The Pillsbury Company v. Donaldson Brief for Respondent in Opposition

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October T eem, 1977

No. 77-73

T he P illsbury Company, et al.,

v.
Petitioners,

Marceline D onaldson.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

P ercy L. J ulian , J r.
330 East Wilson Street 
Madison, Wisconsin 53703

D elores C. Orey
904 Commerce Building 
St. Paul, Minnesota 55101

J ack Greenberg 
0 .  P eter S herwood 
P atrick O. P atterson 
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Counsel for Respondent



I N D E X

PAGE

Statement of the Case .................................................... 1

Reasons for Denying a W rit ........................................  4

Co n clusio n ..........................................................................  12

Table of A uthorities

Cases:

American Airlines, Inc. v. Transportation Workers 
Union, 44 F.R.D. 47 (N.D. Okla. 1968) ...................... 6

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541 (1949) ....................................................................  10

East Texas Motor Freight System, Inc. v. Rodriguez,
45 U.S.L.W. 4524 (U.S., May 31, 1977) ....................4,10

Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976) ............................................................................  8

International Brotherhood of Teamsters v. United 
States, 45 U.S.L.W. 4507 (U.S., May 31, 1977) ....... 8,11

McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973) .........................................................................8,9,11

Rakes v. Coleman, 318 F. Supp. 181 (E.D. Va. 1970) .... 6

Other Authority:

Rule 23, Federal Rules of Civil Procedure.............. 4, 5, 6, 7



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October T erm, 1977

No. 77-73

T he P illsbury Company, et al.,

v.
Petitioners,

Marceline D onaldson.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Statement of the Case

This action was commenced on April 3, 1974, by respon­
dent Marceline Donaldson, a black female former employee 
at the Pillsbury Company headquarters in Minneapolis, 
Minnesota. Plaintiff alleged that the company and six 
individual defendants engaged in discrimination against 
women and blacks in hiring, discharge, and terms and 
conditions of employment. The complaint alleged a class 
action on behalf of black and female employees and ap­
plicants at the headquarters, subject to the appropriate 
statute of limitations.

The defendants, petitioners here, opposed much of the 
discovery sought by plaintiff, and the district court 
“severely limited the scope of discovery.” A-7. Petitioners’



2

response to plaintiff’s first interrogatories failed to fully 
answer 35 questions out of 62 interrogatories. Respondent 
filed a motion to compel discovery, but the magistrate, 
after an ex parte conference with petitioners’ counsel 
(Transcript of Proceedings, April 24, 1975, p. 10), sum­
marily denied the motion without discussing the propriety 
of the particular disputed questions. App. 93a. In re­
sponse to these interrogatories petitioners also furnished 
plaintiff with computer printouts of data on the com­
pany’s headquarters workforce. The printouts proved 
largely unusable because they were incomplete, were in­
ternally inconsistent and contained no data on race prior 
to 1972, since the petitioners claimed that such data did 
not exist. Respondent sought production of petitioners’ 
computer tapes in order to prepare her own printouts, 
but the magistrate summarily denied this request on 
September 9, 1975, on the ground that petitioners had 
already provided the needed information, an order which 
the district court upheld on October 30, 1975. The peti­
tioners furnished significant additional statistical informa­
tion, including the pre-1972 data previously claimed not to 
exist, on January 2, 1976, a year after it was requested 
and only four days prior to trial. The district court denied 
respondent’s motion for a continuance, and directed the 
parties to proceed at once to trial.

On January 20,1975, the district court first heard respon­
dent’s motion for class certification, but deferred ruling to 
permit additional discovery with regard to the class claim. 
On September 15, 1975, while respondent’s motions to 
compel discovery remained unresolved and when tran­
scripts of 14 of her witnesses had not yet been completed or 
filed, the district court reconsidered the class action motion 
and refused to certify the class. The sole reason relied upon 
by the district court was that respondent’s claims were not 
typical of those of other women and blacks because she



3

“was specially hired outside normal channels to do a special 
kind of work.” A-31.

The case was tried in January, 1976 over the objections 
of respondent. Because of a then pending interlocutory 
appeal, the 30 volume pre-trial record was in the office of 
the clerk of the Eighth Circuit from before the beginning 
of trial until the district court’s decision of February 5, 
1976. The district court ruled irrelevant respondent’s 
evidence of systematic discrimination against women and 
blacks, and refused to permit testimony by 14 of the 15 
class members called by respondent to show incidents of 
discrimination similar to that claimed by respondent. At 
the end of this somewhat unusual proceeding the district 
judge agreed to defer action until certain additional deposi­
tions could be taken and filed; seven days later, before 
those depositions could be filed, the district judge issued a 
Final Memorandum and Order dismissing respondent’s 
claim.

On appeal the court of appeals reversed the denial of 
class certification as an abuse of discretion. It noted that 
respondent, though coming to the defendants’ attention 
through the Minneapolis Urban Coalition, had been inter­
viewed and selected in the normal manner, and differed 
from others of her race and sex only in that she had entered 
the company at a higher level, and was one of the few 
black women ever hired into a professional or managerial 
position. The court of appeals concluded that this distinc­
tion was legally irrelevant under Rule 23. The court of 
appeals also held that the district court had erred in ex­
cluding evidence of class wide discrimination on the basis 
of race and sex, and it remanded the respondent’s indi­
vidual claims so that they could be reconsidered in light of 
“the additional evidence of patterns and practices which 
will be available to the entire class.” A-17. Because of this



4

disposition the court of appeals found it unnecessary to 
decide whether the district court’s limitations on discovery 
were improper.

Reasons for Denying a Writ

1. Petitioners seek review of the court of appeals’ class 
action decision on a number of grounds. The questions 
actually presented by this case are somewhat different 
than those formulated in the petition.

Petitioners suggest that this case presents an issue ex­
pressly not reached by this Court in East Texas Motor 
Freight System, Inc. v. Rodriguez, 45 U.S.L.W. 4524 
(1977), “whether a Court of Appeals should ever certify 
a class in the first instance.” Petition, pp. 7-8. The ques­
tion left open in Rodriguez, as the words “in the first 
instance” make clear, is whether a court of appeals should 
pass on the propriety of a class action before the issue has 
been presented to the district court. In Rodriguez no 
motion for certification had ever been made in the district 
court, which thus had no occasion to consider whether the 
requirements of Rule 23 were met. The company in 
Rodriguez urged that the proper role of an appellate court 
was to review the certification decision of the district 
court, not to resolve the Rule 23 issues nisi prius. This 
case presents no such issue. A motion for class certifica­
tion was timely made and fully litigated in the district 
court; the district court relied upon only one ground for 
denying certification, and the court of appeals, having held 
that ground insufficient, properly concluded that certifica­
tion should be ordered.1 The procedure followed by the

1 Although Rule 23 establishes a number of prerequisites to 
certification, petitioners in the court of appeals only questioned 
whether the necessary typicality was present. Nonetheless, the 
court of appeals, after finding typicality, reviewed the other 
requirements of the rule and found they were satisfied. A-12, n.5.



5

court of appeals here was the normal appellate practice, 
and it is difficult to imagine a more sensible alternative.2

The second issue posed by petitioners relating to the 
class is whether the court of appeals erred in approving 
the class “without definition or discussion merely by neg­
ative implication from two brief footnotes.” Petition, p. 3.3 
Insofar as petitioners seek a review by this Court of 
whether an appellate court could decide a class action is­
sue “without discussion”, that question is simply not raised 
by this case; the Eighth Circuit opinion considers the class 
action issue at length. A-6 to A-13. With regard to the defi­
nition of the class, respondent sought to represent a class 
of all blacks and females who are or were employees at 
the Pillsbury headquarters or who had been denied em­
ployment on the basis of race or sex, subject to the ap­
plicable statutes of limitations; the district court noted 
no difficulty with this definition, and neither in their brief 
nor in their petition for rehearing in the court of appeals 
did petitioners suggest any alternative class definition.

Petitioners urge at length that the court of appeals erred 
in certifying the class “merely on the basis of allegations.” 
Rule 23 establishes a number of prerequisites, some factual, 
others legal, to the maintenance of a class action. Rule 
23(a)(3), with which petitioners are concerned, requires 
that the “claims” of the class representative be typical of 
the “claims” of the class. While other requirements, such

2 Theoretically the court of appeals could have vacated the denial 
of certification and remanded for further proceedings consistent 
with its opinion, but the only consistent proceeding would be the 
granting of certification. Petitioners do not suggest that the 
authority of the appellate courts is limited to vacating a series of 
erroneous Rule 23 decisions in a single case until the errant trial 
court discovers the correct position.

3 This issue, though encompassed within question ( l ) (b) ,  is not 
pressed in petitioners’ “Reasons for Granting the Writ.”



6

as numerosity, require factual evidence, Rule 23(a)(3) 
deals with the relationship between the claims asserted 
by the representative and the claims asserted on behalf of 
the class.4 * Like the requirement that a complaint state a 
claim on which relief can be granted, the Rule 23(a)(3) re­
quirement is literally a requirement about allegations, and 
an application of that rule cannot be overturned simply by 
denoting the allegations “mere”. Plaintiff cannot be obli­
gated, in order to obtain certification, to prove that both 
she and the class members were in fact victims of dis­
crimination by Pillsbury, since such proof would be the 
equivalent of a trial on the merits. Even if some such proof 
were required, the extensive affidavits and offers of proof 
as to class discrimination which plaintiff offered in con­
nection with her motion for reconsideration of the class 
action denial were sufficient to demonstrate the existence 
of class claims of discrimination on the basis of race and 
sex similar to her own claims.

Petitioners also argue that there are “uncontradicted 
affidavits” that the separate departments at Pillsbury “were 
and are independently managed” and that “the only com­
mon source of policy revealed on the record is the Board 
of Directors acting through its chairman”. This conten­
tion is neither accurate nor relevant. Those affidavits were 
contradicted, and largely discredited, by depositions of 
petitioners’ personnel officials;6 and the affidavits were

4 See, e.g. Rakes v. Coleman, 318 F.Supp. 181, 190 (E.D. Va.
1970); American Airlines v. Transportation Workers Union 44 
F.R.D. 47 (N.D. Okl. 1968).

6 The various “companies” described in footnote 7 of the petition 
are not incorporated as such, and are generally denoted by Pills­
bury and its staff as divisions . App. 115a. These divisions are 
all located on adjacent floors of two physically connected office 
buildings in Minneapolis. App. 111a. All personnel activities in 
the divisions are supervised by a single headquarters personnel 
office, App. 1079a-80a, whose staff of 62 (as of 1974) administers



7

merely attached to a company brief in the district court, 
but never filed or made a part of the record and thus were 
not before the court of appeals. Rule 23, moreover, does 
not contemplate that a defendant can defeat a class action 
motion by arguing or seeking to prove that, even though 
all its foremen or personnel officials discriminated against 
blacks or women, each acted independently and the similar­
ity of policy was mere coincidence. So long as Pillsbury 
is a legal entity these considerations are irrelevant for 
Rule 23 purposes; if the company’s personnel officials, act­
ing independently, in fact pursued different policies re­
garding minority or female employees, the defendants can 
establish that at the trial on the merits in order to limit 
any finding of liability to the departments where dis­
crimination was practiced.

2. Petitioners contend that the court of appeals erred 
in vacating the dismissal of respondent’s individual claims 
“without disturbing any of the District Court’s extensive 
findings discrediting both the merit of Ms. Donaldson’s 
complaints and her personal credibility.” The court of ap­
peals did not purport to substitute its own judgment for 
that of the district court on these issues, or to direct a find­
ing in favor of respondent, but merely remanded the case 
to the district court so that the individual claim could be 
reconsidered in light of “the additional evidence of pat­
terns and practices which will be available to the entire 
class.” A-17. The court of appeals noted that the district 
court, after denying class certification, had “severely

policies set out in an 85 page personnel manual. P.Ex. 1-429; 
see Deposition of Henry Brown, April 14-15, May 5, 1975, pp. 
18-20, 107-17, 214-34; Deposition of Graham Hatcher, May 16, 
1975, pp. 4-10. There is also a single corporate Vice-President for 
affirmative action who sets goals and timetables for hiring for all 
the headquarters divisions.



8

limited the scope of discovery and evidence.” A-7. This 
Court has repeatedly held that evidence of class wide dis­
crimination is extremely relevant to an individual case. 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 
(1973); International Brotherhood of Teamsters v. United 
States, 45 U.S.L.W. 4507, 4508-11, 4515 (1977). Where 
such a pattern of discrimination is established the burden 
of proof shifts to the defendant to establish that individual 
class members were not victims of that policy. Franks v. 
Bowman Transportation Co., 424 U.S. 747, 773 n. 32 (1976).

Petitioners suggested below that any evidence of class 
wide discrimination which respondent might discover or 
introduce would be irrelevant to respondent’s individual 
claim because they had allegedly established that there 
were justifiable non-discriminatory reasons for company 
actions toward Donaldson. This is precisely the argument 
rejected by this Court in McDonnell Douglas. There, as 
here, the employer urged statistics were “of no utility” 
since the company had shown a legitimate reason for its 
action and “the District Court examined an extensive record 
of the treatment accorded to Green during his prior em­
ployment and found that his protestations of discrimina­
tion were more imagined than real.” 6 This Court held that, 
even if there was an arguably proper ground for the em­
ployer’s action, the employee “must be given a full and 
fair opportunity to demonstrate by competent evidence 
that the presumptively valid reasons for his rejection were 
in fact a cover-up for a racially discriminatory decision,” 
and that the evidence “that may be relevant to any showing 
of pretext” includes the employer’s “general policy and 
practice with respect to minority employment.” McDonnell 
Douglas Corp. v. Green, 411 U.S. at 804-05. That is pre-

Petitioner’s Reply to Respondent’s Brief, No. 72-490, p. 13.



9

cisely the type of retrial directed hy the court of appeals 
in this case. )*•£•

r £ T r > .
Ignoring the problem of restricted discovery noted by 

the court of appeals,7 and apparently now conceding that 
the district court erred in excluding evidence of class wide 
discrimination, petitioners emphasize in the alternative that 
the district judge stated he “had considered” the statistical 
and other class wide evidence offered by respondent. Peti­
tion, p. 18. The district judge, however, did not find there 
was no pattern of discrimination, or that the implications 
of such a pattern had been overcome by other evidence, but 
stated that he still believed it to be irrelevant. A-29. The 
district court’s refusal to give any weight to evidence of a 
pattern of discrimination was clear error under McDonnell 
Douglas.8

3. The third question raised in the petition is literally 
a hypothetical one: “I f  the District Court’s dismissal of 
Marceline Donaldson’s individual claims is affirmed, no 
class having ever been certified in the District Court, can 
any class be adequately represented in subsequent pro­
ceedings in this action before the District Court?” This 
case simply does not present that question, since the dis­
missal of the individual claims was reversed on appeal, and

’ Limitations on discovery were among the reasons cited by this 
Court for ordering a new trial in McDonnell Douglas. 411 U.S. at 
800, n. 10.

8 In McDonnell Douglas itself the plaintiff also succeeded in 
placing in the record before the district court statistics as to the 
company’s general employment practices, and the company sug­
gested that a remand for new trial was therefore inappropriate. 
Petitioner’s Reply to Respondent’s Brief, p. 13. The district court 
in McDonnell Douglas had not ruled such evidence irrelevant, 
but merely failed to discuss it. Green v. McDonnell Douglas Corp., 
318 F. Supp. 846, 850-51 (E.D. Mo. 1970). This Court nonetheless 
concluded that a new trial was necessary. 411 U.S. at 807.



10

it is unlikely that the question will ever arise in subsequent 
proceedings in this action.9

4. Assuming arguendo that the “Questions Presented” 
were actually presented by this case, none of them would 
warrant review by this Court. Certification of a class by 
a court of appeals in the first instance is an uncommon 
occurrence, and this was not the issue on which certiorari 
was granted in Rodriguez.10 Whether the court of appeals’ 
decision regarding class certification and the individual 
claims is supported by the record is of significance in this 
case alone. Since the action has been remanded for further 
proceedings, it is likely that some if not all of the issues 
now pressed by petitioners will be rendered moot by the 
subsequent proceedings; certainly that will be the case as 
to the remand of the individual claims, which petitioners 
oppose only as unnecessary. Petition, p. 18. Petitioners 
do not assert that any aspect of the decision below is in

9 We note that the answer to the question raised by petitioners 
can readily be resolved by reference to the nature and history of 
the class claims. If the case is, regardless of the status of the 
individual claim, not a proper class action, the adequacy of 
plaintiff’s representation is irrelevant. If the ease would otherwise 
be a proper class action, but plaintiff never sought certification and 
her individual claim was properly dismissed, the case would be 
identical to East Texas Motor Freight System, Inc. v. Rodriguez, 
45 U.S.L.W. 4524 (1977). If the district court heard but errone­
ously failed to grant a request to certify the class prior to dis­
missing the individual action, that error could and should be 
corrected on appeal, since the contrary rule would necessitate 
interlocutory appeals of all denials of class action certification. 
See Cohen v. Beneficial Industrial Loan Cory., 337 U.S. 541, 546-47 
(1949).

10 The class action question in the Rodriguez petition was 
“Whether absent a class action hearing or an equivalent oppor­
tunity to present evidence on the question of the appropriateness 
of the class the Court of Appeals may certify the litigation as a 
class action and enter a finding of liability in favor of the Plaintiff 
class.”



11

conflict with any other circuit on any issue of law, 
important or otherwise.

This case also presents a number of independent grounds 
for affirming the decision of the court of appeals. First, in 
connection with respondent’s unsuccessful interlocutory 
appeal of the denial of class certification, the clerk of the 
district court in St. Paul transmitted the entire 30 volume 
pre-trial record to the court of appeals in St. Louis, where 
it remained until sometime after February 9, 1976. In the 
interim, despite plaintiff’s request for a continuance, the 
district judge insisted on trying the case and rendered his 
final decision on February 5, 1976. Although the district 
judge recited that he had “considered” all of plaintiff’s 
proffered evidence, that was physically impossible. Second, 
at the end of trial the district judge agreed to defer any 
decision until certain depositions had been taken and filed, 
but then decided the case seven days later without awaiting 
the transcription and filing of the depositions. App. 17a, 
1216a-17a. Third, the district court’s decision to severely 
limit plaintiff’s discovery was clearly erroneous in light of 
McDonnell Douglas and Teamsters. The court of appeals, 
because of its resolution of other questions, found it un­
necessary to resolve these issues, hut they furnish alterna­
tive grounds for upholding its decision and thus render 
inappropriate a grant of certiorari.



12

CONCLUSION

For the foregoing reasons the petition for a writ of 
certiorari should be denied.

Respectfully submitted,

P ercy L. J ulian , J r.
330 East Wilson Street 
Madison, Wisconsin 53703

D elores C. Orey
904 Commerce Building 
St. Paul, Minnesota 55101

J ack Greenberg 
0 . P eter S herwood 
P atrick O. P atterson 
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Counsel for Respondent



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