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Claxton L. Burns, on Behalf of Himself and Others Similarlysituated, Plaintiff-appellant, v. Thiokol Chemical Corporation, Defendant-appellee
United States Court of Appeals, Fifth Circuit. - 483 F.2d 300
July 19, 1973.Rehearing and Rehearing En BancDenied Oct. 26, 1973
U. W. Clemon, Birmingham, Ala., for plaintiff-appellant.
C. W. Stelzenmuller, Birmingham, Ala., for defendant-appellee.
Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.
JOHN R. BROWN, Chief Judge:
This case demonstrates once again that "the shortest way around is often the longest way through." Webb v. Standard Oil Co., 5 Cir., 1971, 451 F.2d 284, 285.
Suit was filed by the appellant Burns under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Sec. 2000e et seq. and 42 U.S.C.A. Sec. 1981,1 against his former employer, the Thiokol Chemical Corporation, both in an individual capacity and as a "private attorney-general" representing a class of aggrieved Blacks. The complaint sought appropriate declaratory and injunctive relief against Thiokol because of its alleged discriminatory promotion policies against the class and specific relief on behalf of Burns in this regard. It also sought damages for the Company's alleged failure to grant medical treatment to Burns after he sustained minor injuries during the course of his employment, and, finally, reinstatement with back pay due to the Company's reprisal discharge of Burns.
After trial on the merits, the District Court entered findings of fact and conclusions of law holding against Burns in every respect. On appeal, Burns asserts that the trial court erred in (i) sustaining Thiokol's objections to certain F.R. Civ.P. 33 pre-trial interrogatories, (ii) holding that the evidence would not support a finding of class discrimination, and (iii) holding that Burns' discharge was for poor work rather than in reprisal for his registering of complaints against the Company's alleged discriminatory practices.
Finding Burns' first contention to be exceedingly meritorious, we reverse and remand the case for a new trial.
A Gadfly In The Porridge
Neither party challenges the factual accuracy of the statement that over the course of his fourteen years in the employ of Thiokol, Claxton Burns developed "bad chemistry" with management. Indeed, both parties seek to use this fact to their advantage. Thiokol expends a considerable amount of space in its brief urging that not only did Burns develop such caustic personality and attitudinal traits that he became incapable of adequately performing his job, but also that he was a bellicose maverick without sufficient rapport with his fellow Black workers to represent them as a class.
The District Court found that Burns' attitude and his actions were anathema to the management of Thiokol. The Court also held that Burns was discharged, not because of his race, but because he spread false rumors around the business community about Thiokol's alleged failure to render medical aid to him after he collapsed as a result of working with some chemicals on November 21, 1968 in violation of a Company rule.2 Normally, this finding would be entitled to the protection of the "buckler and shield" of F.R.Civ.P. 52(a). because we hold here, however, that the Court's view of the context of the case was necessarily circumscribed by its own restrictive policy towards Burns' discovery efforts, the issue must be tried again. See note 10, infra.
In Sanders v. Dobbs Houses, Inc., 5 Cir., 1970, 451 F.2d 1097, we held that the pre-existing, non-vivified remedy under this section of the Civil Rights Act of 1866, was not pre-empted by the passage of Title VII ninety-eight years later. Accord, Waters v. Wisconsin Steel Works, 7 Cir., 1970, 427 F.2d 476
Rule 33 provides, in pertinent part, as follows:
(a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.
The permissible scope of interrogatories under Rule 33 is governed by the provisions of F.R.Civ.P. 26(b) which says:
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
"9. List the name, age, address, sex, and school years completed by/of each white person hired by the Company at its Huntsville plant since January 1, 1960 and presently employed by the Company and with respect to each such employee state
(a) date of initial employment;
(b) all job classifications held since date of initial employment, including present job classification;
(c) date of each job classification change;
(d) plant age;
(e) department age;
(f) line of promotion age.
10. List each permanent vacancy which has occurred in each job classification at the Huntsville plant since January 1, 1960 and with respect to each such vacancy state
(a) date of each such vacancy;
(b) name, race, date of initial hire, department, job classification, all seniority dates of each person who bid for the vacancy;
(c) name of successful bidder;
(d) whether the successful bidder had previously worked in the job posted for bid, and, if so, dates worked in job posted for bid.
11. List each temporary vacancy of eight (8) hours or more which has occurred in each job classification in the Huntsville plant since July 1, 1964 and with respect to each such vacancy state
(a) reason for the vacancy, and length thereof;
(b) name and race of each employee who filled the vacancy;
(c) all seniority dates of persons filling the vacancy;
(d) prior job status of employee filling the vacancy;
(e) length of time employee remained in the vacancy;
(f) subsequent and current status of the employee who filled the vacancy.
18. State the job description of each non-bargaining unit job at the Company's Huntsville plant; the wage rates for each such job; and the name, address, age, race, sex, present position, and prior job classification of each employee currently employed in a non-bargaining unit position. Also indicate the date on which each such person holding a nonbargaining unit position was entered his present position."
Thiokol's copious grounds for objection included the argument that the interrogatories called for immaterial, irrelevant, and incompetent evidence, and evidence not embraced within the issues involved in the trial of the case. Obviously, Thiokol failed to take account of the difference in degrees between the quantum of "relevancy" which will support an effort to discover background information and the more demanding degree of "relevancy" exacted by the trial Judge at the evidentiary tender, as reflected by the statement in Rule 26(b) that "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Ultimate admissibility is simply not the test for relevancy of material to be discovered. Freeman v. Seligson, 1968, 32 U.S.App. D.C. 56, 405 F.2d 1326, 1335
In Kessler we held that the provisions in 42 U.S.C.A. Secs. 2000e-5(a), 2000e-8(e) prohibit the EEOC from "making public" the information obtained as a result of its investigatory efforts would not prevent EEOC from divulging such information to the charging party. In addition to the historic grounds which compelled this construction of these statutes, we also drew support from the public policy in favor of enabling the private attorney-general to effectively don the "mantle of the sovereign", Jenkins v. United Gas Corp., 5 Cir., 1968, 400 F.2d 28, 32, and effectuate the policies at the Act or take up the banner of an aggrieved class:
This conclusion is further justified on policy grounds. It is difficult to understand how a grievant could amass the statistical information alone that would be necessary in order for him to know whether he had anything more than a suspicion of discrimination without access to the kind of information referred to in Section 709(e) concerning his employer's practices with regard to promotions, terminations and the like.
472 F.2d at 1151.
Thiokol correctly demonstrates that Subsection (c) was not in effect until July 1, 1970, long after the date upon which it was obligated to furnish the answer to Burns' interrogatories. This option will be available on remand if Thiokol should choose to elect it-subject, of course, to the judge's approval. But see Sutter, Current Procedural and Evidentiary Considerations Under Title VII of the Civil Rights Act of 1964: Ready for the Defense, 6 Ga.L.Rev. 505, 512-14 (1972)
Since we hold that the information sought by plaintiff's interrogatories was discoverable, we have withheld ruling on the merits of Burns' appeal on issues (ii) and (iii). On remand, the trial court should allow the parties to proceed directly to properly complete the discovery process, and then reevaluate Burns' class action in light of the information available to him at that time, in accordance with Johnson v. Georgia Highway Express, 5 Cir., 1969, 417 F.2d 1122. See also Parham v. Southwestern Bell Telephone Co., 8 Cir., 1970, 433 F.2d 421. This would also include any guidance that might be furnished by the en banc court in Huff v. N. D. Cass Company of Alabama, 5 Cir., 1972, 468 F.2d 172, currently under submission to the full Court. Because of the importance of the determination of Burns' qualification to serve as the representative of the class, the court should resolve the issue "as soon as practicable". F.R.Civ.P. 23(c) (1)
Ordinarily we accord great latitude to the District Court in situations which call for a retrial as to the extent to which the record of the first trial may be used in the second with appropriate supplementation. Because most of the testimony bearing on Burns' individual claim was given without the benefit of necessary discovery, however, we believe that in this instance the entire claim must be tried in full again. In this regard, we note that Thiokol has consistently urged on appeal that a prior arbitration of Burns' discharge was dispositive of that issue. The extent to which reliance shall be placed upon that proceeding must be determined in the first place by the trial court in accordance with the principles enunciated by this Court in Rios v. Reynolds Metals Co., 5 Cir., 1972, 467 F.2d 54.