Petition — Cooper v. Federal Reserve Bank of Richmond

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83-185

r a Office -Supreme Court, U.S.

No. 81-1536 ES Se

em AUG 4 1983

Supreme Court of the Huited States STEVAS,

Ocroser Term, 1983

Sytvia Cooper, et al.,

Petitioners,

FeperaL Reserve Bank or RIcHMOND.

Puyuuts Baxrer, et. al.,

Petitioners,

FeperaL Reserve Bank or RICHMOND.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. LeVonne CHAMBERS

JoHN NOCKLEBY

Chambers, Ferguson, Watt,

Wallas, Adkins & Fuller, P.A.

Suite 730

East S. Independence Boulevard

Charlotte, North Carolina 28202

JacK GREENBERG

O. Peter SHERWOOD

CHARLES STEPHEN Ratston

Eric SCHNAPPER*

Suite 2030

10 Columbus Circle

New York, New York 10019

(212) 586-8397

Counsel for Petitioners

* Counsel of Record

QUESTIONS PRESENTED

1. Did the Court of Appeals err

in holding that a prior finding that any

pattern or practice of employment discrimi-

nation was not "“"pervasive”™ precludes,

as a matter of res judicata, all employees

from litigating any individual claims

of discrimination?

2. Did the Court of Appeals violate

the principles of Pullman-Standard Co. v.

Swint, 456 U.S. 273 (1982) when it held that

the trial court's finding of intentionai

discrimination was "a statement of ultimate

fact ... not a finding of fact reviewable

under the ‘clearly erroneous' rule"?

3. Does Rule 52, F.R.C.P., authorize

the appellate courts to reconsider de novo

or give little weight to the decision of a

district court merely because the lower

court based its findings of fact on pro-

posed findings submitted by counsel at the

direction of the court?

> 44 =

PARTIES

The parties to this proceeding are

Sylvia Cooper, Constance Russell, Helen

Moore, Elmore Hannah, Jr., Phyllis Baxter,

Brenda Gilliam, Glenda Knotts, Alfred

Harrison, Sherri McCorkle, the Federal

Reserve Bank of Richmond, and a class

composed of all black persons who were

employed at the Charlotte facilities of

the Bank at any time between January 3,

1974, and September 8, 1980, who were

subjected to employment discrimination on

the basis of race. The Equal Employment

Opportunity Commission was a party to the

Cooper action in the courts below.

~ iii -

TABLE OF CONTENTS

Questions Presented ee ew ee eS Oe Roe eS es 66 e@. 6 2 eae ee

Parties

eoeeeeneeeeeeeeeneeneeeneeeeeeeeeeeeeee

Table of Authorities soeeeeeneeeeeeeeneeeeeee

Opinions Below eoeeteeeeeepteeneeeeneeeneeeeeeeee#ee

Jurisdiction eoeeeoeeeeneteeneeeeeeeneeeneeneeeeeseee

Rule Involved eoeenereeensteeneneeteeeneeneeeneee#eeeee

PEREGMORES CE EHO COBO cdccsscceseséccrvecece

Reasons for Granting the Writ ...cseeeeees

II.

Ill.

Certiorari Should Be Granted to

Resolve A Conflict Among the

Courts of Appeals Regarding

Whether A Finding of No Pervasive

Pattern and Practice of Discrimi-

nation Bars All Individual

Claims of Discrimination Because

OF ROG TUGSGHER cécdcrvonervecveoces

Certiorari Should Be Granted to

Resolve A Conflict Among the

Courts of Appeals Regarding the

Use of Proposed Findings Prepared

by Counsel for a Party ...cceeees

The Decision of the Court of

Appeals Is Inconsistent With

Pullman-Standard Co. v. Swint,

SSO Uels STS CAME) -cesiv-ccsccves

- iv-

Page

Conclusion eeeesoeeeeeteensteeeneeneteeneneeneeneeeeeeeee & 41

APPENDIX

Opinion of the Court of Appeals,

January li, 1983 *eeneeentenseteeentes#se#eee#e#ee?#* 2a

Order of the Court of Appeals

Denying Rehearing, April 6, 1983 .. 186a

Order of the Court of Appeals

Denying Rehearing En Banc,

April 6, 1983 evwenreeentenserensteeeeeeeeeee 188a

District Court Memorandum of Decision,

October 30, 1980 e*eneeneeeeeeseeeeeee#ees 191la

District Court Findings of Fact and

Conclusions of Law, May 29, 1981 .. 197a

District Court Order, May 29, 1981 .. 286a

District Court Order, February 26,

1982 eeeeeeeeeeeeeeseswvseeneeeeeneeeeeeeeeee 290a

- Yo

TABLE OF AUTHORITIES

Cases:

Amstar Corporation v. Domino's Pizza, Inc.,

615 F.2d $52 (Sth Cir. 19860) ‘acccccccee

Askew v. United States, 680 F.2d 1206

(8th Cir. 1982) *oeneeeteenetenteeseeee#eeneneee#eesese#e

Bradley v. Maryland Casualty Co.,

382 F.2d 415 (8th Cir. 1967) weccccccecs

Bogard v. Cook, 586 F.2d 399

(5th Citas 1978) eoe*eeseieeeeeeeneeeneeneeeneeeee#ee

Chicopee Manufacturing Corp. v. Kendall

Co., 288 F.2d 719 (4th Cir. 1961) .....

Connecticut v. Teal, U.S. ’

73 L.Ed. 2d 130 (1982) eeeeteeneneeeneeeeeee#s

Continuous Curve Contact Lenses v. Rynco

Scientific Corp., 680 F.2d 605 (9th

Cie. 1982) e*eeeeeeseseneeneeneteeeeneneeeneneneeeeee

Cuthbertson v. Biggers Brothers, Inc.,

(4th Cir.) (slip opinion, March 9,

1983) e*e*eeeeeeeeeneteenseneneteenerteeeeeeeeeeeeeee#ees

Dickerson v. United States Steel, 582

F.2d 827 (3d Cir. 1978) *eeeseeeeeeet#3sees#ee#ee¢

Eastland v. T.V.A., F.2d

(llth Cir. 1983) eoeeeneeeseenstenseeneeeneeeeeeee

Franks v. Bowman Transportation Co.,

424 U.S. 74 ( 976) eeeeveeeeeeveeee eevee

Furnco Construction Co. v. Waters,

438 U.S. 567 (1978) eeeeoeeeeneeeeeneeeeeee

- vi -

Page

23, 29

23, 24

25, 30

14-15

16, 17

Halkin v. Helms, 598 F.2d 1

(D.C. Cir. 1978) oeeeeeeeeeeeeeeeeeeeee 20

Hill & Range Songs, Inc. v. Fred Rose

Music, Inc., 570 F.2d 554

(6th Cir... 1978) wccccccccccccvcccsecesses ar

Holsey v. Armour, 683 F.2d 864

(4th Cir. 1982) *enereieeeeeeneeeneeeenete#eet e#¢#e#e#eee 27

In Re Las Colinas, Inc.,

426 F.2d 1005 (lst Cir. 1970) ccccccese 255 4

International Controls Corp. v. Vesco,

490 F.2d 1334 (2d Cir. 1974) wecceeeeee 25

Kelson v. United States, 503 F.2d 1291

(10th Cir, 1974) e*e*e eeeestee#eeseeee#e#se#ee#see#eee#e#eee#se#«# 23

Marshall v. Kirkland, 602 F.2d 1282

(8th Cir. 1979) *enereeeesee#e#83eeensteeeeee#e*#e 14

Mississippi Valley Barge Line Co. v.

Cooper Terminals, 217 F.2d 321

(7th Cir. 1954) e*eeseeoeeeenseteeeeneeeeeeeeneeee 22

O'Leary v. Liggett Drug Co.,

150 F.2d 656 (6th Cir. 1946). eeeeeveveee 21

Pullman-Standard Co. v. Swint, 456 U.S.

273 (1982) eseeeeseeeeeseeeeeneeeneeneeeeeneeneee T° 38,

Ramey Construction Co. v. Apache Tribe,

616 F.2d 464 (10th Cir. 1980) ......... 25, 26

Roberts v. Ross, 344 F.2d 747

(3d Cir. 1965) e*eeeeeeeeeneeseeeeoeeeneeneeeeee 23, 24

Saco-Lowell Shops v. Reynolds,

141 F.2d 587 (4th Cir. 1944) eeeeeeeveee 19, 26

- vii -

Page

Schilling v. Schwitzer-Cummins Co.,

142 P.24 82 (D.C.Cir. 1944) “accocccccsce 241

Scheller-Globe Corp. v. Milsco Mfg. Co.,

636 P.26 177 (7th Cir. 1980) cecccosses, 22

Schlensky v. Dorsey, 574 F.2d 131

(3d €ir. 1978) eoe*eeseieeeeenteeeneteeneeneeneeeeee@# 23

Schwerman Trucking Co. v. Gartland

Steamship Co., 496 F.2d 466

(8th Civ 1974) eoeeeoeoeeeeeneeeneeneteeneeee#ee#e# 22

The Severance, 152 F.2d 916

(4th Ci. 1945) *eeeeneeneeneensee#see#fee#e#e#e#feese#e## 26

Teamsters v. United States, 431 U.S.

324 (1977) e*eneeeeenstreezsesesee#een#e#see#eenee#eee#eee#ee#ee#8se’:. 16, 17

United States v. Crescent Amusement Co.,

323 i? - 173 (1945) e*eeeneeenensesneeeneeeee#sees 37

United States v. El Paso Natural Gas

Coe, 376 U.S. 651 (1964) eoeeveeveeeeeeeee 37

White v. Carolina Paperboard Corp.,

564 P.2d 1073 (4th Cir. 1977) cecccccee 27

Statutes:

28 U.8.C. § 1254(1) eoeeeoeeeeeeeeeeeneeneeeneee 3

42 7.846. 5 2000e-5 eeeeoeeeeeeeeeeeeeeeeee 5

- viii -

Rules:

Rule 23(a), Federal Rules of

Pewee PEED ceccldicoccsccceoeccccoce

Rule 52(a), Federal Rules of Civil

Procedure se @ewee#eeneenrteenrteenrene#ee#fkieee#e#r#keee#e#eeee#etee#ee

Rule 19.4, Supreme Court RuleS ...ceeeeees

a ie =

Page

UNITED STATES SUPREME COURT

October Term, 1983

No. 81-1536

SYLVIA COOPER, et al.,

Petitioners

Vv.

FEDERAL RESERVE BANK OF RICHMOND

PHYLLIS BAXTER, et al.,

Petitioners,

Vv.

FEDERAL RESERVE BANK OF RICHMOND,

SSSSSSssSsssSsSSsSsSSssSsSss sees seesesszsaseszz=z

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE FOURTH CIRCUIT

Petitioners Sylvia Cooper, et al., and

Phyllis Baxter, et al., respectfully pray

that a Writ of Certiorari issue to review

the judgment and opinion of the United

States Court of Appeais for the Fourth

Circuit entered in this proceeding on

January 1l, 1983. Civil actions commenced

separately by petitioners Cooper and Baxter

were consolidated in the court of appeals;

a joint petition is being filed pursuant

to Rule 19.4 of this Court.

OPINIONS BELOW

The decision of the court of appeals

is reported at 698 F.2d 633, and is set

Out at pp. 2a- 185a of the Appendix. The

order denying rehearing, which is not yet

reported, is set out at p. 186a. The

district court's Memorandum Decision of

October 30, 1980, is not reported, and

is set out at pp. 191a-96a. The district

court's Findings of Fact and Conclusions

of Law, which is not reported is set out

at pp. 197a-285a. The district court orders

of May 29, 1981, and February 26, 1982,

which are not reported, are set forth at pp.

Pr A 290a-97a respectively.

-3«

“

JURISDICTION

The judgment of the Court of Appeals

was entered oon January ll, 1983. A timely

Petition for Rehearing was filed, which was

denied on April 6, 1983 by an equally

divided court. (App. p. 186a) This Court

granted an extension of time in which to

file the Petition for Writ of Certiorari

until August 4, 1983. Jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

RULE INVOLVED

Rule 52(a), Federal Rules of Civil

Procedure, provides:

In 11 actions tried upon the facts

without a jury or with an advisory

jury, the court shall find the facts

specially and state separately its

conclusions of law thereon, and

judgment shall be entered pursuant

to Rule 58; and in granting or refus-

ing interlocutory injunctions the court

shall similarly set forth the find-

ings of fact and conclusions of law

which constitute the grounds of its

action. Requests for findings are not

necessary for purposes of review.

Pindings of fact shall not be set aside

unless clearly erroneous, and due

regard shall be given to the opportun-

ity of the trial court to judge of the

credibility of the witnesses. The

findings of a master, to the extent

that the court adopts them, shall be

considered as the findings of the

court. If an opinion or memorandum of

decision is filed, it will be suffi-

cient if the findings of fact and

conclusions of law appear therein.

Findings of fact and conclusions of law

are unnecessary on decisions of motions

under Rules 12 or 56 or any other

motion except as provided in Rule

41(b).

STATEMENT OF THE CASE

This petition involves two related

proceedings which were consolidated in the

court of appeals for argument and decision.

Cooper Plaintiffs: On March 22, 1977

the EEOC brought suit against the Federal

Reserve Bank of Richmond alleging that the

Bank had discriminated against black employ-

ees in making promotions at its Charlotte,

North Carolina facilities, and that it had

discriminated in particular against Sylvia

Cooper because of her race, first by refus-

ing to promote her to a supervisory position

and then by discharging her. Jurisdiction

was asserted under 42 U.S.C. 2000e-5. On

September 21, 1977, Cooper and three other

present or former Bank employees (the

"Cooper plaintiffs") were permitted to

intervene as plaintiffs. On April 28, 1978,

the district court certified a plaintiff

class consisting of blacks who had been

employed at the Bank's Charlotte branch

Since January 3, 1974, and had been dis-

crimminated against on the basis of race.

The case was tried without a jury in

September, 1980. On October 30, 1980, the

district court issued a Memorandum of

Decision which held that the Bank had

discriminated against Cooper and another

intervenor, but concluding that no such

discrimination had been shown regarding

the other two intervenors. The trial court

also concluded that the Bank had engaged in

a pattern and practice of discrimination

in denying promotions to black employees

in pay grades 4 and 5.

The district court directed counsel

for the plaintiffs to propose more detailed

"findings of fact and conclusions of law

consistent with [its] findings." 194a.

The plaintiff submitted the requested pro-

posed findings, and the defendant responded

with comments and objections of its own. On

May 29, 1981, the district court issued

proposed findings substantially similar to

those urged by plaintiff. 197a-285a.

On appeal the Fourth Circuit held that

the finding of discrimination contained

in the district court's October 30, 1980

Memorandum was "a statement of ultimate

fact ... mot ... reviewable under the

‘clearly erroneous’ rule." 15a. The

court of appeals ruled that the more

detailed findings issued by the district

court were to be subject to a special

"careful scrutiny” (23a) because based

on findings proposed by counsel, a practice

the appellate court expressly disapproved.

16a. The court of appeals then undertook

an exhaustive 25,000 word re-examination

of the evidence considered by the trial

judge, and reversed each of his findings of

discrimination. Petitioners sought rehearing

en banc in the Fourth Circuit, urging inter

alia that the panel's decision exceeded

the bounds of appellate review permitted

by Rule 52(a), Federal Rules of Civil

Procedure, and by this Court's decision in

Pullman-Standard Co. v. Swint, 456 U.S.

273 (1982). Rehearing en banc was denied by

an equally divided court, judges Winter,

Phillips, Murnaghan and Sprouse all having

voted to reconsider the panel decision.

Baxter Plaintiffs

At the trial of the Cooper class

action the plaintiffs presented testimony

from a number of class member witnesses,

including Phyllis Baxter, Brenda Gilliam,

Glenda Knott and Sherri McCorkle (the

"Baxter plaintiffs"), all of whom held

job grades 6 or above. The Bank success-

fully argued that the district court should

receive the class members' testimony

Only as it related to the pattern and

practice allegation, and that the court

should not pass on the merits of these

witnesses' individual claims. The trial

court ruled that the individual claims

of the Baxter plaintiffs would not be heard,

and that the Court would not consider their

testimony except insofar as it tended to

establish the existence of a class-wide

pattern and practice of discrimination.

After trial, the district court issued

a Memorandum of Decision in the Cooper lit-

igation holding that the class had demon-

strated a discriminatory pattern of promo-

tions out of grades 4 and 5. However, with

respect to promotions out of grades 6 and

above, the Court held:

There does not appear to be a

‘pattern and practice pervasive

enough for the court to order

relief. 194a. (emphasis added)

The trial court did not, however, rule that

there had been no discrimination in grades 6

and above.

Shortly after receiving the trial

court's Memorandum in Cooper, the Baxter

plaintiffs sought to intervene in that

action. Again, as it had done during

trial, defendant's counsel opposed hearing

the individual claims of the Baxter plain-

@ 10=

tiffs in the context of the Cooper action.

In its memorandum in opposition to the

motion to intervene, the defendant assured

the district court that denying interven-

tion would not preclude a separate subse-

quent action by the Baxter plaintiffs:

"There is no way there will be any

prejudice to applicants in denying

their motion [to intervene], since

they can pursue any individual

claims they have in separate pro-

ceedings." (Defendant's Response

to Motion to Intervene, p. 4.)

The district court denied the Baxter plain-

tiffs' Motion to Intervene in EEOC v.Cooper

on the very basis advanced by the defend-

ants, explaining:

I see no reason why, if any of the

would be intervenors are actively

interested in pursuing their

claims, they cannot file a §1981

suit next week, or why they could

not file a claim with EEOC next

week .... All motions for leave

to intervene are thus denied

without prejudice to any underly-

ing rights the intervenors may

have, 288a.

w= 91's

The Baxter plaintiffs promptly filed a

separate proceeding, styled Baxter, et al.

v. Federal Reserve Bank. Their Complaint

alleged that each had been discriminated

against in certain respects on an individual

basis. The Baxter plaintiffs did not claim

that the defendant had engaged in a pattern

of discrimination against a class of black

employees. The defendant moved to dismiss

that new action, contending that the Cooper

decision barred it as a matter of res

judicata. The district court denied the

motion to dismiss, but certified the ques-

tion to the court of appeals (291a), which

reversed. 172a-85a. Upon consideration of

the Baxter plaintiffs' Petition for Rehear-

ing and Suggestion for Rehearing En Banc,

the Panel's decision was upheld by an

equally divided (4-4) Court. 188a.

» 42 «

REASONS FOR GRANTING THE WRIT

I. Certiorari Should Be Granted To Resolve

A Conflict Among the Courts of Appeals

Regarding Whether A Finding of No Pervasive

Pattern and Practice of Discrimination Bars

All Individual Claims of Discrimination

Because of Res Judicata

The Fourth Circuit's decision that the

rejection of a class-wide pattern and prac-

tice discrimination claim bars all indivi-

dual discrimination claims is squarely in

conflict with what has hitherto been the

uniform view of the other courts of appeals

which have considered this issue. In

Dickerson v. United States Steel, 582 F.2d

827 (3d Cir. 1978),#the Third Circuit

rejected the identical argument made by the

Bank in this case:

The Company contends that, as a

threshold matter, the district court's

dismissal of a class-wide claim bars

individual lawsuits under that claim by

class member witnesses .... The class

claims were not examined as a mere

aggregation of individual claims, as

the Company's argument suggests.

Rather, the district court looked to

o 43 «

Statistical evidence offered to support

the existence of a practice or pattern

of discrimination .... The district

court's finding of an absence of

Cclass-wide discrimination is not

necessarily inconsistent with a claim

that discrete, isolated instances

of discrimination occurred, for which

the statis tical evidence of a pattern

of discrimination may have been

lacking; there may have been suffi-

cient evidence to establish a prima

facie case of discrimination directed

against specific employees. There-

fore, the court's decision as to

class-wide claims of discrimination

does not, as a@ matter of res judi-

cata, bar class members from assert-

ing individual claims of personal

discrimination.

582 F.2d at 830-31.

In Bogard v. Cook, 586 F.2d 399 (5th

Cir. 1978), the Fifth Circuit held that

an individual prison inmate who had testi-

fied during an earlier class action regard-

ing prison conditions could still litigate

the defendant's particular treatment of

him, and was not barred by that earlier

prison-wide class action. The court of

appeals emphasized that the prior litiga-

» 14 <-

tion had not specifically adjudicated

Bogard's personal claim, and expressed

doubts as to whether the district court

would have been willing to resolve such

individual questions in the context of

the class litigation. 586 F.2d at 409. In

Marshall v. Kirkland, 602 F.2d 1282 (8th

Cir. 1979), the plaintiffs in a class

action had sought individual relief for

only certain members of the class. The

Eighth Circuit held that relief for other

individuals could not be obtained on

appeal, but stressed

Our determination is “without prej-

udice”" to the right of the other

members of this class ... to initiate

a new action if they see fit. eoce

[C] lass members whose claims were

not actually litigated should not

be estopped by res judicata.

602 F.2d at 1282.

Recently, the Eleventh Circuit reached

a result inherentily inconsistent with

the Fourth Circuit's holding. In Eastland

v. T.V.A., F.2d (llth Cir. 1983),

the court affirmed the district court's

determination that there was no class

discrimination, but reversed its finding

of no discrimination against certain class

members. That decision conflicts squarely

with the Fourth Circuit's holding that a

finding of no class discrimination disposes

of all individual claims as well.

The decision of the Fourth Circuit

conflicts as well with the decisions of

this Court. Furnco Construction Co.

v. Waters, 438 U.S. 567 (1978) makes clear

that the absence of a general policy of

discrimination “cannot immunize an employer

for liability for specific acts of dis-

crimination.” 438 U.S. at 579. It empha-

sized that the existence of a racially

balanced workforce, while relevant to

a claim that a particular employment action

was racially motivated, could not "conclu-

= 1§ «

sively demonstrate” the ebsence of such a

motive. 438 U.S. at 580 (emphasis added).