Morrison v. Booth Brief for Plaintiffs - Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

N 0 . 8 2 - 7 2 8 5

J E S S I E  L. M O R R I S O N ,  et al # >

P l a i n t i f f s  - A p p e l  1 a n t s ,

v .

L I N w  0 0 0 B O O T H ,  e t a 1 . ,

D e f e n d a n t s  - A p p e l  l e e s  .

O n  A p p e a l  f r o m t h e U n i t e d  S t a t e s
D i s t r i c t  C o u r t f o r  t h e  N o r t h e r n

D i s t r i c t o f A 1 a b  a m  a

BRIEF FOR PLAINTIFFS - APPELLANTS

VANZETTA PENN DURANT 
639 Martha Street 

Montgomery, AL 36104 
(205) 262-7337

JULIUS L. CHAMBERS 
NAACP Legal Defense Fond, Inc.

99 Hudson Street 
16th Floor 

New York, NY 10013 
(212) 219-1900



TABLE OF CONTENTS

Table of A u t h o r i t i e s.............. .......................... Page

Statement of issues ........................................  1

Statement of the C a s e ......................................  2

ARGUMENT .......................................................  4

TH E DISTRICT COURT ABUSED ITS DISCRETION 
BY DENYING THE MOTION FOR CLASS CERTIFI­
CATION AND STRIKING THE CLASS ALLEGATIONS . . . .  4

A. The Court already had before it suf­
ficient evidence to satisfy the re­
quirements of Rule 23(b)   4

B. The Court erred in refusing to hold
an evidentiary hearing ........................ 9

C o n c l u s i o n ..................... , ............................  11

Certificate of Service 1 2



TABLE OF AUTHORITIES

Page
1. American Pipe & Construction Co. v. Utah,

414 U.S. 538 ( 1 9 7 4 ) ................... ............ 7

2. Califano v. Yamasaki,
442 U.S. 682 ( 19 79 ) ...............................  6

3. East Texas Motor Freioht System, Inc. v .
Rodriquez, 431 U.S. 395 ( 1S77) ..............  7

4. Eastland v. Tennessee Valley Authority,
704 F. 2d 613 (llth, Cir. 1 9 8 3 T ...................  8

5. Freeman v. Motor Convoy,
700 F. 2d 1339 (llth Cir. 1983 ) ................. 6

6. General Telephone Co. of the Southwest v.
Falcon, 457 U.S. 147 ( 1 9 8 2 ) ...................  8

7. Gilchri st v . Bo 1ger,
733 F. 2d 1551 ( llth Cir . 1984) ................. 11

8. Giles v . Ireland, F .2d
n r n r  C i-7 T 9 8 4 )  Docket No.' 82- 7330 ............ 11

9. Morrison v. Booth,
730 F . 2 d 642 (llth Cir. 1 9 8 4 ) ...................  9

10. Payne v. Travencl Laboratories, Inc.,
56 5 F. 2d 865 ( 5th Cir . T 9 T S ) ...................  6

11. Ray v. Phelps Dodge Brass Co./Lee Brothers ,
(Civil Action No. CV-81 -PT- 1 5 79 -E;
Unreported Opinions) ............................. 2



STATEMENT OF THE ISSUE

d

c

Whether the District Court abused its discretion 

nying the motion for class certification and striking 

ass allegations.

i n 

the

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S T A T E M E N T  O F  T H E  C A S E

This Court remanded this case to the District Court in 

April, 1934 to conduct an evidentiary hearing on class 

certification and to determine the class claims.

By Order dated 1 May 1934, the District Court directed 

counsel to submit evidence in support of class certification. 

That Order was stayed on 17 May 1984 pending this Court's 

consideration of the Defendants' Petition for Rehearing.

The Petition for Rehearing was denied on 23 Sep tember,

and t° 0 May 1934 Orde ” was renewed on 2 October 1984 .

On 15 November 1934, P 1 a i n t i f fs files a mo t ’o n for

class certification wi th a summary submission > accompanying

af f i d a v i t s , Plaintiffs' trial exhibits numbered 3 through 10,

13, 14, and 42, and a memor andum of 1 a w . ̂ On 3 December

1984 , Def endants filed a memor andum in oppos i t i on to Plain-

tiffs ' motion for class certification , citing the Court to

two cas es and unaccompanied by any rebuttal evidence.

By Order dated 9 January 1985, the Court denied

Plaintiffs acknowledged that their memorandum was ex­
cepted from their original Appellate Brief which had not 
previously been directed to the District Court. While 
the Plaintiffs fully appreciate the District Court's con­
cern about "word processor" class claims, it was their 
intent to make consistent, legal arguments in recognition 
of the time-honored and oft-repeated principles in Title 
VII analyses and opinions. Apparently the District Court 
had the same intent, inasmuch as more than 50% of its 
analysis accompanying the 9 January 1985 Order was 
apparently also applicable one year before in Ray v . 
Phelps Dodge Brass Co. , No. 81-PT-1579-E (N.D. A1 a . Jul. 
2 5, 19 8 3) (Order sett i ng hearing for class certifica­
tion); (N.D. A 1 a . Dec. 7, 1983) (Order dismissing class 
claims).

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Plaintiffs' 

evidenti ary

motion for class certification without an 

hearing.

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ARGUMENT

THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING THE 
MOTION FOR CLASS CERTIFICATION AND STRIKING THE CLASS 
ALLEGATIONS-!

A. The Court already had before it sufficient evidence to 
satisfy the requirements of Rule 23(b).

This case presents a common issue to the Appellate

Court in an uncommon context. The issue of class certifica-

t i o n has btaen presented to the D i s tr i c t Cour t af 1: er a f ij 1 1

t r i a 1 on the merit s of nine i n d i v id u a1 cl a ims ha:; be e n he'1 d .

At t r i 31 , •To t only was e v i d enee on the ind i v i :J U 3 1 da'i ms

c o n s id e r e d , the Co ur t also r e c e i ved and L* 'Jn s i d e -• e d evi ce?ice

r e 1 a ted to the pu t at i ve class and to the re q u i r e m e r11 s of R tj 1 e

23(b).

Numeros i ty

The District Court made findings of fact on the 

requirement of Rule 23(a)(1). On page 14 of its Opinion 

dated 28 June 1982, the District Court made the following 

findings of fact:

"On June 4, 1975, there were 92
white, 32 black and 1 oriental 
employees at Roebuck. On September 
17 , 19 79 , there were 52 white and 58
black employees at Roebuck. On 
March 25, 1982 there were 36 white
and 65 black employees at Roebuck.
[E mph as i s supplied]".

Those findings satisfy the Court's self-imposed re - 

ment that "at least twenty other employees of the same race" 

should have been subject to the disparate impact of the 

Defendants' policies and practices. The findings also sat-

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isfy the nume^osity requirement.

Commonality and Typicality

The named plaintiffs worked in at least six job 

classifications: 1) temporary employees (student aides),

(2) Youth.Services Aide, (3) Youth Services Aide trainee, (4) 

Counselor-Trainees, (5) Counselor I, and (6) Counselor II. 

The record and the trial evidence indicate that many black 

employees other t n a n the Plaintiffs were employed in all of 

those classifications (See Tom Robinson's testimony, T.T. at 

329 - 337).

2

Again, the C 4 s t r i c t Court's T i a 1 Opinion reflects its 

recognition that the P 1 a 4 -■ tiffs * e r e not the only blacks 

affected by the Defendants' discriminatory practices. For 

example, the Court, with a sense of inexplicable 

innocuousness, stated:

"when Department officials learned that two black 
persons, who had expressed a willingness to work at 
C.I.T.Y. were ahead of Morton on the register and that 
Morton had not scored in the upper 50% of the last 
examination, they declined to formally request a 
register. In order to accommodate Morton's promo­
tion, she was transferred in December 1976 to Roebuck 
for approximately two weeks. She was then at the top 
of the certif ied list of eligibles who had expressed a 
willingness to work at Roebuck. She was promoted to 
Counselor I and then received a lateral transfer back 
to C.I.T.Y. Robinson admitted that this violated good

The District Court's Memorandum Opinion stated its con­
sideration of "the evidence presented during trial". 
(Memorandum Opinion, at 3). Plaintiffs generally 
contend, as more fully set forth infra at page 7, that 
even if the trial itself were treated as an evidentiary 
hearing on the class claims, the evidence presented there 
satisfied all of the Rule 23 requirements.

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■1* .  „ . *>■ *■■■



personnel practice. The court does not find that any 
plaintiff was directly affected by this maneuver." 
[Trial Opinion at 5].

This was a f i n d i n q o f fact th at Defend ants

deliberately c i r c u m ve n t ed the promotion of two black

emp1oyees . Yet, the Court wo u 1 d deny re 1i ef to any

individual P 1 a i n t if f who was not "directly affected" and

deny relief to any member of the putative class * h o « a s

actually affected • The Court was simply wrong in its

assertion in i t s 9 J a n u a r y 1985 Memorandum Opini;" that

"[tjhere is ab s o 1u te 1 y no e v i d e nce before [it] : o a t any

qualified emp1oyee has Dee n wrong fj 1 1 y assigned or jenied

promotion". (Memorandum Opinion at 9).

Assuming arguendo th at Defendants 1 practices : d not

have precisely the same ef feet upon all members of the class ,

the Plaintiffs still have demonstrated a sufficient nexus

between themselves and the class. Payne v . Tr av e n o 1

Labor atories, Inc., 565 F.2d. 865 , 900 ( 5th Cir. 19 78).

Given the specificity of the Plaintiffs' seven common 

questions of law and fact in their Motion for Certification, 

the Court should have certif ied a class or at least scheduled 

an evidentiary hearing. Califano v, Yamasaki, 442 U.S. 682 

(1979). See also Freeman v. Motor Convoy, Inc. , 700 F.2 d . 

1339, 1347 (11th Cir. 1983), in which the court reaffirmed 

the validity of "across the board" attacks on discriminatory 

practices .

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None of the claims demonstrates commonality as clearly 

as the claims.based upon failure to post 3rinoun cemen t s in the 

cottages and tne word-of-mouth recruitment f'or promotions. 

These practices were broad and sweeping in their omission and 

in their imoact. The Court found that even by the trial 

date, the main office had only one black employee who had 

been there less than one year.”1

When combined with the evidence that announcements 

were not posted where tne blacks workeo and whites in the

main office recruited Oy word-of-mouth,^ the application c*"’ 

the practice to the class of blacks as a wwo ’e is undeniable. 

Clearly the class representatives "possess the same interest 

and suffer the same injury as the class members". East 

Texas Motor Freight System, Inc, v. Rodriquez, 431 U .S . 395, 

403 ( 19 7 7 ) .

Surely class certification on those issues would 

promote "the efficiency and economy of litigation". 

American Pipe A Construction Co. v. Utah, 414 U.S. 538, 553 

( 19 74 ) .

Adequacy of Representation 

The District Court did not address this element of 

Rule 23 in its denial' of class certification, however, the

See Trial Opinion at 15.

Even when Plaintiff Todd was made aware of a job an­
nouncement, it was by word-of-mouth from one Mr. Dean 
(white) in Defendants' main office (See P.X. 31).

7



Plaintiff s contend that they can and will adequ ate 1y

represent the interests of the c lass becaus e of their

diversity as a group and because of their tenacity i n

p u r s u i n g their claims since the fi st charge of discrimina -

t i o n was f i led almost ten years ago and this lawsuit f i 1 ed

seven years ago.

This case is disti nguisr. able fro in Eastland v.
5

Tennessee Valley Authority and from General Telephone

Company______ ________F a l c o n . Falcon involved one

Mexican-Amebic an plain t'cf who complained of a pro mot''anal 

practice but sought to include in the putative class 

Mexican-American applicants who had not been hired. A'l of 

the b 1 a c k employees at Roebuck, however, are subject to

discrimination from at least two of the practices complained 

of: (1) non-posting of job announcements, and (2)

word-of-mouth recruitment.

Moreover, a considerable number of black employees in 

the class were affected by Defendants' failure to call for a 

register in the upper level positions, by their retention of 

white temporary and provisional employees beyond the lawful 

limit, and by their creation of a job in the main office and 

summary promotion of a white employee to that job. [See Tom 

Rooinson's testimony, T.T. at 337].

704 F.2d 613 (11th Cir. 1983) 

45 7 U.S. 147 ( 19 82 ) .

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Unlike the plaintiffs in Falcon, the Plaintiffs 

herein have not merely identified broad areas of employment 

where discrimination occurs (promotions, assignments,

transfers, etcetera), they have identified - and supported 

with evidence - specific policies and practices which are 

either applied with partiality to wnites or are applied 

generally with a disparate impact upon blacks.

8. Tne Court erred in refusing to he’d an evidentiary 
nearing.

~his Court stated clear’/ in its :pinion reversing the 

Trial Court's failure to conduct a hearing on class

certification:

"Our precedent requires the court to 
conduct an evidentiary hearing on 
class certification when there is any 
doubt about the issue, even when 
counsel fails to move for such a 
hearing". Morrison v. Booth, 730 
F.2d 642, 643 ( 11 th Cir . 1984) .

While this Court did not specifically identify the required 

hearing as an oral proceeding, the import of its holding was 

that the failure to conduct an in-court, oral proceeding was 

fatal to the District Court's action.

The trial court stated that it considered the 

submission of evidentiary documents (and apparently its own 

review of the trial evidence) to be "hearing" aplenty. 

Notwithstanding this Court's uncomplicated directive, Plain­

tiffs' Motion and submissions might have been properly sub­

- 9 -

ji



ject to the District Court's treatment had the Defendants 

created a factual dispute by submitting contrary 

evidence.

The reality is that the Defendants submitted no 

evidence; thus all of the District Court's findings and 

conclusions about the non-validity of Plaintiffs' allegations 

and proof are Court- inspired . ̂

Since the Defendants have added no evidence to the

record, Plaintiffs are left with this Court's findings as 

follow:

"If clear grounds existed for denial 
of class certification, we would not 
need to remand for an evidentiary
hearing..... The trial court here,
however, did not base its denial on 
failure to meet rule 23‘s require­
ments, and the record does not tell 
us that rule 23's requirements were
not____ met" . Morrison, supra.
[Emphasis supplied].

If the record did not gainsay the satisfaction of Rule

23's requirements then, without additional evidence from the 

Defenoants, that same record is not fatal to the Plaintiffs 

now. The Plaintiffs' burden was to demonstrate that a class

The District Court's treatment is reminiscent of its 
finding (at page 8 of its Trial Opinion) that in spite of 
no factual dispute or denial of Leroy Edwards' testimony 
recounting Booth's statement that "These jobs are for my 
people", Edwards' allegation was not "credible". And 
this without any concomitant finding on Edwards' demeanor 
or any other finding leading to a conclusion that Edwards 
would lie under oath.

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was certifiable under Rule 23. The Plaintiffs did not have 

the burden of proving a pr i ma facie case on behal* of the

class . Giles v . Ireland, F . 2d (11th Cir. 1984).

(Docket N o . 82-7330).

The thrust of the District Court's ruling is to impose 

just such a burden upon the Plaintiffs, then upon the Flain- 

tiffs ' submission, to declare the burden unsatisfied even 

without rebuttal from the Defendants. This Court has not yet 

placed so stringent a requirement upon Plaintiffs, and in 

cases where the failure to certify has been affirmed, the 

Plaintiffs have produced considerably less evidence and met

with considerably more rebuttal. See G i 1 c h r1s t __v .

Boloer, 733 F.2d 1551 (11th Cir. 1984).

Conclusion

Because of the Court's failure to hold an oral

evicentiary hearing ana its failure to give due cons•deration 

to a 11 of the evidence it had before it (including trial 

evicence), the Order denying class ce>".; f i c c v  on should be 

vacated and the case remanded for an oral h e a r i n c .

Respectfully submitted

ATTORNEY FOR PLAINTIFFS 
539 Martha Street 
Montgomery, AL 36C14 
(205) 262-7337

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11 February 1985 t

CERTIFICATE OF SERVICE

I hereby certify that a copy of Plaintiffs' 

Supplemental Brief on Remand was served upon Thomas R. 

Christian, Esq. and upon Terry P. Wilson, Esq., Turner, 

Wilson, Christian & Dorrough, 428 South Lawrence Street, 

Montgomery, AL 36104, by depositing same in the United 

States mail, postage prepaid, on this the 11th day of 

Februa-y, 1985.