Petition — United States Fidelity & Guaranty Co. v. Lord
Supreme Court brief1979
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FILED
DEC 12 1978
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-942
UNITED STATES FIDELITY AND GUARANTY COMPANY,
Petitioner,
v.
THE HONORABLE MILES W. LORD, JUDGE OF THE
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA,
FOURTH DIVISION,
Respondent,
AND
SHEILA MEAD anp TERRY OAKLEY, AND ALL OTHER
PERSONS SIMILARLY SITUATED, AND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
RIDER, BENNETT, EGAN & SHAWE & ROSENTHAL
ARUNDEL By EARLE K. SHAWE
By STUART W. RIDER, JR. STEPHEN D. SHAWE
WILLIAM T. EGAN ARTHUR M. BREWER
TimoTHY R. THORNTON Er1c HEMMENDINGER
900 First Nat. Bank Bldg. Sun Life Building
Minneapolis, Minn. 55402 Charles Center
(612) 340-7922 Baltimore, Md. 21201
(301) 752-1040
TROT TS TN ead ER A OR OE EI: POEL TE AS. al LD
The Daily Record Co., Baltimore, Md. 21202 = =
a eae
TABLE OF CONTENTS
i sicpneniansinnancenncanas
tT sennirnpnemnninecosinene
ek ccssesecasenteccccensses
STATUTES AND RULES INVOLVED .............:cccccccceees
1) The availability of mandamus ..............
2) The Circuit Court erred in holding that
the District Court’s order did not consti-
tute an abuse of discretion ....................
i velmauineusvues
ee cuuwotoonavaneces
TABLE OF CITATIONS
Cases
Coles v. Marsh, 560 F.2d 186 (3rd Cir. 1977) ....
Coopers & Lybrand v. Livesay, ___ U.S. ____, 98
a _. cenntmesestocsees
East Texas Motor Freight v. Rodriquez, 431 U.S.
a ssessmnensesonse
Gardner v. Westinghouse Broadcasting Co., ___
i cs ee oe SE CEITOD ........-............
Hauck v. Xerox Corp., 78 FRD 375 (E.D. Pa.
i cansensssnmcacesces
Hazelwood School District v. U.S., 433 U.S. 299
es cetteashswmeems
Johnson v. Ga. Highway Express, 417 F.2d 1122
a sacnneineees
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957)
Lamphere v. Brown University, 553 F.2d 714 (1st
Nee ceceunssnnens
i PAGE
NOW, St. Paul Chapter v. 3M, 14 FEP Cas. 829
FAR EE 11
Pettway v. American Cast Iron Pipe Co., 576
Be NE ME NE, ROP UUD ceccncnccasccceccsececcceosessoee 12,13
Rogers v. United States Steel Corp., 508 F.2d 152
es enmtnsntnennistoncens 8
Shelton v. Pargo, Inc., 17 FEP Cas. 1413 (4th Cir.
ek a REESE a ee 10
Western Electric v. Stern, 544 F.2d 1196 (3rd Cir.
cls a cteaismentascnncnsaccess 8
Will v. Calvert Fire Insur. Co., __. U.S. ___., 98
a scsnasnnbbnnennen 6
Statutes and Rules
All Write Act, 28 U.S.C. $1651 ...........ccccccccosssooees passim
Civil Rights Act of 1964, Title VII, 42 U.S.C.
a seaetaninnnatonsia passim
Federal Rules of Civil Procedure:
I TT Iiic ical ec hasnkdsapatennusenteesonasncectoencecces passim
Co a sansnidneenieonsenes 8
Judiciary Act of 1948, 42 U.S.C. §1292(b) .......... 7
Other Authorities
A. Miller, An Overview of Federal Class Actions:
Past, Present and Future (1978) ................0. 8-9
United States Department of Justice, Proposed
Revisions in Federal Class Action Damage
Procedure, S. 3475, Bill Commentary (Aug.
a ethsasusevonnemnndnonses 9
Contents of Appendix
Decision of the Court of Appeals for the Eighth
Circuit, (September 13, 1978) ........ccccccseceeeees la
ili
Findings of Fact, Conclusions of Law, Order for
Judgment on Plaintiff Mead’s §704(a) Retali-
atory Discharge Trial (D. Minn, September
Bil STORET -dccicunsinstinicotenoooinduadeatensshcanneaianadadaabonieds
Memorandum Accompanying Order Certifying
Case as Class Action (D. Minn, January 13,
SII sexs viccinsinkchciciaieniancntbecantainiaeniuniiadigumenist ckstaese
Order Denying Application for Interlocutory
Appeal (D. Minn, January 19, 1978) ............
Rule 23 of the Federal Rules of Civil Procedure
PAGE
l3a
57a
75a
8la
In THE
Supreme Court of the United States
OcTOBER TERM, 1978
No.
UNITED STATES FIDELITY AND GUARANTY COMPANY,
Petitioner,
Vv.
THE HONORABLE MILES W. LORD, JUDGE OF THE
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA,
FOURTH DIVISION,
Respondent,
AND
SHEILA MEAD anp TERRY OAKLEY, AND ALL OTHER
PERSONS SIMILARLY SITUATED, AND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
United States Fidelity and Guaranty Company
petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Eighth
Circuit, entered in this case on September 13, 1978.
OPINIONS BELOW
The opinion of the Court of Appeals (App. 1) is
reported at 18 Fair Employment Practices Cases 171.
The Decision of the District Court (App. 57) is reported
it 18 FEP Cas. 158. Other District Court opinions in
this matter are reported at 442 F. Supp. 114, 18 FEP
2
Cas. 140 (App. 13) and at 18 FEP Cas. 131, 136, 167
(App. 75), and 169.
JURISDICTION
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. §1254 (1). The Circuit Court’s jurisdiction over
the case was invoked pursuant to the All Writs Act, 28
U.S.C. §1651. The District Court has jurisdiction over
the case pursuant to §706(f)(3) of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e-5(f)(3).
QUESTIONS PRESENTED
1. Whether the Circuit Court erred in holding that it
had no power to issue a writ of mandamus to vacate a
class certification order.
2. Whether the Circuit Court erred in holding that
the District Court’s order certifying a nationwide,
across-the-board sex discrimination class action was
not an abuse of discretion.
STATUTES AND RULES INVOLVED
1. All Writs Act, 28 U.S.C. §1651(a). The Supreme
Court and all Courts established by Act of Congress
may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the
usages and principles of law.
2. Federal Rules of Civil Procedure, Rule 23 (App.
81).
STATEMENT
Sheila Mead and Terry Oakley filed a Complaint
against United States Fidelity and Guaranty Company,
et al., in the United States District Court for the District
of Minnesota, on January 13, 1977.1 The Complaint
' The full caption of the case is Sheila Mead and Terry
Oakley, and all other persons similarly situated, Plaintiffs,
and Equal Employment Opportunity Commission, Plaintiff-
3
alleged that Plaintiff Mead had been subjected to a
retaliatory discharge and also alleged class-wide sex
discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e et seg. The
individual claim was severed from the class action and
tried, resulting in a judgment for the Plaintiff being
entered on September 14, 1977 (App. 13). On October 5,
1977, the Plaintiffs filed a motion for class certification,
supported by the Equal Employment Opportunity
Commission, which was then seeking leave (later
granted) to intervene in the class action aspect of the
case. The Plaintiffs’ motion sought certification of a
nationwide class consisting of all past, present and
future female employees and applicants for employment
with the Company from July 5, 1965 to the present.
In support of their Motion, the Plaintiffs submittted
the affidavit of E.E.0.C. counsel David Zugschwerdt,
which informed the Court that there was a Commis-
sioner’s charge pending against the Company, that the
E.E.O.C. had conducted a preliminary investigation of
the charge, that the Company had an “Employees’
Guide to Personnel Practice,” and that it was the
opinion of the E.E.O.C. that the Company’s employ-
ment decisions were made centrally, rather than in the
field by local branch office management. The affidavit
also contained a set of statistics, compiled from annual
reports submitted to the E.E.O.C., comparing the
employment of females in clerical and management job
categories with general labor force statistics.
In response to the Plaintiffs’ Motion, the Company
argued that the class sought by the Plaintiffs would be
unmanageable and that it failed to satisfy the require-
ments of Rule 23 of the Federal Rules of Civil
Procedure. In particular, the Company submitted
Intervenor v. United States Fidelity and Guaranty Company,
L.K. Merz, Howard Gould, Robert Rowe and John H. Aitken,
Defendants.
+
affidavits pointing out that it employed over 8,000
persons, 5,000 of whom were female, in its Home Office
in Baltimore, Maryland, and in 59 branch office in 45
different states. The Company showed that each
branch office contained ten different departments,
encompassing over 40 different jobs, and thiat local
management was responsible for the hiring, promotion,
demotion, discipline, transfer and firing of employees.
The function of the Home Office, the affidavits stated,
was to provide general policy guidelines and to consult
with branch office managers, but not to make actual
employment decisions affecting individuals. Because of
the branch managers’ autonomy, the Company argued,
the Plaintiffs failed to satisfy Rule 23 with regard to
employees in other branch offices. The lack of common
supervision, the Company contended, would make the
class sought unmanageable because there would be
different facts and circumstances surrounding the
employees in the Company’s 60 different offices.
On November 22, 1977, the District Court certified the
class, consisting of:
all past, present and future women employed at
Defendant United States Fidelity and Guaranty
Company at any of its offices in the United States
since July 5, 1965, and all past, present and future
female applicants for employment with Defendant
United States Fidelity and Guaranty Company at
i of its offices in the United States since July 5,
1 .
On January 13, 1978, the District Court issued its
Memorandum Accompanying Order Certifying Case as
Class Action (App. 57). This Memorandum, which is
virtually the Plaintiffs’ motion retyped, makes no
mention of the points in opposition raised by the
Company. It does state:
Defendant USF&G is headquartered in Balti-
more, Maryland and has fifty-eight branch offices
PPPOrrmAREY TT o ° “RE Dae
5
located in thirty-eight states. Although each office
varies in number of persons employed, the average
size of each branch office is eighty to one hundred
employees. In total, USF&G employs over 7,500
people of whom over 4,500 are women. For all of
the time relevant thereto, USF&G’s total workforce
has been 58% or greater female. USF&G has
centralized and uniform personnel policies as
evidenced by the Supervisors Guide which was
referred to during the course of the Mead retalia-
tory discharge trial. Throughout all of its offices,
defendant uses the same personnel standards and
forms and applies uniform personnel policies
throughout its entire organization. USF&G has
developed and utilized in its employment policies
and practices a written job description which
identifies the basic qualifications and grade for
each job at USF&G (App. 58).
The Memorandum then sets forth statistical tables,
derived from the statistics in the Zugschwerdt affidavit.
Based on the facts set forth, the Court held that the
Plaintiffs had satisfied the requirements of Rule 23 with
regard to a national, across-the-board class.
On January 19, 1978, the Company’s application for
certification of interlocutory appeal pursuant to 28
U.S.C. §1292(b) was denied by the District Court. (App.
75). Subsequently, on February 21, 1978, the Company
filed a Petition for Writ of Mandamus in the United
States Court of Appeals for the Eighth Circuit, seeking
relief from the class certification order.”
In its Petition, the Company argued that because of
the branch office supervisors’ autonomy, the District
Court erred in finding that the Plaintiffs satisfied Rule
23 with regard to employees in other branch offices.
This error, the Company argued, was not a technicality
2 The Petition for Writ of Mandamus also concerned the
District Court’s failure to establish a class cut-off date, and
the order permitting the E.E.0.C.’s intervention. These issues
will not be pursued here.
6
for it led to certification of a class that was so diverse
that it was inherently unmanageable. The difficulty in
explaining decisions made in 60 offices in 45 states,
concerning over 5000 class members, would, it was
contended, place a virtually impossible burden on the
Company in rebutting the Plaintiffs’ claims.
The Company further noted that the existence of
certain centralized documents, forms, and general
policies did not make the nationwide class appropriate
because the centralized policies are sexually neutral
and consistently impose upon branch office managers
the duty to make specific personnel decisions.
On March 23, 1978, the Court of Appeals ordered the
Plaintiffs to respond to the Petition and stayed the case
pending resolution. The Plaintiffs filed briefs arguing
that the writ of mandamus was not available and that
the record supported the class certification order,
pointing in particular to the various documents issued
by the Home Office personnel department. Oral
argument was held on May 17, 1978.
On September 13, 1978, the Circuit Court issued its
decision denying the writ (App. 1). In its decision, the
Court stated that mandamus was not available to
review discretionary decisions, such as class certifica-
tion orders, and that there was ample evidence before
the District Court to support its exercise of discretion to
certify the class. It further noted that class certification
is conditional, and that the class may be redefined if
necessary.
REASONS THE WRIT SHOULD BE GRANTED
The Company is cognizant of this Court’s recent
decisions, issued after oral argument was held before
the Court of Appeals, which stress the extraordinary
nature of mandamus, Will v. Calvert Fire Insurance
Co., __ U.S. ___, 98 S. Ct. 2552 (1978), and which limit
etki ~~. ST
heii Sh
7
interlocutory appeals of rulings denying class action
status, Coopers & Lybrand v. Livesay, _ U.S. —_, 98
S. Ct. 2454 (1978); Gardner v. Westinghouse Broadcast-
ing Co., _— U.S. ——, 98 S. Ct. 2451 (1978).° The
Company submits, nonetheless, that when a class
action ruling goes beyond the bounds of the district
court’s discretion, review by means of mandamus
should be available, notwithstanding the conditional
nature of the order. It further submits that the class
ruling in this case constituted an abuse of discretion,
for which the writ should have been issued. These
arguments raise important questions of federal law and
procedure, which should be, but are not yet, decided by
this Court.
1. The availability of mandamus.
This Court has not decided whether the writ of
mandamus is available to review a class certification
order. Such powers, the Company submits, are approp-
riate, under the branch of the law of mandamus
permitting circuit courts to review district court deci-
sions that constitute a clear and irreparable abuse of
discretion. In La Buy v. Howes Leather Co., 352 U.S.
249 (1957), the circuit court issued a writ vacating the
district court’s reference of a complex anti-trust case to
a master. The Supreme Court affirmed, stating, “the
exceptional circumstances here warrant the use of the
extraordinary remedy of mandamus.” 352 U.S. at 256.
An extremely overbroad class certification order has
much in common with an erroneous reference to a
3 The “death knell” cases are distinguishable from this
case on the ground that they involve decisions not to certify a
class, which impose no prejudice to the plaintiffs right to
seek individual relief. Moreover, the Company here does not
seek review as a matter of right, but discretionary review,
with, however, the discretion vested in the Circuit rather
than the District Court. Cf. 28 U.S.C. §1292(b).
8
master.‘ Class rulings, like references, are a discretion-
ary matter of judicial management (although the
discretion is more closely confined under F.R.C.P. Rule
53(b)). Erroneous class certifications, like errors in
making reference to a master, are ultimately reversible
upon appeal, but by the time of appeal irreversible
harm has already been done, because the parties have
been subjected to extremely costly litigation, which
cannot result in a lawful judgment.
That a class certification order is conditional should
not bar issuance of a writ. As a practical matter, a
conditional class certification will govern the litigation
of the case, and is not likely to be reconsidered, except
perhaps in fashioning relief.’ Courts should not allow
the label of “conditional” to obscure the fact that
district courts may abuse their discretion in initially
certifying classes, to the great detriment of litigants.
‘ At least one Circuit, the Third, has employed the writ of
mandamus to consider class action discovery questions in
employment discrimination cases. In Rogers v. United States
Steel Corp., 508 F.2d 152 (3rd Cir. 1975), the court issued a
writ of mandamus to vacate a district court order restricting
the plaintiffs’ communications with class members. In
Western Electric Co., v. Stern, 544 F.2d 1196 (3rd Cir. 1976), it
issued a writ of mandamus directing the district court to
permit the defendant to serve certain disputed interrogato-
ries. In Coles v. Marsh, 560 F.2d 186 (3rd Cir. 1977), the court
again issued a writ to vacate orders restricting communic«-
tion with class members.
’ Professor Miller has stated:
In terms of the dynamics and economics of class actions,
and most particularly in a Rule 23(b)(3) damage case, the
lawyers believe that whether the case will be certified as
a class action under Rule 23(c)(1) is the single most
important issue in the case. All the lawyers’ weapons
and all of the litigants’ resources tend to be mobilized to
deal with that question. Defense lawyers believe that
their ability to settle the case acvantageously or to
convince the plaintiff to abandon the case depends on
blocking certification. Conversely, plaintiffs’ lawyers
9
The cost aspect of class action litigation should not be
ignored. Although this Court expresses far more
concern with judgments than with procedural ques-
tions, especially on interlocutory appeais,® the cost of
class action litigation is often greater than the amount
of judgments in what would be considered large scale
civil litigation. The courts should be particularly
sensitive to litigation costs in class action litigation,
because class actions are a creature of the courts,
authorized by Rule 23 and by judicial decisions to
expand litigation beyond the immediate named lit-
igants, and because they involve active management of
litigation by courts, rather than the traditional judicial
passivity, and thus present added potential for judicial
abuse.’ |
believe that their ability to obtain a large settlement
turns on securing certification.
Inasmuch as almost all class actions are settled, from
the district judge’s perspective certification also proba-
bly represents the single most important question in the
administration of a particular class action.
A. Miller, An Overview of Federal Class Actions: Past,
Present and Future 12 (1978) (emphasis added).
6 Gardner v. Westinghouse Broadcasting Co., 98 S. Ct. at
2453, note 7.
7 In Lamphere v. Brown University, 553 F.2d 714, 717 (1st
Cir. 1977), the Court stated, “there is no substantive right to
protection from unnecessary litigation.” Rule 23, however,
requires that district courts manage and control class action
litigation, with an object certainly being avoidance of
unnecessary expense. It is an extremely shortsighted view
that ignores the burden of litigation in promoting social
causes, one which has prompted great public hostility.
United States Dept. of Justice, Proposed Revisions in Federal
Class Damage Procedure, S. 3475, Bill Commentary 1-6,
(August 25, 1978).
10
2. The Circuit Court erred in ruling that the District
Court’s order did not constitute an abuse of discretion.
This Court has devoted virtually no attention to the
problem of class ~ertification,* which is one of the most
important issues facing employment discrimination
litigants and the overburdened federal courts. This case
presents an opportunity to consider the problem of class
certification, at the inception of the litigation, and to
rule on the proper scope of employment discrimination
class actions.
One purpose of the common question and typicality
requirement of Rule 23(a) is to ensure that classes are
cohesive, in other words, that the class issues are
identical to or closely related to the issues raised by the
representative plaintiffs, such that it is economically
efficient to engage in mass rather than individual
litigation."° In this case, the named Plaintiffs were
employed ‘n the employer’s branch office in Minnesota.
Indisputably, routine employment decisions affecting
* As a result, litigants strain to apply the language of East
Texas Motor Freight v. Rodriquez, 431 U.S. 395 (1977). See
discussion of interpretations of Rodriquez in Shelton v.
Pargo, Inc., F.2d . 17 FEP Cas 1413 (4th Cir. 1978).
* The fact that this case comes to the Court without a
verdict on the merits is in one respect a point in favor of its
consideration. Here, there is no finding of class wide
discrimination that would be a barrier to reversing class
certification, nor a verdict for the defendant, who wishes to
preserve the res judicata effect of the decision. Unlike
Rodriquez, supra, this case presents the class certification
issues in their normal context, and is thus an apt vehicle for
Supreme Court review.
There is a school of thought exemplified in Lamphere v.
Brown University, supra, which holds that Title VII class
actions have virtually the same scope as individual cases.
This view is not borne out by practice, especially in “across-
the-board” cases where the class issues include a variety of
allegations which plaintiffs have no standing to raise as
individual plaintiffs. See discussion of across-the-board class
actions in Shelton v. Pargo, supra.
ee
11
them were made by local supervision, within a neutral
framework provided by the Supervisors’ Guide to
Employee Practices, and other personnel documents.
The Company does, of course, have a Home Office
personnel department, but its involvement in the field is
limited to referrals of questions by local supervisors and
dealing with serious grievances, such as E.E.O.C.
charges. Under these circumstances, the issues raised
by the Plaintiffs’ own employment are largely separate
and distinct from the question concerning the employ-
ment of other persons throughout the nation.!!
The District Court’s errors are not mere legal
technalities correctable upon appeal. The result of the
errors is that the Company is forced into simultaneous
defense of class action allegations involving 60 differ-
ent offices in 45 states, which may involve completely
different facts. Any one of these offices could be the
subject of lengthy and difficult litigation involving
protracted discovery and extensive use of statistics. The
Company’s problem is compounded by the allocation of
the burden of proof. The Plaintiffs may make out a
prima facie case relatively easily, by introduction of
appropriate labor force statistics. The Company's
burden then is to explain that static picture by use of
dynamic analysis dealing with the process of hiring,
promoting and transferring of employees throughout
the many different offices.'? It is an extremely difficult
task to create such an analysis for any corporation. It is
perhaps an impossible task in this case, where the
1! N.O.W., St. Paul Chapter v. 3M., 14 FEP Cas. 829 (D.
Minn. 1977). In Hauck v. Xerox Corp., 78 FRD 375 (E.D. Pa.
1978), the Court distinguished between allegations concern-
ing disparate impact of an identifiable policy, and allega-
tions of disparate treatment. Disparate impact questions may
be inherently common to a class, while disparate treatment
questions are likely to vary from supervisor to supervisor,
and location to location. The allegations in this case involve
disparate treatment.
‘2 Hazelwood School District v. U.S., 433 U.S. 299 (1977).
12
corporation is not only large, but is geographically
diffuse and, unlike a manufacturing operation, involves
a large number of different skilled jobs. Moreover, to the
extent that defense involves consideration of individu-
als as evidence of practices, the Company would be
required to present innumerable witnesses in order to
establish a picture of practices in all of its separately
supervised locations. For these reasons, the Company
submits thet the class certified by the District Court is
inherently unmanageable, to the extent that its certifi-
cation constituted an abuse of discretion.
The District and Circuit Courts have taken an
optimistic view of the problem of manageability in this
case, noting that the class order may be revised if
necessary.'* The experience of other courts, however,
teaches that hopeful assumptions about the managea-
bility of cases frequently result in disaster. No better
example can be found than the case of Pettway uv.
American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.
1978). In its fourth opinion in that case, which it
remanded for still more consideration by the district
court, the Fifth Circuit wrote:
The length of litigation in complex Title VII
class actions often rivals that of even the most
notorious antitrust cases. In the instant case, we
encounter another judicial paleolithic museum
sooge Last year this court, speaking in retrospect
ut proving to be prophetic as well, cited Pettway
III as an example of the time and expense which
must be incurred before the dust of combat has
finally settled in employment discrimination class
actions. Cotton v. Hinton, 559 F.2d 1326, 1331, 15
FEP Cases 1342, 1344 (5th Cir. 1977). Little did we
then realize that we were dealing with atomic
fallout rather than mere dust. At the beginning of
our 57 page opinion in Pettway III we stated,
perhaps naively, that
13 On November 3, 1978, the District Court issued an order
referring this case to a master for discovery and trial.
13
“Although the path of this law suit is strewn
with the corpses of intermediate decision, the
posture of the present case on appeal will hopefully
allow final resolution. In order to accomplish that
the opinion must unfortunately be long and
complex.” 494 F.2d at 216, 7 FEP Cases at 1119
(footnote omitted). As is now evident, the fallout
continues to radiate, and our earlier optimism
regarding the disposition of this case has mutated
to less hopeful emotions. 576 F.2d at 1168.
The Pettway case not only illustrates the horrible
quagmire that courts and litigants can create in class
action cases,'* but also makes it clear that denial of an
appropriate interlocutory appeal may very well in-
crease, rather than decrease, the amount of judicial
time and resources the crowded courts of appeals may
have to devote to a particular case.
\4 See also Johnson v. Ga. Highway Express, 417 F.2d
1122, 1126 (5th Cir. 1969) (Godbold, J. concurring):
Envision the hypothetical attorney with a single client,
filing a class action to halt all racial discrimination in
all the numerous plants and facilities of one of America’s
mammoth corporations. One act, or a few acts, at one or
a few places, can be charged to be part of a practice or
policy quickening an injunction against all racial
discrimination by the employer at all places.
It is tidy, convenient for the courts fearing a flood of
Title VII cases, and dandy for the employees if their
champion wins. But what of the catastrophic conse-
quensces if the plaintiff loses and carries the class down
with him, or proves only such limited facts that no
practice or policy can be found, leaving him afloat but
sinking the class?
14
CONCLUSION
In conclusion, the Company submits that the amor-
phous, nationwide, across-the-board class certified by
the District Court poses such substantial problems of
manageability that it constituted an abuse of discre-
tion, which the Circuit Court should have cured by
issuance of a writ of mandamus. The Supreme Court’s
recent decisions, the Company submits, do not bar
issuance of the writ, where, as here, a district court has
misapplied Rule 23 in creating a class that would be
virtually impossible to properly defend, in view of the
enormous and unprecedented number of persons,
geographic diffusion and diverse positions and qualifi-
cations involved.
WHEREFORE, the Company respectfully requests that
this Petition for Writ of Certiorari be granted.
Respectfully submitted,
RipER, BENNETT, EGAN & SHAWE & ROSENTHAL
ARUNDEL By EARLE K. SHAWE
By Stuart W. Riper, JR. STEPHEN D. SHAWE
WILLIAM T. EGAN ARTHUR M, BREWER
Timotuy R. THORNTON Er1Ic HEMMENDINGER
900 First Nat. Bank Bldg. Sun Life Building
Minneapolis, Minn. 55402 Charles Center
(612) 340-7922 Baltimore, Md. 21201
(301) 752-1040
December 1978
la
APPENDIX
United States Court of Appeals
for the Eighth Circuit
No. 78—1127
United States Fidelity and Guaranty Company, L. K.
Merz, Howard Gould, Robert Rowe, and John
Aitken, |
Petitioners,
VU.
The Honorable Miles W. Lord, Judge of the United
States District Court for the District of Minnesota,
Fourth Division,
Respondent,
and
Sheila Mead and Terry Oakley, and all other persons
similarly situated, and Equal Employment Oppor-
tunity Commission,
Respondents.
Submitted: May 19, 1978
Filed: September 13, 1978
Before HEANEY, Circuit Judge, STEPHENSON,
Circuit Judge, and BECKER, Senior District Judge.
BECKER, Senior District Judge.
* The Honorable William H. Becker, Senior District Judge,
Western District of Missouri, sitting by designation.
2a
PETITION FOR WRIT OF MANDAMUS
In this class action litigation petitioners pray for a
writ of mandamus commanding the respondent (1) to.
limit an order of the respondent district judge, certify-
ing a national plaintiff class, (2) “compelling” the
respondent to limit to Minnesota and set a cut-off date
for the class conditionally, and (3) to vacate an order
permitting the Equal Employment Opportunity Com-
mission (EEOC) to intervene in the action.
The petitioners are defendants in the civil action
pending before the respondent United States District
Judge in the Fourth Division of the United States
District Court for the District of Minnesota. The action
in question is pending on a class action complaint filed
by Sheila Mead and Terry Oakley, former employees of
United States Fidelity & Guaranty Company (USF&G)
until January and April, 1977, respectively. The
amended complaint seeks to enforce provisions of Title
Vit of the Civil Rights Act of 1964, on their behalf
individually and a “company-wide” class of “all female
persons who have been, or are presently employed or
might be employed and all past, present and future
female applicants for employment at defendant USF&G
offices throughout the United States ... .” (Supple-
mental Appendix, “S.A.” hereinafter, 3).
In the amended complaint (“complaint” hereinafter)
plaintiffs Mead and Oakley allege that the defendant
USF&G is a Maryland corporation, doing business in
Minnesota and elsewhere in the United States (S.A.2):
that the “following company-wide practices, policies,
rules, regulations, customs and usages made unlawful
by Title VII, have been and continue to be uniformly
instituted and/or maintained by defendant USF&G
throughout all of its offices in the United States” (S.A.
3, 4); and that USF&G has discriminated and continues
to discriminate against plaintiffs individually, and
members of the alleged national class of female
employees solely on the basis of sex (S.A. 3-8). The
complaint alleges discrimination in practically every
imaginable detail, including generally discriminatory
de a
3a
denial of recruitment, training, promotion, equal pay,
equal status, opportunities for transfer and employment
as underwriters, outside claim adjusters, assistant
supervisors, supervisors, management and _ higher
paying “policy level positions” (S.A. 5, 6).
In Count I, (“Claim I” in complaint) plaintiffs Mead
and Oakley allege discriminatory denial of their
requests for training and transfer to positions of
underwriters, and that they and other female employees
have been segregated into clerical, secretarial, and
other “non-professional, low-paying, dead-end job
classifications with no promotional opportunities,” in
contrast to the different treatment of males (S.A. 7).
In Count I, plaintiff Mead alleges that she was
pregnant in 1976; that upon learning of her pregnancy
the defendants attempted to discourage her from
continuing her employment by unsupported adverse
reviews of her work, and by “encouraging her not to
return to work following her pregnancy” (S.A. 7, 8); that
USF&G delayed her return to employment, when she
was ready for return, solely because of her pregnancy
and the denial, solely because of her pregnancy, of
other benefits for illness and disability, available to
other employees (S.A. 7, 8).
In Count II, plaintiff Mead alleges that she filed a
charge of discrimination with the EEOC in May, 1976
(S.A. 8); that in retaliation the defendants harassed,
intimidated and coerced her by assigning excess work
to her, excessive monitoring of her work, depriving her
of the assistance of other employees, unsupported
adverse reviews, denial without just cause of a raise in
pay, and wrongful discharge within several days of
receipt by her of notice of a right to sue (S.A. 8).
In Count III, plaintiff Mead alleges damage from
discrimination described in Count I, and in addition
discrimination in maternity benefits, measured by non-
pregnancy benefits in the “company-wide group medi-
cal insurance plan” of USF&G in violation of the
4a ¢
Minnesota Human Rights Act, as amended, Minn. Stat.
363.03 subdivision 1(2) (S.A. 9).
The individual defendants, Merz, Aitken, Gould, and
Rowe, are alleged to have been or to be presently
officers in the Minneapolis office of USF&G in which
the individual plaintiffs were employed, and to have
participated in the alleged discrimination.
Exhaustion of “jurisdictional and administrative
remedies” of Title VII and the Minnesota Human
Rights Act is alleged in the complaint. ;
The complaint contains allegations that the require-
ments of paragraphs (a), (b)(2), and (b)(3) of Rule 23
F.R.Civ.P. have been met (S.A. 3).
The relief prayed for is (a) declaration by the court
that the alleged discriminatory practices are unlawful:
(b) a preliminary injunction against USF&G, its agents,
successors, employees, directors, officers, and attorneys
from continuing the alleged unlawful practices; (c) order
USF&G “to make whole” plaintiffs, and members of the
class, by “backpay, front pay and otherwise, all
individuals who have been adversely affected” by the
alleged discrimination; (d) reinstatement of plaintiff
Mead to employment by USF&G, and enjoining the
defendants from subjecting her to special regulations or
denying her equal employment; (e) award of punitive
damages against USF&G; (f) other general relief
including, but not limited to, orders directing recruit-
ment, hiring, training, promotions of plaintiffs and
class members; and (g) award of attorneys’ fees and
costs to plaintiffs under § 2000(e)-5(k), Title 42 U.S.C.,
and Minn. Stat. 363.14, subd. 3 (S.A. 10, 11).
Before certification of the class, the district court for
fourteen days heard evidence on the claim for relief of
plaintiff Mead for retaliatory discharge, and found that
she was constructively discharged in retaliation for her
filing of charges of discrimination with the EEOC.
On November 22, 1977, the district court ordered that
the action below be certified as a compulsory class
5a
action under paragraph (b)(2) of Rule 23, F.R.Civ.P., on
behalf of a class defined as “all past, present, and
future women employed by defendant ‘USF&G’ at any
of its offices in the United States since July 2, [sic] 1965,
and all past, present, and future female applicants for
employment with defendant ‘USF&G’ at any of its
offices in the United States since July 5, 1965” (A. 10,
11). The minor discrepancy in the dates July 2, 1965,
and July 5, 1965 (the date Title VII of the Civil Rights
Act of 1964 became effective) appears to be a clerical
error easily correctable.
The EEOC was granted leave to intervene as plaintiff
intervenor and to file a complaint in intervention,
pursuant to Rule 24(b)(1) F.R.Civ.P. and to Sections
705(g@(6) and 706(f)(1) and (3) as amended, Title VII of
the Civil Rights Act, 42 U.S.C. § 2000(e) et seq.
This leave to intervene was first limited to interven-
tion in the claim in Count II of plaintiff Mead for
retaliatory discharge (A. 1-9). Later after allowing time
for conciliation efforts, without results, the district court
granted leave to the EEOC to intervene as a party
plaintiff without restriction, after General Counsel of
EEOC certified that the action was one of general
public importance, pursuant to Rule 24(b)(1) F.R.Civ.P.
and Sections 705(g)(6) and 706(f)(1) of Title VII of the
Civil Rights Act of 1964 as amended, Sections
2000e(4\(g@)(6) and (5)(f)(1), Title 42 U.S.C, (A. 12-15),
On January 13, 1978, the district court entered a
carefully prepared memorandum of findings of fact,
conclusions of law, and affirmation of its prior order
certifying the action as a class action. The full text of
this memorandum, with caption omitted, is attached
hereto and entitled Addendum (A. 16-30).
After the filing of the complaint by plaintiffs Mead
and Oakley, the district court consolidated an action
brought by EEOC pursuant to Section 706(f)(2) of Title
VII with the Mead claim for relief based on alleged
retaliation. Later, the EEOC moved to intervene in the
original action, alleging a pattern of nationwide
6a
discrimination. A certificate of the General Counsel of
EEOC was issued certifying that the action was one of
“general public importance” under Section 706(e),
Section 2000(a)-3(e, Title 42 U.S.C. The class allega-
tions of the complaint in intervention were substan-
tially the same as those in the (amended) complaint of
Mead and Oakley. Originally the district court allowed
the EEOC to intervene only in respect to the retaliation
claim of plaintiff Mead. In respect to the complaint of
nationwide discrimination, the district court stayed the
action for sixty days requesting that the EEOC make a
prompt offer to conciliate. After the district court
extended the time for conciliation, the EEOC advised
the district court that conciliation could not be
achieved, In the meantime, the district court heard the
retaliation claim of Mead and found from the evidence
that USF&G had retaliated against Mead for filing a
charge of discrimination with the EEOC, Thereafter, on
the basis of affidavits of the parties, including those of
EEOC, uncontroverted documentary evidence and other
evidence in the trial of the retaliation claim, the district
court conditionally certified the nationwide class under
paragraph (b\(2) of Rule 23, retaining power to correct,
modify or supplement the class action certification
under paragraph (c)(1) of Rule 23 (A. 10, 11).
This order was expanded by the filing of the detailed
findings of fact contained in the order set out hereinaf-
ter as an addendum (A. 16-30).
After the original certification of the class, the EEOC
was permitted to intervene in the action on the
complaint as a whole (A. 12-15).
Petitioner USF&G requested that the district court
enter an order certifying a discretionary interlocutory
appeal under Section 1292(b), Title 28 U.S.C. The
district court denied this request (A. 31-37).
For the reasons stated herein, the petition for a writ
of mandamus will be denied in respect to all the
requests, including that the definition of the class be
limited to Minnesota, that an “appropriate cut-off date”
Ta
for the class be ordered, and that the order permitting
EEOC to intervene be vacated.
.
Availability of Mandamus
Petitioner USF&G argues that under the All Writs
Act, Section 1651, Title 28 U.S.C., mandamus is
available to review the propriety of a conditional class
action certification, the entry of which is discretionary.
The cases cited by petitioner from this circuit do not
support the contention of petitioner.
The rule in this circuit on review of interlocutory
discretionary conditional class action orders is stated in
In re Cessna Aircraft Distributorship Antitrust Litiga-
tion, (C.A. 8 1975) 518 F.2d 213, l.c. 215-17, cert. denied,
423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282, reh. denied,
423 U.S. 1039, 96 S.Ct. 577, 46 L.Ed.2d 414 (1975), in a
comprehensive opinion by Judge Stephenson, as fol-
lows:
In the instant case, appellant Cessna initially
argues that all orders granting class action status
to cases involving substantial claims for monetary
damages should be appealable under § 1291.
However, the Eisen decision appears to reject such
an across-the-board determination of appealability.
See 417 U.S. at 170, 94 S.Ct. 2140. Alternatively,
Cessna contends that the particular facts of this
case require that we entertain this appeal in
accordance with the dictates of the Cohen doctrine.
Our examination of the record in this case and the
nature of an order granting class action status
under Rule 23 convinces us that the order here is
not sufficiently “final” or “collateral” to justify
appellate review at this time.
Under Rule 23 the district court is given broad
discretion to determine the maintainability and the
conduct of class actions. See Wilcox v. Commerce
Bank, 474 F.2d 336, 344 (10th Cir. 1973); City of
New York v. International Pipe & Ceramics Corp.,
410 F.2d 295, 300 (2d Cir. 1969). By the very
language of the rule, any order rendered by the
district court regarding the maintenance of the
8a
class action “may be considered conditional, and
may be altered or amended before any decision on
the merits.” Fed.R.Civ.P. 23(c)(1). Thus, in dis-
charging its obligations to assure the “fair and
efficient adjudication of the controversy,” the
district court retains the power to establish sub-
classes or to terminate the class status if subse-
quent developments so dictate. See Wilcox, supra,
474 F.2d at 344. The district court in this case
specifically retained these powers in the order
which granted the class status. Given these facts, it
is apparent that the order here cannot be consi-
dered “final” in the manner indicated by the Cohen
and Eisen decisions. (Citations omitted.)
Nor do we feel that the issue here is so divorced
from the merits that effective review cannot be had
after a final judgment is entered. Cessna’s conten-
tions regarding the propriety of the district court’s
order mg —— ability of White Industries to
serve as the class representative. Cessna argue
that White Industries, Inc. as a former dealer ca :
conflict of interest with present dealers that makes
it an unfit representative. In addition, Cessna
— that the claims of price discrimination in a
Robinson-Patman Act case are individualized as to
each dealer and cannot be the subject of class
action treatment. Obviously, if this court were to
entertain these issues, it would be plunging
headlong into the merits of the case. Each of these
issues can be raised and fully ventilated on appeal
following a final judgment. Consideration at this
time would serve no justifiable judicial purpose. See
Thill Securities Corp., supra, 469 F.2d at 15-16:
Walsh, supra, 412 F.2d at 227.
_In_so holding that the order in this case is
interlocutory and not appealable under § 1291, we
are not suggesting that early appellate review of
such orders is necessarily foreclosed in every case.
For example, the district court could have certified
this appeal under either § 1292(b) or Fed.R.Civ.P.
54(b) if it felt that the gravity of the class action
certification issue required an expedited hearing by
this court. As recently stated by the Third Circuit
9a
in Samuel v. University of Pittsburg, 506 F.2d 355,
361 (3d Cir. 1974), by using these alternative means
of review “the knowledge lied of the district court’s
proximity to the case can be brought to bear on the
question of the propriety of immediate review.” See
also Katz v. Carte Blanche Corp., 496 F.2d 747, 753-
56 (3d Cir. 1974); Hackett v. General Host Corp.,
455 F.2d 618 (3d Cir. 1972). It is significant to note
that the district court in this case refused to certify
this appeal under § 1292(b).
Finally, the remedy of mandamus remains
available in those extraordinary instances when
the district court, in granting the maintenance of a
class action, has exceeded “the sphere of its
discretionary power.” (Citations omitted.)
In the instant case, appellant Cessna has filed a
mandamus petition as an alternative means of
obtaining review by this court. The petition
requests that we either direct the district court to
certify the class action orders for appeal under
§1292(b) or simply reverse the lower court’s
granting of class action status. Nothing in the
record or briefs in this case convinces us that such
extraordinary relief is required. As stated by the
Supreme Court in Will, the writ of mandamus is
one of the “most potent weapons in the judicial
arsenal.” 389 U.S. at 107, 88 S.Ct. at 280. Where, as
here, there is absolutely no showing that the
district court abused its judicial power in granting
the class action, this drastic action cannot be
invoked. (Footnotes omitted.)
The rule of the Cessna case was followed in Sperry
Rand Corp. v. Larson, (C.A. 8 1977) 554 F.2d 868 in
which the petitioner sought mandamus to compel
decertification of a class certified by the district court
under paragraph (b)(2) of Rule 23, as in this case. In the
Sperry Rand case, l.c. 872, Judge Webster carefully and
properly distinguished Schmidt v. Fuller Brush Co.,
(C.A. 8 1975) 527 F.2d 532, relied on by petitioner in this
case.
The rule of the Cessna and Larson cases is consistent
with the recent decisions of the Supreme Court of the
10a
United States forbidding piecemeal review of class
action orders in the absence of a certification of a
discretionary interlocutory appeal by a district court
under Section 1292(b), Title 28, U.S.C. Coopers &
Lybrand v. Livesay, _. U.S. ___, 98 S.Ct. 2454, 57
L.Ed.2d 351 (1978); Gardner v. Westinghouse Broadcast-
-- la —_. U.S. ——, 98 S.Ct. 2451, 57 L.Ed.2d 364
(1 ;
Mandamus is not available to review and control the
exercise of lawfully authorized discretion by a district
court. Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19
L.Ed.2d 305 (1967); Kerr v. United States District Court,
426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976).
Petitioner complains of some alleged procedural
errors of the district court. The denial of the writ of
mandamus is without prejudice to the right of the
petitioner to complain of any error on an authorized
appeal.
The same reasons that make mandamus unavailable
to compel a district court to vacate a discretionary class
certifica.».n order, make the writ unavailable to limit
membersh.ip in the class to persons in a particular state
and to limit the class by a particular time period of
employment or eligibility of employment.
There was ample evidence before the district court to
support the exercise of its discretion to certify a
national class.
If it later appears that a national class is judicially
unmanageable, the district court can redefine the class
or create subclasses, on its own initiative, or on motion
of any party. Attention is invited to the feature
paragraph (b)(3) that the provisions of the second
sentence thereof relating to pertinency or manageabil-
ity in subparagraph D is applicable expressly only to
class action under paragraph (b)(3). Nevertheless, it is
assumed, for the purposes of this opinion, that there is
an implied condition of manageability in class actions
under paragraph (b)(2) also.
Rekialo ot
lla
II.
Intervention by the EEOC
There remains for determination the contention of
petitioners that this court should issue mandamus to
require the district court to vacate the order permitting
the EEOC to intervene ‘on an unlimited basis.”’ The
petitioners argue in support of this contention that
EEOC may expand the scope of the original action by
proposing an earlier cut-off date; that the EEOC was
permitted to intervene without having proceeded first
through the four-step sequential processes of (1)
receiving a timely charge, (2) investigating the charge,
(3) determining the charge, and (4) conciliation.
In response to these arguments, the EEOC correctly
argues that the district court under the applicable
statutes, federal rule of civil procedure, and controlling
decisions of this court, was vested with the discretion-
ary power to permit EEOC to intervene, originally in
the claim for relief of Mead based on retaliation, and
later in the action of plaintiffs based on alleged
nationwide discrimination.
In approaching the question of intervention, the
district court followed the controlling decision of this
court in Johnson v. Nekoosa-Edwards Paper Co. (C.A. 8
1977) 558 F.2d 841, cert. denied, Nekoosa Papers, Inc. v.
Equal Employment Opportunity Commission, 434 US.
920, 98 S.Ct. 394, 54 L.Ed.2d 276 (1977).
After permitting EEOC to intervene in the retaliation
claim of plaintiff Mead, the court stayed the principal
action based on alleged claims of nationwide discrimi-
nation for sixty days for conciliation efforts. The stay
was extended thereafter until the EEOC advised the
court that conciliation was not possible. In the
meantime, the General Counsel had, on behalf of the
Attorney General, certified the action as one of general
public importance pursuant to Section 706(e) of The
Civil Rights Act of 1964, Section 2000a-3(a) Title 42
U.S.C. This section authorizes the district court to
permit the EEOC to intervene in such circumstances.
Rule 24(b) of the Federal Rules of Civil Procedure
12a
confirms the right of permissive discretionary interven-
tion when “a statute of the United States confers a
conditional right to intervene.“ In Johnson v. Nekoosa-
Edwards Paper Co., supra, this court approved the
power of the district court, in its discretion, to permit
the EEOC to intervene prior to an attempt to conciliate
and prior to completion of the administrative processes.
While the complaint in intervention (S.A. 12-16) in this
action did not substantially extend the scope of the
(amended) complaint, this court, in the Nekoosa-
Edwards case, supra, held that the district court, in its
discretion, could permit intervention which broadened
the scope of the original action. The rule of the
Nekoosa-Edwards case, supra, to defer intervention of
the EEOC until conciliation had failed was followed in
this action by the district court.
In ruling on intervention we have emphasized the
power of the district court to allow the challenged
permissive intervention, in its discretion, because as
demonstrated in Part I hereof, mandamus will not lie to
review the exercise of a lawful discretion of a district
judge, not only in class action rulings, but also in other
exercises of discretion, including orders granting leave
for permissive intervention.
For these reasons, the district court will not be
required to vacate the order permitting the EEOC to
— or to limit the scope of the intervention by
The petition for a writ of mandamus is hereby denied
in respect to each prayer for relief without prejudice to
eg rights to assign error on an appeal authorized by
aw.
l3a
U.S. District Court, District of Minnesota
MEAD, et al., and EQUAL EMPLOYMENT OPPOR-
TUNITY COMMISSION, Intervenor v. UNITED
STATES FIDELITY AND GUARANTY COMPANY,
Nos. 4-77-16 and 4-77-42, September 14, 1977.
Action under Title VII of Civil Rights Act of 1964 by
former employee and EEOC against employer. Judg-
ment for former employee.
See also 18 FEP Cases 131, 442 F.Supp. 102; and 18
FEP Cases 136, 442 F.Supp. 109.
Frank E. Vogl, Frederick W. Morris, and Thomas D.
Carlson (Best & Flanagan), Minneapolis, Minn., for
plaintiffs.
Grant E. Morris and Katherine S. McGovern, Wa-
shington, D.C., for intervenor.
Timothy R. Thornton and David J. Byron (Rider,
Bennett, Egan, Johnson & Arundel), Minneapolis,
Minn., for defendants.
Full Text of Opinion
LORD, District Judge:
Findings of Fact, Conclusions of Law, Order for
Judgment on Plaintiff Mead’s §704(a) Retalia-
tory Discharge Claim
JURISDICTION
This matter originally came on for hearing on
plaintiff Sheila Mead’s Motion for Temporary and
Preliminary Relief filed on January 13, 1977, and
plaintiff Equal Employment Opportunity Commission’s
Petition for Temporary Relief filed on February 1, 1977,
pursuant to Section 706(f)(1)(2) and (3) of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §2000e-5(1)(2)
and (3), as amended by Public Law 92-261, 88 Stat. 103
(March 24, 1972) [Title VII]. Jurisdiction was vested in
this Court to hear the matter by §706(f)(1)(2) and (3) of
Title VII, 42 U.S.C. §2000e-5(f)(1)(2) and (3) and 28
U.S.C. §§451, 1343, and 1345. The parties stipulated that
the actions be “consolidated for the limited purpose of
l4a
determining the issue of retaliatory discharge of Sheila
Mead since both causes involve common questions of
law and fact, and that consolidation will reduce cost
and delay.” On, February 3, 1977, this Court ordered
Consolidation pursuant to the stipulation.
Hearings were held on the request for temporary
relief on January 14, 24, 25, 26, 27, February 7, 8, 9, 10,
11, 23, 25 and May 12, 1977. At the May 12, 1977,
hearing the Court announced its intention to bifurcate
the Mead retaliation claim from the remainder of the
action, pursuant to rule 42(b) of the Federal Rules of
Civil Procedure and to order the trial of the §704(a)
Mead retaliation claim on the merits to be advanced
and consolidated with the hearing on the requests for
temporary relief. The Court so ordered by its Memoran-
dum and Order dated June 8, 1977, specifically
directing that the issue to be resolved by the hearing on
the merits of the Mead retaliation claim was “whether
or not plaintiff Mead’s termination was in violation of
Section 704(a) of Title VII and, if so, what appropriate
remedies, if any should follow therefrom.” The Court’s
Memorandum on Jurisdiction, dated July 8, 1977,
addresses the basis of the Court’s jurisdiction over the
petitions for temporary relief and the trial on the merits
of the §704(a) Mead retaliatory discharge claim.
On July 12, 1977, the Equal Employment Opportunity
Commission, [hereafter EEOC or the Commission]
issued Ms. Mead a Right to Sue letter on her §704(a)
retaliatory discharge claim. By its Memorandum and
Order on Intervention, dated August 15, 1977, this
Court granted the Motion of the EEOC to Intervene in
the §704(a) Mead retaliatory discharge claim. The final
hearing on the merits of that claim was also held on
August 15, 1977.
After hearing and observing witnesses, reviewing the
exhibits received in evidence, the affidavits, the
certification, and considering the Verified Complaint,
the Motion for Temporary Relief. the Petition for
Temporary Relief, the briefs and arguments of counsel
and reviewing all the files, records and proceedings,
oe eee
15a
herein, the Court makes the following FINDINGS OF
FACT, ADDITIONAL CONCLUSIONS OF LAW, AND
ORDER:
FINDINGS OF FACT
1. Plaintiff Sheila Mead is a female U.S. Citizen and
resident of the State of Minnesota.
2. Plaintiff Equal Employment Opportunity Com-
mission is an administrative agency of the United
States Government charged with the enforcement of the
Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972. 42 U.S.C. §2000e,
et seq.
3. Defendant United States Fidelity and Guaranty
Company [hereafter USF&G] is a Maryland corpora-
tion with its principle place of business in Baltimore,
Maryland. Defendant USF&G does business in the
State of Minnesota, with a branch office located in
Minneapolis, Minnesota, where it is engaged in the
insurance industry and related activities and, as such,
is engaged in an industry affecting interstate com-
merce. At all times relevant herein, USF&G has
employed more than 15 persons, has been an employer
within the meaning of §701(b) of Title VII, 42 U.S.C.
§2000e(b), and has been engaged in an industry
affecting commerce within the meaning of §701(h) of
Title VII, 42 U.S.C. §2000e(h).
4. On March 27, 1972, Ms. Sheila Mead was
employed by defendant USF&G as a multi-line rate
clerk/typist in the Fire and Marine Department. Ms.
Mead worked for USF&G until January 7, 1977 when
her employment was terminated.
5. Defendant L. K. Merz was, until January 7, 1977
and at all material times prior thereto, the branch
manager in charge of the Minneapolis office of
defendant USF&G (TR. 158-160). Defendant Howard
Gould is and has been at all material times hereto the
Superintendent of the Fire, Marine and Multi-Line
Department [Fire Department] of the Minneapolis office
l6a
of defendant USF&G (TR. 329). Defendant Rowe is and
has been at all material times hereto the Assistant
Superintendent of the Fire Department of the Minnea-
polis office of defendant USF&G (TR. 43-45). Defend-
ants Merz, Gould and Rowe are agents of defendant
USF&G within the meaning of 42 U.S.C. §2000e(b).
6. On or about May 5, 1976, plaintiffs Sheila Mead
and Terry Oakley filed timely administrative charges
against defendant USF&G with the EEOC and the
Minnesota Department of Human Rights. Plaintiff
Mead filed her charge on behalf of herself and a
nationwide class of all female employees employed by
USF&G and alleged that USF&G has and is discrimi-
nating against both herself and all other female
employees on the basis of sex with respect to hire,
tenure, compensation, terms upgrading, conditions,
facilities and privileges of employment. Ms. Mead
further alleged that her employer, USF&G, has and is
discriminating against both herself and all other
female employees employed throughout the Company
by having a practice of treating disabilities related to
pregnancies and childbirth differently from other
temporary disabilities and by discriminating against
female employees because of their pregnancies by
treating them differently with respect to compensation,
terms, conditions, and privileges of employment. On
July 29, 1976 Ms. Mead amended her charge on behalf
of herself and all other women employees at USF&G to
state that, in addition to the unlawful discrimination
charges which she had alleged her employer practiced
in the May 5, 1976 charges, she alleged that USF&G as
an employer discriminates against herself and all other
women in its consideration of applications for jobs,
promotions, and training, and with respect to compen-
sation, conditions and privileges of employment.
Additional charges of unlawful employment discrimina-
tion on the basis of sex were filed against USF&G with
the EEOC and the Minnesota Department of Human
Rights on or about October 11, 1976 by Amy Quinn
LaVoie and Lesley Deaton; and on November 5, 1976 by
a ee a
17a
Lynn Sibernagel. On or about January 11, 1977, the
EEOC issued plaintiff Mead a Notice of Right to Sue on
her charges (Pl. Exs. 22, 23, 24, and 25).
7. On or about January 10, 1977, Sheila Mead filed a
charge with the EEOC which asserted that she had
filed sex discrimination charges with the EEOC on May
5, 1976, and that thereafter, USF&G retaliated and
discriminated against her for having filed the charge
by unfairly overloading her with work, depriving her of
the assistance provided similarly-situated employees,
preparing adverse work reports and, on January 7,
1977, discharging her.
8. On January 13, 1977, plaintiff Mead filed a
Complaint in federal district court pursuant to Sections
703 and 704(a) of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §2000e-2, 3(a) and filed a
Petition for a temporary restraining order, and for
preliminary and permanent injunctive relief under Rule
65 of the Federal Rules of Civil Procedure. In Count I of
her Complaint Ms. Mead alleges that USF&G has and
continues to discriminate against herself and a nation-
wide class of all its female employees by operating
under company-wide policies and practices which limit
and discourage recruitment of women, which discrimi-
nate against women with respect to hiring, job
classification, management training programs, disabili-
ties related to pregnancies, promotions and other terms
and conditions of employment. That charge is not
before this Court at the present time, except insofar as
it is alleged to the basis of and cause for the Company’s
retaliation, harassment, reprisals, and, ultimately,
discharge of Ms. Mead.
Count II of the Complaint, which is the subject of the
present proceedings, alleges that in May, 1976, the
defendants learned of the sex discrimination charges
filed by Ms. Mead on May 5, 1976, and that thereafter,
in retaliation for filing that charge, the defendant
USF&G through its agents harassed, intimidated and
coerced plaintiff Mead by, among other things, monitor-
ing her work with greater frequency than other
18a
employees similarly situated, depriving her of assist-
ance provided other employees similarly situated,
making unsupported adverse review about her work
and discharging her.
9. Upon receipt of Ms. Mead’s §704(a) charge, the
Commission conducted a preliminary investigation into
the alleged retaliation. Based upon its preliminary
investigation, the Commission concluded that prompt
judicial action was necessary to carry out the purposes
of the Title. On February 1, 1977, the Commission filed
a Petition for Temporary Relief, and related pleadings,
pursuant to Section 706(f)(2) and (3) of Title VII. 42
U.S.C. §2000e-5(f)(2) and (3) in the United States
District Court. On February 3, 1977, based on the
Stipulation of Counsel for plaintiffs Mead and EEOC
and defendants USF&G, Merz, Gould and Rowe, the
Court ordered consolidation of the Motion of Plaintiff
Mead and the Petition of Plaintiff EEOC. On or about
July 14, 1977, the EEOC issued plaintiff Mead a Notice
of Right to Sue on that charge of retaliation.
10. In the early part of May, 1976, defendant Merz,
the Branch Manager of the Minneapolis Office of
USF&G, received copies of the complaints Sheila Mead
had filed with the EEOC and the Minnesota Depart-
ment of Human Rights, and he spoke with the home
office and department superintendents about those
complaints. (TR. 161-62). Fire and Marine Department
Superintendent Gould and Assistant Superintendent
Rowe were also notified in early May that Ms. Mead
had filed charges with the EEOC alleging sex discrimi-
nation by defendant USF&G. (TR. 383-75).
11. There are six positions in the Fire Department at
USF&G: Superintendent, Assistant Superintendent,
Underwriter, Assistant Underwriter, rater and code
clerk (TR. 364-367). The next promotion from the
position as an Assistant Underwriter A is to the
position of Underwriter (TR. 375-376). For a period of at
least 16 years and until sometime after plaintiff Mead
filed her sex discrimination charges on May 5 and July
19a
29, 1976, no female employee had ever held the position
of Underwriter, Assistant Superintendent or Superin-
tendent in the Fire Department (TR. 372, 537). For this
16 year period and up to the present, no male employee
has ever held the position of Assistant Underwriter,
Code Clerk or Rater (TR. 364-367, 538).
12. Plaintiff Mead commenced employment with
defendant USF&G on March 26, 1972 and received
training for her job as a multi-line rate clerk. This
training consisted of another multi-line rater sitting at
Ms. Mead’s desk with her and going over rating
projects and answering questions. In 1972 and 1973 Ms.
Mead conducted training sessions for two new em-
ployees in the Fire and Marine Department.
13. Plaintiff Mead established a very good work
record with defendant USF&G over several years of
employment (Pl. Exs. 7-12). Plaintiff Mead’s record
establishes the following merit pay increases and
promotions:
March 26, 1972 Plaintiff Mead was hired as
a rate clerk typist grade 7 in
the Fire Department at
$110.00 per week (Pl. Ex. 7)
t 27, 1972 Plaintiff Mead received a
— merit increase of $8.50 per
week (Pl. Ex. 8)
April 22, 1973 Plaintiff Mead was promoted
oti to Assistant Underwriter B
and received a merit increase
of $10.50 per week (Pl. Ex. 9)
October 7, 1973 Plaintiff Mead received a
merit increase of $11.00 per
week (Pl. Ex. 12)
May 4, 1974 Plaintiff Mead was promoted
. to Assistant Underwriter A
and received merit increase
of $12.00 per week (Pl. Ex.
10)
June 29, 1975 Plaintiff Mead received a
merit increase of $11.40 per
week (Pl. Ex. 11)
20a
14. During 1975 there were three assistant underwri-
ters in the Fire and Marine Department at USF&G’s
Minneapolis branch office: Ms. Sheila Mead, Miss Ellen
Bunting, and Mrs. Laura Steinert. The Superintendent
of the Fire and Marine Department was Mr. Howard
Gould. Mr. Gould has been Superintendent of the
department for 16 years, and has been an employee of
USF&G for 29 years. The Assistant Superintendent of
the Fire and Marine Department was Mr. Robert Rowe.
Mr. Rowe has been Assistant Superintendent, since
1972, and has been employed by USF&G for 13 years.
As Assistant Superintendent, Mr. Rowe was Ms. Mead’s
immediate supervisor.
15. The issue before this Court is whether or not the
defendants lawfully terminated Ms. Mead’s employ-
ment at USF&G. It is the contention of the defendants
that Ms. Mead did not properly perform the duties of an
assistant underwriter and therefore that her discharge
was justified by poor work performance. In order to
evaluate this contention, it is necessary to compare the
duties of an underwriter to those of an assistant
underwriter in the Fire Department, to examine what
those duties are, whether or not they are clearly and
consistently defined, and to what extent they overlap.
16. An underwriter in the Fire and Marine Depart-
ment has as a primary responsibility the judgmental
decision of whether or not USF&G will accept a
particular risk and write an insurance policy for such a
risk. An underwriter’s job is a judgmental job that calls
for the exercise of a great deal of discretion in
determining whether or not to write a particular risk. In
order to make the underwriting decisions involved, it is
necessary that the underwriter have information about
the risk in order that he may judge the company’s
exposure in accepting a risk. Moreover, the underwriter
must know the premium that will be charged for the
risk in determining whether acceptance of the risk is
likely to be profitable.
1. The primary responsibility of a multi-line rate
clerk and an assistant underwriter is to assist the
2la
underwriters. The distinction between an assistant
underwriter A and multi-line rate clerk is that an
assistant underwriter A has more responsibility, is paid
more and has the ability to rate more varied lines of
insurance.
The assistant underwriter or rate clerk renders
assistance to the underwriter by calculating the
premium to be charged. This process is called “rating.”
Both Howard Gould, the Superintendent of the Fire,
Marine and Multi-Line Department of the Minneapolis
Office of USF&G, Ms. Mead’s department, and Robert
Rowe, the Assistant Superintendent of the Fire Depart-
ment, testified about the nature of the assistant
underwriter’s duties. Mr. Gordon Hies, an underwriter
with the Fire Department for one year and nine months
and Mr. William Allen Stanley who had been an
underwriter for three years during the time of Ms.
Mead’s employment also testified about the nature of
the job.
This Court finds that the only clear conclusion which
can be drawn about the duties comprising the assistant
underwriter’s job and the nature of the interrelationship
between the assistant underwriter’s and underwriter’s
job is that neither the jobs nor the interrelationship has
been clearly and consistently defined at USF&G. This
Court further finds that neither job duties nor their
interrelationship has been clearly and consistently
communicated to the underwriters and the assistant
underwriters at USF&G. Defendant Gould’s testimony
about the nature of the jobs and the relationship
between them contradicted Mr. Rowe's testimony. Mr.
Rowe’s description of the duties was internally incon-
sistent, contradictory, and, as he conceded, entirely
subjective and unguided by any regularly used objective
Company guidelines that he could refer to from the
witness stand.
For example, one unclarified area of dispute was over
who was to gather the basic information on the subject
of an insurance application, and how serious the error
was in the event of failure to gather the information.
22a
Initially, Mr. Rowe testified that if the information was
inadequate the assistant underwriter should contact the
underwriter. If the underwriter agreed that the informa-
tion was insufficient, someone would contact the source
(the agent or the applicant). At this point, Mr. Rowe
testified that it was not a major “rror for an underwriter
to send an assistant underwriter insufficient informa-
tion, but that it was a major error if the assistant
underwriter proceeded to develop the rate on the basis
of insufficient information. He answered affirmatively
when he was asked if he expected more of an assistant
underwriter than of an underwriter. Later, however, Mr.
Rowe testified that it was the duty of the assistant
underwriter alone to determine if she had received
sufficient information to enable her to develop the rate
on the subject to be insured. If she had received
inadequate information, it was the assistant underwri-
ter’s duty to contact the agent or applicant without first
consulting the underwriter. At this point Mr. Rowe
explained that the obligation was solely that of the
assistant underwriter because the underwriter, for
example, might have received the request for insurance
through the mail and would merely pass it on to the
assistant underw ter.
18. The rating process performed by the assistant
underwriter is not an objective determination of the
proper rate for the proper risk, for the following
reasons. First, the steps to be taken in the rating
process are not consistently and clearly defined in the
Fire Department. Second, there is discretion in the
rating process to determine when the information is
complete and where the rate comes from. Third, the
norm by which to determine adequate performance is
subjective, as conceded by Ms. Mead’s immediate
supervisor, Mr. Rowe.
19. There are different types of insurance policies
which assistant underwriters in the Fire Department
work on. A package policy is a policy insuring against a
number of perils for a particular risk. The varied
coverages involved in a package policy can complicate
23a
the rating process. A risk that involves a number of
locations can also complicate the rating process.
Commercial insurance policies are commercial risks
and often provide for insurance against a number of
perils. When a single policy is issued that insures
against multiple perils, it is called a package policy.
USF&G issues three types of package policies. These
policies are referred to as SMPs, CIPs, and MIPs. On
SMP policies the rating of the property and fire
coverage as well as the casualty and general liability
coverage is performed by the Fire and Marine Depart-
ment. On CIP policies and MIP policies the property
and fire rating is done by the Fire and Marine
Department and the general liability rating is done by
the Casualty Department.
20. An assistant underwriter is also called upon to
complete premium adjustment reporting forms. Pre-
mium adjustment reporting forms are used when an
insurance policy is issued to insure a risk with
fluctuating value. For example, a merchant wishing to
‘nsure his inventory with a fluctuating value uses a
reporting adjustment form. The merchant reports the
value of inventory every month and that value is
recorded. At the end of the policy period, one year or
three years, the monthly values of the merchant’s
inventory are averaged and the premium figured. The
merchant then receives a refund or additional billing
for premiums.
21. USF&G concedes that Ms. Mead’s work perfor-
mance was satisfactory until April, 1975, at which time
it allegedly began to become unsatisfactory. One
complaint made in support of the charge of unsatisfac-
tory performance is that Ms. Mead was unable to
competently complete premium adjustment reporting
forms. The difficulty with reporting forms was allegedly
one of the “basic errors” which justified the discharge.
However, this Court finds on the basis of a review of the
record as a whole, that this allegation was only a
pretextual reason given to justify the discharge in
24a
retaliation for the filing of the sex discrimination
charge.
There is no record of Company dissatisfaction with
Ms. Mead’s performance on premium adjustment forms
until the Rowe memo of August 6, 1975 (Def. Ex. 2).
This is because, as Mr. Gould, the Fire Department
Superintendent testified, Casey Jones was the sole
person assigned to make out premium adjustment
forms up until 1975 and no one else worked on them
before she left the department. Ms. Mead did not start
working on fina) adjustment forms until sometime in
1975. Moreover, Ms. Mead had no prior experience with
these forms at USF&G and she had not been trained in
her previous job to work on the adjustment forms
— the work on them had been done by a special
unit.
After Casey Jones left, Ellen Bunting, Laura Steinart
and Sheila Mead took turns working on the forms. Then
Ellen Bunting asked if she could exclusively handle the
forms and was permitted to. The adjustment forms were
not put on Ms. Mead’s desk again until December, 1975.
Ms. Mead’s pregnancy leave commenced on December
15, 1975, and she returned to work on April 26, 1976.
The only person who was able to cite a specific
example of Ms. Mead’s poor performance on the
adjustment reporting forms was Ms. Mead, herself. She
testified that she had trouble with adjusting the rate for
the insured Peter Van Erkl. Finally she asked her
coworker, Mrs. Laura Steinart, to check over her work.
Mrs. Steinart checked it over, told Ms. Mead that was
the way she would do it. Ms. Mead had the rate typed
up and mailed out. Two weeks later it was returned to
her as “wrong.” (TR. 672-75).
This incident does not indicate that Ms. Mead was
lax or negligent in her attempts to fill out the final
adjustment reporting forms. To the contrary, when she
had difficulty, Ms. Mead consulted another employee
who was reputed to be very competent in handling
these forms. Moreover, in so doing, Ms. Mead resorted
25a
to the only available on-the-job aid present at USF&G.
To level the blame for this incident against Ms. Mead,
without any simultaneous criticism of the review of Ms.
Mead’s work by Mrs. Steinart supports this Court’s
conclusion that citing Ms. Mead’s inadequate perfor-
mance on the final adjustment forms was a pretextual
reason for firing her.
22. The types of insurance coverage and the costs of
such coverage are continuously fluctuating. Changes in
insurance coverage and cost of insurance coverage
requires changes in the rating manual. Assistant
underwriters are responsible for insuring that their
rating manuals and rule books are up-to-date so as to
reflect the current coverages and insurance costs.
23. Another allegation made to justify Ms. Mead’s
discharge in 1977 for unsatisfactory work performance
was that Ms. Mead failed to keep her manuals up to
date. However, the only evidence offered to prove this
assertion was the following. Mr. Gould testified that
sometime in 1975 prior to Ms. Mead’s maternity leave,
Mr. Rowe found manual pages in a file. Ms. Mead was
said to have been the only person working on the file
and so it was concluded that the pages belonged in her
manual. However, Mr. Gould was unable to identify the
name of the file in which the pages were found and
unable to state that the pages did not relate to that
particular file. No record was made of the incident at
the time it occurred. Neither Mr. Rowe nor Mr. Gould
could recall any other instance when Ms. Mead’s
manual pages had been out of place or out of date. (TR.
382-83, 411-14).
The evidence is very scanty here and the Court is
tempted to reject it. But even if the evidence is taken at
its best and viewed in the light most favorable to the
defendants, this Court finds that there was evidence of
only one isolated incident when Ms. Mead’s manual
pages were not in her manual. No other evidence was
offered to prove that her manual pages were out of place
or out of date. The evidence does not support the initial
allegations that there was a pattern of such incidents.
26a
To the contrary, the evidence shows only that on one
occasion, Ms. Mead may have inadvertently left the
pages from her manual in a case file which she was
working on. To cite this one isolated incident as a
reason for the allegedly poor work performance which
resulted in her discharge well over one year later, leads
to the inference that the reason given for discharge was
merely a pretextual one, without actual merit.
24. During the late winter and early spring of 1975,
Ms. Mead was having marital difficulties. It is the
contention of the defense that as a result of these
difficulties, there was a decrease in the quantity and
quality of work performed by Ms. Mead. The Court
finds that the evidence did not support the contention.
Among other things, Ms. Mead received a merit
increase of $11.40 per week on June 29, 1975. The raise
itself suggests that Ms. Mead’s work up to that time
was satisfactory and there was no memo to the
contrary in her file as of that date.
25. USF&G asserted that an indication of Ms.
Mead’s unsatisfactory performance was excessive
personal use of the telephone. But, the inferences to be
drawn from the evidence were inconclusive as to the
amount of time Ms. Mead spent on personal telephone
calls in the spring of 1975 in comparison to the amount
of time spent on such calls by the other employees. No
records were kept monitoring the amount of personal
telephone calls made by employees. Nor was there any
objective method available for discerning how fre-
quently employees made such calls or whether a three
minute call was a business call to an agent or a
personal call.
In fact, the evidence indicated that Mrs. Laura
Steinart was the source of supervisor Rowe’s informa-
tion regarding Ms. Mead’s use of the telephone. (TR.
1010). Moreover, Mrs. Steinart testified that while she
knew that Sheila Mead was on the phone for personal
reasons, she did not know whether the people who sat
near her were on the phone for personal reasons or not.
27a
Furthermore, Mrs. Steinart stated that with the
exception of one girl who came to work late for three
weeks, the only people she had made adverse reports to
Mr. Rowe about were Sheila Mead and two others who
had filed sex discrimination claims with the EEOC
(1038-39).
Finally, Mrs. Steinart stated that she had never taken
written notes specifying the times and dates of Ms.
Mead’s use of the phone, but had just made her reports
verbally.
It was conceded by the Assistant Superintendent that
Ms. Mead was the only employee who had ever had a
written memo inserted into her personal file evaluating
her use of the telephone for personal matters.
26. Laura Steinart testified that she was asked in
1975 by Superintendent Gould to report problems in the
department to him or Robert Rowe. (TR. 1024). Mrs.
Steinart admitted that she observed Ms. Mead’s
behavior more than that of the others in the department
and that she only reported the infractions of Ms. Mead
and the other two women in her department who had
filed sex discrimination charges. (TR. 1031, 1040).
27. On June 12, 1975, Ms. Mead was advised by her
doctor that she was pregnant. (TR. 572-74). Assistant
Superintendent Rowe, Ms. Mead’s immediate supervi-
sor, was informed of Ms. Mead’s pregnancy by August
12, 1975 at the latest. (TR. 575, 918, 951). The secretary
to Mr. Merz, the Manager of the Minneapolis office,
knew of Ms. Mead’s pregnancy prior to August 1, 1975.
(TR. 545). William Stanley, an underwriter in the Fire
Department, found out that Ms. Mead was pregnant
during the summer of 1975. (TR. 951). And Ms. Mead
gained 18 pounds between March, 1975 and late
August, 1975 due to her pregnancy. (TR. 577).
28. Thereafter, although she had never received an
adverse memorandum or “write-up” during the prior
forty months that she had worked for USF&G and
although she had received a merit increase on June 29,
Ms. Mead received three adverse write-ups during the
28a
period from August 6 through September 11, 1975. (Def.
Exs. 1-4, TR. 368-70, 505-06).
Two of these memoranda were the first formal work
evaluations Ms. Mead had received since she had been
promoted to the position of assistant underwriter in
March, 1973, despite a Company policy which called for
an annual review of assistant underwriters. When
asked why Ms. Mead had received two performance
evaluations within a month when she had not received
a timely annual evaluation before, the Assistant
Superintendent merely stated that the “company likes
forms.” (TR. 282). The defendants were similarly unable
to satisfactorily explain why they had waited until
August, 1975, to write up the adverse reports of Ms.
Mead when the allegedly inadequate work performance
had been a problem since April, 1975.
29. Sometime in November, 1975, Ms. Mead spoke to
Mr. Gould, Superintendent of the Fire Department,
about a maternity leave of absence and stated that her
tentative plans were to return to work about the first of
March, 1976. Mr. Gould said that was fine and
requested that she call the Company a couple of weeks
before she wished to return. On December 15, 1975, Ms.
Mead commenced her pregnancy leave.
30. Ms. Mead visited Mr. Gould at USF&G on
February 16, 1976 and requested an extension of her
pregnancy leave until April 12, 1976. He told her that
was fine and that she should call a couple of weeks
before she returned. (TR. 588). Ms. Mead spoke with Mr.
Gould again on March 11, 1976.
Mr. Gould called Ms. Mead during the third week of
March, 1976, and asked her if she was planning to
return to work. She responded affirmatively. Mr. Gould
called again on April 7, 1976 to ask if Ms. Mead was
going to return to work. When she responded affirma-
tively, Mr. Gould stated that he hadn’t known that she
wanted her job back and that he would have to speak
with Mr. Merz to see if she could get her job back. (TR.
590-91). Ms. Mead returned to work on April 26, 1976.
29a
31. Prior to Ms. Mead’s return to work, Superintend-
ent Gould called a meeting with the other two Assistant
Underwriters, Ellen Bunting and Laura Steinart. These
two women had made adverse reports to Assistant
Superintendent Rowe which he, in turn, had incorpo-
rated into a memo to Superintendent Gould on August
12, 1975. At that time Mr. Rowe had made the following
evaluation of the remarks of Mrs. Steinart and Miss
Bunting about Ms. Mead’s performance:
.. . The problem really seems to be one of the rest
of the girls being down on her for being such a
conversationalist. Her errors while admittedly are
present, are greatly magnified when discovered by
the other girls. . . . I think we should get the “Big
3” together with Sheila and discuss the fact that
harmony, if only on the surface, must come about
or our services will suffer.
32. On May 5, 1976 Ms. Mead filed a charge with the
EEOC and the Minnesota Department of Human
Rights alleging that the defendants USF&G and
Manager Merz had discriminated against herself and
all other female employees on the basis of sex and that
the Company specifically discriminated against women
with respect to the treatment of pregnancies. Mr. Rowe
and Mr. Gould were notified of these charges shortly
thereafter, in the early part of May. (TR. 161-162, 383-
85).
33. After the defendants received notice that Ms.
Mead had filed her employment discrimination charges
with the EEOC and the Minnesota Department of
Human Rights, they engaged in the following retalia-
tory acts, one of their intentions being to document Ms.
Mead’s personnel file with work-related reasons which
could be cited as the pretextual reasons for firing her.
A. After he had become aware that Ms. Mead had
filed her employment discrimination charge, Mr. Gould
instructed Miss Bunting, Mrs. Steinart and Mr. Rowe to
monitor Ms. Mead’s work. Mr. Gould specifically
instructed the employees to report mistakes made by
Ms. Mead to him. (TR. 462, 525).
30a
It was not the regular business practice to have
employees monitoring each other’s work and report
other employees’ errors to the Assistant Superintendent
or the Superintendent. This Court finds that the
monitoring was established in response to the notice
that Ms. Mead had filed an EEOC charge.
B. In July, 1976, after he had become aware that Ms.
Mead had filed an employment discrimination charge,
Mr. Gould gave a project called the City of Fargo quote
to Mr. Rowe and specifically told him to have Sheila
Mead prepare it because he wanted to monitor her work.
(TR. 459, 520). After Ms. Mead worked on the quote, Mr
Gould had Mr. Rowe return it to him and Mr. Gould
personally checked the quote for error. It was not the
regular business practice for Mr. Gould to check the
assistant underwriters’ work for errors.
Although Mr. Gould stated that he had run several
other spot checks on Ms. Mead’s work during 1976, he
could not recall anything about the other spot checks:
how many there were; when they occurred; or the
names of the insureds. (TR. 520-21), When asked why
Ms. Mead was not fired at this point, Mr. Gould replied
that “You don’t fire anybody for one or two mistakes.”
(TR. 524),
This Court finds that the purpose of the spot checks
was to locate some work-related reasons which could be
cited as a pretext for firing Ms. Mead because she had
filed a charge with the EEOC.
C. On July 1, 1976, Ms. Mead’s personnel file was
documented with statements she allegedly made to
another employee concerning her charges filed with the
EEOC. (Pl. Ex. 17).
D. On July 6, 1976, Ms. Mead’s personnel file was
documented with a minor mathematical error and a
“short-coming” even though prior to the filing of her
charges, defendants Rowe and Gould did not have a
policy of documenting such matters and had never
documented anyone else’s personnel file with such
minor errors. (TR. 79, 108-109, 113, Def. Exs. 9 and 10).
3la
E. On or about August 16, 1976 defendant Merz
wrote a memorandum of his phone conversation with
Vice President Adams of defendant USF&G’s home
office in Baltimore, Maryland concerning building and
documenting a case against plaintiff Mead and Oakiey
because they filed charges. Among other things,
defendant Merz wrote:
If we wish to ‘fire’ either or both [Plaintiffs Mead
and Oakley], we must document the moves of the
two of them over a period of time. If discharge
should be on the basis of nonproductiveness, their
output must be documented, as well as all other
people in the department for comparative purposes.
We must have a documented case in the event we
went to court. (Pl. Ex. 28, TR. 125051263).
F. On August 26, 1976, Ms. Mead’s personnel file
was documented for the alleged misconduct of others
(Pl. Ex. 6).
G. Sometime in the fall of 1976, management had
knowledge that Ms. Mead had filed her EEOC charge,
an incident occurred in the Casualty Department which
the Company contended illustrated improper conduct
by Ms. Mead. Mr. Dale C. Webster, the Superintendent
of the Casualty Department, observed Ms. Mead sitting
at a desk with Kathryn Fairchild, an underwriter clerk.
When asked what they were doing by Mr. Webster, the
women informed him that they were rating a risk.
According to his testimony, they could finish the risk,
but from now on the underwriter clerk was not to help
any Fire personnel with the casualty rating portion of
SMP policies unless an underwriter was unavailable. In
that event, the underwriter clerk was only to offer help
with rates, not rating. According to Ms. Fairchild, Mr.
Webster spoke to her alone, admonished her not to help
Ms. Mead, and said he would be the “culprit.” (TR. 776-
804, 740-42).
It is necessary to make a credibility resolution in
order to discern the significance of this incident. SMP
policies require casualty rating and rates. Since 1975
Ms. Mead had been seeking help from personnel in the
32a
Casualty Department with the casualty portion of the
SMP policies and, as Mr. Webster testified, he had
never objected or said anything at all to Ms. Fairchild
about assisting Sheila Mead. (TR. 798). The Court takes
note of the fact that the purpose of Ms. Mead’s visits, as
described by Mr. Webster, was obviously work related.
Moreover, Mr. Webster testified that it was only after he
had knowledge that Ms. Mead had filed a sex discrimi-
nation charge with the EEOC that he objected to Ms.
Mead obtaining assistance from a casualty underwriter
clerk. (TR. 799-800). Thus, Mr. Webster’s objection was,
in effect, a policy change of an established practice, in
response to Ms. Mead’s filing of the charges with the
EEOC,
Miss Ellen Bunting, another assistant underwriter in
the Fire Department, testified that she regularly visited
her roommate, Sherri Wood, during work time in the
Casualty Department to ask Ms. Wood for Guide A
rates and help in classifying. Miss Bunting testified
that she visited Ms. Wood every time she had a
problem, which might vary anywhere from a couple of
times a day to once every three days. (TR. 1085-88).
Miss Bunting further testified that she had never been
reprimanded or had an adverse memo inserted in her
file because she left the Fire Department to speak with
Ms. Wood in the Casualty Department. (TR. 1087).
The Company contention that Miss Bunting’s visits
to Ms. Wood were justified only because Ms. Wood was
an underwriter impress the Court as unconvincing and
after-the-fact. The pattern which emerges about the
visits to the Casualty Department is that until Miss
Fairchild was admonished by Mr. Webster, both Miss
Bunting and Ms. Mead were permitted to visit their
respective roommates and friends in the Casualty
Department for help without restriction. The reasonable
conclusion to be drawn from these facts is that Mr.
Webster’s objection and policy change was made in
response to and reprisal for the filing by Ms. Mead of
her charges with the EEOC.
33a
H. In October, 1976, certain rating changes were
circulated to all of the underwriters and assistant
underwriters in the Fire Department except plaintiff
Mead (PI. Ex. 1).
I. On or about November 17, 1976, defendant Merz
wrote to Doris Martin, defendant USF&G’s Equal
Employment Officer in Baltimore, Maryland, and,
referring to the receipt of the fifth sex discrimination
charge since May 5, 1976, stated that:
There is every reason to feel that Ms. Mead will
continue to pursue her activities in the office to
influence as many people as she can to file
complaints nor does there appear to be any way to
stop her from this pursuit, according to advice
received from you.
On the other hand, the continuation of the filing
of the complaints is doing this office absolutely no
good whatsoever, and it is obvious to us that some
action must be taken to eliminate this situation.
(Pl. Ex. 27).
J. On November 18, 1976, Ms. Mead’s personnel file
was documented with a memorandum addressed to Ms.
Martin in Baltimore concerning plaintiff Mead’s
interest in the problems of alcoholism as it effects
defendant USF&G and denying plaintiff access to
certain information because “it might lend fuel to the
present fire” (TR. 166-167, 185-186, Pl. Ex. 2). In that
context and in a memorandum directed to defendant’s
EEO officer, it is reasonable to infer that the reference
to “the present fire” was to plaintiff's sex discrimina-
tion charges.
K. On November 19, 1976 Ms. Mead’s personnel file
was documented with an adverse memorandum con-
cerning events which allegedly took place over one and
a half years earlier. (Def. Exs. 18 and 19). In the
memorandum, as well as in Court, defendant Gould
conceded that “I did not document these discussions at
the time (1975) because I didn’t feel it was necessary.”
(TR. 403, Def. Ex. 18).
34a
L. On November 30, 1976, Mr. Merz, Manager of the
Minneapolis office of USF&G, wrote Ms. Mead that she
would be terminated if she did not make substantial
improvements in her job performance. (Pl. Ex. 3). Ms.
Mead responded by requesting that she be provided
with specific suggestions and additional training in
order to improve her allegedly inferior job performance.
The defendants did not respond to Ms. Mead’s request.
(TR. 405, Pl. Ex. 5). There was no explanation for their
failure to respond with the exception of an assertion in
a memorandum to the Court, that USF&G did not
respond because management felt that it was inapprop-
riate to conduct a personnel function through the
vehicle of registered mail with copies to attorneys. The
Court finds this statement to be totally inadequate as
an explanation for the Company’s inaction because Mr.
Merz’s own letter of November 30, 1976 threatening
termination of Ms. Mead was sent to Ms. Mead’s
attorney with blind carbon copies to Mrs. Doris Martin
of the Equal Employment Division of the home office,
Howard Gould, Robert Rowe, and John Aitken, the
Associate Manager of the Minneapolis office.
M. On December 1, 1976 a memo was inserted in Ms.
Mead’s personnel file which alleged that she had taken
an extended lunch hour when only two weeks earlier
she had been told by her immediate supervisor Rowe
that “her attendance [had] been excellent and she is
never late.” (Def. Exs. 12 and 5).
N. On December 3, 1976, Ms. Mead’s personnel file
was documented with a memorandum containing
repeated references to her EEO charges and allegedly
inadequate job performance in 1975, almost a year and
a half earlier. (Pl. Ex. 18).
O. On December 13, 1976, Ms. Mead’s personnel file
was documented for an alleged “backlog” of work
which had not been assigned to her, which she was not
asked to help clean up, and which was cleaned up by
two persons in less than one day. In fact, at the time the
backlog occurred there were only two assistant under-
writers rather than the normal! number of three. A trainee
35a
was filling the third assistant underwriter’s position
and she was unable to do as much work as either Laura
Steinart, whom she replaced, Ellen Bunting, or Sheila
Mead. No reference to the backlog was inserted in the
personnel files of Miss Bunting, Mrs. Steinart, or the
trainee. (TR. 482-99, 606-07, Def. Ex. 11).
P. Assistant Superintendent Rowe individually
asked Laura Steinart and Ellen Bunting to write out
statements describing the complaints they had about
Sheila Mead’s work performance. (Def. Exs. 19, 20, TR.
491-93). Both statements were written on December 28,
1976 and inserted into Ms. Mead’s personnel file.
Although on their face these statements may accurately
reflect Mrs. Steinart’s and Miss Bunting’s opinion of
Ms. Mead’s work performance, the evaluations must be
taken to be the product of the management effort to
document Ms. Mead’s file and establish a pretextual
reason for firing her since the statements were written
as a result of the supervisor’s request addressed directly
to each woman alone.
Q. On January 7, 1977, Mr. Gould informed Ms.
Mead that her employment with USF&G was termi-
nated. Mr. Gould informed Ms. Mead that the reason for
the termination was “poor job performance,” although
he also told her that she had a lot of fine qualities and
that she wouldn’t have any trouble finding a new job.
(TR. 506, 609-10). Mr. Gould gave Ms. Mead four weeks
of severance pay at the direction of Manager Merz,
despite a Company rule which provides for only two
weeks salary in lieu of notice upon termination. (TR.
532-33).
34. Defendants have relied heavily upon the allega-
tion that Ms. Mead was constantly making errors. (TR.
at 69, 437, 458, 870-71, 928, 1002, 1041). One underwriter
testified that tor two years Ms. Mead consistently made
errors on 50% of the work which she performed for him.
(TR. 944). This Court finds that the testimony is
unreliable. The witness stated that for two years he had
spent more than half of his time reviewing and
correcting Ms. Mead’s work, (TR. 954-56), despite the
36a
fact that neither Ms. Mead’s immediate supervisor, Mr.
Rowe, nor Mr. Gould, the superintendent, had referred
to this 50% error ratio in their prior testimony.
Furthermore, the witness stated that there had been
50% error in Ms. Mead’s work since at least December
1974, although Ms. Mead’s immediate supervisor Rowe
and Superintendent Gould testified that problems did
not begin until the spring and summer of 1975.
At one point Mr. Rowe stated that it was his policy to
bring errors to Ms. Mead’s attention if he felt it was
important (TR. at 114.) However, Mr. Rowe could not
recall a single discussion with Sheila Mead about errors
after she returned from pregnancy leave on April 26,
1976 (TR. at 69). Ms. Mead also testified that she could
not recall any comments made to her by anyone in her
department about the quality or quantity of her work
from April 26, 1976 to November 17, 1976 with the
exception of two instances (TR. at 599-600). When
considered in the context of Mr. Rowe’s statement that
he would simply dismiss errors brought to his attention
if he felt they were of relatively little “magnitude” (TR.
at 113), the absence of conversations with Ms. Mead
about alleged errors and the absence of memoranda
documenting those errors gives rise to the inference
that the errors were not of the frequency or magnitude
described by defendant’s witnesses. Alternatively, if the
errors did occur as alleged, defendants’ failure to
discuss them with Sheila Mead is contrary to the stated
policy of bringing mistakes to her attention (TR. at
114). If that is so, the Court must have been misin-
formed regarding the amount of assistance given to Ms.
Mead (TR. at 976-77, 941-42, 1074-75, 1076-77).
35. After plaintiff Mead filed the sex discrimination
charges in May, 1976, female employees Lesley Deaton
and Amy LaVoie spoke with plaintiff about her charges
and then on October 11, 1976 filed substantially similar
charges themselves. (TR. 164, 178-179, 721-22, 768).
37a
36. After the defendants became aware in October,
1976 of the charges of LaVoie and Deaton (TR. at 806),
they engaged in the following retaliatory actions
against them because they had filed charges with the
EEOC.
A. Louis Hofstad, a supervisor in the claims
department, told the receptionist/secretary in the
claims department to maintain a log monitoring the
time periods when Lesley Deaton and Amy LaVoie were
on coffee and lunch breaks. (TR. 735, 838). No records
on this subject were kept by management prior to
receipt of their charges and no such records are
maintained on other employees.
B. USF&G sent a letter to Ms. Deaton’s dentist
requesting substantiation of her dental appointments
and the nature of her dental treatment. This letter was
sent without Ms. Deaton’s knowledge or consent. (TR.
735).
C. Doris Martin, the EEO coordinator at USF&G, told
Ms. Deaton on or about December 8, 1976, during an
office visit by Martin at the Minneapolis branch office,
that “no one files a charge against USF&G and just
walks away from it.” (TR. 729).
D. USF&G began to prepare harsh and critical
memoranda of Ms. Deaton. (TR. 725-27).
E. USF&G more than doubled the number of
memoranda to Ms. LaVoie. (TR. 833).
F. During the second week in November, 1976,
USF&G denied Ms. LaVoie a promotion to a position of
outside adjuster on the grounds that she was unquali-
fied, despite the fact that one month earlier (and before
receipt of Ms. LaVoie’s charge) she was offered that
position at another branch office. (TR. 838).
37. The retaliatory acts taken against plaintiff Mead
and Amy LaVoie and Lesley Deaton make those
employees, as well as Kathryn Fairchild and Susan
Shapiro fearful in the matter of filing charges, testify-
38a
ing, or assisting in a proceeding under the auspices of
Title VII.
38. In addition to plaintiffs Mead and Oakley, and
employees Deaton and LaVoie, employee Lynn Silber-
nagel filed sex discrimination charges. None of the five
employees who filed charges against defendant USF&G
were employed there eleven months after plaintiffs
Mead and Oakley filed the first charges on May 5, 1976.
39. Defendant’s retaliatory conduct has caused
plaintiff Mead loss of her jobs, wages, fringe benefits
and monetary injury. Plaintiff Mead exercised reasona-
ble diligence in seeking interim employment and made
reasonable efforts to mitigate her loss of pay. By
stipulation of the parties, plaintiff Mead’s loss of wages
and fringe benefits because of defendants’ retaliatory
conduct amounts to $1,619.11 for the period from
January 7, 1977 to August 1, 1977.
40. Defendants’ retaliatory conduct has caused
plaintiff Mead humiliation, pain, suffering and other
emotional injury because she exercised her rights under
Title VII.
CONCLUSIONS OF LAW AND FACT
1. The Court has jurisdiction over the parties and
subject matter jurisdiction of this action under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and under 28 U.S.C. §§ 451, 1331, 1343,
and 1345.
2. Defendant USF&G is an employer within the
meaning of 42 U.S.C. § 2000e(b).
3. Defendants Merz, Gould and Rowe are agents of
Defendant USF&G within the meaning of 42 U.S.C.
§ 2000e(b).
1 By its protective order of May 23, 1977, this Court ordered
the non-disclosure of the names of certain employees who
specifically cited as their reason for non-disclosure their fears
that reprisals would be taken by the Company.
Piet en nie tate em 2
39a
4. All of the statutory requirements of §706(f)(1), (2)
and (3) of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e, as amended, have been met by the
plaintiffs. As set forth in its Memorandum on Jurisdic-
tion dated July 8, 1977, this Court has had jurisdiction
of the action from its commencement on January 13,
1977.
5. Pursuant to this Court’s Order of June 8, 1977, the
issue before the Court is whether or not plaintiff Mead’s
termination was in violation of §704(a) of Title VII and,
if so, what appropriate remedies, if any, should follow
therefrom.
6. Section 704(a) of Title VII, 42 U.S.C. §2000e-3(a)
provides that it is an unlawful employment practice for
an employer to discriminate against any of his
employees . . . because [the employee] has opposed
any practice made an unlawful practice by this
[title], or because [the employee] has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this [title].
The statute provides an employee with immunity from
retaliation for actions taken in connection with his or
her participation in Title VII proceedings. The purpose
of this protection is to promote the implementation of
equal employment rights and opportunities guaranteed
by Title VII and to ensure the effective implementation
and maintenance of the statutory mechanisms for
protection of those rights and the elimination of
unlawful employment discrimination.
[1] 7. Specific evidence of intent to discriminate is
not an indispensable element of proof of violation of
Section 704(a). Thus, an employer’s protestation that it
did not intend to discriminate is unavailing where a
natura! consequence of its action was such discourage-
ment toward employees from exercising their rights
under Title VII. Concluding that employees’ discourage-
ment from exercising their rights will result from acts
of retaliation, it is presumed that the employer intended
such consequences. Griggs v. Duke Power Co., 401 U.S.
424, 432, 3 FEP Cases 175, 178 (1971).
40a
The parties agree that McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 5 FEP Cases 965 (1973) is the
leading case setting forth the requirements that
plaintiff Mead must satisfy in order to prevail on her
retaliatory discharge claim. As in all other civil
litigation, the plaintiff bears the burden of proving that
the employer discriminated against her in discharging
her because she opposed any practice made unlawful by
Title VII, or because she has made a charge, testified,
assisted or participated in any manner in an investiga-
tion, proceeding or hearing under Title VII.2 Once the
plaintiff has established a prima facie case, the burden
of proof shifts to the employer to articulate some
legitimate nondiscriminatory reason for the dismissal.
The burden then returns to the plaintiff who is afforded
an opportunity to demonstrate that the reasons as-
serted by the employer were merely a cover-up or
pretext for an unlawfully discriminatory decision.
{2] Plaintiff Mead and the EEOC have successfully
proven that defendant USF&G and its agents discrimi-
nated against plaintiff Mead because she filed charges
of employment discrimination with the EEOC and
assisted and participated in the investigations and
proceedings involving those charges.’ Adapting the
four-pronged McDonnell Douglas v. Green test to the
factual circumstances of this case, this Court concludes,
first, that plaintiff Mead belongs to a class protected by
* See also, McDonald v. Sante Fe Transportation Co., 427
U.S. 273, 12 FEP Cases 1577 (1976); Naraine v. Western
a Co., 507 F.2d 590, 593, 10 FEP Cases 301 (8th Cir.
1974).
’ The § 703(a) charges of sex discrimination are not before
the Court at this time. But the law is clear that an employee
is protected from retaliation under the “participation” clause
of § 704(a) whether or not the charge filed with the EEOC is
meritorious. Pettway v. American Cast Iron Pipe Co., 411
F.2d 998, 1 FEP Cases 752, 71 LRRM 2347 (5th Cir. 1969);
Bradford v. Sloan Paper Co., 383 F. Supp. 1157, 8 FEP Cases
634 (N.D. Ala. 1974); Francis v. A. T. & T., 55 F.R.D. 202, 4
FEP Cases 777 (D.D.C. 1973); EEOC v. Kallir, Phillips, Ross,
Inc., 401 F. Supp. 66, 11 FEP Cases 241 (S.D.N.Y. 1975).
—-=—D<=
4la
Title VII. Second, plaintiff Mead is qualified for the
Assistant Underwriter A position in the Fire and
Marine and Multi-Line Department of the Minneapolis
office. She was promoted to that position by the
defendants and performed her work in that position for
fifteen months before a single written complaint
against her work was lodged in her personnel file by the
defendants, after they learned of her pregnancy. Third,
after the defendants learned that Ms. Mead and filed
sex discrimination charges with the EEOC, they
deliberately and intentionally engaged in retaliation,
which culminated in the January 7, 1977, discharge,
because she had filed her charge with the EEOC. The
Findings of Fact speak for themselves in this regard.
The main thrust of defendants’ actions was to build and
decument a case against Ms. Mead in an attempt to
make it look as if her discharge were for the legitimate,
nondiscriminatory reason of poor work performance.
The defendants’ intentions are summed up by the
handwritten memorandum. of Office Manager Merz
after his August 16, 1976, phone conservation with the
Company’s Vice President of Personnel:
If we wish to ‘fire’ either or both [Ms. Oakley and
Ms. Mead] we must document the moves of the two
of them over a period of time. If discharge should
be on the basis of non-productiveness, their output
must be documented, as well as all other people in
the department for comparative purposes. We must
have a documented case in the event we went to
court. [emphasis added].
The fourth criteria of the test of McDonnell Douglas
v. Green has been met. There has never been an
assertion by USF&G that it intended to eliminate the
Assistant Underwriter A position in the Fire Depart-
ment of its Minneapolis office.
The defendants attempted to justify Ms. Mead’s
discharge on the grounds that it was impelled by her
poor work performance and personality conflicts with
fellow employees. This Court concludes that both
reasons were merely pretextual ones for the underlying
42a
motivation to fire Ms. Mead because she had filed the
charge with the EEOC.
The evidence does not sustain the assertion that Ms.
Mead did not get along with her fellow employees,
although it does support the converse, that at least one
of Ms. Mead’s co-employees felt hostility towards her
and watched only Ms. Mead and two of the other
charging parties so that she could report alleged
infractions to the management. The evidence further
showed that Mrs. Steinart and Miss Bunting surveyed
Ms. Mead and wrote reports on her conduct at the
specific request of USF&G management. Otherwise, there
was no evidence of personality clashes. In fact, Mr.
Rowe liked Ms. Mead and Ms. Mead first established
her friendship with Kathryn Fairchild in the lunchroom
of USF&G.
The only reasonable inference to be drawn from the
inconsistent, sometimes contradictory evidence about
Ms. Mead’s work performance is that the work
evaluations of Ms. Mead were made after-the-fact: after
the Company had notice that Ms. Mead had filed
charges with the EEOC; and, as a result of that
knowledge and in reaction to it, after the Company had
begun to take reprisals against Ms. Mead; and after the
Company had begun to consider the possibility of
retaliatorily discharging Ms. Mead and had, conse-
quently, begun to paper her file in an attempt to
establish a pretextual justification for the retaliatory
discharge. It defies common business sense that the
Company could have maintained Ms. Mead in its
employ for two years if her rate of error was 50%. The
fact, among others, that Ms. Mead remained in the
Company’s employ until January 7, 1977, impels this
Court to conclude that her work was adequate and that
she was fired because she had filed her discrimination
charges with the EEOC and the Minnesota Department
of Human Rights.
That is the only reasonable conclusion which can be
inferred from the credible evidence submitted to this
43a
Court. The second conclusion is so illogical that this
Court rejects it, although it, too, would sustain the
plaintiffs* claim. That illogical explanation is that Ms.
Mead’s work was indeed unsatisfactory from April,
1975, but that the Company maintained Ms. Mead on
its workforce until January 7, 1977, when it felt that it
was safe to fire her without detection, because she had
filed her sex discrimination charges. One of the
problems with this view is that although the allegedly
poor work performance began in the spring of 1975,
there were no adverse personnel reports of Ms. Mead’s
work written until she became pregnant, with the
number and intensity increasing substantially after she
filed her charges. In effect, the Company’s defense
requires this Court to accept the conclusion that the
Company was willing to tolerate the unsatisfactory
work of an employee for at least twenty months, giving
that employee over twenty months to improve, in the
meantime her supervisor’s time, over 50% of the
worktime of another underwriter, her co-employees’
time, and the Company’s good will and reputation with
its agents and insureds. The evidence, with the
sometimes patent references to the Company strategy
of building and documenting a case against Ms. Mead
in order to establish a pretextual reason for discharging
her, does not verify the defendants’ defense.
[3] 8. Moreover, in order to proceed, the plaintiffs
need not show that the retaliatory discrimination was
the sole or principal reason for the discharge but rather
need only show that “retaliatory discrimination on the
part of the employer contributed among other things to
cause the discharge.” Hochstadt v. Worcester Founda-
tion, 545 F.2d 222, 13 FEP Cases 804 (lst Cir. 1976);
Accord, EEOC v. Kallir, Phillips, Ross, Inc., supra, 401
F.Supp. 66, 72 and cases cited at n.17, 11 FEP Cases 241
(S.D.N.Y. 1976). The Court of Appeals for the Eighth
Circuit has used a similar standard in interpreting a
similar provision of the National Labor Relations Act
which prohibits discriminating against and discharg-
ing employees for engaging in union or other concerted
44a
protected activities. For instance, in Singer Co. v.
NLRB, 429 F.2d 172, 179, 74 LRRM 2669 (8th Cir. 1970)
the Court noted,
We recognize that discriminatory treatment of
employees by their employer, motivated in whole or
in part by their union or protected activities
violates §8(a)(3) and (1) and that “the mere
existence of valid grounds for a discharge is no
defense to a charge that the discharge was
unlawful, unless the discharge was predicated
solely on those grounds and not by a desire to
discourage union activity.’’
This Court concludes as a matter of law that there
was no valid ground for Ms. Mead’s discharge. But even
assuming for the sake of argument, only, that the
Company had sustained its burden of establishing that
Ms. Mead’s work performance was poor, the plaintiffs
have proven that retaliatory discrimination was the
sole cause for the discharge. But for the filing of the
EEOC charges, Ms. Mead would still be working at
USF&G today.
[4] 9. A defendant’s discriminatory conduct and
intent may also be inferred from circumstantial
evidence. Griggs v. Duke Power Co., 401 U.S. 424, 432, 3
FEP Cases 175 (1971); Robinson v. Lorillard Corp., 444
F.2d 791, 3 FEP Cases 653 (4th Cir. 1971); Local 189,
Papermakers v. United States, 416 F.2d 980, 996-97, 1
FEP Cases 875, 71 LRRM 3070 (5th Cir. 1969).
Relevant indicia are similar acts of retaliation toward
other charging parties including attempts to build a
record and disguise a discriminatory purpose, acts of
harassment and intimidation, and the timing of the
discriminatory conduct.
‘ Arbie Mineral Feed Co. v. NLRB, 438 F.2d 940, 942, 76
LRRM 2613 (8th Cir. 1971) (if “at least in part” motivated by
engaging protected activities, discharge is unlawful); Cupples
Co., Manufacturers v. NLRB 106 F.2d 100, 117, 4 LRRM 710
(8th Cir. 1939),
at ie ee
45a
The findings indicate that several similar acts of
retaliation were taken against Amy LaVoie and Lesley
Deaton after they filed charges, including monitoring,
surveillance, threats and documenting their personnel
files.
10. In considering the appropriate remedies which
should be implemented in the case at hand, the Court
has found it helpful to consider analogous older statutes
by which Congress has prohibited acts of retaliation
against employees who resort to statutory processes
and remedies.
Section 704(a) is analogous to §8(a)(4) of the National
Labor Relations Act, 29 U.S.C. §158(a)(4) and §15(a)(3),
29 U.S.C. §215(a)(3) of the Fair Labor Standards Act,
wherein Congress has consistently guaranteed freedom
from reprisal to persons who invoke the aid of an
agency, and thereby preserved the integrity of the
particuiay administrative process which Congress has
created.°
The Supreme Court has explained that the objective
of Section 8(a)(4) of the NLRA is “to prevent the
Board’s channels of information from being dried up by
employer intimidation of prospective complaints and
witnesses.”” NLRB v. Scrivener, 405 U.S. 117, 122, 79
LRRM 2587 (1972). Failure to give full effect to the
section would “impede resort to the Act” and thwart the
5 Section 8(a)(4) National Labor Relations Act, 29 U.S.C.
§ 158(a)(4) provides:
8(a) It shall be unfair labor practice for an employer:
(4) to discharge or otherwise discriminate against an
employee because he has filed charges or given testim-
ony under this chapter.
Section 15(a)(3) of the Fair Labor Standards Act, 29 U.S.C.
§ 215(a)X(3) provides:
15(a) . . . It shall be unlawful for any person:
(3) to discharge or in any manner discriminate against
an employee because such employee has filed any
complaint or instituted any ure under or related to
this chapter, or has testified or is about to testify in any
such proceeding or has served or is about to serve on an
industry committee.
46a
Congressional design for “implementation of this
country’s labor policies.”” Nash v. Florida Industrial
Commission, 389 U.S. 235, 239, 66 LRRM 2625 (1967).
Likewise, in §704(a) of Title VII, the proscriptions of
retaliation and reprisal have been provided so that an
employee will not forego filing a charge out of fear that
s/he may lose his or her job or suffer other reprisals
from his or her employer if s/he files one.® The
language of §704(a) is even broader than the language
of §§8(a)(3) and (4) of the NLRA and §15(a)(3) of the
FLSA and thus this Court concludes that Congress
intended that persons who file charges with the EEOC
are to be fully protected from any retaliation, both to
secure the rights of the charging party and to avoid
chilling the actions of others who might sue to
implement the guarantees of the Act.
In the case at hand, four employees, Ms. Deaton, Ms.
LaVoie, Ms. Shapiro and Ms. Fairchild testified that
they all were fearful as a result of Ms. Mead’s
termination. While fear is not an element of proof in a
retaliation claim, it is precisely one of the end results
which §704(a) seeks to avoid.
® See Mitchell v. De Mario Jewelry Co., 361 U.S. 288, 292,
14 WH Cases 416 (1960).
“(TJhe value of such an [employee's efforts in filing a
complaint] may pale when set against the prospect of
discharge and the total loss of wages for the indetermi-
nate period necessary to seek and obtain reinstatement.
Resort to statutory remedies might thus often take on the
character of a calculated risk, with restitution of partial
deficiencies in wages due for past work perhaps
obtainable only at the cost of irremediable entire Joss of
pay for an unpredictable period. Faced witn such
alternatives, employees understandably might decide
that matters had best be left as they are. We cannot read
the Act as presenting those it sought to protect with
what is little more than a Hobson’s choice.” Accord,
NLRB vy. Schill Steel Products, Inc., 480 F.2d 586, 594, 83
LRRM 2386, 2669 (5th Cir. 1973); NLRB v. J. P. Stevens
and Co., 464 F.2d 1326, 1348, 80 LRRM 3126 (2d Cir.
1972); cert. denied, 410 U.S. 926, 82 LRRM 2597.
Se
47a
11. This Court concludes that defendants’ retalia-
tory conduct has had and will continue to have, unless
enjoined, a chilling effect on other employees who have
already sought to avail themselves, or in the future
might seek to avail themselves, of rights guaranteed by
Title VII. Unless defendants are enjoined from engag-
ing in such retaliatory acts, the employees bringing the
charges now pending against defendant USF&G will be
reluctant to participate in the administrative and
judicial processing of their charges and other employees
who are aggrieved will be discouraged from exercising
their Title VII rights.
12. Defendant USF&G’s retaliatory conduct has
undermined and inhibited plaintiff EEOC’s ability to
discharge its statutory duties and responsibilities of
eliminating employment discrimination made unlawful
by Title VII. (Certification of David W. Zugschwerdt).
The public interest, as expressed in Title VII, is in the
free and uninhibited exercise of civil rights guaranteed
and protected by that Act and in the effective perfor-
mance by the EEOC of its duties under the law.
Appropriate Remedies
13. Section 706(g) of Title VII which outlines the
scope of the court’s remedial powers, reads in relevant
part as follows:
If the court finds that the respondent has intention-
ally engaged in or is intentionally engaging in an
unlawful employment practice charged in the
complaint, the court may enjoin the respondent
from engaging in such unlawful employment
ractice, and order such affirmative action as may
appropriate, which may include, but is not
limited to, reinstatement or hiring of employees,
with or without back pay ... or any other
equitable relief as the court deems appropriate...
In its consideration of Title VII cases, the Supreme
Court has consistently held that “the scope of a district
court’s remedial powers under Title VII is determined
by the purposes of the Act.” Teamsters (T.I1.M.E. —
D.C.) v. United States, 431 U.S. 324, 97 S.Ct. 1843, 14
FEP Cases 1514. One of the Act’s purposes is “to make
48a
persons whole for injuries suffered on account of
unlawful employment discrimination.” T.I.M.E. — D.C.,
97 S.Ct. at 1869; citing Albemarle Paper Co. v. Moody,
422 U.S. 405, at 418, 10 FEP Cases 1181. In determining
the specific remedies to be applied, a district court is “‘to
fashion such relief as the particular circumstances of a
case may require to effect restitution.” T.I.M.E. — D.C.,
97 S.Ct. at 1869, citing Franks v. Bowman, 424 U.S. 747,
at 764, 12 FEP Cases 549. The Supreme Court has
further held that Congress vested the district courts
with broad equitable powers in Title VII cases, “to
make possible the ‘fashioning of the most complete
relief possible,’”’ and that the district courts have “ ‘not
merely the power but the duty to render a decree which
will so far as possible eliminate the discriminatory
effects of the past as well as bar like discrimination in
the future.’” T.I.M.E. — D.C., 97 S.Ct. at 1869, «iting
Albemarle, 422 U.S. at 421, 418.’
14. Reinstatement. This relief is expressly provided
for in the Section 706(g).
[5] Reinstatement is uniquely appropriate remedy
for this retaliatory discharge as it restores the status
quo prior to the Company’s illegal action, places
plaintiff Mead in the position she was in and would be
’ In analyzing the remedial provisions of Title VII, the
Supreme Court has relied on the Conference Committee
Report which analyzed the 1972 amendments to Title VII and |
reaffirmed the remedial goals of § 706(g):
The provisions of this subsection are intended to give the
courts wide discretion exercising their equitable powers
to fashion the most complete relief puscible. In dealing
with the present section 706(g) the courts have stressed
that the scope of relief under that section of the Act is
intended to make the victims of unlawful discrimination
whole, and that the attainment of this objective rests not
only upon the elimination of the particular unlawful
employment practice complained of, but also requires
that persons aggrieved by the consequences and effects
of the unlawful employment practice be, so far as
eons restored to a position where they would have
n were it not for the unlawful discrimination. 118
Cong. Rec. 7168 (1972). Id. at 421.
49a
in but for the unlawful retaliation, and concretely
establishes that plaintiff Mead has rights under Title
VII. It will help to reduce the chilling effect and fear
that the retaliatory discharge of Ms. Mead has
engendered in both Ms. Mead and other employees.
The fact that Ms. Mead was able to secure other
employment following her discharge from USF&G does
not alter her right to be offered reinstatement, but is
relevant only to the amount of backpay due her. This is
particularly true in these circumstances where the
discharge has infringed on Ms. Mead’s federally
protected rights and interfered with the administrative
processes established by Title VII. As the plaintiffs
have contended in this case, one of the central purposes
of §704(a) is to preserve free and uninhibited access to
the EEOC. To limit Ms. Mead’s remedies to monetary
reimbursement would be to thwart one of the central
purposes of §704(a), a result which is totally unwar-
ranted by the facts of this case.
The Supreme Court came to the same conclusion over
25 years ago when it discussed the propriety of
reinstatement under the National Labor Relations Act
for an employee who had obtained interim employment
following his unlawful discriminatory discharge by a
company:
To be sure, reinstatement is not needed to repair
the economic loss of a worker who, after discrimi-
nation, has obtained an equally profitable job. But
to limit the significance of discrimination merely to
uestions of monetary loss to workers would
ye the central purpose of the [National Labor
Relations] Act, directed as that is toward the
achievement and maintenance of workers’ self-
organization. That there are factors other than loss
of wages to a particular worker to be considered is
suggested even by a meager knowledge of indus-
triet affairs. Thus, to give only one illustration, if
men were discharged who were leading efforts at
organization in a plant having a low wage scale,
they would not unnaturally be compelled by their
economic circumstances to seek and obtain employ-
50a
ment elsewhere at equivalent wages. In such a
situation, to deny the Board power to wipe out the
prior discrimination by ordering the employment of
such workers would sanction a most effective way
of defeating the right of self-organization. Phelps
Dodge Corp. v. NLRB, 313 U.S. 177, 193, 8 LRRM
439 (1941).§
15. Backpay. The Supreme Court has ruled that,
absent extraordinary circumstances, backpay must be
awarded victims of discrimination violative of Title VII.
Albemarle Paper Co. v. Moody, supra, 422 U.S. at 419-
422. The Court of Appeals for the Eighth Circuit has
explained the significance of this remedy: “It is the
reasonably certain prospect of a backpay award that
‘provide[s] the spur of catalyst which causes employers
and unions to self-examine and to self-evaluate their
employment practices and to endeavor to eliminate, so
rar as possible, the last vestiges of an unfortunate and
ignominious page in this country’s history.’ U.S. v. N.L.
Industries, Inc., 479 F.2d 354, 379, 5 FEP Cases 823 (8th
Cir. 1973).”
[6] The backpay award should include all raises,
bonuses, and other fringe benefits which Ms. Mead
would have received absent her illegal discharge. Any
interim earnings should be deducted from the total
figure. 42 U.S.C. §2000e-5(g). Furthermore, since the
Company’s unlawful conduct has created the necessity
for this backpay judgment, any “uncertainties in
determining what an employee would have earned but
for the discrimination, should be resolved against the
discriminating [party]. Hairston v. McLean Trucking
Co., 520 F.2d 226, 233, 11 FEP Cases 91 (4th Cir. 1975);
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211,
260-261, 7 FEP Cases 1115 (5th Cir. 1974).
The parties have stipulated that plaintiff Mead
suffered a loss of $1,619.11 during the period from
* The Supreme Court has repeatedly cited Phelps Dodge as
authority for construing Section th of Title VIL See, e.g.,
Franks v. Bowman, 424 U.S. at 769; Albermarle Paper Co. v.
Moody, 422 U.S. at 419.
5la
January 7, 1977, through August 1, 1977 as a result of
net loss of pay, uncompensated regular work, uncom-
pensated overtime, transportation expenses, unreim-
bursed medical expenses, and excess automobile insu-
rance premiums. The parties further stipulated “that in
the event the Court orders defendants to offer plaintiff
Mead reinstatement and such offer is refused, addi-
tional backpay relief including loss of pay, vacation
pay, pension benefits, termination pay and other fringe
benefits may be awarded.” The Court approves of the
Stipulation.
[7] 16. Permanent Injunction. Section 706(g) specifi-
cally gives the court the authority to “enjoin the
respondent from engaging in [an] unlawful employment
practice.” The permanent injunction requested here
imposes no undue hardship of the defendants for it
simply obligates them to comply with Title VII’s
mandate to refrain from discriminating or interfering
with any employee or applicant because that person
exercised his or her Title VII rights. In light of the
intimidation and harassment of plaintiff as well as
others, the record amply demonstrates that the protec-
tion of this Court is necessary to safeguard the civil
rights of those employees and applicants. Cf., U.S. v.
N.L. Industries, 479 F.2d 354, 375, 5 FEP Cases 823 (8th
Cir. 1973). Furthermore, a permanent injunction serves
to protect public interest in free and uninhibited access
to the EEOC, the federal agency responsible for
enforcing Title VII.
Such injunctions, in the form of cease and desist
orders are routinely entered upon proof of a retaliatory
discharge in violation of the National Labor Relations
Act. For instance, NLRB v. Scrivener, 405 U.S. 117, 79
LRRM 2587 (1972) involved a closely analogous fact
situation in that an employee was discharged for
exercising protected statutory rights of invoking access
to a government agency. The remedy for that violation
was a routine cease and desist order which the Court of
Appeals for the Eighth Circuit enforced without
comment. 80 LRRM 3005 (8th Cir. 1972).
52a
Such injunctions are becoming common in Title VII
cases. Two of the Title VII cases on record involve facts
very similar to the ones at hand. In those cases the
defendants were enjoined from engaging in practices
which would have the effect of precluding or discourag-
ing persons similarly situated to the plaintiffs from
exercising their rights under Title VII, EEOC v. Union
Bank of Arizona, 12 FEP Cases 527, 530 (D.C.Ariz.
1976); EEOC v. Midas, Inc., 8 FEP Cases 719, 721
(1974). See Willie Wells et al. v. Meyer’s Bakery, 561
F.2d 1268, 14 EPD 97651, 15 FEP Cases 930 (8th Cir.
1977); Pettway v. American Cast Iron Pipe Co., 494 F.2d
211, 7 FEP Cases 1115 (5th Cir. 1974).
Based upon the record in this case, the plaintiffs are
entitled to a permanent injunction restraining defend-
ants at the Minneapolis office of USF&G from engag-
ing in any like or related retaliatory actions to those
taken against Ms. Mead, including retaliatory dis-
charge and retaliatory and selective surveillance and
monitoring, and any other activities which violate
§ 704(a).
17. Communication of this Court’s Order. Credible
employee testimony as well as the fact of Mead’s
discharge have established the chilling effect created
solely by the illegal conduct of the Company on the
exercise of employee Title VII rights. One of the most
effective means of curbing that effect is to require the
cause of the intimidation — the Company — to
announce its cessation of its own illegal conduct.
Employer communication of court directions to cease
and desist from unlawful employment practices is a
well used and effective remedy in labor law.?
9 See, e.g., NLRB v. Express Publishing Co., 312 U.S. 426,
438 9, 8 415 (1941); Marine Welding & Repair Works v.
NLRB 439 F.2d 395, 399, 76 LRRM 2660 (8th Cir. 1971);
NLRB v. Teamsters, Local 294, 470 F.2d 57, 63, 81 LRRM
2920 (2nd Cir. 1972); cert. denied, 393 U.S. 836; J. P. Stevens
& Co. v. NLRB 461 F.2d 490, 495, 80 LRRM 2609 (4th Cir.
1972); Texas Gulf Sulphur Co. v. NLRB 463 F.2d 778, 779, 80
LRRM 3171 (5th Cir. 1972).
53a
This remedy has begun to be employed by district
courts in Title VII cases. One district court ordered an
employer that had unlawfully retaliated against two
employees for filing a charge with the EEOC or for
assisting persons who had done so to deliver to each of
its employees a copy of the court’s findings of fact,
conclusions of law and order. EEOC v. Union Bank of
Arizona, 12 FEP Cases, at 529. In the case of EEOC v.
Midas, Inc., 8 FEP Cases 719, a company was required
to communicate to each employee both orally and by
written statement the court’s preliminary order reinstat-
ing retaliatorily discharge employees and enjoining
further acts by the company.
[8] Therefore, because the circumstances of this case
warrant it, this Court will order that the defendant
USF&G deliver a copy of this Order to each employee
employed at the Minneapolis office at any time since
May 5, 1976 and post a copy of the order at a
conspicuous place on the working premises of the
Minneapolis office for 60 days. This Court will further
order that the highest ranking official in the Minneapo-
lis office of USF&G read both this Order and § 704(a),
42 U.S.C. §2000e-3(a) during working hours at a
meetir.g attended by all employees, supervisors and
other management officials employed at defendant
USF&G’s Minneapolis office within ten (10) days of the
signing date of this Order and that for the purpose of
this meeting Sheila Mead shall be considered an
employee and may be present, at her discretion.
[9] 18. Expungement. ‘The personnel records of Ms.
Mead and any related records should be expunged of all
adverse comments communicated since May 5, 1976.
Expungement is necessary both to eliminate the
discriminatory effects of past retaliation and to pre-
clude any future discriminatory effects on Ms. Mead of
USF&G’s past acts of retaliation.
Following an appropriate motion and hearing, the
Court will determine plaintiff's entitlement to costs and
a reasonable attorney’s fee.
54a
ORDER FOR PLAINTIFF MEAD’S § 704(a)
RETALIATORY DISCHARGE CLAIM
Before the Court is the complaint of plaintiff Sheila
Mead and the plaintiff-intervenor Equal Employment
Opportunity Commission that defendant United States
Fidelity and Guaranty Company learned in May, 1976,
that Ms. Mead had filed charges with the EEOC:
alleging that USF&G unlawfully discriminated against
her on the basis of sex, and that thereafter, in
retaliation for filing those sex discrimination charges,
the defendant USF&G through its agents took reprisals
against Ms. Mead by, among other activities, monitor-
ing her work with greater frequency than that of other
similarly situated employees, making unsupported
adverse reviews of her work and discharging her. This
matter has been heard by this Court and Findings of
Fact and Conclusions of Law have been drawn,
resulting in the conclusion that the defendant USF&G
did retaliate against plaintiff Sheila Mead and dis-
charge her in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-3(a) et seq. because she
had filed charges alleging that USF&G discriminates
on the basis of sex with the EEOC.
Therefore, in accordance with those Findings of Fact
and Conclusions of Law, the following relief is OR-
DERED:
A. that defendant United States Fidelity and Gua-
ranty Company, its officers, agents, employees, and all
persons in active concert or participation with it are
hereby permanently enjoined from engaging in any
retaliatory actions in violation of Section 704(a) against
plaintiff Sheila Mead or any other employees at its
Minneapolis, Minnesota branch office for opposing
practices made unlawful under Title VII or for filing
charges, testifying, assisting or participating in an
investigation or other proceeding under Title VII.
B. that defendant USF&G offer plaintiff Sheila
Mead reinstatement to the position of Assistant
Underwriter A in the Fire Department, restoring to her
RA
55a
all rights and benefits she would have received if she
had not been unlawfully discharged, including, but not
limited to insurance and pension programs, as well as
other compensation, terms, conditions and privileges of
employment. Ms. Mead shall be allowed a reasonable
time in which to respond to the offer of reinstatement.
C. that defendant USF&G pay to Ms. Sheila Mead
the backpay due her from January 7, 1977, to August 1,
1977, amounting to $1,619.11, plus interest, at the rate
of 6% per annum, and that defendant USF&G remedy
all monetary and other losses caused by the unlawful
termination of her employment.
[10] D. that defendant USF&G transfer to Ms.
Sheila Mead the bracelet which is given to employees
who have been employed by USF&G for five years,
which Ms. Mead would have received if she had not
been unlawfully terminated.
E. that defendant USF&G take all actions necessary
to place Ms. Mead in the position she would have been
in had she not been unlawfully discharged, including
the expungement from her personnel records and any
other related records maintained or controlled by
defendant USF&G all adverse comments communi-
cated or recorded since May 5, 1976. The expungement
shall be stayed pending the completion of the litigation
presently before this Court, including the resolution of
charges other than the § 704(a) retaliatory discharge
claim. Nevertheless, in any circumstances other than
those involving the litigation, information shall be
conveyed as if the expungement order had been
completely effectuated.
F. that defendant USF&G, through its managing
officer of the Minneapolis, Minnesota branch office,
deliver to each employee employed in its Minneapolis
office at any time since May 5, 1976, a copy of this
Order within ten days of the filing date of this Order.
G. that the highest ranking official in the Minnea-
polis office of USF&G shall read this Order and
56a
§ 704(a), 42 U.S.C. § 2000e-3(a) during working hours at
a meeting attended by all employees, supervisors and
other management officials employed at defendant
USF&G’s Minneapolis office within ten (10) days of the
signing date of this Order and that for the purpose of
this meeting Sheila Mead shall be considered an
employee and may be present, at her discretion.
H. that defendant USF&G post in a conspicuous
place in its Minneapolis office for a period of at least 60
days a copy of this Order with a Notice attached signed
by a responsible officer of defendant USF&G advising
employees of this Order and of the existence of the
permanent injunction and directive that the Company
is under this Court’s Order to refrain from taking any
retaliatory action against any employee who exercises
his or her rights under Title VII.
Let judgment be entered accordingly.
IT IS SO ORDERED.
ORDER
Before the Court are plaintiff Sheila Mead’s Motion
for Temporary and Preliminary Relief and plaintiff-
intervenor Equal Employment Opportunity Commis-
sion’s Petition for Temporary Relief on plaintiff Mead’s
§ 704(a) retaliatory discharge claim. Because permanent
relief has been granted on the merits of plaintiff Mead’s
§704(a) action, the Motion and Petition are hereby
denied.
IT IS SO ORDERED.
57a
MEAD v. U.S. FIDELITY & GUARANTY CoO.
U.S. District Court, District of Minnesota
MEAD, et al., and EQUAL EMPLOYMENT OPPOR-
TUNITY COMMISSION, Intervenor v. UNITED
STATES FIDELITY AND GUARANTY COMPANY, et
al., No. 4-77-16, January 13, 1978
Action under Title VII of Civil Rights Act of 1964 by
former employees against employer, wherein former
employees moved for class certification. Class certified.
See also 18 FEP Cases 131, 442 F. Supp. 102; 18 FEP
Cases 136, 442 F. Supp. 109; and 18 FEP Cases 140, 442
F. Supp. 114.
Frank Vogl and Thomas D. Carlson (Best & Flana-
gan), Minneapolis, Minn., for plaintiffs.
Katherine S. McGovern, Washington, D.C., for inter-
venor.
Stuart W. Rider, Jr., and Timothy R. Thorntor (Rider,
Bennett, Egan, Johnson & Arundel), Minneapolis,
Minn., and Arthur M. Brewer (Shawe & Rosenthal),
Baltimore, Md., for defendants.
Full Text of Opinion
LORD, District Judge: —
Memorandum Accompanying Order Certifying
Case as Class Action
Plaintiffs Sheila Mead and Terry Oakley filed a
motion, pursuant to Fed. R. Civ. P. 23, to have the class
certified for the instant action. The Equal Employment
Opportunity Commission supported plaintiffs’ motion
for class certification under Fed. R. Civ. P. 23(b). The
defendants filed a memorandum of law opposing the
motion.
Subsequent to a full hearing, the Court ordered that
this case be maintained as a class action under Fed. R.
Civ. P. 23(b)(2), and the plaintiffs were designated
representatives of a class comprised of all past, present,
and future women employed by defendant United
58a
States Fidelity and Guaranty Company at any of its
offices in the United States Fidelity and Guaranty
Company at any of its offices in the United States since
July 5, 1965, and all past, present, and future female
applicants for employment with defendant United
States Fidelity and Guaranty at any of its offices in the
United States since July 5, 1965. This memorandum
will set forth the factual and legal basis for the
November 22, 1977 Order certifying the class.
I. Statement of Facts
Pursuant to the provisions of Title VII of the Civil
Rights Act of 1964, this action was commenced by
Sheila Mead and Terry Oakley against their employer,
defendant United States Fidelity and Guaranty Com-
pany. The essential thrust of plaintiffs’ complaint is
that defendant USF&G has engaged and continues to
engage in a pattern and practice of discriminating in
employment against women.
Defendant USF&G is headquartered in Baltimore,
Maryland and has fifty-eight branch offices located in
thirty-eight states. Although each office varies in
number of persons employed, the average size of each
branch office is eighty to one hundred employees. In
total, USF&G employs over 7,500 people of whom over
4,500 are women. For all of the time relevant thereto,
USF&G’s total work force has been 58% or greater
female. USF&G has centralized and uniform personnel
policies as evidenced by the Supervisors Guide which
was referred to during the course of the Mead retalia-
tory discharge trial. Throughout all of its offices,
defendant uses the same personnel standards and
forms and applies uniform personnel policies through-
out its entire organization. USF&G has developed and
utilized in its employment policies and practices a
written job description which identifies the basic
qualifications and grade for each job at USF&G.
Defendant USF&G is required, pursuant to Section
709(c) of Title VII, to file annually EEO-1 reports which
show the relationship of minority and female employees
59a
to its total work force in specified job categories.
Plaintiffs’ counsel has consolidated defendant’s EEO-1
reports for all of its offices for the year 1971 through
1975, revealing the following statistics:
Total Male Female Male Female
Year Employees Men Women Profs.' Profs.’ Clericals* Clericals*
1971 7111 2944 4167 2724 192 220 3975
(41.4%) (58.6%) (93.4%) ( 6.6%) (5.2%) (94.8%)
1972 7275 3018 4257 2762 251 256 4006
(41.5%) (58.5%) (91.7%) ( 8.3%) (6.0%) (94.0%)
1973 7347 2973 4374 2790 332 183 4042
(40.5%) (59.5%) (89.4%) (10.6%) (4.3%) (95.7%)
1974 7541 3010 4531 2800 416 213 4115
(41.0%) (60.0%) (87.0%) (13.0%) (4.0%) (95.0%)
1975 7510 2967 4543 2762 485 205 4058
(39.5%) (60.5%) (85.1%) (14.9%) (4.8%) (95.2%)
Source: EEO-1 Reports, 1971, 1972, 1973, 1974, 1975 Filed by USF&G for its consolidated
workforce
Comparing only 1975, the most recent EEO-1 reports
filed by defendant for the headquarters and each of the
58 branch offices with the relevant civilian labor force
for that area, the following statistics are revealed:
1 The term “professional” refers to professional, technical,
managerial, supervisory and like positions and includes,
among others, such positions as underwriter, outside adjus-
ter, assistant supervisor; supervisor and manager.
2 The term “clerical” refers to clerical, secretarial, steno-
graphic and like positions and includes, among others, such
positions as clerk (mail, records, messenger and code),
typists, secretaries, bookkeepers and assistant underwriters.
Branch
Office
Albuquerque
Atlanta
Baltimore
Baltimore Hdq.
Birmingham
Boston
Buffalo
Charleston
Charlotte
Chicago
Cincinnati
Cleveland
Columbia, SC
Columbus, OH
Dallas
Denver
Des Moines
Detroit
Dixon, IL
Harrisburg. PA
Hartford, CT
Helena, MT
Houston, TX
Indianapolis, IN
Jackson, MS
Jacksonville, FL
Kansas City, MO
Lansing, MI
Little Rock, AR
Los Angeles, CA
Louisville, KY
Memphis, TN
Miami, FL
Oklahoma City
Milwaukee, WI
Minneapolis, MN
Nashville, TN
New Orleans, LA
New York City
Omaha
Philadelphia
Phoenix
Pittsburgh
Portland, ME
Portland, OR
60a
Total Male
Employees Managers
(59) 23 (92.0%)
(105) 40 (100%)
(87) 31 (88.6%)
(1463) 400 (75%)
(129) 43 (84.3%)
(96) 44 (100%)
(53) 19 (82.6%)
(60) 29 (87.9%)
(59) 24 (96%)
(245) 86 (81.9%)
(62) 22 (84.6%)
(55) 22 (88%)
(81) 33 (91.6%)
(45) 22 (88%)
(119) 37 (75.5%)
(126) 47 (83.9%)
(51) 20 (95.2%)
(86) 29 (74.4%)
(44) 18 (94.7%)
(48) 45 (93.8%)
(86) 31 (91.2%)
(39) 14 (87.5%)
(67) 26 (86.6%)
(185) 54 (79.4%)
(28) 17 (94.5%)
(122) 34 (79.1%)
(90) 39 (90.7%)
(63) 24 (88.9%)
(73) 30 (90.9%)
(110) 37 (82.2%)
(72) 30 (90.9%)
(84) 32 (84.2%)
(95) 34 (75.6%)
(122) 52 (95.4%)
(82) 30 (81.1%)
(98) 40 (83.3%)
(111) 41 (78.8%)
(118) 44 (93.7%)
(213) 86 (82.7%)
(53) 26 (96.3%)
(87) 36 (94.7%)
(69) 27 (91.8%)
(70) 28 (87.5%)
(63) 24 (80%)
(57) 22 (88%)
Female
Managers
2
0
4
(8%)
(0%)
(11.4%)
128 (25%)
8
0
4
4
1
19
4
3
3
3
12
9
0
4
l
1
l
3
3
2
4
1
1
9
4
3
3
8
3
6
11
3
7
8
1
8
l
3
l
l
2
6
4
6
3
(15.7%)
(0%)
(17.4%)
(12.1%)
(4%)
(18.1%)
(15.4%)
(12%)
(8.4%)
(12%)
(24.5%)
(16.1%)
(4.8%)
(25.6%)
(5.3%)
(6.3%)
(8.8%)
(12.5%)
(13.4%)
(20.6%)
(5.6%)
(20.9%)
(9.3%)
(11.1%)
(9.1%)
(17.7%)
(9.1%)
(15.8%)
(24.4%)
(5.5%)
(18.9%)
(16.7%)
(21.1%)
(6.4%)
(17.3%)
(3.7%)
(5.3%)
(18.2%)
(12.5%)
(20%)
(12%)
Relevant Civilian
6la
Relevant Civilian
Branch Total Male Female Labor Force
Office Employees Managers Managers Men Women
Raleigh (98) 31 (77.5%) 9 (22.5%) 58.0% 42.0%
Richmond (111) 36 (87.8%) 5 (12.2%) 58.3% 41.7%
Sacramento (90) 32 (91.4%) 3 (8.6%) 61.3% 38.7%
Salt Lake City (57) 28 (96.6%) 1 (3.4%) 63.0% 37.0%
San Antonio (53) 15 (68.2%) 7 (31.8%) 60.4% 39.6%
San Francisco (84) 29 (76.3%) 9 (23.7%) 60.6% 39.4%
San Jose (58) 22 (84.6%) 4 (15.4%) 63.1% 36.9%
Scranton (56) 23 (88.5%) 3 (11.5%) 59.8% 40.2%
Seattle (54) 20 (74.1%) 7 (25.9%) 62.5% 37.5%
Springfield, MA (100) 35 (85.4%) 6 (14.6%) 59.4% 40.6%
Syracuse (85) 29 (85.3%) 5 (14.7%) 61.6% 38.4%
St. Louis (118) 43 (71.7%) 17 (28.3%) 61.4% 38.6%
Toledo (45) 19 (86.4%) 3 (13.6%) 63.4% 36.6%
Wichita (65) 25 (92.6%) 2 (7.4%) 61.8% 38.2%
Labor Force
Men Women
61.5% 38.5%
59.4% 40.6%
61.1% 38.9%
61.1% 38.9%
62.1% 37.9%
59.0% 41.0%
62.9% 39.1%
64.8% 35.2%
58.6% 41.4%
61.2% 38.8%
62.5% 35.5%
62.4% 37.6%
58.2% 41.8%
59.8% 40.2%
59.7% 40.3%
60.6% 39.4%
58.9% 41.1%
64.4% 35.6%
47.8% 52.2%
60.4% 39.6%
60.3% 39.7%
55.5% 44.5%
63.7% 36.3%
61.1% 38.9%
57.7% 42.3%
58.9% 41.1%
60.0% 40.0%
61.5% 38.5%
58.8% 41.2%
61.0% 39.0%
61.6% 38.4%
60.6% 39.4%
58.4% 41.6%
59.9% 40.1%
61.0% 39.0%
59.6% 40.4%
59.4% 40.6%
62.6% 37.4%
60.7% 39.3%
60.0% 40.0%
61.8% 38.2%
61.3% 38.7%
65.7% 34.3%
58.9% 41.1%
61.0% 39.0%
Source: EEO-1 Reports, 1975 Filed by USF&G for its consolidated workforce
On March 27, 1972, plaintiff Mead commenced
employment as a multi-line rate clerk/typist in the Fire
and Marine Department of the Minneapolis office of
defendant USF&G. In August, 1974, following gradua-
tion from Hamline University, plaintiff Terry Oakley
commenced employment as a rate clerk in the Fire and
Marine Department of the Minneapolis office of
defendant USF&G (Tr. 1314-15). During the course of
her employment, she took courses in insurance at the
University of Minnesota (Tr. 1315). In May and July,
1976 Mead and Oakley filed on behalf of themselves as
well as all other female employees and female appli-
cants for employment “across the board” sex discrimi-
nation charges with the Equal Employment Opportun-
ity Commission (“EEOC”) against defendant USF&G.
Mead worked for defendant until January 7, 1977
when she was unlawfully discharged for having
exercised her protected rights under Title VII. (See, this
Court’s Findings of Fact, Conclusions of Law, Order for
Judgment On Plaintiff Mead’s 704(a) Retaliatory
8 References are to exhibits and transcri = SS Sa
before this Court on the retaliatory e claim of
Plaintiff Mead. That matter is Claim II of the Amended
Complaint.
62a
Discharge Claim dated September 14, 1977 hereinafter
cited as “Findings’”’). Oakley worked for defendant
USF&G until April 28, 1977 when she was construc-
tively discharged in retaliation for having filed EEO
charges (Tr. 1315-1317).
In addition to the Mead and Oakley charges,
substantially identical “across the board” sex discrimi-
nation charges against defendant USF&G have been
filed by Amy Quinn Lavoie (Tr. 768), Leslie Deaton (Tr.
721), and Lynn Silbernagel. Sex discrimination charges
against defendant USF&G have also been raised with
the EEOC by women employees in Baltimore, Des
Moines, St. Louis, and Oklahoma City. See, EEOC v.
USF&G, Civ. Nos. HM 75-1712, 75-1812-1815, 15 FEP
Cases 532 (D.Md. 1976). Furthermore, in 1974, a
Commissioner’s §707 charge alleging, among other
things, a pattern and practice of sex discrimination was
filed against USF&G.
On May 23, 1977, the EEOC filed a Motion for Leave
to Intervene as a party plaintiff in the class action of
Mead and Oakley. At that same time the EEOC filed a
Complaint in Intervention “quite similar to” the
“across the board” sex discrimination allegations in the
Mead-Oakley Complaint (Court’s Memorandum and
Order on Intervention dated August 15, 1977 at p. 6).
Attached to the Commission’s Complaint in Interven-
tion is the Certificate of its General Counsel EEOC
certifying that “the Commission has determined this
action to be of general public importance in accordance
with Section 706(f)(1) of Title VII... .”
On August 15, this Court ordered the parties to
engage in conciliation and “if no settlement is forth-
coming by the end of the sixty day period, this Court
will enter an order permitting the EEOC to expand its
intervention in accordance with its Complaint in
Intervention.”” Memorandum and Order on Jurisdiction
at p. 8.4 The parties subsequently engaged in concilia-
* The Court reserved ruling on whether the EEOC could
expand its intervention beyond its Complaint in Intervention
to include other matters raised in the § 707 Commissioner’s
charge.
63a
tion efforts, which terminated on November 18, 1977
without settlement. On November 22, the Order certify-
ing the case as a class action was filed. Intervention
was granted on December 20, 1977.
Fed. R. Civ. P. 23(a) establishes these prerequisites to
maintenance of a class action:
(1) the class is so numerous that joinder of all
members is impracticable.
(2) there are questions of law or fact common to
the class,
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class, and
(4) the representative parties will fairly and
adequately protect the interests of the class.
In addition to the above, one of the three alternative
requirements of Fed. R. Civ. P. 23(b) must be met.
Sperry Rand Corp. v. Larson 554 F.2d 86§. 874-875, 14
FEP Cases 1455, 1459 (8th Cir. 1977). The present case
pleads a civil rights action brought pursuant to Title
VII of the Civil Rights Act of 1964 USC §2000e et seq..,
which seeks, among other things, declaratory and
injunctive relief for the named plaintiffs as well as all
women who have been, are being, or will in the future
be discriminated against by defendant USF&G. This
case falls squarely within subdivision (b)(2) of Rule 23
which provides:
(b) Class Action Maintainable. An Action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition;
(2) the party opposing the class has acted or
refused to act on grounds generally applicable to
the class, thereby making appropriate final injunc-
tive relief with respect to the class as a whole.
II. The Complaint Meets the Requirements
of Rule 23(a)(1).
The Rule 23(aX(1) requirement that “the class be so
numerous that joinder of all members is impracticable”
is plainly met here. Plaintiffs seek to represent all past,
64a
present and future women employed by defendant
USF&G at any of its offices in the United States since
July 5, 1965.
[1] The statistics set forth on pages 3 and 4 illustrate
that over 4,500 women have a potential Title VII cause
of action against common defendant.® These women are
located in 38 different states. These undeniable facts
alone establish the impossibility of joinder of all the
parties. Bearing in mind that the courts have held that
the Rule requires only impracticability, not impossibil-
ity, Jensen v. Continental Financial Corporation, 404
F.Supp. 806, 809 (D. Minn., 1975); the standard is
obviously met.
In similar cases, class actions have been declared
with far fewer class plaintiffs. See, e.g., Griggs v. Duke
Power Co., 401 U.S. 424, 3 FEP Cases 175 (1971) (a class
of 95 employees) Horn v. Associated Wholesale Grocers,
555 F.2d 270, 275-276, 14 FEP Cases 1460, 1464-1465
(10th Cir. 1977) (41 persons); Arkansas Teachers
Association v. Board of Education, 446 F.2d 763, 3 FEP
Cases 800 (8th Cir. 1971) (20 persons); Cypress v.
Newport News General, 375 F.2d 648, 9 FEP Cases 1065
(4th Cir. 1967) (18 persons).
[2] Further, in light of the illegal retaliatory dis-
charge of class representative Mead here, a class action
is uniquely appropriate to the present circumstances
due to the job jeopardy otherwise risked by an
individual seeking relief. The Tenth Circuit recognized
this fact in Horn v. Associated Wholesale Grocers,
supra, 555 F.2d at 275, 14 FEP Cases atet464-1465,
when it explained:
“(E]mployees are apprehensive concerning loss of
jobs and the welfare of their families. They are
frequently unwilling to pioneer an undertaking of
this kind (a class action Title VII suit) since they
are unsure as to whether the court will support
them. Even if they do prevail, they are apprehen-
5 In addition, there are numerous but uncounted former
employees and applicants.
65a
sive about offending the employer as a result of
taking a stand. These are all factors that enter into
the impracticability issue.”
Additionally, the formation of a nationwide class
insures that the Court will be able to grant effective
relief, should such be warranted, which cannot be
thwarted by the inter-office transfer of employees.
III. The Complaint Meets the Requirements
of Rule 23(a)(2)
[3] The Rule 23(a)(2) requirement that there be
“questions of law or fact common to the class” is
obviously present here. The basic legal and factual
allegation in the Complaint — which applies “across
the board” to all members of plaintiffs’ class — is that
defendant USF&G has intentionally denied equal
employment opportunity to women applying to and
employed by it throughout the United States. The
validity of this “across the board” approach has been
recognized by the courts. See, e.g., Senter v. General
Motors Corp., 532 F.2d 511, 12 FEP Cases 451 (6th Cir.
1976); Rich v. Martin Marietta Corp., 522 F.2d 333, 11
FEP Cases 211 (10th Cir. 1975); Johnson v. Georgia
Highway Express, 417 F.2d 1122, 1124, 2 FEP Cases 231
(5th Cir. 1969); Bowe v. Colgate-Palmolive Co., 416 F.2d
711, 2 FEP Cases 223 (7th Cir. 1969); Jenkins v. United
Gas Corp., 400 F.2d 28, 33, 1 FEP Cases 364, 69 LRRM
2152 (5th Cir. 1968). See also 3B Moore’s Federal
Practice Para. 23.06-1 at P. 23-303, n. 7 and Supplement;
Developments in the Law: Employment Discrimination
and Title VII of the Ciwil Rights Act of 1964, 84 Harv.
L. Rev. 1109, 1220 (1971).
6 Professor Moore has characterized this requirement as
“unnecessary, since, in addition to the p uisites of
subdivision (a), an action can be maintained as a class action
under Rule 23 only if it satisfies the requirements of at least
one of the three types of class actions provided by subdivi-
sion (b).” The existence of common questions is implicit in
each of those three types. 3B Moore’s Federal Practice Para.
23.06-1 at P. 23-301.
66a
Common questions of law and fact concerning the
nature of defendant’s practices which affect these class
members and which raise issue under Title VII are set
out in the Complaint of Mead and Oakley and the
Complaint in Intervention of EEOC. These include such
questions as:
(a) Whether defendant USF&G has and continues to
maintain recruitment and hiring policies and practices
with respect to professional trainee, professional,
technical and managerial positions which unlawfully
operate to deny potential female applicants, female
applicants, current female employees, and past female
employees equal employment opportunity because of
their sex (Mead-Oakley Amended Complaint at para-
Oakley Amended Complaint at paragraph 6 and 8;
EEOC Complaint at paragraph 9a).
(b) Whether defendant USF&G has and continues to
maintain policies and practices with respect to assign-
ment, selection, training and testing which unlawfully
operate to deny potential female employees, current
female empioyees, and past female employees equal
employment opportunity because of their sex (Mead-
Oakley Amended Complaint at paragraph 7, 9 and 10;
EEOC Complaint at paragraph 96).
(c) Whether defendant USF&G has and continues to
maintain policies and practices with respect to promo-
tion and transfer which unlawfully operate to deny
potential female employees, current female employees,
and past female employees equal employment opportun-
ity because of their sex (Mead Oakley Amended
Complaint at paragraphs 6 and 9; EEOC Complaint at
paragraph 9c).
(d) Whether defendant USF&G has and continues to
maintain policies and practices with respect to wages,
internal employment opportunities, terms and condi-
tions of employment, and privileges of employment
which unlawfully operate to deny potential female
employees, current female employees, and past female
employees equal em
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