David L. SHEPARD, Jr., Et Al., Plaintiffs-Appellants, v. BEAIRD-POULAN, INC., Defendant-Appellee

617 F.2d 87, 29 Fed. R. Serv. 2d 1021, 1980 U.S. App. LEXIS 17555, 23 Empl. Prac. Dec. (CCH) 30,937, 22 Fair Empl. Prac. Cas. (BNA) 1735
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 14, 1980
Docket76-4229
StatusPublished
Cited by11 cases

This text of 617 F.2d 87 (David L. SHEPARD, Jr., Et Al., Plaintiffs-Appellants, v. BEAIRD-POULAN, INC., Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David L. SHEPARD, Jr., Et Al., Plaintiffs-Appellants, v. BEAIRD-POULAN, INC., Defendant-Appellee, 617 F.2d 87, 29 Fed. R. Serv. 2d 1021, 1980 U.S. App. LEXIS 17555, 23 Empl. Prac. Dec. (CCH) 30,937, 22 Fair Empl. Prac. Cas. (BNA) 1735 (5th Cir. 1980).

Opinions

THORNBERRY, Circuit Judge:

In this suit alleging racial discrimination under Title VII, 42 U.S.C. § 2000e-1 to 17 (1976), we must decide whether the district judge properly found that the appellee company did not discriminate against the appel[88]*88lant because of his race, and whether the case must be remanded because the judge denied appellant’s request for class certification. Because the judge properly found that the appellee company did not unlawfully discriminate against the appellant, and because the appellant does not have a sufficient nexus with his proposed class to allow appellate review of the judge’s ruling on class certification, we affirm the decision in the court below.

I. Facts.

Appellant Shepard began work as a utility man at Beaird-Poulan in September, 1973. The company gave him several raises in pay, and promoted him to machine operator in June, 1974. In the months after his promotion, Shepard’s supervisors counseled and warned him about his excessive tardiness and absences. Despite a verbal warning by a supervisor on September 30, 1974, Shepard was tardy nine times and absent twice within the next sixteen days. After a meeting between Shepard and his supervisors on October 15, the company terminated his employment.

Shepard and another discharged employee filed suit in May, 1975, on behalf of themselves and a class of all other black present and former employees and applicants who suffered racial discrimination by the company because they were wrongfully terminated, mistreated, or denied jobs or promotions. Shepard specifically alleged that he had been harassed by his supervisor because of his race, and that he had been fired in retaliation for filing racial discrimination complaints with the EEOC on April 29 and July 22, 1974. Two other discharged employees intervened individually later in the suit.

On April 30, 1976, the parties’ counsel conferred in chambers with the district judge about problems with discovery and interrogatories. On June 16 the judge issued a memorandum order denying plaintiffs’ proposed class certification. The memorandum recited that at the April 30 status conference the judge told plaintiffs’ counsel to submit within thirty days a statistical analysis of the company’s work force to show evidence of racial discrimination. The memorandum said that because plaintiffs’ counsel had not filed the statistical analysis, the motion for class certification was denied. The plaintiffs did not request an evidentiary hearing about class certification.

After a four-day trial on the plaintiffs’ individual claims, the judge found for the company on all counts. Only Shepard appeals from the judgment.

II. Factual Findings.

Shepard asserts that the judge erred when he found that the company fired him solely because of his tardiness, absences, and attitude, and not because of his race. In a Title VII suit,

the plaintiff must present a prima facie case of racial discrimination; the employer then has the burden of proving, by a preponderance of the evidence, that legitimate, nondiscriminatory reasons existed to support his action; and the plaintiff then has the burden of proving by a preponderance that the employer’s articulated reason was a pretext for discrimination.

Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1256 (5th Cir. 1977). On appeal, the judge’s ultimate finding of discrimination requires independent review, but the findings of subsidiary facts that support the ultimate finding must be upheld unless they are clearly erroneous. Causey v. Ford Motor Co., 516 F.2d 416, 421 (5th Cir. 1975).

The judge’s findings of subsidiary facts which support his ultimate finding that the company did not engage in racial discrimination are not clearly erroneous. Employees and supervisors, both blacks and whites, testified that the company treated Shepard in the same manner that they treated other employees, whether black or white. A black supervisor and a white supervisor, both of whom counseled Shepard about his tardiness and absences, testified that Shepard was not interested in improving his behavior. Both black and white supervisors recommended that Shepard be [89]*89terminated. The evidence showed that the company routinely terminated white employees for similar tardiness and absences. Most of the evidence tending to show that Shepard suffered racial discrimination came from Shepard’s own testimony. In light of the evidence in the record, we affirm the judge’s finding that the company did not unlawfully discriminate against Shepard because of his race.

III. Denial of Class Certification.

Shepard contends that the judge erred because he denied Shepard’s motion for class certification without first holding an evidentiary hearing. The judge’s memorandum order denying class certification recites that Shepard’s motion was denied because his counsel failed to file a statistical summary within the time limit set by the judge at the status conference on April 30. In the findings of fact and conclusions of law, the judge further explains that he denied class certification because

[w]e find as a fact that plaintiffs and their counsel would not be adequate class representatives since, prior to denial of class certification, they failed diligently to prosecute this action, failed to comply with the orders of the Court concerning discovery and submission of evidence on the question of class certification and failed to demonstrate that they would or could fairly and adequately represent the interests of the class.

Supp.App. at 521. Shepard did not request an evidentiary hearing on these issues at any time.

The judge erred when he denied class certification without first holding an evidentiary hearing. In Guerine v. J & W Investment, Inc., 544 F.2d 863, 865 (5th Cir. 1979) (per curiam), we held that a trial judge must hold an evidentiary hearing before revoking class certification on grounds that the plaintiff would not adequately represent the class’s interests. In Guerine, the judge had revoked certification without an evidentiary hearing even after plaintiff had changed counsel and offered factual justification for the previous counsel’s delays and omissions. Shepard does not offer such a compelling justification for his conduct during this litigation, although he does contend that at the April 30 status conference the judge never mentioned a deadline for filing the statistical summary. In any event, the judge should have conducted an evidentiary hearing to establish whether Shepard could satisfactorily justify any delays or omissions.

Even though we agree with appellant Shepard that the judge should have held a hearing, we cannot remand this case on the class certification issue because we are constrained by Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc), petition for cert. filed, 47 U.S.L.W. 3465 (U.S. Dec. 28, 1978) (No. 78-1008), and its Fifth Circuit progeny. In

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617 F.2d 87, 29 Fed. R. Serv. 2d 1021, 1980 U.S. App. LEXIS 17555, 23 Empl. Prac. Dec. (CCH) 30,937, 22 Fair Empl. Prac. Cas. (BNA) 1735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-l-shepard-jr-et-al-plaintiffs-appellants-v-beaird-poulan-ca5-1980.