Opposition Brief — Griffin v. Dugger

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ny Suorene Court, U.S,

riILBD

No. 87-1281 APR {5 1988

JOSEP SPANIOL, UR.

In The Due Rh

Supreme Court of the United States

October Term, 1987

PENERS L. GRIFFIN, e¢ al.,

Petitioners,

RICHARD L. DUGGER, et al.,

Respondents.

tf.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ray

Bruce ALEXANDER MINNICK

Counsel of Record

Doveuas A. Mane

CxHar.es T. CoLLeTTE

Mane, Rerr & Couette, P.A.

Post Office Box 11127

Tallahassee, Florida 32302

(904) 222-7710

Rosert A. BuTTERWORTH

Attorney General of Florida

Harry F. Cures

Assistant Attorney General

DEPARTMENT OF LEGAL ArFrarrs

Room 1501, The Capitol

Tallahassee, Florida 32301

(904) 488-1573

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Respondents pereeive no need to restate the four

“Questions Presented” by petitioners. llowever, respon-

dents will only respond to the three points presented in the

petition.

PARTIES TO THE PROCEEDING

The parties to this ongoing proceeding below are plain-

tiffs Peners L. Griffin and Henry L. Dejerinett; interven-

ors Alvin Smith and John D. Butler; defendants below are

Richard L. Dugger, in his official capacity as Secretary,

Florida Department of Correetions; The Florida Depart-

ment of Corrections; Louie L. Waimwright, imdividually ;

and Raymond W. Gearey, individually.

However, the only parties properly before this Court

are petitioners Griffin and Dejerinett; intervenor Smith;

and the respondents Dugger and the Florida Departmen:

of Corrections.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

TABLE OF AUTHORITIES =

PREFACE REGARDING PARTY &

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVE)

STATEMENT OF ‘ie [hk CASK

STATEMENT OF THE FACTS

REASONS FOR DENYING THE WRIT

I. Question 1

If. Question 2

Til. Question 5

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

(‘\SEs:

Allee rn Uy drano, 416 U.S. S02 (1974) . ais Ao

Alvarez v. Pan American Life Insurance Co.,

379 F.2d 992 (5th Cir. 1 Lerten ten Mee, Nite Birr. 13

Amerwan Pine & Construction Co. +. Utah. 414

U.S. 588 (1974) Re 18, 19, 21

Belcher r+. Stengel, 429 US. B28 (1976) 2...

Blum v. Bacon, 457 U.S. 132 (1982) ... ean POLS, | iZ

Blain ve. Yare tsky, 457 U.S. 991 SS) en

Rrowi v. Sohli #4, B6OO Fi2d 160 (oth Cir. 1981) roots ‘3. 18, 19

Crown, Cork & Seal Co., Inc. +. Parker. 46° U.S.

345 (1983) : ee musceciNly Le OO Oh

Dalton +. Employment Security Commission of

North Carolina, 67] Pea 835 (4th Cir. Be ba ie

cert. denied, 459 U.S. S62 (1982) i)

Dayton Board of Kducation v. Brinkham. 433 U.S.

405 (1977) carrer

EEOC v. Aississ/ppi College, 626 F.2d 477 (oth

Cir. 1980) . eee eae — on |

Fast Texas Motor Preiaht +, Rodriques, 431 US

295 (1977) oo : . _ 13

Lrans v. US, Pipe d Foundry Co.. 696 F.2d 925

(11th Cir. 1983) ru eet as epee 18

Ezell v. Mobile Housing Bd., 709 F.2d 1376 (11th

Cir. 1983) ew Sone . 16

Falcon +. General Pelephone Co., 815 F.2d 317

(oth Cir, 1987) 19

General Velephoune Co. . Falcon, 457 U.S. 147

(1982) ; eee PASSTi

Hil] ? ihe Sli ri li chric Raa. Ine... DOH Pd 99 (4th

Cir. 1979) 13

Jackson vr. Si adhoard Coast Line RR. G7s Pd 99v

(lith Cir, 1982) pd

TABLE OF AUTHORITIES—Continued

Page

Oatis v. Crown Zellerbach Corp., 398 F.2d 496

S35 oy, at |: .) [pene RAE SBN LAP A A wal tay 11, 15

O’Shea v. Littleton, 414 U.S. 488 (1974) ow. 18

Payne v. Travenol Laboratories, Inc., 565 F.2d

895 (Sth Cir. 1977) cert. denied, 439 U.S. 835

(19iG) oe Lae me Nee ee MM SERS ILO mt AD tet id 13

Snell v. Suffolk County, 782 F.2d 1094 (2d Cir.

BOGS sles eae Ge 15

Snyder v. Harris, 394 US. S32 (1969) 2.2 18

Steward v. Hannon, 675 F.2d 846 (7th Cir. 1982)... 13

Thurston v. Dekle, 531 F.2d 1264 (Sth Cir. 1976)

vacated on other grounds, 438 U.S. 901 (1978) 1°

Trafficante v. Metropolitan Life Ins. Co., 409

US, ee (20a ee 14

United Airlines v. McDonald, 482 U.S. 3885 (1977) 14, 19

Vuyanich ve Republic National Bank of Dallas,

728 F.2d 1195 (Sth Cir. 1984) cert. denied, 469

U.S. 1073 (1984) eee sseeseee13, 15, 16, 18, 20

Wakeen v. Hoffman House, Inc.. 724 F.2d 1238

(7th Ot: 16. eee ee nee ae

Warth «. Seldin, 422 U.S. 490 (1975) BNR Ton ot is

Zipes tv. Trans World Atrlines, Ine., 455 U.S. 385

(1982) 22

STATUTES:

YS U.S.C. 612541) 3

28 U.S.C. § 1292(b) 2,8

42 U.S.C. § 20000 ef seq. ae a SS

Tithe VIL of the Civil Rights Act of 1964 passin

CONSTITUTIONAL PROVISIONS:

Constitution of the United States, Article ITI passin

PREFACE REGARDING PARTY AND

RECORD REFERENCES

Plaintiffs Griffin and Dejerinett wil! be referred to

as “plaintiffs” or “petitioners,” or by name as necessary.

Intervenor Smith will be referred to as “intervenor,” or

by name. Defendants Dugger and the Florida Department

of Corrections will be referred to as “defendants” or “re-

spondents”.

Respondents will cite to petitioner’s appendix as

“PA-" followed by the page number (e.g., “PA-S2a”).

Citations to respondents’ appendix will appear as “RA-”

followed by the page number (e.g., “RA-65").

Citations to the opinion below will be to the volume

and page number where reported (¢.g., 823 F.2d 1476).

Citations to the reeord below will follow the Eleventh

Cireuit’s format (e.¢., “R4-150-5"), where “R” means ree-

ord,” “4° is the volume, "150" is the document number,

and “9” is the page number of the document.

No. 87-1281

In The

Supreme Court of the United States

October Term, 1987

PENERS L. GRIFFIN, et al.,

Petitioners,

RICHARD L. DUGGER, ef al.,

Pe sponde nts.

0 — —

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

————_————_— — -0Q-- — — =

Respondents Richard L. Dugger and Florida Depart-

ment of Correetions respectfully request this Court to deny

the petition for writ of certiorari seeking review of the

Kleventh Cireuit’s decisions in this case.

OPINIONS BELOW

The opinion of the Eleventh Cireuit Court of Appeals

Is reported at S23 F.zd 1476 (August 7, 1987, as amended

September 25, LYST). The order denving plaintiffs’ peti-

tion for rehearing and suevestion for rehearing im ban

is printed at RA-57 (Oetober 30, 1US7).

»)

Petitioners have reproduced the opinion of the Elev-

enth Circuit in their appendix at PA-la to S5a;' the orig-

inal order of the district court certifying the class (entered

March 12, 1981), is reproduced at PA-S6a to 94a; the dis-

trict court’s order allowing the intervention of Alvin

Smith (entered July 30, 1982) is reproduced at PA-95a to

110a; and the district court’s memorandum opinion grant-

ing judgement for defendants on all claims heard exeepi

the testing claim (entered August 25, 1983) is reproduced

at PA-l1]la to 188a.

Respondents have reproduced several additional docu

ments pertinent to these review proceedings in their appen-

dix. The district court's order directing judgment for de-

fondants op all claims heard below (entered August 25,

1983) is reproduced at RA-1 to 3; plaintiffs’ motion to alter

or amend judgment (still pending) is reproduced at RA-

4 to 7; the order appealed from, containing the required

certificate allowing interlocutory appeal pursuant to 28

[US.C. © 1292(b) ts reproduced at RA-S to 14; the decision

of the Eleventh Cireuit is reproduced at RA-15 to 56; the

order denying rehearing is reproduced at RA-57 to 58;

plaintiffs’ post-appeal motion for leave to amend com-

plaint (filed February 10, 1988) is reproduced at RA-59 to

O1: plaintiffs’ post-appeal motion for leave to amend inter-

venor Smith's complaint is reproduced at RA-62 to 63;

plaintiffs’ post-appeal motion to intervene new parties is

reproduced at RA-64 to 66; and plaintiffs’ post-appeal mo-

tion to recertify class and request for evidentiary hearing

is reproduced at RA-67 to 70 (all filed February 10, 198s).

| Petitioners’ apnendix contains many typographical errors

made in their reproduction process. Therefore, respondents

have also reproduced the Eleventh Circuit's decision in their

appendix, at RA-15 to 36

—

JURISDICTION

Jurisdiction of this Court has been invoked pursuant

to 28 U.S.C. §1254(1).

STATUTES INVOLVED

This is a Title VII ease. The federal statute involved

ix Title VIL of the Civil Rights Act of 1964, as amended,

applicable to the states on March 28, 1972, presently codi-

ried at 42 U.S.C. § 2000e ef seq.

STATEMENT OF THE CASE

This ‘‘across-the-board’’ class action was filed on

October 15, 1979, by Peners L. Griffin on his own behalf

and ‘fon behalf of all past, present and potential black

American citizens and residents who have been or may be

employees of the defendants or applicants for employ-

mont.” R1-1-2. Griffin sued Louie L. Wainwright im his

official eapacity, and the State of Florida, Department of

Corrections, alleging race discrimination in employment

Act of 1964, 42 U.S.C. § 2000e ef seg. R1-1-1. Griffin

mainly complained of defendants’ failure to promote him,

and for twiee terminating him because of his race; he also

claimed of harassment and retaliation from defendants.

R1-1 through 4. Griffin did not advance any individual

claim of discrimination in lilting.

i¢

However, in his ‘‘across-the-board’’ elass claims, Grif

lin Hlachks

fin alleged that defendants discriminated

aga

In all aspects of employment, including reeruiting, hiring,

assignments, promotions, discipline and harassment, fail

Ing to advertise vacancies, maintaining a racially biased

working environment, and ‘tutilizing written entry level

examinations and other qualifications and selection stan

dards ... Which have a detrimental impact upon the plain

tiff and his elass.’’ R-1-3, 4.

Defendants immediately and repeat objected to

Griffins at emp to represent ay phicants or brine clas

hiring claims, since he was an 1 mbent correctional ot

fieer employer and had no standin:

issues. HI-5; B1-17; Ri-21; Ki1-22: 21-30: Ri-43: R1-49.

Despite defendants’ repeated objections, Gritfin was al

lowed to amend his complaint twice, and to intervene plain

tiff Harry L. Dejerinett as a named plaintiff and new

Class representative, to represent a hiring subclass ot

clerical job applicants. R1I-25; R1-55. Phe district court

ruled that Dejerinett’s clerical failure-to-hire claim was

encompassed by Griffin's general class hiring claim undet

the “across-the-board” theory. R1-53.

Griffin filed his Second Amended Complaint on De

eember 15, 1980, adding Henry L. Dejerinett as a named

plaintiff and as a class representative, R1-54-1. The See

ond Amended Complaint vlleved ai ditt rent class ‘‘of all

past, present and potential black emp LWeeu of the State

of Fiorida Department of Correetions.’? R1-54-2 No

mention was made of any applicant subclass. However, de

fendants filed their Amended Answer on Jannary 19, 198!

preserving their objections to all correctional officer hir

Ing claims. Rv-66.

Based upon a stipulation between the parties, on

March 10, 1981, the district court entered an order pre-

liminarily certifying a class of ‘tall past, present, and

potential black employees of the State of Florida Depart-

ment of Corrections.’’ PA-S6a to 88a. The stipulation

Was incorporated into the order, and was attached to the

order as a part thereof. PA-S6e. The stipulation pro-

vides, inter alia, that (1) the class certification was pre-

liminary, and (2) was based upon plaintiffs” and the dis-

trict court’s perception of the law in the Fifth Cireuit as

then allowing such “across-the-board” class actions to pio-

eeed. Under the terms of the stipulation the defendants

specifically preserved their rights to litigate and fo ap-

peal the disputed issues of standing aid Rule 25 require-

ments, and other areas of disagreement. PA-S9a to D4a.

On May 18, 1982, Griffin and Dejerinett filed their

motion for partial summary judgment, attacking (omoug

other thines) the defendants’ use of a written examination

developed by the Florida Department of Administration

(FDOA), and required by FDOA for use in hiring entry

level correctional officers. R2-108-21 through 28. Defen-

dants had repeatedly objected lo litigating this issue and

all other correctional officer hiring issues, because Griffin

Was an incumbent employee who had passed the fest, and

because Dejerimett was a clerical applicant and never had

to take it?

General Telephone C0. ?. Faleon, 457 U 147 Was

decided by this Court on June 14, 1982. Idleven days later,

2 The FDOA has never been a party to these proceedings, and

no one has ever filed a timely EEOC charge about FDOA’s

test, or about FDOC’s use of it.

—

phe La pahaaring es

UN dee ie ae a

on June 25, 1982, defendants noticed their reliance upen

Faleon, and moved to vacate the order certifying the class

())) July ss. 1082. R4 143.

\leantime, plaintiffs tried to avoid the toree of Faleou

hy moving to intervene Alvin Smith, a correctional offieer

applicant who had failed the test in July 1st. Tlowever,

Smith never filed a timely charge of discrimination with

the EROC. ses F.2d 1481, note 8. Defendants objected

accordingly. R4-14.

Qi) July MS JOS, the district court took uy) the two

motions, and entered its order (1) denvine the defendants’

motion to vacate class certification and (2) granting

Smith's motion to intervene, R4-150. Smith was allowed

to intervene ‘tas a matter of right’? on his ewn behalf,

and as ‘ta proper representative for potential blaek em-

plov es, v4 10 at The district court's order allowed the

action to continue as an “across-the-board” class action

with Griffin, Dejerinett and Smith collectively, as named

plaimtiffs representing the entire class of “all past, present,

and potential black employees of the State of Florida Dp.

partment of Corrections.” R-4-150-6.. Then two days later,

on July 30, 1982, the district court ruled on Griffin's and

Dejerinett’s motion for partial summary judgment, with

out any hearing. The district court’s order granted de

claratory relief only on the correctional officer written

examination issue. The district court: found “that the

correctional officer written examination utilized by de

fendants in screening applicants for correctional officer

positions has a disparate impact upon class members which

has not been justified by business necessity.’’ R4-157-52

Trial was held over the five-week period beginning

August 17, and ending September 17, 1982. R5-196.) The

parties submitted extensive post-trial motions and mem-

oranda. R5-195; R5-197: R6-21I0O; R6-2li; R7-21l2; Rvi-

215; R7-214; R7-215.

On August 25, 1983, the district court filed its Mem-

orandum Opinion. PA-llla to 188a. Judgment was en-

tered for defendants on all issues presented at trial.

RA-1 to 3. The distriet court also brought forward its

earlier summary judgment (R4-157, July 30, 1982) and

entered judgment for plaintiffs on the single issue of the

correctional officer written examination, and left several

issues including relief pending? RA-2 to 35.

Plaintiffs moved to alter or amend the judgment on

September $, 1988. RA-4 to 7. Defendants responded on

September 16, 1983. R7-225. The motion is still pending

in the district court.

Plaintiffs moved to commence stage Il (relief on the

)

testing issue), R7-283, and defendants again objected, and

filed additional supporting documents. R7-254, R8-259,

} The EEOC has never seen the test, nor had the district court

seen it prior to the ruling. Plaintiffs ‘“won’’ on statistics

alone, and defendants never had an opportunity to show job

relatedness, business necessity or argue the merits of the test.

)

The test was ebolished in 1983.

4 All matters are still pending in the district court.

R8-240. Plaintiffs responded. Rs-242. The parties were

unable to agree, and asked for permission to appeal,

The issue of relief to the class of black persons who

took and failed the correctional officer written examina-

tion was left pending, while the parties agrecd to seek in-

terlocutory appeal of the controlling issues of law regard-

ing jurisdiction, and Rule 25. The distriet court adopted

the plaintiffs’ position on notice relief in its order dated

October 8, 1985, and included the required certificate tor

purposes of the appeal. RA-S to 9. The Eleventh Cireuit

granted the interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b), and vaeated the district court’s orders. Plain-

tiffs now seek review of the Eleventh Circuit's decisions.

STATEMENT OF THE FACTS

Respondents adopt the findings of fact set forth in

the district court’s Memorandum Opinion entered August

25, 1983, (PA-116 to 188a), and the findings of the Elev-

enth Circuit Court of Appeals (825° F.2d 1476-1494), as

their Statement of the Case.

Accordingly, respondents find it necessary to correct

or clarify some of the statements made by petitioners in

their Statement of the Case.

Peners L. Griffin was an entry level correctional offi-

eer (CO I) seeking promotions at FDOC. He was never

promoted, and claimed race diserimination as the reason.

Griffin was also disciplined many times, even fired twice,

giving rise to his other individual claims, arising in 1974.

823 F.2d 1479.

Griffin filed an EEOC charge in February 1975, claim-

ing individual race discrimination in promotions, discipline

and terminations. R4-148. Ile also mentioned the word

‘hiring’’. There is no evidence that his charge was ever

fully investigated by the HOC, nor is there any evidence

as to the scope of the EEOC’s investigation, if there was

one. Griffin himself said there was not. RI-21; Ri-22;

R1-28; R1-24. Moreover, it is undisputed that the EEOC

has never seen the Correctional Officer | test, and undis-

puted that the district court never saw the test prior to

ruling that it had a disparate impact on blacks. Respon-

dents have thus been denied their rights to conciliation

under Title VII, as well as denied a fair opportunity to

litigate the merits of the test below.

Therefore, contrary to-petitioner’s statement on page

9 of the petition, the district court’s ‘tsubstantive deter-

mination’? on the test is in issue; in fact, that ruling has

also been vacated by the Eleventh Circuit’s decision, by

operation of law. Plaintiffs have lacked standing to raise

that issue from the beginning, as the Eleventh Cireuit

has found.

Plaintiffs moved for summary judgment without

standing, on the issue of disparate impact of the CO I

test on May 18, 1982, some two months before Smith inter-

vened. Defendants responded, preserving their continual

objections. R3-120. Falcon was decided June 14, 1982.

Defendants immediately noticed their reliance on Falcon,

again objecting to plaintitf’s lack of standing and failure

to meet Rule 23 requirements, on June 20, 1982. Hearing

nothing from plaintiffs or the district court, defendants

moved to vacate the order certifying class, on July S, Tos2.

823 F.2d 1480; R4-143.

Plaintiffs moved to intervene Smith, to save the ob-

jective testing claim. R414]. The district court recoe-

nized that defendants had been rieht all along. PA-10Ra,

108a and 107a. However, instead of vacating the imprep-

erly certified class, the district court allowed Smith to in-

tervene on the eve of summary judgment, solely to save

the objective class hiring claim which plaintiffs never had

standing to raise in the first place. Smith’s objective

claim was then adjudicated on plaimtiff’s carlier motion

for summary judgment, two days later, on July 30, 1982.

$93 F.2d 1481. The Bleventh Cirenit Court of Appeals has

reviewed all these facts and has vacated the district court's

orders, S98 F.2d 1484 and 1495.

All of Griffin’s individual Tithe VIE claims of sub-

jective discrimination in) promotions, discipline, retalia-

tory discipline, and terminations were resolved against him

at trial. RA-1. Likewise, all of Dejerinett’s individual

subjective hiring elaims were resolved against him at trial.

Id. Finally, Griffin and Dejerinett together lost all their

subjective class claims of race discrimination, ineluding

hiring, at trial, RA-1.) The single issue won by plaintiffs

below was the objective testing claim regarding the dis-

parate Impact of the correctional officer test advanced by

intervenor Alvin Smith. S23 F.2d 1481,

Alvin Smith took and failed the CO | test in July 1981,

over six years after Griffin’s claims arose. S23) F.2d

1480, 1481.) However, Smith never filed a timely HRC

charge about the test, and consequently never exhausted

administrative remedies either. The EMOC has never in

REASONS FOR DENYING THE WRIT

Introduction

The court of appeals’ decision below was rendered in

the alternative. First, Griffin was found to lack Article

II] standing to assert the objective testing claim in the

federal courts. Thus, the Eleventh Cireuit held that ‘*the

district court erred when it permitted Griffin to raise the

testing claim on behalf of himself and on behalf of others.”

893 F.2d 1454.

Alternatively, the court of appeals held that, “even if

Griffin somehow had constitutional standing to assert the

testing claim, he did not, in light of General Tel. Co. v.

Falcon . . . (citations omitted) have representative ca-

pacity to assert the testing claim on behalf of those who

took the FDOC’s written entry-level examination, failed it,

and were not bired.” 825 F.2d 1484, and n.17.

Petitioners here focus only on the first of the two

alternative holdings below. Petitioners do not seek review

of the court’s decision finding Griffin to be an inadequate

class representative and holding that Rule 23 requirements

were not met. In faet, petitioners concede that issue, on

page 352 of their petition.

Accordingly, this Court should deny the writ) since

the court of appeals’ decision would be affirmed on the

alternative grounds. Belcher vr. Stengel, 429 U.S. 118

(1976); Dayton Board of Education +. Brintham, 433 U.S.

406, 419 (1977); Blum +. Bacon, 457 UWS. 132, 137 (1982).

I. Question 1.

The court of appeals correctly held that plaintiffs

lacked Article Il] standing to assert the testing claim in

the federal courts. The petitioners erroncously assert that

be court ol] appeals has thus imposed a new requirement

! es ; 4 } }

Ol) yl ] sto bave Cols ULLO i 11)1e THe a ehbare

Ol duserimimation ith the EE Phat is rrect

| yf ] { } ! ? ]

Ii¢ COU! QO appre is (1CC] () Ss €0rreet a i Ss 1)

ledrano, 416 U.S. SOP. S29 (1974): Brow Sibleu. GOO

| cl (O00 iil (tl (1) LOS] ) Pail Tra te] Lab Be

rues. |i Od F.Pd S95 (Sth Cir. 1977), cert. dented, 439

U.S. S835 (1978): Thurston 1) f Dol K.Bd 164 thi

Cir. 1976). racah ) her ground P58 U.S (1 vid

Voayanich Repub Vat'l Bank, 725 F.2d 1196 (oth Ch

1OS4), cert. dented, 469 ULS. 1075 (1984): Blan bare!

yp. 457 U.S. 991, 999 (1983): Bast Tearas Motor Freight

( if ye | 99 (4th Ch 179): Savi ye 3 llarr .

it US ayy 1069 ) | re Pan A ) anu Lite lis

nee f ob 2d 992 (oth Cir, 1967)

Petit MeVn ClTte no ithor! Suppo ne then 1ey

y} } | ‘ , } ‘ ] . . ;

| ( Hrow il rye ~()] Clailnihne it) ‘ avy ( ((] {)

" yy

acharve with the Wind ) take precedence over or ex

} }

} ind the coustitutional requirement of nade” appeal

t 1} t ] 1) 7°17 1) | | t)t) neo? or) that

oO itl Lede) CO - il) . petitioners eveb argue that

Steward vv. llannon, 675 F.2d S46 (7th Cir. 1982) held that

, 14) ' ‘

congress intended to define Tithe VIP standing ti as

’ ’ . 1 9

POUL" s the Constitution permitted. Pet a / pp. 1S

2 | 1 .

Phat is the result reached the Elev Wan Nn this

' ] 4 é . ] ri — . | .

Cis Phe Other ¢ ~ ead a Co) ( U (la ho CoO

T @P1THe? 1 hie \ h slime Hine

public National Bank of Dallas. 722 F2d 1195. 1°01

The court of appeals’ decision is not in contliet with

the decisions of this Court, nor in conflict with anv other

eases relied upon by petitioners, This Court should deny

the writ.

II. Question 2.

Petitioners now admit that in light of Fa vw, Griffin

}

could net represent the class of persons who failed t

correctional officer written examination. Prelition. }). ae

Respondents have known and argued that fact sinee 1079,

When Griffin filed this suit. Accordingly, the parties now

are in agreement that the testing subelass was improperly

plead by Griffin, improperly certified, and imprepert!

recertifped » the district eourt Giritiin ilw; - Wa il j

still is an inadequate class representative. Therefore. the

}

lKleventh (irenit’s order Vaecenuting th proper! (*t riitied

class is cao? rect, ; rie retiliomers should hy: tier cptisarre |

; :

that order, under J’alcow.

llowever, to avoid the effect of the Eleventh Cirenit’s

mandate, and in order to. side-stern this Court's clear

holding in Faleon, petitioner are now attempting to

replead Griffin's ease below under a new across-the-board

thi ory, hoping to create Article II] standing whi re nhotre

Was found to exist see plaintiffs* motion for lea

amend complaint, RA ibs roleniist ft" mot oie ir @ te

amend intervenor Smith’s complaint. RA-G2. olaintifts’

Court should reject) petitioners’

deny the writ,

III. Question 3.

Petitioners’ last pol t regarding to

sented to the district C()]

hig th

Smith had not exhausted, but erroneo

to intervene anvwa relvine’ upon Gi

sy? 4 *s ] ‘

charge to exeuse Smith’s laek of «

4 z - 1 41 .

Istratliy remedies uhaer the sitet

1OY9a. Co

tly no

if how capable OT NXT

Isequel

no plaimtit

The leventh Cireuit correctly hi

court abused its discretion by allown

tion solely to save the testiie claim C4

standing to brine it in the Meo wy uy ‘

accord Woaheen Uv. floft li fhou In

Vuyanich ov.

ize FZ

Co., 696 F.2d 925, at

SUpra,

. . ] 4

at ¥Z5-9ZY, and note

] .- 1.” j -

SULEI, Hpra, O.)0) teva cil

re 5 .

Brown i.

tolling’ arguments anea

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hearing im bane, denied on October BO, 1987 RA-97

The decision of the Kleventh Cireuit does no conthet with

this (‘ourt’s eCISIONS 1)) hie) dit f pe & Couslric frp

Co. vu. Utah, 414 U.S. 538 (1974 ov United Airline

Me Donald, LSo2 [ Ri 5 SW) (1904 oo OE ‘Pe

Co., Ine. v. Parker, 462 U.S. 345 (198

Phe holdings in these cases p)

allegation

: a “7

Soin a COMptalnt Lec

are legitimate class allegations brought by someone who

has Article [li standing himself. ‘‘Standine cannot be

acquired through the back door of a class action.’? .Lllee

rn. Medrano, supra, 416 U.S. at 829 (1974) (BI

concurring); Brown v. Sthley, supra, 60 F.2d at 771.

However, in this case Griffin never had standing to

raise the objective testing claim, and neither did Dejeri

nett. Accordingly, since there has never been a proper

class pled or certified here, the Hleventh Cireuit properly

racated the district court’s orders, which are thus void

ab inttio. See Faleon +. General Pele phow C'o., S15 F.2d

317 at 820 (doth Cir. 1987). There never was a class, as a

niatter of law.

The rules announced tin american Pipe and Crown,

C‘ork a Seal presume a valid Class action, ana heretore

properly allow similarly situated persons and proper puta

tive class members to intervene or bring individual actions

upon a subsequent denial of class certification In such

proper cases, this Court has held that the statutes of limi-

tations appleable to actions brought in the federal courts

may be tolled for proper class members during the pen

dency of the class certification proceedings, Likewise, in

United Awlines this Coart has allowed proper putative

Class members to await entry of final judgment before

intervening tor purposes of appealing the demial of class

eertifieation. This case does not disturb those rules of

equity.

[In this case, Smith was allowed to intervene solely to

‘reate subject-matter jurisdiction over the objective tes

ing claim, where none existed before Phere never was

a Valid e¢lass action alleged or certified here. Therefore,

unlike American Pipe and the other eases, intervenor

Smith had no valid class action into which to intervene.

Petitioners cite no authority allowing federal courts to

ereate or enlarge their jurisdiction by allowing interven-

tion of non-putative class members, at any stage of the

proceedings. See Vuyanich v. Republic Nat'l Bank, supra,

723 F.2d at 1201.

More importantly, in Crown, Cork & Seal the inter-

venor Parker was clearly a member of the putative class,

and was independently able to sue on the same issues

raised by the plaintiffs in their class action. Parker had

already filed a timely EEOC charge and had fully ex-

hausted his administrative remedies; he was awaiting his

notice of right to sue before the class action was filed. 462

U.S. at 847. Therefore, when class certification was de-

nied, Parker still had his statutery 90 days in which to

intervene in the action, or file his own individual action.

462 U.S. at 554.

By comparison, applicant Smith was clearly not a

member of Griffin’s incumbent correctional officer class,

nor was he a member of Dejerinett’s clerieal elass. And

unlike Parker, Smith had never filed a timely HEOC

charge nor exhausted his Tithe VIL administrative reme-

dies, and could not have filed his own lawsuit. Thus Smith

was neither a proper class member nor a proper inter-

venor, and the tolling rules do not apply to im.

There are other reasons why the tolling rules do not

apply to Smith. Griffin’s subjective claims arose in 1974,

and he filed his class action in 1979. Smith’s objective

testing claim did not even arise until he took and failed

the test, in July Isl, secen years atier Griftin’s claims

arose, Smith then slept on his rights another year, until

July 1982, when he attempted to file an EEOC charge

and intervened to save the testing claim. However, since

Smith had waited a year to file his charge, the EOC

dismissed it for lack of jurisdiction. Therefore, Smith

was out of time at the EEOC before he intervened, and

there is no time left to toll.

Petitioners seem to believe that Crown, Cork & Seal

excuses Smith’s failure to exhaust administrative reme-

dies, or somehow tolls the time in which Smith may file

an EKOC charge. That view is incorrect. The tolling

rules apply to time limits for secking federal court inter-

ventions, or for filing new federal court actions, or for

taking federal court appeals, not to the HMOC’s admin-

istrative ISO day filing period. In effect, petitioners have

asked this Court to overrule the EEOC’s 1982 determina-

tion that Smith’s charze was untimely filed. Petitioners

cite no authority for their novel request.

Petitioners’ expansive view of the tolling rules would

encourage anyone to file a spurious class action, and there-

by toll the time or excuse the need for filing EOC charges

altogether, for all asserted members of the spurious class

for years, even decades. (Griffin’s claims arose fourtecu

years ago.) Petitioners cite no authority to support their

novel theory of open-ended Title VII class action litiga-

tion, because there is none.

Several members of this Court have warned against

this kind of abuse of the tolling rules. See concurring

opinion of Justice BLACKMUN, in American Pipe & Con-

struction Co. v. Utah, supra, 414 U.S. at 561; also see,

concurring opinion of Justice POWELL, with whom Jus-

tice REHNQUIST and Justice O’CONNOR joined, in

Crown, Cork & Seal v. Parker, supra, 462 U.S. at 354, 350.

Finally, the holding of this Court in Zipes v. Trans

World Airlines, Inc., 455 U.S. 385 (1982), which basically

sanctioned the single filing rule, is not in conflict either.

In Zipes, the issue was whether all putative class mem-

bers had to file timely HEOC charges in order to share in

the relief already obtained by the 30 women who appar-

ently had filed timely charges. In this case administra-

tive remedies have never been exhausted on the testing

issue by anyone. Petitioners cite no authority holding

that Tithe VIL class Hability can be established, or that

class relief can be given in the absence of a proper class

representative who has standing and has exhausted reme-

dies on the underlying class claim.

Respondents have always denied all allegations of ex-

haustion of administrative remedies, and have repeatedly

objected to plaintiffs’ lack of Article III] standing to liti-

gate the testing claim, from the beginning. Had they

listened, petitioners might have found someone with stand-

ing, and then could have exhausted administrative reme-

dies; but they did not do so. Instead, plaintiffs and inter-

venor Smith have intentionally avoided their requirement

to exhaust Title VII administrative remedies for years,

and cannot do so now.

Therefore, it is far too late in this litigation for peti-

tioners to demand equitable waiver of the necessary con-

dition precedent which they intentionally ignored for years,

to their own detriment. Smith has not and cannot allege

that ‘‘all conditions precedent have been fulfilled’’, as

required, 823 F.2d at 1482, n.12, and 823 F.2d 1492; Jack-

son v. Seaboard Coast Line RR, 678 F.2d 992, 1010, 1011

(11th Cir. 1982). There is no conflict with Zipes.

The Eleventh Circuit has reviewed all the facts, con-

sidered all the authorities and all of petitioners’ argu-

ments, and has properly vacated the district court’s orders

below. Therefore, this Court should deny the writ.

a oO ——

CONCLUSION

Because the questions raised by petitioners present

no conthiet with decisions of other federal courts of appeals

on the same subject matter, no conflict with applicable

decisions of this Court, and no important questions of

federal law which have not been but should be settled by

this Court, respondents respectfully request that plain-

tiffs’ petition for writ of certiorari be denied.

Respectfully submitted,

Bruce ALEXANDER MINNICK

Counsel of Reeord

DovcGuas A. Mano

CnHarues T. CoLLETre

Mane, Retr & Couette, P.A.

Post Office Box 11127

Tallahassee, Florida 32302

(904) 222-7710

Ropert A. BuTrerwortH

Attorney General of Florida

Harry F. Cites

Assistant Attorney General

DEPARTMENT OF Lecat Arras

Room 1501, The Capitol

Tallahassee, Florida 32301

(904) 488-1573

Attorneys for Respondents

April 1988

a — poremyreenrays EP REPO a APONTE eee vert aes ao es ea oa IO al

APPENDIX

TABLE OF CONTENTS

App.

Order of the Distriet Court directing entry

of judgment, entered August 25, 1983

Plaintiffs’ Motion to Alter or Amend the

Judgment, filed September S, 1985

Order of the District Court directing notice to

the subelass and certifying interlocutory appeal,

entered October 3, 1985

Decision of the Eleventh Circuit Court of Appeals

(as amended), entered August 7, 1987

Order of the Bleventh Cireuit Court of App als

denying petition(s) for rehearing and suggestion (s)

for rehearing in bane, entered October 50, LOST

Plaintiffs’ motion for leave to amend complaint,

filed February 10, 1988

Piaintiffs’ motion for leave to amend

intervenor Smith’s complaint,

filed February 10, 1988

Plaintiffs’ motion to intervene new parties and

class representatives filed February 10, 195s

Plaintiffs’ motion to recertify class and

request for evidentiary hearing

filed February 10, 1988

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN and TCA 79-1016-WS

HENRY L. DEJERINETT,

ORDER

Plaintiffs, -

(Filed Aug.

and 25, 1983)

ALVIN SMITH,

Intervenor,

all individually and on behalf of all

others similarly situated,

Vv.

LOUIS L. WAINWRIGHT, individ-

ually and in his official capacity as

Secretary of the Department of Cor-

rections of Florida; THE STATE

OF FLORIDA; THE DEPART-

MENT OF CORRECTIONS, and any

predecessor or successor ageney; and

RAYMOND W. GEARY, individually

and in his official capacity as attor-

ney for the Department of Correc-

tions of Florida,

Defendants.

In accord with a Memorandum Opinion of this date,

it is ORDERED:

1. This action is hereby finally certified as a class

action with Peners L. Griffin, Henry L. Dejerinett, and

~ e™

App. 2

Alvin Smith as named plaintiffs and intervenor represent-

ing a class of all past, present, and potential black em-

plovees of the Florida Department of (‘orrections. The

only emplovees barred from the class are those who left

th CMploVv of the Florida Department of Corrections more

than 300 days before the filing of Griffin’s 1975 charge.

2. Judement is for the defendants on the class claim

that since March 24, 1972, the Florida Department of Cor

rections has discriminated and continues to diseriminate

in its policies and practices against past, present, and po

tential black employees,

o. Jdudement is for the defendants on plaintiff Peners

L. Griffin’s individual claim of racially discriminators

CMmiplovinent practices,

t+. Judgment is for the defendants on plaintiff Henry

L. Dejerinett’s individual claim of racially discriminatory

hint iy pract ices,

o» Judgement is for the plaintiffs on the issue that

the correctional officer written examination previously

uiilized by defendants has an adverse impact on class

members and is not justified by business necessity.

6. ‘The parties shall meet in a good faith effort to

<ettle the form of veliel for the court’s finding of liability

regarding the correctional officer written examination.

The parties shall report to the court no later than thirty

working days trom the date of this order whether they

were able to settle this issue or uf not, their sugevestion as

tothe best way to pre eed on this

isstle,

i. The parties shall file a status report no later than

thirty working davs hence informing the court when

(ornits 1 | anid ian Will be ready fon trial

‘

~ } } : 11 it}

i ‘ i

' } }

a ; ‘ '

, davs of tl er whether tl have been

i . ; ?

) ( 0) rif ? ) j qr? — l PS

; vv? nt apenr

I! aCCul

DONE AND ORDERED this 25th day of August,

s William Stafford

WILLIAM STAFFORD

CHIEF JUDGE

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN, et al., ete.,

Plaintiffs, Case No.

TC A-79-1016

¥s,

LOUIE L. WAINWRIGHT, ete,

et al.,

)

) (Filed Sept.

) 8, 1983)

)

Defendants.

MOTION TO ALTER OR AMEND THE JUDGMENT

Plaintiffs move the Conrt for an order altering or

amending the judgement in this case in the following re-

spects, and state:

1. The judgement entered by the Court in this case

should be vaeated, since Rule 54 precludes the entry of

judgment as to fewer than all of the claims and all of the

parties, unless the Court has made an express determina-

tion there is no just reason for delay. The Court has not

made such an express determination, and it would be an

extraordinary burden upon all of the parties to have this

case piecemeal among the district and appellate courts.

Moreover, unless the judgment is vacated these proceed-

ings may become further complicated by the necessity for

prudent counsel to file a purely protective appeal.

2. The Court has completely overlooked Plaintiff

Butler in its opinion, order, and judgment. Mr. Butler’s

claims were largely uncontested by the Defendants.

3. Plaintiff Griffin presented a number of distinetly

different claims to the Court tor adjudication. The

ADPp. ov

C‘ourt’s opinion does not address most of these. These

claims are outlined in Plaintiffs’ proposed findings of facet

and conelusions of law.

4. The Court is bound by decisions of the United

States Supreme Court. Moreover, this cireuit operates un-

der the rule of binding precedent. Some of the Court’s

statistical analyses violate rules of the United States Su-

preme Court and binding precedent of the Eleventh Cir-

cuit Court of Appeals. In International Brotherhood of

Teamste 7s Vv. United States, 431 U.S. 324 (1977), the Su-

preme Court held a plaintiff may prove a prima facie ease

of discrimination by comparing incumbent employees with

the reasonably available labor pool. The burden then

shifts to the Defendant to rebut the showing by demon

strating Plaintiff’s proof is either insignificant, or the

Defendants’ hiring practices have been racially neutral

during the liability period. In this ease, utilizing Dr. Ha-

worth’s availability pool of 15 to 16 percent, liability is

demonstrated through fiseal 1977-78. If one compares the

incumbent workforce in June of 1977 (Plaintiffs’ Exhibit

A-5) with the percentage of blacks Dr. Jlaworth believed

to be in the reasonable labor pool, statistically significant

disparities are shown:

No. of Standard

Total Black Benchmark Deviations

CO ] 2518 336 103 2.4%

As a benchmark, I’ve used 15.3 percent, the percentage

of blacks in Florida’s population, from the 1970 census.

Kither 15% or 16% produces similar results. Under Team-

sters the burdeu of showing racially neutral hiring during

the liability period was the Defendants. They did not meet

this burden.

App. 6

Results are the same for earlier periods. Plaintiffs’

Exhibits A-3 and A-4 ceive the following results:

No. of Standard

Total Black Benchmark Deviations

1972 1066 5D 153 9.20

iseal Yr

1974-75 1648 9()2 153 3.43

The Court also rejected gross hiring data produced

by Plaintiffs. This rejection by the Court violates bind-

ing precedent of this cireuit. The Defendants were under

a statutory duty to maintain accurate hiring data. Their

failure to do so should not bring disrepute upon the Plain-

tiffs’ case. In Fisher v. Proctor and Gamble Manufac-

turing Co., 615 F.2d 527 (Sth Cir, 1980), the Defendant at-

tempted to defeat statistical data by arguing it was Plain-

tiffs’ responsibility to prove the percentage of blacks with

the necessary skills and qualifications among applicants.

The Court held:

Mindful of Hazelwood we nevertheless find that the

Plaintiffs’ statistics are adequate to establish a prima

facie case. First, a prima facie case may be shown

without evidence of qualifications where the inference

of discrimination is supported by a compelling level of

racial underrepresentation in a sizeable work force.

(citations omitted).

Fisher at p. 5444.

The incumbent data, even using Defendants’ expert esti-

mate of the available labor pool, shows a compelling level

of discrimination in a sizeable workforce. Although the

Defendants failed to meet their statutory duty to preserve

hiring data, the data they did maintain shows a compelling

App. @

level of racial underrepresentation in a sizeable workforce.

To hold otherwise is contrary to binding precedent of this

circuit.

SUPPORTING MEMORANDUM

The foregoing discussion adequately meets the local

rule requirement for a supporting memorandum. How-

ever, these issues have been briefed in Piaintiffs’ proposed

findings of fact and conclusions of law, and in the Plain-

tiffs’ most recent motion for partial summary judgment,

filed at the conclusion of the statistical stage, tiled Sep-

tember 7, 1982.

Respectfully submitted,

/s/ Jerry G. Traynham

Jerry G. Traynham

PATTERSON & TRAYNHAM

Attorneys at Law

1215 Thomasville Road

P.O. Box 4289

Tallahassee, Florida 32315

(904) 224-9181

Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing was furnished, by prepaid U.S. Mail to

Bruce A. Minnick, Esq., Assistant Attorney General, De-

partment of Legal Affairs, The Capitol, Suite 1501, Talla-

hassee, Florida 32301, this 6th day of September, 1983.

s/ Jerry G. Traynham

Jerry G. Traynham

App. 8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN, )

et al., ete., )

)

Plaintiffs, )

)

vs. )

) Case No. TCA

LOUIE L. WAINWRIGHT, ) 79-1016

ete., et al., )

)

Defendants. )

)

is )

ORDER

(Filed Oct. 3, 1985)

In its Order entered August 25, 1983, this Court re-

affirmed its earlier ruling of July 30, 1982, regarding the

illegality of the use by the Defendants of the Correctional

Officer | written examination and directed the parties to

meet in a good faith effort to settle the form of the relief.

In status conferences held November 8, 1983, and Sep-

tember 11, 1985, the Court inquired as to the initial steps

recommended by the parties for Stage Il individual relief

procedures. The Court is now satisfied that the following

procedures are appropriate.

IT IS NOW ORDERED:

1. The present subclass for purpose of determina-

tion of individual relief from the effects of the adverse

impact of the Correctional Officer | examination consists

of all black persons who, between March 24, 1972 and the

App. 9

present, took and failed the Correctional Officer I written

examination. The Defendants have contended that there

is no subclass because there is no subclass representative

who properly can prosecute this adverse impact claim. A\|-

though the Court has ruled othewise, it is of the opinion

that this determination involves a controlling question of

law as to which there is substantial ground for difference

of opinion and that an immediate appeal from this order

may materially advance the ultimate termination of this

litigation. ‘The parties have agreed, and the Court deter-

mines, that the process of giving notice to the subclass

and filing individual claims shall go forward even if an

appeal is taken, on the basis of this court’s certificate,

pursuant to 28 U.S.C. Section 1292(b). However, unless

otherwise ordered by this Court or by the Court of Ap-

peals, no determination of individual claims shall be made

during the pendency of the appeal.

2. The procedure for determination of individual re-

lief may include class-wide mathematical models or for-

mulas, individual hearings or a combination of these and

other procedures. A decision as to the most appropriate

procedure to implement in this litigation shall be deferred

until the number of individual claims and their distribu-

tion by time and by geography are known. It is now ap-

propriate to give notice to the subclass and to permit in-

dividual claims to be filed. At the conclusion of the period

established for filing individual claims, counsel for the

parties are directed to report to the Court concerning

recommendations for additional procedures to be followed.

3. Notice shall be given by mail, by posting, and by

publication.

App. 10

4. Notice by mail shall be given to all subclass mem-

bers whose names and last known addresses can be deter-

mined from records of the Defendants and from the avail-

able records of any other agency of the State of Florida

or of the United States. The parties and their counsel are

directed to cooperate in the effort to identify subclass

members from these records. The Defendants and their

counsel are directed to use their good offices to insure that

all such reeords are reasonably accessible to counsel for

Plaintiffs, with the intent to minimize or ehminate the

need for formal discovery in this process. The Defendants

shall be responsible for compiling and maintaining a mas-

ter list of all subclass members whose names and last

known addresses are determined by the means described

in this paragraph. In addition, the Defendants shall com-

pile and maintain a ‘‘race unknown’? list of all persons

who, by the means described in this paragraph, can be

determined in to have taken and failed the Correctional

Officer | written examination, and whose names and ad-

dresses can so be determined, but whose race is unknown.

Notice by regular mail, with a copy of the claim form, shall

be provided to all persons named on the master list and

on the ‘trace unknown”? list.

5. In the event any notice sent by mail is returned

undelivered by the United States Postal Service, an at-

tempt shall be made to determine a more recent or addi-

tional address or addresses for the person to whom such

notice is directed, using those records described in para-

graph ‘4’? and, where appropriate, telephone, city, and

other available directories. ‘To the extent such additional

addresses are determined, additional notices and claim

forms shall be mailed.

App. 11

6. A form of the notice by mail and of the claim form

are attached to this order.

7. The Defendants shall compile a list of all news-

papers, periodicals, and other publications used by them

in the reeruitment of applicants for employment. Plain-

tiffs may add to this list the names of other publications.

Any disagreement as to publications to be listed shall be

presented to the Court for resolution.

8. A copy of the notice by publication is attached

to this stipulation. This notice shall be placed as an ad-

vertisement in the regular news section of each listed pub-

hieation. In daily newspapers, the advertisement shall be

run no fewer than four times, including two Mondays and

two Thursdays. In weekly publications, the advertisement

shall be run no fewer than two times. In monthly publi-

cations, the advertisement shall be run at least once. The

size of the advertisement in full-sized newspapers shall be

no less than one-quarter of a page. In publications of

tabloid or other size, the advertisement shall be not less

than one-half page in size. A copy of the advertisement

shall also be given to each employee of the Department of

Corrections, which may be aecomplished by publication,

full page, on the outside of either the front or the back

eover of the Correctional Compass.

9. The Defendants shall compile a list of all public

or private agencies, organizations, and associations to

whom notice of Department of Corrections job vacancies

are sent or which are otherwise used by the Department in

the employee recruitment process. Plaintiffs may add the

names of other agencies, organizations, or associations to

this list. Any disagreement as to inclusion on this list

App. 12

shall be presented to the Court for resolution. Copies of

the notice by publication, suitable for posting, and of claim

forms, shall be sent by the Defendants to each such organi-

zation listed with a request that the notices be posted or

otherwise made public and that claim forms be given to

persons requesting them. Copies of the notice shall also

be posted on every bulletin board or other posting place

used by the Department of Corrections to disseminate in-

formation to employees and/or to applicants for employ-

ment. Copies of the claim form shall be placed in all per-

sonnel offices of the Department of Corrections.

10. Plaintiffs may prepare a press release concern-

ing the claims procedure and may distribute it to the press.

Prior to release, the contents shall be reviewed by the De-

fendants.

11. The schedule for the giving of notice and filing

of claims is:

a. The Defendant shall prepare, serve and file with

the Court (i) the initial master list of subclass members

and list of examination failees whose race is unknown,

compiled in the manner described in paragraph ‘‘4’’, (ii)

the list of newspapers, periodicals, and other publications,

described in paragraph ‘‘7’’, and (iii) the list of agencies,

organizations, and associations, described in paragraph

“9°? no later than December 6, 1985. Plaintiffs may serve

and file lists of additions te the Defendants’ respective

lists no later than January 10, 1986. If the Defendants

object to any of Plaintiffs’ additions to items ‘‘ii’’ and

‘iii’’, they shall serve and file their objections no later

than January 24, 1986.

App. 138

b. Notices shall be mailed to all persons on the

amended master list and ‘trace unknown’’ list no later

than February 14, 1986.

ce. Publication of the notice, as deseribed in para-

graphs ‘‘7’? and ‘‘8’’, and delivery of notices and forms,

as described in paragraph ‘‘9’’, shall occur during the

months of February and March, 1986. However, notices

and forms shall be distributed to all personnel offices of

the Department of Corrections no later than January 31,

1986.

d. The process of attempting to locate additional ad-

dresses with respect to those subclass members whose no-

tices are returned undelivered by the U.S. Postal Service,

described in paragraph ‘‘5’’, shall be a continuing one.

Defendants are directed to make available sufficient para-

legal and clerical staff to perform these tasks during the

entire notice period.

e. The last day upon which a claimant may file a

claim shall be June 2, 1986. Incomplete claim forms filed

on or before that date shall be treated as though they were

complete, for the purpose of determining whether the filing

deadline has been met, if they provide enough information

so that the identity of the claimant may be determined.

f. Upon showing cause. any party may apply to the

Court for an extension or modification of this schedule.

12. The cost of giving notice shall be borne by the

Defendants.

App. 14

DONE and ORDERED this 2nd day of October, 1985,

at Tallahassee, Florida.

/s/ William Stafford

WILLIAM STAFFORD

Chief Judge

App. 10

Peners L. GRIFFIN and Henry L.

Dejerinett, Plaintiffs-Appellees,

Richard L. DUGGER, ete., et al.,

Defendants-Appellants.

No. 85-3831.

United States Court of Appeals,

Eleventh Cireuit.

Aug. 7, 1987.

As Amended Sept. 23, 1987.

Action was brought charging Florida Department of

Corrections with discrimination on behalf of class and

motion was brought to decertify class. The United States

District Court for the Northern District of Florida, No.

79-1016, William Stafford, Chief Judge, denied motion to

decertify class and allowed intervention of applicant for

employment and appeal was taken. The Court of Appeals,

Tjoflat, Cireuit Judge, held that: (1) incumbent employee

could not represent, in civil rights action, class that in-

cluded applicants, and (2) plaintiff who filed charge with

EEOC and non-filing plaintiff were not sufficiently sim-

ilarly situated to allow intervention under single filing

rule.

Vacated.

Hatchett, Circuit Judge, dissented.

Jim Smith, Atty. Gen., Bruce Alexander Minnick, Asst.

Attys. Gen., Mitchell D. Franks, Tallahassee, la., for de-

fendants-appellants.

App. 16

Harry L. Witte, Jerry G. Traynham, Tallahassee, Fla.,

for plaintiffs-appellees.

Appeal from the United States District Court for the

Northern District of Florida.

Before TJOFLAT and HATCHETT, Cireuit Judges,

and KATON*, Senior District Judge.

TJOFLAT, Cireuit Judge:

In April 1971, Peners L. Griffin became the first black

Road Prison Officer at the Tallahassee Road Prison,

operated by the Florida Department of Corrections

(FE DOC or Department). Beginning in 1973, Griffin fre-

quently sought promotion to higher-grade correctional of-

ficer positions, as well as various other positions. On each

occasion, the FDOC turned him down.

In December 1974, Griffin’s supervisor fired him for

disciplinary reasons. The next day, the Regional Super-

intendent reinstated Griffin because the supervisor had

not followed proper termination procedures. In early

1975, the FDOC again terminated Griffin’s employment,

without notice, for disciplinary reasons. He appealed the

termination to the State of Florida Career Service Com-

mission. The Commission found no just cause for Grif-

fin’s discharge and ordered the FDOC to reinstate him

with back pay. The Florida District Court of Appeal af-

firmed the Commission’s decision, and the FDOC rein-

stated Griffin to his position.

* Honorable Joe Eaton, Senior U.S. District Judge for the South-

ern District of Florida, sitting by designation.

EE ——————

App. li

Soon after his reinstatement, Griffin filed a com-

plaint with the FDOC’s Equal Employment Opportunity

Program Office, charging that his two dismissals were

racially discriminatory. An investigator in that office

wrote Griffin a month later and informed him of his con-

clusion that racial discrimination had not been a factor

in the dismissals. Within a day or two of having received

that letter, Griffin filed a complaint with the Equal Em-

ployment Opportunity Commission (EEOC), detailing the

events leading up to his allegedly discriminatory dis

charges. A notation at the beginning of Griffin’s com-

plaint, probably made by an EEOC counselor, describes

Griffin’s allegations of racial discrimination as also en-

compassing ‘‘[s]incerity of recruiting, hiring, and _ pro-

moting of minority groups within the Florida’s Division

of Adult Corrections. Specific attention within the Com-

munity Service Program.’’

Griffin asked the EEOC for a right-to-sue letter and

received one in July 1979. On October 15, 1979, Griffin

brought this action in the district court against Louis L.

Wainwright, as Secretary of the FDOC, the FDOC, and

the State of Florida. Griffin alleged that the FDOC had

denied him several promotions because of his race. He

also alleged that the FDOC impermissibly considered race

in all of its promotion decisions, as well as in its hiring

and job assignment decisons. In hring correctional of-

ficers, according to Griffin, the Department used written

entry-level examinations having a detrimental impact upon

blacks.!

1. The district court found the following facts concerning the

FDOC's written entry-level examination: ‘Every person seek-

(Continued on following page)

App. Is

Griffin sued ‘‘individually and on behalf of all others

similarly situated,’’ pursuant to Rule 23(b)(2) of the Fed

eral Rules of Civil Procedure, seeking declaratory and

injunctive relief and money damages under Title VIL of

the Civil Rights Act of 1964, 42 U.S.C. 27)We to 2OUOUe-17

(1976) (eurrent version at 42 U.S.C. 6§ 2000e to 200V0e-17

(1982)), 42 U.S.C. £1981 (1976), and 42 U.S.C. § 1983

(1976) The elass identified in his complaint was com

Continued from previous page)

ing a position as a correctional officer is required to take a

written examination. The Department of Administration de-

veloped the Correctional Officer | entry level test which con-

sists of seventy-five questions. An applicant must receive

a score of at least thirty-eight for employment consideration.

2. § 1981. Equal rights under the law

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 tor

the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, pen-

alties, taxes, licenses, and exactions of every kind, and to no

other.

3. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris

diction 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, sued in equity,

or other proper proceeding for redress. For the purposes of

this section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of

the District of Columbia

Griffin's complaint stated that his action was brought

“nursuant to 42 U.S.C. § 1983, to redress the deprivation of

Continued on following page)

App. LY

posed ‘‘of all past, present and potential black American

citizens and residents who have been, are or may be em-

ployees of the Defendants or applicants for employiment.’”

On June 17, 1980, Griffin obtained leave of court to

amend his complaint to add Henry L. Dejerinett as a

party-plaintiff and class representative. Dejerinett, who

is black, had applied for an FDOC clerical position but

was not hired” On March 10, 1981, based on a stipulation

hetween the parties® and without a hearing, the district

(Continued from previous page)

the Plaintiff GRIFFIN’s property interests in his employment,

without due process of law.’ We assume that Gritlin’s section

1983 claim also encompassed the theory that the FDOC’s

conduct amounted to invidious discrimination in violation

of the fourteenth amendment’s equal protection clause.

4. The claims described in the text were presented in count |

of Griffin's complaint, which contained two counts. Count

Il, which is not pertinent to this appeal, alleged that Griffin

was denied due process and equal protection of the law when

the FDOC terminated his employment in 1975; Griffin al-

leged that the FDOC (a) failed to give him notice of the

reason for his discharge and an opportunity to be heard be-

fore terminating his employment and (2) discharged him be-

cause of his race. Count Il further alleged that because Chap-

ter 110 of the Florida Statutes, which governs state employ-

ment did not require the Department to give him notice, a

hearing, or back pay, Chapter 110 was unconstitutional.

Dejerinett subsequently filed a timely charge of racial dis-

crimination against the FDOC with the Florida Commission

on Human Relations, a deferral agency for the EEOC. He

requested and received a right-to-sue letter from the EEOC

in April 1980.

6. The parties stipulated, among other things, that

(tlhe allegations of race discrimination in the ... Com-

plaint involve questions of law and tact which, under cur-

rent law in the United States Court of Appeals, Fifth Cir

cuit, are common to the class, including Statistical evi-

(Continued on following page)

App. 20

court preliminarily certified the case as a class action with

Griffin and Dejerinett representing the class of ‘‘all past,

present, and potential black employees of the State of

Mlorida Department of Corrections.’’

On June 25, 1982, the defendants filed a ‘‘Notice Re-

garding the Adequacy of the Preliminary Class Certified,’”’

which called to the court’s attention a Supreme Court de-

cision rendered eleven days previously. That decision,

General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2564,

72 L.kd.2d 740 (1982), announeed the appropriate stan-

dards courts should apply when determining class action

certifications in the context of a Title VII suit, reversing

a former -lifth Cireuit decision permitting ‘‘across-the-

hoard’’ class actions that had been binding precedent in

the new Eleventh Cireuit.?, On July 8, 1982, the defendants

moved the court, in light of Falcon, to vacate its order

certifying the class.

To avoid the risk that the district court might vacate

its order certifying the class, Griffin and Dejerinett took

steps to obtain an additional named plaintiff to represent

those in the class who had applied for the position of cor

(Continued from previous page)

dence, evidence concerning the employment system of

the State of Florida Department of Corrections, and the

common legal principles appiied to claims of race dis-

crimination. The parties maintain their right to brief these

issues On appeal, if any.

The parties also ‘‘reserve[d] the right to move to decertify

or limit the class, or to establish subclasses, at any time dusing

the pendency of this litigation.”

7. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), this court adopted as binding precedent

all decisions of the former Fifth Circuit handed down prior to

October 1, 1981

App. 21

rectional officer, failed the written entry-level examina-

tion, and not been hired. Accordingly, on July 8, 1982,

Alvin Smith, joined by Griffin and Dejerinett, moved the

court to intervene as an additional named plaintiff and

class representative. In 1980 and 1981, Smith, who is

black, applied for the same entry-level position that Grif

fin held. The FDOC did not hire Smith, because he did

not have a high school diploma or a general equivalency

diploma (GED), a prerequisite for employment as a cor-

rectional officer. Smith later obtained a GED, but when

he reapplied with the FDOC in July 1981, he failed the

written entry-level correctional officer examination and

was again denied the job.’

On July 28, 1982, the district court denied the defend-

ants’ motion to decertify the class and permitted Smith to

intervene? because

Smith, [as] an unsuccessful applicant, certainly has

an interest in this suit which seeks to challenge de-

fendants’ employment practices, ineluding hiring.

Unless he is permitted to intervene, his interest may

not be adequately represented by the named parties.

Mr. Smith eases this ecourt’s concern that the class

claim against the [FF DOC]’s objective criteria was not

8. Smith never filed a timely charge of racial discrimination

with the EEOC.

9. In its dispositive order, the district court did not address the

intervenor’s complaint, which was filed with Griffin, Dejeri-

nett, and Smith’s joint motion for leave to allow Smith to

intervene. Apparently, the court treated the intervenor’s com-

plaint as an amendment to Griffin and Dejerinett’s complaint

because it ordered that the “action shall continue to be cer-

tified as a class with PENERS L. GRIFFIN, HENRY L. DEJERI-

NETT, and ALVIN SMITH as named plaintiffs representing a

class of all past, present, and potential black employees of

the State of Florida Department of Corrections.”

App. 22

fairly and adequately protected by the named plain-

tiffs. Alvin Smith is a proper representative for po-

tential black employees.

As to the defendants’ contention that Smith could not be

a class representative because he had not timely filed an

EEOC complaint, the district court found that the charges

of discrimination Griffin had filed with the EEOC included

“the hiring claim in addition to promotion, job classifiea-

tion, diseipline, and termination claims.” The court thus

reasoned that the Fifth Circuit's single-filing rule excused

Smith from having failed to exhaust his administrative

remedies. See Oatis v. Crown Zellerbach Corp., 398 F.2d

496 (5th Cir.1968) (**[O}nee an aggrieved person raises

a particular issue with the EEOC which he has standing

to raise, he may bring an action for himself and the class

of persons similarly situated....”).

On July 30, 1982, the district court entered partial

summary judgment for the plaintiffs, including Griffin

and Dejerinett on the liability issue as to the written entry-

level examination.’ The court found that the FDOC

examination ‘‘has a disparate impact upon class members

which has not been justified by business necessity.” The

plaintiffs had sought summary judgment on two other is-

sues—the class hiring and promotion claims—but the court

denicd summary judgment on those issues because they

presented material issues of fact.

A trial was held over the five-week period beginning

August 17 and ending September 17, 1982. The court

entered judgment on August 25, 1983, disposing of the fol-

lowing issues in favor of the defendants: whether the

10. The district court said it would consider the issue of relief

at trial.

App. 23

FDOC’s policies and practices discriminated against past,

present, and potential black employees; whether the

I’ DOC’s employment practices as to Peners L. Griffin

were racially discriminatory; and whether the /DOC’s

hiring practices as to Henry L. Dejerinett were racially

discriminatory. The court entered judgment for the plain-

tiffs on the liability issue concerning the correctional of-

ficer examination, on which it had previously granted sum-

mary judgment for the plaintiffs.'' The issue of relief

for the class of black persons who took and failed the cor-

rectional officer written examination is still pending. The

parties agreed that notice should be given to the affected

members of the class and to seek interlocutory appeal of

the district court’s decision permitting Griffin, Dejerinett,

and Smith to serve as named plaintiffs for a class that in-

cluded applicants with testing claims. We granted this

appeal pursuant to 28 U.S.C. §1292(b) (1982 & Supp. Ll

1985). Because we conclude that the district court incor-

rectly applied the dictates of Falcon, we vacate the district -

court’s order certifying the class.

As with any private class action, the legitimacy of a

private Title VIL suit brought on behalf of a class depends

upon the satisfaction of two distinct prerequisites. First,

there must be an individual plaintiff with a cognizable

claim, that is, an individual who has constitutional stand-

11. The district court did not render judgment on Griffin's

federal due process and equal protection claims or on his

pendent state law claim for malicious prosecution (which

was first raised in count Ill of Griffin’s first amended com-

plaint). Those claims are still pending in the district court.

App. 24

ine to raise the claim (or claims) and who has satisfied the

procedural requirements of Title VII. Second, the re-

quirements of Rule 23 of the Federal Rules of Civil Proce-

dure must be fulfilled; in other words, the individual plain-

tiff must be qualified to represent the members of the class

in accordance with the four prerequisites of Rule 23(a),”

and the action must be one of the three types Rule 25(b)

identifies.'* We emphasize that any analysis of class cer-

12. This circuit has held that the conditions precedent to fil-

ing a Title VII suit are not jurisdictional, but rather are akin

to a statute of limitations. A plaintiff’s failure to satisfy the

conditions precedent does not, standing alone, deprive fed-

eral district courts of subject matter jurisdiction. Jackson v.

Seaboard Coast Line R.R., 678 F.2d 992 (11th Cir.1982). Nev-

ertheless, ‘a plaintiff must generally allege in his complaint

that ‘all conditions precedent to the institution of the law-

suit have been fulfilled.’ /d. at 1010 (quoting Fed.R.Civ.P.

9(c)).

13. Rule 23(a) provides as follows:

(a) Prerequisites to a Class Action. One or more mem-

bers of a class may sue or be sued as representative parties

on behalf of all only if (1) the class is so numerous that

joinder of all members is impracticable, (2) there are ques-

tions of law or fact common to the class, (3) the claims or

defenses of the representative parties are typical of the

claims or defenses of the class, and (4) the representative

rab will fairly and adequately protect the interests of the

class.

14. Rule 23(b) provides as follows:

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of subdi-

vision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against

individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect

to individual members of the class which would establish

incompatible standards of conduct for the party opposing

the class, or

(Continued on following page)

App. 25

tification must begin with the issue of standing and the

procedural requirements of Title VII. Thus, the threshold

question is whetber the named plaintiffs have individual

standing, in the constitutional sense, to raise certain issues.

See Brown v. Sibley, 650 F.2d 760, 771 (Sth Cir. Unit A

July 1981) (‘*‘This constitutional threshold must be met

before any consideration of the typicality or claims or com-

monality of issues required for procedural reasons by Fed.

R.Civ.P. 23.’’). Only after the court determines the issues

for which the named plaintiffs have standing should it ad-

dress the question whether the named plaintiffs have rep-

resentative capacity, as defined by Rule 23(a), to assert

the rights of others. See generally 2 A. Larson & L. Lar-

son, Employment Discrimination §& 49.50-.51 (1986 & Supp.

Nov. 1986).

(Continued from previous page)

(B) adjudications with respect to individual members

of the class which would as a practical matter be disposi-

tive of the interests of the other members not parties to

the adjudications or substantially impair or impede their

ability to protect their interests; or

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

to act on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact

common to the members of the class predominate over

any questions affecting only individual members, and that

a class action is superior to other available methods to:

the fair and efficient adjudication of the controversy. The

matters pertinent to the findings include: (A) the interest

of members of the class in individually controlling the

prosecution or defense of separate actions; (B) the extent

and nature of any litigation concerning the controversy al-

ready commenced by or against members of the class; (C)

the desirability or undesirability of concentrating the liti-

gation of the claims in the particular forum; (D) the diffi-

culties likely to be encountered in the management of a

class action.

App. 26

Under elementary principles of standing, a plaintiff

must allege and show that he personally suffered injury.

See Payne v. Travenol Laboratories, Inc., 565 F.2d 895,

898 (Sth Cir.) (**To meet the requirement for standing un-

der Article III, a plaintiff must establish either that the

asserted injury was in faet the consequence of the defen-

dant’s action or that the prospective relief will remove the

harm.**) (citation omitted), cert. denied, 489 U.S. 835, 99

S.Ct. 118, 58 L.Ed.2d 131 (1978); Thurston v. Dekle, 531

F.2d 1264, 1269 (Sth Cir.1976) (‘The thresheld case-or-

controversy inquiry is whether there existed a named plain-

tiff with standing to raise the issue before the court.’’),

vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57

L.Ed.2d 1144 (1978). If he cannot show personal injury,

then no article III] case or controversy exists, and a fed-

eral court is powerless to hear his grievance. This indi-

vidual injury requirement is not met by alleging ‘‘that in-

jury has been suffered by other, unidentified members of

the class to which [the plaintiff] belong|s] and which [he]

purport[s] to represent.’’ Warth v. Seldin, 422 U.S. 490,

502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975); see also

Minority Police Officers Ass'n v. City of South Bend, 721

F.2d 197, 202 (7th Cir. 1983) (‘‘ Feelings of solidarity do

not confer standing to sue.’’). Thus, a plaintiff cannot in-

clude class action allegations in a complaint and expect to

be relieved of personally meeting the requiremenis of con-

stitutional standing, ‘‘even if the persons described in the

class definition would have standing themselves to sue.’’

Brown v. Sibley, 650 F.2d 760, 771 (Sth Cir. Unit A July

1981) ; see also Vuyanich v. Republic Nat’l Bank, 723 F.2d

1195, 1200 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct.

App. 27

067, 83 L.ld.2d 507 (1984). A named plaintiff in a elass

action who eannot establish the requisite ease or contro-

versy between himself and the defendants simply cannot

seek relief for anyone—not for himself, and not for any

other member of the class. O’Shea v. Littleton, 414 U.S.

488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). More-

over, it is not enough that a named plaintiff can establish

a case or controversy between himself and the defendant

hy virtue of having standing as to just one of many claims

he wishes to assert. Rather, each claim must be analyzed

separately, and a claim cannot be asserted on behalf of a

class unless at least one named plaintiff has suffered the

injury that gives rise to that claim. This relationship be-

tween standing and the class action has been discussed in

some detail by the Supreme Court:

It is not enough that the conduct of which the plaintiff

complains will injure someone. The complaining party

must also show that he is within the class of persons

who will be concretely affected. Nor does a plaintiff

who has been subject to injurious conduct of one kind

possess by virtue of that injury the necessary stake in

litigating conduct of another kind, although similar, to

which he has not been subject.

Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 2783,

73 L.Ed.2d 534 (1982) (citing Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965, 1968-69, 32 L.Ed.

2d 627 (1972)).

In the ease before us, the named plaintiff who initi-

ated the action, Peners L. Griffin, could, and did, allege

15. Our analysis of the standing and Rule 23 issues presented

by this case focuses first on Peners L. Griffin as a sole named

plaintiff. We then examine whether the addition of Henry

L. Dejerinett and Alvin Smith as named plaintiffs affected

the class certification.

App. 28

injury as a result of the FDOC’s discipline and promotion

practices: he claimed that on specific occasions the FDOC

illegally diseiplined him and did- not promote him, because

of his race.'© Griffin had standing to assert discipline and

promotion claims. Beeause he had already met the edu-

cational and testing requirements of a road prison correc-

tional officer and had been hired for that position, how-

ever, he suffered no injury as a result of the FDOC’s use

of the written entry-level examination. See Payne v. Trav-

enol Laboratories, Inc., 565 F.2d 895, 898 (Sth Cir.)

(‘‘{Named pl]laintiffs . . . possessed tenth grade educa-

tions and therefore lacked [constitutional] standing’’ to

challenge tenth grade education requirement), cert. denied,

439 U.S. $35, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Griffin

thus lacked constitutional standing to assert a testing

elaim.!”

16. Griffin satisfied the procedural requirements of Title VII,

such as filing an EEOC complaint against his employer within

180 days of the alleged discrimination, see 42 U.S.C. § 2000e-

5(e) (1976), and receiving statutory notice of the right to sue

his employer, see 42 U.S.C. § 2000e-5(f)(1). See generally 42

U.S.C. § 2000e-5 (detailing conditions precedent to a Title

VII action).

17. Griffin’s complaint alleged that the FDOC had implemented

policies and practices of discrimination, including “maintain-

ing a racially biased working environment” and “‘failing or re-

fusing to recruit, hire, and assign blacks on the same basis

as whites.’” Nothing in the complaint, in the district court's

certification orders, or in the record on appeal alleged or

established a causa! link between the FDOC’s allegedly dis-

criminatory testing policy and its allegedly discriminatory

work environment or its allegedly discriminatory promotion

and discipline practices. Nor is there an allegation or show-

ing in the record that Griffin (or Dejerinett, who had been

denied employment by the FDOC) suffered any specific harm

(Continued on following page)

App. 29

Accordingly, we hold that the district court erred

when it permitted Griffin to raise the testing claim on be-

half of himself and on behalf of others. We hold in the

alternative that even if Griffin somehow had constitutional

standing to assert the testing claim, he did not, in light of

General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364,

72 L.Ed.2d 740 (1982), have representative capacity to

assert the testine claim on behalf of those who took the

IF DOC’s written entry-level examination, failed it, and

(Continued from previous page)

resulting from the allegedly discriminatory work environment.

Thus, Griffin (and Dejerinett) did not establish standing to

challenge the FDOC’s testing practices. Cf. Gray v. Grey-

hound Lines, 545 F.2d 169, 173-75 (D.C. Cir. 1976), cited with

approval in Meritor Savings Bank v. Vinson, 477 U.S. 57, —,

106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986).

Assuming for the sake of argument, that Griffin (or De-

jerinett) had established standing to assert a testing claim,

we nevertheless believe that under General Tel. Co. v. Fal-

con, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), the

court should not have presumptively held that Griffin satis-

fied the requirements of Rule 23(a) so as to allow him to rep-

resent a class of applicants with testing claims. Griffin’s com-

plaint provided ‘‘an insufficient basis for concluding that the

adjudication of his claim of [a racially discriminatory environ-

ment] would require the decision of any common question

concerning the failure of [the FDOC] to hire more [black

correctional officers].’’ See Falcon, 457 U.S. at 158, 102 S.Ct.

at 2371. The record does not identify any questions of law

or fact that were common to Griffin’s claim of a racially

biased working environment and the claims of those who

failed the written entry-level correctional officer examination

and were not hired. Thus, even if Griffin had standing to

litigate his right to a work environment untainted by racial

discrimination, he could not, on that basis, represent those

with testing claims, because he did not satisfy the require-

ments of Rule 23(a). .

App. 30

were not hired.’® In other words, Griffin did not meet the

prerequisites of Rule 23(a). We now turn to a discussion

of Rule 23(a) and the Supreme Court’s interpretation of

it in Falcon.

In 1969, the former Fifth Cireuit decided Johnson v.

Georgia Highway Express, Inc., 417 F.2d 1122 (Sth Cir.

1969), the first case to sanction a theory that became known

as the ‘across-the-board’? approach to Title VII class ae-

tions. In that case, a terminated black employee sought to

represent a class of black workers and applicants who had

hiring, firing, promotion, and working condition claims.

The district court restricted the class to include only those

black workers who, like the named plaintiff, had been fired.

The Fifth Cireuit reversed the district court’s certifica-

tion order and announced that broad class treatment was

appropriate where the ‘‘Damoclean threat of a racially

discriminatory policy hangs over the racial class [and]

is a question of fact common to all members of the class.’’

Johnson, 417 F.2d at 1124 (citation omitted). The court

said it ‘is clear from the pleadings that the scope of ap-

pellant’s suit is an ‘across the board’ attack on unequal

employment practices alleged to have been committed by

the appellee pursuant to its policy of racial discrimina-

tion.’’ Id.

18. In Falcon, the Supreme Court granted certiorari for the

express purpose of discussing the contours of Rule 23(a).

Falcon, 457 U.S. at 155, 102 S.Ct. at 2369. The Court did not

question, in its opinion, whether the named plaintiff had

constitutional standing.

[ia eee,

App. 31

Under the across-the-board theory, many courts liber-

ally read the requirements of Rule 23(a), permitting named

pleintiffs to raise claims on behalf of the class that were

of a different type than the named plaintiffs’ individual

claims. These courts reasoned that the employer allegedly

discriminated on the basis of a class characteristic, such

as race, and that the discrimination allegedly pervaded,

in an across-the-board fashion, all of the employer's per-

sonnel policies and practices. See, €.9., Gibson v. Local

40, Int'l Longshoremen’s & Warehousemen’s Union, 543

F.2d 1259 (9th Cir. 1976); Senter v. Gencral Motors Corp.,

002 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct.

182, 50 L.Ed.2d 150 (1976); Rich v. Martin Marietta Corp.,

022 F.2d 333 (10th Cir.1975); Barnett v. W.T. Grant Co.,

O18 F.2d 545 (4th Cir.1975); Reed v. Arlington Hotel Co.,

476 F.2d 721 (Sth Cir.), cert. denied, 414 U.S. 854, 94 S.Ct.

153, 38 L.Ed.2d 103 (1973).'9

19. Although widely accepted, the across-the-board theory was

not universally endorsed. See, e.g., Taylor v. Safeway Stores,

Inc., 524 F.2d 263, 270-71 (10th Cir.1975); Kinsey v. Legg,

Mason & Co., 60 F.R.D. 91 (D.D.C.1973), rev'd on other

grounds sub nom, Kinsey v. First Regional Sec., Inc., 557 F.2d

830 (D.C.Cir. 1977); White v. Gates Rubber Co., 53 F.R.D. 412

(D.Colo.1971); Gresham v. Ford Motor Co., 53 F.R.D. 105

(N.D.Ga.1970); Hyatt v. United Aircraft Corp., 50 F.R.D. 242

(D.Conn.1970). Moreover, one of the members of the Fifth

Circuit panel that first announced the across-the-board ap-

proach, Judge Godbold, cautioned in a specially concurring

opinion that the approach announced in the majority’s opin-

ion was not a replacement for precise pleadings that allow

district courts to determine whether the requirements of Rule

23(a) have been satisfied. See Johnson v. Georgia Highway

Express, Inc., 417 F.2d 1122, 1125-27 (5th Cir.1969) (Godbold,

|., specially concurring). Judge Godbo!ld also observed that

“an over-broad framing of the class’ may be unfair and harm-

(Continued on following page)

App. 32

The Supreme Court repudiated that liberal reading

of the class action, and the reasoning underlying it, in

General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364,

72 L.Ed.2d 740 (1982).° In ailegations quite similar to

those made in Griffin’s initial complaint, the named plain-

tiff in Falcon claimed that his employer had denied him

promotions because he was a Mexican-American. [le also

alleged class claims on behalf of all Mexican-American em-

plovees of the company who had not been promoted, and

all Mexican-American applicants who had not been hired.

Without holding an evidentiary hearing, the district court

certified a class consisting of those employees and ap-

(Continued from previous page)

ful to the absent class members: “what of the catastrophic

consequences if the plaintiff loses and carries the [over-broad]

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?’ Id. at 1126. Thirteen years later, the Su-

preme Court favorably discussed Judge Godbold’s opinion

when it rejected the across-the-board approach. See General

Tel. Co. v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 2372,

72 L.Ed.2d 740 (1982).

20. Even before Falcon, the across-the-board approach was

placed in doubt by the Supreme Court. In Fast Texas Motor

Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S.Ct.

1891, 1898, 52 L.Ed.2d 453 (1977), the Court reversed a broad

class certification:

We are not unaware that suits alleging racial or ethnic dis-

crimination are often by their very nature class suits, in-

volving classwide wrongs. Common questions of law or fact

are typically present. But careful attention to the require-

ments of Fed. Rule Civ.Proc. 23 remains nonetheless indis-

pensable. 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 vic-

tims of that discrimination.

Wiccan ieee

plicants at one of the company’s facilities. After a trial,

the district court found that the employer had not discrim-

inated against the named plaintiff in hiring, but did dis-

criminate against him in its promotion practices. As to

the class claims, the court reached the converse conclusion,

finding no discrimination in promotion practices, but find-

ing the hiring practices unlawfully discriminatory. On

appeal, the Fifth Cireuit, using the across-the-board ap-

proach, upheld the class certification :

{The across-the-board rule! permits an employee com-

plaining of one employment practice to represent an-

other complaining of another practice, if the plaintiff

and the members of the class suffer from essentially

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

based on discrimination because of national origin.

Falcon v. General Tel. Co., 626 F.2d 369, 375 (5th Cir.

1980).

‘The Supreme Court, on certiorari, began its analysis

of the case by reiterating that Title VII does not relieve

a private party plaintiff seeking to represent others from

mecting the requirements of the class action rule?!: ‘* An

individual litigant seeking to maintain a class action under

Title VII must meet ‘the prerequisites of numerosity,

commonality, typicality, and adequacy of representation’

specified in Rule 23(a). These requirements effectively

‘limit the class claims to those fairly encompassed by the

named plaintiff’s claims.’ ’’ General Tel. Co. v. Falcon,

457 U.S. 147, 156, 102 S.Ct. 2864, 2369-70, 72 L.id.2d 740

21. In contrast, under Title VII, the EEOC may seek relief for

groups of employees or applicants without having to comply

with the requirements of Rule 23. General Tel. Co. v. EEOC

46 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980).

App. 34

(1982) (citations omitted). Although the Court recog-

nized ‘‘that racial discrimination is by definition class dis-

erimination,’’ it said that the mere allegation of racial dis-

crimination cannot answer the questions posed by Rule

23(a) or define the class that may be certified:

Conceptually, there is a wide gap between (a) an in-

dividual’s claim that he has been denied a promotion

on discriminatory grounds, and his otherwise unsup-

ported allegation that the company has a policy of dis-

crimination, and (b) the existence of a class of per-

sons who have suffered the same injury as that indi-

vidual, such that the individual’s claim and the class

claims will share common questions of law or fact and

that the individual’s elaim will be typical of the class

claims.

Falcon, 457 U.S. at 157, 102 S.Ct. at 2370 (footnote omit-

ted). Thus, evidence that an employee was denied a pro-

motion because of illegal considerations of race will not

necessarily justify the additional inference, for example,

that the employer has adopted a general policy of racial

discrimination that is reflected in the employer’s other

employment practices, such as hiring and testing. See

Falcon, 457 U.S. at 158, 192 S.Ct. at 2371. The presump-

tion that general class claims are fairly encompassed with-

in the personal claims of a named plaintiff can, at best,

be characterized as tenuous. /d. The Faleon Court held

that ‘‘aetual, not presumed, conformance with Rule 23(a)

fis] indispensable.’’ Falcon, 457 U.S. at 160, 102 S.Ct. at

2372. This means that a private Title VII class action

‘may only be certified if the trial court is satisfied, after

a rigorous analysis, that the prerequisites of Rule 23(a)

have been satisfied.’’ Falcon, 457 U.S. at 161, 102 S.Ct. at

- eeieiaeaeaeae intimin

)

App. 39

The district court’s error in Falcon can be traced to

the named plaintiff’s complaint, which ** provided an in-

sufficient basis for concluding that the adjudication of

his claim of discrimination in promotion would require the

decision of any common question concerning the failure

of petitioner to hire more Mexican-Americans.’’ Jd. at

158, 102 S.Ct. at 2871. Without the benefit of sufficiently

specifie pleadings or of a hearing that probed beyond the

pleadings to answer the required certification questions,

see vd. at 160, 102 S.Ct. at 2372, the district court could do

nothing but presume that the named plaintiff’s individual

promotion claim was typical of other claims that Mexican-

American employees and applicants might raise. Jd. at

158-59, 102 S.Ct. at 2371. In short, a district court must

have some way of identifying the questions of law or fact

that are common to claims of the named plaintiff and of

the class members he seeks to represent. Jd.

The Supreme Court has thus repudiated the across-

the-board theory of ‘Title VII class actions.**7 No longer

will one allegation of specific discriminatory treatment be

sufficient to sustain a company-wide class action. No

22. “Although Falcon does not eliminate broad-based class

actions per se, it will be a rare situation indeed that will per-

mit the combining of hiring, promotion, and discharge claims

in the same class.” 2 A. Larson & L. Larson, Employment Dis-

crimination § 49.52(c)(2) (1986).

23. In Falcon, 457 U.S. at 159, 102 S.Ct. 2371 (footnote omit-

ted, the Court stated as follows: “If one allegation of specific

discriminatory treatment were sufficient to support an across-

the-board attack, every Title VII case would be a potential

companywide class action. We find nothing in the statute

to indicate that Congress intended to authorize such a whole-

sale expansion of class-action litigation.”

App. 36

longer will an employee complaining of racial diserimina-

tion, for example, in one employment practice necessarily

be permitted to represent other employees complaining of

racial discrimination in other practices. District courts

must not presume that a named plaintiff has satisfied the

typicality and commonality requirements of Rule 23(a).

In practical terms, this means that, as a general rule, in-

cumbent employees cannot represent a class that includes

applicants and that even a general policy of discrimina-

tion will not justify a class of both applicants and em-

ployvees. See Falcon, 457 U.S. at 158-59 & n. 15, 102 S.Ct.

at 2371 & n. 15,

In footnote fifteen of Falcon, the Supreme Court

identified exceptions to that general rule. For example,

an employee who alleges that he was a victim of a specific

discriminatory employment practice may properly rep-

resent applicants when the employer used a biased testing

procedure to evaluate both applicants and incumbent em-

ployees: ‘ta class action on behalf of every applicant or

employee who might have been prejudiced by the test

clearly would satisfy the commonality and typicality re-

quirements of Rule 23(a).’? Falcon, 457 U.S. at 159 n. 15,

102 8.Ct. at 2871 n. 15. In addition, a general policy of

discrimination could justify a class of both applicants and

employees ‘‘if the discrimination manifested itself in hir-

ing and promotion practices in the same general fashion,

such as through entirely subjective decisionmaking proc-

esses.’’ Id.

The situations the Supreme Court identified in foot-

note fifteen can be thought of as exceptions to the general

rule that applicants and incumbent employees cannot share

the same class. We emphasize, however, that those situa-

App. 37

tions are exceptions not because racial discrimination is

by definition class discrimination, a necessarily valid prop-

osition underlying the across-the-board rule, Falcon, 457

U.S. at 167, 102 S.Ct. at 2870, but because the commonality

and typicality requirements of Rule 23(a) can be satis-

fied.“ Lf, after a rigorous analysis, a district court is sat-

isfied that in a case similar to those situations described

in footnote fifteen the Rule 23(a) requirements have been

met, then it should not hesitate to certify the class. We

caution, however, that although district court should give

real meaning to Falcon’s footnote fifteen, that footnote

should not be used to defeat the general dictates of Falcon.

The footnote was not meant to sanction broad class ae-

tions that otherwise do not conform to Rule 23(a).

We begin our analysis of whether the requirements ot

Kinle 23(a) have been fulfilled in the case before us by

examining Griffin’s complaint.2> The complaint, which

24. See 1H. Newberg, Newberg on Class Actions § 3.17 (2d

ed. 1985):

In the final analysis, through its rulings and examples,

Falcon instructs that the Rule 23(a) typicality requirement

can be satistied only by a showing of a sufficient inter-

relationship between the claims of the representative and

those of the class, so that an adjudication of the individual

claims will necessarily involve the decision of common

questions affecting the class.

25. Our analysis takes into account that the district court had

considerable discretion in deciding to certify the class. See,

e.g., Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th

Cir.1984); Freeman v. Motor Convoy, .nc., 700 F.2d 1339,

13.47 (11th Cir.1983).

App. 38

was filed in October 1979, almost three years before Falcon

was decided, included ailegations that the defendants dis-

criminated on the basis of race with their written entry-

level examinations and in their hiring, assignment, disci-

pline, and promotion decisions. Griffin’s action was

brought *‘on behalf of all past, present and potential black

American citizens and residents who have been, are or

may be employees of the Defendants or applicants for em-

ployment.”’ As to Rule 23(a)’s numerosity requirement,

the complaint contains the allegation that the persons in

the class ‘tare too nuinerous to join in this action.’ The

only reference to Griffin’s ability to represent that class

was this statement: ‘‘The Plaintiff can fairly and ade-

quately represent the class.’ The complaint’s only ref-

erence to Rule 23(a)’s commonality requirement was this

statement: ‘* The conclusory questions of whether there is

a general pattern and practice of discrimination by Defei-

dants and the question of whether certain practices consti-

tute illegal job discrimination are common mixed questions

of fact and law to the class as a whole.’? The complaint

made no allegation whatsoever that Griffin could meet

Rule 25(a)’s additional requirement of typiecality.?7

26. In his second amended complaint, Griffin made the fol-

lowing numerosity allegation:

The precise total number of persons in the class is un-

known to the Plaintiffs. Plaintiffs allege, on information

and belief, that there are more than 1,000 persons in this

class. There are many other unknown class members.

They are too numerous to join as named Plaintiffs and

such joinder is impractical.

27. The first reference to Rule 23(a)’s typicality requirement

was in Griffin’s second amended complaint, in which he al-

leged that ‘‘the claims of the Plaintiffs are typical of the

claims of all other class members.”

App. 39

Without an evidentiary hearing, the district court

preliminarily certified the ‘‘class of all past, present, and

potential black employees’’ of the DOC, finding that the

requirements of Rule 23(a) had been met. The court’s

certification ruling was based solely on a stipulation of

the parties that under the law of the Fifth Cireuit, the

named plaintiffs met the commonality requirement of Rule

25(a).8 The parties further stipulated that ‘‘[t]he claims

of the named plaintiffs are, under current law in the

United States Court of Appeals, Fifth Cireuit, similar to

those of other members of the proposed class.’’? The

parties made no relevant factual stipulations.

Soon after the Supreme Court decided Falcon, the de-

fendants moved the district court to vacate the order certi-

fying the class. The parties filed memoranda of law,

arguing the applicability of Falcon. On the basis of the

memoranda, and with no hearing, the district court issued

an order denying the defendants’ motion. The court’s

analysis began with the recognition that ‘‘[t]he Lalcon

decision mandates that this court carefully examine the

requirements of Rule 23(a).’°° As to the commonality

requirement, the district court found the following:

28. See supra note 6.

29. The defendants reserved the right to move the district

court to decartify the class. See supra note 6.

30. As to the first requirement of Rule 23(a)—‘‘the class is so

numerous that joinder of all members is impracticable’-—

the district court found that “[t}he number of black persons

employed by the |[FDOC] in February 1981 was 1,346. .

This number alone, without inquiry as to the number of past

and potential black employees, clearly indicates that the class

members are too numerous to join.”

App. 40

Plaintiffs have alleged a common practice and pattern

of racial discrimination which affects defendants’ hir-

ing, promotion, job classification, disciplinary, and ter-

mination decisions. This general discriminatory pol-

icy commonly injures all members of the class of past,

present, and potential black eniplovees of the Depart-

ment. Plaintiffs maintain that they will utilize simi-

lar statistical data, similar historical background, and

the same or similar witnesses to support their allega-

tions of class-wide discrimination. This court is sat-

isfied that the commonaliiy requirement of Rule 23

Is mict.

The distriet court found the typiecality prerequisite

satisfied, but only because Henry L. Dejerinett, a black

male who was not hired for a clerical position, had been

added as a party-plaintiff and as a class representative.

Even so, the court was concerned that Griffin and Dejer-

inett could not adequately represent those with objective

testing claims:

Plaintiff Griffin certainly can adequately protect the

interests of black emplovees who have claims of dis-

crimination in promotions, job classification, disci-

cipline, and terminations. Plaintiff Dejerinett’s claim

is somewhat interrelated with the class clauns of a

discriminatory hiring policy. Plaintiffs allege that

blacks are not hired in sufficient number because of

facially neutral objective criteria, Le. a high school

education requirement and the |F DOC] test, which

have a disparate impact on black applicants and of a

subjective barrier which causes the almost exclusively

white decisionmakers to discriminate against black

applicants. The class claim against discriminatory

subjective hiring decisions is fairly encompassed in

Dejerinett’s claim. This court, however, is concerned

that the class claim against the Department's objective

screening criteria which have a disparate impact upon

class members, especially the [IF DOC] test, is not

App. 41

fairly and adequately protected by any of the nanied

plaintiffs.

In that same order, the district court permitted Alvin

Smith to intervene as a party plaintiff. Smith was an

unsuccesstul black applicant for a correctional officer

position who had tailed the written entry-level correctional

vificer examination. The court wrote the following in its

order: ‘*Mr. Smith eases this court’s concern that the

class claim against the Department’s objective criteria

Was not fairly and adequately protected by the named

plainuffts. Alvin Sinith is a proper representative for po-

tential black employees.”

As to Griffin’s capacity to represent the “class of all

past, present, and potential black employees’’ of the

I DOC, we hold that, in light of Falcon, Griffin’s complaint

provided an insufficient basis by which the district court

could have concluded that Griffin's “claim[s] of discrimi-

nation in promotion [and discipline] would require the

decision of any common question concerning the failure of

{the defendants] to hire more [blacks |.*? Falcon, 497 U.S.

at 158, 102 S.Ct. at 2371. In our view, Griffin satisfied

neither the commonality nor the typicality requirements

of Rule 23(a).*!

31. As the Supreme Court noted in Falcon, 457 U.S. at 157

n. 13, 102 S.Ct. at 2370 n. 13.

[the commonality and typicality requirements of Rule 23(a)

tend to merge. Both serve as guideposts for determining

whether under the particular circumstances maintenance

of a class action is economical and whether the named

plaintiff's claim and the class claims are so interrelated

that the interests of the class members will be fairly and

adequately protected in their absence.

App. 42

The district court found the commonality require-

ment satisfied because the “general discriminatory pol-

icy’? Griffin alleged ‘‘commonly injures all members of

the class” and that in order “to support their allegations

of class-wide discrimination,’’ Griffin would utilze ‘‘sim-

ilar statistical data, similar historical background, and

the same or similar witnesses.’’ As to the typicality re-

quirement, the district court found it satisfied because

‘‘(pjlaintiffs allege that blacks are not hired in sufficient

number because of facially neutral objective criteria, 1.e.,

a high school education requirement and the [I/DOC] test,

which have a disparate impact on black applicants and of

a subjective barrier which causes the almost exclusively

white decisionmakers to discriminate against black appli-

eants.’’

To us, the district court failed to appreciate the sig-

nificance of Falcon. he distriet court did not engage in

the kind of ‘‘rigorous analysis’’ that we believe the Falcon

eourt contemplated. See Falcon, 457 U.S. at 161, 102

S.Ct at 2372.

Griffin’s initial complaint, relying on the then-valid

across-the-board rule, made no factual showing to satisfy

the Rule 23(a) requirements. Additionally, the two

amended complaints, which included Dejerinett and Smith

as named plaintiffs, offered no facts to satisfy the Rule

23(a) requirements. Moreover, the named _ plaintiffs’

‘*Memorandum in Opposition to Motion to Vacate Order

Certifying Class’’ offered little more than conclusory

statements that the named plaintiffs satisfied the Rule

23(a) eriteria. See Nelson v. United States Steel Corp.,

709 F.2d 675, 680 (11th Cir. 1983) (**[Named plaintiff]

was... obligated to show, in at least a preliminary fashion,

App. 48

the required commonality between her claims and those of

the putative class.’’) (citations omitted). Although the

plaintiffs asserted that ‘‘[wJhether a person impacted by

one employment practice may represent other persons im-

pacted ‘in the same manner’ by another practice need not

be reached in this case,’’ they nonetheless tried to take

refuge in Falcon’s footnote fifteen, which states that a

class of both applicants and employees could be justified

‘if the discrimination manifested itself in hiring and pro-

motion practices in the same general fashion.’’ Falcon,

457 U.S. at 159 n. 15, 102 S.Ct. at 2371 n. 15. This is the

closest the named plaintiffs came to helping the district

court conduct a rigorous Rule 23 inquiry. In fact, the

plaintiffs, although aware of Falcon, continued to rely on

ihe defunct across-the-board rule by citing a former Fifth

Cireuit case that, in light of Falcon, was no longer good

law.

32. In support of its typically argument, the plaintiffs’ memo-

randum of law cited Hebert v. Monsanto Co., 576 F.2d 77, 838

(5th Cir.), vacated and dismissed for want of jurisdiction, 580

F.2d 178 (5th Cir.1978) (per curiam):

Appellee contends that because appeliant’s claim concerns

only the trucking activities of the company and other claim-

ants are from different departments, appellant’s claim is

neither factually nor legally typical. We recognize, how-

ever, that the typicality requirement is not so rigid as to

comprehend only similar fact situations. If class actions

were limited to factual typicality, class actions under Title

Vil would be impossible because, except in rare cases, the

facts would not be identical. It would be a better test for

typicality to consider whether the types of facts or evidence

were typical of the class. For example, if all claims, al-

though of different job classifications, depended upon sta-

tistical evidence, and the statistics evidenced a policy of dis-

crimination, typically would be satisfied.

(Continued on following page)

\pp. 44

The district court’s commonality analysis amounts to

nothing iasore than a presumption that racial diserimina

tion as manifested in various employiment practices raises

a common question of law or faet. See Wheeler +. City of

O35 F.2d 8535, 855 (Sth Cir. 1OS3) Coe, curiam)

Columbus, 7

(**Disernnination in its broadest sense is the only question

alleged that is common to ithe named plaintiff and the

Class she sought to create and represent, lnder falcon

this is not enough.’’). The district court’s Vpicalits

analysis, which presumably is based on /alcon’s footnote

fifteen, is flawed. As we have already discussed, in that

footnote the Falcon Court identified exceptions to t!

veneral rule that emnplovees cannot represent a class that

includes applicants, even though the emplover’s diserimi

nation is manifested in various emplovment practices. One

situation that may justify a class of both applicants an:

ell plovees is when the discrimination that is manifested

In Various practices is effected ‘in the same general fas

hion, such a through ent rely ~ ibjee IVE dk CESbOUD aH De

processes.”" Falcon, 457 U.S. at 159 mn. 15, 102 S.Ct. a

Joel in. lo. The named plaintiffs’ assertions notwithstand

ing, the pleadings demonstrated that any general policy

of discrimination that the DOC may have had di! not

manifest itself in the same veneral fashion.

When the Supreme Court used the term *‘same cen

eral fashion,’’ it gave an example: ‘‘entirely subjective

Continued trom previous page

In light oi Falcon, “general statistical evidence of underrepre-

sentation in the workforce will undoubtedly not suffice to jus

tify a single class covering ditferent types of discrimination

such as in hiring promotion, and discharge.” 2 A. Larson & |

Larson, Employment Discrimination § 49.52(c)(2) (1986) (inter-

preting tootnote 15 of Falcon, 457 U.S. at 159, 102 S.Ct. at

2371

App. 45

decisionmaking processes.’’ Significant proof that an em-

ployer makes both discriminatory hiring and promotion

decisions using an entirely subjective decisionmaking proc-

ess for each employment practice is a manifestation of a

veneral policy of discrimination operating in ‘‘the same

general fashion.’’ By qualifying ‘‘subjective decision-

making processes’’ with ‘‘entirely,’* the Court implied that

an enployver’s general policy of discrimination manifested,

for exainple, by an objective hiring practice and by a sub-

jective promotion practice would not be discrimination

operating in ‘‘the same general fashion’’ sufficient to

justify a class of both applicants and employees.

The FDOC’s decisionmaking process for hiring cor-

rectional officers is objective: applicants must hold a

high school diploma or a general equivalency diploma and

must pass the written correctional officer examination. In

contrast, the FDOC’s decisionmaking process for promot-

ing eorrectional officers, and other employees, is subjec

tive: applicants for promotion need not hold advanced de-

erees or pass any a iditional examinations; correctional

officers are promoted on the basis of their performance as

viewed by their superiors. The case before us is not one

that implicates Falcons footnot« fifteen.

We therefore hold that Griffin, an inewmbent correc-

tional officer Complaining of a subjective decisionmaking

process, could not represent a class that included those

who may have been victims of a discriminatory objective

decisionmaking process, such as applicants for the position

of correctional officer who took the written entry-level

examination and failed it. See, e.g., Walker v. Jim Dandy

Co.. TAT F.2d 1360, 1365 (11th Cir.1984) (?’Foliowing F'a/-

con... we hold that [ plaintiffs”! complaint provided an

App. 46

insufficient basis for concluding that the adjudication of

{their} claim of discrimination in hirimg supervisory em-

ployces would require the resolution of common questions

of law and fact concerning [the emplover’s) diserimina-

tory practices in recruitment, job assignment, transfer,

and promotion.”’); Redditt v. Mississippi Extended Care

Centers, Inc., T18 F.2d 1381, 1387 (Sth Cir.1983) (** Under

Falcon, plaintiff cannot serve as class representative with

respect to hiring, promotion, or any other employment

practices excepting discriminatory discharge because she

does not possess the same interest and did not suffer the

same injury as the other members of the class.’*’); Taylor

vr. Block, 35 Fed. R. Serv.2d (Callaghan) 546 (D.D.C. Oct.

15, 1982) (plaintiffs who alleged they suffered only pro-

motion discrimination could not represent across-the-board

class claiming hiring, assignment, and training diserimina-

tion). In other words, Griffn, who could assert discipline

and promotion claims under Title VII, did not have repre-

sentative capacity, within the meaning of Rule 23(a), to

assert testing claims on behalf of others? We now ex-

amine whether the addition of Henry L. Dejerinett and

Alvin Sinith as named plaintiffs affected the class certi-

fication question.

IL.

Kight months after filing his complaint in district

court, Griffin sought leave to amend his complaint to add

33. Because Griffin satisfied neither the commonality nor the

typicality requirements of Rule 23/a), we need not address

whether he could have been an adequate representative oi the

class. See Fed.R.Civ.P. 23(a)(4).

App. 47

Henry L. Dejerinett as a party-plaintiff and as a class

representative. In November 1978, Dejerinett applied for

an DOC clerical position, entitled ‘‘Property Manager

IIl.”’ Dejerinett-was not required, as part of the applica

tion process, to produce an educational degree or to take

the written entry-level examination required of corree-

tional officer applicants. He was required, however, to

have an interview. Dejerinett was not hired; instead, the

DOC hired a white male. A month later, Dejerinett filed

a charge of racial diserimination against the DOC with

the Florida Conmnission on Human Relations, a deferral

agency for the HEOC. Ie requested and received a right-

to-sue letter from the EEOC in April 1980. The district

court, with no written analysis of standing or Rule 23,

granted Griffin leave to amend his complaint and add De-

jerinett as a named plaintiff.

Dejerinett had standing to assert a subjective hiring

claim.* He applied for a clerical position, requiring no

correctional officer examination or educational degrees,

and was not uired. Because Dejerinett never took the cor-

rectional officer examination, and never applied for that

position, he suffered no injury as a result of that test. Ile

thus lacked constitutional standing to assert a testing or a

34. There is some indication in the record that the Florida De-

partment of Administration, on the basis of testing, training,

and experience, rated Dejerinett as well-qualified for the clerk

position. We cannot tel! from the record whether any testing

done by the Department of Administration measured health,

physical ability, or intelligence. In any event, because the rat-

ing took experience and training into account, there was a

substantial subjective component to the rating. We also note

that because Dejerinett received a well-qualified rating (which

presumably was a reason he was granted an interview), he did

not allege that the Department of Administration’s rating pro-

cess illegally discriminated against black applicants.

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App. 951

eriminatory treatment. Griffin alleged that the FDOC’s

subjective promotion and discipline practices were illegally

diseriminatory. Smith alleged that the FDOC’s objective

correctional officer examination illegally discriminated

against black applicants. The FDOC’s promotion and dis

cipline practices were not manifested in similar fashion

to its hiring and testing practices. See Hezell +. Mobile

Housimy Bd., 709 F.2d 1376, 1381 (11th Cir.1983) (non-

filing ineumbent plaintiff’s discriminatory examination

claim was not sufficiently similar to filing plaintiff’s dis

criminatory discharge and broad-based, ongoing campaign

of discrimination claims to invoke single-filing rule .o

excuse filing requirement): Dalton +. Emploument Sec.

Comm'n. 671 F.2d 835. 838 (4th Cir.). cert. dented, 459 US

S62, 103 S.Ct. 138, 74 L.eMdi2d 117 (1982) (beeause non-

charging plaintiff’s hiring claim was not ‘‘substantinlly

ilentical’’ to incumbent employee's claims of discrimatory

treatment, single-filing rule did not apply). Although both

employment practices could have been racially diseriniuna

tory, that alone is not enough to implicate the second re-

quirement of the single-filing rule. Otherwise, ‘‘inter

vention [eould| bootstrap the court’s jurisdiction to en-

compass claims regarding practices broader than the

claims properly assertable by the named _ plaintiffs.”’

Vnyanich v. Re publu Nat'l Bank, 723 F.2d 1195, 1201 (5th

Cir.) (former employees who sought to-mtervene in class

action but who did not file timely charges with EEOC

could only proceed within periphery of issues that named

aintiffs could assert), cert. denied, 469 U.S. 1073, 100

S.Ct. 567. 83 L.Ed.2d 507 (1984); see also Wakeen v. Hoff-

House, Inc., 724 F.2d 1238, 1246 (7th Cir. 1985) (“[ A]

class member who does not meet the procedural prere-

isites for waging a Title VII suit may not use the guise

—————— eee

)

App. 02

of a motion to intervene to take over as the sole class

representative for someone who initiates but is not legit

mately able to continue a class action.”’).

We also note that merely because a notation at the be

ginning of Griffin’s EEOC complaint stated that Griffin's

charge also encompassed ‘*|s |incerity of recruiting, hiring,

and promoting of minority groups within the I lorida’s

Division of Adult Corrections,’’ Stmith’s status as a class

representative was not saved. As the pleadings make

clear, Griffin never had constiiutional standing ‘o raise

testing or a hiring elatin, a fundamental requirement

underlying the single-filing rule: ‘‘onee an aggrieved per

son raises a particular issue with the HEOC which he has

standing to raise, he may bring an acuion for himself and

the class of persons similariv situated.’’ Oatis, 598 b.2d

at 497.27) Smith cannot point to Griffin’s EMOC charge,

which arguably contained a testing claim brought on behalf

of others, to excuse his failure to have filed his own testing

charge with the HOC when Griffin did not have standing

to raise the testing issue, We cannot permit the sinele

filine rule to be used to cireumvent the constitutional re

quirement of standing.

37. By “standing” the Oatis court meant ‘‘the issues as to which

[the employee] is aggrieved,’”’ Oatis, 398 F.2d at 499, citing

Title VII's enforcement provision that requires the EEOC to in-

vestigate the charges of a person claiming to be aggrieved, 42

U.S.C. 2000e-5(a). By “standing,” the Oatis court also meant,

even if implicitly, personal injury, that is, constitutional stand-

ing. See id. at 498-99; see also Vuyanich v. Republic Nat'l

Bank, 723 F.2d 1195, 1200-01 (5th Cir.) (interpreting Oatis’

single-filing rule as implicating constitutional standing), cert

denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984).

IV.

In sum, based on standing principles and on the die-

tates of Falcon, we hold that the distriet court erred when

it certified the class with the named plaintiffs as represen

tatives. None of the named plaintiffs—Griffin, Dejerinett,

or Smith—should have been allowed to represent the elass

of black correctional officer applieants with testing claims.

The district ecourt’s order certifying the elass is therefore

VACATED.

HATCHETT, Cireuit Judge, dissenting:

[ dissent. The majority holds that Smith did not meet

the second element of the single-filing rule. That rule

states, ‘tthe individual claims of the filine and non-filing

plaintiffs must have arisen out of similar discriminatory

treatment in the same time frame.” Jackson, 678 F.2d at

1011-12 (emphasis added). One of Griffin’s claims in his

HEOC complaint was that the FDOC discriminated against

black job applicants. Non-filing intervenor Smith’s claim

arose ‘‘out of similar diseriminatory treatment,’’ because

he alleges that the F DOC diseriminated against him and

other applicants through administration of a test with a

discriminatory impact on blacks. The majority ignores

the fact that Griffin raised the claim of discrimination

against black applicants in his HOC complaint.

The majority erroneously assumes that if Griffin

lacks standing to raise the hiring claim in federal court,

then his raising of that claim before the EEOC is somehow

ineffective for purposes of the single filing rule. The ma-

jority’s reasoning is based upon its failure to differentiate

between the poliey underlying the standing requirement in

= —

App. 94

federal court and the policy underlying the single filing

rule in an EEOC action. The poliey underlying the stand-

ing requirement is to ensure that a party litigating an is-

sue has a conerete stake in the outcome of the case, and is

therefore motivated to vigorously litigate the issues. The

poliey underlyin the HEOC filing req iirement is to ensure

“that the settlement of grievances be first attempted

through the office of the EEOC. ...7’ Ezell v. Mobile

Hlousing Board, 709 F.2d 1376, 1381 (11th Cir.1983) ; Oatis

vr. Crown Zellerbach Corp., 398 F.2d 496, 498 (Sth Cir.

1968). The purpose underlying the EEOC filing require-

ment is therefore to promote the resolution of Title VII

elaims out of court. The [OC proceeding is not designed

as a way-station on the road to the federal courthouse.

By asserting a hiring grievance in his KEOC com-

plaint, Griffin eusured **that the settlement of [hiring]

grievances [would] be first attempted through the office

of the EEOC." Ezell, 709 F.2d at 1381. The faet that

Griffin may not have had standing in federal distriet court

to raise the hiring issue is irrelevant to the fact that his

EKOC complaint gave the EEOC an opportunity to settle

the hiring grievance before that grievance was sned upon

in federal district court. Since Smith’s claim in federal

district court of discriminatory hiring practices is identi-

cal to the claim of discriminatory hiring practices as-

serted in Griffin’s complaint before the HHOC, invoking

the single filing rule will not frustrate the purpose of the

EKOC filing requirement: to give the HHOC a chance to

resolve Title VII claims before they vo to court. The faet

that Griffin may not have had standing to raise the hiring

elaim in court is irrelevant to the issue of whether the

EEOC has had a chance to resolve that claim before it 1s

taken to court, whether by Griffin, Smith, or anyone else.

App. 59

In short, the majority has grafted the constitutional

standing requirement for parties litigating in federal dis-

trict court onto the filing requirements for persons alleg-

ing Title VIL claims before the HEOC. Such a require-

ment does not, and never has, existed. The majority, how-

ever, misinterprets Fifth Circuit dicta to reach just that

conclusion. That dicta savs, ‘‘Onee an aggrieved person

raises a particular issue with the HMOC which he has

standing to raise, ie may bring an action for himself and

the class of persons similarly situated.’’ Oatis, 398 F.2d

at 498. The majority fails to mention that the sole issue

in the Oatis case was whether a Title VII class action couid

include in the class persons who had not previously filed

charges with the EFOC. The court held that the class

could inelude such persons. The Oatis court gave its rea

soning for this holding in the sentence immediately preced-

ing the language relied upon by the majorify in this case.

That sentence states, ‘‘ If it is impossible to reach a settle-

ment with one discriminatee, what reason would there be

to assume the next one would be successful.’? Oatis, 59S

2d at 498. In short, the court in Oalis was not faced with

the question of whether an EEOC complainant could eftee-

tively file claims with the EOC even though the con

plainant would not have standing to assert the claim in

federal district court. The majority ’s application Ol Con

stitutional standing requirements to the HMOC complain

ant puts the HMOC in the nonsensical position of having

to anticipate how the federal district court will rule on th

complainant’s standing to litigate various claims if th

MEOC does not resolve them. Such a rule will result im

the EEOC narrowing its resolution of claims to those

which it anticipates the complainant will have standing to

sue upon in federal drict court, regardless of the ap

App. 06

parent existence of the alleged discrimination with respect

to other employees or job applicants. Such a situation

would hardly further the purpose of the EEOC filing re

quirement: to resolve Title VII claims out of court.

Title 42 U.S.C. § 2000e-5(b) says:

Whenever a charge is filed by or on behalf of a per

son claiming to be aggrieved, or by a member of the

Commission, alleging that an eplover ... has engaved

in an unlawful employment practice, the Commission

shall serve a notice of the charge... and shall make

an investigation thereof.

This provision requires the Comission to investigate all

charges which a person ‘‘claims’” to be aggrieved of. In

no way does the provision suggest that the Commission 1s

limited to the investigation of claims which the complain

ant will have standing to bring in a federal court. Any

sueveston in Oatis of such a requirement 1s dicta that is

1 conflict with the intent of the statute that the EHOC

resolve ‘“‘elaimed’’ diserimination out of court. Smith

should therefore be allowed to proceed in federal district

court as a class representative for the class of applicants

Wo failed the objective test.

App. 57

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PENERS L. GRIFFIN and

HENRY L. DEJERINETT,

Plaintiffs-Appellees,

versus

RICHARD L. DUGGER., Secretary of the

Florida Department of Corrections, et al.,

Defendants-Appellants.

Appeal from the United States Distriet Court

for the Northern Distriet of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION (S) OF REHEARING IN BANC

(Opinion 8/7/87, 11 Cir., 198—, —F.2d—).

(OCTOBER 30, 1987)

Before TJORLAT and HATCHETT, Cirenit Judges, an

MK ATON*, Senior District Judge.

PER CURLAM:

) The Petition(s) for Rehearing are DENTED and no

ember of this panel nor other Judge in regular active

ervice Ol) the (‘ourt having requested that the (‘ourt be

don rehearing in bane (Rule 35, Federal Rules of Ap

Procedure: Bleventh Cirenit Rule 35-5), the Sue-

yot Rehearing In Bane are DENIED.

The Petition(s) for Rehearing are DENTED and the

having been polled at the request of one of the mem-

Court and a majority of the Cireuit Judges

, —_

App. 08

who ire in reonular aetive SPrV1ce not h 17 voted 1! rayvol

ot 17 (Rule yy | (if ral RR esx ( \npel Lit }) mre iin

on(s) of Reheat

} A Irie mibe ! of the ( our iT AC e 4 :

the reconsideration of this caus in bane,

(ule aT «| al poll (oT)

active service not having

Bane is DENIED.

and a majority of the judges in

oted in tauvor ot it. Re hearn YU In

ENTERED FOR THE COURT:

Gerald B. Tiotlat

United States Cireuit

App. 59

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN, et al., ete..

Plaintiffs and Intervenors

vs. TCA 79-1016-WS

RICHARD L. DUGGER, ete.. et al..

Defendants.

MOTION FOR LEAVE TO AMEND COMPLAINT

Pursuant to Rnle 15. Federal Rules of Civil Proe

ire, and the Opinion of the United States Court of Ap

peals for the EKleventh Cirenit, Griffin +. Duqaer, 823 2d

1476 (11th Cir. 1987), Plaintiffs and Intervenors move for

leave to amend the Complaint. Pursuant to General Rule

f this Court, the amended complaint, captioned ** Third

\mended Complaint, Intervenor Smith’s Amended Con

The amended pleading responds to the teaching of

Griffin v. Di qqer, Supra, by:

l. Setting forth facets which estal <] Taintilf Grit

Article II] standing to file his 1975 Charge of Dts

crimination, which alleged hirine diserimination, and tl

complaint im thi ictio?

2 \s an vite l | TO } (7 () i | l “

it) rem | r rel te)

Smiuthos tilt

eerupt ot du

chtic Notre

| (

my ——

itl I

a |

\pp Ou)

of hi own Charee of Disertomonation

own Nottee of Rieht to Sur Sritthe?

were aot before thy (‘ourt earher be

’ mer orule cae the orders of thi

\ ertitieation, they were previou l\

retevarnt: one

l miterrni¢Uyve roils lo exbinu Lhon ol

{tin forth the tae

C‘hiaaree ob Daserimimationr ritiel

» ET bearntitt madd tntervenor Butler’

pact of subjective factors cisparate

rte the trend plesacine

t il ddueed at trial and to the

[lial @eVielenee, a pro

. ly

ly spect Vv Subreittes

hiddy

PATTERSON & TRAYNILAM

| ssee, Florida 382315

{ 4 QS]

LTTORNEYS FUR PLAINTIFFS

App. 61

CERTIFICATE OF

| WHEREBY CERTIFY that

Mas Nowy Drovicced Py | Ss

—

SERVICE

App. 62

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN, et al., ete.,

Piaintifts and Intervenors,

VS. TCA 79-1016-WS

RICHARD L. DUGGER, ete., et al.,

Defendants,

MOTION FOR LEAVE TO AMEND

INTERVENOR SMITIVS COMPLAINT

Pursuant to Rule 15, Federal Rules of Civil Procedure,

and the Opinion of the United States Court of Appeals for

the Mleventh Cireuit, Griffin vo. Dugger, 825) F.2d 1476

(lith Cir. 1987), Plaintiffs and Intervenors move for leave

to amend Intervenor Smith’s Complaint. Pursuant to

General Rule 11 of this Court, Intervenor Smith’s amended

complaint, captioned Third Amended Complaint, Inter-

venor Smith's Amended Complaint, and Intervenors* Com

plait’, ais filed with this Motion,

As to Smith, the amended pleadine responds to. the

teaching ot Griffin «. Duaade r, supra, bv:

l. Setting forth facets which establish Plaintiff Grif-

fin’s Article TI] standing to file his 1975 Charge of Dis-

crimination, which alleged hiring discrimination, and the

complaint in this action; and

’) As an alternative route to exhaustion of adminis

trative remedies, by setting forth the faets rewarding

App. 63

Smith’s filing of his own Charge of Discrimination and re-

ceipt of his own Notice of Right to Sue. Smith’s Charge

and Notice were not before this Court earlier because, un-

der the single-filing rule and the orders of this Court re-

garding class certification, they were previously unneces-

sary and irrelevant.

Respectfully Submitted

s/ Harry L. Witte

Jerry G. Traynham

PATTERSON & TRAYNHAM

P.O. Box 4289

Tallahassee, Florida 32315

(904) 224-9181

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

l HEREBY CERTIFY that a true copy of the fore-

voing has been provided by U.S. Mail, postage prepaid, to

Harry F. Chiles, Assistant Attorney General, The Capitol

Suite 1501, Tallahassee, Florida, 32301, and to Bruee A.

Minnick, Msquire, Mang, Rett & Collette, P.A., Suite 740

Barnett Bank Bldg, P.O. Box 11127, Tallahassee, FLL.

wl,

Ono

82002-3127, this 10th day of February, 198s,

‘'s/ Harry L. Witte

App. 64

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTUERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN, et al., ete.,

Plaintiffs and Intervenors,

VS. TCA 79-1016-WS

RICHARD L. DUGGER, ete., et al.

Defendants,

MOTION TO INTERVENE

Pursnant to Rule 24, Federal Rules of Civil Procedure,

and the Opinion of the United States Court of Appeals for

the Eleventh Circuit, Griffins. Dugger, 823 F.2d 1476

(11th Cir, 1987), Samnel Platt, David Baber, Romeo Co-

zart. Marvin Jones and Michael Ovefesobi move to inter-

vene in this action to protect their interests and the inter-

ests of the class of all black applicants for employment

with the Florida Department of Corrections and its pre-

decessor agencies who, since March 24, 1972, have been

denied employment or consideration for employment by

reason of their scores on the Correctional Offieer written

examination,

Intervenors are black persons who have been denied

Correctional Officer employment with the Florida Depart-

ment of Corrections and or its predecessor agencies he-

cuuse of race, on the basis of their scores on the Corree-

tional Officer written examination, They seek to inter-

vene in this action as a matter of right, pursuant to Para.

App. 65

eraph (a) of Rule 24, sinee Chey and the class claim an in-

terest in the Defendants’ illegal practice of using the Cor-

rectional Officer written examination as an emplovee selec-

tion procedure. This Court has ruled that the challenged

practice violates Tithe VII, since the examination has an

adverse impact on biack applicants and is not validated.

Under the decision in Griffin v. Dugger, supra, Interven-

ors and the elass are so situated that the disposition of

this action may as a practical matter impair or impede

their ability te proteet their interests.

Pursuant to Paragraph (c) of Rule 24, Intervenors’

complaint, captioned ** Third Amended Complaint, Inter-

venor Smith’s Amended Complaint, and Intervenors’ Com-

plaint,’* is filed with this Motion. That pleading sets forth

the claims regarding the Correction Officer written exam-

ination, for which intervention is sought.

Respectfully Submitted

/s’ Harry L. Witte

Jerry G. Traynham

PATTERSON & TRAYNHAM

P.O. Box 4289

Tallahassee, Florida 32315

(904) 224-9181

ATTORNEYS FOR PLAINTIFFS

App. 66

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore-

going has been provided by U.S. Mail, postage prepaid, to

Harry F. Chiles, Assistant Attorney General, The Capitol

—Suite 1501, Tallahassee, Florida, 52501, and to Bruee A.

Minnick, Esquire, Mang, Rett & Collette, P.A., Suite 740

Jarnett Bank Bldg., P.O. Box 11127, Tallahassee, FL.

32302-3127, this 10th day of February, 1988.

/s/ Harry L. Witte

App. 67

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PENERS L. GRIFFIN, et al., ete.,

Plaintiffs and Intervenors,

Vs. TCA 79-1016-WS

RICHARD L. DUGGER, ete., et al.,

Defendants,

MOTION TO RECERTIFY CLASS

AND

REQUEST FOR EVIDENTIARY HEARING

Pursuant to Rule 23, Federal Rules of Civil Proce-

dure, Plaintiffs and Intervenors move the Court to recer-

tify the class of all black applicants for employment with

the Florida Department of Corrections and its predecessor

agencies who, since March 24, 1972, have been denied em-

ployment or consideration for employment by reason of

their scores on the Correctional Officer written examina-

tion, with Intervenors Alvin Smith, Samuel Platt, David

Baber, Romeo Cozart, Marvin Jones and Michael Ovefe-

sobi as the representative parties.

All requirements of Rule 23 are satisfied:

1. This class is so numerous that joinder of all mem-

bers is impracticable. More than two thousand (2,000)

black applicants have been denied employment, or consid-

eration for employment, by reason of their scores on the

Correctional Officer written examination. More than four-

App. 6S

teen hundred (1400) persons have filed claims in this law-

cuit for relief from such discriminatory denial of employ-

ment.

2. There are questions of law or fact common to this

class. The common questions of law involve the appliea-

tion of the principles of disparate impact, enunciated in

Griggs v. Duke Power Co, and its progeny and in the Uni-

form Guidelines on Employee Selection Procedures, to the

Correctional Officer written examination. The common

questions of fact include the disparate impact of the ex-

amination and whether its is a valid predictor of job per-

formance and justified by business necessity. These com-

mon questions of law and fact have been resolved in favor

of the class by the Court’s order eranting partial sum-

mary judgment (Doe. 157).

LD J

8 The claims of the representatives of this class are

typical of the claims of the class. Intervenors Smith,

Platt. Baber, Cozart, Jones and Oyefesobi all have been

denied employment because they failed the Correctional

Officer written examination. Intervenor Platt also was

denied employment becanse of a subsequent low score on

that examination. -

4. The representatives of this class will fairly and

adequately preteet the interests of the class. They have

done and continue to do everything possible, within the

dramatically changing contours of Title VII law, to pro-

tect the interests of this class. In 19s2, when Falcon v.

General Telephone Co, of the Southwest east doubt upon

the ability of the then class representatives to meet the

requirements of Rule 23, Intervenor Smith immediately

came forward to take up the banner on behalf of this class.

App. 69

Likewise, when the Court of Appeals vacated the 1982 or-

der certifying the class, Intervenors Platt, Baber, Cozart,

Jones and Ovefesobi immediately indicated their desire

and ability to assist as class representatives. The class is

represented by counsel who are experienced in complex

Title VII litigation, and who have made and continue to

make every effort in this litigation to weather the unpre-

dictable storms of Title VII law.

). This class seeks certification pursuant to Rule

25(b)(2) because the Defendants have denied employment

to all members of the class on grounds generally applicable

to the class, to-wit, the Correctional Officer written exam-

ination which has an adverse impact on black applicants,

thereby making injunctive relief appropriate.

Request for Evidentiary Hearing

Piaintifts and Intervenors request an evidentiary

hearing on this Motion, to supplement the existing record.

Respectfully Submitted

‘s/ Harry L. Witte

Jerry G. Traynham

PATTERSON & TRAYNHAM

P.O. Box 4289

Tallahassee, Florida 32315

(904) 224-9181

ATTORNEYS FOR PLAINTIFFS

App. 70

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore-

rong has been provided by US. Mail, postage prepaid, to

Harry F. Chiles, Assistant Attorney General, The Capitol

Suite 1501, Tallahassee, Florida, 32301, and to Bruce A.

Minnick, Esquire, Mang, Rett & Collette, P.A.. Suite 740

Barnette Bank Bldg., P.O. Box 11127, Tallahassee, FL.

9930-2127, this 10th day of February, 1988.

s/ Harry L. Witte

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