747 F.

2d 1360
36 Fair Empl.Prac.Cas. 928,
38 Fair Empl.Prac.Cas. 961,
35 Empl. Prac. Dec. P 34,912,
40 Empl. Prac. Dec. P 36,234, 40 Fed.R.Serv.2d 988

Willie M. WALKER, et al., Plaintiffs,

Willie Rhoades and Bobbie P. Lowery, Plaintiffs-Appellants,
v.
The JIM DANDY COMPANY, Defendant-Appellee.
No. 83-7334.

United States Court of Appeals,

Eleventh Circuit.
Dec. 4, 1984.

Reeves & Still, Susan Reeves, Robert L. Wiggins, Jr., Birmingham, Ala.,
for plaintiffs-appellants.
Constangy, Brooks & Smith, Chris Mitchell, Carol Sue Nelson,
Birmingham, Ala., for defendant-appellee.
Appeal from the United States District Court for the Northern District of
Alabama.
Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.
HATCHETT, Circuit Judge:

In this Title VII class action suit, we review the district court's order denying
appellants' motion for class certification and intervention. We affirm in part and
reverse and remand in part.

Facts
2

On August 28, 1974, Willie M. Walker filed a complaint alleging racial

discrimination against him by appellee, The Jim Dandy Company (Jim Dandy).

In this complaint, appellants, Willie Rhoades and Bobbie P. Lowery, females,

also alleged that Jim Dandy engaged in sexual discriminatory employment
practices in its refusal to hire them. Rhoades and Lowery sought to represent a
class of females similarly situated.
3

On May 25, 1977, the district court entered an order denying appellants'
motions for class certification. In doing so, the court held that appellants had
not established that the class was so numerous that joinder of all members was
impractical, or that questions of law or fact existed common to the class.

The district court granted Jim Dandy's motion for partial summary judgment
against Walker. In addition, the court concluded that Walker's section 1981 suit
was barred by the statute of limitations, and that the court did not have
jurisdiction to hear Walker's Title VII claim. Therefore, only the individual
claims of Rhoades and Lowery were tried. The district court entered a final
judgment for Jim Dandy against Walker, Rhoades, and Lowery.

On appeal, the former Fifth Circuit reversed the district court's decision
concerning Walker's Title VII claim, and affirmed the judgment of the district
court on Rhoades's and Lowery's individual claims. In addition, the former
Fifth Circuit remanded the class certification issue for further consideration.
Walker v. The Jim Dandy Co., 638 F.2d 1330, 1336 (5th Cir.1981).
Subsequently, on December 16, 1982, appellant, Elizabeth Pruitt, pursuant to
Rule 24(b) of the Federal Rules of Civil Procedure, filed a motion for
permissive intervention as a party plaintiff.

On remand, the district court scheduled a class certification hearing for January
6, 1983. At this hearing, the district court refused to certify the class and
dismissed, with prejudice, the individual claims of appellants, Rhoades and
Lowery. The court also denied appellant, Elizabeth Pruitt's, motion to intervene
individually and on behalf of all female applicants for employment, all female
employees of Jim Dandy, and all females who would have applied for
employment with Jim Dandy. The court tried Walker's claim on its merits and
dismissed it for lack of evidence of discrimination. No racial discrimination
claims remain in the lawsuit. This appeal ensued upon certification pursuant to
28 U.S.C.A. Sec. 1292(b).

Discussion
I. Class Certification
7

Appellants' first contention is that the district court, 97 F.R.D. 505, erred in

refusing to certify this action as a class action. "[A] Title VII class action, like
any other class action, may only be certified if the trial court is satisfied, after a
rigorous analysis, that the prerequisites of Rule 23(a)1 have been satisfied."
General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2373, 72
L.Ed.2d 740 (1982). It has long been the law that questions concerning class
certification are left to the sound discretion of the district court. Freeman v.
Motor Convoy, Inc., 700 F.2d 1339, 1347 (11th Cir.1983); Zeidman v. J. Ray
McDermott & Co., Inc., 651 F.2d 1030, 1038-39 (5th Cir.1981).
8

Accordingly, this court will not reverse a district court's decision on class
certification absent an abuse of its discretion. Ezell v. Mobile Housing Board,
709 F.2d 1376, 1379 (11th Cir.1983). In light of these principles, we review the
certification ruling of the district court.

A litigant seeking to maintain a class action under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C.A. Secs. 2000e-2000e-17 (West 1981),
must meet "the prerequisites of numerosity, commonality, typicality, and
adequacy of representation" specified in rule 23(a). General Telephone Co. of
Northwest v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 1706, 64 L.Ed.2d 319
(1980). For all practical purposes, these requirements effectively "limit the
class claims to those fairly encompassed by the named plaintiffs' claims."
General Telephone Co., 446 U.S. at 330, 100 S.Ct. at 1706.

10

In resolving this class certification issue, the district court correctly concluded
that the Supreme Court's recent decision in General Telephone Company of
Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982),
controls. Mariano Falcon was a Mexican-American employee of General
Telephone of Southwest. He brought suit under Title VII challenging the hiring
and promotion practices of his employer. Falcon individually claimed that the
company refused to promote him because of his national origin.

11

The district court determined that Falcon was a proper representative for the
class. The court thereafter certified the class as all Mexican-Americans who had
applied for employment or were employed by the company in a specified
division. The former Fifth Circuit held that the district court did not abuse its
discretion in certifying the class. Falcon v. General Telephone Co. of
Southwest, 626 F.2d 369, 376 (5th Cir.1980).

12

The Supreme Court, however, granted certiorari to decide whether the class
action was properly maintained on behalf of both employees who were denied
promotion and applicants who were denied employment. In resolving this

issue, the Court stated that the plaintiff's complaint provided an insufficient
basis for determining whether the adjudication of his discrimination in
promotion claim would require the resolution of any common question of law
or fact concerning the failure of the employer to hire more Mexican-Americans.
The Court concluded that the district court erred in finding that Falcon's claim
was typical of other claims against the employer by Mexican-American
employees and applicants, without pinpointing questions of law or fact that
were common to the claims of Falcon and the members of the potential class.
Falcon, 457 U.S. at 158-59, 102 S.Ct. at 2371-72.
13

While deciding Falcon, the Court also examined its prior decision in East Texas
Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52
L.Ed.2d 453 (1977). Rodriguez was a Title VII action brought by three
Mexican-American city truck drivers. On appeal, the Fifth Circuit certified a
class composed of the trucking company's black and Mexican-American city
drivers allegedly denied, on racial or ethnic grounds, promotions to more
coveted line-driver positions. On review, the Supreme Court held that the Court
of Appeals "plainly erred in declaring a class action." Rodriguez, 431 U.S. at
403, 97 S.Ct. at 1896.

14

The Court based this holding on the fact that the named plaintiffs were not
qualified for line-driver positions when the class was certified. Therefore, they
could have suffered no injury as a result of the allegedly discriminatory
practices; thus, they were simply not eligible to represent a class of persons
who did allegedly suffer injury. Falcon, 457 U.S. at 156, 102 S.Ct. at 2370
(quoting Rodriguez, 431 U.S. at 403-04, 97 S.Ct. at 1896-97). After noting that
the holding in Rodriguez was limited, the Court, in the same breath, reiterated
that careful attention to the requirements of rule 23 is indispensable. The Court
also emphasized that mere allegations of racial or ethnic discrimination do not,
in and of themselves, ensure that the party bringing the lawsuit will be an
adequate representative of those who may be the real victims of discrimination.
Falcon, 457 U.S. at 156-57, 102 S.Ct. at 2370-71 (citing Rodriguez, 431 U.S. at
405-06, 97 S.Ct. at 1897-98).

15

In the present case, the district court found, and the former Fifth Circuit
affirmed, that appellants, Rhoades and Lowery, were not qualified for the jobs
they sought, and thus, they suffered no injury as a result of the alleged
discriminatory practices. Walker v. The Jim Dandy Co., 638 F.2d 1330, 1335
(5th Cir.1981). Furthermore, this court's predecessor, when deciding Walker,
clearly stated that "the district court could dismiss the class complaint if it
found that the plaintiffs lacked a sufficient nexus with the class to be one of its
members." Walker, 638 F.2d at 1335.

16

On remand, the district court properly conducted an evidentiary hearing on the

propriety of the litigation proceeding as a class action. Ezell v. Mobile Housing
Board, 709 F.2d 1376, 1380 (11th Cir.1983); Jones v. Diamond, 519 F.2d
1090, 1098 (5th Cir.1975). At the conclusion of the hearing, the district court
found, as a matter of fact and law, that appellants, Rhoades and Lowery, could
not represent a class including female applicants for employment and
employees of Jim Dandy because their individual claims were nonexistent.
Moreover, the district court found that the plaintiffs lacked a sufficient nexus
with the class to be one of its members. The court reasoned that because
Rhoades and Lowery were applicants for supervisory positions, they did not
sufficiently identify with other applicants for lower level labor jobs or
employees complaining of disparate job assignments or pay. We agree.

17

Appellants and Willie M. Walker allege in their complaint that pursuant to

Federal Rule of Civil Procedure 23(b)(2) they commenced this suit on behalf
of:

18 past, present and future black and female applicants for employment and black
[All]
and female employees of the Jim Dandy Company and on behalf of those persons in
the past, present or future who would have applied for employment with the Jim
Dandy Company but for the defendant's racially and sexually discriminatory
recruitment and employment practices and reputation therefor.
19

Walker, however, sought to represent the putative class of black discriminatees;

appellants, Rhoades and Lowery, petitioned the court for certification to
represent a putative class of females similarly situated. More specifically,
appellants sought to represent actual female applicants for employment,
deterred female applicants for employment, and female employees of Jim
Dandy.

20

In the complaint, appellants allege, in pertinent part, that among the company's
discriminatory acts are the following: "(a) The defendant discriminates on the
basis of sex ... against ... women in recruitment, assignment, hiring, transfer and
promotion." (Emphasis added.) Correspondingly, appellants sought to represent
a class of females alleging discriminatory acts in recruitment, assignment,
hiring, transfer, and promotion.

21

We find that the district court correctly concluded that this case is governed by
General Telephone Company of the Southwest v. Falcon. Following Falcon
and Rodriguez, we hold that appellants' complaint provided an insufficient
basis for concluding that the adjudication of appellants' claim of discrimination
in hiring supervisory employees would require the resolution of common

questions of law and fact concerning Jim Dandy's discriminatory practices in

recruitment, job assignment, transfer, and promotion. We also conclude that the
district court did not abuse its discretion in dismissing the class complaint once
it found that Rhoades and Lowery lacked a sufficient nexus with the class to be
one of its members. See Walker v. The Jim Dandy Co., 638 F.2d at 1335.
Finding no error, we affirm the district court's order dismissing the class action
complaint.
II. Appellant Pruitt's Motion to Intervene
22

Appellant, Elizabeth Pruitt, contends that the district court abused its discretion
in denying her motion to intervene pursuant to Federal Rule of Civil Procedure
24(b).2 Under that rule, one is entitled to permissive intervention when his
claim or defense and the main action have a question of law or fact in common.
In exercising its discretion, the court shall consider, among other things,
whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties. EEOC v. Eastern Airlines, Inc., 736 F.2d 635
(11th Cir.1984). The district court denied Pruitt leave to intervene on four
grounds: (1) untimeliness; (2) prejudice to the original parties; (3) the failure to
file an EEOC charge; and (4) the absence of a viable case to intervene into. We
will address each of these grounds in turn.

A. Timeliness
23

The district court denied Pruitt's motion to intervene on the ground that it was
untimely filed. The question of timeliness lies within the district court's
discretion; thus, we review the court's action only for an abuse of discretion.
Howse v. S/V "Canada Goose I", 641 F.2d 317, 320 (5th Cir. Unit B 1981);
Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977).

24

In assessing timeliness, a district court must consider four factors: (1) the
period of time during which the putative intervenor knew or reasonably should
have known of his interest in the case before he petitioned for leave to
intervene; (2) the degree of prejudice to the existing parties as a result of the
would-be intervenor's failure to move to intervene as soon as he knew or
reasonably should have known of his interest; (3) the extent of prejudice to the
would-be intervenor if his position is denied; and (4) the presence of unusual
circumstances militating either for or against a determination that the
application is timely. Stallworth, 558 F.2d at 264-66. We have unequivocally
held that this analysis applies to both intervention of right and permissive
intervention under Federal Rule of Civil Procedure 24. United Airlines, Inc. v.
McDonald, 432 U.S. 385, 387, 97 S.Ct. 2464, 2466, 53 L.Ed.2d 423 (1977);

NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648
(1973). The district court, in its memorandum opinion, considered, in a general
manner, the aforementioned factors (1) and (2). The district court, however,
failed to consider the extent of prejudice to Pruitt if her petition were denied,
and the existence of unusual circumstances militating either for or against a
determination that the application is timely. See Stallworth, 558 F.2d at 264-66.
25

" 'Timeliness' is not a word of exactitude or of precisely measurable

dimensions." McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th
Cir.1970). While the question whether an application for intervention is timely
is largely committed to the discretion of the district court, an analysis of the
provisions of rule 24, decisions of the Supreme Court, and this court's binding
precedent authorize us to articulate the metes and bounds of the district court's
discretionary power. In doing so, we reiterate the former Fifth Circuit's
pronouncement that the four factors enunciated by the Stallworth court "must
be considered in passing on the timeliness of a petition for leave to intervene"
[emphasis added]. Stallworth, 558 F.2d at 264 (citing United Airlines, Inc. v.
McDonald, 432 U.S. 385, 387, 97 S.Ct. 2464, 2466, 53 L.Ed.2d 423 (1977));
SEC v. Tipco, Inc., 554 F.2d 710, 711 (5th Cir.1977); Smith Petroleum Service,
Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (5th Cir.1970).

26

Thorough review of the record fails to reveal that the district court gave due
consideration to the four factors articulated in Stallworth. Because the district
court denied, as untimely, Pruitt's motion to intervene without considering all
four of the factors specified in Stallworth, we hold that the district court clearly
abused its discretion. Accordingly, we remand this intervention issue to the
district court for a determination consistent with this opinion.

B. Other Grounds
27

The district court also denied Pruitt's motion on the grounds that intervention
would cause prejudice to the original parties, that Pruitt had failed to file an
EEOC charge, and that no viable case existed for Pruitt to intervene into. As
noted above, the district court considered Stallworth factor number 2 which
involved the degree of prejudice to the existing parties as a result of Pruitt's
failure to move to intervene earlier. Without rendering judgment on the merits
of the court's finding, we hold that this consideration alone is an insufficient
ground for denial.

28

In Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir.1968), we held that
each member of a class need not file an EEOC charge as a prerequisite to join a
Title VII suit as long as at least one named plaintiff had filed such charges.

Oatis, 398 F.2d at 499. We, however, extended Oatis to non-class suits in
Wheeler v. American Home Products Corp., 582 F.2d 891, 897 (5th Cir.1977),
where we held that similarly situated intervenors who had not filed EEOC
charges nevertheless could assert backpay claims if one or more of the original
plaintiffs had filed timely charges. Wheeler, 582 F.2d at 897. Since Rhoades
and Lowery had filed a timely EEOC charge and the court was considering the
class certification issue, we hold that Pruitt did not have to file an EEOC charge
as a prerequisite to intervene in this Title VII suit. Furthermore, since Rhoades
and Lowery filed a timely notice of appeal and the case was before the district
court at a duly scheduled hearing, we hold that Pruitt had a viable case to
intervene into.
Conclusion
29

In sum, we hold that the district court did not abuse its discretion in refusing to
certify this action as a class action. Thus, we affirm the district court's order on
this issue. As for Pruitt's motion to intervene, we hold that the district court
strayed beyond the legal metes and bounds of its discretion when it failed to
consider all four of the Stallworth factors in deciding whether Pruitt's motion to
intervene was timely. Accordingly, we reverse the district court and remand
this issue to the court for a determination consistent with this opinion.

30

AFFIRMED IN PART and REVERSED and REMANDED IN PART.

Rule 23 of the Federal Rules of Civil Procedure provides in part:

(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.
(b) Class Actions Maintainable. An action may be maintained as a class action
if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the
class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of

the class which would establish incompatible standards of conduct for the party
opposing the class, or
(B) adjudications with respect to individual members of the class which would
as a practical matter be dispositive of the interests of the other members not
parties to the adjudications or substantially impair or impede their ability to
protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole....
2

Federal Rule of Civil Procedure 24(b) provides:

(b) Permissive Intervention. Upon timely application anyone may be permitted
to intervene in an action: (1) when a statute of the United States confers a
conditional right to intervene; or (2) when an applicant's claim or defense and
the main action have a question of law or fact in common. When a party to an
action relies for ground of claim or defense upon any statute or executive order
administered by a federal or state governmental officer or agency or upon any
regulation, order, requirement or agreement issued or made pursuant to the
statute or executive order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its discretion the court shall
consider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.