Petition — Western Electric Co. v. Stern

Supreme Court brief1979

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Supreme Court of the Unit

In The

October Term, 1979

No.

WESTERN ELECTRIC coun "UE Ge aren.

Petitioner,

LAr

HONORABLE HERBERT J. STERN, UNITED STATES

DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY,

Nominal Respondent,

KYRIAKI CLEO KYRIAZI, individually and on behalf of all

those similarly situated,

Respondent.

mJ .

" i»

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

Of Counsel:

GEORGE V. COOK

ROBERT A. LEVITT

LAWRENCE M. JOSEPH

Western Electric Company

Incorporated

222 Broadway

New York, New York 10007

SEBASTIAN J. FORTUNATO

EDWARD P. LYNCH

PITNEY, HARDIN & KIPP

Attorneys for Petitioner

163 Madison Avenue

P.O. Box 2008-R

Morristown, New Jersey 07960

(201) 267-3333

2322 LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing

South River, NJ. New York. N.Y. Philadelphia, Pa. Washington. D.C

(201) 257-6450 (212) 840-9494 (215) 563-5587 (202) 783-72%x

_—-—— o-oo

TABLE OF CONTENTS

Page

i i Eesha cue sleek eak bates dedess deoeeebdses 2

eee dah whee ea audebaseaenaseees 3

Ee Tos

Statutory Provisions Involved .........ccccccccccccccces 4

Statement of the Case:

ete ere ans odode vensetacesacensss 4

ee CL ss ssiee cece eescseedsscuess 8

C. Procedural History Relevant to this Petition ..... 9

Se I IE UN WOOEE: ois cccnecvccscecvocsese 16

1. A. Petitioner's Property Has Been Taken Without

EE CM, oS piiig hee sew eecedseees 17

B. Petitioner Has Been Denied Its Due Process

NE BOUND wa cabebescccvacesevens 19

Il. The District Judge’s Award of Attorneys’ Fees

Conflicts with the Decisions of this Court. ...... 22

Ill. The Court of Appeals’ Denial of Mandamus

Conflicts with the Decisions of this Court. ...... 24

NEE 27

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ...... 17, at

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) .... 25

Bradley v. Richmond School Board, 416 U.S. 696 (1974) ...

POTEET TTT CETTE TELL TURE CCT VE CTO TURU TT 16, 23, 24

Connor v. Coleman, __— U.S. —_, 59 L. Ed. 2d 619 (1979) . 26

Deckert v. Independence Shares Corp., 311 U.S. 282 (1940). 17

East Texas Motor Freight v. Rodriguez, 431 U.S. 395 (1977). 7

Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100 (N.D.

TAR TUPED seach scree da cec decane etéteenanceceensss 21

Gasoline Products Company, Inc. v. Champlin Refining

Ce., Bee Ue. G8 CURSE) vc cw cece re devkeencidesenes 18

Hazelwood School District v. United States, 433 U.S. 299

PS cANe ok O46 5h 4 hs SANMO CEREAL eae we 7

Highland Avenue & Belt Rr. Co. v. Columbian Equip. Co.,

HGS U.S. G27 (UGGS) vc rcccccccccccccvcessdaccvcccees 17

Hill v. Western Electric Co., Inc., 12 FEP Cases 1175

(E.D. Va. 1976), 13 FEP Cases 1157 (E.D. Va. 1976),

affd in part, rev'd in part, 596 F.2d 99 (4th Cir.

cg MEEPS TEE TET TCT CEE Te COURT E TEC EC PTE Ter Tae 21

Hook v. Hook & Ackerman, Inc., 233 F.2d 180 (3d Cir.

1956), cert. denied, 352 U.S. 960 (1957)... .. cece eee 17

itt

Contents

Page

James v. Stockham Valves & Fittings Co., 559 F.2d 310

(Sth Cir. 1977), cert. denied, 434 U.S. 1034 (1978) ....17, 21

Kisteneff v. Tiernan, 514 F.2d 896 (Ist Cir. 1975) .......... 19

Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d

Cir. 1972), cert. denied, 409 U.S. 874 (1972) .......... 17

Kyriazi v. Western Electric Co., et al., 469 F. Supp. 672

a hn es Eid sda Chae bie ho0be bess ebas es 5

Lewis v. Phillip Morris, Inc., 419 F. Supp. 345 (E.D. Va.

1976), vac’d on other grounds, 577 F.2d 1135 (4th Cir.

coc, Me LER EO TEE Ee OUT ERT TPE Te CTT eer Ter 21

LoCicero v. Humble Oil & Refining Co., 52 F.R.D. 28

EE eee a er ee ee ee ee 19

In re Master Key Antitrust Litigation, 528 F.2d 5 (2d Cir.

Gc ae inh eee Ce Gaede ap hk uRe Sake nads > SK ios TO

OO re ere Tet eT Tee eT Cr TTT eee 21

TOE TE RS we ENAEAUSCE SAS URES UHR SCKS RAKE RONESARR%s 21

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) . 16, 24

Robinson v. P. Lorillard Co., 319 F. Supp. 835 (M.D. N.C.

1970), affd in part, rev'd in part, 444 F.2d 791 (4th

Cir. 1971), cert. dismissed, 404 U.S. 1006 (1971) ....... 21

Roche v. Evaporated Milk Ass'n, 319 U.S. 21 (1943) ....... 26

Contents

Page

Senter v. General Motors Corp., 383 F. Supp. 222 (S.D.

Ohio 1974), aff'd, 532 F.2d S11 (6th Cir. 1976), cert.

denied, 429 U.S. SFO IGF ss ccvdcdbnneerewssiseecss 21

Sledge v. J.P. Stevens & Co., 16 FEP Cases 1652 (E.D.

N.C. 1976), aff'd in part, rev'd in part, remanded in

part, 18 FEP Cases 261 (4th Cir. 1978) ...........00.. 21

Smith v. Vulcan Iron Works, 165 U.S. 518 (1897) ......... 17

State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d

309 (Sth Cie. 197B) nccccccucccsssessccutyaveuecsscs 19

In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322

(E.D. Pa. 19976) ...ccccssdesnackwapeeneeee sess tees 19

Teamsters v. United States, 431 U.S. 324 (1977) ........... 7, 20

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(IDTS) 2. cccccccncecesesseuee see coeees 25, 26

United Airlines v. Evans, 431 U.S. 553 (1977) ...........5. 7

Western Electric Co., Inc. v. Stern, 544 F.2d 1196 (3d

Cir. 1976), reh. denied, 551 F.2d 1 (3d Cir. 1976) ...... 10

Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978) .. 25, 26

W.L. Gore & Associates, Inc. v. Carlisle Corp., 529 F.2d

614 (3d Civ. IDTE) .. cccccvecdacnsses see ebeseeuenets 17

Contents

Page

Statutes Cited:

ET Bin SGA C4 Ad Va 6 4446 8 OS 0S sw OD Oe CO et Oe 23

EE cued cVacencees Vekuseesiaeeeceetncs sc pK

AN re re ee ere ere eee 15

Oe Sac ece on sivedsccs ves sa ced eawar ene 17

eC. Gacuseescendecsassbicvenceeeevaccevses 11

Ess bickdesvecesseesereeveenss 2, 3, 4, 24, 27

Eg ATR me nt aera a 8

i CD cok tcvtngeebessddueneseudecsecs 4

POLITE TOP ES TELE ETE TERT TCT Ee 4

42 U.S.C. G2000-S(k) once cc cccccccccccvvccccescccvecs 4, 6, 23

United States Constitution Cited:

Siac cc Ghee Natesccnencctbacsess sada 4, 16

Rules Cited:

en PE she cr eecdceuanedssrcesecssesenes 25

a wean ae oa eeeaees uu, 82

vl in vi

Contents Contents

APPENDICES Bis

Page Appendix D

Appendix A

Order of the United States District Court f istri

Order of the United States Court of Appeals for the of New Jersey, dated October 14 1978 eee 208

Third Circuit, dated April 25, 1979.0... cece cece eee la 7 | eae ‘

Order of the United States District Court for the Distri

Order of the United States Court of Appeals for the of New Jersey, dated February 27, 1979 Nissho 211

Third Circuit, dated May 18, 1979... ccc eee e ee eens 3a i. Ae es .

Order of the United States District Court for the Distri

Excerpt from the General Docket of the United States of New Jersey, dated March 9 1979 eaters: 213

Court of Appeals for the Third Circuit: ........0eee. 4a Sat .

Order of the United States District Court for the Distri

Petition for Writ of Mandamus and Prohibition ..... Sa of New Jersey, dated July 16, 1979 : en we 215a

Petition for Rehearing and for Rehearing en Banc... 19a Order of the United States District Court for the District

of New Jersey, dated July 17, 1979 ...........00005, 2l6a

Appendix B

Appendix E

Opinion of the United States District Court for the

District of New Jersey, dated October 30, 1978, as All Writs Act

amended November 22, 1978 .......c cece eee e eens Wa

| | a UDA, Gee 60 Oia 217a

Judgment and Order of the United States District Court |

for the District of New Jersey, dated October 30, 1978. 168a | Civil Rights Act of 1964

Appendix C | TE WB: Gee h.n'vnv cudkivndccthaa bans 218a

Opinion and Order of Reference and Guidelines for 42 U.S.C. §2000e-5(z) .. 218

Special Masters of the United States District Court for | EEEEEEES ;

the District of New Jersey, dated February 21, 1979 . 170a | 42 U.S.C. §2000e-5(k) ... 219a

Order of the United States District Court for the District

of New Jersey, dated March 2, 1979 ....... cece eee 205a.

Order of the United States District Court for the District |

of New Jersey, dated March 6, 1979 ...... 6.6. e ees 206a

In The

Supreme Court of the Wuited States

October Term, 1979

No.

WESTERN ELECTRIC COMPANY, INCORPORATED,

Petitioner,

VS.

HONORABLE HERBERT J. STERN, UNITED STATES

DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY,

Nominal Respondent,

KYRIAKI CLEO KYRIAZI, individually and on behalf of all

those similarly situated,

Respondent.

PRPPTTOMTUR WRIT OF CERTIONANT TO Tilt Cre»

SPR HOPS T = COURT TO Tt ere Toh

ee —FRrseey err PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari be issued under 28

U.S.C. §1254(1) to review the judgment of the United States

Court of Appeals for the Third Circuit, entered in this cause on

April 25, 1979, which denied a petition for writ of mandamus

and prohibition (1) directing the Honorable Herbert J. Stern,

United States District Judge for the District of New Jersey, to

issue his opinion and order with respect to relief to be accorded

the individual plaintiff and plaintiff class in accordance with his

order of bifurcation filed October 14, 1975, (2) prohibiting him

from proceeding with the second phase of this action as

described in the aforementioned order until he has decided the

first phase of the action under that order, and (3) directing him

to vacate his order of February 27, 1979, requiring the payment

of attorneys’ fees to plaintiff's attorney and to require him to

enter an order directing that said payments be returned to

petitioner or, in the alternative, deposited with the clerk of the

district court.

Petitioner also prays that a writ of certiorari be issued

under 28 U.S.C. §1651(a) to review directly the question whether

the District Judge should be directed to act, and be prohibited

from acting, in accordance with the foregoing.

OPINIONS BELOW

The order of the United States Court of Appeals for the

Third Circuit denying petitioner's petition for writ of mandamus

and prohibition is unreported. A copy of that order, along with

a copy of the order of the Court of Appeals denying rehearing

en banc of that petition,' is reprinted in Appendix A hereto. The

opinion of the United States District Court for the District of

1. Chief Judge Seitz, the one eligible judge who did not sit on the original

two judge panel, voted to grant rehearing “were it legally possible.” Six of the

remaining eight active judges disqualified themselves. Thus, the petition for

rehearing en banc was determined only by the same two judges who sat on the

original panel. Consequently, the procedural availability to petitioner of a

hearing en banc was very severely diminished.

New Jersey, issued on October 30, 1978 (and amended on

November 22, 1978) at the conclusion of the first stage of trial in

this case is reported at 461 F. Supp. 894 (D.N.J. 1978). That

opinion and the district court’s accompanying judgment and

order, dated October 30, 1978, are reprinted in Appendix B

hereto. The district court's opinion, issued on February 21, 1979

in contemplation of the commencement of the second stage of

trial in this case, is reported at 465 F. Supp. 1141 (D.N.J. 1979).

That opinion and the District Judge’s accompanying orders

dated February 21, 1979, March 2, 1979, and March 6, 1979, are

reprinted in Appendix C hereto. The district court’s order of

bifurcation, dated October 14, 1975, as well as additional

unreported orders of the district court in this case pertinent to

this petition are reprinted in Appendix D hereto.

JURISDICTION

The order of the United States Court of Appeals for the

Third Circuit denying petitioner's petition for writ of mandamus

and ¢ ‘ohibition was issued on April 25, 1979 (App. A, p. la). A

timely petition for rehearing was denied on May 18, 1979 (App.

A, p. 3a). Accordingly, this Court has jurisdiction to issue a writ

of certiorari to the United States Court of Appeals for the Third

Circuit pursuant to 28 U.S.C. §1254(1) in this case. Petitioner

sought review of the issues raised in this petition in its petition

for writ of mandamus and prohibition in the United States

Court of Appeals for the Third Circuit. That petition was denied

on April 25, 1979. The relief sought by the present petition for

writ of certiorari in this Court is therefore not available in any

other court. Accordingly, this Court has jurisdiction to issue a

writ of certiorari to the United States District Court for the

District of New Jersey under 28 U.S.C. §1651(a) in this case to

review those issues.

QUESTIONS PRESENTED

1. Can the judicial system tolerate, consistent with due

process of law as guaranteed by the Fifth Amendment to the

United States Constitution, a posture whereby a defendant is

compelled exclusively to bear the judicial cost of proceedings

before special masters, including the fees of those masters,

where there has been no final or otherwise appealable order as

to the underlying rulings which gave rise to the occasion for such

proceedings?

2. Whether a belated and ex post facto abrogation of the —

bifurcation order which petitioner relied upon to its ultimate

prejudice is arbitrary and capricious or is otherwise in violation

of the due process clause of the Fifth Amendment to the United

States Constitution?

3. Whether a District Judge has the power to award interim

attorneys’ fees and costs to plaintiffs counsel where plaintiff is

not a “prevailing party” within the meaning of 42 U.S.C. §2000e-

5(k)?

STATUTORY PROVISIONS INVOLVED

The statutory provisions relevant to this petition, 28 U.S.C.

§1651(a), 42 U.S.C. §2000e-2(a)(1), 42 U.S.C. §2000e-5(g), and 42

U.S.C. §2000e-5(k), are reprinted in Appendix E hereto.

STATEMENT OF THE CASE

A. Introduction

Petitioner had previously sought in the Court of Appeals

for the Third Circuit a writ of mandamus and prohibition to

address the violations of due process of law guaranteed by the

Fifth Amendment to the United States Constitution which have

occurred and will continue to occur because (1) it is compelled

to pay the extraordinary and non-recoverable costs of Stage II

(approximately 2,0002 individual trials) of this litigation; (2) it

has been prejudiced by the District Judge’s ex post facto

abrogation of his own bifurcation order; and (3) it was required

to pay plaintiffs counsel $280,834.49 in interim attorneys’ fees

for Stage I.

The enormous costs? of the Stage II proceedings have been

imposed upon petitioner despite the fact that no final or

2. The members of the class number approximately 10,000. Of these,

approximately 2,000 have filed claims. The time by which the approximately

3,500 rejected job applicant members of the class may file claims has not

expired. Thus, the number of actual trials may be well in excess of 2,000. It is

estimated that these claims will take several years to try, and that petitioner's

payments to the special masters alone at Stage II could exceed three million

dollars. All of this effort may be in vain should the underlying rulings upon

which the trials are based be legally or factually in error.

3. In a series of rulings the District Judge has imposed upon petitioner

many extraordinary, non-recoverable costs. These costs include the following

expenditures: (a) quarterly payments to the four special masters appointed to

hear Stage Il cases at rates at and in excess of $100 per hour (more than

$79,000 has already been requested); (b) payment to plaintiff's attorney of

attorneys’ fees and costs for the trial of Stage I (more than $280,000 already

paid; plaintiffs counsel's claim for an additional $700, 000 in Stage I fees and

costs remains pending); (c) quarterly payments to plaintiffs attorney for

attorneys’ fees and costs incurred during Stage II (see order dated March 6,

1979, App. C, p. 206a), which is presently stayed until further order of the

District Judge; see order dated March 9, 1979 (App. D, p. 213a); (d) the

additional payment for a paralegal to be utilized by each special master if he so

desires, April 26, 1979 status conference; (e) the cost of providing all Stage II

deposition and hearing transcripts to the special masters; (f) the payment of

regular salaries to petitioner's current employees who appear in Stage II trials

advancing their own claims against petitioner, and their witnesses who are

current employees of petitioner, Kyriazi v. Western Electric Co. et al., 469 F.

Supp. 672 (D.N.J. 1979); (g) the enormous cost of placing petitioner's basic

personnel records, approximately 30,000 of them, on computer as an

“attendant” cost to the special masters’ proceedings. May 2, 1979 status

conference. This project, to be financed solely by petitioner, is to be completed

within the next five months using its own personnel, 180 persons provided by

outside contractors, with all keypunching to be done by an additional outside

contractor force.

otherwise appealable order has been entered as to the underlying

rulings which gave rise to the occasion for Stage II. Petitioner

submits that, in the context presented, requiring petitioner (a) to

bear exclusively the judiciai cost of proceedings before special

masters and (b) to finance its adversary’s litigation against itself

by means of an award of interim attorneys’ fees is a taking of its

property without due process of law. Additionally, the award of

interim attorneys’ fees was an excess of judicial power in that

plaintiff was not a “prevailing party” within the meaning of 42

U.S.C. §2000e-5(k).

Petitioner also submits that its due process rights were

violated by the District Judge when he, after trial, abrogated his

own bifurcation order entered before trial. The effect of that

abrogation was an ex post facto denial to petitioner of its right

to make a reasoned and informed judgment as to how to defend

itself at Stage I. Furthermore, the abrogation of the bifurcation

order had the effect of blocking the appeal contemplated at the

conclusion of Stage I because the District Judge withheld the

awarding of injunctive relief. In this regard, petitioner submits

that the posture of paying for the costs of 2,000 trials despite the

absence of a final or otherwise appealable order as to the

underlying rulings upon which those trials are based does not

comport with the notion of fundamental fairness inherent in the

concept of due process of law.* This is so because petitioner’s

iight to appeal is conditioned upon its willingness to expend

millions of dollars in extraordinary non-recoverable costs over a

period of several years.

The due process deficiency in the present posture is directly

attributable to the inordinate weight given a liability finding of a

4. Nor does this posture comport with the overwhelming view of other

courts who regard the grant of injunctive relief as being mandatory upon a

finding of liability. See discussion and cases cited beginning at p. 21 of this

petition.

district court coupled with the stringent requirements for appeal

from that finding. A finding of liability has triggered a chain of

enormous (and perhaps completely unnecessary‘) costs, while at

the same time the failure to award broad-based relief has

shielded that finding from appellate review. In such

circumstance, lower court rulings have the effect of being

determinative of the rights and obligations of the parties. It is

submitted that the judicial process cannot, consistent with due

process of law, confer such weight to a lower court finding of

liability. A timely and meaningful review of that finding is a

necessary safeguard prior to the imposition of extraordinary

non-recoverable costs upon any party to the litigation.

Conversely, where a trial is properly bifurcated between

liability and relief, the relief stage of the trial (occasioned by a

5. Petitioner contends that numerous rulings of the District Judge upon

which Stage I liability is predicated will be overturned eventually on appeal,

thus rendering all or most of Stage Il an unnecessary effort and expense. These

rulings are predicated on numerous fundamental errors, e.g., (1) The District

Judge failed to give due weight to the decisions of this Court, e.g., East Texas

Motor Freight v. Rodriguez, 431 U.S. 395 (1977) (significant constitutional

questions are raised pertaining to plaintiff's standing to represent a class whose

members did not possess the same interest and suffer the same injury as she

did; plaintiff, hired as a professional engineer before the effective date of Title

VII, was permitted to represent a class whose members included the full range

of categories of employees at petitioner's Kearny Works as well as applicants

for employment, see Statement of Facts, p. 8 of this petition); United Airlines

v. Evans, 431 U.S. 553 (1977) (the District Judge's conclusion that claims are

actionable from July 2, 1965 when they are predicated on an EEOC charge

filed in 1972); Hazelwood School District v. United States, 433 U.S. 299 (1977)

and Teamsters v. United States, 431 U.S. 324 (1977) (the District Judge's

failure to give due consideration to the concept of relevant labor pools); (2) the

facts do not support the liability findings; indeed, the District Judge, in his

opinion, has made no findings at all with respect to two of the seven practices

found discriminatory, i.e., discharge and transfer into Kearny; and (3) the

District Judge's denial of petitioner's recusal motion after two days of trial

based upon an incident involving his law clerk, would, if reversed, overturn the

judgment in its entirety.

finding of liability with no attendant right of appeal) proceeds in

the same manner as the liability stage, /.e., without imposition of

extraordinary non-recoverable costs on any party; that properly

bifurcated trial is no different than if the trial had not been

bifurcated at all except that it has the advantage of economy of

effort and cost in the event that no liability is found. See

discussion beginning at p. 18, infra.

The coercive effect of the present posture, not only upon

petitioner but upon all Title VII class action defendants, is plain.

The unmistakable message is that Title VII class action

defendants must settle at an early stage of the litigation because

after a finding of liability, the cost of defending themselves is, as

a practical matter, prohibitive.

Because petitioner believes that its due process rights have

been violated and because of the manifest importance of the

issues raised herein to it and other litigants in Title VII class

actions, petitioner files this petition.

B. Statement of Facts

This is a Title VII, 42 U.S.C. §2000e e7 seq., class action

commenced by respondent Kyriaki Cleo Kyriazi (hereinafter

“plaintiff’) against petitioner alleging sex discrimination at its

Kearny Works manufacturing facility located in Kearny,

Hudson County, New Jersey. Plaintiff was hired by petitioner

before the effective date of Title VII and was employed at its

Kearny Works as a professional engineer and information

systems staff member until her termination on November 19,

1971.

Despite the fact that plaintiff had held no position with

petitioner outside the professional engineering and information

systems fields, the certified class, containing potentially 10,000

class members, was defined as “all women who are now or at

any time since June 9, 1971, have been employed by defendant

Western Electric Company, or who sought employment with

said company during the pendency of this suit, at the Kearny

Works organization .. .” Order dated July 16, 1975.

Plaintiff originally alleged a pattern of sex discrimination

with respect to four of the six major job groupings at Kearny,

contending that the class members were denied jobs as

supervisors, professionals, technicians and skilled craftsmen.

These four major job groupings contain approximately 100

different job classifications including, e.g., physician, reference

librarian, planning engineer, and photographer. Prior to trial,

plaintiff expanded her claim to include the two remaining major

job groupings at the Kearny Works, i.e., operative employees

(including service workers and laboratory technicians) and

clerical employees.

C. Procedural History Relevant to this Petition

The present posture is a direct result of the District Judge’s

abrogation of his order of bifurcation dated October 14, 1975

setting forth the ground rules upon which the trial of Stage |

took place.

The order of October 14, 1975 provides:

‘. “That the issues raised by the complaint

herein shall be tried in two separate and

independent stages, to wit, the issues of liability

of the defendant Western Electric to the class and

of class relief; and of the liability of all

defendants to the named plaintiff, Kyriaki Cleo

Kyriazi, and the relief to which she may be

entitled, shall be severed from the determination

of the amount of back pay or other specific relief

for individual members of the class;”

(App. D, p. 208a) (emphasis added). Petitioner, acting in

reliance upon the 1975 order of bifurcation to its irreparable

prejudice, prepared, marshalled and tried its Stage I case.

The first stage of the bifurcated trial which commenced in

July, 1977 consumed 49 days; thousands of documents were

introduced into evidence by both parties, and nearly 70 witnesses

were called.* All involved understood that all proofs as to

liability and relief save for individual awards, if any, to members

of the class were to be heard and determined at Stage I. The

question of class-wide relief was the subject of proposed findings

of fact and briefs by all parties submitted at the close of Stage I.

Notwithstanding the above ground rules, the District Judge,

in his opinion (App. B, p. 30a) and judgment and order (App. B,

p. 168a) dated October 30, 1978, did not award class relief, did

not enjoin petitioner from engaging in the practices (e.g.,

discriminatory layoff policy) he found unlawful, and did not

award relief to the individual plaintiff.

In his October 30, 1978, opinion (App. B, p. 30a) and

judgment and order (App. B, p. 168a) the District Judge held

that petitioner had discriminated against the class with respect to

seven employment practices: hiring, promotion, transfer into the

Kearny Works, layoff, discharge, participation in training

6. Prior to trial petitioner obtained a writ of mandamus from the Court of

Appeals for the Third Circuit directing the District Judge to permit petitioner

to discover the claims of individual class members for use in preparing its

Stage | defense. Western Electric Co., Inc. v. Stern, 544 F.2d 1196 (3d Cir.

1976), reh. den., 551 F.2d 1 (3d Cir. 1976). Despite the issuance of that writ,

the District Judge denied petitioner's subsequent motion to require specific

answers to its interrogatories concerning those claims. Petitioner therefore filed

a second petition for a writ of mandamus with the Court of Appeals in an

effort to obtain meaningful discovery necessary to its defenses on liability. The

petition was denied without opinion. As a result, petitioner was effectively

barred from uncovering even a single concrete claim by any class member in

advance of the Stage | proceedings.

programs, and opportunities for testing.’ He also found that

petitioner had discriminated against plaintiff Kyriazi on the

basis of sex."

The District Judge, recognizing his departure from the

terms of his bifurcation order, nevertheless denied petitioner’s

Rule 59(e) motion to amend his October 30, 1978 judgment and

order to specify relief to Qpth the class and the individual

plaintiff.’ Perhaps losing sight of his pre-trial denial of

petitioner's right to discover the claims of individual class

members, the District Judge explained his refusal to abide by his

bifurcation order as follows:

“I do not feel competent to decide what

injunctive relief that I will grant until I have a

better idea what the scope of this class is and just

what went on, woman by woman, in that plant.”

November 9, 1978 Tr. p. 50, 11.7-10.

7. While it is clear that Stage I] proceedings may flow only from Stage |

findings, the District Judge has recently undertaken to expand Stage Il

proceedings by ruling on July 16, 1979 that individual class members may

make claims at Stage II with respect to downgrading (movement to a lower

graded position) and recall from layoff although no claims and no findings

were made with respect to these issues at Stage I.

8. The District Judge subsequently vacated a portion of his decision not

pertinent to this petition by order dated July 17, 1979 (App. D, p. 216a).

9. At the hearing on petitioner's Rule 59(e) motion, counsel for petitioner

pointed out that petitioner was merely seeking compliance with the District

Judge's bifurcation order. Petitioner argued at that time that it was prejudiced

by the abrogation of the bifurcation order. November 9, 1978 Transcript.

The District Judge, in response to petitioner's subsequent request that he

certify his finding of liability pursuant to 28 U.S.C. §1292(b), asserted that he

had no power to certify that finding, adding that even were it within his power

to certify he would not do so.

To be sure, the District Judge has given his reasons for

changing the ground rules,' but these statements are not and

should not be sufficient to preclude the granting of the writ. One

stated reason pertained to additional proofs required by the

District Judge in regard to the class representative's individual

case. The additional proofs were received at trial on May |,

1979.'' They consumed 68 pages of transcript (most of which

pertains to discussion among the court and the attorneys) and

certain updating of documents previously introduced at trial in

1977. The second stated reason pertained to additional proofs

required by the District Judge in order to fashion injunctive

relief.'? The stated objective here is that from the trial of Stage II

cases the District Judge would be in a better position to evaluate

the extensiveness of the alleged discrimination. Even quite apart

from the fact that this posture (1) violates the ground rules upon

which Stage I was tried and (2) compels petitioner to finance

part of Stage I, the posture of Stage II trials is not calculated to

achieve the stated objective until virtually all of the Stage II

cases are tried. This is so because (1) petitioner has been found

liable with respect to several distinct kinds of discrimination and

(2) the Stage II trials are proceeding on the basis of first claim

10. The definitive statement of the District Judge's reasons was to be

forthcoming in his opinion on order denying petitioner's Rule 59(e) motion to

alter or amend the judgment. Petitioner's proposed order on the motion,

submitted on December 12, 1978, has not been entered by the District Judge

and no opinion has issued.

11. The District Judge has issued a draft opinion with respect to Kyriazi's

individual claims. He has indicated that a final opinion may issue as early as

September, 1979, as soon as plaintiff's claim for attorneys’ fees and costs with

respect to the individual claim can be resolved.

12. It is patently clear that a prohibitive injunction could have, and

should have, been issued upon the finding of liability at Stage I. The District

Judge never did, in fact, attempt to explain why such a prohibitive injunction

did not issue. See discussion beginning at p. 9, supra, as to the Stage | ground

rules which included the fashioning of injunctive relief.

aes 5 Fae nr tae

filed, first tried. There is no way that this procedure can

accomplish the stated objective in an expeditious manner.!3

Simply put, the “stated reasons” do not explain the pell mell

rush'4 to Stage II trials, with all of its attendant consequences,

prior to completing Stage I. On the other hand, the enormous

consequences of Stage II, including its potentiality for being a

wasted effort, do explain the need for immediate relief from this

Court.

Regardless of the District Judge’s stated purpose, he

acknowledged that the effect of his refusal to award any relief at

the end of Stage I in accordance with the terms of his

bifurcation order, when combined with his refusal to certify the

liability issues for appeal, was to deprive petitioner of its

contemplated right of appeal prior to embarking on the long and

costly proceedings envisioned at Stage II. November 9, 1978 Tr.

p. 43, 1.23 to p. 44, 1.20.

On February 21, 1979, to establish the parameters of the

Stage II litigation, the District Judge issued an opinion and

13. Arguably, a litigant may be required to go to Stage II at the same time

an appeal from Stage | is pending. That possibility is inappropriate here

because an appeal from Stage | is not possible now, is not possible in the

forseeable future because the District Judge has geared the completion of Stage

| to findings which can only be made after extensive Stage II trials, and can

only come after the expenditure of enormous sums of non-recoverable monies.

This is not to say that at no point in these proceedings will there be a place for

a special master. Here, however, Stage II is not an independent focus. Rather,

Stage Il has the effect of delaying Stage I. While that effect was not at first

apparent, it is now abundantly clear that petitioner may have no right of

appeal until Stage II is virtually completed.

14. The District Judge has made it plain that he would not delay any.

aspect of Stage II proceedings based upon any consideration of completing

Stage I.

order of reference and guidelines for special masters (App. C, p.

170a), amended by order dated March 6, 1979 (App. C, p.

206a).'5 Pursuant to that order of reference, a Stage II claimant,

to obtain relief with respect to each of the practices held to be

discriminatory, needs only demonstrate: (1) that she is a member

of the class; and (2) that, e.g., “she was not promoted to an

available position” or that “she was laid off” or “discharged.”

The burden then shifts to petitioner to prove that the claimant

should not have been promoted, laid off, discharged, etc. Nearly

two thousand claimants have filed claims in Stage II to date.

Hearings on those claims commenced in April 1979. It is

anticipated that resolution of those claims will take years.

Moreover, despite the fact that plaintiff had obtained no

relief at Stage I, and acknowledging the failure of plaintiff's

counsel to comply with the prerequisites for attorneys’ fees

awards spelled out by the Court of Appeals for the Third

Circuit, February 27, 1979 Tr. p. 43, 11.1-21; March 6, 1979 Tr.

p. 3, 1.24 to p. 4, 1.1, the District Judge nevertheless directed

petitioner to pay to plaintiff's counsel the sum of $280,834.49 in

“temporary interim” attorneys’ fees by order dated February 27,

1979 (App. D, p. 21 1a).'* Petitioner paid plaintiff's counsel the

full $280,834.49 by March 12, 1979.

15. By order dated March 2, 1979 (App. C, p. 205a), the District Judge

appointed three special masters to conduct Stage II proceedings.

Compensation for the masters, payable by petitioner on a quarterly basis, was

set at $125 per hour for one master and $115 per hour for the other two. The

District Judge added a fourth master at $100 per hour by order dated July 16,

1979 (App. D., p. 215a).

16. The District Judge also directed petitioner to pay counsel for plaintiff,

on a quarterly basis, her attorneys’ fees and costs incurred during Stage II.

Although he agreed to stay the award of quarterly fees, he refused to stay his

award of $280,834.49. Order dated March 9, 1979 (App. D, p. 213a). The

District Judge continued to deny a stay, despite plaintiff's counsel's inability to

obtain the bond he had originally required, March 6, 1979 Tr. p. 14, 1.23 to p.

15, 1.6, and fully aware of the resulting prejudice to petitioner, March 6, 1979

Tr. p. 16, 11.1-4. The avowed purpose of the fee award was to finance Stage II

of the litigation. February 27, 1979 Tr. p. 49, 11.12-21; March 6, 1979 Tr. p.

11, 11.3-11; April 18, 1979 Tr. p. 36, 11.15-16.

tad Kee sn earl nen as

On March 27, 1979, petitioner filed its notice of appeal

from that part of the District Judge’s order of February 27,

1979, awarding interim attorneys’ fees to plaintiff's counsel. On

that same date, petitioner filed with the Court of Appeals for the

Third Circuit its petition for writ of mandamus and prohibition

(App. A, p. 5a).!’

By order dated April 25, 1979, a two judge panel of the

Court of Appeals denied the petition for writ of mandamus and

prohibition (App. A, p. la). On May 9, 1979, petitioner filed its

petition for rehearing and for rehearing en banc of its petition

for writ of mandamus and prohibition with that court (App. A,

p. 19a).

By order dated May 18, 1979, the Court of Appeals denied

petitioner’s petition for rehearing and for rehearing en banc

(App. A, p. 3a). The panel that denied petitioner’s initial petition

had been comprised solely of Judges Aldisert and

Higginbotham. Chief Judge Seitz was the only other judge who

considered the petition for rehearing. The order denying the

latter petition contained the following note: “Chief Judge Seitz

would grant rehearing were it legally possible,” and an

additional note: “Judges Adams, Gibbons, Rosenn, Hunter,

Weis and Garth did not participate in the consideration of this

matter,” despite the customary disposition of: petitions for

rehearing in the Third Circuit by the full court. The docket entry

of the Third Circuit (App. A, p. 4a) indicates only that the six

judges who did not participate were, for some reason,

“disqualified”.

17. The appeal of the attorneys’ fee order was taken pursuant to the

collateral order doctrine under 28 U.S.C. §1291. The petition for writ filed the

same day also covered the attorneys’ fee order in anticipaticn of plaintiff's

argument, later set forth in her answering brief on the appeal, that the

attorneys’ fee order is not appealable. The appeal is presently pending (Case

No. 79-1564) and all briefs have been filed.

REASONS FOR GRANTING THE WRIT

The reasons for granting the writ may be summarized as

follows:

1. A vital issue of first impression is involved concerning

the administration of class actions under Title VII of the Civil

Rights Act of 1964 with a potentially enormous impact on all

like complex litigation. That issue is whether the federal courts

may, consistent with due process of law as guaranteed by the

Fifth Amendment to the United States Constitution, require

Title VII class action defendants to finance the litigation of

thousands of Stage II individual claims through the expenditure

of millions of dollars of extraordinary non-recoverable costs,

prior to the entry of a final or otherwise appealable order as to

the underlying rulings upon which Stage II is based.

‘2. The District Judge’s ex post facto abrogation of his

_ standing order governing the conduct of the Stage I trial

deprived petitioner of its due process right guaranteed by the

Fifth Amendment to the United States Constitution to make a

reasoned and informed judgment as to how to defend itself at

Stage I.

3. The District Judge’s order awarding temporary interim

attorneys’ fees in the amount of $280,834.49 prior to any award

of relief on the merits is in direct conflict with two decisions of

this Court. Bradley v. Richmond School Board, 416 U.S. 696

(1974); Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968).

4. The denial of the writ of mandamus and prohibition by

the Court of Appeals in this case has jeopardized the availability

of that writ, as approved by this Court, to remedy excesses of

judicial power and to ensure the proper administration of justice

in the federal courts.

aay ata cna

A. Petitioner's Property Has Been Taken Without Due Process

of Law.

The present posture is that petitioner is required to pay the

extraordinary non-recoverable costs of 2,000 Stage II trials

despite the fact that no final or otherwise appealable order has

issued as to the underlying rulings which gave rise to the

occasion for Stage Il. Petitioner contends that financing

litigation against itself is a taking of property without due

process of law.

In accordance with the District Judge’s 1975 bifurcation

order and his instructions at trial, it was understood that any

finding of liability at Stage | would be accompanied by class-

wide relief and relief to the named plaintiff. The express

language of that order reserved to Stage II only “the amount of

back pay or other specific relief” due individual class members.'*

Nevertheless, despite the finding that petitioner had engaged in

“pervasive” sex discrimination with respect to seven major

18. The implications of this severance were clear: If petitioner were found

at Stage I to have engaged in unlawful employment practices under Title VII,

entry of an order enjoining such practices would be mandatory at that point.

James v. Stockham Valves & Fittings Co., 559 F.2d 310 (Sth Cir. 1977), cert.

denied, 434 U.S. 1034 (1978); see Albemarle Paper Co. v. Moody, 442 U.S.

405, 418 (1975). That injunction would be appealable to the Court of Appeals

as of right under 28 U.S.C. §1292(a)(1). The long-established practice of the

Court of Appeals for the Third Circuit has been to review the underlying basis

for the injunction upon such appeal. E.g., W. L. Gore & Associates, Inc. v.

Carlisle Corp., 529 F.2d 614, 618 (3rd Cir. 1976); Kohn v. American Metal

Climax, Inc., 458 F.2d 255, 262 (3rd Cir. 1972), cert. denied, 409 U.S. 874

(1972); Hook v. Hook & Ackerman, Inc., 233 F.2d 180, 182 (3rd Cir. 1956),

cert. denied, 352 U.S. 960 (1957). This practice is supported by the rulings of

this Court. Deckert v. Independence Shares Corp., 311 U.S. 282, 287 (1940);

Highland Avenue & Belt Rr. Co. v. Columbian Equip. Co., 168 U.S. 627, 630

(1898); Smith v. Vulcan Iron Works, 165 U.S. 518, 525 (1897).

employment practices, the District Judge declined to award any

relief at Stage I. Instead, he elected immediately to commence

proceedings for the Stage II trials of claims advanced by a

potential class of 10,000 members before special masters to be

compensated by petitioner. The District Judge further required

that petitioner compensate plaintiffs counsel on a quarterly

basis for all services rendered and costs incurred in Stage II.'9

Petitioner is thus forced to shoulder the entire financial burden

of long and costly Stage II proceedings despite the absence of

any final or otherwise appealable order as to the underlying

rulings upon which Stage II is based.2° Moreover, petitioner has

been compelled to pay interim attorneys’ fees to plaintiff's

counsel for Stage I of these proceedings with the avowed

purpose of subsidizing the litigation against petitioner at Stage

II.

The posture of this case is predicated solely on the liability

finding made by the District Judge. While the practice of

bifurcating a trial as to liability and relief has been followed in

other cases, a liability finding in those cases has not been the

occasion for varying from acceptable notions of due process in

the procedure for the trial of the relief stage of the case. See

Gasoline Products Company, Inc. v. Champlin Refining Co.,

283 U.S. 494, 500 (1931).

The concept of trial bifurcation, separating the liability and

relief issues, represents no real departure at all from the

traditional trial of all issues together; trial of the facts relating to

'9. The District Judge did stay his award of attorneys’ fees and

disbursements to be paid plaintiff's counsel on a quarterly basis during Stage

Il (App. D, p. 213a). However, the threat of that order to finance, in effect,

plaintiff's entire conduct of Stage II remains outstanding, it being unclear what

event will trigger the lifting of the stay.

20. Petitioner estimated in the Court of Appeals that its payments to

special masters alone at Stage II could exceed three million dollars.

relief proceeds before the court as it would have had those facts

been tried together with liability. The one great practical

advantage of such bifurcation in a case in which proofs as to

relief are complex is the elimination of the need for such proofs

if liability is not found.

Thus, had the District Judge bifurcated this case as to

liability and relief prior to trial (rather than abrogating his

standing bifurcation order ex post facto to petitioner’s prejudice,

see discussion, infra) he could not, consistent with the accepted

concept of trial bifurcation, have done what he did in this case,

i.e., utilized his liability finding to shift to petitioner the

extraordinary non-recoverable costs which he has here imposed

on it. See In re Master Key Antitrust Litigation, 528 F.2d 5, 14-

15 (2d Cir. 1975). See generally, State of Alabama v. Blue Bird

Body Co., Inc., 573 F.2d 309, 311-312 (Sth Cir. 1978); Kisteneff

v. Tiernan, 514 F.2d 896, 897 (Ist Cir. 1975); In re Sugar

Industry Antitrust Litigation, 73 F.R.D. 322, 351 (E.D. Pa.

1976); LoCicero v. Humble Oil & Refining Co., 52 F.R.D. 28,

29-30 (E.D. La. 1971).

B. Petitioner Has Been Denied Its Due Process Right to a Fair

Trial.

Almost two years prior to the trial of this case, the District

Judge entered a bifurcation order establishing the ground rules

for trial. It is unassailable that petitioner had the right to rely

upon those ground rules in determining its entire approach to

Stage I. The ex post facto abrogation of the bifurcation order

upon which petitioner relied to its utlimate prejudice is arbitrary

and capricious and is otherwise in violation of petitioner’s due

process right to a fair trial.

The abrogation of the bifurcation order after the Stage I

trial irreparably prejudiced petitioner’s ability to make a

reasoned and informed judgment as to how to defend itself at

Stage I.

For example, despite the District Judge’s failure to permit

petitioner's discovery of individual class members’ claims,

petitioner nevertheless contemplated rebutting a_ sufficient

number of those potential claims at Stage I to avoid any finding

of discrimination as to significant segments of the putative class.

Based on all considerations, however, including the particular

bifurcated nature of the trial with the contemplated right of

appeal, and its assessment of the strength of plaintiffs Stage |

case, petitioner determined not to undertake the enormous cost

of rebutting even a representative sample of the hundreds of

thousands of hypothetical individual claims at Stage I.

Had petitioner known prior to the presentation of its

defense that the District Judge would abrogate his bifurcation

order, it would have been prudent for petitioner to rebut

individual claims at Stage I. The advantages of such an

approach are obvious. First, the burden of proof with respect to

individual claims was more favorable to petitioner at Stage |

than at Stage II. Teamsters v. United States, 431 U.S. 324

(1977). Indeed, the District Judge made full use of this disparity,

requiring almost no showing from individual class members at

Stage II in order to state a prima facie claim (App. C, p. 170a).

Furthermore, the rebuttal of individual claims at Stage I would

have bolstered petitioner’s defense to liability itself, while at

Stage II such rebuttal has no effect on liability already

established.

Moreover, the meaningful appeal contemplated under the

bifurcation order, based on the issuance of injunctive relief in

the event of a liability finding, has been foreclosed by the

abrogation of that order. The District Judge has not, more than

nine months after liability was found in this case, even issued a

prohibitive injunction to bar those continuing practices which he

found to violate Title VII. For example, although he determined

that petitioner’s layoff procedure as set forth in its current

collective bargaining agreement with the IBEW violated Title

VII, the District Judge has not yet enjoined the use of that

procedure. He has never offered any explanation as to why he

has not by injunction prohibited this or any other practices he

found to be discriminatory.

Far beyond merely breaching the terms of his bifurcation

order, the District Judge’s failure to enjoin practices he expressly

found to violate Title VII flies directly in the face of established

principles of this and other federal courts under that statute.

Absent clearly unusual circumstances (not asserted in this

case) “a grant of injunctive relief is mandatory”. James v.

Stockham Valves & Fittings Co., 559 F.2d 310, 354 (Sth Cir.

1977), cert. denied, 434 U.S. 1034 (1978). See also, Neely v. City

of Grenada, 438 F. Supp. 390 (N.D. Miss. 1977); Freeman v.

Motor Convoy, Inc., 409 F. Supp. 1100 (N.D. Ga. 1976); Miller

v. Continental Can Co., 13 FEP Cases 1585 (S.D. Ga. 1976);

Sledge v. J. P. Stevens & Co., 16 FEP Cases 1652 (E.D. N.C.

1976), affd in part, rev'd in part, remanded in part, 18 FEP

Cases 261 (4th Cir. 1978); Hill v. Western Electric Co., Inc., 12

FEP Cases 1175 (E.D. Va. 1976), 13 FEP Cases 1157 (E.D. Va.

1976), affd in part, rev'd in part, 596 F.2d 99 (4th Cir. 1979);

Lewis v. Phillip Morris, Inc., 419 F. Supp. 345 (E.D. Va. 1976),

vac'd on other grounds, 577 F.2d 1135 (4th Cir. 1978); Senter v.

General Motors Corp., 383 F. Supp. 222 (S.D. Ohio 1974), aff,

532 F.2d S511 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976);

Robinson v. P. Lorillard Co., 319 F. Supp. 835 (M.D. N.C.

1970), affd in part, rev'd in part, 444 F.2d 791 (4th Cir. 1971),

cert. dismissed, 404 U.S. 1006 (1971).

Indeed, this Court has indicated its endorsement of

mandatory injunctive relief in appropriate circumstances in

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975),

holding that where discrimination is found under Title VII:

“|. the [district] court has not merely the power

but the duty to render a decree which will so far

as possible eliminate the discriminatory effects of

the past as well as bar like discrimination in the

future.”

(emphasis added).

Here, the District Judge ignored without explanation his

clear statutory duty, as well as his obligation under his 1975

bifurcation order, to remedy what he found to be clear

violations of Title VII.

Petitioner submits that the present posture cannot be

tolerated consistent with the requirements of due process of law.

The financing of litigation against itself is a taking of property

without due process of law. Conditioning the availability of

appeal upon the willingness of a defendant to expend millions of

dollars of extraordinary non-recoverable costs over a period of

several years does not comport with the notion of fundamental

fairness inherent in the concept of due process. Nor does the ex

post facto changing of the ground rules upon which petitioner

fully relied to its prejudice comport with the due process right to

a fair trial. The posture which presently exists is plainly not

correctable on appeal.

The District Judge’s Award of Attorneys’ Fees Conflicts

with the Decisions of this Court.

In February, 1979, the District Judge ordered petitioner to

pay to plaintiffs counsel $280,834.49 in “temporary interim”

attorneys’ fees for Stage I (App. D, p. 21 1a). He declined to stay

that award even when plaintiffs counsel admitted her inability

to secure a bond to ensure the return of those fees in the event of

NR a Nt tt SS

reversal on appeal (App. D, p. 213a).?! Rather, the District

Judge made it clear that it was expected that those funds would

be expended to partially finance Stage II.

Congress has restricted awards of attorneys’ fees under Title

VII to “the prevailing party.” 42 U.S.C. §2000e-5(k). In 1974 this

Court ensured the proper interpretation of that rule by

conditioning such an award, and thus the definition of

“prevailing party”, on that party’s having obtained broad-based

relief. Bradley v. Richmond School Board, 416 U.S. 696, 723-

724 (1974).22 In its opinion in Bradley this Court relied on its

21. Proceedings on the remainder of plaintiffs counsel’s Stage I fee

request (more than an additional $700,000) are currently underway.

22. In Bradley, this Court considered the propriety of an award of

attorneys’ fees under §718 of the Emergency School Aid Act, 20 U.S.C. §1617

(which, like Title VII, permitted such an award to the prevailing party) in an

action to compel school desegregation. The remedial proceedings in question

commenced on March 10, 1970. Defendant admitted culpability, and proposed

desegregation plans were submitted. Various plans submitted by both parties

were held inadequate on June 26, 1970, August 17, 1970 and January 29, 1971.

Defendant's third plan was finally adopted on April 5, 1971 and ordered into

effect by the district court, which awarded plaintiff attorneys’ fees for services

from March 10, 1970 to January 29, 1971.

Mr. Justice Blackmun, writing for the Court, agreed with the dissenting

judge in the Court of Appeals that the fee award:

“... did not precisely fit §718’s requirement that the

beneficiary of the fee order be ‘the prevailing party’. In

January 1971 the petitioners had not yet ‘prevailed’ and

realistically did not do so until April 5. Consequently any

fee award was not appropriately made until April 5.”

416 U.S. at 723-724 (emphasis added). Judge Winter, who authored the

dissent referred to, had first observed that §718 was “substantially similar” to

42 U.S.C. §2000e-5(k), and then stated:

“Manifestly the entry of that order [on January 21, 1971]

cannot support an award of counsel fees for services to the

(Cont'd)

decision six years earlier in Newman v. Piggie Park Enterprises,

390 U.S. 400 (1968), where it had stated:

“It follows that one who succeeds in

obtaining an injunction under [Title Il of the

Civil Rights Act of 1964] should ordinarily

recover an attorney's fee unless special

circumstances would render such an award

unjust.”

390 U.S. at 402 (emphasis added). Far from obtaining broad-

based relief prior to her award of attorneys’ fees in this case,

plaintiff had obtained no relief whatsoever. As a result, that

award directly conflicts with this Court’s decisions in Bradley

and Newman.

Petitioner submits that the immediate attention of this

Court is required both to reaffirm its interpretation in Bradley

and Newman of the availability of attorneys’ fees to a

“prevailing party”, an issue of the utmost importance under

numerous federal statutes; and, under its general supervisory

powers, to proscribe the award of attorneys’ fees in the absence

of a final or otherwise appealable order upon which the fees are

predicated because such an award constitutes the taking of

property without due process of law.

The Court of Appeals’ Denial of Mandamus Conflicts with

the Decisions of this Court.

Petitioner petitioned the Court of Appeals for a writ of

mandamus pursuant to 28 U.S.C. §165I(a), seeking to compel

(Cont'd)

date of its entry because the order did not grant relief to the

parties seeking to recover fees —- a condition precedent to

the award of fees as set forth in §718.”

472 F.2d at 337 (emphasis added).

the District Judge to comply with his order of bifurcation and to

withdraw the unauthorized award of attorneys’ fees to plaintiff's

counsel. For all the reasons set forth above, petitioner submits

that the denial of that petition was error.?3

The Court of Appeals’ failure to issue a writ in this case

contravenes the principles for granting a writ of mandamus

established by this Court in that the circumstances of this case

present cogent reasons for the exercise of the power of

supervision to ensure the proper administration of justice in the

federal courts and to remedy excesses of judicial power.

The present posture represents a denial of petitioner’s

fundamental rights as a litigant. This Court has expressly

approved the use of mandamus to correct the denial of such

rights. Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959).24

Moreover, it has repeatedly acknowledged the traditional use of

mandamus to confine an inferior court to a lawful exercise of its

prescribed jurisdiction or to compel it to exercise its authority

when it is its duty to do so, Thermtron Products, Inc. v.

23. It is, of course, possible that the Court of Appeals would have reheard

petitioner's petition en banc had not six of its nine members disquaiilied

themselves from participation (App. A, p. 4a).

24. In that case the district court had severed the trial pursuant to Fed. R.

Civ. Proc. 42(b), ordering plaintiff's equitable claims to be tried to the court

before defendant's legal counterclaim and cross-claim could be tried to a jury.

This Court reversed the Court of Appeals’ denial of mandamus, holding

instead that the writ was appropriate to preserve defendant's fundamental

rights:

“.. . the use of discretion by the trial court under Rule 42(b)

to deprive Beacon of a full jury trial on its counterclaim and

cross-claim, as well as on Fox's plea for declaratory relief,

cannot be justified.”

359 U.S. at 508. The decision in Beacon Theatres, Inc. was recently reaffirmed

in Will v. Calvert Fire Insurance Co., 437 U.S. 655, 665, n. 7 (1978).

Hermansdorfer, 423 U.S. 336, 352 (1976); Roche v. Evaporated

Milk Ass'n., 319 U.S. 21, 26 (1943), particularly where the writ is

employed to correct “unauthorized action of the district court

obstructing the appeal.” Will v. Calvert Fire Insurance Co.,

supra, 437 U.S. at 666-667; Roche v. Evaporated Milk Ass’n.,

supra, 319 U.S. at 25. Indeed, this Court only months ago noted

that mandamus may be invoked to protect not only a party’s

right to appeal, but his right to meaningful and timely appellate

review. Connor v. Coleman, ._— U.S. ——, 59 L. Ed. 2d 619,

622 (1979).25

Mandamus is appropriate here under each of the principles

set forth above because the District Judge has so far departed

from the accepted and usual course of judicial proceedings in

this case. The failure of the Court of Appeals to grant the writ,

therefore, improperly sustained the District Judge’s deprivation

of petitioner’s fundamental right to a fair trial and a timely and

meaningful appeal, as well as its right to property. In addition, it

sustained the District Judge’s award of temporary interim

attorneys’ fees, even though that award was beyond the scope of

the lawful exercise of his prescribed powers.

CONCLUSION

For all the foregoing reasons, petitioner Western Electric

Company, Incorporated, prays that a writ of certiorari to the

Court of Appeals for the Third Circuit be granted, enabling this

court to review the Court of Appeals’ order denying petitioner’s

petition for writ of mandamus and prohibition filed with that

court which sought an order (1) directing the Honorable Herbert

J. Stern, United States District Judge, United States District

Court for the District of New Jersey, to issue his opinion and

order with respect to relief to be accorded the individual plaintiff

and plaintiff class in accordance with his order of bifurcation

filed October 14, 1975, (2) prohibiting him from proceeding with

the second phase of this action as described in the

aforementioned order until he has decided the first phase of the

action under that order, and (3) directing him to vacate his order

of February 27, 1979, requiring the payment of attorneys’ fees to

plaintiffs attorney and require him to enter an order directing

that said payments be returned to petitioner or, in the

alternative, deposited with the clerk of the district court.

In the alternative, petitioner prays that a writ of certiorari

be issued under 28 U.S.C. §165I(a) to review directly the

question whether the District Judge should be directed to act,

and be prohibited from acting, in accordance with the foregoing.

Respectfully submitted,

SEBASTIAN J. FORTUNATO

EDWARD P. LYNCH

Of Counsel:

PITNEY, HARDIN & KIPP

GEORGE V. COOK Attorneys for Petitioner

ROBERT A. LEVITT Western Electric Company

25. In that case this Court granted leave to file a petition for mandamus LAWRENCE M. JOSEPH Incorporated

and instructed the district court to file its legislative reapportionment plan Western Electric Company 163 Madison Avenue

sufficiently before June 7, 1979, the filing deadline for candidates for the 1979 Incorporated P.O. Box 2008-R

election, to ensure an effective right of review of that plan in this Court prior 222 Broadway Morristown, New Jersey 07960

to that deadline. New York, New York 10007

Dated: August 16, 1979

Appendices

eS cbs TET TS

Kiki, pin resibeed aki tential

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

DATED APRIL 25, 1979

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

79-1380

WESTERN ELECTRIC CQMPANY, INCORPORATED,

Petitioner

vs.

HONORABLE HERBERT J. STERN, UNITED STATES

DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY,

Nominal Respondent

KYRIAKI CLEO KYRIAZI,

Respondent

Present: ALDISERT and HIGGINBOTHAM, Circuit Judges.

ORDER

After consideration of the petition and the answer, it is

ORDERED that the prayer of the petition be and the same

is hereby denied;

Appendix A — Order of the United States Court of Appeals for

the Third Circuit Dated April 25, 1979

The order previously entered on April 3, 1979, staying the

award of attorney’s fees pending the consideration of the

petition for mandamus is vacated.

BY THE COURT,

s/ Aldisert

Circuit Judge

DATED: April 25, 1979

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

DATED MAY 18, 1979

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-1380

[SAME TITLE]

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge,* and ALDISERT and

HIGGINBOTHAM, Circuit Judges.**

The peition for rehearing filed by

Petitioner

in the above entitled case having been submitted to the judges

who participated in the decision of this court and to all the other

available circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the court

in banc, the petition for rehearing is denied.

By the Court,

s/ Aldisert

Judge

Dated: May 18, 1979

* Chiet Judge Seitz would grant rehearing were it legally possible.

** Judges Adams, Gibbons, Rosenn, Hunter, Weis and Garth did not

participate in the consideration of this matter.

APPENDIX A — EXCERPT FROM THE GENERAL

DOCKET OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT :

DAI-L3 VC

UNITED STATES COURT OF APPEALS

GENERAL DOCKET = Ki’e:@en CGT bg. +

FOR THE ee “”

THIRD CIRCUIT J 3

KEREALXERGN i CABE YO. 79-1380

PETITION FOR WRIT OF MANDAMUS AND PROHIBITION | 4

TITLE OF CasB ATTORNEYS FOR APPELLANT

8. Joseph Fortunato

Edward P. Lynch

Pitney, Hardin & Kipp

WESTERN ELECTRIC COMPANY, INCORPORATED, Ys P

Petitioner

. we.

HONORABLE HERBERT J. STERN, UNITED STATES

DISTRICT JUDGE FOR THE DISTRICT OF

WEW JERSEY,

Nominal Respondent

KYRIAKI CLEO KYRIAZI,

Respondent ATTORNEYS FOR APPELLEE

° Adare. Marth, Aisle Judith P. Vladeck [Kyriaki Cleo Kyriazi}

a. a 0 F Vladeck, Elias, Vladeck & Engelhard

Uhiw

Pyar, Ver UAL ,

cispnalbuca!

No, arow:

dupes sriow:

Dare of Jupowent:

Novice ov arreat rueo; Petition filed March 27, 1979

DATE ACCOUNT OF APPELLANT Received Disbursed REMARKS

Se oe or oe

3979

Mar. 27 Clerk's Fees 50/00

“4S tt me kk “7, ota 4 0

APPENDIX A — PETITION FOR WRIT OF MANDAMUS

AND PROHIBITION (Exhibits Not Included)

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No.

WESTERN ELECTRIC COMPANY, INCORPORATED,

Defendant-Petitioner,

-vs-

HONORABLE HERBERT J. STERN, UNITED STATES

DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY,

Nominal Respondent,

KYRIAKI CLEO KYRIAZI,

Plaintiff-Respondent.

Western Electric Company, Incorporated, through its

undersigned counsel, respectfully petitions this Court to issue a

writ of mandamus and prohibition (1) directing the Honorable

Herbert J. Stern, United States District Judge, United States

District Court for the District of New Jersey to issue his opinion

and order with respect to relief to be accorded the individual

plaintiff and plaintiff class in accordance with his Order of

bifurcation filed October 14, 1975, (2) prohibiting him from

proceeding with the second phase of this action as described in

the aforementioned Order until he has decided the first phase of

the action under that Order, and (3) directing him to vacate his

Order of February 27, 1979 requiring the payment of attorney's

Appendix A —- Petition for Writ of Mandamus and Prohibition

fees to plaintiffs attorney and require him to enter an order

directing that said payments be returned to Western or, in the

alternative, deposited with the Clerk of the District Court. The

Orders involved on this petition are:

(1) Order dated October 14, 1975 (annexed hereto as

Exhibit A) which provided for the bifurcation of this action as

follows: “That the issues raised by the complaint herein shall be

tried in two separate and independent stages, to wit, the issues of

liability of the defendant Western Electric to the class and of

class relief, and of the liability of all defendants to the named

plaintiff, Kyriaki Cleo Kryiazi, and the relief to which she may

be entitled, shall be severed from the determination of the

amount of back pay or other specific relief for individual

members of the class;”

(2) Order dated October 30, 1978 (annexed hereto as

Exhibit B) in which the District Judge reflected his rulings after

trial, but only as to liability of defendants to the individual

plaintiff and plaintiff class. It should be noted that with respect

to the October 30, 1978 Order, defendants on November 9, 1978,

filed a motion under Fed. R. Civ. P. 59(e) to modify and amend

the judgment. On November 9, 1978 the District Judge denied

that portion of the motion relevant to this Petition. To date,

despite the agreement of all counsel to the form of a proposed

order, no order has yet been entered by the District Judge. The

proposed Order is annexed hereto as Exhibit C;

(3) Order dated February 21, 1979 captioned “Order of

Reference and Guidelines for Special Masters” (copy annexed

hereto as Exhibit D) which establishes the procedures and

conditions for the second phase of this bifurcated action.

Appendix A — Petition for Writ of Mandamus and Prohibition

(4) Order dated February 27, 1979 requiring the payment

by Western to plaintiffs counsel of the sum of $280,834.49 in

“temporary interim” attorney's fees and costs. (Copy annexed

hereto as Exhibit E).

FACTS:

This is a Title VII, 42 U.S.C. §2000e ef seq., action

commenced by plaintiff-respondent, Kyriaki Cleo Kyriazi

(“Kyriazi”) against defendant-petitioner Western Electric

Company, Incorporated (“Western”) alleging an “across the

board” pattern and practice of sex discrimination in employment

at Western’s Kearny Works located at Kearny, Hudson County,

New Jersey*.

The District Judge certified this action as a class action

under Fed. R. Civ. P. 23(b)(2) by Order dated July 16, 1975 and

described the class therein as “. . . all females who are now or at

any time since June 9, 1971 have been employed by defendant

Western Electric Company, or who sought employment with

said Company during the pendency of this suit, at the Kearny

works organization; .. .”

By Order dated October 14, 1975 the District Judge,

pursuant to plaintiff's request, bifurcated this action as follows:

* There are five individual defendants, also represented by counsel for

Western, who are defendants in plaintiff's individual case only and not in the

class action.

Appendix A — Petition for Writ of Mandamus and Prohibition

“ the issues raised by the complaint herein shall be tried in

two separate and independent stages, to wit, the issues of

liability of the defendant Western Electric to the class and of

class relief, and of the liability of all defendants to the named

plaintiff, Kyriaki Cleo Kyriazi,and the relief to which she may

be entitled, shall be severed from the determination of the

amount of back pay or cther specific relief for individual

members of the class;” (Emphasis added).

Trial of Stage | commenced on July 7, 1977 and concluded

on December 1, 1977, consuming 49 trial days. Nearly 70

witnesses were called. By the end of February 1978 the parties

filed voluminous proposed findings of fact and conclusions of

law covering all issues including relief. The District Judge issued

his Opinion and Judgment and Order on October 30, 1978. The

Opinion is reported at _. F.Supp. ——, 18 FEP Cases 924

(D.N.J. 1978). The District Judge concluded in his Opinien that

Western had discriminated against the class with respect to seven

broad employment practices: (1) hiring (both as to rejecting

applicants for hire altogether, and as to hiring them at low

levels), (2) promotion, (3) transfer into the Kearny Works, (4)

layoff, (5) discharge, (6) participation in training programs, and

(7) opportunities for testing.

On the first page of his Opinion with respect to the class

action the District Judge, despite his previously entered and

standing Order of bifurcation, stated:

“The issue of liability having been severed from

that of damages, the case was tried on the

liability issue alone...”

Appendix A — Petition for Writ of Mandamus and Prohibition

With respect to the individual plaintiffs claims the District

Judge found that because of her sex she was paid too little, rated

too low in her performance, and denied promotion. He further

found that she was terminated from employment because she

had previously filed a sex discrimination complaint with the

New Jersey Division on Civil Rights. Nevertheless he stated:

“However, the Court will not now attempt to fix

the performance rating and rank or salary which

Kyriazi should have received while at Western.

For although the case was bifurcated only as to

the class, the Court has determined to defer the

question of the appropriate amount of damages

to the second stage of trial. Thus, these

determinations will abide the second stage of

trial,

Among the type of relief which will be awarded

to Kyriazi at the second stage are reinstatement,

back pay and retroactive benefits. (Emphasis

added).

Thus, the District Judge did not comply with his own

bifurcation Order.

Western moved to amend the Order and Judgment

pursuant to Rule 59(e) seeking to require the District Judge to

comply with his own bifurcation Order, i.e., asking that he

proceed to determine relief to be awarded the class and plaintiff

Kyriazi before proceeding with Stage II of the case dealing with

individual class members’ claims.

10a

Appendix A — Petition for Writ of Mandamus and Prohibition

At a status conference called by the District Judge on

November 9, 1978, he denied Western’s motion to amend the

Order and Judgment to proceed in accordance with his

bifurcation Order. He stated that he needed further trial as to

Kyriazi’s claims, and could not decide classwide relief until the

Stage Il trial of individual class members claims had taken

place. He also denied Western's alternative request to certify the

case for appeal to this Court under 28 U.S.C. $1292, stating that

the case was not properly certifiable. The District Judge further

stated that even if he could certify the matter for appeal he

would not do so. While he recognized that Stage II proceedings

would be extremely time-consuming and costly to Western, and

that in the event that his liability findings are eventually reversed

on appeal, Stage II will have been in vain, he nevertheless

expressed concern that an appeal would delay relief to class

members, stating “I can't be blind to the fact that some of these

women may die.”

Vil

The District Judge has appointed three Special Masters to

preside over the trial of individual class members’ claims. These

claims are to be divided among the three Special Masters with

discovery and trials proceeding in three “forums”

simultaneously. The District Judge has set the rate of the Special

Masters compensation as follows:

$125 per hour

$115 per hour

Special Master Bernard Hellring, Esq.

Special Master Thomas B. Campion, Esq.

Special Master Bruce I. Goldstein, Esq.

and directed that Western pay for their cost. It is estimated that

there are nearly 10,000 class members. More than 1100 have so

far submitted claims to the Clerk of the District Court.

Appendix A — Petition for Writ of Mandamus and Prohibition

Vill

On January 22, 1979 plaintiffs counsel submitted an

affidavit in support of her claim for attorney's fees for Stage | of

the case seeking $442,105.00 in fees and $119,563.98 in costs,

and requesting a “doubling” of the fee claim. Western opposed

the application.

The District Judge (1) required Western's counsel to

disclose to him what he had billed Western for services and the

number of hours his firm spent on the case, (2) on February 27,

1979 awarded plaintiffs counsel $280,834.49 in “temporary

interim” fees (representing one-half of her basic claim), stating

that he would take steps to protect Western’s interests by

requiring plaintiffs counsel to obtain a surety bond, and (3)

when on March 6, 1979, he found that plaintiffs counsel's firm

could not be bonded, nevertheless directed payment by Western.

Although the District Judge stated at a status conference

held on January 22, 1979 that he would enter an order on

Western’s Rule 59(e) motion, he has not done so. He has,

however, continued to press forward with Stage II proceedings.

The parties were directed to, and did, meet with the three

Special Masters on March 6, 1979 to determine the course of

proceedings for Stage II. Stage Il Depositions and Trials were

stayed by the Special Masters pursuant to the joint request of

the parties due to ongoing settlement discussions. A further joint

request for a stay was denied. Thirty Stage II cases are now

scheduled for trial beginning April 6, 1979. Commencement of

those trials will prejudice Western's position in this matter.

12a

Appendix A — Petition for Writ of Mandamus and Prohibition

ISSUES PRESENTED HEREIN:

1. Does the District Judge have the power to abrogate his

Order of bifurcation of the trial in this case after the trial of the

first stage of the case where his doing so results in prejudice to

defendant Western Electric Company, Incorporated?

2. Does the District Judge have the power, by abrogating

his Order of bifurcation after trial, to block appellate review by

this Court which was clearly contemplated by that Order?

3. Does the proper administration of justice require that the

District Judge comply with his own Order bifurcating this action

which he has abrogated after trial of the case, and that he be

prohibited from proceeding with the second stage of this action

until he has completed the first stage?

4. Does the District Judge have the power to award interim

attorney’s fees and costs to plaintiff's counsel where plaintiff is

not a “prevailing party” at this point in the litigation and where

the District Judge has acknowledged that the fee application is

not in conformity with the standards developed by this Court?

RELIEF SOUGHT BY THIS PETITION:

Western asks this Court to:

1. Direct the District Judge to comply with his own

bifurcation order, to wit: to grant classwide relief and relief to

Kyriazi based on the record at Stage I; and

2. Prohibit the District Judge from conducting (whether

through special Masters or otherwise) any proceedings in

connection with Stage II of this action as set forth in the

13a

Appendix A — Petition for Writ of Mandamus and Prohibition

bifurcation Order, to wit: the processing of the claims of

individual class members until such time as Stage I of the action

has been completed.

3. Direct the District Judge to vacate his Order of February

27, 1979 requiring the payment of attorney's fees to plaintiff's

counsel and require him to enter an order directing that said

payments be returned to Western or, in the alternative,

deposited with the Clerk of the District Court, and prohibit him

from conducting further proceedings in connection with ©

plaintiffs counsel’s application for attorneys’ fees and costs.

THE WRIT SHOULD BE ISSUED FOR THE FOLLOWING

REASONS:

|. The procedural posture of this case which necessitates

the Petition for Writ of Mandamus and Prohibition is the failure

of the District Judge to comply with his own Order bifurcating

trial.

As of October 14, 1975 (nearly two years prior to the

commencement of trial) and throughout trial and post trial

proceedings, Western knew that it would be able to appeal any

adverse ruling at the end of Stage I. Had Western known

sufficiently in advance of trial of any abrogation of the

bifurcation Order, it may well have proceeded differently prior

to trial or tried its case differently. Had Western known before

trial, for example, that the case was bifurcated differently, i.e.,

liability only at Stage I and all relief at Stage II, it could have

anticipated that it might have no right of appeal, in the event

liability were found, until it had tried the Stage II individual

claims. Under these circumstances Western may well have

elected to defend by rebutting individual claims at Stage I, as

this Court had earlier noted it could, Western Electric Co., Inc.,

14a

Appendix A — Petition for Writ of Mandamus and Prohibition

v. Stern, 544 F.2d 1196 (3rd Cir. 1976), reh. den., 551 F.2d |

(3rd Cir. 1976). There would have been clear advantages to

doing so: (1) the burden of proof with respect to individual

claims was more favorable to Western at Stage I rather than at

Stage II, (2) the rebuttal of individual claims at Stage I would

have bolstered Western’s defense to liability itself, while at Stage

II such rebuttal will have no effect on the liability already

established, and (3) the claims would have been tried before the

Court instead of Special Masters with substantial savings in cost

to Western.

The District Judge’s ex post facto abrogation of his

bifurcation Order, which was to govern the conduct of the trial,

has irreparably prejudiced Western’s right to make an informed

judgment as to how to defend itself at Stage I of this case. The

District Judge has no power to prejudice a party litigant as he

has done here.

2. The courts have invariably issued prohibitive injunctions

upon findings of liability in Title VII class actions, i.e., they have

enjoined the employment practices found to be discriminatory.

The issuance of such relief was clearly contemplated by the

District Judge’s bifurcation Order at Stage I of this case. He has,

however, awarded no relief, and instead has proceeded with

Stage II.

It is clear that the entry of injunctive relief would be

appealable as of right to this Court, and that this Court could on

such appeal in its discretion review the underlying liability

findings. It is also clear that it is unnecessary to try Stage II in

order to issue an injunction, particularly a prohibitive

injunction. For example, the District Judge found that the layoff

procedure contained in the currently effective collective

bargaining agreement between Western and Local 1470, IBEW

15a

Appendix A — Petition for Writ of Mandamus and Prohibition

violated Title VII. Certainly no further facts are needed to enjoin

that procedure. The same observation can be made with respect

to the other six employment practices found to be

discriminatory.

The failure of the District Judge to enter a prohibitive

injunction against Western barring it from continuing those

employment practices is (1) inconsistent with his expressed

concern for the class members, and (2) in no way barred by a

“need” to adduce further facts. There is no question that the

failure to enter such relief is not predicated on reasonable

grounds and has acted only to obstruct appeal. Such action is

clearly correctable by issuance of a writ of mandamus.

3. Western is now faced with an enormously time

consuming and expensive proceeding at Stage II without having

the opportunity for review by this Court of the Stage I findings

which was clearly contemplated by the bifurcation Order. As

noted, there are nearly 10,000 class members. At present, of

course, it cannot be determined how many will come forward to

assert claims; as of now, 1100 have. It is estimated that if the

three Special Masters, sitting separately, spend full time on this

case, they can dispose of 600 claims per year’ assuming

(optimistically), that each can fully hear two trials per day and

handle all attendant matters (e.g., review of the record, draft

recommendations for disposition etc. in 1'4 additional days). It

is further estimated that, at the rates of compensation set by the

District Judge, it will cost Western more than one million

dollars in Special Masters’ fees for each 1,000 claimants. Even if

Western eventually prevails on appeal of the liability issues, it

will have expended millions of dollars in Special Masters’ fees

which are, as a practical matter, not recoverable.*

* The District Judge has, by Order dated March 2, 1979, directed Western

to pay the three Special Masters’ fees on a quarterly basis.

16a

Appendix A — Petition for Writ of Mandamus and Prohibition:

The liability finding at Stage I of this case raises numerous

and substantial issues. The District Judge denied Western’s

motion to disqualify him based on the appearance of

impartiality created by an out-of-court conversation of his law

clerk just two days after the start of trial. Kyriazi, Western

contends, lacks standing to maintain this action, and is not a

proper class representative under Fed.R.Civ.P. 23. The District

Judge found liability back to the effective date of Title VII, July

2, 1965, although the EEOC charge in this case was not filed

until 1972, and although statistical evidence introduced at trial

went back only to 1967. He has ignored the concept of relevant

labor pools in his opinion and has treated the class as a single

mass in the face of Western’s voluminous evidence “breaking

down” the large workforce here involved into 600 different job

classifications ranging from file clerk to physician, drill press

operator to professional engineer. Of the seven employment

practices found discriminatory, the District Judge made virtually

no findings with respect to three: discharge, transfers into

Kearny, and testing. He has found liability with respect to

layoff, for example, in the face of uncontradicted testimony and

documentation demonstrating that a bona fide seniority system

was employed by Western.

The abrogation by the District Judge of his bifurcation

Order has had the effect of shielding the liability findings in this

case from review, while placing Western in the position of

expending millions of dollars in nonrecoverable extraordinary

costs at Stage Il even if Western eventually prevails in this case.

4. Western has, pursuant to the District Judge’s Order for

payment of fees (which he refused to stay), already paid to

plaintiff's counsel the sum of $280,834.49.* Attorney’s fees and

* The District Judge has stayed (until further order) his direction that

Western pay Stage II attorney's fees and costs to plaintiff's counsel on a

quarterly basis. He has stated his intention, however, to proceed with

determining the full amount of Stage I fees to which plaintiff's counsel is

entitled, and has not stayed payment of those amounts.

19a

APPENDIX A — PETITION FOR REHEARING AND FOR

REHEARING IN BANC (Exhibits Not Inciuded)

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-1380

WESTERN ELECTRIC COMPANY, INCORPORATED,

Defendant-Petitioner,

-vs-

HONORABLE HERBERT J. STERN, UNITED STATES

DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY,

Nominal Respondent,

KRYIAKI CLEO KYRIAZI,

Plaintiff-Respondent.

Western Electric Company, Incorporated, through its

undersigned counsel, respectfully Petitions this Court for a

rehearing and for rehearing in banc of its Petition for Writ of

Mandamus and Prohibition which was denied by Order of this

Court (Judges Aldisert and Higginbotham present) on April 25,

1979. That Petition had asked this Court to issue a Writ of

Mandamus and Prohibition (1) directing the Honorable Herbert

J. Stern, United States District Judge, United States District

Court for the District of New Jersey to issue his opinion and

order with respect to relief to be accorded the individual

Plaintiff and plaintiff class in accordance with his Order of

bifurcation filed October 14, 1975, (2) prohibiting him from

20a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

proceeding with the second phase (“Stage II”) of this action as

described in the aforementioned Order until he has decided the

first phase (“Stage I”) of the action under that Order, and (3)

directing him to vacate his Order of February 27, 1979 requiring

the payment of attorney’s fees and costs to plaintiffs attorney

and to require him to enter an order directing that said

payments be returned to Western or, in the alternative,

deposited with the Clerk of the District Court.

Procedural History:

Western filed its Petition for Writ of Mandamus and

Prohibition along with supporting brief and appendix in this

Court on March 27, 1979. On that same date Western also filed

two separate motions for stays, one seeking a stay of the Stage II

trial of individual cases in this Title VII, 42 U.S.C. §2000¢ et.

seq. class action, and the other seeking a stay of the District

Judge’s award of $280,834.49 in attorney’s fees and costs to

plaintiffs attorney. Plaintiff filed a statement in opposition to

Western's motions for stay.

By Order dated April 2, 1979 this Court directed plaintiff to

answer Western’s Petition within ten days, (a copy of the Order

is annexed hereto as Exhibit A). By a separate Order of the same

date this Court denied Western's motion for stay of Stage II

trials, but granted Western’s motion for stay of the award of

attorney's fees and costs, (a copy of the Order is annexed hereto

as Exhibit B). Plaintiff subsequently filed her Answer to

Western’s Petition with the Court.

In its Petition for Writ of Mandamus and Prohibition

Western contended:

(1) it was substantially prejudiced by the District Judge’s

abrogation of his bifurcation Order of October 14, 1975 which

2la

Appendix A — Petition for Rehearing and for Rehearing In

Banc

established the ground rules applicable to the trial of Stage I of

this case. It is unassailable that Western had a right to rely on

those ground rules in determining its approach to Stage I and

that had the ground rules been changed prior to trial Western

may well have altered its approach.' Indeed, plaintiff in her

Answer to Western’s Petition skirts this issue and does not (and

could not) dispel the fact that Western had been prejudiced;

(2) the District Judge could have, and should have, entered

at the very least a prohibitive injunction with respect to those

employment practices of Western found to violate Title VII.

Neither the District Judge nor plaintiff in her Answer to

Western's Petition have even attempted to articulate a legitimate

reason for this inaction. Indeed, plaintiff in her Answer concedes

that a prohibitive injunction would be appropriate. The failure

to enter such an injunction upon the finding of a liability has but

one effect, to block the appeal clearly contemplated under the

October 14, 1975 bifurcation Order;

|. If it be assumed that this case could have been bifurcated differently prior

to trial, £e., Stage I as to liability only, and Stage II as to all relief, the actual

prejudice to Western which has in fact occurred here is not thereby dispelled.

First, it was not bifurcated differently; to here assume facts that might have

been but were not is to ignore the issue squarely raised by Western in its

Petition to this Court. Second, even had the case been bifurcated differently,

the Writ which Western sought should have issued; how can a district court

after a finding of liability alone compel a defendant to finance his adversary’s

litigation costs? That liability finding is entitled to no more weight, prior to

review by a circuit court, than is a district judge's ruling on any pretria!

motion. Could the District Judge here have compelled Western to finance the

litigation against it upon denial of Western's summary judgment motion or any

other pretrial ruling? The answer, of course, must be “no”, for it would

constitute the taking of a defendant's property without due process of law.

That is what has been done to Western in this case, and that fact would not

have been altered even if this case had been bifurcated differently.

22a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

(3) the orderly administration of justice could not tolerate

the posture of this case, iie., the large nonrecoverable

expenditures forced upon Western prior to opportunity for

appeal, and therefore, prior to a determination whether Western

should in fact prevail in this case. Not even plaintiff in her

Answer to Western's Petition could say more about this issue

than that she expects to prevail on appeal;

(4) the award of attorney’s fees and costs to plaintiff's

attorney was beyond the power of the District Judge. Under

applicable law plaintiff (not having been afforded any relief) was

not a “prevailing party” as required under Title VII, and, as the

District Judge flatly acknowledged, she had not complied with

the requirements of this Court to establish a fee claim. In her

Answer to Western’s Petition on this point, plaintiff avoided

direct confrontation with the legal issues raised by Western,? but

2. E.g., her discussion of the critical case of Bradley v. School Board of

Richmond, 416 U.S. 696 (1974) completely misses the issue raised by Western,

ie. the proper meaning of the phrase “prevailing party”, and her flat

admission that her fee application failed to comply with applicable legal

standards established by this Court.

Indeed, plaintiff's attorney flatly admitted that she could not provide a

bond covering the more than $280,000 awarded to her, or any bond at all.

Furthermore, the District Judge, while first recognizing that plaintiff's attorney

had failed to even make out a fee application in conformity to the standards

established by this Court, expressly based his award of fees on the ground that

it was necessary to finance the litigation against Western. While this Court's

stay of the counsel fee award was in effect, plaintiff's attorney conceded to the

District Judge that she had already spent “most” of the money Western had

paid her. Now that the stay has been vacated she seeks, and t!. District Judge

has scheduled proceedings with respect to, the “remainder” of her Stage I fee

claim of nearly one miliion dollars. Western has filed a notice of appeal on the

fee issue.

23a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

asserted that Western’s counsel had only contended before the

District Judge that the fee issue was limited to the amount to be

awarded plaintiff.

On April 25, 1979 the Court, without oral argument, issued

its Order denying the relief requested in Western’s Petition and

vacating the stay which had been previously granted with respect

to attorney's fees and costs (a copy of the Order is annexed

hereto as Exhibit C). No opinion accompanied that Order.

The Basis for this Petition:

Western submits that this Court has overlooked or

misapprehended the basic thrust of its argument on its Petition;

it has been denied fundamental due process by the District

Judge. The present posture of this case requires Western to

expend what will surely be several million dollars in

nonrecoverable costs‘ in Stage II, while being denied the right to

3. Plaintiff quotes Western's counsel during a February 22, 1979 status

conference, but the attorney's fee issue was only raised at that conference in

impromptu fashion by the District Judge. It was, in fact, at that conference

thai the District Judge directed Western to brief the question. On both

February 27 and March 6, 1979, when the issue of attorney's fees was

scheduled to be argued before the District Judge, Western's counsel clearly

took the position that plaintiffs attorney was entitled to nothing and that “no

interim fee should be paid at this point.” March 6, 1979 Tr. p. 7, 1.16.

Plaintiffs Answer to Western's Petition on this point was plainly misleading.

4. These costs include the following expenditures: (a) quarterly payments

to the three special mastcrs appointed to hear Stage II cases at rates in excess

of $100 per hour, (b) further payment to plaintiff's attorney of attorneys’ fees

and costs for the trial of Stage | under a schedule established by the District

Judge at a May 2, 1979 status conference, (c) quarterly payments to plaintiff's

attorney for attorney's fees and costs incurred during Stage II (see Order dated

March 6, 1979, which is presently stayed until further order of the District

(Cont'd)

24a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

appeal the underlying findings upon which Stage II is

predicated. This money and the efforts of scores of Western

employees, hundreds of plaintiff class members, lawyers for

plaintiff and defendant, special masters and others may be spent

in vain should Western eventually prevail on appeal of this case.

Western submits that it is antithetical to any concept of due

process and a misuse of the judicial system to require a litigant

to expend several million dollars in nonrecoverable costs, and

years of effort in a proceeding which may, after appeal, prove to

have been an act of futility for plaintiff class members as well as

for the defendant. There is surely no authority supporting the

orders of the District Judge which compel Western to finance

Stage II of this case while the District Judge uses Stage II as a

basis for determining Stage I relief. This course of action is

particularly improper and prejudicial to Western in view of the

ground rules established — but now violated — by the District

Judge’s bifurcation Order of 1975.

Indeed, the present posture of this case is a direct result of

the District Judge’s belated change of the ground rules* upon

which the trial of Stage I took place.

(Cont'd)

Judge; see Order dated March 9, 1979), (d) the additional payment for a

paralegal to be utilized by each special master if he so desires, April 26, 1979

Status Conference Tr., (e) the cost of providing all Stage II deposition and

hearing transcripts to the special masters, (f) the payment of regular salaries to

current Western employees who appear in Stage II trials advancing their own

claims, and their witnesses who are current Western employees, (g) the cost (as

yet undetermined, but obviously considerable) of placing Western's personnel

records, approximately 60,000 of them, on computer as an “attendant” cost to

the special masters’ proceedings. May 2, 1979 Status Conference Tr.

5. The Order of October 14, 1975 provides:

That the issues raised by the complaint herein shall be

tried in two separate and independent stages, to wit, the

issues of liability of the defendant Western Electric to the

25a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

Because the posture of this case confronting Western

violated its sense of any notion of fundamental due process,

Western, after settlement attempts® did not materialize, sought

the intervention of the Third Circuit by way of its Petition for

Writ of Mandamus and Prohibition. In declining to issue the

Writ the Third Circuit has thus aligned itself with the

proposition that the judicial system can, consistent with due

process, tolerate the present posture. Western submits that the

judicial system is not so inflexible as to preclude the granting of

the Writ.

To be sure, the District Judge has given his reasons for

changing the ground rules,’ but these statements are not and

should be not sufficient to preclude the granting of the Writ.

One stated reason pertained to additional proofs: required by the

District Judge in regard to the class representative's individual

case. The additional proofs were received at trial on May 1,

(Cont'd)

_ Class and of class relief, and of the liability of all defendants

to the named plaintiff, Kyriaki Cleo Kyriazi, and the relief

to which she may be entitled, shall be severed from the

determination of the amount of back pay or other specific

relief for individual members of the class; (Emphasis added).

All involved understood that all proofs as to liability and relief save for

individual awards, if any, to members of the class were to be heard and

determined at Stage I. The question of class-wide relief was the subject of

proposed findings of fact and briefs by all parties submitted at the close of

Stage I.

6. Settlement discussions began on November 9, 1978.

7. The definitive statement of the District Judge’s reasons was to be

forthcoming in his opinion on Order denying Western's Rule 59 Motion to

alter or amend the judgment. Western's proposed order on the motion,

submitted on December 12, 1978, has not been entered by the District Judge.

26a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

1979. They consumed 68 pages of transcript (most of which

pertains to discussion among the court and the attorneys) and

certain updating of documents previously introduced at trial in

1977. The second stated reason pertained to additional proofs

required by the District Judge in order to fashion injunctive

relief.’ The stated objective here is that from the trial of Stage II

cases the District Judge would be in a better position to evaluate

the extensiveness of the alleged discrimination. Even quite apart

from the fact that (1) this posture violates the ground rules upon

which Stage I was tried and (2) compels Western to finance part

of Stage I, the stated posture of Stage II trials is not calculated

to achieve the stated objective until virtually all of the Stage II

cases are tried. This is so because (1) Western has been found

liable with respect to several distinct kinds of discrimination and

(2) the Stage II trials are proceeding on the basis of first claim

filed, first tried. There is no way that this procedure can

accomplish the stated objective in any expeditious manner.’

8. See footnote 5 as to the Stage I ground rules which included the

fashioning of injunctive relief. It is patently clear that a prohibitive injunction

could have, and should have, been issued upon the finding of liability at Stage

9. Arguably a litigant may be required to go to Stage II at the same time

an appeal from Stage | is pending. That possibility is inappropriate here

because: an appeal from Stage I is not possible now, is not possible in the

forseeable future because the District Judge has geared the completion of Stage

I to findings which can only be made after extensive Stage II trials, and can

only come after the expenditure of enormous sums of unrecoverable monies.

This is not to say that at no point in these proceedings will there be a place for

a special master. Here, however, Stage II is not an independent focus. Rather,

Stage II has the effect of delaying Stage i. While that effect was not at first

apparent, it is now abundantly clear that Western may have no right of appeal

until Stage II is virtually completed.

P* 27a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

Thus, even assuming that this Court were of the view that it was

appropriate for the District Judge to “reopen” the record, the

manner!? utilized for that purpose is unduly harsh and does not

comport with any notion of fundamental fairness.

Simply put, the “stated reasons” do not explain the pell mell

rush!'! to Stage II trials, with all of its attendant consequences,

prior to completing Stage I. On the other hand, the enormous

consequences of Stage II, including its potentiality for being a

wasted effort, do explain the need for immediate relief from the

Third Circuit.

Counsel states that Western’s Petition for Writ of

Mandamus and Prohibition involves a question of exceptional

importance, to wit: the denial to a defendant in a major Title VII

class action of fundamental due process of law in violation of

the Fifth Amendment. Western has previously set forth in its

Petition the manner in which that denial has been effected.

There can be no question that if this Court is to permit the

present posture to continue, the unmistakeable message to Title

VII class action defendants is clear that the cost of defending

themselves is, as a practical matter, prohibitive. To a Title VII

class action defendant the message is as coercive as it is plain;

since he faces risk of liability he must settle at an early stage of

the proceedings because after a finding of liability, with the

10. Moreover, since Western has not been advised of the specific

additional proofs required by the District Judge to fashion injunctive relief, it

is in no position to suggest a better way.

11. The District Judge has made it plain that he would not delay any

aspect of Stage II proceedings based upon any consideration of completing

Stage I.

28a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

defendant compelled to finance further litigation, there is no

incentive, as a practical matter, for the plaintiff to effectuate

settlement on other than his terms.

Western acknowledges the Congressional policy against

employment discrimination announced in Title VII. But surely

that policy does not permit a district judge to put a defendant in

such a position that to prevail on appeal puts him in no better

position than he would be in if he did not prevail on appeal.

Our system of federal jurisprudence is based, as it must be,

on the assumption that all litigants will be accorded fundamental

fairness before the courts. Where this assumption becomes

reality, the system works well for all who come before the

courts, but where, as here, that assumption is undermined by a

district court, the appellate courts must safeguard the rights of

litigants and the integrity of the judicial system itself through the

use of any legitimate means available to them. The

extraordinary writs of mandamus and prohibition are

appropriate to achieve those ends; they should be utilized in this

case to protect Western’s Fifth Amendment due process rights.

The posture which presently exists is plainly not correctable on

appeal. There can be no question but that the District Judge

has completely failed to even suggest a legitimate rationale for

not issuing a prohibitive injunction against Western’s

employment practices which he found to be in violation of Title

VII, that he has deliberately sought to shield his liability findings

from review by this Court, and that he has further imposed

enormous non-recoverable costs on Western in connection with

Stage II of this case.

29a

Appendix A — Petition for Rehearing and for Rehearing In

Banc

CONCLUSION

Western respectfully requests that its motion for rehearing

and rehearing in banc be granted.

Respectfully submitted,

s/ S. Joseph Fortunato

S. JOSEPH FORTUNATO

s/ Edward P. Lynch

EDWARD P. LYNCH

PITNEY, HARDIN & KIPP

163 Madison Avenue

P.O. Box 2008-R

Morristown, New Jersey 07960

Attorneys for Defendant-

Petitioner, Western Electric

Company, Incorporated

Of Counsel:

Robert A. Levitt

Lawrence M. Joseph

Western Electric Company,

Incorporated

Guilford Center

P.O. Box 25000

Greensboro, North Carolina 27420

DATED: May 9, 1979

30a

APPENDIX B — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DATED OCTOBER 30, 1978, AS AMENDED NOVEMBER

22, 1978

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KYRIAKI CLEO KYRIAZI,

Plaintiff,

Vv.

WESTERN ELECTRIC COMPANY, Inc., et al.,

Defendants.

Civil Action No. 475-73

October 30, 1978, as amended on November 22, 1978

STERN, J.:

I. INTRODUCTION AND SUMMARY OF COURT'S

FINDINGS

This is a class action brought under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seg. The named

plaintiff, Kyriaki Cleo Kyriazi (“Kyriazi”), charges defendant

Western Electric Co. (“Western”) with across-the-board sex-

based discrimination with respect to virtually every condition of

employment at its Kearny plant. Kyriazi also alleges that she

herself was the victim of sex discrimination at Western in a

number of respects. The issue of liability having been severed

from that of damages, the case was tried on the liability issue

alone commencing July 7, 1977 and concluding on December |,

1977.

3la

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

The Court, having heard the testimony at trial and having

reviewed the voluminous exhibits submitted by the parties, finds

that Western systematically denied women the employment

opportunities it afforded men in the areas of hiring, promotion,

and ‘participation in training programs; that it slotted women

initially into the lower-paying “women’s jobs” and laid them off

in disproportionate numbers in times of economic stress. This

was proved through statistical evidence, never rebutted by the

defendant, and through other evidence of purposeful

discrimination.

In addition, the Court finds that Kyriazi is an adequate

representative of the class, and that, as such, she may

appropriately challenge Western’s employment practices.

Finally, the Court, having considered Kyriazi’s individual case,

finds that she was underrated, underpaid, and denied

promotional opportunities by Western because of her sex; that

she was‘ harassed by her male co-workers; and that she was

terminated on account of her sex and in retaliation for having

lodged a complaint of sex discrimination.

Il. PRELIMINARY ISSUES

A. Jurisdiction

The Court has jurisdiction over this action under 42 U.S.C.

§ 2000e-5(f)(3) and 28 U.S.C. § 1343(1). Timely charges of

discrimination were lodged with the New Jersey Department on

Civil Rights and with the EEOC, which found reasonable cause

to believe there was discrimination against Kyriazi and all

women employed at Western’s Kearny plant. (P-161). Pendent

32a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

jurisdiction exists over the tort claims against the individual

defendants.'

B. Parties

Plaintiff Kyriazi was hired by Western in 1965 as a

professional in the Information Systems (computer) field at

Western’s New York Headquarters. In February 1966 she was

transferred into the Industrial Engineering organization at

Western’s Kearny plant. She was promoted to the position of

Industrial Engineer in May 1967 and transferred in February

1969 into the Information Systems organization at Kearny. She

was terminated by Western on November 19, 1971.

Kyriazi claims that (1) Western denied her promotions and

gave her lower ratings and a lower salary than she deserved on

account of her sex, in violation of 42 U.S.C. § 2000e-2(a); (2)

that she was terminated by Western on account of her sex, in

violation of 42 U.S.C. § 2000e-2(a); (3) that she was terminated

by Western in retaliation for having filed formal charges against

it, in violation of 42 U.S.C. § 2000e-3(a); (4) that Western and

the five individual defendants conspired to deprive her of

federally-protected rights, in violation of 42 U.S.C. § 1985(3);

and (5) that the five individual defendants are liable under state

law for having tortiously interfered with her employment at

Western.

1. See, United Mine Workers vy. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16

L.Ed.2d 218 (1966). There is subject matter jurisdiction over Kyriazi’s state law

claims because federal claims are also leveled against these same individuals

under 42 U.S.C. §1985(3). See Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413,

49 L.Ed.2d 276 (1976).

33a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Defendant Western, an “employer” within the meaning of

42 U.S.C. § 2000e(b), is engaged in the manufacture of telephone

equipment. Western’s Kearny Works Organization consists of a

main facility, the Kearny plant, and a satellite location, the

Clark Shops. The main facility manufactures exchange area and

video pair cable, key equipment, PBX’s switchboards, amplifiers

for underseas cable and transmission apparatus for the Bell

System (Exhibit P-77; Introduction). The Clark Shops

manufacture submarine cable repeaters for the United States

Government (Exhibit P-77) and for the telephone company

(Malina, 43: 5335-6) (Hobbie, Tr. 197).

The five named individual defendants are Fred Wilser,

Kyriazi’s supervisor during her tenure at the Information

Systems department in Kearny; Ralph Boyd, who supervised a

department of the Information Systems professiona‘s during the

period in which Kyriazi was physically located there; and

Kyriazi’s male co-workers in Information Systems: James

Snyder, Robert Armstrong and Shen T. Liu.

C. Scope of Class and Class Claims

By order dated July 16, 1975, the Court certified the class to

encompass:

all females who are now or at any time since June

9, 1971, have been employed by defendant

Western Electric Company, or who sought

employment with said Company during the

pendency of this suit, at the Kearny works

organization.

34a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

On behalf of this class, Kyriazi contends that women have been

discriminated against in the areas of (1) Hiring, (2) Promotion,

(3) Transfer, (4) Layoff, (5) Discharge, (6) Maternity Leave, (7)

Tuition refund benefits, (8) Participation in the Bell Systems

Savings Plan, (9) Participation in training programs, and (10)

Opportunities for testing.

D. Kyriazi’s EEOC Charge and its Effect on Class

Membership

As a prerequisite to suit under Title VII, timely charges

must be filed with both the state agency and with the EEOC. 42

U.S.C. § 2000e-S(e). Where a named plaintiff in a class action

has complied with these requirements, he or she may represent a

class composed of all those who could have filed charges of

discrimination as of the date on which the named plaintiff filed

her charge. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d

239, 246 (3rd Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44

L.Ed.2d 679 (1975).

Kyriazi filed two charges of discrimination with the EEOC;

an unsworn charge dated January 7, 1972 (P-161) and a sworn

charge dated September |1, 1972 (D-79B).? Western argues that

2. The text of both charges is identical. It reads:

“DEGREES: (1) MS. GRAD. SCHOOL OF

ENGINEERING (2) M.B.A. GRADUAT. SCHOOL OF

BUSINESS BOTH OF COLUMBIA UNIV. SERVICE:

HIRED AS AN ENGINEER IN 1965, TOTAL SERVICE

7 YEARS (1965-NOV. 1971) PERFORMANCE:

THEORETICAL & PRACTICAL APPLICATIONS

EXCELLENT, RELATIONSHIP WITH 99.999% OF THE

(Cont'd)

35a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

the Court should credit only the latter charge, thus limiting class

membership to all women who could have filed charges as of

November 15, 1971, that is, 300 days before September 11,

1972.3

The Court, in accordance with its earlier order certifying the

class, credits Kyriazi’s first charge with the EEOC filed January

(Cont'd)

CO. EXCELLENT TILL TODAY, THE 5 YEARS OUT

OF THE TOTAL 7 (APPROX.) MUTUAL RESPECT

COMPLAINTS:

UPON TRANSFER TO A NEW ORGANIZATION

AT APPROX. THE STH YEAR OF SERVICE I FACED

EXTREME CALCULATED (SEX) DISCRIMINATORY

PRACTICES, |. PROFESSIONALLY: IN THE

ASSIGNMENT OF WORK (PROJECTS ME TO

DEVELOP), APPLICATION OF UNETHICAL

PROFESSIONAL PRACTICES AND REFUSAL OF

COOPERATION COMPLETELY IGNORING MY

INTERESTS IN RATING, SALARY INCREASES AND

PROMOTIONS, RESULT: FINANCIAL LOSS

HUMILIATION AND LOST OPPORTUNITIES FOR

PROMOTION TO SENIOR’ ENGINEER. 2.

PERSONALLY: HARASSMENT, REACHING

PROPORTIONS OF IMMORALITY, GENERALLY

CALCULATED ADTION [sic] TO ALTER (TO THE

WORST) MY EXCELLENT PROFESSIONAL AND

PERSONAL IMAGE IN THE CO. REPRISAL: WHEN

THEY WERE INFORMED THAT I FILED A SUIT

AGAINST THE CO. (WITH THE N.J. STATE), THEY

TERMINATED MY EMPLOYMENT....

3. Prior to March 24, 1972, and pursuant to 42 U.S.C. §2000e-5(d) an

individual in a state which had enacted anti-discrimination laws had a period

of 210 days (as opposed to 90 days in states without such laws) to file charges

of discrimination with the EEOC. Effective March 24, 1972, this period was

extended to 300 days.

36a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

7, 1972, thereby allowing her to represent a class of women who

had viable claims of discrimination within 210 days of that date,

or June 9, 1971. For it is by now well-settled law that unsworn,

unserved charges are effective on the date filed. See, e.g.,

Georgia Power Co. v. EEOC, 412 F.2d 462 (Sth Cir. 1969);

Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968).

In balancing the possible prejudice to each side, we find that

selection of the earlier date affects only the measure of

defendant’s damages—not its liability—while selection of the

latter date would preclude relief to women who were deliberately

denied their federally-guaranteed right to equal employment

opportunities. Accordingly, the Court adheres to its order

certifying the class and holds that the class consists of all women

who had viable claims of discrimination as of June 9, 1971.

Western argues further that the class claims should be

limited to those asserted by Kyriazi in her EEOC charge. (Def’s

Pr. Finding No. 25). It is clear, however, that a Title VII named

plaintiff may raise not only his or her own claims, but also those

“growing out of such allegations during the pendency of the case

before the Commission.” King v. Georgia Power Co., 295

F.Supp. 943, 947 (N.D.Ga. 1968). See also, e.g., EEOC v.

General Electric, 532 F.2d 359, 368-9 (4th Cir. 1976); Sanchez v.

Standard Brands, Inc., 431 F.2d 455 (Sth Cir. 1970).

E. Actionable Period

We next address the question of the time period for which

Western may be held liable. Western argues that it may be held

liable only for those acts of discrimination which occurred

within the 210 days before Kyriazi filed her charge with the

EEOC, and that claims arising prior to that date are time-

barred. Plaintiff argues that while class membership is governed

37a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

by this date, class members may secure remedies for acts of

discrimination occurring’ ck to July 2, 1965 (the effective date

of Title VII) or the date of their hire, whichever is later, because

Western has engaged in a “continuing violation” of Title VII.

The “continuing violation” theory permits a Title VII

plaintiff to challenge an employment practice even if all the acts

of discrimination alleged did not occur within the EEOC filing

period. This is so because where an employer has regularly and

systematically discriminated against a class it will often be

impossible to isolate specific acts of discrimination occurring

within the filing period. See generally, Barbara Lindemann

Schlei and Paul Grossman, Employment Discrimination Law,

884-908 (1976). This theory serves a number of different

purposes; for example, it permits a plaintiff to challenge a

practice without the necessity of alleging that he or she is

presently affected by it, see e.g., Bartmess v. Drewrys USA Inc.,

444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S. 939, 92 S.Ct.

274, 30 L.Ed.2d 252 (1971) (female employee challenging system

which forced women to retire earlier than men did not have to

await her own retirement to file EEOC charge); Wetzel v. Liberty

Mutual, supra (system of segregating females into certain jobs

may be challenged at any time). It also permits a Title VII

plaintiff to seek redress for acts of discrimination occurring prior

to the EEOC filing period, for, as the Court of Appeals for the

Tenth Circuit has noted, the short EEOC filing period “looms

inconsequential” in the face of a practice which regularly

discriminates against a class. Rich v. Martin Marietta Corp., 522

F.2d 333, 348 (10th Cir. 1975). See also, Kohn v. Royall, Koegel

& Wells, 59 F.R.D. 515 (S.D.N.Y. 1973), appeal dismissed, 496

F.2d 1094 (2nd Cir. 1974) (charge timely even though no

applications made within 180 day filing period).

38a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Defendant argues that the Supreme Court’s recent decision

in Evans v. United Airlines, 431 U.S. 553, 97 S.Ct. 1885, 52

L.Ed.2d 571 (1977) abrogates the “continuing violation” theory.

We disagree.

In Evans, the plaintiff had been forced to resign in 1968

from her position as a stewardess because of her employer’s then

prevailing no-marriage policy. That policy had been eliminated

when the plaintiff resumed her employment in 1972. More than

a year later she challenged her lessened seniority which, she

contended, was the direct result of the discriminatory policy

which prevailed in 1968. The Court held that since she did not

make a timely charge in 1968, she could not now challenge the

practice because at present she suffered no more than the present

effects of past discrimination.

It is clear to this Court that Evans does not overrule the

“continuing violation” theory of Title VII. For, as the Supreme

Court was careful to point out in Evans, the only employment

practice which presently existed was the seniority system, which,

while it had an adverse impact on the plaintiff to the extent that

it perpetrated the effects of past discrimination, was itself non-

discriminatory. Thus, no present continuing violation existed:

Respondent emphasizes the fact that she has

alleged a continuing violation. United’s seniority

system does indeed have a continuing impact on

her pay and fringe benefits. But the emphasis

should not be placed on mere continuity; the

critical question is whether any present violation

exists.

Id., at 558, 97 S.Ct. at 1889 (Emphasis in original). Here, by

39a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

contrast, we deal with an employment practice which did

constitute a violation of Title VII as of the time the EEOC

charges were filed.4

Accordingly, because plaintiff has alleged and proved a

“continuing violation” of Title VII as of the time the EEOC

‘charges were filed, any woihan who had a claim against Western

-as of June 9, 1971 may sectire relief for acts of discrimination

which occutred from July 2, 1965, the effective date of Title VII,

to the present.

Kyriazi’s élainn against Western and the fivé individual

defendants under 42 U.S.C. § 1985(3) will be governed by New

Jersey’ $ six year statute of limitations applicable to actions for

breach of contract and injury to property. N.J.S.A. 2A:14-1, see,

Davis v. United States Steel Supply, 581 F.2d 335 (3rd Cir.,

1978), as ‘will Kyriazi’s tort Claims’ bs or the five individual

defendants. adi ues

Ill. SUMMARY OF PLAINTIFF'S PRIMA FACIE CASE

It is by now axiomatic that a Title VII plaintiff has the

initial burden of offering evidence adequate to create an

inference that the employer'has engaged in 4! pattern: and

practice of discrimination directed at the class. In ‘a —_—

Cassia Gb Ole NIT OW pet? 5 wo A

bem 2

4. We are beiteond vin, our. view that, Evans did not overrule the

“continuing violation” theory of Title | vil by the Supreme Court's decision in

International Brotherhood of Teamsiérs V. “United States,’ 431 U.S.334,'97

S.Ct. 1843, 52 L.Ed.2d 396 (1979), dedided:the sathe day as -Bvahs.“Iii that cise,

although the Court did aot specificallytaddresy the!“continuilig | Vivlation”

theory, it did approve the award of retroactive seniority back to the effective

date of Title VII to class members who were’demied’the right’ to'transfer to the

position of “line driver”.

a: 2

i mighty “liq?

‘ 101

40a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

treatment” case, the plaintiff must show—if only through

circumstantial evidence—a discriminatory motive or intent on |

the part of the employer; in a “disparate impact” case, the

plaintiff must show that facially neutral practices, while “fair in

form” are “discriminatory in operation.”5 Once this initial

burden is discharged, the burden then shifts :o the employer to

provide a non-discriminatory explanation for its practices. See,

International Brotherhood of Teamsters v. United States, 431

U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v.

Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47

L.Ed.2d 444 (1976); McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See generally,

Schlei & Grossman, supra, at 1147-96; George Cooper. Harriet

Rabb & Howard Rubin, Fair Employment Litigation, 64-130

(1975).

The Supreme Court has recently made clear that a prima

facie case may be made on statistics alone, albeit that the

reliability of those statistics depends on all the surrounding facts

and circumstances. See, Teamsters, supra, at 339-340.

Here we are satisfied that plaintiff has met her burden based

on statistics alone. She has shown through statistical evidence,

discussed more fully hereafter, (1) that women are

disproportionately clustered into the lowest graded jobs at

Western; (2) that women are hired initially in disproportionate

numbers into the lowest grades; (3) that women are promoted in

fewer numbers and with less frequency than men; (4) that

women are completely foreclosed from participating in job

programs which would help them ascend from the low ranks;

and (5) that women were laid off in far greater numbers than

men.

5. While plaintiff has not clearly elected the theory under which she

proceeds, the Court characterizes this action as a “disparate treatment” case.

4la

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

This is not, however, merely a “statistical” case. In addition

to an overwhelming amount of highly relevant statistical

evidence, itself sufficient to sustain her burden, plaintiff has

brought these statistics to life with direct evidence that

supervisors on every level at Western intentionally discriminated

against women on a plant-wide basis. This evidence includes the

use of discriminatory advertising for hire and personnel

requisition forms which permitted Western’s supervisors to

designate their sex preference for a position. Such evidence of

discriminatory purpose removes any question that the statistical

disparities proved by the plaintiff arose merely as a matter of

chance.

We turn first to plaintiffs statistical case.

IV. DISTRIBUTION OF MEN AND WOMEN WITHIN

WESTERN’S WORKFORCE AT KEARNY

Women have comprised between 33 and 39% of Western’s

workforce during the relevant period. Nevertheless, as plaintiff's

statistical proofs reveal, females are virtually excluded from the

highest level positions while they swell the ranks of the lowest

clerical and operative grades. Thus, for example, plaintiff's

proofs demonstrate that as of January |, 1975:

1. There were 735 employees within the EEO category

denominated “Officers and Managers”, which encompasses

supervisory positions at Western.° Only 1.9% of this group was

female. Even within that small percentage, no women held a

6. Personnel at Kearny are divided for EEO purposes into six broad

categories: (1) Officials and Managers; (2) Professionals; (3) Technicals; (4)

Skilled Crafts; (5) Clericals, and (6) Operatives.

42a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

position above that of section chief, the lowest level of

supervision. (Hobbie, 2:230; Exhibits P-77; P-11; D-204, Tab

1974).

2. There were 545 employees within the “Professional”

category, which includes such diverse occupations as Engineer

and Information Systems Staff member. 93.2% of this group was

male. The female professionals who made up the remaining 6.8%

included secretaries and nurses. (Exhibits P-77; P-11; D-204,

Tab 1975).

3. There were 426 employees within the “Technical”

category, which includes the positions of Engineering Associate,

Information Associate and lab technician. 97.7% of this group

was male. (Exhibits P-77, D-204; Hobbie, 2:234).

4. There were 1946 employees within the Office and

Clerical category, 66% of whom were women. There were 6283

employees in the Operative category “30” series, 46.6% of whom

were women, and there were 456 employees in the Operative-

Laboratory Technician “600” series, 94.7% of whom were

female. Within those percentages we find women clustered

primarily in the lowest grades of each category of employees:

(Plaintiff's Proposed Findings of Fact, 11 a, b, c).

a) The Clerical category is divided into the “200” and the

“500” series. The “200” series is graded from grade 202 to grade

212; grades within the “500” series run from grade 503 to grade

512. The distribution of men and women was as follows:

43a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

200 SERIES 500 SERIES

Grade % Female Grade % Female

202 81 503 100

203 92.7 504 100

204 95.4 505 100

205 83.1 506 94

206 82.3 507 86

207 75.8 508 57

208 59.6 509 50

209 34.7 510 40

210 ~ 39.1 511 25

211 21.9 512 10

212 8.9

(Exhibits P-77; P-20) (Exhibit P-28)

b) The “operative” category encompasses jobs which deal

directly with the manufacturing process, such as assembler and

drill press operator. This category is divided into the “30” series,

running from grade 32 to grade 39, and the “600” series

(covering laboratory technicians in the Clark Shops) which runs

from grade 611 to grade 691. The distribution of men and

women within these grades was as follows:

30 Series

% FEMALES

GRADE NO. IN GRADE IN GRADE

32 1,974 90.0

33 1,108 62.0

34 1,303 28.0

35 891 8.0

36 700 1.3

37 305 1.6

44a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

(Exhibits P-22; P-77) (January 1, 1975)

600 Series

% FEMALES

GRADE NO. IN GRADE IN GRADE

611 18 89

621 56 100

631 113 46

641 85 68

651 55 58

661 73 13

671 40 08

68 | 5 00

691 11 00

(Exhibit P-23) (January 1, 1975)

c) In addition, plaintiffs proofs suggest that so-called

“female jobs” are graded more strictly than so-called “male

jobs”:

“MALE JOBS”

Draftsman (Grade 203) (47

males and 2 females hired

between 1967 and 1976.) (P-

74)

“FEMALE JOBS”

Clerk Typist (Grade 203) (133

females and no males)

(P-74)

45a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Job Prerequisites:

No prior experience

— ¥% of 4 month mechanical

training course.

(D-175(a),(b))

- Staff Chauffeur (Grade 508)

(filled only by males between

1967 and 1976) (D-204) (Exh.

D-177).

Job Responsibility:

No responsibility for work of

others. Must “{o]perate

limousines, passenger cars and

station wagons to provide

transportation for company

executives...and keep

limousines clean.”

Job Prerequisites:

Requires 2 months or

4 months prior

experience and typing

skills.

(D-175(a),(b))

Other grade 203 level jobs

into which only females are

hired (teletype operators

calculating machine operator)

require prior experience.

(D-175(a),(b))

Telephone Overseer (Grade

508) (Filled exclusively by

females)

(D-204) (Exh. D-177).

Job Responsibility:

Supervisory in nature;

trains and supervises

Operators; maintains

directory and

information files.

Assistant Telephone

Overseer (Grade 507)

(exclusively female)

must: “oversee and

47a

46a Appendix B — Opinion of the United States District Court for

‘ the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

1975 WORK FORCE COMPOSITION BY SEX AND JOB CATEGORY

Source: 1975 AAP “Work Force Analysis” (GN-11-166) _

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

“GATICERS & MANAGERS PROFESSIONALS* | TECHNICIANS CRAFTWORKERS

coordinate all 62 mena

operating activities of 2.3%

the Works Telephone emale

Exchange ... assign 1.%

work schedules, '

instruct telephone : ees |_545_ Employees __| 426 Employces 7 Employees

OPEPATIVES-MANUFACTURING GRADES

2 HIGHEST GRADES

(36.37)

Male

Female 49.

Male 1.4%

98.6%

1,005 Employces 3,083 Employces

OPERATIVES-LAB TECHNICIANS

ALL GRADES 3 HIGHEST GRADES

(671,681,691)

Female are le Male

. 49.8% 2.™%

456 Employees 56 Employecs

personnel, recommend

revisions and

improvements for

optimum service and

savings, handle

incidents of urgent or

critical natures such as

crank calls or bomb

threats requiring

extensive reasoning to

ascertain between

valid or invalid

emergencies, etc.

Reports must be

2 LOWEST GRADES

(32.33)

2 LOWEST GRADES

(611,621)

Femalc

97.3%

74 _Employecs

maintained and/or

compiled on a _ wide

variety of topics

including special

studies and summaries

relating to telephone

service operational

activities with as-

sociated comparisons

and analyses.”

ALL GRADES

OFFICE & CLERICAL EMPLOYEES

3 HIGHEST GRADES

LOWEST GRADES

(211,212,U) (202 ,203,204,205)

Female

16.4% Hele

10. Femalc

89. 9%

214 Employces 740 Employces

SERVICE WORKERS

5 HIGHEST GRADES

(35,36,37,38,39)

LOWEST GRADE

(32)

5. The skewed distribution of women into the lowest grades Female mie

: ya” : : pls. 16 .6% ° ry ee

and occupations at Western is given visual dimension in the

following graphs:

~ —.233 Employees 86 Employees

“Professionals” category includes 2 all-female job a nurses

(11 employees) and executive secretaries (7 employees)

a. a anole. a he

48a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

V. HIRING PRACTICES AT WESTERN

It is Western’s policy to promote from within. Thus, the

bulk of Western’s hiring is done at the lowest levels, while

higher-graded positions are filled almost exclusively from

Western’s own work-force. (Vines, 11: 1100-11; Hobbie, 2: 340-1,

44: 5368). Nevertheless, Western argues that plaintiff has failed

to delineate the relevant labor pool, both for purposes of hiring

and promotion. It is clear, however, given Western’s promote-

from-within policy, that the relevant labor pool for purposes of

promotion is Western’s own workforce. See, Cooper, Rabb &

Rubin, supra, at 84-5:

[There] are situations in which the employer’s own

conduct can be said to nave defined the labor pool. For

example, in choosing persons for higher level jobs many

employers follow a practice of promoting from within,

and the pool of persons in entry level jobs is the pool for

promotion . . . [WJhere there are substantial percentages

[of minorities] in the entry level pool and many fewer at

upper levels, there is a statistical disparity.

Moreover, since the entry level positions at Western: require

virtually no qualifications, and since it is plaintiffs claim that

women are initially hired into lower grades than men, it is clear

that the relevant labor pool for purposes of hiring are the

employees whom Western actually hired. Cf, Weitzel v. Liberty

Mutual, supra, (comparing sex composition of “claims

adjusters” and “claims representatives” which have similar

requirements.)

We turn now to plaintiff's statistics on Western’s hiring

practices.

49a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Grade 32 and 33 jobs have no requirements of skill,

education or experience.’ (Exhibit P-15). Nevertheless, during

the period from 1967-1976, of a total of 1,664 men and 2,103

women hired for grade 32 or 33 positions, 97.5% of the women

were hired at grade 32 while only 47% of the men were hired at

grade 32. (Exhibit P-14). In operative jobs requiring no prior

experience, virtually all the women were hired into grade 32,

while in many of the job categories, grade 33 hires were

exclusively men:

HIRING FOR JOBS WITH OPERATIVES AT BOTH

GRADES 32 AND 33 WHERE NO EXPERIENCE IS

NECESSARY, 1967-1976

JOB GRADE HIRED % ‘HIRED %

Selector 32 17 94.5 2 100

33 l 5.5 0 0

Bench Hand 32 174 93.5 490 100

33 12 6.5 0 0

Cleaner

33 331 100.0 0 0

7. There are, however, significant differences between these two grades in

terms of salary, promotion and, most importantly, layoff. As will be discussed

in greater detail infra, the collective bargaining agreements in effect during the

relevant period provided for layoffs by grade, so that, for example, a grade 32

worker with twenty years seniority would be laid off before a grade 33 worker

with two years seniority.

50a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

HIRING FOR JOBS WITH OPERATIVES AT BOTH

GRADES 32 AND 33 WHERE NO EXPERIENCE IS

NECESSARY, 1967-1976—Continued

MEN WOMEN

JOB GRADE HIRED % HIRED %

Inspector 32 7 17.0 24 = 58.5

33 35 83.0 17 41.5

Process

Checker 32 8 73.0 41 100

33 3 27.0 0 0

Floor Hand 32 11 65.0 0 0

33 6 35.0 0 0

Assembler 32—«197 90.0 487 99.4

33 21 10.0 3 6

Tester 32 7 64.0 9 90.0

33 4 36 by 10.0

Totals 32. = 422 50.5% 1,053 98%

33 413 49.5% 21 2%

(Exhibit P-15, covering 1967-1976 period.)

Sla

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Grade 32, the lowest grade for operatives, and grades 202

and 203, the lowest grades for clericals, are the three lowest

grades at Western. (Exhibit P-12). 84.9% of all women hired by

Western between January 1967 and April 1976 were placed in

one of these three grades. (Exhibit P-45). More specifically, of

the 3,755 women hired by Western during this time period:

—55.7% were hired at Grade 32

—27.0% were hired at Grades 202 or 203

—6.7% were hired at Grade AO! (Newark Shop Trainee)

—2.1% were hired at Grade 503

(Exhibit P-45). In sharp contrast, only 27.5% of the men hired

by Western during the same time period were hired into the

three lowest grades,

—17.3% were hired at Grade 32

—10.2% were hired at Grades 202 or 203 (Exhibit P-45).

This sex-segregation of jobs is dramatically summed up by

the following statistic: For the period 1967-1976, there were 141

jobs at Western into which only males were hired and 47 jobs

into which only females were hired. (Exhibits P-16, P-46).

Finally although Western rarely fills its higher-graded

positions through hire, when it does so, it awards them almost

exclusively to men:

52a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, cs Amended

November 22, 1978

No. of Males No. of Females

Group Hired Hired

Clerical 54 8

(grade 208/508

or above)

Clark Shops 55 07

Laboratory Technician

(above grade 631)

Engineering Associates 167 4

Occupational Engineers 12 l

Senior Engineers 3 0

Information Systems 72 | 15

Staff Members

ANSE—II category 15 2

(Exhibit P-74, covering period from 1967-1976)

VI. PROMOTION PRACTICES AT WESTERN

As noted earlier, employees hired into the lowest entry jobs

can advance by promotion or upgrade to the highest level jobs at

Western, that is Western’s policy. Thus, an employee hired as a

grade 32 operative can progress not only to the highest operative

grade, but also to a position in management, or in the

professional, technical or craft levels. Indeed, the Court was

struck by the fact that many of Western’s employees who

testified at trial had themselves been promoted from shop or

53a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

clerical grades to professional or management levels. (Bridges,

16: 1635-9; Kubicki, 15: 1530-33; Marca, 27: 3317-18; Day, 46:

5617; Murath, 16: 1715).

We begin with a labor pool which, as we have already held,

is composed of Western’s own workforce. During the relevant

period between 33 and 39% of this pool was female. However, as

plaintiff's statistics demonstrate, that portion of the workforce

remained primarily in the lowest positions within each job

category and department, while promotional opportunities at

each step of the ladder, from the lowest rungs to the steps within

supervision itself, were afforded almost exclusively to the

favored 61 to 67% of the workforce population.

Thus, for example, within the Officials and Managers

category, which encompasses Western’s supervisory personnel,

no woman has ever been promoted above the lowest level, that

of section chief. Indeed, no woman has ever held a position

above that level, whether by promotion or otherwise. Men have

held such positions in large numbers: between 96 and 220 in the

position of department chief, the second lowest position;

between 36 and 85 in the three highest supervisory positions of

assistant manager, director and general manager. (Exhibits D-

204, 1967-76).

To the extent that women have been promoted to the

position of section chief, this has been done in small numbers.

Thus, during the 1967-76 period, the number of male as

compared to female section chiefs was as follows:

S4a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

No. Male No. Female % Section

Section Section Chiefs Who

Year Chiefs Chiefs Were Female

1967 642 s) 1.38 .

1968 639 8 1.23

1969 655 8 1.20

1970 612 10° 1.60

1971 599 10 1.64

1972 544 10 1.77

1973 530 13 2.39

1974 501 13 2.80

1975 485 14 2.80

1976 325 9 . 2.49

(Exhibit P-29). (See also Hobbie, 6: 374-5).

Moreover, the evidence demonstrates that even when women

were permitted to hold the position of section chief, they were

given responsibility over stereotypically “female work” and

almost exclusively over female populations. (See, e.g., Yesko, 43:

5312; Smith, 43: 5296-7).

It is not surprising that women have been virtually excluded

from supervisory positions. It is the incumbents of such

positions who do the selection, and they are instructed to look

for candidates who “did a good job” who could “handle people

and handle new situations” and who “did not require a lot of

instruction.” (Vines, 14: 1396). The use of such vague criteria by

supervisors who, as we shall discuss, infra, almost invariably

expressed a personal preference for men in completing their

personnel requisition forms, again breathes life into plaintiff's

statistics and demonstrates the discriminatory manner in which

these criteria were applied.

55a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Similarly, within the Operative, Service Worker and Graded

Craft categories, as was shown above, women are clustered

within the lowest grades. Despite the large number of women

within the promotion pool, an examination of actual

promotions during the 1973-6 period reveals that few women

were promoted to grades 34 or above and that mo women were

promoted to grade 37 or above:

PROMOTION AND AVAILABILITY OPERATIVES,

SERVICE WORKERS AND GRADED CRAFTS

# Males # Females % Promotions % Females

Promoted Promoted to Grade go- in Feeder

Date to Grade to Grade ing to Females Grade

(12/4/72)

1/1-

12/31/73

Promoted to

Grade

33 107 120 53 91.2

34 159 33 17 Si?

35 128 9 7 22.0

36 78 l l 7.5

37 61 l 2 1.3

38 17 ' 0 0 2.1

39 4 0 0 0.8

56a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

PROMOTION AND AVAILABILITY OPERATIVES,

SERVICE WORKERS AND GRADED CRAFTS

# Males # Females % Promotions % Females

Promoted Promoted to Grade go- in Feeder

Date to Grade to Grade ing to Females Grade

1/1-

12/31/74 : (1/6/74)

Promoted to

Grade

33 49 116 70.3 91.9

34 76 49 39.2 55.2

35 68 9 11.6 23.5

36 59 0 0 6.6

37 61 0 0 1.3

38 15 0 0 1.8

39 3 0 0 0.8

1/1/75 - (12/2/74)

12/31/75

Promoted to

Grade

33 16 13 44.8 90

34 65 4 5.7 57.8

35 6] 0 0 26.4

36 26 I 3.7 8.0

37 6 0 0 1.4

38 3 0 0 1.6

39 l 0 0 0

57a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

PROMOTION AND AVAILABILITY OPERATIVES,

SERVICE WORKERS AND GRADED CRAFTS

# Males # Females % Promotions % Females

Promoted Promoted to Grade go- in Feeder

Date to Grade to Grade ing to Females Grade

1/1/76-

12/31/76

(12/1/75)

Promoted to

Grade

33 63 80 55.9 68.9

34 91 57 38.5 53.3

35 45 | 2.1 24.4

36 38 3 7.3 7.7

37 32 l 3.0 0.5

38 7 0 0 1.2

39 1 0 0 0

(Exhibits D-191, 204, 238)

This disparity is not explained by seniority, by job

qualifications or by occupation. Plaintiff's exhibits 217-222 show

that for the years 1974, 1975 and 1976, females in each grade

had substantially greater seniority than males in each grade. The

job specifications for the higher-graded positions reveal that the

only skills, knowledge or experience required are attainable

through experience in Western’s lower graded jobs. Moreover,

even within the so-called “women’s occupations”, positions

within the higher grades are filled primarily by men. (Exhibits

D-204; P-77; P-83). Thus, women do not even progress within

the occupations into which they have been segregated.

58a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

The same pattern exists within the Clerical category. As of

January 30, 1975, in both the “200” and “500” series, women at -

each grade had between two and ten years greater seniority than

men. (Exhibits P-27, P-28).

“200” Series

Grade Years Greater Seniority

: of Females

204 1.85

205 5.06

206 5.90

207 7.07

208 2.83

209 9.21

210 3.97

211 7.08

212 10.08

(P-27, P-28).

“500” Series

Grade Years Greater Seniority

of Females

503 2.69

504 6.36

505 5.99

506 4.32

507 9.60

508 6.03

509 10.03

510 8.19

S11 6.50

512 8.01

(P-28(b))

59a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

The same is true within the remaining job categories at

Western. For example, between 1972 and 1975, within the

Technical category, 5 males were promoted to the position of

Information Associate; no women were promoted to this

position. During this same period, 14 males and only | female

were promoted to the position of Engineering Associate.

(Exhibit P-74). During these same years, within the Professional

category there were 27 promotions within the ANSE

(Administrative Non-Supervisor Employee) position. Only

14.8% of these promotions went to women. It was not until

1977 that a female was promoted to an ANSE-3 job (Exhibit D-

204) and, to date, no woman has held an ANSE-4 job, whether

by hire, promotion or transfer. (Exhibits D-204; P-74).

Moreover, those women within the ANSE category have been

clustered into ANSE-1 positions from which no promotion is

possible, in jobs such as Pioneer Representative, Dietician.

(Exhibits D-204; P-91(a)). Similarly, during this same period, 5

males and no females were promoted to Senior Information

Systems Staff member; 22 males and 7 females were promoted

to Information Systems Staff member. (Exhibit P-74).8

Vil. PARTICIPATION IN TRAINING PROGRAMS AT

WESTERN

Training programs have a great impact at Western. Having

heard the testimony of nearly two score of Western’s former and

present supervisors, and having studied their employment

histories, the Court was struck by the fact that nearly all of them

rose from what are generally considered “blue collar” jobs to

important supervisory positions in fields unrelated to those into

which they were first hired.

8. Also within the Professional category is the position of Engineer which

will be discussed infra in connection with Kyriazi’s individual case.

60a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Western has operated two programs to train individuals for

jobs in supervision: the Shop Staff Training Program and a

program which hires staff trainees.

The Shop Staff Training Program trains individuals with

shop backgrounds for positions as section chiefs. (Vines, 13:

1372; 15: 1492; Exhibit D-211). During the years 1964, 1965,

1966, 1970, 1973 and 1975, only 4 females participated in this

program as compared to 64 males. (Exhibit P-30). It was not

until 1970 that a female participated in this program at all.

Although the pool from which these trainees are drawn is the

operative classifications, females within this pool were largely

ignored even after 1970:

Percentage of Women

Within Operative Percentage of

Year Classifications Women Trainees

1970 42% 5%

1973 46% 8%

1974 47% 16%

(Exhibits P-30; P-76, Tab 6; P-77, Tab 5; D-204, Tab 1970).

The second program which trains individuals to become

section chiefs draws from new employees hired into the

classification denominated ANSE-I Staff Trainee. (Vines, 14:

1400; 15: 1492; Exhibit P-91(a); P-18). During the period from

1967 through 1976, no female was ever hired into this

classification while 58 males were hired. (Vines, 14: 1400;

Exhibit P-74). Western has failed to explain this disparity.

Western also operates a training program for technical-

professional employees at its Corporate Education Center in

6la

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

Princeton. (Kubicki, 15: 1566). Female professionals who were

selected to participate in this program were encouraged to take

courses in such non-technical areas as “Creative Thinking”,

which could not lead to any substantial career advancement.

(Exhibit D-211).

Western has also operated two programs designed to train

individuals in skilled crafts: the Apprenticeship Training

Program and the Plant Trades Training Program. In order to be

eligible for entry into these programs, a candidate had to have a

working knowledge of a particular craft. Western has produced

evidence that the pool from which it draws participants in these

programs consists of vocational school graduates, who are

almost exclusively males. (Schmaydey, 42: 5166; Vines, 14: 1497;

Killman 42: 5173). Accordingly, with respect to these two

programs, the Court finds that the failure to select women was

not the result of discrimination.

VIII. LAYOFFS

The Kearny workforce has been declining over the past ten

years. In 1968, there were 14,502 employees; in 1970, there were

13,000 employees; in 1976, there were 8,000 employees and by

May, 1977, Western’s workforce was reduced to 7,133

employees. (Exhibit D-204). Of the approximately 5,284

employees whom Western laid off between 1970 and 1976, 63%

-were women while only 37% were male. (Vines, 13: 1349-50,

1553; Exhibit P-17). An examination of the procedures

governing layoffs sheds light on this disparity.

The collective bargaining agreement in effect prior to

August, 1974 (“the 1971 Agreement”) provided, in essence, that

individuals would be laid off by occupation and grade, in inverse

order of seniority. Thus, under this system, the line supervisor

62a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

would declare a surplus, and the surplus would then be pegged

to an occupation, grade level and department chief's

organization. (Vines, 15: 1518; Grider, 54: 5542-3). The

individual with the least seniority within that occupation, grade

level and department chief's organization was the one laid off.

However, management retained complete discretion not to lay

an individual off. (Vines, 14: 1424-5).

If management chose to retain a surplus employee, they had

the option to either transfer him laterally if there was a vacancy

within his grade level, or, if that proved unsuccessful, to “bump”

him down. (Grider, 45: 5513-5).

The “bumping” process worked essentially as follows. An

employee may bump down only within his own occupation, but,

even then, he may not bump an employee with greater seniority.

Thus, for example, if a surplus were declared at the level of

grade 34 benchman, the individual within that grade with the

least seniority would either be laid off, or if management so

chose, he would “bump” a grade 33 benchman with less

seniority.

While seniority was a factor in the “bumping down”

process, there was no such thing as “bumping up”. (Vines, 15:

1515). Thus, if a surplus were declared at grade 32, a grade 32

worker with twenty years seniority could be laid off even if there

were a grade 33 worker within that occupation with only two

years seniority.

Effective August 1974, Western entered into a new

collective bargaining agreement with Local 1470, covering

63a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

operatives, service workers, “200” clericalsand crafts.2 Under

that agreement, employees in the lowest grades (32, 202 and

entry levels 33 or 203) were to be laid off regardless of where the

surplus lay and before employees in the next highest grade could

be laid off. Thus, that agreement, in effect, provided for the

opposite of L-I-F-O.'° in that a class of employees had to be

cleared out, regardless of seniority, before employees in the next

highest grade could be laid off. (Grider, 45: 5516). Only then

would a surplus be declared, and the process of “bumping”

would begin. Ar the time that agreement was negotiated, 90% of

all grade 32 workers were female; 80% in the grade 202-203

category were female. (Exhibits P-77; D-204).

Plaintiff's statistics demonstrate that, under both collective

bargaining agreements, women were laid off in disproportionate

9. The collective bargaining agreement effective August 14, 1974

(hereinafter the “1974 Agreement”) provided that when lack of work

necessitated decreasing the workforce, it would be accomplished in the

following manner (P-86(b)):

(a) employees in Grades 32, 202 and entry level Grades

33 or 203 would be laid off first in inverse order of security

(without regard to where the surplus actually existed);

(b) the surplus would then be identified by occupation,

grade and Department Chief's organization;

Manager's organization for employees with less than ten

years service and plantwide for those with more than ten

years service.

10. LIFO means the last-in-first-out. In collective bargaining the term

commonly used having the same meaning is strict-seniority-plantwide

vithout regard to department or occupation (Lenz, 47: 5739). In a LIFO or

strict-seniority-plantwide situation, an employee is permitted to displace a less

senior employee regardless of occupation. (Lenz, 47: 5740).

64a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

numbers, seniority notwithstanding, and that they were

“bumped” by men. For example, Exhibit D-204 demonstrates

that within five different grade 32 occupations, the numbers of

women relative to the number of men changed drastically

between 1970 and 1977. While in 1970 there were 90 female (and

no male) grade 32 adjusters, by 1977, there were 51 females and

33 males within this grade and occupation. Similarly, in 1970

there were 648 female grade 32 benchhands; in 1977, there were

only 275 females within this grade and occupation, while within

this same period the number of men had increased from 66 to

214:

Appendix B — Opinion of the United States District Court for the District of New Jersey Dated October 30, 1978, as Amended November 22, 1978

1/15/71 1/10/72 12/4/72 1/6/74 12/2/74 12/1/75 1/3/77

1/10/70

32 32

32 32 32

OCCUPATION

TITLE

131

Adjuster

146 251

145 264

446

496

50 44i 468 61

36 466

72 654

Assembler *

567 210 344 214 275

40 648

30 404

648

Benchhand

24 21

42 41

Coil Winder

65a

196

32 244

382

Wireman

(Comparison of Seniority of Men and Women)

1976

1974

Av.M

Av.F

Av.M

Av.F

Ser.

Date

Ser.

Total

Ser.

Total

Date

EES

%F Date Date

EES

GRADE 32*

70 59-12 56-11

393

98 67-2 68-7

102

492

Adjuster

57-7

58-12

55-8

60-11

56-2

62-5 68-7

Assembler

493

222

67-9

100

611

Coil Winder

Benchhand

Wireman

57-5

654

63-4

616

61-6

64-4

(Exhibits P-218, P-220, P-222).

68-6

365

66a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

1X. WAGES

By overwhelming statistical evidence, plaintiff has

established that women at Western earn less than men. This

result is not surprising; indeed any other would be, given

Western’s policies which slot women initially into lower grades,

exclude them totally from certain kinds of work, overlook them

for advanced training and promotion, and lay them off in trmes

of business adversity. All that being so, however, the Court finds

that at this time it is virtually impossible to fix a monetary value

on either what all the women employees in the class have lost, or

what any one of them—exclusive of the plaintiff herself—may

have lost as a result of Western’s discriminatory employment

practices. The Court, at least at this stage, is simply not prepared

to accept or adopt the regression analysis of plaintiff's expert,

Dr. John Ullman. The Court found Dr. Ullman’s testimony

unhelpful in determining this issue, in large part because his

criteria and their valuations were quite arbitrary and subjective,

and, frankly, in larger part because his testimony was simply not

comprehensible to the Court. There will have to be a second

stage in this case, at which time we will determine the amount of

damages the class or any member of it, has sustained. It is

sufficient for now to find that wages have been lost by women as

a result of sex discrimination by Western and to reserve for later

the determination of just how much.

X. OTHER EVIDENCE OF DISCRIMINATION AT

WESTERN

Were this merely a case based on statistics, we would

already be satisfied that the plaintiff has discharged her burden;

indeed, under Teamsters, supra, a statistical showing such as this

would compel that result. However, we have before us the rare

Reet ee

67a

Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

case in which the plaintiff, in addition to the circumstantial

evidence of her statistical case, has produced direct evidence of

discriminatory intent. Plaintiff here has done more than provide

the Court with cold statistics; she has exposed the very attitudes

which produced those statistics in the first place; attitudes held

by individuals in key positions at Western, which regard certain

jobs as suitable for men only, and others—inevitably the lowest

paying—as suitable for women only.

We turn first to the “Requisition for Personnel” forms.

The history of the “Requisition for Personnel” forms—their

alteration by employees of the defendant and their eventual

discovery by the plg¢intiff—was the subject of an earlier opinion

by this Court:

Plaintiff's counsel, on March 31, 1976, while

conducting discovery on the Western premises,

came upon certain documents—Requisitions for

Personnel—the existence of which had

theretofore been unknown to plaintiff. These

Requisitions were forms sent by a company

supervisor to the Western Personnel Office when

a supervisor had a position to fill within his

department. Only three such Requisition forms

were found, each stapled to Placement Lists

which had but recently been made available to

plaintiff through discovery. Because there were

hundreds of Placement Lists, all showing staple

markings, plaintiff's suspicions were aroused. She

wanted to know the whereabouts of the

remainder of the Requisition Forms. The answer

to this question seemed critical because the

Requisition forms contained blanks where a

68a 69a

Appendix B — Opinion of the United States District Court for Appendix B — Opinion of the United States District Court for

the District of New Jersey Dated October 30, 1978, as Amended the District of New Jersey Dated October 30, 1978, as Amended

November 22, 1978

supervisor, by making an X mark in the

appropriate space, could indicate whether he

preferred a male to fill the slot, or a female, or

whether he had no sex preference. At a

conference scheduled before the United States

Magistrate later that week, plaintiffs counsel,

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