# Petition for Writ of Certiorari — Liberty Mutual Insurance Company, a Corporation v. Sandra Wetzel and Mari Ross, on Behalf of Themselves and all Other's Similarly Situated > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0809%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 421 U.S. 1011 ## Text SANDRA WETZEL and MARI ROSS, on behalf of themselves and all others similarly situated, Petitioners, Vv. LIBERTY MUTUAL INSURANCE COMPANY, Respondent. PeTInon For A Warr or CERTIORARI TO THE Unrrep States Court or APPEALS FOR THE THinp Cincurr INDEX TABLE OF CITATIONS ..........ceccccccccceee PETITION FOR A WRIT OF CERTIORARI...... COPEINIRING BAAS oo csc c i cece nsnsccnsscsesssece FUER MED 6 a nGnnhecena eX ccvaveuntenvessen’ QUESTION PRESENTED.................e000- STATUTORY PROVISION INVOLVED.......... STATEMENT OF THE CASE ................0.. REASONS FOR GRANTING THE WRIT......... The Court of Appeals Has Decided an Important Question of Federal Law Which Has Not Been, But Should Be, DOE OY SUP CAEED, ov cs cewcccecucesacsices LAAT sock acvadsavanessebacsnssavsnsess ake — INDEX TO APPENDIX Page Opinion of the United States Court of SI aeUN Abad dhe dedcnveesceass la Amended Judgment of the United States Court of Appeals 2/14/75 ............0.ce eee da District Court’s Memorandum Order on Plaintiffs’ Motion to Determine Class PS aS Les clase takwh de erecuvenecsse 35a District Court’s Memorandum Order on Pending Matters 12/6/73 .............-.206. 38a Opinion of the District Court 1/9/74 ............. 43a Order of the District Court 1/9/74 ............... T4a District Court’s Memorandum and Amended EE cece ssabis bus hoe bred oneobenes 76a Table of Citations TABLE OF CITATIONS Cases Air Line Stewards & Stewardesses Association v. American Airlines, Inc., 9 FEP Cases 101 (N.D. Ill., November 18, 1974)................ Alexander v. Gardner-Denver Co., 415 U.S. Se CE Grae cece aN ea Ad hh Gk Ghia hee on Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir. 1971), cert. denied, 404 U.S. We MTD eaehbe shah Vaated sh cies Rd cbs becnss Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971) ................. Hamm v. City of Rock Hill, 379 U.S. 306 (1964) .... Macklin v. Spector Freight Systems, Inc., 478 F.2d Se EEE sie wpacccacbasadcesaniners McDonnell Douglas Corp. v. Green, 411 U.S. ere ea bes Cains sicne sakes bcc es Strauss v. Douglas Aircraft Co., 404 F.2d 1152 MCCS LK Rr eich oe se s.0e bs 94090600 United States v. Masonry Contractors Association, 497 F.2d 871 (6th Cir. 1974) .................. STATUTES AND RuLes or Court Pub. L. No. 92-261, §4(a), 86 Stat. 104 ............. Be Us, SUPER) CFE baba ccdscecnsicsercsicss ns ee IE ia bv ew 6550 ne 6.65 00s'en 0000s 0% TE UBAs, Ferre OE OO. chs vicccicnvescsncncvess 42 U.S.C. §2000e-5(d) (1970)...................0.. 42 U.S.C.A. §2000e-5(e) (1974) ................28.. 42 U.S.C. §2000e-6(a) (1970) .................0.0.. 42 U.S.C.A. §2000e-6(c) (1974) ...............0008 OTHER SOURCES Remarks of Senator Humphrey, 110 Cong. Rec. PE cc idwekikeheswi wed ei cawiwadesans Remarks of Senator Javits, 110 Cong. Rec. 14191 SEP Rc ce Rhed Nee eb tbRad een dsaakibibeseene a | | | | | | | ' ' | | ; } ' ' | j OG LE tel A PRT Fan AD gn the Supreme Court of the United States Ocroser TERM, 1974 No. 74- SANDRA WETZEL and MARI ROSS, on behalf of themselves and all others similarly situated, Petitioners, Vv. LIBERTY MUTUAL INSURANCE COMPANY, Respondent. PETITION FOR A Writ oF CERTIORARI TO THE UNireD STATES CourT OF APPEALS FOR THE THIRD CIRCUIT Petitioners Sandra Wetzel and Mari Ross pray that a writ of certiorari issue to review that portion of the judgment of the United States Court of Appeals entered on January 23, 1975, which vacated the judgment of the United States District Court for the Western District of Pennsylvania entered in favor of former employees of Liberty Mutual Insurance Company who left the employ of Respondent more than 210 days before the filing of Petitioners’ administrative charge with the Equal Employment Oppor- tunity Commission. 2 Opinions Below, Jurisdiction and Question Presented OPINIONS BELOW The following opinions are printed in the Appendix to this Petition: 1. Opinion of the Court of Appeals dated January 23, 1975, as amended, February 25, 1975, reported at 508 F.2d 239 (3rd Cir. 1975) (1a);! 2. Unreported Memorandum Order of the District Court dated August 16, 1972, holding that Petitioners’ action was maintainable as a class action, but limiting the class to present and future employees of the Respondent (35a); 3. Unreported Memorandum Order of the District’ Court dated December 6, 1973, which, inter alia, redefined the class to include former employees (38a); 4. Opinion and Order of the District Court dated January 9, 1974, granting Petitioners’ motion for partial summary judgment on liability (43a, 74a). The opinion is reported at 372 F. Supp. 1146 (W.D. Pa. 1974); 5. Unreported Memorandum and Amended Order of the District Court dated March 19, 1974, entering judgment in accordance with Fed. R. Civ. P. 54(b) (76a). JURISDICTION The opinion and judgment of the Court of Appeals were issued on January 23, 1975. This Petition for Certiorari is filed within ninety days therefrom. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1) (1970). QUESTION PRESENTED Is the time provision for filing a charge with the Equal Employment Opportunity Commission contained in section “a” references herein are to the designated page number of the Appendix. PELE AI OY ICL OE SLI I OS PEC LGS EPA NEE RIE NAR SE NCE MSG AB a SN LE WET BLE My aioe ST TRL, CPM FETE LS REAL YY TARE APL OE See ONE TUE ME dae DOIN” OED: Lai SUAS? =, Statutory Provision Involved , : 3 706(d) of the Civil Rights Act of 1964? a jurisdictional bar to recovery in a private “pattern and practice” class action where the employer’s discriminatory practices are shown to have been continuous from the effective date of the Act until after the filing of a charge? STATUTORY PROVISION INVOLVED The statutory provision involved is section 706(d) of the Civil Rights Act of 1964,5 42 U.S.C. §2000e-5(d) (1970), which provided: §2000e-5. Enforcement provisions. (d) Time for filing charges after occurrence of unlawful practices or termination of State or local enforcement | proceedings; filing of charges by Commission with State or local agency. A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred, except that in the case of an unlawful employment practice with respect to which the person aggrieved has followed the procedure set out in subsection (b) of this section, such charge shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful emp pyment practice occurred, or within thirty days after receiving | notice that the State or local agency has terminated the proceedings under the State or local law, whichever is_, earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. 242 U.S.C.§2000e-5(d) (1970), now, as amended, 42 U.S.C.A. §2000e- ° S(e) (1974). 3The subsection was, amended by the Equal Employment Oppor- tunity Act of 1972, Pub. L. No. 92-261, §4(a), 86 Stat. 104, to extend the time for iiling charges and to add the requirement that notice of the charge be served on the employer within ten days after filing. See 42 U.S.C.A. §2000e-5(e) (1974). The effective date of the amendment was March 24, 1972, after the filing of the Petitioners’ Complaint in the District Court. area 4 Statement of the Case STATEMENT OF THE CASE This action was commenced as a class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C, §§2000e et seq.., to obtain injunctive, declaratory and monetary relief. Petitioners have, successfully challenged Respondent's _ ‘hiring, promotion and pregnancy related practices as sex discriminatory. Respondent i is a casualty insurance company with offices throughout the United States. Both men and women are employed in the Claims Department in what the Respondent classifies as a “technical” capacity. Within the “technical” classification are Claims Adjusters and Claims Representatives, each of whose basic function is the application of the necessary technical skills to investigate and bring about'the proper disposition of claims. While each _ is anentry level position open to college graduates, the salary of an Adjuster is considerably higher than that of a Representative. The opportunities for promotion are unlimited for the Adjuster; they are severely limited for the Representative. Prior to the Petitioners’ filing of charges with the EEOC, the position of Adjuster was staffed predom inantly by‘malcs; the position of Representative was staffed predominantly by females. Respondent’s employment policies relating to preg- nancy have varied somewhat since the July 2, 1965, effective date of Title VII. From 1948 until March, 1967, a pregnant employee was not permitted to work beyond her sixth month of pregnancy under any circumstances and was discharged by the Resporident at that time. In March, 1967, Respondent modified its leave policy slightly so that a pregnant employee was not discharged until after her eighth month of pregnancy. This policy of automatic termination continued until September, 1970, when, as an‘alternative to discharge, Respondent required its employees to take uncompensated leaves of absence after the eighth month of pregnancy and to return to work no later than six months ORL EO CORRELL AI LO NE ani WAP scat: OF 4s Statement of the Case 5 from the commencement of the leave or three months from the date of delivery, whichever came first. The policy was modified to its present form in November, 1971, to enable an employee to work prior to delivery for as long as her physician verifies her ability to continue. The same mandatory return dates, which apply only to maternity leaves and not to other leaves of absence for other temporary disabilities, remain in force. Respondent also requires its employees to participate in an income protection plan as a condition of employment. The plan, which is funded in part through mandatory employee contributions, provides employees with income during periods of disability. Respondent pays no benefits under the income protection plan for any disability related to pregnaycy. Leaves or temporary absences due to pregnancy related disabilities are not covered. Mrs. Wetzel worked for Respondent as a Claims Representative from J uly, 1967, until August, 1973. Mrs. Ross worked for Respondent as a Claims Representative from early 1970 to September, 1972. On May 14, 1971, Petitioners, who were employed at Respondent's Pittsburgh office, filed charges of sex discrimination with the Equal Employment Opportunity Commission. They had filed a previous charge with the appropriate state agency. After the EEOC issued right to sue letters, Petitioners commenced this nationwide class action on February 28, 1972, alleging that the Respondent's hiring and promotion policies and its preg- nancy related policies as to the female technical employees in its Claims Department violated Title VII.‘ On August 16, 1972, the District Court ordered that the suit was maintainable as a class action and that the ‘Petitioners alleged further that Respondent's policy of paying higher salaries to Claims Adjusters than to Claims Representatives is unlawful. - Since this claim was not susceptible of summary judgment treatment, a non-jury trial was had. The trial was concluded in January, 1975. Final judgment has yet to be entered. AA AO Sin Sari cteeddiieiadaiaemmmaeeae __) @ ¥ E stceaihiiiaediemaiaiiene. 6 Statement of the Case nationwide class would include present and future female technical employees in Respondent's Claims Department. On December 6, 1973, the District Court amended its order and defined the class as follows: “The class represented by plaintiffs shall include all female technical employees who were, are, or will be employed in the defendant's claims department from and after July 2, 1965, without limitation to territory in the entire geographical area where defendant does business.” On January 9, 1974, the District Court ruled that the Respondent’s hiring, promotion and pregnancy related practices were violative of Title VII. The Court also found that Respondent’s policies of denying the benefits of its income protection plan to females with pregnancy related disabilities and of requiring such employees to return to work within a time limit applicable to no other disability or to be fired were the “proper subject of injunctive relief.”(75a). On February 20, 1974, the District Court, pursuant to Fed. R. Civ. P. 54(b), directed the entry of final judgment on the pregnancy related issues. On March 19, 1974, the District Court, again pursuant to Fed. R. Civ. P. 54(b), directed the entry of final judgment on the hiring and promotion issues. Respondent took separate appeals from the February 20 and March 19, 1974, orders. In Wetzel v. Liberty Mutual Insurance Co.,__F .2d (No. 74-1233, 3rd Cir., February 11, 1975), petition for cert. docketed at No. 74-1245, Respondent asserted that the District Court had erred in finding its pregnancy related practices unlawful. The Court of Appeals affirmed the summary judgment, holding that “Liberty Mutual’s income protection plan and maternity leave policy are violative of Title VII of the 1964 Civil Rights Act.” Id., slip opinion at 17. a: WER CIEE EF LEIA NTR TELE LE IT TENT TEEN TINT Statement of the Case 7 In the appeal which resulted in the judgment challenged : here by Petitioners, Respondent contended that the District : Court had erred in finding the challenged hiring and promotion practices violative of Title VII and in resolving the class action aspects of this case. In Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (No. 74-1515, 3rd Cir., January 23, 1975) (la),° a separate panel of the Court of Appeals affirmed the District Court’s judgment in all respects except the one challenged here by Petitioners. Relevant to this Petition, the Court of Appeals held that: (1) the claims of employees who left the employ of Respondent more than 210 days before the filing of charges with the EEOC by Petitioners were time barred by the “statute of limitations” contained in section 706(d) of the Civil Rights Act of 1964 (8a); and (2) since the filing of a charge with the EEOC is a “jurisdictional” requirement, the Court could consider the issue on appeal even though Respondent failed to raise it in the District Court (7a, n. 8). The Court of Appeals vacated that part of the District Court’s judgment in favor of the Kespondent’s former employees whose claims were held to be time barred. @ IASG EYES LT EIN LOL LSI LE TEI TD REASONS FOR GRANTING THE WRIT The Court of Appeals Has Decided an Important Question of Federal Law Which Has Not Been, But Should Be, Settled By This Court. This case involves an issue of national importance concerning the administration of Title VII of the Civil Rights Act of 1964 in a class action context. On the one hand, the Court of Appeals held Respondent’s discriminatory hiring and promotion practices to be continuing violations of Title ‘Liberty Mutual Insurance Company sought and received two stays of the mandate of the Court of Appeals. It has filed its own Petition For Writ Of Certiorari with this Court at No. 74-1288. 22 RS <5 Khe ve ih Sa) Rin ac . Fes Sle 7 EEE PINGS S OES LIP EE LOTS EG TNA OIE Be ty Ce | OE Se aaa a cle eee Mea Ces re cae a e Pe AB aes ee ot 8 Statement of the Case VII which would have permitted the filing of a charge with the EEOC by a present employee at any time (8a).° The Court of Appeals also held that a plaintiff can maintain a class action on behalf of employees who had not filed charges with the EEOC (7a). On the other hand, however, the Court held that employees who had left the Respondent’s employ more than 210 days before the Petitioners filed their charges could no longer file charges with the EEOC, and that those females therefore must be excluded from the class for failure to satisfy a “jurisdictional” prerequisite to suit in the District Court (7-8a). Petitioners contend, initially, that the former em- ployees’ inability to comply with the time provision contained in section 706(d) does not erect a jurisdictional impediment to suit.‘ This provision is merely part of an administrative remedy which must be exhausted by one individual litigant, not the entire class of aggrieved employees. The purpose of the provision is to ensure that the purported grievance is not stale and to afford the EEOC the opportunity to investigate and conciliate. See Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971). Here, Respondent was apprised of the charges and was afforded ample time to conciliate and change its practices. And while the Respondent was found to have modified its hiring and promotion practices subsequent to the filing of the charges, its other employment practices remain unaltered. *This holding is consistent with established law. See, e.g., Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973); Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir. 1971), cert. denied, 404 U.S. 939 (1971). “While Petitioners are aware that this Court has stated twice that the timely filing of a charge with the EEOC is a “jurisdictional” prerequisite, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Alexander v. Gardner-Denver Co., 415 U.S. 987 (1974), in neither case was the statement necessary to this Court’s holding or made in a class action context. Statement of the Case ) Since it is unnecessary for more than one employee to file charges with the EEOC as a prerequisite to a Title VII class action suit, it was unnecessary for any former employee of Respondent to attempt to file charges with the EEOC. Once the administrative process initiated by Petitioners had ceased, former employees could file suit directly in the District Court. The legislative history concerning the administrative procedure is revealing. In addressing the issue of whether any filing with the EEOC is necessary, Senator Javits stated: “The Commission does not hold the key to the courtroom door. The only thing this title [Title VII} gives the Commission is time in which to find that there has been a violation and time in which to seek conciliation ... . “But, Mr. President, that is not a condition precedent to the action of taking a defendant into court. A complainant has an absolute right to go into court, and this provision does not affect that right at all.” 110 Cong. Rec. 14191 (1964). Senator Humphrey, sharing the same view, added: “The individual may proceed in his ownright at any time. He may take his complaint to the Commission, or he may go directly to court.” 110 Cong. Rec. 14188 (1964). Senator Humphrey's statement is significant here since this Court has relied on his interpretations, as the bill’s floor manager in the Senate, in construing other provisions of the Civil Rights Act of 1964. See Hamm vt. City of Rock Hill, 379 U.S. 306, 311 (2964). Under this reasoning, Title VII contains no express statute of limitations, and thus the applicable statute of limitations is the most analagous state statute, the benefits of which Respondent waived by its failure to raise the defense in the District Court. Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155 (2d Cir. 1968); United States v. Masonry Contractors Association, 497 F.2d 871 (6th Cir. 1974). Alternatively, Petitioners submit that the time provision sete BWM Ot cll hata nd leah AR Me OP SEY I ANDES PRN te TY ROG DSR I, EY AIO LB 10 Statement of the Case contained in section 706(d) is no more than a statute of limitations which also can be waived. Air Line Stewards & Stewardesses Association v. American Airlines, Inc., 9 FEP Cases 101 (N.D. Ill., November 18, 1974). Of further significance to the disposition of the issue raised by this Petition is the fact that Petitioners, acting as “private attorneys general,” alleged and proved a “pattern and practice” of sex discrimination by Respondent. Paragraph 11 of the Complaint alleged, inter alia, that: “ .. defendant has enacted and effected national policies and practices of unlawful and systematic exclusion of and discrimination against women as a class.” The trial and appellate courts have held that Respondent continuously violated Title VII from the effective date of the Act until subsequent to the Petitioners’ filing with the EEOC. Clearly, the Attorney General could have brought a “pattern and practice” suit under section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. §2000e-6(a) (1970).*° In such a case, the Attorney General could have recovered back pay on behalf of the employees excluded from the class by the Court of Appeals. United States v. Masonry Contractors Association, 497 F.2d 871 (6th Cir. 1974). The same result should obtain where Petitioners have instituted a private “pattern and practice” class action, so that the Respondent’s former employees are not prejudiced by the Attorney General's failure to act. ‘The Attorney General's function has been transferred to the EEOC. 42 U.S.C.A. $2000e-6(c) (1974). Conclusion ll CONCLUSION For the reasons stated above, Sandra Wetzel and Mari Ross, on behalf of themselves and all others similarly situated, pray this Honorable Court to grant this Petition For A Writ Of Certiorari to review the issue raised herein on the merits. Respectfully submitted, Howarpp A. SPECTER, LITMAN LITMAN HARRIS & SPECTER, P.A. 1320 Grant Building Pittsburgh, Pennsylvania, 15219 RosBert F. STONE FINE, PERLOW & STONE 1528 Frick Building Pittsburgh, Pennsylvania 15219 Attorneys For Petitioners PS ACUI ne Jn the Supreme Court of the United States OcroBer TERM, 1974 No. 74- SANDRA WETZEL and MARI ROSS, on behalf of themselves and all others similarly situated, Petitioners, V. LIBERTY MUTUAL INSURANCE COMPANY, Respondent. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CourT OF APPEALS FOR THE THIRD CiRCUIT NO PMY a eS Opinion of the Court of Appeals la United States Court of Appeals For THE THirp Circuit No. 74-1515 SANDRA WETZEL and MARI ROSS, on behalf of themselves and all others similarly situated, Equal Opportunity Commission as amicus curiae Vv. LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Appellant (D.C. Civil Action No. 72-169) APPEAL FROM THE UNITED STATES District Court For THE WESTERN DistRICT OF PENNSYLVANIA Argued October 30, 1974 Before STALEY, ALDISERT and RoseENn, Circuit Judges — 2a Opinion of the Court of Appeals OPINION OF THE COURT (Filed January 23, 1975) Rosenn, Circuit Judge This appeal raises significant questions concerning the management of class actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (1970), as amended Equal Employment Opportunity Act of 1972, 42 U.S.C. §2000e et seq. (Supp. II, 1972). Appellant, Liberty Mutual Insurance Company (Liber- ty Mutual), is a casualty insurance company with offices throughout the country. Both men and women are employed in the claims department of these offices in what the appellant terms a “technical” capacity. Within its claims department are adjusters and representatives, each of whose basic functions is the application of the necessary technical skills to investigate and bring about the proper disposition of claims against the company. While each is an entry level position open to college graduates, the salary of a claims adjuster is considerably higher than that of a claims representative. The possibilities for promotion are unlimited for the claims adjuster; they are severely limited for the claims representative. Before the filing of charges in this case by the appellees, Sandra Wetzel and Mari Ross, the position of claims adjuster was staffed predominantly by males; the position of claims representatives was staffed predominant- ly by females.! ; Wetzel and Ross were employed as claims represen- tatives in the Pittsburgh office of the company. Bothdesired the higher paying adjuster’s position but were informed by the Company that it was not open to women. Dissatisfied with the Company’s policies, they filed charges of sex 1. The differences in Liberty Mutual’s hiring and promotional practices as to claims representatives are set out in greater detail, infra at pp. 28-30. ' Opinion of the Court of Appeals 3a discrimination with the Pennsylvania Human. Relations Commission (PHRC) on May 11, and with the Equal Employment Opportunity ae (EEOC) on May 14, 1971. The filing of these charges nl led the Company to reassess its policies concerning these positions. In August, 1971, the Company decided to recruit women to become claims adjusters and reviewed its roster of claims represen- tatives to ascertain if any such representatives were interested in, and qualified for, the position of claims adjuster. This decision eventually led to the hiring of approximately 10% of the claims re as claims adjusters. After the filing of the charges with PHRC, the Company offered Wetzel and Ross positions as claims adjusters. Because of information which they had received from PHRC concerning back pay, and because of their belief that the job offer was accompanied by unacceptable conditions, they rejected the offer. Since PHRC had failed to conciliate the parties, Wetzel and Ross were issued right to sue letters by the EEOC. On February 28, 1972, Wetzel and Ross commenced a class action alleging that the Company’s hiring and promotion policies and its pregnancy related policies as to the female technical employees in its claims department violated Title VII. They further alleged that the Company’s policy of paying higher salaries to claims adjusters than to claims representatives violated the Equal Pay Act of 1963, 29 U.S.C. §206(d) (1970). In response to Wetzel’s and Ross’ motions, the district court, on August 16, 1972, ordered that the suit was maintainable as a class action? under Rule 23(b)(2) and that the class would include “all present and future female technical employees in the defendant’s claim department 2. All references to rules are references to the Federal Rules of Civil Procedure. -_ Se 4a Opinion of the Court of Appeals without limitation to territory in the entire geographical area where defendant does business.” On September 14, 1972, the court refused to require notices to be sent to the proposed nationwide ¢lass and declined to maintain the class under Rule 23(b)(3). In its final order of December 6, 1973, the court amended the class to include former, as well as present and future female technical employees, and reaffirmed its determination to maintain the class under Rule 23(b)(2), rather than Rule 23(b)(3). The court acknowledged, ~ however, that the class was maintainable under: either subsection. It also saw “no immediate necessity of the class action notice required of actions proceeding under Fed. R. Civ. P. 23(b)(3).” No notice had been sent to any members of the class as of the date of. this appeal. On March 26, 1973, Wetzel and Ross moved for wablta summary judgment.’ Counsel for both sides agreed that the equal pay claim was not susceptible to summary judgment treatment because disputed issues of fact existed as to whether the work performed by claims representatives was equivalent to that performed by claims adjusters. On January 9, 1974, the court entered an interlocutory order that the pregnancy related policies of the Company violate Title VII, “are continuing violations and are the proper subject of " injunctive relief.” On February 20, 1974, the district court rendered final the interlocutory order. A notice of appeal was filed and was docketed at No. 74-1233. That appeal is presently before another panel of this court and the issues in that appeal do not concern us here. The district court inits interlocutory order of January 9, 1974, also ruled that the hiring and promotion policies of the Company violated Title VII, but denied injunctive relief‘ 3. Only the question of liability was to be decided at that time. Determination of the relief to be granted was left for further proceedings. : 4. The opinion of the district court is reported at 372 F. Supp. 1146 (W.D. Pa. 1974). Opinion of the Court of Appeals 5a “{b]ecause the evidentiary materials show that at certain times subsequent to the filing of the administrative charge or the within Complaint the Defendant has ceased or discontinued the discriminatory practice[s].”"> In an un- successful attempt to avoid piecemeal appeals, the court, on March 19, 1974, rendered final this part of the interlocutory order. In this appeal, Liberty Mutual has asked us to review the district court’s management of the class action and its granting of summary judgment against the challenged hiring and promotion policies. I ® A. Jurisdiction Preliminarily, we note that, despite Wetzel’s and Ross’ contentions, we have jurisdiction to review the class action aspects of this case. The district court, pursuant to Rule 54(b), rendered final the partial summary judgment as to the Company’s hiring and promotion policies on March 19, 1974. The determination of the class became final for the purposes of 28 U.S.C. § 1291 at that time. The notice of appeal, filed April 15, 1974, was timely as to all aspects of that judgment. including the determination of the affected class. B. Scope of Review Before examining Liberty Mutual's contentions, we must first decide the appropriate scope of review of the district court’s actions. The extent of the scope of review is of the utmost importance for, in some instances, it effectively determines whether the actions of the district court wi!’ be sustained. Lengthy deliberations on the subject are not necessary, however, because the question is settled in this circuit by the recent case of Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 43 U.S.L.W. 3197 (October 15, 1974), in which Judge Gibbons wrote: 5. Id. at 1163. — us 5 RLS RAN a RRR BL ORE SOAS VERE SRG TAPE ELAR AS Fe Oe 6a Opinion of the Court of Appeals [The scope of review] will depend to some extent upon which facet of the multi-faceted determination is challenged on appeal. The district court must determine if the four prerequisites for a class action listed in rule 23(a) have been met. These are mandatory re- quirements, and our review decides whether the mandates have been met. The district court must also determine whether the class action is maintainable under rule 23(b)(1) or (2) so that it may proceed without notice to or identification of the class members. Our review will determine whether the court properly classified the type of class action in reaching its decision as to class action treatment. Id. at 756 (citations omitted). Inasmuch as the district court appropriately applied the criteria of Rule 23(a), the scope of our review is whether the trial court did abuse its broad discretion.® II The mandatory requirements of Rule 23(a)* must first be met to maintain a class action. Liberty Mutual has made 6. The scope of review is summarized by Professor Moore: In determining whether an action brought as a class action is to be so maintained the trial court should carefully apply the criteria, set forth in Rule 23. . . , to the facts in the case; and if it fails to do so its determination is subject to reversal by the appe!!ate court when the issue is properly before the latter court. On the other hand, where the trial court does apply the Rule's criteria to the facts of the case, the trial court has [a] broad discretion in determining whether the action may be maintained as a class action and its determination should be given great respect by a reviewing court. 3B J. Moore, Federal Practice 4 23.50 at 1104-05 (2d ed. 1974), quoted with approval in Katz v. Carte Blanche Corp., 496 F.2d at 757. 7. Rule 23(a) provides: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. PLE OE OD Opinion of the Court of Appeals 7a numerous attacks on the determination made by the district court that the requirements of 23(a) had been met. After careful consideration of its contentions, we need to discuss only two. First, Liberty Mutual contends that it was error to include in the class all female technical employees who had been employed since July 1, 1965. It contends that employees whose claims are time barred by the statute of limitations contained in then section 706(d) of Title VII, 42 U.S.C. § 2000e-5(d) (1970), should be excluded from the class.” We agree with Liberty Mutual that such individuals should have been excluded. At the time charges were filed with the EEOC, section 706(d) provided that where, as here, a charging party had instituted proceedings with a state agency which has jurisdiction over discriminatory employ- ment practices, a charge must be filed with the EEOC within 210 days of the occurrence of the alleged unfair practice.’ As stated in Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 986 (D.C. Cir. 1973): Since a suit in court depends on an agency notice to sue letter and since the agency cannot take the case initially unless the timely filing requirements are met, the timely filing requirements with respect to EEOC appears to be a jurisdictional prerequisite to court action under Title VII. A plaintiff may bring a class action on behalf of those who have not filed charges with the EEOC. Bowe v. Colgate- 8. Since the filing of a charge with the EEOC is a jurisdictional requirement, we may consider the issue here although Liberty Mutual did not raise it in the district court. 9. The Equal Employment Opportunity Act of 1972, Pub. L. No. 92- 261, $4, 86 Stat. 104 (March 24, 1972), extended the time for filing in such cases to 300 days and renumbered §706(d) as §706(e). The effective date of the amendment was March 24, 1972, after the filing of the complaint in the district court. 8a Opinion of the Court of Appeals Palmolive Co., 416 F.2d 711, 719-20 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). This tolls the statute of limitations for all members of the class. American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). But Wetzel and Ross cannot represent those who could not have filed a charge with the EEOC at the time they filed their charges. CWA v. New York Telephone Co., 8 F.E.P. 509, 513 (S.D. N.Y. 1974); Culbert [sic] v. General Electric Co., 5 F.E.P. 969, 993 (E.D. Va. 1973);Garneau v. Raytheon Co., 3 F.E.P. 1315 (D. Mass. 1971). This conclusion does not mean, however, as Liberty Mutual contends, that the numerosity requirement of 23(a)(1) has not been met. Wetzel’s and Ross’ charges alleged the maintenance of discriminatory hiring and promotion policies up to the time of the filing of their complaint. Such policies are continuing violations of Title VII and would allow a filing of a charge ai any time by a present employee. Macklin v. Spector Freight Systems, Inc., supra at 987-88. The only employees barred from the class are those who left the employ of the Company more than 210 days before the filing of the charges with the EEOC by Wetzel and Ross. The class will be larger than the approximately seven hundred female technical employees presently employed by Liberty Mutual, meeting the numerosity requirement of 23(a)(1). Of course, in the determination of the relief to which members of the class will be entitled, the district court should take into account the modification of the class required by section 706(d). The second attack on the district court’s determination that the conditions of Rule 23(a) have been met is the contention that Wetzel and Ross were not adequate representatives of the class as required by Rule 23(a)(4). Adequate representation depends on two factors: (a) the plaintiff's attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the hl a aie ANPING OTT BE a a ades! | : se Bed ob oe SMILE TIE SS LEC MELT AS. “en Opinion of the Court of Appeals Ya plaintiff must not have interests antagonistic to those of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 ( 2d Cir. 1968). Liberty Mutual does not dispute the district court's finding as to the competency of counsel but it does object to the court’s finding of “no conflict or antagonism betwen Wetzel’s and Ross’ claims and the claims of the class.” Liberty Mutual contends that employees, such as Wetzel and Noss, Who have voluntarily severed their employment prior to suit cannot adequately represent members of the class who are presently employed by the company. We note the existence of a dispute as to whether Wetzel’s and Ross’ termination of employment was, in fact, voluntary, but we will assume, arguendo, that they voluntarily severed their employment. We believe that a former employee, who is not entitled to reinstatement, may still be an adequate representative of a class of past and present employees alleging discriminatory employment practices.'° Whether a party adequately represents a class depends on all the circumstances of the particular case. 3B J. Moore, Federal Practice, 4 23.07[1] (2d ed. 1974) (hereinafter cited as Moore). That a person is no longer employed with a company and is not entitled to reinstatement is but one of the circumstances to be 10. A former employee has standing to bring such a suit. Hackett v. McGuire Bros., Inc., 445 F.2d 442 (3d Cir. 1971). We are aware that, in a similar situation, the Sixth Circuit has reached the opposite conclusion. Heard v. Mueller Co., 464 F.2d 190 (6th Cir. 1972). However, in Heard the former employee attempted to represent a class of present and prospective employees only. Here the class includes past employees as well. Further, the court in Heard decided that the company’s employment practices were not discriminatory before deciding the class action issue. Here, of course, no such determination was made. Finally, the only support for the holding in Heard was Huff v. N. D. Cass Co., 468 F.2d 172 (5th Cir. 1972), which was subsequently reversed in Huff v. N. D. Cass Co., 485 F.2d 710 (5th Cir. 1973) (en banc). ELE DORI NREL ON PEGE IE OER EGN SELIG IS LOSE NDEY PLIES IEEE NE BOONE II OREM OEE Rint SPOUT ONL BIR EA, SOO: 43% 7 q iz fe Sed ey Ket alg BR 4 ; i PSS ROS Cn REE ERD GE NN ee Ra aliens. LE AR EAR ee aor, 1a Piha aed LAN a TPesees 4 | : £ 3 3 4 a z 2 = 3 I AO OS pect 10a Opinion of the Court of Appeals considered in the determination of whether Rule 23(a)(4) has been met. In fact, as the court observed in Mack v. General Electric Co., 329 F. Supp. 72, 76 (E.D. Pa. 1971), with respect to plaintiffs who were former employees of the company, “being familiar with [the company’s] employ- ment practices and being free from any possible coercive influences of [the company’s] management, [the plaintiffs] are better situated than either job applicants or present employees to present an intelligent and strongly adverse case against [the company’s] alleged discriminatory prac- tices.” Moreover, were the position advanced by Liberty Mutual adopted, employers would be encouraged to discharge those employees suspected as most likely to initiate a Title VII suit in the expectation that such employees would thereby be rendered incapable of bringing the suit as a class action. Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.), cert. denied, 414 U.S. 854 (1973). In the present case, the district court specifically found that the requirements of Rule 23(a)(4) have been met. The interests of Wetzel and Ross in combatting the sexually discriminatory policies of the Company surely are coexten- sive with all female technical employees, whether formerly or presently employed. We do not perceive any interests of the former employees antagonistic to those of the present employees. The relief to be granted by the district court,"'! whether it takes the form of back pay, mandatory hiring of female claims adjusters, or increased promotional oppor- tunities for women will benefit all members of the class.!? 11. We intimate no opinion as to what relief, if any, is appropriate. 12. We believe that Air Line Stewards & Stewardesses Ass'n Local 550 v. American Airlines, Inc., 490 F.2d 636 (7th Cir. 1973), cert. denied, US, (1974), upon which Liberty Mutual relies, is distinguishable because there the relief to former stewardesses (reinstatement with no loss of seniority) would have been antagonistic to the interests of stewardesses presently employed with less seniority. Here, the only group whose Opinion of the Court of Appeals Ila We see no other factors revealing that the plaintiffs were not adequate representatives of the class. The district court did not abuse its discretion in holding that Wetzel and Ross adequately represented the class. Ill A. Characteristics of (b)(2) and (b)(3) actions In addition to meeting the mandatory requirements of Rule 23(a), the class must be maintainable under either subsection 23(b)(1), (b)(2), or (b)(3). In the usual class action, the determination of whether the action should proceed as a 23(b)(2) or as a 23(b)(3) action offers little difficulty. In the present case, however, the order of the district court finding injunctive relief unnecessary as to Liberty Mutual’s hiring and promotional practices in its 12. (Continued) interests are hostile to those of the class are the male claims adjusters, and they, of course, are not members of ‘he class. 13. Rule 23(b) provides: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making ap- propriate 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 for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of the 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 already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum: (D) the difficulties likely to be encountered in the management of a class action. : y ee ees Pe va whe RON DI Wapedia he ake AR eR OO UR ak ale en OEE SP AEE Fe PREF. em 12a Opinion of the Court vf Appeals claims department, because the Company's practices as to these issues have ceased, presents complications. Whether (b)(2) or not (b)(2) is indeed the question. In the instant case, the district court found that the class could be maintained under either 23(b)(2) or 23(b)(3), but exercising its discretion decided to maintain the class under 23(b)(2). Liberty Mutual vigorously contends that the class could only be maintained under (b)(3), and that the procedural prerequisites for maintaining a (b)(3) suit have not been met. We find no error in the district court's determination that the class was properly mafntainable under (b)(2). In reviewing Liberty Mutual's contentions, it is necessary to understand the basic nature of (b)(2) and (b)(3) suits and the res judicata effects of judgments upon members of the respective classes. A (b)(2) suit is permitted when the opposing party has acted or refused to act on grounds generally applicable to the class. Advisory Committee's Note to Proposed Amendments to Rule 23, 39 F.R.D. 69, 102 (1966) {hereinafter cited as Advisory Committee]. By its very nature, a (b)(2) class must be cohesive as to those claims tried in the class action. Note, Managing the Large Class Action: Eisen v. Carlisle & Jacquelin, 87 Harv. L. Rev. 426, 441 (1973). The rule recognizes that the res judicata effect of a judgment may only be tested in a subsequent action. Advisory Committee, supra at 106, citing Restatement of Judgments § 86, comment (h), § 116 (1942). Because of the cohesive nature of the class, Rule 23(c)(3)'* contemplates 14. Rule 23(c)(3) provides: (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a Class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. Opinion of the Court of Appeals 13a that all members of the class will be bound. Advisory Committee, supra at 106; C. Wright, Federal Courts § 72, at 314 (2d ed. 1970) [hereinafter cited as Wright]. Any resultant unfairness to the members of the class was thought to be outweighed by the purposes behind class actions: eliminating the possibility of repetitious litigation and providing small claimants with a means of obtaining redress for claims too small to justify individual litigation.'° Rule 23(b)(3) permits a class action where the questions of law or fact common to the class predominate over questions only affecting individual members and the “class action is superior to other available methods for the fair and efficient adjudication of the controversy.” While not a true successor to the “spurious” class action which existed prior to the 1966 amendments, Wright, supra at 312, the (b)(3) class action developed therefrom. In the spurious class action, members of the class would be bound by the judgment only if they intervened in the action. Moore, supra at 702. Various courts of appeals permitted intervention after a judgment favorable to the class. Many commentators objected that such one-way intervention resulted in binding the members of the class only when the class had won. To eliminate the unfairness of this one-way intervention, the Advisory Committee concluded that class members should be brought in prior to the determination of a defendant's liability, thus making the estoppel mutual. See Katz v. Carte Blanche Corp., supra at 759; Advisory Committee, supra at 105. Binding all members of a (b)(3) class, however, was not thought by the Advisory Committee to be as fair as binding all members of a (b)(2) class. By the very nature of a heterogeneous (b)(3) class, there would be many instances where a particular individual would not want to be included 15. See Katz v. Carte Blanche Corp., supra at 759; Wright, supra at 306. i4a Opinion of the Court of Appeals as a member of the class.'* To respect these individual interests, rule 23(c)(2)'" was written to afford an opportunity to every potential member to opt out of the class. See Katz v. Carte Blanche Corp., supra at 759; Advisory Committee, supra at 104-05. For the opt out procedure to be effective, 23(c)(2) also provides for notice to be sent to all potential members prior to the final determination of the class. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). With the potential unfairness to members of the (b)(3) class eliminated by the opt out procedure, 23(c)(3) contemplates that all members of the (b)(3), as well as members of the (b)(2) class, will be bound by the res judicata effect of the judgment. Wright, supra at 314. B. Appropriateness of (b)(2) for this action Liberty Mutual contends that this suit could not have been maintained as a class action under (b)(2) because such class actions are limited to only those suits in which final injunctive relief is found to be appropriate. In support of this 16. An excellent example is the situation found in Katz v. Carte Blanche Corp., supra, in which it was alleged that Carte Blanche violated the Truth in Lending Act in its disclosure of finance charges. Assume, contrary to the decision, that a (b)(3) class was allowed to be maintained. Carte Blanche might counterclaim against the members of the class for amounts owing from use of the credit card. A delinquent account debtor may well decide that a judgment for amounts owing will outweigh any benefits he might obtain from a favorable judgment resulting from the Truth in Lending Act violation. j 17. Rule 23(c)(2) provides: (2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel. “Sey AP PORE LA OAT Be Opinion of the Court of Appeals 15a position, Liberty Mutual relies on the language of (b)(2),'° the comments of the drafters of the rule,'’ and the case of Air Line Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra.”® The district court, after discovery and extensive briefing, considered whether the action here was properly maintained under (b)(2) three separate times. In its last memorandum order of December 6, 1973, the court indicated that maintenance under (b)(2) was proper because Liberty Mutual had “ ‘acted or refused to act on grounds generally applicable to the class’ and the representative plaintiffs seek among other remedies, ‘final injunctive relief or corresponding declaratory relief.” In his opinion of January 9, 1974, Judge Weber noted: Because the evidentiary materials show that at certain times . . . subsequent to the filing of the administrative charge or the within Complaint the Defendant has ceased or discontinued the discriminatory practices, injunctive relief is not appropriate as to those practices. 372 F. Supp. at 1163. The precise issue before us then is whether a district court, having determined that a Title VII suit brought in good faith for injunctive relief may be maintained under 18. See note 13 supra. 19. “[Subdivision (b)(2)] does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Advisory Committee, supra, at 102. See Moore, supra, at 654. 20. Airline stewardesses had brought suit seeking injunctive relief against the airlines’ policy of permanently discharging pregnant stewardesses. After the institution of the suit, the airlines eliminated the practice. The court noted: When the airlines ended their discharge policy, the actions became virtually moot as far as the currently employed stewardesses were concerned, and purely prospective relief against the practice became of little moment. The (b)(3) character of actions, while always present as to the discharged stewardesses, became even more obvious. 490 F.2d at 643. For a further discussion of the case, see note 30 infra. l6a Opinion of the Court of Appeals (b)(2), is required to redetermine that the suit be maintained under (b)(3) and comply with its procedural requirements once it concludes on a motion for summary judgment that changed conditions make injunctive relief no longer appropriate. We decline to so hold. First, a Title VII suit against discriminatory hiring and promotion policies is necessarily a suit to end discrimination because of a common class characteristic, in this case sex. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). The conduct of the employer is actionable “on grounds generally applicable to the class,” and the relief sought is “relief with respect to the class as a whole.” The class, all sharing a common characteristic subjected to discrimination, is cohesive as to the claims alleged in the complaint. Thus, a Title VII action is particularly fit for (b)(2) treatment, and the drafters of Rule 23 specifically contemplated that suits against discriminatory hiring and promotion policies would be appropriately maintained under (b)(2). Advisory Committee, supra at 102. Since a Title VII suit is essentially equitable in nature,”! it cannot be characterized as one seeking exclusively or predominantly money damages. Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir. 1974). The basic nature of a Title VII suit is not altered merely because the employer’s change of discriminatory policy prior to the motion for summary judgment has obviated the need for injunctive relief. The conduct of the employer is still answerable “on grounds generally applicable to the class,” and the relief sought is still “relief with respect to the class as a whole.” The cohesive characteristics of the class are 21. “Thus, the action and the relief authorized are essentially equitable in nature. This is true not only of traditional injunctive relief which may be granted, but also of the back pay award.” Franks v. Bowman Transp. Co., 495 F.2d 398, 406 (5th Cir.), cert. denied, 43 U.S.L.W. 3328 (December 10, 1974). e / ROT A BOLAND NA of OO WARY IN NAD Opinion of the Court of Appeals \7a ‘the vital core of a (b)(2) action. Functionally, these characteristics of the class are still intact in the suit. Nothing has changed to require the procedural protections of (b)(3) to determine the presence or absence of liability. The class is still appropriately maintained under (b)(2). Second, the language of (b)(2) does not support the ‘contention that (b)(2) actions are limited to final injunctive relief or declaratory judgments only. Rather, the language describes the type of conduct by the party opposing the class which is subject to equitable relief by class action under (b)(2). As recently stated in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974): : All that need be determined is that conduct of the party opposing the class is such as makes such equitable relief appropriate. This is no limitation on the power of the court to grant other relief to the established class, ‘especially where it is required by Title VII. . . . Liberty Mutual's policies at the time these charges were made were such that final injunctive relief was appropriate. This satisfies the language of the rule. The nature of these policies, and the nature of the class opposing these policies, does not change’ merely because subsequent action by Liberty Mutual eliminates the need for final injunctive relief. Moreover, although the court found that injunctive relief was unnecessary, it did determine the presence of liability on the part of Liberty Mutual. The court did not preclude the possibility of directing affirmative action,” in 22. The district court in its first class action order dated August 16, 1972, stated: ; [W]e find that the defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final _ declaratory or injunctive relief with respect to the class as a whole. Claims of sexual discrimination are particularly appropriate for such determination. 23. 372 F. Supp. at 1163. We do not suggest what relief, if any, may be appropriate. ; WES ——— 4 e ~ 18a Opinion of the Court of Appeals addition to back pay, to remedy conditions caused by the offensive discriminatory practices. Such affirmative action ultimately would, in effect, constitute final injunctive or declaratory relief. “No one has suggested that this [relief] violates the dictates of subdivision (b)(2).” Pettway v. American Cast Iron Pipe Co., supra at 257. . Courts have held that a (b)(2) class is appropriate in a Title VH suit where both fina? injunctive and monetary retief are granted. Franks v. Bowman Transp. Co., supra at 422; Pettway v. American Cast Iron Pipe Co., supra at 257; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th Cir. 1974); Robinson v. Lorillard Corp., 444 F.2d 791, 801-02 (4th Cir. 1971), petition for cert. dismissed, 404 U.S. 1006 (1972); Bowe v. Colgate-Palmolive Co., supra at 720. Maintenance of a class action under (b)(2) in a Title VII , action has also been held to be appropriate when the actions of the defendant after the complaint had been filed had obviated the need for final injunctive relief. Arkansas Education Ass'n v. Board of Education, 446 F.2d 763 (8th Cir. 1971). Additionally, only with the benefit of hindsight do we now know that injunctive relief against the Company's hiring and promotion practices was not necessary in this case. At the (c)(1) hearing, the district court specifically found that the conduct of Liberty Mutual made appropriate final injunctive relief.2‘ Requiring the court to reconsider _ and possibly redetermine the class at the time of the summary judgment application and redirect the course of the litigation with notice and other procedural requirements would inevitably complicate a type of litigation which by its nature is complex at its best. For this court to compel a redetermination of the class at that point probably’ would require the district court to consider the merits of the case, and ultimately would lead to a practice of holding a 2A. See note 22 supra. ! al ce a ee ti iP A i DAD pee CE RRA on PORT ERY 1 etd OO Cm PEE. Opinion of the Court of Appeals 19a preliminary hearing on the merits at the time of the initial (c)(1) class determination. This, of course, the Supreme Court has made clear the district court may not do: We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule .... [It] is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such “as soon as practicable after the commencement of [the] action... .” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). It is at the (c)(1) hearing that the class must be shown to possess the characteristics required by (b)(2). Of course, the district court may amend its determination at a later date. See 23(c)(1). But we decline to hold that a court must reconsider its determination when, at the decision for summary judgment, it finds injunctive relief to be inappropriate. Finally, we have reviewed the (b) (2) issue on this appeal as if the action in the district court involved only the hiring and promotion policies of Liberty Mutual. Wetzel and Ross, however, also attacked in the district court Liberty Mutual's pregnancy related policies, and its policy of paying higher salaries to claims adjusters than to claims representatives. Due to the piecemeal nature of the appeals from the district court, the only substantive issue before us involves the hiring and promotion policies, but in the absence of the argument by Liberty Mutual that different classes should have been created for different issues,° we must consider the propriety 25. Rule 23(c)(4)(A) permits an action to be brought or maintained as a class action as to particular issues only. See note 25 infra. From our review of the record, it does not appear that Liberty Mutual had requested the district court to maintain the class under (b)(3) as to its hiring and promotion policies while maintaining the class under (b)(2) for the other issues. In this court Liberty Mutual has only attacked the maintenance of the class as a whole. PRESALE PLT ALI EG IB LAPS 20a Opinion of the Court of Appeals of the class determination in the light of all the substantive issues raised in the district court. Liberty Mutual has changed, as a result of the charges brought by Wetzel and Ross, neither its pregnancy related policies, nor its higher salary policy to claims adjusters. In the event these policies are found to be violative of Title VII, final injunctive relief will be necessary as redress. The (b)(2) nature of the class, while visible as to the promotion and hiring issues, becomes translucent when viewed in the light of the multifaceted attack upon Liberty Mutual's policies. Liberty Mutual also contends that if the requirements of both (b)(2) and (b)(3) are met, the court should certify the class under (b)(3) to provide the procedural protections, namely notice and opting out, which (b)(3) affords members of the class. Virtually every class action meeting the requirements of 23(b)(2) will also meet the less severe requirements of 23(b)(3). Van Gemert v. Boeing Company, 259 F. Supp. 125, 130 (S.D. N.Y. 1966). If the actions are classified under (b)(3), members of the class could elect to opt out and thereby not be bound by the judgment. This would permit the institution of separate litigation and would defeat the fundamental objective of (b)(2), to bind the members of the class with one conclusive adjudication. Van Gemert v. Boeing Company, supra at 130-31. As discussed above,”6 the procedural protections of (b)(3), opting out and notice, are necessary because of the heterogeneity of the (b)(3) class. They are unnecessary for the homogeneous (b)(2) class. The recent Supreme Court decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), does not support the Company’s contention. Eisen does not extend the (b)(3) notice requirement to (b)(2) actions, nor to actions maintainable under either (b)(2) or (b)(3). We therefore agree with the Van Gemert principle that an action 26. See pp. 13-15 supra. ia aie LPL DAIL IIE SELIG IT VAPOR VEEN OR SLIME A ORLY RAE Opinion of the Court of Appeals Qla maintainable under both (b)(2) and (b)(3) should be treated under (b)(2) to enjoy its superior res judicata effect and to eliminate the procedural complications of (b)(3) which serve no useful purpose under (b)(2). This principle has been widely adopted in the federal courts. See Moore, supra 4123.31[3] and cases cited therein. C. Inclusion of former and future employees ¥ & ¥ F , Liberty Mutual asserts that the inclusion of former employees in the (b)(2) class was an abuse of discretion because such employees, even at the time of the filing of the complaint, could only have been interested in monetary relief. It again relies on Air Line Stewards & Stewardesses Association Local 550 v. American Airlines, Inc., supra.” A short answer to this contention is that former employees may well be interested in the eradication of the Company’s discriminatory policies and their effect. Employees who had despaired of becoming claims adjusters, or of receiving promotions to positions higher than those of claims representative supervisor, may well desire to renew their employment with Liberty Mutual if the discriminatory practices are terminated. Moreover, even if the former employees were in- terested in only monetary relief, Rule 23(c)(4)(B)* permits, but does not require, the district court to divide the class into appropriate subclasses. Such subdivision is required where the class includes . . . subclasses with divergent interests, or where certain representatives adequately represent only one group and other representatives represent another group. 27. See note 20 supra. 28. Rule 23(c)(4) provides: (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. oud P we on yong ~a9TRS . a9 MOP EET AL Dw 1 4 “s PE LY ID ALIN Ao ME — | DAO APE ME ITS 22a Opinion of the Court of Appeals Moore, supra, 4 23.65 at 1251, and cases cited therein. Here, as we have observed, the interests of the former and present employees in this class action are congruent: the elimination of, and relief from, Liberty Mutual's discriminatory policies. We do not perceive any interests of the two groups which are mutually antagonistic. We also believe that the former employees can adequately represent the interests of the present employees.’ The district court did not abuse its discretion by failing to create subclasses.” Liberty Mutual additionally contends that inclusion of future employees in the class is improper because injunctive relief has been found to be unnecessary by the district court. As noted above,*! the district court may well conclude that affirmative relief is necessary to completely dissipate the effects of the Company’s discriminatory policies. If it so finds, the inclusion of future employees in the class may be useful. However, if the court should find that such affirmative relief is unnecessary, inclusion of future employees would appear to be improper. 29. See p. 9 to p. 11, supra. 3. The congruence of interests and absence of antagonism between the two groups distinguish this case from Air Line Stewards & Stewardesses Association Local 550 v. American Airlines, Inc., supra, both as to this issue of subclasses and the issue of whether the class was properly maintained under (b)(2). See pp. 15-20. In Air Line Stewards, American Airlines and TWA had permanently discharged stewardesses who became pregnant. The Association, certified bargaining representative for airline cabin attendants, brought suit to enjoin the practice, and after the companies terminated the practices, negotiated a settlement. Objecting stewardesses appealed approval of the settlement by the district court. The appellate court noted that the Association, which was composed of active airline attendants, could not adequately represent the former attendants because the two groups had conflicting interests. The former stewardesses would desire reinstatement with no loss of seniority, leap- frogging them over less senior active stewardesses. Seniority had an important effect on promotions, trip assignments, and other aspects of employment. The court, desirous of allowing the former stewardesses to opt out of the settlement, held that a (b)(3) subclass should have been created. Here, we perceive no need for former employees to opt out. 31. See p. 18 supra. Opinion of the Court of Appeals 23a IV Liberty Mutual contends that if the action is main- tainable under (b)(2), we should hold that notice should have been given prior to determination of liability to all members of the class, either under our supervisory powers over the circuit district courts or under the requirements of due process.” Suits brought by private employees are the cutting edge of the Title VII sword which Congress has fashioned to fight a major enemy to continuing progress, strength, and solidarity in our nation, discrimination in employment. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Class actions, which allow attorneys to receive fees commensurate with time and effort expended on what often are complex and difficult litigations, are powerful stimuli to enforce Title VI. The imposition of notice and the ensuing costs often discourage such suits. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974). Therefore, we are reluctant to impose notice requirements under our supervisory power for Title VII (b)(2) actions unless Rule 23 so requires or unfairness will result to the parties. Rule 23 definitely does not require mandatory notice for (b)(2) actions. By its terms, the mandatory notice re- 32. There is a serious question whether Liberty Mutual, during a colloquy with Judge Aldisert, abandoned its due process contention at oral argument. We consider the contention, found in the written brief, because the colloquy is not altogether clear and because of the Company's reliance on Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968). Eisen’s requirement of notice in (b)(2) actions was predicated on due process not, as Liberty Mutual contended at oral argument, on the supervisory power of the court. 33. Rule 23(c)(2) in pertinent part provides: Ya Opinion of the Court of Appeals quirement of (c)(2) applies only to actions maintained under (b)(3). Whether the court should require notice to be given to members of the class to make a determination, [of whether a class should be maintained under (b)(2)] or of the order embodying it, is left to the court's discretion under subdivision (d)(2). Advisory Committee, supra at 104. We will not presume to exercise supervisory powers, as urged upon us by counsel for Liberty Mutual, to mandate notice which the Federal Rules of Civil Procedure, promulgated by the Supreme Court under authority from Congress, 28 U.S.C. $2072, specifically do not require. Moreover in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), the Supreme Court held that there should be strict adherence to the notice requirements of Rule 23(c)(2). In the light of Eisen, deviation from the literal requirements of the rule would be incongruous and, at the same time, would also fly in the face of its spirit. As discussed supra,** mandatory notice is required in (b)(3) actions for the effective operation of the “opt out” provision, which is essential to protect the interests of individuals in the heterogeneous group. The “opt out” procedure, however, is not necessary for the protection of interests of individuals in the homogeneous (b)(2) class. In the instant case, determination of liability on the part of Liberty Mutual to each member of the class depends on whether it discriminated on the basis of sex. This question is common to the claims of all members of the class. “In the degree that there is cohesiveness or unity in the class . . . the 33. (Continued) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. . . . 3A. See pp. 14-15 supra. Opinion of the Court of Appeals 25a need for notice to the class will tend toward a minimum.” Advisory Committee, supra, at 106. In this proceeding, the fundament for claims of each member of the class rests squarely on the same issue and the need for individual notice is superfluous. The due process argument presents a more difficult question. Liberty Mutual primarily relies on dictum in Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564-65 (2d Cir. 1968) that notice is required as a matter of due process in all representative actions and 23(c) (2) merely requires a particular form of notice in 23(b) (3) actions. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Several courts of appeals and district courts have followed this dictum.*> Wetzel and Ross counter with the following dictum of this circuit in Katz v. Carte Blanche Corp., 496 F.2d 747, supra at 756: The district court must also determine whether the class action is maintainable under rule 23(b) (1) or (2) so that it may proceed without notice to or identification of the class members. We believe that this battle of the dicta lends scant assistance to either party.°6 We believe it preferable to analyze the 35. Schrader v. Selective Serv. Sys. Local Bd. No. 76, 470 F.2d 73 (7th Cir.), cert. denied, 409 U.S. 1085 (1972); McCarthy v. Director of Selective Serv. Sys., 322 F. Supp. 1032 (E.D. Wis. 1970), aff'd per curiam on other grounds, 460 F.2d 1089 (7th Cir. 1972); Zeilstra v. Tarr, 466 F.2d 111 (6th Cir. 1972); Pasquier v. Tarr, 318 F. Supp. 1350 (E.D. La. 1970), aff'd per curiam on other grounds, 444 F.2d 116 (5th Cir. 1971); Newman v. Avco Corp., 43 U.S.L.W. 2135 (M.D. Tenn. Sep. 6, 1974). 36. With the exception of Newman v. Avco Corp., supra, the cases in the preceding footnote are suspect in their precedential value on the notice issue because of their confused procedural history. In Gregory v. Hershey, 311 F. Supp. 1 (E.D. Mich. 1969), the district court rendered a declaratory judgment that the class before it was entitled to fatherhood deferments from Selective Service. The Gregory court had not provided members of the class with notice. Plaintiffs in the cases upon : 5 F . ; i 4 i $ | : OCD 6B PRY HI Na 26a Opinion of the Court of Appeals problem in light of the policies underlying the constitutional requirement of due process. The due process problem surfaces because the class action judgment binds all members of a (b) (2) class. The Second Circuit in requiring notice relied solely on Mullane v. Central Hanover [sic] & Trust Co., 339 U.S. 306 (1950), which concerned the judicial settlement of accounts by the trustee of a trust fund created under state banking law. The Court held that the State could not assert jurisdiction over the trust beneficiaries unless notice were mailed to all whose names and addresses were known, and notice by 36. (Continued) which Liberty Mutual relies claimed to be members of the class in Gregory. Schrader v. Selective Serv. Sys. Local Bd. No. 76, 329 F. Supp. 966 (W.D. Wis. 1971), held the judgment binding despite the lack of notice. Pasquier v. Tarr, 318 F. Supp. 1350 (E.D. La. 1970), and McCarthy. v. Director of Selective Serv. Sys., 322 F. Supp. 1032 (E.D. Wis. 1970), rejected plaintiff's res judicata claims by relying on the dicta in Eisen. Following the decisions in the preceding paragraph, Gregory was reversed. The reversal of Gregory on the ground that the court had lacked subject matter jurisdiction, 436 F.2d 513 (6th Cir.), cert. denied, 403 US. 922 (1971), sent these cases back to court and produced several new ones. Pasquier and McCarthy were affirmed on appeal but on the ground that Gregory was void for lack of subject matter jurisdiction. See McCarthy v. Director of Selective Serv. Sys., 460 F.2d 1089 (7th Cir. 1972); Pasquier v. Tarr, 444 F.2d 116 (Sth Cir. 1971). Schrader was reversed because “the absolute failure to give any indicia of notice to absent members render[ed] the purported class in Gregory futile.” Schrader v. Selective Serv. Sys. Local Bd. No. 76, 470 F.2d 73, 75 (7th Cir.) cert. denied, 409 US. 1085 (1972). Zeilstra v. Tarr, 466 F.2d 111 (6th Cir. 1972), reversed another district court decision holding Gregory binding on the grounds that Gregory had been void, for lack of both notice and subject matter See Note, Collateral Attack on the Binding Effect of Class Action Judgments, 87 Harv. L. Rev. 596-97 (1974), upon which the foregoing analysis is predicated. We are inclined to believe that the courts in the above cases reached for the notice requirement as an answer to the complex res judicata effect of the class action rather than carefully considering whether due process actually requires notice to absent members of the class. Opinion of the Court of Appeals Tia publication given to those beneficiaries who were unknown or contingent. Mullane, however, denied that individual notice was required in every action. The Supreme Court plainly stated that it had not committed itself to any formula in achieving a balance between the interests of the State and the interests of the individual parties in the litigation or in “determining when constructive notice may be utilized or what test it must meet. Personal notice has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents.” Id. at 314. Because the Court linked the requirement of notice to the particular circumstances of each case, it is important to note that the situation in Mullane is significantly different from the situation in a (b) (2) class action. First, Mullane dealt with the established interests of individuals in specific property, a common trust fund. Second, the interests of all the beneficiaries in that fund were not identical; some were entitled to interest income, while others were concerned with capital growth. These interests were represented by different guardians, but the personal interests of the guardians functionally differed from the interests of the beneficiaries. Therefore, a significant possibility existed that they did not adequately represent the beneficiaries in the action.” Third, the beneficiaries had a resident fi luciary asa caretaker of their interest in the trust “[b]ut it is their caretaker who in the accounting becomes their adversary.” Id. at 316. Under these circumstances, the possibility that parties having conflicting interests in specific property could be bound by an action of which they have no actual notice and brought by parties who possibly could represent those interests inadequately does violate due process. This possibility could not occur in a (b) (2) action. 37. See Comment, Adequate Representation, Notice and the New Class Action Rule; Effectuating Remedies Provided by the Securities Laws, 116 U. Pa. L. Rev. 889, 912-13 (1968). 28a Opinion of the Court of Appeals The very nature of a (b) (2) class is that it is homogeneous without any conflicting interests between the members of the class. Since the class is cohesive, its members would be bound either by the collateral estoppel or the stare decisis effect of a suit brought by an individual plaintiff. Thus, as long as the representation is adequate and faithful, there is no unfairness in giving res judicata effect to a judgment against all members of the class even if they have not received notice. Adequacy of representation of the class is a mandatory requirement for the maintenance of a class action under Rule 23(a). If the representation proves inadequate, members of the class would not be bound. Hansberry v. Lee, 311 U.S. 32, 44-46 (1940). Gonzales v. Cassidy, 474 F .2d 67 (5th Cir. 1973). Of course, there may be circumstances when the court, in its discretion, believes that notice to the absent members of the class is necessary for the fair conduct of the action. Rule 23(d) (2) anticipates such situations and permits the court to then require such notice. In most cases, however, “[n]otice would add little or nothing.” Moore, supra, at 1152. We decline, therefore, to hold that due process ineluctably requires notice in all (b) (2) class actions. We do not believe that Mullane overruled sub silentio the case of Hansberry v. Lee, supra, in which the Court was faced with the question of the res judicata effect to be given to a state class action. The Court wrote: It is a principle of general application . . . that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. oO oO o To these general rules there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a “class” or “represen- tative” suit, to which some members of the class are EG IPE LES RO LAS LEIA DO I EET OSI IR, wee Opinion of the Court of Appeals 29a parties, may bind members of the class or those represented who were not made parties to it. [T]his Court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it. Id. at 40-42. We believe that if there is truly adequate representation, the interests of absent parties to a (b) (2) class are protected. We thus agree with the framers of the rule,” several district courts that have expressly considered the question,” and several of the commentators” that notice to absent members © of a (b) (2) class is not an absolute requisite of due process. __ For the foregoing reasons, we have concluded that there was | no denial of due process in this case. es ARRON AND OUP OY TLE ROE MSTA ITT PME SE IRE NEE fo 38. There is a strong presumption that the rule is valid. See Hanna v. Plumer, 380 U.S. 460 (1965). 39. Northern Natural Gas Co. v. Grounds, 292 F. Supp. 619, 636 (D. Kan. 1968) (“the essential requisite of due process as to absent members of the class is not notice, but the adequacy of representation of their interests by named parties”); Dolgow v. Anderson, 43 F.R.D. 472 (S.D. N.Y. 1965) (“adequacy of representation, not form of notice, is the crucial consideration”). See Woodward v. Rogers, 344 F. Supp. 974, 980 (D. D.C. 1972) aff'd, 486 F.2d 1317 (D.C. Cir. 1973) (“where the adequacy of the representation of the class interests by the named parties is clear, where no apparent purpose would be served by notice to this wide ranging class . . . and where, indeed, judgment is in favor of the class, the essential requisites of due process have been met without further notice.”) 40. Moore, supra 4 23.55; Note, Constitutional & Statutory Re- quirements of Notice Under Rule 23(c)(2), 10 B.C. Ind. & Comm. L. Rev. 571 (1969); Comment, Adequate Representation, Notice and the New Class Action Rule; Effectuating Remedies Provided by the Securities Laws, 116 U. Pa. L. Rev. 889 (1968). Pyar | é ie aa WARES Peet PONIR REL OL BIAS FAL OOD AY IRENE AD TIE A TONG HER Sa yy rune spear gg PLR ER Tg POD a 3a Opinion of the Court of Appeals V Almost anticlimactically, we turn to the question of whether the district court properly granted Wetzel’s and Ross’ motion for summary judgment. To fully consider this questiion, we must review the evidence in some detail. The Company historically had employed claims adjustters but the position of claims representatives was not created until sometime in 1965. Of the 3,129 claims adjusters hired between July 1, 1965, and March 17, 1972, only two were women; they were hired after Wetzel and Ross filed . their administrative charges. During that same period, 2,329 persoms were hired as claims : 2presentatives of which 2,302, or 98.84% were women. During each year between 1965- 1969, an average of 1,441 adjusters worked for the Company; in none of those years were more than two: adjusters women. In 1970, the number of women female adjusters increased to 5 or 0.31% of the 1,645 adjusters employed that year. In 1971, that percentage increased slightly to 2.82. It does not appear that women were any less qualified to — become claims adjusters than men. When the Company decided to recruit women claims adjusters in 197], it found that of its then existing claims; representative force of 600 women, approximately 1/3 were considered qualified to become claims adjusters. Approximately 10% of the claims representatives were offered and accepted the claims adjusters’ position. This statistical evidence is buttressed by additional documentary evidence. The Company’s_ recruitment brochure describes the position of claims representative as “Fit for a Queen.” In contrast, the brochures entitled “A Management Career in Liberty Mutual’s Claims Depart- ment,” challenge the applicant with the inquiry, “Are you the right man?” / Opinion of the Court of Appeals _ dla Liberty Mutual's training manual, copyright 1970, is replete with reference to pronouns of the female gender.*! The evidence with respect to the Company's promotion policy is just as impressive. Promotions available to female claims representatives were only to positions of supervising claims representative and claims representative supervisor. Claims adjusters, however, could be promoted to those positions and to numerous other positions which could not be achieved without first being an adjuster. Between July 1, 1965, and January 18, 1973, the Company had not employed one woman as a branch office claims manager but had employed in the same position between 121 and 142 men annually. During the same period, no more than 9 or 1.65% of all persons employed on an annual basis as claims supervisors were women. Not one woman was promoted to claims supervisor from the ranks of claims representative between July 1965 until the end of 1969. Of the 97 persons promoted to claims supervisor in 1970, only 41. Typical are the following general instructions: This course consists of four text books and a Form Book, plus supplementary materials, designed to help you train your new Ciaims Representative. The first two text books covered A, AP & SA Claims—when your C.R. finishes Books 1 and 2 she will be able to process an automobile claim from first report to closing. Book 3 will equip her to handle L & S1. cases. Book 4 will teach her to handle X and SX cases... . ; : s ° e / ‘To get the most out of this training program, you should: b. Supply the trainee with required materials before she starts to work through any volume... . : ; ° © © e. Ask the trainee to complete the chapter on which she is working before going to change of pace activity. Use this program patiently. Let your C.R. take, within suggested limits, the time she needs to complete the course (emphasis supplied). RR STMT SE OAT ayy Pew CREAT 4 ee are, 32a Opinion of the Court of Appeals one was a woman. Again in 1971, only one woman was promoted. This statistical ‘evidence is also corroborated by the Company’s recruiting brochures. The brochures for claims representatives describes the only advancement opportunities as supervising claims representative and claims representative supervisor. The brochure for claims - adjusters refers to the glowing advancement opportunities available to the claims adjuster. ; Rule 56(c) provides that summary judgment shall be granted when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law.*? Rule 56(e) provides that the adverse party must by affidavit set forth specific facts ——— the existence of a genuine issue for trial: We are aware of the admonition that “[i]n the area of employment, with its complexities and variables, statistics must be analyzed with careful attention both to supportive and opposing facts.” Pettway v. American Cast lron Pipe Co., 494 F.2d 211, 230-31 n. 44 (5th Cir. 1974). But we also recognize the oft cited rule that “statistics often tell much and courts listen.” Alabama v. United States, 304 F.2d 583, 586 (5th Cir,) aff'd per curiam, 371 U.S. 37 (1962). In fact, statistics are particularly appropriate in Title VII class 42. Rule 56(c) provides in pertinent part: _ ... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. . 43. Rule 56(e) peovides, in pertinent part: aan for summary judgment is made and supported as i pengeyompre! ang bees fest aoa sBogetiaal or denials of his pleading, but his response, by affidavits, or as otherwise provided in this , must set forth specific facts showing that there is 2 genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. | _ oe * eae POE LOI LAI IO LES SST TO SE IAG” LIL LOO LIE Cae Opinion of the Court of Appeals 33a actions where it is the aggregate effect of acompany’s policy on the class which is important.“ Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), once the plaintiff has established a prima facie case of discrimination, the burden shifts to the empioyer to provide non-discriminatory reasons to rebut the prima facie case. The statistics in this case establish the existence of a prima facie case of sex discrimination. The burden thereupon shifted to Liberty Mutual to establish that these statistics were midleading or to establish non-discriminatory reasons for its policies. Despite its assurances that “good and sufficient reasons for the existence of these statistics, together with full explanation, will be offered in due course at the proper time,” the district court found that Liberty Mutual's response to plaintiffs’ motion “failed to address this burden at all, let alone rebut the Plaintiffs’ evidence.” The time for explanation has come and gone. We believe the evidence established as a matter of law the existence of sexual discrimination in violation of Title VIL The Company also raises eight disputed issues of material facts which it claims the district court either declared immaterial or improperly resolved. We have carefully examined each and find no merit in any of them. The judgment of the district court as to the maintenance of the class action will be affirmed. The part of its order which includes in the class past employees whose claims are time barred will be vacated. The district court's granting of summary judgment will be affirmed. 44. Numerous courts have relied on evidence of numerical disparity among classes of employees to prove discrimination under Title VIL. See. e.g., Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972): United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984 (1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954 (1971). Although all of these cases were decided after full trial, we see no reason why statistical evidence is less appropriate at a hearing on a motion for summary judgment. ition SRT RRT DDR FE Hee Bite EE, O87 Hig hale Nis aR OS RA ae MAR RY LENGE: Site NEL NS taicig OR SIT aa APIO ONDO EV EPEY = Bt ht 34a Amended Judgment of the Court of Appeals United States Court of Appeals For THE THirp Circuit No. 74-1515 SANDRA WETZEL and MARI ROSS, on behalf of themselves and all others similarly situated Equal Opportunity Commission as amicus curiae VS. LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Appellant (D.C. Civil Action No. 72-169) On APPEAL FROM THE UNITED States District Court FOR THE WESTERN DistTRICT OF PENNSYLVANIA Present: STALEY, ALDISERT and RosENNn, Circuit Judges AMENDED JUD@MENT This cause came on to be heard on the record from the United States District Court for the Western District of Pennsylvania and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court that that part of the order of the said District Court entered March 19, 1974 which relates to the maintenance of the class action be, and the same is hereby affirmed; that part of the said order which includes in the class past employees whose claims are time barred be, and the same is hereby vacated; that part of the order granting summary judgment be, and the same is hereby affirmed. Costs taxed against appellant. ATTEST: February 14, 1975 Clerk District @5urt’s Memorandum Order 8/16/72 35a Whited States District Court W. D. Pennsylvania SANDRA WETZEL and MARI ROSS on behalf of themselves and all others similarly situated, Plaintiffs, Vs. LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Defendant. Civ. A. No. 72-169 MEMORANDUM ORDER ON PLAINTIFFS’ MOTION TO DETERMINE CLASS ACTION The Court has allowed limited discovery to proceed before determination of Plaintiffs’ Motion for Class Action. Thereafter the parties submitted voluminous briefs and the court heard oral argument thereon. From the p!eadings, the evidentiary materials produced on discovery and the briefs of the parties we make the following determination. (1) The class is so numerous that joinder of all members is impracticable. The plaintiffs allegedly represent all female employees over the nation in the claims department of defendant's business, past, present and future, since 1965. Defendant admits to employing about 700 female claims represen- ne | RAR hy eter 36a ~—rDistrict Court’s Memorandum Order 8/16/72 tatives alone in this category, disregarding females in other categories in this department. (2) There are questions of law and fact common to the alleged class. Plaintiffs aver a company-wide policy of discrimination directed toward females which eliminates females from holding certain positions and limits pay, promotions and benefits. The plaintiffs charge a common claim of dis- crimination against a class of persons of which they are a part. The questions of law and fact necessary to determine plaintiffs’ rights are patently common to the class that they claim to represent; the existence of company-wide dis- criminatory employee practices based on sex. (3) The claims of the representative parties are typical of the claims of the class. Plaintiffs’ claims are that they are subject to discrimina- tion in employment practices because of their sex, and they allege that all members of their sex in the class of employees named are subject to the same discriminatory system. There is no conflict or antagonism between their claims and the claims of the class. (4) The representative parties will fairly and adequate- ly protect the interests of the class. The essential element in this determination is the qualification, experience and ability of the attorneys representing the representative parties, and there is no doubt in the court’s mind of their ability and energy as illustrated by the efforts demonstrated in the prosecution of this case to this date. In addition to the above elements we find that the defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final declaratory or injunctive relief with respect to the class as a whole. Claims of sexual discrimination are particularly appropriate for such determination. District Court's Memorandum Order 8/16/72 37a Because the declaratory and injunctive relief demanded can only be of benefit to those members of the class who are presently employed, or who may be employed in the future, we believe that under the present state of the record we must limit the class to such employees. Because of high turnover and changes of name and residence through marriage, we believe that the inclusion of past employees would make the class unmanageable. We believe that the class must be company-wide or nation-wide in scope, covering all employees of the defendant in that class throughout the nation because of the allegation of a company-wide policy of sex discrimination. It is, therefore, Ordered that Plaintiffs’ Motion for determination of class action be Granted pursuant to the provisions of Fed. R. of Civ. P. 23(c)(1), and that the class represented by plaintiffs include all present and future female technical employees in the defendant's claims department without limitation to territory in the entire geographical area where defendant does business. This Order is made conditional, subject to further Order of this court, and may be altered, amended or revoked prior to a determination on the merits. Pending notification to the class, neither plaintiffs or their counsel, nor defendant, nor its counsel shall solicit or otherwise contact the class concerning the pending litigation independently or in the absence of court approval. This Order shall not affect the rights of the parties or counsel to contact members of the class in the ordinary course of business or discovery. Upon application of the parties or either party the court will consider the form and manner of notice which may be given to the class, or any part of it, as to any matter arising out of the conduct of this action as a class action. So Ordered this 16th day of August, 1972. /s/ GeraLp J. WEBER Gerald J. Weber United States District Judge oe | 38a __— District Court's Memorandum Order 12/6/73 Wnited States District Court * ° (Caption—72-169) ° ° MEMORANDUM ORDER ON PENDING MATTERS Pursuant to a conference of counsel held on December 3, 1973 it appears to this court that certain determinations are now necessary for the orderly advancement of the above entitled litigation. Accordingly, the following pending matters will be considered herein: (1) whether the class action shall proceed under Fed. R. Civ. P. 23(b)(2) or under Fed. R. Civ. P. 23(b)(3); (2) what redefinition of the plaintiff class is now appropriate; (3) whether, at what time and in what form, notice should be addressed to class members; (4) plaintiffs’ Motion for an Order Compelling Dis- covery filed December 3, 1973; and (5) plaintiffs’ Motion for Reconsideration filed December 3, 1973. 1. This class action is at least arguably proper for treatment under either Rule 23(b)(2) or 23(b)(3). Rule 23(b)(2) is applicable because the defendant “has acted or refused to act on grounds generally applicable to the class” and the representative plaintiffs seek, among other remedies, “final injunctive relief or corresponding declaratory relief.” Subdivision (b)(3) may also be applicable because of the presence of common questions of law and fact and because, in the judgment of this court, a class action is superior to any other available method for resolving the instant dispute with fairness and efficiency. PE OOO I EOI LE OE 5 LO LLL EY OLERG LI NEE ALL TE OLE. TIES INTE District Court's Memorandum Order 12/6/73 39a It may be argued that the primary purpose of this action is not the securing of injunctive or declaratory relief but is the recovery of money damages and, therefore, 23(b)(2) treatment is inappropriate. Wright and Miller, addressing this question, suggest avoiding such disputes and, so long as the prerequisites of Rule 23(a) have been met, allowing the action to proceed under subdivision (b)(2). 7A Wright and Miller, Federal Practice and Procedure § 1775, p. 23 [1972 ed.}. In accord with this and the weight of other authority, it is hereby ORDERED that the class action, although proper for treatment under either subdivision (b)(2) or (b)(3), shall proceed under Rule 23(b)(2). See Johnson v. City of Baton Rouge, Louisiana, 50 F. R. D. 295, 300 [1970]; Zachary v. Chase Manhattan Bank, 52 F. R. D. 532, 534 [1971]; Mungin v. Florida East Coast Railway Co., 318 F. Supp. 720, 730-731 [1970], affd. 441 F. 2d 728 [5th Cir. 1971]; 3B Moore's Federal Practice § 23.31[3], pp. 23-526, 527. 2. The plaintiff class was first defined in this Court's Memorandum Order of August 16, 1972. It was there held that declaratory and injunctive relief could be of benefit only to present or future employees. Under the then existing state of the record it was thought that inclusion of past employees would render the class unmanageable. The problems considered included the turnover rate in defen- dant’s female employees and changes of names and addresses through marriage. The court limited the class to all present and future female technical employees in defen- dant’s claims department. Plaintiffs’ counsel now allege and defendant's counsel does not dispute that the entire class is not likely to include more than 2,500 persons even if past employees are included. After discovering that the defendant maintains records of the names and the last known address of its We KE WROTE someeentcng 40a _ District Court's Memorandum Order 12/6/73 former employees, plaintiffs have moved for a redefinition of the class to add those past employees who can be located and identified by first class mail at the plaintiffs’ expense. The court’s concern with the manageability of the class action is allayed by counsel representation of a maximum class membership figure. Therefore, it is hereby ORDERED that the Memorandum Order of August 16, 1973 is AMENDED to add to the plaintiff class all former female technical employees of defendant who, on or after July 2, 1965, were employed in the defendant's claims department. Because no method of distribution or form of notice to the class has yet been approved it is not now necessary to adopt plaintiffs’ suggested limitation that class members be located and identified. It is ORDERED that the Memorandum Order of August 16, 1972 permitting plaintiffs, pursuant to Fed. R. Civ. P. 23 (c)(1) to proceed with this action as a class action be AMENDED as follows with respect to the class therein defined: The class represented by plaintiffs shall include all female technical employees who were, are, or will be employed in the defendant’s claims department from and after July 2, 1965, without limitation to territory in the entire geographical area where defendant does business. In all other respect the Memorandum Order of August 16, 1972 remains in full force and effect. 3. Having determined that the action shall proceed as a class action under Fed. R. Civ. P. 23(b)(2), we see no immediate necessity of the class action notice required of actions proceeding under Fed. R. Civ. P. 23(b)(3), nor of the application of the provision which authorizes notice to a class member of his right to request exclusion from the class by a specified date. IO MIT SAMEERA ig PT OIE “ “= -e ar) wo on = LLL T IOI CP OE District Court's Memorandum Order 12/6/73 4la However, Fed. R. Civ. P. 23(d)(2) allows, if required for the protection of members of the class or otherwise for the fair conduct of the litigation, that notice be given in such manner as the court may direct to some or all of the members of the class of any step in the action. The court, therefore, invites the application of counsel for approval of a form and method of distribution of such notice as may be advisable at any stage of this action. Prior to such application counsel shall meet and confer with a view to reaching agreement as to the desirability, form and manner of distribution of such notice, and shall report to the court in such application the areas of agreement as well as any area of disagreement. 4. Plaintiffs have moved to compel the production for examination of certain notes made by deposition witness Robert A. Penney contemporaneously with Mr. Penney’s interviews with the named-plaintiffs representative parties. In accordance with the oral instructions of the court of the conference of counsel on December 3, 1973 it is ORDERED that defendant shall respond to Plaintiffs’ Motion showing the cause, if any, why such production should not be ordered. _ Defendant shall file said Response on or before December 17, 1973. \ 5. Plaintiffs have also moved for reconsideration of our Order of November 27, 1972 which restricted Plaintiffs’ discovery. On consideration of the Motion, the represen- tations made therein, and the oral arguments made at the conference of December 3, 1973, it is ORDERED that: Defendant shall produce for inspection and copying by Plaintiffs’ counsel all statements taken by Defendant from any member of the class defined herein and reduced to \ Ft RE ROTO el — 42a District Court's Memorandum Order 12/6/73 writing concerning the recruitment, hiring, employment, job description, compensation, maternity leave and health insurance benefits of employees from and after July 2, 1965. Defendant shall also produce for inspection by Plaintiffs’ counsel the persounel file of any employee or former employee from whom such a statement was secured. The term “statement” as used herein shall include a written statement prepared or signed by said employee and any memorandum or summary of a statement made or interview conducted which was summarized or reported in writing by any other person. Otherwise, the restrictions of the Order of November 27, 1972 remain in effect. The court reserves for later determination when the need becomes apparent, Plaintiffs’ request for production of the last known names and addresses of former female technical employees in Defen- dant’s claims department. So Ordered this 6th day of December, 1973. /s/ GerALp J. WEBER Gerald J. Weber United States District Judge ce: All counsel Or AAA PAP OEE. Opinion of the District Court 1/9/74 43a IN THE Wnited States District Court ° ° (Caption—72-169) ° ° Jan. 9, 1974 OPINION Wesen, District Judge The two named Plaintiffs on behalf of themselves and all other female technical employees employed in Defen- dant Liberty Mutual Insurance Company’s Claims Depart- ment (the Company) have filed a Complaint charging that the Company discriminated against women in hiring, job classification, promotions, and in the compensation and job benefits they received for the jobs they were allowed to hold. The Representative Plaintiffs are Sandra Wetzel, a woman, who was hired by Defendant Company as a “Claims Representative” in July 1967, and Mari Ross, who was hired by Defendant Company as a “Claims Represen- tative” in September 1967. Both allege that they suffered discrimination by reason of their sex because of the hiring, job classification, pay differential, and employment benefit policies of Defendant Company and that these policies were applied to all female technical employees in the Defendant's Claims Department throughout the nation where Defendant Company did business. The court determined that the action should proceed as a class action covering all female technical employees in the Defendant's Claims Department in the entire geographical area where the Company did business. The class as now defined includes all such employees who were hired or working for the Company in its Claims Department since July 2, 1965, the effective date of Title VII of 42 U.S.C. §2000e et seq., the Equal Employment Opportunity Act of 1972. hoe yee RONG EE CEG Gre OTE OF 44a Opinion of the District Court 1/9/74 Extensive discovery has been employed and the Plaintiffs now file a motion for partial summary judgment on certain of the issues raised. I: is agreed between the parties thatt one of the issues, designated the “equal pay” issue, is not susceptible of summary judgment at this time because there are disputed issues of fact with respect to whether or not the work performed by women in the job classification of “Claims Representative” was equal to the work performed by men in the job classification of “Claims Adjuster” for which they were paid a substantially higher salary. However, the Plaintiffs at this time allege that there is no genuine issue as to any material fact with respect to the job classification under which men and women were originally hired as technical employees in the Claims Department, with regard to the promotional policy within the Claims Department, and with regard to the pregnancy and maternity leave policies of the Company including the disability income protection plan of the Company as applied to women on maternity leave. The key point of discrimination set forth in the pleadings, evidentiary material and briefs of the plaintiffs, and the amicus curiae brief of the United States Equal Employment Opportunity Commission is the hiring policy of the Company, since original assignment in effect determines the employee’s future chances of promotion within the Company. Because the Company in its Claims Department promotes from its own ranks, the opportunity for advancement depends upon the entry level position to which an employee is assigned upon first being employed by the Company’s claim division. Promotion to the higher rank of Claims Supervisor was limited to persons holding the position of Claims Adjuster and throughout most of the period under consideration through 1970 was limited to male employees because all Claims Adjusters were male. On the other hand the entry level classification in the Company's Opinion gd the District Court 1/9/74 45a Claims Department of “Claims Representative” was exclusively limited to women throughout most of the period under consideration here. There was no avenue of promo- tion to Claims Supervisor and higher supervisory positions from those personnel classified as “Claims Representatives” on entry into the Company in its Claims Division. There were two higher supervisory positions in the “Claims Representative” category, that of “Supervising Claims Representative” and “Claims Representative Super- visor”, but no promotion beyond the second rank. Although the line of responsibility from “Claims Representative Supervisor” runs to “Claims Supervisor” there is no similar line of promotion because all “Claims Supervisors” are drawn from the ranks of “Claims Adjuster”. / / ORC Abe PEM Matatie OLE APA OF Le oP ‘ 46a Opinion of the District Court 1/9/74 The lines of euhaaieien: and promotion are illustrated as follows: CLAIMS DEPARTMENT - . TECHNICAL EMPLOYEES Lines of Responsibility and Epemaation "Division Claims Manager | PI) ae EES? eR Branch Office Claims Manager | Branch Office Assistant Claims Manager / ‘ ' ‘ Claims Supervisor i a . Claims Representative Supervisor Claims Representative (CR) lines of responsibility lines of promotion _...._._..__- ‘The same educational requirements were in 1965 and thereafter until 1970 with respect to the hiring of “Claims Adjusters” and “Claims Representatives”, a college degree. No prior experience in the insurance business was required and in fact the Company did not hire persons who had worked’ for other insurance companies in its entry level positions in the Claims Department. - Although the Defendant Company had employed _ “Claims Adjusters” for a long period of time the position of “Claims Representative” was created in mid-1965. The position was created when the Company had decided to ‘ Opinion of the District Court 1/9/74 47a handle more of its claims work from inside its offices. A recruiting brochure for this position was prepared and circulated through college placement offices and employ- ment agencies. The qualification for the “Claims Represen- tative” position included a college degree. The recruiting brochure is entirely female oriented. Its title page bears the capiton and picture identifying the position as a job fit for a queen. It shows women in its illustrations of persons performing their duties in this capacity. Between July 1, 1965 and the end of 1966, 401 persons were hired for the positions of “Claims Representative”, not one of which was male. Between July 1, 1965 and March 17, 1972, 2,329 persons were hired as “Claims Representatives” of which 2,302 or 98.547 were women. The first male “Claims Representative” was hired in 1969, four in 1970, and twenty in 1971. During the period from 1965 until the end of 1970, the Company hired over 2,000 “Claims Adjusters”, not one of which was female. The recruiting brochure used by the Company during this period describing the position and duties of “Claims Adjusters” was entirely male oriented, its illustrations showing men performing the duties of the position, and bearing the legend in large type, “Are you the right man?”, and reciting the avenues of advancement from Claims Adjuster through Branch Office Claims Manager, Division Claims Manager, Manager Home Office Examiners’ Division, and so on up the ladder. The Company promoted to advanced positions in its Claims Department solely from those persons who had served it in the capacity of “Claims Adjuster”. The two Representative Plaintiffs were hired in the position of “Claims Representative” and they have deposed that in answer to their inquiries they were informed that the position of “Claims Adjuster”, the beginning of the promotional ladder in the Claims Department, was not available for women. It has been admitted by represen- 48a Opinion of the District Court 1/9/74 tatives of the Defendant that the two named Representative Plaintiffs were qualified for the position of “Claims Adjuster” at the time of the original hiring. It would serve little purpose to recite in detail the great mass of statistical evidence which the Plaintiffs have produced in support of their contention that the two initial entry positions were segregated between male and female applicants, that the educational requirement for both positions was the same, that no prior insurance experience was required for either position, that the functions per- formed in these positions were very similar, that the pay differential between the positions was substantial, being approximately $2,500 per year greater for the Claims Adjuster, that prior to 1971 no opportunity was given to women “Claims Representatives” to qualify for the position of “Claims Adjuster”, and that all promotions to higher positions in the Claims Department were made from the ranks of the exclusively male “Claims Adjuster” classifica- tion. In addition to the statistical evidence which is un- rebutted here the Plaintiffs have produced additional supporting evidence of the Company’s employment policies with respect to women in the Claims Division. Much of this 3 evidence is in the form of oral testimony and affidavits 7 which may be subject to a question of credibility but a good deal of the supporting evidence is documentary and supports the Plaintiffs’ contention of a recognized pattern of 3 treating the male and female employees in the Claims Department differently in respect to recruitment, hiring classifications, promotional opportunities, and salary. We are not speaking of salary or compensation with respect to the question of whether equal pay was given for the same work but in connection with the entry level salary paid for the two classifications and the salary differential between “Claims Representatives” of considerable ex- | en PERSIA Mra CRT IRAN SONS SSO A De® as EF OPE OI ELI GIT EPP BLE AOD ORY I BEE ELE E OF OOO. Opinion of the District Court 1/9/74 49a patsy ti aks | perience and the starting salary which they could receive when openings were finally made available to “Claims Representatives” to become “Claims Adjusters”. Two sections of Fed. R. Civ. P. 56 are applicable to our consideration of Plaintiffs’ motion for summary judgment. Fed. R. Civ. P. 56(c) provides in part: “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and [the] admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” and Fed. R. Civ. P. 56(e) which provides in part: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits, or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” The Plaintiffs have relied chiefly on statistical evidence in support of their contention of discriminatory employment policies and in many cases the courts have accepted such evidence in determination of whether Title VII has been violated. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 [8th Cir. 1970]; Witherspoon v. Mercury Freight Lines, Inc., 457 F. 2d 496 [5th Cir. 1972]; Bing v. Roadway Express, Inc., 444 F. 2d 687 [5th Cir. 1971]; Rowe v. General Motors Corp., 457 F. 2d 348 [5th Cir. 1972]. In accordance with these decisions and under the doctrine of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 [1973], once the plaintiff has established a prima facie case by setting forth statistics of this kind the burden is on the employer to sufficiently explain the disparity in + hiring; conclusory statements that the employer never te ETRE SOa Opinion of the District Court 1/9/74 discriminated in hiring is insufficient to satisfy this burden. As stated in McDonnell, supra, “The burden then must shift to the employer to articulate some legitimate, non- discriminatory reason for the respondent's rejection.” (p. 802, 93 S. Ct. p. 1824). We are of the opinion that the Defendant's response to the Plaintiffs’ motion for summary judgment fails to address this burden at all, let alone rebut the Plaintiffs’ evidence. The response of the Defendant raises eight issues of defense, as follows: 1 Neither of the named Representative Plaintiffs is currently in the employ of the Defendant. This is not a contested issue of fact. The Plaintiffs admit that both the representative party Plaintiffs have left the employ of Defendant and the question of whether or not their termination from employment was voluntary or forced by discriminatory employment practices of the Defendant is not an issue before us at this time. This is a matter of law concerning standing and it has been held that a former employee may bring an action to enforce rights under this statute claimed to have been infringed. In Hackett v. McGuire Bros., Inc., 445 F.2d 442 [3d Cir. 1971] this contention was rejected; “The national public policy reflected ...in Title VII. . . may not be frustrated by the development of overly technical judicial doctrines of standing or election of remedies. If the plaintiff is sufficiently aggrieved so that he claims enough injury in fact to present a genuine case or controversy in the Article III sense, then he should have standing to sue in his own right and as a class representative.” (pp. 446, 447). The Circuit Court continued: “A person claiming to be aggrieved may never have been an employee of the defendant. Indeed the Act SE LAZO OOO ~~ ¢ Pg EN REELS BS — ee ve . reer Se fi Opinion of the District Court 1/9/74 5la forbids discrimination not only by employers, 42 U.S.C. §2000e-2(a)(2), but also by potential employers, 42 U.S.C. §2000e-2(a)(1), by labor organizations, 42 U.S.C. §2000e-2(c), and by employment agencies, 42 U.S.C. §2000e-2(b). An aggrieved person obviously is any person aggrieved by any of the forbidden practtices. (pp. 445-446). An interesting commentary on the argument asserted to this court was made in Reed v. Arlington Hotel Co., Inc., 476 F. 2d 721 [8th Cir. 1973}: “ ..if this kind of an individual [a discharged employee, not seeking reinstatement] would! be prevented from bringing class actions as the rules permit, there would be a windfall for the employer, and when any such matter was coming up, all they would have to do is discharge the employee . . .” (p. 72:3). 2. The Defendant argues that the representative jparty Plaintiffs were offered “Claims Adjuster” status and has filed evidence to this effect. This is not denied by Plaintiff's but they contend that the terms of the offer were unaccepitable and were made after the charges of discrimination were filed in this case with the United States Equal Employiment Opportunity Commission in 1971. We find this to be a disputed issue of fact which may be relevant to the question of damages of the representative party ‘Plaintiffs, but irrelevant to the question of violation of the stafute which is before us. Under all circumstances, it is shown by the evidence that the offer of “Claims Adjuster” status was made long after the effective date of the statute in question, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0809%3A2. Public record. Not legal advice.