Bazemore v. FridayAnnotate this Case
478 U.S. 385 (1986)
U.S. Supreme Court
Bazemore v. Friday, 478 U.S. 385 (1986)
Bazemore v. Friday
Argued April 22, 1986
Decided July 1, 1986
478 U.S. 385
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
The private petitioners -- who include employees of the North Carolina Agricultural Extension Service (Extension Service), recipients of its services, members of its Homemaker Clubs, and parents of youths that belong to its 4-H Clubs -- filed suit against various state and local officials in Federal District Court (the United States intervened as a plaintiff), alleging racial discrimination in employment and in provision of services by the Extension Service, in violation of the Constitution and various federal statutes, including Title VII of the Civil Rights Act of 1964. The court refused to certify various proposed classes and entered judgment for respondents, finding that petitioners had not carried their burden of demonstrating that respondents had engaged in a pattern or practice of racial discrimination. The Court of Appeals affirmed.
1. For the reasons stated in the concurring opinion of JUSTICE BRENNAN, the Court of Appeals erred: in holding that, under Title VII, the Extension Service had no duty to eradicate salary disparities between white and black workers that had their origin prior to the date Title VII was made applicable to public employees; in disregarding petitioners' statistical analysis because it reflected pre-Title VII salary disparities; in holding that petitioners' regressions were unacceptable as evidence of discrimination; in ignoring evidence related to salary disparities presented by petitioners in addition to their multiple regression analyses; and in refusing to certify a class of black employees of the Extension Service, although the Court of Appeals was correct in refusing to certify a class of defendant counties.
2. For the reasons stated in the opinion of JUSTICE WHITE, neither the Constitution nor the applicable Department of Agriculture regulations required more than what the District Court and the Court of Appeals found the Extension Service has done to disestablish segregation in its 4-H and Homemaker Clubs.
751 F.2d 662, affirmed in part, vacated in part, and remanded.
These cases present several issues arising out of petitioners' action against respondents for alleged racial discrimination in employment and provision of services by the North Carolina Agricultural Extension Service (Extension Service). The District Court declined to certify various proposed classes and, after a lengthy trial, entered judgment for respondents in all respects, finding that petitioners had not carried their burden of demonstrating that respondents had engaged in a pattern or practice of racial discrimination. The District Court also ruled against each of the individual plaintiffs' discrimination claims. The Court of Appeals affirmed. 751 F.2d 662 (CA4 1984). We hold, for the reasons stated in the concurring opinion of JUSTICE BRENNAN, that the Court of Appeals erred in holding that, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., the Extension Service had no duty to eradicate
salary disparities between white and black workers that had their origin prior to the date Title VII was made applicable to public employers; [Footnote 1] that the Court of Appeals erred in disregarding petitioners' statistical analysis because it reflected pre-Title VII salary disparities, and in holding that petitioners' regressions were unacceptable as evidence of discrimination; that the Court of Appeals erred in ignoring evidence presented by petitioners in addition to their multiple regression analyses; that, on remand, the Court of Appeals should examine all of the evidence in the record relating to salary disparities under the clearly erroneous standard; that the reasons given by the Court of Appeals for refusing to certify a class of black employees of the Extension Service do not support a decision not to certify such a class; and that the Court of Appeals was correct in refusing to certify a class of defendant counties. [Footnote 2] We further hold, for the reasons stated in the opinion of JUSTICE WHITE, that neither the Constitution nor the applicable Department of Agriculture regulations require more than what the District Court and
the Court of Appeals found the Extension Service has done in this case to disestablish segregation in its 4-H and Extension Homemaker Clubs. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the cases are remanded for further proceedings consistent with this opinion. [Footnote 3]
It is so ordered.
* Together with No. 85-428, United States et al. v. Friday et al., also on certiorari to the same court.
The private petitioners contend that the salary disparities that occurred even prior to the date Title VII was made applicable to public employers, March 24, 1972, violate their rights under the Fourteenth Amendment, and that we should reach this issue, because doing so would enable them to recover for such constitutional violations as occurred prior to that date. The Court of Appeals did not address petitioners' constitutional claim. Although there are statements in the Court of Appeals' opinion to the effect that salary disparities have lingered up to the present, the District Court made no finding as to precisely when, if ever, any disparities were eliminated. It noted simply that the
"unification and integration of the Extension Service did not result immediately in the elimination of some disparities which had existed between the salaries of white personnel and black personnel. . . ."
App. to Pet. for Cert. in No. 85-93, p. 31a. See also id. at 122a-123a; 201a. If, on remand, it is finally determined that pre-1965 salary disparities did continue past the date of the merger to a time for which recovery is not barred by the applicable statute of limitations, the courts below will have to decide private petitioners' constitutional claim.
The issue of the certification of a class of 4-H and Extension Homemaker Club members is now moot in light of the Court's resolution of the underlying claim.
The private petitioners also invite this Court to consider whether an employer may immunize itself from liability for employment discrimination by delegating its employment decisions to a third party that acts in a discriminatory manner. We agree with the United States, however, that that question is not properly presented on this record. Although the Court of Appeals stated that the Extension Service is not "separately responsible" for the selection of county chairmen, 751 F.2d at 677, it did note that "the agreement of the Extension Service and the County Commissioners is required in order to fill the vacancy [for County Chairman]." Id. at 675. Similarly, the District Court expressly found that,
"in the memorandum of understanding between the Extension Service and the boards of county commissioners, all appointments are worked out jointly between the Extension Service and the commissioners, and no official action can be taken unilaterally by either party with respect to filling a vacancy."
App. to Pet. for Cert. in No. 85-93, p. 77a. This finding is supported by the record, App. 163.
Respondents do not contend that the Extension Service would not be liable for any pattern or practice of discrimination with respect to the hiring of County Extension Chairmen. Thus, it was error for the Court of Appeals to consider solely the recommendations made by the Extension Service, rather than the final hiring decisions in which the Extension Service and county acted together.
JUSTICE BRENNAN, joined by all other Members of the Court, concurring in part.
The purpose of North Carolina's agricultural extension program, administered through the North Carolina Agricultural Extension Service (Extension Service), is to aid in the dissemination of "useful and practical information on subjects
relating to agriculture and home economics." App. to Pet. for Cert. in No. 85-93, p. 7a (hereinafter Pet. App.). The Extension Service is a division of the School of Agriculture and Life Sciences at North Carolina State University (NCSU). It is headed by a Director who exercises authority over District Extension Chairmen responsible for administering all Extension Service programs within the State's six Extension Service districts. The District Extension Chairmen, in turn, supervise the 100 County Extension Chairmen who are responsible for developing and coordinating all Extension Service activities within their respective counties. The County Extension Chairmen also report to their respective Board of County Commissioners (Board), a unit of local government, on extension programs and on matters relating to budgeting and personnel.
The Extension Service operates in four major areas: home economics, agriculture, 4-H and youth, and community resource development. In both the home economics and 4-H areas, one of the Extension Service's methods entails the establishment of clubs to educate the club members in home economics and other useful and practical skills. The agricultural program educates and encourages farmers to adopt scientific methods and to adjust to changing economic circumstances. The community resource development program emphasizes group action through citizen groups and organizations. Each of these programs is implemented by local agents who are selected for employment jointly by the Extension Service and the county Boards. Agents are divided into three ranks: full agent, associate agent, and assistant agent.
"While the three ranks of agents perform essentially the same types of tasks, when an agent is promoted, his responsibilities increase and a higher level of performance is expected of him."
Id. at 17a.
The salaries of all workers are determined jointly by the Extension Service and the Boards. Id. at 33a; CA App.
223; DX 78, CA App. 1684. [Footnote 2/1] The federal, state, and county governments all contribute to these salaries. The Boards and the Extension Service determine jointly the proportionate share of salaries to be paid by the State and by the county. Moreover, all county extension hirings and firings are decided "jointly between the North Carolina Agricultural Extension Service and the Board of County Commissioners.'" Pet. App. 24a (quoting Memorandum of Understanding, DX 78).
The Extension Service has overall responsibility for establishing qualifications for employment in the Service and for screening applicants before recommending qualified applicants to the county commissioners for appointment to vacant or new positions. The Extension Service also prepares and submits an annual budget request to the Board for the county's share of funds for salaries.
Each Board reviews the budget requests from the Extension Service each year and confers with and advises the District and County Extension Chairman concerning Extension Service programs. The Board furnishes the county's share of salaries for extension personnel. In addition, it provides office space and equipment, utilities, telephone, demonstration materials, etc.
Prior to August 1, 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Only the "Negro branch" had a formal racial designation. The "Negro branch" was composed entirely of black personnel and served only black farmers, homemakers, and youth. The white branch employed no blacks, but did on occasion serve blacks. On August 1, 1965, in response to the Civil Rights Act of 1964, the State merged the two branches of the
Extension Service into a single organization. However, as the District Court subsequently found, "[the] unification and integration of the Extension Service did not result immediately in the elimination of some disparities which had existed between the salaries of white personnel and black personnel. . . ." Id. at 31a.
The private petitioners include employees of the Extension Service, recipients of its services, members of Extension Homemaker Clubs, and parents of 4-H Club youths. Complaint 12. They brought this action in 1971 alleging racial discrimination in employment and in the provision of services on the part of the Extension Service in violation of the First, Fifth, and Fourteenth Amendments to the Constitution, 42 U.S.C. §§ 1981, 1983 and 2000d, and 7 U.S.C. § 341 et seq. The defendants, respondents here, were William C. Friday, President of NCSU, and various officials associated with the University and its School of Agriculture. In addition, County Commissioners from Alamance, Edgecomb, and Mecklenburg Counties were also named as defendants.
On April 7, 1972, the United States intervened under § 902 of Title IX and §§ 601 and 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000h-2, 2000d, and 2000d-1. The United States subsequently amended its complaint in intervention to include allegations that defendants had also violated §§ 703 and 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2 and 2000e-5. The United States' complaint essentially tracked the claims made by the private petitioners. The private petitioners were permitted on the eve of trial to amend their complaint to add a claim under Title VII as well.
On two occasions prior to trial the District Court was asked, but declined, to certify the action as a class action.
Near the close of trial, the plaintiffs again requested the court to certify four classes of plaintiffs and one class of defendants. [Footnote 2/2] However, the District Court once again declined to do so, and this decision was subsequently upheld by the Court of Appeals. On the merits, the trial court explored allegations of racial discrimination in virtually every aspect of the Extension Service's employment practices and provision of services. [Footnote 2/3] The District Court ruled in favor of respondents in all respects. On most issues, it concluded that petitioners
had failed to carry their burden of proof. As a general proposition, the District Court was of the view that the Extension Service had conducted itself in a nondiscriminatory manner since it became subject to Title VII and since the merger of the black and white branches in 1965. Both the private petitioners and the United States limited their appeals to the claims that the District Court erred in considering the evidence before it regarding salaries and promotions to County Chairmen, and in concluding that the Extension Service had not discriminated against blacks with respect to salaries and promotions to County Chairmen. The United States also claimed that the system used to determine merit pay increases violated Title VII. The private petitioners also appealed the rejection of their claim that respondents were unlawfully providing services and materials to segregated 4-H and Extension Homemaker Clubs, and the District Court's refusal to certify the case as a class action. The Court of Appeals affirmed the District Court in all respects. 751 F.2d 662 (CA4 1984). We granted certiorari, 474 U.S. 978 (1985). [Footnote 2/4]
The first issue we must decide is whether the Court of Appeals erred in upholding the District Court's finding that petitioners had not proved by a preponderance of the evidence that respondents had discriminated against black Extension Service employees in violation of Title VII by paying them less than whites employed in the same positions. The Court of Appeals reasoned that the Extension Service was under no obligation to eliminate any salary disparity between blacks and whites that had its origin prior to 1972, when Title VII became applicable to public employers such as the Extension Service. [Footnote 2/5] It also reasoned that factors other than those included in petitioners' multiple regression analyses affected salary, and that therefore those regression analyses were incapable of sustaining a finding in favor of petitioners.
Both the Court of Appeals and the District Court found that, before the black and white Extension Service branches were merged in 1965, the Extension Service maintained two separate, racially segregated branches, and paid black employees less than white employees. Pet. App. 120a; 751 F.2d at 666. The Court of Appeals also acknowledged that, after the merger of the Extension Service, "[s]ome preexisting salary disparities continued to linger on," and that these disparities continued after Title VII became applicable to the Extension Service in March, 1972, and after this suit was filed. Ibid. Indeed, the Court of Appeals noted that
"the Extension Service admits that, while it had made some adjustments to try to get rid of the salary disparity resulting
on account of pre-Act discrimination, it has not made all the adjustments necessary to get rid of all such disparity."
Id. at 672. See also Brief for Respondents 32 ("[E]fforts were made to reduce the average differences, but, due to the county-by-county salary differences and finding [sic] structure, 1971 [sic], the averages were not eliminated"). The court interpreted petitioners' claim on appeal to be that "the pre-Act discriminatory difference in salaries should have been affirmatively eliminated, but has not." 751 F.2d at 670. Relying on our cases in Hazelwood School District v. United States,433 U. S. 299 (1977), and United Air Lines, Inc. v. Evans,431 U. S. 553 (1977), it concluded, "[w]e do not think this is the law." 751 F.2d at 670.
The error of the Court of Appeals with respect to salary disparities created prior to 1972 and perpetuated thereafter is too obvious to warrant extended discussion: that the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VTI. To hold otherwise would have the effect of exempting from liability those employers who were historically the greatest offenders of the rights of blacks. A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and, to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.
Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior
to the effective date of Title VII. The Court of Appeals plainly erred in holding that the pre-Act discriminatory difference in salaries did not have to be eliminated. [Footnote 2/6]
The Court of Appeals' conclusion that pre-Act salary discrimination did not have to be eliminated undermines the rest of its analysis of the District Court opinion. Having rejected the effect of pre-Act discrimination, the court considered solely whether the Extension Service discriminated with respect to the application of quartile rankings which, according to the Court of Appeals, were "the only aspect of salary computation in which the Extension Service exercised any discretion." 751 F.2d at 674. [Footnote 2/7] Because, as we have explained, the Extension Service was under an obligation to eradicate salary disparities based on race that began prior to the effective date of Title VII, [Footnote 2/8] the Court of Appeals erred in concentrating its analysis solely on the issue whether there was racial discrimination in the ranking system.
We now turn to the issue whether the Court of Appeals erred in upholding the District Court's refusal to accept the petitioners' expert statistical evidence as proof of discrimination
by a preponderance of the evidence. In a case alleging that a defendant has engaged in a pattern and practice of discrimination under § 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a), plaintiffs must
"establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure -- the regular, rather than the unusual, practice."
Teamsters v. United States,431 U. S. 324, 431 U. S. 336 (1977). Further, our decision in United States Postal Service Board of Governors v. Aikens,460 U. S. 711 (1983), although not decided in the context of a pattern-and-practice case, makes clear that, if the defendants have not succeeded in having a case dismissed on the ground that plaintiffs have failed to establish a prima facie case, and have responded to the plaintiffs' proof by offering evidence of their own, the factfinder then must decide whether the plaintiffs have demonstrated a pattern or practice of discrimination by a preponderance of the evidence. This is because the only issue to be decided at that point is whether the plaintiffs have actually proved discrimination. Id. at 460 U. S. 715. This determination is subject to the clearly erroneous standard on appellate review. See Anderson v. Bessemer City,470 U. S. 564 (1985); Pullman-Standard v. Swint,456 U. S. 273 (1982).
At trial, petitioners relied heavily on multiple regression analyses designed to demonstrate that blacks were paid less than similarly situated whites. The United States' expert prepared multiple regression analyses relating to salaries for the years 1974, 1975, and 1981. Certain of these regressions used four independent variables -- race, education, tenure, and job title. Petitioners selected these variables based on discovery testimony by an Extension Service official that four factors were determinative of salary: education, tenure, job title, and job performance. GX 159, pp. 90, 96. In addition, regressions done by the Extension Service itself for 1971 included the variables race, sex, education, and experience; and another in 1974 used the variables race, education,
and tenure to check for disparities between the salaries of blacks and whites. GX 214; Tr. 3915-3918; CA App. 1681; Tr. 3920.
The regressions purported to demonstrate that, in 1974, the average black employee earned $331 less per year than a white employee with the same job title, education, and tenure, GX 123; CA App. 1601; Tr. 364-365, and that, in 1975, the disparity was $395, GX 123; CA App. 1589; Tr. 377. [Footnote 2/9] The regression for 1981 showed a smaller disparity which lacked statistical significance.
The Court of Appeals stated:
"[The] district court refused to accept plaintiffs' expert testimony as proof of discrimination by a preponderance of the evidence because the plaintiffs' expert had not included a number of variable factors the court considered relevant, among them being the across-the-board and percentage pay increases which varied from county to county. The district court was, of course, correct in this analysis."
751 F.2d at 672.
The Court of Appeals thought the District Court correct for essentially two reasons: first, the Court of Appeals rejected petitioners' regression analysis because it "contained salary figures which reflect the effect of pre-Act discrimination, a consideration not actionable under Title VII. . . ." Ibid. (footnote omitted). Second, the court believed that "[a]n appropriate regression analysis of salary should . . . include all measurable variables thought to have an effect on salary level." Ibid. In particular, the court found that the failure to consider county-to-county differences in salary increases was significant. It concluded, noting:
"[B]oth experts omitted from their respective analysis variables which ought to be reasonably viewed as determinants of salary. As a result, the regression analysis presented here must be
considered unacceptable as evidence of discrimination."
Ibid. The Court of Appeals' treatment of the statistical evidence in this case was erroneous in important respects.
The Court of Appeals erred in stating that petitioners' regression analyses were "unacceptable as evidence of discrimination," because they did not include "all measurable variables thought to have an effect on salary level." The court's view of the evidentiary value of the regression analyses was plainly incorrect. While the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors "must be considered unacceptable as evidence of discrimination." Ibid. Normally, failure to include variables will affect the analysis' probativeness, not its admissibility. [Footnote 2/10]
Importantly, it is clear that a regression analysis that includes less than "all measurable variables" may serve to prove a plaintiff's case. A plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance of the evidence. Texas Dept. of Community Affairs v. Burdine,450 U. S. 248, 450 U. S. 252 (1981). Whether, in fact, such a regression analysis does carry the plaintiffs' ultimate burden will depend in a given case on the factual context of each case in light of all the evidence presented by both the plaintiff and the defendant. However, as long as the court may fairly conclude, in light of all the evidence, that it is more likely
than not that impermissible discrimination exists, the plaintiff is entitled to prevail.
In this, case the Court of Appeals failed utterly to examine the regression analyses in light of all the evidence in the record. Looked at in its entirety, petitioners offered an impressive array of evidence to support their contention that the Extension Service engaged in a pattern or practice of discrimination with respect to salaries. In addition to their own regression analyses described above, petitioners offered regressions done by the Extension Service for 1971 and 1974 that showed results similar to those revealed by petitioners' regressions. Tr. 3917; CA App. 1681. Petitioners also claim support from multiple regressions presented by respondents at trial for the year 1975. Using the same model that petitioners had used, and similar variables, respondents' expert obtained substantially the same result for 1975, a statistically significant racial effect of $384. CA App. 1716. Indeed, respondents also included in their analysis, "quartile rank" as an independent variable, and this increased the racial effect to $475. [Footnote 2/11]
Petitioners also presented evidence of pre-Act salary discrimination, and of respondents' ineffectual attempts to eradicate it. For example, petitioners submitted evidence, and the District Court found, that blacks were paid less than whites in comparable positions prior to the merger of the black and white services in 1965. Pet. App. 120a. Moreover, in 1971, respondents acknowledged that substantial salary
differences between blacks and whites existed. [Footnote 2/12] In addition, evidence was offered to show that the efforts by the Extension Service to equalize those salaries in 1971 were insufficient to accomplish the goal. Tr. 242-246; GX 98. As we made clear in Hazelwood School District v. United States, 433 U.S. at 433 U. S. 309-310, n. 15,
"[p]roof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change. [Footnote 2/13]"
Further, petitioners presented evidence to rebut respondents' contention that county-to-county variations in contributions to salary explain the established disparity between black and white salaries. The United States presented evidence, which it claims respondents did not rebut, establishing that black employees were not located disproportionately in the counties that contributed only a small amount to Extension Service salaries. GX 216; see also CA App. 189. Absent a disproportionate concentration of blacks in such counties, it is difficult, if not impossible, to understand how the fact that some counties contribute less to salaries than others could explain disparities between black and white salaries.
In addition, the United States presented an exhibit based on 1973 data for 23 counties showing 29 black employees who were earning less than whites in the same county who had comparable or lower positions and tenure. GX 102.
Finally, and there was some overlap here with evidence used to discredit the county-to-county variation theory, petitioners presented evidence consisting of individual comparisons between salaries of blacks and whites similarly situated. GX 102, DX 48. Witness testimony, claimed by petitioners to be unrebutted, also confirmed the continued existence of such disparities. CA App.190; Tr. 2010-2012, 2685, 2825-2826.
Setting out the range of persuasive evidence offered by petitioners demonstrates the error of the Court of Appeals in focusing solely on the characteristics of the regression analysis. Although we think that consideration of the evidence makes a strong case for finding the District Court's conclusion clearly erroneous, [Footnote 2/14] we leave that task to the Court of
The private petitioners complain that the District Court and Court of Appeals erred in failing to certify this case as a class action. They seek the certification of three distinct classes: (1) all-black employees of the Extension Service on or after November 18, 1971; (2) all current black members and potential black members of the 4-H and Extension Homemaker
Clubs on or after November 18, 1971; [Footnote 2/16] and, as a defendant ,(3) all County Commissioners in North Carolina who held that position on or after November 18, 1971. 751 F.2d at 667. The Court of Appeals upheld the District Court's denial of class certification.
With respect to the class of black employees, the Court of Appeals held that, due to the fact that salaries are made up of money from several distinct sources, the Federal Government, the State, and the counties, the "claim of a potential plaintiff against one county will not be typical of the claim of another potential plaintiff against a different county." Id. at 668 [Footnote 2/17] It applied the same reasoning to the employees' charge of discrimination in the hiring of County Chairmen. Ibid. Yet the claims here were not asserted solely against the counties; they were asserted also against the Extension Service. And, as against the Extension Service, at least, it is clear that the claims of the named plaintiffs were "typical"
of other black employees who may have been paid less or denied promotion to chairman. Although it seems likely that the other requirements of Federal Rule of Civil Procedure 23 were met by this class, neither court below expressly considered the issue, and we therefore leave that determination to the Court of Appeals on remand. [Footnote 2/18]
The Court of Appeals also upheld the District Court's decision not to certify a class of County Commissioner defendants because there
"was simply no evidence of any standardized practice among the one hundred separate counties in the state to deprive anyone of any rights solely because of race."
Pet. App. 47a-48a. The Court of Appeals was of the view that,
"to have a proper class of defendants in a case such as this, there must be either a statewide rule or practice so that relief is available if the rule or practice is invalid, or the adjudication with respect to a member of a defendant class must, as a practical matter, be dispositive of the interests of the other members of the class as provided in FRCP 23(b)(1)(B)."
751 F.2d at 670. We agree with the Court of Appeals that certification of a defendant class under Rule 23(b)(1)(B) in this case would have been improper. Whether an individual county acted intentionally with the Extension Service in setting salaries or in selecting County Chairmen in a discriminatory manner is an issue that, once decided with respect to a
particular county could not "be dispositive of the interests of the other members of the class." The private petitioners have suggested no theory to support any different result.
In this opinion and in my opinion dissenting in part, post p. 309, the following designations are used to refer to the record. GX, exhibit of Federal Government; DX defendant's exhibit; Tr, trial transcript; CA App. Appendix in the Court of Appeals.
The classes considered by the District Court in its August 20, 1982, memorandum were:
"(1) All black and Indian employees and potential employees of the [Extension Service] since November 18, 1971 and thereafter;"
"(2) All black and Indian persons who were recipients or potential recipients of service from the [Extension Service] on November 18, 1971, and thereafter;"
"(3) All black and Indian members or potential members of the [Extension Service's] 4-H Clubs on November 18, 1971, and thereafter;"
"(4) All black and Indian persons who were members or potential members of the [Extension Service's] Homemaker Clubs on November 18, 1971, and thereafter, and"
"(5) A defendant class consisting of all County Commissioners in North Carolina, in their official capacities, on November 18, 1971, and thereafter."
Pet. App. 37a.
The claims relating to American Indians were dismissed by the District Court because petitioners at trial presented no evidence to support these claims. Id. at 49a,