Opposition — United States Fidelity & Guaranty Co. v. Lord

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No, 78-942

UNITED STATES FIDELITY AND GUARANTY COM.

PANY,

Petitioner,

VS.

THE HONORABLE MILES W. LORD, Judge of the

United States District Court, District of Minnesota,

Fourth Division,

Respondent,

and

SHEILA MEAD and TERRY OAKLEY, and all other

persons similarly situated, and EQUAL EMPLOY-

MENT OPPORTUNITY COMMISSION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENTS MEAD AND OAKLEY

IN OPPOSITION

BEST & FLANAGAN

By Frank Vogl

Thomas D. Carlson

4040 IDS Center

Minneapolis, Minnesota 55402

(612) 339-7121

1979—Northwest Brief Printing Co,, 316 Chicago Avenue, Minneapolis 55415—338-5078

TABLE OF CONTENTS

Page

gy 6 a da asa ate whe 8 ee 2

SE ONE waco ba pewesecceeseeseee cbess 2

Reasons for Denying the Writ ..........00ee eens 7

1, The Eighth Circuit correctly ruled that man-

damus is unavailable to compel vacation of a

discretionary class certification order ........ 7

2. None of petitioner’s alleged reasons warrant

EE SN I 3. 6 kao 0 6 ved oe 80 2 60 9 0 9

3: The record does not support petitioner’s claim 12

Certiorari review will not materially advance

the ultimate termination of this litigation ..... 12

EE ea eee RF Bie AA a 13

TABLE OF AUTHORITIES

Cases:

Bankers Life & Cas. Co, vy. Holland, 346 U.S. 379, 384

Sed Ads abu ei nV CNS vee Ones 8

In Re Cessna Aircraft Distributorship Antitrust Liti-

gation, 518 F.2d 213 (8th Cir. 1975), cert. denied,

423 U.S. 947, reh. denied, 423 U.S. 1039 ...... 6, 7

Coopers & .eOE v. Livesay, — U.S. —, 98 S.Ct.

2454, ot bnm.ae S51 (1978) ....5... Fy ee 11

East Texas Motor Freight Systems, Inc. v. Rodriquez,

eS Ss Er ee 8

EEOC v. USF&G, — F. Supp. —, 11 FEP Cases

oe A re eee 3

EEOC v, USF&G, — F. Supp. —, 13 FEP Cases 990

(D. Md. 1975), aff'd per curiam, 538 F.2d 324

(4th Cir. 1976), cert. denied 429 U.S. 1023 (1976) 3

EEOC v. USF&G, 420 F.Supp. 244 (D. Md. 1976) 3

EEOC v. USF&G, — F.Supp. —, 14 EPD {7528

(D. Mid. 197 TD oxvc Wain eee ek wn eos 6k + 88 a

Gardner v. Westinghouse Broadcasting Co., — U.S.

—, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978) . .7, 9,

Green v. United States Fidelity and Guaranty Com-

pany, 78-0706-CV-W-4 (W.D. Mo. filed September

15, 1976) .. s'ccuwgueuste pte Sees s Kes ena 5

Johnson v. Nekoosa Edwards Paper Co., 558 F.2d

841 (8th Cir. 1977), cert. denied sub. nom., Ne-

koosa Papers, Inc. v. Equal Employment Oppor:

tunity Commission, 434 U.S, 920 ............ a

Mead v. United States Fidelity and Guaranty Company,

442 F.Supp. 114 (D. Minn. 1977) .............

Parkinson v. April Industries, Inc., 520 F.2d 650, 654

(2d Che, : 1575) sis eae ae ee ea cones eke

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ......

Will v. Calvert Fire Insurance Co., — U.S. —, 98

S.Ct. 2552, 57 L.F.d.2d 504 (1978) ......... (Aa *

Will v. United States, 389 U.S. 90 (1967) ........ 8,

Statutes and Rules:

Title VII of Civil Rights Act of 1964, 78 Stat. 253,

Pub. L. 88-352, amended by Pub. L. 92-261, Pub.

L. 93-608, Pub. L. 95-251 and Pub. L. 95-555

(codified at 42 U.S.C, §§ 2000e et seg. (1970 ed

and Supp. V) « osctecnse eee wane e es : a ae ey A

28 USK. $EZ0R -s cove ee eee eek oases

28 U.S.C, SERINE cee ce ees 7, 9,

Federal Rules of Civil Procedure, Rule 23 .........

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1978

No. 78-942

UNITED STATES FIDELITY AND GUARANTY COM-

PANY,

Petitioner,

Vs.

THE HONORABLE MILES W. LORD, Judge of the

United States District Court, District of Minnesota,

Fourth Division,

Respondent,

and

SHEILA MEAD and TERRY OAKLEY, and all other

persons similarly situated, and EQUAL EMPLOY-

MENT OPPORTUNITY COMMISSION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENTS MEAD AND OAKLEY

IN OPPOSITION

Respondents Mead and Oakley respectfully request that

this Court deny the petition for writ of certiorari, seeking

review of the Eighth Circuit’s opinion in this case. That

opinion is reported at 585 F.2d 860 (1978).

(1978).

QUESTION PRESENTED

Whether the Court of Appeals properly refused to is-

sue a writ of mandamus to compel the District Court to

vacate its order determining that this action brought under

Title VII of the Civil Rights Act of 1964’ may be main-

tained as a class action pursuant to Rule 23 of the Fed-

eral Rules of Civil Procedure.

STATEMENT OF FACTS

On May 5, 1976, Respondents Mead and Oakley, two

women employed at the Minneapolis office of petitioner,

filed with the Equal Employment Opportunity Commis-

sion (“EEOC”) on behalf of themselves as well as all oth-

er females employees and applicants for employment

charges of company-wide sex discrimination. On January

7, 1977, Mead was fired in retaliation for exercising her

Title VII rights. Six days later, respondents herein filed a

class action complaint in the United States District Court,

District of Minnesota, alleging that petitioner has engaged

and continues to engage in company-wide policies and

practices of discriminating against female employees and

applicants for employment because of their sex in viola-

tion of Title VII. At that same time, Mead sought a tem-

porary restraining order enjoining petitioner from retaliat-

178 Stat. 253, Pub. L. 88-352, amended by Pub. L. 92-261, Pub. L.

93-608, Pub. L. 95-251 and Pub. L. 95-555 (codified at 42 U.S.C.

§§ 2000 et seq. (1970 ed and Supp. V)).

ing against her for having exercised Title VII rights.” On

September 14, 1977, after fourteen days of hearings

spanning a nine month period, the District Court found

that Mead had been illegally discharged in retaliation for

exercising her statutory right to file an EEO charge.

Among other things, the Court found that Mead’s illegal

discharge had been orchestrated from petitioner’s head-

quarters in Baltimore (Pet. at 31a, 33a, 37a, 41a). Mead

v. United States Fidelity and Guaranty Company, 442 F.

Supp. 114 (D. Minn. 1977).

On May 3, 1977, the EEOC moved to intervene on

those aspects of the case alleging a company-wide pat-

tern of sex discrimination.’ In support of its motion, the

General Counsel of the EEOC certified that “the Com-

mission has determined this action to be of general public

importance in accordance with Section 706(f)(1) of Title

VII... .” The class allegations of the EEOC’s complaint-

in-intervention are substantially identical to those in the

complaint of Mead and Oakley.*

“Pursuant to stipulation, the District Court on February 3, 1977, con-

solidated Mead’s motion for preliminary relief with the petition of

the EEOC for temporary relief.

3A Commissioner’s charge under Section 707 of Title VII alleging,

among other things, that petitioner has engaged in company-wide sex

discrimination was filed August 16, 1974. Powell v. USF&G (EEOC

Charge No, TBAS-0336). For litigation resulting from the EEOC’s

investigation of that charge see, EEOC v. USF&G, — F.Supp. —.

11 FEP Cases 859 ‘D.Mad. 1975); EEOC v. USF&G, — F.Supp. —,

13 FEP Cases 990 (D.Md. 1975) (granting enforcement of EEOC

subpeona), aff'd per curiam, 538 F.2d 324 (4th Cir. 1976), cert. de-

nied 429 U.S. 1023 (1976); EEOC v. USF&G, 420 F.Supp. 244 (D.

Md. 1976) (granting enforcement of EEOC subpoena); EEOC v.

USF&G, — F.Supp. —, 14 EPD 7528 (D.Md. 1977) (denying con-

tempt motion of EEOC).

*On August 15, 1977, prior to ruling on the motion to intervene and in

accord with the Eighth Circuit’s guidelines on intervention established

in Johnson v. Nekoosa Edwards Paper Co., 558 F.2d 841 (1977),

cert. denied sub. nom. Nekoosa Papers, Inc. v. Equal Employment

Opportunity Commission, 434 U.S. 920. the District Court ordered

the parties to engage in conciliation, 442 F.Supp. 109.

On October 5, 1977, Respondents Mead and Oakley

moved for an order certifying the case as a class action. In

addition to the evidence presented during the fourteen days

of Mead’s retaliatory discharge trial which included such

documents as standardized personnel forms and Guides to

Personnel Practices used throughout petitioner’s organiza-

tion, respondents relied upon the affidavit of David Zug-

schwerdt, Assistant General Counsel of the EEOC and cus-

todian of its investigative files. The affidavit informed the

Court that there were pending against petitioner 23 EEO

charges as well as the §707 Commissioner's charge.° Fur-

ther, it advised the District Court that the EEOC’s investi-

gation of 10 branches and the headquarters:

“reveal[s] a uniform pattern of concentration of fe-

males into non-professional, non-managerial, non-pro-

fessional supervisory and nontechnical positions. This

concentration is the direct and foreseeable result of

USF&G's employment practices whereby vacancies in

professional trainee, professional, professional super-

visory, managerial, and technical positions are filled

by word-of-mouth recruitment by incumbents in

these positions, more than 90% of whom are Anglo

males, the acquiescence in and approval of these re-

cruitment practices and the resultant hires by head-

quarters, and the deliberate refusal to either promote

from the incumbent female pool or to recruit from

the external female pool.”

‘Although six charges allege racial discrimination, all 23 are filed by

women and raise One Or more systemic allegations made in the Com-

missioner’s pattern and practice charge. The 23 charges span a period

from 1972 to the present and come from eleven different locations.

On Septeinber 15, 1978. one of the charging parties filed a company-

wide class action on behalf of all Black femalc employees and appli-

cants, Green v. United States Fidelity and Guaranty Company, Og.

0706-CV-W-4 (W.D.Mo.).

Statistical analyses of petitioner’s EEO-1 reports for the

period 1971 through 1975° attached to the affidavit il-

lustrated that men have held a grossly disparate number of

the professional jobs.’ “These analyses,” the Zugschwerdt

affidavit informed the Court,

“support the conclusion that the absence of female

employees in managerial, professional, supervisory,

professional, professional trainee and technical posi-

tions over a five year period in each of USF&G’s of-

fices is not due to happenstance, but directly and

forseeably results from employment policies and

practices which discriminate against females as a class

nationwide due to their sex.”

Finally, the EEOC Assistant General Counsel’s affi-

davit advised the Court that:

“The Commission’s investigation has disclosed that

employment decisions affecting employees and appli-

cants for employment at professional trainee levels

and above are not made automonously by personnel

in each branch office.”

On November 22, 1977, the District Court ordered that

the action be conditionally certified as a Rule 23(b)(2)

class action on behalf of a class defined as “all past, pres-

ent, and future women employed by defendant United

States Fidelity and Guaranty Company in any of its of-

fices in the United States since July 5, 1965 and all past,

‘Section 709(c) of Title VII requires an employer to file annually EEO-1!

reports with the EEOC which show the relationship of minority and

female employees to its total workface in specified job categories.

TAlthough women constituted over 38% of the civilian labor force and

earned 43% of the college degrees confirmed during the relevant time

period, petitioner's EEO-1 reports established that men held over 93%

of the professional jobs in 1971; almost 92% of those jobs in 1972;

over 89% in 1973; 87% in 1974 and over 85% in 1975.

present and future female applicants for employment with

defendant United States Fidelity and Guaranty at any of its

offices in the United States since July 5, 1965.” There-

after, it issued a detailed memorandum regarding its class

certification order (Pet. at 57a).

Following the District Court’s denial of its application

for interlocutory appeal (Pet. at 75a-80a), petitioner ap-

plied to the Eighth Circuit for a writ of mandamus com-

pelling the District Court to vacate the class certification

order, to limit the class to the Minneapolis branch office

and to vacate its order granting the EEOC leave to inter-

vene on an unlimited basis."

On September 13, 1978, in a unanimous opinion writ-

ten by the Honorable William H. Becker, the Court of Ap-

peals denied the petition in every respect (Pet. at la-12a).

Applying the rule established in In Re Cessna Aircraft

Distributorship Antitrust Litigation, 518 F.2d 213 (8th

Cir, 1975), cert. denied, 423 U.S. 947, reh. denied, 423

U.S. 1039, it held that the extraordinary writ of mandam-

us would not lie to review the lawful exercise of discretion

by the District Court where there was absolutely no show-

ing that it abused its judicial power in granting the class ac-

tion certification (Pet. at 9a). The Court of Appeals ex-

pressly found that there “was ample evidence before the

district court to support the exercise of its discretion to

certify a national class” (Pet. at 10a). It also observed

that “the district court entered a carefully prepared mem-

orandum of findings of fact, conclusions of law, and af-

‘The petition for writ of certiorari expressly does not seek review of

the Circuit Court's denial of mandamus with respect to the cut-off

date for class membership or the District Court's order granting the

EEOC leave for permissive intervention (Pet. at 5, n.2).

firmation of its prior order certifying the action as a class

action,” attaching as an addendum the full text of the

lower court’s memorandum (Pet. at 5a).

The Court of Appeals declared the Cessna rule is con-

sistent with the recent decisions of this Court “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

Broadcasting Co., — U.S. —, 98 S. Ct. 2451, 57 L Ed.2d

364 (1978)” (Pet. at 10a.)°

REASONS FOR DENYING THE WRIT

1. The Eighth Circuit correctly ruled that mandamus is

unavailable to compel vacation of a discretionary

class certification order.’

As recently as Last Term, this Court reaffirmed that a

writ of mandamus may be issued only in exceptional cir-

cumstances “to confine an inferior court to a lawful exer-

cise of its prescribed jurisdiction or to compel it to exer-

cise its authority when it is its duty to do so” Will v.

Calvert Fire Insurance Co., —- U.S. —, 98 S.Ct. 2552,

2557, 57 L.Ed.2d 504, 511 (1978), quoting Roche v.

Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). “It is es-

sential that the moving party satisfy ‘the burden of show-

“On December 2%, 1978, pursuant to Section 706(f)(5) of Title VII and

the written consent and stipulation of all the parties, the District

Court referred this case to a special master.

WUSFA&G does not allege, and there does not appear to be, any con-

flict among the courts of appeals on this issue.

ing that its right to the issuance of the writ is ‘clear and

indisputable.’ ” /bid., quoting Bankers Life & Cas. C. v.

Holland, 346 U.S. 379, 384 (1953).

Petitioner fails to allege and plainly does not show by

“clear and indisputable evidence” that it meets either of

those standards. It does not contend that the District Court

was in any sense without “jurisdiction” to certify this Title

VII action as a class action. Title VII unquestionably con-

fers jurisdiction on District Courts to certify as class ac-

tions suits such as this alleging company-wide sex dis-

crimination. Indeed, such actions are “by their very nature

class suits, involving classwide wrongs.” East 7 exas Motor

Freight Systems, Inc., v. Rodriguez, 431 U.S. 395, 405

(1977).

Nor does petitioner argue that the District Court failed

to exercise “its authority when it is its duty to do so.”

Rather, by using the labels “mandamus” and “abuse of

discretion,” petitioner seeks interlocutory review of a non-

appealable class certification on the mere ground that it

may be erroneous. This Court has repeatedly condemned

such semantics and refused to issue mandamus relief. Will

v. Calvert Fire Insurance Co., supra, 98 S. Ct. at 2559 n.

7, 57 L.Ed.2d at 514 n. 7; Will v. United States, 389

U.S. 90, 98 n. 6 (1967).

The mislabeling is peculiarly ill founded in light if the

Court of Appeals finding that “there was ample evidence

before the district court to support the exercise of its dis-

cretion to certify a national class.” (Pet, at 10a).

Where a matter, such as the class certification order here,

“is committed to the discretion of a district court, it can-

not be said that a litigant’s right” to the issuance of the

extraordinary writ of mandamus “is ‘clear and indisputa-

ble.”” Will v. Calvert Fire Insurance Co., supra, 98 S.

Ct. at 2559, 57 L.Ed.2d at 514.

2. None of petitioner’s alleged reasons warrant granting

the petition.

Petitioner seeks certiorari review on the grounds that

the class action order presents this Court with “an oppor-

tunity to consider the problem of class certification” (Pet.

at 10), as it relates to “costly litigation” (Pet. at 7-9) and

alleged unmanageability (Pet. at 11-13). Even if consid-

ered in a less restrictive context than the writ of man-

damus proceeding, petitioner contentions are totally with-

out merit.

First, contrary to petitioner’s contention that “[t]his

Court has devoted virtually no attention to the problem of

class certification” (Pet. at 10), this Court just Last Term,

on two separate occasions, addressed the issue of inter-

locutory appellate review of class determinations and ruled

unanimously that, absent a certification by the District

Court for discretionary appeal, class determinations are

not subject to interlocutory review. Coopers & Lybrand

v. Livesay, supra; Gardner v, Westinghouse Broadcasting

Co., supra. These decisions along with Calvert Fire In-

surance Co., supra, hold that a class determination is nei-

ther reviewable under more conventional notions of appel-

late jurisdiction nor by way of the extraordinary writ of

mandamus." The Eighth Circuit expressly relied on

Petitioner did not seek appellate review of the class action order pur-

suant to 28 U.S.C. §1291. It did, however, pursuant to 28 U.S.C.

§1292(b), seek permissive interlocutory review of the class determina-

tion which was denied by the District Court (Pet. at 75a-81a). Peti-

tioner did not seek mandamus review of the order denying its §1292

(b) application.

those opinions (Pet. at 9a-10a). In short, this Court gave

full consideration Last Term to the very class certification

issue raised here and there is no need address that matter

again.

Petitioner’s underlying contentions for certiorari review

fail for the same reasons as the “death knell” doctrine

did in Coopers & Lybrand, There the suggestion of an

appealability rule for a class decertification order that

turned on the amount of the plaintiff's claim was rejected

for a variety of reasons. The proposed rule, which would

make appealability hinge on an arbitrarily selected juris-

dictional amount, was recognized to be “plainly a legisla-

tive, not a judicial, function.” 98 S.Ct. at 2460, 57 L.Ed.

2d at 360. This Court declared that such a rule would

have “a serious debilitating effect on the administration

of justice” because of the potential waste of judicial re-

sources resulting from repeated interlocutory appeals.

Ibid, “Perhaps the principal vice” of the doctrine, how-

ever, was that “it authorizes indiscriminate interlocutory

review of decisions made by the trial judge,” thus cir-

cumventing the restrictions imposed by the Interlocutory

Appeals Act of 1958, 28 U.S.C. §1292(b). 98 S.Ct. at

2461, 57 L.Ed.2d at 361.

Finally, this Court condemned the suggested rule because

it “thrusts appellate courts indiscriminately into the trial

process and thus defeats one vital purpose of the final

judgment rule—‘that of maintaining the appropriate rela-

ionship between the respective courts. . . . This goal, in

"The Court expressly noted that “the probable cost of the litigation”

was one of a variety of factors the plaintiff would consider in deciding

wheher to press the claim in light of a decertification order. 9% S Ct.

at 2459 n.15, 57 L.Ed.2d at 359 n.15,

the absence of most compelling reasons to the contrary, is

very much worth preserving.’ ” 98 S.Ct. at 2462, 57 L.Ed.

2d at 363 quoting from Parkinson v. April Industries, Inc.,

520 F.2d 650, 654 (2d Cir. 1975).

Mandamus review of a class certification order tied to

petitioner's alleged defense costs and its speculation con-

cerning manageability suffers from the same arbitrariness

found in Coopers & Lybrand.” Such review would in-

flict the same devasting impact on scarce judicial re-

sources. Like the “death knell” doctrine discredited in

Coopers & Lybrand, mandamus review of this order would

also violate the restrictions imposed by the Interlocutory

Appeals Act. See also, Gardner v. Westinghouse Broad-

casting Co., 98 S.Ct. at 2453, 57 L.Ed.2d at 367-368.

Adoption of petitioner’s proposal would thrust the Court

of Appeals indiscriminately into the merits of this action

and the trial process, thereby defeating one of the vital

purposes of the final judgment rule—the maintenance of

the appropriate relationship between the respective courts.

Cooper & Lybrand, 98 S.Ct. at 2461-2462, 57 L.Ed.2d

at 362-363.

Thus, in addition to failing because “[mJandamus.. .

may never be employed as a substitute for appeal in der-

13Certification of a large class may so increase the defendant's poten-

tial damage liability and litigation costs that he may find it economic-

ally prudent to settle and to abandon a meritorious defense. Yer the

courts of appeals have correctly concluded that orders granting class

certification are interlocutory.” 98 S.Ct. at 2462, 57 L.Ed. at 362.

(Emphasis added).

This Court has also made it crystal clear that litigation costs are not

a basis for issuing the extraordinary remedy of mandamus, “[t)he

writ [of mandamus] is not to be used as a substitute for appeal. . .

even though hardship may result from delay and perhaps unnecessary

trial.” Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964).

Ogation of these clear policies” prohibiting pricemeal re-

view, Will v. United States, supra 389 U.S. at 97, petition-

er’s contentions for certiorari, even if judged in a much

less restrictive context, were wholly rejected by two unani-

mous decisions of this Court Last Term.

3. The record does not support petitioner's claim.

There is no evidence in the record to suggest the pres-

ence of a manageability problem. To the contrary, the

Court of Appeals found that “ample evidence” supported

the certification order and that the action was presently

manageable (Pet. at 10a). In light of this record and the

fact that circumstances have not changed since the Eighth

Circuit’s decision, petitioner’s argument regarding man-

ageability is sheer speculation which certainly does not

merit this Court’s attention.

4. Certiorari review will not materially advance the ul-

timate termination of this litigation.

The District Court permitted the EEOC to intervene “on

an unlimited basis” and to file a complaint in intervention

which, in substantially identical terms as the Mead-Oakley

action, alleges company-wide sex discrimination. The

Eighth Circuit refused to issue a writ of mandamus re-

quiring the District Court to vacate that intervention order.

(App. 1 la-12a). Petitioner has not sought review of the

EEOC intervention issue here (Pet. at 5 n. 2).

Under the Eighth Circuit’s decision in Johnson vy, Ne-

koosa-Edwards Paper Co., supra, the EEOC’s interven-

tion here is not limited to scope of the Mead-Oakley ac-

tion but rather may be broader than the private action.

Consequently, even if, as urged by the petitioner, the

Mead-Oakley action were limited to Minnesota, the Dis-

trict Court’s order permitting the EEOC to pursue alle-

gations of company-wide sex discrimination remains in

full force and effect.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,