Stallworth v. Monsanto Company Brief 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.,
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