Armour v. City of Anniston

597 F.2d 46, 19 Fair Empl. Prac. Cas. (BNA) 1761, 27 Fed. R. Serv. 2d 734, 1979 U.S. App. LEXIS 14017, 20 Empl. Prac. Dec. (CCH) 30,022

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 1979
• Docket: No. 77-1778
• Status: Published

Opinions

FAY, Circuit Judge:

Ida Armour appeals from an adverse judgment on her Title VII¹ claims. She argues that the evidence was insufficient for the court as finder of fact to conclude that her discharge was justified. In addition, she complains that the trial judge erred in denying her motion for a class action certification. We affirm.

We briefly iterate the facts insofar as they demonstrate that the trial judge’s factual determinations were not clearly erroneous, Fed.R.Civ.P. 52(a). Mrs. Armour, a black female, became a nurse’s aide at Anniston Memorial Hospital (the Hospital) on March 16, 1966. On January 13, 1972 she was granted a leave of absence to enter the Hospital as a patient for treatment of a back problem. During this stay, Mrs. Armour and Mrs. Mildred Laney, a white registered nurse who had previously supervised Mrs. Armour, argued over Mrs. Armour’s use of a radio at 2:30 A.M. Concerned that Mrs. Armour’s midnight interlude might not facilitate the sleep of Mrs. Armour’s 82 year old roommate who was scheduled for surgery in the morning, Mrs. Laney demurred. She later reported the incident to the Director of Nursing and a summary was placed in Mrs. Armour’s file.

Due to the radio incident, relations between Mrs. Laney and Mrs. Armour were not cordial. Consequently, Mrs. Armour was removed from Mrs. Laney’s shift. Her position on her former shift was then filled. Upon her return to work, Mrs. Armour was assigned to the second shift in the pediatric unit. She worked in this unit for five days prior to February 20, 1972. On February 20, 1972, Mrs. Armour reported for work and left a short time later. The parties’ stories differ on the crucial question of the circumstances of Mrs. Armour’s departure that day. The Hospital presented witnesses who testified that Mrs. Armour said she was leaving because she did not like to work with babies, who could not communicate their ailments. Mrs. Armour asserts that her reason was that she had no one to care for her own child while she worked. She testified that she was excused from work on February 20th for this reason. On the next day, Mrs. Armour called the Hospital to say that she could not work because she had no baby sitter. Yet she admitted to attending a meeting without her child during the time for which she was scheduled to work. Under her employment contract, Mrs. Armour was subject to termination for leaving or not appearing for work without permission.

On February 22, 1972, Mrs. Armour filed complaints with the Civil Service Board concerning the radio incident and the shift assignment. She also requested a leave of absence. The Hospital responded to the charge and also reported that Mrs. Armour left work without permission because she refused to work in pediatrics. The Hospital requested that Mrs. Armour be terminated. The Civil Service Board denied Mrs. Armour’s request and approved the Hospital’s request for authority to terminate her.

On June 7, 1972, Mrs. Armour filed a complaint with the Equal Employment Opportunity Commission, alleging racial discrimination as the cause of her discharge. A copy of the complaint was served on the Hospital on May 10,1974. A determination of “reasonable cause” was made by the Commission on September 16, 1974, and a notice of her right to institute a civil action was sent to Mrs. Armour on September 24, 1975. Thereafter, she filed this lawsuit. In her complaint, she asserted that her dismissal was a result of her race and of a request made by her in 1966 that black as well as white employees be referred to by courtesy titles. She requested back pay, reinstatement,' a declaratory judgment and an injunction against future discrimination. On June 8,1976, she amended her complaint to include a class action. On July 22, 1976, the court held a hearing and refused to certify the class.

A final judgment was entered against Mrs. Armour individually on March 8, 1977. The trial judge held alternatively that Mrs. Armour had failed to establish a prima facie case of Title VII discrimination² and that, even if she had, the Hospital had proved that her discharge was prompted not by race, but by her failure to report to work.

I. THE INDIVIDUAL CLAIM

We uphold the trial court’s decision that the Hospital was justified in discharging Mrs. Armour. The trial court was presented with conflicting evidence regarding the circumstances surrounding Mrs. Armour’s absence from work and the Hospital’s reasons for terminating her. Mrs. Armour testified that she left work and remained absent due to her inability to obtain a baby sitter. The Hospital presented witnesses who specifically refuted these facts and denied that Mrs. Armour had been excused from work on account of her responsibilities at home. Likewise, Mrs. Armour presented circumstantial evidence that her termination was racially motivated and the Hospital presented evidence that she was terminated for her failure to report for work. It is not our province on appeal to make the credibility choices necessary to decide this case. We are satisfied that there was ample evidence upon which the court could have made its finding. Constrained as we are by the clearly erroneous standard of Rule 52, we must uphold the trial court’s acceptance of the Hospital’s version of the facts surrounding Mrs. Armour’s absence from work and its reasons for discharging her.

II. THE CLASS ACTION

In addition to her individual claim, Mrs. Armour moved for the certification of a class consisting of all former and present black employees and applicants for employment at the Anniston Memorial Hospital and its successor entity, the Northeast Alabama Regional Medical Center.³ The trial court conducted a hearing and thereafter declined to certify the class. We need not assess the correctness of the court’s decision, since we hold that, in view of our affirmance of the dismissal of Mrs. Armour’s individual claim, she lacks the nexus necessary to represent the class of discriminatees. Davis v. Roadway Express, Inc., 590 F.2d 140 (1979); Camper v. Calumet Petrochemicals, Inc., 584 F.2d 70 (5th Cir. 1978) (per curiam); Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc), petition for cert. filed, 47 U.S.L.W. 3465 (Jan. 9, 1979).

The question here is whether an individual can represent a class after the dismissal of her individual claim has been affirmed on appeal where the trial court has held a class certification hearing and incorrectly⁴ refused to certify the class. In East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), the Supreme Court held that it was error to certify a class after its representative was found not to have a nexus with the class due to an adverse ruling on his individual claims. Following Rodriguez, in Satterwhite we affirmed the improper⁵ refusal to certify a class where the class representative was found at trial and on appeal to have no nexus to the class due to the lack of merit of her individual claim. In neither Rodriguez nor Satterwhite did the plaintiff move for a class certification hearing, and none was held. Finally, in Davis we held that Rodriguez controls where the trial court initially certified a class, but after a hearing decertified it; the representative could not represent the class under Fed.R. Civ.P. 23(a)(4) since, by the time the denial of the class certification was reviewed on appeal, it was clear that the representative had no individual cause of action.

Although Satterwhite noted in dictum that the absence of a class certification hearing at trial might make a difference in deciding whether to allow as a class representative an individual whose own claim had already been adjudicated against him,⁶ Davis recognized that, even where a class certification hearing has been held, a critical inquiry is whether the individual continued to have a nexus with the class sufficient to pass muster under Rule 23(a)(3). This is nothing more than saying that a class representative must meet all the criteria of Rule 23(a). Among those criteria are the separate requirements that the representative be able adequately to represent the class and that she have claims typical of the other class members. Although we have no other reason to question Mrs. Armour’s ability adequately to represent the class, we nonetheless deny her the right to represent the class, since both a nexus with the class and adequacy of representation are necessary ingredients under Rule 23(a).

On the facts of this case, “including the facts developed at the trial of the plaintiffs’ individual claims,”⁷ Mrs. Armour has no claim in common with the other putative class members. She herself admitted that she has not been a victim of discrimination in hiring or pay. At this point in the litigation it is also clear that Mrs. Armour has not been the victim of racial discrimination in her termination. Having suffered no discrimination at the hands of the defendants, Mrs. Armour is prevented by Rule 23 from representing this class.

Here, as in Satterwhite,⁸ there is no reason to expect hardship to befall putative and unknown class members. No one has come forward to join the class or to intervene on appeal. No one has been bound by Mrs. Armour’s attempt to establish a class. Finally, the same considerations applicable to the statute of limitations question in Satterwhite apply here.

Accordingly, we AFFIRM the trial court’s findings as to Mrs. Armour’s individual claim and AFFIRM the refusal to certify the class.

Affirmed.

1 . 42 U.S.C. § 2000e et seq. (1976).

2 . The trial judge construed Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), a section 1983 discrimination case, to require proof of discriminatory intent in Title VII cases as well. Mrs. Armour argues that the court committed reversible error on this point. We do not reach the question, however, because even if Mrs. Armour had established a prima facie case, it would have foundered under the court’s alternative finding that her dismissal was justified. We therefore hold only that the trial court was not clearly erroneous in finding that the Hospital had carried its burden of proof in showing that the discharge was not a product of discrimination. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

3 . After Mrs. Armour’s termination, the city of Anniston turned over the ownership and direction of the hospital to the newly established Regional Medical Center Board and changed its name to the Northeast Alabama Regional Medical Center.

4 . We assume, although we do not decide, that the trial court’s decision was incorrect.

5 . In Satterwhite, the court assumed, arguendo, that the trial court materially erred by failing to hold a class certification hearing. 578 F.2d at 993 and n. 7. Compare King v. Gulf Oil Co., 581 F.2d 1184 (5th Cir. 1978) (no prejudice shown).

6 . 578 F.2d at 995 n. 10. Footnote 10 notes that whether the representative moves for a certification hearing bears on his ability adequately to represent the class. This proposition stems from Rodriguez, where the Court considered adequacy of representation as a factor, in addition to nexus, in determining whether the representative met Rule 23(a) criteria.

7 . 431 U.S. at 406 n. 12, 97 S.Ct. at 1898. It is clear that the trial court did not violate the rule that a trial court should not consider the merits of the class representative’s claim in order to determine whether a class should be certified. Huff v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973) (en banc). Indeed the court repeatedly cautioned Mrs. Armour’s counsel that he should not present at the certification hearing any evidence which was relevant only to the merits of the case.

8 . 578 F.2d at 996-97.