Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 35 EPD ¶34,647, Curtis F. Ray et al., Plaintiffs v. Phelps Dodge Brass Company et al., Defendants., (Jan. 04, 1983), (Jan. 4, 1983)

Curtis F. Ray et al., Plaintiffs v. Phelps Dodge Brass Company et al., Defendants.

United States District Court, Northern District of Alabama, Eastern Division.Civil Action No. CV81-PT-1579-E, January 4, 1983

Title VII--Civil Rights Act of 1964

Class Actions--Burden of Proof--Requirements for Certification.

--Discrimination claimants requesting certification of their suit as a class action were required to offer prima facie evidence that their claims related to practices affecting at least twenty other similarly situated persons and that those practices were connected to the claim of the class representative. The claimants were not yet required to prove the merits of their case. If further information was required for a ruling on class certification, it could be obtained through interrogatories.

Back reference.-- ¶2292.28 .

Robert L. Wiggins, Jr., and Robert F. Childs, Jr., Birmingham, Alabama, for Plaintiffs.

William F. Gardner (Cabaniss, Johnston, Gardner, Dumas & O’Neal), Birmingham, Alabama; Ralph D. Porch, Anniston, Alabama, for Defendants.

Propst, D.J.: This cause comes on to be heard, after plaintiffs and defendant have filed briefs, on Defendant Phelps Dodge Brass Company’s Second Motion to Compel Answers to Interrogatories and Motion for Sanctions filed on November 17, 1982.

There is pending before this court a Motion for Class Certification Hearing filed by plaintiff on August 30, 1982. Both in their complaint and said motions, plaintiffs have made general and conclusory allegations of class discrimination. [1] The specific claims of the named plaintiffs charge discriminatory disparate treatment and disparate impact which are alleged to result from the policies, practices, customs, and usages of the defendant. The caption of the complaint names the plaintiffs “individually and on behalf of all others similarly situated.” Defendant has sought by interrogatories factual information which would purport to support these allegations.

Plaintiffs argue that, “A review of the pertinent case law reveals that the information sought is irrelevant to both class certification and Stage I of trial on the merits.” Plaintiffs argue that the focus should be on the potential victims of discriminatory practices.

The most recent coverage of the subject by the Supreme Court of the United States is in General Telephone Co. of the Southwest v. Falcon, [29 EPD ¶32,781 ] No. 81-574, slip op. (U.S. June 14, 1982),--U.S.--, 102 S.Ct. 2364 (1982). In Falcon the Court stated:

Title VII of the Civil Rights Act of 1964, as amended, authorizes the Equal Employment Opportunity Commission to sue in its own name to secure relief for individuals aggrieved by discriminatory practices forbidden by the Act. See 42 U.S.C. §2000e-5(f)(l) . In exercising this enforcement power, the Commission may seek relief for groups of employees or applicants for employment without complying with the strictures of Rule 23. General Telephone Co. v. EEOC, [22 EPD ¶30,861 ] 446 U.S. 318. Title VII, however, contains no special authorization for class suits maintained by private parties. An individual litigant seeking to maintain a class action under Title VII must meet “the prerequisites of numerosity, commonality, typicality, and adequacy of representation” specified in Rule 23(a). Id., at 330. These requirements effectively “limit the class claims to those fairly encompassed by the named plaintiff’s claims.” Ibid.

We have repeatedly held that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.”

No. 81-574, slip op. at 8.

Further that:

The need to carefully apply the requirements of Rule 23(a) to Title VII class actions was noticed by a member of the Fifth Circuit panel that announced the across-the-board rule. In a specially concurring opinion in Johnson v. Georgia Highway Express, Inc., supra, at 1125-1127, Judge Godbold emphasized the need for “more precise pleadings,” id., at 1125, for “without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the employer does not know how to defend,” id., at 1126. He termed as “most significant” the potential unfairness to the class members bound by the judgment if the framing of the class is overbroad. Ibid. And he pointed out the error of the “tacit assumption” underlying the across-the-board rule that “all will be well for surely the plaintiff will win and manna will fall on all members of the class.” Id., at 1127. With the same concerns in mind, we reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.

No. 81-574, slip op. at 13.

Broadly read, Falcon would appear to allow defendant to discover all the type information requested in its interrogatories. However, the language quoted above must be considered in the context of the facts of that case. In Falcon, an employee filed an EEOC charge complaining of a denial of a promotion because of his national origin. The Fifth Circuit allowed this employee to represent a class of persons who had been discriminated against in hiring practices. This was allowed under Fifth Circuit’s “across-the-board” rule which held it permissible for “an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury [either race, sex or national origin discrimination].” Falcon v. General Telephone Company of the Southwest, [24 EPD ¶31,247 ] 626 F.2d 369, 375 (5th Cir. 1980). The Supreme Court rejected this “across the board rule,” because of its inherent failure “to evaluate carefully the legitimacy of plaintiff’s plea that he is a proper class representative under Rule 23(a).” The Supreme Court stated that, “The question presented is whether respondent Falcon, who complained that petitioner did not promote him because he is a Mexican-American, was properly permitted to maintain a class of Mexican-American applicants for employment whom petitioner did not hire.” No. 81-574, slip op. at 1 (emphasis added). Falcon is thus distinguishable from this case where one or more of the named plaintiffs have charged before EEOC and now complain of various discriminatory practices including practices relating to hiring, job assignment, promotions, terms and conditions of employment, discipline and discharge.

Notwithstanding the distinction between the charges and complaints in this case and those in Falcon, a portion of the above quoted language in Falcon does have specific application to this case. Recognizing that the plaintiff had charged and complained that he had been denied a promotion on discriminatory grounds, the Court referred to the:

[W]ide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner’s promotion practices, (2) that petitioner’s promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner’s Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner’s other employment practices, such as hiring, in the same way it is manifested in the promotion practices. These additional inferences demonstrate the tenuous character of any presumption that the class claims are “fairly encompassed” within respondent’s claim.

Respondent’s complaint provided an insufficient basis for concluding that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of petitioner to hire more Mexican-Americans. Without any specific presentation identifying the questions of law or fact that were common to the claims of respondent and of the members of the class he sought to represent, it was error for the District Court to presume that respondent’s claim was typical of other claims against petitioner by Mexican-American employees and applicants. If one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential company-wide class action. We find nothing in the statute to indicate that Congress intended to authorize such a wholesale expansion of class-action litigation.

No. 81-574, slip op. at 11.

All of the foregoing must be considered along with the holding in Eisen v. Carlisle & Jacquelyn, [7 EPD ¶9374 A] 417 U.S. 156 (1974), which forbids the trial court’s conducting “a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” 417 U.S. at 177. The synthesis which the court perceives as resulting from these cases is an area which lies between bare allegations and the proof of merit. This court concludes that while the plaintiffs need not prove the merits of their claims at this stage, they must offer prima facie proof (1) that their claims relate to the disparate impact of policy(s) or practice(s) in the various class categories which have affected at least twenty other employees of the same race and that the policy(s) or practice(s) have a nexus to the claim of the alleged class representative(s) of the putative class; or (2) that at least twenty putative class members have been subject to similar discriminatory disparate treatment as is claimed by the alleged class representative(s) in the various classes.

Plaintiffs” burden under (1) above will not require the interviewing of or statement of the specific claims of putative class members. Plaintiffs” burden under (2) above will require such statement.

Although plaintiffs argue that all of the information sought by defendant is irrelevant to determining if the prerequisites of Rule 23(a) have been satisfied, the defendant and the court should know at some point of the contentions of the plaintiff(s) with respect to:

(1) the size (in numbers) or approximate size and definition of the alleged and proposed class;

(2) the basis upon which the plaintiff claims to be an adequate representative of the class; and

(3) the specific questions of law and fact claimed to be common and typical to any class alleged.

Plaintiffs would have the defendant respond to a class certification motion based solely on general and conclusory allegations coupled with defendant’s own review of its own employment records without having been furnished any hint of the plaintiffs” contentions. Such a position is untenable. If plaintiffs” argument is accepted, a plaintiff in any employment discrimination class action can meet his initial burden by merely alleging a policy of discrimination, obtaining the employer’s records and saying to the defendant and the court “just look at the records.” Ultimately, the court will have to be advised of plaintiffs” contentions as to each putative class in order to rule on the certification motion. Both the court and the defendant are entitled to more than, “Defendant is guilty of class discrimination, this I know. For employer’s records tell me so.” To ascertain a party’s contentions is not to call for his attorney’s “work product.”

A review of the various cases referred to in Key 1513, Federal Civil Procedure, of West’s Federal Practice Digest, reflects that prior to 1970, the question of compelling answers to interrogatories soliciting contentions was unsettled, with many conflicting opinions. It was perhaps to lend some state of certainty that Rule 33 of the Rules of Civil Procedure was amended in 1970 to provide:

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact. ...

The court notes that most, if not all, of the conflicting cases under said Key 1513 were decided prior to 1970, and that cases decided since 1970 have consistently required answers to questions of the type posed here involving contentions, mixed questions of law and fact, or the application of law to fact.

Plaintiffs should review the allegations of their complaint, the motion for certification, and the data which has been ascertained by discovery. To the extent that plaintiffs continue to rely on said allegations, the information sought in certain interrogatories will be required. If plaintiffs determine that certain of the proposed classes or sub-classes are inappropriately alleged, plaintiffs may so state and not supply the required information. In any event, plaintiffs” answers must reveal information which goes beyond a “bare bones” claim that since plaintiffs allege to have been victims of discrimination, there is perforce class discrimination. In all categories, such information need not be sufficient to satisfy the court that the claims of others have merit.

Rather than, at this stage, require specific answers to specific interrogatories, the court will enter a separate order which will define the information which the plaintiffs must submit, in affidavit form, in support of the class allegations. After this information has been submitted, the defendant will be given an opportunity, if requested, to file further interrogatories to the extent allowed in the court’s order.

Order

This cause comes on to be heard on defendant Phelps Dodge Brass Company’s Second Motion to Compel Answers to Interrogatories filed on November 17, 1982.

This order is entered in accordance with a memorandum opinion entered contemporaneously herewith.

In lieu of requiring plaintiffs to respond to said interrogatories, the court Orders and Directs that plaintiffs, within 30 days after entry of this order, file summaries, supported by affidavits, [2] which reflect the precise basis on which class certification is sought. Said summaries will be provided as to each of the class categories of black employees which plaintiffs seek to represent. [3] As to each such category, plaintiffs will refer to:

(1) The proposed representative(s);

(2) The date said representative(s) filed a charge with EEOC and the manner in which said charge relates to said category;

(3) The date said representative(s) received a notice of right to sue;

(4) If the class allegations are based on claimed policies or practices which have a disparate impact, the plaintiffs are to:

(a) So state and are to specifically define the said policies or practices and the factual basis on which it is alleged that there is such a policy or practice. The information provided as to policy or practice must be specific and non-conclusory and must exceed allegations that the plaintiff(s) have been adversely affected or that there have been isolated examples of disparate treatment;

(b) The number of persons who have been adversely affected by said policy or practices; and

(c) Allegations and support as to how the representative plaintiff(s)” individual claims relate to said policies or practices;

(5) If the class allegations are based on collective disparate treatment, plaintiffs are to:

(a) List at least twenty names of the persons alleged to have been so affected;

(b) State how the claims of others listed are common and typical to those of the representative plaintiff(s).

All of the foregoing will be done in accordance with the Memorandum Opinion contemporaneously entered. Said data will be filed as part of the court record.

Within fifteen days after said data has been filed, defendant may file with the court a statement referring to any data supplied by plaintiffs for which defendant may claim there is no factual basis. Such references should not pertain to the truth of any of the named plaintiffs” individual claims, to inferences which might be drawn from the data supplied, nor to any other matters relating to the merits of the claims. [4]

After the court has analyzed defendant’s filing, if any, it will determine if defendant is entitled to further response to its interrogatories and will set a submission date for the motion for class certification.