IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20547
ROBERT L. MOORE; CHESTER R. YOUNG;
LINDA BAKER; ROYAL R. ASTHTON;
DAVID HOLLINS; RANDALL BYRD;
LEON BRICE; RONNIE HUDNALL,
Plaintiffs-Appellants,
WADE BROOKS,
Intervenor Plaintiff-Appellant,
ANNIE M. KELLY,
Appellant,
CHRISTOPHER G. LATSON,
Movant-Appellant
versus
JAMES A. LYNAUGH, individually and
in his official capacity as the
Director of the Texas Department
of Criminal Justice;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-88-CV-295)
October 12, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
I
After years of pretrial discovery and motions practice, the
common jousts by able lawyers, this case, though complicated below,
reaches this court with relatively straightforward controlling
issues. We ultimately find no error in the district court’s denial
of class certification and disposition of individual claims
following a bench trial.
The appeal arises out of Title VII, § 1981, and claims brought
by black correctional officers employed by the Texas Department of
Criminal Justice. The eleven plaintiffs complained of a wide
variety of conduct by superiors at the Department, including denied
promotions, unjustified suspensions or terminations, racial slurs,
inferior postings, and segregated housing. They argued that
subjective criteria were used to make promotion decisions and that
black corrections officers were wrongly denied promotions; that
statistically, black corrections officers were disciplined and
terminated at a dramatically higher rate than white or Hispanic
officers; that black officers were given posts that were more
dangerous and less likely to lead to promotions; that black
officers were given living quarters of lesser quality than those
given to white and Hispanic officers; and that black officers were
subjected to a racially hostile work environment, including the
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2
frequent use of derogatory racial terms and the leaving of Ku Klux
Klan literature at officers' posts.
The plaintiffs initially sought to intervene in the Cirillo
class action. After the claims of the black plaintiff, David
Jones, were severed from Cirillo, the plaintiffs sought to
intervene in the Jones class action. The Cirillo and Jones cases
were pending in the same court. After intervention in these
pending class actions was denied, the court denied independent
certification of the Moore class and tried the claims individually
in a bench trial. The court denied the plaintiffs’ claims in a 76-
page opinion, and the plaintiffs timely appealed.
II
1
The Moore plaintiffs raise several arguments that have no
dispositive effect on the case, as we will explain. They make two
objections to the district court’s holding that most of their Title
VII claims were time-barred: that they had 300 days, not 180 as the
district court ruled, to file an EEOC charge after an adverse
employment action; and that the district court erred in holding
that the plaintiffs’ claims were untimely because they had not
filed within 90 days of the denial of their motion to intervene in
a pending class action.1 They also argue that their § 1981 claims
were improperly dismissed.
1
The district court initially ruled in favor of plaintiffs on
this issue but reconsidered the issue sua sponte after trial.
3
The problem with both timeliness arguments is that the
district court’s opinion notes the timing issues but goes on to
address each of the plaintiffs’ claims on the merits. Prevailing
on these issues thus would not change the outcome of the case.
The court found that the claims of four of the plaintiffs were
time-barred.2 The court did not base its conclusion on the 180 day
time limit for filing an EEOC charge. Instead, the court
determined that the claims of these plaintiffs, who had already
received right-to-sue letters from the EEOC, were time-barred
because they failed to file suit within 90 days after their motion
to intervene in another suit, Cirilo v. Texas Department of
Corrections, No. TY-77-12-CA, was denied. The filing of a class
action tolls the limitations period for members of the putative
class until class certification is denied, at which time plaintiffs
have 90 days to file suit.3 Since these four plaintiffs sought to
intervene in the Cirilo class action and were not permitted to do
so,4 the district court properly concluded that their claims were
time-barred once they failed to file suit within 90 days of that
2
Plaintiffs Moore, Ashton, Hollins, and Brice.
3
See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354
(1983).
4
The Cirilo court denied the Moore plaintiffs' motion to
intervene when the Cirilo class was redefined to include two
subclasses: one of Mexican-American plaintiffs who alleged a
hostile work environment and discriminatory hiring practices based
upon their national origin, and a second subclass of black
applicants who alleged that they were not hired by the Texas
Department of Criminal Justice on account of their race.
4
denial. Whether the district court erred in applying a 180-day
limitations period for filing an EEOC charge is irrelevant to these
plaintiffs' claims, since the court found that they had received
right-to-sue letters but failed to file suit within the 90 period
following the denial of their motion to intervene in the Cirilo
class action.
2
The plaintiffs argue that the limitations period continued to
be tolled because they attempted to intervene in another pending
class action, Jones v. Texas Dep't of Corrections, No. TY-87-364.
The district court correctly concluded that the plaintiffs could
not use both class actions to toll the running of the limitations
period for filing suit. This court has previously refused to allow
a putative class to "piggyback" one class action upon a previous
one in an effort to continue to toll the limitations period for a
Title VII suit, reasoning that the practice would be too easily
abused.5 Here, the Moore plaintiffs believed they could continue
to toll the limitations period as they shopped for a pending class
action rather than file their own, and the district court properly
rejected their effort to do so. The plaintiffs argue that they did
not try to "piggyback" two identical class actions, since Cirillo
and Jones were different suits with different issues. However, the
Moore plaintiffs were the same group of plaintiffs with the same
5
See Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765
F.2d 1334, 1351 (5th Cir. 1985).
5
issues on each motion to intervene, and the district court properly
applied the reasoning of Salazar-Calderon to conclude that the
Moore plaintiffs could not toll the limitations period in
successive motions to intervene in pending class actions.
In any event, the court considered and rejected their claims
on the merits. Similarly, the district court addressed the merits
of the plaintiffs’ claims regarding denied promotion, which Moore
contends were actionable under § 1981. The district court
concluded that none of the plaintiffs was denied a promotion based
on race.
III
The Moore plaintiffs also argue that the district court erred
in failing to address their § 1983 claims. Plaintiffs may sue both
under § 1983 and Title VII if the employer’s conduct violates a
separate constitutional right in addition to Title VII.6 Recently,
this court reaffirmed that Title VII and § 1983 are not mutually
exclusive remedies, and that a plaintiff may pursue claims under
both statutes.7
None of the court’s orders issued throughout the case
reference a § 1983 claim, but the introductory paragraph of the
final order of the district court recites that the plaintiffs
6
See Johnston v. Harris County Flood Control Dist., 869 F.2d
1565, 1753 (5th Cir. 1989).
7
See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539,
548-49 (5th Cir. 1997).
6
alleged, inter alia, violations of the Equal Protection Clause.
The order does not address any claim brought under § 1983. We have
reviewed the pretrial order and briefs to the District Court. We
are persuaded that no claim under 42 U.S.C. § 1983 was filed or
presented.
IV
Moore argues that the plaintiffs were erroneously denied a
jury trial. Where a plaintiff brings both §1981 claims and pre-
1991 Title VII claims, a jury must decide the § 1981 claims before
the court hears the Title VII claims.8 The plaintiffs assert that
they were denied a jury trial over their protest, and that the
court gave as its reason for the denial that it did not want to
waste a day on voir dire. The Department argues that the Moore
plaintiffs agreed to a bench trial below and complain only now that
they wanted a jury trial. We have reviewed the record, including
the transcript of the docket call proceedings of April 19, 1998.
We are persuaded that any rights to a jury trial were waived. If
the district court decided there in a way that it is clear that the
claim would not have survived a motion for directed verdict, there
is no prejudice even if there was no waiver of a jury.
V
The district court refused to certify the requested class
because it concluded that the named plaintiffs could not adequately
8
See Lytle v. Household Mfg, Inc., 494 U.S. 545, 550 (1990).
7
represent the interests of the proposed class, commonality and
typicality were not met, and the geographic and temporal scope of
the alleged events were overbroad.
Class certification in an employment discrimination suit is
not proper where the named plaintiff did not suffer the same type
of injury as other members of the proposed class.9 The court
determined that the named representatives lacked standing to pursue
the claims of members of the proposed class. To possess standing,
plaintiffs, as a class, must have suffered the type of injury for
which they seek to recover; membership in a common racial, ethnic
or economic group is insufficient.10 Having suffered injury is not
sufficient to create standing to press claims for a qualitatively
different kind of injury.11 The district court determined that the
proposed class should not be certified because its members suffered
different injuries. Some alleged that they were not promoted
because of discriminatory practices in promotion. Others claimed
that they were targeted for discipline by superiors because of
their race. All complained of a racially hostile environment at
the Retrieve unit around 1985 to 1987. The court determined that
the plaintiffs sought to represent all black corrections officers
in TDCJ, but that the plaintiffs had not suffered injuries of the
9
See General Telephone Co. of the Southwest v. Falcon, 457
U.S. 147, 157 (1982).
10
See Warth v. Seldin, 422 U.S. 490, 502 (1975).
11
See Blum v. Yaretsky, 457 U.S. 991, 1001-02 (1982).
8
type they claimed to be suffered by black corrections officers
throughout TDCJ.
The plaintiffs argue that the district court improperly based
its denial of class certification on the merits of their claims.
The trial court may determine whether the named class
representative suffered an injury that gave him standing to
represent the class.12 The court determined that the plaintiffs had
not suffered injuries of the type they sought to represent. For
example, plaintiff Hall admitted that his scores on qualifying
examinations for electrical and pluming maintenance jobs were low,
and he was promoted to food service manager, which was outside the
proposed plaintiff class of security employees. Latson admitted
that he never applied for a promotion. Moore sought to skip from
guard to lieutenant without working as a sergeant and that he later
stopped applying for promotions, although application was required.
Plaintiff Hudnall, who was terminated, had a long history of
disciplinary actions taken against him. Plaintiff Kelley
complained that she was denied promotions to various positions,
none of which were the correctional positions sought to be
represented by the proposed class. Furthermore, the court
determined that while the complaints of the plaintiffs were limited
to 1985-1987 at the Retrieve unit of TDCJ, the class they sought to
represent expanded into the past and future, and included 48 penal
12
See Johnson v. Rodriguez, 110 F.3d 299, 315 (5th Cir. 1997).
9
institutions and 6 detention centers, with which the plaintiffs had
no connection. Rather than reaching the merits of their claims,
the district court properly determined that these plaintiffs were
not able to adequately represent the interest of the proposed class
of black corrections officers because they had not suffered injury
to their interests in promotions within that class; that this was
an effort to proceed as an “across the board” claim of
discrimination. We find no error in the denial of certification
and no abuse of discretion.
VI
(i) Robert L. Moore
Moore raises several challenges to the district court’s
resolution of the Title VII claims. Moore appeals the district
court’s holding that the plaintiffs’ claims of segregated housing
and other discrimination were not actionable under Title VII
because there was no ultimate employment decision. Moore also
challenges the district court’s factual findings on the plaintiffs’
claims of hostile work environment and retaliation.13
Moore presents no facts or argument explaining which factual
conclusions of the district court were in error. Moore does not
13
Moore also disputes the standard applied for burden-shifting
purposes, arguing that direct evidence was presented that makes the
McDonnell Douglas test inapplicable. The plaintiffs correctly note
that McDonnell Douglas burden shifting is inappropriate in cases in
which the plaintiff relies on direct evidence of discrimination.
See Brady v. Fort Bend County, 145 F.3d 691, 711 (5th Cir. 1998).
Since the plaintiffs relied on circumstantial evidence of
discrimination, the district court did not err.
10
confront the district court’s conclusion that the employment
actions taken against the plaintiffs were based on infractions of
rules, such as failing to fire at escaping inmates, betting with
inmates, or stopping at a guard’s house in the course of
transporting an inmate. Moore also presents no rebuttal to the
district court’s conclusion that the incidents of racial slurs and
Ku Klux Klan pamphleting were not sufficiently pervasive and were
counteracted by steps taken by the Department.
(ii) Chester R. Young
Young claimed that he was not promoted to various jobs as a
mechanic or in food service, but that white employees were given
those positions rather than he because he was black. Testimony
from Carol Jones of TDCJ's human resources department showed that
Young did not apply for most of the positions about which he
complained and that he was not qualified for the positions or less
qualified that the candidate selected. The court also found
misrepresentations and inconsistencies on the applications that
Young filed.
Young claims that he was subjected to a racially hostile work
environment, with Ku Klux Klan literature found at his posts and
hearing racially derogatory terms used. The court found that Young
was not subjected to a racially hostile work environment because
the incidents were not sufficiently severe or pervasive to be
actionable.
(iii) Linda Baker
11
Baker filed her EEOC charge November 20, 1987, so her claims
of discriminatory failure-to-promote in 1984 and 1985 were not
timely asserted, since these were more than 300 days prior to the
filing of her charge of discrimination. Baker was terminated
October 12, 1987. She claimed that her termination was in
retaliation for her complaints of discrimination. The district
court found that Baker was terminated because four inmates escaped
near her post and she made no effort to prevent their escape, for
example, by firing her weapon as authorized to prevent escapes.
Furthermore, Baker had a long history of disciplinary actions taken
against her. Baker argues that white officers had not been
terminated because of escapes. The Department pointed out that a
white officer manning another picket was recommended for
termination as a result of the escape for which Baker was
terminated.
(iv) Royal R. Ashton
Ashton claims that he was discriminatorily disciplined and
denied a pay increase because of his participation in the
"officer's rebellion": a meeting of black corrections officers to
discuss race discrimination at the Retrieve unit. The district
court found that document evidence showed that Ashton was
chronically absent or late to work without excuse and that during
1985, when Ashton claimed he was targeted for retaliation, he was
absent or late without excuse 9 times.
(v) David Hollins
12
Hollins claims that he was discriminatorily disciplined and
not promoted because of his race. The district court found that
document evidence showed that Hollins was frequently absent from
work without excuse, disciplined for insubordination for swearing
at a superior, and disciplined for wearing an improper or partial
uniform. Employee discipline, without more, is not an ultimate
employment decision actionable under Title VII.14 Hollis is still
employed as a corrections officer by TDCJ. The district court
correctly concluded that Hollins had no cause of action based upon
the disciplinary actions taken against him; that he failed to prove
his failure to promote claim. In any event, his employment history
would provide a race-neutral reason for not promoting him. We find
no error.
(vi) Randall Byrd
Byrd was suspended for allegedly falsifying an inmate count
sheet and verbally reprimanded for leaving a steel milk can in the
cell of an inmate with psychological problems. He was recommended
for termination and failed to attend the termination hearing. He
was subsequently terminated, and he claims that his termination was
in retaliation for his complaints of discrimination. Byrd denies
that he falsified the inmate count sheet. He appears to argue that
because he was fired three weeks after filing an EEOC charge, there
is proof that his termination was in retaliation for his filing
14
See Mattern v. Eastman Kodak Co, 104 F.3d 702, 708 (5th Cir.
1997).
13
that charge. However, Byrd filed his first EEOC charge November
13, 1985, and he was suspended for the count sheet matter August
22, 1985. This was the incident that led to his termination. The
district court properly concluded that Byrd's claims are meritless
and we find no error in that judgment.
(vii) Leon Brice
Brice alleged he was discharged because of his race. Brice
was discharged for betting on a football game with an inmate.
Brice argues that white officers too gambled with inmates and were
not terminated. He does not identify any of these officers in his
brief. The district court properly concluded that Brice failed to
show that the neutral reason TDCJ offered for his termination was
pretext for discrimination.
(viii) Ronnie Hudnall
Hudnall was terminated for excessive absenteeism. Documentary
evidence showed that Hudnall was frequently absent without excuse.
Hudnall argues that white and Hispanic officers were not
disciplined for lateness or absenteeism, and he states that he was
told by someone that white supervisors were out to "get him" after
he filed his EEOC charge. Hudnall does not identify any white or
Hispanic officers in his brief who were not disciplined or
terminated for similar infractions. The district court properly
concluded that Hudnall failed to offer evidence to rebut TDCJ's
race-neutral reason for his discharge.
(ix) Annie M. Kelley
14
Kelley complained that she was subjected to a racially hostile
work environment and passed over for promotions that went to white
employees. She specifically identifies only one incident in which
another officer used a racial slur in her presence, which was
directed toward her. She fails to show evidence from which the
district court could have concluded that racially offensive
comments were severe or pervasive enough to support a hostile work
environment claim. Furthermore, she fails to identify any white
employee who received a promotion for which she applied, so it is
impossible to determine whether the district court properly
concluded that Kelley failed to show that she was better qualified
that white employees who received promotions.
(x) Christopher Latson
Latson was suspended for making an unauthorized stop at
another officer's apartment during an ambulance run. The other
officer was also suspended. Latson argues that he should not have
been suspended because the other officer was of a higher rank.
Latson was later terminated for failing to comply with sick leave
policy, for failing to return from disability leave and failing to
provide required documentation of his disability. Latson asserts
that he complied with the policy, but he does not state that he
returned to work as required or provided the required documents.
Latson argues that the discipline and termination were in
retaliation for his complaints of discrimination. The district
15
court properly concluded that Latson failed to offer evidence to
rebut TDCJ's nondiscriminatory reason for these actions.
(xii) Wade Brooks
Brooks was suspended without pay and subsequently terminated.
While on probation for unexcused absences from work, Brooks was
suspended for failure to load his weapon while on patrol. On his
return, he was on picket duty at the Eastham unit and failed to
obey an order to call in to his supervisor every 30 minutes.
Brooks argues that he did not have to obey this order because,
although he was on duty in the Eastham unit, the practice of
calling in was peculiar to the Eastham unit and not an agency-wide
policy. The Warden ordered Brooks to appear in his office to
discuss this incident, and Brooks failed to appear. Brooks also
failed to attend his termination hearing. Brooks claims that he
told the Warden that everyone in the unit acted "like they're in
the Klan," to which the Warden allegedly replied "[y]ou damn right,
and I'm the ringleader. I suspended you and that's that, try and
file a grievance." The district court's findings of fact are
reviewed for clear error.15 The district court properly concluded
that Brooks failed to show that his suspension and termination were
pretext for race discrimination.
VII
15
See Black v. Food Lion, 171 F.3d 308, 310 (5th Cir. 1999).
16
The district court did not err in finding some of the
plaintiffs' claims time-barred, since these plaintiffs failed to
file suit within 90 days after their motion to intervene in a
pending class action was denied. There were no claims made under
§ 1983. Any right to a jury trial on a § 1981 claim was waived.
In any event, the few claims for which there would be a right to a
jury trial did not reach trial.
The district court properly denied class certification,
because the named plaintiffs have claims that are individualized
and different from one another, and because they sought to
represent a class that was overly broad in temporal and geographic
scope.
AFFIRMED.
17