Opinion · Court of Appeals for the Fourth Circuit

Muskelly v. Warner & Swasey Co.

653 F.2d 112

Type: Opinion
Court: Court of Appeals for the Fourth Circuit
Jurisdiction: Federal
Date: 1981-06-25
Topic: litigation

How later courts describe this case

class member permitted to intervene after trial as named representative

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Cited by: 6 opinions

MUSKELLY v. WARNER AND SWASEY COMPANY,653 F.2d 112(4th Cir. 1981)

WILLIS MUSKELLY, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,

APPELLEE, v. WARNER AND SWASEY COMPANY, APPELLANT.

No. 80-1872.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1981.

Decided June 25, 1981.

Rehearing Denied September 16, 1981.

John R. Wester, Everett J. Bowman, Charlotte, N.C. (Richard A. Vinroot, Fleming, Robinson, Bradshaw Hinson, P.A., Charlotte, N.C., on brief), for appellant.

Jeffrey L. Bishop, Charlotte, N.C. (Casey Bishop, P.A., Charlotte, N.C., on brief), for appellee.

Appeal from the United States District Court for the Western District of North Carolina.

Before MURNAGHAN and SPROUSE, Circuit Judges, and ERWIN^fn*, District Judge.

MURNAGHAN, Circuit Judge:

[1] Willis Muskelly instituted suit under Title VII,42 U.S.C. § 2000e,et seq.and under42 U.S.C. § 1981(1974), charging Warner andPage 113Swasey Co. with racial discrimination in failure to promote. In addition to pursuing his individual claim, Muskelly sought to represent employees and applicants for employment in a class action suit challenging allegedly discriminatory employment practices involving job placement, terms and conditions of employment, promotions, and hiring. After the class had been certified, but before judgment, the district court permitted several class members to intervene as named plaintiffs. Eugene Dawkins, one of the intervenors, complained of discriminatory refusal to hire. Another intervenor, James Davis, presented a claim involving discriminatory refusal to promote.

[2] After trial, the district court, having found no pattern or practice of discrimination on the grounds of race, denied class relief and decertified the class. It also found in favor of Warner and Swasey on all individual claims except those of Muskelly, Dawkins, and James Davis. There has been no appeal from the determinations in favor of Warner and Swasey.

[3] Warner and Swasey contends that it was error to permit Dawkins to intervene. Relying onHill v. Western Electric Co., Inc.,596 F.2d 99(4th Cir. 1979),cert. denied,444 U.S. 929,100 S.Ct. 271,62 L.Ed.2d 186(1979), Warner and Swasey argues that rejected job applicants, like Dawkins, "do not belong in the same class as incumbent employees," like Muskelly. However, the argument misperceives the holding ofHill.InHill,on the facts there presented, we concluded that a named plaintiff who was already employed lacked a sufficient identity of interest torepresentsomeone complaining of refusal to hire who was not personally before the court. Here Dawkins was before the court.Hilldid not assert that a class represented by one person complaining of failure to promote and by another complaining of failure to hire was improperly constituted. Intervention by Dawkins, at a time when the class was certified, was appropriate as a means of preserving the rights and interests of putative class members.Cf. Goodman v. Schlesinger,584 F.2d 1325(4th Cir. 1978);Cox v. Babcock Wilcox,471 F.2d 13(4th Cir. 1972). It was not error for the district court to allow Dawkins to intervene as a named plaintiff, and, thereafter, to represent himself as well as the class. The record discloses that questions of law and fact in common existed between Muskelly and Dawkins and the class. F.R.Civ.P.23(d);24(b)(2).

[4] With regard to the three individual claims, examination of the record satisfies us that the issues of fact were fairly controverted, with sufficient evidence present to sustain the findings of the district judge. They were not clearly erroneous.

[5] Accordingly, the judgments are affirmed.

[6]AFFIRMED.

The Honorable Richard C. Erwin, United States District Judge for the Middle District of North Carolina, sitting by designation. ↩