Matthews Smith, John Comeaux, John Lumpkins, Kenneth Ford, Darlene Greene v.
Texzco
 00-40337


 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 _____________________

 No. 00-40337
 _____________________


 MATTHEWS SMITH, JOHN COMEAUX, JOHN LUMPKINS,
 KENNETH FORD, DARLENE GREENE, ET AL.,

   Plaintiffs-Appellees,
 v.

 TEXACO, INC., ARAMCO SERVICES CO., SAUDI REFINING, INC.,
 SHELL OIL CO., STAR ENTERPRISE, TEXACO REFINING &
 MARKETING, INC., TEXACO REFINING & MARKETING EAST INC.,

   Defendants-Appellants.

 _______________________________________________

 On Appeal from the United States District Court
 for the Eastern District of Texas
 _______________________________________________

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS
  ________________________________________________


       C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       ROBERT J. GREGORY
       Senior Attorney

       BARBARA L. SLOAN
       Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
         COMMISSION
       Office of General Counsel
       1801 L Street, N.W.
       Washington, D.C.  20507
       (202) 663-4721

 TABLE OF CONTENTS

              Page(s)

 TABLE OF AUTHORITIES

 STATEMENT OF INTEREST  1

 STATEMENT OF THE ISSUES  2

 STATEMENT OF THE CASE

  1. Nature of the Case and Course of Proceedings  2

 2. Statement of Facts   3

  3. District Court's Decision   5

 ARGUMENT

 I. ALLISON DID NOT DIVEST THE DISTRICT COURT
 OF ITS TRADITIONAL "WIDE DISCRETION"
 TO GRANT CLASS CERTIFICATION IN
 TITLE VII RACE DISCRIMINATION CASES
 EVEN WHERE DAMAGES ARE SOUGHT  9

  II. THE AMERICAN PIPE TOLLING RULE APPLIES TO
 CLASS ACTIONS FILED PROMPTLY AFTER PLAINTIFFS
 LEARN THEY HAVE BEEN EXCLUDED
 FROM A PREVIOUSLY-FILED CLASS SUIT.  21

 CONCLUSION 28

 CERTIFICATE OF COMPLIANCE

 CERTIFICATE OF SERVICE
 TABLE OF AUTHORITIES

 CASES              Page(s)

 Allison v. Citgo Petroleum Corp.,
  151 F.3d 402 (5th Cir. 1998)  1, 7-8, 9, 12, 14-20

 American Pipe & Construction Co. v. Utah,
  414 U.S. 538 (1974)  5-6, 21-28

 Andrews v. Orr,
  851 F.2d 146 (6th Cir. 1988)  25, 26

 Basch v. Ground Round,
  139 F.3d 6 (1st Cir. 1998) 25, 26

 Beacon Theatres v. Westover,
  359 U.S. 500 (1959)  12

 Calderon v. Presidio Valley Farmers Ass'n,
  863 F.2d 384 (5th Cir. 1989)  27

 Castano v. American Tobacco Co.,
  84 F.3d 734 (5th Cir. 1996)  16, 18

 Celestine v. Citgo Petroleum Corp.,
  165 F.R.D. 463 (W.D. La. 1995),
  aff'd, 151 F.3d 402 (5th Cir. 1998)  14-15

 Crawford v. Equifax Payment Services,
  201 F.3d 877 (7th Cir. 2000)  24

 Crown, Cork & Seal Co. v. Parker,
  462 U.S. 345 (1983)  21-26

 Dairy Queen v. Wood,
  369 U.S. 469 (1962)  17

 Eisen v. Carlisle & Jacquelin,
  417 U.S. 156 (1974)  21

 Eubanks v. Billington,
  110 F.3d 87 (D.C. Cir. 1997)  11

 Hadra v. Herman Blum Consulting Engineers,
  632 F.2d 1242 (5th Cir. 1980)  13


 Holmes v. Continental Can Co.,
  706 F.2d 1144 (11th Cir. 1983)  20-21

 Jefferson v. Ingersoll International,
  195 F.3d 894 (7th Cir. 1999)  11, 13, 18

 Jenkins v. Raymark Industries,
  782 F.2d 468 (5th Cir. 1986)  9, 11, 12, 13, 18, 19

 Jenkins v. United Gas Corp.,
  400 F.2d 28 (5th Cir. 1968)  24-25

 Kolstad v. American Dental Ass'n,
  119 S. Ct. 2118 (1999)  12

 Korwek v. Hunt,
  827 F.2d 874 (2d Cir. 1987)  27

 Lemon v. Local 139, IUOE,
  216 F.3d 577 (7th Cir. 2000)  11

 Mullen v. Treasure Chest Casino,
  186 F.3d 620 (5th Cir. 1999)  12, 17, 18, 19

 Munoz v. Orr,
  200 F.3d 291 (5th Cir. 2000)  17

 Nix v. Grand Lodge of the IAMAW,
  479 F.2d 382 (5th Cir. 1973)  16

 Oatis v. Crown Zellerbach Corp.,
  398 F.2d 496 (5th Cir. 1968)  26

 Ortiz v. Fibreboard Corp.,
  119 S. Ct. 2295 (1999)  11

 Parker v. Local 1466,
  642 F.2d 104 (5th Cir. 1981)  19

 Pederson v. Louisiana State University,
  213 F.3d 858 (5th Cir. 2000)  9, 18-19

 Pettway v. American Cast Iron Pipe Co.,
  494 F.2d 211 (5th Cir. 1974)  17

 Pickett v. Iowa Beef Processors,
  209 F.3d 1276 (11th Cir. 2000)  21

 Roberts v. Texaco, Inc.,
  979 F. Supp. 185 (S.D.N.Y. 1997)  4

 Salazar-Calderon v. Presidio Valley Farmers Ass'n,
  765 F.2d 1334 (5th Cir. 1985)  26, 27

 Shipes v. Trinity Industries,
  987 F.2d 311 (5th Cir. 1993)  19

 Trief v. Dun & Bradstreet Corp.,
  144 F.R.D. 193 (S.D.N.Y. 1992)  23, 27

 United Airlines v. McDonald,
  432 U.S. 385 (1977)  23

 Warnell v. Ford Motor Co.,
  189 F.R.D. 383 (N.D. Ill. 1999)  12

 Watson v. Fort Worth Bank & Trust,
  487 U.S. 997 (1988)  17

 Watson v. Shell Oil Co.,
  979 F.2d 1014 (5th Cir. 1992)  16, 18

 Wetzel v. Liberty Mutual Insurance Co.,
  508 F.2d 239 (3d Cir. 1975)  20


 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

 U.S. CONSTITUTION, amendment VII  7, 12-13, 14, 17

 The Civil Rights Act of 1991,
  Pub. L. 102-66, 105 Stat. 1071 (1991)  8, 10-13

 42 U.S.C.  1981  2

 42 U.S.C.  1981a  10, 17

 Title VII of the Civil Rights Act of 1964,
  42 U.S.C.  2000e et seq.,  passim

 Federal Rule of Civil Procedure 23 passim

  Rule 23(a) 6

  Rule 23(b)(2) 6-7, 9, 10-21

  Rule 23(b)(3) 7-8, 9, 11-21

  Rule 23(c) 16

  Rule 23(f) 2, 21

 Federal Rule of Civil Procedure 42  15


 OTHER AUTHORITY

 Charles Wright, Arthur Miller & Mary Kay Kane,

  FEDERAL PRACTICE AND PROCEDURE (2d ed. 1986)  10IN THE UNITED STATES
  COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 ____________________

 No. 00-40337
 ____________________

 MATTHEWS SMITH, JOHN COMEAUX, JOHN LUMPKINS,
 KENNETH FORD, DARLENE GREENE, ET AL.,

   Plaintiffs-Appellees,
 v.

 TEXACO, INC., ARAMCO SERVICES CO., SAUDI REFINING, INC.,
 SHELL OIL CO., STAR ENTERPRISE, TEXACO REFINING &
 MARKETING, INC., TEXACO REFINING & MARKETING EAST INC.,

   Defendants-Appellants.
 _______________________________________________

 On Appeal from the United States District Court
 for the Eastern District of Texas
 _______________________________________________

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS
  ________________________________________________

 STATEMENT OF INTEREST

  The Equal Employment Opportunity Commission is charged with the
  enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
  2000e et seq., and other federal fair employment statutes.  This case
  raises important issues concerning the continued availability of class
  actions as a Title VII enforcement tool.  The district court, in an
  exercise of its discretion, certified a class of African-American
  employees, finding that their claims of systemic race discrimination
  could properly be litigated as a class action.  Defendants argue,
  however, that Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th
  Cir. 1998), precludes class certification in all Title VII suits
  where damages are sought.  Because class actions are critical to
  effective enforcement of the law, we offer our views for the Court's
  consideration.

 STATEMENT OF THE ISSUES

  1. Whether Allison v. Citgo precludes class certification where the
  district court determines, in an exercise of its discretion, that class
  treatment of the plaintiffs' claims of racial discrimination is both
  viable and superior to other means of adjudicating these claims.
  2. Whether the American Pipe tolling rule applies to a  class action
  filed promptly after plaintiffs learn that they and other putative
  class members have been excluded from a previously-filed class action.

 STATEMENT OF THE CASE

  1. Nature of the Case and Course of Proceedings
  This is a Rule 23(f) appeal from an order certifying a class of
  African-American professional, managerial and supervisory employees at a
  subsidiary of Texaco.  After obtaining an order enjoining the removal and
  destruction of documents, plaintiffs filed an amended complaint against
  Texaco and Star Enterprise, alleging systemic race discrimination in
  promotion, pay and performance appraisals, as well as retaliation,
  under Title VII and 42 U.S.C.  1981.  Docket entry number ("R.") 77.
  Additional plaintiffs and defendants were later added.  In July 1998,
  plaintiffs moved for class certification.  R. 141.  On March 7, 2000,
  following extensive briefing and a hearing, the district court granted
  plaintiffs' motion.  R. 294 ("Mem.").  On April 6, 2000, this Court
  granted defendants' petition for interlocutory review of the class
  certification order.  R. 302.
    2. Statement of Facts
  Star Enterprise was created in 1989 as a joint venture partnership
  of Saudi Refining, a wholly-owned subsidiary of Aramco Services, and
  Texaco Refining and Marketing (East), an indirect subsidiary of Texaco.
  Mem. 1, 3.  At the time this suit was filed, Star manufactured and
  distributed petroleum products.  Plaintiffs allege that the bulk
  of Star's assets, along with its employees and employment policies,
  came from Texaco and that Texaco used Star as a "training ground for
  Texaco employees."  Mem. 3-4.  According to plaintiffs, employees and
  records transferred freely between Star and Texaco, and tenure with both
  companies was considered in determining seniority.  Id. at 4. In 1999,
  Star was dissolved and its assets transferred to three new partnerships
  co-owned by Texaco, Saudi and Shell Oil.  Id.
  In 1994, Texaco employees brought a class action against Texaco
  in New York ("Roberts" action), alleging racial discrimination in
  promotion, pay and other matters from 1991 until the present.  Mem. 2.
  Although the suit named only Texaco as a defendant, the proposed class
  encompassed employees of Texaco and its subsidiaries.  Matthews Smith
  and other Star employees knew about the suit and believed that they
  were members of the Roberts class.  Mem. 11 n.3.  Smith, for example,
  had regular contact with Roberts class counsel and received copies of
  some pleadings.  One of these pleadings, the class certification motion,
  contained a footnote reiterating that plaintiffs took the position that
  "'Texaco' includes the employees of Star Enterprise, a joint venture,
  50% owned by Texaco" and that it was "appropriate that the Class include
  Star Enterprise employees, because they are subject to the same systems
  . . . as are Texaco's other employees."  R. 145 (Certification Motion,
  Ex.A-1).
  Roberts was settled in November 1997.  Under the terms of the settlement
  agreement, Star employees were excluded from the class.  Mem. 11 n.3
  (settlement class included employees of Texaco and subsidiaries in
  which Texaco owned more than 50% interest).  Id.  The district court in
  Roberts, which had not previously ruled on the certification motion,
  approved the settlement.  See Roberts v. Texaco, 979 F. Supp. 185
  (S.D.N.Y. 1997).
  Star employees learned they would be ineligible to participate in the
  settlement in November 1996.  Mem. 11 n.3.  Soon thereafter, Smith
  and others filed class-based charges with EEOC and brought suit on
  behalf of themselves and a class of approximately 200 African-American
  managerial, professional and supervisory salaried employees at Star.<1>
  Plaintiffs complained of systemic race discrimination in promotion, pay
  and performance evaluations, as well as retaliation, at Star from 1991
  until the present, and challenged these practices under disparate impact
  and intentional discrimination theories.  R. 276 (6th Amended Complaint).
  Plaintiffs then moved for class certification.
  3. District Court's Decision
  In ruling on the motion, the district court initially held that the
  suit was timely.  While limitations ordinarily would have run on the
  earliest claims, the court noted that, under American Pipe & Construction
  Co. v. Utah, 414 U.S. 538 (1974), "the period of time between the
  beginning of the proposed class action and the denial [of certification]
  is tolled for all putative class members and any subsequent individual
  lawsuits they may wish to bring."  Mem. 8.  Applying that rule, the court
  concluded that limitations were tolled from the time the Roberts action
  was filed until plaintiffs were definitively excluded from that class.
  Mem. 11.
  The court recognized that tolling typically applies only to subsequent
  individual suits, rather than class actions.  This restriction is
  intended to prevent plaintiffs "from engaging in endless rounds
  of litigation" over the propriety of proceeding as a class, after
  certification is denied.  Mem. 9-11.  The court concluded, however,
  that neither the restriction nor its rationale applies to this case for
  two reasons.  First, plaintiffs "were not simply bringing multiple class
  actions in scattered districts in an effort to find at least one district
  court willing to accept their class certification argument."  Rather,
  they were "seeking to protect rights they legitimately thought would be
  part of the Roberts settlement."  Id. at 10.  Second, a "definitive
  substantive decision on class certification" was never reached
  in Roberts.  Id.  Accordingly, the court held that plaintiffs could
  bring this suit as a class action, relying on the tolling principles
  of American Pipe.  The court also held that plaintiffs' EEOC charges,
  filed after they learned of their exclusion from the Roberts class,
  would be "deemed timely" since they had "relied on the earlier filing
  of the Roberts plaintiffs to protect their interests."  Id. at 12-13.
   Turning to the class issues, the court first found that the class
   satisfied the requirements of Rule 23(a):  numerosity, typicality,
   commonality and adequacy of representation.  Mem. 15-25.  As for Rule
   23(b), the court determined that plaintiffs' claims for equitable
   relief could be certified under Rule 23(b)(2).  Id. at 28.  The court
   reasoned that, since plaintiffs allege that "defendants' facially
   neutral employment policies demonstrate a statistically significant
   pattern of discrimination," those allegations, if true, suggest that
   defendants "acted on grounds generally applicable to the class," as
   required by (b)(2).  Id. at 27-28.  Although not mandated, the court
   also ordered that class members receive notice and an opportunity to
   opt out of the suit.  Id. at 28.
  The court rejected arguments that the damage claims preclude Rule
  23(b)(2) certification under Allison v. Citgo.  Mem. 26-27.  The court
  agreed that, under Allison, only "incidental" damages may be awarded in
  a (b)(2) action and that the damage claims here were "not incidental to
  the claims for injunctive relief."  Id. at 25-26.  The court concluded,
  however, that Allison did not rule out certifying only the equitable
  claims under 23(b)(2).  The court added that this would not violate the
  Seventh Amendment as long as all claims, legal and equitable, were tried
  to a jury before the court resolved the equitable claims.  Id. at 27.
  The court then certified the damage claims under Rule 23(b)(3), which
  requires that class claims "predominate over individual claims" and that
  a class action be "superior" to other methods of adjudicating the claims.
  Id. at 28, 34.  Rejecting arguments that Allison would preclude class
  certification, the court explained that the Allison court upheld the
  denial of class certification there because the district court had
  found, in its discretion, that individual issues would predominate.
  Id. at 29.  In contrast, the court concluded, here, "there are many
  issues which are common to the class" -- such as "whether the defendants
  engage in specific policies and procedures" that "adversely affect[]
  African-American salaried employees."  Id.  The court added that the
  smaller class here is generally "a much more homogeneous group who have
  suffered similar damages."  Mem. 29-30.
  The court stated, "Allison was primarily concerned with detailing the
  changes the Civil Rights Act of 1991 has had on class actions."  Id. at
  31.  The court reasoned that Congress passed the 1991 Act to "broaden"
  Title VII's remedies -- to provide that "more than front pay and back pay
  [would be] available to those who had been subjected to [discrimination]
  and that juries, rather than judges would decide such cases.  Id.
  The court stressed that nothing in either Allison or the 1991 Act
  suggests that the Act, which was enacted "to eradicate discrimination --
  not to present barriers" to persons attempting to enforce their rights,
  "ended class actions in racial discrimination suits."  Id. at 32.
  Thus, the court held, "[c]lass actions are still permitted in racial
  discrimination cases when there are claims for money damages as long as
  all the requirements of 23(b) are met" -- as they are "when the class
  is one as discrete and homogenous as the one found here."  Id.
  Finally, the court concluded "without reservation" that a class action
  would be "superior," within the meaning of Rule 23(b)(3).  Mem. 33-34.
  The court reasoned that certification would "safeguard judicial economy
  by limiting duplicative litigation, and the plaintiffs [would] ensure
  uniform results for any absent class members."  Id. at 34.  The court
  also noted that the suit would "permit adjudication of possibly
  meritorious claims which otherwise might not be brought on behalf of
  African-American salaried employees who are unable or unwilling to sue
  their employer, a frightening task even for a brave employee."  Id.
  Accordingly, the court held, after "careful and detailed review of the
  entire record," that "plaintiffs have met their burden of establishing
  all of the necessary requirements of Rule 23."  Id.

  ARGUMENT

 I. ALLISON DID NOT DIVEST THE DISTRICT COURT OF ITS TRADITIONAL "WIDE
 DISCRETION" TO GRANT CLASS CERTIFICATION IN TITLE VII RACE DISCRIMINATION
 CASES EVEN WHERE DAMAGES ARE SOUGHT.

  The district court reasonably determined that this Title VII race
  discrimination suit may proceed as a hybrid class action, under Rule
  23(b)(2) and (3), notwithstanding the pleas for damages and a jury trial.
  As this Court has repeatedly recognized, district courts have "wide
  discretion" in deciding certification issues.  Assuming proper legal
  standards are applied, their decisions in this highly fact-specific
  matter are entitled to great deference.  See generally Allison, 151
  F.3d 402; see also Pederson v. Louisiana State Univ., 213 F.3d 858,
  866 (5th Cir. 2000); Jenkins v. Raymark Indus., 782 F.2d 468, 471 (5th
  Cir. 1986).  Here, the district court applied the appropriate standards
  and held, based on the specific facts before it, that plaintiffs'
  race discrimination claims should be certified for class treatment.
  While defendants disagree with this decision, it clearly does not
  constitute an abuse of discretion.
  Class actions have historically been a common -- even a preferred --
  means of vindicating rights under Title VII.  A typical Title VII class
  case challenges employment practices that allegedly adversely affect
  the class, based on their race or other protected factors, and seeks
  to enjoin the challenged practices as well as obtain individual relief
  for class members.  At least until 1991, such claims fit neatly into
  Rule 23(b)(2), which provides for class certification where "the party
  opposing the class has acted or refused to act on grounds generally
  applicable to the class, thereby making appropriate final injunctive
  [or] declaratory relief with respect to the class as a whole."  Indeed,
  the subsection was added to Rule 23 primarily to facilitate enforcement
  of civil rights statutes such as Title VII.  See, e.g., Charles Wright,
  Arthur Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE 
  1775-76 (2d ed. 1986).  Suits were tried in bifurcated proceedings,
  with liability decided in phase I and relief, if any, determined in
  phase II.
  Passage of the Civil Rights Act of 1991, Pub. L. 102-66, 105 Stat. 1071
  (1991), which added damages and jury trials to the existing equitable
  remedies for intentional discrimination, see 42 U.S.C.  1981a,
  impacted class certification in Title VII cases.  Most importantly,
  because class members need not receive notice and an opportunity to
  opt out of the class under Rule 23(b)(2), reliance on the literal
  terms of that subsection raises due process concerns.<2>  See Ortiz
  v. Fibreboard Corp., 119 S. Ct. 2295, 2314-15 (1999) (suggesting that
  class members are entitled to notice and opt-out opportunity in damages
  actions).  To address these concerns, courts have endorsed the concept
  of "hybrid" certification, certifying equitable claims under 23(b)(2)
  and legal claims under 23(b)(3).  See, e.g., Jefferson v. Ingersoll
  Int'l, 195 F.3d 894, 898 (7th Cir. 1999); Eubanks v. Billington, 110
  F.3d 87, 96 (D.C. Cir. 1997) (court may order notice under (b)(2) or
  adopt hybrid approach); accord Lemon v. Local 139, IUOE, 216 F.3d 577,
  581-82 (7th Cir. 2000).  This achieves "both consistent treatment of
  class-wide equitable relief and an opportunity for each affected person
  to exercise control over the damages aspects" of the suit.  Jefferson,
  195 F.3d at 898.  Notice and an opt-out opportunity are compulsory
  under Rule 23(b)(3).  See Rule 23(c)(2).
  Certification under Rule 23(b)(3) requires a finding that legal
  or factual questions common to the class predominate over questions
  affecting only individual members, and that a class action is superior
  to other methods of resolving the controversy.  See Jenkins, 782
  F.2d 468 ("common issues must constitute a significant part of the
  individual cases").  This standard is normally met, however, in systemic
  discrimination suits where issues relating to liability (and punitive
  damages) constitute a significant part of every member's case.<3>
  Warnell v. Ford Motor Co., 189 F.R.D. 383, 387 (N.D. Ill. 1999).
  The 1991 Act also affects the structure of the trial since the
  availability of juries raises Seventh Amendment considerations.  The
  Seventh Amendment provides: "No fact tried by a jury shall be otherwise
  re-examined by any Court . . . ."  Thus, in bifurcated proceedings,
  if multiple factfinders are contemplated, care must be taken to ensure
  that subsequent juries do not revisit facts decided by an earlier jury,
  and the jury must decide all facts pertinent to both legal and equitable
  issues before the court resolves the equitable claims.  See, e.g.,
  Beacon Theatres v. Westover, 359 U.S. 500 (1959); Mullen v. Treasure
  Chest Casino, 186 F.3d 620, 628-29 (5th Cir. 1999) (permitting use of
  bifurcation in class tort action where these precautions were taken);
  Jefferson, 195 F.3d at 898 (hybrid certification will not violate
  Seventh Amendment as long as damage claims are tried first); cf. Hadra
  v. Herman Blum Consulting Eng'rs, 632 F.2d 1242, 1245 (5th Cir. 1980)
  (upholding grant of  new trial for only damages upon finding that issues
  relating to liability and damages were separable).
  Here, the district court carefully considered and applied these legal
  standards in weighing whether to certify the class.  The court concluded
  that the claims were suitable for class treatment because plaintiffs
  were alleging that defendants either intentionally or unintentionally
  maintained racially discriminatory employment practices that similarly
  affected all members of the class because of their race.  The court also
  concluded that the class was relatively homogeneous and had suffered
  similar harm.  Finding, however, that the damages claims were not
  incidental to the claims for equitable relief, the court certified
  the equitable claims under Rule 23(b)(2) and the legal claims under
  23(b)(3), in accordance with Jefferson.  The court concluded that proof
  of the alleged systemic discrimination would predominate over individual
  relief issues, and that class treatment of the common issues was "clearly
  superior to the alternative of repeating, hundreds of times over, the
  litigation of [these issues] with . . . days of the same witnesses,
  exhibits and issues from trial to trial," Jenkins, 782 F.2d at 473.
  For due process reasons, the court also ordered notice and an opt-out
  opportunity.  Finally, the court ruled that legal issues would be
  resolved before equitable ones, in keeping with the Seventh Amendment.
  Particularly given the substantial deference due district courts in these
  matters, this thorough and well-reasoned decision should be sustained.
  Disregarding the deferential standard of review, defendants challenge
  the decision on numerous grounds.  Fundamentally, they complain that
  certification is improper, as a matter of law, in light of this Court's
  decision in Allison, 151 F.3d 402.  These arguments -- which were
  considered and rejected by the district court -- flow from a basic
  misunderstanding of Allison.
  In Allison, a divided panel of this Court upheld the district court's
  refusal to certify a Title VII suit under Rule 23(b)(2) or (b)(3).
  The proposed class included over 1000 applicants and employees -- members
  of six different unions at two locations; plaintiffs sought injunctive,
  declaratory and monetary relief for alleged discrimination in hiring,
  pay, training, testing and hostile work environment.  The court
  concluded, based on those specific facts, that certification was
  inappropriate because individual issues relating to damages would
  dominate the trial, and a class action would be inefficient and
  unmanageable.  Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463,
  467-71 (W.D. La. 1995), aff'd, 151 F.3d 402 (5th Cir. 1998).  Instead,
  the court chose to consolidate the over 130 plaintiffs' claims, along
  with later-filed suits.  Id. at 472.  This Court held on rehearing
  that the decision to "utilize consolidation under rule 42 rather than
  class certification under rule 23" was not an abuse of discretion.
  151 F.3d at 434 n.*.
  Defendants interpret Allison as divesting the district court of its
  traditional discretion by precluding class certification as a matter of
  law in employment discrimination suits where damages are sought.  See,
  e.g., Star Br. 8 (Allison mandates that such suits may not be certified).
  Nothing could be further from the truth.  Throughout the decision,
  the Court emphasized that "the district court maintains substantial
  discretion in determining whether to certify a class action," adding
  that this "deferential standard" recognizes the "essentially factual
  basis of the certification inquiry and of the district court's inherent
  power to manage and control pending litigation."  151 F.3d at 408;
  see also id. at 416 ("complex cases cannot be run from the tower of the
  appellate court").  Moreover, although defendants ignore this caveat,
  the Court explicitly clarified that it was "not called upon to decide
  whether the district court would have abused its discretion if it had
  elected to bifurcate liability issues that are common to the class
  and to certify for class determination those [discrete] liability
  issues."  Id. at 434 n.*  The decision therefore simply does not bar
  class certification in Title VII actions such as this.<4>
   In the alternative, defendants argue that Allison precludes
   certification of this suit as a (b)(2) or hybrid (b)(2)/(b)(3)
   class action.  They contend that (b)(2) is inapplicable because the
   claims for damages "necessarily predominate" over any other claims.
   Star Br. 13.  However, the district court addressed this matter by
   certifying only the claims for equitable relief under Rule 23(b)(2).
   Rule 23(c)(4)(A) expressly authorizes such rulings: actions may be
   "maintained as a class action with respect to particular issues."
   See also, e.g., Nix v. Grand Lodge of the IAMAW, 479 F.2d 382, 385
   (5th Cir. 1973) (noting with approval that "court has the power under
   subdivision (c)(4)(A) . . . to confine the class action aspects of a
   case to those issues pertaining to the injunction and allow damages
   to be tried separately" or under Rule 23(b)(3)).  Moreover, many of
   the issues pertain to the disparate impact claims.<5>  Since there
   are no damages or juries for such claims, 42 U.S.C.  1981a(a)(1),
   they are appropriate for class treatment to the same extent they were
   before 1991, particularly where, as here, Seventh Amendment concerns
   have been addressed.<6>  The decision therefore does not constitute
   an abuse of the court's discretion.<7>
  As for a hybrid (b)(2)/(b)(3) action, we note initially that Allison
  did not discuss hybrid certification apart from the particular facts
  of that case.  See, e.g., 151 F.3d at 418-20.  Rather, the Court simply
  recognized that it is not an option where, as in Allison, the district
  court determines that the suit cannot be certified under Rule 23(b)(3)
  because of the multiplicity and complexity of individual issues.  Id.
  The district court reached the contrary determination on the facts in
  this case, and that decision -- like the district court's in Allison
  -- is entitled to deference.  Compare, e.g., Jefferson, 195 F.3d at
  898.<8>
  Defendants claim, however, that under Allison, "no employment-
  discrimination claim can be certified under rule 23(b)(3) where, as
  here, the plaintiffs seek compensatory and punitive damages because
  as a matter of law the issues related to those damages predominate
  over any common issues."  Texaco Br. 29 (original emphasis).  That is
  simply wrong.  Allison cannot have held that claims for damages preclude
  class certification because this Court has long permitted certification
  in suits where legal damages are sought.  See, e.g., Pederson, 213 F.3d
  at 884 (Title IX); Mullen, 186 F.3d at 626-29 (negligence, workplace
  injury); Jenkins, 782 F.2d at 471-72 (asbestos/product liability case);
  see also, e.g., Watson v. Shell Oil Co., 979 F.2d 1014, 1019-23 (5th
  Cir. 1992) (tort case); Parker v. Local 1466, 642 F.2d 104, 107 (5th
  Cir. 1981) (LMRDA).  Indeed, a major focus of the class proceedings in
  Jenkins concerned the propriety of punitive damages and the amount,
  if any, of such an award.  See 782 F.2d 468.  While defendants limit
  their per se rule to "employment-discrimination claims," they point to
  nothing -- and there is nothing -- that justifies requiring that race
  discrimination claims meet more stringent procedural standards than
  tort or other statutory claims.
   Finally, defendants argue that certification is improper because
   this Court upheld the district court's refusal to certify a class in
   Allison and, they claim, this case is substantially similar to Allison.
   Texaco Br. 21.  The district court, however, reasonably concluded
   that Allison is factually and legally distinguishable.  Specifically,
   Allison was a giant hodge-podge of claims and parties -- hiring as
   well as hostile work environment, applicants as well as employees; the
   court concluded that the suit would be unmanageable as a class action
   and that class treatment was inferior to other means of adjudication.
   In contrast, the claims in this case are essentially garden-variety
   Title VII systemic discrimination claims, and the proposed class, the
   court determined, is significantly smaller and more homogenous than
   in Allison.  Under these circumstances, the court reasonably concluded
   that class treatment is appropriate.  Cf. Shipes v. Trinity Indus., 987
   F.2d 311, 316 (5th Cir. 1993) (certification is not improper even though
   employees work at two locations since allegation is that employer,
   through "white supervisors," used "same subjective criteria in making
   personnel decisions" in both locations).  While defendants may disagree
   with this assessment, "reasonable differences in judgment are part
   and parcel of the substantial discretion district courts maintain over
   certification of class issues."  Allison, 151 F.3d at 418.  Defendants
   cannot show that the decision constitutes an abuse of discretion.
  As the district court here recognized, class actions play a vital
  role in the private enforcement of Title VII by facilitating attacks
  on broad patterns of workplace discrimination.  See, e.g., Wetzel
  v. Liberty Mutual Ins. Co., 508 F.2d 239, 254 (3d Cir. 1975) (such
  actions are "the cutting edge of the Title VII sword which Congress
  has fashioned" to fight race discrimination -- "a major enemy to
  continuing progress, strength, and solidarity in our nation").  It is
  inconceivable that this Court would bar use of the class action device
  in race discrimination cases -- particularly since it permits the device
  in similar cases in other contexts -- merely because Congress chose to
  strengthen Title VII by providing additional remedies and jury trials.
  Cf. Holmes v. Continental Can Co., 706 F.2d 1144, 1152 (11th Cir. 1983)
  (stressing court's "conviction that Title VII and [Rule 23] should be
  construed so as to further the strong public policy in eradicating all
  vestiges of racial discrimination in employment").  Defendants offer no
  justification -- nor is there one -- for treating Title VII suits less
  favorably than other types of cases.  We therefore urge this Court to
  reject defendants' efforts to impose a categorical ban on class actions
  in Title VII cases and hold that the district court acted well within
  its discretion in granting class certification in this case.<9>

 II. THE AMERICAN PIPE TOLLING RULE APPLIES TO CLASS ACTIONS FILED PROMPTLY
 AFTER PLAINTIFFS LEARN THEY HAVE BEEN EXCLUDED FROM A PREVIOUSLY-FILED
 CLASS SUIT.

  The district court correctly held that this suit was timely filed.
  Under the tolling principles of American Pipe and Crown, Cork &
  Seal Co. v. Parker, 462 U.S. 345 (1983), limitations were tolled
  during the pendency of the Roberts class action and, because tolling
  cannot logically be limited to subsequent individual actions in the
  circumstances of this case, the court properly extended the rule to
  the filing of this class action.
  In American Pipe, the Supreme Court held that "commencement of a class
  action suspends the applicable statute of limitations as to all asserted
  members of the class." 414 U.S. at 553-54.  The Court then concluded that
  because limitations are tolled while a class certification motion is
  pending, if the motion is denied, any putative class member may timely
  move to intervene in the action.  In Crown, Cork, a Title VII suit, the
  Court extended this rule to cases where putative class members choose
  to file their own suits, rather than intervene, once certification is
  denied.  462 U.S. at 354.  In both situations, the Court concluded, any
  other result would frustrate the purposes of the class action procedure
  -- efficiency and economy of litigation.  Unless they could rely on the
  filing of the class action to toll limitations on their private claims,
  class members "would be induced" to file separate suits or intervention
  motions simply "to protect themselves against the possibility that
  certification would be denied" -- "precisely the multiplicity of activity
  which Rule 23 was designed to avoid."  American Pipe, 414 U.S. at 551-53;
  Crown, Cork, 462 U.S. at 349-50.  The Court also noted that the rule is
  consistent with the policies underlying statutory limitation periods --
  ensuring fairness to defendants by putting them on notice of adverse
  claims and preventing plaintiffs from sleeping on their rights.
  American Pipe, 414 U.S. at 554-55; Crown, Cork, 462 U.S. at 352-53.
  This is because once a class action is filed, defendants can determine,
  within the applicable limitations period, both the subject matter and the
  size of the prospective litigation, and class members who take no action
  while suit is pending cannot be accused of sleeping on their rights.
  Applying these same principles here, the district court correctly held
  that tolling preserved the present class action  just as it would
  individual suits filed by each class member.  Star employees -- the
  group covered by this suit -- were encompassed in the original Roberts
  class certification motion and were excluded from the class only during
  settlement negotiations.  As was true in American Pipe and Crown, Cork,
  unless Star employees and other identifiable groups within a class could
  rely on the filing of the class action to toll limitations on their
  claims, they would be induced to file separate class actions merely to
  protect their rights -- "precisely the multiplicity of activity which
  Rule 23 was designed to avoid."  Nor would applying the tolling rule
  undermine the purposes of the applicable limitations period: Star had
  notice of the putative class members by reason of the arguments in
  Roberts, and plaintiffs cannot be said to have slept on their rights
  since they filed suit promptly after learning of their exclusion from
  the Roberts class.
  Under a straightforward application of American Pipe, any of the
  plaintiffs could have intervened in Roberts and sought to represent a
  subclass of Star employees.  See Trief v. Dun & Bradstreet Corp., 144
  F.R.D. 193, 202-03 (S.D.N.Y. 1992) (allowing individual to intervene and
  represent otherwise unrepresented class members in pending class suit).
  Cf. United Airlines v. McDonald, 432 U.S. 385, 394-95 & n.15 (1977)
  (American Pipe permits plaintiff to intervene and represent other
  putative class members in appealing denial of class certification).
  Just as the Supreme Court rejected a similar distinction between
  intervention and a separate suit in Crown, Cork, 462 U.S. at 350
  (rejecting argument that American Pipe should apply only to intervention,
  rather than also to filing of separate suit), it should not matter that
  the plaintiffs chose to bring a separate suit in this case.
  Moreover, there are sound policy reasons for permitting plaintiffs in
  these circumstances to bring a separate class action.  Any other result
  would simply encourage defendants to pick off and settle with some of the
  class, knowing that the remaining members could at most file individual
  actions thereafter.  Cf. Crawford v. Equifax Payment Servs., 201 F.3d
  877, 882 (7th Cir. 2000) (rejecting proposed settlement of class action
  as "substantively troubling" where named plaintiff and his attorney
  "were paid handsomely to go away" and class members received nothing).
  By analogy, courts have consistently held that settlement of the named
  plaintiff's individual claim does not moot a related class claim since,
  unless the class claim could continue, defendants would be encouraged to
  pick off the named plaintiff cheaply and avoid addressing the alleged
  class-wide discrimination.  See, e.g., Jenkins v. United Gas Corp.,
  400 F.2d 28, 33-34 (5th Cir. 1968) (reasoning that if employer could
  moot class action merely by offering named plaintiff the individual
  relief requested, "employer [c]ould devise such a resist-and-withdraw
  tactic as a means of continuing its former ways").
  There are, of course, situations where plaintiffs should be precluded
  from bringing successive class actions in reliance on the American Pipe
  tolling rule.  Courts have held that tolling does not apply where,
  for example, plaintiffs attempt to file and refile for certification
  of what is effectively the same class, thereby "perpetually tolling
  the statute of limitations as to all potential litigants, regardless of
  how many times a court declines to certify the class."  Basch v. Ground
  Round, 139 F.3d 6, 11 (1st Cir. 1998).  See also, e.g., Andrews v. Orr,
  851 F.2d 146, 148 & n.1 (6th Cir. 1988) (where certification motion
  was initially denied in prior action and suit was then settled while
  second motion was pending, district court properly refused to permit
  class-wide relief for "precisely the same class" as was previously
  denied certification).  In such cases, the "policies -- respect for
  Rule 23 and considerations of judicial economy -- which animated the
  Crown, Cork and American Pipe tolling rules dictate that the tolling
  rules . . . not permit plaintiffs to stretch out limitations periods
  by bringing successive class actions."  Basch, 139 F.3d at 9-11.
  Here, however, there has been no such abuse.  As the district court
  recognized, plaintiffs are simply attempting to protect rights they
  legitimately thought would be covered by the Roberts action.  In contrast
  to cases such as Basch and Andrews, plaintiffs are not attempting to
  certify the same class but instead, effectively, a subclass of the
  original Roberts class -- and no court has ever determined that the
  class they seek to certify is inappropriate.  Under these circumstances,
  therefore, this Court should find that the district court reasonably
  extended the tolling rule to this class action.
  Star's brief invites the Court to hold that, as a matter of law, tolling
  is limited to intervention or the filing of individual actions -- the
  specific facts of American Pipe and Crown, Cork.  Star Br. 50-55.<10>
  Crown, Cork, however, rejected a similar attempt by defendants to
  limit tolling to interventions, based on the facts of American Pipe,
  noting that the case should not be read "so narrowly."  462 U.S. at 350.
  The Court suggested that, because the purposes underlying American Pipe
  were applicable in other contexts, the rule should be extended to such
  cases.
  As authority for its blanket bar, Star relies on Salazar-Calderon
  v. Presidio Valley Farmers Ass'n, 765 F.2d 1334, 1351 (5th Cir. 1985),
  which rejected an argument that "putative class members may piggyback
  one class action onto another and thus toll the statute of limitations
  indefinitely."  In Salazar, plaintiffs were attempting to certify the
  same class that had already been denied certification by another court.
  See 765 F.2d at 1350.  The case thus illustrates that tolling is
  inappropriate in that context.  However, Salazar did not, in fact, hold
  that a second class action is necessarily improper.  On the contrary,
  the Court suggested that on remand the district court could certify
  a class of those plaintiffs who had timely filed suit following the
  original denial of class certification.  See id.; see also Calderon
  v. Presidio Valley Farmers Ass'n, 863 F.2d 384, 390 (5th Cir. 1989)
  (upholding certification decision on remand of Salazar).
  Star also cites Korwek v. Hunt, 827 F.2d 874, 875 (2d Cir. 1987).
  However, the Korwek court identified the issue as whether American
  Pipe "permit[s] the filing by putative class members of a subsequent
  class action nearly identical in scope to the original class action
  which was denied certification" based on a finding that the proposed
  class was inappropriate.  Id. at 876, 878.  Thus, Korwek's refusal to
  apply American Pipe simply confirms that tolling does not apply where
  plaintiffs are attempting to certify the same class twice.  See Trief,
  144 F.R.D. 193 (Korwek is limited to situations where plaintiffs attempt
  to file "subsequent class action nearly identical in scope to the
  original class action which was denied certification").  Defendants cite
  no other authority for their crabbed interpretation of American Pipe.
  We therefore urge this Court to affirm the district court's determination
  that the suit is timely and appropriate for class treatment.

 CONCLUSION

  For the foregoing reasons, the judgment of the district court should
  be reversed and the case should be remanded to the district court for
  further proceedings.

       Respectfully submitted,

       C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       ROBERT J. GREGORY
       Senior Attorney



       ______________________________
       BARBARA L. SLOAN
       Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
         COMMISSION
       Office of General Counsel
       1801 L Street, N.W.
       Washington, D.C.  20507
       (202) 663-4721

 CERTIFICATE OF COMPLIANCE

  Pursuant to 5th Circuit Rules 32.2.7(b)-(c), I certify that the textual
  portion of this brief was prepared in monospaced (nonproportionally
  spaced) typeface using Courier New 12 point font, and that, exclusive of
  the exempted portions, contains 6,748 words, as determined by the Corel
  Word Perfect 8 word counting program.  I understand that a material
  misrepresentation in completing this certificate or circumvention of
  the type-volume limits in 5th Circuit Rule 32.2.7 may result in the
  Court's striking the brief and imposing sanctions against me.


       ________________________________
       Barbara L. Sloan

 CERTIFICATE OF SERVICE

  I hereby certify that two copies of the foregoing Brief of the Equal
  Employment Opportunity Commission as Amicus Curiae, along with one
  copy of the brief on disk, were sent this 18th day of August, 2000,
  by first-class mail, postage pre-paid, to:

  L. Chris Butler   V. Scott Kneese
  Shell Oil Company   BRACEWELL & PATTERSON
  4834 One Shell Plaza  South Tower Pennzoil Place
  Houston, TX  77002   711 Louisiana Street, Suite 2900
        Houston, TX  77002

  Stephen F. Fink   Robert E. Meadows
  THOMPSON & KNIGHT    GARDERE, WYNNE, SEWELL & RIGGS
  1700 Pacific Avenue,  1000 Louisiana, Suite 3400
    Suite 3300    Houston, TX  77002
  Dallas, TX  75201

  Dewey J. Gonsoulin   James E. Payne
  MEHAFFY & WEBER   PROVOST & UMPHREY LAW FIRM
  2615 Calder, Suite 800  490 Park Street
  Beaumont, TX  77702   P.O. Box 4903
        Houston, TX  77704

  _______________________________


 1  Although the proposed class also included "hourly individuals
 who have tried to obtain salary positions," the court excluded
 this group when it certified the class.  Mem. 15.

 2  These protections are not required under Rule 23(b)(2) because
 the class is presumed to be "cohesive" and, practically speaking, an
 injunction would affect absent class members even if they attempted
 to opt out.  See Jefferson v. Ingersoll Int'l, 195 F.3d 894, 898 (7th
 Cir. 1999).

 3  Allison suggests that both punitive and compensatory damages should
 be decided in phase II of a bifurcated trial because they require an
 "individualized" assessment of each class member's injury.  151 F.3d
 at 419.  In fact, however, punitive damages, like injunctive relief,
 relate more closely to the enforcement, rather than make-whole, purposes
 of Title VII and, so, may be decided in phase I.  The focus of the inquiry
 is the employer's mental state -- malice or reckless indifference.
 Kolstad v. American Dental Ass'n, 119 S. Ct. 2118, 2124-26 (1999).
 To the extent a jury determines that the employer engaged in systemic
 discrimination, that same jury could easily also determine whether the
 employer acted with malice or reckless disregard of employees' federally
 protected rights.  Moreover, and significantly, this Court has explicitly
 held that punitive damages may be decided by a phase I jury.  See, e.g.,
 Jenkins, 782 F.2d at 473-75 (phase I jury may decide punitive damages
 issues in asbestos class action).

 4  Star compares the order here with the order in Castano v. American
 Tobacco Co., 84 F.3d 734 (5th Cir. 1996), complaining that, as in Castano,
 the court has not yet specified -- at this preliminary stage -- exactly
 how the trial will work.  The analogy is inapt.  This suit raises no
 particular novel issues.  Cf. Watson v. Shell Oil Co., 979 F.2d 1014, 1020
 (5th Cir. 1992) (upholding certification even though court did not "fill
 in" broad outlines of trial plan).  In Castano, in contrast, the court
 intended to try nationwide class action of smoking-related injuries.
 The suit involved millions of potential victims, nine causes of action
 under 50 state laws and untested theories of liability.  Under those
 circumstances, this Court demanded specificity.

 5  Texaco asserts, without authority, that the disparate impact
 claims cannot be certified under Rule 23(b)(2) because they challenge
 subjective employment practices.  Texaco Br. 23-25.  On the contrary,
 in a suit involving subjective practices, this Court recently reaffirmed
 that "[d]isparate impact claims may be brought by . . . a class."  Munoz
 v. Orr, 200 F.3d 291, 299 (5th Cir. 2000).  Texaco's true quarrel is with
 the Supreme Court's holding that disparate impact theory may be used to
 challenge subjective employment practices, Watson v. Fort Worth Bank &
 Trust, 487 U.S. 997 (1988), rather than with (b)(2) certification.

 6  Defendants argue generally that class treatment of these systemic
 claims would raise "significant Seventh Amendment problems."  Star
 Br. 23.  Any such "problems" are clearly surmountable.  The Seventh
 Amendment does not prohibit bifurcation of trials, for example, "as long
 as the judge does not divide issues between separate trials in such a
 way that the same issue is reexamined by different juries."  Mullen,
 186 F.3d at 628.  Similarly, equitable and legal issues may be tried in
 one action as long as legal claims are decided before determination of
 the equitable claims.  Dairy Queen v. Wood, 369 U.S. 469, 479 (1962).
 The district court confirmed that these requirements would be met.
 In any event, such "problems" are not unique to class actions.  On the
 contrary, they could also arise if the claims of the over 80 plaintiffs
 and any later intervenors were tried in a consolidated action, as the
 district court in Allison proposed.

 7  Defendants also challenge (b)(2) certification on the ground that,
 since Star has been reconstituted as other entities, injunctive relief
 is impossible.  That is, we presume, why successorship liability is an
 issue in the case.  In any event, a (b)(2) action may continue even
 if defendants' conduct has obviated the need for injunctive relief.
 See, e.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257
 (5th Cir. 1974).

 8  Defendants also argue that certification is improper because this is
 not a "negative value" suit -- that is, one where each member's damages
 are not high enough to pursue in individual actions.  This Court has
 commented that the "most compelling rationale for finding superiority in a
 [(b)(3)] class action" is "the existence of a negative value suit."  See,
 e.g., Allison, 151 F.3d at 420; Castano, 84 F.3d at 748.  While that
 may militate in favor of certification in a particular case, however, it
 clearly is not a prerequisite.  The Court recently upheld certification
 of a class of injured employees in Mullen, 186 F.3d 620, for example,
 where, if plaintiffs won, damages would be more than negligible.  In any
 event, this case is primarily a (b)(2) action; only the damage claims
 under certified under (b)(3).

 9  Defendants also seek reversal on the merits of plaintiffs' suit.
 These arguments are not appropriate on a Rule 23(f) appeal, which is
 limited to issues relating to the "granting or denying of class action
 certification."  See Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279
 (11th Cir. 2000); cf. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177
 (1974) (court should not consider underlying merits of suit in deciding
 class certification).

 10  Star also contends that tolling does not apply to the filing of
 an EEOC charge.  That is simply wrong.  See Andrews, 851 F.2d at 149
 ("limitations period for filing individual administrative complaints
 was tolled during the pendency of the earlier class action").  Under
 the single-filing rule, putative class members may rely on the valid
 charge of one aggrieved person.  See Oatis v. Crown Zellerbach Corp.,
 398 F.2d 496, 498 (5th Cir. 1968) ("It would be wasteful, if not vain,
 for numerous employees, all with the same grievance to have to process
 many identical complaints with EEOC").