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GROVES v. INSURANCE CO. OF NORTH AMERICA

April 29, 1977

WINSTON O. GROVES, Individually and on behalf of all others similarly situated
v.
INSURANCE COMPANY OF NORTH AMERICA



The opinion of the court was delivered by: DITTER

 Plaintiff has brought this civil rights action against his former employer seeking redress of practices which he alleges are racially discriminatory. Presently before the court are plaintiff's motion to have this case designated as a class action, his motion for leave to amend the complaint to include a claim for damages on behalf of the class, and a motion of a third party for leave to intervene. For the reasons to be stated, all three motions will be granted.

 I. Factual Background

 The following facts are alleged in the complaint. Plaintiff, Winston O. Groves, a Negro, was first employed by the defendant, Insurance Company of North America, on a full time basis as a management trainee in its loss processing department in February of 1970. After performing successfully in a special project to reduce backlogs in the draft account unit of the department, plaintiff was made a supervisor in that unit in February, 1971, and charged with additional administrative responsibilities. At that time plaintiff was given no course of training in supervision, although other similarly situated white employees were sent to management training school. Despite this lack of formal supervisory training, plaintiff received several letters of commendation for his work as a supervisor in the draft account unit. However, at the time of Groves' performance review on February 2, 1972, he was removed from his position as supervisor and reassigned to a non-supervisory job as a statistical analyst. After Groves complained that his transfer had been effectuated without following the usual performance review procedures and that the results of the review were completely at variance with his actual performance, he was told by his supervisors that the review would be modified. The wording of the performance review later was changed, but its substance was not and Groves was not reinstated in his former supervisory position. During this time Caucasian employees with similar training and experience were either continued at existing levels of employment or promoted. Plaintiff remained in defendant's employ as a statistical analyst until July, 1973, when, with no prospect of returning to a supervisory position, he terminated his employment with the defendant. Groves filed charges with the Equal Employment Opportunity Commission on February 10, 1972, alleging that he had been denied an opportunity for promotion because of his race and that the defendant discriminated on the basis of race in hiring, promotion and other terms and conditions of employment. By letter dated July 10, 1974, the Commission notified Groves that he was entitled to institute a civil action in the United States District Court pursuant to Section 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. He has done so under Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, *fn1" and Title VII of the 1964 Act. *fn2"

 The complaint alleges that the defendant's failure to provide plaintiff with supervisory training and the removal of plaintiff from his supervisory position were racially motivated. It is further alleged that the defendant's action with respect to Groves are part of a continuing broad-based pattern of employment discrimination against Negroes by INA. *fn3" The complaint seeks wide-ranging relief, including, inter alia, an injunction against further discrimination, various forms of affirmative action, back pay, and damages.

 II. Class Action

 A. Satisfaction of Rule 23(a) and (b).

 Plaintiff seeks certification of this case as a class action pursuant to Rule 23(b)(2), or alternatively Rule 23(b)(3). The proposed class is to consist of

 
[1] all Negroes currently employed by the defendant in the Philadelphia-Metropolitan area, [2] all Negroes who have been employed in said area by defendant at any time between July 2, 1965 (the effective date of the 1964 Civil Rights Act) and the present date but who are no longer so employed, and [3] all Negroes who unsuccessfully sought employment with defendant between July 2, 1965, and the present date. *fn4"

 Before a case may proceed as a class action under either Rule 23(b)(2) or 23(b)(3), the prerequisites to a class action contained in Rule 23(a) must be satisfied. Pointing out that the burden of establishing entitlement to class certification is on the party seeking it, Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir. 1974); Mason v. Calgon Corp., 63 F.R.D. 98, 104 (W.D. Pa. 1974), the defendant contends that plaintiff has failed to meet two of these prerequisites -- the numerosity requirement of Rule 23(a)(1) and the typicality requirement of Rule 23(a)(3). (5)

 With respect to the numerosity requirement, the complaint alleges that the proposed class will consist of approximately 200 members. This number is sufficiently large that joinder of all members would be impracticable. See e.g., Fox v. Prudent Resources Trust, 69 F.R.D. 74, 77 (E.D. Pa. 1975); Newmon v. Delta Air Lines, Inc., 374 F. Supp. 238, 242 (N.D. Ga. 1973). Defendant claims, however, that plaintiff's approximation of the size of the class is wholly speculative. While essentially conceding that this figure is only a rough estimate, the plaintiff argues that he cannot furnish a more precise figure until discovery is completed. The plaintiff also notes that it is the defendant which has control of many, if not all, of the records necessary to establish the size of the class. In this regard, I note that there is presently pending before me in this case a discovery motion in which plaintiff seeks to compel the defendant to answer interrogatories aimed at developing information about the proposed class, including, inter alia, its size. The defendant takes the position in its memorandum in opposition to that motion that it should not be burdened with having to submit to discovery concerning the class since this case should not proceed as a class action. While this argument might have a trace of merit in some very limited situations, *fn6" it smacks of a heads-I-win-tails-you-lose proposition here. The defendant would have me decide, in effect, that plaintiff has failed to satisfy the numerosity requirement because he has not obtained information about the size of the class which defendant refuses to give him on the ground that he has failed to satisfy the numerosity requirement. *fn7" I reject this circular reasoning. See Presseisen v. Swarthmore College, supra, 71 F.R.D. at 43 n. 10. Because I conclude that plaintiff has clearly satisfied all other requirements for maintenance of this suit as a Rule 23(b)(2) class action, see text infra, and because it appears highly likely from the very nature of his claim that he also will be able to satisfy the numerosity requirement upon completion of further discovery, *fn8" I will grant the motion for class action treatment of this case on a conditional basis as permitted by Rule 23(c)(1). *fn9" See Gerstle v. Continental Airlines, Inc., 466 F.2d 1374 (10th Cir. 1972); B & B Investment Club v. Kleinert's, Inc., 62 F.R.D. 140 (E.D. Pa. 1974); Seligson v. The Plum Tree, Inc., 55 F.R.D. 259 (E.D. Pa. 1972). If it later appears that the class is not in fact so numerous as to make joinder impracticable, I will entertain a motion to decertify the case as a class action.

 Defendant next argues that Groves has not satisfied the requirement of Rule 23(a)(3) that the claims of the representative party be typical of the claims of the class. Specifically, INA contends that Groves' individual grievance arose from alleged discrimination in providing supervisory training and in promotions and since Groves himself had been "hired, promoted, transferred, and voluntarily quit," *fn10" his claims would not be typical of Negroes who had never been hired or of present Negro employees. I do not find this argument persuasive.

 As Judge Newcomer has pointed out, "[this] Court is committed to the 'across-the-board' approach to civil rights class actions." Paddison v. Fidelity Bank, 60 F.R.D. 695, 698 (E.D. Pa. 1973); see Williams v. Local No. 19, Sheet Metal Workers International Ass'n., 59 F.R.D. 49 (E.D. Pa. 1973); Mack v. General Electric Co., 329 F. Supp. 72 (E.D. Pa. 1972). Under this approach, a person claiming to be aggrieved by any particular discriminatory employment practices of an employer alleged to be part of an overall pattern of class based discrimination may sue to end all forms of discrimination by that employer against the class. Thus in Paddison, supra, a present female employee claiming discrimination in salary and promotional opportunities on the basis of sex was permitted to represent, inter alia, all present and former female employees of the defendant, all females who had sought but were denied or declined to accept employment with the defendant because of sex discrimination, and all females who did not apply for vacancies with the defendant due to lack of knowledge of the vacancies caused by defendant's discriminatory policies. In Williams, supra, a race discrimination case, it was held that former non-Caucasian union members could represent, inter alia, a class consisting of present, former and "potential" *fn11" non-Caucasian union members. Similarly, in Mack, supra, also a race discrimination case, Chief Judge Lord of this court held that a former Negro employee whose individual grievance related primarily to promotions and training, could represent a class consisting of present and former Negro employees, as well as Negroes who had unsuccessfully sought employment with the defendant, in a suit challenging virtually every aspect of the defendant's employment practices. There are no significant differences between the relationship of the named plaintiffs in Mack to the class they represented in that case and the relationship of the named plaintiff here to the class he seeks to represent in this case. *fn12"

 Having concluded that all the prerequisites of Rule 23(a) have been satisfied, I now turn to consideration of Rule 23(b). What has been said above with respect to the across-the-board approach is highly relevant here also. A claim of racially discriminatory employment policies is by its very nature a claim of action or inaction by the employer on the basis of a common characteristic of the class, here race. Thus, the requirement of Rule 23(b)(2) that "the party opposing the class has acted or refused to act on grounds generally applicable to the class" is clearly satisfied. See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 250 (3d Cir.) cert. denied 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975) (sex discrimination); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969); Jenkins v. United Gas Corp., 400 F.2d 28, 34 (5th Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). While it is quite likely that this suit also satisfies the criteria of section (b)(3) of Rule 23, it is unnecessary for me to consider the applicability of that section since under the principle of Van Gemert v. Boeing Company, 259 F. Supp. 125 (S.D. N.Y. 1966), adopted by this Circuit in Wetzel, supra,

 
. . . an action maintainable under both (b)(2) and (b)(3) should be treated under (b)(2) to enjoy its superior res judicata effect and to eliminate the procedural complications of ...

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