Lowery v. Circuit City Stores Brief Amicus Curiae in Support of the Plaintiffs-Appellees/Cross-Appellants

    Nos. 97-1372, 97-4470, 97-1917

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

RENEE LOWERY, et al,

Plaintiffs-Appellees/Cross-Appellants, 
V.

CIRCUIT CITY STORES, INC.,

Defendant- Appellant/Cross- Appellee.

On Appeal from the 
United States District Court 

for the Eastern District of Virginia

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.IN SUPPORT OF THE PLAINTIFFS-

APPELLEES/CROSS-APPELLANTS

E l a in e  R. Jo n es  
D ir e c t o r -C o u n s e l

T h e o d o r e  M. Sh a w  
N o r m a n  J. Ch a c h k in  
Ch a r l e s  St e ph e n  R a l st o n  
NAACP Le g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................  ii

INTEREST OF THE AMICUS .................................................................  1

STATEMENT OF THE C A S E ...................................................................  2

SUMMARY OF A R G U M EN T...................................................................  2

ARGUMENT ................................................................................................  3

THE DISTRICT COURT ERRED IN DECERTIFYING THE
CLASS .........................................................................................  3

A. Class Actions in EEO Cases Are Favored and Their
Effectiveness May Not be Undermined Through 
Practices That Restrict Their Utilization.......................  3

B. The Decertification of the Class by the District
Court Was Inconsistent With These Principles............. 5

CONCLUSION ..............................................................................................  10

CERTIFICATE OF S E R V IC E ........................................................................11

i



TABLE OF AUTHORITIES

Cases: Pages:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)........................  passim

Barrett v. United States Civil Service Commission, 439 F.Supp. 216 (D.D.C 
1977)..................................................................................  ....... . . . .  6

Bazemore v. Friday, 848 F.2d 476 (4th Cir. 1 9 8 8 )......................................  2

Carson v. American Brands, Inc., 450 U.S. 79 (1981) ...............................  7

Cooper v. Federal Reserve Board, 467 U.S. 867 (1984).............................  2

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) ..........................  6

EEOC v. Korn Indus., Inc., 662 F.2d 256 (4th Cir. 1981)..........................  5

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) .......... passim
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .........................................  2

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981).........................................  2, 4, 7
Harrison v. Dole, 643 F.Supp. 794 (D.D.C. 1 9 8 6 )....................................... 7

Harrison v. Lewis, 559 F.Supp. 943 (D.D.C. 1983) .................................. 6, 7

J.P. Sledge v. Stevens & Co., 585 F.2d 625 (4th Cir. 1978), cert, denied, 440 
U.S. 981 (1979) ......................................................... ' ....................... . 5

McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973)........................... 2

McKennon v. Nashville Banner Publishing Co., U.S. , 115 S Ct 879 
(1995) ..............................................  . . . 77T .............. : . 2

NAACP v. Button, 371 U.S. 415 (1963) .......................................................  1

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) ..............  3

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) ........................... 7

Statutes:

Equal Employment Opportunity Act of 1972 
Rule 23, Fed. Rules of Civ. Proc...................

ii

Pages: 

. . .  3 

passim



Other Authorities:
Pages: 
Pages:

Legislative History of the Equal Employment Opportunity Act of 1972, 
Committee Print prepared by the Subcommittee on Labor of the 
Committee on Labor and Public Welfare, United States Senate (92d 
Cong. 2d Sess., 1 9 7 2 )........................................................................ V. 3. 4

Rules Advisory Committee Notes to 1966 Amendments to Rule 23, 39
F.R.D. 69 (1966) ........................................................................ ! ____  3

S. Rep. No. 92-415 (92d Cong., 1st Sess., 1971) .........................................  3

Taber^Emplwment^itigation in New York, Chapter 6 (West Publishing, St.

iii



Nos. 97-1372, 97-1470, 97-1917

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

RENEE LOWERY, et al.,

Plaintiffs-Appellees/Cross-Appellants,
V.

CIRCUIT CITY STORES, INC.,

Defendant-Appellant/Cross-Appellee.

On Appeal from the 
United States District Court 

for the Eastern District of Virginia

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. IN SUPPORT OF THE 

PLAINTIFFS-APPELLEES/CROSS-APPELLANTS

INTEREST OF THE AMICUS1

The NAACP Legal Defense and Educational Fund, Inc. ("the Fund") is 
a non-profit corporation that was established for the purpose of assisting 

African Americans in securing their constitutional and civil rights. The 

Supreme Court has noted the Fund’s "reputation for expertness in presenting 

and arguing the difficult questions of law that frequently arise in civil rights 

litigation." NAACP v. Button, 371 U.S. 415, 422 (1963). The Fund has taken 

a leading role in the development of the law of employment discrimination 

under Title VII of the Civil Rights Act of 1964 and other statutes, acting as 

counsel in many of the leading cases brought under these statutes. See, e.g.,

'Both parties have consented to the filing of this brief.



Griggs v. Duke Power Co., 401 U.S. 424 (1971); McDonnel Douglas Corp. v. 

Green, 411 U.S. 792 (1973); Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975); and McKennon v. Nashville Banner Publishing C o .,___U .S .___ , 115

S. Ct. 879 (1995).

The Fund has a particular interest in the issue of certification of class 

actions in employment discrimination cases, since it has for many years 

specialized in bringing class actions in EEO cases and has been involved in 
many of the leading cases regarding class certification and the rights of class 

members. See, e.g, Cooper v. Federal Reserve Board, 467 U.S. 867 (1984); Gulf 

Oil Co. v. Bernard, 452 U.S. 89 (1981); Franks v. Bowman Transportation Co., 

424 U.S. 747 (1976); Albemarle Paper Co. v. Moody, supra; Bazemore v. Friday, 
848 F.2d 476 (4th Cir. 1988).

STATEMENT OF THE CASE
Amicus adopts the Statement of the Case as set out in the Brief of the 

Plaintiffs-Appellees/Cross-Appellants.

SUMMARY OF ARGUMENT

Under well-established precedent, class actions are to be favored in Title 
VII cases in order to carry out the remedial purposes of the statute. When 

Congress amended Title VII in 1972 it specifically endorsed the use of class 
actions and rejected attempts to limit their use.

The decertification of the class by the district court was inconsistent with 

these principles, since the order erected unnecessary obstacles to class 

members’ obtaining complete relief. The finding of classwide discrimination 

established a presumptive right to full relief that must be facilitated, not 
obstructed.

2



ARGUMENT

THE DISTRICT COURT ERRED IN DECERTIFYING THE CLASS

A. Class Actions in EEO Cases Are Favored and Their Effectiveness May Not 
be Undermined Through Practices That Restrict Their Utilization.

The specific purpose of section 23(b)(2), first adopted when Rule 23,

Fed. Rules of Civ. Proc., was amended in 1966, was to facilitate the bringing

of class actions in civil rights cases. Thus, the Advisory Committee’s note cites
a series of civil rights decisions as examples of cases intended to be certified

under Rule 23(b)(2). Rules Advisory Committee Notes to 1966 Amendments to
Rule 23, 39 F.R.D. 69, 102 (1966).

In 1972, when Title VII was amended by the Equal Employment

Opportunity Act, proposals to abolish class actions or to restrict their scope
in Title VII cases were rejected. The Senate Report stated:

This section [706] is not intended in any way to restrict the filing 
of class complaints. The committee agrees with the courts that 
title VII actions are by their very nature class complaints,2 and 
that any restriction on such actions would greatly undermine the 
effectiveness of title VII.

S. Rep. No. 92-415 (92d Cong., 1st Sess., 1971), p. 27, reprinted in Legislative 
History of the Equal Employment Opportunity Act of 1972, Committee Print 

prepared by the Subcommittee on Labor of the Committee on Labor and 
Public Welfare, United States Senate (92d Cong. 2d Sess., 1972)(hereinafter 

"Leg. Hist."), p. 436. Thus, a provision in the House bill that limited class 

actions was rejected by the Conference Committee. Equal Employment 

Opportunity Act of 1972-Conference Report, Leg. Hist., p. 1847. The 
Conference Report stated:

The courts have been particularly cognizant of the fact that claims 
under Title VII involve the vindication of a major public interest, 
and that any action under the Act involves considerations beyond

2Citing, inter alia, Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968).

3



those raised by the individual claimant. As a consequence, the 
leading cases in this area to date have recognized that many Title 
VII claims are necessarily class action complaints and that, 
accordingly, it is not necessary that each individual entitled to 
relief be named in the original charge or in the claim for relief.

Id. See Albemarle Paper Co. v. Moody, 422 U.S. at 414, n. 8.

In addition to rejecting specific proposals to abolish or limit class

actions, Congress was cognizant of the systemic nature of employment
discrimination:

In 1964, employment discrimination tended to be viewed as a 
series of isolated and distinguishable events, for the most part due 
to ill-will on the part of some identifiable individual or 
organization. . . . Employment discrimination as viewed today is 
a far more complex and pervasive phenomenon. Experts familiar 
with the subject now generally describe the problem in terms of 
"systems" ana "effects rather than simply intentional wrongs, and 
the literature on the subject is replete with discussions of, for 
example, the mechanics of seniority and lines of progression, 
perpetuation of the present effect of pre-act discriminatory 
practices through various institutional devices, and testing and 
validation requirements.

Senate Report at p. 5, Leg. Hist, at p. 414.

Decisions of the Supreme Court and of courts of appeals, including this

Court, have recognized the importance of class actions as the most effective
means for both ending systemic employment discrimination and in obtaining

full relief for all the victims of such discrimination. Thus, Albemarle Paper

Company v. Moody, supra, held that all class members were presumptively

entitled to backpay, and rejected arguments that only class members who had

themselves filed EEOC charges were entitled to relief. Gulf Oil Co. v.

Bernard, supra, struck down limitations on communications with unnamed class

members as inconsistent with the policies of Rule 23, particularly in a case

where the result of such limitations would be to make it more difficult for

class members to obtain information relevant to a decision whether to accept

a backpay offer conditioned on a full release of the company of all liability

4



under Title VII. Franks v. Bowman Transportation Co., supra, held that the 

right of unnamed members of a properly certified class to receive backpay and 

other relief survived the dismissal of the claims of the named class 

representative. The consistent theme of these decisions is that relief to all 

members of a class of persons who have been the victims of employment 

discrimination is essential both to the vindication of the important public 
policies underlying Title VII and to carrying out the goal of making such 

victims whole and placing them, to the extent possible, in the same position 

they would have been in the absence of discrimination. See also, J.P. Sledge 

v. Stevens & Co., 585 F.2d 625 (4th Cir. 1978), cert, denied, 440 U.S. 981 
(1979).

B. The Decertification o f the Class by the District Court Was Inconsistent With
These Principles.

It is clear that if the district court had not decertified the class, the 

finding by the jury of a pattern and practice of racial discrimination by the 

employer3 would, under the cases discussed above^tmtitled all class members, 

named and unnamed, to a presumption that they were entitled to backpay and 
all other "make whole" individual relief. The case would have moved to Stage 

II, at which class members would only have to demonstrate that they were 

members of the class and introduce evidence of their economic loss. The 

burden would then shift to the employer to prove that each individual class 

member would not have received backpay, a promotion, etc., even in the 

absence of the established class-wide discrimination. J.P. Sledge v. Stevens & 
Co., 585 F.2d at 637, and cases there cited.

3The finding of a pattern or practice of discrimination is identical, for the purpose of 
shifting the burden to the employer, to a finding of classwide discrimination. See, EEOC v. 
Korn Indus., Inc., 662 F.2d 256 (4th Cir. 1981).

5



The standard procedure at Stage II is for all class members to be given 

notice of their right to file a claim and to receive the assistance of class 

counsel in so doing. Usually, a standard claim form is included as part of the 

notice, and the burden on each class member is minimal. See, e.g., Harrison 

v. Lewis, 559 F.Supp. 943, 955-56 (D.D.C. 1983)(describing such Stage II 

procedures), and TABER, Employment Litigation in New York, Chapter 6. 

pp.399-400; 476-80 (West Publishing, St. Paul, MN, 1996) (discussing notice 
and forms for individual claims after settlement of a class action).

The procedures used in Stage II for individual claims are essential to the 
protection of the rights of class members to full relief. To begin with, the 

retention of class action status protects against the running of the statute of 

limitations against individual claims4 and prevents classwide claims from being 

mooted out if the claims of the named plaintiffs are dismissed.5 Next, 
individuals are not required to file their own charges with the EEOC, but can 

proceed directly to the adjudication of their claims by the court.6 Third, 

individuals with limited resources are not put to the burden of filing new 

lawsuits, with the accompanying expenses and delays.7 All they must do is to 
fill out and timely file a simple form with, if necessary, the assistance of class 

counsel. Finally, and of no small importance, a single and coordinated Stage 

II process greatly facilitates and makes more likely the resolution of claims by

*Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).

5Franks v. Bowman Transportation Co., 424 U.S. at 752-57.

6See, Barrett v. United States Civil Service Commission, 439 F.Supp. 216, 218 (D.D.C. 
1977)(individual members of a decertified class must exhaust administrative remedies by filing 
EEO complaints in order to pursue their claims of discrimination; Albemarle discussed and 
contrasted).

1 Contrast, Harrison v. Lewis, 559 F.Supp. at 956, where class members were given the option 
of proceeding under Statji ^  ° f  t îe c âss action or pursuing individual cases in court.

6



settlement.8 This last consideration is not speculative. It has been amicus’ 

consistent experience, over more than thirty years of litigating class actions in 

EEO cases, that backpay and other class monetary claims are settled at Stage 

II without the necessity of protracted individualized hearings. At the least, 

disputed claims can be resolved expeditiously and with a minimum expenditure 
of time and resources of the court and counsel.9

The decertification of the class by the district court in this case is 

inconsistent with all of these principles and goals and, indeed, with the 

decisions of the Supreme Court discussed above. First, requiring individual 

class members to file separate lawsuits in order to obtain the benefit of the 
finding of class-wide pattern and practice discrimination would result in "the 

very ‘multiplicity of activity which Rule 23 was designed to avoid.’" United 

Airlines, Inc. v. McDonald, 432 U.S. 385, 394, n. 15 (1977)(requirement that 

putative class members«4».intervene early in a class action in order to protect 

their right to appeal the denial of class certification rejected because it would 

induce the filing of multiple protective motions to intervene). See also, Gulf 

Oil Co. v. Bernard, 452 U.S. at 99, n. 11 ("Rule 23 expresses ‘a policy in favor 
of having litigation in which common interests, or common questions of law 
or fact prevail, disposed of where feasible hysingle lawsuit.’")

Second, the procedure that the district court has adopted is 

fundamentally at odds with the Supreme Court’s holding in Abemarle that 

individual class members need not individually exhaust administrative remedies 

in order to obtain full relief. As noted above, the holding in Abemarle was

8It is axiomatic that settlement of employment discrimination claims is the preferred course. 
See, Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981).

9See, e.g., Harrison v. Dole, 643 F.Supp. 794 (D.D.C. 1986)(subsequent order in Harrison v. 
Lewis, supra, noting that all individual claims had been resolved except two; the two remaining 
claims decided expeditiously).

7



based on the legislative history of the 1972 amendments to Title VII; Congress 

rejected amending Title VII to require that individual class members file 

EEOC charges because it did not want to undermine the effectiveness of Title 

VII by restricting class actions. In Abemarle the company sought the 

imposition of a burden on individual class members as a condition to their 
obtaining individual relief after a finding of class-wide discrimination. The 

result of the class decertification here would have precisely the same effect; 

individual class members would be seriously burdened in their ability to obtain 

individual relief after a finding of class-wide pattern and practice 

discrimination. The Congressional policy against such requirements cannot, 

consistent with Abemarle, be defeated by the simple expedient of decertifying 
a class in a case where a class-wide violation has been established.

Third, in the most basic sense, the complex and burdensome procedure 
adopted by the district court as a result of the decertification is inconsistent 

with the remedial purpose of Title VII as enunciated in Albemarle and Franks 

v. Bowman Transportation Co., supra. In Albemarle the Court stressed the 

central importance of awards of full relief to individual class members to 
achieving the underlying purpose of Title VII -  the eradication of 

employment discrimination. Thus, backpay and other relief both provided 

complete relief to victims of discrimination and served as a powerful deterrent 

to further acts of discrimination. 422 U.S. at 417-22. In light of these goals, 

the Court held that the district court had erred in denying backpay for a 

variety of reasons; full relief was presumptively due to all class members, and 
could be denied for only the most cogent of reasons.

In Franks the Court similarly rejected various reasons for denying class 

members full retroactive seniority as well as full backpay. Citing Albemarle, 

the Court reaffirmed that "one of the central purposes of Title VII is ‘to make

8



persons whole for injuries suffered on account of unlawful employment 

discrimination.’" 424 U.S. at 763. In both Albemarle and Franks the Court 

held that the exercise of a district court’s equitable discretion must be 

governed by the overriding purpose of the Act, and made it clear that any rule 

that would restrict the scope of relief to individuals was suspect.

Here also, the course adopted by the district court of decertifying the

injury le classwideclass and requiring individuals presiunpfyve 

discrimination established at triaj/can only result in fhe'’denial of full relief fo 

a significant number of class members. Indeed, one of the veiy purposes 

enunciated by the district court in requiring the filing of new, individual 

lawsuits, and the incurring of fees and expenses by each class member was to 

discourage claims. However, the swift disposition of frivolous claims (if any 
indeed exist) through an expedited Stage II procedure will be a fully adequate 

protection against such claims without, at the same time, discouraging claims 
that are presumptively valid and, deserve to be addressed.

In sum, the district court abused its discretion when it decertified the 

class and erected unnecessary obstacles to the vindication of individual class 
members who are victims of classwide discrimination. The decisions of the 

Supreme Court and of this Court, as well as the clear intent of Congress, do 

not permit the undermining of the effectiveness of Title VII as a remedy by 
such limitations on the use of class actions.

9



CONCLUSION

For the foregoing reasons, the decision of the court below decertifying 
the class should be reversed.

^— '"El a in e  R . Jo n e s  
D ir e c t o r -C o u n s e l

T h e o d o r e  M . S h a w  
N o r m a n  J. C h a c h k in  
C h a r l e s  St e p h e n  R a l s t o n  
NAACP L e g a l  D e f e n s e  a n d  

E d u c a t i o n a l  F u n d , In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae

10



___
CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing BRIEF AMICUS CURIAE 
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 
INC. IN SUPPORT OF THE PLAINTIFFS-APPELLEES/CROSS-
APPELLANTS, have been served by depositing same in the United States 
mail, first class postage prepaid, on this^th of September, 1997, addressed 
to the following:

A n d r e w  L. F r e y , E s q . 
Ke n n e t h  S. G e l l e r , E s q . 
D o n a l d  M . F a l k , E s q .
M a y e r , B r o w n  & P l a t t  
2000 Pennsylvania Avenue, N.W. 
Washington, DC 20006

P h il ip  D. B o s t w ic k , E s q . 
S h a w , P it t m a n , P o t t s  &  
T r o w b r i d g e  
2300 N Street, N.W. 
Washington, DC 20037-11218

Jo s e p h  M . S e l l e r s , E s q .
T h e  W a s h in g t o n  L a w y e r s ’ 
C o m m it t e e  f o r  C iv il  R ig h t s  a n d  
U r b a n  A f f a i r s  
1300 19th Street, N.W.
Washington, DC 20036

Jo h n  J. G a l l a g h e r , E s q .
P a u l  H a s t in g s  Ja n o f s k y  &  
W a l k e r  L .L .P .
1299 Pennsylvania Avenue, N.W.
10th Floor
Washington, DC 20004-2400

K im b e r l y  W e l c h , E s q .
S t e p h e n  A . B o k a t , E s q . 
N a t i o n a l  C h a m b e r  L it ig a t io n  
C e n t e r , In c .
1615 H Street, N.W.
Washington, DC 20062

P h il ip  D . B o s t w ic k , E s q .
S h a w , P it t m a n , P o t t s  &
T r o w b r i d g e
2300 N Street, N.W.
Washington, DC 20037-11218

Jo h n  A . G i b n e y , Jr ., E s q . 
S h u f o r d , R u b i n  &  G ib n e y  
700 East Main Street 
Richmond, VA 23218

P a u l  R a m s h a w , E s q . 
E q u a l  E m p l o y m e n t  
O p p o r t u n it y  C o m m is s io n  
1801 L Street, N.W. 
Washington, DC 20507

Pa u l  K a m e n a r , E s q . 
W a s h in g t o n  L e g a l  F o u n d a t i o n  
2009 Massachusetts Avenue, N.W. 
Washington, DC 20036

A n n  R e e s m a n , E s q .
Jo e  L o b u e , E s q . 
M c G u in e s s  & W il l ia m s  
Suite 1200
1015 Fifteenth Street, N.W. 
Washington, DC 20005

HAKLbS MUFITUN KALSTUN