Morrison v. Booth Brief for Plaintiffs - Appellants
Public Court Documents
February 11, 1985

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Brief Collection, LDF Court Filings. Morrison v. Booth Brief for Plaintiffs - Appellants, 1985. f73cddcc-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/65deae28-6c02-4b8e-ae3f-722130f08199/morrison-v-booth-brief-for-plaintiffs-appellants. Accessed April 27, 2025.
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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 - 1 - 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). - 2 - Plaintiffs' evidenti ary motion for class certification without an hearing. - 3 - 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- - 4 - 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. - 5 - ■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 . -6- 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 ) . - 8 - 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. - 1 0 - 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 -11 - 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.