Stallworth v. Monsanto Company Brief for Appellants

    V I r
S

s

UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT 

NO. 75-2405

EDDIE STALLW ORTH, et a l . , 

P la intiffs, 

v.

MONSANTO COMPANY, 

Defendant,

J. W. PALM ER, et al. , 

Movants.

A PPE A L FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

BRIEF OF APPELLAN TS
]
1 . —*

D. L. M iddlebrooks and 
Jeffrey  A. C ram er
Levin, W arfield , M iddlebrooks, Graff, 

M abie, Rosenbloum  & M agie, P .A . 
Seville T ow er, 226 South Palafox Street
P ensacola , F lorid a  3250:1 
Attorneys fo r  Appellants



NO. 75-2405

EDDIE STALLW ORTH, et al. , 

P la intiffs, 

v.

MONSANTO COMPANY, 

Defendant,

J. W. PALM ER, et al. , 

M ovants.

C ertificate  required  by Fifth C ircuit L oca l Rule 13(a):

The undersigned, counsel of re co rd  fo r  m ovants-appellants

J. W. P a lm er, et al. , ce rtifie s  that the follow ing listed  parties have an

interest in the outcom e of this case . These representations are made

in ord er  that judges of this court m ay evaluate possib le  disqualification

or recu sa l pursuant to L oca l Rule 13(a).

Eddie Stallworth, Jesse F ord ,
Angelo M outrie, Sam Bonham,
F red  H enderson^ E rnestine Young,
R obert Davis, Henry Golsten,
Jonas F a ir lie , C harles Pow e, 
individually and on behalf of all
p ersons sim ila rly  situated, -  P laintiffs

Monsanto Company Defendant



J. W. P a lm er, Bobby W. M orr is ,
G. C. Brantley, Huey Courtney,
R ichard S. Brown, Pete B artley,
E. V. Am ason, J r . ,  W. L . Pugh,
C. B. K elley, J. W. Thom pson,
Jam es D. R oberson , C. E. M cLelland,
R. H. W oodard, H. C. F ow ler,
W. D. R oberson , W. L. B ingle,
W. S. Howell, R. D. Thom as,
L. E. S e llers , R. C. C urtis,
J. D. Ingram, M arcus Dobson,
Don S. Smith, A. J. M cC roskey,
M arvin Sanders, C. L. Payne,
C. E. Bryan, B ill M orr is ,
C. R. K elson, C. F . Kast,
D. H. M orr is , M. L . C havers,
H. L. M cC rone, R. Y. Cotton,
L. D. Goodson, Paul B. Vanlente,
D. H. Smith, R. K. Bryan, 
and other m em bers of the class
which they represent - Intervenors

D. L. MIDDLEBROOKS
A ttorney of R ecord  for  MovantsAppellants



TA BLE  OF CONTENTS

Page

TABLE OF AUTHORITIES • i

ISSUES PRESENTED 1

STATEMENT OF THE CASE AND FACTS 2

ARGUMENT 5

CONCLUSION 15

CERTIFICATE OF SERVICE 161



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TABLE OF AUTHORITIES

CASES

Page

Atlantis Developm ent C orporation  v. United States, 
379 F . 2d 818 (5th C ir. 1967) 12

Cox v. A llied  Cham ical C orporation , 
382 F . Supp. 309 (M .D . La. 1974) .1 9

Donaldson v. United States, 
400 U. S. 517 (1971) 14

E lder v. New Y ork  Central R ailroad Co. , 
152 F . 2d 361 (6th C ir. 1949) 14

L ocal 189, United Paper M akers and Paper 
W orkers v. United States, 416 F . 2d 980 
(5th C ir. 1969), cert. den. 397 U. S. 919 (1969) 5 8

M cDonald v. E . J. Lavino Co. , 
430 F . 2d 1065 (5th C ir. 1970) 5

M issouri-K an sas P ipeline Co. v. United States, 
312 U. S. 502 (1941) 14

NAACP v. New Y ork , 
413 U. S. 345 (1973) 6, 8, 10

Neusse v. Camp,
385 F . 2d 694 (D .C . C ir. 1967) 12, 13

Smith P etroleum  S erv ice , Inc. v. Monsanto 
Chem ical C o . , 420 F . 2d 1103 (5th C ir. 1970) 5

Smuck v. Hobson,
408 F . 2d 175 (D .C . C ir. 1969) 13

T extile  W orkers Union o f A m erica  v. A llendale C o . , 
226 F . 2d 765 (D. C. C ir. 1955) 14



Page

United States v. Bethlehem  Steel C orporation ,
446 F . 2d 652 (2nd C ir. 1971) • 9

STATUTES

42 U. S. C. §2000(e) 3, 5, 8 ,' 9,
• 10, 11, 12

TREATISES

3B M oore 's  F edera l P ra ctice ,
JT24.13[ 1] p. 24-525 (2nd ed. 1969) 5

i)

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ISSUE PRESENTED

DID THE DISTRICT COURT ERR IN DENYING THE MOTION TO INTERVENE



STATEMENT OF THE CASE AND FACTS

Appellants herein , applicants fo r  intervention below (h ere ­

inafter re fe rred  to as "In terven ors"), appeal from  the ord er  o f the United 

States D istrict Court fo r  the Northern D istrict of F lorid a  denying their 

m otion to intervene. F o r  brevity, re feren ces  to the R ecord  on Appeal 

w ill be expressed  as (R. ).

F o r  many years p r io r  to the com m encem ent of this litigation. 

Defendant Monsanto Company (hereinafter re ferred  to as the "Com pany1:') 

had based prom otion , ro llback , day and re lie f  work, and shift selection  

on group seniority  rather than plant sen iority  in its engineering and in ter­

m ediates departments at its P ensacola  fa cility  (R. 63). In other w ords, 

advancement and other em ploym ent advantages within certain  departments 

w ere related to the length of tim e an em ployee had worked in that department 

and bore no relation to the length of total se rv ice  with the Company. 

Intervenors are em ployed by the Company in its interm ediates department 

and have all acquired valuable amounts of group sen iority  (R. 146, 153, 158). 

A ccord in g ly , Intervenors ranked near the top on the sen iority  list in that 

department and had attained rela tively  secu re  em ploym ent positions with 

the Company (R. 146, 153, 158).

On A pril 13, 1973, severa l black em ployees o f the Company 

(hereinafter re ferred  to as "P la in tiffs") filed  suit in the D istrict Court fo r

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the Northern D istrict of F lorid a  pursuant to T itle  VII of the C ivil Rights 

Act of 1964, 42 U. S. C. §2000(e) (hereinafter re ferred  to as "T itle  V II"). 

P laintiffs contended that they had suffered  racia l d iscrim ination  in em ploy ­

ment at the hands of the Company and w ere entitled to affirm ative re lie f 

from  that racia l d iscrim ination . P laintiffs alleged, inter a lia , that the 

seniority  system  adm inistered by the Company d iscrim inated against

blacks, because the Company had denied blacks the opportunity to acquire 

any m eaningful seniority  in certain  departm ents. P la intiffs, th erefore ,

\ took the position  that as to the "a ffected  c la s s "  of b lack em ployees, p rom o-i
tions and other em ploym ent advantages should be based on plant seniority

1
rather than group sen iority , at least until all black em ployees of the 

Company reached their rightful place of em ploym ent (R. 27-33).

At no tim e during the entire course of this litigation, how ever, 

did anyone even intimate that group sen iority  should be abolished as to all 

em ployees of the Company, both black and white. N onetheless, on M arch 7, 

1975, Plaintiffs and the Company presented to the tria l court a settlem ent 

stipulation containing a p rov ision  com pletely  abolishing group seniority

not only as it applied to the affected c la ss , but a lso as it applied to all 

em ployees of the Company (R. 141). On that very  day, the D istrict Court 

entered a consent decree  incorporating the stipulation (R .125). The C ourt's 

com plete abolition of group sen iority  caused many encumbent white w orkers

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J

to m ove ahead of Intervenors on the sen iority  lis ts , even though the elevated 

white w orkers had never suffered  ra cia l d iscrim ination  (R. 146, 153, 158).

At no tim e did Intervenors have any reason  to believe that 

the Company would not live up to its com m itm ent to its white encumbent 

w orkers or  that the F ed era l Court would exceed  the pow er granted to it 

by T itle  VII. Indeed, many months p rior  to M arch 7, 1975, the Company 

requested and was denied by the court the opportunity to give notice of 

the pendency of the litigation to its white em ployees (R. 169-172).

In le ss  than thirty (3 0) days from  the tim e Intervenors ' .
■ *• t

learned of the cou rt's  abolition of their group sen iority  rights, they 

loose ly  organized them selves, retained an attorney, and took affirm ative 

steps to rectify  the situation through a m otion to intervene in this litigation. 

The D istrict Court denied the Motion and, hence, this appeal.

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c * •

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ARGUMENT

THE DISTRICT COURT ERRED IN DENYING 
THE MOTION TO INTERVENE

Although the D istrict Court made no finding that any existing 

party to this litigation would be prejudiced  should the m otion to intervene 

be granted, the court nonetheless held that the m otion was not "tim ely" 

and denied it (R. 229). W hile the determ ination of tim eliness in this con ­

text is a m atter com m itted to the sound d iscretion  of the tria l court, the 

d ecision  of the court as to tim eliness is subject to rev ersa l where this 

d iscretion  has been abused. McDonald v. E. J, Lavino Company, 430 E2d 

1065 (5th C ir. , 1970); 3B M oore 's  F ed era l P ra ctice , JT24.13[1], at p. 24-525 

(2nd e d . , 1969).

F rom  the ord er denying the m otion to intervene, it is 

apparent that the court based its finding that the m otion was untimely sole ly  

upon the fact that the litigation had been pending fo r  alm ost two years and 

the fact that severa l ord ers  had been entered by the court p r io r  to the 

filing of the m otion to intervene. Inasmuch as tim eliness is to be d eter­

mined from  all of the circum stan ces involved, Smith P etroleum  S erv ice , 

In c ., v, Monsanto Chem ical Com pany, 420 F . 2d 1103 (5th C ir . , 1970), 

Intervenors respectfu lly  suggest that the tria l court viewed the m atter 

too narrow ly and thereby abused its d iscretion  in denying the m otion to 

intervene.

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V.j>'

An extensive examination c f  the "c ircu m sta n ces" which 

must be considered  by the tria l court in determ ining the tim eliness ques­

tion is found in NAACP v. New Y o rk , 413 U. S. 345 (1973). The first 

consideration  weighed by the Supreme Court in that case concerned the 

fact that the low er court:

. . could reasonably have concluded that appellants 
knew o r  should have known of the pendency of the §4(a) 
action because of an inform ative F ebruary article  in the 
New Y ork  T im es d iscussing the con trovers ia l aspect of 
the suit; public com m ent by com m unity lead ers; the 
size  and astuteness of the m em bership and staff of the 
organizational appellant; and the questioning of two of 
the individual appellants them selves by Department of 
Justice attorneys investigating the use of litera cy  tests 
in New Y ork . "

Id. at 366-367.

In the instant case the re co rd  is com pletely  devoid of any 

facts w hatsoever upon which the tria l court could have concluded that 

Intervenors knew or should have known of the pendency of this case. 

Appellants are sim ply individual em ployees of the Company, have no 

organization w hatsoever, and certain ly lack astuteness in legal m atters. 

Indeed, the uncontroverted evidence before  the court (R. 148, 153, 158) 

c lea r ly  dem onstrates that the Intervenors had no inkling p rior  to the M arch 7, 

1975, consent d ecree , that their em ploym ent rights with Defendant Monsanto 

Company would be affected in any way by any pending litigation. Intervenors 

respectfu lly  suggest, th erefore , that the tria l cou rt's  finding that

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: >

Intervenors "knew or should have known" of the pending litigation finds 

no support in the record  and is erron eous.

The court in NAACP also held that a potential intervenor 

must take im m ediate affirm ative steps to protect his interests once he 

learns that the existing parties to the litigation are not protecting those 

in terests. The court there held that because it was obvious from  the 

pleadings of Defendant United States that it had no inform ation with which 

to oppose a m otion fo r  sum m ary judgment filed  by the State of New Y ork , 

the NAACP should have taken im m ediate steps either by supplying the 

Department of Justice with the n ecessary  inform ation or by presenting 

that inform ation to the D istrict Court itse lf by way of a m otion to in ter­

vene. In that case , the potential intervenors took no action until after the 

court had granted the m otion fo r  sum m ary judgment adverse to the interests 

of the NAACP.

Intervenors in the instant case had absolutely no way of 

knowing that Defendant Monsanto Company would not protect their rights 

until the actual entry of the consent judgment in this case . The order 

entered by the low er court on M arch 7, 1975, approving the settlem ent 

stipulation of the parties (R. 141) c lea rly  dem onstrates that the settlem ent 

stipulation was presented to the court on that date and the court entered 

its ord er based thereon on that sam e date. Intervenors in the instant

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case , consequently, had no advance warning w hatsoever that the Company 

would com pletely  capitulate and agree to, and indeed encourage, the entry 

of an ord er  by the low er court which totally  elim inated Intervenors' hard- 

earned group sen iority  rights.

Both the original and amended com plaints filed  b y th e  

plaintiffs (R. 27-33) seek only "com pen satory  sen iority  to the plaintiffs 

and the m em bers of the class they represent. " M oreover, none of the 

volum inous documents and papers filed  fo r  the court in this case  even 

intimate that the question of group sen iority  as related to the Com pany's 

white em ployees was even in issue. F u rth erm ore, Intervenors can in no 

way be charged with the knowledge that the tria l court would enter an 

ord er abolishing group sen iority  as to all em ployees of the Company.

Under T itle VII the D istrict Court may take such affirm ative action as 

may be appropriate to co rre ct  the d iscrim in atory  p ractices  found to exist.

The leading case which deals with a departm ental seniority  

system  which was held to be d iscrim in atory  by virtue of its t ie -in  to 

past d iscrim in atory  p ra ctices  in L oca l 189, United Paper M akers and Paper 

W orkers v. United S ta tes, 416 F . 2d 980 (5th C i r . , 1969), cert, den .,

397 U. S. 919 (1969). The facts of that case are very  s im ila r to those of 

the case presently before  the court. A fter stating that the departm ental 

sen iority  system  was not d iscrim in atory  "p er se "  but was d iscrim in atory



/TV

because it had the effect of locking in p r io r  racia l c la ss ifica tion s, this

court stated that the crux of the problem  is how far the em ployer must

go to undo the effects of past discrim ination . The Court adopted the

"rightful place doctrine" which holds that T itle VII should be construed

to prohibit the future awarding of vacant jobs on the basis o f a seniority

system  that " lock s in" p r io r  racia l c la ss ifica tion s. The court further

stated that plant sen iority  should be asserted  only with resp ect to new

job openings and should not be used to bump white encumbent w orkers

from  their present positions.

The D istrict C ourt's ord er of M arch 7, 1975, com pletely

abolishes group sen iority  in the Com pany's plant without regard  to p rior

discrim ination  or lack thereof on the part of the Company. The purpose

of T itle  VII is to co rre ct  d iscrim in atory  p ra ctices , and such can be done

and should be done by a carefu lly  lim ited  ord er. United States v. Bethlehem

Steel C orp ora tion , 446 F . 2d 652 (2nd C i r . , 1971). As stated in Cox v.

A llied  C hem ical C orp ., 382 F .Supp. 309, at 317, (MD. La. 1974):

None of the T itle VII cases have ever held that 
the unit o r  departm ental sen iority  system  
is per se a violation of the C ivil Rights Act. In 
fact, in every  case where it was questioned, 
the courts have allowed the com pany to maintain 
separate departm ents, with their separate 
sen iority  system s, when the job or functions 
to be perform ed  are not d irectly  related to each 
other. The court sim ply applied the rightful 
place form ula  to the existing departm ents.

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/CY, 
(■  .11

Intervenors, th ere fore , cannot be charged with the knowledge 

that the D istrict Court would exceed  the authority granted to it by T itle VII 

and com pletely  destroy  the group sen iority  system  regard less of the extent 

of p r io r  ra cia l d iscrim ination . Within thirty days of learning that the 

Company was not adequately representing their interests and that the 

D istrict Court had exceeded the power granted to it by T itle  VII, Inter­

venors loose ly  organized them selves, retained an attorney, and m oved to 

intervene in the litigation. Consequently, Intervenors cannot be charged 

with failing to take im m ediate affirm ative steps to protect their interests 

once they learn that the existing parties to the litigation w ere not protecting 

those interests.

In NAACP the Supreme Court also found that:

It is also apparent that there w ere no 
unusual circu m stan ces warranting intervention 
since (a) no appellant alleged an injury, personal 
to him, resulting from  the d iscrim in atory  use 
of a lite ra cy  test, (b) appellants' cla im s of 
inadequate representation  by the United States 
was unsubstantiated, (c) appellants would not 
be fo re c lo se d  from  challenging con gression a l and 
state leg isla tive  red istrictin g  plans on the 
grounds that they w ere the product of im proper 
racia l gerrym andering, (d) appellants w ere 
free  to renew their m otion to intervene 
follow ing the entry of sum m ary judgment since 
the D istrict Court was required , under Section 
4(a) of the A ct, 42 U. S. C. , §1973 B(a), to retain 
ju risd iction  fo r  five years after judgment, and,
(e) in any event, no citizen  of New Y ork could be 
denied the right to vote in the near future since 
all literacy  tests have been suspended until 
Septem ber 6, 1975. (citations omitted)

NAACP v. New Y ork , 413 U. S. , at 368-369. .

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■T\
x j

The inverse analogy between the quoted findings above and 

the facts of the case presently  before  the Court are obvious. F or  instance, 

Intervenors c learly  allege (R. 148, 153, 158) that the tr ia l cou rt 's  M arch 7, 

1975 ord er  arb itrarily  denies them the benefits of the valuable group 

sen iority  rights they have labored  to obtain. Intervenors should be allowed 

to prevent this injury by way of intervention. In addition, there can be little 

question that the existing parties to the litigation fa iled  to adequately 

represent the interests of Intervenors in this case. A fter defending 

the case fo r  alm ost two y ea rs , the Company suddenly capitulated and 

agreed to provide affirm ative re lie f to P laintiffs which went fa r  beyond 

the requirem ents of T itle  VII and irreparab ly  harm ed Intervenors.

Perhaps the m ost telling com parison  between the quoted 

findings and the instant case evolves from  the fact that there the NAACP 

or any private party could seek to enjoin the enforcem ent of the particular 

voting qualification even after a D istrict Court had entered a declaratory  

judgment allowing im plem entation of that qualification. In that case, 

th ere fore , even though the NAACP was denied intervention, it could 

im m ediately file  a new action and seek to again litigate the sam e issues.

Intervenors herein  have no such luxury. Indeed, even the 

tria l court doubted Intervenors' ability to protect their interests in any 

forum  other than the one denied to them. "Applicants should be rem itted

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to separate litigation if they wish to pursue, and have the right to pursue, 

their asserted  cla im s and rights; . . . "  (R. 230). F u rth erm ore, none of 

the parties below  even contended that the d isposition  of the- case and the 

denial of the m otion to intervene would not im pair or im pede Intervenors' 

ability to protect their interests.

In truth, if Intervenors are denied the opportunity to contest 

the validity of the tria l cou rt 's  abolition of group sen iority  as to all w orkers 

in the Com pany's plant by way of intervention in this cause, they w ill be 

com pletely  cut off from  obtaining re lie f th erefrom . Intervenors alleged, 

inter alia, that the Company has in effect breached its em ploym ent contract 

with them by agreeing, contrary  to the requirem ents of T itle  VII, to base 

all em ploym ent opportunities on plant rather than group sen iority . W hat­

ever the m erits of this cla im , which Intervenors are unquestionably 

entitled to have determ ined, it is c lea r  that there is no way other than 

the existing litigation in which they can en force  the contractual seniority  

rights when the Company is m andatorially enjoined to apply plant seniority  

to all its w orkers. By denying Intervenors the opportunity to be heard, 

the tria l court has effective ly  denied Intervenors their day in court and 

has fo re v e r  fo re c lo sed  them from  rectify ing  the situation. Cf. , Nuesse 

v. Camp , 385 F. 2d 694 (D. C. C ir. 1967); Atlantis Developm ent C orp. v.

United States, 379 F . 2d 818 (5th C ir. 1967). In light of all the circum stan ces



v /  • y

th ere fore , Intervenors submit that the m otion to intervene was tim ely 

filed  and that the D istrict Court abused its d iscretion  in denying the m otion 

In addition to m eeting the tim eliness requirem ent, the 

m otion to intervene a lso m eets the other requirem ents of Rule 24(a)(2),

R. F . C. P . , and the m otion should have been granted as a m atter of right. 

As d iscu ssed  above, Intervenors are c lea rly  so situated that the d isp o s i­

tion of the action w ill impede their ability to protect their in terests. As 

to the "in terest" n ecessa ry  fo r  intervention as of right, it is sufficient if 

those seeking intervention might be "p ra ctica lly  disadvantaged" by the 

d isposition  of the action. E. g. , Smuck v. H obson, 408 F .'2d  175’ (D. C.

C i r . , 1969); N uesse v. Cam p, 385 F . 2d 694 (D. C. C ir. , 1967).. The 

interest requirem ent is p rim arily  a p ractica l guide fo r  disposing of 

lawsuits by involving as many concerned persons as is com patible with 

e ffic ien cy  and due p ro ce ss . In the case at bar, In tervenors' interest in 

the action concerns their sen iority  rights at the Com pany's P ensacola  

plant. The group sen iority  system  under which the applicants have p r o ­

g ressed  from  job to job over the past severa l years at the Com pany's

plant has been abolished by the court pursuant to its ord er o f M arch 7,
• —%

1975. Intervenors' interest in this litigation is protecting those sen iority  

rights which they have accum ulated over m any years of labor. "The 

sen iority  right of the man who to ils , indoors or out, in a shop or in an

: •• •'1 ' -1 3 - -  *

• ' > i •



office , is  a m ost valuable econom ic secu rity  of which he may not be 

unlawfully deprived. " E lder v. New Y ork  Central R ailroad C o ., 152 F . 2d 

361 (6th C i r . , 1945).

It is not even n ecessary , under the term s of Rule 24(a) 

that Intervenors have a " leg a l"  interest in the outcom e o f  this c'ase. 

M issouri-K an sas P ipeline Co. v. United States, 312 U. S. 502 (1941).

It is enough to satisfy  the "in terest" test of Rule 24(a), and intervention 

should be allowed, if the Intervenors have a rea l econom ic stake in the 

outcom e of the litigation. T extile W orkers Union of A m erica  v. A llendale 

C o ., 226 F . 2d 765 (D. C. C ir. , 1955). Stated another way, the interest 

required  fo r  intervention as a m atter of right is a "sign ifican tly  p ro te ct­

able in terest". Donaldson v. United States, 400 U. S. 517, 531 (1971). 

Intervenors th erefore , m eet all the requirem ents of Rule 24(a)(2) and 

should have been allowed to intervene in this action as a m atter of right.

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C O N C L U S I O N

Inasmuch as the D istrict Court abused its d iscretion  in 

denying the application fo r  leave to intervene in this cause, Intervenors 

respectfu lly  request that the ord er  denying the m otion be reversed .

D. L. MIDDLEBROOKS 
Levin, W arfield , M iddlebrooks, G raff, 

M abie, R osenbloum  & M agie, P. A.
226 South Palafox Street, Seville T ow er 
P en saco la , F lorid a  32501



o

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing  B rie f of 

Appellants was furnished Robert P. Gaines, Post O ffice Box 12950, 

P ensacola , F lorida ; S. Philip H einer, R. Law rence Ash, J r . , Susan A. 

Cahoon, James H. C oil, III and W illiam  A. W right, 3100 The Equitable 

Building, Atlanta, G eorgia  30303; Elaine R. Jones, 10 Columbus C irc le , 

Suite 2030, New Y ork  City, N. Y. 10019; and Kent Spriggs, 324 W. C ollege 

Avenue, T allahassee, F lorida , at their resp ective  addresses, by regular 

U. S. M ail, this ^7 day of July, 1975.

D. L. MIDDLEBROOKS

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