of this case illustrate the danger of

allowing current employees to represent applicants.

From the beginning of this case, Falcon has shown little

interest in the claims of those allegedly suffering from

hiring discrimination. His EEOC charge did not mention

hiring discrimination and he testified that he did not

know even a single Mexican-American whose application

had been rejected by General. At trial, the plaintiff pre-

sented only a few exhibits, statistical in nature, per-

taining to hiring discrimination; the remainder of his

case pertained to claims of discrimination in promo-

tions. Moreover, although Falcon sought specific goals for

promotions of Mexican-Americans, he sought only in-

creased recruiting efforts as the injunctive remedy for

hiring discrimination against Mexican-Americans.

The situation is not of concern only to class members:

If the findings of hiring discrimination are reversed on

14 Fifth Cir. App. at 220. General voluntarily included this

provision in its own proposed order governing relief, id. at 279,

and the trial court ordered this relief. Jd. at 291.

remand, the apparent conflict of interest between Falcon

and applicants, coupled with his lack of knowledge about

these claims and his indifferent approach to the presenta-

tion of evidence concerning hiring claims at trial, may

give rise to assertions by class members that this case

should not be given res judicata effect because Falcon was

not an adequate representative for purposes of due

process. See text and notes at notes 19-22 infra.

B. The Fifth Circuit’s Decision Raises Important and

Recurring Questions Concerning Employment Dis-

crimination Class Actions That Urgently Need

Resolution by This Court

Many courts and commentators, including the court of

appeals in this case, have noted the extraordinary dis-

array in the lower courts concerning the appropriate

approach to rule 23(a) in employment discrimination

class actions. See, e.g., Vuyanich v. Republic Nat’l Bank,

24 Fair Empl. Prac. Cas. 128, 187 & n.10 (N.D. Tex.

Oct. 22, 1980) ; Note, supra note 11, at 672. One com-

mentator has concluded that the continuing split of the

courts after Hast Texas Motor Freight has “aggravated

the chronic uncertainty surrounding the application of

rule 23” and has resulted in a situation where “[w]hether

any particular case will be certified as a class action

depends less on rules of law than on the district judge’s

selection of precedent.” See Rutherglen, supra note 4,

at 724. In addition, as discussed above, the lower courts

are in disagreement about the propriety of representation

15 For this reason, the Fifth Circuit’s remand of the finding of

hiring discrimination for further consideration in light of Hazel-

wood School Dist. v. United States, 483 U.S. 299 (1977), does not

affect the need for the grant of certiorari in this case. If the class

did not prevail on remand, General would remain subject to col-

lateral attacks on the judgment. If the class did prevail, General

would again be forced to appeal the initial certification of the class

as improper.

of applicants by current employees. The number of em-

ployment discrimination class actions in itself would be

sufficient reason for the Court to resolve these recurring

questions.**

Of course, these issues have broad social importance as

well. In rule 23(b) (2) class actions, the homogeneity of

the class should render the action binding as a matter of

res judicata on all class members.’’ Thus, as Judge

Godbold perceptively pointed out in a concurrence to the

very first “across the board” opinion by the Fifth

Circuit, the certification of an overbroad class action

may have “catastrophic consequences if the plaintiff

loses and carries the class down with him, or proves

only such limited facts that no practice or policy can be

found, leaving him afloat but sinking the class.” Johnson

Vv. Georgia Highway Express, Inc., 417 F.2d 1122, 1126

(5th Cir. 1969) (Godbold, J., concurring). Moreover, the

combination of disparate claims poses the very real danger

that the claims of absent class members will be slighted

or overlooked by the named plaintiff and the attorney

representing the class. See Talley v. Hoechst Fibers In-

dustries, 24 Fair. Empl. Prac. Cas. 580, 584 (D.S.C.

1979). Thus, continued utilization of the across the board

16 During one recent year Title VII class actions comprised

almost twenty-five percent of all class actions filed in federal courts.

See Annual Report of the Director of the Administrative Office

of the United States Courts at A-170 (1980).

17 See Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 289, 248-49

(3d Cir.), cert. denied, 421 U.S. 1011 (1975); Fed. R. Civ. P.,

Advisory Committee Notes, 39 F.R.D. at 99, 106 (1966); but ef.

Johnson v. General Motors Corp., 598 F.2d 4382 (5th Cir. 1979)

(res judicata effect of prior class action does not bar member

of class certified under rule 23(b) (2) from bringing subsequent

suit for money damages unless he received actual notice of the

prior action) ; see generally Note, supra note 11, at 685-88.

approach may frustrate, rather than further, the public

policy against employment discrimination.'®

On the other hand, because a class action cannot, con-

sistently with due process, be given binding res judicata

effect unless the representative plaintiff had interests in

common with the absentees and adequately represented

those interests,’® the certification of very broad classes

in employment discrimination cases may well subject de-

fendants to successful collateral attacks from absent

class members on judgments entered in their favor in

class actions. This would raise substantial questions

about the policy of finality of judgments * and about the

fairness of subjecting defendants to what is, in effect,

one-way intervention by absent plaintiffs.

18 See Shawe, Processing the Explosion in Title VII Class Action

Suits: Achieving Increased Compliance with Federal Rule of Civil

Procedure 23(a), 19 Wm. & Mary L. Rev. 469, 486-87 (1978);

cf. Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24,

38 (N.D. Cal. 1977) (“ ‘liberal’ application of Rule 28 to Title VII

cases will not necessarily promote its remedial purposes if it means

failure to adhere to and fully enforce the requirements of Rule 23

whose purpose is to balance and protect the rights of all parties,

present and absent’).

1® See Hansberry v. Lee, 311 U.S. 82, 43-45 (1940) ; see generally

Note, The Importance of Being Adequate: Due Process Require-

ments in Class Actions Under Federal Rule 23, 128 U. Pa. L. Rev.

1217 (1975).

20See Talley v. Hoechst Fibers Indus., 24 Fair Empl. Prac.

Cas. 580, 584-85 (D.S.C. 1979) ; see, e.g., Lewis v. Philip Morris,

Inc., 419 F. Supp. 345, 350-52 (E.D. Va. 1976), vacated on other

grounds, 577 F.2d 1135 (4th Cir. 1978), cert. denied, 489 U.S. 1089

(1979) ; see generally Note, Collateral Attack on the Binding Effect

of Class Action Judgments, 87 Harv. L. Rev. 589 ( 1974).

21 See generally Note, supra note 19, at 1246-49.

22 See generally Fed. R Civ. P., Advisory Committee Notes, 39

F.R.D. at 105-106 (1966); Note, supra note 19, at 1242-46; Note,

supra note 20, at 601 (quoting Philadelphia Elec. Co. v. Anaconda

Am. Brass Co., 43 F.R.D. 452, 459 (E.D. Pa. 1968)): “To facilitate

In addition, as this case vividly illustrates, across the

board certification does not necessarily effect an economy

of judicial resources by efficiently consolidating claims

presenting common issues. Instead, to the extent that this

approach permits or requires joint trial of the dis-

similar claims of a plaintiff who is an incumbent employee

and a class of unsuccessful applicants, it complicates the

litigation of the employee’s claim and accelerates, if not

unnecessarily forces, litigation of the possibly non-existent

claims of applicants. See Shawe, supra note 18, at 488

& n.101.

Finally, Petitioner is not asking that this Court end

broad-based class actions in employment discrimination

cases; adherence to the requirements of rule 23(a) will

not prevent employees with differing factual situations

from banding together in a single class where there are

significant issues in common and no intra-class conflicts.

However, in the absence of an affirmation from this Court

that there are limitations that are applicable in this and

similar commonly occurring situations, some lower courts

will persist in applying the across the board theory. And,

as many courts and commentators have noted,”* the avail-

ability of the across the board theory can transform every

individual claim of discrimination into a sweeping class

action, with an enormous increase in the. bargaining

power of individual plaintiffs and their attorneys.

successful challenges to the binding effect of class action judgments

is to create a postjudgment election to opt out—‘a return to one-

way intervention under a new guise.’ ”

8 See, e.g., Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 479

(N.D. Cal. 1978); Rutherglen, supra note 4, at 725-26 & n.214;

Shawe, supra note 18, at 489-92.

II. THE APPROPRIATE BURDEN OF PROOF FOR

INDIVIDUAL CLAIMS

A. The Holding by the Court of Appeals That a De-

fendant Must Prove That Others Were Better

Qualified Than the Plaintiff Conflicts with This

Court’s Decision in Sweeney

In affirming the trial court’s ruling that Falcon had

proved disparate treatment by General with respect to

the denial of his promotion, the Court of Appeals ruled

that once Falcon established a prima facie case under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (19738),

the burden shifted to the defendant to “prove that those

hired or promoted were better qualified than the plaintiff.”

In reaching this conclusion, the court of appeals expressly

relied upon Burdine v. Texas Dep’t of Community Af-

fairs, 608 F.2d 563, 567 (5th Cir. 1979). The holding

of the court in Burdine requiring the defendant to prove

nondiscriminatory reasons for its action by a preponder-

ance of the evidence is inconsistent with this Court’s

holding in Board of Trustees of Keene State College v.

Sweeney, 434 U.S. 24 (1978), that the defendant need

only “articulate,” not “prove,” the absence of discrimina-

tory motive.

B. The Individual Burden of Proof Issue Should Not

Be Set for Oral Argument

This Court has granted certiorari in Burdine, see 100

S. Ct. 3009 (1980), the case has been argued, see 49

U.S.L.W. 3442 (December 9, 1980), and is awaiting de-

cision. The question whether the Fifth Circvit’s require-

ment that a defendant prove nondiscriminatory reasons is

consistent with Sweeney is squarely presented by the

petition for certiorari in Burdine. See 48 U.S.L.W. 3823

(1980). Thus, it is likely that this Court will soon de-

cide whether the court of appeals in the present case

erred in relying upon Burdine.

Under these circumstances, it may be suggested that

the appropriate procedure in this case should be for the

Court to hold this case pending its disposition of Burdine.

However, because the issue of the appropriate burden of

proof under Sweeney relates exclusively to Falcon’s indi-

vidual disparate treatment claim and has no relevance

to the class claims, which are premised on a disparate

impact theory, this Court’s decision in Burdine cannot

eliminate the rule 23 class certification issues presented

by this petition. Therefore, this Court should grant the

petition but set only the class certification issues for oral

argument; the burden of proof issue can thereafter be

considered on remand in light of the Court’s decision in

Burdine.

CONCLUSION

For all of these reasons, the Petitioner requests that

this Court grant its Petition for a Writ of Certiorari.

Respectfully submitted,

THOMPSON POWERS

(Counsel of Record)

DOUGLAS HERBERT

STEPTOE & JOHNSON

1250 Connecticut Avenue, N.W.

Washington, D.C. 200386

(202) 862-2195

E. RUSSELL NUNNALLY

COKE & COKE

3600 First National Bank Building

Dallas, Texas 75202

WARD W. WUESTE, JR.

General Telephone Company

of the Southwest

2701 Johnson Street

San Angelo, Texas 76901

Attorneys for Petitioner

General Telephone Company of

January 1981 the Southwest

Appendices

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 78-3587

MARIANO §. FALCON,

Plaintiff-Appellee

. Cross-Appellant,

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST,

Defendant-A ppellant

Cross-A ppellee.

Sept. 22, 1980

Appeals from the United States District Court

for the Northern District of Texas

Before TUTTLE, RANDALL and TATE, Circuit

Judges.

TUTTLE, Circuit Judge:

This is an appeal from a judgment for the plaintiffs

in a class action Title VII employment discrimination

suit. We affirm part of the trial court’s decision and

remand the rest for further proceedings.

This class action, filed origisally by Mariano S. Falcon,

a Mexican-American, challenged the hiring and promo-

tion practices of the defendant employer, General Tele-

phone Company of the Southwest (General), on the

ground that General impermissibly discriminated on the

basis of national origin against Mexican-Americans

(Spanish speaking Americans).' Falcon applied for a

1In this opinion, as in the court below and in the briefs,

Mexican-Americans and Spanish speaking Americans are used

interchangeably.

job with General in July of 1969. He was hired as part

of an affirmative action program, and after a training

period, he began work as a groundman. After one month,

he was promoted to lineman and a short time later, he

was promoted to lineman in charge. One year after he

was hired, he turned down a promotion to installer-

repairman, and he did not receive any other promotion

prior to October, 1972, at which time he applied for a

promotion to Field Inspector. He did not receive this

promotion although several other non-Mexican-Ameri-

cans with less seniority than Falcon received the promo-

tion. Falcon then filed a complaint with the Equal Em-

ployment Opportunity Commission (EEOC) charging

that General discriminated in the area of promotions.”

2 The factual portion of the EEOS charge stated:

“T believe that I have been discriminated because of my national

origin—SSA. I have been passed up for promotion to inspector

by whites with less seniority and less experience than I have. This

is contrary to my union’s seniority system as depicted by the

Collective Bargaining Agreement. Also, I believe that the Com-

pany’s promotion policy has operated against a class—SSA.”

The attached affidavit of Falcon stated:

“I was hired by General Telephone in July, 1969, as a ground-

man. A month later I made lineman, and a month later lineman-in-

charge. I have received no further advancement.

The normal progression of jobs from bottom to top is as fol-

lows: groundman, lineman, lineman-in-charge, inspector, crew fore-

man, and finally, construction foreman.

My present supervisor, Bill Hamrick (white), made lineman-in-

charge the same time I did. He has since become a construction

foreman.

Jerry Hoffman (white) was hired in the latter part of 1970 and

was promoted from groundman to inspector within six months.

Two months later he was made a crew foreman, and two months

later a construction foreman.

Randy Railey (white) was hired in the latter part of 1970 and

was made an inspector from lineman within a year. He is now an

installer-repairman in Carrollton, Texas.

[Footnote continued on page 3a]

He filed suit in early 1975, challenging both the hiring

and promotion policies of General in a class action suit.

The trial court certified the class, but limited the class

to those Mexican-American employees who had applied

for employment or were employed in General’s Irving,

Texas division.

At Phase I of the trial, the district court decided that

General had discriminated against the plaintiff with re-

spect to promotion, but not with respect to hiring, and

that General had discriminated against the other mem-

bers of the class with respect to hiring, but not with

respect to promotions. The court apparently based its

finding of discriminatory hiring on statistics, introduced

by the plaintiff, which indicated that Mexican-Americans

represented 5.24% of the work force in the Dallas/Fort

Worth area, the relevant area for Irving, while only

1.22% of General’s employees in 1972 were Mexican-

American. The trial court also relied on the fact that

20 Caucasians were hired in 1972, as opposed to no Mexi-

2 [Continued }

Jerry Eden (white) was hired in April of 1972 as a lineman.

He had seven years experience as a contractor. He was given duties

of inspector on September 18, 1972.

I believe that I have been discriminated against by my company’s

promotional policy because I am SSA. Witnesses who will attest

to both my qualifications and the facts in this affidavit are: (1) Bob

Ferguson; (2) John Chamberlain—Union Steward of my union,

CWA—Communication Workers of America; (3) Rick Schaeffer ;

(4) Stanly Mann; (5) Mike Wilcox; (6) Willie Baxter; (7) Pete

Butler .. . all whites.

Mr. Loy Goldston is my area supervisor and Mr. Rhett Mun is

my district supervisor.”

8 The different hearings will be discussed as Phase I, Phase II,

etc. At Phase I, the trial court found liability and ordered injunc-

tive relief. At Phase II, the trial court determined damages.

can-Americans, and that in 1973, only 4% of those hired

were Mexican-American.* Sve note 16 infra.

With respect to hiring at Phase I, there was testimony

that General had a policy of keeping all applications ac-

tive for only three months. The court found that none of

the applicants were informed of this time limit, that the

applicants were not informed as to what positions were

open, and that they were not informed as to the quali-

4 General presented statistical evidence showing the following,

in part:

a) The percentage of General’s new hires at its Irving facility

which were Mexican-Americans was:

1973 4.0%

1974 13.2%

1975 (through 7/30) 18.8%

b) In the available labor market in the Dallas/Ft. Worth area, the

percentage of Spanish-surnamed Americans was 5.24%; in Irving

it was 3.6%.

c) The percentage of Mexican-Americans and whites who were

hired from the applicant pool for that group.

Whites Mexican-Americans

1973 10% 17%

1974 8.3% 17%

1975 0.7% 10.83%

In its brief in this Court, General also argues that both it and

the plaintiffs’ statistics show the following:

a) July 1972-June 1976: 17.73% of those hired at Irving were

Mexican-Americans.

b) 1973-1976: 18.3% of all Mexican-American applicants were

hired, although only 2.98% of General’s applicants were Mexican-

Americans.

c) 1973-1976: 5.66% of General’s white applicants were hired,

although 81.5% of the work force in the area was white and

The trial court also found that General employed 526 people,

86.65% of the applicants were white.

but that only one of 66 management employees were Mexican-

American. See note 16 infra.

fications for any of these positions. Thus, General was

given the burden of proving at Phase II that there had

not been any job openings for which the class members

had been qualified after the three month period.® —

As stated previously, the trial court also decided that

Falcon was discriminated against in promotions. The

court based its decision there on its finding that Gen-

eral’s proferred reasons for promoting the other men,

rather than Falcon, were insufficient and subjective.

Therefore in Phase I, as a preliminary part of its relief

order, the court ordered the defendant to take numerous

affirmative action steps and the judge held that the plain-

tiff and the class were entitled to attorney’s fees.

At Phase II of the trial, the court ruled that General

had not met its burden of proving that there had been no

available openings for the class applicants who wished

to be hired after the three month “active” application

period. All 13 class members therefore received back pay

awards and job security awards to compensate them for

the fact that if they had been hired by General, they

would have been in a union. The judge also awarded

attorney’s fees to the plaintiff and class.

Both sides appeal from this judgment. The Appellant,

General, bases its appeal on a number of issues. It argues

that:

(a) The trial court erred in certifying the class;

(b) The trial court did not have jurisdiction over

the discriminatory hiring claim since the EEOC

charge related solely to a discriminatory promotion

policy claim;

plaintiff below had been discriminated against with

respect to promotion ;

5 The court based its burden of proof ruling on the fact that

General’s hiring policies exacerbated its discriminatory policies.

(d) The trial court erred in finding that the de-

fendant below had discriminated against the class

with respect to hiring;

(e) The trial court erred in admitting reports

from the General Services Administration (GSA) ;

(f) The trial court erred in making back pay

awards without sufficient evidence that job openings

existed for which the class members were qualified;

(g) The trial court erred in finding the applica-

tion procedure unreasonable;

(h) The trial court awarded too much in back

pay;

(i) The trial court awarded too much in attor-

ney’s fees.

The appellee, Falcon, argues that:

(a) The trial court erred in limiting the class to

those employed in the Irving division;

(b) The trial court awarded too little in back pay.

We shall examine each of these issues in the approximate

order they were raised at trial.

I. Class Certification

The appellant argues that under Rule 28, the trial

court erred in certifying the class at all. On his cross-

appeal, Falcon claims that the only error involved in the

certification was the trial judge’s limiting of the class to

Mexican-Americans who are employed at or have applied

to the Irving division of General, rather than all of the

divisions. We shall examine each of those issues in turn.

The appellant bases its argument on three theories. It

says the claim of the class representative was not typical

of the claims of the class; that the class representative

could not fairly and adequately protect the interests of

the class, and that the questions of law and fact raised

by the claims of the class representative were not com-

mon to the questions of law and fact raised by the claims

of the class. General also argues that the failure of the

trial court to hold an evidentiary hearing on this matter

may, in itself, require a reversal of certification.

A. Failure to Hold a Hearing

General alleges that the failure to hold an evidentiary

hearing on the issue of certification requires reversal of

the certification, citing Satterwhite v. City of Greenville,

578 F.2d 987 (5th Cir. 1978) (en.bane), vac. and re-

manded, 445 U.S 940, 100 S.Ct. 1834, 63 L.Ed.2d 773

(1980). Falcon says, in opposition, that such a hearing

was not necessary.

We disagree with General’s contention that the failure

to hold such a hearing, in itself, requires a reversal of

certification. It is true that this Court has repeatedly

stressed the importance and value of such an evidentiary

hearing on the certification issue. Satterwhite v. City of

Greenville, 578 F.2d 987, 998 (5th Cir. 1978) (en banc),

vac. and remanded on other grounds, 445 U.S. 940, 100

S.Ct. 1334, 63 L.Ed.2d 773 (1980) ; King v. Gulf Oil Co.,

581 F.2d 1184, 1186-87 (5th Cir. 1978) ; Huff v. N.D. Cass

Co. of Alabama, 485 F.2d 710 (5th Cir. 1973). But

such a hearing is important only in the context of show-

ing whether or not a class should have been certified. If

later evidence shows the decision to certify to have been

a correct one, there was obviously no need to have held

such a hearing. King at 1186-87. To prevail solely on a

contention that a hearing was required, an appellant must

show that if a hearing had been held, it could have af-

fected his rights substantially. That can only occur in a

situation in which the district court made a decision to

deny certification without a hearing, since it is only in

that case that a party can show that there was a substan-

tial issue as to certification and that he was denied an

effective opportunity to litigate it. We therefore hold

that the mere fact that a class has been certified without

a hearing is not a ground for reversal of that decision.

Even when no hearing is held before certification is

granted, a party has an adequate opportunity later to

argue the substantive merits of the decision to certify.

We therefore turn to the merits of General’s arguments

concerning certification.

B. Appellant's Substantive Class Certification

Although the appellant argues that the class did not

meet three of the requirements of Rule 23(a)* most of

these claims are based on the appellant’s contention that

Falcon, who was complaining of discrimination with re-

spect to promotion, could not represent a class complain-

ing of discrimination with respect to hiring. General

maintains that according to East Texas Motor Freight

System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891,

52 L.Ed.2d 453 (1977), Falcon cannot represent both

hiring and promotional discriminatees because he has not

established a sufficient nexus between his claims of pro-

motional discrimination and the other class members’

claims of hiring discrimination. See also Scott v. Uni-

versity of Delaware, 601 F.2d 76 (8rd Cir.), cert. denied

444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979) ;

Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir.),

cert. denied 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186

(1979).

6 Rule 23(a) states:

Prerequisites to a Class Action. One or more members 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 im-

practicable, (2) there are questions 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 repre-

sentative parties will fairly and adequately protect the interests of

the class.

In contrast, Falcon argues that this Court has not in-

terpreted the nexus requirement of East Texas Motor

Freight as restrictively as other courts and that, there-

fore, this action was properly certified under this Court’s

standards. See Payne v. Travenol Laboratories, Inc., 565

F.2d 895 (5th Cir.), cert. denied 489 U.S. 835, 99 S.Ct.

118, §8 L.Ed.2d 131 (1978); Vuyanich v. Republic Na-

tional Bank of Dallas, 82 F.R.D. 420 (N.D.Tex.1979) ;

Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir.

1978) (en banc), vac. and remanded 445 U.S. 940, 100

S.Ct. 13834, 63 L.Ed.2d 773 (1980). Falcon’s position is

essentially that this Court still permits “across the board”

attacks on discrimination.

We agree. In Payne v. Travenol Laboratories, Inc.;

supra, this Court said:

Plaintiffs’ action is an “across the board” attack

on unequal employment practices alleged to have been

committed by Travenol pursuant to a policy of racial

discrimination. As parties who have allegedly been

aggrieved by some of these discriminatory practices,

plaintiffs have demonstrated a sufficient nexus to en-

able them to represent other class members suffering

from different practices motivated by the same poli-

cies. (Citations omitted)?

7 See also Satterwhite v. City of Greenville, 578 F.2d 987, 993-

994 n.8 (5th Cir. 1978) (en banc), vac. and remanded, 445 U.S.

940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980) in which this Court

said:

. Nor is Rodriguez or this opinion contrary to the policy

favoring “across the board” Title VII class actions. See Johnson V.

Georgia Highway Express [417 F.2d 1122 (5th Cir.) ], supra. It

is not necessary that the representative suffer discrimination in

the same way as other class members, but it is necessary that

she suffer from the discrimination in some respects.

As noted, Satterwhite was subsequently vacated and remanded

by the Supreme Court. In Satterwhite, a job bias claimant, an

10a

It is therefore apparent that this Court permits an em-

ployee complaining of one employment practice to repre-

sent another complaining of another practice, if the

plaintiff and the members of the class suffer from essen-

tially the same injury. In this case, all of the claims are

based on discrimination because of national origin. It is

consistent with the holding in Rodriguez and the policy of

Title VII to allow a plaintiff to represent a class suffer-

ing from a common discriminatory complaint. While

similarities of sex, race or national origin claims are not

dispositive in favor of finding that the prerequisites of

Rule 23 have been met, they are an extremely important

factor in the determination, that can outweigh the fact

that the members of the plaintiff class may be complaining

about somewhat different specific discriminatory practices.

See also Quigley v. Braniff Airways, Inc., 85 F.R.D. 74,

78-79 (N.D.Tex.1979) ; Cooper v. University of Texas at

Dallas, 482 F.Supp. 187, 192 (N.D.Tex.1979). In addi-

tion here, the plaintiff showed more than an alliance

based simply on the same type of discriminatory claim.

He also showed a similarity of interests based on job loca-

tion, job function and other considerations. Cf. Craw-

ford v. Western Electric Co., Inc., 614 F.2d 1300, 1304

(5th Cir. 1980).

Given our finding of a sufficient nexus between the

plaintiffs’ claims and those of the class, we find that the

applicant for city employment, had been denied the right to repre-

sent a class of present and future city employees because she was

not a member of the proposed class. The Supreme Court remanded

the case for reconsideration in the light of two recent cases, De-

posit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct.

1166, 68 L.Ed.2d 427 (1980) and U.S. Parole Commission v.

Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 68 L.Ed.2d 479 (1980),

which broadened the possible use of class actions when the named

plaintiff’s claim had become moot. Therefore, it seems that the

Supreme Court’s remand did nothing to question the rule in this

Court that “across the board” actions can still be brought.

lla

requirements of Rules 28 were satisfied.’ See note 6. We

therefore hold that the trial court acted correctly when

it certified Falcon’s claim on behalf of these other plain-

tiffs.°

C. Appellee’s Class Certification Claim

On cross-appeal, the appellee contends that the trial

court erred in refusing to extend the class to all Mexican-

American employees who were employed by or had applied

to any of General’s divisions, not just the one at Irving.

He contends that since he worked in all of the towns

in the Fort Worth, Texas area, and not only in the Irv-

ing division, he can properly represent the larger unit.

We find that th» district court acted within its discre-

tion in limiting the class to the Irving location, especially

®On the adequacy of representation issue, General also argues

that there was no evidence to show the qualifications of the

attorneys who represented the class. While it is true that the

requirement of adequate representation includes the competence of

the legal counsel of the representatives, Johnson v. Georgia High-

way Express, Inc., 417 F.2d 1122 (5th Cir. 1969), the competency

of counsel can be judicially noticed, as was apparently done in this

case. In any event, we do not overturn the trial court’s decision

on this matter, since it was not an abuse of discretion. Guerine v.

J&W Ins., Inc., 544 F.2d 868 (5th Cir. 1977) ; Boggs v. Alto Trailer

Sales, Inc., 511 F.2d 114 (5th Cir. 1975).

*For a similar analysis of Rodriguez and Satterwhite, see

Vuyanich v. Republic National Bank of Dallas, 82 F.R.D. 420,

432-33 (N.D. Tex. 1979).

With our holding we do not intimate any conflict with the logic

of Crawford v. Western Electric Co., Inc., 614 F.2d 1800, 1304

(5th Cir. 1980) where the court said that “(t]he fact that plain-

tiffs are members of the same race as the other employees and

rejected job applicants whom they seek to represent in a class

action is not enough in itself to require a finding under Rule 23

that their representation was adequate or that their claims were

typical of the class.” Such a fact by itself, of course, is not enough

to meet the requirements of Rule 23.

12a

since the various General divisions each conduct their own

hiring. In addition, management of such a large class

would be much more difficult. Cf. Hill v. American Air-

lines Inc., 479 F.2d 1057 (5th Cir. 1973).

Il. Jurisdiction to Hear the Claim

The appellant argues here that the trial court did not

have jurisdiction over the claim of hiring discrimination

because the EEOC charge referred only to discrimination

with respect to promotion. Relying on the opinions in

United Airlines, Inc. v. Evans, 481 U.S. 558, 97 S.Ct.

1885, 52 L.Ed.2d 571 (1977) and McArthur v. Southern

Airways, Inc., 569 F.2d 276 (5th Cir. 1978), General

maintains that this Court’s holding in Sanchez v. Stand-

ard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), that a

court could take jurisdiction of claims which are “reason-

ably” related to the EEOC charge, must be reexamined.

The Company also argues that the EEOC investigation

and determination concerning hiring were beyond its

jurisdiction.

In Sanchez, this Court said:

[T]he civil action is much more intimately re-

lated to the EEOC investigation than to the words of

the charge which originally triggered the investi-

gation. Within this statutory scheme, it is only

logical to limit the permissible scope of the civil

action to the scope of the EEOC investigation which

can reasonably be expected to grow out of the charge

of discrimination.

431 F.2d at 466. Thus in Sanchez, this Court endorsed a

liberal standard. for requirements relating to the re

lationship between the charge, the investigation, and a

civil suit.

The two cases cited by the appellant do not question this

standard. In United Airlines, Inc. v. Evans, 431 U.S. 553,

13a

97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court

held that a stewardess who had failed to complain of her

discriminatory discharge was barred from later contend-

ing that she was discriminated against after being rehired

based on the employer’s failure to include her prior em-

ployment in determining her seniority. The court held

that she was time-barred from complaining of the prior

illegal discharge because she had not complained at the

proper time. In McArthur v. Southern Airways, Inc., 569

F.2d 276 (5th Cir. 1978), this Court followed Evans by

dismissing as time-barred a cause of action somewhat

similar to the one in Evans. We find it difficult to see

the relevance of these decisions to the issue here.

The question we face is whether an EEOC complaint

of promotion discrimination is sufficiently related to a

hiring discrimination claim to allow the EEOC to in-

vestigate both and therefore authorize a suit based on

both charges. In Gamble v. Birmingham So. Railroad

Co., 514 F.2d 678 (5th Cir. 1975), this Court defined the

“reasonable expectation” test of Sanchez again as hing-

ing on whether the broader EEOC investigation might

be expected to grow from the original complaint. Jd. at

688.

Some courts have interpreted the standard of Sanchez

to mean that any practice which is an outgrowth of the

same basis of discrimination can be challenged in the

court suit. See Graniteville v. EEOC, 488 F.2d 32, 41-42

(4th Cir. 1971) (discrimination in promotion related to

discrimination in hiring) ; McBride v. Delta Airlines, 551

F.2d 113, 115 (6th Cir.), vacated on other grounds 434

U.S. 916, 98 S.Ct. 387, 54 L.Ed.2d 273 (1977) (indi-

vidual firing charge requires review of any racially dis-

criminatory practices because of large and complex cor-

porate structure). Cf. Arey v. Providence Hospital, 55

F.R.D. 62, 67 (D.D.C. 1972) (“[i]t seems clear that once

having received the complaint of discrimination against

l4a

complainant the EEOC would as a reasonable matter,

extend their investigations to all areas of employment in

which the complainant at one time or another had been

exposed, including, of course, the facts and circumstances

surrounding the initiation of her employment.”) This

Court in EEOC v. Huttig Sash & Door Co., 511 F.2d 453

(5th Cir. 1975) held that a charge of discrimination in

termination will support another claim of discrimination

in hiring. Other courts have held that the fact that

EEOC ended up investigating a broader charge than the

one alleged is a strong reason to allow the issueeto be

raised in a court suit. Henderson v. First National Bank

of Montgomery, 344 F.Supp. 1873 (M.D. Ala. 1972);

Cf. Oubichon v. North American Rockwell Corporation,

482 F.2d 569 (9th Cir. 1973); Note, Developments in

the Law—Employment Discrimination and Title VII of

the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109,

1216-18 (1971).

We find that the district court had jurisdiction over

both the hiring and promotion claims under the Sanchez

standard. This Court’s traditional application of a lib-

eral standard in this area is a reflection of our under-

standing about the realities of Title VII litigation. Often

the complainants are poor and uneducated. They are

unfamiliar with legal concepts and often do not compre-

hend the specific elements of their complaint. But they

understand the basic premise of the Act. They feel that

they have been discriminated against on the basis of race

or some other impermissible factor. To hold these indi-

viduals to a high standard of knowledge about the bases

of their charge would ill-serve the remedial purpose of

Title VII. In this case, it is sufficient that Falcon alleged

the type of discrimination (“national origin”), especially

since an investigation of promotional practices almost

inevitably leads to a study of hiring practices, and the

EEOC did investigate both areas. EEOC v. Huttig Sash

& Door Co., 511 F.2d (5th Cir. 1975).

15a

III. Promotion Claims

In this part of the appeal, General argues that Falcon

never proved he was qualified for the promotion he

sought. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (19738). General also

says that it articulated valid, nondiscriminatory reasons

for not promoting Falcon, namely that those persons who

were promoted were more qualified than Falcon, and that

Falcon failed to prove that those reasons were merely

pretexts for discrimination. See Board of Trustees Vv.

Sweeney, 489 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216

(1978).

In rebuttal, Falcon suggests that the Supreme Court’s

use of the word “articulate” in Sweeney, supra, was not

intended to cover subjective criteria, but requires “some-

thing rationally based.”

In “disparate treatment” cases, the plaintiff has the

burden of establishing a prima facie case. That can be

done by the plaintiff by showing

(i) That he belongs to a [protected] minority [un-

der the Act];

(ii) That he applied and was qualified for a job for

which the employer was seeking applicants;

(iii) That, despite his qualifications, he was rejected ;

and

(iv) That, after his rejection, the position remained

open and the employer continued to seek appli-

cants from persons of complainant’s qualifica-

tions.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Looking at these requirements, we find that clearly

Falcon belonged to a protected minority under the Act;

16a

that he applied for a job for which the employer was

seeking applicants; that he was rejected, and that the

employer hired others for the position. The only element

of the prima facie case which the appellant attacks here

is whether or not Falcon had the qualifications for the

position he was seeking.

According to General, Falcon was recommended for

promotion to a management position by two of his first

level supervisors. At General, once a supervisor recom-

mends an employee for a promotion to a management

position, that employee is considered for all management

positions for which he is considered qualified by reason

of prior experience. General says that Falcon was “not

considered the most qualified person for any of the open-

ings.” (Emphasis added.) That claim, however, even if

true, does not mean that Falcon was not considered quali-

fied. The fact that Falcon was recommended for promo-

tion to management lends additional support to his con-

tention that he was qualified for those positions. We

therefore uphold the trial court’s apparent finding that

he was qualified and therefore find he made a valid prima

facie case.

Falcon’s having made that prima facie showing, Gen-

eral has the obligation to “articulate some legitimate,

nondiscriminatory reason” for the action to dispel the

adverse inference from the prima facie showing. Mc-

Donnell Douglas at 802, 93 S.Ct. at 1824. As stated in

East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975), the

defendant must also prove that those hired or promoted

were better qualified than the plaintiff. See Burdine v.

Texas Dept. of Community Affairs, 608 F.2d 563, 567

(5th Cir. 1979), cert. granted U.S. ——, 100 S.Ct.

3009, 65 L.Ed.2d 1112 (1980).

In fact, General did put forth the explanation that

the people hired for the positions Falcon wanted were

17a

more qualified than he was.’® Through statistical evi-

dence, the Company also showed that Falcon had received

three promotions in seven years of employment with

General, an average of 0.43 promotions a year, while the

average white worker at General received only .20 pro-

motions per year. In addition, General said that Falcon

received his first promotion only one month after being

employed; the average white employee did not receive a

promotion until he or she had been employed 14.91

months.

However, the trial court found that the ratings given

Falcon and the others who had been promoted instead of

him were “very similar” (all were favorable). Falcon,

the trial court found, had no listed weaknesses except for

“underground cable work.” Since the trial court con-

cluded that General had discriminated against Falcon, it

must have reasoned that since Falcon had essentially the

same overall ratings as those whites who were promoted,

the Company’s explanation that the others were “more

qualified” was simply a pretext for discrimination and

10The Company also attempted to prove at trial through the

use of statistical evidence that Mexican-Americans, in general,

were not adversely affected by General’s promotion procedures.

The trial court agreed with this second contention.

As to the specific openings about which Falcon complains, the

Company says that one individual who was promoted to crew

foreman had special training in electronics, went to college, and

worked in the electronics field in the military. Another individual,

promoted to inspector, had been a foreman with a contractor, and

had performed essentially the same duties there, as he would in

the job to which he was promoted. A third individual, promoted

to crew foreman, the Company says, had held supervisory positions

in the military.

The Company says that in the opinion of the second level super-

visor, each of the men selected was more qualified than Falcon, who

they say had no prior experience in either electronics or the

communications industry and had performed unsatisfactorily in

supervisory roles.

18a

was not a legitimate reason for failing to promote him.”

Cf. Burdine v. Texas Dept. of Community Affairs, 608

F.2d 5638, 567, especially n. 8 (5th Cir. 1979), cert.

granted —— U.S. ——, 100 S.Ct. 3009, 65 L.Ed.2d 1112

(1980).

Our task here then is to decide if the trial court was

clearly erroneous when it concluded that Falcon was as

qualified as the other people who were promoted. We

conclude that the finding was not clearly erroneous.

As stated previously, General said that it felt Falcon

was not the most qualified applicant for any of the open-

ings. But there was credible evidence to the contrary.

The EEOC investigator who looked into the case, Robert

Ray, testified that he felt Falcon was not promoted be-

cause he was a Mexican-American. His notes made at

that time, indicated that several people who worked with

Falcon and with some of the others who were promoted,

felt Falcon was at least as qualified as those promoted,

and was not promoted because of his national origin. Ray

also prepared a chart comparing, as objectively as pos-

sible, Falcon’s qualifications and experience with that of

the other people promoted.’* What he found was that

11 The trial court also said that the criteria used to rate and to

promote were subjective. The trial court reached this decision

based on the company promotion procedure. According to the

trial court:

“Hourly workers who wish a promotion bid for the job. When a

vacancy occurs in a salaried management position, there is no

formal posting procedure for hourly employees to be made aware

of the vacancies. First line supervisors of hourly employees may

make recommendations for promotions. These recommendations go

to second line supervisors and the area personnel officer. . . .”

12 Working with the entire employee file provided by General

Telephone, Ray evaluated these employees’ qualifications by looking

at the date hired, previous experience, the last evaluation before

they were promoted out of the lineman position, the date they were

19a

Falcon was better qualified than one of the people pro-

moted above him, as qualified as another, and less quali-

fied than the third."* Similar findings by EEOC investi-

gators in other cases have been described as “highly pro-

bative” by this Court. Peters v. Jefferson Chemical

Company, 516 F.2d 447, 450 (5th Cir. 1975); Smith v.

Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972).

Despite testimony from others that they considered Fal-

con less qualified than those hired, the trial court could

certainly find that given the EEOC investigator’s and

Falcon’s testimony, Falcon was as qualified as the other

people promoted.

We also note that this Court has stated previously that

while qualifications are obviously an employer’s preroga-

tive, “the standards cannot be automatically applied to

freeze out” minorities. Rowe v. General Motors Corpo-

ration, 457 F.2d 348, 358 (5th Cir. 1972). In Rowe, this

Court recognized that “promotion/transfer procedures

which depend almost entirely upon the subjective evalu-

ation and favorable recommendation of the immediate

foreman are a ready mechanism for discrimination... .”

Id. at 359. While obviously not determinative in this case

since a variety of other factors were considered in the

promotion decision, we note that a principal element in

that decision were the recommendations of Falcon’s su-

promoted from lineman in charge, the time between the last evalu-

ation and the promotion, and the objective rating on their

evaluation.

‘8 Hoffman scored a 32, Hamrick a 31, and Raiey a 28. Falcon

scored a 31 also. See note 2.

14 On General’s behalf on this specific point, Jake Goldston, who

was Falcon’s second line superior, testified about several disciplinary

actions taken against Falcon, and said he considered the others

promoted to be more qualified than Falcon. Harvey Sumner, a

construction foreman who supervised Falcon, testified that he

once demoted Falcon because he was less efficient than other

employees.

20a

pervisors, all of whom were white. Given this Court’s

pronouncement in Rowe, the trial court could certainly

look at the Company’s explanations that Falcon was less

qualified with some skepticism. Cf. Fisher v. Proctor &

Gamble Mfg. Co., 618 F.2d 527, 546 (5th Cir. 1980).

We therefore find that the trial court did not act in-

correctly when it found that the Company’s explanation

that Falcon was less qualified than the others promoted

was not legitimate or, as the court has put is, “pre-

textual.”

IV. Hiring Claims

In this portion of the appeal, General argues that there

was insufficient evidence to support the trial court’s con-

clusions that General discriminated against the class

members with respect to hiring. General questions both

the factual sufficiency of the evidence, as well as the trial

court’s reliance on some statistics, as opposed to others.

In its Phase I order, the court focused on four sta-

tistical “facts:”

(1) 5.24% of the Dallas/Fort Worth labor force

was Mexican-American;

(2) 1.22% of General’s work force at Irving was

Mexican-American in 1972;

(3) Twenty people were hired in 1972, but none of

them was Mexican-American;

(4) Only 4% of those hired in 1973 were Mexican-

American.

General claims that the district court improperly relied

on the statistical disparity between the local labor force

and the work force at the Irving facility, rather than

relying on the plant hiring statistics for the years be-

tween 1972 and 1976. General contends that there is

statistical evidence showing that:

2la

(1) Mexican-Americans constituted 7.73% of the per-

sons hired at the Irving facility from July 1972-

July 1976, whereas only 5.24% of the local labor

market was Spanish-American;

(2) From 1973 through 1976, 71 Mexican-Americans

applied for jobs at the Irving facility and 13

were hired, an 18.3% percentage. During this

time, only 5.66% of the Caucasian applicants

were hired, although 81.5% of the local work

force was Caucausian, as were 86.5% of the ap-

plicants.

See note 4.

Proof in this sort of class action case is usually de-

pendent upon statistical comparisons. In International

Brotherhood of Teamsters v. United States, 431 US.

324, 97 8.Ct. 18438, 52 L.Ed.2d 936 (1977), the Supreme

Court found that a prima facie case of discrimination

could be found by showing great disparities in general

population/work force statistics..° In Hazelwood School

District v. United States, 483 U.S. 299, 97 S.Ct. 2736, 53

L.Ed.2d 768 (1977), the Supreme Court found that this

same showing of disparity, along with instances of in-

dividual discrimination, established a prima facie case.

However, there, the Court ruled that this prima facie

showing could be rebutted with favorable evidence com-

paring the qualified labor market with the defendant’s

hiring policies during the relevant period.

This Court recently said in United States v. City of

Alexandria, 614 F.2d 1358, 13864 (5th Cir. 1980):

To make out a prima facie case of pattern or

practice of discrimination in violation of Title VII,

In Teamsters, the plaintiff also presented many examples of

individual discrimination.

22a

all that a private or government plaintiff need show

initially is that there is a significant statistical dis-

parity between the racial, sexual, or ethnic balance

and composition of an employer’s work force and that

of the community from which the workers are hired.

... This is true because, “absent explanation, it is

ordinarily to be expected that nondiscriminatory hir-

ing practices will in time result in a work force more

or less representative of the racial and ethnic com-

position of the population in the community from

which employees are hired.” Teamsters, supra, 97

S.Ct. at 1856 n. 20.

Once this prima facie case has been established,

the employer may introduce evidence to attempt to

rebut the inference raised by the figures... .

(Citations omitted.)

We take this to mean that once the plaintiff has offered

some evidence that is probative of disparity that may be

statutorily significant, it is then the defendant’s burden

to come up with more specific statistical evidence to rebut

the plaintiff’s proof.

In this case, the trial court found that in 1972, the

Irving Division hired 20 Caucasians, but no Mexican-

Americans, and that in 1973, the total number of Cau-

casions hired at Irving was 155 or 76.7% and the number

of Mexican-Americans hired was eight or 4%. However,

the trial court made no findings about hiring in 1974 or

1975, even though both sides presented statistical evidence

at least through the period of July 30, 1975.**

16 The statistical evidence proffered by the plaintiffs for hiring

in the Irving Division showed:

23a

Evidentiy, the trial court relied on the plaintiff’s evi-

dence for its hiring findings concerning 1972 and the

defendant for its findings concerning 1973. See note 16.

Year White Black Mexican-American

1972 19 1 0

1973 59 6° 4

1974 26 6 6

1975 27 1 3

- 1976 8 0 0

139 14 13

(82.7%) (8.31%) (7.738% )

The evidence proffered by General, for hiring in the Irving Division

showed:

Spanish

Year White Black Speaking Other

1973 155 37 8 2

1974 53 6 9 0

1975

(thru

7/30) 4 9 3 0

212 52 20 2

(74.12%) (15.18%) (6.99%) (01%)

The plaintiff also introduced the following evidence comparing

the percentage of Mexican-Americans with the total work force

in that area:

Date % Mexican-Americans

12/70 1.67%

12/71 1.29%

12/72 1.22%

12/73 1.82%

7/74 3.57%

1/75 4.52%

6/76 4.50%

According to the appellant’s brief, the statistics in the exhibits

presented by the plaintiff and those presented by the defendant

vary because the information requested by the plaintiff to prepare

his statistical analysis pertained to fewer than all of the Mexican-

American applicants and jobs. That may account for some of the

difficulty in interpreting this statistical information.

24a

However, the trial court made no findings of fact con-

cerning 1974 or 1975. It appears that the trial court

must have found discrimination for those periods since

the class action notice approved by the court was ad-

dressed to “all Mexican-Americans who applied for work

at General Telephone Co. in Irving, Texas, in 1972, 1973,

1974, 1975, and through October 18, 1976.” 1" This con-

clusion is bolstered by the fact that some members of the

class who received relief applied for jobs in late 1975 or

early 1976.

It would clearly be inappropriate for us to rule on the

appellant’s claim concerning the use of these hiring

statistics, as opposed to applicant flow data, without

knowing how or why the trial court relied on the statis-

tical evidence it did and why it found hiring discrimin-

ation for the years 1974 and 1975. In Hazelwood, the

Supreme Court indicated that the determination of what

set of statistics are relevant can best be decided on a case-

by-case basis. 433 U.S. at 311-312. See Davis v. City of

Dallas, 483 F.Supp. 54, 60 (N.D. Tex. 1979). The eval-

uation of these statistics involves both a complex legal

and factual inquiry. See e.g., Cooper v. University of

Texas at Dallas, 482 F.Supp. 187 (N.D. Tex. 1979);

Davis v. City of Dallas, 483 F.Supp. 54 (N.D. Tex. 1979) ;

EEOC v. Radiator Speciality Co., 610 F.2d 178 (4th

Cir. 1979). We therefore remand this part of the case

17 The complete first part of the notice said:

ATTENTION: ALL MEXICAN-AMERICANS WHO APPLIED

FOR WORK AT GENERAL TELEPHONE CO. IN IRVING,

TEXAS IN 1972, 1973, 1974, 1975, and through October 18, 1976.

The following lawsuit is now pending in Judge Sarah T. Hughes’

Court in Dallas and your rights may be affected. Judge Hughes

has found that General Telephone Company of Irving, Texas, dis-

criminated against Mexican-Americans as a class from 1972 to

October 18, 1976 and you may be entitled to back wages or other

relief under certain conditions.

25a

to the district court for a more specific evaluation of both

the plaintiff’s and defendant’s statistics with specific find-

ings on the use of hiring data as opposed to applicant-

flow data, including the reasons why the trial court con-

cludes that the discrimination lasted past 1974.}*

V. Admission of General Services Administration

(GSA) Reports

In this portion of the appeal, we deal with appellant’s

objection to the admission of two letters from the GSA

to the appellant, that were obtained from General through

discovery. General complains that the letters were not

authenticated, that there was no evidence as to the basis

for the letters, and that the GSA is not authorized by

law to determine whether an employer has violated Title

VII.

The appellee claims the letters were admissible under

Fed.R.Evid. 803(8) which provides in part:

The following are not excluded by the hearsay

rule, even ities the declarant is available as a

witness:

(8) Public records and reports. Records, reports,

statements, or data compilations, in any form of pub-

lic offices or agencies, setting forth (A) the activities

of the office or agency, or (B) matters observed pur-

suant to duty imposed by law as to which matters

there was a duty to report, ... or (C) in civil

actions and proceedings . . ., factual findings re-

sulting from an investigation made pursuant to

authority granted by law, unless the sources of in-

18 Such an evaluation of the statistical evidence, in the light of

Hazelwood School District v. United States, 483 U.S. 299, 97 S.Ct.

2736, 53 L.Ed.2d 768 (1977) and subsequent cases will be especially

helpful because Hazelwood was decided after this part of the trial

was completed.

26a

formation or other circumstances indicate lack of

trustworthiness.

As to the authenticity point, it is clear that the letters

should have been authenticated under Fed.R.Evid. 901

and 902 which require authentication or identification as

a condition precedent to admissibility, except in specific

situations, none of which is present here. See Rule 902.

However, the defendant did not object at trial that these

documents were not authenticated, but objected only on

the grounds that the letters were hearsay and not rele-

vant. This Court has held for some time that “[e]xcept

in unusual circumstances, the ground of objection to evi-

dence must be specifically stated in order to preserve the

point for appeal; . . .” Carona v. Pioneer Life Insurance

Company, 357 F.2d 477, 480 (5th Cir. 1966); Colonial

Refrigerated Transportation, Inc. v. Mitchell, 403 F.2d

541, 552 (5th Cir. 1968) ; Morrow v. Greyhound Lines,

Inc., 541 F.2d 713 (8th Cir. 1976); see also F.R.C.P.

Rule 46; Rule 103(a) (1), Federal Rules of Evidence.

Since General did not make this specific objection, it can-

not raise the authentication issue on appeal.

Turning then to General’s arguments concerning rele-

vancy and hearsay, under Fed.R.Evid. 803(8) the letters

are admissible if they are made pursuant to duties de-

rived from authority granted by law. The letters were

prepared by the General Services Administration, accord-

ing to the appellant, as part of its contract compliance

review.’® While this authorization to investigate obvi-

19 Although it is not part of the record, we assume that this

contract compliance review was part of GSA’s former responsi-

bility to monitor nondiscrimination in employment by government

contractors and subcontractors. See Executive Order 11246, 30

F.R. 12319 (Sept. 24, 1965), as amended by Ex. Ord. No. 11375,

32 F.R. 14303 (Oct. 18, 1967); Ex. Ord. No. 11478, 34 F.R. 12985

(Aug. 8, 1969); Ex. Ord. No. 12086, 43 F.R. 46501 (Oct. 5, 1978).

It is our understanding that subsequent to this action, this respon-

sibility was transferred to the Department of Labor. See Executive

27a

ously does not parallel the EEOC’s authority under Title

VII, the letters were admissible under Rule 803(8) (c)

since the findings resulted from an investigation made

pursuant to authority granted by law. It was certainly

within the court’s discretion to find that the letters were

not untrustworthy. See Weinstein and Berger, Wein-

stein’s Evidence § 803(8) [03] at 200-208 (1979) .»

VI. The Application Procedure and the Fnding that

Openings Existed for Which the Class Members

were Qualified

In this portion of the appeal, the appellant urges that

the trial judge improperly failed to require the class

Order No. 12086, 43 F.R. 46501 (Oct. 5, 1978). Cf. St. Regis Paper

Co. v. Marshall, 591 F.2d 612 (10th Cir.), cert. denied, 444 U.S.

828, 100 S.Ct. 55, 62 L.Ed.2d 36 (1979).

20In Smith v. Universal Services, Inc., 454 F.2d 154, 157-58

(5th Cir. 1972), this Court ruled that an EEOC report in a Title

VII case was admissible under the Federal Business Records Act,

28 U.S.C. § 1732, since it was prepared in the regular course of the

Commission’s business and in accordance with express statutory

authority. That case was decided before the promulgation of the

Federal Rules of Evidence. In United States v. American Cy-

namid (Cyanamid] Co., 427 F.Supp. 859, 867 (S.D.N.Y. 1977),

a case decided after the Rules took effect, that Court held that the

business records exception of F.R. Evid. 803(6) which is very

similar to 28 U.S.C. § 1732 (see Weinstein and Berger, Weinstein’s

Evidence § 803(6) [02] at 148-151) was not applicable to govern-

ment records and reports. But see United States v. Orozco, 590

F.2d 789, 793 (9th Cir.), cert. denied 442 U.S. 920 [99 S.Ct. 2845,

61 L.Ed.2d 288] (1979) (Treasury Enforcement Communications

System (TECS) cards admissible under § 803(8)). The court says

“governmental functions could be included within the broad defi-

nition of ‘business’ in Rule 803(6)”). We do not address this

question of the relationship between Rules 803(6) and 8038(8)

since we have already decided that these letters are admissible

under Rule 803(8), but we certainly do not rule out the possibility

that they might also be admissible under the “business records”

exceptions as well.

28a

members to bear the burden of proving that they were

qualified for an available opening. As a second point,

General argues that the trial court improperly found that

General’s employment policy exacerbated the discrim-

ination.

As noted earlier, we have already decided to remand

the issue of the class action hiring claims to the district

court for further findings of fact. Without those further

findings of fact, it is impossible for us to rule on these

issues. Any questions surrounding the application pro-

cedures and policy will have to wait for answers until the

trial court has indicated more clearly why it found dis-

crimination and why it defined the class in the way it did.

VII. Back-Pay Awards

This issue concerns the sufficiency of evidence with

respect to the specific back pay awards. Again, because

of our previous decision to remand the hiring claims, we

cannot review this part of the trial court’s decision as to

that portion of the class. However, we can review the

claims as they pertain to Falcon, since we have upheld his

request for relief."

21 Specifically, General argued as to the whole class that there

was:

(a) no proof of job availability;

(b) insufficient evidence to support the job security award of $300

because the class members would have been in a union if they

had been hired;

would have earned at General, and

(d) insufficient consideration of evidence indicating that certain

employees either chose not to work or were not capable of

working.

As to Falcon, the only consideration that would seem to be appli-

cable would be (c).

29a

The appellees also appeal from the trial court’s decision

on this issue. Again, we will only review those specific

complaints that pertain to Falcon.”

The appellant claims that there was insufficient evi-

dence to show what salaries the employees would have

earned at General. See note 21. It is unclear how much

of this claim is directed at the award to Falcon. In its

Phase II opinion, the trial court calculated Falcon’s earn-

ings on the assumption that he would have been pro

moted to Field Inspector in 1972. See Part III. We

think there was clearly enough evidence of what Falcon

would have earned to support the trial court’s findings.

As to those contentions of the plaintiffs which are rele

vant only to Falcon, the trial court found that damages

should be granted only up to the end of the “Phase I”

trial, since it found that the defendant, by that date, had

*2 The appellees argued that the trial court:

(a) undervalued the job security award;

(b) failed to award shift differential pay and increases based on

promotion;

Phase II trial. (The court had ordered specific injunctive relief

in an attempt to end all discrimination at the end of Phase I) ;

(d) failed to award “front pay,” or to retain jurisdiction in order

to make periodically further back pay awards.

As to Falcon, the considerations that would seem to be applicable

would be (c) and (d).

*3 The trial court took into account the fact that Falcon refused

a promotion to Installer Repairman in 1970 and that in 1972, he

voluntarily stepped down from lineman-in-charge to lineman. The

trial court totalled his potential earnings from 10-8-72 to 10-20-76

as $47,336.72. It totalled his actual earnings if he had accepted

a position as an installer repairman, when offered, as $46,296.49.

It therefore awarded him damages of $1,040.33. Because of a mis-

take in calculations, Falcon actually should have been awarded

a dime less.

80a

remedied the discriminatory practices which gave rise to

the litigation. As to Falcon, we do not find that decision

to be clearly erroneous, intimating no judgment on the

other class claims. In such matters, the trial court has

broad discretion. Cf. Fitzgerald v. Sirloin Stockade, Inc.,

22 EPD { 30,724 (10th Cir. 1980).

VIII. Attorneys’ Fees

Since 2 portion of this suit is being remanded, we do

not review the attorneys’ fee claim at this time.

We therefore remand this case to the district court for

proceedings not inconsistent with this opinion.

AFFIRMED IN PART AND REMANDED IN PART.

8la

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action 3-75-0403-B

MARIANO S. FALCON

Vv.

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST

FINDINGS AND CONCLUSIONS

The above entitled and numbered cause was heard by

the Court. The Plaintiff, Mariano S. Falcon and the De-

fendant, General Telephone Company of the Southwest

with their attorneys were present. Evidence was pre-

sented and arguments heard. The Court after considering

the evidence and exhibits, the pretrial briefs, the pro-

posed Findings and Conclusions and other papers filed in

connection therewith, finds and concludes as follows:

Findings of Fact as to Falcon

1. Plaintiff, a Mexican-American, was hired by De-

fendant on July 7, 1969, pursuant to a program devised

to employ hard core unemployed minorities. Plaintiff

finished only 6 grades of formal schooling and worked as

a migrant worker before coming to Dallas. He trained

himself and worked as a welder for several years before

going with Defendant. Prior to his schooling with the

Defendant, he was not trained in the communications

area.

32a

2. Defendant is a public utilities company and pro-

vides telephone service in a four state area, including the

States of Texas, New Mexico, Oklahoma and Arkansas.

The headquarters of the General Telephone Company of

the Southwest is San Angelo, Texas. Plaintiff worked in

the division office located in Irving, Dallas County, Texas.

At the time that Plaintiff began to work for the De-

fendant, the Irving Division included Irving, Carrollton,

Grapevine, Azle, Keller and Lewisville, Texas. Subse-

quenty, the Irving Division was restructured to include

only Irving, Texas.

38. The Irving facility today employs approximately

526 employees, of which approximately 66 are manage-

ment or salaried employees, the others being hourly paid

employees. Of the 66 management or salaried employees

only one is a Mexican-American.

4. There is no evidence that General Telephone dis-

criminated against Falcon in hiring.

5. Upon completing his training course provided by

the Defendant in construction fundamentals, the Plaintiff

was employed by the Defendant in the position of Ground

Worker. After approximately 30 days, the Plaintiff

was promoted to Line Worker, and subsequently Line

Worker-In-Charge by the end of his first year. He re-

ceived no further promotion prior to the time his com-

plaint was filed on October 17, 1972.

6. Plaintiff attended various schools while employed

by the Defendant company including Construction Funda-

mentals and Buried Cables Placing before his complaint

was filed. The Plaintiff successfully completed all of the

courses. |

7. All hourly employees, including Falcon, are advised

at the time they are hired by General Telephone on the

methods for getting transfers and promotions among

hourly paid jobs. These methods are also contained in

33a

General Telephone’s contract with the Communications

Workers of America, the union which represents its

hourly paid employees. Hourly paid job openings are

posted at numerous locations within the Irving facility.

Employees are selected for such positions on the basis of

seniority with the company and previous experience and

training.

8. Hourly workers who wish a promotion to a higher

hourly position bid for the job. When a vacancy occurs

in a salaried management position, there is no formal

posting procedure for hourly employees to be made aware

of the vacancies. First Line supervisors of hourly em-

ployees may make recommendations for promotions. These

recommendations go to Second Line supervisors and the

area personnel officer. Falcon indicated his desire for

promotion to management once before filing his charge

and was recommended by his supervisor. Hourly work-

ers are rated from time to time by their supervisors. All

supervisors who rated these employees and recommended

them for promotion as well as the Second Line super-

visors and area personnel officer who selected employees

for management were Caucasians. The criteria used to

rate and to promote are subjective and are not based on

objective criteria.

9. On October 17, 1972, Falcon, on behalf of himself

and a class of Mexican-Americans, filed a charge with the

Equal Employment Opportunity Commission against Gen-

eral Telephone alleging discrimination in hiring and pro-

motion because of national origin.

10. Prior to October 16, 1972, Falcon had received two

promotions. At that time he was a Lineman in Charge;

Jerry Hoffman, hired January 20, 1970, was Construction

Foreman, having received 4 promotions; Randall Raley,

hired July 27, 1970, was a Cable Splicer with 3 promo-

tions; Jerry Eden, hired January 24, 1972, as Line

Worker, was then Crew Foreman after 3 promotions;

34a

William Hamrick, hired August 19, 1969, as Line Worker,

was Construction Foreman after 2 promotions. Plaintiff

had more seniority than any of these at the time they

were promoted over him.

11. Raley had had 2 years previous experience as a

telephone Installer Lineman, Jerry Eden five and a half

years experience with Outside Plant, and William Ham-

rick 3 years as Line Foreman and Splicer. Ratings given

Falcon, Hoffman, Raley, Eden and Hamrick during their

service with the Company were very similar. All were

favorable. There were some with weaknesses such as

“frequently impresses people unfavorable, needs to make

better use of time’, some with strengths such as “above

average work, impresses people favorably.” Falcon had

no listed weaknesses except “underground cable work.”

Everything else was favorable.

12. The EEOC made a finding and determination on

January 29, 1974, which held that the timeliness and all

other requirements of Title VII had been met by Falcon

and that General Telephone was an employer under the

definition of the Act.

13. Falcon received a Notice of Right to Sue letter

dated January 21, 1975, and initiated this action in the

United States District Court for the Northern District of

Texas on April 3, 1975.

Conclusions of Law as to Falcon

1. The Court has jurisdiction of this cause of action

under 42 U.S.C. § 2000e et seg. and 42 U.S.C. § 1981.

2. General Telephone did not discriminate against Fal-

con in connection with his hiring.

3. General Telephone did discriminate against Falcon

in its promotion practices.

35a

4. Falcon is entitled to recover compensation for being

discriminated against by General Telephone in its promo-

tion practices.

5. Falcon is entitled to recover attorneys fees for his

attorney.

Findings of Facts as to Class

1. Plaintiff, Mariano S. Falcon, is a Mexican-American

who works for Defendant General Telephone in Irving,

Dallas County, Texas. Falcon was hired by Defendant

on July 7, 1969, under the program known as Operation

Attainment, and subsequently commenced to work as a

Ground Worker, which is*in the lowest pay group in

Defendant’s Irving facility. Plaintiff was employed in the

Irving Division. Falcon presently holds the position of

Cable Splicer, which is in the highest pay group of hourly

paid positions in General Telephone’s Irving Division.

2. Defendant is a public utility corporation, a wholly

owned subsidiary of General Telephone and Electronics,

and provides telephone service in the States of Texas,

New Mexico, Oklahoma and Arkansas. Defendant’s head-

quarters is in San Angelo, Texas. It has various area

and division offices which serve the above referenced

states. In 1969, when Falcon commenced to work for

General Telephone in the Irving Division, the Irving Di-

vision consisted of Defendant’s facilities in the cities of

Irving, Keller, Grapevine, Lewisville, Carrollton and Azle,

Texas. In 1971, the Irving Division was divided and

presently consists of facilities located in Irving, Dallas

County, Texas. It employs approximately 526 employees,

of whom approximately 66 are management or salaried

employees and the others are hourly paid employees.

There is only one Mexican-American in management or

salaried positions in the Irving facility.

3. Plaintiff instituted this action on April 3, 1975, in-

dividually and as a representative of the class pursuant

36a

to Rule 23 (b) (2) of the Federal Rules of Civil Proce-

dure. Thereafter the Court ordered the case to proceed

as a class action and the Plaintiff represent the class com-

posed of Mexican-Americans now employed and those who

have applied for employment.

4, The percentage of Mexican-Americans in the Dal-

las-Fort Worth labor force is 5.24% and of Caucasians

in 81.5%. Px 21.

5. The percentage of Mexican-Americans employed at

the Irving facility in 1972 was 1.22%. Px 16.

6. In 1972, the total number of Caucasians hired at the

Irving facility was 20. No Mexican-Americans were

hired. Px 17.

7. In 1973, the total number of Caucasians hired at the

Irving facility was 155 or 76.7%, the number of Mexican-

Americans was 8 or 4%. Dx 8.

8. All hourly employees, including Plaintiff, are ad-

vised at the time they are hired by Defendant on the

methods for getting transfers and promotions. These

methods are also contained in Defendant’s contract with

the Communications Workers of America, the union

which represents Defendant’s hourly paid employees, in-

cluding Plaintiff. Hourly paid job openings are posted at

numerous locations within the Irving facility whereby

employees are advised of job openings and may indicate

their interest in each such opening by signing the posting.

Employees are selected for such positions on the basis of

seniority with the company and previous experience and

training.

9. The average time before a Caucasian received his

first promotion at the Irving facility is 14.91 months. The

average time before a Mexican-American received his

first promotion is 8.28 months.

37a

10. The promotion rate for Caucasians at the Irving

facility is 0.20 promotions per year or one promotion

every 5 years. The promotion rate for Mexican-Ameri-

cans is 0.23 promotions per year or one promotion every

4.35 years. Dx 6.

11. General Telephone has an affirmative action plan

whereby it has committed to employ all persons in all jobs

without consideration to race, color, creed, religion or

sex. Each of Defendant’s facilities has such a plan, in-

cluding the facility in Irving, Texas. Defendant has had

such a plan since 1972. Prior to that time, Defendant

had affirmative action policies, but no formal plan. The

affirmative action plan for each of Defendant’s divisions

is distributed to the Division Manager and his immedi-

ate staff.

12. General Telephone’s affirmative action program

needs upgrading in respect to recruiting, training, staff

meetings and promotions.

Conclusions of Law as to Class

1. Plaintiff, Falcon, fairly and adequately represents

Mexican-Americans now employed and those who have

applied for employment at the Irving facility of General

Telephone.

2. General Telephone discriminated against Mexican-

Americans at its Irving facility in its hiring practices.

3. General Telephone has not discriminated against

Mexican-Americans at its Irving facility in its promotion

practices.

4. The members of the class of Mexican-Americans

who applied for work at the Irving facility and were not

hired are entitled to be compensated, to be determined

at a later hearing.

88a

5. Falcon and the class he represents are entitled to

reasonable attorney’s fees to be determined at a later

hearing.

6. In order to accelerate its affirmative action plan,

General Telephone is ordered to taken the folowing steps

to more actively recruit and promote Mexican-American

at its Irving facility:

(a) General Telephone will recruit Mexican-

American employees through the use of Spanish

language newspapers and through the use of em-

ployment agencies that specialize in the placement

of Mexican-Americans, as well as other minorities.

It will recruit at schools with a high Mexican-

American enrollment. General Telephone will en-

courage in writing all Mexican-American employees

in the Irving cacility to recruit their friends for em-

ployment with General Telephone.

(b) In order to make more Mexican-Americans

available for openings in management jobs, each

Mexican-American employee, on his or her own in-

itiative, may submit name and qualifications to his

or her immediate supervisor for consideration for any

managment job which the employees specifies. The

immediate supervisor must review the qualifications

of each such employee and submit the names, quali-

fications and jobs requested to the area personnel

office. An area personnel officer must respond to each

such employee within a reasonable time and advise

him or her of any weaknes in his or her qualifications

that might hamper his or her being promoted into a

requested management job. If there are no such

weaknesses in an employee’s qualifications, he or she

will be considered for each opening thereafter occur-

ring in each position that the employee listed for

which he or she is qualified. Each time a qualified

39a

Mexican-American employee is not selected for an

opening, the area personnel office must so notify the

employee and explain why he or she was not selected.

If an employee’s qualifications are weak, an area

personnel officer will advise each such employee of

his or her weakness or weaknesses and of suggested

training that should improve those weak areas. After

each such employee has improved those areas in

which he or she was weak, the employee may then re-

submit his or her name, qualifications and jobs re-

quested to the area personnel office.

training for higher level jobs for Mexican-Americans

by providing college tuition aid and correspondence

course aid for Mexican-American employees who ap-

ply for such aid. The aid provided will be a refund

of 75% for all tuition, registration fees and required

books for all courses completed with a grade of C,

satisfactory, or an equivalent score, and a refund of

100% for all tuition, registration fees and required

books for all courses completed with a grade of A

or B, or an equivalent, all such aid being subject

to withholding tax. The maximum aid available for

any one calendar year is $500 and is based on the

following terms:

(1) The employee must be a full time em-

ployee who has been employed by General Tele-

phone for at least six months.

(2) The school or course must be accredited

by the appropriate association or council, or ap-

proved by General Telephone.

(3) The employee must have a current per-

formance rating of good, very good or ex-

cellent.

40a

(4) The desired course of study must be on a

subject which is a direct technical skill or knowl-

edge requisite of the employee’s present job or

a job to which he or she aspires and has a rea-

sonable chance of attaining.

(5) School attendance must be on an em-

ployee’s own time; however, for a course es-

sential to an employee’s development which is

available only during working hours, a special

work assignment schedule may be made if the

requirements of the job permit. In such cases,

hourly paid employees will be paid only for the

hours worked, and salaried employees will be

expected to work the normal number of hours in

the pay period.

(6) Only courses which are started and com-

pleted while the applicant is employed by Gen-

eral Telephone will be subject to eligibility for

tuition aid.

(7) All courses and schools must be approved

prior to enrollment to warrant tuition aid.

(8) Any time an employee is turned down

for tuition aid, or a course or school is not ap-

proved, a written explanation from an area

personnel officer must be transmitted to such

employee.

(d) In addition to the tuition aid program and in

addition to the training already provided by General

Telephone, Defendant will provide certain home

study courses for Mexican-American employees to

be completed on the employee’s own time. All such

courses must be on a subject which is a direct tech-

nical skill or knowledge requisite of the employee’s

present job or a job to which he or she aspires and

has a reasonable chance of attaining.

Ala

(e) The manager of the Irving facility will hold

monthly staff meetings, which shall be attended by

all staff members working in the Irving facility,

regardless of their reporting lines, at which time

min ‘ity awareness and affirmative action will be

one of the topics discussed. All staff members in the

Irving facility, regardless of their reporting lines,

will have quarterly meetings with their second level

management employees at which time minority

awareness and affirmative action will be one of the

topics discussed. All second level management em-

ployees working in the Irving facility, regardless of

their reporting lines, will have quarterly meetings

with their first level management employees at which

time minority awareness and affirmative action will

be one of the topics discussed. At all of these meet-

ings the goals for the employment of Mexican-

Americans at all job levels and the statistics con-

cerning the attainment of those goals will be re-

viewed.

(f) The manager of the Irving facility will insure

that all management level employees working in the

Irving facility are informed of the ‘act that their

future advancement with General Teiephone will de-

pend in part on their attainment of their affirmative

action goals and their treatment of Mexican-Ameri-

can employees.

(g) General Telephone will make a good faith ef-

fort to fill its openings in management level positions

in its Irving facility with qualified Mexican-Ameri-

cans until at least 5.24% of its management em-

ployee in the Irving facility are Mexican-Americans;

and Defendant will make a good faith effort to main-

tain a minimum of 5.24% Mexican-Americans in

management positions in the Irving facility at all

times.

42a

(h) General Telephone will advise in writing all

Mexican-American employees in its Irving facility of

the terms of paragraphs (b), (c) and (d) of this

order.

(i) The Court shall be provided with copies of the

notices required by paragraphs (a) and (h) of this

order. The Court shall also be provided with all

copies of General Telephone’s EEO-1 reports which

, cover employees who work in the Irving facility.

(j) This order shall remain in effect until the

percent of Mexican-Americans employed by General

Telephone in its Irving facility is at least 5.24% and

the percent of Mexican Americans employed in man-

agement level jobs at Defendant’s Irving facility is

at least 5.24% and until both such levels have been

maintained for a continuous six months’ period, at

which time this order will automatically expire. The

Court and Plaintiff’s attorney must be provided with

an affidavit from Defendant that the percentage

levels for the required period of time have been

achieved.

7. Any finding of fact deemed a conclusion of law is

so adopted. Any conclusion of law deemed a finding of

fact is so adopted.

p Signed this 22nd day of March, 1977.

/8/ Sarah T. Hughes

United States District Judge

43a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action 3-75-0403-B

MARIANO §S. FALCON

Vv.

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST

JUDGMENT

On this the 22nd day of March, 1977, the Court enters

judgment in the above entitled and numbered cause

based on its Findings and Conclusions this day filed.

It is ORDERED, ADJUDGED and DECREED

1, Defendant, General Telephone Company of the

Southwest is ordered to pay Mariano S. Falcon compen-

sation for discrimination as may hereafter be found by

this Court.

2. Defendant, General Telephone Company of the

Southwest is ordered to pay the class, represented by

Mariano S. Falcon, compensation for discrimination, as

may hereafter be found by this Court.

3. Defendant, General Telephone Company of the

Southwest is ordered to pay the attorney for Falcon and

the class he represents, an attorney’s fee as may here-

after be determined by this Court.

44a

4. Defendant, General Telephone Company of the

Southwest, is directed within thirty (30) days to prepare

and file an amended affirmative action program con-

taining the elements contained in the Court’s Conclusions

of Law pertaining to the class.

Costs against Defendant.

/s/ Sarah T. Hughes

United States District Judge

45a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action No. CA-3-75-0403-B

MARIANO S. FALCON

Vs.

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST

PRE-TRIAL ORDER

The Court, at a Pre-Trial conference held on October

10, 1975, entered the following Pre-Trial Orders:

The case is to proceed as a class action and the Plain-

tiff is to represent the class. The class is to be made up

of those employees who are employed and employees who

have applied for employment in the Irving Division of

the Defendant company, and no other division.

II.

Defendant is to deliver to Plaintiff’s counsel the affirm-

ative action plans that Defendant company has in effect,

or has had in effect.

46a

III.

Plaintiff and Defendant are to hold further negotia-

tions to see if there is a possibility of granting individ-

ual relief to the Plaintiff, MARIANO S. FALCON.

IV.

The case is set for trial on March 15, 1976, at 9:30

o’clock A.M.

ENTERED on the 2nd day of February, 1976.

/s/ Sarah T. Hughes

Judge

Page Solo. PRE-TRIAL ORDER

47a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action 3-75-0403-B

MARIANO S. FALCON

vs.

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST

ORDER

On this day came before the Court for consideration

the Motion to Compel filed by the Plaintiff and the Mo

tion to Reconsider Certification of a Class filed by the

Defendant in the above styled and numbered cause.

Upon consideration of those Motions, the briefs and

arguments of counsel, and a review of the pleadings in

this cause, the Court is of the opinion that the Motion to

Compel should be granted and the Motion to Reconsider

should be denied.

IT IS THEREFORE ORDERED, ADJUDGED, AND

DECREED that the Defendant shall supply the Answers

to Plaintiff’s Interrogatories as far back as Defendant’s

records go, and for the dates on which the Defendant has

records ;

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that the Motion to Reconsider is DENIED,

48a

and this action shall proceed as a class action; however,

Defendant may at any time raise the issue of this pro-

visionally-certified class during or after the presentation

of the class claims and evidence at trial;

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that this cause shall be reset for April 19,

1976 for trial.

SIGNED AND ENTERED this eleventh day of March,

1976;

/s/ Sarah T. Hughes

49a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action 3-75-0403-B

MARIANO §S., FALCON,

Plaintiff

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST,

Defendant

ORDER

On this the 31st day of October, 1978, came before the

Court Defendant’s First Amended Motion to Alter or

Amend the Final Judgment or in the Alternative Motion

for New Trial and the Court finds that such motion

should be DENIED.

It is therefore ORDERED, ADJUDGED AND DE-

CREED that Defendant’s First Amended Motion to Alter

or Amend the Final Judgment or in the Alternative Mo-

tion for New Trial in the above styled and numbered

cause be and the same is hereby DENIED.

Signed this the 31st day of October, 1978.

/s/ Sarah T. Hughes

United States District Judge

50a

APPENDIX G

UNITED STATES DISTRICT COURT

N. D. TEXAS

DALLAS DIVISION

No. CA 3-75-0403-B

MARIANO S. FALCON

Vv.

GENERAL TELEPHONE COMPANY

Oct. 20, 1978

ORDER

HUGHES, District Judge.

The plaintiff, Mariano S. Falcon, a Mexican-American,

was hired by General Telephone on July 7, 1969. He

brought this suit against General Telephone for himself

and Mexican-Americans similarly situated on April 3,

1975, alleging discrimination in hiring and promotion.

Judgment was rendered on March 22, 1977, the Court

finding that Falcon was not discriminated against in

hiring, but in promotions the General Telephone discrimi-

nated. As to the class, however, General Telephone dis-

criminated in hiring but not as to promotion.

In fashioning the relief in the instant case, the Court

has, insofar as possible, made each plaintiff whole for the

damage which each named plaintiff suffered. The relief

5la

granted includes awards for backpay, overtime pay,

where evidence of overtime work performed was pre-

sented, loss of job security, and six (6) percent interest

compounded annually from the end of “phase I” of the

trial to date of this judgment.

The Plaintiff prays and the Court denies monetary

relief for shift differential pay, potential promotions, and

“individual initiative’ on the grounds that such an

award would be too speculative. Although the Court is

cognizant of the difficulty in ascertaining to an exacti-

tude, damages in back pay awards, the Court has fash-

ioned the relief in a manner which avoids the “quagmire

of hypothetical judgments” noted in Pettway v. American

Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974).

The Court further finds that damages should be

granted up to the end of “phase I” of the trial. This

determination is grounded upon the finding that the De

fendant, by this date, had remedied the discriminatory

practices which gave rise to the instant litigation. Such

a cut-off date, the Court finds, is in keeping with the

principles enunciated in James v. Stockham Valves and

Fittings Co., 559 F.2d 310, 358 (5th Cir. 1977). Although

in James, supra, the Fifth Circuit examined the applica-

bility of “front pay” awards in Title VII cases, the

Court here finds that damages, calculated to the end of

“phase I” of the trial, plus interest, is analogous to plac-

ing the discriminatee in his “rightful place.”

In a Title VII trial it is the complainant who must

carry the initial burden of establishing a prima facie

case of discrimination. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 688

(1973). This burden has been met by each named plain-

tiff. The burden then shifts to the prospective employer

to persuade the Court that the failure to hire the indi-

vidual was based upon non-discriminatory grounds. Id.

52a

The Court finds from the evidence presented that the

defendant’s method of accepting and acting upon appli-

cations for employment while not in itself discriminatory,

exacerbated the extant discriminatory practices of the

Defendant.

Unrebutted evidence was presented that applicants

seeking employment were never told what jobs were

available at the time of their application. This practice

led many of the plaintiffs to apply for “anything” rather

than select a possible second position. Similarly, absent

information of available positions, the applicants had no

idea what skills the defendant deemed essential for em-

ployment. Although the defendant had a policy of keep-

ing applications “active” for a 90 day period, this infor-

mation was never communicated to these minority appli-

cants at the time they tendered their applications. Thus,

applicants who believed they would be considered for a

job whenever an opening developed, learned at trial that

the defendant had placed their application in an inactive

file 90 days after its submission.

Because the defendant failed to give plaintiffs notice

of the types of jobs available, failed to communicate to

these applicants what qualifications were necessary, and

failed to inform any plaintiff that his application would

be “retired” after 90 days, the Court finds that under

the facts of this case it is the defendant and not the

plaintiff who must carry the burden of proof on the

issue of job availability.

The Court further finds from the evidence that the

defendant, when it offered any proof, offered proof of job

availability only for the 90 day period subsequent to the

applicant’s tendering of his application.

The Court finds that the information described above

was peculiarly within the knowledge of the defendant

and though requested by plaintiff’s counsel was never

provided the opposing party. Thus, as Mr. Justice Powell

53a

noted in McDonneli Douglas, supra, the “prima facie

proof required ... is not necessarily applicable .. . to

differing factual situations.” Jd. at 802 n.13, 93 S.Ct.

at 1824. The Court finds the instant case to be one such

“differing factual situation” warranting a shifting of the

burden of proof on the issue of job availability. Thus,

when the defendant has failed to bring forth evidence of

job nonavailability after the 90 day period, the Court

has awarded damages as if a job was available on the

91st day.

Findings of Fact

CASTILLO, JOSE R.

Mr. Castillo, thirty-four years old, applied for a Field

Inspector’s position at General Telephone on July 16,

1973. The Court finds, by the evidence presented, that

no field inspector’s position was available during the

three months in which Mr. Castillo’s application was

“active.” Because there is no evidence that a Field In-

spector’s position was not available after this three month

period, the Court has determined that back wages should

be granted from the first day after the three month

period to the end of “phase I” of the trial. Actual Earn-

ings have also been calculated on the basis of these

dates. Plaintiff’s rate of pay is based upon information

supplied by both Plaintiff and Defendant. Where the

parties disagreed, the Court has averaged their data to

arrive at a satisfactory rate of pay.

CERDA, MARIA

Mrs. Cerda applied for a clerk’s position or any posi-

tion at General Telephone on August 11, 1974. Although,

by the evidence presented, General Telephone hired three

clerks during the three month period in which Mrs.

Cerda’s application was “active”, the Court finds that

the people hired were more qualified for the clerk’s posi-

tion than Mrs. Cerda who was unable to type and would

54a

begin typing lessons in September, 1974. Because there

is no evidence that a clerk’s position or any other posi-

tion was not available after Mrs. Cerda’s “active” period,

the Court has determined that back wages should be

granted from the first day after the three month period

to the end of “Phase I” of the trial. Plaintiff’s rate of

pay was based upon data presented in General Tele-

phone’s collective bargaining agreement dated June 16,

1974, Appendix B-4. This is the pay structure for an

entry level clerk in the Irving facility.

ESQUIVEL, PEDRO JUAN

Mr. Esquivel applied for an electronic technician’s

position or any position at General Telephone on October

6, 1975. The defendant put forth evidence that during

the “active” period of Mr. Esquivel’s application one

frameman’s position became available. This position was

filed by Milton Johnson, an ex-employee of General Tele-

phone’s Irving facility. The Court finds that Mr. John-

son was better qualified than Mr. Esquivel for the posi-

tion of frameman. There is little or no evidence how-

ever, that a position was or was not available after the

application of Mr. Esquivel was no longer “active”, see

defense exhibit 53, and therefore the Court has granted

damages from the first day after the three month period

until the end of “phase I” of the trial. The parties have

disagreed on the proper rate of pay for Mr. Esquivel.

Defendant relies on data presented in Appendix E-3 of

the 1974 Collective Bargaining Agreement reserved for

Frameworkers and Helpers (entry level position). See

Appendix E-18. Plaintiff has classified Mr. Esquivel in the

highest “Service & Engineering-Construction Workers”

category. See Appendix E. The Court has resolved this

controversy by placing Ms. Esquivel in Group III, one

step above entry level for his entire operative period.

See Appendix E-2.

55a

FLORES, ARMILDA

Ms. Armilda Flores, age twenty-three, applied for a

general clerk’s position or a position at the “repairment”

(sic) department of General Telephone on June 26, 1974.

Evidence was presented that the defendant hired a num-

ber of people during the “active” period of Ms. Flores

application. See defense exhibit 19. All applicants, the

Court finds, were better qualified than Ms. Flores except

one. As for applicant Barbara Toliver, See defense ex-

hibit 19 (third applicant at pp. 1-2) the defense presented

oral testimony that Toliver had “shown a desire to learn.”

The Court finds this evidence insufficient to deny Ms.

Flores a position. The Court also finds defendant’s char-

acterization of Ms. Toliver equally applicable to Ms.

Flores. The Court has therefore calculated Plaintiff’s

damages from the date of application through the end of

“phase I” of the trial. Defendant also argues that plain-

tiff has overstated Ms. Flores potential earnings at the

Irving facility by opting for a rate of pay higher than

she deserves. The Court has placed Ms. Flores in Ap-

pendix B-4, the entry level for clerks at the Irving

facility.

GARCIA, FLORIA

Ms. Garcia applied for either an operator’s or clerk

typist’s position at General Telephone on October 15,

1974. At the time of her application, Ms. Garcia could

type fifty words per minute. Although defendant put

forth evidence that no full-time positions were available

from October 1974 to May 1975, plaintiff countered by

showing that some individuals were hired, including cer-

tain part-time positions. The Court has therefore cal-

culaved plaintiff’s damages from three months after her

date of application through “phase I” of the trial. Evi-

dence was presented, however, that Ms. Garcia worked

only part-time for some four years after her application

to defendant. This decision was her own choice. The

56a

Court has therefore granted plaintiff only part-time em-

ployee’s wages for the entire operative period. Part-

time wages are calculated on the basis of twenty hours

per week. This determination appears to parallel Ms.

Garcia’s actual work record during this same period.

GARZA, DIANA

Ms. Garza applied for an office clerk’s position, a

teller’s position or a service representative’s position at

General Telephone on August 14, 1974. One person was

hired during the active period of plaintiff’s application.

There is no evidence whether this person was better

qualified than Ms. Garza but by her application it is clear

that Ms. Garza had no typing or shorthand skills at the

time of her application. The Court has computed Ms.

Garza’s damages from three months after her date of

application through “phase I” of the trial and has clas-

sified Ms. Garza as an entry level clerk. See Appendix

B-4,

GUZMAN, ANICETO DIAZ

Mr. Guzman applied for a Lineman’s position or “what-

ever was available” at General Telephone’s Irving facility

on September 16, 1974. He stated in his application that

he was not available until December of that year. The

Court has therefore calculated Mr. Guzman’s damages

from December 1, 1974 through “phase I” of the trial.

The parties have disagreed on the proper rate of pay

for Mr. Guzman had he been employed at defendant’s

Irving facility. The Court finds that a “Lineworker’s

position”. See Appendix E-2, is the appropriate classi-

fication and damages have been calculated accordingly.

LONGORIA, JUAN J.

Mr. Longoria applied for a Lineman’s position with

General Telephone on April 30, 1973. Although there is

no testimony whether a Lineman’s position became avail-

te ereieeeieierarnil

57a

able, the Court has determined under existing precedent

that the earliest date for which backpay can lawfully be

awarded is August 23, 1973. Thus, the Court has com-

puted Mr. Longoria’s damages from August 23, 1973,

through the end of “phase I” of the trial. Further, the

Court has classified Mr. Longoria as a Lineman in Group

III. See Appendix E-18,.

LOPEZ, ROBERT ALFRED

Mr. Lopez applied to General Telephone on July 24,

1974, for a Phone Installer’s position or “any position.”

In his application, Mr. Lopez expressed his willingness to

work nights, Saturdays, Sundays, and Holidays. Evi-

dence was presented that no Installer’s position opened

during the pendency of Mr. Lopez’ application. The

Court has therefore calculated Mr. Lopez’ damages from

three months after his application through “phase I” of

the trial.

Although Plaintiff classified Mr. Lopez as a Group II

employee throughout this period, See Plaintiff’s Exhibit

9, the Court finds that Mr. Lopez is more properly clas-

sified as a Group IV employee (entry level status) dur-

ing the first six months of his employment and then as

a Group I employee thereafter so as to account for the

necessary training required of new employees. Further,

an additional adjustment has been made to Mr. Lopez’

actual earnings to account for the use of an apartment

during twelve months of the operative period. On the

basis of testimony presented, the Court has valued the

use of the apartment at $125.00 per month. No adjust-

ment has been made for Mr. Lopez’ use of an automobile

on the grounds that such use does not amount to income

and was provided by the employer for the employer’s

business purposes.

LYSHOL, MARTHA

Ms. Lyshol applied for a cashier’s position, a clerk’s

position, an operator’s position or “any position” at

58a

General Telephone on October 8, 1975. Defendant put

forth evidence that plaintiff was not hired because she

did not possess the skills necessary to operate a “ten-key”

adding machine. This was so, the defendant argues, even

though Ms. Lyshol was able to type thirty-five words per

minute. Further, the defendant states that Ms. Lyshol

refused to work on Sundays therefore making her in-

eligible for certain other positions for which she was

qualified. On Ms. Lyshol’s application it is clear that she

was available on nights, Saturdays and holidays.

The Court finds the defendant’s grounds for denying

Ms. Lyshol employment to be illusory and has therefore

calculated her damages from the day after her applica-

tion. Further, the Court has classified Ms. Lyshol as an

entry level clerk under the 1974 Collective Bargaining

Agreement governing pay scales at General Telephone’s

Irving facility. See Appendix B-4.

MARES, STEVEN

Mr. Mares applied at General Telephone on July 23,

1976, for an Installer Repairmen’s position or a Frame-

man’s position. Plaintiff testified, and the Court finds

credible, that plaintiff, like all other plaintiffs here, was

never told of an “active” period nor that the defendant

“retired” an application after 90 days. Further, the de-

fendant put forth no evidence regarding the availability

(or nonavailability) of the position during the pendency

of Mr. Mares’ application. The Court has therefore cal-

culated damages for Mr. Mares beginning one day after

his application and extending through the end of “phase

I” of the trial. The Court has classified Mr. Mares as

an Installer Repair Person (Group II; Appendix E-1)

based upon his prior experience with Mountain Bell as

an Installer Repair Person. Further, because Mr. Mares

held two jobs during the period of 7-24-76 to 8-6-76, the

Court has awarded Mr. Mares overtime wages equaling

eighty hours during that same period. This, the Court

59a

finds, is the only equitable manner of resolving Mr. Mares

potential earnings, vis-a-vis his actual earnings for the

same period. It must be noted, however, that no overtime

wages beyond the above period have been granted by the

Court for Mr. Mares.

ORTIZ, HERMALINDA

Ms. Ortiz applied to General Telephone on March 19,

1974, for a Clerical Trainee’s position. Defendant,

through testimony by Edda Bates, presented evidence

that eleven positions existed while plaintiff Ortiz’ ap-

plication was active. Defendant further elicited testi-

mony that the necessary qualifications for these positions

varied but the plaintiff must have been able to; work

nights, operate a “ten-key” adding machine, or have a

sales or a clerical background. The Court finds the de-

fendant’s grounds for denying Ms. Ortez employment

to be without foundation. The skills necessary to operate

a “ten-key” adding machine were certainly within Ms.

Ortez’ capabilities and the training period would not

have been so onerous as to preclude the defendant from

hiring her. The Court has therefore calculated Ms.

Ortiz’ damages from the day after her application

through the end of “phase I” of the trial. The Court

has classified Ms. Ortiz as an entry level clerk. See

Appendix B-4,

SANCHEZ, RAMON S.

Mr. Sanchez applied to General Telephone on June 21,

1974, as a maintenance or labor trainee. Defendant pre-

sented evidence that no jobs, of the type Mr. Sanchez

applied for, were available during the pendency of Mr.

Sanchez’ application. The Court has therefore calculated

damages from the first day after Mr. Sanchez’ applica-

tion was no longer active. The Court further finds that,

notwithstanding the testimony, Mr. Sanchez was never

a full-time student and has therefore calculated damages

60a

for the entire period. The testimony regarding Mr. San-

chez’ studies included a statement that he was a full-

time student at Tarrant County Junior College, a full-

time student at University of Texas.at Arlington, and a

full-time employee as a porter at the Dallas-Fort Worth

Airport. His status as a student and employee supposedly

occurred at the same time. Due to Mr. Sanchez’ condition

(Parkinson’s disease) the Court has made every effort

to reconstruct this period in his life from testimony,

interrogatories presented to the Court and his work rec-

ord. Because Mr. Sanchez received unemployment com-

pensation during eleven months of the operative period,

the Court considers such compensation to be in lieu of

compensation he would have earned had he been em-

ployed. Therefore, Mr. Sanchez’ unemployment compensa-

tion has been included in his actual earnings. The Court

has not altered Mr. Sanchez’ income because of his de-

bilitating disease. The Court reaches this conclusion on

the grounds that Mr. Sanchez continued in gainful em-

ployment through the operative period determined by

this Court.

FALCON, MARIANO &.

Mr. Falcon was hired by General Telephone on July

7, 1969, pursuant to a program devised to employ un-

employed minorities. The Court has previously found

that there was no evidence of discrimination against

Falcon in hiring. Falcon was employed by General Tele-

phone as a Ground Worker, after 30 days he was pro-

moted to Line Worker and subsequently to Line-Worker-

In-Charge by the end of his first year. He received no

further promotion prior to the time he sought a promo-

tion to Field Inspector on October 8, 1972. The Court

finds that at that time he was discriminated against,

4 other men, not Mexican-Americans, with less seniority

than Falcon, had been promoted over him. His potential

earnings have therefore been calculated on the basis of

the position Field Inspector.

61la

Mr. Falcon voluntarily refused a promotion to In-

staller Repairman at General Telephone in 1970, and in

1972 he voluntarily stepped down from Lineman-In-

Charge to Lineman. Because of Mr. Falcon’s refusal to

accept a promotion and in stepping down, these actions

have been considered in the determination of his actual

wages. Since he was employed by General Telephone

during the entire time for which damages have been

awarded, the additional amount has not been included

for job security, interest, however, has been included.

Attorneys’ Fees

In “phase I” of this trial, it was determined that plain-

tiff, Mariano S. Falcon for himself and the class he rep-

resents, was entitled to recover attorney fees. The at-

torneys working on the case were Frank Hernandez, John

Collins, and law clerk George Solares. A paralegal clerk

Lynn Drake also worked on the case.

A reasonable fee for attorneys is $80.00 an hour. Frank

Hernandez spent 182 hours in preparation, making his

fee $14,560.00. John Collins spent a total of 112 hours

in preparation, making his fee $8,960.00. A reasonable

fee for a law clerk is $25.00 an hour. George Solares

spent 89.5 hours in preparation as a law clerk making

a total fee of $2217.50. A reasonable fee for a Junior

Attorney is $60.00 an hour. George Solares, after he was

admitted to the bar, spent 36.5 hours, making a total

fee of $2190.00. A reasonable fee for a paralegal clerk

is $20.00 an hour. Lynn Drake, a paralegal working for

John Collins spent 45 hours in paralegal work, making a

total fee of $900.00. Mariano S. Falcon for himself and

for the class he represents is entitled to recover a total

of $28,827.50 for legal services.

62a

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action 3-75-0403-B

MARIANO S. FALCON

Vv.

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST

FINAL JUDGMENT

After full and impartial consideration of the above

venitled and numbered cause, the Court, based on the

Findings of Fact and Conclusions of Law rendered on

March 22, 1977, and the Findings of Fact and Con-

clusions of Law contained in this Court’s Order dated

October 20th, 1978, renders final judgment.

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED as follows:

That final judgment of this action be entered in favor

of Mariano S. Falcon and the class which he represents

against General Telephone Company of the Southwest

in the amount of $67,925.49 together with interest accru-

ing hereafter from the date of final judgment.

Dated this 20 day of October, 1978.

/8/ Sara T. Hughes

United States District Judge

63a

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-3587

D.C. Docket No. CA 3-75-0403-B

MARIANO §. FALCON,

Plaintiff-A ppellee

Cross-Appellant,

versus

GENERAL TELEPHONE COMPANY OF THE SOUTHWEST,

Defendant-A ppellant

Cross-A ppellee.

Appeal from the United States District Court for the

Northern District of Texas

Before TUTTLE, RANDALL and TATE, Circuit

Judges.

JUDGMENT

Tkis cause came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Texas, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed in part; and that this cause be, and

64a

the same is hereby remanded in part to the District

Court in accordance with the opinion of this Court;

IT IS FURTHER ORDERED that each party bear

his own costs on appeal in this Court.

| September 22, 1980

Issued as Mandate: Oct. 14, 1980.

Reissued as Mandate: Nov. 5, 1980.

A true copy

Test

Clerk

U.S. Court of Appeals

Fifth Circuit

By /s/ Brenda Hauck

Deputy

New Orleans, Louisiana

65a

APPENDIX J

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

October 27, 1980

TEL 504—589-6514

GILBERT F. GANUCHEAU 600 Camp Street

Clerk New Orleans, La. 70130

TO ALL PARTIES LISTED BELOW:

NO. 78-3587—MARIANO S. FALCON v.

GENERAL TELEPHONE Co.

OF THE SOUTHWEST

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en bane (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the petition( )

for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F’. GANUCHEAU

Clerk

By /s/ Sally Hayward

Deputy Clerk

ce: Mr. Stephen W. Holt

Mr. John E. Collins

Mr. Frank P. Hernandez

Mr. E. Russell Nunnally

66a

APPENDIX K

U.S. Constitution, Amend. V, Due Process Clause:

No person shall . . . be deprived of life, liberty, or

property, without due process of law... .

Fed. R. Civ. P. 28(a):

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as representa-

tive parties on behalf of all only if (1) the class is

so numerous that joinder of all members is imprac-

ticable, (2) there are questions 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 inter-

ests of the class.

Fed. R. Civ. P. 28(b) (2):

(b) Class Actions Maintainable. An action may

be maintained as a class action if the prerequisites

of subdivision (a) are satisfied, and in addition:

se 28h

(2) the party opposing the class has acted or re-

fused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive

relief or corresponding declaratory relief with re-

spect to the class asa whole....

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.