Stallworth v. Monsanto Company Brief for Plaintiffs-Appellees
Public Court Documents
July 31, 1975

Cite this item
-
Brief Collection, LDF Court Filings. Stallworth v. Monsanto Company Brief for Plaintiffs-Appellees, 1975. f3347ef8-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/15c822f7-900a-4865-b26c-dedca51025e7/stallworth-v-monsanto-company-brief-for-plaintiffs-appellees. Accessed April 29, 2025.
Copied!
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 75-2405 EDDIE STALLWORTH, et al., Plaintiffs-Appellees, -v. - MONSANTO COMPANY, Defendant-Appellee , -v. - J. W. PALMER, et al., A.pplicants for Intervention-Appellants. On Appeal From The District Court For The Northern District of Florida BRIEF FOR PLAINTIFFS-APPELLEES KENT SPRIGGS 324 W. College Avenue Tallahassee, Florida 32301 JACK GREENBERG ELAINE R. JONES BARRY L. GOLDSTEIN Suite 2030, 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs-Appellees IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 75-2405 EDDIE STALLWORTH, et al., Plaintiffs-Appellees, -v. - MONSANTO COMPANY, Defendant-Appellee, -v. - J. W. PALMER, et al. , Applicants for Intervention-Appellants/ On Appeal From The District Court For The Northern District Of Florida CERTIFICATE REQUIRED BY LOCAL RULE 13 (a) The undersigned counsel for plaintiffs-appellees, in con formance with Local Rule 13 (a), certifies that the following listed parties have an interest in the outcome of this case. These representations are made in order that judges of this Court may evaluate possible disqualifications or recusal; Plaintiffs \ Eddie Stallworth Angelo Moutrie Fred Henderson Robert Davis Jonas Fairlie Jesse Ford Sam Bonham Ernestine Young Henry Golsten Charles Powe The class of black employees at Monsanto Company's Pensacola Plant, retired or otherwise terminated black employees, and discriminatorily rejected black job applicants represented by plaintiffs. Defendant Monsanto Company Applicants for Intervention J. W. Palmer Bobby W. MorrisG. C. Brantley Huey CourtneyRichard S. Brown Pete BartleyE. V. Amason, Jr. W. L. PughC. B. Kelley J. W. ThompsonJames D. Roberson C. E. McLellandR. H. Woodard H. C. FowlerW. D. Roberson W. L. BingleW. S. Howell R. D. ThomasL. E. Sellers R. C. CurtisJ. D. Ingram Marucs DobsonDon S. Smith A. J. McCroskeyMarvin Sanders C. L. PayneC. E. Bryan Bill MorrisC. R. Nelson C. F. Kas tD . H. Morris M. L. ChaversH. L. McCrone R. Y. CottonL. D. Goodson Paul B. VanlenteD. H. Smith R. K. Bryan The class of employees at Monsanto Company who have allegedly lost seniority expectations as a result of Plaintiffs' suit, -2- represented by Applicants for Intervention. Jack Greenberg Attorney for Plaintiffs- Appellees of Record -3- \TABLE OF CONTENTS Page Certificate Required by Local Rule 13(a) 1 Table of Contents ..................................... i Table of Authorities ............. ^ Statement of Question Presented ........................ j_v STATEMENT OF THE CASE .................................. 1 ARGUMENT ............................................... 6 Introduction ...................................... 6 The Prejudice Intervention Would Cause to the Parties and to the Orderly Processes of the Court Amply Justifies a Determination ofUritimeliness .................................. 8 A. The Substantial Prejudice Which Would Result from the Grant' of the Motion ..-to Intervene ........................... 8 B. The Intervening White Employees Knew, or Should Have Known, of the Pendency of this Action Against their Employer, but Failed to Take Timely Steps to Protect Their Alleged Interests ........ 15 1. The Intervenors1 Mistaken "Reliance" on Monsanto to Present the Position Which They Now Seek to Advance is Unreasonable and CannotExcuse Their Failure to take TimelyAction Themselves .................. 16 2. The Intervenors1 Mistaken Under standing of the District Court's Jurisdiction is Unreasonable andCannot Excuse Their Failure to Take Timely Action Themselves ...... 16 CONCLUSION 22 TABLE OF AUTHORITIES Page Cases: Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ... 14 Central of Georgia Ry. v. Jones, 229 F.2d 648 (5th Cir.), cert, denied. 352 U.S. 848 (1956) ........ 20 Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970), aff'd, 437 F.2d 959 (5th Cir. 1971) ........................................... 13 Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970) ................................. 11,14 Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir.), cert, denied, 400 U.S. 878 (1970) ........ 6,10 English v. Seaboard Coast Line R. Co., 465 F.2d 43 (5th Cir. 1972) ................................. 21 Hobson v. Hansen, 44 F.R.D. 118 (D. D.C. 1968) ....... 19 Humphrey v. Moore, 375 U.S. 335 (1964) ............... 20 Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974) 19 Kessler v. EEOC, 472 F.2d 1147 (5th Cir.) (en banc), cert, denied, 412 U.S. 939 (1973) 12 Marcus v. Putnam, 60 F.R.D. 441 (D. Mass. 1973)...... 11 McDonald v. E. J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970) ......................................... 6,7,9 Missouri-Kansas Pipe-Line Co. v. United States, 312 U.S. 502 (1941) .......... ............... ........ . 23 NAACP v. New York, 413 U.S. 366 (1974) ........... 6,15,23 Norman v. Missouri-Pacific RR, 414 F.2a 73 (8th Cir. 1969) 20 Pg.ge s .Petete v. Consolidated Freightways, 313 F. Supp. 1271 (N.D. Tex. 1970) ................................ 12 Quarles v. Philip Morris Co., 279 F. Supp. 505 (E.D. Va. 1968) ....................................... 19 Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), cert, dism., 404 U.S. 1006 ............... 19 Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F . 2d 1103 (5th Cir. 1970) ................... 6 Stadin v. Union Electric Co., 309 F.2d 912 (3d Cir. 1962) 12 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) ................................... 20 United States v. Carroll County Bd. of Educ., 427 F .2d 141 (5th Cir. 1970) .................... 10 United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) 20 United States v. U. S. Steel Corp., 371 F. Supp. 1045 (N.D. Ala. 1973), 5 EPD 8619 (N.D. Ala. 1973) .. 20 Vogler v. McCarty, 451 F.2d 1236 (5th Cir. 1971) ..... 20 Wooten v. Moore, 42 F.R.D. 236 (E.D. N.C. 1967), aff'd on other grounds, 400 F.2d 239 (4th Cir. 1968), cert, denied, 393 U.S. 1083 ..................... 9 Other Authorities: 3B Moore's Federal Practice 5 24.09(2] ................ 19 3B Moore's Federal Practice 5 24.13[1] ................ 6,8 7A Wright & Miller, Federal Practice & Procedure § 1916 7,9 7A Wright & Miller, Federal Practice & Procedure, § 1901 11 Rule 24, Federal Rules of Civil Procedure ............ 6 9 iii Page Other Authorities (cont'd): x 42 U.S.C. § 1981 ..................................... 2 42 U.S.C. §§ 2OOOe et seq., Title VII of the Civil Rights Act of 1964 (as amended 1972) .......... 2,12,14 iv / s © STATEMENT OF QUESTION PRESENTED Whether, in a suit brought pursuant to Title VII of the Civil Rights Act of 1969 and 42 U.S.C. § 1981 to term inate racial discrimination in employment, the district court appropriately denied intervention of right and per missive intervention pursuant to F.R.C.P. 24 to white encumbent employees purporting to represent a class of em ployees whose alleged seniority rights were modified by a judicially-approved settlement reached by the parties, where 1. Such intervention was not sought until after extensive discovery and hearings had been had and after the Consent Order which settled the issue of injunctive relief in the case had gone into effect, and 2. Intervenors do not have a legally cognizable interest in either their alleged "seniority rights" or in mitigating the relief in the Order complained of or in any further Order designed to eliminate unlawful racial discrim ination. v s IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 75-2405 EDDIE STALLWORTH, et al., Plaintiffs-Appellees, -v. - MONSANTO COMPANY, Defendant-Appellee, -v. - ' J. W. PALMER, et al., Applicants for Intervention-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA BRIEF FOR PLAINTIFFS-APPELLEES STATEMENT OF THE CASE This is an appeal by white employees of-defendant Monsanto Company from the district court's denial of their motion to / intervene in a class action brought by black employees challenging across-the-board practices of discrimination. The white Intervenor-Appellants did not seek intervention until after extensive discovery and evidentiary hearings had taken place and, in particular, after a judicially approved Consent Order settling the issues of injunctive relief had taken effect (A. 42-58). This action was brought under 42 U.S.C. §§1981 and 2000 e, et seq. The named plaintiffs, all black employees of Monsanto, represent a class of more than 600 present em ployees, former employees and rejected applicants. Plain tiffs filed their complaint on April 13, 1973, in which they sought declaratory and injunctive relief, including back pay (A. 27) There had previously been filed in the same court a related civil action styled Equal Employment Opportunity Commission v. Monsanto Company, No. 73-31-Civ-P. ' The two cases were conso lidated for trial. The E.E.O.C. participated actively in the proceedings against Monsanto and is a party to the order of March 7, 1975, to which Intervenors object (A. 42); however, the E.E.O.C.1s case, No. 73-31, was dismissed for lack of juris diction on March 12, 1975, and its motion to intervene in the instant case, No. 73-45, was denied on March 17, 1975. Discovery and pre-trial proceedings have been extensive in this case, resulting in a voluminous and detailed record (A. 1-26). The parties appeared before the court on at least six different occasions prior to March 1, 1975. At one evidentiary hearing on July 30-31, 1974, concerning plaintiffs' motions for pre liminary injunction and partial summary judgment, the court heard approximately eight witnesses and received substantial documentary evidence (A. 10). On September 12, 1974, the court enjoined certain aspects of Monsanto's testing and educational requirements which the court found to be unlawful and granted the plaintiffs motion for summary judgment with respect to those practices. As to other issues presented by the plain- motions, the court made no affirmative findings and reserved the issues for trial. On December 26, 1974, the court filed a pre-trial Order setting the case for trial beginning March 3, 1975, and sche duling further pre-trial proceedings. At a pre-trial con ference held on February 24, 1975, the court expressed the desire that the case be concluded within the month set aside for trial but indicated that if additional time were necessary the court would seek to make such time available. Further, the parties agreed to explore the possibility of settling some of the issues of the case. . With the court's permission, during the week of March 3, 1975, the parties attempted to settle some of the issues in the case before proceeding to trial, and intensive negotiations 3 s were conducted. Counsel apprised the court of developments during that week but no evidentiary hearings were held. As a result of the week-long negotiations, the parties jointly submitted an order to the court which it signed and adopted on March 7, 1975 (A. 42-58). The Order includes detailed injunctive provisions which, by agreement of the parties, resolved plaintiffs' (and E.E.O.C.'s) claims for injunctive relief, but left open their claims for declaratory and monetary relief. In particular, the Order provided for: (1) The appoint ment of an industrial psychologist to supervise the remedial training and advancement of plaintiffs and their class; (2) Modification of Monsanto's "Prior Request System" for new job openings; (3) Affirmative action programs for supervisor, cleri cal and technical employees; (4) Replacement of "group" seniority with "plant" seniority in the major departments of the facility; (5) Red-circling and procedures for transfer by members of the class; (6) Review of determination of medical qualifications; (7) Resumption of use of the Mechani cal Assessment Program and continuance of Monsanto's affirma tive action in hiring; and (8) Compliance reports. It is this Consent Order,which resolved some of the com plex issues in the suit, ' that the intervenors wish to challenge 4 The court evidently considered entry of the Order a watershed in the suit. After rendering decision on March 20, 1975, on the issue of laches with respect to plaintiffs' ■ claims of bach pay, the court, on March 24, 1975, referred all issues not previously decided to a Special Master. The de- Order made by the court for the guidance of the Master indicates that the purpose of the action was to relieve the court of some of its burden and to speed the case along (the judge noted that he was the only one in a two-judge district), that referral would not have taken place but for the March 7 Consent Judgment. Meanwhile, the March 7, 1975 Consent Order had entered into effect. Intervenors claim that because of this Order Vthey were temporarily displaced from jobs which they would have retained during a rollback had the discriminatory group seniority system not been eliminated. Only at this point, on April 4, 1975, did Intervenors, who should have sought to protect their alleged seniority expectations much earlier, seek to present their position in this litigation. The dis trict court properly denied the intervention as untimely (A. 129-31). 1/ See the July 21, 1975 Affidavit of K.C. Beene, Personnel & Industrial Relations Superintendent at the Company's Pensacola Plant, accompanying Defendants' Response to Intervenors' Renewed Motion to Intervene, in which it is stated that all applicants for intervention have been returned to their former positions. 5 ARGUMENT Introduction / Application pursuant to Rule 24, F.R.C.P. , for both inter vention as of right and by leave of court must first be timely made, irrespective of the satisfaction of the other require ments for intervention. Timeliness is to be determined by the district court in the exercise of its sound discretion. NAACP v. New York, 413 U.S. 366 (1973); McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970). District courts consider the following pertinent factors; (1) The amount of time during which the intervenor knew, or should have known, of his interest in the suit without acting, and the steps he eventu ally does take to protect his interest; (2) The harm or pre judice that results to the rights of the parties by delay; and (3) unusual circumstances warranting intervention. NAACP v. New York, supra, at 365-69; Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1125 (5th Cir.), cert. denied, 400 U.S. 878 (1970). This court has repeatedly indicated that prejudice caused to the parties is the more important - if not the only - consideration. Smith Petroleum Service, Inc, v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (5th Cir. 1970); McDonald v. E.J. Lavino Co., supra. See 3B Moore's Federal Practice 5[24.13[1], at 24-523 (1974). In addition, a motion to intervene introduced after 6 •; ) i judgment is looked upon by the courts with a jaundiced eye and a strong showing is required before such a motion is granted. McDonald v. E.J. Lavino Co., supra, at 1072; 7A Wright & Miller, Federal Practice & Procedure §1916, at 579-81. After careful consideration of these and other issues raised by counsel, the district judge determined that neither intervention of right nor permissive intervention should be allowed in the case at this point (A. 129-31). The prejudice that intei vention would cause both to the parties and to the orderly processes of the court, as well as appellant's inexcusable delay in seeking intervention, amply justify this exercise 2/of the lower court's discretion. ..... ‘ /____________________ f i 2 / Since a determination of untimeliness with respect to a motion to intervene of right a_ fortiori compels a finding that an alternative motion for permissive intervention is untimely, this discussion will be directed to the motion to intervene of right and not otherwise deal with the timeliness of appellants' motion for permissive intervention. See, e.q., McDonald v. E.J. Lavino Co., supra, at 1073; 3B Moore's Federal Practice 5(24.13 [1], at 24-522. 7 t THE PREJUDICE INTERVENTION WOULD CAUSE TO THE PARTIES AND TO THE ORDERLY PROCESSES OF THE COURT AMPLY JUSTIFIES A DETERMINATION OF UNTIMELINESS A. The Substantial Prejudice Which Would Result from the Grant of the Motion to Intervene. The Appellants sought intervention two years after insti tution of the suit, at a point subsequent to determination of class-wide discrimination, entry of a complex decree of injunc tive relief, resolution of the issue of laches and reference of a number of issues to a Special Master (A. 129-31). The applicants for intervention seek in effect to reopen the issue of injunctive relief after such relief has been implemented, and after full discovery and hearings have been had, and to leave the black employees without remedy while the issues are relitigated. The lower court determined, that to allow these white employees to intervene in order to contest the March 7, 1975 Consent Order, with time taken for the filing of pleadings, for discovery needed on their asserted claims and for trial thereof, will of necessity slow . down and impede the progress of this lawsuit, already too long delayed, in moving to con clusion. (A. 130) 3/ . 3/ In general, where there has been much litigation by way of motions,- depositions, taking of testimony before a Master, etc., tardy intervention is usually denied. 3B Moore's Federal Practice 3[24-13[l], at 24-523. 8 I The circumstances here are similar to those in Wooten v. Moore, 42 F.R.D. 236 (E.D.N.C. 1967), aff'd on other grounds, 400 F.2d 239 (4th Cir. 1968), cert. denied, 393 U.S. 1083, where intervention by the United States was denied for untimeliness two years after the suit had begun, where the issue for decision had been ripe for twenty-three months, numerous depositions, interrogatories and admissions had been made or requested, a pre-trial hearing had occurred a year prior, and additional pleadings would result from a grant of intervention. Intervenors, Palmer, et al., do not even discuss the prejudice that intervention at this point would cause the parties. The motion to intervene here raises the same problems a motion to intervene after judgment does. Such motions re quire a strong showing for approval not only because of the likelihood of prejudice to the parties, but also because of the danger of substantial interference with the orderly processes of the court. McDonald v. E.J. Lavino Co., supra, at 1072; 7A Wright & Miller, Federal Practice & Procedure §1916, at 579-81. McDonald involved the post-judgment inter vention of right of a workmen’s compensation carrier in an injured employee's suit against a third-party tort-feasor for the purpose of protecting its right of subrogation to the as yet undistributed fund. In finding the application 9 V o 1 >. —' timely, this Court noted the "minor" inconvenience this would cause the lower court and the limited, technical purpose of the motion. It considered it "significant that [the compen sation carrier] was not attempting to reopen or litigate any issue which had previously been determined." Id. at 1065. Similarly, in Diaz v. Southern Drilling Corp., supra, the United States sought to intervene of right before trial to assert a tax lien. This Court noted that [a]t the time of the intervention, there had been no legally significant proceedings in the second of the two lawsuits [the only one which concerned the United States] other than completion of discovery and a pretrial that determined that there were to be two separate suits. There is no showing of any delay in the process of the overall litigation by the Government's filing of its application at the time it did. l[d. at 1125. In the case at bar, where the most significant issues had already been determined prior to application for intervention, and where delay was certain if the motion was granted, the district court really had no choice but to deny the motion. Compare United States v, Carroll County Bd. of Educ., 427 F.2d 141 (5th Cir. 1970), which affirmed denial of intervention as untimely in a five-year old school desegregation case where intervention had not been sought until after a judicially approved desegregation plan had been put into effect. See 10 ) also Marcus v. Putnam, 60 F.R.D. 441 (D. Mass. 1973). The interests of these white employees in stating their case in this litigation is clearly outweighed by the interests of the plaintiff black workers, for whom delay means further . 5 /irreparable injury, in a speedy conclusion of the action. In addition, there is also a public interest in the efficient resolution of controversies. 7A Wright & Miller, Federal Practice & Procedure §1901, at 465. Moreover, Congress expli citly provided that Title VII cases, because of the paramount Intervention in Marcus was denied in a shareholder's deri vative suit when it was not sought until one day prior to the two-month cut-off for making objections to a proposed settlement which had been arrived at only after lengthy negotiations and pre-trial discovery. The prejudice delay would cause to the rights of the stockholders of the funds involved and to the funds themselves motivated the court's decision. 5/ C_f. Culpepper v. Reynolds Metals Co. , 421 F.2d 888, 894(5th Cir. 1970). Note that none of the intervening white employees can even allege any .continuing harm, since — they have all been returned to the jobs they formerly held. See note 1, supra. i public interest in terminating employment discrimination, < should be expeditiously processed in the district court. 42 U.S.C. §2000e - f (4) (5) . The maintenance or manageability of Title VII action is a real and substantial problem. Even at present it is diffi cult enough, as a result of the complexity and cost of Title VII litigation, for individuals with Title VII claims to find competent counsel: The courts of this Circuit have previously found that competent lawyers are not eager to enter the fray in behalf of a person who is seeking redress under Title VII. This is true even though provision is made for payment of attorneys' fees in the event of success. . In the case of Petete v. Consolidated Freight Ways, 313 F.Supp. 1271 (D.C.N.D. Tex. 1970), the court found that further complicating plain tiff's problem has been the reluctance of the attorneys she has approached to undertake the specific and complex challenges of a Title VII lawsuit which are not common to more frequently liti gated areas of the law. (citations omitted) Kessler v. E.E.O.C., 472 F.2d 1147, 1152 (5th Cir.), (en banc), cert. denied, 412 U.S. 939 (1973). In Title VII cases, more so than in many other cases, , Additional parties always take addi tional time. They are the source of additional questions, objections, briefs, arguments, motions and the like which tend to make the proceed ing a Donnybrook Fair. Stadin v. Union Electric Company, 309..F,2d 912,. 12 920 (3rd Cir. 1962). / Furthermore, counsel for plaintiffs typically handle Title VII actions on a contingency fee basis: if the 7/plaintiffs prevail, attorneys' fees are generally awarded. Intervention in this case to reopen the settled issue of injunctive relief is likely to result in litigation costs substantially greater than what they would have been had 8/Intervenors come in earlier. It should be noted that, as 6/ 6/ If intervention of white employees who are allegedly disadvantaged by the change in seniority policy is allowed, it would follow that whites and other groups who benefit from the change should also be allowed to come in, as Defendant Monsanto suggests in its Response to Appellants Motion to Intervene. The possibility of further delay and complication is evident. 7/ See Clark v. American Marine Corp., 320 F.Supp. 709 (E.D. La. 1970), aff'd, 437 F.2d 959 (5th Cir. 1971). 8/ With respect to attorneys' fees, the district court expressed concern in its March 24, 1975 Order over the amount of time consumed in this case and whether the parties have spent, or will spend, unnecessary time and have incurred, or will incur, unnecessary expense in presentation of the case ... Id. at 6-7. 13 a practical matter, it would be difficult to recover attorneys' fees or costs from intervening white employees. Finally, it should be noted that the addition through intervention of parties who do not have any liability under 9/Title VII will generally make the resolution of Title VII suits through negotiation and settlement extremely diffi- 10/cult. These problems are aggravated, of course, where intervention by such parties is not sought until after settlement has been reached. 9/ Title VII applies to "employers", "labor organizations," "employment agencies" and "joint labor management committees." 42 U.S.C. §2000e-2. Cf. Alexander v. Gardner-Denver, 415 U.S. 36, 44 (1974). Culpepper v. Reynolds Metals Co., supra, at 891.10/ B. The Intervening White Employees Knew, or Should Have Known, of the Pendency of This Action Against Their Employer, but Failed to Take Timely Steps, to Protect Their Alleged Interests.______________ As the Supreme Court has emphatically stated, [T]imeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discre tion, unless that discretion is abused the court's ruling will not be disturbed on review, (footnotes omitted) NAACP v. New York, supra, at 366. When, as here, intervention would substantially prejudice the interests of the parties and the orderly process of the administration of the court's business, the intervenors have a considerable burden to overcome. The Supreme Court indicated that in an evaluation of timeliness, it is appropriate to examine the point at which the appellants "knew or should have known of the pendency of the ... action . . . , " the steps taken by intervenors to protect their interests, and the reasons, if any, for the intervenors' tardiness in asserting their position. Id. at 366-67. Here, as the district court found, the interven ing white employees "do not deny knowledge of the pendency of the suit, nor is it reasonable to assume they did not know about 15 • oV it." (A. 130) Applicants for Intervention do not seriously contest this finding. Rather, they rely on two "excuses" for not having asserted their position in a timely manner: (1) their disappointed belief that they could rely on Monsanto to assert their position; and (2) their false assumption that the trial court was without power under Title VII to replace group with plant seniority. Brief for Appellants at p. 8 . These excuses are without basis in fact or law, and assuredly provide no grounds for this Court to find that the denial of intervention as untimely was a clear abuse of discretion. 1. The Intervenors1 Mistaken "Reliance" on Monsanto to Present the Position Which They Now Seek to Advance Is Unreasonable and Cannot Excuse Their Failure to Take Timely Action Themselves._______ Intervenors argue that "[a]t no time did [they] have any reason to believe that the Company would not live up to its commitment to its white encumbent workers..." (Brief for Appellants 4), and that they "had absolutely no way of knowing that Defendant Monsanto Company would not protect their rights 11/ . 11/ At one point in their brief Intervenors-Appellants suggest that this findings is "clearly erroneous." (Brief for Appellants at 6) They cite in support of this con tention Affidavits executed by three Applicants for Intervention (A. 62, 67, 72). But these affidavits were evidently carefully worded to avoid any assertion that the applicants did not know of the suit— a point which the district .court did not fail to recognize. 16 • until the actual entry of the consent judgment in this case." Id. at 7. Appellants further complain that they "had no advance warning whatsoever that the Company would completely capitulate and agree to ... an order ... which totally eliminated [their] hard-earned group seniority rights." Id. at 8 . Monsanto had no obligation to represent the special interests of its white encumbent employees. On the contrary, the Company had a legal obligation not to engage in discrimina tory employment practices. After protracted litigation and a preliminary finding of unlawful practices by the district court (see supra, p. 3), Monsanto realized that it would be appro priate to agree to certain well-established remedies designed to terminate the effects of its discriminatory practices. It is to be expected (and in fact it is the design of Title VII) that an employer confronted with proof of employment discrimination will resolve the complex issues involved through settlement. It would be contrary to the Company's self-interest (and contrary to the law) to resist compliance to the bitter end, regardless of the desires and "expectancies" of encumbent whites who benefited from the discriminatory status quo. To permit white employees to remain outside a discrimination suit until such time as their employer ceases active defense and enters into a settlement, and then allow intervention, would 17 unreasonably disrupt and discourage conciliation and settle ment . y—7 The intervening white employees appear to have based their expectation that the Company would defend the status quo partly on a so-called "commitment" of the Company not to affect their seniority "rights." Brief of Appellants at 4, 8. In particular, they allege in their complaint that Monsanto's employee rela tions pamphlet, You and Your Future with Monsanto Textiles Company, Pensacola Plant, which discusses plant and group sen iority at 28-32, is a binding contract between the Company and each individual employee (there is no union at Monsanto) (A. 132-39) . This pamphlet is no more than a unilateral declaration of management policy and practice, and provides the worker with all the "advance warning" he needs in its very first sentence that Monsanto reserves the right to "constantly revis[e] its policies to provide maximum benefit to the individual employee." Ibid. It is certainly reasonable for a Company desirous of end ing the discriminatory effects of group seniority to eliminate it completely and start afresh, rather than installing, for example, a complex combination of group.- and plant. seniority, itself based on color, which would be difficult to administer and would emphasize racial differences. This is especially true where 18 the Company could have instituted this change in a completely 12/ independent and unilaterial policy change. Even if the pamphlet is interpreted as embodying a contract, "[t]he rights assured by Title VII are not rights which can be bargained away ..." Robinson v. Lorillard Corp., 444 F.2d 791, 799 (4th Cir. 1971), cert, denied. 404 U.S. 1006, 1007. This Court has held that the very fact that a union or employer is a party to a discriminatory contract is enough to constitute a violation of Title VII. Johnson v. Goodyear Tire and Rubber Co.. 491 F.2d 1364, 1381-82 (5th Cir. 1974). Contractual seniority "rights," no matter how hard-earned, "are not vested, indefeasible rights. They are expectancies derived from the collective bar gaining agreement, and are subject to modification." Quarles v. Philip Morris Co.. 279 F. Supp. 505, 520 (E.D. Va. 1968); 12/ Reliance on this pamphlet as a source of "binding seniority rights" is so unfounded that the intervening white employees cannot be said to have satisfied Rule 24(a)'s requirement of a "direct, substantial, legally protectable interest in the proceedings." 3B Moore's Federal Practice 5 24.09[2], at 24-301, citing Hobson v. Hansen. 44 F.R.D. 18, 24 (D. D.C. 1968) (Wright, J.). Even more insubstantial is the complaint of "reverse discrimination" by these white employees, who seem to feel that any change in Monsanto's seniority policy,, which has been adjudged discriminatory by the district court, is beyond the power of the court to approve. (See pp. 20-21, infra.) To justify intervention at the closing stages of the proceedings, intervenors should be required to make a much stronger showing of a '"direct, substantial, legally protectable interest" than they have. 19 Norman v. Missouri-Pacific RR, 414.F.2d 73, 85 (8th Cir. 1969). Cf. Humphrey v. Moore, 375 U.S. 335 (1964); Central of Georgia Ry. v. Jones, 229 F.2d 648 (5th Cir.), cert, denied, 352 U.S. 848 (1956). 2. The Intervenors' Mistaken Understanding of the District Court's Jurisdiction is Unreasonable and Cannot Excuse Their Failure to Take Timely Action Themselves. _____________ Intervenors' second excuse for delay is that they "cannot be charged with the knowledge that the district court would exceed the authority granted to it by Title VII and completely destroy the group seniority system regardless of the extent of prior racial discrimination." Brief for Appellants 10; Complaint in Intervention at 5 24. A district court sitting in equity has wide power to insure that Title VII works in fact to end discrim ination in employment. United States v, Georgia Power Co., 474 F.2d 906, 927 (5th Cir. 1973); Vogler v. McCarty, 451 F.2d 1236, 1238-39 (5th Cir. 1971). It may order institution of a uniform system of plant seniority if that is required to insure effective and administratively feasible relief from the discriminatory '13/ effects of a group seniority system. For example, in United 14/ States v. United States Steel Corporation, the court ordered 13/ Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 21 (1971.) . 14/ 371 F. Supp. 1045, 1056 (N.D. Ala. 1973), 5 E.P.D. 51 8619, at 7816-17 (N.D. Ala. 1973) (order issued) . - 20 - the replacement of occupational line of promotion and depart mental seniority with plant seniority. That the seniority expectancies of some white workers relative to other white workers may be modified by change in a company's seniority system does not render such a remedy illegal. This is particularly so where the change was agreed to by the Company, which, unbound by any collective bargaining contract, was free to make any changes it wished as a matter of management policy. Finally, the Intervenor-Appellants assert that the district court lacked jurisdiction to affect the seniority expectancies of white incumbent workers who are not parties to the action. Complaint in Intervention 51 24; cf. Brief for Appellants 10. This contention, however, was laid to rest in English v. Seaboard Coast Line R. Co., 465 F.2d 43, 46 (5th Cir. 1972), where the plenary powers of the court to eradicate all vestiges of racial discrimination, even where white employees were not joined, was affirmed. CONCLUSION Of the various factors to be assessed in determining the timeliness of an application to intervene, prejudice to the parties is one of the most important. The inter vening white employees do not contest that throwing open the Consent Order which settled the issue of injunctive relief to further litigation at this point would cause substantial expense and delay the relief for which plain tiffs have been waiting much longer than the two years this suit has been pending. The likelihood of substantial interference with the orderly processes of the court should intervention be per mitted is also evident. This case was settled in large part by the Consent Order and referred to a Special Master on the strength of such Order. Reopening the Order for liti gation could substantially disrupt the procedures by which this case is finally drawing to a close. Finally, there is no excuse for the tardiness of the intervening white employees. Not only can they cite to no evidence in support of their contention that they did not know of the pendency of the suit, their whole reliance argu ment presupposes such knowledge. In addition, the objective circumstances surrounding a major discrimination suit against 22 their employer compel the conclusion that Intervenors "should have known" of the action long before entry into effect of the consent decree. NAACP v. New York, supra, at 366. The conclusion is inescapable that Intervenors knew of the suit in time to make a proper application to the court, but preferred to take no action and remain uninvolved until too late. Plainly enough, the circumstances under which interested outsiders should be allowed to become participants in a litigation, is [sic], barring very special circumstances, a matter for the nisi prius court.Missouri-Kansas Pipe-Line Co. v. United States, 312 U.S. 502, 506 (1941). The trial court determined that interventions would be untimely in this case, and this determination should be upheld. WHEREFORE, the denial of intervention by the District Court should be affirmed. ■ — •• - Respectfully submitted, KENT SPRIGGS 324 W. College Avenue Tallahassee, Florida 32301 JACK GREENBERG ELAINE R. JONES BARRY L. GOLDSTEIN Suite 2030, 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs-Appellees 23