Sarah L. ABRON, Appellee, v. BLACK & DECKER (U.S.) INC., Appellant ( 1981 )

PER CURIAM:

Invoking both Title VII, 42 U.S.C. § 2000e, et seq., and § 1981, 42 U.S.C., the plaintiff, a black woman, has filed this discrimination suit against her former employer, the defendant Black & Decker. In her complaint she asserts both an individual and a broad class wide claim. Her individual claim of discriminatory treatment consisted of the denial by the employer of her request, upon return to work after medical leave, for a temporary transfer to light work for reasons of health as recommended by her physician, although she contended it was routine for white employees to be granted temporary transfers in such circumstances. The allegations in support of the class wide action followed the broad across-the-board allegations of employment discriminations made by the plaintiff in Barnett v. W. T. Grant Company, 518 F.2d 543 (4th Cir. 1975). The defendant initially moved to strike the allegations of across-the-board discrimination, both on the ground that the plaintiff lacked standing to assert such a claim, and on the ground that the claim was beyond the scope of either her charge as filed with the Maryland Commission on Human Relations or as encompassed within' the investigation of such charge by the Commission. The district court denied the motion on -both grounds.¹

The plaintiff countered these motions of the defendant with her own motion for class certification. After argument, the district court overruled the defendant’s objections to this motion of the plaintiff and granted certification. It defined the class certified as “all black persons who either have been employed, are currently employed, or will be employed, or will seek to be employed by the Black & Decker Manufacturing Company at its Hampstead, Maryland, plant, on or after January 31, 1971” and designated the “aspects of employment * * * [to] be considered in regard to the charge of discrimination [to] include: recruitment, job classification; hiring; assignment; promotion; transfer; discipline; discharge; benefits; apprenticeship training programs; compensation; terms, conditions and privileges of employment.” The district court then severed for trial the issues of liability and back pay and proceeded to trial on the issue of liability.

At the conclusion of the trial on liability, the district court found racial discrimination in the treatment by the defendant of plaintiff’s request for lighter work upon her return to work after a medical leave. This treatment, it found, warranted the plaintiff’s action in quitting. In her attempt to prove a class action, the plaintiff relied basically on statistical employment of evidence,² analyzed in connection with the Maryland Standard Metropolitan Statistical Analysis (SMSA),³ and the district court rested its finding of class discrimination in hiring, recruitment, assignment and classification, promotion and transfer (permanent), and operation of the apprenticeship program substantially on the same statistical evidence. On the basis of its findings of class discrimination, the district court ordered the defendant to develop a program of affirmative action which should have as its “appropriate general goal” the achievement of “a percentage of black employment in the basic EEO categories equal to one half the figures for experienced black employment in the Baltimore SMSA reported in the 1970 census.” ⁴ It, also, ordered the development of “a system of regular, active and intensive recruiting at high schools, secretarial and vocational schools within Baltimore City with the purpose of attracting qualified black applicants to work at the Hampstead plant; particularly in the crafts, mechanical, and clerical areas.” The Court further established a procedure whereby any employee who had not received a promotion or transfer as requested might file a claim based on such denial, whereupon the defendant would have “the burden of proving * * * that claimants are not eligible for the job for which they claim to have been denied promotion or transfer * * The defendant was ordered to “periodically notify” not only all “[cjurrently employed black employees,” but also the NAACP and the Urban League of its progression in its affirmative action program. It concluded by awarding attorney’s fees to plaintiff’s counsel.

In its final order at this stage of the proceeding, the district court, 439 F.Supp. 1095, pursuant to 28 U.S.C. § 1292(b), granted leave to either of the parties to apply to this Court “for leave to appeal” any of the several orders entered in the action. Upon petition this Court granted leave to appeal and the various orders of the district court are before us for review. We affirm in part, reverse and remand in part.

The critical issue on appeal is the matter of class certification and not the plaintiff’s individual claim. We recognize the strength of the defendant’s argument against the plaintiff’s individual claim but it was a claim that rested on disputed facts, which were resolved adversely to the plaintiff’s position by the district court. We are unable to hold the findings of the district court on these disputed facts clearly erroneous and thus we affirm the findings and conclusions of the district court on the plaintiff’s individual claim. We are, however, constrained by controlling decisions of the Supreme Court and of this Court to reverse the class certification made in this case and to set aside accordingly the findings and conclusions of liability, together with the relief granted by the district court in connection with the class claim.

The governing principles on the right of a plaintiff to maintain a class action were stated recently in East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). In that case, the individual claim of discrimination by the plaintiffs was the refusal of the San Antonio terminal manager of the defendant trucking line to approve their applications for transfer to “road” jobs.⁵ The question was whether such plaintiffs, with the unique claim of discrimination, could mount a class action concerning discrimination in initial job assignments.⁶ The Court answered the question in the negative, saying the plaintiffs “were not members of the class of discriminatees they purported to represent.” ⁷ It proceeded to declare that a class action may be maintained only by persons “ ‘possessing] the same interest and suffering] the same injury’ as the class members;”⁸ and that, since the plaintiffs in this particular case had suffered no discrimination in their hiring or initial assignment, they were in no position to mount a classwide attack on the hiring or initial assignment policies of the employer.⁹

We followed Rodriguez in Hill v. Western Elec. Co., Inc., 596 F.2d 99 (4th Cir. 1979).¹⁰ As we have said there, “[i]n Rodriguez, the Supreme Court emphasized that a class representative must ‘possess the same interesas] and suffer the same injury’ as the class members they seek to represent.”¹¹ We accordingly held in Hill that plaintiffs complaining of racial discrimination suffered by them in assignments and promotions could not represent as class representatives persons denied employment on racial grounds. That case is dispositive against class certification in this case on any ground other than that for which plaintiff claims to have suffered injury (i.e., temporary assignment for medical reasons to lighter work).

The plaintiff has never asserted any claim of discrimination other than in the denial of a temporary transfer to light work on the basis of a doctor’s certificate. That was the claim she set forth in her charge filed with the Maryland Commission on Human Affairs.¹² It was the claim investigated by the Commission and it was the claim on which that Commission made a finding of probable cause.¹³ The investigation by the Maryland Commission revealed only five other like requests for temporary transfers for medical reasons by employees of the defendant and all were granted.¹⁴ It was plaintiff’s claim that hers was the only such request that had ever been denied. Her claim was thus a solitary one that could not support a class certification. Nor, for that matter, did the district court certify a class embracing the plaintiff’s specific claim.

The class primarily certified by the district court embraced discriminatees in hiring, and the affirmative action ordered by the district court in its order was basically directed at hiring practices. The plaintiff, however, suffered no injury as a result of any such practices. By her testimony, she applied for work and was promptly hired. She lacked any standing to represent a class of persons who had been denied employment, whether affirmatively or by reason of a failure to recruit. She had never requested a transfer, except a temporary one until she regained her full health. She filed no request for promotion and was denied it. In her testimony she made no reference to the apprenticeship program nor had she stated it as a ground of her complaint as filed with the Commission. Never having been discriminated against in hiring, or recruitment, or promotion, or inclusion in the apprenticeship, or transfers (except for the unique one she asserted), there was no basis for a class certification in the case. It follows that, without any authority for a class certification,¹⁵ the district court erred in certifying a class and in granting any relief on the basis of such erroneous certification. The cause is accordingly remanded, with instructions to grant plaintiff relief on her individual claim, but to set aside and void all class relief granted. It follows, too, that the award of attorney’s fees, the amount of which was unquestionably determined by the class action aspect of the case, is remanded to the district court for reconsideration in the light of the foregoing disposition of the class action.

AFFIRMED IN PART, VACATED IN PART, and REMANDED IN PART.

1 . While the defendant has appealed the denial of this motion, it is unnecessary to consider such point in view of our subsequent disposition of the class certification issue.

2 . For a late statement on the proper use of statistical evidence in this context, see Beazer v. New York City Transit Authority, 440 U.S. 568, 99 S.ct. 1355, 59 L.Ed.2d 587 (1979). For a comment on the rule as announced in that case, see Friedman, The Burger Court and the Prima Facie Case in Employment Discrimination Litigation: A Critique, 65 Cornell L.Rev. 1 at 50:

“The rigorous standard for statistical proof of discriminatory impact reflected in the Beazer opinion suggests that the Court is ignoring its prior decisions and reformulating its position on this critical issue. If Beazer foreshadows the rejection of the use of general population data and the limitation of the presentation of statistics restricted to those of actual applicants and employees, it represents the imposition of another onerous burden upon the prosecution of Griggs-type claims.”

3 . One of the contested issues in the case was the propriety of relying on the Maryland Standard Metropolitan Statistical Analysis for the plaintiffs claim of class discrimination. It was the defendant’s position that its use was disproportionately weighed in favor of the plaintiff by the improper inclusion in such analysis of the racial divisions in the population of the City of Baltimore. The defendant’s plant was located some thirty miles from the City of Baltimore and was not served by any main highway from that City. Out of a work force at such plant that fluctuated from 2400 to over 3000, less than 75 lived in the City of Baltimore and of this number little more than a third were black. The City of Baltimore had approximately 88% of the black population which was included in the Maryland Standard Metropolitan Statistical Analysis. Thus, it was solely the inclusion of the City of Baltimore as a logical area from which the defendant could be expected to draw its work force that, according to the defendant, enabled the district court to find a prima facie case of discriminatory impact in this class action.

4 . The district court apparently recognized some question about the reasonableness of including the City of Baltimore in assessing a defendant’s reasonable employment force and thus sought to compensate for this by discounting the effect of such inclusion on the affirmative action quota. But the court took no note of the fact that, by including the City of Baltimore, with its overwhelming concentration of black population (as contrasted with the rest of the SMSA), it was possibly overcompensating for that inclusion by the effect it gave to the figures for black population in the City of Baltimore.

5 . Id., 403-04, 97 S.Ct., at 1896.

6 . Id., 404, 97 S.Ct., at 1897.

7 . Id., 403, 97 S.Ct., at 1896.

8 . Id., 403, 97 S.Ct., at 1896.

9 . Id., 404, 97 S.Ct., at 1897.

10 . Earlier in both Shelton v. Pargo, Inc., 582 F.2d 1298, at 1312-13 (4th Cir. 1978), and in Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 904, 906, n. 3 (4th Cir. 1978), we had recognized that Rodriguez denied a plaintiff the right to maintain a class action (with respect to) “a discrimination practice to which [he] had not personally been subjected.”

11 . Id., 101.

For other decisions reaching the same result and adopting the same construction of Rodriguez, see DeGrace v. Rumsfeld, 614 F.2d 796, 809 (1st Cir. 1980), Scott v. University of Delaware, 601 F.2d 76, 87 (3d Cir. 1979), and Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 532 (5th Cir. 1978).

In Scott, the Court said:

“Several courts have held that a named plaintiff who challenges a defendant’s discriminatory promotion practices may not represent a class contesting the defendant’s hiring practices because these claims are insufficiently similar.” (Italics in opinion.) n. 23.

In Johnson v. American Credit Co., Judge Wisdom said:

“A fundamental requirement is that the representative plaintiff must be a member of the class she wishes to represent. See East Texas Motor Freight System, Inc. v. Rodriguez, 1977, 431 U.S. 395, 403, 97 S.Ct. 1891 [1896], 52 L.Ed.2d 453; 7 C. Wright & A. Miller, § 1761. For her third constitutional challenge, then, Johnson may represent only a subclass consisting of all persons who, like her, have had or will have property attached prior to judgment because they allegedly were removing the property from the state. No challenge may be raised in this action to the other five situations that give rise to attachment under the Georgia statutes, because there are no representative plaintiffs present who have been aggrieved by them and thus who can represent the appropriate subclasses.” pp. 532-33.

12 . “Complainant is a Black female who, due to medical reasons, requested a transfer to lighter job duties. She stated that whites were granted transfers for this reason while she was denied. Complainant filed a complaint which stated that she was denied a transfer to lighter duties based upon her race, which is Black.”

13 . “ * * * there is evidence supportive of the Complainant’s allegations that whites were offered light job duties by their supervisors after returning to work from medical leave, as compared to the Complainant, who was treated differently. Whites were transferred from job duties that required them to stand to job duties that required them to be seated. Most of them were transferred to either the ‘accessory table’ or ‘blister machine’. The treatment of the Complaint with regard to her request for transfer due to medical reasons was different than that of whites.”

“ * * * The Commission’s staff finds that probable cause exists to believe that the Complainant was discriminated against by the Respondent by denying her a light duty transfer, as whites were allowed, on the basis of her race, which is Black, * *

14 . Four of these were by white employees and one by a black employee.

15 . It should be said, in fairness to the district court, that its decision preceded Rodriguez, Hill, Pargo, and Belcher.