Roundtree v. Cincinnati Bell, Inc.

90 F.R.D. 7, 22 Fair Empl. Prac. Cas. (BNA) 960, 28 Fed. R. Serv. 2d 1101, 1979 U.S. Dist. LEXIS 8089, 22 Empl. Prac. Dec. (CCH) 30,712
CourtDistrict Court, S.D. Ohio
DecidedDecember 10, 1979
DocketNo. C-1-78-315
StatusPublished
Cited by8 cases

This text of 90 F.R.D. 7 (Roundtree v. Cincinnati Bell, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roundtree v. Cincinnati Bell, Inc., 90 F.R.D. 7, 22 Fair Empl. Prac. Cas. (BNA) 960, 28 Fed. R. Serv. 2d 1101, 1979 U.S. Dist. LEXIS 8089, 22 Empl. Prac. Dec. (CCH) 30,712 (S.D. Ohio 1979).

Opinion

DECISION AND ORDER

DAVID S. PORTER, Senior District Judge.

This cause of action is brought pursuant to 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. §§ 1981, 1985. It alleges that defendant Cincinnati Bell, Inc., discriminated against black employees by denying them promotions and raises based upon their race.

Before the Court at this time is the consideration of whether plaintiff should proceed with this lawsuit as a class action. While plaintiff failed to move for a pretrial class certification pursuant to S.D.Ohio R. 3.9.3, this Court nevertheless ordered a hearing on this issue (doc. 13, August 30, 1979). This Order was proper because it is the rule of the Sixth Circuit that the provisions of Fed.R.Civ.P. 23(c)(1), requiring class certification decisions “as soon as practicable” after commencement of an action, are mandatory and require district courts to enter orders of determination whether requested by the parties or not. Alexander v. AERO Lodge No. 135, 565 F.2d 1364, 1371 (6th Cir. 1977); Senter v. General Motors Corp., 532 F.2d 511, 521 (1976), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). But see East Texas Motor Freight v. Rodriquez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977). The hearing was held October 28-29, 1979. The Court has considered the evidence presented at the hearing as well as the argument, memoranda, and other submissions of counsel. For the reasons set forth below, we hold that certifying plaintiff as a representative for any class of persons would be inappropriate in this case. Plaintiff may, of course, pursue his claim individually.

In his complaint, plaintiff contends his cause of action can be certified as a class action pursuant to Fed.R.Civ.P. 23(b)(2) (doc. 1, ¶ 5). To sustain this contention plaintiff must satisfy all four of the prerequisites contained in Rule 23(a) and then demonstrate that the class he seeks to represent falls within Rule 23(b)(2). Senter, supra, 532 F.2d at 522; 3B Moore’s Federal Practice ¶ 23.03 at 23-109 (1979). See Rodriquez, supra, 431 U.S. at 405, 97 S.Ct. at 1897.

Rule 23(a) provides:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

For purposes of determining if the class forwarded by plaintiff “is so numerous that joinder of all members is impracticable,” there is, contrary to defendant’s assertion (doc. 14, p. 14), no Sixth Circuit rule on the minimum size of a class. Indeed, the Sixth Circuit has stated, “[tjhere is no specific number below which class action relief is automatically precluded. Impracticability of joinder is not determined according to a strict numerical test but upon the circumstances surrounding the case.” Senter, supra, 532 F.2d at 523 n. 24; see Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970) and see generally 3B Moore’s Federal Practice, supra, ¶ 23.05[1]; 1 New-berg on Class Actions § 1105d (1977). In determining the impracticability issue a court may take into account factors such as the estimated size of the class, the geographic diversity of potential class members, and the type of relief sought. Id. §§ 1105a-1105g.

In this case the Court cannot conclude that joinder would be impracticable. First of all, the potential size of the class is difficult to focus on. Plaintiff has presented summary documents from the Equal Employment Opportunity Commission and Ohio Civil Rights Commission showing that 33 to 36 persons filed race related employ[9]*9ment discrimination charges with those commissions since 1973 (plaintiff’s exhibits 2, 4). Defendant challenges the relevancy of the documents because they do not indicate if the charges relate to promotion and retaliation, which are the subjects of plaintiff’s complaint. Defendant put forward evidence that only seven employees have filed charges of race discrimination in promotion policies with the two commissions since 1972, and that only two employees have filed charges relating to retaliation (Testimony of Kenneth Victor). This variance in the evidence makes no difference in this case because even if the highest figure of 36 is used, that number is not great enough to cause impracticability of joinder in the circumstances of this case. There has been no direct proof of geographic diversity among the potential class members, but the evidence adduced by plaintiff regarding the charges filed with the two commissions indicates that complaining employees reside in the Cincinnati area. Thus, the geographic diversity of potential class members is minimal. Third, plaintiff’s complaint asks for both injunctive relief and damages, but concentrates on monetary relief peculiar to plaintiff’s individual grievances. This concentration indicates that the evidence submitted in this case would not bear on conditions relevant to a large number of persons. In sum, the numerosity requirement of Rule 23(a)(1) is not met in this case because of the small number of potential class members, their lack of geographic diversity, and the individual nature of the relief sought.

The commonality and typicality requirements of Rule 23(a)(2) and (a)(3) are also not met in this case. The Court realizes that lawsuits alleging racial discrimination in employment practices are often by their very nature class suits. Rodriquez, supra, 431 U.S. at 405, 97 S.Ct. at 1897. A potential class representative’s claims must, however, be scrutinized in the light of Rule 23(a) requirements to insure that common questions and typical claims are present. In this case plaintiff’s complaint specifically alleges that he was denied a “transfer and promotion to Building Watchman” (doc. 1, ¶ 4). The complaint asserts that such events are typical of defendant’s treatment of its black employees but the complaint does not state any supportive factual allegations. Id. ¶ 10. Plaintiff is correct in pointing out that the Sixth Circuit has taken an indulgent view of allegations of employment discrimination, and noted that they establish “ ‘perforce a sort of class action for fellow employees similarly situated.’ ” Tipler v. du Pont, 443 F.2d 125, 130 (6th Cir. 1971). See McBride v. Delta Air Lines,

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90 F.R.D. 7, 22 Fair Empl. Prac. Cas. (BNA) 960, 28 Fed. R. Serv. 2d 1101, 1979 U.S. Dist. LEXIS 8089, 22 Empl. Prac. Dec. (CCH) 30,712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roundtree-v-cincinnati-bell-inc-ohsd-1979.