LOCATION: Minnesota State Capitol Building
DOCKET NO.: 81-574
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 457 US 147 (1982)
ARGUED: Apr 26, 1982
DECIDED: Jun 14, 1982
Frank P. Hernandez - on behalf of the Respondent
Noyes Thompson Powers - on behalf of the Petitioner
Facts of the case
Media for General Telephone Company of the Southwest v. Falcon
Audio Transcription for Oral Argument - April 26, 1982 in General Telephone Company of the Southwest v. Falcon
Warren E. Burger:
We will hear arguments next in General Telephone Company against Falcon.
Mr. Powers, you may proceed whenever you're ready.
Noyes Thompson Powers:
Thank you, Your Honor.
Mr. Chief Justice, and may it please the Court:
This case is here on writ of certiorari to the Court of Appeals for the Fifth Circuit.
It involves the proper scope of an employment discrimination class action.
The Petitioner, General Telephone, challenges the so-called across the board approach to class certification of the Fifth Circuit.
Under that approach the claims of applicants, employees and former employees can all be litigated in a single class action as long as the Plaintiff alleges that he and members of the class belong to the same race, sex or ethnic group and that each of them has suffered in some way from an employer's discrimination against their group.
The facts of this case vividly illustrate why that approach is wrong.
The Plaintiff, Mariano Falcon, an employee of General Telephone, charged that he was not promoted to a management job because he was a Mexican-American.
In the civil action that followed, Falcon also sought to represent a class of Mexican-Americans who had applied for work at General Telephone but had not been hired.
Without holding a hearing or stating any factual support for its action, the trial court certified Falcon as the sole representative of this class of unsuccessful applicants.
It did so despite the existence of facts which the company contends should have resulted in a denial of class certification.
For example, Mr. Falcon had never been an unsuccessful applicant at General Telephone.
Indeed, he was hired when he first applied as part of the company's affirmative action program.
Moreover, Falcon's promotion claim was based on a disparate treatment theory of discrimination, while the hiring claims he presented for the class were based on disparate impact.
And the evidence which he introduced in support of his own promotion claim was entirely unrelated to the hiring claims of the unsuccessful applicant class.
Finally, there was a conflict in interest of Falcon and the applicant class, because increasing the number of Mexican-Americans employed at General Telephone would have reduced Falcon's own chances of receiving the management promotion he sought.
On appeal, the Court of Appeals for the Fifth Circuit affirmed the class certification.
In so doing, it expressly relied on its own policy favoring across the board class actions in employment discrimination cases.
The court held that the fact that Plaintiff's claims and the class claims were both based on alleged discrimination against Mexican-Americans outweighed the differences in the employment practices that Falcon and the class were complaining of.
The court did declare that there was a similarity of interests between Falcon's claims and those of the class based upon job location, job function, and other considerations.
But it's clear from the record that the jobs that were included and those sought by the applicants went far beyond the management job which Falcon was complaining of not being promoted to, and there is no indication in the court's opinion or in the record as to what other considerations may have been similar between Falcon's claim and those of the applicant class.
General Telephone contends that Mr. Falcon is not a proper representative of an unsuccessful applicant class, for three reasons.
First, Falcon's promotion claim was not typical of the hiring claims of the unsuccessful applicant class.
This Court said in General Telephone of the Northwest against EEOC that typicality limits the claims of the class to those that are fairly encompassed in the representative's personal claim.
That certainly was not true here.
Falcon's claim was based on a disparate treatment theory, while the hiring claims were based on disparate impact.
And the evidence he introduced in support of his own claim was entirely unrelated to the claims of the applicant class.
And so we say that there's no typicality as required under Rule 23(a)(3).