Peners L. Griffin and Henry L. Dejerinett v. Richard L. Dugger, Etc.

In April 1971, Peners L. Griffin became the first black Road Prison Officer at the Tallahassee Road Prison, operated by the Florida Department of Corrections (FDOC or Department). Beginning in 1973, Griffin frequently sought promotion to higher-grade correctional officer positions, as well as various other positions. On each occasion, the FDOC turned him down.

In December 1974, Griffin's supervisor fired him for disciplinary reasons. The next day, the Regional Superintendent reinstated Griffin because the supervisor had not followed proper termination procedures. In early 1975, the FDOC again terminated Griffin's employment, without notice, for disciplinary reasons. He appealed the termination to the State of Florida Career Service Commission. The Commission found no just cause for Griffin's discharge and ordered the FDOC to reinstate him with back pay. The Florida District Court of Appeal affirmed the Commission's decision, and the FDOC reinstated Griffin to his position.

Soon after his reinstatement, Griffin filed a complaint with the FDOC's Equal Employment Opportunity Program Office, charging that his two dismissals were racially discriminatory. An investigator in that office wrote Griffin a month later and informed him of his conclusion that racial discrimination had not been a factor in the dismissals. Within a day or two of having received that letter, Griffin filed a complaint with the Equal Employment Opportunity Commission (EEOC), detailing the events leading up to his allegedly discriminatory discharges. A notation at the beginning of Griffin's complaint, probably made by an EEOC counselor, describes Griffin's allegations of racial discrimination as also encompassing "[s]incerity of recruiting, hiring, and promoting of minority groups within the Florida's Division of Adult Corrections. Specific attention within the Community Service Program."

Griffin asked the EEOC for a right-to-sue letter and received one in July 1979. On October 15, 1979, Griffin brought this action in the district court against Louis L. Wainwright, as Secretary of the FDOC, the FDOC, and the State of Florida. Griffin alleged that the FDOC had denied him several promotions because of his race. He also alleged that the FDOC impermissibly considered race in all of its promotion decisions, as well as in its hiring and job assignment decisions. In hiring correctional officers, according to Griffin, the Department used written entry-level examinations having a detrimental impact upon blacks.1

Griffin sued "individually and on behalf of all others similarly situated," pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief and money damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1976) (current version at 42 U.S.C. Secs. 2000e to 2000e-17 (1982)), 42 U.S.C. Sec. 1981 (1976),2 and 42 U.S.C. Sec. 1983 (1976).3 The class identified in his complaint was composed "of all past, present and potential black American citizens and residents who have been, are or may be employees of the Defendants or applicants for employment."4

On June 17, 1980, Griffin obtained leave of court to amend his complaint to add Henry L. Dejerinett as a party-plaintiff and class representative. Dejerinett, who is black, had applied for an FDOC clerical position but was not hired.5 On March 10, 1981, based on a stipulation between the parties6 and without a hearing, the district court preliminarily certified the case as a class action with Griffin and Dejerinett representing the class of "all past, present, and potential black employees of the State of Florida Department of Corrections."

On June 25, 1982, the defendants filed a "Notice Regarding the Adequacy of the Preliminary Class Certified," which called to the court's attention a Supreme Court decision rendered eleven days previously. That decision, General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), announced the appropriate standards courts should apply when determining class action certifications in the context of a Title VII suit, reversing a former Fifth Circuit decision permitting "across-the-board" class actions that had been binding precedent in the new Eleventh Circuit.7 On July 8, 1982, the defendants moved the court, in light of Falcon, to vacate its order certifying the class.

To avoid the risk that the district court might vacate its order certifying the class, Griffin and Dejerinett took steps to obtain an additional named plaintiff to represent those in the class who had applied for the position of correctional officer, failed the written entry-level examination, and not been hired. Accordingly, on July 8, 1982, Alvin Smith, joined by Griffin and Dejerinett, moved the court to intervene as an additional named plaintiff and class representative. In 1980 and 1981, Smith, who is black, applied for the same entry-level position that Griffin held. The FDOC did not hire Smith, because he did not have a high school diploma or a general equivalency diploma (GED), a prerequisite for employment as a correctional officer. Smith later obtained a GED, but when he reapplied with the FDOC in July 1981, he failed the written entry-level correctional officer examination and was again denied the job.8

On July 28, 1982, the district court denied the defendants' motion to decertify the class and permitted Smith to intervene9 because

Smith, [as] an unsuccessful applicant, certainly has an interest in this suit which seeks to challenge defendants' employment practices, including hiring. Unless he is permitted to intervene, his interest may not be adequately represented by the named parties. Mr. Smith eases this court's concern that the class claim against the [FDOC]'s objective criteria was not fairly and adequately protected by the named plaintiffs. Alvin Smith is a proper representative for potential black employees.

As to the defendants' contention that Smith could not be a class representative because he had not timely filed an EEOC complaint, the district court found that the charges of discrimination Griffin had filed with the EEOC included "the hiring claim in addition to promotion, job classification, discipline, and termination claims." The court thus reasoned that the Fifth Circuit's single-filing rule excused Smith from having failed to exhaust his administrative remedies. See Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir.1968) ("[O]nce an aggrieved person raises a particular issue with the EEOC which he has standing to raise, he may bring an action for himself and the class of persons similarly situated....").

On July 30, 1982, the district court entered partial summary judgment for the plaintiffs, including Griffin and Dejerinett, on the liability issue as to the written entry-level examination.10 The court found that the FDOC examination "has a disparate impact upon class members which has not been justified by business necessity." The plaintiffs had sought summary judgment on two other issues--the class hiring and promotion claims--but the court denied summary judgment on those issues because they presented material issues of fact.

A trial was held over the five-week period beginning August 17 and ending September 17, 1982. The court entered judgment on August 25, 1983, disposing of the following issues in favor of the defendants: whether the FDOC's policies and practices discriminated against past, present, and potential black employees; whether the FDOC's employment practices as to Peners L. Griffin were racially discriminatory; and whether the FDOC's hiring practices as to Henry L. Dejerinett were racially discriminatory. The court entered judgment for the plaintiffs on the liability issue concerning the correctional officer examination, on which it had previously granted summary judgment for the plaintiffs.11 The issue of relief for the class of black persons who took and failed the correctional officer written examination is still pending. The parties agreed that notice should be given to the affected members of the class and to seek interlocutory appeal of the district court's decision permitting Griffin, Dejerinett, and Smith to serve as named plaintiffs for a class that included applicants with testing claims. We granted this appeal pursuant to 28 U.S.C. Sec. 1292(b) (1982 & Supp. III 1985). Because we conclude that the district court incorrectly applied the dictates of Falcon, we vacate the district court's order certifying the class.

As with any private class action, the legitimacy of a private Title VII suit brought on behalf of a class depends upon the satisfaction of two distinct prerequisites. First, there must be an individual plaintiff with a cognizable claim, that is, an individual who has constitutional standing to raise the claim (or claims) and who has satisfied the procedural requirements of Title VII.12 Second, the requirements of Rule 23 of the Federal Rules of Civil Procedure must be fulfilled; in other words, the individual plaintiff must be qualified to represent the members of the class in accordance with the four prerequisites of Rule 23(a),13 and the action must be one of the three types Rule 23(b) identifies.14 We emphasize that any analysis of class certification must begin with the issue of standing and the procedural requirements of Title VII. Thus, the threshold question is whether the named plaintiffs have individual standing, in the constitutional sense, to raise certain issues. See Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A July 1981) ("This constitutional threshold must be met before any consideration of the typicality of claims or commonality of issues required for procedural reasons by Fed.R.Civ.P. 23."). Only after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others. See generally 2 A. Larson & L. Larson, Employment Discrimination Secs. 49.50-.51 (1986 & Supp. Nov. 1986).

Under elementary principles of standing, a plaintiff must allege and show that he personally suffered injury. See Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 898 (5th Cir.) ("To meet the requirement for standing under Article III, a plaintiff must establish either that the asserted injury was in fact the consequence of the defendant's action or that the prospective relief will remove the harm.") (citation omitted), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); Thurston v. Dekle, 531 F.2d 1264, 1269 (5th Cir.1976) ("The threshold case-or-controversy inquiry is whether there existed a named plaintiff with standing to raise the issue before the court."), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). If he cannot show personal injury, then no article III case or controversy exists, and a federal court is powerless to hear his grievance. This individual injury requirement is not met by alleging "that injury has been suffered by other, unidentified members of the class to which [the plaintiff] belong[s] and which [he] purport[s] to represent." Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975); see also Minority Police Officers Ass'n v. City of South Bend, 721 F.2d 197, 202 (7th Cir.1983) ("Feelings of solidarity do not confer standing to sue."). Thus, a plaintiff cannot include class action allegations in a complaint and expect to be relieved of personally meeting the requirements of constitutional standing, "even if the persons described in the class definition would have standing themselves to sue." Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A July 1981); see also Vuyanich v. Republic Nat'l Bank, 723 F.2d 1195, 1200 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984). A named plaintiff in a class action who cannot establish the requisite case or controversy between himself and the defendants simply cannot seek relief for anyone--not for himself, and not for any other member of the class. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Moreover, it is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to just one of many claims he wishes to assert. Rather, each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim. This relationship between standing and the class action has been discussed in some detail by the Supreme Court:

It is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected. Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.

Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 2783, 73 L.Ed.2d 534 (1982) (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965, 1968-69, 32 L.Ed.2d 627 (1972)).

In the case before us, the named plaintiff who initiated the action, Peners L. Griffin,15 could, and did, allege injury as a result of the FDOC's discipline and promotion practices: he claimed that on specific occasions the FDOC illegally disciplined him and did not promote him, because of his race.16 Griffin had standing to assert discipline and promotion claims. Because he had already met the educational and testing requirements of a road prison correctional officer and had been hired for that position, however, he suffered no injury as a result of the FDOC's use of the written entry-level examination. See Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 898 (5th Cir.) ("[Named p]laintiffs ... possessed tenth grade educations and therefore lacked [constitutional] standing" to challenge tenth grade education requirement), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Griffin thus lacked constitutional standing to assert a testing claim.17

Accordingly, we hold that the district court erred when it permitted Griffin to raise the testing claim on behalf of himself and on behalf of others. We hold in the alternative that even if Griffin somehow had constitutional standing to assert the testing claim, he did not, in light of General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), have representative capacity to assert the testing claim on behalf of those who took the FDOC's written entry-level examination, failed it, and were not hired.18 In other words, Griffin did not meet the prerequisites of Rule 23(a). We now turn to a discussion of Rule 23(a) and the Supreme Court's interpretation of it in Falcon.

In 1969, the former Fifth Circuit decided Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.1969), the first case to sanction a theory that became known as the "across-the-board" approach to Title VII class actions. In that case, a terminated black employee sought to represent a class of black workers and applicants who had hiring, firing, promotion, and working condition claims. The district court restricted the class to include only those black workers who, like the named plaintiff, had been fired. The Fifth Circuit reversed the district court's certification order and announced that broad class treatment was appropriate where the "Damoclean threat of a racially discriminatory policy hangs over the racial class [and] is a question of fact common to all members of the class." Johnson, 417 F.2d at 1124 (citation omitted). The court said it "is clear from the pleadings that the scope of appellant's suit is an 'across the board' attack on unequal employment practices alleged to have been committed by the appellee pursuant to its policy of racial discrimination." Id.

Under the across-the-board theory, many courts liberally read the requirements of Rule 23(a), permitting named plaintiffs to raise claims on behalf of the class that were of a different type than the named plaintiffs' individual claims. These courts reasoned that the employer allegedly discriminated on the basis of a class characteristic, such as race, and that the discrimination allegedly pervaded, in an across-the-board fashion, all of the employer's personnel policies and practices. See, e.g., Gibson v. Local 40, Int'l Longshoremen's & Warehousemen's Union, 543 F.2d 1259 (9th Cir.1976); Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir.1975); Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir.1975); Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973).19

The Supreme Court repudiated that liberal reading of the class action, and the reasoning underlying it, in General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).20 In allegations quite similar to those made in Griffin's initial complaint, the named plaintiff in Falcon claimed that his employer had denied him promotions because he was a Mexican-American. He also alleged class claims on behalf of all Mexican-American employees of the company who had not been promoted, and all Mexican-American applicants who had not been hired. Without holding an evidentiary hearing, the district court certified a class consisting of those employees and applicants at one of the company's facilities. After a trial, the district court found that the employer had not discriminated against the named plaintiff in hiring, but did discriminate against him in its promotion practices. As to the class claims, the court reached the converse conclusion, finding no discrimination in promotion practices, but finding the hiring practices unlawfully discriminatory. On appeal, the Fifth Circuit, using the across-the-board approach, upheld the class certification:

[The across-the-board rule] permits an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury. In this case, all of the claims are based on discrimination because of national origin.

Falcon v. General Tel. Co., 626 F.2d 369, 375 (5th Cir.1980).

The Supreme Court, on certiorari, began its analysis of the case by reiterating that Title VII does not relieve a private party plaintiff seeking to represent others from meeting the requirements of the class action rule21: "An individual litigant seeking to maintain a class action under Title VII must meet 'the prerequisites of numerosity, commonality, typicality, and adequacy of representation' specified in Rule 23(a). These requirements effectively 'limit the class claims to those fairly encompassed by the named plaintiff's claims.' " General Tel. Co. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2369-70, 72 L.Ed.2d 740 (1982) (citations omitted). Although the Court recognized "that racial discrimination is by definition class discrimination," it said that the mere allegation of racial discrimination cannot answer the questions posed by Rule 23(a) or define the class that may be certified:

Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims.

Falcon, 457 U.S. at 157, 102 S.Ct. at 2370 (footnote omitted). Thus, evidence that an employee was denied a promotion because of illegal considerations of race will not necessarily justify the additional inference, for example, that the employer has adopted a general policy of racial discrimination that is reflected in the employer's other employment practices, such as hiring and testing. See Falcon, 457 U.S. at 158, 102 S.Ct. at 2371. The presumption that general class claims are fairly encompassed within the personal claims of a named plaintiff can, at best, be characterized as tenuous. Id. The Falcon Court held that "actual, not presumed, conformance with Rule 23(a) [is] indispensable." Falcon, 457 U.S. at 160, 102 S.Ct. at 2372. This means that a private Title VII class action "may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Falcon, 457 U.S. at 161, 102 S.Ct. at 2372.

The district court's error in Falcon can be traced to the named plaintiff's complaint, which "provided an insufficient basis for concluding that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of petitioner to hire more Mexican-Americans." Id. at 158, 102 S.Ct. at 2371. Without the benefit of sufficiently specific pleadings or of a hearing that probed beyond the pleadings to answer the required certification questions, see id. at 160, 102 S.Ct. at 2372, the district court could do nothing but presume that the named plaintiff's individual promotion claim was typical of other claims that Mexican-American employees and applicants might raise. Id. at 158-59, 102 S.Ct. at 2371. In short, a district court must have some way of identifying the questions of law or fact that are common to claims of the named plaintiff and of the class members he seeks to represent. Id.

The Supreme Court has thus repudiated the across-the-board theory of Title VII class actions.22 No longer will one allegation of specific discriminatory treatment be sufficient to sustain a company-wide class action.23 No longer will an employee complaining of racial discrimination, for example, in one employment practice necessarily be permitted to represent other employees complaining of racial discrimination in other practices. District courts must not presume that a named plaintiff has satisfied the typicality and commonality requirements of Rule 23(a). In practical terms, this means that, as a general rule, incumbent employees cannot represent a class that includes applicants and that even a general policy of discrimination will not justify a class of both applicants and employees. See Falcon, 457 U.S. at 158-59 & n. 15, 102 S.Ct. at 2371 & n. 15.

In footnote fifteen of Falcon, the Supreme Court identified exceptions to that general rule. For example, an employee who alleges that he was a victim of a specific discriminatory employment practice may properly represent applicants when the employer used a biased testing procedure to evaluate both applicants and incumbent employees: "a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a)." Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. at 2371 n. 15. In addition, a general policy of discrimination could justify a class of both applicants and employees "if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes." Id.

The situations the Supreme Court identified in footnote fifteen can be thought of as exceptions to the general rule that applicants and incumbent employees cannot share the same class. We emphasize, however, that those situations are exceptions not because racial discrimination is by definition class discrimination, a necessarily valid proposition underlying the across-the-board rule, Falcon, 457 U.S. at 157, 102 S.Ct. at 2370, but because the commonality and typicality requirements of Rule 23(a) can be satisfied.24 If, after a rigorous analysis, a district court is satisfied that in a case similar to those situations described in footnote fifteen the Rule 23(a) requirements have been met, then it should not hesitate to certify the class. We caution, however, that although district courts should give real meaning to Falcon 's footnote fifteen, that footnote should not be used to defeat the general dictates of Falcon. The footnote was not meant to sanction broad class actions that otherwise do not conform to Rule 23(a).

We begin our analysis of whether the requirements of Rule 23(a) have been fulfilled in the case before us by examining Griffin's complaint.25 The complaint, which was filed in October 1979, almost three years before Falcon was decided, included allegations that the defendants discriminated on the basis of race with their written entry-level examinations and in their hiring, assignment, discipline, and promotion decisions. Griffin's action was brought "on behalf of all past, present and potential black American citizens and residents who have been, are or may be employees of the Defendants or applicants for employment." As to Rule 23(a)'s numerosity requirement, the complaint contains the allegation that the persons in the class "are too numerous to join in this action."26 The only reference to Griffin's ability to represent that class was this statement: "The Plaintiff can fairly and adequately represent the class." The complaint's only reference to Rule 23(a)'s commonality requirement was this statement: "The conclusory questions of whether there is a general pattern and practice of discrimination by Defendants and the question of whether certain practices constitute illegal job discrimination are common mixed questions of fact and law to the class as a whole." The complaint made no allegation whatsoever that Griffin could meet Rule 23(a)'s additional requirement of typicality.27

Without an evidentiary hearing, the district court preliminarily certified the "class of all past, present, and potential black employees" of the FDOC, finding that the requirements of Rule 23(a) had been met. The court's certification ruling was based solely on a stipulation of the parties that under the law of the Fifth Circuit, the named plaintiffs met the commonality requirement of Rule 23(a).28 The parties further stipulated that "[t]he claims of the named plaintiffs are, under current law in the United States Court of Appeals, Fifth Circuit, similar to those of other members of the proposed class."29 The parties made no relevant factual stipulations.

Soon after the Supreme Court decided Falcon, the defendants moved the district court to vacate the order certifying the class. The parties filed memoranda of law, arguing the applicability of Falcon. On the basis of the memoranda, and with no hearing, the district court issued an order denying the defendants' motion. The court's analysis began with the recognition that "[t]he Falcon decision mandates that this court carefully examine the requirements of Rule 23(a)."30 As to the commonality requirement, the district court found the following:

Plaintiffs have alleged a common practice and pattern of racial discrimination which affects defendants' hiring, promotion, job classification, disciplinary, and termination decisions. This general discriminatory policy commonly injures all members of the class of past, present, and potential black employees of the Department. Plaintiffs maintain that they will utilize similar statistical data, similar historical background, and the same or similar witnesses to support their allegations of class-wide discrimination. This court is satisfied that the commonality requirement of Rule 23 is met.

The district court found the typicality prerequisite satisfied, but only because Henry L. Dejerinett, a black male who was not hired for a clerical position, had been added as a party-plaintiff and as a class representative. Even so, the court was concerned that Griffin and Dejerinett could not adequately represent those with objective testing claims:

Plaintiff Griffin certainly can adequately protect the interests of black employees who have claims of discrimination in promotions, job classification, discipline, and terminations. Plaintiff Dejerinett's claim is somewhat interrelated with the class claims of a discriminatory hiring policy. Plaintiffs allege that blacks are not hired in sufficient number because of facially neutral objective criteria, i.e., a high school education requirement and the [FDOC] test, which have a disparate impact on black applicants and of a subjective barrier which causes the almost exclusively white decisionmakers to discriminate against black applicants. The class claim against discriminatory subjective hiring decisions is fairly encompassed in Dejerinett's claim. This court, however, is concerned that the class claim against the Department's objective screening criteria which have a disparate impact upon class members, especially the [FDOC] test, is not fairly and adequately protected by any of the named plaintiffs.

In that same order, the district court permitted Alvin Smith to intervene as a party plaintiff. Smith was an unsuccessful black applicant for a correctional officer position who had failed the written entry-level correctional officer examination. The court wrote the following in its order: "Mr. Smith eases this court's concern that the class claim against the Department's objective criteria was not fairly and adequately protected by the named plaintiffs. Alvin Smith is a proper representative for potential black employees."

As to Griffin's capacity to represent the "class of all past, present, and potential black employees" of the FDOC, we hold that, in light of Falcon, Griffin's complaint provided an insufficient basis by which the district court could have concluded that Griffin's "claim[s] of discrimination in promotion [and discipline] would require the decision of any common question concerning the failure of [the defendants] to hire more [blacks]." Falcon,