First Rights Act Class Certification Sought

Texas Lawyer

June 6, 1994   Vol 10 No. 12   $6.00 - Two Sections

A PUBLICATION OF AMERICAN LAWYER MEDIA, L.P.

The first class action under the 11-year-old Texas Commission on Human Rights act may be certified soon in a discrimination suite filed by an African-American saleswoman who claims she was not promoted to Color Tile Inc. stores in Houston because of her race.

Plaintiffs’ attorney Robert S. Bennett of Houston has asked 164^th district Judge Katie Kennedy to certify a class that includes other African-American’s who allegedly were discriminated against in hiring, promotion and termination at Color Tile, a Fort Worth-based, privately owned retail company.

But defense attorneys are not making it easy for Bennett, a name partner in Bennett, Broocks, Baker & Lange.  Bennett, who took the case on a contingency bases, primarily does products liability and person injury but said he has won employment discrimination cases in the past.

Acrimony between the sides led to Kennedy’s order April 26 appointing former 208^th District Judge John Kyles special master for discovery disputes and pending motions.  She ordered the two sides to split the $250-an-hour fee for Kyles, who is of counsel to Vinson & Elkins of Houston.

With class certification at stake, Bennett and partner Patrick O. Chukelu are engaged in a fierce courtroom battle with defense attorneys Paul Inman, a partner in the Dallas office of Gibson, Dunn & Crutcher, and Kenneth Wynne and Mark Maney, name partners in Wynne & Maney of Houston.  The defense attorneys dispute the timing of Bennett’s’ motion for class action and the validity of the class, as well as the merits of the suit.

Cassandra R. Stephenson v Color Tile Inc., No. 91-15818. Following a hearing May 31, Wynne and Inman also were quick to stress that the suit has not yet been certified.

Since Feb. 7, attorneys have spent nine days in Kennedy's court hearing evidence from 21 witnesses on Stephenson's motion for class certification.  The hearing is expected to resume the week of July 4 and last at least two more days.

Besides monetary damages, the suit asks for an injunction to force Color Tile to post internally all management job openings so all employees, including African-Americans, would know about them.  While Bennett has not specified his request for actual and punitive damages, he said he believes as many as 1,000 present and former employees of Color Tile and people who applied for jobs from May 1983 to the present would belong to the class.

If granted, the class certification apparently would be the first under the Texas Commission on Human Rights Act, which went into effect in September 1983 and is patterned after Title VII of the federal Civil Rights Act.William Hale, executive director of Texas Commission on Human Rights, and Gregg Rosenberg, chairman of the State Bar’s labor and employment law section, and four other attorneys who practice employment discrimination law said they know of no other class action under the state law.  Hale said in the last decade, the commission filed 80 to 90 suits and amicus briefs under the act and has lost two of the 70 to 80 of those cases that have been concluded.

The reason no one has tried to proceed with a state court class action previously may be that employment discrimination claims traditionally have been filed in federal court, said John E. Schulman, of the Dallas-based law Offices of John E. Schulman.

Rosenberg said because the state and federal laws are so similar the primary advantage to filing the suit in state court the choice of forum.

“People generally feel they have more control over the jury, and less chance of a disparities motion being granted in State court. You get more of an inner-city jury," said Rosenberg, principal in Houston's Gregg Rosenberg & Associates.

Bennett said his reasoning for riling the suit under state law is that he considers the State judiciary less conservative than its federal counterpart.  "We feel the state courts have more sensitivity now.  We think we have a friendlier forum,” he said.

But while agreeing some lawyers perceive Houston's federal judges as more conservative than state judges, employment-discrimination plaintiffs' attorney David Lopez, of David T Lopez & Associates of Houston, said he sees advantages to seeking class Certification in federal court because of broader discovery rules and because federal judges have more experience handling unwieldy class actions.  Plus, their dockets are often less crowded.

Regardless, Bennett's pursuit of a class certification in State Court has mightily expanded the size of the case file - to nine volumes.

PATTERN OF DISCRIMINATION?

Kennedy heard arguments May 31 on Color Tile’s motion to reconsider her appointment of Kyles as special master.

Wynne argued discovery issues are moot because Bennett tested his side in the class certification hearing.  But after hearing arguments, Kennedy refused to reconsider her appointment, although she did grant a stay of any proceedings before Kyles pending Color Tile's appeal of her ruling.

Wynne filed a petition June I with the 1st Court of Appeals for a writ of mandamus.

Bennett said a class action was the "farthest thing from my mind” when he filed the suit alleging discrimination in how Stephenson was treated by Color Tile managers.  But during discovery, he found evidence of what he characterizes as a pattern of discrimination against African-Americans at Color Tile, he said. He amended the suit in June 1993 to include the class claims.

Stephenson filed the civil suit in April 1991. Her third amended petition alleges she was denied promotion to manager of more than one store in 1990 and the jobs were given to white males.  In one instance, a white male from another state was given the job, she says.

“This decision was in direct contravention of defendant's policy to promote from within, which gives preference to local employees in advancement decisions.  This decision was a calculated attempt to suppress named plaintiff's career advancement because of her race and gender and meant to send a message to others similarly situated,” the suit reads.

Stephenson, a Color Tile employee since 1980, alleges she was required to take an 'arbitrary and capricious 'test' ' for one management position in 1990 and did not get the job.  The test was not uniformly given to white males also seeking management jobs, she claims, adding that white males were sometimes promoted during golf games.

Her December 1990 complaint to the Texas Commission on Human Rights indicates she was promoted to manager in January 1983 but demoted and transferred two months later.  She wrote in the complaint that she did not apply for another management position until 1990 because of the “unfair treatment” she had experienced in the past, but she then lost out on management positions to less qualified white males, despite her outstanding sales record.

The discrimination went beyond promotional opportunities, Stephenson alleged in the suit.  She said her regional manager in 1990 cautioned her to be careful on a weekend rafting trip in New Braunfels “because, you know black people can't swim.'“

She cited other alleged instances of discrimination, including a claim that a manager at the company's corporate headquarters in Fort Worth had more than once made derogatory comments to female African-American employees while waving around the hose from a fire extinguisher.

Color Tile generally denies all of Stephenson’s claims and alleges, neither the motion for class action nor her personal allegations make sense because she made her discrimination claim after she was promoted to store manager.

“While litigating her claims of race and gender discrimination for over two years, plaintiff has in fact enjoyed nothing but promotional opportunities and employment successes.” Color Tile attorneys wrote in the company's objections to Stephenson's proposed class action.

Bennett confirmed Stephenson is now manager of a Color Tile store in southwest Houston.  He said she was promoted before the suit was filed, but company officials were aware she was filing her complaint.

Inman said Stephenson was promoted to store manager in September 1990 before she filed her complaint with the commission and before she filed the suit.

Color Tile alleges Stephenson is at inadequate class representative because she does not share common circumstances with the proposed class representatives and filed the class action only after efforts to 'extort a lucrative settlement from Color Tile” failed.

“We don't have the ingredients of a class action here,” Inman said.  'There has to be some common element, some, common factor, that binds these people together.'

The company claims Stephenson is trying to represent a class that is to, broad because it includes African-Americans from outside the Houston region those in non-sales administrative positions and prospective employees.

Stephenson also seeks certification of separate class of women she says were sexually harassed while working at Color Tile and current and former African-American employees who were defamed by Color Tile employees, but Kennedy said those allegations would be addressed separately.  She also has limited the potential racial discrimination class members to Texans.

Bennett said the chain operates 80 stores nationwide and has more than 5,000 employees.

Document supplementing article, are on LEXIS COUNSEL CONNECT at no expense Texas Lawyer subscribers.