I.
The four plaintiffs-appellants in this case — Louis Pinkard, Edward Lofton, Richard Holston, and Donnie Sealie — appeal from a judgment entered in favor of defendant-appellee Pullman-Standard, a division of Pullman, Inc., after a bench trial below. They present a number of issues for our review. Because no two members of this panel agree upon all of the issues, we preface the separate opinions with this summary of our positions to explain the disposition of the appeal.
All four plaintiffs, former employees of defendant, brought suit claiming defendant discharged them because of their race. In addition, plaintiffs Pinkard and Lofton claimed they were discharged because they opposed racially discriminatory practices of defendant. The suit ripened as one with the four claims of racially-based discharge presented under 42 U.S.C. § 2000e-2 and 42 U.S.C. § 1981. The claims of retaliatory discharge made by Pinkard and Lofton were presented under 42 U.S.C. § 2000e-3 and 42 U.S.C. § 1981.1 Plaintiffs sought to bring the suit as a class action, but the district court denied certification. After a trial on the merits, the court entered a memorandum opinion and granted defendant judgment as to each of the claims.
Most of the issues presented provoke no dissent among us. We are in agreement
We part ways only with respect to the Title VII claims of Pinkard and Lofton and Pinkard’s § 1981 claim of retaliatory discharge. Even as to the latter, our dispute is narrow. Furthermore, all agree that the judgment is to be affirmed as to Lofton’s § 1981 claim of retaliatory discharge. Judge Kravitch and Judge Clark, however, with Judge Lynne dissenting, find that the district court erred in granting defendant judgment as to Pinkard’s § 1981 retaliatory discharge claim. Accordingly, the judgment must be reversed as to that one claim. This is the only aspect of the judgment to be reversed.
Our positions as to the Title VII claims of Pinkard and Lofton are somewhat more involved. Pinkard and Lofton had not received the requisite right-to-sue notices from the Equal Employment Opportunity Commission at the time they filed suit under Title VII; subsequently, they did receive notices. Judge Kravitch and Judge Lynne conclude, over Judge Clark’s dissent, that the notices Pinkard and Lofton received satisfied the right-to-sue notice requirement and consequently that the Title VII claims of Pinkard and Lofton were properly before the district court, which thought it had no jurisdiction over these claims but proceeded to consider them “out of an excess of caution.” Judge Lynne would affirm the district court’s disposition of both Lofton’s and Pinkard’s Title VII claims. Judge Kravitch, however, would affirm as to Lofton’s Title VII claims and Pinkard’s claim under 42 U.S.C. § 2000e-2, but would reverse as to Pinkard’s claim under 42 U.S.C. § 2000e-3. Because of Judge Lynne’s position and Judge Clark’s view that the claims were not properly before the district court, the judgment must be affirmed as to the Title VII claims of Pinkard and Lofton.
In accordance with the foregoing summary, we reverse the judgment as to Pinkard’s § 1981 claim of retaliatory discharge and remand for a determination of damages. In all other respects, the judgment is affirmed.
II. Class Action Denial
Louis Pinkard and Edward Lofton filed suit under 42 U.S.C. § 2000e on February 17, 1976, prior to receipt of right-to-sue letters from the Equal Employment Opportunity Commission. Plaintiffs moved to add Richard Holston as a party plaintiff shortly after February 19, 1976, when Hol-ston was notified by the EEOC of his right to sue. Like Pinkard and Lofton, Holston alleged in his EEOC complaint that Pullman discriminatorily discharged him because of his race. On July 28,1976, Pinkard and Lofton moved to add Donnie Sealie as a party plaintiff, and the court granted the motion on August 11, 1976. Sealie had originally filed an employment discrimination charge against Pullman-Standard on May 6, 1975, alleging that he had been discharged because of his race. The Birmingham District Office of the Equal Employment Opportunity Commission issued Sealie a right-to-sue letter on June 15,1976. On August 18, 1978, prior to the pretrial hearing in the case, the EEOC issued Pin-kard and Lofton notice of their right to sue the company.2
On October 12, 1978, plaintiffs proceeded with a Fed.R.Civ.P. 23 class certification hearing in district court. Plaintiffs sought to certify “a class of all black employees of defendant company who were discharged ... within 180 days prior to the earliest filing with the EEOC of a charge of discrimination by any of the four named plaintiffs.” The court refused to certify the class on the ground that the plaintiffs failed to carry their burden of proving “typ
It is well settled that, where a case requires detailed investigations of the circumstances surrounding the claims of individual class members, that case does not lend itself to treatment as a class action. Reddix v. Lucky, 252 F.2d 930 (5th Cir. 1958). Similarly, this court recently refused to reverse a district court which had denied class certification in Crawford v. Western Electric Co., Inc., 614 F.2d 1300 (5th Cir. 1980), stating that:
The fact that plaintiffs are members of the same race as other employees and rejected job applicants whom they seek to represent in a class action is not enough in itself to require a finding under Rule 23 that their representation was adequate or that their claims were typical of the class.
Id. at 1304.
In the instant case the four named plaintiffs bring forward claims which are factually distinct. Consequently, we affirm the district court’s finding that plaintiffs failed to meet the procedural requirements justifying class certification. The district court properly distinguished the Fifth Circuit decision, Hebert v. Monsanto Company, Texas City, Texas, 576 F.2d 77 (5th Cir. 1978), that plaintiffs cited as contrary to the Reddix “typicality” test. Although this court in Hebert reasoned that, “[i]f class actions were limited to factual typicality, class actions under Title VII would be impossible because, except in rare cases, the facts would not be identical,” the court’s decision to certify that class was based additionally upon the fact that plaintiffs had produced substantial statistical evidence of company-wide discriminatory policies. The trial court properly focused upon this distinction, concluding that “the [Hebert ] decision is clearly hung on the breadth of the defendant’s policies involved there and the wide scope of the statistical evidence ... pertinent to show these policies.” Record Excerpts, at 13. Consequently, we agree that Hebert does not provide a sufficient justification upon which to confer “typicality” in the face of the significant factual dissimilarities of plaintiffs’ claims. Accordingly, we affirm the denial of class certification.
III. Title VII
A. Jurisdiction
1.
For convenience, we will refer to the claims under 42 U.S.C. § 2000e as the Title VII claims and those under 42 U.S.C. § 1981 as the § 1981 claims.
2.
The reason given for the issuance of Pinkard and Lofton’s right-to-sue letters was that suit was pending in federal district court regarding the identical issues, and therefore the Equal Employment Opportunity Commission charges were being dismissed.
3.
Fed.R.Civ.P. 23(a)(3) states, in relevant part: (a) One or more members of a class may sue or be sued as representative parties on behalf of all only if ...
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ...