Correspondence from Pamela Karlan to Neil Bradley (ACLU)

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IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CURTIS BROWN, ET AL.,
Plaintiffs,
- vs -

CONTINENTAL CAN COMPANY, INC., ET AL.,
Defendants.

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CIVIL ACTION 
NO. 74-536-CIV. T-K

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SUPPLEMENTAL MEMORNADUM IN SUPPORT 
OF PLAINTIFFS' MOTION FOR CLASS 
ACTION ORDER

INTRODUCTION

The plaintiffs originally sought certification of this action
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as a class action in November, 1975, and by stipulation of the 
parties the defendant Company was allowed to delay its response 
to that motion until March 19, 1976. In their response to the 
motion, the defendant Company indicated that its position with 
respect to the allegations of the plaintiffs was fully set out in 
its Motion to Dismiss and for Partial Summary Judgement and re­
quested that the court consider that Motion and the Memorandum 
in support in conjunction with the class action issue. By order 
of the court, the plaintiffs were granted leave to submit this 
supplemental ‘class action memorandum, clarifying the nature and



Lane Co.. Inc.. 471 F.2d 853, (4th Cir. 1973); Reed v. Arlington 
Hotel Company, 476 F.2d 721 (8th Cir., 1973). The rationale for 
these cases is as stated in Bove v. Colgate-Palmolive Company 416 

F. 2d 711, 719 (7th Cir. 1969):
"A suit for violation of Title VII 
is necessarily a class action as 
the evil sought to be ended is di­
scrimination on the basis of a 
class characteristic, i.e. race, 
sex, religion or national origin."

hearing en banc)• Georgia Power Co. v. E.E.O.C., 412 F.2d 462 
(5th Cir. 1969). The various manifestations of an employer's 
racism in hiring, in assignment, in promotion and transfer 
opportunities, as well as in discipline and discharge - are all 
aspects of a single problem. Therefore, the courts have not 
required the class plaintiffs to have experienced discrimination 
in precisely the same way as every other class member but only to 
demonstrate a "nexus with the class and interests and claims.
Huff v. N.D. Cass Company, supra, at p. 714. Once that nexus is 
shown, the aggrieved plaintiff "can represent other victims of 
the same policies, whether or not all have experienced discrim­
ination in the same way" Long v . Sapp, 502 F.2d 34, 42 (5th 
Cir, 1974). Thus, by broadly applying the class action device 
to Title VII, and also broadly applying the "like or related 
rulC courts have permitted plaintiffs to represent broad classes 
of aggrieved persons: individuals denied hire may represent

I 1/ Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970). ^



423 F.2d 57present employees, Carr v. Cornoco Plastics, Inc..
cert_. denied 400 U.S. 951 (1970) y discharged employee could
represent present employees, Johnson v. Georgia Highway Express.
supra_y Moss v. Lane Co., Inc., supra, Reed v. Arlington Hotel.
supra; an employee whose claim had become moot or lacked merit
could still be a class representative. Jenkins v. United Gas Co..
400 F. 2d 28 (5th Cir. 1968); Huff v. N.D. Cass Co., supra;
Long v. Sapp. supra. I

Similarly, consistent with this expansive approach to Title
VII class actions, the United States Supreme Court has stated
that back pay may be awarded on a class basis "without exhaustion

2/of administrative procedures by the unnamed class members:'
it follows that courts have recognized the importance of 

private litigation in effectuating the Congressional policies 
embodied in Title VII, Jenkins v. United Gas Corp.. 400 F.2d 28 
(5th Cir. 1968), and have held that because of the high national 
priority attached to the campaign against employment discriminat­
ion, the requirements of Rule 23 (a) should be liberally applied, 
Rodriquez v. East Texas Motor Freight, et al., 505 F. 2d 40, 50 
(5th Cir. 1974).

Notwithstanding this broad application of the class action
device allowed in Title VII actions, plaintiffs in the present case

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defined their class so as to limit its scope to applicants, 

rejected applicants, employees and discharged employees involved 
in production and maintenance jobs with defendant Company, for

2/ Albermarle Paper Co, v. Moody. 422 U.S. 405 , n.8 (1975);
The Court specifically noted that Congress during the enactment 
of the Equal Employment Opportunity Act of 1972 had specifically 
approved the use of Title VII class actions.

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whom the judicially required "nexus" is readily apparent.
Plaintiffs' nexus with the class they seek to represent is 

illustrated by the allegations that plaintiffs, once job 
applicants, have all been affected by the defendants' discrim­
inatory employment practices: that they were all employed by
the defendant Company at its Tampa facility; that while employed 
by the defendant Company each was affected by a policy of assign­
ment into the Press Department, into which virtually all black I 
employees were assigned; that each was subjected to biased super­
vision and evaluation; that each was prevented from obtaining job 
advancement or transfer to another department; that plaintiffs 
Brown, Marcus and Ryals were discharged because of their 
opposition to the unlawful employment practices of the defendant 
Company; that plaintiff Jordan was forced to resign (construct­
ively discharged) because of the racially discriminatory practices 
of the defendants; and that each has been effected by the 
defendants' utilization of the operation of its seniority system 
to perpetuate the effects of discrimination occurring prior to 
the effective date of Title VII, and has suffered its discrim­
inatory impact with respect to advancement and conditions of 
employment. In addition, two plaintiffs maintain a continuing 
relationship with the defendant Company: Plaintiff Oliver Green
is presently on sick leave and plaintiff Horace L. Harrison has 
been laid off by the defendant Company.

Each of the plaintiffs was employed as Production and Main­
tenance employees with the defendant Company and as such, each 
has intimate knowledge of the policies and practices of the 
defendant Company in this regard. Similarly, plaintiffs various 
employment with the Company covers a period begining in April ,

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• Q

1965 and continuing until the present. Because plaintiffs 1 snplcy- 
ment with the Company covers a period of over ten (10) years 
subsequent to the passage of the Civil Rights Act of 1964, plain­
tiffs' have had a substantial opportunity to observe, and become 
personally acquainted with the discriminatory employment practices 
of the defendants, which now forms the basis of their complaint. 
Likewise, as evidenced by the plaintiffs' testimony during dep­
ositions taken by the defendants' attorneys, several of the 
plaintiffs were able to identify individual cases of discrimina­
tion against other class members, with which they were familiar. 
These individual instances include, John Anderson, Ellis York, 
Raleigh Neal, Brown deposition at pp. 234-236; Earl Joyner, 
Harrison deposition at p. 28; Charlie McCauley, Jordan deposition 
at p.24.

The claims of plaintiffs Brown, Marcus, and Ryals that their 
^ r -̂n9 was in retailiation for their seeking to correct employment 
discrimination by the defendant employer makes them particularly 
appropriate persons to bring a class action on behalf of the other 
Maintenance and Production employees of the Continental Can 
Company. Plaintiffs' retaliation claims are inextricably inter- 
wined with the class claim they seek to bring. Proof of plaintife' 

1 retaliation claims must of necessity involve proof 
that the employment practices of the defendants' were the subject 

complaints by them, and that such complaints were genuine and 
not the imaginings of disgruntled employees.

The principle is clearly established that in an action based 
on Title VII, statistical evidence may be used to aid a determina­
tion of the nature of the general employment practices of the

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defendant even as they relate to an individual claim of discrimi-

The statistical evidence available at this time bolsters the 
plaintiffs' Claim of class wide discrimination by Continental Can 
Company's Tampa Plant #58. See affidavit of Lester Jones accom­
panying plaintiffs' Motion For Additional Time Within Which To 
Respond To Defendant Company's Motion To Dismiss And For Summary 
Judgement. That is while the population of Hillsborough County 
is approximately 13.6% black, the greatest percentage of blacks 
actually employed by the Company was 6.4% and as of June, 1975 
only 4% of the Company's Tampa workforce was black. Similarly, 
the plaintiffs' are presently preparing additional exhibits to 
be used at trial and in response to the Company's Motion To 
Dismiss and For Summary Judgement which will illustrate the dis­
parity in hiring practiced by the defendant Company; the dispar­
ity in initial job assignment as between blacks and whites at the 
defendant Company; the relative rates of pay of blacks and whites; 
the relative speed at which blacks and whites are able to move 
from their initial hiring assignment to ether departments within 
the defendant Company; and the relative rates of termination and 
lay-offs for blacks and whites at the defendant Company.

It is a central contention of plaintiffs theory of this case

nation.

"On the latter point, [defendant's practice 
with respect to minority employment] 
statistics as to petitioner's employment 
policy and practice may be helpful to a 
determination of whether petitioner's 
refusal to rehire respondent in this case 
conformed to a general pattern of discri­
mination against blacks'.' (citations 
omitted) McDonnell Douglas v. Green. 411 
U.S. 792, 86 L.Ed 2d 668, 679, (1973).

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that the discriminatory employment practices of the defendants 
existed on a class wide basis, and as such proof of the individ­
ual claims of the plaintiffs will of necessity involve proof of 
the defendants' practices in regard to the class of which they 
are a part.

In Oatis v. Crown Zellerback Coro.. 398 F. 2d 496 (5th Cir. 
1968) the Court resolved the issue of whether a class action 
could be maintained under Title VII when only one member of the | 
class had filed a charge of discrimination with the E.E.O.C. by 
answering the question in the affirmative. See Sanchez v. 
Standard Brands, Inc. 431 F. 2d 455, 466 n.7 (5th Cir. 1970).
The Court further stated in Sanchez v. Standard Brands. Inc.. 
supra, at 466.

"[T]he 'scope' of the judicial complaint is 
limited to the 'scope' of the E.E.O.C. 
investigation which can reasonably be ex­
pected to grow out of the charge of discri­
mination"

Thus, while under the rule of Sanchez v. Standard Brands, 
supra, the scope of the civil action is not limited to the 
specific allegation of the E.E.O.C. Complaint, in the present 
case, plaintiffs clearly recognized the class aspects of their 
claims by asserting systematic and continuous discrimination 
against black people, by the defendant Company, in their original 
charge filed with the Equal Employment Opportunity Commission. 
Similarly, as a result of its investigation of plaintiffs charges,
the E.E.O.C. issued a determination which clearly encompassed the

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class wide discriminatory policies of the defendant Company. For 
example, the E.E.O.C. investigation determined that there was a 
disparity in hiring; that blacks have received harsher disciplin­

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ary actions up to and including discharge, than actions to whites 
for similar encroachments; that of 29 discharges reflected in 
termination lists for 1970 and 1971, 9 were black; that proport­
ionally three times as many blacks as whites received reprimands; 
and that 70% of the blacks work in the Press Department.
Finally, the Commission found that there was reasonable cause to 
believe that the defendant Company had "engaged in unlawful 
employment practices in violation of Title VII of the Civil I 
Rights Act of 1964 by having discriminatory hiring practices, ; 
disciplinary measures, and job classifications:'

The significance of these findings is high lighted by the
statutory scheme of Title VII, which demands a charge to the
E.E.O.C. to trigger the investigative and conciliatory procedures
of the Commission. Only if the E.E.O.C. fails to achieve
voluntary compliance is the matter subject to court action.

"Within this statutory scheme, it is only 
logical to limit the permissible scope of 
the civil action to the scope of the E.E.O.C. 
investigation which can reasonably be 
expected to grow out of the charge of dis­
crimination" Sanchez v. Standard Brands.
Inc, supra, at 466.

In the present case, plaintiffs' charge, filed with the 
E.E.O.C., alleged broad claims of class discrimination, which 
were clearly investigated as such by the E.E.O.C. Consequently, 
the scope of any civil action brought by plaintiffs is appropria- 
tsly denominated as a class action, as it is wholly in concert 
with the statutory design of Title VII.

CONCLUSION
For the reasons set forth, this Court should enter an order 

pursuant to Rule 23(a)(1), Federal Rules of Civil Procedure,

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certifying this action as a class action pursuant to Rule 23 (b) 
(2), and further providing:

That the class of plaintiffs be defined as all black persons 
who were employed or denied employment as Production and Main­
tenance employees at the Continental Can Company Plant #58 from 
April 8, 1965 to the present, and all future black employees and 
applicants for employment as Production and Maintenance employees 
of the Continental Can Company Plant #58. |

Respectfully submitted, ’

JACK GREENBERG 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
New York, New York 10019

PERCY L. JULIAN, JR.
330 East Wilson Street 
Madison, Wisconsin 53703

ATTORNEYS FOR PLAINTIFFS



CERTIFICATE OF SERVICE

I hereby certify that I have this 5th day of April, 1976 
served a copy of the foregoing Plaintiffs' Supplemental
Memorandum In Support Of Plaintiffs' Motion For A Class Action
Order, upon counsel for defendants by directing a copy of same 
to the below listed attorneys of record, at the addressess
shown:

MICHEAL A. WARNER, ESQ. 
HOWARD L. BERNSTEIN, ESQ.
Pope, Ballard, Shepard & Fowle 
69 West Washington Street 
Chicago, Illinois 60602
GEORGE C. LONGSHORE, ESQ. 
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203
CARL B. FRANKEL, ESQ.
Assistant General Counsel 
United Steelworkers of America 
Five Gateway Center 
Pittsburgh, Pennsylvania 15222
RICHARD H. FRANK, P.A.
Suite 500
Marine Bank Building 
315 Madison Street 
Tampa, Florida 33601

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