National Ass'n of Government Employees v. City Public Service Bd. of San Antonio, Tex.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-5549
__________________
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, ET AL.,
Plaintiffs-Appellants,
versus
CITY PUBLIC SERVICE BOARD OF
SAN ANTONIO, TEXAS, ET AL.,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(December 6, 1994)
Before JOHNSON, GARWOOD and JONES, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs-appellants Eustacio B. Diaz (Diaz), Guillermo R.
Gaona (Gaona), and the National Association of Government Employees
(collectively Plaintiffs) brought this putative class action
against defendant-appellee the City of San Antonio, Texas, acting
by and through the City Public Service Board (CPS). In 1977,
Plaintiffs filed charges with the Equal Employment Opportunity
Commission (EEOC), alleging that CPS discriminated against its
Mexican-American and Mexican alien workers on the basis of their
national origin in hiring, promotion, discipline, and other terms
and conditions of employment.1 After efforts at conciliation
failed in 1980, the EEOC referred the case to the Department of
Justice and informed Plaintiffs that the Department of Justice
would either notify them of its intention to prosecute the case or
issue a right to sue letter. Nothing more happened until late
1989, when Plaintiffs determined that the Department of Justice had
no record of their case, obtained a right to sue letter, and filed
this suit in the district court below. Plaintiffs alleged
violations of Title VII, 42 U.S.C. §§ 1981 and 1983, and the Texas
constitution. CPS moved to dismiss the Title VII claim on the
basis of laches and to dismiss the section 1981 claim either on
summary judgment or for failure to state a claim on which relief
may be granted. The magistrate judge to whom the case had been
referred recommended that both these motions be granted and in
addition recommended denial of class certification and dismissal
with prejudice of Plaintiffs' Title VII claims and dismissal
without prejudice of their section 1981, section 1983, and state
law claims. The district court adopted the recommendation of the
magistrate judge, and Plaintiffs appeal that judgment. We find no
error and therefore affirm.
Facts and Proceedings Below
Although the present suit was filed November 29, 1989, the
controversy began more than twelve years earlier. On February 18,
1977, Plaintiffs filed employment discrimination charges with the
1
The original union complainant was the American Federation
of State, County, and Municipal Employees (AFSCME). In July
1982, CPS employees left AFSCME to join the National Association
of Government Employees (NAGE).
2
EEOC, alleging that CPS discriminated against Mexican-Americans
and Mexican aliens in hiring, promotion, job classification, and
other terms and conditions of employment.2 The EEOC issued a
Reconsideration of Determination on October 31, 1979,3 in which it
found that there was reasonable cause to support some of
Plaintiffs' allegations with respect to hiring and promotion.4 The
2
Specifically, Plaintiffs complained of:
"(a) Non-job-related educational requirements.
(b) Failure to establish educational job-related
training and apprenticeship programs for upward
mobility.
(c) Intimidation and harassment of Mexican-Americans
and Mexican Aliens/I-151 . . .
(d) Failure to establish a job-posting policy of all
job vacancies.
(e) Failure to establish a non-derogatory
ethnic/racial slurs policy. . . .
(f) Failure to provide equal opportunity to Mexican-
Americans and Mexican Aliens/I-151 employees as a class
who apply for loans through the employer's credit
union.
(g) Failure to establish a wages/conditions/grievances
committee to include an equal number of Mexican-
Americans and Mexican Aliens/I-151 members.
(h) Failure to establish and [sic] equal sick and
vacation leave policy. . . ."
In its Reconsideration of Determination of October 31, 1979, the
EEOC found with respect to these charges: that it did not have
jurisdiction to consider charge (f); that there was insufficient
evidence to support a reasonable cause finding as to charges (b),
(c), (d), (g), and (h); and that there was sufficient evidence to
support a reasonable cause finding as to charges (a) and (e).
3
This document superseded a letter of determination the EEOC
had previously issued on March 30, 1979.
4
See supra note 2. Specifically, the EEOC found:
3
parties then attempted conciliation, but that effort failed. On
June 24, 1980, the EEOC formally informed Plaintiffs in writing
that conciliation was unsuccessful, that no further efforts to
conciliate would be made, and that it was referring their charges
to the Department of Justice for review in anticipation of a
possible enforcement action.
Although Plaintiffs retained counsel to represent them in
August 1980 and have been represented by counsel continuously since
that time,5 no further action was taken in the case. The attorney
"1. Mexican-Americans are not hired into the unskilled
and semi-skilled levels of Respondent's work force at a
rate proportionate to their availiability [sic] in the
relevant labor market;
2. Mexican-Americans, as the result of Respondent's
hiring policies, are relegated to the lowest job
classifications within Respondent's facilities;
3. Respondent has failed to establish and/or enforce
a policy which prohibits the use of ethnic or racial
slurs; and
4. Respondent utilizes non-job-related educational
requirements as prerequisites for employment and job
advancement;
5. [withdrawing certain earlier findings] . . . .
6. . . . . a. Mexican-Americans who are employed as
utility workers at Respondent's Gas and General
Construction Division are not provided equal
opportunities for promotion to the main crew foreman
positions." [On April 3, 1980, "the main crew foreman
positions" language was changed to "the various
supervisory/foreman positions that require direct
supervisory responsibility over the Utility Workers"].
5
Plaintiffs have been represented by at least five separate
attorneys since August 1980. Their initial two attorneys
represented them from 1980 until 1983, when they were replaced by
another attorney who represented them until 1987. He in turn was
replaced by another attorney, who was succeeded in 1988 by still
another who represented them until 1989, when Plaintiffs' current
4
who represented Plaintiffs from 1983 to 1987 did call a press
conference in San Antonio during September 1984 at which he
"accused the EEOC of failing to move against CPS after finding
evidence of discrimination" and announced that he would file suit
against CPS in four to six weeks. However, no suit was filed at
that time. In 1989, Plaintiffs contacted the Department of Justice
to determine where the case stood. The Department of Justice
informed them that it had no record of a referral from the EEOC and
therefore had not made any review of the case. Plaintiffs
thereafter requested and received right to sue letters from the
EEOC and filed this suit on November 29, 1989. They alleged causes
of action under Title VII and section 1981. In addition, they
moved for certification of the suit as a class action. A
subsequent amended complaint added claims under section 1983 and
the due course of law and equal protection provisions of the Texas
constitution.
On February 8, 1990, CPS moved to dismiss, claiming that it
was not a suable entity separate and apart from the City of San
Antonio. Plaintiffs requested and were ultimately granted leave to
file an amended complaint to name the City as defendant. On March
8, 1990, CPS moved to dismiss Plaintiffs' section 1981 claims
either on summary judgment or for failure to state a claim on which
relief may be granted. While that motion was pending, the
magistrate judge to whom the case had been assigned granted the
attorney of record took over the representation. Still another
attorney apparently also represented Plaintiffs from 1982 to
1984.
5
parties an extension of time to conduct further discovery on the
issues of laches and class certification. On November 15, 1991,
CPS moved to dismiss Plaintiffs' Title VII claims on the basis of
laches.
The magistrate judge considered all these motions and entered
his report and recommendation on January 30, 1992. He recommended
that the district court dismiss Plaintiffs' Title VII claims on the
basis of laches, finding that the long delay in filing suit "was
manifestly unreasonable, inadequately explained and inexcusable"
and had substantially prejudiced CPS's ability to conduct an
adequate defense. The magistrate judge also recommended that the
motion to dismiss Plaintiffs' section 1981 claims be granted and
that that claim be dismissed without prejudice. As to the section
1981 claim, the magistrate judge reasoned: (1) that most of
Plaintiffs' allegations (e.g., the tolerance of racial and ethnic
slurs in the workplace, discriminatory disciplinary practices) were
not cognizable under section 1981; (2) that the discriminatory
hiring claims were not properly analyzed under section 1981 because
"[Plaintiffs] do not contend that anyone was denied employment with
CPS because he or she is Mexican-American"6; and (3) that
Plaintiffs' pleadings and proof with respect to their
discriminatory promotion claims failed to show the denial of an
opportunity for a new and distinct employer-employee relationship
as required by Patterson v. McLean Credit Union, 109 S. Ct. 2363
6
The magistrate judge found that "[t]heir claim is better
described as one of discriminatory placement at the time of
hiring."
6
(1989).
The magistrate judge also recommended that any request to
amend the complaint to plead sufficient facts not be allowed. He
reasoned that, not only had Plaintiffs already been granted leave
to file a second amended complaint after CPS moved to dismiss the
section 1981 claim for failure to state a claim, but that the
summary judgment evidence established that Plaintiffs could not
amend their complaint to state a section 1981 claim. Referencing
Plaintiffs' answers to interrogatories, the magistrate judge found
only two CPS employeesSQAlejandro Ramirez and Jesse TelloSQas to
whom the responses could be construed to allege a denial of
promotion within the applicable statute of limitations. The
magistrate judge found nothing in the summary judgment evidence to
show that either of these men were in fact denied promotions within
the limitations period or to establish that the duties,
compensation, and benefits of the jobs for which they were
allegedly denied promotion created a new and distinct relationship
with the employer. In contrast, the magistrate judge noted that
CPS had come forward with evidence to show that Ramirez had been
promoted in 1986 and that Tello had declined three promotions in
the late 1970s and early 1980s. Similarly, the magistrate judge
found that only two of Plaintiffs' affidavits could be construed to
demonstrate a denial of promotion. Assuming in the absence of
evidence that these claims arose within the two-year statute of
limitations, the magistrate judge found that one of the affiants
complained primarily of sexual harassment, not national origin
discrimination, and that the other failed to show that the
7
promotion he was denied would have created a new and distinct
employment relationship.
Finally, with regard to Plaintiffs' motion for class
certification, the magistrate judge found that there were only
eleven putative class members whose claims of discrimination were
tied to events occurring within the two-year statute of limitations
period. He found this number insufficient to satisfy the
numerosity requirement of Federal Rule of Civil Procedure 23(a)(1).
He therefore recommended denial of class certification and
dismissal of Plaintiffs' section 1983 and state law claims without
prejudice.
Over Plaintiffs' objections, the district court adopted the
magistrate judge's findings and recommendations on February 24,
1992. It therefore denied class certification and dismissed
Plaintiffs' Title VII claim with prejudice and their section 1981,
section 1983, and state law claims without prejudice. Plaintiffs
now appeal that judgment.
Discussion
I. Appellate Jurisdiction
At oral argument, Plaintiffs for the first time contended that
this Court lacks jurisdiction to hear their appeal because the
district court's judgment is not final. With limited exceptions
not relevant here, we are empowered to review only final decisions
of the district courts. 28 U.S.C. § 1291. A decision is "final"
when it "dispose[s] of the entire controversy and leave[s] nothing
further for the court to do in the cause." Anastasiadis v. S.S.
Little John, 339 F.2d 538, 539 (5th Cir. 1964). In the present
8
case, Plaintiffs contend that the district court's order is not
final because it did not dispose of what they assert is a Title VI
claim included in their second amended complaint. We are
unpersuaded by this argument because we conclude that, to the
extent that Plaintiffs' second amended complaint can be construed
to assert a claim under Title VI, they have abandoned that claim.
We faced a similar situation in Vaughn v. Mobil Oil
Exploration and Producing Southeast, Inc., 891 F.2d 1195 (5th Cir.
1990). There we were confronted with a judgment that, although
purporting to be final, failed to account for a cross-claim of the
appellee. Addressing the finality requirement, we advocated a
practical interpretation that looked to the intention of the
district court. Id. at 1197. We stated that, if the judgment
reflects an intent to dispose of all issues before the district
court, we will characterize that judgment as final. Id. With
those principles in mind, we held that the appellee had effectively
abandoned its cross-claim by failing to pursue it before the
district court.7 Id. at 1198. We explained,
"Ample authority exists that trial courts will not rule
on claimsSQburied in pleadingsSQthat go unpressed before
the court. . . . We can only construe appellee's failure
to urge its claims before the district court as an
intention to abandon that part of its case. . . . The
fact that the December judgment did not mention
appellee's cross-claim is neither here nor there;
appellee's own behavior caused its claim to lapse." Id.
Because the district court's judgment disposed of all live issues
then before it, we held that it was an appealable final judgment.
7
To the same effect, see Chiari v. City of League City, 920
F.2d 311, 314 (5th Cir. 1991); Jones v. Celotex Corp., 867 F.2d
1503, 1504 (5th Cir.), cert. denied, 110 S. Ct. 260 (1989).
9
Id.
Vaughn is directly applicable here. Plaintiffs' invocation of
Title VI in their lengthy second amended complaint is properly
characterized as passing at best.8 They mention it only twice,
once in the paragraph invoking federal jurisdiction and again in
conjunction with their claim for relief under Title VII. Both
these references do no more than mention Title VI; the only
statutory citation provided in each instance is to Title VII.
Plaintiffs requested no relief under Title VI. Nor can we infer
assertion of a claim under Title VI from a properly pleaded Title
VII claim; the two causes of action require different elements of
proof. See Guardians Association v. Civil Service Commission, 103
S. Ct. 3221, 3235 n.1 (1983) (Powell, J, concurring in the judgment)
8
Plaintiffs' original complaint asserted claims under Title
VII and section 1981. It contains no mention of Title VI. After
CPS moved to dismiss on the basis, inter alia, that it was not
suable apart from the City, Plaintiffs, on February 23, 1990,
moved to file a "first amended complaint" in order "to name as an
additional Defendant the City of San Antonio." This motion was
apparently never acted on. On March 16, 1990, Plaintiffs filed
an "amended motion" to file a "first amended complaint," stating
this was to correctly name the CPS and "to assert additional
causes of action," none of which were in any way described or
referenced. No action on this motion is reflected by the record.
The docket sheet reflects that Plaintiffs tendered a "first
amended complaint" on March 19, 1990, but it was never filed and
is not in the record.
On July 29, 1990, Plaintiffs filed their "amended motion for
leave to file Plaintiffs' second amended complaint," which states
that its purpose is to amend the first amended complaint "to add
the Title VII charge by Eustacio Diaz." This motion was granted,
and on August 23, 1991, Plaintiffs filed their "second amended
complaint." This complaint asserts claims under Title VII and
section 1981, as did the original complaint; it also asserts
claims under the due process and equal protection clause of the
Fourteenth Amendment and "the due course of law and equal
protection provisions of the Texas Constitution," none of which
claims were included in the original complaint.
10
(stating that "[s]even Members of the Court agree that a violation
of [Title VI] requires proof of discriminatory intent"). Further,
the complaint fails to allege the essential elements of a Title VI
claim.9
We also note that defendant-appellees' pleadings, motions, and
briefs below made no reference to any Title VI claim. The
magistrate judge's report and recommendation makes no such
reference, and its description of Plaintiffs' suit includes no
mention of Title VI. Plaintiffs' response to appellees' motions
did not mention Title VI,10 nor did Plaintiffs' objections to the
magistrate judge's report and recommendation. Plaintiffs never
suggested to the district court (or to the magistrate judge) that
they had any claim, under Title VI or otherwise, not fully
addressed and disposed of.
Given these circumstances, we think it reasonable to infer
that the district court did not believe Plaintiffs had asserted a
claim under Title VI. Cf. In re Pan American World Airways, Inc.,
905 F.2d 1457, 1462 (11th Cir. 1990) ("[I]f a party hopes to
preserve a claim, argument, theory, or defense for appeal, she must
first clearly present it to the district court, that is, in such a
9
A cause of action under Title VI requires (1) that the
defendant have received federal financial assistance the primary
objective of which is to provide employment (2) that was applied
by the defendant to discriminatory programs or activities. 42
U.S.C. §2000d-3.
10
For example, Plaintiffs' fifty-four-page brief, filed below
November 20, 1991, contains no mention of Title VI and describes
the suit as "an action . . . brought pursuant to Title VII of the
Civil Rights Act of 1964 (hereafter 'Title VII'), 42 U.S.C.
Section 2000e, et seq., and 42 U.S.C. Section 1981 (hereafter
'Section 1981')."
11
way as to afford the district court an opportunity to recognize and
rule on it.") (footnote omitted). In disposing of all Plaintiffs'
other claims, therefore, the district court undoubtedly believed
that it was disposing of the entire case before it. As in Vaughn,
"[n]othing in the district court's disposition suggested that
judgment was incomplete. Indeed, the judge closed the case. The
clerk . . . entered judgment. The parties went home. In all
respects, and to all parties, judgment was final." 891 F.2d at
1197-98. Such is the case here.
Other circumstances surrounding this case further support our
conclusion that any Title VI claim was abandoned. That Plaintiffs
instigated this appeal and invoked this Court's jurisdiction
pursuant to 28 U.S.C. § 1291 suggests that they themselves believed
the district court's judgment to be final. Neither of the parties
addressed the Title VI issue in their original briefs.11 Indeed,
Plaintiffs' counsel admitted that he only realized this "omission"
while preparing for oral argument.
It therefore appears clear that no one associated with this
case believed there to be a live Title VI claim when judgment was
entered. We will not allow Plaintiffs to ambush this appeal by
belatedly resurrecting a purported claim they completely failed to
11
Plaintiffs' notice of appeal states that it appeals the
district court's "final judgment." Plaintiffs' "appellants'
brief" in this Court does not mention Title VI, and neither does
appellees' brief. Plaintiff's "reply brief" in this Court states
that the district court dismissed "all Plaintiffs' causes of
action." No submission by either side prior to oral argument
suggested otherwise. At oral argument, we granted the parties
leave to file supplemental briefs addressing the jurisdictional
issue.
12
pursue before the district court. Nor does the fact that
Plaintiffs' case was disposed of on summary judgment change our
conclusion. Vaughn, 891 F.2d at 1198. ("[T]he district court's
disposition of the instant case . . . by way of grant of . . .
summary judgment does not alter the fact of abandonment on
appellee's part . . ."). The district court's order disposing of
all live claims was thus an appealable final judgment, and we have
jurisdiction to consider it. Plaintiffs' post-argument motion to
dismiss the appeal is denied.
II. Title VII Claims: Laches
A. Standard of Review
Although Plaintiffs seem to concede in their original brief to
this Court that the appropriate standard of review of the district
court's determination with respect to laches was an abuse of
discretion standard, they assert in their reply brief that de novo
review is the applicable standard because CPS's laches motion was
styled as a motion to dismiss. Because the district court was
required to review the available evidence in order to determine
whether to apply laches to the Title VII claim, this motion is more
appropriately treated as one for summary judgment. This
distinction does not affect Plaintiffs' argument, however, since
the standard of review of a grant of summary judgment is also de
novo.
It is settled that a district court enjoys considerable
discretion in deciding whether to apply the doctrine of laches to
claims pending before it. Kennedy v. Electricians Pension Plan,
954 F.2d 1116, 1121 (5th Cir. 1992). The issue before us is to
13
what extent that discretion is circumscribed or otherwise altered
when the decision to apply laches is made within the context of a
motion for summary judgment. Our review of the caselaw leads us to
the following conclusion: to the extent that the facts relevant to
laches are undisputed on summary judgment, the abuse of discretion
standard applies. Put another way, as long as the district court
applies the correct legal standard on summary judgment and does not
resolve disputed issues of material fact against the nonmovant, its
determination of whether the undisputed facts warrant an
application of laches is reviewed for abuse of discretion.
We begin our analysis with a case in which this Court
determined that the district court had abused its discretion in
applying the doctrine of laches. In Powell v. City of Key West,
Florida, although "[r]ecognizing full well that the defense of
laches is one that is addressed largely to the discretion of the
trial court," we nevertheless held that the granting of summary
judgment on the basis of laches was improper because the
defendants' motion for summary judgment was "completely lacking .
. . a factual basis for applying this defense." 434 F.2d 1075,
1080 (5th Cir. 1970). We found that laches was improperly applied
because, based on an overly generous reading of the movants'
affidavits,12 the district court had impermissibly resolved disputed
issues of fact regarding prejudice, an essential element of laches,
12
We also noted that the district court's decision was founded
on affidavits that did not meet the verification requirements of
Rule 56(c). Powell, 434 F.2d at 1079-80.
14
in favor of the movants.13 Id. at 1079-80. We noted that "[e]ven
were the affidavits of the [movants] adequate to raise an issue of
fact as to prejudice, this is all they would have done because
there is clear proof on behalf of the plaintiff from which the
trial court could have found a complete absence of prejudice by
reason of the delay." Id. at 1080. Thus, although the district
13
For example, in Powell the affidavit of movant's counsel
read: "[T]he City of Key West, Florida, had insurance coverage
at the time the accident, which is the subject matter of this
litigation, occurred, but the insurance carrier has denied
coverage to the city and is not now defending the city in this
lawsuit on the grounds of late reporting of the accident."
Powell, 434 F.2d at 1077. From this, the district court
concluded that "the defendants have lost insurance coverage that
otherwise would have applied to the plaintiff's injury." Id. at
1079 (emphasis omitted). We found this extension of the
affiant's statement impermissible in the context of summary
judgment:
"It is impossible for the trial court to know from the
document before it that the city had or had not lost
insurance coverage, for, in fact, counsel did not even
make such a statement of fact. He stated only that the
insurance carrier had denied coverage and was not
defending the suit. The trial court was not in a
position to test the correctness of counsel's implied,
although not expressed, conclusion that the city had
lost coverage which it otherwise would have had.
Moreover, there is no possible basis for the trial
court to assume, since the city gave no notice to the
insurance company until 1969, that, had it given notice
within the four year statue of limitations, the
insurance company would not, with equal justification,
have declined to defend on the ground of a four year
delay in giving notice under the policy. There is
nothing in this record to indicate that, had the city
given notice a few days short of the four year
statutory period, the city would have had the coverage
which the trial court now found it lost by reason of
the delay in filing this complaint." Id.
In addition, we noted that the district court erred in finding
that another affidavit submitted by the movant showed that the
movant had lost the opportunity to hold third parties liable for
any damages assessed against it in the suit. Id. at 1080.
15
court had discretion to grant laches on motion for summary
judgment, it did not have discretion to circumvent the requirements
of Rule 56(c) by resolving genuinely disputed issues of fact
material to laches.14
By contrast, when the district court has correctly applied the
summary judgment standard, we have found no abuse of discretion in
its determination as to laches. For example, in Albertson v. T.J.
Stevenson & Co., we applied the abuse of discretion standard in
reviewing the district court's decision to bar plaintiff's claims
on the basis of laches. 749 F.2d 223, 233 (5th Cir. 1984).
Significantly, we noted that the material facts underlying
defendant's summary judgment motion were undisputed. Id.
Similarly, in Kennedy v. Electricians Pension Plan, 954 F.2d 1116
(5th Cir. 1992), a declaratory judgment action tried to the court
on a stipulation of facts and submission of the record, id. at
1118, we upheld the district court's decision not to apply laches
under the abuse of discretion standard. Id. at 1121.
We think this case falls squarely within the purview of the
14
To Powell, compare Fowler v. Blue Bell, Inc., 596 F.2d 1276
(5th Cir. 1979), cert. denied, 100 S. Ct. 671 (1980). In Fowler,
we held that, despite the existence of undisputed facts regarding
defendant's laches motion, the district court incorrectly found
the doctrine applicable where the movant's summary judgment
evidence as a matter of law did not satisfy the elements of
laches. Id. at 1279-80. Specifically, we held that any time
that elapsed during ongoing EEOC conciliation efforts could not
be counted toward the calculation of the unreasonable delay
element, id. at 1279, and that the defendant's assertion that key
witnesses were no longer with the company, without an
accompanying showing that they were currently unavailable to
testify, was insufficient to show prejudice. Id. at 1279-80.
More importantly for present purposes, however, we analyzed the
case under the abuse of discretion standard. Id. at 1280.
Fowler is therefore wholly consistent with our analysis here.
16
abuse of discretion standard. The material facts relevant to
laches are not in genuine dispute. The length of the delay and the
reasons for it are not controverted. The facts relevant to
prejudice are likewise not contested. CPS does not dispute that it
has records relevant to Plaintiffs' claims still on file;
Plaintiffs' do not dispute that many of CPS's relevant witnesses
are unavailable to testify. We now turn to the district court's
determination that the material facts before it as to which there
was no genuine dispute met the essential requirements of the laches
defense.
B. Application of Laches to Plaintiffs' Title VII Claims
"Laches is founded on the notion that equity aids the vigilant
and not those who slumber on their rights." NAACP v. NAACP Legal
Defense & Educational Fund, Inc., 753 F.2d 131, 137 (D.C. Cir.),
cert. denied, 105 S. Ct. 3489 (1985). The defense consists of three
elements: (1) a delay on the part of the plaintiff in instituting
suit; (2) that is not excused; and (3) that results in undue
prejudice to the defendant's ability to present an adequate
defense. Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir. 1985).
1. Delay
The district court in this case found that there had been a
delay of nine years in bringing suit on the EEOC charges Plaintiffs
filed in 1977. The district court correctly held that the period
of time during which conciliation efforts were ongoing should not
be counted against Plaintiffs in calculating the period of delay.
See Fowler, 596 F.2d at 1279 ("[A]lthough the doctrine of laches
may be available in some cases to bar the EEOC from bringing suit,
17
this bar arises only if the EEOC has delayed unreasonably after it
has completed conciliation.") (emphasis in original). Neither
party disputes that conciliation efforts were terminated in 1980,
nor that suit was not filed until late 1989.
2. Inexcusability
The magistrate judge found, and the district court agreed,
that Plaintiffs' delay in bringing suit was not excused. The
magistrate judge based his determination as to inexcusability on
the following undisputed facts: (1) Plaintiffs have been
represented by counsel continuously since conciliation efforts were
terminated in 1980; (2) the plaintiff union (and its predecessor),
whose expertise in employment matters is presumed, was actively
involved in the case from the time charges were filed with the EEOC
in 1977; (3) Plaintiffs failed to take advantage of their right
under the statute (42 U.S.C. § 2000e-5) to demand right to sue
letters at any time after 180 days following filing of the EEOC
charges; (4) Plaintiffs did not at any time from 1980 to 1989 make
any inquiry with the Department of Justice or the EEOC as to the
status of their claims; and (5) Plaintiffs' then attorney called a
press conference in 1984, accusing the EEOC of failure to act and
promising to file suit within six weeks, yet Plaintiffs did nothing
at that time nor for five years thereafter to bring this suit.
Plaintiffs attack the inexcusability determination, advancing
two interrelated arguments. First, they argue that their delay in
filing suit was not inexcusable because they were relying on the
administrative process. Second, Plaintiffs contend, in effect,
18
that they should not be faulted for the laxity of their various
attorneys in pursuing this suit. Neither of these contentions has
merit.
Plaintiffs contend that, as legally unsophisticated parties
with few English skills, they cannot be assumed to be familiar with
the administrative complexities of Title VII litigation.15 This
argument fails to explain why Plaintiffs' counsel did not pursue
this litigation, or why Plaintiffs should not be charged with their
counsels' neglect. "Under our system of representative litigation,
each party is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be
charged upon the attorney." Irwin v. Veterans Administration, 111
S. Ct. 453, 456 (1990) (citation and internal quotation marks
omitted). That an attorney's conduct of the suit is inadequate may
be grounds for a malpractice action against the attorney, but it is
certainly no basis for requiring the defendant to pay the price of
opposing counsel's dereliction. See Link v. Wabash Railroad, 82
S. Ct. 1386, 1390 n.10 (1962).
Plaintiffs' assertion that one of their attorneys died and
another was suspended from practice are wholly unavailing. As to
the former, the record contains no indication of when the attorney
died, but it does show that while he was representing Plaintiffs
they were also represented by other counsel. As to the latter, the
15
We are puzzled by Plaintiffs' contention in their reply
brief that they did not know that conciliation efforts had failed
until 1989. Letters sent to Plaintiffs in 1980 from the EEOC
clearly state that conciliation had failed and was terminated and
that the matter was being referred to the Department of Justice.
19
record merely indicates that the attorney "was eventually suspended
from the practice of law" (emphasis added); it does not indicate
when the suspension occurred, and so far as the record shows the
suspension could have come well after (or only shortly before) the
time when other counsel had succeeded to the representation of
Plaintiffs.16
Also significant in this respect is the ongoing and direct
involvement of the union, which purports to represent Plaintiffs'
interests in this suit. A labor union is assumed to have some
degree of expertise in equal employment opportunity matters. See
Cleveland Newspaper Guild v. Plain Dealer Publishing Co., 839 F.2d
1147, 1154 (6th Cir.), cert. denied, 102 S. Ct. 234 (1988).
Plaintiffs have not argued that the union did not know of its right
to request right to sue letters nor explained why the union failed
to take any action to pursue the Title VII claims after
conciliation failed.17
In sum, we are unable to fault the conclusion of the
magistrate judge and the district court that under the undisputed
facts of record the delay in this case was inexcusable.
3. Prejudice
To support a determination of laches, there must be more than
16
Nor is there any indication of the length of the suspension
or any suggestion that the suspension was in any way related to
counsel's representation in this matter.
17
Plaintiffs allege that growing tensions between the
membership and management of AFSCME, NAGE's predecessor, led them
to join NAGE in 1982. We are unpersuaded that this fact either
relieved AFSCME of its duty to pursue these claims or excused
NAGE from failing to pursue them after 1982.
20
simply an inexcusable delay; the party asserting laches must also
establish that it has been prejudiced by the delay, that is, that
the delay has "cause[d] a disadvantage in asserting and
establishing a claimed right or defense." Matter of Bohart, 743
F.2d 313, 327 (5th Cir. 1984). The requirement of demonstrating
prejudice dovetails with the equitable nature of laches as a
doctrine "designed to promote justice by preventing surprises
through the revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and witnesses
have disappeared." Order of Railroad Telegraphers v. Railway
Express Agency, Inc., 64 S. Ct. 582, 586 (1944).
The magistrate judge found that "plaintiffs' inexcusable delay
in filing this lawsuit has unduly prejudiced defendant and warrants
the imposition of the laches defense." The magistrate judge's
report further adequately warned of the necessity of timely filing
properly specific objections to "the proposed findings, conclusions
and recommendation" contained in the report and of the consequences
of failing to do so. Plaintiffs' only objection to the prejudice
part of the magistrate judge's report was the following:
"5) Defendant only alleges and the Magistrate only found
undue prejudice with regard to the allegations of
discrimination during the period prior to November 29,
1989. Therefore as a matter of equity the Court should
reject the recommendation to dismiss the lawsuit in its
entirety and instead should allow Plaintiffs to proceed
on the Title VII claims but deny any back pay for the
period of undue prejudice prior to November 29, 1989."
We agree with CPS that this does not constitute an objection
to the determination of prejudice respecting alleged discrimination
prior to November 29, 1989. As the district court adopted the
21
magistrate judge's report and its findings and conclusions,
Plaintiffs are now barred from challenging the prejudice
determination as to alleged discrimination prior to November 29,
1989, absent a showing of plain error or manifest injustice. See,
e.g., Nettles v. Wainwright, 677 F.2d 404, 410 & n.8 (5th Cir.
1982); Partfait v. Bowen, 803 F.2d 810, 811, 813, 814 (5th Cir.
1986); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988);
Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990); Edmond
v. Collins, 8 F.3d 290, 293 n.7 (5th Cir. 1993). See also 28
U.S.C. § 636(b)(1); Western District of Texas Local Rule 4(b). We
find no plain error or manifest injustice. Indeed, we find no
error.
The magistrate judge described CPS's evidence of prejudice as
"unrefuted," "substantial," and "overwhelming," and we agree. Of
the foremen and supervisors responsible for hiring and promotion
during the period covered by the EEOC charges here at issue, nine
had died, three were too ill to testify, and three had been
terminated by CPS.18 In addition, CPS submitted thirty-six
affidavits of other foremen and supervisors who prepared
performance evaluations during the relevant period. Of those who
could remember the employee at all (and there were many who could
not), most remembered either only the name or only a general
description of the person as either a good or poor employee. Few
remembered specifically why they had rated a particular employee in
18
There is a presumption that employees whose employment was
involuntarily terminated are hostile toward the employer. See
EEOC v. Firestone Tire & Rubber Co., 626 F. Supp. 90, 92 (M.D. Ga.
1985).
22
a particular way or the details of specific anecdotal events that
Plaintiffs allege prove their discrimination claims.
Plaintiffs counter that the loss of witness testimony is
irrelevant because records that allegedly demonstrate the pattern
and practice of discrimination at CPS are still available. These
records, however, only help Plaintiffs in proving a prima facie
case of discrimination; they do nothing to alleviate the prejudice
to CPS in attempting to articulate legitimate, nondiscriminatory
reasons to rebut any inference of discrimination these records
might raise. See Texas Department of Community Affairs v. Burdine,
101 S. Ct. 1089, 1094-95 (1981) (setting out the framework for
shifting the burden of proof in Title VII disparate impact cases).
In similar circumstances, other courts have found that the loss of
witness testimony unduly prejudiced the defendant's ability to
defend itself against employment discrimination charges. See,
e.g., Cleveland Newspaper Guild, 839 F.2d at 1154; EEOC v. Alioto
Fish Co., 623 F.2d 86, 88 n.3 (9th Cir. 1980); EEOC v. Firestone
Tire & Rubber Co., 626 F. Supp. 90, 93 (M.D. Ga. 1985). We think
such is the case here and therefore find no error in the district
court's determination of prejudice.
C. Dismissal of Title VII Claims in Their Entirety
Plaintiffs argue that, even if it was not error for the
district court to apply the laches doctrine to their Title VII
claims, the district court nevertheless abused its discretion by
dismissing those claims in their entirety. They contend that the
district court instead should have merely denied the award of back
pay for the period before November 29, 1989, the day suit was
23
filed, because they have alleged that discrimination at CPS is
ongoing and submitted statistical proof to support their
allegations.
We are unpersuaded. As Plaintiffs acknowledge elsewhere in
their brief, Title VII requires that parties exhaust administrative
remedies before instituting suit in federal court. See 42 U.S.C.
§ 2000e-5(f)(1). The EEOC charges on which Plaintiffs' Title VII
claims are based relate to events that happened in 1976 and 1977.
Since then, as the magistrate judge found, the undisputed evidence
shows significant changes in CPS's workforce and employment
practices. In 1981, an affirmative action plan was adopted. In
1983, the CPS employment policy was revised to eliminate formal
educational requirements for promotion to foreman or supervisor.
CPS has thereafter used seniority in determining advancement. In
1986, CPS began posting job vacancies.19 The percentage of
Hispanics in supervisory positions at CPS has increased
considerably faster than the percentage of Hispanics in CPS's
entire workforce.20
It is well-settled that courts have no jurisdiction to
consider Title VII claims as to which the aggrieved party has not
19
The 1977 EEOC charge complained, among other things, of
failure to post vacancies and "non-job-related educational
requirements" such as the requirement of a high school degree for
"promotion to the better paying positions of equipment operators
or other better jobs."
20
From 1975 to 1991, the percentage of Hispanics in the entire
CPS workforce increased from 36% to 53%. During the same period,
the percentage of Hispanic supervisors and foremen increased from
5% to 26%. There was undisputed evidence that the increase would
have been faster but for the fact that CPS had a very stable
workforce with very low turnover in these positions.
24
exhausted administrative remedies. Tolbert v. United States, 916
F.2d 245, 247-48 (5th Cir. 1990) (per curiam). We have held that
"a judicial complaint filed pursuant to Title VII 'may encompass
any kind of discrimination like or related to allegations contained
in the charge and growing out of such allegation during the
pendency of the case before the Commission.'" Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (emphasis added;
citation omitted). This is because "the civil action is much more
intimately related to the EEOC investigation than to the words of
the charge which originally triggered the investigation." Id.
Other courts have expressed the same thought. "[The EEOC] charge,
enlarged only by such EEOC investigation as reasonably proceeds
therefrom, fixed the scope of the charging party's subsequent right
to institute a civil suit. The suit filed may encompass only 'the
discrimination stated in the charge itself or developed in the
course of a reasonable [EEOC] investigation of that charge." King
v. Seaboard Coastline R. Co., 538 F.2d 581, 583 (4th Cir. 1976)
(footnote and citation omitted). See also Johnson v. General
Electric, 840 F.2d 132, 139 (1st Cir. 1988); Oubichon v. North
American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) (suit
may include "reasonably related" noncharged "new acts occurring
during the pendency of the charge before the EEOC") (emphasis
added); Moore v. Sunbeam Corporation, 459 F.2d 811, 826 & n.38, 828
(7th Cir. 1972); Smith v. Joseph Horne Co., Inc., 438 F. Supp. 1207,
1213 (W.D. Pa. 1977); Hubbard v. Rubbermaid, Inc., 436 F. Supp.
1184, 1190-91, 1193-94 (D.C. Md. 1977); 2 Larson, Employment
Discrimination § 49.11(c)(1) at 9B-16 ("if an [EEOC] investigation
25
has actually been conducted, most courts hold that the scope of the
complaint is limited to the actual scope of the investigation").
Here, the charges were filed in February 1977, the EEOC
undertook an investigation which was completed and resulted in an
October 31, 1979, determination letter. Conciliation was
attempted, but all such efforts were terminated by June 1980. Over
ten years after the investigation was completed, and after
substantial changes in CPS's employment practices and profile, this
suit was filed. As we have held, this delay was substantial,
inexcusable, and prejudicial, so as to bar by laches Plaintiffs'
Title VII claims. In these circumstances, to allow the 1977
charges to be the basis of claims of current discrimination,
without new EEOC charges, would be to effectively read out of Title
VII the requirement of administrative exhaustion. This we decline
to do.21
21
See also Equal Employment Opportunity Comm'n v. Alioto Fish
Co., 623 F.2d 86 (9th Cir. 1980), in which the Ninth Circuit
upheld the dismissal on the basis of laches of a suit brought by
the EEOC itself. The Ninth Circuit rejected the argument that
the dismissal should not have extended to the request for
injunctive relief against discrimination allegedly continuing
when the suit was brought:
"The EEOC also seeks injunctive relief against an
alleged pattern and practice of discrimination that
continued up to the time the action was brought in
1976. Prejudice from unreasonable delay may also
hamper the defense of a claim alleging a pattern and
practice of discrimination and may justify dismissal of
an entire action. . . .
Such prejudice is particularly evident in this
case. The district court found that the employment
practices of Alioto and the local restaurant industry
had significantly changed since the time of . . . [the]
original charge. The defense to the claim of a pattern
and practice of discrimination would require much of
26
III. Section 1981 Claims
As to Plaintiffs' section 1981 claims, CPS moved to dismiss
either on summary judgment or for failure to state a claim.
Because the magistrate judge went beyond the parties' pleadings to
examine the substantive evidence, the motion is treated as one for
summary judgment. See FED.R.CIV.P. 12(b). We review a grant of
summary judgment de novo. Exxon Corp v. Burglin, 4 F.3d 1294, 1297
(5th Cir. 1993). We apply the same standard as did the district
court, that is, we will affirm if we find "that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." FED.R.CIV.P. 56(c).
The moving party bears the initial burden of showing that
there is no genuine issue for trial; it may do so by "point[ing]
out the absence of evidence supporting the nonmoving party's case."
Latimer v. Smithkline & French Laboratories, 919 F.2d 301, 303 (5th
Cir. 1990). To withstand a properly supported motion for summary
judgment, the nonmoving party must come forward with evidence to
support the essential elements of its claim on which it bears the
burden of proof at trial. Celotex Corp. v. Catrett, 106 S. Ct.
2548, 2552 (1986). If a rational trier could not find for the
nonmoving party based on the evidence presented, there is no
genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 106 S. Ct. 1348, 1355-56 (1986). We consider all
evidence in the light most favorable to the nonmoving party.
the same unavailable evidence needed to defend the
original . . . charge . . . . The prejudicial delay by
the EEOC tainted the entire action and justified its
dismissal." Id. at 89 (footnote omitted).
27
Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178
(5th Cir. 1990), cert. denied, 114 S. Ct. 171 (1993). Conclusory
allegations unsupported by specific facts, however, will not
prevent an award of summary judgment; "the plaintiff [can]not rest
on his allegations . . . to get to a jury without `any significant
probative evidence tending to support the complaint.'" Anderson v.
Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986) (citation
omitted).
On June 15, 1989, the Supreme Court held that section 1981's
guarantee of the right to make contracts did not extend to conduct
occurring after the employer-employee contract was formed.
Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2372 (1989).
Specifically, claims of discriminatory promotion practices were
cognizable under section 1981 "[o]nly where the promotion rises to
the level of an opportunity for a new and distinct relation between
the employee and the employer . . . ." Id. at 2377. At the time
Plaintiffs filed suit on November 29, 1989, therefore, this was the
rubric under which their claims were to be analyzed.
In the Civil Rights Act of 1991, enacted November 21, 1991,
Congress legislatively reversed Patterson. Section 1981 now
specifically states that, "[f]or purposes of this section, the term
`make and enforce contracts' includes the making, performance,
modification, and termination of contracts, and the enjoyment of
all benefits, privileges, terms, and conditions of the contractual
relationship." 42 U.S.C. § 1981(b). However, this section is not
to be given retroactive effect. Rivers v. Roadway Express, Inc.,
114 S. Ct. 1510 (1994); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363,
28
1374 (5th Cir. 1992), cert. denied, 114 S. Ct. 1641 (1994).
The only issue before us, therefore, is whether the district
court erred in its application of Patterson to Plaintiffs' section
1981 claims. The magistrate judge found Plaintiffs' pleadings
inadequate to state a cause of action under section 1981.
Moreover, he reviewed the summary judgment evidence and concluded
that Plaintiffs could not maintain a class claim under section 1981
because their evidence showed only two class members whose claims
conceivably showed a denial of promotion within the statute of
limitations.22 He therefore recommended that further leave to amend
the complaint be denied.
Plaintiffs contend their evidence satisfies the Patterson
standard. We disagree. The guiding principles in this area are
well-established: "`[R]outine increases in salary and
responsibility which are clearly part of an original contract of
employment' do not signal a new employment relation. `It would be
very odd to regard each rung on the career ladder as a different
employment relation.'" Uncle Ben's, 965 F.2d at 1370 (citations
omitted; alteration in original). The job descriptions that
Plaintiffs offer to prove their section 1981 claims show no more
than an orderly increase in salary, skill level, and
responsibilities. Laborers are distinguished from workers in the
better-paying manual occupations at CPS, including the foreman and
22
The district court correctly applied Texas's two-year
statute of limitations period to Plaintiffs' section 1981 and
section 1983 claims. Price v. Digital Equipment Corp., 846 F.2d
1026, 1028 (5th Cir. 1988) (section 1981); Peter Henderson Oil v.
City of Port Arthur, Texas, 806 F.2d 1273, 1274-75 (5th Cir.
1987) (section 1983).
29
supervisor positions to which Plaintiffs specifically allege they
are denied access, by level of training and experience.23 See id.
at 1371 ("Attainment of supervisory status does not alone create a
new and distinct employment relation. . . . [T]he change from a
non-supervisory to a supervisory position does not suffice by
itself to create a new employment relation."). Nothing in
Plaintiffs' evidence indicates that the denial of the promotions
they sought amounted to a denial of the opportunity to form a new
and distinct employment relationship.
Further, Plaintiffs have failed to offer evidence that CPS
intentionally discriminated against them. Such proof is an
essential element of a claim for relief under section 1981.
General Building Contractors Assn, Inc. v. Pennsylvania, 102 S. Ct.
3141, 3150 (1982). Plaintiffs have produced no summary judgment
evidence of intentional discrimination within the limitations
period. Finally, the summary judgment evidence showed no claimed
discriminatory acts within the limitations period respecting either
of the two individual class representatives, Diaz and Gaona. As
noted below, the district court did not abuse its discretion in
23
The job descriptions on which Plaintiffs rely clearly show
this progression. "Laborers (unskilled)" are categorized as
"[w]orkers in manual occupations which generally require no
special training . . . ." At the next level are "Operatives
(semiskilled)" whose duties are to "operate machine or processing
equipment or perform other factory-type duties of intermediate
skill level which . . . require only limited training." At the
top of the progression are "Craft Workers (skilled)," described
as "[m]anual workers of relatively high skill level having a
thorough and comprehensive knowledge of the processes involved in
their work. . . . [U]sually receive an extensive period of
training." Foremen and supervisors are included in the Craft
Worker category.
30
denying class certification.
Plaintiffs also argue that they were given inadequate
opportunity for discovery in order to respond to CPS's summary
judgment motion. Although the basis of Plaintiffs' contention is
somewhat unclear, their argument is unavailing in any event.
There are two possible bases for Plaintiffs' contention in
this regard. First, Plaintiffs direct us to their response to
CPS's motion to dismiss or for summary judgment, in which
Plaintiffs argued, in the alternative, that they be allowed a
continuance to conduct additional discovery pursuant to Rule 56(f).
This response was filed on March 21, 1990. Discovery did not close
until September 3, 1990. The district court's decision to allow a
continuance under Rule 56(f) is reviewed only for abuse of
discretion. SEC v. Recile, 10 F.3d 1093, 1098 (5th Cir. 1993).
Given the conclusory nature of Plaintiffs' request for continuance,
as well as the more than adequate time between the request and the
close of discovery, the district court did not abuse its discretion
in denying the motion. See id. ("[T]he request need not be
granted when the party opposing the motion `simply rel[ies] on
vague assertions that additional discovery will produce needed, but
unspecified facts,' particularly when `ample time and opportunities
for discovery have already lapsed.'") (footnotes and citations
omitted; second alteration in original).
Second, Plaintiffs find error in the denial of their motion to
reopen discovery, filed December 23, 1991. The stated purpose of
this motion was to allow Plaintiffs further discovery in light of
the adoption of the Civil Rights Act of 1991. Because, as
31
discussed above, the Act does not apply to this case, the district
court's decision to deny the motion was, at most, harmless error.
We will not consider other bases for reopening discovery that were
not urged before the district court. See Alford v. Dean Witter
Reynolds, Inc., 975 F.2d 1161, 1163 (5th Cir. 1992).
We affirm the dismissal without prejudice of Plaintiffs'
section 1981 claims.
III. Section 1983 Claims
The magistrate judge recommended dismissal without prejudice
of Plaintiffs' section 1983 claims sua sponte, reasoning that
Plaintiffs' proof of these claims was insufficient to justify class
treatment. The district court agreed. We could consider this
issue waived on appeal because Plaintiffs have failed to adequately
brief it. L & A Contracting v. Southern Concrete Services, 17 F.3d
106, 113 (5th Cir. 1994). In any event, the record not only amply
supports the district court's decision but also contains adequate
independent bases that justify affirmance. See Chauvin v. Tandy
Corp., 984 F.2d 695, 697 (5th Cir. 1993).
Plaintiffs have neither pleaded nor offered proof of crucial
elements of a section 1983 cause of action. To prove a cause of
action under section 1983 based on a violation of equal protection,
Plaintiffs are required, as under section 1981, to demonstrate
intentional discrimination; mere disparate impact will not suffice.
Washington v. Davis, 96 S. Ct. 2040, 2047 (1976). Plaintiffs have
offered no such sufficient evidence as to any actions within the
limitations period. Moreover, the summary judgment record shows no
claimed discriminatory acts within the limitations period
32
respecting either of the individual class representatives, and, as
below noted, the district court did not abuse its discretion in
denying class certification. Finally, a municipality such as the
City of San Antonio cannot be held vicariously liable for the
constitutional violations of its employees; to recover, Plaintiffs
must demonstrate that CPS maintained an official policy or custom
of discrimination. Monell v. Department of Social Services, 98
S. Ct. 2018, 2037-38 (1978); Hamilton v. Rodgers, 791 F.2d 439, 443
(5th Cir. 1986). This Plaintiffs have not done.
We therefore affirm the dismissal without prejudice of
Plaintiffs' section 1983 claims.
IV. Texas Constitutional Claims
Plaintiffs alleged violations of the Texas constitution's due
course of law, TEX. CONST. art. 19, § 1, and equal protection
provisions. Id. art. 1, § 3a. Because we find that the district
court properly dismissed all Plaintiffs' federal claims prior to
trial, dismissal of their pendant state law claims without
prejudice was well within the district court's discretion. Welch
v. Thompson, 20 F.3d 636, 644 (5th Cir. 1994).
V. Denial of Class Certification
The district court denied class certification as to the
section 1981, section 1983, and state law claims on the ground that
the putative class did not satisfy the numerosity requirement of
Rule 23(a)(1).24 To satisfy the requirements of Rule 23, Plaintiffs
24
Although the district court did not address Plaintiffs'
arguments with respect to class certification of their Title VII
claims, it would be pointless to remand this issue for further
consideration when we have already decided that the decision to
33
must demonstrate that "the class is so numerous that joinder of all
members is impracticable." FED.R.CIV.P. 23(a)(1). The magistrate
judge found only eleven putative class members who complained of
events occurring within the two-year statute of limitations; these
eleven did not include the named individual class representatives,
Diaz and Gaona.25 Moreover, of the eleven claims within the two-
year period, only two even arguably concerned denial of promotion
or of initial placement on a promotion "track."26 We review the
district court's decision to deny class certification for abuse of
discretion. Walker v. Jim Dandy Co., 638 F.2d 1330, 1334 (5th Cir.
1981).
Plaintiffs argue that the district court erred because the
class they propose to representSQall past, present, and future
employees of CPS's Gas and General Construction and Gas Operations
DepartmentsSQdoes satisfy the numerosity requirement. As discussed
dismiss the Title VII claims on the basis of laches was correct.
25
The magistrate judge correctly noted that the filing of the
putative class action tolls the running of limitations for all
purported class members. American Pipe and Construction Co. v.
Utah, 94 S. Ct. 756, 765-66 (1974). The Texas tolling rule, as
applicable here under Board of Regents v. Tomanio, 100 S. Ct.
1790, 1795 (1980), is the same. Grant v. Austin Bridge
Construction Co., 725 S.W.2d 366, 370 (Tex. App.SQHouston [14th
Dist.] 1987, no writ). After class certification is denied,
class members may choose to file their own suits. Crown, Cork &
Seal Co. v. Parker, 103 S. Ct. 2392, 2397-98 (1983).
26
One of these, Barba, claimed denial of opportunity for a
trainee position, but the magistrate judge noted that "Barba's
affidavit contains no facts suggesting, and does not even
generally allege, that he has been denied a trainee position
because of his race." As to the other, Raymond, who claimed she
was denied a clerk job, the magistrate judge noted her statement
that "I am part of this lawsuit because I think I am a victim of
sexual harassment."
34
above, Plaintiffs cannot rely on disparate impact analysis to prove
their section 1981 and section 1983 claims; they must show that CPS
had the intent to discriminate. The relevant inquiry is the number
of class members who can complain of particular acts demonstrating
such intentional discrimination. Putative class members whose
grievances are barred by the statute of limitations or who cannot
allege specific instances of discrimination within the relevant
time frame cannot be counted toward computation of the class.
Because only eleven putative class members could complain of
probative events within the statute of limitations, the district
court correctly denied class certification.27
Conclusion
For these reasons, the judgment of the district court is
AFFIRMED.
27
Boykin v. Georgia Pacific Corp., 706 F.2d 1384 (5th Cir.
1983), cert. denied, 104 S. Ct. 399 (1984), is inapposite. That
was a Title VII case, in which none of the potential claims were
barred by limitations or laches. We stated that the fact that
the presumptively appropriate minority share of promotions was
only twenty during the relevant period (none of which were filled
with minorities) did not preclude the requisite numerosity as the
largely statistically proved complaint included claims of all
those who were intiially denied preferable jobs and it was
impossible to identify which of those would have received the
theoretically appropriate twenty promotions. Here, by contrast,
all Title VII claims in this suit are barred. All other claims
arising before November 29, 1987, are also barred, and any
thereafter are restricted to intentional discrimination. Of the
latter, there are at most only eleven, and of these only two are
arguably promotion or promotion track claims (out of a workforce
of over three thousand).
35