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 and 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 alien workers on the basis of their national origin in hiring, promotion, discipline, and other terms and conditions of employment.
Facts and Proceedings Below
Although 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 the EEOC, alleging that CPS discriminated against Mexican-Americans and Mexican aliens in hiring, promotion, job classification, and other terms and conditions of employment.
Although Plaintiffs retained counsel to represent them in August 1980 and have been represented by counsel continuously since that time,
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, CPS 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 the 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 filing 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 motion 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 not 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"
The magistrate judge also recommended that any request 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 state a claim, but that the summary judgment evidence established 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—Alejandro Ramirez and Jesse Tello—as to whom the responses could be construed to allege a denial of promotion within the applicable statute of limitations. 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 which they were allegedly denied promotion created a new and distinct relationship with the employer. In contrast, the magistrate judge noted that CPS 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 within the two-year statute of limitations, the magistrate judge found that one of the affiants complained primarily of sexual harassment, not national origin discrimination, and that the other failed to show that the promotion he was denied would have created a new and distinct employment relationship.
Finally, with regard to Plaintiffs' motion for class certification, the magistrate judge found that there were only eleven putative class members whose claims of discrimination
Over Plaintiffs' objections, the district court adopted the magistrate 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.
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." Anastasiadis v. S.S. Little John, 339 F.2d 538, 539 (5th Cir.1964). In the present case, 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 amended complaint. We are unpersuaded by this 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. Id. 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 final. Id. 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.
Because the district court's judgment disposed of all live issues then before it, we held that it was an appealable final judgment. Id.
Vaughn is directly applicable here. Plaintiffs' invocation of Title VI in their lengthy second amended complaint is properly characterized as passing at best.
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,
Given these circumstances, we think it reasonable to infer that the district court did not believe Plaintiffs had asserted a claim under Title VI. Cf. In re Pan American World Airways, Inc., 905 F.2d 1457, 1462 (11th Cir.1990) ("[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.") (footnote omitted). In disposing of all Plaintiffs' other claims, therefore, the district court undoubtedly believed that it was disposing of the entire case before it. As in Vaughn, "[n]othing in the district court's disposition suggested that judgment was incomplete. Indeed, the judge closed the case. The clerk ... entered 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 jurisdiction 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 Title VI issue in their original briefs.
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 to pursue before the district court. Nor does the fact that Plaintiffs' case was disposed of on summary judgment change our conclusion.
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 determination 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 styled as a motion to dismiss. Because the district court was required 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 distinction does not affect Plaintiffs' argument, however, since the standard of review of a grant of summary judgment is also de novo.
It is settled that a district court enjoys considerable discretion in deciding whether to apply the doctrine of laches to claims pending before it. Kennedy v. Electricians Pension Plan, 954 F.2d 1116, 1121 (5th Cir.1992). The issue before us is to 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 undisputed 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 court had abused its discretion in applying the doctrine of laches. In Powell v. City of Key West, Florida, although "[r]ecognizing full well that the defense of laches is one that is addressed largely to the discretion of the trial court," we nevertheless held that the granting of 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 movants' affidavits,
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 Albertson 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 judgment motion were undisputed. Id. 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 record, id. 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 the abuse of discretion standard. 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 to 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, 472 U.S. 1021, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985). The defense consists of three elements: (1) a delay on the part of the plaintiff in instituting suit; (2) that is not excused; and (3) that results in undue prejudice to the defendant's ability to present an adequate defense. Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir.1985).
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, this bar arises only if the EEOC has delayed unreasonably after it has
The magistrate judge found, and the district court agreed, that Plaintiffs' delay in bringing suit was not excused. The magistrate judge based his 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 180 days following filing of the EEOC charges; (4) Plaintiffs did not at any time from 1980 to 1989 make any 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. Second, Plaintiffs contend, in effect, that 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.
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, the record merely indicates that the attorney "was eventually suspended from the practice of law" (emphasis added); it does not indicate when 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.
Also significant in this respect is the ongoing and direct involvement of the union, which purports to represent Plaintiffs' interests 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, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 234 (1988). Plaintiffs have not argued that the union did not know of its right
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.
To support a determination of laches, there must be more than simply an inexcusable delay; the party asserting laches must also establish that it has been prejudiced by the delay, that is, that the delay has "cause[d] a disadvantage in asserting and establishing a claimed right or defense." Matter of Bohart, 743 F.2d 313, 327 (5th Cir.1984). The requirement of demonstrating prejudice dovetails with the equitable nature of laches as a doctrine "designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (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:
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 the magistrate judge's report and its findings and conclusions, Plaintiffs are now barred from challenging the prejudice determination as to alleged discrimination prior to November 29, 1989, absent a showing of plain error or manifest injustice. See, e.g., Nettles v. Wainwright, 677 F.2d 404, 410 & n. 8 (5th Cir.1982); Partfait 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). See also 28 U.S.C. § 636(b)(1); Western District of Texas Local Rule 4(b). We find no plain error or 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 hiring 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.
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 prima facie case of discrimination; they do nothing to alleviate the prejudice to CPS in attempting to articulate legitimate, nondiscriminatory reasons to rebut any inference of discrimination these records might raise. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-57, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (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 testimony unduly prejudiced the defendant's ability to defend itself against employment discrimination charges. See, 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. Firestone 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 discretion 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 was filed, because they have alleged that discrimination at CPS is ongoing 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.
It is well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not 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.'" Sanchez 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 investigation." Id. Other courts have expressed the same thought. "[The EEOC] charge, enlarged only by such
Here, the 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, inexcusable, and prejudicial, so as to bar by laches Plaintiffs' Title VII claims. In these circumstances, to allow the 1977 charges to be the basis of claims of current discrimination, without new EEOC charges, would be to effectively read out of Title VII the requirement of administrative exhaustion. This we decline to do.
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. See Fed. R.Civ.P. 12(b). We review a grant of summary judgment de novo. Exxon 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." Fed.R.Civ.P. 56(c).
The moving party bears the initial burden of showing that there is no genuine issue for trial; it may 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 evidence to support the essential elements of its claim on which it bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If a rational trier could not find for the nonmoving party based on the evidence presented, there is no
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, 491 U.S. 164, 175-77, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 (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 185-86, 109 S.Ct. 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 legislatively reversed Patterson. 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., ___ U.S. ___, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1374 (5th Cir.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 1641, 128 L.Ed.2d 362 (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 inadequate 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.
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 original 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 different employment relation.'" Uncle 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 salary, skill level, and responsibilities. Laborers are distinguished from workers in the better-paying manual occupations at CPS, including the foreman and supervisor positions to which Plaintiffs specifically allege they are denied access, by level of training and experience.
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, 458 U.S. 375, 390-92, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). 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 in 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 for Plaintiffs' contention in this regard. First, Plaintiffs direct us to their response to CPS's motion to dismiss or for summary judgment, in which Plaintiffs argued, in the alternative, 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 reviewed only for abuse of discretion. SEC v. Recile, 10 F.3d 1093, 1098 (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. See 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 discovery 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 1991. Because, as 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. See 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.
IV. 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. See 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 action. To prove a cause of action under section 1983 based on a
We therefore affirm the dismissal without prejudice of Plaintiffs' section 1983 claims.
V. Texas Constitutional Claims
Plaintiffs alleged violations of the Texas constitution's due course of law, Tex. Const. art. 1, § 19, and equal protection provisions. Id. art. 1, § 3a. Because we find that the district court properly dismissed all Plaintiffs' federal claims prior to trial, dismissal of their pendent state law claims without prejudice was well within the district court's discretion. Welch v. Thompson, 20 F.3d 636, 644 (5th Cir.1994).
VI. 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 class did not satisfy the numerosity requirement of Rule 23(a)(1).
Plaintiffs argue that the district court erred because the class they propose to represent—all past, present, and future employees of CPS's Gas and General Construction and Gas Operations Departments—does satisfy the numerosity requirement. As discussed 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
For these reasons, the judgment of the district court is
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).
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.
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.