Newton v. Kroger Co.

83 F.R.D. 449, 21 Fair Empl. Prac. Cas. (BNA) 110, 28 Fed. R. Serv. 2d 513, 1979 U.S. Dist. LEXIS 9855, 21 Empl. Prac. Dec. (CCH) 30,516
CourtDistrict Court, E.D. Arkansas
DecidedSeptember 12, 1979
DocketNo. PB-C-79-41
StatusPublished
Cited by7 cases

This text of 83 F.R.D. 449 (Newton v. Kroger Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newton v. Kroger Co., 83 F.R.D. 449, 21 Fair Empl. Prac. Cas. (BNA) 110, 28 Fed. R. Serv. 2d 513, 1979 U.S. Dist. LEXIS 9855, 21 Empl. Prac. Dec. (CCH) 30,516 (E.D. Ark. 1979).

Opinion

OPINION AND ORDER

ARNOLD, District Judge.

This employment discrimination action was initially brought against the employer and the union under 42 U.S.C. § 1981. Discrimination because of race is alleged. The plaintiff sought back pay and injunctive relief plus punitive damages and damages for emotional distress. The complaint was later amended to add Title VII allegations.

Kroger operates two retail food stores in the Pine Bluff, Jefferson County area. A third store was permanently closed in December, 1978. The defendant union is the certified bargaining representative for the non-supervisory employees in these stores, except for meat-department employees. The meat department apparently is a separate operation, and its employees are a part of a separate bargaining unit represented by a different union.

Each store has a manager and a co-manager, both management positions. Job titles for bargaining-unit employees include department head, clerk, deli-clerk and bagger. The collective-bargaining contract between the employer and the union contains seniority provisions which govern movement between bargaining-unit positions and entitlement to other benefits.

The plaintiff was hired by Kroger on May 15, 1974, as a part-time clerk and was assigned initially to store number 542 in Pine Bluff. He claims that he requested full-time status on several occasions, but was denied it because of his race. He was offered and accepted the position of full-time clerk in February, 1978, and was then transferred to store number 569 in Pine Bluff. He was employed full-time as a clerk until December, 1978, when Kroger closed store 569 permanently and transferred store employees to the other two Pine Bluff area stores. Plaintiff was made a part-time clerk. Although plaintiff claims personally to have been the victim of several discriminatory practices, it is clear that his major complaint concerns this demotion from full to part-time status in December, 1978. He also claims that he should have been classified as full-time prior to February, 1978.

[451]*451Currently pending is the plaintiff’s motion for class certification. The plaintiff wants to represent a broad class which he defines as follows:

[B]lack employees who are presently employed by defendant Kroger Company and members of defendant Union, former black employees and members of said Union who quit their employment because of the discriminatory employment practices, those black employees who were dismissed or fired by defendant Kroger Company, former black applicants who made application for employment with defendant Kroger Company, but because of the discriminatory employment practices and policies were not hired, [black potential applicants], and present black applicants for employment with defendant Kroger Company.

The complaint alleges only in a very general way the manner in which the employer allegedly discriminates against the class. The plaintiff’s deposition and answers to interrogatories, however, disclose the following specific allegations:

(a) Discrimination in hiring; and many blacks do not even apply for work because of Kroger’s known discriminatory practices.

(b) Discrimination in initial job assignments.

(c) Discrimination in promotions from part-time to full-time status, and in demotions from full to part-time status.

(d) Discrimination in work assignments; blacks are assigned the menial and less important tasks, such as cleaning the store. They are not given good jobs, such as in the office and in produce.

(e) Discrimination in promotions to supervisory and managerial positions.

(f) Discrimination in training opportunities for important jobs, such as head stock clerk and office jobs.

(g) Discrimination in the scheduling of hours. Blacks get to work fewer hours than whites; whites are given the opportunity for extra work not listed on the work schedule that is posted.

(h) Discrimination in discharges.

The defendant union is alleged to have failed to represent plaintiff adequately, and this failure, coupled with the union’s knowledge of discriminatory practices, allegedly amounts to a participation by the union in an unlawful scheme to deny equal employment opportunities to the plaintiff.

The question is whether class-action treatment is appropriate with the plaintiff as the class representative and, if so, what the scope of the class should be. In support of his argument that a broad class attacking a wide range of discriminatory practices would be appropriate, the plaintiff cites cases such as Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970), and Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir. 1973). These cases and others support the proposition that an individual plaintiff can launch a broad attack on discriminatory practices. There is strong reason to believe, however, that the breadth and application of this proposition have been substantially undercut by recent cases. In East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), the Court held that the class representative must be a member of the class and “possess the same interest and suffer the same injury as the class members.” Id. at 403, 97 S.Ct. at 1896. See also Tuft v. McDonnell Douglas Corp., 581 F.2d 1304 (8th Cir. 1978); Smith v. Merchants & Farmers Bank of West Helena, 574 F.2d 982 (8th Cir. 1978); Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979) (Haynsworth, C. J., Russell, J., and Lay, J., by designation). These cases require that the class representative allege that he or she has been the victim of the same discriminatory practices as the class alleged. And, of course, the plaintiff has the burden of establishing that class treatment is otherwise appropriate under Rule 23. The defendant employer opposes class certification for a number of reasons, most of which will be discussed. The defendant union has filed no opposition.

Each of the Fed.R.Civ.P. 23 requirements the plaintiff must meet will be discussed in turn.

[452]*452ADEQUACY OF REPRESENTATION

Kroger argues that for several reasons plaintiff is not an adequate class representative. A threshold requirement is that the class representative possess the same interest and suffer the same injury as class members, and Kroger argues that the only injury plaintiff is alleged to have suffered is the discriminatory denial of full-time status.

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Bluebook (online)
83 F.R.D. 449, 21 Fair Empl. Prac. Cas. (BNA) 110, 28 Fed. R. Serv. 2d 513, 1979 U.S. Dist. LEXIS 9855, 21 Empl. Prac. Dec. (CCH) 30,516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newton-v-kroger-co-ared-1979.