# Opposition Brief — Griffin v. Dugger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1295%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1005 ## Text seo 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 Ly Vv PENERS L. GRIFFIN, e¢ al., Petitioners, RICHARD L. DUGGER, et al., Respondents. tf. Vv BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ray Vv 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. il 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 Iv 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 Vv 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. © 1981 3 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 vi 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. O 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 under 42 U.S.C. © 1981 and Tithe VIL of the Civil Rights 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. 4 | | 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. 5) 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 6 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 10 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 12 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’ 1S 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 1 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 Suppor QO] rehe unsupported Sh) allowed view and iS Hever pre that iP KneW Smith iffin’s 1975 EEO haustion of admin ne rul PA-10Sa, lls | viel there 1s } emedies on the test. i that the district Smit] Interyvé ise Grilfin had no Zo £2 19?) 14935 ra, (24 | AG | l> alid cs &c Ff wdvay (} lith Cin 1OS23 ) | ithorities lvanced levi till and th ee ms for re 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 1 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 20 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 21 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. 23 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 67 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 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.” ae 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 ee 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. A. 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. helt dl ¢ ' ’ ] elaim under Titl a1 ult of tl ‘a 1 4] Lidl uiled the \ correctional Olt te dd i representa { tin Claims oO} ' ' ect the ame ’ (*¢ | neo} fc ici ie echnareve Of racial eondition to a 1S? y 7) { } ) 1] QO? JOLO-11 | | UrLINermMOre i el] () 1 The hol that Tile (| - } { C] ral a Cla In Oat ( ') ft} ( ’ LOGS Tid) Pie i ? 14) rirst eChTLO Aly | +, ( al 4 , ’ LQ] ‘ he ’ , ; +, 1] ‘ ‘? er ¢ ; hati saa4 il j QV) } ) i ;*? ' i ‘*T cl ( ? iValel Late) ( COrTVTeCTLOI } + ic’] ct Lite tepnciy { at fal mula and Y) ( Tro} rea ~e ; nde dl i i¢ ) l there ()T ‘ +] ‘a th aid ++} ; i Viti ‘? ( I*¢ iil (' { ‘ ,) sail cl f ‘? ‘ e) ( not } ( Del y> fi titi res ’ oni: ? ? ? Oo ( ra ( ( } ( ) ( ) 1+)