# Opposition Brief — Armour & Co. v. Holsey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1988%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1028 ## Text 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 =