Holly W. BAUMAN Et Al., Petitioners, v. UNITED STATES DISTRICT COURT, Respondent, Union Oil Company, Real Party in Interest

Bauman and Espinóla, plaintiffs in a sex-discrimination-in-employment suit brought against Union Oil Company under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., moved the district court to certify their action as a class action pursuant to Rule 23(b)(2), Fed.R.Civ.P. Pursuant to Rule 23(c)(1) and (d)(2), the court conditionally certified the class, ordered the plaintiffs to “give individual notice to- all class members identifiable through reasonable effort,” and prescribed the contents of the notice. Bauman and Espinóla (hereafter referred to jointly as Bauman) thereupon petitioned this court for a writ of mandamus commanding the district court to modify portions of its order. We decline to issue the writ.

I

In 1973, Bauman filed a complaint against Union Oil, alleging that the company’s employment practices in its San Francisco and Sacramento offices regarding hiring, promotion, compensation, discipline, termination and pregnancy leave violated Title VII’s proscriptions of sex-based discrimination in employment. The complaint sought injunctive and other equitable relief and back-pay. On October 17, 1975, Bauman moved for an order certifying the action as…

specially concurring:

On the sole ground that petitioners have an alternative remedy to their petition for an extraordinary writ by way of an interlocutory appeal, I concur in the majority’s conclusion that mandamus is inappropriate. I cannot join in the rationale of the majority opinion because, in my view, it rests upon a mischaracterization of the order which is before us.

The majority construes Judge Conti’s notice order as if it provided that class members who do not respond to the notice will not be excluded from the class and that nonresponses will not be used to decide that Fed.R.Civ.P. 23(a)(l)’s numerosity requirement has not been met. The language of the order itself, together with Judge Conti’s own explanation of his order, forbids that generous construction. Silence, or nonresponse, by members of the class means exclusion from the class. The order states, inter alia, that “. . . notice should include a provision that the member can opt out, if they so desire to opt out. If they want to stay in, then they should give a short statement of what the discrimination against them has been.” Judge Conti admits to this interpretation of his order in his own explanation of…

557 F.2d 650 15 Fair Empl.Prac.Cas. 279 , 14 Empl. Prac. Dec. P 7700 Holly W. BAUMAN et al., Petitioners, v. UNITED STATES DISTRICT COURT, Respondent, Union Oil Company, Real Party in Interest. No. 76-2156. United States Court of Appeals, Ninth Circuit. July 1, 1977. Marcy C. Dunlap, Nancy L. Davis, Joan Messing Graff, Wendy W. Williams, Equal Rights Advocates, San Francisco, Cal., submitted for petitioners. James L. Browning, Jr., U. S. Atty., San Francisco, Cal., submitted for respondent. 1 Robert S. Daggett, Brobeck, Phleger & Harrison, San Francisco, Cal., for real party in interest. 2 Vera Winter Lee, Equal Employment Opportunity Commission, San Francisco, Cal., for intervenors. 3 Susan J. Johnson, Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae. 4 Petition for Writ of Mandamus from the United States District Court for the Northern District of California. 5 Before HUFSTEDLER, GOODWIN and WALLACE, Circuit Judges. WALLACE, Circuit Judge: 6 Bauman and Espinola, plaintiffs in a sex-discrimination-in-employment suit brought against Union Oil Company under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., moved the…