Moorer v. South Carolina Brief for Appellees

    No. 87-

In  THE

Gkmrt rtf tlu> Inttefc States
October T e e m , 1987

P en er s  L . Gr ie e in , et al.,

v.
Petitioners,

R ichard  L . D ugger, et al.,
Respondents.

APPENDIX OF OPINIONS AND STATUTES TO 
PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

J u l iu s  L eV o n n e  C ham bers 
R onald L. E l l is  
C harles S t e p h e n  R alston 
Clyde E .  M u r p h y *

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

H arry L. W itte  
J erry G. T raynham

P atterson  and T raynham  
1213 Thomasville Road 
Post Office Box 4289 
Tallahassee, F lorida 32315 
(904) 224-9181

Counsel for Petitioners

#Counsel of Record



Table of Contents

Decision of the United States 
Court of Appeals for the 
Eleventh Circuit,
August 7, 1987 ................
Order of the United States 
District Court for the 
Northern District of Florida, 
Tallahassee Division,
March 12 1981 ................
Order of the United States 
District Court for the 
Northern District of Florida, 
Tallahassee Division,
July 30, 1982 ................
Memorandum Opinion of the United 
States District Court for the 
Northern District of Florida, 
Tallahassee Division,
August 25, 1983 ..............

Page

la

. 86a

95a

111a
42 U.S.C. § 2000e-5(b). . 189a



la
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
Northern District of Florida

No< 85-3831
Decided: August 7, 1987

PENERS L. GRIFFIN and HENRY L.
DEJERINETT,

Plaintiffs-Appellees,
v.

RICHARD L. DUGGER, etc., et al., 
Defendants-Appellants.

Before TJOFLAT and HATCHETT, Circuit 
Judges, and EATON*, Senior District Judge.
TJOFLAT, Circuit Judge:

I.
In April 1971, Peners L. Griffin 

became the first black road Prison 
Officer at the Tallahassee Road Prison, 
operated by the Florida Department of 
Corrections (FDOC or Department). Be-



2a
ginning in 1973, Griffin frequently 
sought promotion to higher-grade correc­
tional officer positions, as well as 
various other positions. On each occa­
sion, the FDOC turned him down.

In December 1974, Griffin's super­
visor fired him for disciplinary reasons. 
The next day, the Regional Superintendent 
reinstated Griffin because the supervisor 
had not followed proper termination 
procedures. In early 1975, the FDOC 
again terminated Griffin's employment, 
without notice, for disciplinary reasons. 
He appealed the termination to the State 
of Florida Career Service Commission. 
The Commission found no just cause for 
Griffin's discharge and ordered the FDOC 
to reinstate him with back pay. The 
Florida District Court of Appeal affirmed 
the Commission's decision, and the FDOC 
reinstated Griffin to his position.



3a
Soon after Griffin's reinstatement, 

he filed a complaint with the FDOC's 
Equal Employment Opportunity Program 
Office, charging that his two dismissals 
were racially discriminatory. An inves­
tigator in that office wrote Griffin a 
month later and informed him of his 
conclusion that racial discrimination had 
not been a factor in the dismissals. 
Within a day or two of having received 
that letter, Griffin filed a complaint 
with the Equal Employment Opportunity 
Commission (EEOC), detailing the events 
leading up to his allegedly discrimina­
tory dis-charges. A notation at the 
beginning of Griffin's complaint, 
probably made by an EEOC counselor, 
describes Griffin's alle-gations of 
racial discrimination as also encom­
passing "[s]incerity of recruiting, 
hiring, and promoting of minority groups



4a
within the Florida's Division of Adult 
Corrections. Specific attention within 
the Community Service Program."

Griffin asked the EEOC for a right- 
to-sue letter and received one in July 
1979. On October 15, 1979, Griffin 
brought this action in the district court 
against Louis L. Wainwright, as Secretary 
of the FDOC, the FDOC, and the State of 
Florida. Griffin alleged that the FDOC 
had denied him several promotions because 
of his race. He also alleged that the 
FDOC impermissibly considered race in all 
of its promotion decisions, as well as in 
its hiring and job assignment decisions. 
In hiring correctional officers, accord­
ing to Griffin, the Department used 
written entry-level examinations having a 
detrimental impact upon blacks.1

1 The district court found the 
following facts concerning the FDOC's 
written entry-level examination: "Every



5a
Griffin sued "individually and on 

behalf of all others similarly situated," 
pursuant to Rule 23(b)(2) of the Federal 
Rules of Civil Procedure, seeking de­
claratory and injunctive relief and money 
damages under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e to 
2000e-17 (1976)(current version of 42 
U.S.C. §§ 2000e to 2000e-17 (1982)), 42 
U.S.C. § 1981 (1976),2 and 42 U.S.C. §

person seeking a position as a correc­
tional officer is required to take a 
written examination. The Department of 
Administration developed the correctional 
Officer I entry level test which consists 
of seventy-five questions. An applicant 
must receive a score of at least thirty- 
eight for employment consideration."

2 §1981. Equal rights under the
law

All persons within the jurisdiction 
of the United States shall have the same 
right in every State and Territory to 
make and enforce contracts, to sue, be 
parties, give evidence, and to the full 
and equal benefit of all laws and pro­
ceedings for the security of persons and 
property as is enjoyed by white citizens, 
and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and



6a
1983 (1976).3 The class identified in 
his complaint was composed "of all past, 
present and potential black American

exactions for every kind, and to no other.
3 § 1983. Civil action for

deprivation of rights
Every person who, under color of any 

statute, ordinance, regulation, custom, 
or usage, of a State or Territory or the 
District of Columbia, subjects, or causes 
to be subjected, any citizen of the 
United States or other person within the 
jurisdiction thereof to the deprivation 
of any rights, privileges, or immunities 
secured by the Constitution and laws, 
shall be liable to the party injured in 
an action at law, suit in equity, or 
other proper proceeding for redress. For 
the purposes of this section, any Act of 
Congress applicable exclusively to the 
District of Columbia shall be considered 
to be a statute of the District of 
Columbia.

Griffin's complaint stated that his 
action was brought "pursuant to 42 U.S.C. 
§ 1983, to redress the deprivation of the 
Plaintiff GRIFFIN'S property interests in 
his employment, without due process of 
law." We assume that Griffin's section 
1983 claim also encompassed the theory 
that the FDOC's conduct amounted to in­
vidious discrimination in the violation 
of the fourteenth amendment's equal 
protection clause.



7a
citizens and residents who have been, are 
or may be employees of the Defendants or 
applicants for employment.1,4

On June 17, 1980, Griffin obtained 
leave of court to amend his complaint to 
add Henry L. Dejerinett as a party- 
plaintiff and class representative. 
Dejerinett, who is black, had applied for 
an FDOC clerical position but was not 4

4 The claims described in the 
text were presented in count I of 
Griffin's complaint, which contained two 
counts. Count II, which is not pertinent 
to this appeal, alleged that Griffin was 
denied due process and equal protection 
of the law when the FDOC terminated his 
employment in 1975; Griffin alleged that 
the FDOC (a) failed to give him notice of 
the reason for his discharge and an op­
portunity to be heard before terminating 
his employment and (b) discharged him 
because of his race. Count II further 
alleged that because Chapter 110 of the 
Florida Statutes, which governs state 
employment, did not require the Depart­
ment to give him notice, a hearing, or 
back pay, Chapter 110 was unconstitutional.



8a
hired.5 On March 10, 1981, based on a
stipulation between the parties6 and 
without a hearing, the district court 
preliminarily certified the case as a 
class action with Griffin and Dejerinett

b Dejerinett subsequently filed a 
timely charge of racial discrimination 
against the FDOC with the Florida 
Commission on Human Relations, a deferral 
agency for the EEOC. He requested and 
received a right-to-sue letter from the 
EEOC in April 1980.

The parties stipulated, among 
other things, that

[t]he allegations of race discrimi­
nation in the ... Complaint involve 
questions of law and fact which, 
under current law in the United 
States Court of Appeals, Fifth 
Circuit, are common to the class, 
including statistical evidence, 
evidence concerning the employment 
system of the State of Florida 
Department of Corrections, and the 
common legal principles applied to 
claims of race discrimination. The 
parties maintain their right to 
brief these issues on appeal, if 
any.

The parties also "reserve[d] the right to 
move to decertify or limit the class, or 
to establish subclasses, at any time 
during the pendency of this litigation."



9a
representing the class of "all past, 
present, and potential black employees of 
the State of Florida Department of 
Corrections."

On June 25, 1982, the defendants 
filed a Notice Regarding the Adequacy of 
the Preliminary Class Certified," which 
called to the court's attention a Supreme 
Court decision rendered eleven days pre­
viously. That decision, General Tel. Co. 
V. Falcon. 457 U.S. 147, 102 S.Ct. 2364, 
72 L.Ed.2d 740 (1982), announced the 
appropriate standards courts should apply 
when determining class action certifica­
tions in the context of a Title VII suit, 
reversing a former Fifth Circuit decision 
permitting "across-the-board" class ac­
tions that had been binding precedent in 
the new Eleventh Circuit.7 On July 8,

7 In Bonner v. City of Prichard. 
661 F. 2d 1206, 1209 (11th Cir. 1981) (en 
banc), this court adopted as binding



10a
1982, the defendants moved the court, in 
light of Falcon. to vacate its order 
certifying the class.

To avoid the risk that the district 
court might vacate its order certifying 
the class, Griffin and Dejerinett took 
steps to obtain an additional named 
plaintiff to represent those in the class 
who had applied for the position of cor­
rectional officer, failed the written 
entry-level examination, and not been 
hired. Accordingly, on July 8, 1982, 
Alvin Smith, joined by Griffin and 
Dejerinett, moved the court to intervene 
as an additional named plaintiff and 
class representative. In 1980 and 1981, 
Smith, who is black, applied for the same 
entry-level position that Griffin held. 
The FDOC did not hire Smith, because he

precedent all decisions of the former 
Fifth Circuit handed down prior to 
October 1, 1981.



11a
did not have a high school diploma or a 
general equivalency diploma (GED), a 
prerequisite for employment as a correc­
tional officer. Smith later obtained a 
GED, but when he reapplied with the FDOC 
in July 1981, he failed the written 
entry-level correctional officer 
examination and was again denied the 
job.8

On July 28, 1982, the district court 
denied the defendants' motion to decer­
tify the class and permitted Smith to 
intervene9 because

a Smith never filed a timely 
charge of racial discrimination with the EEOC.

In its dispositive order, the 
district court did not address the 
intervenor's complaint, which was filed 
with Griffin, Dejerinett, and Smith's 
joint motion for leave to allow Smith to 
intervene. Apparently, the court treated 
the intervenor's complaint as an amend­
ment to Griffin and Dejerinett's com­
plaint because it ordered that the 
"action shall continue to be certified as 
a class with PENERS L. GRIFFIN, HENRY L.



12a
Smith, [as] an unsuccessful 
applicant, certainly has an 
interest in this suit which 
seeks to challenge defendants' 
employment practices, including 
hiring. Unless he is permitted 
to intervene, his interest may 
not be adequately represented 
by the named parties. Mr. 
Smith eases this court's con­
cern that the class claim 
against the [FDOC]'s objective 
criteria was not fairly and 
adequately protected by the 
named plaintiffs. Alvin Smith 
is a proper representative for 
potential black employees.

DEJERINETT, and ALVIN SMITH as named 
plaintiffs representing a class of all 
past, present, and potential black em­
ployees of the State of Florida Depart­
ment of corrections.”



13a
As to the defendants' contention that 
Smith could not be a class representative 
because he had not timely filed an EEOC 
complaint, the district court found that 
the charges of discrimination Griffin had 
filed with the EEOC included "the hiring 
claim in addition to promotion, job 
classification, discipline, and termina­
tion claims." The court thus reasoned 
that the Fifth Circuit's single-filing 
rule excused Smith from having failed to 
exhaust his administrative remedies. See 
Oatis v. Crown Zellerbach Coro... 398 F.2d 
496, 498 (5th Cir. 1968))"[Ojnce an
aggrieved person raises a particular is­
sue with the EEOC which he has standing 
to raise, he may bring an action for 
himself and the class of persons similar­
ly situated....").

On July 30, 1982, the district 
court entered partial summary judgment



14a
for the plaintiffs, including Griffin and 
Dejerinett, on the liability issue as to 
the written entry-level examination.10 
The court found that the FDOC examination 
"has a disparate impact upon class mem­
bers which has not been justified by 
business necessity." The plaintiffs had 
sought summary judgment on two other 
issues —  the class hiring and promotion 
claims —  but the court denied summary 
judgment on those issues because they 
presented material issues of fact.

A trial was held over the five-week 
period beginning August 17 and ending 
September 17, 1982. The court entered 
judgment on August 25, 1983, disposing of 
the following issues in favor of the 
defendants: whether the FDOC's policies 
and practices discriminated against past,

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



15a
present, and potential black employees; 
whether the FDOC's hiring practices as to 
Henry L. Dejerinett were racially 
discriminatory. The court entered judg­
ment for the plaintiffs on the liability 
issue concerning the correctional officer 
examination, on which it had previously 
granted summary judgment for the plain­
tiffs.11 The issue of relief for the 
class of black persons who took and 
failed the correctional officer written 
examination is still pending. The 
parties agreed that notice should be 
given to the affected members of the 
class and to seek interlocutory appeal of 
the district court's decision permitting

11 The district court did not 
render judgment on Griffin's federal due 
process and equal protection claims or on 
his pendent state law claim for malicious 
prosecution (which was first raised in 
count III of Griffin's first amended 
complaint). Those claims are still 
pending in the district court.



16a
Griffin, Dejerinett, and Smith to serve 
as named plaintffs for a class that 
included applicants with testing claims. 
We granted this appeal pursuant to 28 
U.S.C. § 1292(b)(1982 & Supp. Ill 1985). 
Because we conclude that the district 
court's incorrectly applied the dictates 
of Falcon, we vacate the district court's 
order certifying the class.

II.
As with any private class action, 

the legitimacy of a private Title VII 
suit brought on behalf of a class depends 
upon the satisfaction of two distinct 
prerequisites. First, there must be an 
individual plaintiff with a cognizable 
claim, that is, an individual who has 
constitutional standing to raise the 
claim (or claims) and who has satisfied 
the procedural requirements of Title



17a
VII.12 Second, the requirements of Rule 
23 of the Federal Rules of Civil Proce­
dure must be fulfilled; in other words, 
the individual plaintiff must be quali­
fied to represent the members of the 
class in accordance with the four 
prerequisites of Rule 23(a),13 and the

13 This circuit has held that the 
conditions precedent to filing a Title 
VII suit are not jurisdictional, but 
rather are akin to a statute of limita­
tions. A plaintiff's failure to satisfy 
the conditions precedent does not, stand­
ing alone, deprive federal district 
courts of subj ect matter jurisdiction. 
Jackson v. Seaboard Coast Line R.R., 678 
F.2d 9S2 (11th Cir. 1982). Nevertheless, 
"a plaintiff must generally allege in his 
complaint that 'all conditions precedent 
to the institution of the lawsuit have 
been fulfilled.'" Id. at 1010 (quoting 
Fed.R.Civ.P. 9(c)).

13 Rule 23(a) provides as follows;
(a) Prerequisites to a Class 

Action. One or more members of a class 
may sue or be sued as representative par­
ties 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



18a
action must be one of the three types 
Rule 23(b) identifies.14 We emphasize

claims or defenses of the class, and (4) 
the representative parties will fairly 
and adequately protect the interests of 
the class.

14 Rule 23(b) provides as 
follows:

(b) Class Actions Maintainable. 
An action may be maintained as a class 
action if the prerequisites of subdi­
vision (a) are satisfied, and in addi­
tion:

(1) the prosecution of separate 
actions by or against individual members 
of the class would create a risk of

(A) inconsistent or varying adju­
dications with respect to individual 
members of the class which would es­
tablish incompatible standards of conduct 
for the party opposing the class, or

(B) adjudications with respect to 
individual members of the class which 
would as a practical matter be disposi­
tive of the interests of the other mem­
bers not parties to the adjudications or 
substantially impair or impede their 
ability to protect their interests; or

(2) the party opposing the 
class has acted or refused to act on 
grounds generally applicable to the 
class, thereby making appropriate final 
injunctive relief or corresponding de­
claratory relief with respect to the 
class as a whole; or

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



19a
that any analysis of class certification 
must begin with the issue of standing and 
the procedural requirements of Title VII. 
Thus, the threshold question is whether 
the named plaintiffs have individual 
standing, in the constitutional sense, to 
raise certain issues. See Brown v . 
Sibley., 650 F.2d 760, 771 (5th Cir. Unit 
A July 1981)("This constitutional thres­
hold must be met before any consideration 
of the typicality of claims or common-

members of the class predominate over any 
questions affecting only individual mem­
bers, and that a class action is superior 
to other available methods for the fair 
and efficient adjudication of the con­
troversy. The matters pertinent to the 
findings include: (A) the interest of
members of the class in individually 
controlling the prosecution or defense of 
separate actions; (B) the extent and 
nature of any litigation concerning the 
controversy already commenced by or 
against members of the class; (C) the 
desirability or undesirability of con­
centrating the litigation of the claims 
in the particular forum; (D) the diffi­
culties likely to be encountered in the 
management of a class action.



20a
ality of issues required for procedural 
reasons by Fed.R.Civ.P. 23"). Only after 
the court determines the issues for which 
the named plaintiffs have standing should 
it address the question whether the named 
plaintiffs have representative capacity, 
as defined by Rule 23(a), to assert the 
rights of others. See generally 2A. 
Larson & L. Larson, Employment discrimi­
nation §§ 49.50-.51 (1986 & Supp. Nov. 
1986).

A.

Under elementary principles of 
standing, a plaintiff must allege and 
show that he personally suffered injury. 
See Pavne v. Travenol Laboratories. Inc., 
565 F.2d 895, 898 (5th Cir. ("To meet the 
requirement for standing under Article 
III, a plaintiff must establish either 
that the asserted injury was in fact the 
consequence of the defendant's action or



21a
that the prospective relief will remove 
the harm.")(citation omitted), cert 
denied, 439 U.S. 835, 99 S.ct. 118, 58
L.Ed.2d 131 (1978); Thurston v. Dekle.
531 F.2d 1264, 1269 (5th Cir. 1976)("The
threshold case-or-controversy inquiry is 
whether there existed a named plaintiff 
with standing to raise the issue before 
the court."), vacated on other grounds. 
438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d
1144 (1978). If he cannot show personal 
injury, then no article III case or 
controversy exists, and a federal court 
is powerless to hear his grievance. This 
individual injury requirement is not met 
by alleging "that injury has been suf­
fered by other, unidentified members of 
the class to which [the plaintiff] be- 
long[s] and which [he] purport[s] to 
represent." Warth v. Seldin. 422 U.S.
490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d



223 .

343 (1975); see also Minority Police
Officers Assoc, v. City of South Bend. 
721 F. 2d 197, 202 (7th Cir. 1983) ("Feel­
ings of solidarity do not confer standing 
to sue."). Thus, a plaintiff cannot 
include class action allegations in a 
complaint and expect to be relieved of 
personally meeting the requirements of 
constitutional standing, "even if the 
persons described in the class definition 
would have standing themselves to sue." 
Brown v. Sibley. 650 F.2d 760, 771 (5th
Cir. Unit A July 1981); see also Vuvanich 
v. Republic Nat' 1 Bank. 723 F.2d 1195, 
1200 (5th Cir.), cert denied. 469 U.S. 
1073, 105 S.Ct. 567, 83 L.Ed.2d 507
(1984). A named plaintiff in a class 
action who cannot establish the requisite 
case or controversy between himself and 
the defendants simply cannot seek relief 
for anyone —  not for himself, and not



23a
for any other member of the class. 
O'Shea v. Littleton. 414 U.S. 488, 494,
94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). 
Moreover, it is not enough that a named 
plaintiff can establish a case or con­
troversy between himself and the defen-
dant by virtue of having standing as to
just one of many claims he wishes to
assert. Rather, each claim must be
analyzed separately, and a claim cannot 
be asserted on behalf of a class unless 
at least one named plaintiff has suffered 
the injury that gives rise to that claim. 
This relationship between standing and 
the class action has been discussed in 
some detail by the Supreme Court:

It is not enough that the 
conduct of which the plaintiff 
complains will injury someone.
The complaining party must also
show that he is within the



24a
class of persons who has been 
subject to injurious conduct of 
one kind possess by virtue of 
that injury the necessary stake 
in litigating conduct of 
another kind, although similar, 
to which he has not been sub­
ject.

Blum v. Yaretskv. 457 U.S. 991. 999, 102
S . Ct. 2777, 2783 , 73 L. Ed . 2d 534
(1982)(citing Moose Lodae No. 107 V.

Irvis. 407 U.S. 163, 166-67, 92 S. Ct.
1965, 1968-69, 32 L.Ed.2d 627 (1972)).

In the case before us, the named 
plaintiff who initiated the action, 
Peners L. Griffin,15 could, and did, 
allege injury as a result of the FDOC's

15 Our analysis of the standing 
and Rule 23 issues presented by this case 
focuses first on Peners L. Griffin as a 
sole named plaintiff. We then examine 
whether the addition of Henry L. Dejeri- 
nett and Alvin Smith as named plaintiffs 
affected the class certification.



25a
discipline and promotion practices: he
claimed that on specific occasions the 
FDOC illegally disciplined him and did 
not promote him, because of his race.16 
Griffin had standing to assert discipline 
and promotion claims. Because he had al­
ready met the educational and testing 
requirements of a road prison correc­
tional officer and had been hired for 
that position, however, he suffered no 
injury as a result of the FDOC's use of 
the written entry-level examination. See 
Payne v. Travenol Laboratories. Inc., 565 
F.2d 895, 898 (5th Cir.)" [Named plain­
tiffs . . . possessed tenth grade educa-

16 Griffin satisfied the proce­
dural requirements of Title VII, such as 
filing an EEOC complaint against his 
employer within 180 days of the alleged 
discrimination, see 42 U.S.C. § 2000e- 
5(c)(1976), and receiving statutory 
notice of the right to sue his employer, 
see 42 U.S.C. § 2 0 0 0 C -5(f)( 1 ) . See 
generally 42 U.S.C. § 2 0 0 0 e - 5(detailing 
conditions precedent to a Title VII 
action).



26a
tions and therefore lacked [constitution­
al] standing" to challenge tenth grade 
educational requirement) , cert, denied. 
439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d
131 (1978) . Griffin thus lacked consti­
tutional standing to assert a testing 
claim.17

17 Griffin's complaint alleged that 
the FDOC had implemented policies and 
practices of discrimination, including 
"maintaining a racially biased working 
environment" and "failing or refusing to 
recruit, hire,and assign blacks on the 
same basis as whites." Nothing in the 
complaint, in the district court's 
certification orders, or in the record on 
appeal alleged or established a causal 
link between the FDOC's allegedly dis­
criminatory testing policy and its al­
legedly discriminatory work environment 
or its allegedly discriminatory promotion 
and discipline practices. Nor is there 
an allegation or showing in the record 
that Griffin (or Dejerinett, who was a 
clerk employed by the FDOC) suffered any 
specific harm resulting from the alleged­
ly discriminatory work environment. Thus 
Griffin (and Dejerinett) did not estab­
lish standing to challenge the FDOC's 
testing practices. Cf. Gray v. Greyhound 
Lines. 545 F.2d 169, 173-75 (D.C. Cir.
1976) , cited with approval in Meritor
Savings Bank v. Vinson. ____ U.S. ____,
____, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49



27a
Accordingly, we hold that the 

district court erred when it permitted 
Griffin to raise the testing claim on

(1986) .
Assuming, for the sake of argument, 

that Griffin (or Dejerinett) had estab­
lished standing to assert a testing 
claim, we nevertheless believe that under 
General Tel. Co. v. Falcon. 457 U.S. 147 
102 S.Ct. 2364, 72 L.Ed.2d 740 (1982),
the court should not have presumptively 
held that Griffin satisfied the require­
ments of Rule 23(a) so as to allow him to 
represent a class of applicants with 
testing claims. Griffin's complaint 
provided "an insufficient basis for 
concluding that the adjudication of his 
claim of [a racially discriminatory 
environment] would require the decision 
of any common question concerning the 
failure of [the FDOC] to hire more [black 
correctional officers]." See Falcon. 457 
U.S. at 158, 102 S.Ct. at 2371. The
record does not identify any questions of 
law or fact that were common to Griffin's 
claim of a racially biased working 
environment and the claims of those who 
failed the written entry-level correc­
tional officer examination and were not 
hired. Thus, even if Griffin had 
standing to litigate his right to a work 
environment untainted by racial 
discrimination, he could not, on that 
basis, represent those with testing 
claims, because he did not satisfy the 
requirements of Rule 23(a).



28a
behalf of himself and on behalf of 
others. We hold in the alternative that 
even if Griffin somehow had constitution­
al standing to assert the testing claim, 
he did not, in light of General Tel. Co. 
v. Falcon. 457 U.S. 147, 102 S.Ct. 2364, 
72 L.Ed.2d 740 (1982), have representa­
tive capacity to assert the testing claim 
on behalf of those who took the FDOC's 
written entry-level examination, failed 
it, and were not hired.18 In other 
words, Griffin did not meet the pre­
requisites of Rule 23(a). We now turn to 
a discussion of Rule 23(a) and the 
Supreme Court's interpretation of it in 
Falcon.

18 In Falcon, the Supreme Court 
granted certiorari for the express 
purpose of discussing the contours of 
Rule 23(a). Falcon, 457 U.s. at 155, 102 
S.Ct. at 2 3 69. The Court did not ques­
tion, in its opinion, whether the named 
plaintiff had constitutional standing.



29a
B.

In 1969, the former Fifth Circuit 
decided Johnson v. Georgia Highway 
Express, Inc.. 417 F. 2d 1122 (5th Cir. 
1969), the first case to sanction a 
theory that became known as the "across- 
the-board" approach to Title VII class 
actions. In that case, a terminated 
black employee sought to represent a 
class of black workers and applicants who 
had hiring, firing, promotion, and 
working condition claims. The district 
court restricted the class to include 
only those black workers who, like the 
named plaintiff, had been fired. The 
Fifth Circuit reversed the district 
court's certification order and announced 
that broad class treatment was appro­
priate where the "Damoclean threat of a 
racially discriminatory policy hangs over 
the racial class [and] is a question of



30a
fact common to all members of the class." 
Johnson. 417 F.2d at 1124 (citation 
omitted) . The court said it "is clear 
from the pleadings that the scope of 
appellant's suit is an 'across the 
board' attack on unequal employment 
practices alleged to have been committed 
by the appellee pursuant to its policy of 
racial discrimination." Id.

Under the across-the-board theory, 
many courts liberally read the require­
ments of Rule 23(a), permitting named 
plaintiffs to raise claims on behalf of 
the class that were of a different type 
than the named plaintiffs' individual 
claims. These courts reasoned that the 
employer allegedly discriminated on the 
basis of a class characteristic, such as 
race, and that the discrimination al­
legedly pervaded, in an across-the-board 
fashion, all of the employer's personnel



31a
policies and practices. See e.a.. Gibson
5L«-- Local__4 0 Int/1 Longshoremen's &
Warehousemen/s Union. 543 F.2d 1259 (9th 
Cir. 1976); Senter v. General Motors 
Corp., 532 F. 2d 511 (6th Cir.), cert, 
denied, 429 U.S. 870, 97 S.Ct. 182, 50
L.Ed.2d 150 (1976); Rich v. Martin
Marietta Corp. . 522 F.2d 333 (10th Cir.
1975> ' Barnett v. W.T. Grant Co. . 518
F•2d 543 (4th Cir. 1975); Reed v. Arling­
ton Hotel Co., 476 F.2d 721 (8th Cir.), 
cert, denied. 414 U.S. 854, 94 S.Ct. 153, 
38 L.Ed.2d 103 (1973).19

Although widely accepted, the 
across-the-board theory was not univer­
sally endorsed. See, e.q.. Tavlor v. 
Safeway Stores. Inc.. 524 F.2d 263, 270- 
71 (10th Cir. 1975) ; Kinsev v. Leqq.
Mason & Co.. 60 F.R.D. 91 (D.D.C. 1973), 
rev'd sub nom on other grounds. 557 F.2d 
830 (D.C. Cir. 1977); White v. Gates
Rubber Co.. 53 F.R.D. 412 (D. Colo.
1971) ; Gresham v. Ford Motor Co.. 53
F.R.D. 105 (N.D. Ga. 1970); Hvatt v.
United Aircraft Coro.. 50 F.R.D. 242 (D. 
Conn. 1970) . Moreover, one of the 
members of the Fifth Circuit panel that 
first announced the across-the-board



32a
The Supreme Court repudiated that 

liberal reading of the class action, and 
the reasoning underlying it, in General 
Tel. Co. v. Falcon. 457 U.S. 147, 102
S.Ct. 2364, 72 L.Ed.2d 740 (1982).20 In

approach, Judge Godbold, cautioned in a 
specially concurring opinion that the 
approach announced in the majority's 
opinion was not a replacement for precise 
pleadings that allow district courts to 
determine whether the requirements of 
Rule 23(a) have been satisfied. See 
Johnson v. Georgia Highway Express, Inc.. 
417 F. 2d 1122, 1125-27 (5th Cir. 1969)
(Godbold, J., specially concurring). 
Judge Godbold also observed that "an 
over-broad framing of the class" may be 
unfair and harmful to the absent class 
members: "what of the catastrophic
consequences if the plaintiff loses and 
carries the [over-broad] class down with 
him, or proves only such limited facts 
that no practice or policy can be found, 
leaving him afloat but sinking the 
class?" Id. at 1126. Thirteen years 
later, the Supreme Court favorably dis­
cussed Judge Godbold's opinion when it 
rejected the across-the board approach. 
See General Tel. Co. V. Falcon. 457 U.S. 
147, 160-61, 102 S.Ct. 2364, 2372, 72
L.Ed.2d 740 (1982).

Even before Falcon, the across- 
the-board approach was placed in doubt by 
the Supreme Court. In East Texas Motor 
Freight Svs. Inc, v. Rodriguez. 431 U.S.



33a
allegations quite similar to those made 
in Griffin's initial complaint, the named 
plaintiff in Falcon claimed that his em­
ployer had denied him promotions because 
he was a Mexican-American. He also al­
leged class claims on behalf of all 
Mexican-American employees of the company 
who had not been promoted, and all 
Mexican-American applicants who had not

395, 405-06, 97 S.Ct. 1891, 1898, 52 
L.Ed.2d 453 (1977), the Court reversed a 
broad class certification:

We are not unaware that suits 
alleging racial or ethnic dis­
crimination are often by their 
very nature class suits, in­
volving classwide wrongs. Com­
mon questions of law or fact 
are typically present. But 
careful attention to the re­
quirements of Fed. Rule Civ.
Proc. 23 remains nonetheless 
indispensable. The mere fact 
that a complaint alleges racial 
or ethnic discrimination does 
not in itself ensure that the 
party who has brought the law­
suit will be an adequate repre­
sentative of those who may have 
been the real victims of that 
discrimination.



34a
been hired. Without holding an eviden­
tiary hearing, the district court certi­
fied a class consisting of those employ­
ees and applicants at one of the com­
pany's facilities. After a trial, the 
district court found that the employer 
had not discriminated against the named 
plaintiff in hiring, but did discriminate 
against him in its promotion practices. 
As to the class claims, the court reached 
the converse conclusion, finding no dis­
crimination in promotion practices, but 
finding the hiring practices unlawfully 
discriminatory. On appeal, the Fifth 
Circuit, using the across-the-board 
approach, upheld the class certification: 

[The across-the-board rule] 
permits an employee complaining 
of one employment practice to 
represent another complaining 
of another practice, if the



35a
plaintiff and the members of 
the class suffer from essen­
tially the same injury. In 
this case, all of the claims 
are based on discrimination 
because of national origin.

Falcon v. General Tel. Co.. 626 F.2d 369, 
375 (5th Cir. 1980).

The Supreme Court, on certiorari, 
began its analysis of the case by 
reiterating that Title VII does not 
relieve a private party plaintiff seeking 
to represent others from meeting the 
requirements of the class action rule:21 
"An individual litigant seeking to 
maintain a class action under Title VII 
must meet 'the prerequisites of numer-

In contrast, under Title VII, 
the EEOC may seek relief for groups of 
employees or applicants without having to 
comply with the requirements of Rule 23. 
General Tel. Co. v. EEOC. 446 U.S. 318, 
100 S.Ct. 1698, 64 L.Ed.2d 319 (1980).



36a
osity, commonality, typicality, and 
adequacy of representation' specified in 
Rule 23(a). These requirements effec­
tively limit the class claims to those 
fairly encompassed by the named plain­
tiff's claims.'" General Tel. Co., v. 
Falcon. 457 U.S. 147, 156, 102 S.Ct. 
2364, 2369-70, 72 L.Ed.2d 740 (1982)(ci­
tations omitted). Although the Court 
recognized "that racial discrimination is 
by definition class discrimination," it 
said that the mere allegation of racial 
discrimination cannot answer the ques­
tions posed by Rule 23(a) or define the 
class that may be certified:

Conceptually, there is a wide 
gap between (a) an individual's 
claim that he has been denied a 
promotion on discriminatory 
grounds, and his otherwise 
unsupported allegation that the



37a
company has a policy of dis­
crimination, and (b) the exist­
ence 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.

Falcon. 457 U.S. at 157, 102 S.Ct. at
2370 (footnote omitted). Thus, evidence 
that an employee was denied a promotion 
because of illegal considerations of race 
will not necessarily justify the addi­
tional inference, for example, that the 
employer has adopted a general policy of 
racial discrimination that is reflected 
in the employer's other employment prac­
tices, such as hiring and testing. See



38a
Falcon. 457 U.S. at 158, 102 S.Ct. at 
2371. The presumption that general class 
claims are fairly encompassed within the 
personal claims of a named plaintiff can, 
at best, be characterized as tenuous. 
Id. The Falcon Court held that "actual, 
not presumed, conformance with Rule 23(a) 
[is] indispensable." Falcon. 457 U.S. at
160, 102 S.Ct. at 2372. This means that 
a private Title VII class action "may 
only be certified if the trial court is 
satisfied, after a rigorous analysis, 
that the prerequisites of Rule 23(a) have 
been satisfied." Falcon. 457 U.S. at
161, 102 S.Ct. at 2372.

The district court's error in Falcon 
can be traced to the named plaintiff's 
complaint, which "provided an insuffi­
cient basis for concluding that the 
adjudication of his claim of discrimina­
tion in promotion would require the



39a
decision of a common question concerning 
the failure of petitioner to hire more 
Mexican-Americans." Id. at 158, 102
S.Ct. at 2371. Without the benefit of 
sufficiently specific pleadings or of a 
hearing that probed beyond the pleadings 
to answer the required certification 
questions, see id. at 160, 102 S.Ct. at
2372, the district court could do nothing 
but presume that the named plaintiff's 
individual promotion claim was typical of 
other claims that Mexican-American em­
ployees and applicants might raise. Id. 
at 158-59, 102 S.Ct. at 2371. In short, 
a district court must have some way of 
identifying the questions of law or fact 
that are common to claims of the named 
plaintiff and of the class members he 
seeks to represent. Id.

The Supreme Court has thus repu­
diated the across-the board theory of



40a
Title VII class actions.22 No longer 
will one allegation of specific dis­
criminatory treatment be sufficient to 
sustain a company-wide class action.23 
No longer will an employee complaining of 
racial discrimination, for example, in 
one employment practice necessarily be 
permitted to represent other employees 
complaining of racial discrimination in

22 "Although Falcon does not 
eliminate broad-based class actions per 
se. it will be a rare situation indeed 
that will permit the combining of hiring, 
promotion, and discharge claims in the 
same class." 2 A. Larson & L. Larson, 
Employment Discrimination S 49.52(c)(2) 
119861.

23 In Falcon. 457 U.S. at 159, 102 
S.Ct. 2371 (footnote omitted), the Court 
stated as follows:

"If one allegation of specific 
discriminatory treatment were 
sufficient to support an 
across-the-board attack, every 
Title VII case would be a 
potential company-wide class 
action. We find nothing in the 
statute to indicate that Con­
gress intended to authorize 
such a wholesale expansion of 
class-action litigation.



41a
other practices. District courts must 
not presume that a named plaintiff has 
satisfied the typicality and commonality 
requirements of Rule 23(a). In practical 
terms, this means that, as a general 
rule, incumbent employees cannot rep­
resent a class that includes applicants 
and that even a general policy of 
discrimination will not justify a class 
of both applicants and employees. See 
Falcon. 457 U.S. at 158-59 & n.15, 102
S.Ct. at 2371 & n.15.

In footnote fifteen of Falcon, the 
Supreme Court identified exceptions to 
that general rule. For example, an em­
ployee who alleges that he was a victim 
of a specific discriminatory employment 
practice may properly represent ap­
plicants when the employer used a biased 
testing procedure to evaluate both 
applicants and incumbent employees: "a



42a
class action on behalf of every applicant 
or employee who might have been prej­
udiced by the test clearly would satisfy 
the commonality and typicality require­
ments of Rule 23(a)." Falcon. 457 U.S. 
at 159, n.15, 102 S.Ct. at 2371 n.15. In 
addition, a general policy of discrimina­
tion could justify a class of both 
applicants and employees "if the dis­
crimination manifested itself in hiring 
and promotion practices in the same 
general fashion, such as through entirely 
subjective decisionmaking processes." 
Id.

The situations the Supreme Court 
identified in footnote fifteen can be 
thought of as exceptions to the general 
rule that applicants and incumbent 
employees cannot share the same class. 
We emphasize, however, that those 
situations are exceptions not because



43a
racial discrimination is by definition 
class discrimination, a necessarily valid 
proposition underlying the across-the- 
board rule, Falcon. 457 U.S. at 157, 102 
S.Ct. at 2370, but because the commonal­
ity and typicality requirements of Rule 
23(a) can be satisfied.24 If, after a 
rigorous analysis, a district court is 
satisfied that in a case similar to those 
situations described in footnote fifteen 
the Rule 23(a) requirements have been 
met, then it should not hesitate to

See I H. Newberg, Newbera On 
Class Actions S 3.17 (2d ed. 1985\;

In the final analysis, 
through its rulings and 
examples, Falcon instructs that 
the Rule 23(a) typicality 
requirement can be satisfied 
only by a showing of a 
sufficient interrelationship 
between the claims of the 
representative and those of the 
class, so that an adjudication 
of the individual claims will 
necessarily involve the 
decision of common questions 
affecting the class.



44a
certify the class. We caution, however, 
that although district courts should give 
real meaning to Falcon7 s footnote fif­
teen, that footnote should not be used to 
defeat the general dictates of Falcon. 
The footnote was not meant to sanction 
broad class actions that otherwise do not 
conform to Rule 23(a).

C.
We begin our analysis of whether the 

requirements of Rule 23(a) have been 
fulfilled in the case before us by 
examining Griffin's complaint.25 The 
complaint, which was filed in October 
1979, almost three years before Falcon 
was decided, included allegations that 
the defendants discriminated on the basis

Our analysis takes into account 
that the district court had considerable 
discretion in deciding to certify the 
class. See e.q. . Walker v. Jim Dandy 
Co.. 747 F.2d 1360, 1363 (11th Cir. 
1984) ; Freeman v. Motor Convoy. Inc.. 700 
F.2d 1339, 1347 (11th Cir. 1983).



45a
of race with their written entry-level 
examinations and in their hiring, 
assignment, discipline, and promotion 
decisions. Griffin's action was brought 
"on behalf of all past, present and 
potential black American citizens and 
residents who have been, are or may be 
employees of the Defendants or applicants 
for employment." As to Rule 23(a)'s 
numerosity requirement the complaint 
contains the allegation that the persons 
in the class "are too numerous to join in 
this action. "2® The only reference to

In his second amended com­
plaint, Griffin made the following 
numerosity allegation:

The precise total number of 
persons in the class is unknown 
to the Plaintiffs. Plaintiffs 
allege, on information and be­
lief, that there are more than 
1,000 persons in this class.
There are many other unknown 
class members. They are too 
numerous to join a named Plain­
tiffs and such joinder is 
impractical.



46a
Griffin's ability to represent that class 
was this statement: "The Plaintiff can
fairly and adequately represent the 
class." The complaint's only reference 
to Rule 23(a)'s commonality requirement 
was this statement: "The conclusory ques­
tions of whether there is a general 
pattern and practice of discrimination by 
Defendants and the question of whether 
certain practices constitute illegal job 
discrimination are common mixed questions 
of fact and law to the class as a whole." 
The complaint made no allegation whatso­
ever that Griffin could meet Rule 23(a)'s 
additional requirement of typicality.27

Without an evidentiary hearing, the 
district court preliminarily certified

2' The first reference to Rule 
23(a)'s typicality requirement was in 
Griffin's second amended complaint, in 
which he alleged that "the claim of the 
Plaintiffs are typical of the claims of 
another class members."



47a
the "class of all past, present, and 
potential black employees" of the FDOC, 
finding that the requirements of Rule 
23(a) had been met. The court's cer­
tification ruling was based solely on a 
stipulation of the parties that under the 
law of the Fifth Circuit, the named 
plaintiffs met the commonality require­
ment of Rule 23(a).28 The parties fur­
ther stipulated that "[t]he claims of the 
named plaintiffs are, under current law 
in the United States of Appeals, Fifth 
Circuit, similar to those of other 
members of the proposed class."29 The 
parties made no relevant factual stipula­
tions.

Soon after the Supreme Court decided 
Falcon, the defendants moved the district

28 See supra note 6.
29 The defendants reserved the 

right to move the district court to 
decertify the class. See supra note 6.



48a
court to vacate the order certifying the 
class. The parties filed memorandum of 
law, arguing the applicability of Falcon. 
On the basis of the memoranda, and with 
no hearing, the district court issued an 
order denying the defendants7 motion. 
The court's analysis began with the 
recognition that "[t]he Falcon decision 
mandates that this court carefully 
examine the requirements of Rule 
23(a)."30 As to the commonality 
requirement, the district court found the 
following:

Plaintiffs have alleged a com­
mon practice and pattern of

JU As to the first requirement of 
Rule 23(a) —  "the class is so numerous 
that joinder of all members is imprac­
ticable" —  the district court found 
that "[t]he number of black persons 
employed by the [FDOC] in February 1981 
was 1,346.... This number alone, without 
inquiry as to the number of past and 
potential black employees, clearly 
indicates that the class members are too 
numerous to join."



49a
racial discrimination which 
affects defendants' hiring, 
promotion, job classification, 
disciplinary, and termination 
decisions. This general dis­
criminatory policy commonly 
injures all members of the 
class of past, present, and 
potential black employees of 
the Department. Plaintiffs 
maintain that they will utilize 
similar statistical data, simi­
lar historical background, and 
the same or similar witnesses 
to support their allegations of 
class-wide discrimination. 
This court is satisfied that 
the commonality requirement of 
Rule 23 is met.
The district court found 

typicality prerequisite satisfied,
the
but



50a
only because Henry L. Dejerinett, a black 
male who was not hired for a clerical 
position, had been added as a party- 
plaintiff and as a class representative. 
Even so, the court was concerned that 
Griffin and Dejerinett could not ade­
quately represent those with objective 
testing claims:

Plaintiff Griffin certainly can 
adequately protect the inter­
ests of black employees who 
have claims of discrimination 
in promotions, job classifica­
tion, discipline, and termina­
tions. Plaintiff Dejerinett's 
claim is somewhat interrelated 
with the class claims of a dis­
criminatory hiring police. 
Plaintiffs allege that blacks 
are not hired in sufficient 
number because of facially



51a
neutral objective criteria, 
i_i_e., a high school education 
requirement and the [FDOC] 
test, which have a disparate 
impact on black applicants and 
of a subjective barrier which 
causes the almost exclusively 
white decisionmakers to dis­
criminate against black ap­
plicants. The class claim 
against discriminatory subjec­
tive hiring decisions is fairly 
encompassed in Dejerinett's 
claim. This court, however, is 
concerned that the class claim 
against the Department's ob­
jective screening criteria 
which have a disparate impact 
upon class members, especially 
the [FDOC] test, is not fairly 
and adequately protected by any



52a
of the named plaintiffs.
In that same order, the district 

court permitted Alvin Smith to intervene 
as a party plaintiff. Smith was an 
unsuccessful black applicant for a 
correctional officer position who had 
failed the written entry-level correc­
tional officer examination. The court 
wrote the following in its order: "Mr. 
Smith eases this court's concern that the 
class claim against the Department's 
objective criteria was not fairly and 
adequately protected by the named plain­
tiffs. Alvin Smith is a proper represen­
tative for potential black employees."

As to Griffin's capacity to rep­
resent the "class of all past, present, 
and potential black employees" of the 
FDOC, we hold that, in light of Falcon. 
Griffin's complaint provided an insuffi­
cient basis by which the district court



53a
could have concluded that Griffin's 
"claim[s] of discrimination in promotion 
[and discipline] would require the 
decision of any common question concern­
ing the failure of [the defendants] to 
hire more [blacks]." Falcon. 457 U.S. at 
158, 102 S.Ct. at 2371. In our view,
Griffin satisfied neither the commonality 
nor the typicality requirements of Rule 
23(a).31

The district court found the 
commonality requirement satisfied because

As the Supreme Court noted in 
Falcon, 457 U.S. at 157 n.13, 102 S.Ct.
at 2370 n.13,

[t]he commonality and typical­
ity requirements of Rule 23(a) 
tend to merge. Both serve as 
guideposts for determining 
whether under the particular 
circumstances maintenance of a 
class action is economical and 
whether the named plaintiff's 
claim and the class claims are 
so interrelated that the inter­
ests of the class members will 
be fairly and adequately pro­
tected in their absence.



54a
the "general discriminatory policy" 
Griffin alleged "commonly injures all 
members of the class" and that in order 
"to support their allegations of class­
wide discrimination," Griffin would 
utilize "similar statistical data, 
similar historical background, and the 
same or similar witnesses." As to the 
typicality requirement, the district 
court found it satisfied because 
"[p]laintiffs allege that blacks are not 
hired in sufficient number because of 
facially neutral objective criteria,
i.e. , a high school education require­
ment and the [FDOC] test, which have a 
disparate impact on black applicants and 
of a subjective barrier which causes the 
almost exclusively white decisionmakers 
to discriminate against black appli­
cants ."



55a
To us, the district court failed to 

appreciate the significance of Falcon. 
The district court did not engage in the 
kind of "rigorous analysis" that we 
believe the Falcon court contemplated. 
See Falcon. 457 U.S. at 161, 102 S.Ct. at 
2372 .

Griffin's initial complaint, relying 
on the then-valid across-the-board rule, 
made no factual showing to satisfy the 
Rule 23(a) requirements. Additionally, 
the two amended complaints, which 
included Dejerinett and Smith as named 
plaintiffs, offered no facts to satisfy 
the Rule 23(a) requirements. Moreover, 
the named plaintiffs' "Memorandum in 
Opposition to Motion to Vacate Order 
Certifying Class" offered little more 
than conclusory statements that the named 
plaintiffs satisfied the Rule 23(a) 
criteria. See Nelson v. United States



56a
Steel Coro.. 709 F.2d 675, 680 (11th Cir. 
1983)("[Named plaintiff] was ... obli­
gated to show, in at least a preliminary 
fashion, the required commonality between 
her claims and those of the putative 
class.") (citations omitted). Although 
the plaintiffs asserted that "[wjhether a 
person impacted by one employment prac­
tice may represent other persons impacted 
'in the same manner' by another practice 
need not be reached in this case," they 
nonetheless tried to take refuge in 
Falcon's footnote fifteen, which states 
that a class of both applicants and 
employees could be justified "if the 
discrimination manifested itself in 
hiring and promotion practices in the 
same general fashion." Falcon. 457 U.S. 
at 159 n.15, 102 S.Ct. at 2371 n.15. 
This is the closest the named plaintiffs 
came to helping the district court con­



57a -
duct a rigorous Rule 2 3 inquiry. In 
fact, the plaintiffs, although aware of 
Falcon, continued to rely on the defunct 
across-the-board rule by citing a former 
Fifth Circuit case32 that, in light of

32 In support of its typicality 
argument, the plaintiffs' memorandum of 
law cited Herbert v. Monsanto Co. . 576
F.2d 77, 88 (5th Cir.), vacated and
dismissed for want of jurisdiction. 580 
F.2d 178 (5th Cir. 1978)(per curiam):

Appellee contends that because 
appellant's claim concerns only 
the trucking activities of the 
company and other claimants are 
from different departments, 
appellant's claim is neither 
factually nor legally typical.
We recognize, however, that the 
typicality requirement is not 
so rigid as to comprehend only 
similar fact situations. If 
class actions were limited to 
factual typicality, class 
actions under Title VII would 
be impossible because, except 
in rare cases, the facts would 
not be identical. It would be 
a better test for typicality to 
consider whether the types of 
facts or evidence were typical 
of the class. For example, if 
all claims, although of dif­
ferent job classifications, 
depended upon statistical



58a
Falcon, was no longer good law.

The district court's commonality 
analysis amounts to nothing more than a 
presumption that racial discrimination as 
manifested in various employment prac­
tices raises a common question of law or 
fact. See Wheeler v. City of Columbus. 
703 F. 2d 853, 855 (5th Cir. 1983) (per
curiam)("Discrimination in its broadest 
sense is the only question alleged that 
is common to [the named plaintiff] and 
the class she sought to create and 
represent. Under Falcon this is not

evidence, and the statistics 
evidenced a policy of discrim­
ination, typicality would be 
satisfied.

In light of Falcon, "general statistical 
evidence of underrepresentation in the 
workforce will undoubtedly not suffice to 
justify a single class covering different 
types of discrimination such as in 
hiring promotion, and discharge." 2 A. 
Larson & L. Larson, Employment Dis­
crimination S 49.52fc)(2) (1986)(inter­
preting footnote 15 of Falcon. 457 U.s. 
at 159, 102 S.Ct. at 2371.



59a
enough."). The district court's typical­
ity analysis, which presumably is based 
on Falcon's footnote fifteen, is flawed. 
As we have already discussed, in that 
footnote the Falcon Court identified 
exceptions to the general rule that 
employees cannot represent a class that 
includes applicants, even though the 
employer's discrimination is manifested 
in various employment practices. One 
situation that may justify a class of 
both applicants and employees is when the 
discrimination that is manifested in 
various practices is effected "in the 
same general fashion, such as through 
entirely subjective decisionmaking 
processes." Falcon. 457 U.S. at 159
n.15, 102 S.Ct. at 2371 n.15. The named
plaintiffs' assertions notwithstanding, 
the pleadings demonstrated that any 
general policy of discrimination that the



60a
FDOC may have had did not manifest itself 
in the same general fashion.

When the Supreme Court used the term 
"same general fashion," it gave an 
example: "entirely subjective decision­
making processes." Significant proof 
that an employer makes both discrimina­
tory hiring and promotion decisions using 
an entirely subjective decisionmaking 
process for each employment practice is a 
manifestation of a general policy of 
discrimination operating in "the same 
general fashion." By qualifying "subjec­
tive decisionmaking processes" with 
"entirely," the Court implied that an 
employer's general policy of discrimina­
tion manifested, for example, by an 
objective hiring practice and by a 
subjective promotion practice would not 
be discrimination operating in "the same 
general fashion" sufficient to justify a



61a
class of both applicants and employees.

The FDOC's decisionmaking process 
for hiring correctional officers is 
objective: applicants must hold a high
school diploma or a general equivalency 
diploma and must pass the written cor­
rectional officer examination. in 
contrast, the FDOC's decisionmaking 
process for promoting correctional 
officers, and other employees, is sub­
jective: applicants for promotion need
not hold advanced degrees or pass any 
additional examinations? correctional 
officers are promoted on the basis of 
their performance as viewed by their 
superiors. The case before us is not one 
that implicates Falcon's footnote fif­
teen.

We therefore hold that Griffin, an 
incumbent correctional officer complain­
ing of a subjective decisionmaking pro-



62a
cess, could not represent a class that 
included those who may have been victims 
of a discriminatory objective decision­
making process, such as applicants for 
the position of correctional officer who 
took the written entry-level examination 
and failed it. See e.g. . Walker v. Jim 
Dandv Co. . 747 F.2d 136, 1365 (11th Cir. 
1984) ("Following Falcon —  we hold that 
[plaintiffs'] complaint provided an in­
sufficient basis for concluding that the 
adjudication of [their] claim of dis­
crimination in hiring supervisory 
employees would require the resolution of 
common questions of law and fact concern­
ing [the employer's] discriminatory 
practices in recruitment, job assignment, 
transfer, and promotion."); Redditt v. 
Mississippi Extended Care Centers, Inc. , 
718 F.2d 1381, 1387 (5th Cir. 1983)
("Under Falcon, plaintiff cannot serve as



63a
class representative with respect to 
hiring, promotion, or any other employ­
ment practices excepting discriminatory 
discharge because she does not possess 
the same interest and did not suffer the 
same injury as the other members of the 
class."); Taylor v. Block. 35 Fed.R. 
Serv.2d (Callagham) 546 (D.D.C. Oct. 15, 
1982)(plaintiffs who alleged they suf­
fered only promotion discrimination could 
not represent across-the-board class 
claiming hiring, assignment, and training 
discrimination). In other words, 
Griffin, who could assert discipline and 
promotion claims under Title VII, did not 
have representative capacity, within the 
meaning of Rule 23(a), to assert testing 
claims on behalf of others.33 We now

33 Because Griffin satisfied 
neither the commonalty nor the typicality 
requirements of Rule 23(a), we need not 
address whether he could have been an 
adequate representative of the class.



64a
examine whether the addition of Henry L. 
Dejerinett and Alvin Smith as named 
plaintiffs affected the class certifica­
tion question.

III.
Eight months after filing his 

complaint in district court, Griffin 
sought leave to amend his complaint to 
add Henry L. Dejerinett as a party- 
plaintiff and as a class representative. 
In November 1978, Dejerinett applied for 
an FDOC clerical position, entitled 
"Property Manager III." Dejerinett was 
not required, as part of the application 
process, to produce an educational degree 
or to take the written entry-level exami­
nation required of correctional officer 
applicants. He was required, however, to 
have an interview. Dejerinett was not 
hired; instead, the FDOC hired a white

See Fed.R.Civ. P. 23(a)(4).



65a
male. A month later, Dejerinett filed a 
charge of racial discrimination against 
the FDOC with the Florida Commission on 
Human Relations, a deferral agency for 
the EEOC. He requested and received a 
right-to-sue letter from the EEOC in 
April 1980. The district court, with no 
written analysis of standing or Rule 23, 
granted Griffin leave to amend his com­
plaint and add Dejerinett as a named 
plaintiff.

Dejerinett had standing to assert a 
subjective hiring claim.34 He applied

There is some indication in the 
record that the Florida Department of 
Administration, on the basis of testing, 
training, and experience, rated Dejeri­
nett as well-qualified for the clerk 
position. We cannot tell from the record 
whether any testing done by the Depart­
ment of Administration measured health, 
physical ability, or intelligence. In 
any event, because the rating took 
experience and training into account, 
there was a substantial subjective 
component to the rating. We also note 
that because Dejerinett received a well- 
qualified rating (which presumably was a



66a
for a clerical position, requiring no 
correctional officer examination or 
educational degrees, and was not hired. 
Because Dejerinett never took the 
correctional officer examination, and 
never applied for that position, he 
suffered no injury as a result of that 
test. He thus lacked constitutional 
standing to assert a testing or a hiring 
claim arising out of the FDOC's correc­
tional officer application process.

Accordingly, we hold that the 
district court erred when it permitted 
Dejerinett to raise the testing claim on 
behalf of himself and on behalf of 
others. We hold in the alternative that 
even if Dejerinett somehow had constitu­
tional standing to assert the testing

reason he was granted an interview), he 
did not allege that the Department of 
Administration's rating process illegally 
discriminated against black applicants.



67a
claim, he did not, in light of General 
Tel. Co. v. Falcon. 457 U.S. 147, 102
S.Ct. 2364, 72 L.Ed.2d 740 (1982), have
representative capacity to assert the 
testing claim on behalf of those who took 
the FDOC's written entry-level examina­
tion, failed it, and were not hired.35 
In other words, Dejerinett did not meet 
the prerequisites of Rule 23(a).

The district court, in effect, 
presumed the similarity of hiring claims 
of those denied clerical positions to 
hiring claims of those denied correc­
tional officer positions. In our view, 
applicants who were subjectively denied 
clerical positions cannot sufficiently 
identify with other applicants who failed 
an objective written examination and, on 
that basis, were not hired for the 
higher-ranking position of correctional

35 See supra note 18.



68a
officer. See Walker v. Jim Dandy Co.. 
747 F.2d 1360, 1364 (11th Cir. 1984)("The 
[district] court [correctly] reasoned 
that because [the plaintiffs] were appli­
cants for supervisory positions, they did 
not sufficiently identify with other 
applicants for lower level labor jobs or 
employees complaining of disparate job 
assignments or pay.") The district court 
abused its discretion when, in light of 
Falcon, it continued to permit Dejerinett 
to represent those members of the class 
who took and failed the written entry- 
level correctional officer examination.

B.
Intervenor Alvin Smith twice applied 

for the entry-level correctional officer 
position held by Griffin. Smith was 
first denied the job because he did not 
have a high school diploma or a general 
equivalency diploma (GED), both require­



69a
ments for the job. Later he obtained a 
GED, but he then failed the written cor­
rectional officer examination. Conse­
quently, he was denied the position a 
second time.

Smith had constitutional standing to 
assert a testing claim under Title VII. 
He could, and did, allege injury as a 
result of the FDOC's testing requirement: 
he took and failed the written examina­
tion required of entry-level correctional 
officers. Although Smith may very well 
have had representative capacity, under 
Rule 23(a), to assert testing claims on 
behalf of other black applicants who 
failed the same test and were consequent­
ly not hired, we need not address that 
point. Smith did not file a timely 
charge of racial discrimination with the 
EEOC, a precondition to a Title VII suit. 
See 42 U.S.C. § 2000e-5(e)(1982); Jackson



70a
v. Seaboard Coast Line R.R. , 678 F.2d 
992, 1010-11 (11th Cir. 1982); See also 
supra note 12. Furthermore, as we dis­
cuss below, Smith could not avail himself 
of the single-filing rule. For these 
reasons, we hold that the district court 
erred when it allowed Smith to intervene 
as a class representative.

In Oatis v. Crown Zellerbach Corp.. 
398 F. 2d 496, 498-99 (5th Cir. 1968), 
our predecessor circuit held that it is 
not necessary for each person with the 
same grievance to file an EEOC charge as 
a prerequisite to class membership. Nor 
is it necessary that an intervenor bring 
a charge with the EEOC as a prerequisite 
to serving as a class representative. 
Id. As long as at least one named 
plaintiff timely filed an EEOC charge, 
the precondition to a Title VII action is 
met for all other named plaintiffs and



71a
class members. Id.36

This rule, which has become known as 
the "single-filing rule," contains two 
essential requirements: "First, at least
one plaintiff must have timely filed an 
EEOC complaint that is not otherwise
defective--- Second, the individual
claims of the filing and non-filing 
plaintiffs must have arisen out of 
similar discriminatory treatment in the 
same time frame." Jackson. 678 F.2d at 
1011-12. In the case before us, the

J° The O at i s reasoning was 
extended to intervention in non-class 
suits in Wheeler v. American Home Prods. 
Corp. . 582 F.2d 891, 897-98 (5th Cir.
1977)(similarly situated intervenors who 
had not filed EEOC charges nevertheless 
could assert back pay claims if one or 
more of original plaintiffs had filed 
timely charges).

The Oatis rationale was further 
extended in Crawford v. United States 
Steel Coro. . 660 F.2d 663, 665-66 (5th 
Cir. Unit B Nov. 1981), which held that 
every original plaintiff in a multi­
plaintiff, non-class action suit need not 
file charges with the EEOC.



72a
first requirement was met: Griffin, one 
of the named plaintiffs, timely filed an 
adequate EEOC complaint, as far as it 
detailed his promotion and discipline 
claims. The second requirement, however, 
was not satisfied. Smith, a non-filing 
plaintiff, had an objective testing claim 
while Griffin, on the other hand, had 
subjective promotion and discipline 
claims.

We hold that Griffin and Smith were 
not sufficiently similarly situated. 
That is, employee Griffin's claims and 
applicant Smith's claims did not arise 
out of similar discriminatory treatment. 
Griffin alleged that the FDOC's subjec­
tive promotion and discipline practices 
were illegally discriminatory. Smith 
alleged that the FDOC's objective cor­
rectional officer examination illegally 
discriminated against black applicants.



73a
The FDOC7 s promotion and discipline 
practices were not manifested in similar 
fashion to its hiring and testing prac­
tices. See Ezell v. Mobile Housing Bri.r 
709 F.2d 1376, 1381 (11th Cir. 1983)(non­
filing incumbent plaintiff's discrimina­
tory examination claim was not suffi­
ciently similar to filing plaintffs' 
discriminatory discharge and broad-based, 
on-going campaign of discrimination 
claims to invoke single-filing rule to 
excuse filing requirement); Dalton v. 
Employment Sec. Comm'n. 671 F.2d 835, 838 
(4th Cir.), cert, denied. 459 U.S. 862, 
103 S.Ct. 138, 74 L. Ed. 2d 117. (1982) (be­
cause non-charging plaintiff's hiring 
claim was not "substantially identical" 
to incumbent employee's claims of 
discriminatory treatment, single-filing 
rule did not apply). Although both
employment practices could have been



74a
racially discriminatory, that alone is 
not enough to implicate the second 
requirement of the single-filing rule. 
Otherwise, "intervention [could] boot­
strap the court's jurisdiction to 
encompass claims regarding practices 
broader that the ... claims properly 
assertable by the named plaintffs." 
Vuvanish v. Republic Nat'l Bank. 723 
F . 2 d 1195 , 1201 (5th Cir.) (former
employees who sought to intervene in 
class action but who did not file timely 
charges with EEOC could only proceed 
within periphery of issues that named 
plaintffs could assert), cert, denied. 
469 U.S. 1073, 105 S.Ct. 567, 83
L.Ed.2d 507 91984); see also Wakeen v.
Hoffman House. Inc.. 724 F.2d 1238, 1246
(7th Cir. 1983)("[A] class member who 
does not meet the procedural prerequi­
sites for waging a Title VII suit may not



75a
use the guise of a motion to intervene to 
take over as the sole class representa­
tive for someone who initiates but is not 
legitimately able to continue a class 
action.").

We also note that merely because a 
notation at the beginning of Griffin's 
EEOC complaint stated that Griffin's 
charge also encompassed "[s]incerity of 
recruiting, hiring, and promoting of 
minority groups within the Florida's 
Division of Adult Corrections," Smith's 
status as a class representative was not 
saved. As the pleadings make clear, 
Griffin never had constitutional standing 
to raise a testing or a hiring claim, a 
fundamental requirement underlying the 
single-filing rule: "once an aggrieved 
person raises a particular issue with the 
EEOC which he has standing to raise, he 
may bring an action for himself and the



76a
class of persons similarly situated." 
Oatis. 398 F. 2d at 498.37 Smith cannot 
point to Griffin's EEOC charge, which 
arguably contained a testing claim 
brought on behalf of others, to excuse 
his failure to have filed his own testing 
charge with the EEOC when Griffin did not 
have standing to raise the testing issue. 
We cannot permit the single-filing rule 
to be used to circumvent the constitu­
tional requirement of standing.

37 By "standing," the Oatis court 
meant "the issues as to which [the 
employee] is aggrieved," Oatis, 398 F.2d 
at 499, citing Title VII's enforcement 
provision that requires the EEOC to 
investigate the charges of a person 
claiming to be aggrieved, 42 U.S.C. § 
2000e-5(a). By "standing," the Oatis 
court also meant, even if implicitly, 
personal injury, that is, constitutional 
standing. See id.. at 498-99; see also, 
Vuvanish v. Nat'l Bank. 723 F.2d 1195, 
1200-01 (5th Cir.)(interpreting Oatis' 
single-filing rule as implicating 
constitutional standing cert, denied, 469 
U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507
(1984).



77a
IV.

In sum, based on standing principles 
and on the dictates of Falcon, we hold 
that the district court erred when it 
certified the class with the named 
plaintiffs as representatives. None of 
the named plaintiffs —  Griffin, Dejeri- 
nett, or Smith —  should have been al­
lowed to represent the class of black 
correctional officer applicants with 
testing claims. The district court's 
order certifying the class is therefore 

VACATED.
HATCHETT, Circuit Judge, dissenting: 
I dissent. The majority holds that 

Smith did not meet the second element of 
the single-filing rule. That rule 
states, "the individual claims of the 
filing and non-filing plaintiffs must 
have arisen out of similar discriminatory 
treatment in the same time frame."



78a

Jackson. 678 F.2d at 1011-12 (emphasis 
added). One of Griffin's claims in his 
EEOC complaint was that the FDOC dis­
criminated against black job applicants. 
Non-filing intervenor Smith's claim arose 
"out of similar discriminatory treat­
ment," because he alleges that the FDOC 
discriminated against him and other 
applicants through administration of a 
test with a discriminatory impact on 
blacks. The majority ignores the fact 
that Griffin raised the claim of dis­
crimination against black applicants in 
his EEOC complaint.

The majority erroneously assumes 
that if Griffin lacks standing to raise 
the hiring claim in federal court, then 
his raising of that claim before the EEOC 
is somehow ineffective for purposes of 
the single-filing rule. The majority's 
reasoning is based upon its failure to



79a
differentiate between the policy under­
lying the standing requirement in federal 
court and the policy underlying the 
single filing rule in an EEOC action. 
The policy underlying the standing 
requirement is to ensure that a party 
litigating an issue has a concrete stake 
in the outcome of the case, and is 
therefore motivated to vigorously 
litigate the issues. The policy underly­
ing the EEOC filing requirement is to 
ensure "that the settlement of grievances 
be first attempted through the office of 
the EEOC...." Ezell v. Mobile Housing 
Board. 709 F.2d 1376, 1381 (11th Cir.
1983); Otis v. Crown Zellerbach Corp.. 
398 F. 2d 496, 498 (5th Cir. 1968). The
purpose underlying the EEOC filing 
requirement is therefore to promote the 
resolution of Title VII claims out of 
court. The EEOC proceeding is not



80a
designed as a way-station on the road to 
the federal courthouse.

By asserting a hiring grievance in 
his EEOC complaint, Griffin ensured "that 
the settlement of [hiring] grievances 
[would] be first attempted through the 
office of the EEOC." Ezell. 709 F.2d at 
1381. The fact that Griffin may not have 
had standing in federal district court to 
raise the hiring issue is irrelevant to 
the fact that his EEOC complaint gave the 
EEOC an opportunity to settle the hiring 
grievance before that grievance was sued 
upon in federal district court. Since 
Smith's claim in federal district court 
of discriminatory hiring practices is 
identical to the claim of discriminatory 
hiring practices asserted in Griffin's 
complaint before the EEOC, involving the 
single filing rule will not frustrate the 
purpose of the EEOC filing requirement:



81a
to give the EEOC a chance to resolve 
Title VII claims before they go to court. 
The fact that Griffin may not have had 
standing to raise the hiring claim in 
court is irrelevant to the issue of 
whether the EEOC has had a chance to 
resolve that claim before it is taken to 
court, whether by Griffin, Smith, or 
anyone else.

In short, the majority has grafted 
the constitutional standing requirement 
for parties litigating in federal 
district court onto the filing require­
ments for persons alleging Title VII 
claims before the EEOC. Such a require­
ment does not, and never has, existed. 
The majority, however, misinterprets 
Fifth Circuit dicta to reach just that 
conclusion. That dicta says, "Once an 
aggrieved person raises a particular 
issue with the EEOC which he has standing



82a
to raise, he may bring an action for 
himself and the class of persons similar­
ly situated." Oatis. 398 F.2d at 498. 
The majority fails to mention that the 
sole issue in the Oatis case was whether 
a Title VII class action could include in 
the class persons who had not previously 
filed charges with the EEOC. The court 
held that the class could include such 
persons. The Oatis court gave its rea­
soning for this holding in the sentence 
immediately preceding the language relied 
upon by the majority in this case. That 
sentence states, "If it is impossible to 
reach a settlement with one discriminat­
es, what reason would there be to assume 
the next one would be successful." 
Oatis, 398 F. 2d at 498. In short, the 
court in Oatis was not faced with the 
question of whether an EEOC complainant 
could effectively file claims with the



83a
EEOC even though the complainant would 
not have standing to assert the claim in 
federal district court. The majority's 
application of constitutional standing 
requirements to the EEOC complainant puts 
the EEOC in the nonsensical position of 
having to anticipate how the federal 
district court will rule on the com­
plainant's standing to litigate various 
claims if the EEOC does not resolve them. 
Such a rule will result in the EEOC 
narrowing its resolution of claims to 
those which it anticipates the com­
plainant will have standing to sue upon 
in federal district court, regardless of 
the apparent existence of the alleged 
discrimination with respect to other 
employees or job applicants. Such a 
situation would hardly further the 
purpose of the EEOC filing requirement: 
to resolve Title VII claims out of court.



84a
Title 42 U.S.C. § 2000e-5(b) says: 
Whenever a charge is filed by 
or on behalf of a  person claim­
ing to be aggrieved, or by a 
member of the Commission, 
alleging that an employer . . . 
has engaged in an unlawful 
employment practice, the 
Commission shall serve a notice 
of the charge . . . and shall 
make an investigation thereof.

This provision requires the Commission 
to investigate all charges which a person 
"claims" to be aggrieved of. In no way 
does the provision suggest that the 
Commission is limited to the investiga­
tion of claims which the complainant will 
have standing to bring in a federal 
court. Any suggestion in Oatis of such a 
requirement is dicta that is in conflict 
with the intent of the statute that the



85a
EEOC resolve "claimed" discrimination out 
of court. Smith should therefore be 
allowed to proceed in federal district 
court as a class representative for the 
class of applicants who failed the 
objective test.



86a
UNITED STATES COURT OF APPEALS 

FOR THE NORTHERN DISTRICT OF FLORIDA 
TALLAHASSEE DIVISION

NO. TCA 79-1016 
Decided: March 12, 1981

PENERS L. GRIFFIN and HENRY L. 
DEJERINETT, both individually and on behalf of others 
similarly situated,

Plaintiffs,
v.

LOUIE L. WAINWRIGHT, et al.,
Defendants.

ORDER CERTIFYING CLASS
On the basis of the record in this 

case and the attached stipulation of the 
parties, which is hereby incorporated in 
this order as the findings of this court, 
the court finds that this action should 
be certified as a class action with the 
above-named plaintiffs representing a 
class of all past, present, and potential



87a

black employees of the State of Florida 
Department of Corrections.

The court finds that the require­
ments of Federal Rule of Civil Procedure 
23(b)(2) have been satisfied and that 
plaintiffs have met the requirements of 
Federal Rule of Civil Procedure 23(a). A 
decision on class certification is con­
ditional and subject to modification at 
any time prior to a decision on the 
merits. See Fed.R.Civ.P. 23(c)(1); Jones 
v. Diamond. 519 F.2d 1090, 1098 (5th Cir. 
1975) .

Accordingly, it is ORDERED AND 
ADJUDGED

1. Plaintiffs' motion to certify 
the class (Document 16) is GRANTED and 
the court hereby certifies this case as 
an action on behalf of the following 
class: all past, present, and potential
black employees of the State of Florida



88a
Department of Corrections.

2. The class certification hearing 
schedule,d to take place on April 2, 1981 
is hereby cancelled.

DONE AND ORDERED this 10th day of 
March, 1981.

s/s William Stafford__________
UNITED STATES DISTRICT JUDGE



89a
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION
NO. TCA 79-1016 
Decided:

PENERS L. GRIFFIN and HENRY L.DEJERINETT, etc.,
Plaintiffs,
v.

LOUIE L. WAINWRIGHT, etc., et al., 
Defendants.

STIPULATION

The Plaintiffs and Defendants, by 
and through their undersigned counsel, 
for the purpose of permitting the Court 
to determine preliminarily whether this 
action shall be maintained as a class 
action and for no other purpose, stipu­
late and agree as follows:



90a
1. The number of persons in the 

proposed class of all past, Present and 
potential black employees of the State of 
Florida Department of Corrections is 
greater than 1,000.

2. The allegations of race dis­
crimination in the Second Amended 
Complaint involve questions of law and 
fact which, under current law in the 
United Stares Court of Appeals, Fifth 
Circuit, are common to the class, 
including statistical evidence, evidence 
concerning the employment system of the 
State of Florida Department of Correc­
tions, and the common legal principles 
applied to claims of race discrimination. 
The parties maintain their right to brief 
these issues on appeal, if any.

3. Plaintiffs' counsel are com­
petent to prosecute this action as a 
class action. The named plaintiffs are



91a
willing and able to prosecute this action 
on behalf of the class. The parties 
reserve the right to present evidence and 
argument, at trial or at the hearing of 
any motion filed pursuant to paragraph 
"7" of this Stipulation, concerning the 
allegation that the Plaintiff Griffin 
withdrew his first charge of discrimina­
tion.

4. The claims of the named 
plaintiffs are, under current law in the 
United States Court of Appeals, Fifth 
Circuit, similar to those of other 
members of the proposed class. The 
parties maintain their right to brief 
these issues on appeal, if any. The 
Defendants believe that the employment 
record of the Plaintiff Griffin is not 
typical, but recognize that this issue 
relates to the merits of the claim rather 
than to the existence of the claim. The



92a
Defendants further believe that the 
claims of the Plaintiff Dejerinett are 
typical only of claims concerning 
employment at the Central Office of the 
Department of Corrections.

5. The Defendants reserve all 
defenses alleged in their amended answer 
to the second amended complaint, except 
their response, stated in their Eleventh 
Defense, to paragraphs numbered "8", "9", 
"10", and "11" of the second amended 
complaint. A response to those para­
graphs may be reasserted if the Defen­
dants move pursuant to paragraph "7" of 
this Stipulation.

6. The parties do not agree as to 
the appropriate dates which begin the 
periods of potential liability in this 
action and reserve the right to present 
evidence and argument on this issue.



93a
7. In the event that this action is 

preliminarily certified by the court as a 
class action, the parties reserve the 
right to move to decertify or limit the 
class, or to establish sub-classes, at 
any time during the pendency of this 
litigation.

8. The parties recognize that this 
Stipulation may be used by the court as a 
basis upon which to enter an order 
preliminarily certifying this action as a 
class action. The parties reserve the 
right to present evidence and argument 
concerning the appropriateness, vel non, 
and scope of the class at trial.

9. This Stipulation and the 
proposed class pertain only to the claims 
of employment discrimination and not to 
the other claims alleged in the second 
amended complaint.



94a
s/s MITCHELL D. FRANKS 
MITCHELL D. FRANKS 
Assistant Attorney General 
Department of Legal Affairs 
The Capitol, Suite 1501 
Tallahassee, Florida 32301 
(904) 488-1573
COUNSEL FOR DEFENDANTS
s/s HARRY L. WITTE_______
HARRY L. WITTE 
Attorney at Law 
1215 Thomasville Road 
Post Office Box 4289 
Tallahassee, Florida 32303 
(904) 244-9184
PATTERSON G. TRAYNHAM 
Patterson & Traynham 
Attorneys at Law 
1215 Thomasville Road 
Post Office Box 4289 
Tallahassee, Florida 32303 
(904) 224-9181
S/S BRIAN E. NORTON______
BRIAN E. NORTON 
Attorney at Law 
117 S. Martin Luther King 

Boulevard
Tallahassee, Florida 32301 
(904) 224-8701
PAUL A. LEHRMAN 
Attorney at Law 
103 N. Gadsden Street 
Tallahassee, Florida 32302 
(904) 224-8687
COUNSEL FOR PLAINTIFFS



95a
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION
No. ~TCA 79-1016

Decided: July 30, 1982

PENERS L. GRIFFIN, et al., etc.,
Plaintiffs,
v.

LOUIE L. WAINWRIGHT, et al., etc.,
Defendants.

ORDER
The above-styled cause is a civil 

rights suit brought pursuant to 42 U.S.C. 
§§ 1981 and 2000e alleging discriminatory 
employment practices based on race. This 
court, by order dated March 10, 1981
(Document 84) and on the basis of a 
stipulation filed by the parties, 
certified this action as a class action 
with Peners L. Griffin and Henry L.



96a
Dejerinett representing a class of all 
past, present, and potential black 
employees of the State of Florida 
Department of Corrections. The parties 
have litigated this action as an across- 
-the-board discrimination claim with 
discovery covering the realm of employ­
ment practices including hiring, promo­
tions, job classification, discipline, 
and terminations. On June 14, 1982, the 
United States Supreme Court rendered a 
decision faulting the Fifth Circuit's 
quasi-automatic across-the-board rule 
stressing the fact that all the require­
ments of Rule 23(a), Federal Rules of 
Civil Procedure must be satisfied for the 
maintenance of a class action. General 
Telephone Company of the Southwest v. 
Falcon, slip op. No. 81-574 (U.S. June 
14, 1982). Relying on Falcon. defendants 
filed a motion to vacate the order



97a
certifying class (Document 143) to which 
plaintffs responded in Document 146. 
Plaintiffs have filed a motion to 
intervene (Document 141) requesting this 
court to enter an order permitting 
Alvin Smith to intervene as a named 
plaintiff to represent the class of 
applicants who defendants have denied 
employment on the basis of a facially 
objective selection procedure which 
allegedly has a disparate impact upon 
black applicants. Defendants responded 
to this motion in Document 145.

Peners L. Griffin is a black 
employee of the Florida Department of 
Corrections. Plaintiff Griffin unsuc­
cessfully applied for several promotions 
within the Department. Document 58, 
Defendants' Admissions 21-25, 30-32. He 
also alleges that he had been terminated 
twice for discriminatory reasons but



98a
eventually was reinstated. Document 54, 
Second Amended Complaint f 14. Griffin 
filed a charge of discrimination with the 
Equal Employment Opportunity Commission 
on February 22, 1975, and received a
Notice of Right-to-Sue letter. Document 
58, Defendants' Admission 20.

Henry L. Dejerinett, a black, 
unsuccessfully applied for the position 
of Property Manager III within the 
Department. Document 58, Defendants' 
Admissions 33 & 34. Defendant Dejerinett 
alleges that he was not hired because of 
defendants' impermissible racial con­
siderations. Document 54, Second Amended 
Complaint 1fl5. He filed a charge of
discrimination with the Equal Employment

*

Opportunity Commission. Document 57, 
Attachment.

Defendants assert that plaintiffs 
Griffin and Dejerinett cannot adequately



99a
represent the class as preliminarily 
certified. Defendants posture that, at 
best, Griffin can adequately represent 
employees seeking promotion within the 
correctional officer lines within any 
region he applied for promotion and 
Dejerinett can adequately represent 
applicants seeking employment for 
clerical/office positions within region 
I. Defendants further claim that neither 
Griffin nor Dejerinett can represent a 
sub-class of applicants rejected for 
employment because they failed to receive 
a passing score on the FDOA exam given to 
all applicants for correctional officer 
jobs. Finally, defendants urge this 
court to inquire into plaintiffs' ability 
to bear the costs of this suit.

The Falcon decision mandates that 
this court carefully examine the require­
ments of Rule 23(a), Federal Rules of



100a
Civil Procedure. No. 81-574, slip op. at 
9. The first requirement is that "the 
class is no numerous that joinder of all 
members is impracticable." Federal 
R.Civ.P. 23(a)(1). The number of black 
persons employed by the Department in 
February 1981 was 1,346. Document 82, 
Defendants' Admission 62. This number 
alone, without inquiry as to the number 
of past and potential black employees, 
clearly indicates that the class members 
are too numerous to join.

The second requirement is that 
"there are questions of law or fact 
common to the class." Fed.R.Civ.P. 
23(a)(2). Plaintiffs have alleged a 
common practice and pattern of racial 
discrimination which affects defendants' 
hiring promotion, job classification, 
disciplinary, and termination decisions. 
This general discriminatory policy



101a
commonly injures all members of the class 
of past, present, and potential black 
employees of the Department. Plaintiffs 
maintain that they will utilize similar 
statistical data, similar historical 
background and the same or similar 
witnesses to support their allegations of 
class-wide discrimination. This court is 
satisfied that the commonality require­
ment of Rule 23 is met.

The third prerequisite for maintain­
ing a class action is that "the claims or 
defenses of the representative parties 
are typical of the claims or defenses of 
the class." Fed.R.Civ.P. 23(a)(3). This 
court must inquire "whether the named 
plaintiff's claim and the class claims 
are so interrelated that the interests of 
the class members will be fairly and 
adequately protected in their absence." 
Falcon, slip op. at 10 n.3. Plaintiff



102a
Griffin certainly can adequately protect 
the interests of black employees who have 
claims of discrimination in promotions, 
job classifications, discipline, and 
terminations. Plaintiff Dejerinett's 
claim is somewhat interrelated with the 
class claims of a discriminatory hiring 
policy. Plaintiffs allege that blacks 
are not hired in sufficient number 
because of facially neutral objective 
criteria, i.e., a high school education 
requirement and the FDOA test, which have 
a disparate impact on black applicants 
and of a subjective barrier which causes 
the almost exclusively white decision­
makers to discriminate against black 
applicants. The class claim against 
discriminatory subjective hiring deci­
sions is fairly encompassed in Dejeri­
nett's claim. This court, however, is 
concerned that the class claim against



103a
the Department's objective screening 
criteria which have a disparate impact 
upon class members, especially the FDOA 
test, is not fairly and adequately 
protected by any of the named plaintiffs.

The fourth requirement is that "the 
representative parties will fairly and 
adequately protect the interests of the 
class." Fed.R.Civ.P. 23(a)(4). This 
court notes that plaintiffs and plain­
tiffs' counsel have efficiently litigated 
this complex action for three years, and 
trial will commence in three weeks. This 
demonstrates that plaintiffs are adequate 
representatives of the class. The court, 
however must also inquire whether there 
is a conflict of interest between the 
named plaintiffs and the class they seek 
to represent. See Falcon, slip op. at 10 
n. 13. This court is mindful of the
possible conflict of interest for



104a
Plaintiff Griffin to represent applicants 
who were denied employment and who, if 
granted relief, might compete with him 
for promotions. The United States 
Supreme Court held that "[u]nder Rule 23, 
the same plaintiff could not represent 
these classes [of applicants]." General 
Telephone Company of the Northwest v. 
Equal Employment Opportunity Commission. 
446 U.S. 318, 331 (1980). This court is
of the view that if an unsuccessful 
applicants for a correctional officer 
position becomes a class representative, 
that applicant can adequately represent 
potential black employees. The prejudice 
which may result from the conflict 
between Griffin and the class of poten­
tial employees is far outweighed by the
prejudice which would result if ap-
plicants could not be members of the
class certified in this action. As is



105a
discussed more fully below, this suit has 
been litigated for years as a class which 
included applicants. See, e.cr. . Docu­
ments 54, 108, and 120. Extensive
discovery has taken place on the hiring 
issue. See, e.q., Documents 37, 38, and 
43. It would be greatly prejudicial, at 
this late date, to exclude potential 
employees from the class.

This suit is a class action for 
injunctive or declaratory relief under 
Rule 23(b) (2;, Federal Rules of Civil 
Procedure. Defendants' contention that 
the class cannot encompass all the 
regions in the state because employment 
decisions are made independently at each 
regional level is not well-taken. 
Plaintiff Griffin has applied for 
promotion in four out of the five regions 
in the state. The propriety of defen­
dants' behavior will be determined in a



single action, and if plaintiffs 
prevail, this court can fashion an 
adequate remedy.

Plaintiffs strenuously maintain the 
position that Griffin can adequately 
represent the class; however, in the 
alternative, plaintiffs have filed a 
motion to intervene on behalf of Alvin 
Smith. Mr. Smith applied for employment 
as a Correctional Officer I. Initially, 
Mr. Smith was denied employment because 
he had not completed high school. After 
obtaining his GED, he was again denied 
employment because he failed the written 
examination required of Correctional 
Officer I applicants.

Plaintiffs did not specify in their 
motion whether this was intervention of 
right, Fed.R.Civ.P. 24(a), or permissive 
intervention, Fed.R.Civ.P. 23(b). The 
foregoing discussion clearly demonstrates

- 106a -



107a
that plaintiff may intervene as a matter 
of right.

Alvin Smith, an unsuccessful 
applicant, certainly has an interest in 
this suit which seeks to challenge 
defendants' employment practices, 
including hiring. Unless he is permitted 
to intervene, his interest may not be 
adequately represented by the named 
parties. Mr. Smith eases this court's 
concern that the class claim against the 
Department's objective criteria was 
fairly and adequately protected by the 
named plaintiffs. Alvin Smith is a 
proper representative for potential black 
employees.

This court is of the view that this 
motion was timely filed. Falcon, which 
altered this circuit's position on 
across-the-board discrimination claims, 
was decided on June 14, 1982. Plaintiffs



108a
filed their motion to intervene on July 
8, 1982, as a result of Falcon. This
court finds that defendants will not 
suffer prejudice if Smith is allowed to 
intervene. Defendants have been on 
notice since the institution of this 
action that they must defend against 
hiring claims. The parties have con­
ducted discovery regarding the hiring 
issue, and have vigorously litigated this 
claim as evidenced by the motion for 
partial summary judgment (Document 108) .

Defendants further contend that 
Smith cannot be a class representative 
because he did not timely file an EEOC 
complaint. This circuit adopted the 
single filing rule whereby "once an 
aggrieved person raises a particular 
issue with the EEOC which he has standing 
to raise, he may bring an action for 
himself and the class of persons similar-



109a
ly situated...." Oatis v. Crown Zeller- 
bach Corp.. 398 F.2d 496, 498 (5th Cir.
19680. An examination of Griffin's 
charges of discrimination (Document 148 
Exhibits A & C) reveals that Griffin 
raised the hiring claim in addition to 
promotion, job classification, dis­
cipline, and termination claims. 
Griffin's charge, therefore, exhausted 
administrative remedies for the whole 
class and for all the claims.

ACCORDINGLY, it is ORDERED:
1. Defendants' motion to vacate 

order certifying class is DENIED.
2. Plaintiffs' motion to intervene 

is GRANTED.
3. This action shall continue to be 

certified as a class with PENERS L. 
GRIFFIN, HENRY L. DEJERINETT, and ALVIN 
SMITH as named plaintiffs representing a 
class of all past, present, and potential



110a
black employees of the State of Florida 
Department of Corrections.

DONE AND ORDERED this 28 th day of 
July, 1982.

s/s William Stafford 
WILLIAM STAFFORD 
Chief Judge



111a
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION
No. TCA 79-1016 

Decided: August 25, 1983

PENERS L. GRIFFIN and HENRY L. 
DEJERINETT,

Plaintiffs,
and
ALVIN SMITH,

Intervenor,
all individually and on behalf of 
all others similarly situated,

v.
LOUIE L. WAINWRIGHT, individually 
and in his official capacity as 
Secretary of the Department of 
Corrections of Florida; THE STATE 
OF FLORIDA; THE DEPARTMENT OF 
CORRECTIONS, and any predecessor or 
successor agency; and RAYMOND W.
GEARY, individually and in his official 
capacity as attorney for the Department 
of Corrections of Florida,

Defendants.



112a
MEMORANDUM OPINION

This is a civil rights class action 
brought pursuant to 42 U.S.C. §§ 1981,
1983 and 2000e alleging discriminatory 
employment practices based on race. 
Federal jurisdiction is found in 28 
U.S.C. § 1343. This action also involves 
individual claims of the named plaintiff 
Peners L. Griffin which are stated in 
Counts II and III of the second amended 
complaint. The issue of liability for 
the class claims was tried before the 
court without a jury from August 17, 
1982, to September 17, 1982, following
which the parties submitted extensive 
post-trial memoranda. From the pre-trial 
stipulation, the exhibits, admissions of 
the parties, and all testimony, and after 
considering the legal arguments made 
before, during, and after trial, the 
court now makes its findings of fact and



113a
conclusions of law as required by Rule 
52, Federal Rules of Civil Procedure.

FINDINGS OF FACT 
I. HISTORY OF THE CASE

Plaintiff Peners L. Griffin, a black 
male, became employed with defendant 
Florida Department of Corrections (FDOC) 
or its predecessor agency in April 1971. 
Plaintiff Griffin was the first black 
person hired as a Road Prison Officer at 
the Tallahassee Road Prison operated by 
defendant FDOC. Since January 19 7 3, 
plaintiff Griffin has applied for several 
promotions, but has never been selected 
Griffin received at least satisfactory 
employee evaluations from his date of 
hiring until sometime in 1974 when Wayne 
Scott, a white male, became Chief 
Correctional Counselor in Tallahassee. 
Scott fired Griffin in 1974; however, 
Regional Superintendent Hicks, a white



114a
male, reinstated Griffin because FDOC 
failed to follow proper termination 
procedures. In early 1975 Griffin again 
was terminated, and he filed a Career 
Service appeal. The Career Service 
Commission found no "good cause" for 
Griffin's dismissal and ordered his 
reinstatement with back pay. On or about 
February 22, 1975, Griffin also filed a 
charge of discrimination with the Equal 
Employment Opportunity Commission (the 
EEOC) in which he alleged discrimination 
by the FDOC against blacks in discipline, 
hiring, promotions, and other employment 
practices. Defendants contend and 
plaintiffs deny that Griffin withdrew his 
1975 charge; however, this issue was 
never raised at trial. Griffin requested 
a right-to-sue letter and received it on 
about July 23, 1979. Griffin filed this 
suit as a class action on October 15,



115a
1979.

Griffin has been disciplined several 
times, and he has filed at least one 
other charge of discrimination with the 
EEOC against the FDOC. He requested and 
received a right-to-sue letter on this 
later charge on or about April 10, 1980.

Henry L. Dejerinett, a black male, 
applied for the FDOC position of Property 
Manager III in November 1978 Plaintiff 
Dejerinett was not hired; Kenneth Hayes, 
a white male, was selected. Dejerinett 
filed a charge of discrimination against 
the FDOC and received a right-to-sue 
letter on or about April 2, 1980.

On June 17, 1980, plaintiff Griffin 
sought leave of court to amend his 
complaint to add Henry L. Dejerinett as a 
named plaintiff. This court granted the 
motion by order dated November 25, 1980 
(Document 53). Plaintiffs filed a second



116a
amended complaint (Document 54) on 
December 15, 1980.

Based on the parties' stipulation, 
this court, by order dated March 10, 1981 
(Document 84) , certified the action as 
a class action with Peners L. Griffin and 
Henry L. Dejerinett representing a class 
of all past, present, and potential black 
employees of the FDOC. On July 8, 1982, 
defendants filed a motion to vacate the 
order certifying the class and plaintiffs 
moved for an order permitting Alvin Smith 
to intervene.

Alvin Smith, a black male, was 
denied employment as a Correctional 
Officer I because he had not earned a 
high school diploma or a general educa­
tion degree (GED). Smith obtained a GED 
but failed the written correctional 
officer examination in July 1981. He, 
therefore, was denied employment.



117a
This court allowed Smith to inter­

vene to represent potential black 
employees. The court also reviewed the 
class certification in light of the 
recent case of General Telephone Company
_the_Southwest v. Falcon. 72 L.Ed.2d

740 (1982). By order dated July 28, 1982 
(Document 150), the court continued to 
certify this action as a class action 
with Peners L. Griffin, Henry L. Dejeri- 
nett, and Alvin Smith as named plaintiffs 
and intervenor representing a class of 
all past, present, and potential black 
employees of the FDOC.

On July 30, 1982, this court entered 
an order (Document 157) granting partial 
summary judgment for plaintiffs and 
finding that the correctional officer 
written examination utilized by defen­
dants in screening applicants for 
correctional officer positions had a



118a
disparate impact upon class members which 
had not been justified by business 
necessity. This court denied summary 
judgment on the hiring and promotion 
claims because the court found plain­
tiffs' statistics used to support their 
claims were flawed.

Phase I, the liability for class 
claims, commenced on September 17, 1982.
Phase I, part 1, consisted mostly of 
witnesses who were experts in the fields 
of economics and statistics. Phase I, 
part 2, was anecdotal evidence.
II. CLASS REEVALUATION

The court has a continuing duty to 
reevaluate class status throughout the 
litigation. Vuvanich v. Republic 
National Bank of Dallas. 505 F.Supp. 224, 
233 (N.D. Tex. 1980); see also Cooper v.
University of Texas at Dallas. 482 F. 
Supp. 187, 190 (N.D. Tex. 1979), aff'd,



119a
648 F. 2d 1039 (5th Cir. 1981). Although 
defendants have not filed a post-trial 
motion to decertify the class, they argue 
that plaintiff Griffin voluntarily 
withdrew his 1975 charge of discrimina­
tion and that there is no proof that the 
charge was an "across-the-board" claim. 
Defendants first raised the issue of 
whether Griffin withdrew the 1975 charge 
in a motion to dismiss the first amended 
complaint (Document 17). This court held 
that "the factual dispute regarding 
plaintiff's waiver of rights conferred by 
Title VII is an issue for trial " 
Document 53.

This issue was next mentioned in the 
pre-trial stipulation under the heading 
"Admitted Facts Requiring No Proof." It 
states:

The Plaintiff, Peners L. 
Griffin, filed a charge of 
Discrimination, pursuant to 
Title VII, on or about February



120a
22, 1975. A true copy of that
charge has been filed in this 
action as Exhibit "A" To a 
Stipulation (Document 148) and 
is properly in evidence A
Notice of Right-to-Sue was duly 
issued by the Department of 
Justice regarding that charge, 
and this action was timely 
filed under Title VII. 
Defendants assert and Plain­
tiffs deny that Griffin 
withdrew the charge

Document 166, p.ll.
This issue was not litigated at trial
and, in fact, was not raised until
defendants' response and objections to
plaintiffs' proposed findings and
conclusions (Document 215) •

This court is of the view that
plaintiffs have both pleaded and proved 
that Griffin filed a charge of dis­
crimination on or about February 22, 
1975, and that he received a right-to-sue 
letter. As the pre-trial stipulation 
notes, the charge and letter are properly 
in evidence. Defendants have failed to



121a
prove the defense that Griffin voluntar­
ily withdrew the 1975 charge. The class, 
therefore, may rely on Griffin's 1975 
charge, because the Fifth Circuit adopted 
the single filing rule whereby "once an 
aggrieved person raises a particular 
issue with the EEOC which he has standing 
to raise, he may bring an action for 
himself and the class of persons similar­
ly situated. . . ." Oat is v. Crown

Zellerback Corp.. 398 F.2d 496, 498 (5th 
Cir. 1968) .

Defendants have also argued that 
there is only "the naked assertions of 
Griffin and his attorneys . . . that the 
destroyed charge was an 'across-the- 
-board' claim." Document 215, p.2.
This statement is inaccurate. The 1975 

charge is in evidence (Document 148, 
Exhibit A) . A review of that charge 
clearly indicates that Griffin set forth



122a
an across-the-board claim challenging the 
FDOC's practices in hiring, discipline, 
and promotions of blacks.

Griffin has alleged that these 
discriminatory practices are the result 
of a subjective decision-making process 
which has its roots in pre-Act procedures 
and continues until the present. Because 
plaintiffs attempted to prove that this 
discrimination pervades a pattern of 
events and is not isolated incidents, the 
charge could have been filed at any time. 
See Laffev v. Northwest Airlines. Inc.. 
567 F. 2d 429, 472-73 (D.C. Cir. 1976); 
Wetzel v. Liberty Mutual Insurance 
Company. 508 F.2d 239, 246 (3rd Cir. 
1975) ; Cooper v. University of Texas at 
Dallas. 482 F. Supp. 187, 190 (N.D. Tex. 
1979). Defendants7 liability commences 
March 24, 1972, the date which Title VII 
became applicable to the FDOC. The only



123a
employees barred from the class are those 
who left the employ of the FDOC more 
than 300 days before the filing of 
Griffin's 1975 charge. See Laffev. 567 
F.2d at 472-74; Wetzel. 508 F.2d at 246; 
Cooper. 482 F. Supp. at 190.

Defendants failed to present any 
evidence at trial which altered this 
court's findings that plaintiffs met the 
requirements for class certification set 
forth in Rule 23, Federal Rules of Civil 
Procedure (Document 150) . This court 
now reaffirms its decision that this 
action shall be certified as a class 
action with Peners L. Griffin, Henry L. 
Dejerinett, and Alvin Smith as named 
plaintiffs and intervenor representing a 
class of all past, present, and potential 
black employees of the FDOC.



124a
III. THE DEFENDANTS

Plaintiffs have sued Louie L. 
Wainwright, individually and in his 
official capacity as Secretary of the 
Department of Corrections of Florida. 
Defendant Wainwright is the chief 
executive officer of the FDOC.

Plaintiffs have also sued the State 
of Florida and the Department of Correc­
tions. This court orally ruled that when 
referring to the State of Florida in this 
case, it shall mean the Florida Depart­
ment of Corrections. Defendant FDOC is 
an executive department of the State of 
Florida and is an employee within the 
meaning of Title VII. 42 U.S.C. § 
2000e(b).

Plaintiffs sued Raymond W. Geary, 
individually and in his official capacity 
as attorney for the FDOC. Defendant 
Geary was employed as general counsel for



125a
the FDOC during pertinent times encom­
passed in this litigation.
IV. THE FLORIDA DEPARTMENT OF 

CORRECTIONS
The Department of Corrections has 

"supervisory and protective care, 
custody, and control of the inmates, 
buildings, grounds, property, and all 
other matters" pertaining to the state 
correctional system. Fla. Stat. § 
945.025 (1981). In 1981, over half of
the FDOC work force, 4451 out of 8594 
jobs, was in EEO Category No. 4, Protec­
tive Services. The following positions 
with the FDOC are protective service 
j obs:

Correctional Counselor Chief I 
Correctional Counselor Chief II 
Correctional Officer Chief I 
Correctional Officer Chief II 
Correctional Officer Chief III 
Correctional Officer I 
Correctional Officer II 
Correctional Officer III 
Correctional Security Coordinator 
Correctional Security Shift



126a
Supervisor I

Correctional Security Shift 
Supervisor II

Fire Chief 
Firefighter II
Prison Inspector and Investigation

Supervisor
Prison Inspector and Investigator 
There are statutory qualifications 

for the correctional Officer position. 
The Florida Statutes required:

After July 1, 1974, any
person employed as a correc­
tional officer shall:

(1) Have reached the age of 
majority.

(2) Be a citizen of the 
United States.

(3) Be a high school 
graduate or its equivalent" as 
the term may be determined by 
the council.

(4) Have his fingerprints 
on file with the council or 
agency designated by the 
council.

(5) Have passed an 
examination by a licensed 
physician based on specifica­
tions established by the 
council.

(6) Have a good moral 
character as determined by 
investigation under procedures 
established by the council.



127a
Fla. Stat. $ 944.584 (1975). These 
requirements have changed slightly. 
Since July 1, 1980, one must be age 
nineteen and after July 1, 1981, meet the 
additional requirement of not having been 
convicted of a felony or misdemeanor 
involving moral turpitude. Fla. Stat. § 
943.13 (1981).

An applicant seeking a position as a 
correctional officer was required to pass 
a written examination consisting of 
seventy-five questions to be considered 
for employment. Any applicant who failed 
to score at least thirty-eight on the 
test was automatically excluded from 
consideration. The FDOC ceased using a 
written examination in August, 1982, 
immediately after this court found that 
it had a disparate impact.



128a
V. THE DECISION-MAKING PROCESS

A. Hiring
When there is a vacancy for a 

correctional officer, the FDOC issues a 
vacancy announcement. Applicants file 
applications which are reviewed by the 
personnel officer at the institution 
where there is a vacancy. The applica­
tions are screened for the minimal 
requirements such as age and education. 
Then the applications are reviewed by a 
committee which usually consists of a 
chief correctional officer, a lieu­
tenant, and sometimes a personnel manager 
at the location. The committee inter­
views applicants who are deemed to be 
qualified and prior to August, 1982, 
those who had passed the written examina­
tion. The interview normally consists of 
questions about an applicant's prior work 
history, interest in the field, and



129a
questions designed to determine an 
applicant's potential effectiveness as a 
correctional officer. The committee 
makes a recommendation to the institu­
tion's superintendent who has the hiring 
authority.

The hiring process for clerical 
employees is similar to the procedure 
used for correctional officers. Usually 
a clerical vacancy is advertised locally 
and the personnel office screens the 
applications. The supervisor or depart­
ment head further screens the applica­
tions and after interviewing the ap­
plicants, makes a recommendation through 
the personnel manager to the superinten­
dent who is the hiring authority.

B. Promotions
When there is a vacancy for a 

position above a Correctional Officer I 
position, a vacancy announcement is



130a
published. The applications are reviewed 
by the personnel office, which forwards 
applications of those who meet the 

training and experience requirements set 
forth in the class specifications to the 
chief correctional officer. A committee
interviews the qualified applicants and 
makes a recommendation through the 
personnel officer to the superintendent 
Generally the criteria considered in
promotional decisions are:

(1) seniority;
(2) training;
(3) education;
(4) time on the job 

experience gained in the position 
such as in an

(5)
(6)
(7)
(8)

and superiors;
O )

(actual 
sought,

and

'acting" capacity); 
job stability; 
professional development; 
performance evaluation; 
recommendations from peers
demonstrated leadership;

(10) administrative experience.
C. Performance Evaluations
An employee's supervisor completes

an employee service rating or evaluation.



131a
The employee is rated unsatisfactory, 
conditional, satisfactory, above satis­
factory, or outstanding in the following 
areas:

(1) appearance;
(2) attendance;
(3) cooperation;
(4) dependability;
(5) health;
(6) initiative;
(7) knowledge of job;
(8) quality of work;
(9) quantity of work; and
10) safety.

The evaluation is routed through the 
next higher level supervisor and then to 
the institution's personnel manager for 
final review and filing.
VI. STATISTICAL EVIDENCE

A. Theoretical Approaches 
The two theories which may be 

applied to a particular set of facts to 
show discrimination are disparate impact 
and disparate treatment. International 
Brotherhood of Teamsters v. United
states. 431 U.S. 324, 335 n.15 (1977).



132a
Liability for claims of disparate impact 
arise when a facially neutral employment 
practice imposes a harsher result on one 
group than another and cannot be jus­
tified by business necessity. A dis­
parate impact plaintiff need not show 
intentional discrimination. Griggs v. 
Duke Power Company. 401 U.S. 424 (1971).

Disparate treatment is a type of 
discrimination where the employer treats 
some people less favorably than others 
because of their race, color, religion, 
sex, or national origin. The standards 
for evaluating classwide disparate 
treatment claims are found in Interna­
tional Brotherhood of Teamsters__ v .
United States. 431 U.S. 324 (1977), and
Hazlewood School District v. United 
States , 433 U.S. 299 (1977). The
plaintiff has the burden of proving a 
prima facie case that defendant inten­



133a
tionally discriminated against a pro­
tected class as its regular practice. 
Plaintiff may prove the prima facie case 
solely by statistics. Discriminatory 
intent or motive may be inferred by the 
statistics alone if the statistical 
disparity is great. Payne v. Travenol 
Laboratories Inc., 673 F.2d 798, 817 (5th 
Cir. 1982) (citing Village of Arlington 
Heights v. Metropolitan Housing Develop­
ment Corp.. 429 U.S. 252, 265-66 (1971)). 
A plaintiff, however, may enhance his 
case by presenting evidence of the 
employer's history of discrimination or 
anecdotal testimony as to individual 
cases of discrimination. Payne. 673 F.2d 
at 817.

Once plaintiff has proved his prima 
facie case, defendant must rebut this 
showing by demonstrating that plaintiff's 
proof is either inaccurate or insig­



134a
nificant. Teamsters. 431 U.S. at 360. 
If the employer fails to rebut plain­
tiff's case, there is a violation of 
Title VII. Teamsters. 431 U.S. at 361. 
The Teamsters' pattern of proof is 
appropriate for the §§ 1981 and 1983 
claims as well as the Title VII claims. 
Payne, 673 F.2d at 818.

B. Plaintiffs' Statistical Case
Plaintiffs have primarily relied on 

statistics to prove their claims of 
discrimination. Dr. David W. Rasmussen, 
Professor of Economics at Florida State 
University, Tallahassee, Florida, 
testified for plaintiffs at trial. Dr. 
Rasmussen defined his task as determining 
in an analytical way if the FDOC has been 
drawing from the labor pool in a racially 
random way. Dr. Rasmussen used the 1970 
census and the Department of Administra­
tion's register summaries to construct a



135a
series of availability labor pools. He 
then tested his proxy availability pool 
of blacks against incumbents for statis­
tical significance using the approxima­
tion to the binomial distribution test 
approved by the United States Supreme 
Court in Casteneda v. Partida. 430 U.S. 
482 (1977). Plaintiffs' Exhibit No. D-l 
amended. Dr. Rasmussen's benchmarks for 
his state workforce analyses ranged by 
.23 (Plaintiffs' Exhibit No. D-l amended, 
Table 9) to .38 (Id., Table 2). This 
court will examine Tables 9 and 2 in
detail.



136a
TABLE 9

CORRECTIONAL OFFICER I 
STATE WORKFORCE ANALYSIS

Geographic
Actual38 Adjusted

Year Total Black Bench­
mark39
1972 1066 55 .23

Incumbents from DOC documents
entitled:

6/30/72 Division of Correc­
tions, incumbents by job class (Plain­
tiffs' Exhibit A-3).

FY 74-75 DOR Job Classification 
Chart (Plaintiffs' Exhibit A-4) .

6/30/77 DOR Job Classification 
Chart (Plaintiffs' Exhibit A-5).

1978-1981 Minority and Female 
Staffing Report (Plaintiffs' Exhibits 
A-6, 7, 8, 9), New hires from Plaintiffs' 
Exhibit A-ll.

39 Includes Service workers ex­
clusive of private household, Farmers, 
all Laborers and all Operatives, earning 
less than $6000 in 1969, and having 
completed 12 to 15 years of education. 
Sources: 1970 Census of the Population,
Table 175 and 176.

This benchmark includes occupa­
tional groups throughout the State, ex­
clusive of Bay, Duval, Escambia, Frank­
lin, Gulf, Hamilton, Holmes, Jefferson, 
Madison, Nassau, Okaloosa, Santa Rosa, 
Taylor, Walton, Washington, St. Jonns, 
Leon and Wakulla counties.



137a

FY
1974-75 1648 202 .23
1977 2518 336 .23
1978 3119 461 .23
1979 3232 523 .23
1980 3488 618 .23
1981 3415 631 .23
NEW HIRES 
FY 77-78 1570 237 .23

Expected 
Numberr of

Year Black
1972 245.18
FY
1974-75 379.04
1977 579.14
1978 717.37
1979 743.36
1980 802.24
1981 785.45
NEW HIRES 
FY 77-78 361.10

Number of 
Std. Dev.

13.84

10.36 
11.51 
10.91 
9.21 
7.41 
6.28

7.44



138a
In Table 9 Dr. Rasmussen reached a 

.23 benchmark which reflects four 
factors: geography, occupation, income,
and education. This proxy labor pool 
excludes people living in eighteen 
counties which are not adjacent to 
counties with major prisons. Dr.
Rasmussen assumed that people would not 
commute from these eighteen counties to 
work at a prison as a correctional 
officer. The 23 benchmark includes only 
people from the 1970 census who listed 
their occupations as farmers, laborers, 
operatives, or service workers exclusive 
of private household. Dr. Rasmussen 
hypothesized that correctional officer 
applicants would most likely come from 
those occupational groups. The benchmark 
was also adjusted for income to include 
those groups whose median income was less 
than $6000. in 1969. In 1970 the



139a
starting salary for a correctional 
officer was approximately $5600. Dr. 
Rasmussen assumed that persons in 
occupational groups earning more than an 
annual salary of $6000 would be unwilling 
to apply for a position as correctional 
officer and receive a lower salary. The 
last adjustment to the benchmark was for 
education Dr. Rasmussen included only 
those persons with twelve to fifteen 
years education because a high school 
diploma or a general education degree is 
a statutory requirement for correctional 
officers.

After considering these four 
factors, Dr. Rasmussen calculated the 
appropriate benchmark at .23 which means 
that black? comprised 23% of his proxy 
labor pool. Dr. Rasmussen theorized that 
if the FDOC drew from the labor pool in a 
racially random way, then 23% of its new



140a
hires should be black.

Table 9 was the incumbent workforce 
because data on new hires is limited. 
When Dr. Rasmussen tested his proxy 
availability pool of blacks against 
incumbents, he found statistically 
significant underrepresentation of blacks 
in defendants' workforce.



141a
TABLE 2

CORRECTIONAL OFFICER I 
STATE WORKFORCE ANALYSIS

Income
Adjusted

Actual40 Benchmark * 41
Year Total Black M a l eOnlŷ -I
1972 1066 55 .38
FY
1974-75 1648 202 .38
1977 2518 336 . 38
1978 3119 461 .38
1979 3232 523 . 38

Incumbents from DOC documents
entitled:

6/30/72 Division of Correc­
tions, incumbents by job class (Plain­
tiffs' Exhibit A-3).

FY 74-75 DOR Job Classification 
Chart (Plaintiffs' Exhibit A-4).

6/30/77 DOR Job Classification 
Chart (Plaintiffs' Exhibit A-5).

1978-1981 Minority and Female 
Staffing Report (Plaintiffs' Exhibits 
A-6, 7, 8, 9).

41 Includes Service workers ex­
clusive of private household, all 
laborers, all operatives and farmers, 
earning less than $6000 in 1969. 
Sources: 1970 Census of the Population,
Table 175.



142a

1980 3488 618 . 38
1981 3415 631 .38

Year
Expected 
Number of 
Black

Number of 
Std. Dev.

1972 405.08 22.09
FY
1974-75 626.24 21.53
1977 956.84 25.48
1978 1185.22 26.72
1979 1228.16 25.55
1980 1325.44 24.68
1981 1297.70 23.50



143a
In Table 2, Dr. Rasmussen reached a 

.38 benchmark which reflects three 
factors: occupation, income, and gender.
Dr. Rasmussen made the same assumptions 
concerning occupation and income as he 
did for Table 9. He also counted only- 
males in this benchmark because he 
assumed most correctional officers were 
men. Considering these factors, Dr. 
Rasmussen's proxy population consisted of 
38% blacks. When Dr. Rasmussen tested 
his availability pool of blacks against 
incumbents, he found an even greater 
underrepresentation of blacks as correc­
tional officers in the FDOC's workforce.

Dr. Rasmussen also constructed a 
benchmark using data from defendants' 
register summaries. The Department of 
Administration maintains a register of 
persons who have completed applications 
for state employment and have stated a



144a
class of positions or classes of posi­
tions of employment for which they are 
eligible and have an interest in apply­
ing. The register covers a four-year 
period beginning approximately October 8, 
1977, and ending approximately October 8, 
1981.

The Department of Administration 
processes all applications of applicants 
who are required to pass an examination. 
During the period covered by this report, 
the Department of Administration ad­
ministered the Correctional Officer I 
examination only to those persons who 
were interested in becoming eligible for 
Correctional Officer I positions and met 
the age and education requirements. Data 
concerning applicants who fail the 
examination are purged from the register 
at the end of six months.



145a
Data concerning applicants are 

deleted from the register upon specific 
request of the applicant, upon the 
expiration of a four-year period, or upon 
the expiration of a six-month period for 
applicants who failed the written 
examination. Information concerning an 
applicant remains on the register even 
though the applicant may have been hired, 
promoted, or otherwise become unavailable 
for employment in a class of positions.

This register is the data base for 
the statewide register summary. Plain­
tiffs' Exhibit No. A-l. The data 
contained in the statewide register 
summary is a report of the race and 
gender characteristics of all applicants 
who provided race and gender information. 
Only half of the applicants, however, 
provided this information.



146a
The race and gender identifications 

of those persons are reported by class 
code number for each class of positions 
for which such persons requested that 
their eligibility be determined. Those 
persons who have applied for more than 
one class and for whom race and gender 
are available are reported in each class 
for which they have applied. Within each 
class, such persons are reported only 
once.

The register is also the data base 
for the county register summary. Plain­
tiffs' Exhibit No. A-2. This report con­
tains race and gender information but
also indicated one or more counties where
the applicant was willing to work. Only
30% of the applicants provided this
information. Those applicants who
expressed a willingness to work in more 
than one. county are reported in this



147a
report in each such county in each class 
of positions for which they have applied; 
therefore, there would be multiple 
counting of those applicants.



148a

CORRECTIONAL OFFICER I 
STATE WORKFORCE ANALYSIS * 43

Register
Actual42 State

TABLE 10

Year Total Black Benchmark4
1972 1066 55 .31
FY
1974-75 1648 202 .31
1977 2518 336 .31
1978 3119 461 .31
1979 3232 523 .31
1980 3488 618 .31
1981 3415 631 .31

Incumbents from DOC documents
entitled:

6/30/72 Division of Correc­
tions, incumbents by job class (Plain­
tiffs' Exhibit A-3).

FY 74-75 DOR Job Classification 
Chart (Plaintiffs' Exhibit A-4).

6/30/77 DOR Job Classification 
Chart (Plaintiffs' Exhibit A-5),

1978-1981 Minority and Female 
Staffing Report (Plaintiffs' Exhibits 
A-6, 7,8,9).

43 The benchmark is derived from 
Plaintiffs' Exhibit A-2, and is the 
proportion of black eligibles among all 
eligibles.



149a
Expected
Numberr of Number of

Year Black Std. Dev
1972 330.46 18.24
FY
1974-75 510.88 16.45
1977 780.58 19.16
1978 966.89 19.59
1979 1001.92 18.21
1980 1081.28 16.96
1981 1058.65 15.82



150a
Dr. Rasmussen's register state 

benchmark was 31. Plaintiffs' Exhibit 
No. 2 shows that 31% of the applicants 
who sought eligibility for a Correctional 
Officer I position and who provided race 
and gender information and specified a 
county were black.

In Table 10 of Plaintiffs' Exhibit 
No. D-l amended, Dr. Rasmussen tested his 
proxy applicant pool of 31% blacks 
against incumbent data. He found 
statistically significant underrepresen­
tation of blacks in the Correctional 
Officer I position in defendants' 
workforce.

Approximately 10% of defendants' 
workforce is comprised of clerical 
workers. Dr. Rasmussen prepared tables 
on the clerical position using both the 
1970 census and the register summaries.



151a
TABLE 1

ANALYSIS OF PRIMARY CLERICAL CLASSES 
USING REGISTER BENCHMARK44

JOB TITLE 
BLACK46

TOTAL45

1978
Clerk Typist II 204 34
Secretary II 213 18

1979
Clerk Typist II 168 33
Secretary II 208 18

1980
Clerk Typist II 295 79
Secretary 11 217 25

1981
Clerk Typist II 316 92
Secrerary II 215 23

44 Clerk typist II and secretaries 
II comprise between 38%-56% of the 
clerical workforce during all periods 
between 1972-1981, and 41% to 56% between 
1978-1981.

45 Number of total and black in­
cumbents is taken from DOC Minority and 
Female Staffing Reports 1978-1981. 
(Plaintiffs' Exhibits A-6, 7, 8, 9).

46 Number of total and black in­
cumbents is taken from DOC Minority and 
Female staffing reports 1978-1981. 
(Plaintiffs' Exhibits A-6, 7, 8, 9).



152a
REGISTERJOB TIBLE BENCHMARK47 EXP BLK

Clerk Typist II
1978

.32 65.28
Secretary II . 29 61.77

Clerk Typist II
1979

. 32 53.76
Secretary II .29 60.32

Clerk Typist II
1980

. 32 94.40
Secretary 11 .29 62.93

Clerk Typist II
1981

. 32 101.12
Secrerary II .29 62.35

4 7 Number of total and black
cumbents is taken from DOC Minority
Female Staffing Reports 1978-1981.
(Plaintiffs4 * * 7 Exhibits A-6, 7, 8, 9)

NO. OF 
DEVS.

4.69 
6.61

3.43 
6.47

1.92
5.67

1.10
5.91

in-
and



153a
Using the statewide register 

summary, Dr. Rasmussen calculated the 
benchmark for the Clerk Typist II and 
Secretary II positions as .32 and .29 
respectively. He compared this with 
incumbent data and found gross statisti­
cal disparities except for the Clerk 
Typist II position beginning in 1980. 
See Plaintiffs' Exhibit No. D-2, Table 1.

Dr. Alan A. Parrow, Director of 
Research at Hoffmann Research Associates, 
Inc. in Chapel Hill, North Carolina, also 
testified at trial as an expert for 
plaintiffs. Dr. Parrow analyzed gross 
hiring data which were set forth in the 
pre-trial stipulation (Document 166 %%
F(10)-(12)).

FY 1974-75
Total White Black

Applications 3967 3092 861
Hires 1579 1300 2 68

FY 1976-77
Applications 10,643 8389 1972
Hires 3212 2660 445



154a
FY 1977-78
Applications 9517 7312 1963
Hires 2405 1957 371

These data represent hiring for all 
positions with the FDOC and all ap­
plicants whether eligible or ineligible. 
Using the chi-square method, Dr. Parrow 
found that blacks were hired less 
frequently than whites and the results 
were statistically significant. See 
Plaintiffs' Exhibit No. D-10.

Dr. Parrow also testified about 
discrimination in promotions. Plain­
tiffs' Exhibit No. D-6 summarizes the 
correctional officer line of progression 
for each year when data were available. 
Plaintiffs' Exhibit D-6 demonstrates that 
blacks decrease in representation as one 
moves from lower level positions to 
higher level positions. Dr. Parrow used 
the Wilcox on two-sample test to deter­
mine whether the result was statistical­



155a
ly significant. In each case Dr. Parrow 
found statistical significance exceeding 
two standard deviations.



156a
FY Total 
Involuntary Terminations* 57 
Voluntary Terminations* 480 
Dismissals 89 
Suspensions 25 
Written Reprimands 104 
Oral Reprimands 181

FY Total 
Involuntary Terminations* 198 
Voluntary Terminations* 1889 
Dismissals* 199 
Suspensions 52 
Demotions 21 
Written Reprimands 246 
Oral Reprimands 462

FY Total 
Involuntary Terminations* 115 
Voluntary Terminations* 1626 
Dismissals* 165 
Suspensions* 101 
Demotions 37 
Written Reprimands*48 230 
Oral Reprimands*49 333

48* The Black and White columns do 
not add up to the total.

Information for Dade Correctional 
Institution is unknown and not included.

49 Information for Dade, Desota, and 
Avon Park correctional Institutions is 
unknown and is not included.



157a
FY White Black
Involuntary Terminations* 44 12
Voluntary Terminations* 415 64
Dismissals 52 37
Suspensions 16 9
Written Reprimands 81 23
Oral Reprimands 141 40

FY White Black
Total
Involuntary Terminations* 138 58
Voluntary Terminations* 1609 239
Dismissals* 140 57
Suspensions 36 16
Demotions 21 0
Written Reprimands 177 69
Oral Reprimands 385 77

FY Total Black
Involuntary Terminations* 74 37
Voluntary Terminations* 1345 245
Dismissals* 109 51
Suspensions* 74 26
Demotions 34 3
Written Reprimands*50 180 49
Oral Reprimands*51 261 69

50* The Black and White columns do
not add up to the total. 

Information for Dade 1Corectional
Institution is unknown and not included.

51 Information for Dade, Desota, and
Avon Park Correctional Institutions is 
unknown and is not included.



158a
Dr. Parrow also analyzed the FDOC's 

imposition of discipline from the data 
contained in the pre-trial stipulation 
(Document 166 H«f F(10)-(12)).

Dr. Parrow used the chi-square 
statistical tool to analyze the data. 
Plaintiffs' Exhibit No. D-9. He found 
that the level of statistical sig­
nificance exceeded two to three standard 
deviations. Dr. Parrow testified that 
blacks received proportionately harsher 
discipline than whites and that the 
probability of chance occurrence of these 
results was less than one in ten thou­
sand.

C. Defendants' Challenges to Plaintiffs' Statistics
Defendants contend that plaintiffs' 

benchmarks derived from the 1970 census 
are seriously flawed. Defendants' labor 
economics expert, Charles T. Haworth, 
Professor of Economics at Florida State



159a
University, Tallahassee, Florida, 
testified at trial that plaintiffs' 
inclusion in the benchmark of only 
service workers, laborers, operatives, 
and farmers excluded many potential 
applicants. Dr. Haworth found that most 
correctional officer applications came 
from clericals. Although Dr. Rasmussen 
stated that he excluded clericals because 
mostly females were clericals, Dr. 
Haworth testified that in 1970, 2470 of 
the clericals were male. Dr. Haworth 
also thought it was erroneous to exclude 
all of the managerial and administrative 
category. That category is a broad one 
and would include, for example, a 
nineteen year old managing a small 
convenience store. Instead of excluding 
the entire category, Dr. Haworth would 
use a money criteria to eliminate those 
in the managerial and administrative



160a
category earning over a certain annual 
salary. Dr. Haworth expressed a similar 
concern with plaintiffs' exclusion of the 
sales category. He again would include 
some in the sales category and eliminate 
highly paid salespersons. Dr. Haworth 
took issue with the fact that plaintiffs' 
benchmarks did not consider those leaving 
the military because several applicants 
and employees had prior military ex­
perience. A major flaw in plaintiffs' 
benchmarks, Dr. Haworth testified, was 
that unemployed applicants were not 
considered. In summary, Dr. Haworth 
stated that a more appropriate benchmark 
would include laborers, operatives, 
farmers, service workers exclusive of 
private household workers, clericals, 
part sales, and part managers and 
administrators with those leaving 
military service and the unemployed



161a
factored into the benchmark.

Although Dr. Haworth did not compute 
such a benchmark, he offered evidence to 
prove that the benchmark would be a lower 
percentage of blacks than plaintiffs7 
benchmarks. Defendants' Exhibit No. 7-N, 
Table 3A. The groups excluded by Dr. 
Rasmussen that Dr. Haworth would include 
all have a lower percentage of blacks 
(2.8 - 5.9%) than the percentage of 
blacks in the labor force (14.9%) or the 
proportionate share of blacks represented 
in plaintiffs' benchmarks (23 - 38%) .
Additionally, to test the validity of 
plaintiffs' assumptions concerning the 
exclusion of some occupational groups, 
Dr. Haworth reviewed a sample of applica­
tions for the period 1979-81. See 
Defendants' Exhibit No. 7-J. He found 
that approximately 1/3 of the applicants 
came from groups that Dr. Rasmussen



162a
excluded from his benchmark.

Dr. Haworth also disagreed with Dr. 
Rasmussen's removal of all persons in 
each category in which the median income 
of the category was more than $6000. Dr. 
Haworth points out that this procedure 
may exclude as many as 50% of the persons 
in that category who are in fact earning 
less than the median income. Dr. Haworth 
also sampled applications, Defendants' 
Exhibit No. 7-E, and testified that 
persons with incomes above what correc­
tional officers earn did apply for 
correctional officer positions. On 
cross-examination, however, Dr. Haworth 
reviewed the underlying data for the 
sample, Plaintiffs' Exhibit Nos. 1-600-6- 
03, and found that only two of twenty-six 
earned higher salaries.

Dr. Haworth also took exception to 
plaintiffs' exclusion of some occupation­



163a
al categories that are primarily composed 
of females. Dr. Haworth reasoned that it 
would be more appropriate to weight the 
benchmark as to the relative proportion 
of females to males within these census 
categories than to totally exclude the 
groups.

Dr. Haworth testified that, in his 
opinion, the register summaries should 
not be used because they are unreliable. 
His first criticism is that the statewide 
summary and the county summary only 
represent 50% and 30% respectively of 
persons on the register. Dr. Haworth 
stated that the sample is not random 
because some people chose not to desig­
nate their race. He hypothesized that it 
would be likely for white persons not to 
state their race when the employer has an 
affirmative action plan. Dr. Haworth 
also stated that the summaries count



164a
incidences of eligibility not people. 
Furthermore, persons who have failed the 
written examination and are thereby 
ineligible nevertheless remain on the 
register. Defendants conclude that the 
summaries overrepresent black eligibil­
ity.

Dr. Haworth opined that a major flaw 
in Dr. Rasmussen's tables was that he 
compared his benchmarks with incumbent 
data instead of actual hiring data. 
Defendants admit that actual hiring data 
are sparse. The record does show, 
however, that 15.2% of the new hires for 
correctional officers in fiscal year 
1977-78 were black. Plaintiffs' Exhibit 
No. A-ll. Twenty percent of persons 
hired as correctional officers in 1979 
were black. Defendants' Exhibit No. 
11-C. Plaintiffs' incumbent data, 
Plaintiffs' Exhibit No. D-l amended, show



165a
only 16.2% blacks. In 1980, 24.5% of the 
correctional officers hired were black. 
Defendants' Exhibit No. 11-D. Plain­
tiffs' incumbent data, Plaintiffs' 
Exhibit No. D-l amended, show only 17.7% 
blacks. Defendants' workforce in 1972 
was 5% black. This rate has increased to 
over 18% in 1982.

The incumbent data, therefore, 
understate the rate that blacks have been 
hired.

Dr. Haworth testified that Dr. 
Parrow's calculations with the gross 
statistics had little value. The 
analysis of the gross hiring statistics 
was weak because the raw data did not 
account for whether the applicants were 
qualified. The statistics were for the 
entire FDOC workforce and included a wide 
variety of occupations including doctors 
and other professionals where the black



166a
availability rate is low.

Dr. Haworth also discounted the 
significance of the disciplinary action 
analysis. Dr. Haworth testified that it 
is proper to compare what should have 
happened with what actually happened. 
The gross statistics did not account for 
the type of offense or frequency of 
disciplinary problems with the employee.

Dr. Haworth also testified that Dr. 
Parrow's analysis on promotions had 
little value because it failed to 
consider the fact that fewer blacks than 
whites are eligible for promotions 
because of insufficient time on the job 
or comparable experience.

CONCLUSIONS OF LAW 
I. STATISTICAL CASE

Plaintiffs have used both disparate 
impact and disparate treatment theories 
for their case with the primary thrust



167a
directed toward the disparate impact of 
subjective decisionmaking. Defendants 
argue that except for the challenge to 
the written examination and high school 
diploma or equivalent requirement, the 
claims are disparate treatment claims. 
Plaintiffs do not assert that the FDOC 
applied distinct, facially neutral 
standards to its hiring, promotion, and 
disciplinary decisions. Plaintiffs, to 
the contrary, contend that the lack of 
objective criteria permits defendants to 
subjectively discriminate against blacks. 
Generally this subjective discrimination 
is analyzed under the disparate treatment 
theory. Pavne v. Travenol Laboratories, 
Inc.. 673 F.2d 798, 816-17 (5th Cir. 
1982) ; contra: Rowe v. Cleveland Pneuma­
tic Company. 690 F.2d 88 (6th Cir. 1982). 
This court finds, however, that plain­
tiffs' statistical evidence is unper­



168a
suasive under either theory.

This court is of the view that 
because plaintiffs' statistics are so 
flawed, plaintiffs have railed to 
establish a prima facie case. The court 
agrees with Dr. Haworth's attack on the 
1970 census benchmarks. The major flaw 
is the exclusion of many occupational 
groups from which defendants showed 
several correctional officers were 
previously employed. This factor, in 
addition to the others mentioned by Dr. 
Haworth, casts grave doubt upon the 
credibility and reliability of plain­
tiffs' census benchmarks.

This court also finds that plain­
tiffs' register summary benchmarks are 
similarly unreliable. The register 
summaries, as Dr. Haworth pointed out, 
are non-random samples which contain 
information about both eligible and



169a
ineligible persons.

Finally, the court takes issue with 
the fact that Dr. Rasmussen's tables 
compare these suspect benchmarks with 
incumbent data. This practice produces 
misleading results, especially when the 
employer has made rapid strides as the 
FDOC has in going from 5% to over 18% 
blacks in the workforce in ten years.

This court is of the view that Dr. 
Haworth also successfully discredited Dr. 
Parrow's statistics. The analyses of the 
gross data for hiring, discipline, and 
promotions failed to account for many 
variables, such as: whether the applicant 
was eligible, the type of behavior being 
disciplined, or the qualifications of the 
employee seeking a promotion. The 
analyses of the raw data are deficient 
for failing to recognize that several 
factors op=rate simultaneously to



170a
influence decisions of hiring, dis­
cipline, and promotions. Thus, "the 
findings of statistically significant 
disparities derived therefrom will not 
permit an inference of discrimination." 
Peques v. Mississippi State Employment 
Service. 699 F.2d 760, 770 (5th Cir.
1983).

Plaintiffs have argued that defen­
dants had the burden of disproving 
plaintiffs' statistics with affirmative 
evidence, such as complete studies of 
their own. Defendants did attempt to put 
forth some of their own statistical 
studies, but the thrust of defendants' 
attack was to discredit plaintiffs' 
statistical evidence as unreliable. This 
court is of the view that defendants 
sufficiently proved that plaintiffs' 
statistics had little probative value 
Plaintiffs, therefore, never established



171a
a prima facie case. See Equal Employment 
Opportunity Commission v. Datapoint 
Corporation. 570 F.2d 1264 (5th Cir.
1978) ; Cooper v. University of Texas at
Dallas, 482 F. Supp. 187 (N.D. Tex.
1979) , aff'd. 648 F.2d 1039 (5th Cir.
1981) ; and Dickerson v. United States 
Steel Corporation. 472 F. Supp. 1304 
(E.D. pa. 1978).
II ANECDOTAL TESTIMONY

Plaintiffs sought to bolster their 
discrimination claims Through anecdotal 
testimony. Plaintiffs called approxim­
ately twenty witnesses who testified to 
individual acts of discrimination 
primarily in promotions, discipline, and 
job assignments. This court is of the 
view that plaintiffs still have failed to 
prove a prima facie case.

Some of plaintiffs' witnesses 
testified that they were denied promo­



172a
tions based on their race. Defendants, 
however, rebutted most of the testimony 
by demonstrating the following nondis- 
criminatory reasons for the failure to 
promote employee ineligible for position 
sought (Whitfield Jenkins and Wilmatene 
Edwards) and employee's disciplinary 
record (Lester Kinsler and Zondra 
Harris). Other witnesses testified that 
they were discriminatively disciplined. 
Again, defendants advanced nondis- 
criminatory reasons such as failure to 
assist (William Turpin), taking money 
from an inmate (Walter Gray), and breach 
of security (William McCullough).

Testimony regarding discriminatory 
job assignments came from primarily eight 
witnesses representing three institutions 
(Florida State Prison: Larry Sullivan, 
William Turpin, and Mark Bevins; Glades 
Correctional Institution: Gwen Joseph,



173a
Virgilee Graham, and Bobby Ray Hall; 
Apalachee Correctional Institution: Sam
Jones and Kenneth Gibson). Defendants 
failed to adequately rebut the testimony 
on job assignment claims. Plaintiffs, 
however, presented no statistics on this 
issue and although the testimony was 
convincing, statements from eight people 
about three institutions is not suffi­
cient to prove a claim of classwide 
discrimination against the FDOC.
Ill INDIVIDUAL CLAIMS OF NAMED PLAIN­

TIFFS
A. Peners L. Griffin
Plaintiff Peners L. Griffin has 

filed an individual claim against the 
FDOC alleging discriminatory employment 
practices. Griffin has complained that 
he has not received a promotion during 
his eleven years of employment with the 
FDOC. In 1973 Griffin applied for a 
promotion as a Correctional Counselor II



174a
at the Tallahassee Community Correctional 
Center. He did not receive this promo­
tion; however, evidence was not presented 
about the person who was promoted. In 
1974 plaintiff Griffin again applied for 
a promotion as a Correctional Counselor 
II. David Arthur, a white male, was 
selected. Mr. Arthur was an ex-offender 
and the FDOC had an affirmative action 
policy for ex-offenders in 1974.

Plaintiff Griffin has unsuccessfully 
applied for several other promotions. 
Richard Roberts, a black male, was a 
Chief Correctional Counselor at Talla­
hassee Community Center. He testified 
that on several occasions he had con­
sidered Griffin for promotion oppor­
tunities but had not recommended him 
because of Griffin's general uncoopera­
tive attitude and poor employment record.



175a
John Holland, a white Chief Correc­

tional Counselor at Tallahassee Community- 
Correctional Center, has supervisory 
duties over plaintiff Griffin. Mr. 
Holland testified that he would not 
recommend Griffin for promotion because 
he considers Griffin to be an unreliable, 
uncooperative, and hostile employee.

Analyzing plaintiff Griffin's 
promotion claims under a variant form of 
the standard set forth in McDonnell 
Douglas Corporation v. Green. 411 U.S. 
792 (1973), this court finds that Griffin 
cannot prevail. The burden of proof is 
that plaintiff must show (1) that he 
belongs to a racial minority; (2) that he 
applied and was qualified for the 
promotion he sought; (3) that, despite 
his qualifications, he was rejected; and 
(4) that the employer selected an 
individual from a nonprotected class.



176a
Then the burden shifts to the employer to 
articulate a legitimate, nondiscrimina- 
tory reason for the employee's rejection. 
Plaintiff thereafter has an opportunity 
to show that the employer's stated reason 
for the employee's rejection was in fact 
a pretext McDonnell, 411 U.S. at 
802-04.

Plaintiff Griffin has shown that he 
belongs to a racial minority. His second 
amended complaint lists twelve promotions 
for which he applied and the court has 
detected at least one other position in 
his personnel file (Plaintiffs' Exhibit 
No. 1-50 (Grif)). Although Griffin was 
not always qualified for the position 
(e.g. Inmate Classification Specialist in 
September 1974), he has proved that he 
was qualified for some of the positions 
[Correctional Counselor II). This court 
has no knowledge whether Griffin was



177a
qualified for the other positions, but 
for the sake of this analysis will assume 
that he was qualified. Despite Griffin's 
qualifications, he has never been 
promoted. Griffin has proved that the 
FDOC selected a person in a non-protected 
class in some but not all of the cases. 
For instance, Griffin applied for a 
Correctional Counselor II position in 
January 1973, but plaintiff did not prove 
that the FDOC selected an individual in a 
non-protected class. Plaintiff did prove 
that in January 1974, he again applied 
for a Correctional Counselor II position 
and David Arthur, a white male, was 
selected With the above assumptions in 
mind, this court finds that Griffin did 
prove a prima facie case.

Defendants did prove that in January 
1974, they selected an ex-offender as 
Correctional Counselor II in keeping with



178a
their affirmative action policy for 
ex-offenders. Plaintiff never demon­
strated that this reason was pretextual.

Griffin unsuccessfully applied for 
approximately ten promotions after 
December 17, 1974. Defendants advanced 
the reason that Griffin was not promoted 
because of his poor work record and 
attitude. This court finds that this 
reason is not a pretext. Although 
Griffin had been a satisfactory employee, 
his job performance was poor beginning in 
November 1974. His unsatisfactory record 
is evidenced by his performance evalua­
tion dated December 17, 1974 (Plaintiffs' 
Exhibit No. 1-50 [Grif)). This court has 
reviewed Griffin's personnel file 
excerpts and concludes that defendants 
have articulated a legitimate, nondis- 
criminatory reason for their failure to 
promote Griffin and plaintiffs have not



179a
shown that the stated reason is merely a 
pretext.

Griffin also advances a claim of 
discriminatory or retaliatory discipline. 
On or about December 17, 1974, Wayne 
Scott, Chief Correctional Counselor at 
the Tallahassee Center, fired plaintiff 
Griffin. The following day plaintiff 
discussed this matter with Wayne Scott, 
Jerry Hicks, the Assistant Superinten­
dent, and Robert Martin, the Personnel 
Manager. Assistant Superintendent Hicks 
reinstated plaintiff because the FDOC's 
termination procedures were not followed.

By letter dated January 27, 1975, 
plaintiff Griffin was informed that he 
was dismissed effective at the close of 
business on January 24, 1975. The letter 
stated seven reasons for his termination: 
(1) disobedience of order not to leave 
the Tallahassee Center to search for a



180a
resident ; (2) failure to comply with
instruction to clean the Tallahassee
Center; (3) inability to complete a
routine form for approval for community
release and furlough; (4) unauthorized
personal use of official state vehicle; 
(5) refusal to participate in a discipli­
nary committee hearing; (6) use of a 
vehicle entrusted to a resident; and (7) 
insubordinate and deceitful behavior. 
Plaintiff successfully appealed his 1975 
termination to the Career Service 
Commission which found that the FDOC 
failed to offer competent, substantial 
evidence to support Griffin's dismissal. 
Plaintiff Griffin was reinstated with 
back pay.

On January 24, 1975, the Equal
Employment Opportunity Program Office 
received a complaint from Griffin which 
detailed both his December 1974 and



181a
January 1975 dismissals. Donald M. 
Finley, a black male, investigated the 
complaint and found that discrimination 
was not a factor in Griffin's termina­
tion. See Plaintiffs' Exhibit No. 1-50 
(Grif), letter dated February 20, 1975,
from Donald M. Finley. An Equal Employ­
ment Opportunity Program Office inves­
tigative report was issued on or about 
April 14, 1975. In part, the report
states: "The above statistics tend to
reflect that disciplinary actions have 
not been based upon race, but more 
likely, upon violations of regula­
tions.... [T]he Equal Employment
Opportunity Office finds no reasonable 
cause to believe that [Griffin] was 
discriminated against by [the FDOC] 
because of his race." This court finds 
that plaintiff's terminations were not 
racially discriminatory.



182a
Griffin has been disciplined several 

times since his reinstatement. For 
instance, Griffin received a written 
reprimand for failing to pay for meal 
tickets. Griffin alleges that his white 
co-workers were not similarly dis­
ciplined. John Holland, Chief Correc­
tional Counselor at the Tallahassee 
Center, testified that four whites and 
two blacks failed to pay for meal 
tickets. Each of the six individuals was 
placed on probation for six months, at 
which time the letters of reprimand would 
be pulled from their files. Griffin and 
Chalecki, a white officer, again violated 
the meal ticket policy and their repri­
mands remained in their respective files.

Griffin often complained to his 
superiors that he would be disciplined 
when white officers would not be dis­
ciplined. Holland testified that he



183a
asked Griffin for the names of these 
other people, but Griffin has never 
provided this information. Plaintiff has 
not proven that he was treated different­
ly because of his race.

B. Henry Dejerinett
In 1978, Henry Dejerinett applied 

for a position with the FDOC as a 
Property Manager III. The Department of 
Administration evaluated him, and 
Dejerinett received a score of 100 VP. 
James Vickers, a white male, interviewed 
Dejerinett. Kenneth Hayes, a white male, 
was selected. Mr. Vickers testified that 
he thought Mr. Hayes was more qualified 
than plaintiff Dejerinett because Mr. 
Hayes had experience in lease management, 
control, maintenance, and management of 
motor vehicles, and records management. 
Mr. Dejerinett testified that he did have 
experience in the areas of lease manage­



184a
ment and records management but Mr. 
Vickers never asked him about it during 
the interview. Dejerinett did not assert 
that he was prevented from discussing his 
prior experience or in any manner given 
an unfair interview.

In 1980, Dejerinett applied again 
for a Property Manager III position with 
the FDOC. James Vickers and two other 
white supervisory employees interviewed 
Dejerinett. Gloria Thomas, a white 
female, was selected., however, Mr. 
Vickers ranked Dejerinett higher than the 
other two panel members.

Plaintiff has proven that he is a 
member of a protected class and that he 
applied and was qualified for the 
position. White persons were selected 
for the vacancies. This court finds that 
James Vickers did not select Dejerinett 
because he sincerely believed Kenneth



185a
Hayes to be the best qualified applicant. 
Mr. Vicker's reason was legitimate and 
nondiscriminatory. At the worst, Mr. 
Vickers may be faulted for not being the 
best interviewer, but not for hiring in a 
racially discriminatory way.

Defendants have also articulated and 
proven a legitimate, nondiscriminatory 
reason for not hiring Dejerinett for the 
1980 vacancy. James Vickers believed 
that Gloria Thomas, who had prior 
experience as a business manager at a 
state-operated facility for delinquent 
females, was more qualified than plain­
tiff Dejerinett. Dejerinett's individual 
claim for failure to hire must therefore 
fail.



186a
PENDING MATTERS

I. HIGH SCHOOL DIPLOMA OR EQUIVALENT
REQUIREMENT
Plaintiffs have challenged the 

statutory requirement that a correctional 
officer must be a high school graduate 
or its equivalent. See Fla. Stat. § 
943.13 (1981). This issue was not tried
during the trial. Instead, the parties 
took depositions (Documents 200-209) and 
then briefed the issue (Document 210, pp. 
114-18; Document 211, pp. 28-53; and 
Document 21, pp. 16-25). The court has 
the issue of the validity of the high 
school diploma or equivalent requirement 
under advisement and will enter a 
separate order on this issue at a later 
date.
II. RELIEF

Plaintiffs have prevailed on one 
issue. This court granted summary



187a
judgment and found that the correctional 
officer written examination utilized by 
defendants in screening applicants for 
correctional officer positions had a 
disparate impact upon class members which 
had not been justified by business 
necessity (Document 157). The parties, 
through their counsel, have represented 
to the court that they will make a good 
faith effort to settle any issue of 
relief.
Ill GRIFFIN'S INDIVIDUAL CLAIMS

Plaintiff Griffin has filed two 
pendent claims alleging lack of due 
process and malicious prosecution. 
(Second Amended Complaint, Counts II and 
III) . The parties shall confer and then 
file a status report informing the court 
when the remainder of this case will be 
ready for trial.



188a
An order to give effect to this

opinion will be entered this date.
s/s August 25,1983 s/s William Stafford

WILLIAM STAFFORD 
CHIEF JUDGE



189a
§ 2000e-5. Enforcement provisions

Power of Commission to prevent
unlawful employment practices

(b) Whenever a charge is filed by 
or on behalf of a person claiming to be 
aggrieved, or by a member of the Commis­
sion, alleging that an employer, employ­
ment agency, labor organization, or joint 
labor-management committee controlling 
apprenticeship or other training or 
retraining, including on-the-job training 
programs, has engaged in an unlawful 
employment practice, the Commission shall 
serve a notice of the charge (including 
the date, place and circumstances of the 
alleged unlawful employment practice) on 
such employer, employment agency, labor 
organization, or joint labor-management 
committee (hereinafter referred to as the 
"respondent") within ten days, and shall 
make an investigation thereof. Charles



190a
shall be in writing under oath or 
affirmation and shall contain such 
information and be in such form as the 
Commission requires. Charges shall not 
be made public by the Commission. If the 
Commission determines after such inves­
tigation that there is not reasonable 
cause to believe that the charge is true, 
it shall dismiss the charge and promptly 
notify the person claiming to be ag­
grieved and the respondent of its action. 
In determining whether reasonable cause 
exists, the Commission shall accord 
substantial weight to final findings and 
orders made by State or local authorities 
in proceedings commenced under State of 
local law pursuant to the reguirements of 
subsections (c) and (d) of this section. 
If the Commission determines after such 
investigation that there is reasonable 
cause to believe that the charge is true,



191a
the Commission shall endeavor to elim­
inate any such alleged unlawful employ­
ment practice by informal methods of 
conference, conciliation, and persuasion. 
Nothing said or done during and as a part 
of such informal endeavors may be made 
public by the Commission, its officers or 
employees, or used as evidence in a 
subsequent proceeding without the written 
consent of the persons concerned. Any 
person who makes public information in 
violation of this subsection shall be 
fined not more than $1,000 or imprisoned 
for not more than one year, or both. The 
Commission shall make its determination 
on reasonable cause as promptly as 
possible and, so far as practicable, not 
later than one hundred and twenty days 
from the filing of the charge or, where 
applicable under subsection (c) or (d) of 
this section, from the date upon which



192a
the commission is authorized to take 
action with respect to the charge.



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