Opposition Brief — Armour & Co. v. Holsey

ub) | FI LR D US]

NO. rash 7 FEB 14 1995

IN THE

SUPREME COURT OF THE UNITED STATES —_

OCTOBER TERM, 1984

ARMOUR & COMPANY,

Petitioner,

Vv.

CURTIS HOLSEY, JACKIE DRAKEFORD, JULIUS

FRAZIER, MYNELL BENNETT, JANNIE HILL,

LAURA HARVEY, LINWOOD EDWARDS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEAIS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

JONATHAN WALLAS

JOHN T. NOCKLEBY*

Ferguson, Watt, Wallas &

Adkins, P.A.

951 S. Independence Blvd.

Charlotte, NC 28202

(704) 375-8461

J. LeVONNE CHAMBERS

ERIC SCHNAPPER '

NAACP Legal Defense Fund

99 Hudson Street -16th Floor

New York, New York 10013

(212) 219- 1900

Counsel for Respondents

*Counsel ot Record

QUESTIONS PRESENTED

1. Did the district court abuse its

‘Sudicial administration"discretion under

Cooper v. Federal Reserve Bank, a -

(1984), in ruling on claims fully

litigated at trial?

2. Did the district court abuse

its discretion in certifying the class?

TABLE OF CONTENTS

Page

Table of Authorities ii

Statement of the Case 1

REASONS FOR DENYING THE WRIT 7

I. The Lower Courts'

Decision Refusing

Petitioner's Request

to Relitigate Claims

That Had Been Fully

Litigated at Trial

is Consistent With

Cooper v. Federal

Reserve Bank 7

II. The Class Certification

Issues Do Not Warrant

Review 10

Conclusion 17

TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody,

a ais Me CEOID) pecovvcsencore 15

Cooper v. Federal Reserve Bank,

u.8. , 104 §.Ct. 2794

ee code |

EEOC v. General Electric,

532 F.2d 339 (4th Cir. 1976).... 15

General Telephone Co. v. Falcon,

er as Be BEOEEP coccvcvees a, 6, 46

-ii-

Kelley v. Norfolk & Western

Ry., 584 F.2d 34 (4th Cir. 1978 ....

Patterson v. General Motors

Corp., 631 F.2d 476 7th Cir.

SOs bk kc 30s Pe eeat nee teers 3,

Sanchez v. Standard Brands,

431. 7.26 455 (Sth Cir. E970) sce

Sledge v. J.P. Stevens, 585 F.2d

623 CAG CEP. Sere) «ese aeeeasuseaee

Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248

(LOGE) ec veccendnscestaase :4,9, 16,

United States v. Teamsters,

G3L Gib. 225 CASLT + hteeseceauauees

Statutes:

SS G.8.C. SSRee tionesees cen keueeaes

42 U.S.C. 92000e et. seq. (Title

VII of the Civil Rights Act of

BPO s 6k ctieens 08 E60 ebSOEENT ENERO

-iii-

12

17

Statement of the Case

On March 4, 1977 Curtis Holsey, Jackie

Drakeford and Julius Frazier instituted

this action against Armour & Company and

the United Food and Commercial Workers

International Union alleging that Armour

and the Union had engaged in certain

racially discriminatory employment practices

affecting the plaintiffs and a class of

employees and applicants for employment in

violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §2000e

et seq. and 42 U.S.C. 61961." Holsey,

Frazier and Drakeford had previously filed

charges of discrimination with the Equal

Employment Opportunity Commission (EEOC)

on March 7, 1974. On June 2, 1977, Mynell

Bennett was allowed to intervene in the

proceeding as a named plaintiff, follow-

ing receipt of a right to sue letter based

_1/ The claims against the union were

dismissed and are not at issue here.

a

on an EEOC charge she had filed on January

27, 1972. Bennett's charge alleged and the

EEOC stated, among other conclusions, that

the Company maintained segregated job

classifications in failing to hire or pro-

mote blacks into numerous supervisory and

sales jobs. (A. 110, 169-70)

On May 1, 1979, the district court

conditionally certified the class to in-

clude black applicants for employment and

employees at petitioner's Mecklenburg,

North Carolina facility who had been

affected by certain discriminatory employ-

ment practices. (A. 162) At trial plain-

tiffs presented evidence that they and

their class, as well as intervenor Bennett

and plaintiff class members Harvey, Hill

ard Edwards, had personally suffered from

derendant's pattern of discrimination in

promotions to supervisory or sales jobs,

and that Armour had harassed and retaliated

against complaining black employees.

s%=

Armour had ample opportunity to put on

whatever evidence it saw fit to rebut

these claims, and introduced testimo-

nial and documentary evidence opposing

the contentions of each of the seven

individual claimants. (A. 228) At

no time prior to the district court's

ruling on the merits of the individual

claims did Armour ° raise any

objection to the lower court's adju-

dication of all litigated claims.

After trial, but before Judgment,

the district court allowed the three

plaintiff class members to formally

intervene as named representatives.

Subsequently, the district court

entered its Findings of Fact and Con-

clusions of Law. (A. 1-97)

On appeal, a divided panel of

the Fourth Circuit vacated the judg-

ment and remanded for reconsideration

of the findings of fact and conclusions

«fe

of law, and to consider the intervening

decision of Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248 (1981).

While the case was pending in the dis-

trict court, General Telephone Co. v.

Falcon, 457 U.S. 147 (1982), was issued.

The district court thereupon modified

the class definition but otherwise sub-

stantially reaffirmed its earlier find-

ings of discrimination.

The district court found that the

Company had discriminatorily denied

Holsey and Frazier bumping rights in

layoffs of hourly laborers. The Court

| also found that Drakeford and Harvey

were discriminatorily denied promotion

to sales jobs; that Drakeford, Edwards

and Harvey were discriminatorily denied

promotion to foremen jobs; and that

Bennett was denied appointment or pro-

motion to a permanent job because of reta-

liation and race. The lower court cited

o$<

numerous instances in which plaintiffs

and class members had been harassed and

retaliated against because of their

complaints about discrimination. The

district court concluded that Armour had

engaged in a pattern and practice of dis-

criminatorily refusing blacks promotions

to sales and supervisory jobs, and had

engaged in a "consistent practice" of

retaliating against blacks who complained.

(A. 189) The district court also found

that more than 40 to 60 black employees

annually had been affected by the

pattern of discrimination. (A. 163)

For example, although employing more than

100 persons in sales or supervisory

capacities between 1965 and 1977, the

district court found that the Company

failed to hire a single black in those

jobs until August 1, 1977. (A. 150, 153)

Harvey was told not to bother applying

because the Company did not hire blacks

-5-

in sales. (A. 147) When minorities pro-

tested discrimination, the Company con-

sistently retaliated against them, going

so far as deny one employee his right to

file a grievance, and threatening him that

if he went to the EEOC he'd "better win."

(A. 12-13; Tr. 365)

From these findings, Armour appealed

a second time, and a unanimous panel of

the Fourth Circuit affirmed in substantial

part. (A. 217-84) However, the panel

modified the promotion class in light of

Falcon to exclude nonemployee applicants,

and positions other than sales or super-

visory slots. (A. 272-75) The court of

appeals further concluded that petitioner

had "full opportunity" to defend the

individual claims, and had not demon-

strated any prejudice from the post-trial

intervention of the testifying class

members. (A. 227-29)

s6-

REASONS FOR DENYING THE WRIT

This case involves the routine exer-

cise by a district court of its judicial

administration and fact-finding functions,

and the familiar application of this

Court's precedents. The petitioner raises

issues which have not been properly pre-

sented to the lower courts. Moreover, the

issues raised involve no conflicts with

decisions of this Court or other courts

of appeal. Therefore review by this

Court is unwarranted.

I. The Lower Courts’ Decision

Refusing Petitioner's Request

to Relitigate Claims That

Had Been Fully Litigated at

Trial is Consistent With

Cooper v. Federal Reserve Bank.

Petitioner's argument that the lower

courts erred in adjudicating the plain-

tiffs' and the three intervenors' claims

that were fully litigated ignores this

Court's decision in Cooper v. Federal

Reserve Bank, U.S. , 206 §.Ct. 2794

(1984). Cooper held that "[w]hether the

a Fin

Ee

issues framed by the named plaintiffs

before the [trial] court should be expand-

ed to encompass the individual claims of

additional class members is a matter of

judicial administration that should be

decided in the first instance by the dis-

trict court." 104 S.Ct. at 2802. (emphasis

added)

Here, in exercising its administra-

tive discretion the district court held

full hearings on the three plaintiff class

members’ claims, as well as the claims of

the named plaintiffs and intervenor. As

noted by the appeals court, petitioner was

aware of these claims, had "full opportu-

nity’ to present rebuttal evidence, and in

fact "introduced evidence in opposition

to them." (A. 228) At no point has Armour

claimed it had additional evidence to present

on the individuals' claims. Moreover, peti-

tioner registered no objection at trial to

this procedure, nor at any time until after

oO-

=

pe _ : “)

= Vets

Adee Se.

_ 5 7 4 i od

, Lr , S

, e -

ASE,

é

” Fan ~~

Cam —@ Saen

os ier vie) |

gti: eae “) yi bey ie ey ayo direc sat ie

7 = a oa

f

sd eset p- oe bad a ce) 7 TE + 7S, > » als a oe a » 2a

12 a 7 : . 7 7 - — -

ay yw ite To a ~t vv re p wales {>

ST uft-wtis ,

‘tay Patera

ARS >= =e hed

r bier ain) 71, schni % 4 5 si

ees =

=e s: = decd Pa’ eins Py Bek

the lower court issued its ruling on the

merits of the claims. ‘Indeed, as notea

by the court below (A. 228), it is diffi-

cult to see how petitioner was harmed

since plaintiffs met the more rigorous

Burdine burden of proof than that re-

quired in Stage II proceedings pursuant

to United States v. Teamsters, 43l U.S.

324 (1977) in which defendant bears the

burden of proof.

In summary, petitioner had full

Opportunity to defend against the

claims, it failed to object prior to

decision on the merits to the proce-

dure followed by the district court;

no conflict among any circuits has

been shown; and the lower courts'

_2/ Petitioner cites another deci-

sion from the same circuit as the

opinion below, Sledge v. J.P. Stevens,

585 F.2d 625 (4th Cir. 1978)» which the

appeals court distinguished. The

court of appeals concluded that Sledge

is not in conflict, since Sledge dealt

with a class member who "was led to

believe that he would [not] be expected

(Footnote 2 continued)

> :

" BEST AVAILABLE COPY

decision falls squarely within Cooper's

holding concerning a district court's

ministerial function.

II. The Class Certification

Issues Do Not Warrant

Review.

The class certification issues

raised by petitioner involved a fact-

intensive investigation by the district

court into the nature of the claims.

Both lower courts modified the class

definition in compliance with Falcon's

guidelines, and petitioner has shown no

conflict with decisions of other courts

of appeals. One of petitioner's issues

was not even timely presented to the

lower courts.

2/(cont'd) to prove" his case until

a later stage of the proceeding. 585

F.2d at 637-38. (See A. 229) In con-

trast, petitioner here “had a full oppor-

tunity to defend against the intervenors' °

j claims, and it introduced evidence in

opposition to them." (A. 228)

nk

*

~ '

7 — *

-

By Dae ==

bis LY eo * e J¢ fed @ '

vt) Oe oe Ws at | — Sco

on : ;

& ig ONED S49 oi, 9.7

- > . 7

y : } 4 <= =! f * =

a te) Me i

A, a ks

7 an de |

- ea ;

Review of the district courts' find-

ings of fact regarding numerosity is un-

warranted. The district court found that

[m]jore than forty to sixty black employees

of the Company annually . . . have been

affected by the Company's practices"

(A. 163 (emphasis added)) during the nine

years prior to trial. While there exists

some overlap from year to year, the lower

courts found as a fact that joinder of

such large numbers of employees was im-

practical. As petitioner has not even

cited any case from this Court or other

courts of icc which purport to be in

conflict, review of these findings is

not justified.

_3/ Armour cites no decisions of this

Court or of any sister circuits which are

in conflict with the result below, and

respondents are unaware of any lower court

decisions holding that, as a matter of law,

the scores of black employees such as those

injured by the defendant's practices are

not sufficiently numerous to warrant class

treatment. Finding no conflict with other

circuits, petitioner cites a purported

? (Footnote _3/ cont'd)

ee ee enya Oe ee | ee ee re ee a er oe Bern

= ~~

bi

me

wa ele oe ee ee

—_-~ 7

-§ “nl ave a

= 2 ? | A ~t

i oar

coed

a0

7

Se ee ee ee tert lle NA AVAL S CoE. 4 neta

Armour also asks this Court to adopt

a rule of law stating that an employer's

consistent pattern of retaliation against

complaining black employees may never be

challenged in a class action, even where,

as here, the lower courts find that the

employer adopted a "pervasive" and '"'con-

sistent" practice of harassing every

black employee who cemplained of dis-

crimination. (See A. 189, 270) However,

as noted by the courts below, there is no

precedent for arbitrarily forbidding

class treatment of such common issues of

fact and law pursuant to the provisions

of Rule 23.

_3/ (cont'd) conflict with an earlier

decision in the same circuit. However,

the lower court specifically explained

why Kelley v. Norfolk & Western Ry.,

584 F.2d 34 (4th Cir. 1978), was in-

opposite (See A. 277-79). Review by

this Court is unwarranted merely to

assist the court of appeals in harmo-

nizing two of its own decisions.

Te

The dictum in Patterson v. General

Motors Corp., 631 F.2d 476 (7th Cir.

ee ee Oe a. coe or ee ew oot. ere tere So ane Cs

‘ he atl

pbizinn a

1980) is not in conflict with the deci-

sions below. Patterson affirmed a dis-

trict court's denial of class certifica-

tion since "plaintiff's action [met]

none of the requirements of Rule 23(a)."

631 F.2d at 482 (emphasis in original).

Indeed, the Patterson plaintiff com-

plained "solely" of his "personal grie-

vances," and he never "indicated that any

other employee has ever been discriminated

against in the same way or that there is

the likelihood of such a future class

ever existing."" Id. In summary, the

Patterson plaintiff had failed to meet

any of the Rule 23(a) requirements of

demonstrating impracticality of joinder,

typicality, commonality, and adequacy

of representation. Id. at 480-81.

Such factual distinctions between

aid.

id st

Patterson and the case at hand would

render review of such a purported "con-

al et ats Meal lt Satie TN Paes

flict’ meaningless.

Neck a ted SEES aa,

Finally, Armour contends that the

lower courts erred in utilizing Bennett's

SO ee ee eee ee

EEOC charge to determine the starting

point of class liability, despite the

to RM adsl Xan DTA rie te

fact that Bennett's charge raised all

the class issues and was the earliest

of the various EEOC charges. However,

Armour failed to raise this issue in

either the district court or in either

of its two appeals to the court of

appeals. Indeed, this issue first

appeared in Armour's Petition for Re-

hearing in the Court of Appeals after

the second appeal. Review should

therefore be denied as no lower court

has had the opportunity to even con-

sider Armour's contention.

In any event, the approach

followed here is consistent with

olb-

Albemarle Paper Co. v. Moody, 422 U.S.

405, 414 n.8 (1975), which reaffirmed

the principle that plaintiff class

members seeking back pay may rely on

the EEOC charge of another plaintiff

or class member, and by the standard

practice in the circuits holding that

Title VII's exhaustion requirement is

satisfied if the EEOC charge on which

the class action is based raises issues

"like or related" to those actually

litigated. See, e.g., Sanchez v.

Standard Brands, 431 F.2d 455 (5th Cir.

1970); EEOC v. General Electric, 532

F.2d 339 (4th Cir. 1976). The district

court found that Bennett's charge clearly

raised such issues. (A. 110, 169-70)

As the petitioner has cited no conflict

among the circuits in approaches to this

matter, review is not warranted.

Armour's argument that the lower

courts here failedto follow General

ok Se

eo

Be Te ea _

=

Swe ee

.

eee CU

“rT =

<q =

7 =

‘A ~

i '

ian

. +a

a - - a,

un es

7 re

: ri

ro ian

= a Le

7 - <—- p

; #2

ae ,

=

eda

fees ee

ath

~~

a)

i

Plas CY: a ES s ae

- a — _

je alsast

7 a

_ eis Tee © ae

Weal ate ude HA,

7) ) ; ates ~

%

a

a)

—_ @

rane

Telephone Co. of the Southwest v. Falcon,

457 U.S. 147 (1982), ignores the exten-

sive discussion of Falcon in the opinions

of both courts below. (A. 166-69; 270-

75) Indeed the court of appeals express-

ly relied on Falcon in exciuding appli-

cants from the class.

Armour also makes errors of fact

when it argues that Bennett may not

represent her fellow employees. The

lower courts found that Bennett was

an employee who was denied appointment

or promotion to a permanent job and

retaliatorily discharged when she

complained. The lower courts concluded

that she, as weil as Holsey, Drakeford,

Frazier, Harvey, Hill and Edwards were

together appropriate class representa-

tives and together satisfied the Rule

23 representational requirements.

(A. 276-77)

7

Determining who may appropriately

represent a class of black employees

requires delving into the particular

facts of the putative representatives’

claims. Here the lower courts properly

exercised their discretion in a routine

application of Falcon. The approach

followed below is consistent with

Falcon and sister circuits, and this

court need not waste its time repeating

the highly fact-specific inquiry already

scrupulously undertaken by these lower

courts.

Conclusion

The petition for a writ of certio-

rari should be denied.

4d.

This 12-day of February, 1985.

Respectfully submitted,

Fhe

ATHAN WALLAS

JOHN T. NOCKLEBY*

Ferguson, Watt, Wallas &

Adkins, P.A.

951 S. Independence Blvd.

Charlotte, NC 28202

(704) 375-8461

J. LeVONNE CHAMBERS

ERIC SCHNAPPER

NAACP Legal Defense Fund

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

Counsel for Respondents

*Counsel of Record

-18-