Appeal from the United States District court for the Northern District of Illinois, Eastern Division. No. 73 C 1751 -- Nicholas J. Bua, Judge.
Before Swygert, Sprecher and Bauer, Circuit Judges.
The following issues are raised in this appeal: (1) whether the district court erred in holding that plaintiff's suit was not properly maintainable as a class action; (2) whether the district court erred in granting summary judgment against plaintiff on several claims of discrimination by his employer and on his claim of inadequate representation by his union;*fn1 and (3) whether the district court erred in dismissing under Federal Rule of Civil Procedure 41(b) plaintiff's claim of discrimination which did go to trial. We answer all of these questions in the negative and affirm the judgments below.
Plaintiff, Fred E. Patterson, sued his employer, General Motors Corporation (GM), his union, the United Auto, Aerospace and Agricultural Implement Workers of America (the Union) and his local, Local 719 (the Local), for discriminating against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiff is a black citizen of the United States and has been a welder for more than thirty years at GM's Electro-Motive facilities in Chicago, Illinois.
Patterson first filed a pro se suit in this case on July 6, 1973. Since that time, however, counsel has been appointed for him and two subsequent amended complaints have been filed. In his second amended complaint, filed March 5, 1974, plaintiff purported to represent a class
composed of Negro persons and other minority workers who are employed, or might be employed, by GENERAL MOTORS at its Electro-Motive facilities at La Grange, Illinois; at 900 East 103rd Street, Chicago; at Willow Springs, Illinois; and at its Parts Plant in Chicago, Illinois. The class comprises the foregoing persons, present or future members of the LOCAL, who have been and continue to be or might be affected by the practices complained of herein.
Second Amended Complaint at 2-3, in Appendix at 72-73.
In Count I of the complaint, plaintiff prayed for a declaratory judgment with respect to his civil rights and for a preliminary injunction to restrain defendants (1) from racially discriminating against him and members of the class with respect to compensation, terms, conditions and privileges of employment and (2) from limiting, segregating and classifying GM employees in ways which deprive the class of equal employment opportunities. Second Amended Complaint at 3, in Appendix at 73. In particular, plaintiff alleged that GM acted in concert with the Union and the Local to institute and maintain the following unlawful practices:
A. Replacing the plaintiff on his job with a White worker of lesser seniority and experience.
B. Failing to promote the plaintiff.
C. Maintaining an essentially all-White department.
D. Harassing the plaintiff, both directly and in collusion with the defendant Union and Local, in retaliation for seeking the redress of various grievances through State and Federal agencies, including the following specific acts:
(i) Terminating the plaintiff's employment on various occasions.
(ii) Forcing him to return prematurely from medical leave.
(iii) Improperly making available to rival Union members company records.
(iv) Erroneously charging plaintiff with violation of various shop rules.
(v) Wrongfully penalizing plaintiff for violation of these erroneous charges.
(vi) Conspiring with The Union in removing the plaintiff from The Union's "Fair Employment Practices Committee".
(vii) Conspiring with The Union in preventing plaintiff from being elected to Committeeman.
Second Amended Complaint at 4-5, in Appendix at 74-75.*fn2
In Count II of the complaint, plaintiff alleged that the Union and the Local had breached the duty of fair representation imposed on them by the National Labor Relations Act and that GM had knowingly participated in or acquiesced in that breach. According to plaintiff, the duty of fair representation was breached when the Union and the Local acquiesced and joined in the discriminatory policies enumerated in Count I and failed to protect him and members of the class from those discriminatory policies. Second Amended Complaint at 6, in Appendix at 76.
On May 16, 1974, by agreement of the parties, the defendant Union was dismissed with prejudice, so that only GM and the Local remained as defendants. See Record on Appeal, Volume I, Document No. 23. On September 26, 1974, the lower court refused to certify plaintiff's suit as a class action. Patterson v. General Motors, No. 73 C 1751 (N.D.Ill. Sept. 26, 1974). Plaintiff appeals from that determination.
On June 14, 1976, the lower court granted summary judgment against plaintiff on all except one of his claims of discrimination. Patterson v. General Motors, No. 73 C 1751 (N.D.Ill. June 14, 1976). In the one claim that did go to trial, the court granted defendant's motion under Rule 41(b) to dismiss the suit at the close of plaintiff's evidence because he had failed to show a right to relief under the facts and the law. Patterson v. General Motors, No. 73 C 1751 (N.D.Ill. July 26, 1976); Appendix at 27-28. Plaintiff also appeals from both of those determinations.
We will first address plaintiff's argument that the lower court erred in refusing to certify his suit as a class action. Recognizing that a trial court's determination of whether a suit is properly maintainable as a class action may be set aside only if the court has abused its discretion, Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977), plaintiff argues that the lower court did abuse its discretion by erroneously applying to his case the requirements for class action certification.
Federal Rule of Civil Procedure 23 clearly outlines the prerequisites to a class action:
(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.
Contrary to plaintiff's assertion that a class action is appropriate "in all instances (in which) the discrimination in employment was racial, even though the discrimination may have been manifested in a variety of practices affecting different class members in different ways and at different times," Brief of Plaintiff at 40, it is clear that such a blanket rule is not a proper statement of the law. Rather, the proper analysis is precisely the one employed by the lower court: whether the action meets all of the requirements of Rule 23(a). See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S. Ct. 1891, 1897-98, 52 L. Ed. 2d 453 (1977). As the following discussion will show, plaintiff's action meets none of the requirements of Rule 23(a).
We will first consider whether the class which plaintiff purports to represent is so numerous that joinder of all members would be impracticable. See Fed.R.Civ.P. 23(a)(1).
As stated by the district court, "(unlike) the typical Title VII class action case, this is not a case challenging a general employment policy such as testing, seniority rules, weight lifting restrictions, pregnancy policies or other policies of general application which clearly relate to a class of numerous similarly situated employees." Patterson v. General Motors, No. 73 C 1751 (N.D.Ill. Sept. 26, 1974) at 3. Indeed, except for his assertion that he was filing suit on behalf of all minority workers at GM, plaintiff's complaint was not framed in class action terms at all. Although he did state that the defendants' discriminatory policies adversely affected the purported class, he nowhere substantiated that claim with any factual allegations of classwide discrimination. The facts alleged in plaintiff's complaint relate solely to plaintiff's personal grievances. See Part I, supra. As the court said in Gresham v. Ford Motor Co., 53 F.R.D. 105 (N.D.Ga.1970):
(This) appears to be a case of particular action taken against an individual, resolution of the dispute involving which will require only examination of the particular facts involved in each (allegation).
Id. at 106-07. Plaintiff has not indicated that any other employee has ever been discriminated against in the same way or that there is the likelihood of such a future class ever existing. We hold that the class is purely speculative and that plaintiff has failed adequately to meet the numerosity requirement of Rule 23(a)(1) of the Federal Rules of Civil Procedure. See O'Brien v. Shimp, 356 F. Supp. 1259, 1266 (N.D.Ill.1973).
By the same token, we hold that plaintiff has failed adequately to demonstrate that there are questions of law or fact common to the class. See Fed.R.Civ.P. 23(a)(2). Although a class action will not be defeated solely because of some factual variations among class members' grievances, see Donaldson v. Pillsbury Co., 554 F.2d 825, 831 (8th Cir.), cert. denied, 434 U.S. 856, 98 S. Ct. 177, 54 L. Ed. 2d 128 (1977), plaintiff in this case has simply asserted no facts relating to other members of the purported class. Moreover, "even if the plaintiff were to specify grievances of other members of the purported class, the acts for which plaintiff complains are not susceptible to class treatment." Patterson v. General Motors, No. 73 C 1751 (N.D.Ill. Sept. 26, 1974) at 6. A certifiable class claim must arise out of the same legal or remedial theory, see Donaldson, supra, 554 F.2d at 831, and grievances of other employees similar to those asserted by plaintiff would not meet that requirement. The issue of whether a particular job assignment or promotion denial was discriminatory would depend upon any number of factors peculiar to the individuals competing for the vacancy, including relative seniority, qualifications, availability for work and desire to perform the job. Each disciplinary action would present a different set of facts for each employee. "In other words, the plaintiff's claims do not relate to general policies or practices which are allegedly discriminatory, but rather to individualized claims of discrimination which could not possibly present common questions of law or fact sufficient to justify class action treatment." Patterson v. General Motors, No. 73 C 1751 (N.D.Ill. Sept. 26, 1974) at 7.
In addition, plaintiff's claim does not meet the requirement that the claims or defenses of the representative party be typical of the claims or defenses of the class. See ...