Hill v. Western Electric Co. , 672 F.2d 381 ( 1982 )

JAMES DICKSON PHILLIPS, Circuit Judge:

In this appeal, three unsuccessful applicants for employment with Western Electric Company (Western) challenge the denial of their motion to intervene in a class action against Western as representatives of a portion of the class consisting of blacks and females who have discriminatorily been denied employment at Western’s Arlington, Virginia facility. We vacate the order denying intervention on the basis that the district court did not adequately assess the motion, and remand for reconsideration of the motion in light of our discussion in this opinion.

I

This is the second appeal arising from a class action originally filed by eight present and former employees of Western seeking injunctive relief and back and front pay for alleged violations by Western of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 in discriminating against blacks and females in hiring, job placement and promotion at its Arlington, Virginia facility.

A central issue on the first appeal and again on this one involves the inclusion within the plaintiff class of unsuccessful hiring applicants as well as employees denied promotions and job assignments. In its original structuring of the class, the district court first concluded that it could not include such persons because none of the then named representative plaintiffs had been denied employment but were all employees. On the basis of our decision in Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975), however, the district court reversed its earlier certification decision and expanded the class to include those who suffered discrimination in hiring. The expanded class was defined to include those blacks and females “who have applied for employment at Defendant’s facility in Arlington, Virginia, since July 2, 1965, or who will hereafter apply.”

Following a three-day bench trial the court issued a memorandum opinion concluding that Western had discriminated against blacks and women in violation of Title VII in hiring, job placement and promotion at its Arlington, Virginia facility, Hill v. Western Electric Co., No. 75-375-A (E.D.Va., April 30, 1976) (mem.) and subsequently entered a decree providing for a special master’s determination of claims to back and front pay by identified members of the certified class. Western was required to institute priority hiring and promotion of blacks and females to remedy past discrimination and to develop and implement nondiscriminatory, job-related hiring and promotion criteria to avoid future discrimination. To prevent Western from seeking to avoid compliance with the decree through institutional reorganization, the court appended a footnote to the decree in which it stated that “[t]he Arlington facility for purposes of this decree encompasses ... any functional successor” to either of the operations based at that facility. Jt. App. at 276.

On appeal, we affirmed in part, reversed in part and remanded. Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979). With respect to the inclusion of hiring discrimínateos in the certified class, we stated that, while our decision in Barnett arguably might have authorized the named plaintiffs, who were employed, to represent persons denied employment, that possibility was now foreclosed by the Supreme Court’s intervening holding in East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), that a class representative must “possess the same interest and suffer the same injury” as the class members he or she seeks to represent. Therefore, we vacated the district court’s finding of discrimination in hiring for lack of an adequate representative for those members of the certified class who allegedly were discriminatorily denied employment. Hill v. Western Electric Co., 596 F.2d at 101-02. Following the denial of plaintiffs’ petition for certiorari, our mandate was reinstated, and the case was remanded to the district court.

Plaintiffs’ counsel then filed motions for intervention or to amend the complaint to add three new plaintiffs — Bailey, Johnson and Furr — to the action. Intervention was sought on behalf of the individuals and on behalf of the class of rejected applicants for employment at Western’s Arlington facility. With respect to the qualifications of the three proposed intervenors, plaintiffs alleged that Bailey was a black female who had been denied employment at the Arlington facility in 1972 and 1973 as the result of discriminatory hiring practices, which have continued, without interruption, to the present. She filed a charge with the EEOC on November 6, 1979 and was issued a right-to-sue letter on December 6, 1979.

Johnson, a black female, and Furr, a black male, alleged that they had unsuccessfully applied for employment with Western as “installers” in August 1979. Although they applied at Western’s Landover, Maryland facility, they contended that this facility was a successor to one of the operations that had been housed at Western’s Arlington facility. They also alleged that they had been denied employment because they failed to pass a test that was essentially the same as the one that the district court had found to be discriminatory when used at the Arlington facility. Johnson filed a charge with the EEOC on October 2, 1979, while Furr filed his charge on October 17, 1979. Both were issued right-to-sue letters on December 6, 1979.

Ruling on the motion to intervene, the district court first concluded that it was not precluded by the terms of the remand of this court from allowing intervention but, in the exercise of its discretion, then denied the motion. The court gave two essential reasons. First, the length of time that the case had continued from its filing in May 1975. On this the court observed that “[i]t’s time this case got concluded.” Second, said the court, intervention would require a hearing on the hiring claims, and this would delay relief on the job assignment claims now upheld on the first appeal because “it’s impractical if not impossible to be running part of the case here and part before the master on the job assignments claims.”

Plaintiffs and Western subsequently reached, and submitted to the district court, a settlement agreement covering all outstanding issues in the litigation except for the claims relating to hiring discrimination. The court entered a final judgment approving this agreement on September 19, 1980, and this appeal challenging the refusal to allow intervention for prosecution of the hiring claims followed.

II

The sole issue is the propriety of the district court’s denial of the motion for permissive intervention under Fed.R.Civ.P. 24(b).¹ Although a decision on a Rule 24(b) motion lies within the sound discretion of the trial court, Black v. Central Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974), some standards have been developed to guide the courts in making intervention determinations. We conclude that the district judge did nqt properly apply those standards here.

The court first emphasized the lateness of the motion in the progress of the protracted litigation. We have held, however, that in ruling on motions for intervention “[m]ere passage of time is but one factor to be considered in light of all the circumstances.” Spring Construction Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980); accord, Atkins v. State Board of Education, 418 F.2d 874 (4th Cir. 1969). In a class action the critical issue with respect to timeliness is whether the proposed intervenor moved to intervene “as soon as it became clear ... that the interests of the unnamed class members would no longer be protected by the named class representatives.” United Airlines, Inc. v. McDonald, 432 U.S. 385, 394, 97 S.Ct. 2464, 2469, 53 L.Ed.2d 423 (1977). Because the airline stewardess in McDonald had moved to intervene within the time for taking an appeal and as soon as she was advised that the named class representatives did not intend to prosecute an appeal, the Supreme Court in that case affirmed the court of appeals’ reversal of the district court’s order denying intervention. Id. at 396, 97 S.Ct. at 2470.

Invoking this standard, Western argues that the proposed intervenors should have become aware of the need and moved to intervene at the very latest when the court of appeals entered its inadequacy of representation decision in April 1979. A motion to intervene filed more than nine months after' that date could not have been timely says Western.

The proposed intervenors, on the other hand, argue that they were under no obligation to seek intervention until the Supreme Court denied plaintiff’s petition for a writ of certiorari on October 29, 1979. On this we agree with the intervenors. Until the Supreme Court denied certiorari the named class representatives were actively pursuing, and had not been foreclosed from representing, the interests of the hiring class. At the time certiorari was denied, proposed intervenors Johnson and Furr had already begun the administrative action that was a procedural prerequisite to their intervention by filing charges with the EEOC, and proposed intervenor Bailey took that step eight days later on November 6, 1979. All three proposed intervenors received their right-to-sue letters on December 6, 1979. Just as the stewardess in McDonald timely sought intervention within the thirty days available for taking an appeal, the proposed intervenors in the present case, by filing their motion on January 17, 1980, timely sought intervention well within the 90 days that they had under section 706(f)(1) of Title VII to institute suit.

In any event, the “most important consideration [in passing on an application for intervention] is whether the delay has prejudiced the other parties.” Spring Construction Co. v. Harris, 614 F.2d at 377. Western clearly could claim no prejudice from the delay itself because, like the employer in McDonald, it was “put on notice by the filing of the .. . complaint of the possibility of classwide liability, and there is no reason why . . . pursuit of that claim should not be considered timely under the circumstances.” United Airlines, Inc. v. McDonald, 432 U.S. at 395, 97 S.Ct. at 2470.

The prejudice that might have resulted to those members of plaintiff class whose claims had been affirmed on appeal presents a much more troublesome question. In fact, this may have been the district court’s primary reason for denying intervention. Courts have properly “emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed.” Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978). Moreover, it is clear that had intervention been allowed the district court would have been compelled to conduct a hearing on class certification, see Simmons v. Brown, 611 F.2d 65, 67 (4th Cir. 1979), and that some relitigation on the merits would have followed.

Any prejudice to other members of the class could have been avoided, however, by simply bifurcating the proceedings. While the trial court considered it “impractical if not impossible to be running part of the case here and part before the master on the job assignments claims,” it gave no reasons in support of this conclusion and Western has offered none on appeal. The claims of those members of the class alleging discrimination in hiring essentially were, ones to be heard on the merits of liability, while those for discrimination in job assignments needed only to be heard on damages. Bifurcation of Title VII class action proceedings for hearings on liability and damages is now commonplace, and there is all the more justification for such a procedure when, as here, separable claims, subject if necessary to structuring by sub-classes, Fed.R.Civ.P. 23(c)(4)(B), are involved. While we owe great deference to the special capability of a trial judge to gauge better than can we such practical difficulties, we conclude that here the impracticality envisioned was given greater weight than general experience warrants.

In a general attack on the propriety of intervention, Western contends that post-remand intervention is an unusual procedure and should be granted only in exceptional circumstances. To the extent any more stringent standard for intervention following judgment is warranted, however, it must be based upon heightened prejudice to the parties and more substantial interference with the orderly process of the court in that context, MacDonald v. E. J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir. 1970), and “[i]f neither of these results would occur the mere fact that judgment already has been entered should not by itself require an application for intervention to be denied.” C. Wright & A. Miller, 7A Federal Practice & Procedure, § 1916, at 582 (1972). We have on a number of occasions permitted intervention following remand, see, e.g., Spring Construction Co. v. Harris, 614 F.2d at 376, and see no special prejudice factors operating here to preclude application of the usual standards.

In addition to our perception that the factors directly drawn upon by the district court in denying intervention were given undue weight, we think the court failed to consider — or gave insufficient weight to— another factor possibly militating in favor of intervention. That is the possibility that the original findings of discrimination in hiring might be reinstated were intervention allowed and the intervenors found in the process to be adequate representatives of a properly certified class.² Given the likelihood that if denied intervention, these unsuccessful intervenors or others would pursue the class claim in a new action, see Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 461 (E.D.Pa.1968), reinstatement of the findings and conclusions already made on the claim in this action would have the virtues of conserving judicial resources and of avoiding the risk of inconsistent sequential adjudications of the critical issues.

Whether reinstatement under these circumstances might ever be appropriate and, if so, the conditions under which it might be are apparently questions we have not previously addressed. Western contends — apparently as an absolute principle of judicial power — that reinstatement is simply not possible. Vacation of the judgment in favor of the hiring claimants on appeal had the effect, contends Western, of rendering the findings upon which it was based void ab initio. The cases cited to support this, however, stand only for the proposition that vacated findings have no vitality as precedent or res judicata in other litigation. See, e.g., Simpson v. Motorists Mutual Insurance Co., 494 F.2d 850 (7th Cir. 1974); Troy State University v. Dickey, 402 F.2d 515 (5th Cir. 1968). But cf. Dunlop v. Rhode Island, 398 F.Supp. 1269 (D.R.I.1975) (while vacated holding of earlier case may not be given collateral estoppel effect in subsequent case, findings of fact in earlier case may be adopted in subsequent case if no new evidence presented).

More apposite when the question is, as here, the propriety of their reinstatement in the same action is Finn v. American Fire & Casualty Co., 207 F.2d 113 (5th Cir. 1953). Finn was a removed diversity case in which a jury returned a verdict against one of two insurance companies sued by a policyholder. On appeal the Supreme Court vacated the district court judgment because of a lack of perfect diversity. Upon remand perfect diversity was obtained by dismissal of one of the defendants, but the district court declined to reinstate plaintiffs’ vacated judgment on the basis that it had been rendered without jurisdiction. Not so, said the Fifth Circuit on appeal, jurisdiction was not wholly lacking at the time and the judgment might, in the district court’s discretion, be reinstated now that the jurisdictional defect had been cured. Finn v. American Fire & Casualty Co., 207 F.2d at 115; accord, Levering & Garrigues Co. v. Morrin, 61 F.2d 115 (2d Cir. 1932).

Finn’s general principle — with which we agree — is that upon remand following the vacation of a judgment for a jurisdictional defect, it may be appropriate for a trial court to reinstate the judgment once the defect has been cured. This principle must certainly extend past the reinstatement of a judgment itself to reinstatement of findings and conclusions supporting it, and past true jurisdictional defects to less fundamental defects not affecting the merits. The critical limiting factor is of course that the error or defect must not have infected the merits of the very determination sought to be reinstated.

The defect of inadequate representation in a class action concededly has, in general, both merits and non-merits implications. Viewed only as a special form of standing requirement in class actions, it smacks of jurisdiction. As such, it is clearly even less fundamental than a pure jurisdictional requirement, so that reinstatement of findings following cure of this defect would seem even more justifiable than reinstatement following cure of a true jurisdictional defect.

On the other hand, this defect can be viewed as one potentially affecting the merits. Obviously, the requirement of adequate representation of the class members’ interests looks to insuring a fair result on the merits, in a way that true jurisdictional requirements do not. To this extent, reinstatement following a cure of this defect might be seen as less justifiable.

From this it is obvious that the defect is not susceptible to general categorization in these terms. Rather, inquiry must turn in the particular case upon whether the specific inadequacy found did or did not probably affect the merits in a way making reinstatement inappropriate. Three inquiries are pertinent tó this determination: whether the new class representative desires or resists reinstatement; whether the finding of inadequacy was based solely upon a formal lack of identity of interests and injury between representative and class or upon demonstrated ineffectiveness of representation; and whether the party opposing the class will be unfairly prejudiced by the reinstatement. Resistance to reinstatement by the new class representative, inadequacy based upon demonstrated ineffectiveness of representation, and prejudice to the party opposing the class all suggest an effect' upon the merits and militate against reinstatement, while the converse of each suggests a jurisdiction-like defect militating in favor of reinstatement once it is cured.

The new class representative’s attitude is relevant because it is primarily to protect the interests of the class that the adequacy requirement exists, see generally C. Wright & A. Miller, 7 Federal Practice and Procedure: Civil § 1765 (1972).³ If properly qualified new representatives are satisfied with generally favorable findings made under technically “inadequate” representation, it can reasonably be assumed that the class members’ primary interests in fairness, see Fed.R.Civ.P. 23(a)(4), have been served and that the “inadequacy” was only formal.

The determination of inadequacy on appeal may have been concerned only with a technical lack of identity of interest and injury between representative and class, e.g., Hill v. Western Electric Co., 596 F.2d at 101-02, or only with the actual ineffectiveness of a technically qualified representative, e.g., Nance v. Union Carbide Corp., 540 F.2d 718 (4th Cir. 1976), vacated and remanded on other grounds, 431 U.S. 952, 97 S.Ct. 2671, 53 L.Ed.2d 268 (1977), or with both, e.g., East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. at 405, 97 S.Ct. at 1898. To the extent inadequacy is based solely upon lack of sufficient identity of interest, any presumed adverse effect on the merits stemming from this may in fact be utterly belied by the outcome, as we recognized, for example, in Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1380 (4th Cir. 1972) (representation adequate even though representative’s individual claim without merit).⁴ To the extent the inadequacy determination was based solely upon a presumption of ineffectiveness from lack of shared interest rather than a demonstrated ineffectiveness, it resembles the jurisdictional defect whose cure was held in Finn to permit reinstatement, and should be treated accordingly.

Even if the above two factors favor, or do not necessarily preclude, reinstatement of findings favorable to the class, prejudice to the party opposing the class must nevertheless be separately assessed. This should be done in terms of practical fairness, and should proceed on the realization that reinstated findings will of course be subject to review for error in their original adoption if they are thereafter incorporated in any appealable order or judgment.

We think that the district court could not properly assess the propriety of allowing intervention here without carefully evaluating the appropriateness of reinstating its findings of fact and conclusions of law on the hiring claims if intervention were allowed. Orderly consideration of that possibility should, we believe, follow a threshold consideration of the formal qualifications of the proposed intervenors. Both below and on this appeal Western attacked the formal qualifications of each on a variety of procedural and jurisdictional grounds.⁵ These were not addressed by the district court in view of its decision not to permit intervention on other grounds.

These objections should be addressed in the first instance by the trial court, as a preliminary to its reconsideration of the propriety of allowing intervention by any of the proposed intervenors found qualified as representatives.⁶ If a proposed intervenor is found not formally qualified to act as a class representative the intervention inquiry as to that person obviously need proceed no further.

If the district court finds any of the proposed intervenors formally qualified to represent the class,⁷ it should then reconsider the motion for intervention in light of our discussion of the appropriate standards and factors applicable in this case. In that connection, we make these specific observations.

First, for reasons earlier stated, we think that neither the post-remand timing of the motion, nor any supposed prejudice to the interests of other members of the plaintiff class from intervention should militate against its allowance on the particular facts here presented.

Second, in considering the propriety of reinstating its hiring claim findings and conclusions as that bears upon the intervention question, we believe the court should be guided by the following considerations. The first inquiry should be whether any proposed intervenor[s] found preliminarily qualified to serve as class representative desire in behalf of the class to have the findings reinstated. If they do, this independent judgment can be taken as an indication that the class, for its part, considers that the representation provided the class members’ interests in litigation of their hiring claims was “fair and adequate” per Rule 23(a)(4).

Next, the court should take into account that this court’s determination of inadequacy of representation on the first appeal was based entirely upon the formal lack of sufficient identity of interests between any class representatives and the non-hired members of the class. See Hill v. Western Electric Co., 596 F.2d at 101-02. We did not then address the question of the actual effectiveness of the representation notwithstanding its formal inadequacy. When actual effectiveness is explored as a matter of first instance inquiry, it is obvious that the representation actually provided had all the indicia of diligence and practical effectiveness,⁸ including most notably that it yielded a favorable result on these class members’ claims.

Lastly, in assessing any prejudice to the party opposing the class from reinstatement of the hiring-claim findings, three considerations are important. The first is that those findings were made in a normal adversary context in which no prejudice could have been suffered by Western from the fact alone that the class members were then “inadequately” represented for class action purposes. The second, earlier mentioned, is that the findings, if reinstated, would of course be subject to appellate review for error leading to their original adoption if they then found their way into any appealable order or judgment adverse to Western. The third is that to the extent Western has relevant evidence of events occurring or conditions arising after the date of the findings — as opposed to new evidence of events and conditions predating the findings⁹ — reinstatement would not of course preclude consideration of that evidence, assuming it is otherwise admissible.

The action is remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED.

1 . Western also argued below and now presses on this appeal the contention that the district court was “expressly precluded” from permitting intervention in the present case by our refusal to grant a petition for rehearing following the original appeal. In a footnote to their petition for rehearing, plaintiffs referred to Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978), and Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir. 1972), in which, upon finding that the named plaintiffs were not adequate representatives of a class, we remanded the cases with instructions that the class actions be retained on the docket for a reasonable time to afford an opportunity for a proper class representative to step forward. Plaintiffs remarked in the petition that failure to use such a procedure in the present case was “unfathomable.” Western now reasons that, because plaintiffs requested in their petition for rehearing that we instruct the district court to utilize the procedure mandated in Goodman and Cox, our denial of that petition constitutes an express prohibition of intervention on remand. We ascribe no such significance to the denial of the petition.

2 . Although the district court made no express reference to this factor in its oral denial of the motion for intervention, it was apparently presented to the court, see Jt. App. at 412, and we therefore consider it appropriate to take that factor into account on appeal.

3 . That the adequacy of representation requirement of Fed.R.Civ.P. 23(a)(4) may be thought to operate in close conjunction with the commonality of issues requirement of 23(a)(2) and the typicality of claims requirement of 23(a)(3) to shape the class action issues in ways protective of the party opposing the class as well as the class members, see Stastny v. Southern Bell Telephone & Telegraph Co., 628 F.2d 267, 273 (4th Cir. 1980), does not belie the fact that its primary purpose is to insure, in the words of the rule, that “the representative parties will fairly and adequately protect the interests of the class.” It should of course be open to a party opposing the class to resist reinstatement on the basis that, under the particular circumstances, that party’s interests were directly jeopardized in this way by the fact that class members’ claims were litigated in their behalf by persons who did not share their interests and injuries.

4 . Rodriguez, holding that failure of a named plaintiff’s claim prior to class certification preeluded subsequent class certification with that plaintiff as representative, expressly noted that “a different case would be presented if the [trial court] had certified a class and only later had it appeared that the named plaintiffs were . . . inappropriate class representatives.” Rodriguez, 431 U.S. at 406 n.12, 97 S.Ct. at 1898 n.12. This “different case” is of course exactly the one presented in Brown and in the instant case. “In such a case,” said the Rodriguez Court, ”... the claims of the class members would not need to be mooted or destroyed . . . . ” Id.

5 . These were: that the court lacked jurisdiction in respect of one of the intervenor’s claims because it was not timely filed; that the court lacked venue in respect of the claims of other intervenors because based upon discrimination occurring at a Maryland facility; and that none of the intervenors’ claims was cognizable because of premature issuance of right-to-sue letters by the EEOC.

6 . With respect to the last of these — premature issuance of right-to-sue letters — we offer these observations. Whatever the “jurisdictional” consequence of premature issuance of right-to-sue letters or of premature commencement of private enforcement actions under Title VII, see EEOC v. Cleveland Mills, 502 F.2d 153, 155-56 (4th Cir. 1975) (dictum: “private right of action may not be exercised until the lapse of 180 days”), we think they do not apply to subsequent motions, such as these, to intervene as class representatives in an ongoing class action as to which this possibly “jurisdictional” predicate has already been met. To the extent the 180-day lapse before letter or suit is a jurisdictional predicate, see EEOC v. Raymond Metal Products Co., 385 F.Supp. 907, 916 (D.Md. 1974), aff’d in relevant part, 530 F.2d 590 (4th Cir. 1976), it is so only to “avoid[] potential interference with the Commission in the performance of its primary duties of conciliation and enforcement.” EEOC v. Cleveland Mills, 502 F.2d at 156 (dictum). Where, as here, the original right to sue letter and commencement of action were not so premature, any “jurisdictional” concern on this score has been satisfied both as to the class and as to any putative members of that class who may thereafter seek intervention as named plaintiffs. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 & n.8, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1974). Accordingly, we hold that premature issuance of right-to-sue letters to the putative intervenors here would not, standing alone, preclude their intervention to prosecute individual or, as representatives, class claims.

A related problem, however, not specifically addressed by the parties, but potentially dis-positive of the right of anyone effectively to intervene to press individual or class claims of hiring discrimination, is suggested by this challenge of prematurity, and must be addressed by the court on remand. That problem is whether, prior to commencement of the class action, Western was given fair notice and an opportunity to resolve through administrative conciliation the hiring discrimination claims now sought to be asserted by the intervenors. This was Western’s due, see Scott v. Board of Education, 18 F.E.P. Cas. 1230, 1233 (D.Md.1979), and if it has not been accorded, those claims, either class or individual, may not now be prosecuted in this action by these intervenors or others. Cf. EEOC v. Sears, Roebuck & Co., 650 F.2d 14 (2d Cir. 1981) (EEOC suit dismissed for lack of fair opportunity in advance of action to “discuss [challenged] practices” at two of national chain’s stores).

On this question the record on this appeal is completely silent, and it must therefore be addressed in the first instance by the district court upon remand. This inquiry should be conducted in light of the generally accepted principle that the scope of a Title VII lawsuit may extend to “any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970); see also EEOC v. General Electric Co., 532 F.2d 359, 373 (4th Cir. 1976). This means that if Western was in fact given fair notice and an opportunity to discuss charges of, or administrative inquiries about, discrimination in hiring at its Arlington, Virginia facility prior to commencement of the class action intervention is not, on that basis alone, precluded.

7 . Of course, even though an intervenor may be found preliminarily qualified over Western’s procedural and jurisdictional challenges, see note 5 supra, he or she may yet be revealed to be an inadequate representative by subsequent developments, see note 4 supra. But that must of course abide those developments.

8 . The class representatives asserted and sought class certification of the claim of discrimination in hiring from the outset of their lawsuit. Jt. App. at 15. Plaintiffs presented evidence in support of this claim, including the testimony of a number of experts. See id. at 77-219. Based on the evidence submitted by plaintiffs, the district court concluded that Western had discriminated in hiring against both blacks and females at its Arlington, Virginia facility. Id. at 236. To remedy past discrimination and to prevent its recurrence in the future, the district court ordered the award of back pay to those who had been discriminatorily denied employment, priority hiring of those same persons as vacancies became available, and the formulation and implementation of nondiscriminatory, job-related employment criteria. Id. at 314.

In addition, plaintiffs vigorously defended the district court’s decision on Western’s appeal to this court. When we vacated that decision with respect to the hiring claims, plaintiffs sought reconsideration of our decision in a petition for rehearing directed to this court and in a petition for a writ of certiorari addressed to the Supreme Court. One can therefore hardly imagine more diligent representation.

9 . A ready example of the critical distinction, for this purpose, between new evidence to refute existing findings and evidence of new post-finding events or conditions, may be suggested by Western’s contention, advanced in the district court in opposing the motion to intervene, that it now has new evidence validating its pre-employment test. From this Western apparently contended that reinstatement of the findings would result in no economy of resources and avoid no duplications of proof because it would be entitled as a matter of course to introduce this (and presumably any other relevant) evidence to relitigate the underlying issue if intervention were allowed.

If this is the contention, it is flawed. To the extent the validity of that test, hence Western’s business necessity defense based upon it, has already been determined adversely to Western on the evidence then before the court, there would obviously be no legal right on Western’s part, were the court disposed generally to reinstate the findings, to have either that or any other finding reopened to permit the introduction of new evidence bearing upon it. The situation, instead, would be perfectly analogous to that in which a party seeks as a matter of the court’s discretion to have findings set aside on the basis of additional evidence under Fed.R.Civ.P. 52(b) or 59(a)(2), or to be relieved from the effect of a judgment because of newly discovered evidence under Fed.R.Civ.P. 60(b)(2).

In direct contrast, if evidence were available to Western that since the date of the findings a new pre-employment test had been adopted, that evidence might be admissible as a matter of right because relevant in establishing the terminal date of any continuing violation originally found by the court, hence the composition of the class entitled to ultimate relief.