Petition — Everitt v. City of Marshall

. weary oe Court, U.S.

ie Oe

83-249 ZI

JUL gh 1983

NO. 83-__ papnasiser Sod STEVAS,

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1983

WILMA EVERITT, ET AL.,

Petitioners

Vv.

THE CITY OF MARSHALL, TEXAS, ET AiL.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRENDA GALE WILLETT

ROBYN ELIZABETH RAY

EAST TEXAS LEGAL SERVICES, INC.

P. O. BOX 2629

LONGVIEW, TEXAS 75606-2629

(214) 758-9123

Attorney for Petitioners

P & G Press, 3609 South St., Necogdoches, Texas 7596/

QUESTIONS PRESENTED FOR REVIEW

|. Did the trial court’s denial of plantiffs’ motion for

class certification, in view of the overwhelming evidence

of disparate treatment of blacks in: (a) termination and

discharge rate, (b) turn-over rate, (c) departmental hiring

rate, (d) departmental employment rate, (e) hiring by job

category, (f) employment by job category, and (g) payment

rate of blacks, constitute an abuse of discretion according

to the standards set out by the Federal Rules of Civil

Procedure thus entitling petitioners to reversal rather than

affirmation of the trial court's decision?

2. Does the Fifth Circuit Court of Appeal’s reasoning

that denial of class certification was proper, in light of the

trial Court's holding that Ms. Everitt was discharged for

cause, conflict with this Court’s mandate in United States

Parole Commission v. Geraghty, 445 U.S. 388 (1980)?

IN THE

Supreme Court of the Bnited States

OcToBER TERM. 1983

NO. 83-

WILMA EVERITT, ET AL.,

Petitioners

Vv.

THE CITY OF MARSHALL, TEXAS, ET AL.,

Respondent

PETITIONERS’ APPLICATION FOR

WRIT OF CERTIORARI

TO THE HONORABLE SUPREME COURT

OF THE UNITED STATES:

The Petitioner, Wilma Everitt, individually and in her

representative capacity as representative of the class of

past, present, and prospective black employees of the City

of Marshall, Texas, respectfully submits this Application

for Wnt of Certiorari to the United States Court of Appeals

for the Fifth Circuit.

QUESTIONS PRESENTED FOR REVIEW

1. Did the tral court’s denial of plantiffs’ motion for

class certification, in view of the overwhelming evidence

of disparate treatment of blacks in: (a) termination and

discharge rate, (b) turn-over rate, (c) departmental hiring

rate, (d) departmental employment rate, (e) hiring by job

category, (f) employment by job category, and (g) payment

rate of blacks, constitute an abuse of discretion according

to the standards set out by the Federal Rules of Civil

Procedure thus entitling petitioners to reversal rather than

affirmation of the trial court’s decision?

2. Does the Fifth Circuit Court of Appeal’s reasoning

that denial of class certification was proper, in light of the

trial Court's holding that Ms. Everitt was discharged for

cause, conflict with this Court's mandate in United States

Parole Commission v. Geraghty, 445 U.S. 388 (1980)?

TABLE OF CONTENTS

Questions presented for revieW ......6 00 ee eee

ee er Ss. bs an bd Wa we ei Od ew

ach acind a he aiken eas One ee

PUTMEICUOR OF tS COUNT 6 oe tis ccc ccesecnses

Statutes and Federal Rules of Civil Procedure...

Sn Gr I Is oe ono bies cass bsdeensews

Reasons for granting the petition..............

1. The Court of Appeals’ decision insulates

class certification denials from review and

conflicts with prior opinions of this Court

PERE UPTO ET REET COL TREE

Cases:

General Telephone of the Southwest v.

Pe SE Ol POT Akar hcceuneeeeas

United States Parole Commission vy.

Geraghty, 445 U.S. 388 (1980) ........

Wilma Everitt v. City of Marshall.

703 F.2d 207 (Sth Cir. 19863)..........

Sosna v. lowa, 419 U.S. 396 (1975) ....

Huff v. N. D. Cass Company, 855 F. 2d

i oi fe re ee

Statutes and Federal Rules of Civil Procedure:

42 U.S.C. § 20000 (1964)... 0... ..00..

PE Mae Gees We SUD ccsecsgccecess

FER Ue GEV. Wo AID EED caccceccecs

G2 UBC. B PUTS T ccc cceccccnes

TS UDA. 8 TRS CIPI ccccccrencsce

10.11

2.8.11.14

13.14

8.9

TABLE OF AUTHORITIES

Cases: Page

General Telephone of the Southwest v.

Pre. ee Gb BOOT 5 no nnececeeeses 1O.11

United States Parole Commission \.

Geraghty, 445 U.S. 388 (1980) ........ 2.8.11.14

Wilma Everitt v. City of Marshall, 703

2 PF of} 5s A. | pee eee 8.10.11

Sosna v. lowa, 419 U.S. 396 (1975) .... 13.14

Huff v. N. D. Cass Company, 485 &.2d

Ree ee FES oc akGebcdebwcaes &.9

Statutes and Federal Rules of Civil Procedure:

42 U.S.C. § 2000e (1964)............. 6.7.17

2g OR ye se. | errr 5

gilt Be AL ce. ”. | | 5

gS ae Pl. og | ner 5.6.17

eh oe ee) ne ar Py me E ,

OPINIONS BELOW

The order of the United States District Court for the

Eastern District of Texas denying plaintutfs’ first and second

motions for class certification ts reproduced in Appendixes

A and B, respectively, to the petition for Writ of Certiorari.

The Opinion of the panel of the Court of Appeals affirming

the dismissal of petitioner's individual claim and the denial

of class certification is reported at 703 F.2d 207 (Sth Cir.

1983). In that Opinion, it was held that even if demal of

certification was erroneous, the intervening decision as to

plaintiff's individual claim ts fatal to her claim on appeal

that the trial court's demial of certification was an abase

of discretion

JURISDICTION OF THIS COURT

Judgment was entered by the Court of Appeals for the

Fifth Circuit on April 22, 1983. This Court's jurisdiction is

invoked under 21 U.S.C. § 12541) because the opinion

of the Court of Appeals for the Fifth Circuit conflicts with

prior decisions of this Court.

STATUTES AND FEDERAL RULES

OF CIVIL PROCEDURE

This case involves application of Rule 23 of the Federal

Rules of Civil Procedure to litigation under Title VII of the

Civil Rights Act of 1964, as it was extended by the Equal

Employment Opportunity Act of 1972 to cover state and

local employees, and 42 U.S.C. §§ 1981, 1983. Rule 23 states

In pertinent part:

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 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 adequate-

ly protect the interests of the class. FED. R. CIV. P. 2a).

The time for application of the aforementioned rule ts set

out as follows:

As soon as practicable after the commencement of an

action brought as a class action, the court shall determine

by order whether it is to be so maintained. An order under

this subdivision may be conditional, and may be altered

or amended, before the decision on the merits. FED. R.

CIV. P. 23 (cX1).

Title VII states in pertinent part that:

5

(a) It shall be an unlawful employment practice for an

employer —

(1) to fail or refuse to hire or to discharge any in-

dividual, or otherwise to discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual's race, color, religion,

sex, Or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which

would deprive or tend to deprive any individual

of employment opportunities or otherwise ad-

versely affect his status as an employee, because

of such individual's race, color, religion, sex,

or national origin.

42 U.S.C. § 2000e(2) (1964).

Plaintiff and members of her class also receive protection

under the following laws as set out in relevant part:

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and

property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981 (1977).

and;

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage. or any State or

Territory or the District of Columbia, subjects, or

6

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress. 42 U.S.C. §

1983 (1979).

STATEMENT OF THE CASE

Petitioner filed this case as a class action under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 20006e ef seq.

alleging that the City of Marshall, Texas, discriminated in the

compensation, promotion, and discharge in hiring of black

employees, while countenancing the maintenance of a

racially discriminatory work environment and retaliating

against black employees. Petitioner moved for an order

certifying the action as a Class action, which was denied

by the District Court after an evidentiary hearing. The

District Court reasoned that questions of law or fact

relating to plaintiff, a discharged civil service employee,

might not be common to non-civil service employees.

Plaintiff's second motion for class certification was denied

without a hearing. Subsequently, the District Court tried

petitioner's individual claim. Although the District Court

found plaintuff had proved a prima facie case of racial

discrimination, and that members of the police department

had engaged in the use of contemptuous racial language,

the Court held that plaintiff's discharge was due to derelic-

tion of duty and not motivated by discriminatory animus.

Plaintiff appealed and a panel of the Fifth Circuit affirmed

the tral court's decision in both the individual and class

claims. The Court held that petitioner had neither claims

typical of the members of the class nor an adequate common

interest or nexus with them.

REASONS FOR GRANTING THE PETITION

The Court of Appeals Decision Insulates

Class Certification Denials from Review and

Conflicts with Prior Opinions of this Court

The Court of Appeals affirmed the trial court's decision to

deny class certification based on Ms. Everitt’s failure to suc-

ceed in proving her individual case. The Court held that“, . .

with regard to Ms. Everitt, the trial on the merits of her in-

dividual claim resulted in a determination that she herself

‘was not a victim of discrimination. Even if she would have

appeared to be an appropriate representative on (the date of

the District Court's denial of class certification) she is not

now an appropriate representative .... This defect is fatal’

to her claim on appeal that the District Court's denial of

certification was an abuse of its discretion.” Everitt v. City

of Marshall, 703 F.2d 207 (1983). This was error.

Failure to review demal from the proper perspective

deprived petitioner of her nght to review under the standards

imposed by the Federal Rules of Civil Procedure, which

require that the plaintiff be an appropriate class represen-

tative at the time she requests certification, without reference

to the ultimate outcome of her individual case. Muffy. N. D.

Cass Company, 485 F.2d 710 (Sth Cir. 1973). Affirmation

of the tnal court's refusal to certify conflicts with this Court's

decision in Geraghty, “.. . that an action brought on behalf

of a class does not become moot upon expiration of the

named plaintiffs substantive claim, even though class

certification has been denied. The proposed representative

retains a ‘personal stake’ in obtaining class certification

sufficient to assure that Article II] values are not under-

mined.” United States Parole Commission v. Geraghty,

445 U.S. 388 at 404

The perspective from which a review of denial of class

8

certification is conducted is crucial. Refusing to review the

failure of a trial court to certify a class at the time of the

motion for certification places an impermissible burden

on the class representative by requiring success on her

individual claim before the Court of Appeals will even con-

sider whether there was an abuse of discretion in the denial

of her class claim. Huff, 485 F.2d 710. Such perspective

effectively insulates the denial of class certification from

review,

Under this ruling, a district court may deny a motion for

class certification and try the named plaintiffs individual

case knowing that the denial of class certification will not be

reviewed unless the plaintiff wins the individual case and then

appeals the class case. Therefore, the court's ruling in Everitt

gives a trial court incentive to deny individual cases in order

to avoid troublesome class actions.

Plaintiff demonstrated her appropriateness as class

representative when she motioned for class certification as

she pled a prima facie case. Where, as in the instant case,

plaintiffs’ overwhelming and undisputed statistical analysis

makes clear that the disparate: (1) termination and discharge

rate, (2) turn-over rate, (3) departmental hiring rate,

(4) departmental employment rate, (5) hiring by job cate-

gory, (6) employment by job category, and (7) pay rate of

black employees was not likely to have been due to the

operation of random factors not associated with race, and

where plaintiff satisfies the other federal rule requirements,

when she makes her motion for class certification, she and

the class she represents are entitled to certification.

As demonstrated by her statistical evidence, plaintiff meets

the federal rule requirement of numerosity. During the years

1977 through 1980, well over four hundred (400) blacks were

employed by the City of Marshall, including a significant

turnover of two hundred thirty-two (232) black employees of

9

which eighty-four (84) were terminated or discharged. She

meets the requirement of commonality as employment

descrimination on the basis of race was clearly demonstrated

by the conclusive statistical evidence and shown not to be

isolated to a single department in the city, but pervasive

throughout all of the city departments. She demonstrates

typicality as plaintiff's claim is founded upon discrimination

based on the terms and conditions of employment on the

basis of race in all departments of the City of Marshall. The

Appellate Court's opinion note that, “.. . Everitt presents

an impressive argument that the asserted racially dis-

criminatory practices were common to both civil service

and unclassified employees.” Everitt, 703 F.2d at 210.

Refusal to certify plaintiffs’ class was clearly error.

This Court has recently addressed class certification in

General Telephone Company of Southwest v. Falcon. 457

U.S. 147. The Court of Appeals class certification was

reversed for reasons that do not present themselves in the

instant case. While the holding in Fa/con may appear to

support the denial of certification in Everitt, the cases are

easily distinguishable upon their facts.

In Fakon the trial Court certified a class without con-

ducting an evidentiary hearing. In Fveritt the statistical

evidence of class discnmination presented on the Motion for

Certification was overwhelming and uncontroverted.

The plaintiff in Falcon was unable to show “(1) that this

discriminatory treatment is typical of Petitioner's promotion

practices, (2) that Petitioners’ promotion practices are

motivated by a policy of ethnic discrimination that pervades

Petitioner's. . division, or that this policy of ethnic

discrimination is reflected in Petitioners’ other employment

practices... . Falcon, 457 U.S. 147.

Falcon suggests the success of a class-based discrimination

10

suit depends on an analysis of statistics concerning the

employer's hiring patterns. Where the unchallenged evidence

shows that minority employees were hired in the numbers

greater than their percentage of the labor force, claims of

class-based discrimination may not be supported. Falcon,

457 U.S. 147 (dissenting opinion). The record in Everitt

supports an opposite conclusion. Even though these findings

were made, the holding in Falcon still rejects the evaluation

of class certification by hindsight, 457 U.S. 151. Falcon

supports the proposition that the perspective for evaluating

the propriety of class certification is from the time of the

motion for certification. In contrast to the evidence ijn

Falcon, the statistics in Everitt are unequivocal. In light

of the evidence presented in Everitt, the rule in Falcon

would not preclude class certification.

Geraghty was a challenge by prisoners to the federal

parole guidelines. The trial court denied the named plaintiff's

Motion for Class Certification. He was released from prison,

mooting his individual case. The plaintiff petitioned for

review of the denial of «lass certification.

The Court of Appeals, ruling that the litigation was not

moot, reversed the judgment of the Distnct Court and

remanded the case for further proceedings. The Appellate

Court held that an erroneous denial of a class certification

should not moot the issues. This Court addressed the

Art. III controversies as follows:

Mr. Justice POWELL, in his dissent, advocates a

ngidly formalistic approach to Art. Ill, at 1216-1217,

and suggests that our decision today is the Court's first

departure from the formalistic view. Post, at 1218-1220.

We agree that the issue at hand is one of first impression

and thus, in that narrow sense, is “unprecedented,”

post, at 1220. We do not believe, however, that the

decision constitutes a redefinition of Art. III princi

or a “significant departure{e).” post, at 1215, from

“carefully considered” precedents, post, at 1220.

The erosion of the strict, formalistic perception of

Art. II] was begun well before today's decision. For

example, the protestations of the dissent are strikingly

reminiscent of Mr. Justice HARLAN'’s dissent in Flast

v. Cohen, 392 U.S. 83, 116, 88 S.Ct. 1942, 1960,

20 L.Ed.2d 947, in 1968. Mr. Justice HARLAN hailed

the taxpayer-standing ryle pronounced in that case as a

“new doctrine” resting “on premises that do not with-

stand analysis.” /d., at 117, 88S.Ct., at 1961. He felt that

the problems presented by taxpayer standing “involve

nothing less than the proper functioning of the federal

courts, and so run to the roots of our constitutional

system.” /d., at 116, 88 S.Ct., at 1961. The taxpayers

were thought to complain as “private attorneys-

general,” and “{t}he interests they represent, and the

rights they espouse, are bereft of any personal or

proprietary coloration.” /d., at 119, 88 S.Ct. at 1962.

Such taxpayer actions “are and must be . . ‘public

actions’ brought to vindicate public rights.” /d., at

120, 88 S.Ct. at 1963.

Nothwithstanding the taxpayers’ lack of a formalistic

“personal stake,” even Mr. Justice HARLAN felt that

the case should be held nonjusticiable on purely pruden-

tial grounds. His interpretation of the cases led him to

conclude that “it is... clear that [plaintiffs in a public

action] as such are not constitutionally excluded from

the federal courts.” /hid. (emphasis in original).

It is not somewhat ironic that Mr. Justice POWELL,

who now seeks to explain United Airlines, Inc. v.

Mc Donald, supra, as a straight-forward application of

settled doctrine, post, at 1219, expressed in his dissent in

Mc Donald, 432 U.S., at 396,97 S.Ct. at 2471, the view

that the holding rested on a fundamental misconception

about the mootness of an uncertified class action after

settlement of the named plaintiffs’ claims? He stated:

“Pervading the Court's opinion is the assumption that

the class action somehow continued after the District

Court denied class status. But that assumption ts sup-

ported neither by the text nor by the history of Rule 23.

12

To the contrary, . . . the denial of class status converts

the litigation to an ordinary nonclass action.” /d., at

399, 97 S.Ct., at 2472.

The dissent went on to say:

“{ Petitioner] argues with great force that, as a result of

the settlement of their individual claims, the named

plaintiffs ‘could no longer appeal the denial of class’

status that had occurred years earlier... . Although this

question has not been decided by this Court, the answer

on principle is clear. The settlement of an individual

claim typically moots any issues associated with it... .

This case is sharply distinguishable from cases such as

Sosna v. lowa... and Franks v. Bowman Transp.

Co. . . . where we allowed named plaintiffs whose

individual claims were moot to continue to represent

their classes. In those cases, the District Courts

previously had certified the classes, thus giving them

‘a legal status separate from the interests{s] asserted

by [the named plaintiffs]. Sosna vy. lowa, supra,

419 U.S. at 399, 95 S.Ct. at 557. This case presents

precisely the opposite situation: The prior denial of

class status had extinguished any representative

capacity.” /d, at 400, 97 S.Ct. at 2473 (footnote

omitted).

Thus, the assumption thought to be “(pervading the

Court’s opinion” in McDonald, and so vigorously

attacked by the dissent there, is now relegated to

“gratuitous” “dictum,” at 1219. Mr. Justice POWELL,

who finds the situation presented in the case at hand

“fundamentally different” from that in Sosna and

Franks, at 1217, also found the facts of Mc Donald

“sharply distinguishable” from those previous cases.

432 U.S. at 400, 97 S.Ct. at 2472.

We do not recite these cases for the purpose of show-

ing that our result is mandated by the precedents. We

concede that the prior cases may be said to be somewhat

13

confusing, and that some, perhaps, are irreconcilabie

with others. Our point is that the strict, formalistic view

of Art. III jurisprudence, while perhaps the starting

point of all inquiry, is riddled with exceptions. And, in

creating each exception, the Court has looked to practi-

calities and prudential considerations. The resulting

doctrine can be charaeterized, aptly, as “flexible”, it has

been developed, not irresponsibly, but “with some

care,” at 1215, including the present case.

The dissent is correct that once exceptions are made

to the formalistic interpretation of Art. III, principled

distinctions and bright lines become more difficult to

draw. We do not attempt to predict how far down the

road the Court eventually will go toward premising

jurisdiction “upon the bare existence of a sharply

presented issue in a concrete and vigorously argued

case,” at 1222. Geraghty, 100 S.Ct. at 1213 n.11.

When a class is certified it acquires a legal status separate

from the interest asserted by the named plaintiff. Sosna v.

lowa, 419 U.S. 396 (1975). Thereafter, a case or controversy

may continue to exist between the class as an entity and the

defendant, and the merits of the class claim may then be ad-

judicated. Geraghty, 445 U.S. 388 (1980).

CONCLUSION

The Court of Appeals affirmed the denial of class certifica-

tion based on the named plaintiff's appropriateness as class

representative at the time she lost her individual case on the

merits, rather than her appropriateness as class represen-

tative at the time she moved for class certification This was

error

Affirmation is error, because the Court of Appeals

incorrectly equates the named plaintif!'s nexus with the pro-

14

posed class with the merits of her personal claim, and fails to

consider whether she retained a personal stake in the out-

come of the litigation after the dismissal of her individual

case. By summarily affirming the trial court’s decision, the

Appellate Court has fashioned a rule which both effectively

insulates denials of class certification from review and

provides incentive to dismiss individual cases in Title VII

litigation.

The petition for Writ of Certioram should be granted.

Respectfully submitted,

EAST TEXAS LEGAL SERVICES, INC.

208 NORTH GREEN STREET, SUITE 600

P.O. BOX 2629

LONGVIEW, TEXAS 75606-2629

(214) 758-9123

By:

ROBYN ELIZABETH RAY

CERTIFICATE OF SERVICE

1, Robyn Elizabeth Ray, hereby certify that a copy of the

foregoing Petitioners’ Application for Writ of Certioran has

been mailed certified return receipt requested to the Hon-

orable Jason R. Searcy, 107'4 W. Austin Street, P_ O. Box

1386, Marshall, Texas 75670. on this the day

of July, 1983

ROBYN ELIZABETH RAY

i)

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MASHALL DIVISION

WILMA EVERITT, INDIVIDUALLY )

AND IN BEHALF OF ALL OTHERS )

SIMILARLY SITUATED PERSONS

NO. M-79-

VS. 219-CA

)

)

)

)

)

CITY OF MARSHALL, ET AL )

ORDER

This is an employment discrimination suit brought by

Wilma Everitt, a black female, against the City of Marshall,

Texas, and various City officials, arising out of Ms. Everitt's

nine month tenure as a dispatcher for the City of Marshall

Police Department. Following her indefinite suspension by

the Police Department for alleged dereliction of duty, Ms.

Everitt appealed to the Civil Service Commission of the City

of Marshall which affirmed the decision of the Police De-

partment. She then instituted an action in state district

court challenging the decision of the Civil Service Com-

mission See Firemen’s and Policemen’s Civil Service Com-

mission v. Hamman, 404 SW 2d WR, 311 (Tex. 1966)

(Plaintiff entitled to a tna! de novo governed by a substantial

evidence review!

In addition to pursuing her civil service remedies, Ms

Everitt filed a charge of discrimination with the Equal

Employment Opportunity Commission on February 2.

16

1979. She alleged that she had been subjected to racial insults

on September 6, 1978, when a white patrolman asked her if

she had “chased any ‘Niggers’ lately.” Ms. Everitt also

alleged that she was discharged on September 23, 1978, asa

result of her objections to the racial insults. Her original

charge of discrimination filed with the EEOC (based solely

on race) and the amendment to her charge (adding an

allegation of sex discrimination) present only allegations of

individual discrimination. Ms. Everitt's EEOC charge did

not complain of any class wide discrimination nor could

the charge be interpreted as alleging or challenging a pattern

or practice of racial discrimination on the part of the City.

Neither party has presented any evidence relating to the

scope of the investigation conducted by the EEOC.

For matters relevant to the issue now under consideration,

she alleges that she received a right to sue letter from the

Department of Justice on January 7, 1980, and filed the com-

plaint under which she ts now proceeding on March 17,

1980. In her complaint, Ms. Everitt alleges that the Police

Department discriminated against her and other members of

the class she seeks to represent on the basis of race and sex, in

violation of 4. U.S.C. §§ 1981,' 1983, and 2000e, er seg.

More specifically she complains of the following employ-

ment practices and polices of the City: Discrimination in

recruiting, hiring, and job assignments, unlawful termina-

tions, allowing black employees to be harassed, retaliatory

termination of minority employees who challenge dis-

criminatory practices, and “reliance almost exclusively on

reports and recommendations of other white officers, almost

all of whom have been white males, in making decisions

with respect to the employment status of black males and

females, including, but not limited to. hiring and

termination ~

| Section 198! of Tithe 42 will not support 4 claim based on sea dis

enmination Runyon» MeCrary, 427 US 160(1976)

17

In addition to her individual claims, she alleges that she

represents two classes of persons:

a. All black persons who are presently employed, have

been employed, have made application to be em-

ployed, or who may in the future be employed or

make application to be employed in the police

department of Defendant the City of Marshall,

Texas and who have been and continue to be or

might be adversely affected by the practices and

policies complained of herein; and

b. All female persons who are presently employees,

have been employed, have made application to be

employed, or who may in the future be employed or

make application to be employed in the police

department of Defendant the City of Marshall,

Texas and who have been and continue to be or

might be adversely affected by the practices and

policies complained of herein.

In her motion for declaration of a class action and at the

subsequent hearing on the motion, the claims of the class

relating to sex discrimination have not been advanced.

Accordingly, the gender-based class allegations need not be

addressed. As quoted above, Ms. Everitt stated in her plead-

ings that she seeks to represent past, present and future black

employees of the City of Marshall Police Department.

Following extensive discovery, Plaintiff now argues that she

should be allowed to represent a class of employees ec-

compassing all employees of the City of Marshall, including

non-civil service employees. Indeed. at the class action certi-

fication hearing, almost all of the Plaintiffs evidence was

directed at establishing a class of employees encompassing

all of the persons who are or have been employed by the City

of Marshall in all of its departments

JURISDICTION OVER THE CLASS CLAIMS?

The Defendants question this court's jurisdiction over the

class action claims in this lawsuit. It is their contention that

the charges filed with the EEOC do not contain any allega-

tions that might lead to a finding of class wide discrimination

and that any class action claims in this suit are barred because

they are not within the scope of the EEOC charge. There is

some authority on this point. See Fellows v. Universal

Restaurants, Inc., Civil Action No. CA3-80-1328-F,

me! SUPP. .__|—\(N.D.Tex. June 16, 1981)

(50 L.W. 2016), EEOC v. Mallinckroot, 22 FEP CASES

311 (E.D. Mo. 1980).

In Fellows, the EEOC charge filed by the plaintiff was

lacking any class allegations and the EEOC investigation

did not uncover any unlawful employment practice other

than the claims that pertained to the plaintiff. Judge Porter

concluded that to allow the plaintiff to maintain a class

action suit in federal court, when there is no indication of

class related unlawful employment practices in the ad-

ministrative record would “sanction the ‘witch hunt’ con-

demned in Mallinckrodt.” Fellows, supra at page 9. The

Fellows decision traces the development of the relationship

that exists between a charge of discrimination filed with the

EEOC and the jurisdiction of a federal court to entertain a

subsequent Title VII suit that arises out of the original

charge. /d, at 4. Relying on Falcon v. General Telephone

Co., 626 F.2d 369 (Sth Cir. 1980), vacated on other grounds,

—___ U.§._ 101 S.Ct. 170 (1981), parts 1, 11,

V, and VI of Original Opinion reinstated ___F .2d

(Sth Cir. June 24, 1981) (Slip Op. 8949); Gamble

v. Birmingham Southern Railroad Co., 514 F.2d 678 (Sth

Cir. 1975), and Sanchez v. Standard Brands, Inc., 431 F.2d

455 (Sth Cir. 1970), the district court concluded that it did .

not have jurisdiction over Title VII class action claims that

19

were not presented to the EEOC nor investigated by the

EEOC and found to have some merit.

While | agree with the rationale and the result in Fellows, |

am reluctant to decide the jurisdictional issue in this case in

view of the limited evidence in the record relating to the scope

of the investigation conducted by the administrative

authorities. Further, the exact question presented in Fellows

has yet to be responded to by the Fifth Circuit. Although

not specifically articulated by the Plaintiff, it is assumed that

the class action claims based on 42 U.S.C. §§ 1981, 1983, are

still being advocated and those claims would not be

jurisdictionally barred under Fellows, Hill v. American

Airlines, Inc., 479 &.2d 1057, 1060 (Sth Cir, 1973),

RULE 2a); PREREQUISITES TO A CLASS ACTION

The following provisions of Rule 23 of the Federal Rules

of Civil Procedure must be met:

(a) Prerequisites to a Class Action, One or more

members of a class may sue or be sued as represen-

lative 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

partics will fairly and adequately protect the

interests of the class.

(b) Class Actions Maintainable. An action may be

maintained as 4 class action if the prerequisites of

subdivision (a) are satisfied. and in addition:

(2) the party opposing the class has acted or refused to

20

act on grounds generally applicable to the class,

thereby making appropriate final injunctive relief

or corresponding declaratory rehef with respect to

the class as a whole; .. .

An analysis of the Rule 23(a) prerequisites as they apply to

this case necessitates an early resolution of the following

issue: Should this court allow a person that was formerly

employed under the provisions of a state civil service statute

to represent the claims of employees not subject to the state

civil service statute in a class action alleging across the board

discrimination? No member of the class of employees not

subject to civil service is a party to this action,

During her tenure as a dispatcher for the City of Marshall

Police Department, all policemen and firemen employed

by the City were subject to the laws of the State of Texas pro-

viding for the creation of a Firemen’s and Policemen’s Civil

Service in all Texas cities having at least 10,000 inhabitants.

TEX. REV. CIV. STAT. ANN. art. 1269m (Vernon 1963 &

Supp. 1980-81) (hereinafter art. 1269m). Section l6a of

art. 1269m states that the purpose of the statute “is to

secure to the cities affected thereby efficient police and fire

departments, composed of capable personnel, free from

political influence, and with permanent tenure of employ-

ment as public servants.” Article 1269m controls and

regulates the hiring, promotion, supervision, demotion and

discipline of policemen and firemen in cities subject to the

Act. Pursuant to this statute, the City of Marshall has

adopted rules and regulations for the administration of

Civil Service for Firemen and Policemen in the City of

Marshall. See City of Marshall Ordinance 0-64-5 (March

26, 1964), as amended by Ordinance 0-79-29 (July 26, 1979).

The statute and regulations provide a very detailed frame-

work under which most of the essential employment policies

of the Police Department are controlled. Persons employed

21

by the City of Marshall in any of its 13 other departments

are not subject to the proscriptions of the Civil Service laws

and regulations. This distinction is significant for the pur-

poses of determining whether the Plaintiff should be allowed

to maintain this suit as a class action. While this Court is

bound to accept the principle that her claims of racial

discrimination might be-typical of those of all black em-

ployees of the City of Marshall, see Falcon v. General

Telephone Co., supra, 626 F.2d at 375 (Sth Circuit still

approves “across the board” attacks on discrimination), it

does not necessarily follow that adjudication of her claim will

involve questions of law or fact common to the claims

asserted on behalf of the non-civil service employees. Rule

2a 2), Fed.R.Civ.P.

For example, a person seeking a position of employment

with the Police Department must complete an application

for employment, must take a competitive examination ad-

ministered by the Civil Service Commission, must pass a

physical examination and is subject to other age and physical

requirements as set by the Commission. Art. 1269m, §§9,13?.

Section 10 of art. 1269m provides that the persons having the

highest grade on the eligibility list shall be appointed to a

vacant position unless there is a valid reason why the person

holding the next highest grade should be appointed. Thus,

the testing process is an integral part of the process of filling

vacancies in the Marshall Police Department. Validation

of employment tests, especially in the field of civil service

employees, presents many unique and complex questions.

See Guardians Association of New York City P.D. v. Civil

Service Commission, 633 F.2d 232 (2nd Cir. 1980);

Guardians Association of New York City P.D. v. Civil Ser-

2 The Fifth Circus recognized the significance of dissimilar hiring

procedures when it affirmed the distnct court's decision to limit class

certification jo persons employed at a particular location Falcon +

General Telephone Co. supra, 626 F 2d at 476

’)

o«

vice Commission, 630 F.2d 79 (2nd Cir. 1980).

Moreover, once a person is employed by the Marshall

Police Department, any subsequent promotions (§§ 14,14A).

suspensions (§§15, 17, 18, 20), or demotions (§19) are con-

trolled by statute.

These and other factors persuade the court to limit the

class of persons that the Plaintiff should be allowed to

represent to only those persons who are employed by the

Marshall Police or Fire Department, persons who have been

terminated from those departments, and persons that

applied for employment in those departments.

An examination of the relevant class of black employees

of the City of Marshall subject to the Civil Service laws of

Texas reveals that during the years 1977, 1978, 1979, and

1980, a maximum of eight blacks were employed by the City

in the police and fire protection categories. There was no

evidence introducted to indicate the number of blacks, if any,

that filed applications to take examinations for Fireman or

Policeman in accordance with §1 of the City of Marshall's

Rules and Regulations for Civil Service for Firemen and

Policemen, as amended. In this Court's opinion, the Plain-

tiff has failed to demonstrate that the class of black applicants

and employees is so numerous that joinder of all members is

impracticable. Rule 2a\1), Fed. R. Civ. P.

Because of the findings above that two of the prerequisites

to a class action have not been satisfied, it need not be deter-

mined whether the Plaintiff will fairly and adequately protect

the interests of the class.

23

In accordance with the foregoing opinion, it is

ORDERED that the Plaintiffs Motion for Declaration of a

Class Action be and hereby is DENIED.

SIGNED this 14th day of September, 1981.

s Willhlam M. Steger

UNITED STATES DISTRICT JUDGE

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

WILMA EVERITT, et a! )

)

VS. ) NO. M-79-219-CA

)

THE CITY OF MARSHALL, et al )

ORDER DENYING PLAINTIFF'S SECOND MOTION

FOR CLASS CERTIFICATION

Came on to be heard Plaintiff's Second Motion for Class Cer-

tification and after consideration of the same, it is ORDERED

that Plaintiff's Second Motion for Class Certification be and

hereby is DENIED.

SIGNED THIS 17 day of November, 1981.

is) WILLIAM M. STEGER

United States District Judge

24