Griffin v. Dugger Brief in Opposition to Petition for Writ of Certiorari

    No. 87-1281

In The
Supreme Court of the United States

October Term, 1987
-----------------------_ — o — — — ---------------

PENERS L. GRIFFIN, et al,
Petitioners,

v.

RICHARD L. DUGGER, et al,

o
Respondents.

BRIEF IN OPPOSITION TO PETITION 
FOR WRIT OF CERTIORARI

— — - — o -------------------------------------

B r u c e  A lexander  M in n ic k  
Counsel of Record 

D ouglas A. M ang  
C h ar l e s  T. C o llette  
M ang , R e t t  & C o l l e t t e , P.A. 
Post Office Box 11127 
Tallahassee, Florida 32302 
(904) 222-7710
R obert A. B u t t e r w o r t h  

Attorney General of Florida 
H arry F. C h il e s  

Assistant Attorney General 
D e p a r t m e n t  of L egal A ffa ir s  
Room 1501, The Capitol 
Tallahassee, Florida 32301 
(904) 488-1573
Attorneys for Respondents

COCKLE LAW  B R IE F  P R IN T IN G  CO., (800) 225-6964 
o r  c a ll  c o lle c t (402) 342-2831



1

QUESTIONS PRESENTED FOR REVIEW

Respondents perceive no need to restate the four 
“Questions Presented” by petitioners. However, respon­
dents will only respond to the three points presented in the 
petition.



11

PARTIES TO THE PROCEEDING

The parties to this ongoing proceeding below are plain­
tiffs Peners L. Griffin and Henry L. Dejerinett; interven- 
ors Alvin Smith and John D. Butler; defendants below are 
Richard L. Dugger, in his official capacity as Secretary, 
Florida Department of Corrections; The Florida Depart­
ment of Corrections; Louie L. Wainwright, individually; 
and Raymond W. Gearey, individually.

However, the only parties properly before this Court 
are petitioners Griffin and Dejerinett; intervenor Smith; 
and the respondents Dugger and the Florida Department 
of Corrections.



QUESTIONS PRESENTED FOR REVIEW ..........  i
PARTIES TO THE PROCEEDING ....................  ii
TABLE OF CONTENTS ........... ................................  iii
TABLE OF AUTHORITIES .....................................  iv
PREFACE REGARDING PARTY &

RECORD REFERENCES ...................................   vi
OPINIONS BELOW ..............      1
JURISDICTION ...........................................................  3
STATUTES INVOLVED............................................. 3
STATEMENT OF THE CASE ..................................  3
STATEMENT OF THE FA CTS................................  8
REASONS FOR DENYING THE W R IT ...................  12

I. Question 1 .......................................................  12
II. Question 2 .......................................................  16

III. Question 3 ......................................................  18
CONCLUSION ..........................   23
APPENDIX ...............................................................App. 1

Ill

TABLE OF CONTENTS
Page



IV

C ases :

Allee v. Medrano, 416 U.S. 802 (1974) ......................13,19
Alvarez v. Pan American Life Insurance Co.,

375 F.2d 992 (5th Cir. 1967) ...................................... 13
American Pipe & Construction Co. v. Utah, 414 

U.S. 538 (1974) ...................................................18,19,21
Belcher v. Stengel, 429 U.S. 118 (1976) .......................  12
Blum v. Bacon, 457 U.S. 132 (1982) ........... ...... ..........  12
Blum v. Yaretsky, 457 U.S. 991 (1983) .................... _.. 13
Brown v. Sibley, 650 F.2d 760 (5th Cir. 1981) .....13,18,19
Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S.

345 (1983) ...................................................... 18,19,20,21
Dalton v. Employment Security Commission of 

North Carolina. 671 F.2d 835 (4th Cir. 1982 
cert, denied, 459 U.S. 862 (1982) .............................  15

Dayton Board of Education v. Brinkham, 433 U.S.
406 (1977) .........     12

EEOC v. Mississippi College, 626 F.2d 477 (5th 
Cir. 1980) ......................    14

East Texas Motor Freight v. Rodriques, 431 U.S.
395 (1977) ......... ...... ............. ............... ......................  13

Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925
(11th Cir. 1983) .......     18

Ezell v. Mobile Housing Bd., 709 F.2d 1376 (11th 
Cir. 1983) .......    16

Falcon v. General Telephone Co., 815 F.2d 317
(5th Cir. 1987) .......   19

General Telephone Co. v. Falcon, 457 U.S. 147 
(1982) ...................................................................... passim

Ilill v. Western Electric Go., Inc., 596 F.2d 99 (4th
Cir. 1979) ....      13

Jackson v. Seaboard Coast Line RR, 678 F.2d 992
(11th Cir. 1982) .........................................................  22

TABLE OF AUTHORITIES
Page



V

Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) ........................................................ 11,15

O’Shea v. Littleton, 414 U.S. 488 (1974) .....................  13
Payne v. Travenol Laboratories, Inc., 565 F.2d 

895 (5th Cir. 1977) cert, denied, 439 U.S. 835 
(1978) ..........................................................................  13

Snell v. Suffolk County, 782 F.2d 1094 (2d Cir.
1986) ........................................................................ — 15

Snyder v. Harris, 394 U.S. 332 (1969) ......................... 13
Steward v. Hannon, 675 F.2d 846 (7th Cir. 1982) ....... 13
Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976) 

vacated on other grounds, 438 U.S. 901 (1978) ..... 13
Trafficante v. Metropolitan Life Ins. Co., 409 

U.S. 205 (1972)   .....................................................  14
United Airlines v. McDonald, 432 U.S. 385 (1977).....18,19
Vuyanich v. Republic National Bank of Dallas,

723 F.2d 1195 (5th Cir. 1984) cert, denied, 469 
U.S. 1073 (1984) ....................................... 13,15,16,18, 20

Waikeen v. Hoffman House, Inc., 724 F.2d 1238
(7th Cir. 1983) .........................................................16,18

Warth v. Seldin, 422 U.S. 490 (1975) ........................... 13
Zipes v. Trans World Airlines, Inc., 455 U.S. 385

(1982) .... .............................. ................................ -.... 22

TABLE OF AUTHORITIES—Continued
Page

S t a t u t e s :

28 U.S.C. § 1254(1) ................................. ......................  3
28 U.S.C. § 1292(b) ................................................. ........... ............ 2,8
42 U.S.C. § 1981 .............................................................  3
42 U.S.C. § 2000e et seq....................................... ...........  3
Title VII of the Civil Rights Act of 1964................. passim

C o n st it u t io n a l  P rovisions :

Constitution of the United States, Article I I I ..........passim



VI

PREFACE REGARDING PARTY AND 
RECORD REFERENCES

Plaintiffs Griffin and Dejerinett will be referred to 
as “plaintiffs” or “petitioners,” or by name as necessary. 
Intervenor Smith will be referred to as “intervenor,” or 
by name. Defendants Dagger and the Florida Department 
of Corrections will be referred to as “defendants” or “re­
spondents”.

Respondents will cite to petitioner’s appendix as 
“PA-” followed by the page number (e . g “PA-82a”). 
Citations to respondents’ appendix will appear as “RA-” 
followed by the page number {e.g., “RA-65”).

Citations to the opinion below will be to the volume 
and page number where reported {e.g., 823 F.2d 1476).

Citations to the record below will follow the Eleventh 
Circuit’s format {e.g., “R4-150-5”), where “R” means rec­
ord,” “4” is the volume, “150” is the document number, 
and “5” is the page number of the document.



No. 87-1281
-— — —-------- -o -------------- --------------

In The
Supreme Court of the United States

October Term, 1987 
------------- o-------------

PENERS L. GRIFFIN, et al,
Petitioners,

RICHARD L. DUGGER, et al,
Respondents.

— ------------------- o -------------------------- -

BRIEF IN OPPOSITION TO PETITION 
FOR WRIT OF CERTIORARI

—— ------ o--------------

Respondents Richard L. Dugger and Florida Depart­
ment of Corrections respectfully request this Court to deny 
the petition for writ of certiorari seeking review of the 
Eleventh Circuit’s decisions in this case.

—.— ------o— ------ ----- -

OPINIONS BELOW

The opinion of the Eleventh Circuit Court of Appeals 
is reported at 823 F.2d 1476 (August 7, 1987, as amended 
September 23, 1987). The order denying plaintiffs’ peti­
tion for rehearing and suggestion for rehearing in banc 
is printed at RA-57 (October 30, 1987).

1



2
Petitioners have reproduced the opinion of the Elev­

enth Circuit in their appendix at PA-la to 85a;1 the orig­
inal order of the district court certifying the class (entered 
March 12, 1981), is reproduced at PA-86a to 94a; the dis­
trict court’s order allowing the intervention of Alvin 
Smith (entered July 30, 1982) is reproduced at PA-95a to 
110a; and the district court’s memorandum opinion grant­
ing judgment for defendants on all claims heard except 
the testing claim (entered August 25, 1983) is reproduced 
at PA -llla  to 188a.

Respondents have reproduced several additional docu­
ments pertinent to these review proceedings in their appen­
dix. The district court’s order directing judgment for de­
fendants on all claims heard below (entered August 25, 
1983) is reproduced at RA-1 to 3; plaintiffs’ motion to alter 
or amend judgment (still pending) is reproduced at RA- 
4 to 7; the order appealed from, containing the required 
certificate allowing interlocutory appeal pursuant to 28 
U.S.C. § 1292(b) is reproduced at RA-8 to 14; the decision 
of the Eleventh Circuit is reproduced at RA-15 to 56; the 
order denying rehearing is reproduced at RA-57 to 58; 
plaintiffs’ post-appeal motion for leave to amend com­
plaint (filed February 10, 1988) is reproduced at RA-59 to 
61; plaintiffs’ post-appeal motion for leave to amend inter- 
venor Smith’s complaint is reproduced at RA-62 to 63; 
plaintiffs’ post-appeal motion to intervene new parties is 
reproduced at RA-64 to 66; and plaintiffs’ post-appeal mo­
tion to recertify class and request for evidentiary hearing 
is reproduced at RA-67 to 70 (all filed February 10, 1988).

1 Petitioners' appendix contains many typographical errors 
made in their reproduction process. Therefore, respondents 
have also reproduced the Eleventh Circuit's decision in their 
appendix, at RA-15 to 56.



3

JURISDICTION

Jurisdiction of this Court has been invoked pursuant 
to 28 U.S.C. §1254(1).

------------- o------—---- -

STATUTES INVOLVED

This is a Title VII case. The federal statute involved 
is Title VII of the Civil Eights Act of 1964, as amended, 
applicable to the states on March 23, 1972, presently codi­
fied at 42 U.S.C. § 2000e et seq.

——--------o—-— ----—-

STATEMENT OF THE CASE

This “ across-the-board” class action was filed on 
October 15, 1979, by Peners L. Griffin on his own behalf 
and “ on behalf of all past, present and potential black 
American citizens and residents who have been or may be 
employees of the defendants or applicants for employ­
ment.” El-1-2. Griffin sued Louie L. Wainwright in his 
official capacity, and the State of Florida, Department of 
Corrections, alleging race discrimination in employment 
under 42 U.S.C. § 1981 and Title VII of the Civil Eights 
Act of 1964, 42 U.S.C. § 2000e et seq. El-1-1. Griffin 
mainly complained of defendants’ failure to promote him, 
and for twice terminating him because of his race; he also 
claimed of harassment and retaliation from defendants. 
El-1 through 4. Griffin did not advance any individual 
claim of discrimination in hiring.



4

However, in Ms “ across-the-board” class claims, Grif­
fin alleged that defendants discriminated against blacks 
in all aspects of employment, including recruiting, hiring, 
assignments, promotions, discipline and harassment, fail­
ing to advertise vacancies, maintaining a racially biased 
working environment, and “ utilizing written entry level 
examinations and other qualifications and selection stan­
dards . . . which have a detrimental impact upon the plain­
tiff and his class.” R-l-3, 4.

Defendants immediately and repeatedly objected to 
Griffin’s attempt to represent applicants or bring class 
hiring claims, since he was an incumbent correctional of­
ficer employee and had no standing to raise any hiring 
issues. El-5; El-17; El-21; El-22; El-30; El-45; El-49. 
Despite defendants’ repeated objections, Griffin was al­
lowed to amend his complaint twice, and to intervene plain­
tiff Harry L. Dejerinett as a named plaintiff and new 
class representative, to represent a hiring subclass of 
clerical job applicants. El-25; Rl-53. The district court 
ruled that Dejerinett’s clerical failure-to-hire claim was 
encompassed by Griffin’s general class hiring claim under 
the “across-the-board” theory. Rl-53.

Griffin filed his Second Amended Complaint on De­
cember 15, 1980, adding Henry L. Dejerinett as a named 
plaintiff and as a class representative. El-54-1. The Sec­
ond Amended Complaint alleged a different class “ of all 
past, present and potential black employees of the State 
of Florida Department of Corrections.” El-54-2. No 
mention was made of any applicant subclass. However, de­
fendants filed their Amended Answer on January 19, 1981, 
preserving their objections to all correctional officer hir­
ing claims. E2-66.



5

Based upon a stipulation between the parties, on 
March 10, 1981, the district court entered an order pre­
liminarily certifying a class of “ ail past, present, and 
potential black employees of the State of Florida Depart­
ment of Corrections.” PA-86a to 88a. The stipulation 
was incorporated into the order, and was attached to the 
order as a part thereof. PA-86a. The stipulation pro­
vides, inter alia, that (1) the class certification was pre­
liminary, and (2) was based upon plaintiffs’ and the dis­
trict court’s perception of the law in the Fifth Circuit as 
then allowing such “across-the-board” class actions to pro­
ceed. Under the terms of the stipulation the defendants 
specifically preserved their rights to litigate and to ap­
peal the disputed issues of standing and Rule 23 require­
ments, and other areas of disagreement. PA-89a to 94a.

On May 13, 1982, Griffin and Dejerinett filed their 
motion for partial summary judgment, attacking (among 
other things) the defendants’ use of a written examination 
developed by the Florida Department of Administration 
(FDOA), and required by FDOA for use in hiring entry 
level correctional officers. R2-108-21 through 28. Defen­
dants had repeatedly objected to litigating this issue and 
all other correctional officer hiring issues, because Griffin 
was an incumbent employee who had passed the test, and 
because Dejerinett was a clerical applicant and never had 
to take it.2

General Telephone Co. v. Falcon, 457 U.S. 147 was 
decided by this Court on June 14, 1982. Eleven days later,

2 The FDOA has never been a party to these proceedings, and 
no one has ever filed a timely EEOC charge about FDOA's 
test, or about FDOC's use of it.



6

on June 25, 1982, defendants noticed their reliance upon 
Falcon, and moved to vacate the order certifying- the class 
on July 8, 1982. R4-143.

Meantime, plaintiffs tried to avoid the force of Falcon 
by moving to intervene Alvin Smith, a correctional officer 
applicant who had failed the test in July 1981. However, 
Smith never filed a timely charge of discrimination with 
the EEOC. 823 F.2d 1481, note 8. Defendants objected 
accordingly, lid-145.

On July 28, 1982, the district court took up the two 
motions, and entered its order (1) denying the defendants’ 
motion to vacate class certification and (2) granting 
Smith’s motion to intervene. R4-150. Smith was allowed 
to intervene “ as a matter of right” on his own behalf, 
and as “ a proper representative for potential black em­
ployees.” R4-150-5. The district court’s order allowed the 
action to continue as an “across-the-board” class action 
with Griffin, Dejerinett and Smith collectively, as named 
plaintiffs representing the entire class of “all past, present, 
and potential black employees of the State of Florida De­
partment of Corrections.” R-4-150-6. Then two days later, 
on July 30, 1982, the district court ruled on Griffin’s and 
Dejerinett’s motion for partial summary judgment, with­
out any hearing. The district court’s order granted de­
claratory relief only on the correctional officer written 
examination issue. The district court found “that the 
correctional officer written examination utilized by de­
fendants in screening applicants for correctional officer



7

positions has a disparate impact upon class members which 
has not been justified by business necessity.” E4-157-5.3

Trial was held over the five-week period beginning 
August 17, and ending September 17, 1982. E5-196. The 
parties submitted extensive post-trial motions and mem­
oranda. E5-195; E5-197; E6-210; E6-211; E7-212; E7- 
213; E7-214; E7-215.

On August 25, 1983, the district court filed its Mem­
orandum Opinion. PA -llla  to 188a. Judgment was en­
tered for defendants on all issues presented at trial. 
EA.-1 to 3. The district court also brought forward its 
earlier summary judgment (E4-157, July 30, 1982) and 
entered judgment for plaintiffs on the single issue of the 
correctional officer written examination, and left several 
issues including relief pending.4 EA-2 to 3.

Plaintiffs moved to alter or amend the judgment on 
September 8, 1983. EA-4 to 7. Defendants responded on 
September 16, 1983. E7-225. The motion is still pending 
in the district court.

Plaintiffs moved to commence stage II (relief on the 
testing issue), E7-233, and defendants again objected, and 
filed additional supporting documents. E7-234, E8-239,

a-------- ----- - V ,
3 The EEOC has never seen the test, nor had the district court 

seen it prior to the ruling. Plaintiffs "won" on statistics 
alone, and defendants never had an opportunity to show job 
relatedness, business necessity or argue the merits of the test. 
The test was abolished in 1983.

4 All matters are still pending in the district court.



8

R8-240. Plaintiffs responded. R8-242. The parties were 
unable to agree, and asked for permission to appeal.

The issue of relief to the class of black persons who 
took and failed the correctional officer written examina­
tion was left pending, while the parties agreed to seek in­
terlocutory appeal of the controlling issues of law regard­
ing jurisdiction, and Rule 23. The district court adopted 
the plaintiffs’ position on notice relief in its order dated 
October 3, 1985, and included the required certificate for 
purposes of the appeal. RA-8 to 9. The Eleventh Circuit 
granted the interlocutory appeal pursuant to 28 U.S.C. 
"§1292(b), and vacated the district court’s orders. Plain­
tiffs now seek review of the Eleventh Circuit’s decisions.

■------------- o------------- -

STATEMENT OF THE FACTS

Respondents adopt the findings of fact set forth in 
the district court’s Memorandum Opinion entered August 
25, 1983, (PA-116 to 188a), and the findings of the Elev­
enth Circuit Court of Appeals (823 F.2d 1476-1494), as 
their Statement of the Case.

Accordingly, respondents find it necessary to correct 
or clarify some of the statements made by petitioners in 
their Statement of the Case.

Peners L. Griffin was an entry level correctional offi­
cer (CO I) seeking promotions at FDOC. He was never 
promoted, and claimed race discrimination as the reason. 
Griffin was also disciplined many times, even fired twice,



9

giving rise to his other individual claims, arising in 1974. 
823 F.2d 1479.

Griffin filed an EEOC charge in February 1975, claim­
ing individual race discrimination in promotions, discipline 
and terminations. E4-148. He also mentioned the word 
“ hiring” . There is no evidence that his charge was ever 
fully investigated by the EEOC, nor is there any evidence 
as to the scope of the EEOC’s investigation, if there was 
one. Griffin himself said there was not. El-21; El-22; 
El-23; El-24. Moreover, it is undisputed that the EEOC 
has never seen the Correctional Officer I test, and undis­
puted that the district court never saw the test prior to 
ruling that it had a disparate impact on blacks. Eespon- 
dents have thus been denied their rights to conciliation 
under Title VII, as well as denied a fair opportunity to 
litigate the merits of the test below.

Therefore, contrary to petitioner’s statement on page 
9 of the petition, the district court’s “ substantive deter­
mination” on the test is in issue; in fact, that ruling has 
also been vacated by the Eleventh Circuit’s decision, by 
operation of law. Plaintiffs have lacked standing to raise 
that issue from the beginning, as the Eleventh Circuit 
has found.

Plaintiffs moved for summary judgment without 
standing, on the issue of disparate impact of the CO I 
test on May 13, 1982, some two months before Smith inter­
vened. Defendants responded, preserving their continual 
objections. E3-120. Falcon was decided June 14, 1982. 
Defendants immediately noticed their reliance on Falcon, 
again objecting to plaintiff’s lack of standing and failure 
to meet Eule 23 requirements, on June 25, 1982. Hearing



10
nothing from plaintiffs or the district court, defendants 
moved to vacate the order certifying class, on July 8, 1982. 
823 F.2d 1480; R4-143.

Plaintiffs moved to intervene Smith, to save the ob­
jective testing claim. R4-141. The district court recog­
nized that defendants had been right all along. PA-102a, 
103a and 107a. However, instead of vacating the improp­
erly certified class, the district court allowed Smith to in­
tervene on the eve of summary judgment, solely to save 
the objective class hiring claim which plaintiffs never had 
standing to raise in the first place. Smith’s objective 
claim was then adjudicated on plaintiff’s earlier motion 
for summary judgment, two days later, on July 30, 1982. 
893 F.2d 1481. The Eleventh Circuit Court of Appeals has 
reviewed all these facts and has vacated the district court’s 
orders. 893 F.2d 1484 and 1493.

All of Griffin’s individual Title VII claims of sub­
jective discrimination in promotions, discipline, retalia­
tory discipline, and terminations were resolved against him 
at trial. RA-1. Likewise, all of Dejerinett’s individual 
subjective hiring claims were resolved against him at trial. 
Id. Finally, Griffin and Dejerinett together lost all their 
subjective class claims of race discrimination, including 
hiring, at trial. RA-1. The single issue won by plaintiffs 
below was the objective testing claim regarding the dis­
parate impact of the correctional officer test advanced by 
intervenor Alvin Smith. 823 F.2d 1481.

Alvin Smith took and failed the CO I test in July 1981, 
over six years after Griffin’s claims arose. 823 F.2d 
1480, 1481. However, Smith never filed a timely EEOC 
charge about the test, and consequently never exhausted 
administrative remedies either. The EEOC has never in­



11
vestigated, reviewed or even seen the CO I test, because 
no one has ever filed a timely charge regarding it, and the 
test was abolished in 1983.5

Nevertheless, the district court excused Smith’s fail­
ure to exhaust administrative remedies, ruling that Grif­
fin’s 1975 subjective promotion and discipline claims were 
sufficiently similar to Smith’s 1981 objective testing claim, 
under the Fifth Circuit’s “single-filing rule” announced 
in Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th 
Cir. 1968). The Eleventh Circuit Court of Appeals has 
ruled otherwise. 893 F.2d 1492-93.

All of petitioners’ alternative standing arguments and 
all of their administrative exhaustion tolling arguments 
were presented to the Eleventh Circuit Court of Appeals 
in their briefs and petitions for rehearing and suggestions 
for rehearing in lane, filed by plaintiffs and by the EEOC, 
which intervened on their behalf in the rehearing proceed­
ings below. The Eleventh Circuit Court of Appeals has 
reviewed the authorities and arguments advanced in this 
petition, and has denied rehearing. RA-57.

Finally, these petitioners are presently back before 
the district court as plaintiffs, now attempting to amend 
their complaint, amend the intervenor Smith’s complaint, 
moving to intervene new parties and new class representa­
tives, and seeking recertification of the vacated testing- 
class. RA-59; RA-62; RA-64; and RA-67.

5 Actually, there was more than one FDOA test. The test that 
Griffin took and passed was abolished in 1972, and was ulti­
mately replaced in 1976 with the test that Smith failed in 
1981. R7-234, R8-239, R8-240. The district court was made 
aware of these important facts in the post-trial dispute over 
standing and failure to exhaust remedies, and allowed the 
interlocutory appeal to settle the dispute. RA-8, 9.



12

REASONS FOR DENYING THE WRIT 

Introduction
The court of appeals’ decision below was rendered in 

the alternative. First, Griffin was found to lack Article 
III standing to assert the objective testing claim in the 
federal courts. Thus, the Eleventh Circuit held that “ the 
district court erred when it permitted Griffin to raise the 
testing claim on behalf of himself and on behalf of others.” 
893 F.2d 1484.

Alternatively, the court of appeals held that, “even if 
Griffin somehow had constitutional standing to assert the 
testing claim, he did not, in light of General Tel. Co. v. 
Falcon . . . (citations omitted) have representative ca­
pacity to assert the testing claim on behalf of those who 
took the FDOC’s written entry-level examination, failed it, 
and were not hired.” 823 F.2d 1484, and n.17.

Petitioners here focus only on the first of the two 
alternative holdings below. Petitioners do not seek review 
of the court’s decision finding Griffin to be an inadequate 
class representative and holding that Rule 23 requirements 
were not met. In fact, petitioners concede that issue, on 
page 32 of their petition.

Accordingly, this Court should deny the writ since 
the court of appeals’ decision would be affirmed on the 
alternative grounds. Belcher v. Stengel, 429 U.S. 118 
(1976); Dayton Board of Education v. Brinkham, 433 U.S. 
406, 419 (1977); Blum v. Bacon, 457 U.S. 132, 137 (1982).

I. Question 1.
The court of appeals correctly held that plaintiffs 

lacked Article III  standing to assert the testing claim in



13
the federal courts. The petitioners erroneously assert that 
the court of appeals has thus imposed a new requirement 
on plaintiffs to have constitutional standing to file a charge 
of discrimination with the EEOC. That is not correct.

The court of appeals’ decision is correct, and is in 
accord with decisions of this Court, and other cireuit courts 
of appeals. Warth v. Seldin, 422 U.S. 490, 502 (1975); 
O’Shea v. Littleton, 414 U.S. 488, 494 (1974); Allee v. 
Medrano, 416 U.S. 802, 829 (1974); Brown v. Sibley, 650 
F.2d 760, 771 (5th Cir. 1981); Payne v. Travenol Labora­
tories, Inc., 565 F.2d 895 (5th Cir. 1977), cert, denied, 439 
U.S. 835 (1978); Thurston v. Delete, 531 F.2d 1264 (5th 
Cir. 1976), vacated on other grounds, 438 U.S. 901 (1978); 
V-uyanich v. Republic Nat’l Bank, 723 F.2d 1195 (5th Cir. 
1984), cert, denied, 469 U.S. 1073 (1984) ; Blum v. Yaret- 
sky, 457 U.S. 991, 999 (1983); East Texas Motor Freight 
v. Rodriquez, 431 U.S. 395 (1977); Hill v. Western Electric 
Co., Inc., 596 F.2d 99 (4th Cir. 1979); Snyder v. Harris, 
394 U.S. 332 (1969); Alvarez v. Pan American Life Insur­
ance Co., 375 F.2d 992 (5th Cir. 1967).

Petitioners cite no authority supporting their view 
that the statutory “ standing” provisions of Title YII 
(which allow “ any person claiming to be aggrieved” to 
file a charge with the EEOC) take precedence over or ex­
pand the constitutional requirement of standing applicable 
to the federal courts. In fact, petitioners even argue that 
Steward v. Hannon, 675 F.2d 846 (7th Cir. 1982) held that 
congress intended to define Title YII standing only “ as 
broadly as the Constitution permitted.” Petition, p.18. 
That is the result reached by the Eleventh Circuit in this 
case. The other cases cited as “ conflicting” do not con­
flict either. They say the same thing.



14

In the main cases relied npon by petitioners, the courts 
clearly held that the exhausting plaintiffs could charge 
discrimination and sue, but only on their own claims, not 
on the claims of others. See, Trafficante v. Metropolitan 
Life Ins. Co., 409 U.S. 205 (1972); EEOC v. Mississippi 
College, 626 F.2d 477 (5th Cir. 1980). The Fifth Circuit’s 
1980 conclusion in Mississippi College, based entirely upon 
the rationale of Trafficante and without benefit of Falcon, 
is precisely on point with respondent’s position here:

We conclude that '§ 706 of title VII permits Summers 
to file a charge asserting that Mississippi College dis­
criminates against blacks on the basis of race in re­
cruitment and hiring. Our decision today does not 
allow Summers to assert the rights of others. We 
hold no more than that, provided she meets the stand­
ing requirements imposed by Article III, Summers 
may charge a violation of her own personal right to 
work in an environment unaffected by racial discrim­
ination.

616 F.2d 477, 483 (Emphasis supplied).

Petitioners cite no authority to support their view that 
the “ single-filing rule” can or should be used to circum­
vent Article III standing. It cannot, as the Eleventh Cir­
cuit correctly held. 823 F.2d at 1493.

Petitioners have adequately described the single-filing 
rule in note 4 of their petition (on pages 13 and 14):

The single-filing rule provides that where one 
plaintiff has filed a valid EEOC charge, individuals 
with claims arising out of similar discriminatory treat­
ment in the same time frame may proceed in court 
without satisfying the filing requirement. “It would 
be wasteful, if not vain, for numerous employees, all 
with the same grievance, to have to process many iden­



15

tical complaints with the EEOC”. Oatis v. Crown 
Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). 
The rule “ presupposes, of course, that the subsequent 
claims are sufficiently similar to the original com­
plaint and the employer received adequate notice and 
an opportunity for conciliation”. Snell v. Suffolk 
County, 782 F.2d 1094, 1100 (2nd Cir. 1986). (Em­
phasis supplied).

Petitioners’ description clearly supports the holding 
of the Eleventh Circuit. The court compared Smith’s 1981 
objective testing claim with Griffin’s 1975 subjective de­
cision-making claims, and correctly concluded that Griffin 
and Smith were not “ similarly situated” , because “ em­
ployee Griffin’s and applicant Smith’s claims did not arise 
out of similar discriminatory treatment.” 823 F.2d 1493.

The Eleventh Circuit’s holding does not require a.nĵ - 
thing more than what the single-filing rule has always re­
quired: “ similar discriminatory treatment in the same 
time frame”, so as to be sure the “ employer received ade­
quate notice and an opportunity for conciliation.” Peti­
tion, note 4, pp. 13, 14. Plaintiffs below have repeatedly 
ignored and have sought to avoid proper exhaustion of 
administrative remedies, from the very beginning of this 
case. They merely argued that Griffin’s 1975 subjective 
practices EEOC charge can form the basis of an across- 
the-board class action, with no need for anyone, anytime, 
ever to exhaust remedies on Smith’s objective testing claim 
which arose six years later, in 1981. The Eleventh Cir­
cuit is correct, and the decision is in accord with other 
courts of appeal. Dalton v. Employment Security Com­
mission of North Carolina, 671 F.2d 835, 838 (4th Cir. 
1982), cert, denied, 459 U.S. 862 (1982); Vuyanich v. Re­



16

public National Bank of Dallas, 723 F.2d 1195, 1201 
(5th Cir. 1984), cert, denied 469 U.S. 1073; Wakeen v. 
Hoffman House, Inc., 724 F.2d 1238, 1246 (7th Cir. 1983); 
Esell v. Mobile Housing Bd., 709 F.2d 1376, 1381 (11th 
Cir. 1983).

The court of appeals’ decision is not in conflict with 
the decisions of this Court, nor in conflict with any other 
cases relied upon by petitioners. This Court should deny 
the writ.

II. Question 2.
Petitioners now admit that in light of Falcon, Griffin 

could not represent the class of persons who failed the 
correctional officer written examination. Petition, p. 32. 
Respondents have known and argued that fact since 1979, 
when Griffin filed this suit. Accordingly, the parties now 
are in agreement that the testing subclass was improperly 
plead by Griffin, improperly certified, and improperly 
recertified in the district court. Griffin always was and 
still is an inadequate class representative. Therefore, the 
Eleventh Circuit’s order vacating the improperly certified 
class is correct, and petitioners should have no quarrel with 
that order, under Falcon.

However, to avoid the effect of the Eleventh Circuit’s 
mandate, and in order to side-step this Court’s clear 
holding in Falcon, petitioners are now attempting to 
replead Griffin’s case below under a new across-the-board 
theory, hoping to create Article III standing where none 
was found to exist. See plaintiffs’ motion for leave to 
amend complaint, RA-59; plaintiffs’ motion for leave to 
amend intervenor Smith’s complaint, RA-62; plaintiffs’



17

motion to intervene new parties, BA-64; and plaintiffs’ 
motion to recertify class and request for evidentiary hear­
ing, BA-67.

The petitioners here present the same authorities as 
they do as plaintiffs below. They argue that Griffin, as 
an incumbent employee, could have charged a violation of 
Title VII based upon his allegations of a ‘ ‘ discriminatory 
working environment”, and thereby create Article III 
standing for himself so as to represent applicants, who by 
definition are not injured by that alleged discriminatory 
working environment, because they are not working in it. 
Petitioners’ novel theory must fall of its own weight. See, 
823 F.2d 1484, note 17. Petitioners are clearly attempting 
to resurrect the Fifth Circuit’s old ‘‘across-the-board’’ 
approach to Title VII litigation, notwithstanding Falcon 
and all its progeny. However, petitioners cite no post- 
Falcon cases to support their desire to return to yester­
year.

Instead, they present their new theory and its intended 
effect in a statement which is a complete misunderstanding 
and misapplication of Falcon, on page 37 of the petition. 
Petitioners assert that “ [t]he impact of Falcon on this 
process is that in order to sustain a subsequent across-the- 
board class action in federal court, the original charging 
party must be joined at the litigation stage by an addi­
tional class representative who not only has broad Article 
III standing to litigate the general issue, but is specifically 
appropriate to represent absent class members who may 
have suffered a more direct injury from the same policy.”

Bespondents submit that petitioners’ view of the Fal­
con rule of law is incorrect and is without merit. This



18

Court should reject petitioners’ unsupported view and 
deny the writ.

III. Question 3.
Petitioners’ last point regarding tolling was never pre­

sented to the district court. The district court knew that 
Smith had not exhausted, but erroneously allowed Smith 
to intervene anyway, relying upon Griffin’s 1975 EEOC 
charge to excuse Smith’s lack of exhaustion of admin­
istrative remedies under the single filing rule. PA-108a, 
109a, Consequently, no one ever exhausted, and there is 
no plaintiff now capable of exhausting remedies on the test.

The Eleventh Circuit correctly held that the district 
court abused its discretion by allowing Smith’s interven­
tion solely to save the testing claim, because Griffin had no 
standing to bring it in the beginning. 823 F.2d 1492, 1493; 
accord, WaJceen v. Hoffman House Inc., supra, 724 F.2d 
at 1246; Vuyanich v. Republic National Bank of Dallas, 
supra, 723 F.2d at 1201; Evans v. U.8. Pipe & Foundry 
Co., 696 F.2d 925, at 928-929, and note 6 (11th Cir. 1983); 
Brown v. Sibley, supra, 650 F.2d at 771.

The same tolling arguments and authorities advanced 
here were also advanced in support of plaintiffs’ and the 
EEOC’s petitions for rehearing and suggestions for re­
hearing in banc, denied on October 30, 1987. RA-57. 
The decision of the Eleventh Circuit does not conflict with 
this Court’s decisions in American Pipe & Construction 
Co. v. Utah, 414 U.S. 538 (1974), or United Airlines v. 
McDonald, 432 U.S. 385 (1977), or Crown, Cork & Seal 
Co., Inc. v. Parker, 462 U.S. 345 (1983).

The holdings in these cases presume that the class 
action allegations in a complaint filed in federal court



19

are legitimate class allegations brought by someone who 
has Article III standing himself. “ Standing cannot be 
acquired through the back door of a class action.” Allee 
v. Medrano, supra, 416 U.S. at 829 (1974) (BURGER, CJ, 
concurring); Brown v. Sibley, supra, 650 F.2d at 771.

However, in this case Griffin never had standing to 
raise the objective testing claim, and neither did Dejeri- 
nett. Accordingly, since there has never been a proper 
class pled or certified here, the Eleventh Circuit properly 
vacated the district court’s orders, which are thus void 
ab initio. See Falcon v. General Telephone Co., 815 F.2d 
317 at 320 (5th Cir. 1987). There never was a class, as a 
matter of law.

The rules announced in American Pipe and Crown, 
Cork & Seal presume a valid class action, and therefore 
properly allow similarly situated persons and proper puta­
tive class members to intervene or bring individual actions 
upon a subsequent denial of class certification. In such 
proper cases, this Court has held that the statutes of limi­
tations applicable to actions brought in the federal courts 
may be tolled for proper class members during the pen­
dency of the class certification proceedings. Likewise, in 
United Airlines this Court has allowed proper putative 
class members to await entry of final judgment before 
intervening for purposes of appealing the denial of class 
certification. This case does not disturb those rules of 
equity.

In this case, Smith was allowed to intervene solely to 
create subject-matter jurisdiction over the objective test­
ing claim, where none existed before. There never was 
a valid class action alleged or certified here. Therefore, 
unlike American Pipe and the other cases, intervenor



20

Smith had no valid class action into which to intervene. 
Petitioners cite no authority allowing* federal courts to 
create or enlarge their jurisdiction by allowing interven­
tion of non-putative class members, at any stage of the 
proceedings. See Vuyanich v. Republic Nat’l Bank, supra, 
723 F.2d at 1201.

More importantly, in Crown, Cork & Seal the inter- 
venor Parker was clearly a member of the putative class, 
and was independently able to sue on the same issues 
raised by the plaintiffs in their class action. Parker had 
already filed a timely EEOC charge and had fully ex­
hausted his administrative remedies; he was awaiting his 
notice of right to sue before the class action was filed. 462 
U.S. at 347. Therefore, when class certification was de­
nied, Parker still had his statutory 90 days in which to 
intervene in the action, or file his own individual action. 
462 U.S. at 354.

By comparison, applicant Smith was clearly not a 
member of Griffin’s incumbent correctional officer class, 
nor was he a member of Dejerinett’s clerical class. And 
unlike Parker, Smith had never filed a timely EEOC 
charge nor exhausted his Title VII administrative reme­
dies, and could not have filed his own lawsuit. Thus Smith 
was neither a proper class member nor a proper inter- 
venor, and the tolling rules do not apply to him.

There are other reasons why the tolling rules do not 
apply to Smith. Griffin’s subjective claims arose in 1974, 
and he filed his class action in 1979. Smith’s objective 
testing claim did not even arise until he took and failed 
the test, in July 1981, seven years after Griffin’s claims 
arose. Smith then slept on his rights another year, until



21

July 1982, when he attempted to file an EEOC charge 
and intervened to save the testing claim. However, since 
Smith had waited a year to file his charge, the EEOC 
dismissed it for lack of jurisdiction. Therefore, Smith 
was out of time at the EEOC before he intervened, and 
there is no time left to toll.

Petitioners seem to believe that Crown, Cork £  Seal 
excuses Smith’s failure to exhaust administrative reme­
dies, or somehow tolls the time in which Smith may file 
an EEOC charge. That view is incorrect. The tolling 
rules apply to time limits for seeking federal court inter­
ventions, or for filing new federal court actions, or for 
taking federal court appeals, not to the EEOC’s admin­
istrative 180 day filing period. In effect, petitioners have 
asked this Court to overrule the EEOC’s 1982 determina­
tion that Smith’s charge was untimely filed. Petitioners \ ' 
cite no authority for their novel request.

Petitioners’ expansive view of the tolling rules would 
encourage anyone to file a spurious class action, and there­
by toll the time or excuse the need for filing EEOC charges 
altogether, for all asserted members of the spurious class 
for years, even decades. (Griffin’s claims arose fourteen 
years ago.) Petitioners cite no authority to support their 
novel theory of open-ended Title YII class action litiga­
tion, because there is none.

Several members of this Court have warned against 
this kind of abuse of the tolling rules. See concurring 
opinion of Justice BL A OK MU N, in American Pipe £  Con­
struction Co. v. Utah,, supra, 414 U.S. at 561; also see, 
concurring opinion of Justice POWELL, with whom Jus­
tice EEHNQUIST and Justice O’CONNOR joined, in 
Crown, Cork £  Seal v. Parker, supra, 462 U.S. at 354, 355.



22

Finally, the holding of this Court in Zipes v. Trans 
World Airlines, Inc., 455 U.S. 385 (1982), which basically 
sanctioned the single filing rule, is not in conflict either. 
In Zipes, the issue was whether all putative class mem­
bers had to file timely EEOC charges in order to share in 
the relief already obtained by the 30 women who appar­
ently had filed timely charges. In this case administra­
tive remedies have never been exhausted on the testing 
issue by anyone. Petitioners cite no authority holding 
that Title VII class liability can be established, or that 
class relief can be given in the absence of a proper class 
representative who has standing and has exhausted reme­
dies on the underlying class claim.

Respondents have always denied all allegations of ex­
haustion of administrative remedies, and have repeatedly 
objected to plaintiffs’ lack of Article III standing to liti­
gate the testing claim, from the beginning. Had they 
listened, petitioners might have found someone with stand­
ing, and then could have exhausted administrative reme­
dies; but they did not do so. Instead, plaintiffs and inter- 
venor Smith have intentionally avoided their requirement 
to exhaust Title VII administrative remedies for years, 
and cannot do so now.

Therefore, it is far too late in this litigation for peti­
tioners to demand equitable waiver of the necessary con­
dition precedent which they intentionally ignored for years, 
to their own detriment. Smith has not and cannot allege 
that “ all conditions precedent have been fulfilled”, as 
required. 823 F.2d at 1482, n.12, and 823 F.2d 1492; Jack- 
son v. Seaboard Coast Line RR, 678 F.2d 992, 1010, 1011 
(11th Cir. 1982). There is no conflict with Zipes.



23

The Eleventh Circuit has reviewed all the facts, con­
sidered all the authorities and all of petitioners’ argu­
ments, and has properly vacated the district court’s orders 
below. Therefore, this Court should deny the writ.

— ----------------------o —  -------------------------

CONCLUSION

Because the questions raised by petitioners present 
no conflict with decisions of other federal courts of appeals 
on the same subject matter, no conflict with applicable 
decisions of this Court, and no important questions of 
federal law which have not been but should be settled by 
this Court, respondents respectfully request that plain­
tiffs’ petition for writ of certiorari be denied.

Respectfully submitted,
B r u c e  A lexander  M in n ic k  

Counsel of Record 
D ouglas A . M ang 
C h a r les  T. C o llette  
M ang , R e t t  & C o l l e t t e , P.A.
Post Office Box 11127 
Tallahassee, Florida 32302 
(904) 222-7710
R obert A. B u t t e r w o r t h  

Attorney General of Florida 
H arry F. C h il e s  

Assistant Attorney General 
D e pa r t m e n t  of L egal A ffa ir s  
Room 1501, The Capitol 
Tallahassee, Florida 32301 
(904) 488-1573
Attorneys for Respondents

April 1988



APPENDIX

TABLE OF CONTENTS
App. Page

Order of the District Court directing entry
of judgment, entered August 25, 1983 ........................... 1
Plaintiffs’ Motion to Alter or Amend the
Judgment, filed September 8, 1983 ..............................  4
Order of the District Court directing notice to
the subclass and certifying interlocutory appeal,
entered October 3, 1985 ................................. ............. . 8
Decision of the Eleventh Circuit Court of Appeals
(as amended), entered August 7, 1987 ......................... 15
Order of the Eleventh Circuit Court of Appeals
denying petition(s) for rehearing and suggestion(s)
for rehearing in banc, entered October 30, 1987 ..........  57
Plaintiffs’ motion for leave to amend complaint, 
filed February 10, 1988 ................................................  59
Plaintiffs ’ motion for leave to amend 
intervenor Smith’s complaint,
filed February 10, 1988 ..................................................  62
Plaintiffs’ motion to intervene new parties and
class representatives filed February 10, 1988 ............  64
Plaintiffs ’ motion to recertify class and 
request for evidentiary hearing
filed February 10, 1988 ................................................  67



App. 1

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

TALLAHASSEE DIVISION

PENERS L. GRIFFIN and 
HENRY L. DE JERINETT,

Plaintiffs,

and

ALVIN SMITH,

TCA 79-1016-WS

ORDER

(Filed Aug.
25, 1983)

Intervenor,

all individually and on behalf of all 
others similarly situated,

v.

LOUIS L. WAINWRIGHT, individ­
ually and in his official capacity as 
Secretary of the Department of Cor­
rections of Florida; THE STATE 
OF FLORIDA; THE DEPART­
MENT OF CORRECTIONS, and any 
predecessor or successor agency; and 
RAYMOND W. GEARY, individually 
and in his official capacity as attor­
ney for the Department of Correc­
tions of Florida,

Defendants.

In accord with a Memorandum Opinion of this date, 
it is ORDERED:

1. This action is hereby finally certified as a, class 
action with Peners L. Griffin, Henry L. Dejerinett, and



App. 2

Alvin Smith as named plaintiffs and intervenor represent­
ing a class of all past, present, and potential black em­
ployees of the Florida Department of Corrections. The 
only employees barred from the class are those who left 
the employ of the Florida Department of Corrections more 
than 300 days before the filing of Griffin’s 1975 charge.

2. Judgment is for the defendants on the class claim 
that since March 24, 1972, the Florida Department of Cor­
rections has discriminated and continues to discriminate 
in its policies and practices against past, present, and po­
tential black employees.

3. Judgment is for the defendants on plaintiff Peners 
L. Griffin’s individual claim of racially discriminatory 
employment practices.

4. Judgment is for the defendants on plaintiff Henry 
L. Dejerinett’s individual claim of racially discriminatory 
hiring practices.

5. Judgment is for the plaintiffs on the issue that 
the correctional officer written examination previously 
utilized by defendants has an adverse impact on class 
members and is not justified by business necessity.

6. The parties shall meet in a good faith effort to 
settle the form of relief for the court’s finding of liability 
regarding the correctional officer written examination. 
The parties shall report to the court no later than thirty 
working days from the date of this order whether they 
were able to settle this issue or if not, their suggestion as 
to the best way to proceed on this issue.

7. The parties shall file a status report no later than 
thirty working days hence informing the court when 
Counts II and III will be ready for trial.



App. 3

8. The parties will likewise advise the court within 
thirty working days of this order whether they have been 
able to resolve the issue and amount of attorney’s fees.

9. The Clerk of the Court will enter judgment accor­
dingly.

DONE AND ORDERED this 25th day of August, 
1983.

/ s /  William Stafford 
WILLIAM STAFFORD 
CHIEF JUDGE



App. 4

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

TALLAHASSEE DIVISION

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

)
vs. )

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

Defendants. )

Case No. 
TCA-79-1016

(Filed Sept. 
8, 1983)

MOTION TO ALTER OR AMEND THE JUDGMENT

Plaintiffs move the Court for an order altering or 
amending the judgment in this case in the following re­
spects, and state:

1. The judgment entered by the Court in this case 
should be vacated, since Rule 54 precludes the entry of 
judgment as to fewer than all of the claims and all of the 
parties, unless the Court has made an express determina­
tion there is no just reason for delay. The Court has not 
made such an express determination, and it would be an 
extraordinary burden upon all of the parties to have this 
case piecemeal among the district and appellate courts. 
Moreover, unless the judgment is vacated these proceed­
ings may become further complicated by the necessity for 
prudent counsel to file a purely protective appeal.

2. The Court has completely overlooked Plaintiff 
Butler in its opinion, order, and judgment. Mr. Butler’s 
claims were largely uncontested by the Defendants.

3. Plaintiff Griffin presented a number of distinctly 
different claims to the Court for adjudication. The



Court’s opinion does not address most of these. These 
claims are outlined in Plaintiffs’ proposed findings of fact 
and conclusions of law.

4. The Court is bound by decisions of the United 
States Supreme Court. Moreover, this circuit operates un­
der the rule of binding precedent. Some of the Court’s 
statistical analyses violate rules of the United States Su­
preme Court and binding precedent of the Eleventh Cir­
cuit Court of Appeals. In International Brotherhood of 
Teamsters v. United States, 431 U.S. 324 (1977), the Su­
preme Court held a plaintiff may prove a prima facie ease 
of discrimination by comparing incumbent employees with 
the reasonably available labor pool. The burden then 
shifts to the Defendant to rebut the showing by demon­
strating Plaintiff’s proof is either insignificant, or the 
Defendants’ hiring practices have been racially neutral 
during the liability period. In this case, utilizing Dr. Ha­
worth’s availability pool of 15 to 16 percent, liability is 
demonstrated through fiscal 1977-78. If one compares the 
incumbent workforce in June of 1977 (Plaintiffs’ Exhibit 
A-5) with the percentage of blacks Dr. Haworth believed 
to be in the reasonable labor pool, statistically significant 
disparities are shown:

No. of Standard
Total Black Benchmark Deviations 

CO 1 2518 336 .153 2.73
As a benchmark, I ’ve used 15.3 percent, the percentage 

of blacks in Florida’s population, from the 1970 census. 
Either 15% or 16% produces similar results. Under Team­
sters the burden of showing racially neutral hiring during 
the liability period was the Defendants. They did not meet 
this burden.

App. 5



App. 6

Results are the same for earlier periods. Plaintiffs’ 
Exhibits A-3 and A-4 give the following results:

No. of Standard
Total Black Benchmark Deviations

1972 1066 55 .153 9.20
Fiscal Yr
1974-75 1648 202 .153 3.43

The Court also rejected gross hiring data produced 
by Plaintiffs. This rejection by the Court violates bind­
ing precedent of this circuit. The Defendants were under 
a statutory duty to maintain accurate hiring data. Their 
failure to do so should not bring disrepute upon the Plain­
tiffs’ case. In Fisher v. Proctor and Gamble Manufac­
turing Co., 613 F.2d 527 (5th Cir. 1980), the Defendant at­
tempted to defeat statistical data by arguing it was Plain­
tiffs’ responsibility to prove the percentage of blacks with 
the necessary skills and qualifications among applicants. 
The Court held:

Mindful of Hazelwood we nevertheless find that the 
Plaintiffs’ statistics are adequate to establish a prima 
facie case. First, a prima facie case may be shown 
without evidence of qualifications where the inference 
of discrimination is supported by a compelling level of 
racial underrepresentation in a sizeable work force, 
(citations omitted).
Fisher at p. 5444.

The incumbent data, even using Defendants’ expert esti­
mate of the available labor pool, shows a compelling level 
of discrimination in a sizeable workforce. Although the 
Defendants failed to meet their statutory duty to preserve 
hiring data, the data they did maintain shows a compelling



App. 7

level of racial underrepresentation in a sizeable workforce. 
To bold otherwise is contrary to binding precedent of this 
circuit.

SUPPORTING MEMORANDUM

The foregoing discussion adequately meets the local 
rule requirement for a supporting memorandum. How­
ever, these issues have been briefed in Plaintiffs’ proposed 
findings of fact and conclusions of law, and in the Plain­
tiffs’ most recent motion for partial summary judgment, 
filed at the conclusion of the statistical stage, filed Sep­
tember 7, 1982.

Respectfully submitted,
/s /  Jerry G. Traynham 
Jerry G. Traynham
PATTERSON & TRAYNHAM 
Attorneys at Law 
1215 Thomasville Road 
P.O. Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181 
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy 
of the foregoing was furnished, by prepaid U.S. Mail to 
Bruce A. Minnick, Esq., Assistant Attorney General, De­
partment of Legal Affairs, The Capitol, Suite 1501, Talla­
hassee, Florida 32301, this 6th day of September, 1983.

/s /  Jerry G. Traynham 
Jerry G. Traynham



App. 8

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

TALLAHASSEE DIVISION
PENERS L. GRIFFIN, )
et al., etc., )

)
Plaintiffs, )

)
vs. )

) Case No. TCA
LOUIE L. WAINWRIGHT, ) 79-1016
etc., et al., )

)
Defendants. )

)
------------------------------------------------- --  )

ORDER
(Filed Oct. 3, 1985)

In its Order entered August 25, 1983, this Court re­
affirmed its earlier ruling of July 30, 1982, regarding the 
illegality of the use by the Defendants of the Correctional 
Officer I written examination and directed the parties to 
meet in a good faith effort to settle the form of the relief. 
In status conferences held November 8, 1983, and Sep­
tember 11, 1985, the Court inquired as to the initial steps 
recommended by the parties for Stage II individual relief 
procedures. The Court is now satisfied that the folio-wing 
procedures are appropriate.

IT IS NOW ORDERED:

1. The present subclass for purpose of determina­
tion of individual relief from the effects of the adverse 
impact of the Correctional Officer I examination consists 
of all black persons who, between March 24, 1972 and the



App. 9

present, took and failed the Correctional Officer I written 
examination. The Defendants have contended that there 
is no subclass because there is no subclass representative 
who properly can prosecute this adverse impact claim. Al­
though the Court has ruled othewise, it is of the opinion 
that this determination involves a controlling question of 
law as to which there is substantial ground for difference 
of opinion and that an immediate appeal from this order 
may materially advance the ultimate termination of this 
litigation. The parties have agreed, and the Court deter­
mines, that the process of giving notice to the subclass 
and filing individual claims shall go forward even if an 
appeal is taken, on the basis of this court’s certificate, 
pursuant to 28 U.8.C. Section 1292(b). However, unless 
otherwise ordered by this Court or by the Court of Ap­
peals, no determination of individual claims shall be made 
during the pendency of the appeal.

2. The procedure for determination of individual re­
lief may include class-wide mathematical models or for­
mulas, individual hearings or a combination of these and 
other procedures. A decision as to the most appropriate 
procedure to implement in this litigation shall be deferred 
until the number of individual claims and their distribu­
tion by time and by geography are known. It is now ap­
propriate to give notice to the subclass and to permit in­
dividual claims to be filed. At the conclusion of the period 
established for filing individual claims, counsel for the 
parties are directed to report to the Court concerning 
recommendations for additional procedures to be followed.

3. Notice shall be given by mail, by posting, and by 
publication.



App. 10

4. Notice by mail shall be given to all subclass mem­
bers whose names and last known addresses can be deter­
mined from records of the Defendants and from the avail­
able records of any other agency of the State of Florida 
or of the United States. The parties and their counsel are 
directed to cooperate in the effort to identify subclass 
members from these records. The Defendants and their 
counsel are directed to use their good offices to insure that 
all such records are reasonably accessible to counsel for 
Plaintiffs, with the intent to minimize or eliminate the 
need for formal discovery in this process. The Defendants 
shall be responsible for compiling and maintaining a mas­
ter list of all subclass members whose names and last 
known addresses are determined by the means described 
in this paragraph. In addition, the Defendants shall com­
pile and maintain a “ race unknown” list of all persons 
who, by the means described in this paragraph, can be 
determined in to have taken and failed the Correctional 
Officer I written examination, and whose names and ad­
dresses can so be determined, but whose race is unknown. 
Notice by regular mail, with a copy of the claim form, shall 
be provided to all persons named on the master list and 
on the ‘ ‘ race unknown ’ ’ list.

5. In the event any notice sent by mail is returned 
undelivered by the United States Postal Service, an at­
tempt shall be made to determine a more recent or addi­
tional address or addresses for the person to whom such 
notice is directed, using those records described in para­
graph “ 4” and, where appropriate, telephone, city, and 
other available directories. To the extent such additional 
addresses are determined, additional notices and claim 
forms shall be mailed.



App. 11

6. A form of the notice by mail and of the claim form 
are attached to this order.

s. The Defendants shall compile a list of all news­
papers, periodicals, and other publications used by them 
in the recruitment of applicants for employment. Plain­
tiffs may add to this list the names of other publications. 
Any disagreement as to publications to be listed shall be 
presented to the Court for resolution.

8. A copy of the notice by publication is attached 
to this stipulation. This notice shall be placed as an ad­
vertisement in the regular news section of each listed pub­
lication. In daily newspapers, the advertisement shall be 
run no fewer than four times, including two Mondays and 
two Thursdays. In weekly publications, the advertisement 
shall be run no fewer than two times. In monthly publi­
cations, the advertisement shall be run at least once. The 
size of the advertisement in full-sized newspapers shall be 
no less than one-quarter of a page. In publications of 
tabloid or other size, the advertisement shall be not less 
than one-half page in size. A copy of the advertisement 
shall also be given to each employee of the Department of 
Corrections, which may be accomplished by publication, 
full page, on the outside of either the front or the back 
cover of the Correctional Compass.

9. The Defendants shall compile a list of all public 
or private agencies, organizations, and associations to 
whom notice of Department of Corrections job vacancies 
are sent or which are otherwise used by the Department in 
the employee recruitment process. Plaintiffs may add the 
names of other agencies, organizations, or associations to 
this list. Any disagreement as to inclusion on this list



App. 12

shall be presented to the Court for resolution. Copies of 
the notice by publication, suitable for posting, and of claim 
forms, shall be sent by the Defendants to each such organi­
zation listed with a request that the notices be posted or 
otherwise made public and that claim forms be given to 
persons requesting them. Copies of the notice shall also 
be posted on every bulletin board or other posting place 
used by the Department of Corrections to disseminate in­
formation to employees and/or to applicants for employ­
ment. Copies of the claim form shall be placed in all per­
sonnel offices of the Department of Corrections.

10. Plaintiffs may prepare a press release concern­
ing the claims procedure and may distribute it to the press. 
Prior to release, the contents shall be reviewed by the De­
fendants.

11. The schedule for the giving of notice and filing 
of claims is :

a. The Defendant shall prepare, serve and file with 
the Court (i) the initial master list of subclass members 
and list of examination failees whose race is unknown, 
compiled in the manner described in paragraph “4”, (ii) 
the list of newspapers, periodicals, and other publications, 
described in paragraph “ 7”, and (iii) the list of agencies, 
organizations, and associations, described in paragraph 
“ 9”, no later than December 6, 1985. Plaintiffs may serve 
and file lists of additions to the Defendants’ respective 
lists no later than January 10, 1986. If the Defendants 
object to any of Plaintiffs’ additions to items “ ii” and 
“ iii” , they shall serve and file their objections no later 
than January 24,1986.



App, 13

b. Notices shall be mailed to all persons on the 
amended master list and “ race unknown” list no later 
than February 14,1986.

c. Publication of the notice, as described in para­
graphs “ 7” and “ 8”, and delivery of notices and forms, 
as described in paragraph “ 9”, shall occur during the 
months of February and March, 1986. However, notices 
and forms shall be distributed to all personnel offices of 
the Department of Corrections no later than January 31, 
1986.

d. The process of attempting to locate additional ad­
dresses with respect to those subclass members whose no­
tices are returned undelivered by the U.8. Postal Service, 
described in paragraph “ 5”, shall be a continuing one. 
Defendants are directed to make available sufficient para­
legal and clerical staff to perform these tasks during the 
entire notice period.

e. The last day upon which a claimant may file a 
claim shall be June 2, 1986. Incomplete claim forms filed 
on or before that date shall be treated as though they were 
complete, for the purpose of determining whether the filing 
deadline has been met, if they provide enough information 
so that the identity of the claimant may be determined.

f. Upon showing cause, any party may apply to the 
Court for an extension or modification of this schedule.

12. The cost of giving notice shall be borne by the 
Defendants.



App. 14

DONE and ORDERED this 2nd day of October, 1985, 
at Tallahassee, Florida.

/ s /  William Stafford
WILLIAM STAFFORD 
Chief Judge



App. 15
Peners L. GRIFFIN and Henry L. 

Dejerinett, Plaintiffs-Appellees,

v.

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

No. 85-3831.

United States Court of Appeals,
Eleventh Circuit.

Aug. 7, 1987.

As Amended Sept. 23, 1987.

Action was brought charging Florida Department of 
Corrections with discrimination on behalf of class and 
motion was brought to decertify class. The United States 
District Court for the Northern District of Florida, No. 
79-1016, William Stafford, Chief Judge, denied motion to 
decertify class and allowed intervention of applicant for 
employment and appeal was taken. The Court of Appeals, 
T.joflat, Circuit Judge, held that: (1) incumbent employee 
could not represent, in civil rights action, class that in­
cluded applicants, and (2) plaintiff who filed charge with 
EEOC and non-filing plaintiff were not sufficiently sim­
ilarly situated to allow intervention under single filing 
rule.

Vacated.

Hatchett, Circuit Judge, dissented.

Jim Smith, Atty. Gen., Bruce Alexander Minnick, Asst. 
Attys. Gen., Mitchell D. Franks, Tallahassee, Fla., for de- 
fendants-appellants.



App. 16

Harry L. Witte, Jerry G. Traynham, Tallahassee, Fla., 
for plaintiffs-appellees.

Appeal from the United States District Court for the 
Northern District of Florida.

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). Beginning in 1973, Griffin fre­
quently sought promotion to higher-grade correctional of­
ficer positions, as well as various other positions. On each 
occasion, the FDOC turned him down.

In December 1974, Griffin’s supervisor fired him for 
disciplinary reasons. The next day, the Regional Super­
intendent 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 Com­
mission. The Commission found no just cause for Grif­
fin’s discharge and ordered the FDOC to reinstate him 
with back pay. The Florida District Court of Appeal af­
firmed the Commission’s decision, and the FDOC rein­
stated Griffin to his position.

* Honorable Joe Eaton, Senior U.S. District Judge for the South­
ern District of Florida, sitting by designation.



App. 17

Soon after Ms reinstatement, Griffin filed a com­
plaint with, the FDOC’s Equal Employment Opportunity 
Program Office, charging that his two dismissals were 
racially discriminatory. An investigator in that office 
wrote Griffin a month later and informed him of his con­
clusion 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 Em­
ployment Opportunity Commission (EEOC), detailing the 
events leading up to his allegedly discriminatory dis­
charges. A notation at the beginning of Griffin’s com­
plaint, probably made by an EEOC counselor, describes 
Griffin’s allegations of racial discrimination as also en­
compassing “ [sincerity 0f recruiting, hiring, and pro­
moting of minority groups within the Florida’s Division 
of Adult Corrections. Specific attention within the Com­
munity 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 decisons. In hring correctional of­
ficers, according 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 person seek-

(Continued on following page)



App. 18

Griffin sued ‘ ‘ individually and on behalf of all others 
similarly situated,” pursuant to Rule 23(b) (2) of the Fed­
eral Rules of Civil Procedure, seeking declaratory 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 at 42 U.S.C. §§ 2000e to 2000e-17 
(1982)), 42 U.S.C. § 1981 (1976),2 and 42 U.S.C. §1983 
(1976).3 The class identified in his complaint was com­

(Continued from previous page)
ing a position as a correctional officer is required to take a 
written examination. The Department of Administration de­
veloped the Correctional Officer I entry level test which con­
sists 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 ail laws and proceedings for 
the security of persons and property as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, pen­
alties, taxes, licenses, and exactions of 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 any 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 juris­
diction 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, sued 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

(Continued on following page)



App. 19

posed “ of all past, present and potential black American 
citizens and residents who have been, are or may be em­
ployees of the Defendants or applicants for employment. ’,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 hired.4 5 On March 10, 1981, based on a stipulation 
between the parties6 and without a hearing, the district

(Continued from previous page)
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 invidious discrimination in violation 
of the fourteenth amendment's equai protection clause.

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 al­
leged that the FDOC (a) failed to give him notice of the 
reason for his discharge and an opportunity to be heard be­
fore terminating his employment and (2) discharged him be­
cause of his race. Count II further alleged that because Chap­
ter 110 of the Florida Statutes, which governs state employ­
ment did not require the Department to give him notice, a 
hearing, or back pay, Chapter 110 was unconstitutional.

5. Dejerinett subsequently filed a timely charge of racial dis­
crimination 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.

6. The parties stipulated, among other things, that
[t]he allegations of race discrimination in the . . . Com­
plaint involve questions of law and fact which, under cur­
rent law in the United States Court of Appeals, Fifth Cir­
cuit, are common to the class, including statistical evi-

(Continued on following page)



App. 20

court preliminarily certified the case as a class action with 
Griffin and Dejerinett 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 Be- 
garding the Adequacy of the Preliminary Class Certified,” 
which called to the court’s attention a Supreme Court de­
cision rendered eleven days previously. That decision, 
General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 
72 L.Ed.2d 740 (1982), announced the appropriate stan­
dards courts should apply when determining class action 
certifications in the context of a Title VII suit, reversing 
a former Fifth Circuit decision permitting “ across-the- 
board” class actions that had been binding precedent in 
the new Eleventh Circuit.7 On J uly 8, 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

(Continued from previous page)
dence, evidence concerning the employment system of 
the State of Florida Department of Corrections, and the 
common legal principles applied to claims of race dis­
crimination. 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."

7. In B o n n e r v. C ity  o f  P rich a rd , 661 F.2d 1206, 1209 (11th Cir. 
1981) (en banc), this court adopted as binding precedent 
all decisions of the former Fifth Circuit handed down prior to 
October 1, 1981.



App. 21

rectional officer, failed the written, entry-level examina­
tion, 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 Grif­
fin held. The FDOC did not hire Smith, because he did 
not have a high school diploma or a general equivalency 
diploma (GED), a prerequisite for employment as a cor­
rectional 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 defend­
ants’ motion to decertify the class and permitted Smith to 
intervene9 because

Smith, [as] an unsuccessful applicant, certainly has 
an interest in this suit which seeks to challenge de­
fendants’ 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 [FDOC] ’s objective criteria was not

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

9. In its dispositive order, the district court did not address the 
intervenor's complaint, which was filed with Griffin, Dejeri­
nett, and Smith's joint motion for leave to allow Smith to 
intervene. Apparently, the court treated the intervenor's com­
plaint as an amendment to Griffin and Dejerinett's complaint 
because it ordered that the "action shall continue to be cer­
tified as a class with PENERS L. GRIFFIN, HENRY L. DEJERI­
NETT, and ALVIN SMITH as named plaintiffs representing a 
class of all past, present, and potential black employees of 
the State of Florida Department of Corrections."



fairly and adequately protected by the named plain­
tiffs. Alvin Smith is a proper representative for po­
tential black employees.

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 classifica­
tion, discipline, and termination 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 Corp., 398 F.2d 
496 (5th Cir.1968) (“ [OJnce 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 similarly situated. . . .”).

On July 30, 1982, the district court entered partial 
summary judgment 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 members 
which has not been justified by business necessity.’ The 
plaintiffs had sought summary judgment on two other is­
sues—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 fol­
lowing issues in favor of the defendants: whether the

App. 22

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



App. 23

FDOG's policies and practices discriminated against past, 
present, and potential black employees; whether the 
FDOC’s employment practices as to Peners L. Griffin 
were racially discriminatory; and whether the FDOC’s 
hiring practices as to Henry L. Dejerinett were racially 
discriminatory. The court entered judgment for the plain­
tiffs on the liability issue concerning the correctional of­
ficer examination, on which it had previously granted sum­
mary judgment for the plaintiffs.11 The issue of relief 
for the class of black persons who took and failed the cor­
rectional 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 Griffin, Dejerinett, 
and Smith to serve as named plaintiffs for a class that in­
cluded applicants with testing claims. We granted this 
appeal pursuant to 28 U.S.C. § 1292(b) (1982 & Supp. IH 
1985). Because we conclude that the district court incor­
rectly 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 stand-

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 com­
plaint). Those claims are still pending in the district court.



App. 24

mg to raise the claim (or claims) and who has satisfied the 
procedural requirements of Title VII.12 Second, the re­
quirements of Rule 23 of the Federal Rules of Civil Proce­
dure must be fulfilled; in other words, the individual plain­
tiff must be qualified to represent the members of the class 
in accordance with the four prerequisites of Rule 23(a),13 
and the action must be one of the three types Rule 23(b) 
identifies.14 We emphasize that any analysis of class cer-

12. This circuit has held that the conditions precedent to fil­
ing a Title VII suit are not jurisdictional, but rather are akin 
to a statute of limitations. A plaintiff's failure to satisfy the 
conditions precedent does not, standing alone, deprive fed­
eral district courts of subject matter jurisdiction. Ja ckso n  v. 
S ea b o a rd  C oast L in e  R .R ., 678 F.2d 992 (11th Cir.1982). Nev­
ertheless, "a plaintiff must generally allege in his complaint 
that 'all conditions precedent to the institution of the law­
suit have been fulfilled.'" Id . at 1010 (quoting Fed.R.Civ.P. 
9(c)).

13. Rule 23(a) provides as follows:
(a) P re re q u is ite s  to  a C lass A c t io n . One or more mem­

bers of a class may.sue or be sued as representative parties 
on behalf of all only if (1) the class is so numerous that 
joinder of all members is impracticable, (2) there are ques­
tions of law or fact common to the class, (3) the claims or 
defenses of the representative parties are typical of the 
claims or defenses of the class, and (4) the representative 
parties will fairly and adequately protect the interests of the 
class.

14. Rule 23(b) provides as follows:
(b) C lass A c tio n s  M a in ta in a b le . An action may be 

maintained as a class action if the prerequisites of subdi­
vision (a) are satisfied, and in addition:

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

(A) inconsistent or varying adjudications with respect 
to individual members of the class which would establish 
incompatible standards of conduct for the party opposing the class, or

(Continued on following page)



App. 25

tification 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 threshold must be met 
before any consideration of the typicality or claims or com­
monality 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 ad­
dress the question whether the named plaintiffs have rep­
resentative capacity, as defined by Rule 23(a), to assert 
the rights of others. See generally 2 A. Larson & L. Lar­
son, Employment Discrimination §§ 49.50-.51 (1986 & Supp. 
Nov. 1986).

(Continued from previous page)
(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 members 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 
declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact 
common to the members of the class predominate over 
any questions affecting only individual members, and that 
a class action is superior to other available methods for 
the fair and efficient adjudication of the controversy. The 
matters pertinent to the findings include: (A) the interest 
of 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 al­
ready commenced by or against members of the class; (C) 
the desirability or undesirability of concentrating the liti­
gation of the claims in the particular forum; (D) the diffi­
culties likely to be encountered in the management of a 
class action.



App. 26

A.

Under elementary principles of standing, a plaintiff 
must allege and show that he personally suffered injury. 
See Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 
898 (5th Cir.) (“ To meet the requirement for standing un­
der Article III, a plaintiff must establish either that the 
asserted injury was in fact the consequence of the defen­
dant’s action or 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 plain­
tiff 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 fed­
eral court is powerless to hear his grievance. This indi­
vidual injury requirement is not met by alleging “ that in­
jury has been suffered by other, unidentified members of 
the class to which [the plaintiff] belong[s] and which [he] 
purportfs] to represent.” Warth v. Seldin, 422 U.S. 490, 
502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975); see also 
Minority Police Officers A ss’n v. City of South Bend, 721 
F.2d 197, 202 (7th Cir. 1983) (“ Feelings of solidarity do 
not confer standing to sue.” ). Thus, a plaintiff cannot in­
clude class action allegations in a complaint and expect to 
be relieved of personally meeting the requirements of con­
stitutional 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 Vuyanich v. Republic Nat’I Bank, 723 F.2d 
1195, 1200 (5th Cir.), cert, denied, 469 U.S. 1073, 105 S.Ct.



App. 27

567, 83 L.Ed.2d 507 (1984). A named plaintiff in a class 
action who cannot establish the requisite case or contro­
versy between himself and the defendants simply cannot 
seek relief for anyone—not for himself, and not 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). More­
over, it is not enough that a named plaintiff can establish 
a case or controversy between himself and the defendant 
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 be­
tween 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 injure someone. The complaining party 
must also show that he is within the class of persons 
who will be concretely affected. Nor does a plaintiff 
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 subject.

Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 2783, 
73 L.Ed.2d 534 (1982) (citing Moose Lodge 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 initi­
ated the action, Peners L. Gfriffin,15 could, and did, allege

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. Dejerinett and Aivin Smith as named plaintiffs affected 
the class certification.



App. 28

injury as a result of the FDOC’s 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 already met the edu­
cational and testing requirements of a road prison correc­
tional officer and had been hired for that position, how­
ever, he suffered no injury as a result of the FDOC’s use 
of the written entry-level examination. See Payne v. Trav- 
enol Laboratories, Inc., 565 F.2d 895, 898 (5th Cir.) 
(“ [Named pjlaintiffs . . . possessed tenth grade educa­
tions and therefore lacked [constitutional] standing” to 
challenge tenth grade education requirement), cert, denied, 
439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Griffin 
thus lacked constitutional standing to assert a testing 
claim.17

16. Griffin satisfied the procedural 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(e) (1976), and receiving statutory notice of the right to sue 
his employer, see 42 U.S.C. § 2000e-5(f)(1). See g e n e ra lly  42 
U.S.C. § 2000e-5 (detailing conditions precedent to a Title 
VII action).

17. Griffin's complaint alleged that the FDOC had implemented 
policies and practices of discrimination, including "maintain­
ing a racially biased working environment" and "failing or re­
fusing 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 allegedly discriminatory 
work environment or its allegedly discriminatory promotion 
and discipline practices. Nor is there an allegation or show­
ing in the record that Griffin (or Dejerinett, who had been 
denied employment by the FDOC) suffered any specific harm

(Continued on following page)



App. 29

Accordingly, we hold that the district court erred 
when it permitted Griffin to raise the testing claim on be­
half of himself and on behalf of others. We hold in the 
alternative that even if Griffin somehow had constitutional 
scanding 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 representative capacity to 
assert the testing claim on behalf of those who took the 
FDOC’s written entry-level examination, failed it, and

(Continued from previous page)

resulting from the allegedly discriminatory work environment, 
ihus, Griffin (and Dejerinett) did not establish standing to 
challenge the FDOC's testing practices. C f. C ra y  v G re y ­
h o u n d  L in e s , 545 F.2d 169, 173-75 (D.C. Cir. 1976), c ite d  w ith
a p p ro va l in M e r ito r  Savings Bank v. V in so n , 477  US 57 __
106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). ' ' '

Assuming for the sake of argument, that Griffin (or De­
jerinett) had established standing to assert a testing claim 
we nevertheless believe that under G e n e ra l T e l C o  v  Fa l­
c o n , 457  U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), the 
court should not have presumptively held that Griffin satis­
fied the requirements of Rule 23(a) so as to allow him to rep­
resent a class of applicants with testing claims. Griffin's com­
plaint provided "an insufficient basis for concluding that the 
adjudication of his claim of [a racially discriminatory environ­
ment] would require the decision of any common question 
concerning the failure of [the FDOC] to hire more [black 
correctional officers]." See Fa lco n , 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 correctional 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 require­
ments of Rule 23(a). M



App. 30

were not hired.18 In other words, Griffin did not meet the 
prerequisites of Rule 23(a). We now turn to a discussion 
of Rule 23(a) and the Supreme Court’s interpretation of 
it in Falcon.

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 VTI class ac­
tions. 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 certifica­
tion order and announced that broad class treatment was 
appropriate where the “ Damoclean threat of a racially 
discriminatory policy hangs over the racial class [and] 
is a question of 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 ap­
pellant’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 discrimina­
tion.” Id.

18. In Fa lco n , the Supreme Court granted certiorari for the 
express purpose of discussing the contours of Rule 23(a) 
Fa lco n , 457 U.S. at 155, 102 S.Ct. at 2369. The Court did not 
question, in its opinion, whether the named plaintiff had 
constitutional standing.



App. 31

Under the across-the-board theory, many courts liber­
ally read the requirements 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 allegedly pervaded, 
in an across-the-board fashion, all of the employer’s per­
sonnel policies and practices. See, e.g., Gibson v. Local 
40, Int’l 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. Arlington 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

19. Although widely accepted, the across-the-board theory was 
not universally endorsed. S e e , e .g ., Ta y lo r v . S a few a y  S to re s , 
In c ., 524 F.2d 263, 270-71 (10th Cir.1975); K in sey  v . Legg , 
M a so n  & C o ., 60 F.R.D. 91 (D.D.C.1973), re v 'd  on  o th e r  
g ro u n d s su b  n o m , K in sey  v . F irs t R e g io n a l S e c ., In c ., 557 F.2d 
830 (D.C.Cir. 1977); W h ite  v . C a tes R u b b e r  C o ., 53 F.R.D. 412 
(D.Colo.1971); G resham  v. F o rd  M o to r  C o ., 53 F.R.D. 105 
(N.D.Ga.1970); H yatt v . U n ite d  A irc ra ft  C o rp ., 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 ap­
proach, Judge Godbold, cautioned in a specially concurring 
opinion that the approach announced in the majority's opin­
ion was not a replacement for precise pleadings that allow 
district courts to determine whether the requirements of Rule 
23(a) have been satisfied. S e e  Jo h n so n  v . G eo rg ia  H ig h w a y  
E xp ress , In c ., 417 F.2d 1122, 1125-27 (5th Cir.1969) (Godbold, 
]., specially concurring). Judge Godbold also observed that 
"an over-broad framing of the class" may be unfair and harm-

(Continued on following page)



App. 32

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.Ji;d.2d 740 (1982).20 In allegations quite similar to 
those made in Griffin’s initial complaint, the named plain­
tiff in Falcon claimed that his employer had denied him 
promotions because he was a Mexiean-American. He also 
alleged class claims on behalf of all Mexican-American em­
ployees of the company who had not been promoted, and 
all Mexiean-American applicants who had not been hired. 
Without holding an evidentiary hearing, the district court 
certified a class consisting of those employees and ap­

(Continued from previous page)
fu! to the absent class members: "what of the catastrophic 
consequences if the plaintiff loses and carries the fover-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 Su­
preme Court favorably discussed Judge Godbold's opinion 
when it rejected the across-the-board approach. See G en era l 
T e l. C o . v. F a lco n , 457 U.S. 147, 160-61, 102 S.Ct. 2364, 2372, 
72 L.Ed.2d 740 (1982).

20. Even before Falcon, the across-the-board approach was 
placed in doubt by the Supreme Court. In East Texas M o to r  
F re ig h t Sys. In c . v. R o d r ig u e z , 431 U.S. 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. Common questions of law or fact 
are typically present. But careful attention to the require­
ments of Fed. Rule Civ.Proc. 23 remains nonetheless indis­
pensable. The mere fact that a complaint alleges racial 
or ethnic discrimination does not in itself ensure that the 
party who_ has brought the lawsuit will be an adequate 
representative of those who may have been the real vic­
tims of that discrimination.



App. 33

plicants at one of the company’s facilities. After a trial, 
the district court found that the employer had not discrim­
inated against the named plaintiff in hiring, but did dis­
criminate against him in its promotion practices. As to 
the class claims, the court reached the converse conclusion, 
finding no discrimination in promotion practices, but find­
ing the hiring practices unlawfully discriminatory. On 
appeal, the Fifth Circuit, using the across-the-board ap­
proach, upheld the class certification:

[The across-the-board rule] permits an employee com­
plaining of one employment practice to represent an­
other complaining of another practice, if the plaintiff 
and the members of the class suffer from essentially 
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 YII does not relieve 
a private party plaintiff seeking to represent others from 
meeting the requirements of the class action rule21: “ An 
individual litigant seeking to maintain a class action under 
Title VII must meet The prerequisites of numerosity, 
commonality, typicality, and adequacy of representation’ 
specified in Rule 23(a). These requirements effectively 
‘limit the class claims to those fairly encompassed by the 
named plaintiff’s claims.’ ” General Tel. Co. v. Falcon, 
457 U.S. 147, 156, 102 S.Ct. 2364, 2369-70, 72 L.Ed.2d 740

21. 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. G e n e ra l T e l. C o  v E E O C  
446 U.S. 318, 100 S.Ct. 1698, 64 LEd.2d 319 (1980).



App. 34

(1982) (citations omitted). Although the Court recog­
nized “ that racial discrimination is by definition class dis­
crimination,” it said that the mere allegation of racial dis­
crimination cannot answer the questions posed by Rule 
23(a) or define the class that may be certified:

Conceptually, there is a wide gap between (a) an in­
dividual’s claim that he has been denied a promotion 
on discriminatory grounds, and his otherwise unsup­
ported allegation that the company has a policy of dis­
crimination, and (b) the existence of a class of per­
sons who have suffered the same injury as that indi­
vidual, 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 omit­
ted). Thus, evidence that an employee was denied a pro­
motion because of illegal considerations of race will not 
necessarily justify the additional inference, for example, 
that the employer has adopted a general policy of racial 
discrimination that is reflected in the employer’s other 
employment practices, such as hiring and testing. See 
Falcon, 457 U.S. at 158, 192 S.Ct. at 2371. The presump­
tion that general class claims are fairly encompassed with­
in 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.



App. 35

The district court’s error in Falcon can be traced to 
the named plaintiff’s complaint, which “ provided an in­
sufficient basis for concluding that the adjudication of 
his claim of discrimination in promotion would require the 
decision of any common question concerning the failure 
of petitioner to hire more Mexican-Americans. ” 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 employees 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 repudiated the across- 
the-board theory of Title VII class actions.22 No longer 
will one allegation of specific discriminatory treatment be 
sufficient to sustain a company-wide class action.23 No

22. ''Although Fa lcon  does not eliminate broad-based class 
actions p e r  se , it will be a rare situation indeed that will per­
mit the combining of hiring, promotion, and discharge claims 
in the same class." 2 A. larson & L. Larson, E m p lo ym e n t D is ­
c rim in a tio n  § 49.52(c)(2) (1986).

23. In F a lco n , 457 U.S. at 159, 102 S.Ct. 2371 (footnote omit­
ted, 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 
companywide class action. We find nothing in the statute 
to indicate that Congress intended to authorize such a whole­
sale expansion of class-action litigation."



longer will an employee complaining of racial discrimina­
tion, for example, in one employment practice necessarily 
be permitted to represent other employees complaining of 
racial discrimination in other practices. District courts 
must not presume that a named plaintiff has satisfied the 
typicality and commonality requirements of Eule 23(a). 
In practical terms, this means that, as a general rule, in­
cumbent employees cannot represent a class that includes 
applicants and that even a general policy of discrimina­
tion will not justify a class of both applicants and em­
ployees. 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 employee who alleges that he was a victim of a specific 
discriminatory employment practice may properly rep­
resent applicants when the employer used a biased testing 
procedure to evaluate both applicants and incumbent em­
ployees: “ a class action on behalf of every applicant or 
employee who might have been prejudiced by the test 
clearly would satisfy the commonality and typicality re­
quirements 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 
discrimination could justify a class of both applicants and 
employees “ if the discrimination manifested itself in hir­
ing and promotion practices in the same general fashion, 
such as through entirely subjective decisionmaking proc­
esses.” Id.

The situations the Supreme Court identified in foot­
note 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 situa­

App. 36



App. 37

tions are exceptions not because racial discrimination is 
by definition class discrimination, a necessarily valid prop­
osition underlying the across-the-board rule, Falcon, 457 
U.S. at 157, 102 S.Ct. at 2370, but because the commonality 
and typicality requirements of Rule 23(a) can be satis­
fied.24 If, after a rigorous analysis, a district court is sat­
isfied 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 certify the class. We 
caution, however, that although district court should give 
real meaning to Falcon’s footnote fifteen, that footnote 
should not be used to defeat the general dictates of Falcon. 
The footnote was not meant to sanction broad class ac­
tions 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

24. See 1 H. Newberg, N e w b e rg  on  C lass A c tio n s  § 3.17 (2d 
ed. 1985):

In the final analysis, through its rulings and examples, 
Fa lcon  instructs that the Rule 23(a) typicality requirement 
can be satisfied only by a showing of a sufficient inter­
relationship 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.

25. Our analysis takes into account that the district court had 
considerable discretion In deciding to certify the class. See, 
e.g., W a lk e r v. Jim  D a n d y  C o ., 747 F.2d 1360, 1363 (11th 
Cir.1984); Freem an  v. M o to r  C o n v o y , In c ., 700 F.2d 1339, 
1347 (11th Cir.1983).



App. 38

was filed in October 1979, almost three years before Falcon 
was decided, included allegations that the defendants dis­
criminated on the basis of race with their written entry- 
level examinations and in their hiring, assignment, disci­
pline, 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 em­
ployment, ” 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.”26 The 
only reference to Griffin’s ability to represent that class 
was this statement: ‘ ‘ The Plaintiff can fairly and ade­
quately represent the class.” The complaint’s only ref­
erence to Rule 23(a)’s commonality requirement was this 
statement: “ The conclusory questions of whether there is 
a general pattern and practice of discrimination by Defen­
dants and the question of whether certain practices consti­
tute illegal job discrimination are common mixed questions 
of fact and law to the class as a whole.” The complaint 
made no allegation whatsoever that Griffin could meet 
Rule 23(a)’s additional requirement of typicality.27

26. In his second amended complaint, Griffin made the fol­
lowing numerosity allegation:

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

27. The first reference to Rule 23(a)'s typicality requirement 
was in Griffin's second amended complaint, in which he al­
leged that "the claims of the Plaintiffs are typical of the 
claims of all other class members."



App. 39

Without an evidentiary hearing, the district court 
preliminarily certified 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 
certification ruling was based solely on a stipulation of 
the parties that under the law of the Fifth Circuit, the 
named plaintiffs met the commonality requirement of Rule 
23(a).28 The parties further stipulated that “ [t]he 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.”29 The 
parties made no relevant factual stipulations.

Soon after the Supreme Court decided Falcon, the de­
fendants moved the district court to vacate the order certi­
fying the class. The parties filed memoranda 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 defendants’ 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:

28. See  supra  note 6.
29. The defendants reserved the right to move the district 

court to decertify the class. S e e  su p ra  note 6.
30. As to the first requirement of Rule 23(a)—"the class is so 

numerous that joinder of all members is impracticable"— 
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."



App. 40

Plaintiffs have alleged a common practice and pattern 
of racial discrimination which affects defendants’ hir­
ing, promotion, job classification, disciplinary, and ter­
mination decisions. This general discriminatory pol­
icy commonly injures all members of the class of past, 
present, and potential black employees of the Depart­
ment. Plaintiffs maintain that they will utilize simi­
lar statistical data, similar historical background, and 
the same or similar witnesses to support their allega­
tions of class-wide discrimination. This court is sat­
isfied that the commonality requirement of Pule 23 
is met.

The district court found the typicality prerequisite 
satisfied, but 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 Dejer­
inett could not adequately represent those with objective 
testing claims:

Plaintiff Griffin certainly can adequately protect the 
interests of black employees who have claims of dis­
crimination in promotions, job classification, disci- 
cipline, 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 [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 
applicants. The class claim against discriminatory 
subjective hiring decisions is fairly encompassed in 
Dejerinett’s claim. This court, however, is concerned 
that the class claim against the Department’s objective 
screening criteria which have a disparate impact upon 
class members, especially the [FDOC] test, is not



App. 41

fairly and adequately protected by any 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 correctional 
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 
plaintiffs. Alvin Smith is a proper representative for po­
tential black employees.”

As to Griffin’s capacity to represent 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 insufficient basis by which the district court 
could have concluded that Griffin’s “claim [s] of discrimi­
nation in promotion [and discipline] would require the 
decision of any common question concerning 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

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

[the commonality and typicality 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 interests of the class members will be fairly and 
adequately protected in their absence.



App. 42

The district court found the commonality require­
ment satisfied because the “general discriminatory pol­
icy” Griffin alleged “ commonly injures all members of 
the class” and that in order “to support their allegations 
of class-wide discrimination,” Griffin would utilze “ sim­
ilar statistical data, similar historical background, and 
the same or similar witnesses.” As to the typicality re­
quirement, the district court found it satisfied because 
“ [p] lain tiffs allege that blacks are not hired in sufficient 
number because of facially neutral objective criteria, 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 discriminate against black appli­
cants.”

To us, the district court failed to appreciate the sig­
nificance 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 Steel Corp., 
709 F.2d 675, 680 (11th Cir. 1983) (“ [Named plaintiff] 
was . . . obligated to show, in at least a preliminary fashion,



App. 43

the required commonality between her claims and those of 
the putative class.” ) (citations omitted). Although the 
plaintiffs asserted that “ [wjhether a person impacted bv 
one employment practice may represent other persons im­
pacted 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 pro­
motion 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 conduct a rigorous Buie 23 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 Falcon, was no longer good 
law.

32. In support of its typically argument, the plaintiffs' memo­
randum of law cited H e b e rt v . M o n sa n to  C o ., 576 F.2d 77, 88 
(5th Cir.), va ca ted  a n d  d ism isse d  fo r  w a n t o f  ju r is d ic t io n , 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 claim­
ants are from different departments, appellant's claim is 
neither factually nor legally typical. We recognize, how­
ever, 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, al­
though of different job classifications, depended upon sta­
tistical evidence, and the statistics evidenced a policy of dis­
crimination, typically would be satisfied.

(Continued on following page)



App. 44

The district court’s commonality analysis amounts to 
nothing more than a presumption that racial discrimina­
tion as manifested in various employment practices raises 
a common question of law or fact. See Wheeler r. 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 enough.’'). The district court’s typicality 
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 discrimi­
nation 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 fas­
hion, 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 notwithstand­
ing, the pleadings demonstrated that any general policy 
of discrimination that the FDOC may have had did not 
manifest itself in the same general fashion.

When the Supreme Court used the term “ same gen­
eral fashion,” it gave an example: “ entirely subjective

(Continued from previous page)
In light of F a lco n , "general statistical evidence of underrepre­
sentation in the workforce will undoubtedly not suffice to jus­
tify a single class covering different types of discrimination 
such as in hiring promotion, and discharge." 2 A. Larson & L. 
Larson, E m p lo ym e n t D isc r im in a tio n  § 49.52(c)(2) (1986) (inter­
preting footnote 15 of Fa lco n , 457 U.S. at 159, 102 S.Ct. at 
2371).



App. 45

decisionmaking processes.” Significant proof that an em­
ployer makes both discriminatory hiring and promotion 
decisions using an entirely subjective decisionmaking proc­
ess for each employment practice is a manifestation of a 
general policy of discrimination operating in “ the same 
general fashion.” By qualifying “ subjective decision­
making processes” with “ entirely,” the Court implied that 
an employer’s general policy of discrimination manifested, 
for example, by an objective hiring practice and by a sub­
jective promotion practice would not be discrimination 
operating in “ the same general fashion” sufficient to 
justify a class of both applicants and employees.

The FDOC’s decisionmaking process for hiring cor­
rectional officers is objective: applicants must hold a 
high school diploma or a general equivalency diploma and 
must pass the written correctional officer examination. In 
contrast, the FDOC’s decisionmaking process for promot­
ing correctional officers, and other employees, is subjec­
tive : applicants for promotion need not hold advanced de­
grees 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 fifteen.

We therefore hold that Griffin, an incumbent correc­
tional officer complaining of a subjective decisionmaking 
process, could not represent a class that included those 
who may have been victims of a discriminatory objective 
decisionmaking 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 Dandy 
Co., 747 F.2d 1360, 1365 (11th Cir.1984) ( ’’Following Fal­
con . . . we hold that [plaintiffs’] complaint provided an



App. 46

insufficient basis for concluding that the adjudication of 
[their] claim of discrimination in hiring supervisory em­
ployees would require the resolution of common questions 
of law and fact concerning [the employer’s] discrimina­
tory 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 class representative with 
respect to hiring, promotion, or any other employment 
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 (Callaghan) 546 (D.D.C. Oct. 
15, 1982) (plaintiffs who alleged they suffered only pro­
motion discrimination could not represent across-the-board 
class claiming hiring, assignment, and training’ discrimina­
tion). In other words, Griffn, who could assert discipline 
and promotion claims under Title VII, did not have repre­
sentative capacity, within the meaning of Rule 23(a), to 
assert testing claims on behalf of others.33 We now ex­
amine whether the addition of Henry L. Dejerinett and 
Alvin Smith as named plaintiffs affected the class certi­
fication question.

III.

A.

Eight months after filing his complaint in district 
court, Griffin sought leave to amend his complaint to add

33. Because Griffin satisfied neither the commonality nor the 
typicality requirements of Rule 23(a), we need not address 
whether he could have been an adequate representative of the 
class. See Fed.R.Civ.P. 23(a)(4).



App. 47

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 applica­
tion process, to produce an educational degree or to take 
the written entry-level examination required of correc­
tional officer applicants. He was required, however, to 
have an interview. Dejerinett was not hired; instead, the 
FDOC hired a white 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 complaint and add De­
jerinett as a named plaintiff.

Dejerinett had standing to assert a subjective hiring 
claim.34 He applied for a clerical position, requiring no 
correctional officer examination or educational degrees, 
and was not hired. Because Dejerinett never took the cor­
rectional 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

34. There is some indication in the record that the Florida De­
partment of Administration, on the basis of testing, training, 
and experience, rated Dejerinett as well-qualified for the clerk 
position. We cannot tell from the record whether any testing 
done by the Department of Administration measured health, 
physical ability, or intelligence. In any event, because the rat­
ing 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 reason he was granted an interview), he did 
not allege that the Department of Administration's rating pro­
cess illegally discriminated against black applicants.



App. 48

hiring claim arising out of the FDOC’s correctional 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 alter­
native that even if Dejerinett somehow had constitutional 
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 representative 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.35 In other words, Dejerinett did not meet the pre­
requisites 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 correctional officer positions. In 
our view, applicants who were subjectively denied clerical 
positions cannot sufficiently identify with other appli­
cants who failed an objective written examination and, on 
that basis, were not hired for the higher-ranking position 
of correctional 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 applicants for supervisory positions, they did not 
sufficiently identify with other applicants for lower level 
labor jobs or employees complaining of disparate job as­
signments or pay.” ) The district court abused its dis­
cretion when, in light of Falcon, it continued to permit 
Dejerinett to represent those members of the class who

35. See sup ra  note 18.



App. 49

took and failed the written entry-level correctional officer 
examination.

B.

Intervenor Alvin Smith twice applied for the entrj^- 
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 requirements for the job. Later he obtained a GED, 
but he then failed the written correctional officer examin­
ation. Consequently, 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 examination 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 
Tailed the same test and were consequently not hired, we 
need not address that point. Smith did not file a timely 
charge of racial discrimination with the EEOC, a pre­
condition to a Title VII suit. See 42 U.S.C. §2000e-5(e) 
(1982); Jackson v. Seaboard Coast Line B.R., 678 F.2d 
992, 1010-11 (11th Cir.1982); see also supra note 12. 
Furthermore, as we discuss 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



App. 50

file an EEOC charge as a prerequisite to class member­
ship. 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 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 com­
plaint that is not otherwise defective. . . . Second, the in­
dividual 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 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 ob­
jective 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 smilar dis­

36. The O atis reasoning was extended to intervention in non­
class suits in W h e e le r  v. A m e rica n  H o m e  P ro d s. C o rn ., 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 O atis rationale was further extended in 
C ra w fo rd  v . U n ite d  S ta tes S te e l C o rp ., 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.



App. 51

criminatory treatment. Griffin alleged that the FDOC’s 
subjective promotion and discipline practices were illegally 
discriminatory. Smith alleged that the FDOC’s objective 
correctional officer examination illegally discriminated 
against black applicants. The FDOC’s promotion and dis­
cipline practices were not manifested in similar fashion 
to its hiring and testing practices. See Ezell v. Mobile 
Housing Bd., 709 F,2d 1376, 1381 (11th Cir.1983) (non- 
filing incumbent plaintiff’s discriminatory examination 
claim was not sufficiently similar to filing plaintiff’s dis­
criminatory discharge and broad-based, ongoing 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 IT.S. 
862, 103 S.Ct. 138, 74 L.Ed.2d 117 (1982) (because non- 
charging plaintiff’s hiring claim was not “ substantially 
identical” to incumbent employee’s claims of discrimatory 
treatment, single-filing rule did not apply). Although both 
employment practices could have been racially discrimina­
tory, that alone is not enough to implicate the second re­
quirement of the single-filing rule. Otherwise, “ inter­
vention [could] bootstrap the court’s jurisdiction to en­
compass claims regarding practices broader than the . . . 
claims properly assertable by the named plaintiffs.” 
Vuyanich v. Republic Nat’l Bank, 723 F.2d 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 
plaintiffs could assert), cert, denied, 469 U.S. 1073, 105 
S.Ct, 567, 83 L.Ed.2d 507 (1984); see also Wakeen v. Hoff­
man House, Inc., 724 F.2d 1238, 1246 (7th Cir. 1983) (“ [A] 
class member who does not meet the procedural prere­
quisites for waging a Title VII suit may not use the guise



App. 52

of a motion to intervene to take over as the sole class 
representative for someone who initiates but is not legiti­
mately able to continue a class action.”).

We also note that merely because a notation at the be­
ginning of Griffin’s EEOC complaint stated that Griffin’s 
charge also encompassed “ [sjincerity 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 per­
son 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 similarly situated.” Oatis, 398 F.2d 
at 497.37 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 constitutional re­
quirement of standing.

37. By "standing" the O atis court meant "the issues as to which 
[the employee] is aggrieved," O a tis , 398 F.2d at 499, citing 
Title Vll's enforcement provision that requires the EEOC to in­
vestigate the charges of a person claiming to be aggrieved, 42 
U.S.C. 2000e-5(a). By "standing," the O a tis court also meant, 
even if implicitly, personal injury, that is, constitutional stand­
ing. See id . at 498-99; see a lso  V u yan ich  v . R e p u b lic  N at'I 
Bank, 723 F.2d 1195, 1200-01 (5th Cir.) (interpreting O atis ' 
single-filing rule as implicating constitutional standing), cert. 
d e n ie d , 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984).



App. 53

IV.

In sum, based on standing principles and on the dic­
tates of Falcon, we hold that the district court erred when 
it certified the class with the named plaintiffs as represen­
tatives. None of the named plaintiffs—Griffin, Dejerinett, 
or Smith—should have been allowed 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.” Jackson, 678 F.2d at 
1011-12 (emphasis added). One of Griffin’s claims in his 
EEOC complaint was that the FDOC discriminated against 
black job applicants. Non-filing intervenor Smith’s claim 
arose “ out of similar discriminatory treatment,” 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 discrimination 
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 ma­
jority’s reasoning is based upon its failure to differentiate 
between the policy underlying the standing requirement in



federal court and the policy underlying the single filing 
rnle in an EEOC action. The policy underlying the stand­
ing requirement is to ensure that a party litigating an is­
sue has a concrete stake in the outcome of the case, and is 
therefore motivated to vigorously litigate the issues. The 
policy underlying 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); Oatis 
v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 
1968). The purpose underlying the EEOC filing require­
ment is therefore to promote the resolution of Title VII 
claims out of court. The EEOC proceeding is not designed 
as a way-station on the road to the federal courthouse.

By asserting a hiring grievance in his EEOC com­
plaint, Griffin eusured ‘ ‘ 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 identi­
cal to the claim of discriminatory hiring practices as­
serted in Griffin’s complaint before the EEOC, invoking 
the single filing rule will not frustrate the purpose of the 
EEOC filing requirement: 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.

App. 54



App. 55

In short, the majority has grafted the constitutional 
standing requirement for parties litigating in federal dis­
trict court onto the filing requirements for persons alleg­
ing Title VII claims before the EEOC. Such a require­
ment does not, and never has, existed. The majority, how­
ever, 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 to raise, he may bring an action for himself and 
the class of persons similarly 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 preced­
ing the language relied upon by the majority in this case. 
That sentence states, “ If it is impossible to reach a settle­
ment with one discriminatee, what reason would there be 
to assume the next one would be successful.” Oatis, 398 
F.2d at 498. In short, the coui’t in Oatis was not faced with 
the question of whether an EEOC complainant could effec­
tively file claims with the EEOC even though the com­
plainant would not have standing to assert the claim in 
federal district court. The majority’s application of con­
stitutional standing requirements to the EEOC complain­
ant puts the EEOC in the nonsensical position of having 
to anticipate how the federal district court will rule on the 
complainant’s standing to litigate various claims if the 
EEO!C does not resolve them. Such a rule will result in 
the EEOC narrowing its resolution of claims to those 
which it anticipates the complainant will have standing to 
sue upon in federal district court, regardless of the ap­



App. 56

parent 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 re­
quirement : to resolve Title VII claims out of court.

Title 42 U.S.C. §2000e-5(b) says:

Whenever a charge is filed by or on behalf of a per­
son claiming to be aggrieved, or by a member of the 
Commission, alleging that an eployer . . . 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 investigation of claims which the complain­
ant will have standing to bring in a federal court. Any 
suggeston in Oatis of such a requirement is dicta that is 
in conflict with the intent of the statute that the 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.



App, 57

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 85-3831

PENERS L. GRIFFIN and 
HENRY L. DEJERINETT,

Plaintiffs-Appellees,
versus

RICHARD L. DUGGER, Secretary of the 
Florida Department of Corrections, et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Northern District of Florida

ON PETITION(S) FOR REHEARING AND 
SUGGESTION(S) OF REHEARING IN BANC

(Opinion 8/7/87, 11 Cir., 198—-, —F.2d—).
(OCTOBER 30, 1987)

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

PER CURIAM:

(V) The Petition(s) for Rehearing are DENIED and no 
member of this panel nor other Judge in regular active 
service on the Court having requested that the Court be 
polled on rehearing in banc (Rule 35, Federal Rules of Ap­
pellate Procedure; Eleventh Circuit Rule 35-5), the Sug­
gestion^) of Rehearing In Banc are DENIED.

( ) The Petition(s) for Rehearing are DENIED and the
Court having been polled at the request of one of the mem­
bers of the Court and a majority of the Circuit Judges



App. 58

who are in regular active service not having voted in favor 
of it (Rule 35, Federal Rules of Appellate Procedure; 
Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehear­
ing In Banc are also DENIED.

( ) A member of the Court in active service having re­
quested a poll on the reconsideration of this cause in banc, 
and a majority of the judges in active service not having 
voted in favor of it, Rehearing In Banc is DENIED.

ENTERED FOR THE COURT:
/s /  Gerald B. Tjoflat

United States Circuit Judge

^Honorable Joe Eaton, Senior U. S. District Judge for the South­
ern District of Florida, sitting by designation.



App. 59

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

Plaintiffs and Intervenors

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

TALLAHASSEE DIVISION

vs. TCA 79-1016-WS

RICHARD L. DUGGER, etc., et al.,

Defendants.
---------------------------------------------------- /

MOTION FOR LEAVE TO AMEND COMPLAINT

Pursuant to Rule 15, Federal Rules of Civil Proce­
dure, and the Opinion of the United States Court of Ap­
peals for the Eleventh Circuit, Griffin v. Dugger, 823 F.2d 
1476 (11th Cir. 1987), Plaintiffs and Intervenors move for 
leave to amend the Complaint. Pursuant to General Rule 
11 of this Court, the amended complaint, captioned “ Third 
Amended Complaint, Intervenor Smith’s Amended Com­
plaint, and Intervenors’ Complaint” , is filed with this 
Motion.

The amended pleading responds to the teaching of 
Griffin v. Dugger, supra, by:

1. Setting forth facts which establish Plaintiff Grif­
fin’s Article III standing to file his 1975 Charge of Dis­
crimination, which alleged hiring discrimination, and the 
complaint in this action;

2. As an alternative route to exhaustion of adminis­
trative remedies, by setting forth the facts regarding Inter-



App. 60

venor Smith’s filing* of his own Charge of Discrimination 
and receipt of his own Notice of Eight to Sue. Smith’s 
Charge and Notice were not before this Court earlier be­
cause, under the single-filing rule and the orders of this 
Court regarding* class certification, they were previously 
unnecessary and irrelevant; and

3. As another alternative route to exhaustion of 
administrative remedies, by setting forth the facts regard­
ing Intervenor P latt’s Charge of Discrimination and No­
tice of Eight to Sue.

With respect to Plaintiffs’ and Intervenor Butler’s 
claims of disparate impact of subjective factors/disparate 
treatment tried in this litigation, the amended pleading 
also conforms to the evidence adduced at trial and to the 
legal theories advanced regarding that evidence, as pro­
vided by Paragraph (b) of Eule 15.

Eespectfully Submitted
/s /  Harry L. Witte

Jerry G. Traynham
PATTEESON & TEAYNHAM 
P.O. Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181
ATTOENEYS FOE PLAINTIFFS



App. 61

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore­
going has been provided by U.S. Mail, postage prepaid, to 
Harry F. Chiles, Assistant Attorney General, The Capitol 
—Suite 1501, Tallahassee, Florida, 32301, and to Bruce A. 
Minniek, Esquire, Mang, Rett & Collette, P.A., Suite 740 
Barnett Bank Bldg., P.O. Box 11127, Tallahassee, FL. 
32302-3127, this 10th day of February, 1988.

/s /  Harry L. Witte



App. 62

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

Plaintiffs and Intervenors,

vs. TCA 79-1016-WS

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

TALLAHASSEE DIVISION

RICHARD L. DUGGER, etc., et al.,

Defendants,
------------------------------------ /

MOTION FOR LEAVE TO AMEND 
INTERVENOR SMITH’S COMPLAINT

Pursuant to Rule 15, Federal Rules of Civil Procedure, 
and the Opinion of the United States Court of Appeals for 
the Eleventh Circuit, Griffin v. Dugger, 823 F.2d 1476 
(11th Cir. 1987), Plaintiffs and Intervenors move for leave 
to amend Intervenor Smith’s Complaint. Pursuant to 
General Rule 11 of this Court, Intervenor Smith’s amended 
complaint, captioned “ Third Amended Complaint, Inter­
venor Smith’s Amended Complaint, and Intervenors’ Com­
plaint” , is filed with this Motion.

As to Smith, the amended pleading responds to the 
teaching of Griffin v. Dugger, supra, by:

1. Setting forth facts which establish Plaintiff Grif­
fin’s Article III standing to file his 1975 Charge of Dis­
crimination, which alleged hiring discrimination, and the 
complaint in this action; and

2. As an alternative route to exhaustion of adminis­
trative remedies, by setting forth the facts regarding



App. 63

Smith’s filing of his own Charge of Discrimination and re­
ceipt of his own Notice of Eight to Sue. Smith’s Charge 
and Notice were not before this Court earlier because, un­
der the single-filing rule and the orders of this Court re­
garding class certification, they were previously unneces­
sary and irrelevant.

Respectfully Submitted
/s /  Harry L. Witte

Jerry G. Traynham
PATTERSON & TRAYNHAM 
P.O. Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181
ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore­
going has been provided by U.S. Mail, postage prepaid, to 
Harry F. Chiles, Assistant Attorney General, The Capitol 
—Suite 1501, Tallahassee, Florida, 32301, and to Bruce A. 
Minnick, Esquire, Mang, Rett & Collette, P.A., Suite 740 
Barnett Bank Bldg., P.O. Box 11127, Tallahassee, FL. 
32302-3127, this 10th day of February, 1988.

/s /  Harry L . Witte



App. 64

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

Plaintiffs and Intervenors,

vs. TCA 79-1016-WS

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

TALLAHASSEE DIVISION

RICHARD L. DUGGER, etc., et al.,

Defendants,
---------------------------------------------------- /

MOTION TO INTERVENE

Pursuant to Rule 24, Federal Rules of Civil Procedure, 
and the Opinion of the United States Court of Appeals for 
the Eleventh Circuit, Griffin v. Dugger, 823 F.2d 1476 
(11th Cir. 1987), Samuel Platt, David Baber, Romeo Co- 
zart, Marvin Jones and Michael Oyefesobi move to inter­
vene in this action to protect their interests and the inter­
ests of the class of all black applicants for employment 
with the Florida Department of Corrections and its pre­
decessor agencies who, since March 24, 1972, have been 
denied employment or consideration for employment by 
reason of their scores on the Correctional Officer written 
examination.

Intervenors are black persons who have been denied 
Correctional Officer employment with the Florida Depart­
ment of Corrections and/or its predecessor agencies be­
cause of race, on the basis of their scores on the Correc­
tional Officer written examination. They seek to inter­
vene in this action as a matter of right, pursuant to Para­



App. 65

graph (a) of Rule 24, since they and the class claim an in­
terest in the Defendants’ illegal practice of using* the Cor­
rectional Officer written examination as an employee selec­
tion procedure. This Court has ruled that the challenged 
practice violates Title VII, since the examination has an 
adverse impact on black applicants and is not validated. 
Under the decision in Griffin v. Dugger, supra, Interven­
ers and the class are so situated that the disposition of 
this action may as a practical matter impair or impede 
their ability to protect their interests.

Pursuant to Paragraph (c) of Rule 24, Intervenors’ 
complaint, captioned “ Third Amended Complaint, Inter- 
venor Smith’s Amended Complaint, and Intervenors’ Com­
plaint,” is filed with this Motion. That pleading sets forth 
the claims regarding the Correction Officer written exam­
ination, for which intervention is sought.

Respectfully Submitted
/s /  Harry L. Witte 

Jerry G-. Traynham
PATTERSON & TRAYNHAM 
P.O. Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181
ATTORNEYS FOR PLAINTIFFS



App. 66

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore­
going has been provided by U.S. Mail, postage prepaid, to 
Harry F. Chiles, Assistant Attorney General, The Capitol 
—Suite 1501, Tallahassee, Florida, 32301, and to Bruce A. 
Minnick, Esquire, Mang, Rett & Collette, P.A., Suite 740 
Barnett Bank Bldg., P.O. Bos 11127, Tallahassee, FL. 
32302-3127, this 10th day of February, 1988.

/s /  Harry L. Witte



App. 67

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

TALLAHASSEE DIVISION

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

Plaintiffs and Intervenors,

vs- TCA 79-1016-WS

RICHARD L. DUGGER, etc., et al.,

Defendants,
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MOTION TO RECERTIFY CLASS 
AND

REQUEST FOR EVIDENTIARY HEARING

Pursuant to Rule 23, Federal Rules of Civil Proce­
dure, Plaintiffs and Intervenors move the Court to recer­
tify the class of all black applicants for employment with 
the Florida Department of Corrections and its predecessor 
agencies who, since March 24, 1972, have been denied em­
ployment or consideration for employment by reason of 
their scores on the Correctional Officer written examina­
tion, with Intervenors Alvin Smith, Samuel Platt, David 
Baber, Romeo Cozart, Marvin Jones and Michael Oyefe- 
sobi as the representative parties.

All requirements of Rule 23 are satisfied:

1. This class is so numerous that joinder of all mem­
bers is impracticable. More than two thousand (2,000) 
black applicants have been denied employment, or consid­
eration for employment, by reason of their scores on the 
Correctional Officer written examination. More than four­



App. 68

teen hundred (1400) persons have filed claims in this law­
suit for relief from such discriminatory denial of employ­
ment.

2. There are questions of law or fact common to this 
class. The common questions of law involve the applica­
tion of the principles of disparate impact, enunciated in 
Griggs v. Duke Power Co. and its progeny and in the Uni­
form Guidelines on Employee Selection Procedures, to the 
Correctional Officer written examination. The common 
questions of fact include the disparate impact of the ex­
amination and whether its is a valid predictor of job per­
formance and justified by business necessity. These com­
mon questions of law and fact have been resolved in favor 
of the class by the Court’s order granting partial sum­
mary judgment (Doc. 157).

3. The claims of the representatives of this class are 
typical of the claims of the class. Intervenors Smith, 
Platt, Baber, Cozart, Jones and Oyefesobi all have been 
denied employment because they failed the Correctional 
Officer written examination. Intervenor Platt also was 
denied employment because of a subsequent low score on 
that examination.

4. The representatives of this class will fairly and 
adequately protect the interests of the class. They have 
done and continue to do everything possible, within the 
dramatically changing contours of Title VII law, to pro­
tect the interests of this class. In 1982, when Falcon v. 
General Telephone Co. of the Southwest cast doubt upon 
the ability of the then class representatives to meet the 
requirements of Rule 23, Intervenor Smith immediately 
came forward to take up the banner on behalf of this class.



App. 69

Likewise, when the Court of Appeals vacated the 1982 or­
der certifying the class, Intervenors Platt, Baber, Cozart, 
Jones and Oyefesobi immediately indicated their desire 
and ability to assist as class representatives. The class is 
represented by counsel who are experienced in complex 
Title VII litigation, and who have made and continue to 
make every effort in this litigation to weather the unpre­
dictable storms of Title VII law.

5. This class seeks certification pursuant to Rule 
23(b)(2) because the Defendants have denied employment 
to all members of the class on grounds generally applicable 
to the class, to-wit, the Correctional Officer written exam­
ination which has an adverse impact on black applicants, 
thereby making injunctive relief appropriate.

Request for Evidentiary Hearing

Plaintiffs and Intervenors request an evidentiary 
hearing on this Motion, to supplement the existing record.

Respectfully Submitted
/s /  Harry L. Witte

Jerry Gr. Traynham
PATTERSON & TRAYNHAM 
P.O. Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181
ATTORNEYS FOR PLAINTIFFS



App. 70

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore­
going has been provided by U.S. Mail, postage prepaid, to 
Harry F. Chiles, Assistant Attorney General, The Capitol 
—Suite 1501, Tallahassee, Florida, 32301, and to Bruce A. 
Minnick, Esquire, Mang, Rett & Collette, P.A., Suite 740 
Barnette Bank Bldg., P.O. Box 11127, Tallahassee, FL. 
32302-3127, this 10th day of February, 1988.

/s /  Harry L. Witte