UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-5549

__________________

NATIONAL ASSOCIATION OF

GOVERNMENT EMPLOYEES, ET AL.,

Plaintiffs-Appellants,

versus

CITY PUBLIC SERVICE BOARD OF

SAN ANTONIO, TEXAS, ET AL.,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas

______________________________________________

(December 6, 1994)

Before JOHNSON, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellants Eustacio B. Diaz (Diaz), Guillermo R.

Gaona (Gaona), and the National Association of Government Employees

(collectively Plaintiffs) brought this putative class action

against defendant-appellee the City of San Antonio, Texas, acting

by an d through the City Public Service Board (CPS). In 1977,

Plaintiffs filed charges with the Equal Employment Opportunity

Commission (EEOC), alleging that CPS discriminated against its

Mexican-American and Mexican alie n workers on the basis of their

national origin in hiring, promotion, discipline, and other terms1 The original union complainant was the American Federation

of State, County, and Municipal Employees (AFSCME). In July

1982, CPS employees left AFSCME to join the National Association

of Government Employees (NAGE).

2 and conditions of emplo yment. 1 After efforts at conciliation

failed in 1980, the EEOC referred the ca se to the Department of

Justice and informed Plaint iffs that the Department of Justice

would either notify them of its intention to prosecute the case or

issue a right to sue letter. Nothing more happened until late

1989, when Plaintiffs determined that the Department of Justice had

no record of their case, obtained a right to sue letter, and filed

this suit in the district court below. Plaintiffs alleged

violations of Title VII, 42 U.S.C. §§ 1981 and 1983, and the Texas

constitution. CPS moved to dismiss the Title VII claim on the

b asis of laches and to dismiss the section 1981 claim eith er on

summa ry judgment or for failure to state a claim on which relief

may be granted. The magistrate judge to whom the case had been

referred recommended that both these motions be granted and in

addition recommended denial of class certificatio n and dismissal

with prejudice of Plaintiffs' Tit le VII claims and dismissal

without prejudice of their section 1981, section 1983, an d state

law claims. The district court adopted the recommendation of the

magistrate judge, and Plaintiffs appeal that judgment. We find no

error and therefore affirm.

Facts and Proceedings Below

Althoug h the present suit was filed November 29, 1989, the

controversy began more than twelve years earlier. On February 18,

1977, Plaintiffs filed employment discrimination charges with the2 Specifically, Plaintiffs complained of:

"(a) Non-job-related educational requirements.

(b) Failure to establish educational job-related

training and apprenticeship programs for upward

mobility.

(c) Intimidation and harassment of Mexican-Americans

and Mexican Aliens/I-151 . . .

(d) Failure to establish a job-posting policy of all

job vacancies.

(e) Failure to establish a non-derogatory

ethnic/racial slurs policy. . . .

(f) Failure to provide equal opportunity to MexicanAmericans and Mexican Aliens/I-151 employees as a class

who apply for loans through the employer's credit

union.

(g) Failure to establish a wages/conditions/grievances

committee to include an equal number of MexicanAmericans and Mexican Aliens/I-151 members.

(h) Failure to establish and [sic] equal sick and

vacation leave policy. . . ."

In its Reconsideration of Determination of October 31, 1979, the

EEOC found with respect to these charges: that it did not have

jurisdiction to consider charge (f); that there was insufficient

evidence to support a reasonable cause finding as to charges (b),

(c), (d), (g), and (h); and that there was sufficient evidence to

support a reasonable cause finding as to charges (a) and (e).

3 This document superseded a letter of determination the EEOC

had previously issued on March 30, 1979.

4 See supra note 2. Specifically, the EEOC found:

3 EEOC, alleging that CPS discriminated against Mexican-Americans

and Mexican aliens in hiring, promotion, job classification, and

other terms and conditions of employment

. 2 The EEOC issued a

Reconsideration of Determination on October 31, 1979, 3 in which it

found that there was reasonable cause to support some of

Plaintiffs' allegations with respect to hiring and promotion. 4 The"1. Mexican-Americans are not hired into the unskilled

and semi-skilled levels of Respondent's work force at a

rate proportionate to their availiability [sic] in the

relevant labor market;

2. Mexican-Americans, as the result of Respondent's

hiring policies, are relegated to the lowest job

classifications within Respondent's facilities;

3. Respondent has failed to establish and/or enforce

a policy which prohibits the use of ethnic or racial

slurs; and

4. Respondent utilizes non-job-related educational

requirements as prerequisites for employment and job

advancement;

5. [withdrawing certain earlier findings] . . . .

6. . . . . a. Mexican-Americans who are employed as

utility workers at Respondent's Gas and General

Construction Division are not provided equal

opportunities for promotion to the main crew foreman

positions." [On April 3, 1980, "the main crew foreman

positions" language was changed to "the various

supervisory/foreman positions that require direct

supervisory responsibility over the Utility Workers"].

5 Plaintiffs have been represented by at least five separate

attorneys since August 1980. Their initial two attorneys

represented them from 1980 until 1983, when they were replaced by

another attorney who represented them until 1987. He in turn was

replaced by another attorney, who was succeeded in 1988 by still

another who represented them until 1989, when Plaintiffs' current

4 parties then attempted conciliation, but that effort fail ed. On

June 24, 1980, the EEOC formally informe d Plaintiffs in writing

that conciliation was unsuc cessful, that no further efforts to

conciliate would be made, and that it was referring their charges

to the Department of Justice for review in anticipation of a

possible enforcement action.

Although Plaintiffs retained counsel to represent them in

August 1980 and have been represented by counsel continuously since

that time, 5 no further action was taken in the case. The attorneyattorney of record took over the representation. Still another

attorney apparently also represented Plaintiffs from 1982 to

1984.

5 who represented Plaintiffs from 1983 to 1987 did call a press

conference in San Antonio during September 1984 at which he

"accused the EEOC of failing to move against CPS after finding

evidence of discrimination" and announced that he would file suit

against C PS in four to six weeks. However, no suit was filed at

that time. In 1989, Plaintiffs contacted the Department of Justice

to determine where the case stood. The Department of Justice

informed them that it had no record of a referral from the EEOC and

therefore had not made any review of the case. Plaintiffs

thereafter requested and received right to sue letters from the

EEOC and filed this suit on November 29, 1989. They alleged causes

of action under Title VII and section 1981. In addition, they

moved for certification of the suit as a class action. A

subsequent am ended complaint added claims under section 1983 and

the due course of law and equal protection provisions of the Texas

constitution.

On February 8, 1990, CPS moved to dismiss, claiming that it

was not a suable entity separate and apart from the City of San

Antonio. Plaintiffs requested and were ultimately granted leave to

file an amended complaint to name the City as defendant. On March

8, 1990, C PS moved to dismiss Plaintiffs' section 1981 claims

either on summary judgment or for failure to state a claim on which

relief may be granted. While that motion was pending, the

magistrate judge to whom the case had been assigned granted the6 The magistrate judge found that "[t]heir claim is better

described as one of discriminatory placement at the time of

hiring."

6 parties an extension of time to conduct further discovery on the

issues of laches and class certification. On November 15, 1991,

CPS moved to dismiss Plaintiffs' Title VII claims on the basis of

laches.

The magistrate judge considered all these motions and entered

his report and recommendation on January 30, 1992. He recommended

that the district court dismiss Plaintiffs' Title VII claims on the

basis of laches, finding that the long delay in filin g suit "was

manifestly unreasonable, inadequately explained and inexcusable"

and had substantially prejudiced CPS's ability to conduct an

adequate defense. The magistrate judge also recommended that the

motio n to dismiss Plaintiffs' section 1981 claims be granted and

that that claim be dismissed without prejudice. As to the section

1981 claim, the magistrate judge reasoned: (1) that most of

Plaintiffs' allegations (e.g., the tolerance of racial and ethnic

slurs in the workplace, discriminatory disciplinary practices) were

n ot cognizable under section 1981; (2) that the discriminatory

hiring claims were not properly analyzed under section 1981 because

"[Plaintiffs] do not contend that anyone was denied employment with

CPS because he or she is Mexican-American" 6 ; and (3) that

Plaintiffs' pleadings and proof with respect to their

discriminatory promotion claims failed to show the denial of an

opportunity for a new and distinct employer-employee relationship

as required by Patterson v. McLean Credit Union

, 109 S.Ct. 23637

(1989).

The magistrate judge also recommended that any re quest to

amend the complaint to plead sufficient facts not be allowed. He

reasoned that, not only had Plaintiffs already been granted leave

to file a second amended complaint after CPS moved to dismiss the

section 1981 claim for failure to s tate a claim, but that the

summary judgment evidence establishe d that Plaintiffs could not

amend their complaint to state a section 1981 claim. Referencing

Plaintiffs' answers to interrogatories, the magistrate judge found

only two CPS employees S Q Alejandro Ramirez and Jesse Tello SQ as to

whom the responses could be construed to allege a denial of

promotion within the applicable statute of limitation s. The

magistrate judge found nothing in the summary judgment evidence to

show that either of these men were in fact denied promotions within

the limitations period or to establish that the duties,

compensation, and benefits of the jobs for wh ich they were

allegedly denied promotion created a new and distinct relationship

with the employer. In contrast, the magistrate judge noted that

C PS had come forward with evidence to show that Ramirez had been

promoted in 1986 and that Tello had declined three promotions in

the late 1970s and early 1980s. Similarly, the magistrate judge

found that only two of Plaintiffs' affidavits could be construed to

demonstrate a denial of promotion. Assuming in the absence of

evidence that these claims arose wi thin the two-year statute of

limitations, the magistra te judge found that one of the affiants

complained primarily of sexual ha rassment, not national origin

discrimination, and that the other failed t o show that the8

promotion he was denied would have created a new and distinct

employment relationship.

F inally, with regard to Plaintiffs' motion for class

cer tification, the magistrate judge found that there were only

eleven putative class members whose claims of discrimination were

tied to events occurring within the two-year statute of limitations

period. He found this number insufficient to satisfy the

numerosity requirement of Federal Rule of Civil Procedure 23(a)(1).

He therefore recommended denial of class certification and

dismissal of Plaintiffs' section 1983 and state law claims without

prejudice.

Over Plaintiffs' objec tions, the district court adopted the

magist rate judge's findings and recommendations on February 24,

1992. It therefore denied class certification and dismissed

Plaintiffs' Title VII claim with prejudice and their section 1981,

section 1983, and state law claims without prejudice. Plaintiffs

now appeal that judgment.

Discussion

I. Appellate Jurisdiction

At oral argument, Plaintiffs for the first time contended that

this Court lacks jurisdiction to hear their appeal because the

district court's judgment is not final. With limited exceptions

not relevant here, we are empowered to review only final decisions

of the district courts. 28 U.S.C. § 1291. A decision is "final"

when it "dispose[s] of the entire controversy and leave[s] nothing

further for the court to do in the cause." A nastasiadis v. S .S.

Little John

, 339 F.2d 538, 539 (5th Cir. 1964). In the present7 To the same effect, see Chiari v. City of League City , 920

F.2d 311, 314 (5th Cir. 1991); Jones v. Celotex Corp. , 867 F.2d

1503, 1504 (5th Cir.), cert. denied , 110 S.Ct. 260 (1989).

9 cas e, Plaintiffs contend that the district court's order is not

final because it did not dispose of what they assert is a Title VI

claim included in their second amen ded complaint. We are

unpersuaded by thi s argument because we conclude that, to the

extent that Plaintiffs' second amended complaint can be construed

to assert a claim under Title VI, they have abandoned that claim.

We faced a similar situation in Vaughn v. Mobil Oil

Exploration and Producing Southeast, Inc.

, 891 F.2d 1195 (5th Cir.

1990). There we were confronted with a judgment that, although

purporting to be final, failed to account for a cross-claim of the

appellee. Addressing the finality requirement, we advocated a

practical interpretation that looked to the intention of the

district court. I d. at 1197. We stated that, if the judgment

reflects an intent to dispose of all issues before the district

court, we will characterize that judgment as fina l. I d. With

those principles in mind, we held that the appellee had effectively

abandoned its cross-claim by failing to pursue it before the

district court. 7 Id. at 1198. We explained,

"Ample authority exists that trial courts will not rule

on claims SQ

buried in pleadings SQ that go unpressed before

the court.

. . . We can only construe appellee's failure

to urge its claims before the dis trict court as an

intention to abandon that par t of its case. . . . The

fact that the December judgment did not mention

appellee's cross-claim is neither here nor there;

appellee's own behavior caused its claim to lapse." I d.

Because the district court's judgment disposed of all live issues

then before it, we held that it was an appealable final judgment.8 Plaintiffs' original complaint asserted claims under Title

VII and section 1981. It contains no mention of Title VI. After

CPS moved to dismiss on the basis, inter alia , that it was not

suable apart from the City, Plaintiffs, on February 23, 1990,

moved to file a "first amended complaint" in order "to name as an

additional Defendant the City of San Antonio." This motion was

apparently never acted on. On March 16, 1990, Plaintiffs filed

an "amended motion" to file a "first amended complaint," stating

this was to correctly name the CPS and "to assert additional

causes of action," none of which were in any way described or

referenced. No action on this motion is reflected by the record.

The docket sheet reflects that Plaintiffs tendered a "first

amended complaint" on March 19, 1990, but it was never filed and

is not in the record.

On July 29, 1990, Plaintiffs filed their "amended motion for

leave to file Plaintiffs' second amended complaint," which states

that its purpose is to amend the first amended complaint "to add

the Title VII charge by Eustacio Diaz." This motion was granted,

and on August 23, 1991, Plaintiffs filed their "second amended

complaint." This complaint asserts claims under Title VII and

section 1981, as did the original complaint; it also asserts

claims under the due process and equal protection clause of the

Fourteenth Amendment and "the due course of law and equal

protection provisions of the Texas Constitution," none of which

claims were included in the original complaint.

10 Id

.

Vaughn is directly applicable here. Plaintiffs' invocation of

Title VI in their lengthy second amended complaint is properly

characterized as passing at best. 8 They mention it only twice,

once in t he paragraph invoking federal jurisdiction and again in

conjunction with their claim for relief under Title VII. Both

these references do no more than mention Title VI; the only

statutory citation provided in each instance is to T itle VII.

Plaintiffs requested no r elief under Title VI. Nor can we infer

assertion of a claim under Title VI from a properly pleaded Title

VII claim; the two causes of action require different elements of

proof. S ee Guardians Association v. Civil Service Commission

, 103

S.Ct. 3221, 3235 n.1 (1983) (Powell, J, concurring in the judgment)9 A cause of action under Title VI requires (1) that the

defendant have received federal financial assistance the primary

objective of which is to provide employment (2) that was applied

by the defendant to discriminatory programs or activities. 42

U.S.C. §2000d-3.

10 For example, Plaintiffs' fifty-four-page brief, filed below

November 20, 1991, contains no mention of Title VI and describes

the suit as "an action . . . brought pursuant to Title VII of the

Civil Rights Act of 1964 (hereafter 'Title VII'), 42 U.S.C.

Section 2000e, et seq., and 42 U.S.C. Section 1981 (hereafter

'Section 1981')."

11 (stating that "[s]even Members of the Court agree that a violation

of [Title VI] requires proof of discriminatory intent"). Further,

the complaint fails to allege the essential elements of a Title VI

claim. 9

We also note that defendant-appellees' pleadings, motions, and

briefs below made no reference to any Title VI claim. The

magistrate judge's report and recommendation makes no such

reference, and its description of Plaintiffs' suit includes no

mention of Title VI. Plaintiffs' response to appellees' motions

did not mention Title VI, 10 nor did Pl aintiffs' objections to the

magistrate judge's report and recommendation. Plaintiffs never

suggested to the district court (or to the magistrate judge) that

they had any claim, under Title VI or otherwise, not fully

addressed and disposed of.

Giv en these circumstances, we think it reasonable to infer

that the district court did not believe Plaintiffs had asserted a

claim under Title VI. C f. In re Pan American World Airways, Inc.

,

9 05 F.2d 1457, 1462 (11th Cir. 1990) ("[I]f a party h opes to

preserve a claim, argument, theory, or defense for appeal, she must

first clearly present it to the district court, that is, in such a11 Plaintiffs' notice of appeal states that it appeals the

district court's "final judgment." Plaintiffs' "appellants'

brief" in this Court does not mention Title VI, and neither does

appellees' brief. Plaintiff's "reply brief" in this Court states

that the district court dismissed "all Plaintiffs' causes of

action." No submission by either side prior to oral argument

suggested otherwise. At oral argument, we granted the parties

leave to file supplemental briefs addressing the jurisdictional

issue.

12 way as to afford the district court an opportunity to recognize and

rule on it.") (footnote omitted). In disposing of all Plaintiffs'

o ther claims, therefore, the district court undoubtedly believed

that it was disposing of the entire case before it. As in V aughn

,

"[n]othing in the district court's disposition suggested that

judgment was incomplete. Indeed, the judge closed the case. The

clerk

. . . e ntered judgment. The parties went home. In all

respects, and to all parties, judgment was final." 891 F.2d at

1197-98. Such is the case here.

Other circumstances surrounding this case further support our

conclusion that any Title VI claim was abandoned. That Plaintiffs

instigated this appeal and invoked this Court's juris diction

pursuant to 28 U.S.C. § 1291 suggests that they themselves believed

the district court's judgment to be final. Neither of the parties

addressed the Titl e VI issue in their original briefs. 1 1 Indeed,

Plaintiffs' counsel admitted that he only realized this "omission"

while preparing for oral argument.

It therefore appears clear that no one associated with this

case believed there to be a live Title VI claim when judgment was

entered. We will not allow Plaintiffs to ambush this appeal by

belatedly resurrecting a purported claim they completely failed to13

pursue before the district court. Nor does the fact that

Plaintiffs' case was disposed of on summ ary judgment change our

conclusion. V aughn

, 891 F.2d at 1198. ("[T]he district court's

disposition of the instant case

. . . by way of grant of

. . .

summary judgment does not alter the fact of aba ndonment on

appellee's part . . ."). The district court's order disposing of

all live claims was thus an appealable final judgment, and we have

jurisdiction to consider it. Plaintiffs' post-argument motion to

dismiss the appeal is denied.

II. Title VII Claims: Laches

A. Standard of Review

Although Plaintiffs seem to concede in their original brief to

this Court that the appropriate standard of review of the district

court's deter mination with respect to laches was an abuse of

discretion standard, they assert in their reply brief that de novo

review is the applicable standard because CPS's laches motion was

s tyled as a motion to dismiss. Because the district court was

re quired to review the available evidence in order to determine

whether to apply laches to the Title VII claim, this motion is more

appropriately treated as one for summary judgment. This

distincti on does not affect Plaintiffs' argument, however, since

the standard of review of a grant of summary judgment is also d e

novo

.

It is settled that a district court enjoys considerable

discretion in deciding whether to apply the doctrine of laches to

c laims pending before it. K ennedy v. Electricians Pension Pl an

,

954 F.2d 1116, 1121 (5th Cir. 1992). The issue before us is to12 We also noted that the district court's decision was founded

on affidavits that did not meet the verification requirements of

Rule 56(c). Powell , 434 F.2d at 1079-80.

14 what extent that discretion is circumscribed or otherwise altered

when the decision to apply laches is made within the context of a

motion for summary judgment. Our review of the caselaw leads us to

the following conclusion: to the extent that the facts relevant to

laches are undisputed on summary judgment, the abuse of discretion

standard applies. Put another way, as long as the district court

applies the correct legal standard on summary judgment and does not

resolve disputed issues of material fact against the nonmovant, its

determination of whether the undi sputed facts warrant an

application of laches is reviewed for abuse of discretion.

We begin our analysis with a case in which this Court

determined that the district cou rt had abused its discretion in

applying the doctrine of laches. In P owe ll v. City of Key West,

Florida

, al though "[r]ecognizing full well that the defense of

laches is one that is addressed largely to the di scretion of the

trial court," we nevertheless held that the granting o f summary

judgment on the basis of laches was improper because the

defendants' motion for summary judgment was "completely lacking .

. . a factual basis for applying this defense." 434 F.2d 1075,

1080 (5th Cir. 1970). We found that laches was improperly applied

because, based on an overly generous reading of the m ovants'

affidavits, 12 the district court had impermissibly resolved disputed

issues of fact regarding prejudice, an essential element of laches,13 For example, in Powell the affidavit of movant's counsel

read: "[T]he City of Key West, Florida, had insurance coverage

at the time the accident, which is the subject matter of this

litigation, occurred, but the insurance carrier has denied

coverage to the city and is not now defending the city in this

lawsuit on the grounds of late reporting of the accident."

Powell , 434 F.2d at 1077. From this, the district court

concluded that "the defendants have lost insurance coverage that

otherwise would have applied to the plaintiff's injury." Id. at

1079 (emphasis omitted). We found this extension of the

affiant's statement impermissible in the context of summary

judgment:

"It is impossible for the trial court to know from the

document before it that the city had or had not lost

insurance coverage, for, in fact, counsel did not even

make such a statement of fact. He stated only that the

insurance carrier had denied coverage and was not

defending the suit. The trial court was not in a

position to test the correctness of counsel's implied,

although not expressed, conclusion that the city had

lost coverage which it otherwise would have had.

Moreover, there is no possible basis for the trial

court to assume, since the city gave no notice to the

insurance company until 1969, that, had it given notice

within the four year statue of limitations, the

insurance company would not, with equal justification,

have declined to defend on the ground of a four year

delay in giving notice under the policy. There is

nothing in this record to indicate that, had the city

given notice a few days short of the four year

statutory period, the city would have had the coverage

which the trial court now found it lost by reason of

the delay in filing this complaint." Id.

In addition, we noted that the district court erred in finding

that another affidavit submitted by the movant showed that the

movant had lost the opportunity to hold third parties liable for

any damages assessed against it in the suit. Id. at 1080.

15 in favor of the movants. 13 Id. at 1079-80. We noted that "[e]ven

were the affidavits of the [movants] adequate to raise an issue of

fact as to prejudice, this is all they would have done because

the re is clear proof on behalf of the plaintiff from which the

trial court could have found a complete absence of prejudice by

reason of the delay." I d. at 1080. Thus, although the district14 To Powell , compare Fowler v. Blue Bell, Inc. , 596 F.2d 1276

(5th Cir. 1979), cert. denied , 100 S.Ct. 671 (1980). In Fowler

, we held that, despite the existence of undisputed facts regarding

defendant's laches motion, the district court incorrectly found

the doctrine applicable where the movant's summary judgment

evidence as a matter of law did not satisfy the elements of

laches. Id. at 1279-80. Specifically, we held that any time

that elapsed during ongoing EEOC conciliation efforts could not

be counted toward the calculation of the unreasonable delay

element, id. at 1279, and that the defendant's assertion that key

witnesses were no longer with the company, without an

accompanying showing that they were currently unavailable to

testify, was insufficient to show prejudice. Id. at 1279-80.

More importantly for present purposes, however, we analyzed the

case under the abuse of discretion standard. Id. at 1280.

Fowler is therefore wholly consistent with our analysis here.

16 court had discretion to grant laches on motion for su mmary

judgment, it did not have discretion to circumvent the requirements

of Rule 56(c) by resolving genuinely disputed issues of fact

material to laches. 14

By contrast, when the district court has correctly applied the

summary judgment standard, we have found no abuse of discretion in

its determination as to laches. For example, in A lbertson v. T.J.

Stevenson & Co.

, we applied the abuse of discretion standard in

reviewing the district court's decision to bar plaintiff's claims

on the basis of laches. 749 F.2d 223, 233 (5th Cir. 1984).

Significantly, we noted that the material facts underlying

defendant's summary jud gment motion were undisputed. I d.

Similarly, in Kennedy v. Electricians Pension Plan , 954 F.2d 1116

(5th Cir. 1992), a declaratory judgment action tried to the court

on a stipulation of facts and submission of the r ecord, i d. at

1118, we upheld the district court's decision not to apply laches

under the abuse of discretion standard. Id. at 1121.

We think this case falls squarely within the purview of the17

abuse of discretion sta ndard. The material facts relevant to

laches are not in genuine dispute. The length of the delay and the

reasons for it are not controverted. The facts relevant to

prejudice are likewise not contested. CPS does not dispute that it

has records relevant to Plaintiffs' claims still on file;

Plaintiffs' do not dispute that many of CPS's relevant witnesses

are unavailable t o testify. We now turn to the district court's

determination that the material facts before it as to which there

was no genuine dispute met the essential requirements of the laches

defense.

B. Application of Laches to Plaintiffs' Title VII Claims

"Laches is founded on the notion that equity aids the vigilant

and not those who slumber on their rights." NAACP v. NAACP Legal

Defense & Educational Fund, Inc.

, 753 F.2d 131, 137 (D.C. Cir.),

cert. denied

, 105 S.Ct. 3489 (1985). The defense consists of three

elements: (1) a delay on the part of the plaintiff in instituting

suit; (2) tha t is not excused; and (3) that results in undue

prejudice to the defendant's abi lity to present an adequate

defense. Geyen v. Marsh , 775 F.2d 1303, 1310 (5th Cir. 1985).

1. Delay

The district court in this case found that there had been a

delay of nine years in bringing suit on the EEOC charges Plaintiffs

filed in 1977. The district court correctly held that the period

of time during which conciliation efforts were ongoing should not

be counted against Plaintiffs in calculating the period of delay.

See Fowler

, 596 F.2d at 1279 ("[A]lthough the doctrine of laches

may be available in some cases to bar the EEOC from bringing suit,18

this bar arises only if the EEOC has delayed unreasonably after it

has completed conciliation.") (emphasis in original ). Neither

party disputes that conciliation efforts were terminated in 1980,

nor that suit was not filed until late 1989.

2. Inexcusability

The magistrate judge found, and the district court agreed,

that Plaintiffs' delay in bringing suit was not excused. The

magistrate judge based hi s determination as to inexcusability on

the following undisputed facts: (1) Plaintiffs have been

represented by counsel continuously since conciliation efforts were

terminated in 1980; (2) the plaintiff union (and its predecessor),

whose expertise in employment matters is presumed, was actively

involved in the case from the time charges were filed with the EEOC

in 1977; (3) Plaintiffs failed to take advantage of their right

under the statute (42 U.S .C. § 2000e-5) to demand right to sue

letters at any time after 18 0 days following filing of the EEOC

charges; (4) Plaintiffs did not at any time from 1980 to 1989 make

a ny inquiry with the Department of Justice or the EEOC as to the

status of their claims; and (5) Plaintiffs' then attorney called a

press conference in 1984, accusing the EEOC of failure to act and

promising to file suit within six weeks, yet Plaintiffs did nothing

at that time nor for five years thereafter to bring this suit.

Plaintiffs attack the inexcusability determination, advancing

two interrelated arguments. First, they argue that their delay in

filing suit was not inexcusable because they were relying on the

administrative process. Sec ond, Plaintiffs contend, in effect,15 We are puzzled by Plaintiffs' contention in their reply

brief that they did not know that conciliation efforts had failed

until 1989. Letters sent to Plaintiffs in 1980 from the EEOC

clearly state that conciliation had failed and was terminated and

that the matter was being referred to the Department of Justice.

19 tha t they should not be faulted for the laxity of their various

attorneys in pursuing this suit. Neither of these contentions has

merit.

Plaintiffs contend that, as legally unsophisticated parties

with few English skills, they cannot be assumed to be familiar with

the administrative complexities of Title VII litigation. 1 5 This

argument fails to explain why Plaintiffs' c ounsel did not pursue

this litigation, or why Plaintiffs should not be charged with their

counsels' neglect. "Under our system of representative litigation,

each party is deemed bound by the acts of his lawyer-agent and is

considered to have no tice of all facts, notice of which can be

charged upon the attorney." I rwin v. Veterans Administration

, 111

S.Ct. 453, 456 (1990) (citation a nd internal quotation marks

omitted). That an attorney's conduct of the suit is inadequate may

be grounds for a malpractice action against the attorney, but it is

certainly no basis for requiring the defendant to pay the price of

opposing counsel's dereliction. S ee Link v. Wabash Railr oad , 82

S.Ct. 1386, 1390 n.10 (1962).

Plaintiffs' assertion that one of their attorneys died and

another was suspended from practice are wholly unavailing. As to

the former, the record contains no indication of when the attorney

died, but it does show that while he was representing Plaintiffs

they were also represented by other counsel. As to the latter, the16 Nor is there any indication of the length of the suspension

or any suggestion that the suspension was in any way related to

counsel's representation in this matter.

17 Plaintiffs allege that growing tensions between the

membership and management of AFSCME, NAGE's predecessor, led them

to join NAGE in 1982. We are unpersuaded that this fact either

relieved AFSCME of its duty to pursue these claims or excused

NAGE from failing to pursue them after 1982.

20 record merely indicates that the attorney "was eventually suspended

from the practice of law" (emphasis added); it does not indicate

w hen the suspension occurred, and so far as the record shows the

suspension could have come well after (or only shortly before) the

time when other counsel had succeeded to the representation of

Plaintiffs. 16

Also significan t in this respect is the ongoing and direct

involvement of the union, which purports to represent Plaintiffs'

interes ts in this suit. A labor union is assumed to have some

degree of expertise in equal employment opportunity matters. See

Cleveland Newspaper Guild v. Plain Dealer Publishing Co.

, 839 F.2d

1147, 1154 (6th Cir.), cert. denied

, 102 S.Ct. 234 (1988).

Plaintiffs have not argued that the union did not know of its right

to request right to sue letters nor explained why the union failed

to take any action to pursue the Title VII claims after

conciliation failed. 17

In sum, we are unable to fault the conclusion of the

magistrate judge and the district court that under the undisputed

facts of record the delay in this case was inexcusable.

3. Prejudice

To support a determination of laches, there must be more than21

simply an inexcusable delay; the party asserting laches must also

establish that it has been prejudiced by the delay, that is, that

the dela y has "cause[d] a disadvantage in asserting and

establishing a claimed right or defense." M atter of Bohart

, 743

F.2d 313, 327 (5th Cir. 1984). The requirement of demonstrating

prejudice dovetails with the equitable nature of lach es as a

doctrine "des i gned to promote justice by preventing surprises

through the revival of claims that have been allowed to slumber

until evidence has been l ost, memories have faded, and witnesses

have disappeared." O rder of Railroad Telegraphers v. Railway

Express Agency, Inc. , 64 S.Ct. 582, 586 (1944).

The magistrate judge found that "plaintiffs' inexcusable delay

in filing this lawsuit has unduly prejudiced defendant and warrants

the imposition of the laches defense." The magistrate judge's

report further adequately warned of the necessity of timely filing

properly specific objections to "the proposed findings, conclusions

and recommendation" contained in the report and of the consequences

of failing to do so. Plaintiffs' only objection to the prejudice

part of the magistrate judge's report was the following:

"5) Defendant only alleges and the Magistrate only found

undue prejudice with regard to the all egations of

discrimination during the per iod prior to November 29,

1989. Therefore as a matter of equity the Court should

reject the recommendation to dismiss the lawsuit in its

entirety and instead should allow Plaintiffs to proceed

on the Title VI I claims but deny any back pay for the

period of undue prejudice prior to November 29, 1989."

We agree with CPS that this does not constitute an objection

to the determination of prejudice respecting alleged discrimination

prior to November 29, 1989. As the district court adopted the18 There is a presumption that employees whose employment was

involuntarily terminated are hostile toward the employer. See

EEOC v. Firestone Tire & Rubber Co. , 626 F.Supp. 90, 92 (M.D. Ga.

1985).

22 magistrate judge's report and its findings and conclusions,

Plain tiffs are now barred from challenging the prejudice

d etermination as to alleged discrimination prior to November 29,

1989, absent a showing of plain error or manifest injustice. S ee,

e.g., Nettles v. Wainwright

, 677 F.2d 404 , 410 & n.8 (5th Cir.

1982); P artfait v. Bowen

, 803 F.2d 810, 811, 813, 814 (5th Cir

.

1986); Rodriguez v. Bowen

, 857 F.2d 275, 276-77 (5th Cir. 1988);

Tolbert v. United States

, 916 F.2d 245, 247 (5th Cir. 1990); Edmond

v. Collins

, 8 F.3d 290, 293 n. 7 (5th Cir. 1993). S ee also 28

U.S.C. § 636(b)(1); Western District of Texas Local Rule 4(b). We

find no plain error o r manifest injustice. Indeed, we find no

error.

The magistrate judge described CPS's evidence of prejudice as

"unrefuted," "substantial," and "overwhelming," and we agree. Of

the foremen and supervisors responsible for hirin g and promotion

during the period covered by the EEOC charges here at issue, nine

had died, three were too ill to testify, and three had been

terminated by CPS. 18 In addition, CPS submitted thirty-six

affidavits of other forem en and supervisors who prepared

performance evaluations during the relevant period. Of those who

could remember the employee at all (and there were many who could

not), most remembered either only the name or only a general

description of the person as either a good or poor employee. Few

remembered specifically why they had rated a particular employee in23

a particular way or the details of specific anecdotal events that

Plaintiffs allege prove their discrimination claims.

Plaintiffs counter that the loss of witness testimony is

irrelevant because records that allegedly demonstrate the pattern

and practice of discrimination at CPS are still available. These

records, however, only help Plaintiffs in proving a p rima faci e

case of discrimination; they do nothing to alleviate the prejudice

to CPS in attempting to articulate legitimate, nondis criminatory

reasons to rebut any inference of discrimination these records

might raise. S ee Texas Department of Community Affairs v. Burdine

,

101 S.Ct. 1089, 1094-95 (1981) (setting out the framework for

shifting the burden of proof in Title VII disparate impact cases).

In similar circumstances, other courts have found that the loss of

witness tes timony unduly prejudiced the defendant's ability to

defend itself against employment discrimination c harges. S ee,

e.g.

, Cleveland Newspaper Guild , 839 F.2d at 1154; EEOC v. Alioto

Fish Co.

, 623 F.2d 86, 88 n.3 (9th Cir. 1980); EEOC v. Fi restone

Tire & Rubber Co.

, 626 F.Supp . 90, 93 (M.D. Ga. 1985). We think

such is the case here and therefore find no error in the district

court's determination of prejudice.

C. Dismissal of Title VII Claims in Their Entirety

Plaintiffs argue that, even if it was not error for the

district court to apply the laches doctrine to their Title VII

claims, the district court nevertheless abused its di scretion by

dismissing those claims in their entirety. They contend that the

district court instead should have merely denied the award of back

pay for the period before November 29, 1989, the day suit was19 The 1977 EEOC charge complained, among other things, of

failure to post vacancies and "non-job-related educational

requirements" such as the requirement of a high school degree for

"promotion to the better paying positions of equipment operators

or other better jobs."

20 From 1975 to 1991, the percentage of Hispanics in the entire

CPS workforce increased from 36% to 53%. During the same period,

the percentage of Hispanic supervisors and foremen increased from

5% to 26%. There was undisputed evidence that the increase would

have been faster but for the fact that CPS had a very stable

workforce with very low turnover in these positions.

24 filed, because they have alleged that discrimination at CPS is

ongoi ng and submitted statistical proof to support their

allegations.

We are unpersuaded. As Plaintiffs acknowledge elsewhere in

their brief, Title VII requires that parties exhaust administrative

remedies before instituting suit in federal court. See 42 U.S.C.

§ 2000e-5(f)(1). The EEOC charges on which Plaintiffs' Title VII

claims are based relate to events that happened in 1976 and 1977.

Since then, as the magistrate judge found, the undisputed evidence

shows significant changes in CPS's workforce and employment

practices. In 1981, an affirmative action plan was adopted. In

1983, the CPS employment policy was revised to eliminate formal

educational requirements for promotion to foreman or supervisor.

CPS has thereafter used seniority in determining advancement. In

1986, CPS began posting job vacancies. 1 9 The percentage of

Hispanics in supervisory positions at CPS h as increased

considerably faster than the percentage of Hispanics in CPS's

entire workforce. 20

It is well-settled that courts have no jurisdiction to

consider Title VII claims as to which the aggrieved party has not25

exhausted administrative remedies. Tolbert v. United States , 916

F.2d 245, 247-48 (5th Cir. 1990) (per curiam). We have held that

" a judicial complaint filed pursuant to Title VII 'may encompass

any kind of discrimination like or related to allegations contained

in the charge and growing out of such allegation during the

pendency of the case before the Commission .'" S anchez v. Standard

Brands, Inc

., 431 F.2d 455, 466 (5th Cir. 1970) (emphasis added;

citation omitted). This is because "the civil action is much more

intimately related to the EEOC investigation than to the words of

the charge which originally triggered the inv estigation." I d

.

Other courts have expressed the same thought. "[The EEOC] charge,

enlarged only by such EEOC inves tigation as reasonably proceeds

therefrom, fixed the scope of the charging party's subsequent right

to institute a civil suit. The suit filed may encompass only 'the

discrimination stated in the charge itself or developed in the

course of a reasonable [EEOC] investigation of that charge." K ing

v. Seaboard Coastline R. Co

. , 538 F.2d 581, 583 (4th Cir. 1976)

(footnote and c itation omitted). S ee also Johnson v. General

Electric

, 840 F.2d 132, 139 (1st Cir. 1988); Oubichon v. North

American Rockwell Corp

., 482 F.2d 569, 571 (9th Cir. 1973) (suit

may include "reasonably related" noncharged "new a cts o ccurring

during the pendency of the charge before the EEOC ") (emphasis

added); Moore v. Sunbeam Corporation

, 459 F.2d 811, 826 & n.38, 828

(7th Cir. 1972); Smith v. Joseph Horne Co., Inc

., 438 F.Supp. 1207,

1213 (W.D. Pa. 1977); Hubbard v. Rubbermaid, Inc

., 436 F.Supp.

1184, 1190-91 , 1193-94 (D.C. Md. 1977); 2 Larson, E mployment

Discrimination § 49.11(c)(1) at 9B-16 ("if an [EEOC] investigation21 See also Equal Employment Opportunity Comm'n v. Alioto Fish

Co ., 623 F.2d 86 (9th Cir. 1980), in which the Ninth Circuit

upheld the dismissal on the basis of laches of a suit brought by

the EEOC itself. The Ninth Circuit rejected the argument that

the dismissal should not have extended to the request for

injunctive relief against discrimination allegedly continuing

when the suit was brought:

"The EEOC also seeks injunctive relief against an

alleged pattern and practice of discrimination that

continued up to the time the action was brought in

1976. Prejudice from unreasonable delay may also

hamper the defense of a claim alleging a pattern and

practice of discrimination and may justify dismissal of

an entire action. . . .

Such prejudice is particularly evident in this

case. The district court found that the employment

practices of Alioto and the local restaurant industry

had significantly changed since the time of . . . [the]

original charge. The defense to the claim of a pattern

and practice of discrimination would require much of

26 has actually been conducted, most courts hold that the scope of the

complaint is limited to the actual scope of the investigation").

Here, th e charges were filed in February 1977, the EEOC

undertook an investigation which was completed and resulted in an

October 31, 1979, determination letter. Conciliation was

attempted, but all such efforts were terminated by June 1980. Over

ten years after the investigation was completed, and after

substantial changes in CPS's employment practices and profile, this

suit was filed. As we have held, this delay was substantial,

i nexcusable, and prejudicial, so as to bar by laches Plaintif fs'

Title VII claims. In these circumstances, to allow the 1977

charges to be the basis of claims of current discrimi nation,

without new EEOC charges, would be to effectively read out of Title

VII the requirement of administrative exhaustion. This we decline

to do. 21the same unavailable evidence needed to defend the

original . . . charge . . . . The prejudicial delay by

the EEOC tainted the entire action and justified its

dismissal." Id . at 89 (footnote omitted).

27 III. Section 1981 Claims

As to Plaintiffs' section 1981 claims, CPS moved to dismiss

either on summary judgment or for failure to state a claim.

Because the magistrate judge went beyond the parties' pleadings to

examine the substantive evidence, the motion is treated as one for

summary judgment. S ee F ED .R.C IV .P. 12(b). We review a grant of

summary judgment de novo

. E xxon Corp v. Burglin

, 4 F.3d 1294, 1297

(5th Cir. 1993). We apply the same standard as did the district

court, that is, we will affirm if we find "that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." F ED .R.C IV .P. 56(c).

The moving party bears the initial burden of showing that

there is no genuine issue for trial; it m ay do so by "point[ing]

out the absence of evidence supporting the nonmoving party's case."

Latimer v. Smithkline & French Laboratories

, 919 F.2d 301, 303 (5th

Cir. 1990). To withstand a properly supported motion for summary

judgment, the nonmoving party must come forward with evid ence to

support the essential elements of its claim on which it bears the

burden of proof at trial. C elotex Corp. v. Catrett

, 106 S.Ct.

2548, 2552 (1986). If a rational trier could not find for the

nonmoving party based on the evidence presented, ther e is no

genuine issue for trial. M atsushita Elec. Indus. Co. v. Zenith

Radio Corp.

, 106 S.Ct. 1348, 1355-56 (1986). We consider all

evidence in the light most favorable to the nonmoving party.28

Lavespere v. Niagara Machine & Tool Works, Inc.

, 910 F.2d 167, 178

(5th Cir. 1990), cert. denied

, 114 S.Ct. 171 (1993). Conclusory

allegations unsupported by specific facts, however, w ill not

prevent an award of summary judgment; "the plaintiff [can]not rest

on his allegations

. . . to get to a jury without `any significant

probative evidence tending to support the complaint.'" A nderson v.

Liberty Lobby, Inc. , 106 S.Ct. 2505, 2510 (1986) (citation

omitted).

On June 15, 1989, the Supreme Court held that section 1981's

guarantee of the right to make contracts did not extend to conduct

occurring after the employer-employee contract was formed.

Patterson v. McLean Credit Union

, 109 S.Ct. 2363, 2372 (1989).

Specifically, claims of discriminatory promotion practices were

cognizable under section 1981 "[o]nly where the promotion rises to

the level of an opportunity for a new and distinct relation between

the employee and the employer . . . ." Id. at 2377. At the time

Plaintiffs filed suit on November 29, 1989, therefore, this was the

rubric under which their claims were to be analyzed.

In the Civil Rights Act of 1991, enacted November 21, 1991,

Congress legi slatively reversed P atterson. Section 1981 now

specifically states that, "[f]or purposes of this section, the term

`make and enforce contracts' includes the making, performance,

modification, and termination of contracts, and the enjoyment of

all benefits, privileges, terms, and conditions of the contractual

relationship." 42 U.S.C. § 1981(b). However, this section is not

to be given retroactive effect. Rivers v. Roadway Express, Inc.,

114 S.Ct. 1510 (1994); Johnson v. Uncle Ben's, Inc.

, 965 F.2d 1363,22 The district court correctly applied Texas's two-year

statute of limitations period to Plaintiffs' section 1981 and

section 1983 claims. Price v. Digital Equipment Corp. , 846 F.2d

1026, 1028 (5th Cir. 1988) (section 1981); Peter Henderson Oil v.

City of Port Arthur, Texas , 806 F.2d 1273, 1274-75 (5th Cir.

1987) (section 1983).

29 1374 (5th Cir. 1992), cert. denied , 114 S.Ct. 1641 (1994).

The only issue before us, therefore, is whether the district

court erred in its application of Patterson to Plaintiffs' section

1981 claims. The magistrate judge found Plaintiffs' pleadings

inadequ ate to state a cause of action under section 1981.

Moreover, he reviewed the summary judgment evidence and concluded

that Plaintiffs could not maintain a class claim under section 1981

because their evidence showed only two class members whose claims

conceivably showed a denial of promotion within the statute of

limitations. 22 He therefore recommended that further leave to amend

the complaint be denied.

Plaintiffs contend their evidence satisfies the Patterson

standard. We disagree. The guiding principles in this area are

well-established: "`[R]outine increases in salary and

responsibility which are clearly part of an origi nal contract of

employment' do not signal a new employment relation. `It would be

very odd to regard each rung on the career ladder as a di fferent

employment relation.'" U ncle Ben's , 965 F.2d at 1370 (citations

omitted; alteration in original). The job descriptions that

Plaintiffs offer to prove their section 1981 claims show no more

than an orderly increase in salar y, skill level, and

responsibilities. Laborers are distinguished from workers in the

better-paying manual occupations at CPS, including the foreman and23 The job descriptions on which Plaintiffs rely clearly show

this progression. "Laborers (unskilled)" are categorized as

"[w]orkers in manual occupations which generally require no

special training . . . ." At the next level are "Operatives

(semiskilled)" whose duties are to "operate machine or processing

equipment or perform other factory-type duties of intermediate

skill level which . . . require only limited training." At the

top of the progression are "Craft Workers (skilled)," described

as "[m]anual workers of relatively high skill level having a

thorough and comprehensive knowledge of the processes involved in

their work. . . . [U]sually receive an extensive period of

training." Foremen and supervisors are included in the Craft

Worker category.

30 supervisor positions to which Plaintiffs specifically allege they

are denied access, by level of training and experience. 23 S ee id.

at 1371 ("Attainment of supervisory status does not alone create a

new and distinct employment relation.

. . . [T]he c hange from a

non-supervisory to a supervisory position does not suffice by

itself to create a new employme nt relation."). Nothing in

Plaintiffs' evide nce indicates that the denial of the promotions

they sought amounted to a denial of the opportunity to form a new

and distinct employment relationship.

Further, Plaintiffs have failed to offer evidence that CPS

intentionally discriminated against them . Such proof is an

essential element of a claim for relief under section 1981.

General Building Contractors Assn, Inc. v. Pennsylvania

, 102 S.Ct.

3141, 3150 (1 982). Plaintiffs have produced no summary judgment

evidence of intentional discrimination within the limitations

period. Finally, the summary judgment evidence showed no claimed

discriminatory acts within the limitations period respecting either

of the two individual class representatives, Diaz and Gaona. As

noted below, the district court did not abuse its discretion in31

denying class certification.

Plaintiffs also argue that they were given inadequate

opportunity for discovery in order to respond to CPS's summary

judgment motion. Although the basis of Plaintiffs' contention is

somewhat unclear, their argument is unavailing in any event.

There are two possible bases fo r Plaintiffs' contention in

this regard. First, Plaintiffs direct us to their response to

CPS's motion to dismis s or for summary judgment, in which

Plaintiffs argued, in the alte rnative, that they be allowed a

continuance to conduct additional discovery pursuant to Rule 56(f).

This response was filed on March 21, 1990. Discovery did not close

until September 3, 1990. The district court's decision to allow a

continuance under Rule 56(f) is rev iewed only for abuse of

discretion. S EC v. Recile

, 10 F.3d 1093, 1 098 (5th Cir. 1993).

Given the conclusory nature of Plaintiffs' request for continuance,

as well as the more than adequate time between the request and the

close of discovery, the district court did not abuse its discretion

in denying the motion. S ee id. ("[T]he request need not be

granted when the party opposing the motion `simply rel[ies] on

vague assertions that additional discovery will produce needed, but

unspecified facts,' particularly when `ample time and opportunities

for d iscovery have already lapsed.'") (footnotes and citations

omitted; second alteration in original).

Second, Plaintiffs find error in the denial of their motion to

reopen discovery, filed December 23, 1991. The stated purpose of

this motion was to allow Plaintiffs further discovery in light of

the adoption of the Civil Rights Act of 199 1

. Because, as32

discussed above, the Act does not apply to this case, the district

court's decision to deny the motion was, at most, harmless error.

We will not consider other bases for reopening discovery that were

not urged before the district court. S ee Alford v. Dean Witter

Reynolds, Inc. , 975 F.2d 1161, 1163 (5th Cir. 1992).

We affirm the dismissal without prejudice of Plaintiffs'

section 1981 claims.

III. Section 1983 Claims

The magistrate judge recommended dismissal without prejudice

of Plaintiffs' section 1983 claims sua sponte

, reasoning that

Plaintiffs' proof of these claims was insufficient to justify class

treatment. The district court agreed. We could consider this

issue waived on appeal because Plaintiffs have failed to adequately

brief it. L & A Contracting v. Southern Concrete Services , 17 F.3d

106, 113 (5th Cir. 1994). In any event, the record not only amply

supports the district court's decision but also contains adequate

independent bases that justify affirmance. S ee Chauvin v . Tandy

Corp. , 984 F.2d 695, 697 (5th Cir. 1993).

Plaintiffs have neither pleaded nor offered proof of crucial

elements of a section 1983 cause of a ction. To prove a cause of

action under section 1983 based on a violation of equal protection,

Plain tiffs are required, as under section 1981, to demonstrate

intentional discrimination; mere disparate impact will not suffice.

Washington v. Davis , 96 S.Ct. 2040, 2047 (1976). Plaintiffs have

offered no such sufficient evidence as to any actions within the

limitations period. Moreover, the summary judgment record shows no

claimed discriminatory acts within the limitations period24 Although the district court did not address Plaintiffs'

arguments with respect to class certification of their Title VII

claims, it would be pointless to remand this issue for further

consideration when we have already decided that the decision to

33 respecting either of the individual class representatives, and, as

below noted, the district court did not abuse its discretion in

denying class certification. Finally, a municipality such as the

City of San Antonio cannot be held vicariously liable for the

constitutional violations of its employees; to recover, Plaintiffs

must demonstrate that CPS maintained an official policy or custom

of discrimination. M onell v. Depart ment of Social Services , 98

S.Ct. 2018, 2037-38 (1978); Hamilton v. Rodgers

, 791 F.2d 439, 443

(5th Cir. 1986). This Plaintiffs have not done.

We therefore affirm t he dismissal without prejudice of

Plaintiffs' section 1983 claims.

IV. Texas Constitutional Claims

Plaintiffs alleged violations of the Texas constitution's due

course of law, T EX

. C ONST

. art. 19, § 1, a nd equal protection

provisions. Id. art. 1, § 3a. Because we find that the district

court properly dismis sed all Plaintiffs' federal claims prior to

trial, dismissal of their pen dant state law claims without

prejudice was well within the district court's discretion. Welch

v. Thompson , 20 F.3d 636, 644 (5th Cir. 1994).

V. Denial of Class Certification

The district court denied class certification as to the

section 1981, section 1983, and state law claims on the ground that

the putative clas s did not satisfy the numerosity requirement of

Rule 23(a)(1). 24 To satisfy the requirements of Rule 23, Plaintiffsdismiss the Title VII claims on the basis of laches was correct.

25 The magistrate judge correctly noted that the filing of the

putative class action tolls the running of limitations for all

purported class members. American Pipe and Construction Co. v.

Utah , 94 S.Ct. 756, 765-66 (1974). The Texas tolling rule, as

applicable here under Board of Regents v. Tomanio , 100 S.Ct.

1790, 1795 (1980), is the same. Grant v. Austin Bridge

Construction Co ., 725 S.W.2d 366, 370 (Tex. App. SQ Houston [14th

Dist.] 1987, no writ). After class certification is denied,

class members may choose to file their own suits. Crown, Cork &

Seal Co. v. Parker , 103 S.Ct. 2392, 2397-98 (1983).

26 One of these, Barba, claimed denial of opportunity for a

trainee position, but the magistrate judge noted that "Barba's

affidavit contains no facts suggesting, and does not even

generally allege, that he has been denied a trainee position

because of his race." As to the other, Raymond, who claimed she

was denied a clerk job, the magistrate judge noted her statement

that "I am part of this lawsuit because I think I am a victim of

sexual harassment."

34 must demonstrate that "the class is so numerous that joinder of all

members is impracticable." F ED .R.C IV .P. 23(a)(1). The magistrate

j udge found only eleven putative class members who complained of

events occurring within the two-year statute of limitations; these

eleven did not include the named individual class representatives,

Diaz and Gaona. 25 Moreover, of the eleven claims within the twoyear period, only two even arguably concerned denial of promotion

or of initial placement on a promotion "track." 26 We review the

district court's decision to deny class certification for abuse of

discretion. W alker v. Jim Dandy Co.

, 638 F.2d 1330, 1334 (5th Cir.

1981).

Plaintiffs argue that the district court erred beca use the

class they propose to represent SQ al l past, present, and future

employees of CPS's Gas and General Construction and Gas Operations

Departments SQ

does satisfy the numerosity requirement. As discussed27 Boykin v. Georgia Pacific Corp ., 706 F.2d 1384 (5th Cir.

1983), cert. denied , 104 S.Ct. 399 (1984), is inapposite. That

was a Title VII case, in which none of the potential claims were

barred by limitations or laches. We stated that the fact that

the presumptively appropriate minority share of promotions was

only twenty during the relevant period (none of which were filled

with minorities) did not preclude the requisite numerosity as the

largely statistically proved complaint included claims of all

those who were intiially denied preferable jobs and it was

impossible to identify which of those would have received the

theoretically appropriate twenty promotions. Here, by contrast,

all Title VII claims in this suit are barred. All other claims

arising before November 29, 1987, are also barred, and any

thereafter are restricted to intentional discrimination. Of the

latter, there are at most only eleven, and of these only two are

arguably promotion or promotion track claims (out of a workforce

of over three thousand).

35 above, Plaintiffs cannot rely on disparate impact analysis to prove

their section 1981 and section 1983 claims; they must show that CPS

had the intent to discriminate. The relevant inquiry is the number

of class members who can complain of particular acts demonstrating

such intentional discrimination. Putative class members whose

grievances are barred by the statute of limitations or who cannot

allege specific instances of discrim ination within the relevant

time frame cannot be counted toward computation of t he class.

Because only eleven putative class members could comp lain of

probative events within the statute of limitations, the district

court correctly denied class certification. 27

Conclusion

For these reasons, the judgment of the district court is

AFFIRMED.