               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 99-20547


ROBERT L. MOORE; CHESTER R. YOUNG;
LINDA BAKER; ROYAL R. ASTHTON;
DAVID HOLLINS; RANDALL BYRD;
LEON BRICE; RONNIE HUDNALL,
                                                 Plaintiffs-Appellants,

WADE BROOKS,
                                     Intervenor Plaintiff-Appellant,

ANNIE M. KELLY,
                                                             Appellant,

CHRISTOPHER G. LATSON,
                                                       Movant-Appellant

                                versus

JAMES A. LYNAUGH, individually and
in his official capacity as the
Director of the Texas Department
of Criminal Justice;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
                                            Defendants-Appellees.




          Appeal from the United States District Court
               For the Southern District of Texas
                          (H-88-CV-295)


                           October 12, 2000

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     *
       Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
                                         I

      After years of pretrial discovery and motions practice, the

common jousts by able lawyers, this case, though complicated below,

reaches this court with relatively straightforward controlling

issues. We ultimately find no error in the district court’s denial

of   class   certification    and    disposition      of   individual     claims

following a bench trial.

      The appeal arises out of Title VII, § 1981, and claims brought

by black correctional officers employed by the Texas Department of

Criminal Justice.         The eleven plaintiffs complained of a wide

variety of conduct by superiors at the Department, including denied

promotions, unjustified suspensions or terminations, racial slurs,

inferior postings, and segregated housing.                 They argued that

subjective criteria were used to make promotion decisions and that

black corrections officers were wrongly denied promotions; that

statistically, black corrections officers were disciplined and

terminated at a dramatically higher rate than white or Hispanic

officers; that black officers were given posts that were more

dangerous    and   less   likely    to   lead   to   promotions;   that    black

officers were given living quarters of lesser quality than those

given to white and Hispanic officers; and that black officers were

subjected to a racially hostile work environment, including the




under the limited circumstances set forth in 5th Cir. R. 47.5.4.

                                         2
frequent use of derogatory racial terms and the leaving of Ku Klux

Klan literature at officers' posts.

     The plaintiffs initially sought to intervene in the Cirillo

class action.     After the claims of the black plaintiff, David

Jones,   were   severed   from   Cirillo,   the   plaintiffs   sought   to

intervene in the Jones class action.        The Cirillo and Jones cases

were pending in the same court.         After intervention in these

pending class actions was denied, the court denied independent

certification of the Moore class and tried the claims individually

in a bench trial.   The court denied the plaintiffs’ claims in a 76-

page opinion, and the plaintiffs timely appealed.

                                   II

                                    1

     The Moore plaintiffs raise several arguments that have no

dispositive effect on the case, as we will explain.       They make two

objections to the district court’s holding that most of their Title

VII claims were time-barred: that they had 300 days, not 180 as the

district court ruled, to file an EEOC charge after an adverse

employment action; and that the district court erred in holding

that the plaintiffs’ claims were untimely because they had not

filed within 90 days of the denial of their motion to intervene in

a pending class action.1    They also argue that their § 1981 claims

were improperly dismissed.

     1
      The district court initially ruled in favor of plaintiffs on
this issue but reconsidered the issue sua sponte after trial.

                                    3
       The    problem     with    both   timeliness      arguments      is    that   the

district court’s opinion notes the timing issues but goes on to

address each of the plaintiffs’ claims on the merits.                        Prevailing

on these issues thus would not change the outcome of the case.

       The court found that the claims of four of the plaintiffs were

time-barred.2       The court did not base its conclusion on the 180 day

time       limit   for   filing    an    EEOC    charge.       Instead,      the   court

determined that the claims of these plaintiffs, who had already

received right-to-sue letters from the EEOC, were time-barred

because they failed to file suit within 90 days after their motion

to   intervene      in   another    suit,       Cirilo   v.    Texas   Department     of

Corrections, No. TY-77-12-CA, was denied.                     The filing of a class

action tolls the limitations period for members of the putative

class until class certification is denied, at which time plaintiffs

have 90 days to file suit.3             Since these four plaintiffs sought to

intervene in the Cirilo class action and were not permitted to do

so,4 the district court properly concluded that their claims were

time-barred once they failed to file suit within 90 days of that

       2
        Plaintiffs Moore, Ashton, Hollins, and Brice.
       3
      See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354
(1983).
       4
      The Cirilo court denied the Moore plaintiffs' motion to
intervene when the Cirilo class was redefined to include two
subclasses: one of Mexican-American plaintiffs who alleged a
hostile work environment and discriminatory hiring practices based
upon their national origin, and a second subclass of black
applicants who alleged that they were not hired by the Texas
Department of Criminal Justice on account of their race.

                                            4
denial.    Whether the district court erred in applying a 180-day

limitations period for filing an EEOC charge is irrelevant to these

plaintiffs' claims, since the court found that they had received

right-to-sue letters but failed to file suit within the 90 period

following the denial of their motion to intervene in the Cirilo

class action.

                                  2

     The plaintiffs argue that the limitations period continued to

be tolled because they attempted to intervene in another pending

class action, Jones v. Texas Dep't of Corrections, No. TY-87-364.

The district court correctly concluded that the plaintiffs could

not use both class actions to toll the running of the limitations

period for filing suit. This court has previously refused to allow

a putative class to "piggyback" one class action upon a previous

one in an effort to continue to toll the limitations period for a

Title VII suit, reasoning that the practice would be too easily

abused.5   Here, the Moore plaintiffs believed they could continue

to toll the limitations period as they shopped for a pending class

action rather than file their own, and the district court properly

rejected their effort to do so.   The plaintiffs argue that they did

not try to "piggyback" two identical class actions, since Cirillo

and Jones were different suits with different issues. However, the

Moore plaintiffs were the same group of plaintiffs with the same

     5
      See Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765
F.2d 1334, 1351 (5th Cir. 1985).

                                  5
issues on each motion to intervene, and the district court properly

applied the reasoning of Salazar-Calderon to conclude that the

Moore    plaintiffs      could   not   toll      the     limitations    period    in

successive motions to intervene in pending class actions.

     In any event, the court considered and rejected their claims

on the merits.     Similarly, the district court addressed the merits

of the plaintiffs’ claims regarding denied promotion, which Moore

contends    were   actionable      under     §   1981.      The   district     court

concluded that none of the plaintiffs was denied a promotion based

on race.

                                       III

     The Moore plaintiffs also argue that the district court erred

in failing to address their § 1983 claims.                Plaintiffs may sue both

under § 1983 and Title VII if the employer’s conduct violates a

separate constitutional right in addition to Title VII.6 Recently,

this court reaffirmed that Title VII and § 1983 are not mutually

exclusive remedies, and that a plaintiff may pursue claims under

both statutes.7

     None    of    the   court’s    orders       issued    throughout    the    case

reference a § 1983 claim, but the introductory paragraph of the

final order of the district court recites that the plaintiffs


     6
      See Johnston v. Harris County Flood Control Dist., 869 F.2d
1565, 1753 (5th Cir. 1989).
     7
      See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539,
548-49 (5th Cir. 1997).

                                        6
alleged, inter alia, violations of the Equal Protection Clause.

The order does not address any claim brought under § 1983.   We have

reviewed the pretrial order and briefs to the District Court.    We

are persuaded that no claim under 42 U.S.C. § 1983 was filed or

presented.

                                IV

     Moore argues that the plaintiffs were erroneously denied a

jury trial.   Where a plaintiff brings both §1981 claims and pre-

1991 Title VII claims, a jury must decide the § 1981 claims before

the court hears the Title VII claims.8   The plaintiffs assert that

they were denied a jury trial over their protest, and that the

court gave as its reason for the denial that it did not want to

waste a day on voir dire.    The Department argues that the Moore

plaintiffs agreed to a bench trial below and complain only now that

they wanted a jury trial.   We have reviewed the record, including

the transcript of the docket call proceedings of April 19, 1998.

We are persuaded that any rights to a jury trial were waived.    If

the district court decided there in a way that it is clear that the

claim would not have survived a motion for directed verdict, there

is no prejudice even if there was no waiver of a jury.

                                 V

     The district court refused to certify the requested class

because it concluded that the named plaintiffs could not adequately


     8
      See Lytle v. Household Mfg, Inc., 494 U.S. 545, 550 (1990).

                                 7
represent the interests of the proposed class, commonality and

typicality were not met, and the geographic and temporal scope of

the alleged events were overbroad.

     Class certification in an employment discrimination suit is

not proper where the named plaintiff did not suffer the same type

of injury as other members of the proposed class.9          The court

determined that the named representatives lacked standing to pursue

the claims of members of the proposed class.      To possess standing,

plaintiffs, as a class, must have suffered the type of injury for

which they seek to recover; membership in a common racial, ethnic

or economic group is insufficient.10    Having suffered injury is not

sufficient to create standing to press claims for a qualitatively

different kind of injury.11    The district court determined that the

proposed class should not be certified because its members suffered

different injuries.      Some alleged that     they were not promoted

because of discriminatory practices in promotion.      Others claimed

that they were targeted for discipline by superiors because of

their race.      All complained of a racially hostile environment at

the Retrieve unit around 1985 to 1987.       The court determined that

the plaintiffs sought to represent all black corrections officers

in TDCJ, but that the plaintiffs had not suffered injuries of the

     9
      See General Telephone Co. of the Southwest v. Falcon, 457
U.S. 147, 157 (1982).
     10
          See Warth v. Seldin, 422 U.S. 490, 502 (1975).
     11
          See Blum v. Yaretsky, 457 U.S. 991, 1001-02 (1982).

                                   8
type they claimed to be suffered by black corrections officers

throughout TDCJ.

       The plaintiffs argue that the district court improperly based

its denial of class certification on the merits of their claims.

The    trial      court       may    determine       whether      the    named    class

representative         suffered      an   injury   that    gave    him   standing      to

represent the class.12 The court determined that the plaintiffs had

not suffered injuries of the type they sought to represent.                           For

example, plaintiff Hall admitted that his scores on qualifying

examinations for electrical and pluming maintenance jobs were low,

and he was promoted to food service manager, which was outside the

proposed plaintiff class of security employees.                     Latson admitted

that he never applied for a promotion.                 Moore sought to skip from

guard to lieutenant without working as a sergeant and that he later

stopped applying for promotions, although application was required.

Plaintiff Hudnall, who was terminated, had a long history of

disciplinary        actions     taken      against     him.       Plaintiff      Kelley

complained that she was denied promotions to various positions,

none    of     which   were    the    correctional      positions       sought   to    be

represented       by    the    proposed     class.        Furthermore,     the   court

determined that while the complaints of the plaintiffs were limited

to 1985-1987 at the Retrieve unit of TDCJ, the class they sought to

represent expanded into the past and future, and included 48 penal


       12
            See Johnson v. Rodriguez, 110 F.3d 299, 315 (5th Cir. 1997).

                                            9
institutions and 6 detention centers, with which the plaintiffs had

no connection.     Rather than reaching the merits of their claims,

the district court properly determined that these plaintiffs were

not able to adequately represent the interest of the proposed class

of black corrections officers because they had not suffered injury

to their interests in promotions within that class; that this was

an   effort   to   proceed   as    an        “across    the   board”    claim   of

discrimination.    We find no error in the denial of certification

and no abuse of discretion.

                                        VI

     (i) Robert L. Moore

     Moore    raises   several    challenges       to   the   district    court’s

resolution of the Title VII claims.              Moore appeals the district

court’s holding that the plaintiffs’ claims of segregated housing

and other discrimination were not actionable under Title VII

because there was no ultimate employment decision.                     Moore also

challenges the district court’s factual findings on the plaintiffs’

claims of hostile work environment and retaliation.13

     Moore presents no facts or argument explaining which factual

conclusions of the district court were in error.                Moore does not

     13
      Moore also disputes the standard applied for burden-shifting
purposes, arguing that direct evidence was presented that makes the
McDonnell Douglas test inapplicable. The plaintiffs correctly note
that McDonnell Douglas burden shifting is inappropriate in cases in
which the plaintiff relies on direct evidence of discrimination.
See Brady v. Fort Bend County, 145 F.3d 691, 711 (5th Cir. 1998).
Since the plaintiffs relied on circumstantial evidence of
discrimination, the district court did not err.

                                        10
confront   the   district   court’s     conclusion      that   the   employment

actions taken against the plaintiffs were based on infractions of

rules, such as failing to fire at escaping inmates, betting with

inmates,   or    stopping   at    a   guard’s   house    in    the   course   of

transporting an inmate.          Moore also presents no rebuttal to the

district court’s conclusion that the incidents of racial slurs and

Ku Klux Klan pamphleting were not sufficiently pervasive and were

counteracted by steps taken by the Department.

     (ii) Chester R. Young

     Young claimed that he was not promoted to various jobs as a

mechanic or in food service, but that white employees were given

those positions rather than he because he was black.                  Testimony

from Carol Jones of TDCJ's human resources department showed that

Young did not apply for most of the positions about which he

complained and that he was not qualified for the positions or less

qualified that the candidate selected.               The court also found

misrepresentations and inconsistencies on the applications that

Young filed.

     Young claims that he was subjected to a racially hostile work

environment, with Ku Klux Klan literature found at his posts and

hearing racially derogatory terms used. The court found that Young

was not subjected to a racially hostile work environment because

the incidents were not sufficiently severe or pervasive to be

actionable.

     (iii) Linda Baker

                                       11
     Baker filed her EEOC charge November 20, 1987, so her claims

of discriminatory failure-to-promote in 1984 and 1985 were not

timely asserted, since these were more than 300 days prior to the

filing of her charge of discrimination.                       Baker was terminated

October    12,   1987.       She     claimed     that   her    termination    was    in

retaliation for her complaints of discrimination.                        The district

court found that Baker was terminated because four inmates escaped

near her post and she made no effort to prevent their escape, for

example, by firing her weapon as authorized to prevent escapes.

Furthermore, Baker had a long history of disciplinary actions taken

against her.          Baker argues that white officers had not been

terminated because of escapes.             The Department pointed out that a

white     officer     manning       another      picket     was   recommended       for

termination      as    a   result    of    the    escape    for   which    Baker    was

terminated.

     (iv) Royal R. Ashton

     Ashton claims that he was discriminatorily disciplined and

denied    a   pay     increase      because      of   his   participation     in    the

"officer's rebellion": a meeting of black corrections officers to

discuss race discrimination at the Retrieve unit.                        The district

court    found      that   document       evidence      showed    that    Ashton    was

chronically absent or late to work without excuse and that during

1985, when Ashton claimed he was targeted for retaliation, he was

absent or late without excuse 9 times.

     (v) David Hollins

                                           12
     Hollins claims that he was discriminatorily disciplined and

not promoted because of his race.       The district court found that

document evidence showed that Hollins was frequently absent from

work without excuse, disciplined for insubordination for swearing

at a superior, and disciplined for wearing an improper or partial

uniform.      Employee discipline, without more, is not an ultimate

employment decision actionable under Title VII.14     Hollis is still

employed as a corrections officer by TDCJ.         The district court

correctly concluded that Hollins had no cause of action based upon

the disciplinary actions taken against him; that he failed to prove

his failure to promote claim. In any event, his employment history

would provide a race-neutral reason for not promoting him.     We find

no error.

     (vi) Randall Byrd

     Byrd was suspended for allegedly falsifying an inmate count

sheet and verbally reprimanded for leaving a steel milk can in the

cell of an inmate with psychological problems.     He was recommended

for termination and failed to attend the termination hearing.      He

was subsequently terminated, and he claims that his termination was

in retaliation for his complaints of discrimination.      Byrd denies

that he falsified the inmate count sheet.     He appears to argue that

because he was fired three weeks after filing an EEOC charge, there

is proof that his termination was in retaliation for his filing

     14
          See Mattern v. Eastman Kodak Co, 104 F.3d 702, 708 (5th Cir.
1997).

                                   13
that charge.    However, Byrd filed his first EEOC charge           November

13, 1985, and he was suspended for the count sheet matter             August

22, 1985.    This was the incident that led to his termination.             The

district court properly concluded that Byrd's claims are meritless

and we find no error in that judgment.

     (vii) Leon Brice

     Brice alleged he was discharged because of his race.                 Brice

was discharged for betting on a football game with an inmate.

Brice argues that white officers too gambled with inmates and were

not terminated.      He does not identify any of these officers in his

brief.    The district court properly concluded that Brice failed to

show that the neutral reason TDCJ offered for his termination was

pretext for discrimination.

     (viii) Ronnie Hudnall

     Hudnall was terminated for excessive absenteeism. Documentary

evidence showed that Hudnall was frequently absent without excuse.

Hudnall     argues   that   white    and   Hispanic     officers   were     not

disciplined for lateness or absenteeism, and he states that he was

told by someone that white supervisors were out to "get him" after

he filed his EEOC charge.         Hudnall does not identify any white or

Hispanic    officers   in   his    brief   who   were   not   disciplined    or

terminated for similar infractions.          The district court properly

concluded that Hudnall failed to offer evidence to rebut TDCJ's

race-neutral reason for his discharge.

     (ix) Annie M. Kelley

                                      14
     Kelley complained that she was subjected to a racially hostile

work environment and passed over for promotions that went to white

employees.   She specifically identifies only one incident in which

another officer used a racial slur in her presence, which was

directed toward her.        She fails to show evidence from which the

district   court   could     have   concluded      that   racially    offensive

comments were severe or pervasive enough to support a hostile work

environment claim.        Furthermore, she fails to identify any white

employee who received a promotion for which she applied, so it is

impossible   to    determine     whether    the    district   court    properly

concluded that Kelley failed to show that she was better qualified

that white employees who received promotions.

     (x) Christopher Latson

     Latson was suspended for making an unauthorized stop at

another officer's apartment during an ambulance run.                  The other

officer was also suspended.         Latson argues that he should not have

been suspended because the other officer was of a higher rank.

Latson was later terminated for failing to comply with sick leave

policy, for failing to return from disability leave and failing to

provide required documentation of his disability.             Latson asserts

that he complied with the policy, but he does not state that he

returned to work as required or provided the required documents.

Latson   argues    that    the   discipline       and   termination    were   in

retaliation for his complaints of discrimination.               The district



                                       15
court properly concluded that Latson failed to offer evidence to

rebut TDCJ's nondiscriminatory reason for these actions.

      (xii) Wade Brooks

      Brooks was suspended without pay and subsequently terminated.

While on probation for unexcused absences from work, Brooks was

suspended for failure to load his weapon while on patrol.      On his

return, he was on picket duty at the Eastham unit and failed to

obey an order to call in to his supervisor every 30 minutes.

Brooks argues that he did not have to obey this order because,

although he was on duty in the Eastham unit, the practice of

calling in was peculiar to the Eastham unit and not an agency-wide

policy.       The Warden ordered Brooks to appear in his office to

discuss this incident, and Brooks failed to appear.       Brooks also

failed to attend his termination hearing.       Brooks claims that he

told the Warden that everyone in the unit acted "like they're in

the Klan," to which the Warden allegedly replied "[y]ou damn right,

and   I'm the ringleader.     I suspended you and that's that, try and

file a grievance."        The district court's findings of fact are

reviewed for clear error.15     The district court properly concluded

that Brooks failed to show that his suspension and termination were

pretext for race discrimination.

                                   VII




      15
           See Black v. Food Lion, 171 F.3d 308, 310 (5th Cir. 1999).

                                    16
      The   district   court     did   not    err   in   finding    some   of    the

plaintiffs' claims time-barred, since these plaintiffs failed to

file suit within 90 days after their motion to intervene in a

pending class action was denied.             There were no claims made under

§ 1983.     Any right to a jury trial on a § 1981 claim was waived.

In any event, the few claims for which there would be a right to a

jury trial did not reach trial.

      The   district     court   properly      denied    class     certification,

because the named plaintiffs have claims that are                  individualized

and   different   from    one    another,     and   because      they   sought   to

represent a class that was overly broad in temporal and geographic

scope.

      AFFIRMED.




                                       17
