Lowery v. Circuit City Stores Supplemental Brief for the Appellant/Cross-Appellee Regarding a Recent Decision of the District Court

    ORAL ARGUMENT TENTATIVELY CALENDARED FOR APRIL 9, 1998

Nos. 98-1170; 97-1372(L)

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

RENEE LOWERY, et al.

Plaintiffs-Appellees/Cross-Appellants,
v.

CIRCUIT CITY STORES, INC.,

D efendant-A ppellant/Cross-A ppel lee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

SUPPLEMENTAL BRIEF FOR THE APPELLANT/ CROSS-APPELLEE 
REGARDING A RECENT DECISION OF THE DISTRICT COURT

Of Counsel:

W. STEPHEN CANNON 
PAMELA G. PARSONS 
TERI C. MILES 

Circuit City Stores, Inc. 
9950 Mayland Drive 
Richmond, Virginia 23233 
(804) 527-4000

ANDREW L. FREY 
KENNETH S. GELLER 
DONALD M. FALK 
MARK S. DAVIES 

Mayer, Brown & Platt 
2000 Pennsylvania Avenue, N. W. 
Washington, D.C. 20006 
(202) 463-2000

Counsel fo r the Appellant



Page

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

SUPPLEMENTAL STATEMENT OF JURISDICTION.............................................................1

SUPPLEMENTAL STATEMENT OF THE ISSUE....................................................................1

SUPPLEMENTAL STATEMENT OF THE C A S E ....................................................................1

SUPPLEMENTAL STATEMENT OF FA C T S........................................................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................... 4

ARGUMENT.................................................................................................................................. 5

THE DISTRICT COURT’S RECENT DECISION FURTHER DEMONSTRATES 
THE OVERBREADTH OF ITS INJUNCTION....................................................................5

A. Lowery is Not Entitled to the Recruitment Manager Position or S a la ry .............. 5

B. The Recent Decision Intrudes Excessively Into Circuit City’s Personnel
Practices ...................................................................................................................... 6

C. Lowery’s Rejection of a Supervisor Position Terminates Her Right to Relief . . .  7 

CONCLUSION

TABLE OF CONTENTS

i



Page(s)
CASES

Curl v. Reavis, 740 F.2d 1323 (4th Cir. 1984) .................................................................... 5. 6

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ...................................................................... 7

Giandonato v. Sybron Corp., 804 F.2d 120 (10th Cir. 1986) ................................................ 7

O ’Donnell v. Georgia Osteopathic Hospital, Inc., 748 F.2d 1543
(11th Cir. 1984) ....................................................................................................................7

Pecker v. Heckler, 801 F.2d 709 (4th Cir. 1986).................................................................  4, 6

Performance Friction Corp. v. NLRB, 117 F.3d 763
(4th Cir. 1997) ....................................................................................................................... 6

STATUTES

28 U.S.C. § 1291 ..........................................................................................................................1

28 U.S.C. § 1331 ......................................................................................................................... 1

28 U.S.C. § 1343(a)(4)................................................................................................................1

TABLE OF AUTHORITIES

ii



SUPPLEMENTAL STATEMENT OF JURISDICTION

The district court had jurisdiction under 28 U.S.C. § 1331, 1343(a)(4). The latest judgment 

became final on January 7, 1998, and appeal was noticed on February 5, 1998. This Court has 

jurisdiction under 28 U.S.C. § 1291.

SUPPLEMENTAL STATEMENT OF THE ISSUE 

Whether the district court exceeded its discretion when, as part of the remedy for the 

discrimination allegedly suffered by plaintiff Renee Lowery, it ordered Circuit City to promote 

Lowery to a position as a manager, with greater responsibilities and higher pay than the position 

as a supervisor that the jury found she had been unlawfully denied.

SUPPLEMENTAL STATEMENT OF THE CASE 

The sole provision of the district court’s sweeping injunction not stayed by this Court requires 

that Circuit City promote Renee Lowery to the position of “Supervisor, Management Recruiting 

or its equivalent.” When Circuit City offered her an equivalent position, however, Lowery 

declined the offer. In the decision briefed by plaintiffs, the district court ordered Circuit City to 

promote Lowery to “Recruitment Manager” — a position with materially greater responsibilities 

and a 20% higher salary than the position at issue in the underlying case.

SUPPLEMENTAL STATEMENT OF FACTS 

Employees at Circuit City headquarters are led by both Managers and Supervisors. Because 

of Circuit City’s swift growth, “jobs rarely remain the same for very long.” JA 2688. See 

Appellant’s Opening Brief (“AOB”) (filed in No. 97-1372) 2, 3. Nonetheless, a “Supervisor” 

position is without a doubt “the next step down from Manager.” Supplemental Appendix (“SA”) 

21; see SA 19. A Supervisor focuses on day-to-day tasks, is generally responsible for a small 

number of low-skill employees, and reports to her manager. SA 14. A Manager, by contrast, is 

“responsible for more planning, more strategy, more communications laterally and upwardly” than 

is a Supervisor. SA 42; see SA 14. Circuit City departments usually have twice as many 

Supervisors as Managers. See, e.g., SA 19.

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As part of the judgment now on appeal. Circuit City was held liable for failing to promote 

Lowery to a position as Supervisor, Management Recruiting, which Cynthia Turner, the new 

manager of staffing and planning, awarded to Paige Bell in October 1994.' JA 694. Bell, who 

reported directly to Turner, supervised five recruiters. SA 38. She was earning $47,000 annually 

when she resigned the “upgrade[d] position” in early 1996. SA 12-14.

After Bell left, Turner appointed Antoinette Freeman, an African-American, to the position 

of “Recruitment Manager.” Freeman was paid $60,000 annually; her salary was more than 20% 

higher than Bell’s because Freeman had “significant” prior “management experience,” including 

two other manager positions at Circuit City. SA 9. Turner needed Freeman’s management 

experience because the recruiting department “needed to grow” (JA 2828) from its then 20 or so 

employees to today’s approximately 90 employees. SA 31. Lowery herself acknowledged that 

Freeman’s Recruitment Manager position had “different functions” from the position of 

Supervisor, Management Recruiting to which the jury found she should have been promoted. SA 

26; see 33-37, 43.

Once Freeman was promoted to a higher level of Circuit City’s management, the company 

made a “business decision” (SA 46) to eliminate the Recruitment Manager position. Although 

Freeman had at first been responsible for both management and Management Information 

Systems (“MIS”) recruiting, Circuit City had subsequently hired Pat Watkins as manager of MIS 

recruiting. SA 32-33. Reconsolidating the management and MIS recruiting under one manager, 

this time Pat Watkins, benefited Circuit City in a number of ways. First, it streamlined 

management to make it more responsive. SA 43. Second, “business ha[d] not been good,” and 

eliminating the now vacant position allowed Circuit City to reduce costs without firing people. 

Ibid. Third, Circuit City wanted to retain Pat Watkins, who was performing very well. By giving 1

1 Among other superior qualifications. Bell had more supervisory experience (JA 2840-41, 2856- 
58), better evaluations (JA 895-901, 2019-22), and was viewed as more of a team player (SA 23, 
JA 2892) than Lowery.

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her responsibility for professional recruiters and some increase in pay, Circuit City sought to 

make Watkins’ job more rewarding so that she would stay with the company. SA 44.

The jury had rejected Lowery’s two discrimination claims regarding management positions 

but found that Circuit City unlawfully failed to promote Lowery to the lower-level position of 

Supervisor, Management Recruiting. JA 3132-33. The district court entered an injunction that, 

in addition to ordering vast company-wide changes in employment procedures (see AOB 36-43), 

decreed that Circuit City promote Lowery to “Supervisor, Management Recruiting or its 

equivalent.” JA 772, T( 5. “If such a position is not presently open at Headquarters, Circuit City 

shall promote Lowery to such a position as soon as it becomes open.” Ibid. Circuit City was 

ordered in the meanwhile to pay Lowery the difference between her then-current salary and the 

salary of the Supervisor, Management Recruiting position. Ibid. On July 15, 1997, this Court 

stayed the entire injunction except for the paragraph relating to Lowery.

At the time the injunction was entered, there was no longer a position of Supervisor, 

Management Recruiting or its equivalent in the recruiting department. SA 15. To calculate the 

amount owed to Lowery, therefore, Circuit City estimated how much the person who last held 

that position, Bell, would likely have earned had she remained with Circuit City. Bell was paid 

$47,000 when she left Circuit City, and the average annual increases since then have been 3% 2 

SA 45. Accordingly, Circuit City increased Lowery’s salary from $43,690 to $49,862. SA 16- 

17. Unsatisfied, Lowery moved for an Order stating she was entitled under the Decree to a 

Manager position, as well as a salary of at least $60,000.

On October 23, 1997, Circuit City offered Lowery a position as Employment Supervisor, at 

a salary equal to what she was entitled to under the Decree ($49,862). This was the first 

supervisor position in the recruiting department that had come open since the Decree was entered 

(SA 15); the incumbent had accepted a higher-paying job. The Employment Supervisor, who

2 In its June 25, 1997 Opinion refusing to stay any portion of the injunction, the district court 
states incorrectly that, had Circuit City promoted Lowery to supervisor, she would have been paid 
$60,000. In fact, it was undisputed that Bell, the most recent supervisor of management 
recruiting, was earning $47,000 annually when she left Circuit City. SA 12.

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reported directly to Turner, supervised four recruiters for entry-level positions. SA 27-28. 

Because of the increase in demands on the recruiting department, the recruiters for entry-level 

positions were by this time paid at the level that recruiters for managerial positions had been paid 

in 1994, making the tasks of the entry-level recruiters “similar to the kinds of activities that Paige 

[Bell] would have been managing back in 1994.” SA 39. Moreover, Turner had long anticipated 

that recruiters would go back and forth between recruiting for entry-level, manager and other 

positions as business needs required. SA 41. Nonetheless, Lowery declined the promotion 

because she did not want to recruit for entry-level positions. SA 25. Colette Brooks accepted 

the promotion (and the salary) offered to Lowery; Brooks, like Lowery, was a management 

recruiter. SA 40.

Based on Lowery’s rejection of the offered promotion to Employment Supervisor, Circuit City 

moved the district court to modify the Decree to relieve Circuit City from any further obligation 

regarding Lowery. SA 4-5. After a hearing, the district court issued a Memorandum and Order 

ordering Circuit City to promote Lowery to the Recruitment Manager position and to pay her a 

salary of $60,000 a year. SA 7. The court made no mention of Lowery’s rejection of the 

Employment Supervisor position.

INTRODUCTION AND SUMMARY OF ARGUMENT

In expanding the scope of relief for Lowery, the district court once again extended its control 

over Circuit City’s personnel matters far beyond what could be justified by the judgment and 

evidence in this case. Circuit City’s offer of the Employment Supervisor position gave Lowery 

the opportunity to be placed “in a position as near as possible to where she would now be had 

discrimination not occurred.” Pecker v. Heckler, 801 F.2d 709, 711 (4th Cir. 1986). That, of 

course, is the sole legitimate objective of equitable relief. See AOB 36. Lowery’s declination 

of the offer arguably relieved Circuit City of further obligation to search for positions for 

Lowery; instead, the district court took exactly the opposite tack, requiring Circuit City to offer 

Lowery a Recruitment Manager position that entails substantially greater responsibilities (and a 

20% higher salary) than the position that the jury held was wrongfully denied to Lowery. That

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order grossly abuses the court's discretion because (a) the jury found that Lowery was entitled 

only to the Supervisor, Management Recruiting position or its equivalent; (b) Circuit City had 

made and implemented a lawful business decision to eliminate the Recruitment Manager position; 

and (c) Lowery’s rejection of the Employment Supervisor position terminated her right to relief. 

This latest order confirms the extent to which the district court has overreached in formulating 

relief for the alleged violations in this case.

ARGUMENT

THE DISTRICT COURT’S RECENT DECISION FURTHER DEMONSTRATES 
THE OVERBREADTH OF ITS INJUNCTION

Like the original Decree (see AOB 36-40), the district court’s latest Order again abused its 

discretion. The command that Circuit City recreate the Recruitment Manager position for Lowery 

as a remedy for a denied promotion to Supervisor, Management Recruiting places Lowery in a 

significantly more important and better paid position than she would have had without any 

discrimination, and amounts to another unwarranted intrusion on Circuit City’s lawful business 

decisions. The Order is particularly objectionable because the district court failed to take into 

account that Lowery had rejected Circuit City’s offer of an equivalent position. See AOB 43. 

This illustration of the Decree in practice confirms the need for this Court to vacate the Decree 

or drastically narrow it.

A. Lowery is Not Entitled to the Recruitment Manager Position or Salary

As the district court originally recognized (SA 7), its proper “objective is to place plaintiff 

in a position as near as possible to where she would now be had discrimination not occurred.” 

Curl v. Reavis, 740 F.2d 1323, 1330 (4th Cir. 1984) (emphasis added). When there is no 

“evidence” that plaintiffs promotion from the wrongfully denied position “after any given period 

of service” would have been “automatic,” requiring instatement at the higher position is 

“improper.” Ibid, (plaintiff wrongfully denied promotion to deputy not entitled to instatement 

as detective). Only when “there was a definite line of progression * * * always adhered to by 

the employer” has this Court approved promoting a prevailing plaintiff to a position higher than

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the position she was unlawfully denied. Id. at 1330 n.6. See Pecker. 801 F.2d at 712 (rejecting 

“the notion that [a Title VII plaintiff] is qualified for, and should be promoted to, a position 

different and more demanding than that which she was denied’’).

The record is utterly devoid of evidence that, had Lowery been promoted to Supervisor, 

Management Recruiting, she would thereafter have been automatically promoted to Recruitment 

Manager. Indeed, it is precisely the absence of a rigid, government style bureaucracy at Circuit 

City that underpins plaintiffs’ entire law suit. It is also beyond dispute that a change from 

Supervisor to Manager constitutes a “promotion.” SA 11, 19, 21, 29-30, 42. Lowery's declining 

performance — not to mention her well-documented difficulties dealing with her peers — would 

have made such a promotion far from automatic. See AOB 5-6. Indeed, the jury’s rejection of 

Lowery’s claims involving promotion to Manager and Lowery’s failure even to bring a claim 

regarding the replacement of Bell by Freeman in 1996 suggests that neither the jury nor Lowery 

considered her to have serious prospects at the Manager level. It was therefore improper for the 

district court to compel Circuit City to promote Lowery to a Manager position that she might not 

have reached in the normal course (Curl, 740 F.2d at 1330) — let alone to compel the creation 

of such a position when valid business reason have been advanced for its elimination.

B. The Recent Decision Intrudes Excessively Into Circuit City’s Personnel Practices

The district court’s most recent decision again supplants Circuit City’s legitimate business 

judgment, see AOB 40-45; Performance Friction Corp. v. NLRB, 117 F.3d 763 (4th Cir. 1997), 

this time by ordering Circuit City to reverse its decision to eliminate an expensive, unneeded 

managerial position. The district court did not dispute that Circuit City had legitimate business 

reasons to eliminate the Recruitment Manager position. Instead, it simply issued a fiat requiring 

Circuit City to recreate the position. The district court would force Circuit City to create an 

overpaid and unnecessary position that will impede effective management.3

3 Because the district court’s opinion gives no indication of recognition that the Manager position 
that it ordered given to Lowery was materially different in both level of responsibility and nature 
of duties from the Supervisor position she had, according to the jury, been unlawfully denied, it 
is possible that the Order from which Circuit City here appeals is simply based upon a mistake

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C. Lowery’s Rejection of a Supervisor Position Terminates Her Right to Relief

“Although the unemployed or underemployed claimant need not go into another line of work, 

accept a demotion, or take a demeaning position. [s]he forfeits [her] right to backpay if [s]he 

refuses a job substantially equivalent to the one [s]he was denied.’'’ Ford Motor Co. v. EEOC, 458 

U.S. 219, 231-32 (1982). A claimant who refuses an offer of a substantially equivalent promotion 

likewise forfeits her right to reinstatement. Giandonato v. Sybron Corp., 804 F.2d 120, 124 (10th 

Cir. 1986); see O’Donnell v. Georgia Osteopathic Hospital, Inc., 748 F.2d 1543, 1550 (11th Cir. 

1984).

The Employment Supervisor position is substantially equivalent to the defunct Supervisor, 

Management Recruiting position. Both positions report directly to Cynthia Turner. Like the 

Supervisor, Management Recruiting position, the Employment Supervisor position involves 

supervising a small number of relatively low-skill recruiters. The tasks of the two sets of 

recruiters are so similar that at times the same manager has been responsible for both sets of 

recruiters (Bell in 1995 and Freeman in 1996). That Colette Brooks, who like Lowery was a 

management recruiter, chose to accept (SA 40) the promotion to Employment Supervisor 

demonstrates that Lowery’s refusal is based on mere personal preference. Giandonato, 804 F.2d 

at 124 (refusing for “personal reasons” substantially equivalent job terminates right to 

reinstatement). Because personal reasons motivated Lowery’s refusal of the Employment 

Supervisor position, which is substantially equivalent to the Supervisor, Management Recruiting 

position, the district court should have terminated this portion of the Decree. The court’s failure 

to do so demonstrates that, unless this Court intervenes, the Decree may indeed last forever as 

a tool for judicial micro-management of Circuit City’s routine employment decisions. AOB 43.

of fact rather than a purpose to intrude more deeply into Circuit City’s managerial discretion. 
That would, of course, make it no less ripe for reversal.

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CONCLUSION

The recent decision of the district court further demonstrates the overbreadth of the injunction.

That decision should be reversed and the injunction should be vacated or drastically narrowed.

Of Counsel:

W. STEPHEN CANNON 
TERI C. MILES 
PAMELA G. PARSONS 

Circuit City Stores, Inc 
9950 Mayland Drive 
Richmond, Virginia 23233 
(804) 527-4000

Respectfully submitted.

rr t 7  /
ANDREW L. FREY ' /  
KENNETH S. GELLER 
DONALD M. FALK 
MARK S. DAVIES

Mayer, Brown & Platt 
2000 Pennsylvania Avenue, N.W. 
Washington, D.C. 20006 
(202) 463-2000

Counsel for the Appellant

Dated: February 11, 1998.



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of February, 1998, two copies of the 
foregoing Supplemental Brief for the Appellant/Cross-Appellee Regarding a Recent Decision o f 
the District Court were served by first-class mail upon:

David J. Cynamon, Esq.
Shaw, Pittman, Potts & Trowbridge 
2300 N St., N.W.
Washington, D.C. 20037-11218

Avis Buchanan, Esq.
The Washington Lawyers’ Committee for 

Civil Rights and Urban Affairs 
1300 19th St., N.W.
Suite 300
Washington, D.C. 20036

John A. Gibney, Jr., Esq.
Shuford, Rubin & Gibney, P.C.
700 East Main Street, Suite 1250 
Richmond, Virginia 23219

and one copy was served by first-class mail upon:

Paul D. Ramshaw, Esq.
US Equal Employment Opportunity Commission 
1801 L Street NW Room 7010 
Washington, DC 20507

Charles S. Ralston
NAACP Legal Defense and Educational Fund Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013

Mark S. Davies