Gilchrist v. Bolger

89 F.R.D. 402, 32 Fed. R. Serv. 2d 856, 1981 U.S. Dist. LEXIS 9418, 25 Fair Empl. Prac. Cas. (BNA) 67
CourtDistrict Court, S.D. Georgia
DecidedFebruary 18, 1981
DocketCiv. A. No. 179-024
StatusPublished
Cited by28 cases

This text of 89 F.R.D. 402 (Gilchrist v. Bolger) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilchrist v. Bolger, 89 F.R.D. 402, 32 Fed. R. Serv. 2d 856, 1981 U.S. Dist. LEXIS 9418, 25 Fair Empl. Prac. Cas. (BNA) 67 (S.D. Ga. 1981).

Opinion

ORDER

BOWEN, District Judge.

In this Title VII action pursuant to section 717, 42 U.S.C. § 2000e-16, named plaintiffs assert individual and class action allegations of employment discrimination by the United States Post Office in Augusta, Georgia. Plaintiffs Gilchrist and Rouse are ethnically identifiable as black. Gosneigh asserts that she is ethnically identifiable as Eurasian. Their respective individual claims are as follows: (1) plaintiff Gilchrist, an employee at the Augusta, Georgia, Post Office as a letter sorting machine operator, avers that, despite her qualifications, defendant has failed and refused to promote her on the basis of race; (2) plaintiff Rouse, an employee at the Augusta, Georgia, Post Office as a letter sorting machine operator, avers that, despite his eligibility and qualifications, defendant has refused his request for on-the-clock training in Mail Classification on the basis of race; and (3) plaintiff Gosneigh avers that she was terminated as an employee at the Augusta, Georgia, Post Office on the basis of race.

In support of the class action allegations, plaintiffs assert the following in paragraph 18 of their complaint:

The Augusta, Georgia, Post Office continues to hire and promote blacks and other minorities on a basis and in a manner which is purposely used to discriminate against blacks and other minorities based upon race,

and the following in paragraph 19 of their complaint:

The Augusta, Georgia, Post Office has in the past, and continues to assign, compensate and promote blacks and other minorities in a manner which discriminates against blacks and other minorities.

Defendant has moved to dismiss the class action allegations of plaintiffs’ complaint and in opposition to plaintiffs’ motion to certify the class.

On April 18, 1980, plaintiffs moved to certify this action as a class action. Fed.R.Civ.P. 23(c)(1). Plaintiffs seek to define the class as consisting of “all past and future applicants and present employees of the Augusta, Georgia, Post Office who have been, are being or will be exposed to racial discrimination in violation of Title VII of the Civil Rights Act of 1964.” By motion supported by several briefs, defendant opposes class certification on the following grounds: (1) commonality and typicality requirements are not satisfied in that plaintiffs have made no showing of general employment discrimination practices by defendant so as to warrant class action relief and that the representative plaintiffs do not have a sufficient nexus with the purported class members; and (2) the numerosity requirement is not met.

In resolving a motion for class certification, the Court must determine whether all four prerequisites of Fed.R.Civ.P. 23(a) are met and whether at least one of the three genres of class suits prescribed in Rule 23(b) is present. See generally 3B Moore’s Federal Practice Manual ¶ 23.50 (2d ed. 1980). Such a determination rests within the considered discretion of the district court. The question is ordinarily procedural and does not reach the merits of the case. Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980); Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980). But cf. Shepard v. Beaird-Poulan, Inc., 617 F.2d 87, 90 (5th Cir. 1980) (“adjudicated lack of merit of the [class representative’s] individual claim is a proper factor in determining whether a continuing nexus within the class exists). See Guerine v. J & W Inv., Inc., 544 F.2d 863 (5th Cir. 1977). The burden of proof on the propriety of class certification rests with the proponent of the class. Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975).

A central issue, raised by defendants, in challenging plaintiffs’ satisfaction of commonality and typicality requirements is that named plaintiffs have not demonstrated a sufficient “nexus” between their indi[405]*405vidual status and the status of the putative class members to show the existence of a homogeneous class. Of course, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974)). The nexus requirement is often couched in terms of “standing” in an “extra-constitutional sense, ... as legal shorthand for one or more of the prerequisites set forth in Rule 23(a),” Moore’s, supra ¶ 23.04[2], at 23-128, ordinarily typicality and commonality.1

The Fifth Circuit has applied the nexus requirement liberally in employment discrimination cases, adopting a policy favoring “across the board” Title VII class actions. See Satterwhite v. City of Greenville, 578 F.2d 987, 993 n.8 (5th Cir. 1978) (en banc), vac. and remanded on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980) (“it is not necessary that the representative suffer discrimination in the same way as other class members, but it is necessary that she suffer from the discrimination in some respect.”); Long v. Sapp, 502 F.2d 34 (5th Cir. 1974); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). As recently stated by Judge Tuttle, “this Court [the Fifth Circuit] permits an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury.” Falcon v. General Telephone Co., 626 F.2d 369, 375 (5th Cir. 1980). See also Payne v. Travenol Laboratories, Inc., 565 F.2d 895 (5th Cir.), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). This liberal policy reflects the pervasive judicial concern in the Fifth Circuit that the congressional purposes embodied in Title VII be given full force and effect. See Long, supra, 502 F.2d at 43. The attitude is manifest in Judge Godbold’s comments that:

racial discrimination, which is by definition class discrimination, is a particularly virulent form of employment discrimination, because it is generally both subtle and pervasive.

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89 F.R.D. 402, 32 Fed. R. Serv. 2d 856, 1981 U.S. Dist. LEXIS 9418, 25 Fair Empl. Prac. Cas. (BNA) 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilchrist-v-bolger-gasd-1981.