# Petition — United States Fidelity & Guaranty Co. v. Lord > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2193%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 913 ## Text p 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 equi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2193%3A1. Public record. Not legal advice.