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

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 9, 1994
• Docket: 92-05549
• Status: Published

Opinion

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).