Holsey v. Armour & Company Petition for Rehearing

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UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 83-1428

CURTIS HOLSEY, et al. ,
Appellees,

v.
ARMOUR & COMPANY,

Appellant.

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P E T I T I O N  F O R  R E H E A R I N G

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PETITION FOR REHEARING

INTRODUCTION

This Petition for Rehearing is brought before the 
Court because, in the judgment of the undersigned counsel, the 
Court has overlooked and misapprehended material points of law 
and fact. This petition for rehearing addresses three issues. 
First, the Petition addresses the class certification issue. 
Second, the Petition addresses the Court's holding at Stage I 
that the claims of the plaintiffs and certain class members were 
meritorious thus barring the defendant from any opportunity to 
rebut their individual claims at stage II. Third, the Petition 
addresses the holding that plaintiff Drakeford was 
constructively discharged. The specific points of law and fact 
which the undersigned respectfully submit have been overlooked 
or not fully considered by the Court are set forth seriatim as 
to each issue raised by this Petition for Rehearing.

CLASS CERTIFICATION

The named plaintiffs, Holsey, Drakefc.i and Frazier 
each filed charges of discrimination against Ar .our and the 
Union on March 7, 1974 alleging that Armour and the Union had
engaged in racially discriminatory employment practices. 
Approximately three months after the institution of this action 
Mynell Bennett moved to intervene and her motion was granted; 
Bennett had filed a charge of discrimination against Armour on 
January 27, 1972. Intervenors Edwards, Harvey and Hill moved
and were allowed to intervene six months after trial. 
Intervenors Edwards, Hill, and Harvey never filed charges of 
discrimination.



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The class definition, as modified by this Court, 
includes employees who were allegedly denied (1) sales or (2) 
supervisory positions and (3) employees who allegedly suffered 
retaliation for opposing discriminatory practices or exercising 
rights protected under Title VII. This Court found that 
Drakeford and Harvey were denied sales positions; that 
Drakeford and Edwards were denied supervisory positions; and 
that Holsey, Frazier, Drakeford, and Bennett were victims of 
retaliation. Drakeford alone fits each of the distinct areas of 
class certification (i.e., sales, supervisors, and retaliation).

This Court noted that "at least one representative is 
a qualified member of the class of employees denied promotions 
in sales and supervisory positions and subjected to 
retaliation." slip op. at 37. That one representative can only 
be Drakeford. The undersigned respectfully submit that this 
Court has overlooked the fact that it is Bennett's charge of 
discrimination, not Drakeford's, on which the class 
certification date is based. The class certification date is 
July 27, 1971, 180 days prior to the date Bennett filed her
charge of discrimination. Docket Entry 98. This fact is 
important because Bennett's charge was filed more than two years 
prior to Drakeford's. The class as certified allows Bennett to 
represent a class of employees allegedly denied sales and 
supervisory positions.

Bennett worked as a replacement worker in the sausage 
department from July of 1971 through January of 1972. During 
Bennett's employment of six months she worked a total of 45% 
days as a replacement worker. After January of 1972 Bennett was 
never recalled to work. Bennett was never denied a supervisory 
or sales position. The Court's allowance of Bennett as a class 
representative of the sales and supervisory class is 
inconsistent with General Telephone Company of the Southwest v.

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Falcon, 457 U.S. 147 (1982); East Texas Motor Freight v.
Rodriguez, 431 U.S. 395 (1977); and Stastny v. Southern Bell
Telephone and Telegraph Co., 528 F.2d 267 (4th Cir. 1980). 
Bennett's race is the only common denominator between herself 
and a class seeking supervisory and sales positions. Under the 
foregoing authorities, such limited nexus is insufficient to 
satisfy the requirements of Rule 23. Since 3ennett cannot 
represent a class seeking sales and supervisory positions, he; 
charge of discrimination cannot be used as the springboard for 
the class certification date.

If Bennett's charge is to be used as a basis for the 
class certification date, it can only be so used for a subclass 
of alleged victims of retaliation, thus creating two subclasses, 
one subclass for employees denied sales and supervisory 
positions and the second subclass for employees allegedly 
victims of retaliation. The law is clear that each subclass 
must separately meet the requirements of Rule 23 . See, Betts v . 
Reliable Collection Agency, Ltd., 659 F.2d 1000 (9th Cir. 1981).

It is further submitted that this Court has misapplied 
the law in certifying a retaliation class. This Court has 
affirmed findings that four individuals (Holsey, Frazier, 
Drakeford, and Bennett) were victims of retaliation. A review 
of the record confirms there was no evidence that any other 
black employee had ever been a victim of retaliation. 
Retaliation is obviously a disparate treatment issue and in a 
disparate treatment class action the plaintiffs must show the 
"existence of an identifiable employment pattern, practice, or 
policy that demonstrably affects all members of a class in 
substantially, if not completely, comparable ways." Stastny, 
supra, at 274. Even assuming that retaliation claims are 
appropriate for class treatment, despite their individualized 
nature, the requirements of Rule 23 must nevertheless be met.

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Specifically, as clearly held in Stastny, there must in fact be 
a class. In the present case, four individuals have testified 
that they were retaliated against and the court has so found. 
However, there is no evidence that any other employee has ever 
been retaliated against. To proceed from the fact that there 
were four individuals who were retaliated against to the 
conclusion that there is a class of retaliation victims requires 
an unjustified leap in logic. Therefore, even if claims of 
retaliation are susceptible to class treatment, class treatment 
of those claims under the facts of this case is contrary to Rule 
23 and this Court1s holding in Stastny.

Finally, with regard to class certification, it is 
submitted that this Court has not followed the approach approved 
in Kelley v. Norfolk & Western Ry, 584 E.2d 34 (4th Cir. 1978). 
This Court distinguished Kelley noting that "Kelley involved 
complaints of a promotion system at a facility where there were 
67 black employees, all lived in the same area, and plaintiffs 
identified only 8 black employees who were qualified for 
promotion." slip op. at 38. However, the Court in Ke 1 ley 
specifically found the additional fact that there were 25 
promotions during the relevant period and opined that "it could 
be argued persuasively that the appropriate class could not 
exceed 25." 584 F.2d at 35. Kelley also stated that "it might
be that under some theory, the appropriate class would embrace 
all black car-repairmen, irrespective of qualifications for 
promotion, though we have difficulty in finding a basis for such 
a result." Id. at 35.

In the case at bar, all members of the class were 
employees at a single facility located in Charlotte. Using 
Drakeford's charge of discrimination as the basis for class 
certification, the total number of openings in sales and 
supervisory positions occurring during the relevant time period

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would be 17. Two aspirants for supervisory positions, Drakeford 
and Edwards, and two aspirants for sales positions, Drakeford 
and Harvey, are parties to this action. In Kelley it is clear 
that the Court in denying class certification used the 25 
promotions as the count for numerosity. It is respectfully 
submitted that on the issue of numerosity, the facts in the 
present case are indistinguishable from those in Kelley.

STAGE 11 BURDEN OF PROOF
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Armour contends that under this Court's decision in 
Sledge v. J. P. Stevens & Co., 585 F.2d 625 (4th Cir. 1978) it 

i-’:' is error in a bifurcated trial to conclude at Stage I that a
plaintiff or class member has prevailed on his or her individual 
claim leaving for Stage II only the computation of monetary 
damages as to that individual. Armour's assertion is addressed 
to both the named plaintiffs and intervenors. The court in 
Sledge held that the "process for proving entitlement to 
monetary restitution was cut short in this case because decision 
to bar the claims of the named plaintiffs was reached after 
trial of the issue on the legality of Stevens' conduct, but 
prior to the second stage of the bifurcated proceedings which 
had been expressly reserved for the evaluation of request for 
individual relief." Id. at 637. Sledge further stated that it 
would be "unfair to penalize any claimant -- whether a named 
plaintiff or not —  for failing to affirmatively prove in the 
first step of the inquiry that which he was led to believe he
would be expected to prove only in the later, yet to be held_ ■ —
back pay proceedings." _Id. at 638. Sledge is consistent with 
Teamsters v. United States, 431 U.S. 324 (1977) noting that
"individual proof concerning each class member's specific injury 
was appropriately left to proceedings to determine individual 
relief". Id. at 343 n.24.

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Under this Court's holding Sledge, it would have been

error for the trial court in the present case to have concluded 
at Stage I that plaintiffs' or intervenors' individual claims 
were meritless. The result is that the plaintiff or class 
member who testifies at trial can prevail but can never lose on 
his or her individual claim at Stage I. In disparate treatment 
cases, the plaintiff and defendant have well established 
burdens. United States Postal Service Board of Governors v.
Akins, ___ U.S. ___, 103 S. Ct. 1483 (1983); Texas Dept, of
Community Affairs v. Berdine, 450 U.S. 248 (1981); Board of
Trustees v. Sweeney, 439 U.S. 24 (1978); Furnco Construction Co. 
v. Waters, 438 U.S. 567 (1978); Teamsters v. United States, 431 
U.S. 324 (1977); McDonnell-Douglas Corp. v. Green, 411 U.S. 792 
(1973). It is respectfully submitted that the procedure which 
this Court has now adopted for bifurcated trials has thrown out 
of balance the shifting burdens and responsibilities established 
by the foregoing decisions of the Supreme Court. In an 
individual trial, if the plaintiff establishes a prima facie 
case, the defendant must articulate a reasonable 
nondiscriminatory reason for its actions and finally the 
plaintiff may show pretext. In a bifurcated trial, the issue of 
class discrimination follows the same pattern, i-6-/ the 
plaintiff establishes a prima facie case of class 
discrimination, the defendant articulates a reasonable 
nondiscriminatory reason and the plaintiff may show pretext. 
However, in the individual claim in a bifurcated trial, the 
defendant can never rebut an individual's claim at Stage I, I 
always giving the plaintiff or class member two opportunities.

and intervenors, it is submitted that this Court's holding is 
particularly inequitable as to intervenors Edwards, Hill, and 
Harvey. During the discovery process and at trial, the class in 
this action was defined as an across-the-board class covering

While Armour raises this issue as to both plaintiffs

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all conceivable aspects of employment at Armour's Charlotte
facility, including both employees and applicants. For obvious
reasons, Armour could not conduct discovery as to everyls_— —  ---------------- ' " -
potential class member, even if these persons could somehow be 
identified.At the trial, class members, including Edwards, 
Hill, and Harvey, testified. After the trial, and prior to any 
motion to intervene, the trial court filed its Memorandum of 
Decision conclusively finding that Edwards, Bennett, and Hill 
were individual victims of discrimination. The Court's 
Memorandum of Decision is tantamount to a judgment in favor__gf_-a- 
nonparty. It was not until six months after the Memorandum of 
Decision that Edwards, Bennett, and Hill even moved to 
intervene. The fact that intervention was before judgment is of 
little significance in view of the Memorandum of Decision and 
the fact that it was plaintiffs' counsel who was directed to 
prepare the findings and judgment.

The result of procedure which was followed is 
illustrated in the Order on Reference to a Master. Under the 
terms of this Order, the only issue at Stage II as to the 
plaintiffs and intervenors is damages. With respect to other 
class members, the master must first determine if the class 
member was denied a position because of race and then make 
recommendations as to loss of income.

It is respectfully submitted that this Court's holding 
is inconsistent with Sledge and the Supreme Court decisions 
establishing the relative burdens of plaintiff and defendant.

CONSTRUCTIVE DISCHARGE

The conclusion that Drakeford was constructively 
discharged is based upon the following findings: he was put on
a night shift so that a white supervisor could get the day

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shift; his shift was later adjusted to accommodate another white 
supervisor; the general foreman released some of Drakeford's 
crew without advising him; Drakeford complained and the problem 
continued; Drakeford requested a transfer which he was told was 
not available.

There are undisputed facts which the court has not 
considered. Drakeford registered but one complaint, that being 
on the occasion when the general foreman, Melvin Potts, released 
a part of his crew. Drakeford never complained about any change 
of shifts. (Appendix 864-865) When Drakeford did complain 
about Melvin Potts releasing part of his crew to Paul Gibson, 
Potts' supervisor, Gibson told Potts in Drakeford's presence 
that Drakeford was the only one that could excuse Drakeford's 
crew. (Appendix 865-866) Drakeford testified that Potts 
released his crew at some later date; however, Drakeford never 
brought the matter to Gibson's attention again.

!A constructive discharge claim is by nature a 
disparate treatment claim. Drakeford testified that his shift 
was changed twice and that Melvin Potts released a portion of 
his crew on two occasions. Drakeford was asked on direct 
examination "Were any of the other foreman, to your knowledge, 
experiencing the same problem that you have just described?" 
Drakeford's answer was "I don't know". (Appendix 557) Thus, 
there is no showing that the treatment received by Drakeford was 
any different from that received by any other supervisor, white 
or black. A~showing of different treatment is the very essence 
of a disparate treatment claim. Such showing is simply missing

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Further, it is respectfully submitted that this court 
has not fully considered its holding in EEOC v. Federal Reserve 
Bank, 698 F.2d 633 (4th Cir. 1983) where it was held in regard

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to constructive discharge as follows: "To establish
constructive discharge under Title VII, the employee must [have 
been] subjected to employment practices which are discriminatory 
and which make the working conditions intolerable, thus forcing 
the employee to quit. Further, the employer's actions must be 
intended by the employer as an effort to force the employee to 
quit." (emphasis added) Id- 672.

As previously noted, there is no basis for a 
conclusion that the conditions of which Drakeford complained 
were in fact di scriminatory, absent a showing that he was 
treated differently. In addition, addressing the element of 
intent, the trial court's decision was entered prior to this 
court's decision in EEOC v. Federal Reserve Bank, supra. At the 
time of the trial court's decision (and in fact at the time of 
the initial appeal in this action), the circuits differed in 
their treatment of constructive discharge cases on the issue of 
intent. The contested nature of this issue is amply reflected 
in the briefs of the parties on the initial appeal of this case. 
(Appellee's brief in the initial appeal, 81-1312, 81-1515,
stated "No showing of intent is requires." p. 39. Appellees 
relied on Abron v. Black and Decker, 654 F.2d 951 (4th Cir. 
1981) for the premises that this Court had adopted the view that 
no showing of intent was required.) There is no finding by the 
trial court that Armour's actions were "intended by the employer 
as an effort to force the employee to quit". In fact, none of 
the authorities cited by the trial court in support of its 
finding of constructive discharge represent the line of cases 
which require a showing of intent. (Appendix 138). It is 
respectfully submitted that the absence of such a finding is 
both obvious and fatal.

Furthermore, this Court's recent holding that the 
requisite intent was present is based upon "the fact that higher

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officials knew of Drakeford's untenable position and took no 
action to correct it". slip op. at 18. It is respectfully 
submitted that this finding is incorrect. It is undisputed that 
the only complaint by Drakeford to a higher official was to 
Gibson. It is also undisputed that Gibson responded in a prompt 
and direct manner. Gibson's response to Drakeford's complaint 
is inconsistent with and refutes any finding of intent.

It is respectfully submitted for the foregoing reasons 
that the conclusion that Drakeford was constructively discharged 
is in error.

WHEREFORE, the undersigned counsel, on behalf of the 
appellant Armour and Company, hereby petition for rehearing 
pursuant to Rule 40 of the Federal Rules of Appellate Procedure.

This the 31st day of August, 1984.

OF COUNSEL:
PETREE, STOCKTON, ROBINSON,
VAUGHN, GLAZE & MAREADY 
1001 West Fourth Street Winston-Salem, North Carolina 27103 
Telephone: (919) 725-2351

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CERTIFICATE OF SERVICE

In accordance with Rule 25 of the Rules of the 
U. S. Court of Appeals Fourth Circuit, I hereby certify that 
I have this 3/ day of August, 1984 filed the required copies 
of the PETITION FOR REHEARING in the Clerk's office, and have 
mailed the required copies of the PETITION FOR REHEARING to:

J. LeVonne Chambers, Esq. 
CHAMBERS, FERGUSON, WATT, WALLAS, 
ADKINS & FULLER, P.A.
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

This the 3 I day of August, 1984.