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CITIZENS SAVINGS AND LOAN ASSOCIATION, a corporation, Defendant.
No. C-75-1822 WHO.
*803 *804 Elizabeth G. Leavy, Carroll, Burdick & McDonough, San Francisco, Cal., for plaintiff.
A. James Robertson, II, Lawrence L. Curtice, Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco, Cal., for defendant.
Plaintiff, Marian Lim, an Asian female formerly employed by the defendant, Citizens Savings and Loan Association (Citizens), charges Citizens with discriminating against her, first, by failing to promote her and, second, by discharging her. She brings this suit under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), as well as under 42 U.S.C. § 1981, and moves to certify a class under Rule 23(a) and 23(b) (2) of the Federal Rules of Civil Procedure. This case is here on plaintiff's motion for class certification and defendant's motion for summary judgment with respect to plaintiff's individual claim. For the reasons hereinafter stated, the Court denies the motion to certify the class and grants defendant's motion for summary judgment.
The original complaint in this action was filed on August 29, 1975; subsequently, plaintiff filed an amendment adding reinstatement to her demands for relief. Specifically, the class complaint on behalf of female and Asian employees charges discriminatory practices with respect to, inter alia, compensation, promotion, testing and rating, leaves of absence, and opportunities for on-the-job training.
In addition, the complaint alleges that Citizens was in violation of 42 U.S.C. § 2000e-2(a) and 42 U.S.C.A. § 1981 in that it refused to promote and subsequently discharged plaintiff solely because of her race and sex.
Plaintiff worked for Citizens from 1960 until April 1, 1974, when she took a medical *805 leave of absence. During that time she filled a variety of positions, mostly as a clerk of one sort or another, though she allegedly developed thereby some expertise in the more managerial aspects of banking (loan policies, auditing, etc.).
The individual aspect of this lawsuit is based on two alleged incidents of discrimination. First, in January, 1970, plaintiff was transferred from her allegedly supervisory position in the Insurance Department to the position of Installment Credit Clerk. Plaintiff alleges that she consented to this transfer on the promise that she would be promoted to Installment Loan Officer if she helped set up the new Installment Loan and Credit Department. However, as the Department expanded, a Caucasian male and not plaintiff was hired as Loan Officer.
Second, in May 1974, while on a two month medical leave of absence, plaintiff was notified that her job as Loan Documentation Auditor would be terminated. Plaintiff's co-worker, a Caucasian female, allegedly continued to work as Loan Documentation Auditor until November, 1974, when her position was terminated as well. In June, 1974, Citizens hired, at a salary higher than plaintiff's, a Caucasian male as Senior Loan Auditor. The Senior Loan Auditor position was a newly created job classification designed to supersede the Loan Documentation Auditor positions. Thus, plaintiff and her co-worker were effectively replaced.
Plaintiff here seeks certification of a Federal Rules of Civil Procedure 23(b) (2) class for the purposes of this lawsuit. Defendant opposes certification on essentially two grounds, namely: (1) there is no class, particularly with regard to the typicality requirement of Rule 23(a) (3) of the Federal Rules of Civil Procedure, and (2) plaintiff is not an adequate representative of any class there might be. Fed.R.Civ.P. 23(a) (4).
"* * * By definition an essential prerequisite to a class action is the existence of a `class'. However, numerosity alone does not create a right; therefore, given a purported class, the individual members must possess a right or rights." 3B J. Moore, Federal Practice ¶ 23.04, at 23-251 (2d ed. 1975).
It is beyond dispute that the party seeking certification (plaintiff here) bears the burden of establishing that the action meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. Nguyen Da Yen v. Kissinger, 70 F.R.D. 656 (N.D. Cal.1976); Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974).
How then is the trial court to determine whether plaintiff has met this burden, in this case the burden of establishing the existence of a class?
With this reading in mind, it is necessary to determine what constitutes going into the "merits" of a lawsuit.
In the instant case, the only support for plaintiff's allegations of class discrimination, after a year of discovery on the matter, are: (1) wholly conclusory allegations, essentially parroting the language of 42 U.S.C. § 2000e-2 in plaintiff's complaint and motions; (2) a four-and-a-half page affidavit of named plaintiff filed October 7, 1976, in which she conclusorily states: "I believe that all women and Asian employees, past, present and prospective and all applicants for employment have been * * discriminatorily treated"; and (3) statistics indicating that in defendant's work force female and Asian employees are concentrated in lower-paying, lower-status (i.e., clerk as opposed to managerial) jobs.
In reply to this statistical showing by defendant, plaintiff argues two points. First, plaintiff contends that she "need not prove that Asians and females are discriminated against at the class certification stage". In other words, plaintiff claims that she has made a prima facie case for discrimination and that to consider defendant's statistical parries would constitute delving into the merits in violation of the Eisen rule.
Although Albemarle and Ironworkers are both cases going to the merits of a Title VII claim, both excerpts quoted deal with the establishment of a prima facie case. It seems clear that although Title VII plaintiffs are not required, for class certification purposes, to present more than a prima facie case of class discrimination, Title VII plaintiffs must, in the certification process, make some sort of prima facie class showing, particularly where reliance is placed by plaintiff's choice solely on statistics. See, e.g., Rodriguez v. East Texas Motor Freight, supra, 505 F.2d at 52. The difference is that a prima facie showing of class discrimination ends the certification process, yet merely begins the case on the merits. In either instance, however, the prima facie showing has meaning only in terms of the relevant labor or applicant pool, as Albemarle and Ironworkers indicate.
Now I turn to the question of whether the Court can at this time in the proceedings during the class certification process take cognizance of defendant's showing as to the relevant California labor pools. I conclude that it can.
Although the requirements of Rule 23 of the Federal Rules of Civil Procedure are to be liberally construed and although class actions are often appropriate in employment discrimination cases (Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3rd Cir. 1975); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969)), class actions are not automatic in Title VII suits and petitioners must meet the prerequisites of Rule 23. Taylor v. Safeway Stores, Inc., supra; Kinsey v. Legg, Mason & Co., supra.
In order to satisfy the Rule 23 requirement that there be a class, along with the Rule 23 requirement of typicality, the complaint on behalf of the class must be more than frivolous. Mason v. Calgon Corp., 63 F.R.D. 98 (W.D.Pa.1974). Plaintiff must allege facts tending to show that defendants engaged in class discrimination if a class action is to be maintained. Bald assertions of widespread employment discrimination are not sufficient to satisfy the *808 class existence or typicality requirements of Rule 23 of the Federal Rules of Civil Procedure. Taylor v. Safeway Stores, Inc., supra; Kinsey v. Legg, Mason & Co., supra. See also, Valentino v. Howlett, 528 F.2d 975 (7th Cir. 1976). Thus, the Court must be able to review the sufficiency of class allegations as part of the certification determination.
"In ruling on a class action a judge may consider reasonable inferences drawn from facts before him at that stage of the proceedings, and an appellate court will generally defer to the District Court's determination." Senter v. General Motors Corp., 532 F.2d 511, 523 (6th Cir. 1976).
See also, Clark v. Watchie, 513 F.2d 994 (9th Cir. 1975).
"The court is bound to take the substantive allegations of the complaint as true, thus necessarily making the class order speculative in the sense that the plaintiff may be altogether unable to prove his allegations. While the court may not put the plaintiff to preliminary proof of his claim, it does require sufficient information to form a reasonable judgment. Lacking that, the court may request the parties to supplement the pleadings with sufficient material to allow an informed judgment