# Petition — Western Electric Co. v. Stern > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0771%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 916 ## Text Supreme Court of the Unit In The > October Term, 1979 No. 7 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 i 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 = oe hy iv 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 e) 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. 3 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. 4 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. 6 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 9 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;” 10 (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. 12 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 13 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. 14 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 15 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. 16 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 17 I. 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. 19 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. 20 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 21 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 22 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 23 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) 24 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). 25 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. a 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). 26 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. 27 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; 2a 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 3a 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. 4a 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 5a 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 6a 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. 7a 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: I 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). IV 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. V 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...” 9a 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. VI 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 $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. IX 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 1. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0771%3A1. Public record. Not legal advice.