Jones v. The Continental Corporation Appendix

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Impact area
- Economic Justice
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- Economic Justice
Collection
- Brief Collection
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- cc802853-b99a-ee11-be36-6045bdeb8873
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Brief Collection, LDF Court Filings. Jones v. The Continental Corporation Appendix, 1985. cc802853-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/bfbcd71f-a496-4808-9465-3b38f59a4e72/jones-v-the-continental-corporation-appendix. Accessed November 23, 2025.

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    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

A
UA
%

GWENDOLYN E. JONES, )
)

Plaintiff/Appellant, )
) CASE NO. 85-5489 

vs. )
)

THE CONTINENTAL CORPORATION, )
THE CONTINENTAL INSURANCE )
COMPANY, et al . , )

)
Defendants/Appellees. )

ON APPEAL FROM
THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF TENNESSEE 
NASHVILLE DIVISION

APPENDIX

Melvin S. Katzman 
Assistant Vice President & 

Labor Counsel
The Continental Corporation 
180 Maiden Lane 
New York, New York 10038 
(212) 440-7665

OF COUNSEL

KING & SPALDING 
Lloyd Sutter
2500 Trust Company Tower 
Atlanta, Georgia 30303 
(404) 572-4600
FARRIS, WARFIELD & KANADAY 
Cornelia A. Clark 
Seventeenth Floor 
Third National Bank Building 
Nashville, Tennessee 37219 
(615) 244-5200

ATTORNEYS FOR APPELLEES



INDEX
Appendix

Docket Sheet 1 -■ 16
Bill of Costs 17 - 18
Defendants' Petition for Attorneys' 

Fees with Memorandum, Exhibit A, 
and Affidavits 19 - 56

■~] 1 • S’ \ r V f : ! K j ;
Plaintiff's Response in Opposition 57 - 61
Defendants' Response to Plaintif f ' s r n ) 

Motion for New Trial/to Alter or 
Amend 62 - 67

Plaintiff's Amended Memorandum 68 - 74
Affidavit of Gwendolyn Jones f< Y(k 75 - 79
Affidavit of Larry D. Woods (k 80 - 81
Affidavit of Russell T. Perkins (h, 82 - 84
Affidavit of Richard H. Dinkins 85 - 88
Defendants' Supplemental Response 89 - 93
Memorandum & Order (1-23-85) 94 - 105
Memorandum & Order (3-22-85) 106 - 108
Notice of Appeal 109 - 110
Complaint- V 111 - 119
Second Amended Complaint R.> 120 - 121
Order (10-29-82) 122
Certificate of Defense Counsel

and Request for Pretrial Conference f ,v 
with Attachments A - D 123 - 148

Answer to Second Amended Complaint f| |v.. \\' ̂ 149 - 154
Transcript, Hearing of 12-14-82 155 - 167



Amendment to Complaint with Exhibits Lr 168 

Answer to Amended Complaint 192 

Pretrial Order (12-15-83) 194 

Memorandum & Order (6-29-84) 198 

Trial Transcript

page 231 [Ms. Jones] 211 
page 336 [Counsel and Court] 212 
page 343 [Counsel and Court] 213 
page 356 [Counsel and Court] 214 
pages 378-382 [Ms. Jones] 215 
page 419 [Ms. Jones] 220 
pages 422-23 [Ms. Jones] 221 
pages 454-55 [Counsel and Court] 223 
pages 704-11 [Ms. Jones] 225 
pages 764-66 [Ms. Jones] 233 
page 770 [Ms. Jones] 236 
pages 799-803 [Ms. Price] 237 
page 835 [Ms. Price] 242

193

197
210

191

219

222
224
232
235

241



OFFICE OF THE CLERK

u n i t e d  S t a t e s  D i s t r ic t  C o u r t

MIDDLE DISTRICT OF TENNESSEE
t15 POST OFFICE 8e COURTHOUSE BUILDING 615-526-3269 

9  EAST BROAD STREET'
P.O. BOX 806

COOKEVILLE. TENNESSEE 385 03 -0 80 6

DATE: May 27, 1985

REPLY TO 
ATTN OF: Clerk's Office, Cookeville
SUBJECT: Notice of Appeal

TO: Avon Williams 
Thomas P. Kanaday, Jr,

RE: GWENDOLYN E. JONES 
VS
THE CONTINENTAL CORPORATION, ET AL 
82-3572

Attached please find a copy of the documents 
forwarded to the Sixth Circuit Court of Appeals 
this day.

A N  E Q U A L  O P P O R T U N IT Y  E M P L O Y E R
00001



—
---

---
---

--
\r

IMPORTANT: IN ALL TRANSMISSIONS, INCLUDE ONE COPY OF YOUR
DOCKET SHEET AND TWO COPIES OF THIS COMPLETED FORM.

TRANSMISSION FORM
District Court MIDDLE DISTRICT OF TENNESSEE, 
P. O. Box 806, Cookeville, TN 38503-0806

District Court No. 8 2- 3 5-7 2-
Court of Appeals No.

CAPTION
(Include names of all plaintiffs 
and defendants who are parties to 
the appeal. Use separate sheet if 
necessary)

GWENDOLYN E. JONES

PLAINTXFF-

CURRENT COUNSEL FOR PLAINTIFF 
Mr. Avon WilliamsNAME

FIRM NAME WILLIAMS & DINKINS

ADDRESS 203 Second Avenue, North 
Nashville, TN 37201

TELEPHONE 615/244-3988 SSN(CJA only)
(Use Separate Sheet For Additional Attorneys)

APPELLANT CURRENT COUNSEL FOR DEFENDANT 
Mr. Thomas P. Kanaday 
Ms. Cornelia A. Clark 

FIRM NAME Attorneys at Law
17th Floor, Third National 

Bank Building 
Nashville, TN 37219

NAME

ADDRESS

THE CONTINENTAL CORPORATION, et al
TELEPHONE 615/244-5200 SSN

(CJA only)
(Use Seperate Sheet For Additional Attorneys)

DEFENDANT- a p p e l l e e

If Habeas Corpus (28 U.S.C. §2254), was Certificate of Probable Cause:
[ ]granted [ ]denied [ ]pending 

Criminal Defendant: [ ]on bond [ ]incarcerated [ ]on probation
Fees: District Court Filing Fee Paid:

Court of Appeals Docket Fee Paid: 
Pauper Status:
Affidavit of Financial Status Filed 

Counsel: [ ]appointed
District Court Judge ^ • CLURE MORTON 
Any hearing or trial [ ]yes [ jjno

[vl yes 
[X] yes 
[ ]granted 

: l lyes
[ XI retained
Court Reporter_ 

If yes, dates_______

[ 1 no [ ] no 
[ 1 denied 
[ 5 no

N/A

[ ]pending

FROM Julia B. Cross
Deputy Clerk

DATE 5.27.85

THIS PORTION FOR USE IN TRANSMITTING ANYTHING 
AFTER THE ORIGINAL NOTICE OF APPEAL HAS BEEN SENT

Date Notice df Appeal sent to Court of Appeals
The new information sent at this transmittal is _____________________________

■ i______ ;___________and includes an updated copy of docket entries.
I. hereby^Certify that I have transmitted to the United States Court of Appeals 

for the Siitn Circu-it- the annexed documents consisting of . volume(s) of plead- 
in8s> ■ _volume^ s) of transcript and Q volume(s) of depositions , which constitutethe CERTIFIED RECORD ON APPEAL, this p-r^day of_ -M a y - 19-8£-
SCA-33 
REV.2/82

Clerk, Juliet Griffin United States District Court
By: J u l i a  B.  C r o s s  0 0 0 0 2



t—— Ned*cal $1,000
*16541 03 82 3572 6 23 82 1 442 1 ■ 5QQ5-M 47037 82 3572

PLAINTIFFS DEFENDANTS

| JONES,. GWENDOLYN E. 
f

I THE CONTINENTAL CORPORATION; 
MEULEMANS, BUD; and 
BARSANTI, R. R.

)

CAUSE

(CITE THE U.S. C IV IL  STATUTE UNDER WHICH THE CASE 
„ . ,  IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)Action for declaratory judgment, rnnunctxve relief & damages pursuant to 28 
U.S.C. s. 1343(3) & (4), & 2201 & 2202; 42 U.S.C. s 1981 & 2000e & the 13th 
Amendment of the U.S. Constitution.

PLAINTIFF;
Mr. Avon Williams 
Williams & Dinkins 
203 Second Ave., North 
Nashville, TN 37201 
615/244-3988

ATTORNEYS CORP
„ 3~13‘ f2-Center

SFTS.
Lldyd^Sutter 
Suite if0,8HS // oO 
230 Peachtrfce^Street, N.W 
Atlanta, GA 3
Thomas P . Kanady, Jr. 
Cornelia A. Clark 
17th Floor 
Third National Bank 
Nashville, TN 37219

j it .  U* et S S h7<»*»

Melvin S. Katzman 
Asst. Vice President and Labor 

Counsel
The Continental Corporation
80 Maiden Lane
New York, New York 10038

00003

1 CHECK 
1— 1 HERE  
IF CASE WAS 
FILED  IN

F IL IN G  F E E S  P A ID S T A T IS T IC A L  C A R D S

DATE j t  RECEIPT NUMBER f \ I -V  C.D. NUMBER CARO ^  D iK TB M A ILE  

K j i  i f )  g y ~~7 / a  3  . v X t > a , T O z A u  c t
FORMA
PAUPERIS ■A x n r ,  u J L L  'h iS b c J ^ S L  h A 1 __________ j s a



. IJ&*. « L r* r*.

6-23-82 1 COMPALINT FILED.

6-24-82 Summons to DSM for service on defat.

7-9-82 :2- 'AMENDMENT to CCmplaiftt.'

7-21-82 M/R on summons exec, by service on Continental Corp. by reg. mail 
on 7-1-82.

7-21-82 M/R on summons exec, by service on Bud Meulemans by reg. mail on 
" 7-1-82.

7-21-82 M/R on summons exec, by service on R. R. Barsanti by feg. mail on 
7-6-82.

7-30-82 3 MOTION to Set Date for Answer. C/S
7-30-82 4 MEMORANDUM in Support of Mot. to Set Date for Answer.
8-5-82 3 ORDER. Mot.to Set Date for Answer MARKED, "Granted."' Case Notice No. 1'

8-13-82 5 NOTICE of Appearance of Lloyd Sutter & Thomas Kanady replacing 
Wm. Ozier.

8-13-82 6 MOTION'-to Dismiss by Defts. C/S .
8-13-82 7 BRIEF in Support of Kot. to Dismiss. •
8-13-82 8 AFFIDAVIT of-Lloyd Sutter.
8-16-82 9 ORDER: Defts motion to dismiss, pltf will respond within 15 days. Case 

Notice No. 2
8-23-82 NOTICE OF NON JURY TRIAL DATE; Set for 9 a.m. on Tues. , Nov. 9, 1982 

in Nashville

8-30-82 10 Notice of taking deposition of R. R. Barsanti, Ray Barlow, Danny Reed, 
Tommy Farmer, Carol Brown, Donna Manning & Walter L. Sullivan on 
Oct. 25, 26, 27 1982 € 9;00 a.m. C/S

-30-82 11 Mtn. to ascertain status of case & renewal of mtn. to dismiss & req. 
for attny's fees. C/S

3-8-82 12 Motion to file reply brief out of time. C/S
9-8-82 13 Affidavit of Richard Dinkins
9-8-82 14 Affidavit of Russell T. Perkins.
9-8-82 15 Memo, in opposition to defdts' mtn. to dismiss. C/S

>-13-82%•%
16 OPDER: Motion to ascertain status of case, Marked: Plaintiff shall 

respond instanter. Case Notice No. 3
9-16-82 17 ORDER; Mtn. to file reply brief out of time "GRANTED". Case Notice No.
9-16-82 18 ORDER: Memo, in oppo. to defdt's mtn. to dismiss "MTN. TO QISMISS IS 

RESERVED PENDING DISCOVERY". Case Notice N o . 5 ^



DC m>, 
(B*v. 1/75)

CIVIL DO CKET CONTINUATION S H E E T 7 -14, * 0-70
[ P L A IN T IF F

GWENDOLYN E. JONES

D E F E N D A N T

THE CONTINANTAL CORPORATION
DOCKET NO. _E2= i 522
P A G E ____OF____ PAGES

D A T E

9-16-82

9-17-81

9-17-81

9-27-81

9-30-8
9- 30-82 
10/4/82

10- 6-82 

10-7-82 

10-7-82:

N R .

19

20

21

22

23
24
25

26 

27

28

ORDER: Mtn. to strike Notice of Taking Deposition of Pltf. GRANTED.
2ase Notice Nov 6

P R O C E E D IN G S

Defts response to pltf's motions to file untimely opposition and to 
strike deposition notice. C/S
Notice of taking deposition with request for production of documents 
at deposition of Gwendolyn E, Kidd 10-7-82 at 10:00 a.m. C/S
ORDER: Defts response to pltfs' motions to file untimely opposition 
to strike deposition notice— Set for hearing on 5 Oct. 1982 at 1:00 
Case Notice No. 7
Motion to continue trial by plf. C/S
Memorandum in support of motion to continue by plf. C/S
ORDER: Motion to continue is set for hearing on the 18th day of 
October, 1982, at 1:00 p.m., in Courtroom A859, Nashville, TN.
Case Notice No. 8

Notice of taking deposition with request for production of document:; 
at deposition. C/S
Clerk's resume of Court Proceedings. Hrg. motions. Motion to 
continue reset to January 3, 1983 in Cookeville.

Trial reset from Tuesday, Nov. 9, 1982, 9:00 a.m. to Monday, Jan. 3, 
1983 in Cookeville.

10-13-62 29 
10-13-6 2 30 
L0-18-82 31
-0-18-812 32

MOTION to amend complaint.
Memo in support of motion to amend complaint.

ORDER: Motion to amend complaint GRANTED. Case Notice No. 9 
SECOND AMENDMENT TO COMPLAINT.

0-25-82: 33 
0-25-82 33a 
.1-1-82

1-1-82 34 

L-h-82 35

DEFENDANT'S RENEWED MOTION to DISMISS. (Ref. 10-29-82)#
DFDTS. MEMORANDUM in Support of Renewed Motion to Dismiss, bv 
RETURN of service from the Commissioner of Ins. on The Continental 

Corporation, 10-29-82.
AFFIDAVIT in support of motion requiring Physical and Mental 

Examinations.
MOTION for physical and mental examinations. (Ref. 10-29-82).

LI—1—82 36 ORDER.setting case for hearing on the 15th day of November, 1982, 
at 1:00 p.m. in courtroom A859. Case Notice No. 10

00005

rr
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be 181A 
(R«v. 1/75)

CIVIL. DO CKET CONTINUATION S H E E T

P L A IN T IF F D E F E N D A N T

D O C K E T  NO .

P A G E  O F N ^ a g e s

D A T E N R . P R O C E E D IN G S

11-1-82

11-2-82 
11-2-82 
Ll-2-82
11-3-82 41

Ll-8-82

37

38 
39. 
40

42

11-9-82 43 

11-9-82 44

1 -1 2 -8;? 45

1- 12-  

l-12-8fe
L-15-8^ 
L-15-82 
L-15-8:: 50 
L-15-82 51

.-15-82 
L-12 

L-18 

. - 22-8

82

•82

46
47

48
49

52

53
54

2 55

swet

ORDERED that the plaintiff respond to the defendant’s renewed motion 
to dismiss by Nov. 10, 1982. ' Case Notice No. 11

PLAINTIFF’S MOTION for Protective Order.

MEMORANDUM in Support of Plaintiff's MOTION for Protective Order. 
AFFIDAVIT of Gwendolyn E. Jones
MOTION by Dfdt. to move Court to dismiss Pltf.’s Motion for a 

Protective Order.

ORDER: MOTION by Plaintiff for Protective Order DENIED. Case Notice 
No. 12 -  T

DEFENDANT'S SECOND RENEWED MOTION to DISMISS.

DEFENDANT'S MEMORANDUM in Support of their Second Renewed Motion to 
Dismiss.

MOTION to extend time for plaintiff's response to defendants' renev 
motion to dismiss. C/S

MEMORANDUM in supportof motion to extend time for plaintiff's respnst to defendants' renewed motion to dismiss. respnjst
AFFIDAVIT of service from the Secretary of State against 11-1-82. 
MOTION to compel by defts.
MEMO in support of their motion to compel discovery.
RESPONSE to plaintiffs' request for production of documents.
CLERKS" Resume: motion to take physical exam, granted. Mr. Dinkins 
to submit to court NLT 11-23-82 proof of service.
Discovery requests.

Commissioner of Insurance Return dated 11-5-82.

M/S to USM this date on Gwendolyn E. Jones. Personal Service Request

ORDER: DEFENDANT'S MOTION to COMPEL. Plaintiff will respond and 
produce documents within 10 days. Case Notice No. 13

0 0 0 0 6



DC 1UA 
[Rev. IPS)

C IV IL  D O C K E T  C O N T IN U A T IO N  S H E E T rn-MAt---».14.*0.7811.4 I X
P L A IN T IF F D E F E N D A N T 82-3572

D O C K E T  N O .

GWENDOLYN E. JONES CONTINENTAL CORPORATION, ET AL
P A G E  O F  P A G E S

D A T E NR. P R O C E E D IN G S

8l211-22 
Ll-24-8:

L1-29-8&

.2- 10-8

.2-10-8$
,2- 10-8

56
57

12-14-
12-14-

12-14-
12-14-i

62 
6 2

62
^2

12-14-82 

2-2D-s::

2-22-82
2-27-82

2-27-82
2-27-82

2 - 27-82♦
2-27-8 2 
2-27-82

58
59-

60

61
62

63
64

65

66

SUBMISSION of Plaintiff Regarding Service of Process.

DEFENDANT'S RESPONSE to Plaintiff's Submission Regarding Service of 
Process.

M/R on Bud Meulemans dated 11-24-82.

CERTIFICATE Of Counsel for Plaintiff.
MOTION To Enter Agreed Pre-Trial Order. (Ref.
CERTIFICATE Of Defense Counsel And Request For Pretrial bv

Conference along with copy of Pretrial Order and Attachments.

CLERK'S RESUME of Court Proceedings. Trial Set for 1-14-83
ORDER: Motion to Enter Agreed Pre-Trial Order RESERVED.

Case Notice No. 14

bv
bv
bv

67

Supplemental response of Pltf. to Defdts. First Interrogatories, bv
RESPONSE Of Plaintiff To Defendant's Motion To Dismiss As 

amended.

DEFDTS. ANSWER To Plaintiff's Second Amended Complaint.

ORDER: Response of Plaintiff To Defdts. Motion To Dismiss 
as amended DENIED. Case Notice No. 15.
Copies mailed to Avon Williams, Jr., Lloyd Sutter, 
Thomas"P. Kanady, J r ~  and Cornelia A. Clark.

DEFENDANT'S TRIAL BRIEF.

bv

bv

bv

68. Copy of Motion submitted by Virginia Wells of proceedings 
I held in Nshvl. on 12-14-82 at 12:00 Noon.

69
70

71
72
73

NOTICE of Appearance of Melvin S. Katzman as counsel for Defdts 
Certificate of Melvin S. Katzman.

PLAINTIFF'S PRE-TRIAL BRIEF.
STIPULATIONS (of parties) With Attachments 1-6.
DEFENDANTS' Witness List.

0 0 0 0 7

bv
bv

bv
bv

bv
bv
bv



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C IV IL  D O C K E T  C O N T IN U A T IO N  S H E E T " H i m — 7-t4.«o.?@n t t t t ,

P L A IN T IF F D E F E N D A N T

D O C K E T  N O .

P A G E  O F  P A G E S

D A T E N R .

12-29-8 2 74

1-4-83
1-5-83 75
1-5-83 76
12-29-i 2 77

1-10-83 78

1-11-83 79

L-13-83 80
L-13-83 81

[-17-83 82

L-18-83 83

L-27-83 84
L-27-83 85
.-31-83 86

2-4-83 87

1-10-83 88

>17-83 89
J-17--83 90
’.-1*7-83 90A
2-22-8: 91
P-29-83 92

P R O C E E D IN G S

SUBSTITUTION of Attachment I To Stipulations.
Case Reset for 9:00 a.m. on Tuesday, 2-1-83..
MOTION for Continuance by Pltf. (Ref.
MEMORANDUM in Support of Motion for Continuance.
CERTIFICATE of Compliance with Rule 11(a)(6).
ORDER: MOTION for Continuance DENIED. Case Notice No, 14. 

Cy to Avon Williams, Lloyd Sutter, Thoraas Kanady, Jr. 
Cornelia Clark, and Melvin Katzman.

DEFDTS RESPONSE To Pltfs Second Motion for Continuance.

MOTION to Reconsider by Pltfs. (Ref. 1-18-83)
AFFIDAVIT of Richard Dinkins.

bv

bv

bv

bv
bv

Letter from Cornelia Clark advising defdts withdrawal of response 
to pltfs motion and confirming defdts understanding trial 
will begin on 2-1-83 in Ckvl.

bv

ORDER; MOTION TO RECONSIDER by Plaintiff. Case Reset to 2-16-83 bvt 
in Cookeville. Case Notice No. 15 /Cy of Order mailed to 
Avon Williams, Lloyd Sutter, Thomas P. Kanady, Jr., Cornelia 
Clark, and Melvin S. Katzman

MOTION to continue and reset case by pltf. (Ref 
MEMO in support of motion to continue & reset case. 
RESPONSE to pltfs fourth motion to continue by defts,

) jm
jra
jm

ORDER: MOTION to Continue and Reset Case. Case Notice No. 16 bv 
Cy of Order Mailed Certified Mail to Avon Williams, Lloyd 
Sutter, Thomas P. Kanady, Jr., Cornelia Clark and Melvin Katzmji

WITHDRAWAL bv Pltf. of her Motion to Continue the Trial Set for 
2-16-83.

DEPOSITION OF Roger R. Martinez, M.D. taken November 10, 1982. 
PLAINTIFF'S WITNESS LIST. '
Clerk's Resume of Court Proceedings. Conclusion Trial set 9-12-83.bjv 
EXCERPT dated 2-16-83 bf court proceedings.
TRANSCRIPT of Proceedings. Volume One and Two. bv

0 0 0 0 8



; iiiA 
!«v. 1/75)

CIVIL. D O CKET CONTINUATION S H E E T

P L A IN T IF F

GWENDOLYN E. JONES

D E F E N D A N T

THE CONTINENTAL CORP., et al.
DOCKET NO. 8 2 - 3 5 7 2

P A G E ___ O F _____ PA G ES

D A T E N R . P R O C E E D IN G S

-25-83 93

-25-83 94

3-6-83

-7-83 95

-7-83 96
-9-83 97

-9-83 98

>-12-83 99

1-13-8: 100

-15-83 101
-12-83 102
3-14-8:} 103

1-20-82
1-20-82 104

1-20-82 105
-20-82 106

-25.-82 107

-25-83

DEFENDANTS' MOTION for Conference to Ascertain the Status of This 
Case. (Ref. bv

MEMORANDUM in Support of Defendants* Motion for Status Conference 
with attached exhibits A-D. bv

NOTICE rescheduling trial for January 2, 1984 at 9:00 a.m. Pretrial, 
order & pretrial briefs due December 12th & 22nd, 1983 respect
ively. jm

MOTION'of Plaintiff for Leave to File Amendment to Complaint.
(Ref. 9-12-83 ) bv •

MEMORANDUM in Support of Motion to File Amendment, bv
MOTION'for a temporary restraining order and/or preliminary injunctip: 

by plaintiff, (ref )
MEMORANDUM in support of mot in

ORDER: MOTION of Plaintiff for Leave to file Amendment to Complaint 
GRANTED. Case Notice No. 17 bv

ORDER: MOTION for a Temporary Restraining Order and/or Preliminary 
Injunction DENIED; only money involved. No irreparable harm. 
Case Notice No. 18 bv

ANSWER to Plaintiff's Amendment to Complaint, bv

AMENDED Complaint of Plaintiff, bv
NOTICE to Take Depositions of Carol Brown, Paulette Winsett, Danny

Reed, Beth Price, Thomas Farmer, and Peggy Taylor by plaintiffs 
bv

DEPOSITION SUBPOENA Return on Beth Price dated 10-20-83. bv
MOTION by plaintiff to Shorten the Time for the Production of 

Documents and Things. (Ref. 10-25-83) bv
AFFIDAVIT of Russell T. Perkins, bv
MEMORANDUM in Support of Motion to Shorten the Time for the Product 

of Documents and Things w/attachments. bv
ORDER: MOTION to Shorten the Time for the Production of Documents 

and Things GRANTED, Case Notice No. 19 bv
Letter from Russell T. Perkins requesting withdrawal of motion to

shorten the time for the production of documents and things, by

oooos



in* 
iv. 1/75)

C IV IL  D O C K E T  C O N T IN U A T IO N  S H E E T rn -M a —

p l a i n t i f f D E F E N D A N T
D O C K E T  N O .

P A G E ____O F ______ P A G E S

D A T E N R . P R O C E E D IN G S

L-2-83

1-22-83 108

1-22-83 109

1-23-83

1-23-8 3 
1-23-83 
1-23-83 

1-28 

1-30

-8 3 

■83

110
111

Return of Service on Deposition Subpoena issued on Gwendoly Jones 
for production of documents at offices of Farris, Warfield,
& Kanady on 11-8-83 at 10:00 ;a.m. bv

MOTION to Further Amend Complaint As Amended: pltf moves this Court
for leave to further amend her Complaint as amended as reflected 
in Amendment To Complaint and Exhibit "A" attached, bsw

MEMORANDUM In Support of Motion to Further Amend Complaint: Rule 15 
allows a party to amend his complaint to set forth facts which 
have occurred since the filing of Complaint. On 11-15-83, the 
Equal Employ. Opport. Comm, issued pltf in this case notice of 
right t© sue letter authorizing her action pursuant to 42 USC 
Section 2000 (e) to be instituted in this Court, bsw

RETURN OF SUMMONS: served personally to Paulette Winsette executed 
11-23-83. bsw

RETURN OF SUMMONS: served personally to Danny Reed executed 11-22-83
RETURN OF SUMMONS: served personally to Carol Brown executed 11-22-83
RETURN OF SUMMONS: served personally to Tommy Farmer executed 11-22

RESPONSE to Plaintiff's MOTION to Further Amend Complaint, bv

ORDER: RESPONSE to Plaintiff's Motion to Further Amend Complaint. 
"No jurisdiction over the Continental Corp." Case Notice No. 20

L-30-8:.

2-1-83 112

2-1-83 113

2-7-83 114
L2-7-8; 114,
2-9-83 115

'—9—8*3 • 116
.2-12-83 117

Conclusion of the trial previously scheduled for Monday, 2-2-84 at 
9:00 a.m. is hereby RESET to Tuesday, 1-3-84, at 9:00 a.m, in 
Cookeville. This resetting is necessitated due to 2-2-84 being 
a Federal holiday for the observance of New Year's Day. bv

ORDER: MOTION to Further Amend Complaint as Amended GRANTED.
Case Notice No. 21 bv

ORDER: Further Amendment to Complaint by plaintiff. "RESERVED -
Set for Hearing on the 7th day of December, 1983 at 1:00 p.m. 
in Nashville. Case Notice No, 22 - bv

CLERKS RESUME on Hearing on Motion to Amend. Court Granted, bv 
FURTHER AMENDMENT to Complaint, bv
MOTION by plaintiff to Extend the Time to Prepare and File Agreed 

Pre-Trial Order. (Ref. bv
AFFIDAVIT of Richard H. Dinkins- bv 
LOCAL RULE 11. Certificate of Defense Counsel, bv

o o o i o



oc m*
• (Re?,*l73»

CIVIL DO CKET CONTINUATION S H E E T
• P L A IN T IF F D E F E N D A N T

GWENDOLYN E. JONES THE CONTINENTAL CORPORATION, 
et al.

D O C K E T  N O . 

P A G E ____O F

82-

. PA<

D A T E N R .

12-15-83 118 
12-16-8:1

P R O C E E D IN G S

PRE-TRIAL ORDER of Parties Approved. Case Notice No. 23
Return of Service on SUBPOENA issued on Lelia Henderson for

appearance at U. S. District Court in Cookeville on 1-3-84 
9:00 a.ta.. Date of Service 12-16-83. bv

12-16-81

12-16-81 

12-16-83

2-22-83 119 
12-20-83

12-21-83

2-27-83
12-27-83
12-27-83

12-27-813

12-27-
12-27-

12-27
2-28-

83
83

83
83

2-27-83 128

120
121
122
123

124
125

126 
127

Return of Service on SUBPOENA issued on Barbara Johnson for
appearance at USDC in Ckvl. on 1-3-84 at 9:00 a.in. Date of 
Service 12-16-83. bv

Return of Service on SUBPOENA issued on Donna Buford for appearan 
at USDC on 1-3-84 at 9:00 a.ra. Date of Service 12-16-83. bv

Return of Service on SUBPOENA issued on Zenobia Wade for appearan 
at USDC on 1-3-84 at 9:00 a.tn. in Ckvl. Date of Service 
12-16-83. bv

DEFENDANTS'- Supplemental Trial Brief, bv
Return of Service on SUBPOENA issued on Jeff Corvin for appearanc 

in U. S. District on 1-3-84 at 9:00 ;a.m. in Cookeville, bv
Return of Service on SUBPOENA issued on Beth Price for appearance 

in U. S . District Court on 1-3-84 at 9:00 a.m. in Ckvl. bv
PLAINTIFF'S Pre-Trial Brief, bv
MOTION by plaintiff to Compel Discovery with attachments. (Ref. 1
MEMORANDUM in Support of Motion to Compel Discovery, bv
PLAINTIFF’S MOTION to Shorten the Time for the Production of

Documents and Things and to Answer Interrogatories w/attachm 
(Ref. bv

AFFIDAVIT of Russell T. Perkins, bv
MEMORANDUM in Support of Plaintiff's Motion to Shorten the Time f 

Production of Documents and Things and to Answer Interrogato 
bv

AFFIDAVIT of Russell T. Perkins, bv

DEFENDANT The Continental Insurance Co.'s Motion for a Protective 
Order with Respect to Plaintiff's 12-1-83 Discovery.w/attacb (Ref. bv

MOTION to Amend Complaint and/or Pre-Trial Order. (Ref.

00011



dc n iA
(R«v, 1/75)

C IV IL D O CKET CONTINUATION SH E E T
P L A IN T IF F D E F E N D A N T

GWENDOLYN E. JONES THE CONTINENTAL CORP., et al.

D A T E N R

12-28-8 i 129

12-28-8 : 130
12-29-8 t 131
12-29-8 ! 132

1-4-84 132a
1-4-84 132b
1-4-84 133

1-4-84 133a
1-23-84 134

1-23-84 135

1-23-84 136
2-7-84 137

2-22-84 138
2-29-84 139
2-29-84 140
3-1-84 141

3-7-84 142

3-7-84 143
3-12-84 144
6-29-84 145
6-29-84 146

D O C K E T  NO. 8 2 *

P A G E ____O F _____ I

P R O C E E D IN G S

REQUEST for Hearing Upon Plaintiff's Motion to Shorten the Time 
for the Production of Documents and Things and to Answer 
Interrogatories and MOTION to Compel Discovery. (Ref. 12-2’

MEMORANDUM in Support of Motion to Amend Complaint and/or Pretri;
DEFENDANTS' Response to Plaintiff's Motion to Compel Discovery.
ORDER: MOTION to Compel Discovery by plaintiff. "Produce Documr 

Instanter." Case Notice No. 24 bv
DEPOSITION of Carol Brown, bv
DEPOSITION of Gwendolyn E. Jones, bv
CLERKS RESUME of Court Proceedings of Non-Jury Trial. Resumptior 

Non-jury trial. Findings of Fact and Conclusions of Law to 
filed in 30 days, bv

NOTICE of Filing of Depositions by plaintiff, bv
MOTION by dfdts for an order to extend time for filing findings c 

fact and conclusions of law. (Ref. 2-7-84) bv
MEMORANDUM in Support of Motion to extend time for filing findinc 

and conclusions, bv
AFFIDAVIT of Cornelia A. Clark, bv
ORDER: MOTION to Extend the Time for Filing Findings of Fact and 

Conclusions of Law Granted. "Time Extended to 3-1-84."
Case Notice No. 25 bv

TRANSCRIPT of Proceedings of 1-3-84 in Ckvl. Vol. Ill and IV. (Cy 
MOTION for Ext. of Time by pltf. (Ref. 3-7-84) bv
AFFIDAVIT of Richard H. Dinkins, bv
RESPONSE to Plaintiff's Motion to Continue Time, and Defendants* 

Motion to Continue Time for Filing, bv
AGREED ORDER that plaintiffs will have until March 11, 1984, to f 

Findings of Fact and Conclusions of Law. Case Notice No. 2
ORDER granting plaintiffs motion for ext. of time. Case Notice N
DEFENDANTS' Proposed Findings of Fact and Conclusions of Law. bv
MEMORANDUM of the COURT. Case Notice No. 28 bv
ORDER: In accordance with the memorandum contemporaneously filed, 

judgment shall be entered for defendants and this case is 
DISMISSED. Case Notice No. 29 bv

0 0 0 1 2



DC 111A
|R*v. 1/75)

CIVIL DO CKET CONTINUATION S H E E T

P L A IN T IF F D E F E N D A N T
D O C K E T  N O  82-3572

GWENDOLYN JONES THE CONTINENTAL CORPORATION,
et al. P A G E  O F  P A G E S

D A TE N R . P R O C E E D IN G S

7-13—84 147 NOTICE of APPEAL by plaintiff from judgment entered 6-29-84,
7-13-84 148 c o s t  bv
7-16-84 Transmittal mailed to 6CCA this date, bv
7-26-84 Acknowledgement from 6CCA of receipt of transmittal from

District Court. Case assigned docket number 84-5658 at 6CCA. bv
7-30-84 BILL of COSTS, bv
7-30-84 149 DEFENDANTS' Petition for Determination of Reasonable Attorneys' Fees 

and Costs, bv
7-30-84 150 DEFENDANTS' MEMORANDUM in Support of Petition for Determination of 

Reasonable Attorneys' Fees and Costs, bv
7-30-84 151 AFFIDAVIT of Lloyd Sutter, bv
7-30-84 152 AFFIDAVIT of Cornelia A. Clark, bv

5-7-84 Record mailed to 6CCA this date. Copy of transmittal mailed to 
attorneys of record, bv

8-7-84 153 PLAINTIFF'S MOTION for a 30 day extension of time in which to file 
a response to defendants' petition for attorney's fees and 
costs. (Ref. 8-16-84) bv

8-7-84 154 AFFIDAVIT of Russell T. Perkins, bv
8-8-84 Certified Record mailed to 6CCA this date, bv
8-16-84 155 ORDER: Plaintiff's MOTION for a 30 day Extension of Time in which

to file a response to defendants' petition for attorney's fees 
and costs. "EXTENSION GRANTED to AUGUST 31, 1984."
Case Notice No. 30 bv

5-31-84 156 RESPONSE of Plaintiff in Opposition to Defendants' Petition for 
Determination of Reasonable Attorneys' Fees and Costs, bv

9-5-84 157 MOTION by plaintiff for a Stay of Proceedings. (Ref. bv
9-5-84 158 MEMORANDUM in Support of Plaintiff's Motion for Stay of Proceedings, 

bv
9-17-Si 159 DEFENDANTS' Memorandum in Opposition to Motion for a Stay of

c
♦ Proceedings, bv

11-20-8 l 160 AFFIDAVIT of George E. Barrett, bv
11-26-i54 Trial exhibits of Plaintiff and Defendant forwarded to 6CCA this 

date, bv
00013



OC 1UA (R«v. 1/1S)
CIVIL. DO CKET CONTINUATION S H E E T



DO 11U 
(«•». 1/75)

CIVIL DO CKET CONTINUATION S H E E T
P L A IN T IF F

GWENDOLYN E. JONES
D E F E N D A N T

THE CONTINENTAL CORPORATION, 
ET AL

DOCKET NO.

P A G E ___ OF

82-3572
.P A G E S

D A T E  N R P R O C E E D IN G S

2-1-85V 165

'Motion for a new trial and/or to alter or amend judgment, c/s jb<
•Memorandum in support of motion for a new trial and/or to alter or 
amend judgment, c/s jbc
lotion for a 15 day extension of time in which time to file 
supporting affidavits and a supplemental brief in support of motior 
for a new trial and/or to alter or amend judgment. c/s jbc

2-I-85ss 166 Affidavit of Russell T. Perkins with exhibit A attached. c/s jbc

2-ll-85Sw 167 J  RESK&'SE to Plaintiff's Motion for New Trial and/or to Alter or Amend 
Judgment. c/s

(165 ORDER: "Granted, L. Clure Morton, S.J." Case Notice No. £
AMENDED MEMORANDUM in Support of Motion for a New Trial and/or To Alter 
or Amend Judgment. c/s
Filed: Affidavit of Richard H. Dinkins. c/s
Filed: Affidavit of Russell T. Perkins, Esq. c/s
Filed: Affidavit of Larry D. Woods c/s
Filed: Affidavit of Mrs. Gwendolyn Jones. c/s
Entered: Agreed Order that all proceedings upon plaintiff's Motion for
a New Trial and/or to Alter or Amend Judgment are stayed until 21 February 
1985 to file additional affidavits and amended memorandum in support 
of their Motion. Case Notice No. 3 3  . ((165) and 173)
SUPPLEMENTAL Response to plaintiffs* motion for new trial and/ or 
to alter or amend judgment. c/s jbc

Msnorandum of the Court.
ORDER of the Court: In accordance with the memorandum contarporaneously
filed, the motion of the plaintiff and plaintiff's counsel for a new trial 
and/or to alter or amend the judgments against them is denied. CASE NOTICE 
NO. 3 y (#i75 and 176)

3-5-81 174

Plaintiff's NOTICE OF APPEAL, 
Receipt No. 05433.)

c/s ($70.00 paid by Richard Dinkins,
jbc

Plaintiff's Motion to stay judgment. c/s jbc
Plaintiff's Memorandum in support of motion to stay judgment. 
Plaintiff's Cost Bond. jbc

jb<

0 0 0 1 5



DC 111*
(R«v. 1/7SJ

CIVIL. DO CKET CONTINUATION S H E E T

P L A IN T IF F

D A TE

4-25- 

5-27-851

8p (17p} ORDERi
S. J. ’

NR.

D E F E N D A N T
DOCKET NO.

PAG E ___ .OF .P A G E S

P R O C E E D IN G S

Motion to stay judgment marked "GRANTFD, 
Case Notice No* 35.

CLURE MORTON,
j b c

CERTIFIED RECORD of documents 161 through 180 forwarded to 6CCA this 
day. Copy of docket entries to attorneys of record. j be

0 0 0 1 6



V

A O  133 
(R*v 7/82} BILL OF COSTS

ffinitgft j^ taigs jBtgtrtci C ourt
D IS T R IC T

Middle District of Tennessee

GWENDOLYN E. JONES, Plaintiff,
v.

THE CONTINENTAL CORP., et al.,
______________  Defendants

D O C K E T  N O .

Civil Action No. 82-3572
M A S  I S T  R A T E  CASE N O .

£ e
Judgment having been entered in the above entitled action on June 29 , 1984_____JUL 11 1 nst
__p laintiff____________________________ _ the clerk is requested to tax the f oi I owi nQ^aj^costs:

BY*
D EPUTY C LE R K

BILL OF COSTS

Fees of the clerk.............. ........... ............................................ .. —  . —  . . .  —

Fees for service of summons and complaint ........................................ . .

Fees of the court reporter for all or any part of the transcript necessarily
obtained for use in the case . . . . . . . . . . . . . . . . . . . .  —  ......... . .

Fees and disbursements for printing . . . . . .  —  . . . . . . . . . . . . . . . .  — . —  . . . . . .

Fees for witnesses (itemized on reverse side) . . . .  —  . —  .......... — .......... -

Fees for exemplification and copies of papers necessarily obtained
for use in case .. —  . —  . . . . . . .  —  .......................................................... .. .

Docket fees under 28 U.S.C. § 1923 .............  ...........................................................

Costs incident to taking of depositions ...................................... —  .............................

Costs as shown on Mandate of Court of Appeals ............................................

Other costs (Please itemize) .................................................... .........................................

1,784.00

658.00

2,270.40

1,827.75

TOTAL 6,540.15

S P E C IA L  N O T E : A ttach to  your Bill an ita m lu tio n  and docum entation for raquastad costs in all catagorfo i Brlafs should also b« suom ltted 
supporting tna necessity of the requested costs and citing cases supporting taxation o f those costs.

DECLARATION

I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and 
that the services for which fees have been charged were actually and necessarily performed. A copy hereof was this day 
mailed with postage fully prepaid thereon to:^ ̂  /J f/

ulcz.S IG N A T U R E  O F  A T T O R N E Y  .

POR: ---The Continental Cnrpnrafinn DATE
Nam a o f claiming party

3c . /f/y--7— ■'
Please take notice that I will appegf-bcfope tby wfUrti
following day and time:______

Costs are hereby tailed in the following amount and included
in th s  inHnmont°

ax said costs on the
________ '__

D A T E  A N D  T IM E

August 1, 1984 at 9:00 a .it
A M O U N T  T A X E D

a
CLERK OP C O U R T (B Y ) D E P U T Y  C L E R K D A T E

O O O I7



ITEMIZATION OF COSTS

Depositions
1) George Landis Holmes, III, M.D. and - 

Luther E. Smith, M.D. $ 201.00
plus $100.00 charge by Smith to appear 100.00

2) Carol Brown, Donna Manning, Tommy Farmer, 
Danny Reed, Raymond Barlow, Gwen Jones 
(11/29/82) (original of Jones, copies of 
others) 477.25

3) Gwen Jones (11/8/83) (original and copy) 526.00
4) Carol Brown, Paulette Winsett, Beth Price, 

Danny Reed, Tommy Farmer, Peggy Taylor 523.50
Transcripts

1) 12/14/82 26.00
2) 2/16/83 954.00
3) 2/84 (received by C. Clark) 804.00

Appearance of witness
by John J. Griffin, M.D. 2/16/83 600.00
plus physical exam of plaintiff 58.00

Personnel file and insurance policy copies made 
during discovery for plaintiff’s counsel 
(3520 pages x two copies x 20 cents a copy) 1,412.00

Defendants' Exhibits (1073 pages x four copies 
required by Local Rules x 20 cents a page) 858.40

TOTAL $6,540.15

00018



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN E. JONES, )
)Plaintiff, )
)

v. )
)

THE CONTINENTAL CORPORATION, )
et al., )

)
Defendants. )
______________________ )

CIVIL ACTION
FILE NO. 82-3572

Cjc D U - c U -

DEFENDANTS’ PETITION FOR DETERMINATION 
OF REASONABLE ATTORNEYS’ FEES AND COSTS

COME NOW defendants in this action and by and through 
the undersigned counsel of record, and pursuant to Local Rule 
13(d) and 13(e), respectfully move the Court for a determination 
of costs and reasonable attorneys' fees in this action. In 
support hereof, defendants submit the Affidavits of Lloyd Sutter 
and Cornelia A. Clark, defendants' attorneys in this action, 
Exhibit A to this petition, and the memorandum supporting this 
motion, filed herewith.

CC'CT"!;

00019



WHEREFORE, defendants respectfully pray that the Court 
determine their costs of this action and reasonable attorneys' 

fees.
Respectfully submitted,

Paul, Hastings, Janofsky Lloyd Sutter
& Walker

230 Peachtree Street, N.W.
Suite 1100
Atlanta, Georgia 30303 
(404) 588-9900
. . 1 W  /.C/v. GXa. il( fiCi ['k f $ f
Farris, Warfield & Kanaday Cornelia A. Clark ?
Seventh Floor
Third National Bank Building
Nashville, Tennessee 37219 Attorneys for Defendants
(615) 244-5200

- 2 -

0 0 0 2 0



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN E. JONES, )
)
)Plaintiff,
) CIVIL ACTION

V . )
) FILE NO. 82-3572

THE CONTINENTAL CORPORATION, 
et al. , )

)
)
)
)

Defendants.

DEFENDANTS' MEMORANDUM IN SUPPORT 
OF PETITION FOR DETERMINATION OF REASONABLE 
_________ ATTORNEYS8 FEES AND COSTS

Statement of the Case
Plaintiff, Gwendolyn Kidd Jones (plaintiff or Ms.

Jones), in June 1982 filed her action, alleging race and sex 
discrimination with respect to promotion, compensation, and 
access to formal training programs, and discriminatory 
performance appraisals, all purportedly in violation of Title VII 
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et 
seq., and the 1866 Civil Rights Act, 42 U.S.C. § 1981. Plaintiff 
sought equitable relief, as well as compensatory and punitive 
damages.

The action was filed against The Continental Corporation 
and two executives of the parent corporation's insurance company 
subsidiary (Mr. Barsanti, Regional Director, and Mr. Meulemans,

41
w

AUG -21584̂ 1}
i

** * % «  * * *  i Rita 0 0 0 2 1
Aiianra, Gscrais



Branch Manager); but not against The Continental Insurance 
Company, her employer.

Defendants responded with a motion to dismiss, 
contending that the parent company (The Continental Corporation) 
and Messrs. Barsanti and Meulemans were inapproprlate defendants, 
and that none of the defendants had been properly served. In 
addition, defendants contended that plaintiff could not obtain 
relief antedating her July 1980 EEOC charge settlement, could not 
bring a sex discrimination charge under § 1981 (an issue 
previously decided against plaintiff represented by the same 
counsel and before the same Court in a prior action against 
Travelers Insurance Company), and could not obtain "damages'’ 
under Title VII. By letter dated August 13, 1982 (Exhibit A to 
this petition), delivered to plaintiff's counsel 
contemporaneously with service of the responsive motion, defense 
counsel offered to afford plaintiff's counsel an extension of 
time if they wanted to amend plaintiff’s complaint in lieu of 
responding to the motion and offered to accept service on behalf 
of The Continental Insurance Company, plaintiff's actual employer 
and the appropriate party defendant.

Plaintiff's counsel ignored defense counsels' offer, 
proceeded to amend the complaint to add The Continental Insurance 
Company as a party defendant, and then again improperly attempted 
to obtain service. At a hearing on October 5, 1982, the Court 
ordered plaintiff's counsel to effectuate service properly. At

- 2 -

0 0 0 2 2



the November 15, 1982 hearing, the Court also directed 
plaintiff's counsel to respond to defendants' motion to 
dismiss, Plaintiff’s counsel never properly responded; and, 
after counsel had completed preparation of the pretrial order 
required under the Local Rules, plaintiff's counsel refused to 
execute same unless defendants agreed to waive any right to 
attorneys' fees on the issues raised in their motion to dismiss.

As a result, a hearing was held on December 14, 1982, at 
which the Court ruled that it would try the case as scheduled in 
January 1983 without a pretrial order and would rule on 
defendants' contentions at trial. The Court also directed 
defense counsel to file an answer which was done the same day as 
the hearing and in which defendants preserved their contentions 
raised 'in their motion.

The death of plaintiff's mother postponed the trial 
until February 15-17, 1983. Trial of plaintiff's case consumed 
the entire three days at the conclusion of which the Court 
dismissed pursuant to defendants' Rule 41(b) motion all of 
plaintiff's claims except her claim that she was discriminated 
against on the basis of race when the employer allowed Carol 
Brown to transfer from California to Nashville as a senior 
underwriter. Hence, defendants prevailed completely on the 
parent corporation inappropriate defendant issue and on the 
inappropriateness of the individuals being defendants under Title 
VII (but not, pending hearing of defendants' evidence, on the

- 3 -

000^3



§ 1981 claim). In addition, the Court ruled in defendants' favor 
on the 1980 EEOC charge settlement issue, on the inappropri
ateness of "damage" relief under Title VII (but not § 1981), the 
absence of any discrimination with respect to compensation, 
training, and performance appraisals, and on the question of sex 
discrimination altogether.

In July 1983, plaintiff wrote her employer's most 
significant agency a letter, accusing Beth Price of that agency 
of "hatred and prejudice." When she could give no explanation 
for why she wrote the letter, plaintiff's employment was 
terminated in early August, 1983.

Thereafter, plaintiff filed an amended complaint and a 
petition for temporary restraining order seeking reinstatement 
prior to trial on the merits (which was denied in a telephone 
hearing convened by the Court). In addition to adding her 
termination as a new race (and sex) discrimination claim, 
plaintiff alleged that she had been the victim of retaliation (a 
42 U.S.C. § 2000e-3 claim) based upon certain incidents 
purportedly occurring after the February 1983 trial, _e._g_. , the 
Amway products solicitation issue, the Carolyn Hatcher training 
issue, the objection to profanity used in various business 
transactions, and the location of her desk and lighting. With 
her amended complaint, plaintiff also added as named individual 
defendants Messrs. Farmer and Reed and Mesdames Winsett, Brown, 

and Taylor.

- 4 -

00024



Plaintiff's counsel again refused to agree upon a 
pretrial order as required under the Local Rules. Defendants' 
rebuttal case on the promotion claim, as well as the entire cases 
on plaintiff's retaliation and termination claims, were tried on 
January 3-4, 1984.

On June 29, 1984, the Court entered its findings of
fact, conclusions of law, and judgment in defendants' favor.
Briefly, the Court reaffirmed the dismissal of the parent
corporation and various individuals as defendants, and found that
with the exception of the promotion claim, "plaintiff's claims
that she was discriminated against in the terms, conditions, and
opportunity of her employment were without substance." See Order
of June 29, 1984, at 8 n.6.
Statement of Facts 
in Support of 
Attorneys' Fees Claim

Defendants were represented by two firms: Paul,
Hastings, Janofsky 6s Walker from Atlanta and Farris, Warfield 6s 
Kanaday of Nashville. While several attorneys in each firm, as 
well as paralegals with the Atlanta firm, worked on this action, 
defendants have restricted their claim for attorneys' fees to 
time devoted to the case by only two attorneys, Lloyd Sutter and 
Cornelia Clark, who actually represented defendants at trial.

For reasons set forth in the Argument portion of this 
memorandum, infra, defendants make no claim for attorneys' fees 
attributable to plaintiff's main claim on the merits, j_._e. , the

- 5 -

O O O Z s



allegation that Ms. Jones was denied the supervisory underwriter 
position filled by Ms. Brown because of plaintiff's race.
Because it was too difficult to separate from her promotion 
denial issue the allegations plaintiff made with respect to 
compensation, training access, and performance appraisals, no 
claim for attorneys* fees attributable to these issues has been 
made-I/ Similarly, no claim has been made with respect to 
discovery related to this phase of the action.

Defendants, however, have filed this attorneys' fees 
claim with respect to three phases of this litigation as to which 
plaintiff and ,her counsel knew they were prosecuting issues that 
were frivolous, unreasonable, and without foundation: (1) the
issues challenged in defendants' motion to dismiss; (2) the 
retaliation claims (including the naming of individual defendants 
with respect thereto) allegedly occurring between the first and 
second phases of the trial; and (3) the termination claim.

A. Motion to Dismiss Issues.
In her complaint, plaintiff sued the parent corporation 

(The Continental Corporation), rather than her actual employer--a 
subsidiary (The Continental Insurance Company). She made no 
effort to delineate in her Title VII and § 1981 claims between

1_/ Defendants have, however, made an attorneys' fee claim 
for the 4.0 trial hours spent on plaintiff's "review" of numerous 
alleged insurance policy underwriting "deficiencies" using a 
plaintiff-and-counsel "script" which became Court's Exhibits 1 
and 2.

- 6 -

0 0 0 2 6



naming individual defendants (impermissible under Title VII, 
possible under 5 1981); between race and sex discrimination (race 
actionable under both statutes, sex not actionable under S 1981-- 
a fact known from the Travelers litigation in which she was 
involved before the same Court represented by the same counsel); 
and between damages availability (under § 1981, but not Title 
VII). In addition, plaintiff sought relief antedating her July 
1980 EEOC charge settlement. She repeatedly failed to accomplish 
service of process properly. And she litigated a plainly 
meritless sex discrimination claim.

Except for the sex discrimination claim (which was 
impossible to delineate from the promotion and other claims as 
far as attorneys' time expenditures), the time devoted to the 
foregoing issues can readily be separated out of total attorney 
time expended, as reflected in the affidavits of Lloyd Sutter and 
Cornelia Clark attached hereto.

Two other facts militate toward award of fees for these 
issues: by letter dated August 13, 1982 (Exhibit A), defense
counsel invited plaintiff's counsel to "clean up" her complaint; 
and plaintiff's counsel, while recognizing at the pretrial order 
stage that the issues to be tried should be simplified, refused 
to execute the otherwise negotiated and agreed upon pretrial 
order unless defendants waived any right they might have to 
attorneys' fees attributable to the motion to dismiss. This 
latter action resulted in the Court ruling that it would try the

- 7 -

0 0 0 Z 7



case without a pretrial order and it would rule on the issues 
raised by the motion to dismiss at the time defendant made its 
Rule 41(b) motion.

In fact, defendant prevailed on its Rule 41(b) motion in 
every respect except possible § 1981 individual liability and 
plaintiff's promotion denial claim, as to which defendant The 
Continental Insurance Company was directed to present its 
rebuttal evidence to which plaintiff in turn could produce 
"pretext" evidence.

B . The Termination Claim.
Before she was terminated, plaintiff could not explain 

either to her supervisors or the insulted "customer" why she had 
accused Beth Price and the Brandon Agency of "hatred and 
prejudice" in her letter of July 15, 1984. Nevertheless, she 
made her termination the basis of a petition for a temporary 
restraining order and an amended complaint. Fully one-third the 
defense attorney time--whether in the nature of responsive 
pleadings, discovery, trial preparation, and trial--between the 
September 2, 1983, telephone pretrial conference and the close of 
trial on January 4, 1984, was spent on this unfounded claim.— ^

2_/ Another one-third was spent on the meritless retaliation 
claims and the remaining one-third was devoted to preparations of 
rebuttal evidence on the promotion denial claim.

“8 -

0 0 0 ^ 8



c. The Retaliation Claim.
Prior to her termination, plaintiff had taken issue for 

purposes of the lawsuit with only her desk location and 
lighting. After she was terminated, she added to her amended 
complaint a series of allegedly retaliatory actions involving 
her, _i . e_. , the Am way solicitation challenge, the Hatcher training 
dispute, profanity in the office and by customer representatives, 
and the desk location/lighting controversy. She embellished 
these allegations with the fabricated accusation that Raymond 
Lye 11 had supposedly called her a "Goddamn nigger" several months 
earlier.

Plaintiff added as named defendants Mesdames Winsett, 
Brown, and Taylor, as well as Messrs. Farmer and Reed. It is 
clear from deposition and trial testimony, that Taylor and Reed 
were named as defendants solely because of their involvement, 
respectively, in the Amway and Hatcher training situations. 
Neither was a supervisor of plaintiff at the time. Farmer,
Brown, and Winsett were named apparently because of their 
involvement in both the retaliation and the termination 
incidents.

For the reasons hereinafter set forth, defendants should 
be awarded their attorneys' fees attributable to the three above- 
described aspects of this litigation.

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Argument
A. General Principles for 

Awarding Attorneys' Fees 
to Prevailing Defendants
In Cbristiansburg Garment Co. v. EEOC, 434 "U. S. 412, 421 

(1978), the Supreme Court held that a prevailing defendant may 
obtain attorneys' fees if the plaintiff's suit was "frivolous, 
unreasonable, or without foundation." The Court rejected the 
EEOC's argument that a showing of bad faith is required in order 
for the defendant to recover fees under 5 706(k) of Title VII, 42 
U.S.C. § 2000e-5(k) Id.; see also EEOC v. Bailey Co., 563
F .2d 439, 456 (6th Cir. 1977) (pre-Christiansburg case rejecting 
bad faith requirement, observing that although a private 
plaintiff may further the goal of eradicating unlawful employment 
discrimination, a prevailing defendant has suffered from an 
unnecessary burden imposed on its business).

After Chr istiansburg, many courts have awarded 
attorneys' fees to prevailing defendants. See, je.£. , Arnold v. 
Burger King Corp. , 719 F .2d 63 (4th Cir. 1983) ; Durrett v.
Jenkins Brickyard, Inc., 678 F .2d 911 (11th Cir. 1982) (remanded 
for determination of award); Harris v. Plastics Manufacturing

3/ That section provides?
In any action or proceeding under this title the court 

may allow the prevailing party, other than the Commission or the 
United States, a reasonable attorney's fee as part of the costs, 
and the Commission and the United States shall be liable for 
costs the same as a private person.

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Co., 617 F .2d 438 (5th Cir. 1980) (per curiam). In Arnold, for 
example, the court found that the defendant had clearly made the 
requisite showing of frivolousness, noting that the record 
demonstrated that plaintiff's discharge was caused 'solely by his 
persistent harassment of female employees. Moreover, the work 
environment was devoid of discrimination which might otherwise 
give independent credence to plaintiff's claim where the 
workforce was almost evenly divided between whites and blacks.

In Tonti v. Petropoulous, 656 F.2d 212 (6th Cir. 1981), 
the court applied the Christiansburg standard in affirming the 
lower court's fee award pursuant to 42 U.S.C. § 1988 in a § 1983 
action.it/ The court specifically approved the lower court's 
finding that the plaintiff's case was contrived, frivolous, 
unreasonable and without foundation. The lower court noted the 
purpose of a fee award to a prevailing defendant is to deter the 
particular plaintiff, and other plaintiffs generally, from 
prosecuting clearly baseless claims. The district court awarded 
a total of over $100,000 in attorneys' fees to the two 
defendants.

4/ In Hensley v. Eckerhart, ___  U.S. , 76 L. Ed. 2d
40, TO n.7 (1983), the Supreme Court held that the legislative 
history of § 1988 indicated Congress intended that the standard 
for awarding fees pursuant to it be the same as under the Civil 
Rights Act of 1964.

- 1 1 -

00031



The most recent pronouncement by the Supreme Court on 
the issue of computation and award of reasonable attorneys' fees

(1983). The issue for the Court was whether a partially 
prevailing plaintiff may recover attorneys' fees for legal 
services on unsuccessful claims. It held that a plaintiff may 
not recover on an unsuccessful claim that is unrelated to the 
successful claims. Recognizing the difficulty of applying a 
standard of relatedness, the Court provided some guidance, 
stating that "[m]any civil rights cases will present only a 
single claim. In other cases the plaintiff's claims for relief 
will involve a common core of facts or will be based on related 
legal theories." Id. at 51. The Court made clear that the
standards set out in Hensley were to apply to prevailing 
defendants' petitions for attorneys' fees as well. See id.

1383 (5th Cir. 1983).
The few courts to apply Hensley to the situation of 

partially prevailing plaintiffs have defined relatedness in terms

5/ The lower court's decision in Tonti foreshadowed the 
holding in Hensley. The court criticized the practice of 
"kitchen sink pleading and the court's ability to discourage it 
by refusing to award a successful plaintiff fees for time spent 
pursuing a "plainly meritless alternative theory." In the 
context of the prevailing defendant situation, however, the 
defendant's counsel must prepare for all claims and theories 
raised by the pleadings, and time spent in doing so may be 
compensated. See 656 F .2d at 220.

is Hensley v. Eckerhart, _____ U.S. ___ _, 76 L. Ed. 2d 40

n,10;J/ see also Commonwealth Oil Refining Co. v. EEOC, 720 F.2d

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0 0 0 3 2



of legal theories. See Gates v. ITT Continental Baking Co. , 5S1 
F. Supp. 204 (N.D. Ohio 1984) (plaintiff prevailed on Title VII 
and i 1981 race discrimination claims; no fees awarded for time 
spent on unsuccessful §§ 1983 and 1985 claims); Jacobson v.
Pitman-Moore Inc., 34 FEP Gas. 1082 (D. Minn. 1984) (fees awarded 
for ADEA claim, but claims under Title VII, Equal Pay Act, 
Minnesota Human Rights Act, $ 1981, § 1985(3), and breach of 
contract and conspiracy claims unrelated under Hensley) .

In terms of the actual fee computation itself, the Sixth 
Circuit has rejected the twelve-factor analysis of Johnson v. 
Georgia Highway Express, Inc., 488 F .2d 714 (5th Gir. 1974), in 
favor of a more simplified, streamlined approach. Thus, in 
Northcross v. Board of Education, 611 F .2d 624 (6th Gir. 1979), 
cert. denied,447 U.S. 911 (1980), the court held that to 
calculate a reasonable fee, the hours of service provided are 
first to be determined. The next step is to determine a 
reasonable hourly rate, with the fair market value of the 
services provided as the primary guide. The Northcross court 
indicated that in most communities, the hourly rate charged by an 
attorney will normally reflect his or her training, background, 
experience, and skill. See 611 F .2d at 638. The product of the 
hours and the hourly rate is a reasonably objective estimation of 
the value of the lawyer's service. United Slate, Tile, &

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Composition Roofers, Local 307 v. G & M Roofing & Sheet Metal 
Co., 732 F .2d 495, 502 (6th Cir. 1984)J /

B. The Appropriate Attorneys’
Fees in this Ca^e
There can be no question but that defendants are the 

prevailing parties in this action. Moreover, under 
Christianburg, defendants are entitled to a fee award because 
plaintiff's claims, with the exception of the promotion claim,U 
were manifestly frivolous, unreasonable, and totally unsupported.

Perhaps plaintiff's most unreasonable and frivolous 
claims were those against the parent corporation and executives 
and employees of the insurance company subsidiary. As set forth 
above, defendants filed a motion to dismiss these parties as 
inappropriate, and concurrently offered plaintiff an opportunity 
to amend the complaint to substitute her employer The Continental 
Insurance Company and to accept service on the Company's 
behalf. Plaintiff, however, unreasonably refused to drop her

_6/ While this "product of reasonable hours times a 
reasonable rate does not end the inquiry" for purposes of 
determining awards to prevailing plaintiffs, Hensley, supra, 76 
L. Ed. 2d at 51, defendants concede that no multiplier is 
utilized for purposes of calculating awards to successful 
defendants.

7/ Plaintiff's promotion claim, while far from successful, 
was Tound by the Court to have at least passed prima facie 
muster. While not clearly foreclosed from an award of fees on 
this claim under Hensley, defendants nevertheless do not seek an 
award for time spent on the promotion or related claims.

- 1 4 -

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claims against these defendants and never properly responded to 
the motion to dismiss.

The Court's findings clearly demonstrate plaintiff's 
unreasonableness in even initially naming these defendants. It 
held that neither The Continental Corporation nor the individuals 
were proper defendants, finding that plaintiff knew that The 
Continental Insurance Company and not the Corporation was her 
employer. Moreover, it held that the individuals were not 
"employers" under Title VII nor did they violate any rights 
protected by I 1981. See Order of June 29, 1984 at 3.

Attorneys' fees were awarded under similar circumstances 
in Brown v. Fairleigh Dickinson University, 560 F. Supp. 391 
(D.N.J. 1983). Finding that plaintiff had no basis to believe 
the named individuals had anything to do with the decision and 
that her claims were frivolous, the court stated that 
"'[pjlaintiffs in civil rights cases cannot with impunity make 
shotgun charges, naming every person connected with the 
defendant, unless there is some minimal basis for the claim.'"
Id. at 405 (quoting Kaimowitz v. Howard, 547 F. Supp. 1345, 1351 
(E.D. Mich. 1982)).

In view of plaintiff's knowledge of the identity of her 
employer and the obvious inappropriateness of the Corporation and 
individuals as defendants, fees should be awarded for time spent 
in connection with the motion to dismiss challenging these

- 1 5 -

0 0 0 3 5



unreasonable actions as set out in the Sutter and Clark 
affidavits and attachments thereto.JL/

The second claim for which defendants seek attorneys' 
fees is the termination claim, Discussing the "hatred and 
prejudice" letter that led to plaintiff's termination, the Court 
found that plaintiff "offered no explanation other than her own 
vague perceptions of mistreatment and a derogatory written 
comment that had been made by another Brandon agent that 
contained no racial reference-2/

The Court found that the Company's action in terminating 
plaintiff was "totally justified" in terms of "sound business 
judgment." Id♦ at 5-6. As in Arnold v. Burger King Corp., 719 
F,2d 63 (4th Cir. 1983), there was a complete void of direct 
evidence of racial discrimination. Nor would the work environ-

8/ The other main issue addressed in defendants' motion to 
dismiss was also frivolous, _i .je., that sex discrimination is not 
actionable under § 1981, since this question was specifically 
decided against plaintiff by this Court in another case. Indeed, 
plaintiff's sex discrimination claim was totally without 
foundation, as the Court found. See Order at 3 ("plaintiff did 
not introduce the slightest bit of evidence"). Finally, these 
issues are totally unrelated within the meaning of Hensley to the 
promotion claim on which plaintiff was found to have established 
at least a prima facie ease.

JJ  Although plaintiff testified at trial that this
individual called her a "Goddamn nigger," the Court found her 
testimony totally incredible and indeed was persuaded that "the 
plaintiff concocted the alleged insult in an effort to bolster 
her case." Order at 5 n.3. Such an attempt to manufacture 
evidence indicates bad faith, which although not required, is 
certainly sufficient justification for an award of attorneys' 
fees. See Christiansburg, supra, at 422.

- 1 6 -

0 0 0 3 6



men£ support any evidence of discrimination which might otherwise 
give independent credence to plaintiff’s claim. As the Court 
found, there was no proof that blacks were more adversely 
affected by the Company's policies than whites. Indeed, the 
Company employs many blacks, at all levels of the corporate 
hierarchy. Order at 2. Plaintiff's termination claim was 
entirely frivolous and justifies an award of attorneys' fees for 
time spent in its connection.

The last claim for which defendants seek fees is her 
retaliation claim. The Court summarily dismissed each alleged 
retaliatory action. See Order at 7-8. It described the lighting 
and desk location complaints as "picayune and not substantiated 
by the evidence." Id. at 8. It is such complaints that render 
attorneys' fee awards entirely appropriate and even desirable in 
terms of the importance of deterring frivolous lawsuits that 
unnecessarily burden the employer's business. See 
Chr istiansburg , supra, at 420.

To aid the Court's determination, defendants submit the 
affidavits of its attorneys, Lloyd Sutter and Cornelia Clark. 
Attachment B to each affidavit reflects a breakdown of the time 
spent on the case in connection with matters unrelated to the 
promotion claim, _i_.ĵ . , the motion to dismiss and the termination 
and retaliation claims. Thus, counsel have liberally eliminated 
portions of time for which fees are arguably not recoverable, 
leaving only clearly recoverable amounts. These hours claimed

- 1 7 -

0 0 0 3 7



are clearly reasonable as are the hourly rates shown in the 
attachments. Thus, defendants request that they be awarded a 
total of $25,371.50 in attorneys' fees.

C. Defendants' Entitlement to 
Reimbursement for Items Set 
Forth in Their Bill of Costs
The Supreme Court has observed that the taxation of 

costs is a "normal incident of defeat." Delta Air Lines, Inc, v. 
August, 450 U.S. 346, 352 (1981). Statutory costs, unlike 
attorneys' fees, are awarded to a prevailing party under 28 
U.S.C. S 1920 as a matter of course, and it is not necessary that 
unusual circumstances be presented before such an award is 
appropriate. See, je.£., Croker v. Boeing Co. , 662 F.2d 975 (3d 
Cir. 1981); Jones v. City of San Antonio, 568 F.2d 1224 (5th Cir. 
1978).

The cost of depositions necessarily obtained for use in 
the case are taxable. Deposition costs are taxable where they 
are necessary for defendant's preparation for trial and where 
there is a reasonable need that counsel have a copy of the 
deposition. Marcoin, Inc, v. Edwin K. Williams & Co., 88 F.R.D. 
588, 591 (E.D. Va. 1980). Here, most of the depositions were 
necessitated by plaintiff's own indiscriminate naming of 
individual employees as defendants. Even though plaintiff's 
allegations against them were totally unsupported, defendants had 
no choice but to take their lead from plaintiff, and prepare

-IS-

0003s



I

adequately for all claims raised by the pleadings. See Tonti v, 
Petropoulous, 656 F.2d 212, 220 (6th Cir. 1981).

Additionally, costs of transcripts of hearings and the 
trial may be taxed where the transcript was necessary to 
counsel's effective performance and proper handling of the 
case. Marcoin, supra, at 590. See also Viverette v. Wallace 
State Junior College, 587 F.2d 191 (5th Cir. 1979). Here, 
defendants reasonably obtained transcripts of the December 14, 
1982 hearing on the pretrial order and its motion to dismiss for 
preparation for the February 1983 trial. The 1983 and 1984 trial 
transcripts were necessary for preparation of proposed findings 
of fact and conclusions of law submitted by defendants.

Costs of the prevailing party's witnesses are generally 
a necessary expense and therefore recoverable. Marcoin, supra, 
at 590-91; Marks v. Calendine, 80 F.R.D. 24, 31 (N.D.W. Va.
1978). The only witness expense defendants seek is for John J. 
Griffin, M.D., the psychiatrist who conducted an examination of 
plaintiff pursuant to Fed. R. Civ. P. 35. Plaintiff called Dr. 
Griffin as a witness at trial and then refused to pay his fee. 
Defendants did so and now seek to recover this item as part of 
its costs.

Finally, photocopy costs are allowable under 28 U.S.C. § 
1920(4). Scroggins v. Air Cargo, Inc., 534 F.2d 1124 (5th Cir. 
1976); Meadows v. Ford Motor Co., 62 F.R.D. 98 (W.D. Ky. 1973); 
modified on other grounds, 510 F.2d 939 (6th Cir. 1975). Thus,

- 1 9 -

0 0 0 3 9



defendants seek to recover a total of $6,540,15 in taxable costs 
in this action.

Conclusion
It is undoubtedly true that most employment discrimina

tion actions are brought in good conscience with at least some 
supporting evidence. Indeed, as the Court found here, plain
tiff's promotion denial claim passed prima facie muster, although 
it was totally rebutted by defendants. However, the existence of 
one viable claim does not justify the sort of "kitchen sink" 
pleading engaged in by plaintiff and her counsel in this case. 
Even though a claim is plainly meritless, a defendant has no 
choice but to adequately prepare his rebuttal. See Tonti, supra, 
at 220.

In this case, the numerous meritless claims overshadowed 
the single claim with respect to which plaintiff was found to 
have established a prima facie case. As a result, defendants 
were forced to incur substantial sums of expenses and attorneys' 
fees (the latter substantially in excess of the amount for which 
the instant claim is made) to adequately prepare their response 
to a largely frivolous case. There could not be a more 
appropriate situation for an award of attorneys' fees, and

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0 0 0 4 0



defendants respectfully request that the Court make such an 
award, together with one for costs.1.2/

Paul, Hastings, Janofsky 
& Walker

230 Peachtree Street, N. W. 
Suite 1100
Atlanta, Georgia 30303 
(404) 588-9900

Farris, Warfield & Kanaday 
Seventh Floor
Third National Bank Building 
Nashville, Tennessee 37219 
(615) 244-5200

Respectfully submitted,

Lloyd Sutter

t-\ i. '-*~L t—a. ( C-J~ f7\ /\'i.
Cornelia A. Clark ~/ .

Attorneys for Defendants

10/ Although defendants have not specifically sought such an 
awarcT7 it is clear that the Court has the power to award 
attorneys1 fees and costs against plaintiff's counsel as well as 
plaintiff. Since 28 U.S.C. § 1927 was amended in 1980 to provide 
for an award of fees against an attorney who "multiplies the 
proceedings in any case unreasonably and v e x a t i o u s l y c o u r t s  
have not hesitated to hold attorneys responsible for excess costs 
caused by their conduct. See, , Lewis v. Brown & Root, Inc.,
711 F . 2d 1287 (5th Cir.), cert, denied UTST , 79 L. Ed." 
2d 213 (1983), on reconsideration, 7T2 F.2d 209 (3th Cir.),
cert, denied, ___  UTST , 81 L. Ed. 2d 884 (1984); Steinberg v.
St. Regis Sheraton Hotel, 583 F. Supp. 421 (S.D.N.Y. 1984); 
Davidson v. Allis-Chalmers Corp., 567 F. Supp. 1532 (W.D. Mo. 
1983). See also Badillo v. Central Steel & Wire Co., 717 F .2d 
1160 (7th CiTT 1983) (costs awarded against counsel). In the 
“vent the Court should conclude that plaintiff's counsel, as 
opposed to plaintiff herself, were responsible for prosecution of 
some or all of plaintiff's unfounded claims, _ e , the motion to 
dismiss issues, defendants would obviously accept reimbursement 
from counsel.

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F a r h x s , W a h m i l d  &  K a s t a d a y

Hr. Avon N. Williams, Jr. Psiil, Hssijngs,, JaRGfsky & 8J,/a{ker 
203 Second Avenue North Ai-anta Gacria
Nashville, Tennessee 37201

Re; Jones v. The Continental Corporation, et al.
United States District Court for the Middle 
District of Tennessee 
Civil Action No. 82-3572

Dear Senator Williams;
Enclosed are a number of documents that we are filing today in the 

above-styled lawsuit. As you can see, our response to your complaint has 
been framed in the nature of a motion to dismiss the lawsuit on various 
grounds. This has been done because of our firm belief that the proper 
parties are not yet before the Court and some of the issues raised in the 
complaint cannot properly be addressed by the Court.

In point of fact, we will have no objection if you prefer to amend 
the complaint rather than argue the Motion to Dismiss. Such an amendment 
would simply name The Continental Insurance Company as the only defendant, 
thereby omitting the two individuals and the parent corporation that has 
no connection to the claims of Mrs. Jones. Additionally, an amended 
complaint would heed to omit the claims discussed in our brief which are 
sot subject to litigation here. <

Please contact me at your earliest convenience if you wish to discuss 
the possibility of amending the complaint rather than pressing forward on 
our Motion. If we can reach agreement on a time period in which you would 
submit such an amended complaint, 1 will be happy to ask the Clerk to strike 
our motion.

I look forward to working with you in this matter.

Sincerely,
FARMS, WARFIELD & KANADAY

TPK/dm 
Enclosures 
cc; Lloyd Sutter 

Melvin Katzman
/

Thomas P. Kanaday, Jr.

EXHIBIT "A"
0 0 0 4 2



STATE OF GEORGIA 
COUNTY OF FULTON

AFFIDAVIT
Personally appeared, LLOYD SUTTER, before the under

signed officer authorized to administer oaths; and, after being 
duly sworn, he deposes and states;

1.
He was retained by The Continental Corporation, as well 

as The Continental Insurance Company and individual defendants as 
lead trial counsel in the matter of Jones v. The Continental 
Corporation, et al.t M.D. Tenn., C.A. No. 82-3572.

2.
He has been admitted to the bar since 1968 (Florida) and 

has practiced before the United States District Courts in the 
employment law specialty field (including litigation of employ
ment discrimination cases) since 1969. See Attachment A, Martin- 
dale-Hubbell Directory excerpt; see also, , United States v.
Jacksonville Terminal Co., 316 F. Supp. 567 (M.D. Fla. 1970), 
af f 8d in part,rev'd in part, 451 F.2d 418 (5th Cir. 1971), cert. 
denied sub nom. BLE v. United States, 406 U.S. 906 (1972) and 
Williams v. Owens-Illinois, Inc., 665 F .2d 918 (9th Cir.), cert.
denied, ____ U.S. , 30 EPD 1 33,126 (1982). Between 1976 and
1982, he was Chief Labor Counsel for Owens-Illinois, Inc., a 
multinational corporation operating over 100 plants in 38 states.

0 0 0 4 3



3.
He has prepared Attachment B, reflecting hours spent on 

particular days performing particular tasks for which the clients 
were billed at the hourly rates reflected and an attorneys' fee 
claim is made under 42 U.S.C. If 1988 and 2000e-5(k).

4.
No attorneys' fee claim has been made with respect to 

any attorney or paralegal's time other than his own as reflected 
in Attachment B. The hourly rates charged the instant client are 
the same as those regularly charged other clients for whom work 
has been performed in the Southeastern states.

FURTHER AFFIANT SAITH NOT.

Sworn to and subscribed before

Notary Public, Georgia, State at Large 
My Commission Expires March 15, 1986

-2-

00044



ATTACHMENT "A"

PAUL, HASTINGS, JANOFSKY A WALKER
A Partnership induchag Profeuioeai C orpsnnces

SUITE i m  230 PEACHTREE STREET, N. W. 
A T L A N T A , G E O R G IA  M M 3  

Tekphomc  404-5SS-9900
Lot Angeles, California Office Twenty-Second Floor 53$ South Flower 

Street. Telephones 213-489-4000. Cable Address: "Paulhaaf TWX: 
9(0-321-4063.

Orange County, California Office: Seventeenth Floor, 695 Town Center 
Drive, Costa Mesa. Telephone; U 4-641-1100.

Washington, O.C Office: Sixth Floor, 1030 Thomas Jefferson Street,
N W  Teieofeooe 202-333-8300.

Santa Monica, California Office: Fifth Floor, 1299 Ocean Arenas. 
Telephones 213-451-2438.

Stamford, Connecticut Office Second Floor, Three Landmark Square. 
Telephone 203-337-0100.

G en eral C iv il a n d  T ria l P ractice in a ll S ta te  a n d  F edera l C ourts. 
C orporation, B usiness a n d  R ea l E sta te  Law . L abor R ela tion s an d  
A n titru st. E qu a l E m ploym en t, E n viron m en ta l a n d  S ecu rities Law . 
F edera l a n d  S ta te  Tax. P robate a n d  E sta te  P lan n in g Law .

* * * * *

E. L l o y d  Su t t e r , born Colum bia, South C arolina. Septem ber 
13, 1939; adm itted to  bar, 196$, F lorida; 1969, G eorgia; 1972,
U.S. Suprem e C ourt; 1976, Ohio. E d u ca tio n  G eorgia Institu te  of 
Technology; Em ory University (B A .. 1962), University of G eor
gia (LL.B., 1968). Phi D elta Phi. M em ber, Editorial Board, U ni
versity of G eorgia Law Review, 1967-1968. M em ber, N ational 
M oot C ourt T o m . Law Clerk for the  Hon. R ichard T. Rives, 
U.S. C ourt of Appeals, Fifth C ircuit, 1968-1969. A uthor: "Current 
Procedural and Evidentiary C onsiderations under T itle V II . . 
R eady for the Defense," 6 G eorgia Law Review 305, 1972: "Sepa
rate O bscenity S tandard  for Y outh: Potential C ourt Escape R oute 
F rom  its *Supercensor '  R ole 1 G eorgia Law Review 707, 1967; 
"FLSA-1966 A m endm ents Extending Coverage to  State Public 
School and  H ospital Employees are Valid." 2 G eorgia Law Review 
311. 1968. C o-A uthor with: Jam es R . Beaird, "Annual Fifth  C ir
cuit Survey (Em ploym ent Law),* 21 M ercer Law Review 617, 
1970, 22 M ercer Law Review 697, 1971 and 23 M ercer Law Re
view 867, 1972; D . M eade Field, T ric e  of M ilk and  the Suprem e 
C ourt of Georgia." 19 M ercer Law Review 366, 1968. A djunct 
Professor, L abor and Em ploym ent D iscrim ination Law, Em ory 
U niversity School of Law, 1971-1976. M em b er  The F lorida Bar ; 
State Bar of G eorgia (M em ber, L abor Section); Ohio State and 
A m erican (C hairm an, Remedies Subcom m ittee, E EO  C om m ittee. 
L abor and Em ploym ent Law Section, 1980— ) Bar Associations. 
[1st Lieut., U SA F, 1962-1966]

OOO45



ATTACHMENT "B"
DATE TASK» " TIME

8/6/82 Research - Motion to Dismiss 6.4
8/11/82 Research - Motion to Dismiss 2.2
8/12/82 Draft Motion to Dismiss; conference on same 

with local and house counsel 8.0
9/14/82 Response to Plaintiff’s Opposition to Motion 

to Dismiss 3.8
10/5/82 Hearing, inter alia, on Plaintiff’s Motion 

for Continuance and Defendants’ Motion to 
Dismiss and preparations therefor 3.3

10/18/82 Review of Plaintiff’s Amended Complaint 0.3
10/20/82 Renewed Motion to Dismiss 1.3
10/21/82 Renewed Motion to Dismiss 5.7
12/1/82 Draft defendants' parts to proposed Pretrial 

Order 0.7
12/2/82 Review plaintiff's proposed Pretrial Order; 

revisions to defendants' counterproposal 3.0
12/9/82 Conference with plaintiff's counsel on pre

trial order 9.0
12/14/82 Hearing and preparation therefor on Pretrial 

Order and Motion to Dismiss, former dispensed 
with and latter reserved to trial 3.0

Total 1982 Time (Hours) for Attorneys' Fee Claim 47.7
1982 Hourly Rate $ 120.00

$5, 724.00
* * * * *

2/17/83 Trial Time spent on Insurance Policy 
examination portion of plaintiff's case 
during which "script" was used (Court's 
Exhibits 1 and 2) 4.0

1983 Hourly Rate $ 125.00
$ 500.00

0 0 0 4 6



*  *  *  *  *

DATE TASK TIME
9/2/83 telephone pretrial conference call with

Court and counsel on continunace to January 
1984 pending filing of amended complaint- 
and discovery on termination issue; subse
quent conference with local counsel and
client 1.6

9/14/83 Opposition to plaintiff's petition for 
temporary restraining order; answer to 
amended complaint 2.5

10/26/83 deposition preparations: Winsett, Farmer,
Brown, Reed 7.7

10/27/83 depositions: Winsett and Brown 10.2
10/28/83 depositions: Price, Reed, Farmer, and

Taylor 7.0
11/8/83 preparations for and deposition of plaintiff 7.4
12/14/83 . Supplemental Trial Brief - Retaliation and

Termination Issues 4.1
12/17/83 Supplemental Trial Brief 0.5
12/28/83 Trial preparations (7.5) 5.0
12/29/83 Trial preparations (2,0) 1.3
12/30/83 Trial preparations (8.6) 5.7
.12/31/83 Trial preparations (4.2) 2.8
Total September-December 1983 Time (Hours) 55.8
1983 Hourly Rate $ 125.00

$6,975.00

*/ As with trial time, preparation can be divided into 
thirds’: promotion rebuttal case; retaliation claims; and
termination claim. Only 66.6 of time is submitted for attorneys' 
fees award.

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* * * * *

DATE TASK TIME
1/1/84 Trial preparations (2.6) 1.7
1/2/84 Trial preparations (11.2) - 7.4
1/3/84 Trial (8.6) 5.7
1/4/84 Trial (7.8) 5.1
Total Time (Hours) 19.9
1984 Hourly Rate $ 130.00

$2, 587.00
* * * * *

1/29/84 Proposed Findings and Conclusions— 7 5.1
1/30/84 Proposed Findings and Conclusions 0.7
2/22/84 Proposed Findings and Conclusions 11.8
2/23/84 Proposed Findings and Conclusions 8.1
2/27/84 Proposed Findings and Conclusions 4.6
Total Time (Hours) 30.3
1984 Hourly Rate 

("Discounted" 251)

$ 130.00 
$3,929.00 
$2,946.75

**/ Proposed Findings and Conclusions time separated into 
four partss issues raised on motion to dismiss and Rule 41(b) 
motion; promotion claim (and contemporaneously tried issues); 
retaliation claim; termination claim. Hence, "discount" by 25% 
against hours expended for promotion claim as to which no 
attorneys' fees request is made.

- 3 -

0 0 0 4 Q



SUMMARY
Motion to Dismiss
February 1983 Trial-Insurance 
Policy "Script" Testimony
Retaliation and Termination 
Claims

47.7 hours x $120 * $ 5,724.00

4.0 hours x $125 * 500.00

63.3 hours x $125 * 
"discounted" 33.3%

6,975.00
for trial & prep time
20.2 hours x $130 * 2,587.00
"discounted" 33.3% 
for trial & prep time
30.3 hours x $130 
"discounted" 25% * 2,946.75

$18,732.75

- 4 -

0 0 0 4 9



STATE OF TENNESSEE 
COUNTY OF DAVIDSON

AFFIDAVIT
Personally appeared, CORNELIA A. CLARK, before the under

signed officer authorized to administer oaths; and, after being 
duly sworn, she deposes and states:

1.
She was retained by The Continental Corporation, as well 

as The Continental Insurance Company and individual defendants 
as local trial counsel in the matter of Jones v. The Continental 
Corporation, et al.. M.D. Tenn., C.A, No. 82-3572.

2 .

She has been admitted to the bar since 1979 (Tennessee) and 
has practiced before the United States District Courts in the 
employment law specialty field (including litigation of employ
ment discrimination cases) since 1980. See Attachment A, Martin- 
dale-Hubbell Directory excerpt.

3.
She has prepared Attachment B, reflecting hours spent on 

particular days performing particular tasks for which the clients 
were billed at the hourly rates reflected and an attorneys' fee 
claim is made under 42 U.S.C. §§ 1988 and 2000e-5(k).

4.
No attorneys' fee claim has been made with respect to any 

attorney or paralegal's time other than her own as reflected 
in Attachment B. The hourly rates charged the instant client

0 0 0 5 0



are the same as those regularly charged other clients for whom 
work has been performed in the Southeastern states.

FURTHER AFFIANT SAITH NOT.

_Comha Q 0 Pavfc.CORNELIA A. CLARK

Sworn to and subscribed before me, 
this day of July, 1984.

.CithaNotary Public 
My Commission Expires

-2- 0 0 0 5 1



ATTACHMENT "A"

FARRIS, WARFIELD & KAN AD A Y
IT m  FLOOR. THIRD NATIONAL BANK BUILDING 

N A S H V IL L E , T E N N E S S E E  3 7 2 1 9  
TritfAomc 611-244-5200

G en era l C in l P ra ctice  T ria ls in  a ll S ta te  a n d  F edera l C ourts. A d
m in istra tive, B anking, C om m unications, C orporation, C reditors 
M ights F am ily, Insurance. M u n icip a l P ersonal In ju ry, P robate, 
M eal E sta te, S ecu rities Tax E xem pt B onds an d  T axation  Law .

* * * * ★

C ornelia A. CLARK, bore  F ranklin . Tennessee. September IS, 
1950;, adm itted  to  bar, 1979, Tennessee, E ducation; V anderbilt 
U niversity (B.A ., 1971; J.D ., 1979); H arvard  University (M .A .T ., 
1972). A rticles E ditor. V anderbilt Law Review, 1978-1979. A u
th o r  "Justice an  the Tennessee F rostier: The W illiamson C ounty 
C ircuit C ourt 1110-1820,' 32 V anderbilt Law Review 413, 1979. 
M e m b e r  Nashville. W illiamson C ounty, Tennessee (M em ber, 
H ouse of Delegates. 1983— ) and Am erican Bar Associations; 
Tennessee M unicipal Attorney* Association: N ational Institu te  O f 
M unicipal Legal Officers; Tennessee School Board A ttorneys A s
sociation (Vice President. 1983— ).



ATTACHMENT "B"

DATE TASK TIME
8/12/82 Conference with lead and house counsel; 

draft and revision of documents 6.0
8/13/82 Final version of Motion to Dismiss 3.0
9/16/82 Review and revise Response to Plaintiff's 

Opposition to Motion to Dismiss 2.0
10/25/82 Review Renewed Motion to Dismiss and 

telephone conferences with opposing counsel's 
office 1.5

12/2/82 Review Pretrial Order; telephone conference 
and letter to opposing counsel .7

12/6/82 Review letter from lead counsel and letter 
to opposing counsel re pretrial order .3

12/9/82 Conference with plaintiff's counsel on pre
trial order 8.0

12/14/82 Hearing and preparation on Pretrial Order 
and Motion to Dismiss 1.5

Total 1982 Time (Hours) for Attorneys' Fee Claim 23.0
1982 Hourly Rate $70.00

$1,610.00

* * * * *

10/20/83 Deposition preparation: Beth Price 4.75
10/21/83 Deposition preparation: Winsett, Brown, 

Reed, Farmer, Taylor 8.0
10/26/83 Deposition preparation and conference with 

lead counsel 3.75
10/27/83 Depositions: Winsett and Brown 10.0
10/28/83 Deposition: Price 4.50
11/8/83 Deposition and preparation: plaintiff 5.0
12/12/83 Memorandum to court re pretrial order .50

0 0 0 5 3



DATE TASK TIME
12/21/83 Review and revise supplemental trial-brief 1.25
12/22/83 Final work on trial brief 2.00
12/28/83 Trial preparation */ (6.75) 4.50
12/29/83 Trial preparation (3.0) 2.0
12/30/83 Trial preparation (3.0) 2.0
Total September-December 1983 time (Hours) 48.25
1983 Hourly Rate

★ ★ ★ ★ ★

$75.00
$3,618.75

1/1/84 Trial preparation (3.5) 2.3
1/2/84 Trial preparation (8.5) 5.6
1/3/84 Trial (6.5) 4.3
1/4/84 Trial (6.5) 4.3
Total Time (Hours) 16.5
1984 Hourly Rate $80.00

$1,320.00

*/ As with trial time, preparation can be divided into 
thirds: promotion rebuttal case; retaliation claims; and 
termination claim. Only 66.6 of time is submitted for attorneys' 
fees award.

0 0 0 5 4 •

-2-



* • * • * * • *

DATE TASK TIME
2/26/84 Review Proposed 

and conference
Findings and Conclusions 

with lead counsel **/ 1.5
Total Time 1.5
1984 Hourly Rate $80.00

$120.00
("Discounted1" 25%)

SUMMARY

$90.00

Motion to Dismiss 23.0 hours x $70.00 * $1,610.00
Retaliation
Claims

and Termination 48.25 hours x $75.00 ■ 
"discounted" 33.3% 
for trial and prep time

3,618.75

16.5 hours x $80.00 ■ 
"discounted" 33.3% 
for trial and prep time

1,320.00

1.5 hours x $80.00 - 
"discounted" 25%

90.00

$6,638.75

**/ Proposed Findings and Conclusions time separated into 
four parts: issues raised on motion to dismiss and Rule 41(b) 
motion; promotion claim (and contemporaneously tried issues); 
retaliation claim; termination claim. Hence, "discount" by 25% 
against hours expended for promotion claim as to which no 
attorneys' fees request is made.

-3-
0 0 0 5 5



CERTIFICATE OF SERVICE

I hereby certify that a copy of the Bill of Costs and 
Defendants' Petition for Determination of Reasonable Attorneys' 
Fees and Costs has been placed in the United States Mail with 
adequate postage thereon and properly addressed to all counsel of 
record.

e 0 0 0 5 ^



IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF 
MIDDLE DIVISION

TENNESSEE

i 4- ?. i i-i
SEP 1 91984

GWENDOLYN E. JONES, ) tf! Heatings. Jarrisky 1 Walter 
Gecr-’ij

Plaintiff )
VS. ) CIVIL ACTION NO. 82-3572

THE CONTINENTAL CORPORATION, ) JUDGE MORTON
et al.,

Defendants
)
)

RESPONSE OF PLAINTIFF IN OPPOSITION TO DEFENDANTS’ PETITION FOR 
DETERMINATION OF REASONABLE ATTORNEYS' FEES AND COSTS
Defendants have heretofore petitioned the Court for a determi

nation of costs and reasonable attorneys' fees. For the reasons set 
forth hereinafter, plaintiff submits that said Petition is not well 

taken and should be denied.
I. STATEMENT OF THE CASE

Plaintiff instituted this action against defendants, The Con
tinental Corporation, parent company of the added defendant, Continental, 
Insurance Company, and various individual employees of said defendants, 
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.,
Sec. 2000e et. seq. , and 42 U.S.C., Sec. 1981. Part of the claims 
of plaintiff related to her allegations that the defendants had failed 
to adhere to the provisions of a settlement agreement reached in 1980 
as a result of a charge of discrimination filed by plaintiff with 
the Equal Employment Opportunity Commission. Said Agreement (Plaintiff 
Exhibit ) was entered into on the part of the employer in this 
manner: "The Continental Corporation by Melvin T. Katzman". Plain-

00057



tiff also alleged retaliation against her as a consequence of said 
prior charge in certain actions which led to filing of the instant 
action, including the transfer of Carol Brown, a white employee, to 
the Mashville office and into a position being sought by, and pro
mised to, plaintiff. During a recess in the trial of the case, plain
tiff was terminated and, with leave of Court., amended her Complaint 

to allege diccrimirstiov and retailiation in connection with said 
termination.

The Clerk's docket sheet, copy of which is attached hereto, will 
show the nature and amount of pleadings submitted by the parties to 
this case. Plaintiff takes issue with statements in defendants’ 
Memorandum In Support of their Petition, including the bald assertion 
that plaintiff's counsel never "properly responded" to defendants'
Motion To Dismiss ( but see items 15, 56, 64, 66, Clerk's Docket Sheet) and certain 
statements regarding the attempted preparation of the Pre-Trial Order. 
Suffice it to say that this case was vigorously litigated, from the 
filing of the Complaint on, by counsel for both plaintiff and defen
dants .

3y Order entered 29 June 1984, the Court ruled against plaintiff 
on her claims, noting (with particular relevance to the instant inquiry) 
that "the Court finds against the plaintiff because of her lac!: of 
credibility." (Memorandum, page 4).
11 • BPvIEF and argument

The seminal decision on the propriety of an award of counsel
fees to successful defendant's counsel in actions brought pursuant to
42 U.S.C., Sec. 2Q.00e is Christianburg Garment Co. v. E.E.Q.C., 98.
S.Ct. 694, 434 U.S. 412, 54 L.Sd.2d. 648 (1978). In Christianburg,

• .
supra, the Supreme Court opined that a discretionary award of

-2- 0005s



attorneys fees could not be made by a district court unless there 
is a "finding that the plaintiff's action was frivolous, unreason
able, or without foundation, even though not brought in subjective 
bad faith." 434 U.S. at 421, 98 S.Ct. at 700. The'Supreme Court, 
further, set forth guidelines to the lower courts for the application 
of this standard:

" In applying these criteria, it is important 
that a district court resist the understandable 
temptation to engage in post hoc reasoning by 
concluding that, because a plaintiff did not ul
timately prevail, his action must have been un
reasonable or without foundation. This kind of 
hindsight logic could discourage all but the 
most airtight claims, for seldom can a prospec
tive plaintiff be sure of ultimate success. Mo 
matter how honest one’s belief that he has been 
the victim of discrimination, no matter how 
meritorious one's claim may appear at the outset, 
the course of litigation is rarely predictable.
Decisive facts nay not emerge until discovery 
or trial. The law may change or clarify in the 
midst of litigation. Even when the law or the 
facts appear questionable or unfavorable at the 
outset, a party may have an entirely reasonable 
ground for bringing suit.

To take the further step of assessing 
attorney's fees against plaintiffs simply be
cause they do not finally prevail would sub
stantially add to the risks inherent in most 
litigation and would undercut the efforts of 
Congress to promote the vigorous enforcement 
of the provisions of Title VII.
Id at 421-422, 700-701 (Emphasis Added)

The lower courts, in short, were admonished to exercise restraint
in making counsel fee awards against non-prevailing Title VII
plaintiffs.

In the present case, no charge is made that plaintiff's action 
was brought or maintained in bad faith or for any reason other than 
her sincere belief that she was and is the victim of unlawful dis
crimination. The Court notes:

00059

-3-



"The evidence shows that this is one of those 
unfortunate situations where an employee, who 
in this case happens to be black, perceives 
every action of a regulatory, administrative, 
or disciplinary nature as being directed against 
her personally. As is true with most cases of 
this type, credibility is the deciding factor.
The court finds against the plaintiff because of 
her lack of credibility."
Memorandum of 29 June 1984, page 4.

Plaintiff would submit that a determination by the Court that 
the plaintiff has no credibility is not equivalent to a finding that 
her action was frivolous, unreasonable or without foundation, such 
as to justify an award of counsel fees to defendants. Such a result 
would take the post hoc reasoning disfavored in Christianburg to a 
new level, for the credibility factor is not only unforeseeable but 
also is itself such a subjective factor that it has little or no 

relationship to the objective facts of the case.
Similarly, the piecemeal approach to the claims of plaintiff, 

urged by defendants in support of their petition, should be rejected 
under the authority of Hensley v. Eckerhart, 103 S.Ct. 1933 (1983).
As Justice Brennan in Hens ley noted:

"...courts should recognize that reasonable 
counsel in a civil rights case, as in much 
litigation, must often advance a number of 
related legal claims in order to give plain
tiffs the best possible chance of obtaining 
significant relief.'... even where two claims 
apparently share’no "common core of facts' 
or related legal .concepts.... the actual work 
performed by lawyers to develop the facts of 
both claims may be closely intertwined."
103 S.Ct. at 1947.

Plaintiffs submits that the inclusion of the claims for which 
defendants seek fees was reasonable and appropriate, both under 42 
U.3.C., Sec. 2000e and 42 U.S.C., Sec. 1981 and the facts of this 
case and, further, that defendants' attempted separation of said

-4- 00060



claims is an artificial mechanism to circumvent the authority of 
Christianburg and Hens ley. To award counsel fees to defendants in 
this case would be contrary to the law and would serve to frustrate 
and impede plaintiffs in civil rights cases from attempting to secure 
the most complete relief available within the framework of the law 
applicable to their cases, The mere fact that procedural contentions 
of defendants may be sustained cannot establish a predicate for a 
substantive post hoc determination that said claims were unreasonable 

or without foundation in law or fact.

III. CONCLUSION
For all the foregoing reasons, plaintiff respectfully urges 

that the Petition of defendants for a determination of counsel fees 
is not well taken and is unsupported by the law and, consequently, 

should be denied.

203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Plaintiff

CERTIFICATE
The undersigned certifies that copy of the foregoing Response 

Of Plainti,f In Opposition To Defendants' Petition For Determination 
Of Reasonable Attorneys’ Fees and Costs was mailed to Lloyd Sutter, 
Esquire, Suite 1100, 230 Peachtree Street, Atlanta, Ga. 30303, and to



UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN E. JONES, )
)

Plaintiff )
)

v. )
)

THE CONTINENTAL CORPORATION, )
ET AL., )

)
Defendants )

RESPONSE TO PLAINTIFF'S MOTION FOR 
NEW TRIAL AND/OR TO ALTER OR AMEND JUDGMENT

By Memorandum and Order of January 23, 1985, this Court 
awarded attorneys fees and costs for the defendant and against 
the plaintiff, Gwendolyn E. Jones, and further awarded attorneys 
fees against the law firm of Williams and Dinkins. Plaintiff 
has now requested a new trial and/or an amendment of judgment 
on the question of fees. The defendants oppose this motion on 
the grounds set forth below.

1. The Court's Findings 
Meet the Requirements of Rule 52.

Rule 52 of the Federal Rules of Civil Procedure requires 
that findings of fact and conclusions of law be made as a part 
of all judgments entered pursuant to Rule 58. Defendants believe 
the Court has met the required standard of "brief, definite, 
pertinent findings and conclusions upon the contested matters."

No. 82-3572 
JUDGE MORTON

53- . (J~ fXx-<

0 0 0 6 2



United States v. Forness, 125 F.2d 928 (2nd Cir. 1942) cert.
den. , 62 S.Ct. 1293, 316 U.S. 694, 86 L . Ed. 1764 (1942). There
is no necessity for over-elaboration of detail or particulariza
tion of facts. Id. See also, Deal v. Cincinnati Board of 
Education, 369, F.2d 55 (6th Cir.), cert. den. 389 U.S. 847,
88 S.Ct. 39 (1966) .

In the instant case the Court went to some length to separate 
the claims made by the defendants and to analyze the claims 
and explain its decisions individually. Plaintiff and her counsel 
may not agree with the findings made, but they cannot argue 
that they are not specific. Defendants believe the Rule 52 stan
dard has been met.

If this Court determines that an abundance of caution re
quires the granting of a hearing on the question of attorneys 
fees assessed against counsel, defendants will not oppose the 
granting of such a hearing. However, defendants do not believe 
that a hearing is necessary since plaintiff and her counsel 
did not take advantage of the initial opportunity to request 
such a hearing.^

At the time this Response was drafted and filed, plaintiff 
had pending an additional Motion for a fifteen (15) day extension 
of time in which to file supporting affidavits and a supplemental 
brief. If this Motion is granted, or if plaintiff files such 
supplemental documents before a decision is rendered on that 
Motion, defendants reserve the right to file their own supple
mental document in response. The purpose of this early response 
is to make clear to the Court that defendants do not believe 
additional proceedings are necessary.

-2-
0 0 0 6 3



2. Plaintiff's Counsel Had 
Notice and Opportunity for a Hearing.

Plaintiff's counsel argues that fees may not be assessed 
against them without notice and an opportunity for hearing. 
In support of that position they cite a recent decision by the 
Sixth Circuit in another case arising out of the Middle District 
of Tennessee. That opinion focuses on the apparent failure to 
give the attorneys, and not the client, notice of the claim 
against them and opportunity for a hearing before the court
awarded fees against counsel on its own motion.

In the instant case, however, defendants did raise the
question of awarding fees against counsel. Footnote 10 on page
21 of defendants' Memorandum in Support of Petition for Determina
tion of Reasonable Attorneys' Fees and Costs, specifically cites 
authority for the award of fees and costs against counsel as 
well as plaintiff. Thus, plaintiff's counsel was on notice that 
this was an issue inherent in defendants' Motion. The fact that 
plaintiff's counsel did not choose to address this issue in 
their response to the Motion does not mean that they did not 
have an opportunity to do so. Further, Rule 8(b)(1). of the Local 
Rules of this Court give either party the opportunity to request 
oral argument if that party deems such an argument to be desir
able. Plaintiff and her counsel had an opportunity to request 
such an argument on this Motion, but failed to do so. Since
the responsibility for this failure lies with plaintiff and 
her counsel, they cannot now complain of the absence of a hearing.

- 3 -

0 0 0 6 4



This case is not on all fours with the Haynie case, and it does 

not control.

3. The Court's Decision 
Awarding Fees and Costs is Reasonable.

All parties agree that the question of defendants' right 
to attorneys fees is generally governed by the principles set 
forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978), and the cases that have followed it. This Court has 
accepted defendants' position that certain of plaintiff's claims 
were frivolous, unreasonable, and totally unsupported, and has 
awarded fees accordingly. The Court did not accept all claims 
made by the defendants, but considered them individually and 
accepted only those where there appeared to be no doubt that 
defendants were correct- in their assertions. Plaintiff and her 
counsel have presented no new reasons why this Order should 
be amended. Defendants rely on the cases cited in their Memorandum 
accompanying their original motion, and believe the Court has 
decided the matter properly.

4. The Award of Costs 
Against the Plaintiff are Reasonable 
and Have Not Been Timely Contested.

Plaintiff's Motion does not address the question of costs, 
and defendants assume that this assessment is not being contested. 
As the Court pointed out in its Memorandum of January 23, plain
tiff did not originally object to the reasonableness of these 
costs within the time provided by Rule 54, and judgment as to

-4-
OOO 65



them became automatic some time ago. The Court's findings about 
the reasonableness of fees was deemed "unnecessary," but was 
added "for the sake of judicial economy and clarity." Defendants 
agree with the Court that the plaintiff has lost the right to 
contest the reasonableness of those fees.

Respectfully submitted,
KING & SPALDING

2500 Trust Company Tower 
Atlanta, Georgia 30303 
(404) 572-4600

FARRIS, WARFIELD & KANADAY

By: Co&u Ucl Q, Qjnkfc-
Cornelia A. Clark

Seventeenth Floor 
Third National Bank Building 
Nashville, Tennessee 37219 
(615) 244-5200
Attorneys for Defendants

- 5 - 0 0 0 6 6



CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore

going Response to Plaintiff's Motion has been mailed to Avon N. 
Williams, Esq., Williams and Dinkins, 203 Second Avenue North, 
Nashville, Tennessee 37201, this 11th day of February, 1985.

.... CcpxUa Q_ C tovtCornelia A. Clark

-6-
O O O 67



l 3W

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GWENDOLYN E. JONES 
Plaintiff

)
)

VS. ) CIVIL ACTION NO. 82-3572
THE CONTINENTAL CORPORATION, ) 
ET AL.,

JUDGE MORTON

AMENDED MEMORANDUM IN SUPPORT OP MOTION FOR A NEW TRIAL AND/OR TO

The plaintiff and her counsel hereby amend their Memorandum 
In Support Of Motion For A New Trial And/Or To Alter Or Amend Judg
ment by adding the following to numbered paragraphs 1 and 2 and 
by including numbered paragraph 3:

1. The case of Beard vs. Annis, 34 EPD Par. 34-318 (11th Cir. 
1984), stands for the proposition that only the most egregious 
instances of misuse of process and other similar misconduct warrants 
an award of counsel fees against the attorneys representing a non
prevailing plaintiff in an employment discrimination action. In 
Beard, supra, the plaintiff sustained a reduction in salary and hours 
because of a corresponding reduction in federal funding. There the 
plaintiff offered no evidence which would support a reasoned inference 
°f racial discrimination. In fact, the plaintiff made scandalous 
and unsubstantiated allegations of bias based upon the granting of 
sexual favors and in one deposition the plaintiff s counsel inquired 
into a drug investigation in which the plaintiff's counsel name had

ALTER OR AMEND JUDGMENT



ft

been mentioned. Needless to say, this issue had nothing to do with 
the lawsuit and the deponent admitted on cross-examination that he 
knew nothing about the plaintiff's reduction in hours and salary. 
Accordingly, the Court's award of fees against the firm of Williams 
and Dinkins in this case is unwarranted and, if allowed to stand, 
will have a chilling effect upon prosecution of colorable claims of 
employment discrimination. The fact that the Court granted the award 
against the plaintiff’s counsel based upon a finding of "sloppy pleadings" 
and a refusal to execute a Pretrial Order, further punctuate the 
error of the Court's ruling. Counsel for the plaintiff has not been 
able to find any authority for the proposition that fees can be awarded 
against plaintiff's counsel for "sloppy pleading". In fact, the 
Courts have largely held that the actionable conduct must arise to 
the level of a disregard of the judicial process in order to justify 
an award of fees. See Beard, supra; Johnson vs. National Association 
of Securities Dealers, Inc., 33 EPD Par. 34,114 (D.C. District 1983).
See also Affidavit of Richard H. Dinkins, Esquire.

2. This Court has employed the erroneous characterization 
of the claims in the instant action as being promotion, retaliation, 
and discharge claims. Although these characterizations are useful 
for purposes of shorthand, it is clear that each of the claims are 
inextricably intertwined. In other words, the discharge evidence 
was relevant to the question of pretext with respect to the promotion 
claim and the discharge claim was similarly closely connected to the 
claimswhich have been denominated as "retaliation" claims. The Court's 
ruling that the discharge claim was frivolous, therefore, is clearly 
erroneous in light of the holding that the plaintiff established a 
prima facie claim of discriminatory denial of promotion. In fact,

- 2 -
0 0 0 6 9



the Court had made this ruling at the time that the case was reset 
and the discharge against Mrs. Jones was effectuated. It was rea
sonable, therefore, for Mrs. Jones to believe that this was in 
furtherance of the racial discrimination against her which culminated 
in a settlement in 1980, a finding of a prima facie case by this 
Court in 1983, and a litany of harassing events in the Spring and 
Summer of 1983 which followed the pattern of mistreatment to Mrs.
Jones. Upon the very statutes sued upon simply by virtue of the 
fact that a well-pleaded title VII claim is included in the claims 
asserted by the plaintiff. Consequently, it is clear that the plain
tiff had a reasonable ground for maintaining her claims of dis
criminatory and retaliatory discharge. Dee vs. Institutional Networks 
Corporation, 33 EPD Par. 34,029, 559 F.Supp. 1282 (S.D. N.Y. 1983); 
Beard, supra; Stanford L. Burrows vs. Davidson Transfer And Storage 
Company, 32 EPD Par. 33,740 (D. Del. 1982).

The burden of proof on the defendants to establish that the 
plaintiff's claim of discriminatory and retaliatory discharge is 
clearly frivolous, groundless, and totally unreasonable. EEOC v s .
Pet, Inc. (Funsten Nut Division), 32 EPD Par. 33,902, 719 F .2nd 383 
(11th Cir. 1983). In fact the Court "must view the available evidence 
and the applicable law in a manner most favorable to the plaintiff" 
(Emphasis Added) 719 F.2nd __________ . In Pet, supra, the Court de
clined to award attorneys fees against the EEOC even though it noted 
that the EEOC was guilty of an "alarming unwillingness to be reasonable
in its negotiations with Pet." 719 F .2nd ________ In the instant
case, the Court has not required the defendants to meet their burden 
°f proof and has not construed the available evidence and the appli-

-3- 0 0 0 7 0



cable law in a manner most favorable to the plaintiff. In fact, 

the Court's holding with respect to the discharge issue is largely 
unsubstantiated and not specific:

"If the plaintiff had proven all her other claims 
of discrimination and retaliation, the defendants 
would have been completely justified at firing the 
plaintiff. No reasonable person could conclude 
otherwise." Opinion at page 5.

The Department Of Employment Security, however, reasonably concluded 
otherwise:

"Claimant's most recent employment prior to filing 
this claim was with Continental Insurance Company, 
as an underwriter, from May 1977 until August 2,
1983, at which time she was discharged because of 
a communication she had sent to a client of the 
employer. The client objected to the word "pre
judice" which had been mentioned in that communi
cation. The communication had not been previously 
approved by the employer because claimant was given 
a free hand in communications with the clients with 
whom she was dealing. Claimant's intention in /
phrasing the communication as she had, was merely 
to better relations between herself and the client 
account. The employer does not censure communica
tions between their underwriters and clients."
See Exhibit 2 to Affidavit of Russell T. Perkins.

The Court, therefore, was clearly wrong in its conclusion that a 
reasonable person could not find otherwise with respect to the dis
charge claim. Further, a recent Sixth Circuit case has cast consi
derable doubt upon the analytical process utilized by the Court to 
throw out the retaliatory discharge claim. See Jackson vs. RKO,
(Copy attached).

As indicated, the Courts are concerned about bad faith litigation 
and litigation pursued for collateral purposes. See Beard, supra; 
Arnold vs. Burger King Corporation, 719 F.2nd 63 (4th Cir. 1983); 
Slid vs. Sisters Of Charity, 447 F.Supp. 309 (W.D. La. 1978). In 
^EB£ld, supra, a black employee was fired for sexual harassment of

-4-
0 0 0 7 1



n

female employees in circumstances where the employer had fired white 
employees found guilty of less egregious instances of sexual harass
ment. The plaintiff there knew of these discharges of white employees 
in those circumstances and still pursued his claims. Unlike that 
situation, the plaintiff in the istant case was discharged for alleged 
misconduct even though the defendant only articulated a business justi
fication for reassigning the Jack Brandon Account. In the past, the 
employer had allowed such reassignments with no discipline taken 
against the employee. The Court simply engaged in post hoc reasoning 
and improperly awarded fees against the plaintiff. The plaintiff could 
not predict that the Court would find her to be "petty" and not 
credible. The Court, accordingly, should vacate the judgment against 
Mrs. Jones .

3. The Court should reduce or vacate the judgment against Mrs. 
Jones, even if it concludes that her termination claims were frivolous, 
because Mrs-. Jones is unable to pay the judgment against her. Johnson, 
supra, ; Badillo vs. Central Steel and Wire Company, 717 F .2d. 1160 
(7th Cir. 1983); Arnold, supra; Charves vs. Western Union Telegraph 
Company. 711 F .2nd. 462 (1st Cir. 1983); and Obin vs. International 
Association of Machinist, etc., 651 F .2nd. 574 (8th Cir. 1981). In 
Arnold, supra, despite the finding of frivolousness, the Court held 
that a reduction of the amount of fees claims was appropriate:

"The policy of deterring frivolous suits is not 
served by forcing the misguided Title VII plain
tiff into financial ruin simply because he pro
secuted a groundless case. (Citation Omitted)
Indeed, fee awards that callously disregard the 
financial straits of a losing plaintiff would 
soon defeat the overarching remedial purposes 
of Title VII by discouraging all but the most 
air tight cases. The dual interests of equity 
and deterrance can be advanced without giving 
overriding consideration to the punitive value

- 5 - 00072



of a fee award, particularly when the reduced 
award still represents a substantial burden on 
the plaintiff and the defendant is fully capable 
of absorbing a reasonable share of his legal fees 
without hardship. 719 F.2nd. _____ _ (Emphasis Added)

Similarly, the Court is empowered to reduce qr vacate the 
cost judgment against the plaintiff due to her inability to pay. 
Badillo, supra. The plaintiff urges that she is unable to pay the 
costs or counsel fee judgments against her because of the devastating 
effect of the discharge upon her finances. Accordingly, it is re
spectfully requested, that the Court set aside said judgments, or in 
the alternative, that said judgments be reduced. See Affidavit of 
Mrs. Gwendolyn Jones.

For these reasons, and for those set forth in the prior Memo
randa and Affidavits and pleadings upon these issues, the plaintiff 
submits that the judgments against the plaintiff andher counsel should

y
be set aside.

WILLIAMS
BY /j* VON N

AND DINKINS 

WILLIAMS,A\
RUSSELL T. PERKINS
203 Second Avenue, North
Nashville, Tennessee 37201

Attorneys for Plaintiff

r r ----- ---------------- ---------
The Court should note that the plaintiff was allowed only approxi

mately three months to complete discovery and that the defendants have 
never answered a full set of interrogatories and requests for pro
duction pertaining to the discharge because of their interposition of 
a motion for a protective order that was never ruled upon. Copies 

y of the case; of Jackson, Beard, Johnson, Burris, and Textor are attached 
hereto as Exhibits 1 , 2 , 3, 4 , and 5, respectively.

- 6 - 00073



CERTIFICATE
The undersigned certifies that copy of the foregoing Amended

M e m o r a n d u m  In Support Of Motion For A New Trial And/Or To Alter Or
/yv^cJ^Z^Amend Judgment was kattrj '-deli Mi-md to Cornelia A. Clark, Esquire,

Farris, Warfield, & Kanaday, 17th Floor, Third National Bank Building, 
Nashville, Tennessee 37219 and mailed to Lloyd Sutter, Esquire, 2500

—) iS f*Trust Company Tower, Atlanta, Georgia 30303, this the 2-J day of 

February, 1985.

- 7 - 00074



FEB 2 2 1985

IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT CF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN E. JONES, 3
)
)

-
Plaintiff

VS.
J

3
)
3
3
3
)

CIVIL ACTION NO.
THE CONTINENTAL CORPORATION, 
ET AL. ,

JUDGE MORTON

Defendants

AFFIDAVIT OF MRS, GWENDOLYN JONES 

STATE OF TENNESSEE 
COUNTY OF DAVIDSON

Mrs. Gwendolyn Jones, after being duly sworn according to 
law, deposes and says:

1. I am the plaintiff in the above case. I reside with 
my husband, Mr. John Jones in Antioch, Tennessee. I have five 
adult children. I pursued my claims against the defendants 
because I believed, and still believe, that I was and am a 
victim of racial discrimination and retaliation, especially with 

reference to my discharge. I certify that I testified truthfully 
at the trial of this case and was shocked when the Court ruled 
that I was not a credible witness. For the reasons stated 
herein, I truthfully state that I cannot pay the cost or the 
attorney fee judgments assessed against me. I request, therefore, 
that the judgments be set aside or reduced.

2, At the time of my discharge from the defendants on
2 August 1983, I had approximately $10,000.00 in savings and,

00075



as well, enjoyeu valuable fringe benefits at the Company, 
especially medical insurance. Since my discharge for using 
the word "prejudice" in a letter, I have had very little success 
in securing employment because I have truthfully advised prospective 
employers that I was discharged on a charge of unprofessional 
conduct. As a result of the discharge, I have depleted all of my 
savings to help meet my living expenses, I have not been able to 
afford medical insurance except for the conversion of a hospitali- 
zation policy which does not cover doctor visits. Because of my 
financial condition, I have not been able to see a private doctor 
for my various medical conditions and, accordingly, have been 
compelled to seek medical treatment for hypertension, arthritis, 
and kidney disease at the Mathew Walker Medical Medical Center, 
a health care facility located in Nashville which specializes 
in serving indigent persons.

3. I have applied for several positions (^approximately a 

dozen or so) in the insurance field without success dispite my 
qualifications. Some of the correspondence pertaining to said 
applications is attached hereto as Collective Exhibit "A", I 
was successful in landing a position at CDT Associates as an 
underwriter through the efforts of Richard H, Dinkins, Esquire, 
whom represents this minority-owned business. After a few months,
I was laid off because the business was unable to pay me anymore.

4. My discharge has greatly affected my standard of living. 
Before I was fired, my husband and I ate out twice a week. We
had to abandon this custom when I was discharged. My husband and 
I used to go on a vacation every year before I was terminated; 
we h&ve not been able to go on a vacation since my discharge.

- 2- 00076



Our last vacation was in July 1983, I have grandchildren whom 
I iove dearly and have been unable to buy things for as forme- 
was the case prior to August 1983. Also, my husband and I have 
a b a n d o n e d  the family tradition of preparing Sunday dinner for the 
families of my two children that reside in the Nashville area due 
to our financial situation. Other activities such as family 
cookouts and participation in the church choir (I am embarrassed 
that I cannot .afford to pay choir dues) have also been abandoned 

as a direct result of my discharge,
5. Since my discharge I have received the following income:

a. Currently employed at Victor's Temporary Service 
since January 1985. I make $5.GO an hour doing clerical work.

This is a full-time position,
b. Employed’part-Lime at Sears Service Center un 

Thompson Lane as a telephone representative from November 1984 
to December 1984. I left this employment to take a typing 
refresher course at Control Data technical school; this course 
allowed me to secure my current position. I made about
at this job.

c. Employed at CDT and Associates from 30 June 1984 

to 15 October 1984 as an underwriter. I made about ̂  fr&o.

at this job.

d. I received about $4,000 in unemployment compensation 
from September 1983 until about May 1984.

e. My husband is employed at Steiner Liff and he makes 

about $11,000 per year.
6. My husband and I have the following assets:

a. A 1972 Chevrolet pickup
« .

- 3 - 0 0 0 7 7



*

b . 1976 Pinto (inoperable} .
c„ A 1984 Skyhawk which is being purchased for me by 

my children.
e

d. I have $61.00 in my checking account,
e. My husband has $135,00 in h~‘s checking account.
f. We have nothing in savings or money accounts.
g. My husband and I both have life insurance policies.
h . We have household furnishings worth about $5,000,
i. We have a life estate in the house that we are

living in.
7. My husband and I have the following liabilities and

expenses :
a. Car insurance, approximately per year,
u. Utilities (January 1985) - our electric bill was 

$200.00, our watei bill was $38.00, and uut telephone bill was 
$23.00.

c. Hospitalization Insurance - $77.00 quarterly.
d. Piano purchased in September 1982 - $45,00 monthly.
e. Life insurance - approximately $10.00 monthly.
f. Groceries - $150.00 monthly.
g. Gas anu upkeep vehicles - $160,00 monthly.
h. Charge accounts - $70.00 monthly, balance approximately

$600.00.

Our children have provided assistance in paying bills and expenses.
8, I believe that I have been punished enough for standing 

UP for my rights. I sought relief in this Court for my discharge 
and expected to prevail. I never viewed my discharge claims as 
frivolous or severable from my promotion claim against the defen-

-  4  -

* *> * * ,*
0 0 0 7 8



dants, but view this as continous discrimination and retaliation 
against me.

Further deponent saith not.

X£^J

Sworn to and subscribed before me

CERTIFICATE
The undersigned certifies that copy of the foregoing 

Affidavit was mailed to Cornelia A. Clark, Esquire, 17th Floor, 
Third National Bank Building, Nashville, Tennessee 37219 and to 
Lloyd Sutter, Esquire . 2-500 Trust Company Tower, Atlanta, Georgia 
30303 , this the ^ay °f February, 1985.

C _

0 0 0 7 3



UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN JONES, )
)

Plaintiff, )
)

v. ) No. 82-3572
)

THE CONTINENTAL CORPORATION, et al., )
)

Defendants. )

AFFIDAVIT OF LARRY D. WOODS
STATE OF TENNESSEE)
COUNTY OF DAVIDSON)

Larry D. Woods, being first duly sworn, states as follows:

1. I have reviewed the file delivered to me in the above case which 

appears to include all relevant documents including the docket sheet 
entries, pretrial pleadings, transcript, briefs, court decisions, and 

orders. Based upon my review of the file, I am of the opim'onthat the 

verified complaint in this cause presented at the time of filing, a prima 
facie non frivolous cause of action. I base this opinion primarily upon 

the settlement of the previous discrimination charged by the plaintiff 

which was filed with the EEOC; the finding by the United States District 
Court that plaintiff had a prima facie case of discrimination with respect 
to some of her claims; and the file itself.

2. This case was not plainly or clearly frivolous; it was not 
clearly unreasonable or groundless.

3- Racial discrimination cases are difficult cases to prove and 

support. Oftentime, biases are highly subjective and motivations are

0 0 0 8 0



f t

frequently concealed or pretextual. While I certainly make no claims and 

offer no opinions as to the ultimate outcome and merits of this claim of 
discrimination, I have handled and reviewed many racial discrimination 

Lases and based upon that experience, plaintiff’s claims herein would have 

appeared to me to present facially arguable prima facie claims.
4. I am a resident of Nashville, Tennessee and a member of the 

Tennessee and Georgia Bar Associations. I have been a practicing lawyer 

for fifteen years with most of my experience in trial and appellate work.
A copy of my resume is attached hereto and incorporated by reference. I 
have prepared this affidavit at the request of an attorney in the law 

offices of Williams and Dinkins, attorneys for plaintiff in the above case, 

I have no relationship to any of the attorneys or parties in this matter 
and knew nothing about the case prior to receiving a copy of the file.

FURTHER, affiant saith not.

Sworn to and subscribed before me this 18th day of February, 1985,

Notary Pub!ic
^ commission expires -4-.

0 0 0 8 1



^ m L l .» £ * 2.

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT. OF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN E. JONES, )
Plaintiff )

VS. )
THE CONTINENTAL CORPORATION, )
ET AL.,

)
Defendants

-)

AFFIDAVIT OF RUSSELL T. PERKINS, ESQUIRE 
STATE OF TENNESSEE 
COUNTY OF DAVIDSON

Russell T. Perkins, Esquire, after being duly sworn 
according to law, deposes and says:

1 . I am one of the counsel for the plaintiff in the above 
case and as such was responsible for certain portions of the Pre- 
Trial preparation and taking of discovery. Additionally, I re
presented the plaintiff in unemployment proceedings during the 
Fall of 1983 after her discharge by the defendants. In the course 
°f said representation, I appeared with Mrs. Jones and on her behalf 
at two hearings conducted by the Tennessee Department Of Employment 
Security. Mrs. Jones prevailed at both hearings with the Agency 
finding that she had not engaged in any disqualifying misconduct. 
Accurate copies of the three determinations made by the Department 

Employment Security are attached here as Exhibits 1 , 2 and 3
respectively .

CIVIL ACTION NO. 82-3572 
JUDGE MORTON

0 0 0 8 2



2. The first hearing was a pre-determination hearing. I 
r e p r e s e n t e d  Mrs. Jones and Cornelia A. Clark, Esquire, represented 

the employer. As a result of that hearing, the determination con
tained in Exhibit 1 was issued.

3. The employer appealed the first determination in favor of 
Mrs. Jones. As a result of that appeal, a full hearing was held
on 24 October 1983. I represented Mrs. Jones at that hearing and 
Ms. Clark represented the employer. Defendants, Carolyn Brown and 
Paulette Winsett both testified against Mrs. Jones at that hearing.
At th at  hearing, defendant Brown admitted that Mrs. Jones was termi
nated solely because of the word ''prejudice" which was contained in 
the letter of /S> July 1983 to Beth Price at the Jack Brandon Agency. 
Both defendant Winsett and defendant Brown admitted at that hearing 
that Mrs. Jones had not been disciplined, reprimanded, or counseled 
in any way prior to the letter of 15 July 1983 about any alleged 
misconduct or unprofessional communications. Based on the evidence 
presented at that hearing, the Appeals Tribunal apparently found 
that Mrs. Jones was a credible, witness and found in her favor. S e e  

Exhibit 2. Our entire firm reviewed this decision and viewed

same as a confirmation of our professional assessment that Mrs. Jones was not guilty 
°f any misconduct and, in fact, was a victim of retaliation and dis
crimination. See Exhibit 2.

The defendants again appealed and said appeal was over
turned without a hearing. See Exhibit 3.

5. I submit that these retaliatory and discriminatory discharge 
claims by the plaintiff were not frivolous and were not clearly 
severable from the promotions claims. In any event, it was reasonable 

light of this ruling and the other evidence developed through

o 0 0 0 8 3



#*

discovery to pursue the plaintiff's claim relating to her discharge 
to trial. I certify that none of the attorneys involved in this 
case pursued the discharge claim for any reason other than to secure 
redress for our client. In short, there was no intentional harass
ment directed at the defendants, but a good faith belief that the 
plaintiff would prevail on her discharge claim.

Further deponent saith not.

3
Sworn to and subscribed before me 
thi.s the day of February, 1985.

LUxILl K-
NOTARY PUBUQ ~

MY COMMISSION EXPIRES : f~~t 0 ?

CERTIFICATE

The undersigned certifies that copy of the foregoing Affidavit 
of Russell T. Perkins, Esquire, was mailed or hand-delivered to 
Lloyd Sutter, Esquire, 2500 Trust Company Tower, Atlanta, Georgia 

30303 and to Cornelia A. Clark, Esquire, Farris, Warfield, & Kanaday, 
17th Floor, Third National Bank Building, Nashville, Tennessee 37219,

0 0 0 8 4

-3-



£EB 2 2 1985

IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

GWENDOLYN E. JONES, )

Plaintiff )

VS. )
THE CONTINENTAL CORPORATION, )
ET AL.,

)
Defendants

)

AFFIDAVIT

STATE OF TENNESSEE 
COUNTY OF DAVIDSON

Richard H. Dinkins, being first duly sworn according to law, 
deposes and says as follows:

1 . I am one of plaintiff's counsel in the above-styled case 
and file this Affidavit in support of the pending Motion of the 
plaintiff and her counsel for a new trial and/or to alter or amend 
the judgment, heretofore filed on or about 1 February 1985.

2. In my conversations with counsel for defendants with re
gard to the inclusion of the Continental Corporation as a defendant 
herein, it was never my intent or purpose to use any type of pressure 
tactics to somehow coerce the defendants to drop any claim they might 
have for counsel fees in order to sign an Agreed Pretrial Order. At 
the time we were attempting to agree on a Pretrial Order, defendants 
had filed a Motion To Dismiss raising the matters which they sought to

disposed of by agreement in the Pretrial Order, to which Motion

0 0 0 8 5

CIVIL ACTION NO. 82-3572 

JUDGE MORTON



«

plaintiff had responded.
3.' In the course of said negotiations, I pointed out to 

defendants’ counsel that the 1 9 8 0  EEOC Conciliation Agreement at 

issue in this case was executed on behalf of defendants by the 
Continental Corporation, by its General Counsel, Melvin Katzman,

Esquire. In the course of my conversations with defendants regarding 
this issue, I requested that the defendants acknowledge that the 

inclusion of the Continental Corporation as a defendant was propr in

sofar as the plaintiff was alleging a violation of said 1980 EEOC 

Conciliation Agreement and that, insofar as the inclusion of said 

defendant was not frivolous, they would not seek fees for the mere 
inclusion of said Corporation as a defendant. At no time did counsel 

for defendants agree to this proposal. Insofar as this law firm did 
not represent plaintiff in said 1 9 8 0  EEOC proceeding, to the extent 
that the Conciliation Agreement had been signed in the name of the 
Continental Corporation and plaintiff was complaining of a violation of 

said. Agreement, it was my professional judgment that the Corporation 
was a proper party defendant.

A. With respect to the inclusion of defendants, Meulemans and 
Barsanti as defendants, it was again pointed out to counsel for de

fendants that, by virtue of said defendants’ positions as Managing 

Agents of defendant, Continental Insurance Company, and by virtue of 

the fact that said defendants had initiated and participated in the 

transfer of Carolyn Brown to Nashville, following her resignation from 

the San Francisco Office of the Continental Insurance Company, said 
Persons were likewise properly includable as defendants.

Throughout all proceedings in this case and, particularly 
"Preference to the negotiations to prepare Agreed Pre-Trial Orders,

00086



I attempted to prepare said Pre-Trial Order in good faith, pursuant 
to Rule 11 of the Local Rules of Court. At no time did not I engage 
in any pressure tactics or attempt to coerce the defendants to do any
thing. It was my sole objective to represent the plaintiff to the 
best of my ability, as counsel for defendants were representing defendants. 
In this regard, I would note that I attempted to direct my negotiations 
through local counsel as per Local Rule 1(h)(2); however, local counsel, 
apparently through her arrangement with non-resident counsel, was 
obliged to consult with said non-resident counsel prior to responding 
to any suggestions of counsel for the plaintiff. Further, the numerous 
letters and memoranda prepared by local counsel for defendants, which 
have apparently been relied on by the Court, were prepared without my 
knowledge and concurrence and do not accurately and completely reflect 
my conduct nor the conduct of my associates in this case.

Further deponent saith not

Sworn to and subscribed before me 
this the iv,;/ day of February, 1985.

NOTARY y L-s
p u b l i E

MY COMMISSION EXPIRES: /-/C'Y'7

0 0 0 8 7

-3-



<*

CERTIFICATE

T h e  undersigned certifies that c o p y  of the foregoing 
Affidavit was mailed to Cornelia A. Clark, Esquire, 17th Floor,
Third National Bank Building, Nashville, Tennessee 37219 and to LI oyd 
S u t t e r ,  Esquire, 2500 Trust Company Tower, Atlanta, Georgia 30303

'' d rthis the ___ day of February, 1985,

-4-
0 0 0 8 8



FIE.ED
UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF TENNESSEE m /jd 5 inor 
NASHVILLE DIVISION

CLERK

GWENDOLYN E .  J O N E S ,

Plaintiff

v.
THE CONTINENTAL CORPORATION,
ET AL.,

Defendants

SUPPLEMENTAL RESPONSE TO 
PLAINTIFFS’S MOTION FOR NEW TRIAL 
AND/OR TO ALTER OR AMEND JUDGMENT

When defendants filed their original response to plaintiff's 
Motion for New Trial and/or to Alter or Amend Judgment, they 
specifically reserved the right to respond should plaintiff 
submit additional documentation. Plaintiff has submitted such 
additional documentation and defendants hereby submit this Supple
mental Response.

The thrust of plaintiff's argument that the Court incorrectly 
awarded attorneys fees to be paid by plaintiff's counsel is 
the assertion that plaintiff's claim was not totally devoid 
of merit. However, the authority to assess fees against counsel 
is derived from 42 U.S.C. § 1927 and the U. S. Supreme Court's 
decision in Roadway Express, Inc, v. Piper, 447 U.S. 752, 100
SlCt- 2455, 65 L. E d . 2d 488 (1980) and its progeny. Plaintiff's
counsel opened themselves up to an award for attorneys fees

D E P U T Y  C LE R K

No. 82-3572 
JUDGE MORTON

0 0 0 8 9



t because of any alleged flaw in plaintiff's claim, rather 
because of counsel's conduct in the prosecution of that claim.

The Court's Order makes it very clear that it was counsel's 
lack of proper care in preparing the original Complaint, refusal 
to rectify an obvious flaw in the Complaint despite ample oppor
tunity and an invitation to do so, and finally, counsel's blatant
attempt to force defendants to waive their rights to attorneys 
fees by refusing to participate fully in the preparation of 
a pre-trial order, which brought about the award of fees against 
counsel. All of plaintiff's many assertions about the alleged 
merit of her claim in no way address or refute the Court's award 
of attorneys fees against plaintiff's counsel.

Additionally, plaintiff seeks to have the award of fees 
against her personally, rescinded due to her allegedly poor 
financial condition. This assertion requires two responses. 
First, plaintiff's financial condition, even if taken at face 
value, is not so dire as to warrant the reversal of the Court's 

original award of costs and fees.
Secondly, and most importantly, the Court's award has already 

taken into account the relative position of the parties. The
fee award in this case is not a blanket award of all fees for
all aspects of the litigation. In submitting their request for 
fees, counsel for defendants were conservative in their estimates 
°f time spent, and only requested fees for that portion of the 
defense which was specifically related to plaintiff s claims 
which the Court found were clearly frivolous. In making its

-2-

0 0 0 3 0



award the Court discounted this even further and awarded 

attorneys fees only with respect to time expended in defending 
p la i n t i f f ' s  termination claim. The Court specifically found 
that plaintiff's insistence in pursuing this outrageous c l a i m  

warranted the imposition of fees against her. Fees were awarded 
against Mrs. Jones only with regard to that portion of her case 

which was found to be so lacking in merit as to meet the standards 

imposed by law for the award of such fees.
In short, the Court's well-reasoned opinion has already 

reduced the amount of fees for which Mrs. Jones is liable to 

the point where her allegedly reduced economic circumstance 

should not be a deterrent.
Finally, a preliminary review of the legal authority submit

ted by plaintiff as support for her Motion indicates that a 
true reading of much of it provides support for defendants 
position. Should the Court require or desire further briefing 

with regard to a proper interpretation of plaintiff s authority, 
defendants would be happy to submit an additional memorandum. 

However, as defendants' lead counsel, Mr. Sutter, is currently 
engaged in ongoing labor negotiations in Gainesville, Georgia, 
which negotiations are expected to continue for an extended 
period of time, defendants would request an additional fourteen 

(14) days within which to provide such a response. Accordingly, 
should the Court desire additional briefings, defendants request 

that they be granted fourteen (14) days within which to provide 

such a response.

-3-
0 0 0 9 1



The thrust of defendants' application for costs and fees 
has been presented at length in previous memoranda. The purpose 
of this document is merely to specifically respond to certain 
assertions and assumptions in plaintiff's latest submission 
which had not been specifically addressed by prior pleadings.

Respectfully submitted,
KING & SPALDING

By: U W  I b>u CMIL
Lloyd^ Sutter r

2500 Trust Company Tower 
Atlanta, Georgia 30303 
(404) 572-4600
FARRIS, WARFIELD & KANADAY

B y : Qogrelio. ft ______
Cornelia A. Clark

Seventeenth Floor 
Third National Bank Building 
Nashville, Tennessee 37219 
(615) 244-5200
Attorneys for Defendants

-4-
0 0 0 3 2



CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore

going Supplemental Response has been served by United States 
Mail upon Russell T. Perkins, Esq., Williams and Dinkins, 203 
Second Avenue North, Nashville, Tennessee 37201 this day
of March, 1985 by placing a copy of same in a properly addressed 
envelope with sufficient first class postage affixed.

Cornelia A. Clark

0 0 0 9 3



_.u

OFFICE OF THE C L E R K

U n it e d  S t a t e s  D is t r ic t  C o u r t
M ID D L E  D IS T R IC T  O F  T E N N E S S E E  

SOO U N ITE D  STATES COURTHO USE  

N A S H V IL L E , T E N N E S S E E  3 7 2 0 3January 24, 1985
(COOKEVILLE)
115 Post Office &

Courthouse Bldg. 
9 East Broad 
P. O. Box 806 
Cookeville, TN 38503 
615/526-3269

RE*. GWENDOLYN E. JONES 
VS
THE CONTINENTAL CORPORATION, ET AL 

CASE NO: 82-3572
ATTACHED PLEASE FIND A CONFORMED COPY OF:
( ) AN ORDER
( X) A MEMORANDUM & ORDER
( ) MAGISTRATE'S ORDER
( ) JUDGMENT ON A JURY VERDICT
( ) NOTICE OF APPEAL
( ) BILL OF COSTS
IN THE ABOVE-STYLED CASE ENTERED ON 

January 23, 1985

COPIES TO:

Mr. Avon Williams 
Mr. Richard Dinkins 
Mr. Thomas P. Kanady, Jr. 
Ms. Cornelia A. Clark 
Mr. Melvin S. Katzman

CASE NOTICE NO. 3 1 ________ mailed by
Julia B. Cross.

0 0 0 9 4



UNITED STATES DISTRICT COURT

GWENDOLYN E. JONES

VS.

FOR THE MIDDLE DISTRICT OF TENNESSE
NASHVILLE DIVISION

NO. 82-3572

THE CONTINENTAL CORPORATION 
ET AL.

M E M O R A N D U M

The defendants to this Title VII - 42 U.S.C. § 1981 suit 
petition the court to assess their reasonable costs and 
attorneys' fees against the plaintiff and/or her counsel. See, 
e.q.» Christiansburq Garment Co. v. E.E.Q.C., 434 U.S. 412, 98 S. 
Ct. 694, 54 L. Ed. 2d 648 (1978); 28 U. S.C. § 1927. Plaintiff 
and her counsel have objected to this petition on two grounds. 
First, they allege that the court lacks jurisdiction to rule on 
the petition. Second, they claim this action was not frivolous. 
The defendants' petition shall be granted in part and denied in 
part.

Final judgment was entered in favor of the defendants on 
June 29, 1984. Plaintiff filed her notice of appeal on July 13, 
1984- Defendants filed their motion for attorneys' fees on July 
30, 1984. The plaintiff argues that her filing of notice of 
aPPeal immediately and completely divested the court of

0 0 0 9 5



jurisdiction over any matter involved in the appeal. Walker v, 
Felmont Oil Corp. 262 F.2d 163 (6 th Cir. 19653. The short 
answer to that argument is that the pending motion is not 
involved in the appeal. The motion for attorneys' fees presently 
before the court is collateral to the issues the plaintiff 
appealed. See White v. New Hampshire Department of Employment 
Security, 455 U.S. 445, 451, 102 S. Ct. 1162, 71 L. Ed. 2d 325,
331 (1982); Obin v. District No. 9 of the International 
Association of Machinists and Aerospace Workers, 651 F. 2d 574,
583-84 ( 8 th Cir. 1981). Cf. Hensley v. Eckerhart, ___ U.S. ,
103 S. Ct. 1933, 76 L. Ed. 2d 40, 50 n. 7 (1983)(fee shifting 
statutes to be construed pari materia). Consequently, the court 
has jurisdiction-to rule on the defendants' petition for 
attorneys' fees. Masalosalo v. Stonewall Insurance Company, 718 
F. 2d 955, 957 (9th Cir. 1983 ); Obin, supra.

The defendants do not contend that they are entitled to all 
the attorneys| fees they incurred defending this case. They only 
seek compensation for the time the two attorneys who actually 
tried the case spent litigating three claims. Those claims are 
the ones challenged in the defendants' motion to dismiss the 
original complaint, certain alleged incidents of retaliation 
prior to the plaintiffs' termination, and the termination itself. 
These three areas of dispute shall be addressed in turn.

The plaintiff originally filed a plethora of charges against 
two individual defendants and the Continental Corporation. The 
Continental Corporation argued that it was not a proper defendant 
since the Continental Insurance Company, rather than itself, was

0 0 0 9 6



the plaintiff's employer. The plaintiff pointed out that a 1980 
E E.O.C. agreement settling a discrimination claim the plaintiff 
had brought against the Continental Insurance Company had been 
signed on behalf of "The Continental Corporation by Melvin TV" 
Katzman. ” The court agrees that the manner in which the 1980 
E.E.O.C. settlement agreement was executed, coupled with other 
circumstances in this case, would have led counsel of reasonable 
prudence to name the Continental Corporation as a defendant. At 
any rate, reasonable counsel would have investigated the 
relationship between the Continental Corporation and the 
Continental Insurance Co. in which case the Continental 
Corporation would have incurred expenditures not substantially 
greater than those it was saddled with by moving to dismiss the 
plaintiff's claims against it. Thus, the fees incurred 
challenging the Continental Corporation's status as a defendant 
will not be assessed against either the opposing party or 
counsel.

Defendants' motion to dismiss also pointed out that in suing 
under Title VII, 42 U.S.C. § 2000e et seq., and the 1866 Civil 
Rights Act, 42 U.S.C. § 1981, the complaint failed to specify 
under which statute the individual defendants were being sued, 
under which statute the sex discrimination claims were being 
brought, and under which statute damages were being requested.
BY letter dated August 13, 1982, defense counsel offered to 
withdraw the motion to dismiss if plaintiff's counsel would clean 
UP the pleadings. Plaintiff's counsel never amended the glaring 
iegal deficiencies just noted. The confusion caused by these

0 0 0 9 7



sloppy pleadings was exacerbated when plaintiff's counsel refused 
to sign the agreed pretrial order unless the defendants waived 
any right they might have to attorneys' fees. Such pressure 
tactics were highly improper. A desire to escape liability- is- no 
excuse for refusing to sign an otherwise agreed-upon pretrial 
order. If plaintiff's counsel had any competent defense to a 
motion for attorneys' fees, the proper place to have raised it 
would have been in opposition to such a motion.

The court does not blame the plaintiff for the needless 
complication of the proceedings recounted above. It is the 
attorney's responsibility to know what wrongs by what parties may 
be redressed under what causes of action. The conduct of 
plaintiff's attorneys regarding the pretrial order and their 
failure to distinguish between § 1981 and Title VII claims in the 
pleadings are just the sort of vexatious multiplication of the 
proceedings Congress intended the courts to sanction under 28
D . S . C .  § 1927. Accordingly, the attorneys' fees reasonably 
incurred as a result of this vexatious multiplication of the 
proceedings shall be assessed against plaintiff's counsel 
personally. The amount of those fees is discussed below.

The defendants also seek to recover fees for the time their 
attorneys spent defending the plaintiff's retaliation claims. As 
noted in the court's prior opinion, most of the evidence the 
plaintiff presented in support of her retaliation claim was quite 
petty; however, the court cannot say that the claim itself was 
frivolous. Even if it could, the court could not award the 
^fendants fees for prevailing on that claim. All the evidence



for
the plaintiff presented as proof of retaliation^ was also 
p r o b a t i v e  of the defendants' allegedly discriminatory reason 
transferring Carol Brown. Thus, the plaintiff's retaliation 
"claim" cannot be considered unrelated to her nonfrivolous 
promotion "claim" for the purpose of awarding attorneys' fees.
See Hensley v. Eckerhart, ____ _ U.S. , 103 S. Ct. 1933, 76 L

Ed. 2d 40 , 51 (1983 5 .
Finally, the defendants request reimbursement for the tim 

their attorneys spent defending the plaintiff's wrongful, 
termination claim. That claim was clearly a frivolous one 
unrelated in both fact and theory to those that were nonfrivolous 
See Hensley, supra. If the plaintiff had proven all her other 
claims of discrimination and retaliation, the defendants would 
have been completely justified in firing the plaintiff. No 
reasonable person could conclude otherwise. The civil rights 
statutes do not give minorities a carte blanche to do as they 
please. Employees, black or white, cannot take it upon 
themselves to reprimand customers for rudeness. Accordingly, all 
attorneys' fees reasonably incurred defending the plaintiff's 
wrongful termination claim shall be assessed against the 
Plaintiff.

In summary, plaintiff's attorneys are liable for all fees 
reasonably incurred as a result of their vexatious multiplication 

the proceedings. Plaintiff is liable for the fees reasonably

X0 f course, the court disagrees with the plaintiff's 
contention that her termination was an act of retaliation.

00039



incurred defending her frivolous termination claim. The court 
shall now decide what rates and number of hours are reasonable.

The defendants seek compensation only for the time Ms. Clark 
and Mr. Sutter personally spent working on this case. Ms. Clark 
informs the court that her customary hourly rate for the type of 
services she rendered in this case was $70 in 1982, $75 in 1983, 
and $80 in 1984. Mr. Sutter avers that his customary hourly rate 
for the type of services he rendered in this case was $ 1 2 0  in 
1982, $125 in 1983, and $130 in 1984. The plaintiff has not 
contended that these rates are outside the range or "bracket" of 
rates charged in Ms. Clark's and Mr. Sutter's communities2  

by lawyers with ability, experience, and expertise similar to 
theirs. In the court's opinion, the rates requested are within 
those ranges of reasonable rates; therefore, the court finds the 
rates requested to be reasonable ones. See Laffey v. Northwest 
Airlines, Inc.. 746 F.2d 4, 24-25 (D.C. Cir. 1984); Northcross y. 
Board of Education of Memphis City Schools, 611 F.2d 624, 638 
(6th Cir. 1979), cert, denied, 447 D.S. 911, 100 S. Ct. 2999, 64 
L. Ed. 2d 862 (1980 ).

In their itemized statements, the defense attorneys did not 
distinguish the time they spent contesting the Continental 
Corporation's status as a defendant from that spent winnowing the 
Title VII claims out of the § 1981 claims. In the court's * *

Ms. Clark customarily practices in Nashville, Tennessee, 
«rl.Sutter Atlanta, Georgia. See Louisville Black Police 
Sjficers Organization, Inc, v. City of Louisville, 700 F.2d 268, 
2 7 7 (6 th Cir. 1983).

*

00100



opinion, a conservative estimate is that defense counsel spent 
half of the time they worked on the motion to dismiss separating 
the Title VII from the § 19 81 claims. '"Applying-^i:his 
apportionment, the defendants would be entitled to have the - 
following hours assessed against plaintiff's counsel at the rates 
designated.

15.5 hours at $120 an hour 
3.8 hours at $130 an hour 
6.25 hours at $70 an hour 
.2 hours at $80 an hour3

A total of 25.75 hours spent preparing the motions todismiss is 
quite reasonable considering the number of issues the defendants 
were forced to research.

Mr. Sutter worked 15.6 hours at the rate of $120 per hour on 
the pretrial order. Those hours were reasonably and efficiently 
spent. They shall be allowed in full. Ms. Clark worked 10.5 
hours on the pretrial order at the rate of $70 per hour. Her 
time was also reasonably and efficiently spent. It shall be 
allowed in full.

In summary, plaintiff's counsel shall be liable to the 
defendants for $5,414.50 in attorneys' fees. Those were the fees 
reasonably incurred by the defendants because of counsel's 
vexatious multiplication of the proceedings.

It is difficult to ascertain exactly how much time was spent 
defending the plaintiff's termination claim. Mr. Sutter and Ms.

•̂See Mr. Sutter's statement 8/6/82 - 10/21/82 and 1/29/84 - 
2/27/84 . See Ms. Clark's statement 8/12/81 - 10/25/82 and 
2/26/84. ---

00101



Clark estimate that approximately one-third of their trial 
preparations and trial time were dedicated to addressing the 
termination claim. From the court's recollection of the trial, 
that is a fair and reasonable estimate. Consequently, the 
defendants request compensation for 7.4 hours at $125 per hour, 
10.1 hours at $130 per hour; 4.25 hours at $75 per hour; and 8.3 
hours at $80 per hour. A total of 30.05 hours was a reasonable 
amount of time to have spent preparing for and trying the 
plaintiff's termination claim.

The time spent defending against the plaintiff's motion for 
a temporary restraining order was wholly attributable to the 
termination claim. Mr. Sutter claims to have spent 4.1 hours 
defending against that motion and answering the plaintiff's 
amended complaint charging unlawful termination. That was 
certainly a reasonable amount of time to spend on those matters.

The time counsel spent in depositions must be denied. The 
court cannot tell from the record, nor has defense counsel 
suggested, how much time was spent deposing witnesses about the 
plaintiff's termination and how much about nonfrivolous claims. 
Since no fair estimate can be made, no award of those hours is
permissable.

Defense counsel estimates that approximately one-fourth of 
the time claimed for preparing the proposed findings of fact and 
conclusions of law was spent addressing the termination claim.
The court finds that to be a reasonable estimate. Accordingly, 
the defendants are entitled to compensation for 7.5 hours at the 
rate of $ 1 3 0  an hour and .4 hours at the rate of $80 an hour for

00102



p r e p a r a t i o n  of the proposed findings of fact and conclusions of 
law on t h e  termination claim.

In summary, the plaintiff shall be liable to the defendants 
f o r  $ 4 , 7 4 0 . 2 5  in attorneys' fees.

Where more than one lawyer represents a party, this court 
ordinarily deducts a small percentage of the hours approved to 
offset duplication. See Northcross, supra, at 636-37. The court 
has not dene so in this case for several reasons. First, the 
defendants have voluntarily reduced the number of hours they were 
probably entitled to by a substantial amount. Both Ms. Clark and 
Mr. Sutter work for large firms. Such firms usually employ a 
number of law clerks, paralegals, and associates on cases of the 
size and complexity of this one? yet, the defendants have only 
requested compensation for the time Ms. Clark and Mr. Sutter 
personally spent on this case. Second, in a long case such as 
this one involving numerous exhibits and witnesses, it is 
practically essential that two lawyers be employed if the case is 
to be tried competently. Consequently, both lawyers must be 
familiar with the controlling facts and legal principles.
Lawyers have not duplicated each other's efforts when they have 
merely done what is necessary to represent their client 
effectively. The one area where a reduction for duplication 
®fght have been called for would have been preparation of the 
Proposed findings of fact and conclusions of law. It is clear 
from the defendants' petition for fees, however, that Mr. Suttert
Prepared the findings of fact and conclusions of law and that Ms. 
C1ark merely perused them. That sort of professional judgment is

00103



the final reason the court thinks no reduction for duplication is 
called for in this case. Throughout this case defense counsel 
has only presented the most defensible of claims and defenses.
If there was any duplication of effort, the court is confident - 
that defense counsel made a voluntary adjustment to account for 
that.

Finally, defendants ask the court to approve their costs. 
Since the plaintiff has not objected to the reasonableness of 
those costs, the court's approval is unnecessary. Fed. R. Civ.
P. 54(d). However, for the sake of judicial economy and clarity, 
the court finds that the defendants1 costs of $6,540.15 are 
reasonable. The clerk shall be directed to asses those costs 
against the plaintiff.

An appropriate order shall be entered.

00104



) NO. 82-3572
)
)

THE CONTINENTAL CORPORATION, )
ET AL. 5

O R D E R

In accordance with the memorandum contemporaneously filed, 
it is ORDERED

(1) that the law firm of Williams and Dinkins pay attorneys' 
fees incurred by the defendants in the amount of $5,414.50;

(2) that the plaintiff pay attorneys' fees incurred by the 
defendants in the amount of $4,740.25; and

(3) that the Clerk assess costs of $6,540.15 against the 
Plaintiff.

SENIOR U. S. DISTRICT JUDGE

0 0 1 0 5



f(UM

U n i t e d  S t a t e s  D i s t r i c t  C o u r t
MIDDLE DISTRICT Or TENNESSEE 

•o e  WMrrco wvArwm c o u r t h o u se  
NASHVILLE, TENNESSEE 37203

(COOKEVILLE)
March 25, 1985 115 Post Office &

Courthouse Bldg.
9 East Broad 
P. O. Box 806 
Cookeville, TN 38503 
61S/S26-3269

KEj Gwendolyn E. Jones v. Continental Corporation et al.

CASE NO* 82-3572

ATTACHED PLEASE FIND A CONFORMED COPY OF*
( ) AN ORDER
( x x ) A MEMORANDUM & ORDER
( ) MAGISTRATE * S ORDER
( ) JUDGMENT ON A JURY VERDICT
( ) NOTICE OF APPEAL
( ) BILL OF COSTS
IN THE ABOVE-STYLED CASE ENTERED ON
—  March 22-, 198 5
copies' t o *

Russell T. Perkins 
Cornelia A. Clark
Lloyd Sutter

CASE notice n o . 
Julia B. Cross. mailed by

00106



UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GWENDOLYN E. JONES )
)
)

vs. ) NO. 82-3572
)
)

THE CONTINENTAL CORPORATION )
ET AL. )

RECEIVED FOR ENTRY
9 b o  /#  m

M E M O R A N D U M

By prior order this court assessed attorneys' fees against 
the plaintiff and her counsel. Both plaintiff and her counsel 
have petitioned the court to grant them a new trial on and/or to 
alter or amend that earlier judgment. For the reasons set forth 
below, their motion shall be denied.

With two exceptions, the arguments raised by plaintiff and 
her counsel were clearly and adequately addressed in the court's 
memorandum explaining the basis for its judgment. There is no 
reason to reiterate those earlier findings and conclusions.

The first matter of those that remain to be addressed is 
counsel's mischaracterization of the court's order. Counsel 
argues that it was penalized simply for submitting "sloppy" 
Pleadings. of course, the court did not award fees against

001



Pees werecounsel simply because their pleadings were "sloppy. " 
a s s e s s e d  against counsel because they did not correct the glaring 
legal deficiencies in their pleadings after those errors were 
pointed out and objected to by the defendant, and because 
plaintiff's counsel refused to agree to a pretrial order for 
improper reasons. Given the superior expertise, ability, and 
experience of plaintiff' s counsel in the area of employment law, 
the court could only conclude that counsels' refusal to amend the 
pleadings was a tactical ploy intended to confuse the defense and 
bog it down in needless research and briefing. Such an abuse of
the judicial process may clearly be sanctioned under 28 U.S.C. § 
1927.

Second, the plaintiff alleges she is unable to pay the 
$4,740.25 judgment entered against her. After reviewing her 
affidavit, the court is of the opinion that the plaintiff has 
sufficient assets to take out a loan to pay the judgment without 
1)61119 rendered destitute. Consequently, the plaintiff's motion 
to vacate or reduce the judgment against her shall be denied.

An appropriate order shall be entered.

2

00108



IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF TENNESSEE 
NASHVILLE DIVISION

QJb.

1

GWENDOLYN E. JONES,
Plaintiff

VS.
THE CONTINENTAL CORPORATION, 
ET AL.,

Defendants

CIVIL ACTION NO. 82-3572 
JUDGE MORTON

NOTICE OF APPEAL

Plaintiff, Gwendolyn E. Jones, and her counsel, Williams and 

Dinkins, Attorneys, hereby appeal to the United States Court of 

Appeals for the Sixth Circuit from the Order of the Honorable 

L. Clure Morton, United District Judge for the Middle District 

of Tennessee, entered 22 March 1985 , sustaining its Order of 

23 January 1985 , awarding counsel fees against the plaintiff and 
her counsel.

11H-Done this day of April 1985.

WILLIAMS AND DINKINS
\

AVON 0 1 LITAMSTJR- 
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Plaintiff

0 0 1 0 9



CERTIFICATE

The undersigned certifies that copy of the foregoing Notice 
Of Appeal  was mailed to Cornelia A. Clark, Esquire and Scott 

Jackson,  Esquire, 17th Floor, Third National Bank Building, 

Nashville, Tennessee 37219 and Lloyd Sutter, Esquire, 2500 Trust 
Company Tower, Atlanta, Georgia 30303, this the day of
April, 1985.

»

O O l l O



IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

MRS. GWENDOLYN E. JONES , 
Plaintiff

VS.
THE CONTINENTAL CORPORATION 
311 Plus Park Boulevard 
Nashville, Tennessee 37219

BUD MEULEMANS,
NASHVILLE DISTRICT MANAGER, 
THE CONTINENTAL CORPORATION 
311 Plus Park Boulevard 
Nashville, Tennessee 37219

an d
R. R. BARSANTI,
REGIONAL MANAGER,
THE CONTINENTAL CORPORATION 
1810 Commerce Street 
Dallas, Texas 75201,

Defendants

)
) '
) CIVIL ACTION NO.

)

F I L E D
Juw z  3 1982

DEPUTY CLERK

C O M P L A I N T
1. The jurisdiction of this Court is invoked pursuant to 

28 U.S.C., Section 1343(3) and (4), this being a suit in equity 
and at law authorized and instituted pursuant to 42 D.S.C., 
Sections 1981 and 2000e, to secure the protection and to seek 
redress for deprivation of rights of the plaintiff secured by 

said latter statutes and by the Thirteenth Amendment to the 

United States Constitution.
2. Jurisdiction of this Court is further invoked pursuant 

to 28 U.S.C., Sections 2201 and 2202. The plaintiff is seeking, 
in addition to injunctive relief, damages and counsel fees, a 
declaratory judgment that the practices and policies pursued by 
the defendants against her violate the rights secured to the 
plaintiff by said 42 U.S.C., Sections 1981 and 2000e and said 

Thirteenth Amendment.
3. Plaintiff, Mrs. Gwendolyn E. Jones, hereafter plaintiff, 

is a black female citizen of the United States and of Tennessee

00111



residing within the Metropolitan Government of Nashville and 

Davidson County, Tennessee. She is and has been at all times 

material hereto qualified, eligible, ready and willing for the 
training, promotions, wage increases, job classifications and 

other employment opportunities sought by her as set forth herein.
4. At all times mentioned herein defendant, The Continental 

Corporation, hereafter Continental, was and is a New York cor
poration with principal district business offices located within 
said Metropolitan Government wherein said defendant was and is 

engaged in the sale and service of insurance in interstate com
merce within the meaning of 42 U.S.C., Section 2000e et seq. and 
was and is an employer as defined in said statute which now 

employs more than 15 persons in its aforesaid operations in 

interstate commerce. Defendant, Bud Meulemans, hereafter
Me ulema n s and defendant, R. R. Barsanti, hereafter Barsanti, 
were at all times material employees of Continental acting re
spectively as Nashville District Manager and Regional Manager 
and as the agents of and upon the business of said Continental 
and for whose actions Continental is responsible.

5. Plaintiff was employed by Continental in its Nashville 
District Office about 5 May 1977 as a Rate Code Clerk whose 
functions were to determine rates applicable to policies and 
store the information in computer by code. She was subjected

to discrimination on account of her race (black) and sex (female) 
by defendants in the following particulars:

(a) from date of employment to about 23 May 1980 she 
received only three increases in pay while white employees were 
given raises every six months;

(b) on her application plaintiff listed ten years 
prior experience in commercial casualty insurance work with The 
Travelers Insurance Company, including three years as a Policy 
Writing Supervisor and seven years as a Rate Code Clerk, which 
latter c1 asification at Travelers included many functions which 
were assigned to the superior job classification of policy under

-2-
00112



writer at Continental. Although prior job experience of white 

employment applicants was carefully reviewed, evaluated and 

considered in their job assignments and promotions by Continental 

said prior work experience of plaintiff was ignored and given 
little or no consideration by Continental in plaintiff's job 
assignments and promotions, solely because of her race and sex, 

as a result of which the following discriminatory events occurred
(1) plaintiff was initially assigned as a Rate 

Code Clerk while white applicants and employees with less 
skill and experience than plaintiff were initially assigned 
to the higher positions of Underwriter Trainee and Under
writer.

(2) plaintiff was not appointed as Underwriter 

Trainee until about August 1979 and then only after com

plaints by her to the Continental Human Resources Repre
sentative .

(3) although fully competent as an Underwriter 
within 30 days after her said appointment as Trainee, 
plaintiff was not promoted to Underwriter until April 1981. 
Examples of disparity are as follows:

a. Walter L. Sullivan, a white male, was 
hired by Continental in September 1978 with no training 
or experience and made immediately an Underwriter 
Trainee. After two weeks in the Nashville Office he 
was sent to Glenn Falls for six months training and 
returned to Nashville as a full Underwriter. Thereafter 
he received substantial pay increases every six months 

until his resignation on 15 June 1981 because of his 
complaints about the "working atmosphere".

b. Although plaintiff was classified as an 

Underwriter Trainee in 1979 and said Sullivan was a full 
Underwriter, he called upon her for information and 
training about underwriting.

00113



Donna Manning, a white woman, was hired

by Continental on 27 June 1977 without any prior train

ing or experience in insurance, received a pay raise 

on 5 December 1977 and was promoted to Assistant Under
writer on 22 May 1978. After receiving a second raise 

she was promoted to Underwriter on 21 May 1979, received 

additional pay increases on 11 February and 3 November 
1980 and was promoted to Senior Underwriter on 4 May 
1981, which position she now holds earning a substantially 

greater annual salary than the plaintiff although less 

qualified than plaintiff.
d. About July 1981 plaintiff pointed out to 

her Supervisor, Danny Reed, the need for additional 

personnel in her territory (Territory I). Instead of 
providing additional underwriting personnel who might 

have been Junior to her, thereby enabling plaintiff to 
become a Supervisor, Continental transferred Carol Brown, 
a white female from California and placed her over 
plaintiff as a Supervisor .about October 1981. Upon 
her assignment Brown was given the Supervisor's position 

formerly held by Danny Reed, a white male, and a new 

position was created for Reed as Supervisor over Ter
ritory II. The effect was to deny plaintiff, a black 
female, promotion to a newly opened supervisory position 
for which she was equally or better qualified than eithe 

Brown or Reed.
e. Said Carol Brown was permitted to evaluate 

plaintiff discriminately as compared to white employees, 
although Brown had been in the Nashville Office as 
Supervisor only about six months and was less knowledge
able about the job performance requirements than plain

tiff.
(c) although plaintiff had said ten years experience 

as a Policy Writer Supervisor and Rater for all lines of insurance

-4-

00114



except personal lines before her employment with Continental, 
she has been denied numerous opportunities for training and 

experience by Continental solely because of her race and sex, 

including but not limited to the following:

(1) said delays in selection as Underwriter and/o:- 

Underwriter Trainee.

(2) from date of employment to date of this 
Complaint, total denial of opportunities to receive 
training at Continental Home Office Companies such as 

Glenn Falls, New York, which are and have been regularly 
afforded to white employees at her same or lower level. 

While several white employees have declined such train

ing opportunities for personal reasons, all plaintiff’s 
requests for same have been denied.

6. On information and belief Barsanti, in concert or 
conspiracy with Meulemans, transferred Carol Brown to Nashville 

from California and placed her over plaintiff, reassigning said 
white male, Reed, to a new position as Supervisor, because they 
were respectively white and male and because plaintiff was black 
and female despite advice to them that Brown was not needed and 
with knowledge and/or Intent that the effect thereof would be
to discriminate against plaintiff and deny her equal employment 
opportunities.

7. On or about 23 May 1980 plaintiff filed a Charge of 

Discrimination with the Equal Employment Opportunity Commission 
Office at Nashville, hereafter EEOC, complaining about said 
racially discriminatory denial of raises to her between 1977 and 

date of said filing. This Charge, resulted in a negotiated settle
ment agreement on 8 July 1980 in which plaintiff was finally 
granted a raise but also in which Continental agreed that it woulc 

not retaliate against plaintiff as a result of her having filed 
said Charge No. 015-80-0636. Nevertheless Continental violated 
said settlement agreement in failing and refusing to consider 
plaintiff for the promotions, pay increases and training mentionec 
above, thereby retaliating against her as a result of her having

00115



filed said former EEOC Charge.
8. The discrimination against plaintiff described above 

is part of and reflects the general policy of discrimination

on account of race, color and sex pursued by Continental in its 

Nashville Office as reflected by the following:
(a) there are 11 Professional Supervisors, all of 

whom are whi te;
(b) there are 6 non-Professional Supervisors, only

2 of whom are black and of said 2 black persons, one was selected 

after plaintiff filed her last EEOC Charge;
(c) there are only 2 Senior Underwriters, both of 

whom are white;
(d) there are no black females above the level of 

non-Professional Supervisor;
(e) virtually all new black employees are assigned 

to the File Department, one of the two most menial departments 
in the office, which consists of one of said black Supervisors 
and about 8 other employees, about 6 of whom are black.

9. On or about 13 February 1982, plaintiff filed a second 
EEOC Charge of Discrimination on account of race and sex against 
defendants, setting forth substantially all of the charges men
tioned above, and bearing Charge No. 015-82-0500 . However, since 
the EEOC has not completed the investigation and processing of 
said Charge, plaintiff has requested issuance of a Notice Of 
Right To Sue upon the filing of this lawsuit.

10. The plaintiff has at all times been courteous, pleasant, 
diligent and competent in the performance of her work and avers 

that said disparate treatment to which she has been subjected by 
the defendants as set out hereinabove in Paragraphs 3 to 9 was 
inflicted upon her solely because she is a black female, as afore
said, and in violation of her rights secured by the Federal Con

stitutional and statutory provisions set out in Paragraph 1 
hereinabove entitling her to the declaratory, injunctive and 
legal relief as set out in Paragraph 2 hereinabove. Said con

- 6 - 0 0 1 1 6



duct of the defendants complained of herein has resulted and is 

resulting in continuing irreparable injury to the plaintiff, and 

if allowed to continue, would serious endanger the possibility 

of granting complete relief. Plaintiff therefore is entitled 

to immediate and preliminary relief as well as permanent declara

tory and injunctive relief in equity.
11. Said actions of the defendants in discriminating against, 

the plaintiff have also subjected her to extreme mental and 
physical pain, anguish and anxiety which have caused her to stay 
nervous and upset virtually all of the time and which has injured 
her both in her enjoyment of life and in her professional reputa
tion and prospects for advancement, in such totally unwarranted 
and indecent circumstances as to the constitute outrageous con

duct, and for all of which she is entitled to money damages at 

law.
WHEREFORE, PLAINTIFF RESPECTFULLY PRAYS that upon the 

filing of this Complaint, this Court advance this matter on the 
docket for a speed hearing of same and-upon said hearing this 

Court:
1. Grant plaintiff a preliminary and permanet injunction 

restraining and enjoining defendants, their agents, successors, 
employees, attorneys and those acting in concert with them or 
at their direction from continuing to maintain and/or pursue
said policies and practices and discrimination in job assignments, 
training, promotions, compensation, advancement and other employ
ment opportunities to plaintiff, because of her race and/or sex.

2. Grant plaintiff a declaratory judgment to the effect 
that said policies, practices, customs or usages of defendants 
in discriminating against plaintiff for said reasons violate 
her rights secured by 42 U.S.C., Sections 1981 and 2000e and by 
the Thirteenth Amendment to the Constitition of the United States.

3. Grant plaintiff full relief from the effect of de
fendants’ past discrimination and continuing discrimination in

cluding the following:

-7- O O H 7



(a) immediate promotion of plaintiff to the highest 
position'which she could have reached had she been given 

job assignment and opportunities for training and advance

ment commensurate with those accorded by Continental to 

white persons similarly situated, which shall be not less 

than the position of Underwriting Supervisor;

(b) full back pay to the plaintiff in the amount of 
income lost by her as a result of defendants' unlawful 
acts and practices of denying her promotions and raises;

(c) full front pay in connection with any delay in 
the promotion mentioned in subparagraph (a) of this para

graph;
(d) an immediate and continuing injunction against 

further retailiation against the plaintiff by the defendants, 
their employees and representative.
4. Grant whatever forms of affirmative relief are necessary 

and proper to remedy the past discrimination by defendants against 
women and black persons to the extent necessary to open job cata- 
gories formally not open to women and black persons so as to make 
them available fully to the plaintiff.

5. Retain jurisdiction for a period sufficient to assure 
full compliance with the terms of the decree prayed for herein 
and all other requirements of Federal Law, and during the period 

of such retained jurisdiction, require full and regular re
porting of information pertaining to such compliance.

6. Grant plaintiff damages in sum of $1,000,000.00.

7. Grant plaintiff reasonable counsel fees.

8. Grant plaintiff general relief.

Attorneys for Plaintiff



STATE OF TENNESSEE
DAVIDSON COUNTY

Mrs. Gwendolyn E. Jones makes oath in due form of law that 

she is the plaintiff in the above case; that she has read and 

knows the contents of her foregoing Complaint, and that.the state 

meats made therein are true as of her own knowledge, except as to 

those statements which are stated therein to be made upon in-
formation and belief, 
t rue .

and these statements she believes to be

w/. , y(c. _ •/ “■' v. <_ • •
Sworn to and subscribed before 
me this the - day of June, 1982

NOTARY PUBLIC 
MY COMMISSION EXPIRES

n'-,. Tn.;'-X ..

00119
-9-



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF TENNESSEE/

NASHVILLE DIVISION

MRS. GWENDOLYN E . JO N ES, 

P l a i n t i f f  

VS.
THE CONTINENTAL CORPORATION, 
ET AL a ,

Defendants

)
)
) CIVIL ACTION NO. 82-3572
)
)
)

SECOND AMENDMENT TO COMPLAINT 
Pursuant to Rule 15 of the Federal Rules of Civil Pro

cedure, plaintiff amends her Complaint filed in the case in 
the following particulars:

By adding on page 2, the following paragraph:
4a. At all times mentioned herein defendant, The Con

tinental Insurance Company, hereafter referred to as Continental Company,

Was anĉ a corporation with principal district business offices 
sated within said Metropolitan Government wherein said defend- 
Was anĉ  -̂s engaged in the sale and service of insurance in

interstate
20oo

commerce within the meaning of 42 U.S.C., Section
®t seq. and was and is an employer as defined in its afore-
°Perations in interstate commerce. On information and belief,
ant Meulemans and defendant Barsanti were, at all times ma

terial
' einPloyees of Continental Company acting respectively as

00120



N a s h v i l l e  District Manager and Regional Manager and as the agents 
of and upon the business of said Continental Company and for whose 
actions Continental and/or Continental Company is' responsible,”

2. By adding following the word "Continental” the words "and/or 
Continental Company" at:

(a) Paragraph 5, line 1, page 2;
(b) Paragraph 5(b), lines 3 and 5, page
(c) Paragraph 5 (b) (3)a, line 2, page 3;
(d) Paragraph 5 (b)(3)c, line 2, page 4;
(e) Paragraph 5(b)(3)d, line 6, page 4?
(f) Paragraph 5(c), line 3, page 5;
(g) Paragraph 7, line 7 and 9, page 5?
(h) Paragraph 8, line 3, page 6;
(i) Paragraph 3(a), line 4, page 8.

Respectfully submitted,
WILLIAMS AND DINKINS

AVON N. WILLIAMS, JR.
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Plaintiff

0 0 1 2 1

2-



i

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION 1 0 198
MRS, GWENDOLYN E. JONES» )

Plaintiff, )
)VS. )
)THE CONTINENTAL INSURANCE )

COMPANY, et al. , )
Defendants, )

— ---- -------- ------ _ _ _ 1

DEFENDANTS' RENEWED 
MOTION TO DISMISS

CIVIL ACTION

JULIA 8. CROSS

DEPUTY CLERK

Pursuant to Rule 15(a), Fed. R. Civ. P., and Local Rule 
8(b)(3), defendants The Continental Insurance Company, The 
Continental Corporation, Bud Meulemans, and R. R, Barsanti, 
hereby renew their motion to dismiss originally filed August 13, 
1982, and supplemented September 17, 1982. All affidavits and 
memoranda filed therewith are incorporated by reference herein.

Defendants, in addition, submit in support of this 
Renewed Motion Exhibit "A” hereto, the 1981 Annual Report for The 
Continental Corporation, as well as the attached Memorandum in 
support of The Renewed Motion.

WHEREFORE, defendants pray that their motion be granted
and that they have such other and further reliefpga^^^^Court 
fflay deein just and proper. ff.'OO'/4-* M



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF TENNESSEE‘:v ;

NASHVILLE DIVISION i^V:

HRS. GWENDOLYN E. JONES, 

Plaintiff

v.

THE CONTINENTAL INSURANCE 
COMPANY, et al. ,

Defendants.

)
) •
) ‘
)
) Civil Action No.
)
) Judge Morton
)
)
)

82-3572

CERTIFICATE OF DEFENSE COUNSEL 
AND REQUEST FOR PRETRIAL CONFERENCE

Defendants received plaintiff's proposed "Agreed Pretrial Order" 

(Attachment A) on December 2, 1982. Defendants hand delivered their 

response (Attachment B) to plaintiff's counsel on December 8, 1982.

Counsel met and conferred with respect to the "Agreed Pretrial Order" 

on December.9, 1982, thereafter preparing for execution the agreed upon 

document (Attachment C) as defense counsel understood the results of the 

conference. It was transmitted to plaintiff's counsel for execution, 

together with a transmittal letter (Attachment D).

On December 10, 1982, counsel for plaintiff (Dinkins) advised counsel 

for defendant (Clark) that he would not agree to Section I of the Order 

(Attachment C) concerning jurisdiction. This decision apparently is based 

on the question alluded to in paragraph two and in the postscript of the 

cover letter (Attachment D).

As required by Rule 11(a) of the Local Rules, counsel for defendant 

hereby notifies the clerk that (1) they have met in a face to face conference 

with counsel for plaintiff, (2) they have made a good faith effort, and

0 0 1 2 3



(3) they have been unable to reach agreement with plaintiff's counsel 

on the filing of a pretrial order.

In light of plaintiff's counsel's decision not to sign the document 

worked out in the face to face conference, none of the issues raised in 

defendants' pending motions to dismiss have been resolved. Additionally, 

plaintiff continues to be in violation of the order entered by this Court 

requiring answer to certain interrogatories and requests for production 

of documents, which are now several weeks overdue.

Until these preliminary matters are resolved, it remains very difficult 

for defendants to prepare properly for trial. Defendants have not yet 

filed an Answer, and cannot do so until the preliminary issues are resolved.

It will be difficult, if not impossible, to enter into stipulations with 

so many issues still in dispute. Defendants have been, and continue to be, 

prejudiced in their selection and preparation of expert witnesses in that 

plaintiff has not yet identified which, if any experts or opinion witnesses 

she intends to use. The actual defendants in the lawsuit have not yet 

been finally identified. Defendants cannot efficiently prepare a pretrial 

brief or designate a list of exhibits and witnesses until it is certain 

what documents and witnesses plaintiff plans to produce and whether or 

not it will be necessary to produce evidence on all the issues now pending 

in the motion to dismiss. Defendants are not inclined to lengthen unnecessarily 

bhe trial of this case if it can be avoided. Unless these issues are 

resolved now, however, they will have to be resolved at trial and will 

significantly lengthen the trial.

Therefore, defendants request the Court to (I) enter on its own motion 

the proposed order filed as Accachmenc C; or, in Che alternative, (2) schedule

0 0 1 2 4



I

a precrial conference immediately, so that these issues may be resolved.

Respectfully submitted,

PAUL, HASTINGS, JANOPSKY & WALKER

By:
R. Laurence Ashe

.P; ’- . P

J2=U J .: r
Lloyd Sutt« 
Suite 1100

---- ---- ---— -----
)

230 Peachtree Street, N.W. 
Atlanta, Georgia 30303

FARRIS, WARFIELD & KANADAY

Thomas P. Kanaday, Jr.

r
a

CL

by: (\cfj\ch(L f). C ( h h ^
Cornelia A. Clark 
17th Floor
Third National Bank Building 
Nashville, Tennessee 37219

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been 

sent to Richard H. Dinkins, Esquire, Williams & Dinkins, 203 Second Avenue 

North, Nashville, Tennessee 37201, this the gay of December, 1982.

0 0 1 2 5



Attachment A DEC 2 ROT

IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF TENNESSEE;*(£. ■ 

NASHVILLE DIVISION

MRS. GWENDOLYN E. JONES, )
Plaintiff )

VS. ) CIVIL ACTION NO. 82-3572
THE CONTINENTAL CORPORATION* ) JUDGE MORTON
ET AL.,

)
Defendants

)

AGREED PRE-TRIAL ORDER

I. Jurisdiction:

The jurisdiction in this case is predicated on 28 U.S.C., 
Sections 1343(3) and (4), 28 U.S.C., Sections 2201 and 2202 and 
42 U.S.C., Sections 1981 and 2000e.
II. Pleadings :

The pleadings are amended to comply with this Pre-Trial
Order.

HI. Plaintiff's Theory Of- The Case:

Plaintiff, a black woman, complains of racial discrimination 
in employment opportunities by defendants, Continental Corporation 
and/or Continental Insurance Company, and Bud Meulemans and R. R. 

Barsanti. Plaintiff was initially employed by defendants on or 
about 5 May 1977 as a Rate and Code Clerk and, until 23 May 1980 

received only three increases in pay; as a result of which, plain-

o o i ^ e



!

tiff filed a Charge of Discrimination with the Equal Employment 
Opportunity Commission, which resulted in a negotiated settle- 

meat agreement with the Continental Corporation whereby plaintiff 

would receive a $1,000.00 increase in pay and agreement on the 
part of said Corporation that it would not retaliate against the 
plaintiff. Thereafter, about July of 1981, the plaintiff was 

passed over for a position of Supervising Underwriter and said 
position was given to a white employee who was transferred from 
California, even though plaintiff was equally or better qualified 

than said transferred person. In addition, plaintiff complains 
of being denied opportunities for training which would have facili
tated her rise through the Corporation.

Plaintiff sues for declaratory, injunctive and compensatory 
relief from the acts of defendants, including promotion to the 

highest position which she could have achieved but for the denial 
of training and promotional opportunities, with accompanying back 
pay or, alternatively, front pay until any of said positions become 
available, an injunction against further retaliation or discrimi
natory treatment, damages, costs, counsel fees and whatever other 
relief is deemed appropriate by the Court.
IV' defendants * Theory Of The Case;

-2- 00127



V- issues To Be Submitted To The Court:

1. Whether the defendants, or any of them, have been 
engaged in unlawful employment practices affecting the plaintiff.

2. If so, the'relief to which plaintiff is entitled.
VI- Exhibits:

All exhibits will be shown to opposing counsel five days 
before trial.

• Witnesses:

The names of all witnesses will be exchanged between counsel 
ten days before trial.

“United states district judge

-3- 00128



approved f or e n t r y

aOYD'STJTTE-R--- ~ — —

m r n T 7  kS M d a y T J r —
Attorneys for Defendants

CERTIFICATE
The undersigned certifies that copy of the foregoing 

Agreed Pre-Trial Order was mailed to Lloyd Sutter, Esquire, 
Paul, Hastings, Janofsky & Walker, 230 Peachtree Street, N.W., 
Suite 1100, Atlanta, Georgia 30303 and to Thomas P. Kanaday, 
Jr., Esquire, and Cornelia A. Clark, Esquire, Farris, Warfield 
& Kanaday, 17th Floor, Third National Bank Building, Nashville 
Tennessee 37219, Attorneys for Defendants, this th e  J j ^ d a y  of 
tkcember, 1982.

-4-
00129



c

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION TV'

MRS, GWENDOLYN E. JONES,

Plaintiff

v. Civil Action No. 82-3572

THE CONTINENTAL INSURANCE 
COMPANY, et al.,

Judge Morton

Defendants.

AGREED PRETRIAL ORDER

I. Jurisdiction:

The jurisdiction in this case is predicated on 28 U.S.C., Sections 

1343(3) and (4), 28 U.S.C., Sections 2201 and 2202 and 42 U.S.C., Sections 

1981 and 2000e.

Defendants1 have pending motions to dismiss (once supplemented 

and twice renewed) raising jurisdictional issues which the Court has 

indicated it will rule upon at the conclusion of discovery. See Order 

entered September 16, 1982. Defendants concede sufficiency of service as 

to The Continental Insurance Company and Bud Meulemans; they put plaintiff 

to her proof of sufficiency of service on The Continental Corporation 

and R.R. Barsanti.

Defendants jurisdictional arguments, heretofore briefed, are summarized 

as follows:

A. This Court lacks in personam jurisdiction over defendants The 

Continental Corporation and R.R. Barsanti.

B, This Court lacks subject matter jurisdiction over the individual

ATTACHMENT B
00130



)

defendants (Messrs. Barsanti and Meulemans), over the parent company 

(The Continental Corporation), over the issues arising out of the 1980 

EEOC charge resolved by negotiated settlement agreement, over "sex" 

discrimination claims under 42 U.S.C. §1981, over "damage" claims under 

Title VII, and over any claims arising out of personnel actions involving 

plaintiff which occurred prior to the applicable (and different) limitations 

periods for Title VII and § 1981 suits.

C. On November 12, 1982, plaintiff served her request for extension 

of time to respond to defendants’ renewed motion to dismiss, following 

plaintiff's reservice of her twice amended complaint. Plaintiff has never 

filed any opposition or request for extension of time to respond to 

defendants' second renewed motion to dismiss.

D. From a review of what plaintiff has filed in opposition to 

defendants' motion to dismiss, the record reflects no evidence having 

been offered by plaintiff sufficient to create a genuine issue as to any 

material fact with respect to defendants' contentions on the parent- 

subsidiary, individual defendant, and/or 1980 EEOC charge "negotiated 

settlement agreement" questions. As to the legal issues, i.e., the 

unapplicability of 42 U.S.C. §1981 to sex discrimination claims, the 

unavailability of "damages" as a Title VII remedy, and the appropriateness 

of the respective actionability limitations dates under §1981 and Title 

VII, the Court can rule as a matter of law. See, e.g., Memorandum Order 

entered October 18, 1977, in Kidd (nee Jones) v. Travelers Ins. Co.

(copy attached).

Accordingly, this Court rules as follows on defendants' motion to 

dismiss:

c

00131



)

1. Though the parent company of The Continental In-surance Company, 

defendant The Continental Corporation is not and never has been plaintiff's 

"employer" within the meaning of either §1981 or Title VII; the Court 

lacks subject matter jurisdiction over the parent; and it is, therefore, 

dismissed as a party defendant.

2. The individual defendants, Messrs. Barsanti and Meulemans, are 

not "employers" within the meaning of §1981 and Title VII; the Court 

lacks subject matter jurisdiction over them; and they are, therefore, 

dismissed as parties defendant. (The question of whether any actions 

or omissions by either of them may be attributable to defendant The 

Continental Insurance Company will be addressed and, if necessary, 

decided at trial).

3. In light of this Court’s rulings in paragraphs 1 and 2, above, 

the issue of sufficiency of service as to defendants The Continental 

Corporation and R.R. Barsanti are moot.

4. It is undisputed that plaintiff entered into a "negotiated 

settlement agreement" approved by EEOC in July 1980, resolving her 

June 1980 EEOC charge; no evidence has been submitted to controvert

the fact that the agreement resulted in disposition of all claims raised 

in that EEOC charge; the Court lacks subject matter jurisdiction over 

all claims which were (or could have been) raised in that charge; such 

claims .are, therefore, dismissed without prejudice to plaintiff attempting 

to prove at trial that during the relevant time frame set out in paragraph 

6 below defendant The Continental Insurance Company or ah agent thereof 

engaged in "retaliation" against plaintiff in violation of the negotiated 

settlement agreement's terras and Section 704(a)of Title VII.

-3-
00132



*

5. As a matter of law, this Court holds that it lacks subject matter 

jurisdiction under §1981 with respect to plaintiff's sex discrimination 

claims and under Title VII with respect to any remedy-.other than equitable 

restitution.

6. For purposes of this litgiation, the relevant time periods during 

which plaintiff may assert and attempt to prove an actionable claim are 

as follow:

A. For §1981 race claims, June 23, 1981; and

B. For Title race or sex claims August 18, 1981.

II. Pleadings:

Plaintiff has filed a complaint which was twice amended. Defendants 

have filed a motion to dismiss which, in response to plaintiff's second 

amendment and attempted reservice, was twice .amended.

Defendant The Continental Insurance Company should file and serve 

on or before December 15, 1982, its Answer to plaintiff's complaint with 

respect to all claims and allegations not otherwise disposed of by this 

Court's rulings on defendants', motion to dismiss.

Thereafter, the pleadings will be considered amended to comply 

with this Pretrial Order.

III. Plaintiff's Theory Of The Case:

Plaintiff, a black woman, complains of racial discrimination in 

employment opportunities by defendants, Continental Corporation and/or 

Continental Insurance Company, and Bud Meulemans and R.R. Barsanti.

Plaintiff was initially employed by defendants on or about 5 May 1977 

as a Rate and Code Clerk and, until 23 May 1980 received only three in

creases in pay; as a result of which, plaintiff filed a Charge of Dis-

00133
-4-



crimination with the Equal Employment Opportunity Commission, which resulted 

in a negotiated settlement agreement with the Continental Corporation 

whereby plaintiff would receive a $1,000.00 increase in pay and agreement 

on the part of said Corporation that it would not retaliate against the 

plaintiff. Thereafter, about July of 1981, the plaintiff was passed 

over for a position of Supervising Underwriter and said positionwas given 

to a white employee who was transferred from California, even though 

plaintiff was equally or better qualified than said transferred person.

In addition, plaintiff complains of being denied opportunities for training 

which would have facilitated her rise through the Corporation.

Plaintiff sues for declaratory, injunctive and compensatory relief 

from the acts of defendants, including promotion to the highest position 

which she could have achieved but for the denial of training and promotional 

opportunities, with accompanying back pay or, alternatively, front pay 

until any of said positions become available, an injunction against further 

retaliation or discriminatory treatment, damages, costs, counsel fees 

and whatever other relief is deemed appropriate by the Court.

(Except as admitted and stipulated in paragraph one of their theory 

of the case set forth below and any admissions made in the Answer to be 

filed in response to plaintiff's Complaint, defendants otherwise disagree 

with plaintiff's theory of the case.)

IV. Defendants' Theory of the Case:

Defendants admit and stipulate that plaintiff is a black woman and 

Chat on or about May 5, 1977, she was initially employed by The Continental 

Insurance Company as a Rate and Code Clerk. Defendants further admit 

and stipulate that plaintiff filed with EEOC a charge of discrimination

00134
-5-



c

against The Continental. Insurance Company with respect to the timing of 

her 1980 merit increase, that that charge was resolved by "negotiated 

settlement agreement" entered into by and on behalf of- her employer (The 

Continental Insurance Company) and approved by EEOC in July 1980 (pursuant 

to which plaintiff, together with other male and white employees whose 

pay increase had not been timely granted, were given merit increases), and 

that her employer agreed not to retaliate against her.

Defendants deny that plaintiff is an employee of The Continental 

Corporation or of either individual defendant (Messrs. Meulemans or 

Barsanti, district and regional managers, respectively, of The Continental 

Insurance Company).

Defendants deny that The Continental Insurance Company, by or through 

any supervisor or agent thereof, has ever discriminated against plaintiff 

on account of either her race or her sex with respect to any employment 

opportunities, particularly but not limited to actions or omissions in

volving her performance appraisals, compensation, promotion, or training 

opportunities.

Defendants contend (and will show at trial) that Carol Brown re

signed from The Continental Insurance Company's San Francisco District 

Office to return for personal reasons and at her own expense to the Nashville 

area and, because of her prior experience and performance in the Underwriter 

Supervisor job classification, she was reemployed in that capacity by 

Nashville Branch office.

Defendants contend (and will show at trial) that plaintiff has progressed 

in terms of advancement and compensation consistent with comparative progress 

similarly situated whites and men.

00135
-6-



Defendants contend (and will show at trial) that plaintiff was not 

discriminated against in training opportunities in comparison with 

similarly situated whites and men. She wa'- not assigned to the "entry 

level" training program at Glen Falls (filled by a new hire, Mr. Sullivan) 

because at the time it became available she had already been trained 

"on-the-job" beyond the compentency level of a graduate of the entry 

level program. The cancellation of her assignment to the Glen Falls 

"advanced" underwriter training program was not discriminatory: the

program was cancelled for all offices and has not been held again to date 

as a result of cost-reduction requirements necessitated by the economic 

recession.

Plaintiff has neither been singled out for criticism nor been the 

victim of any retaliation: her performance appraisals.and her "quality

control" critiques are comparable with other similarly situated employees.

On the basis of her employment history and treatment compared to 

similarly situated employees, plaintiff has suffered no adverse treatment 

or impact; and, accordingly, she is entitled to no equitable relief and 

certainly no "damages".

Based upon the manner in which this case has been prosecuted, further

more, defendants believe they, not plaintiff, should be entitled to 

attorneys' fees and defense costs.

V. Issues To Be Submitted To The Court:

Defendants disagree with plaintiff's vague and conclusory characterization 

of the issues to be tried.

Subject to disposition of issues already raised in their motion to 

dismiss, the issues to be tried are as follows:

0 0 1 3 6

-7-



1. During the relevant time period, was plaintiff the victim of 

discrimination on the basis of her race or sex:

A. In compensation;

B. In advancement;

C. In training opportunities;

D. In "treatment," i.e., retaliation?

2. If not, defendants are entitled to judgment in their favor; if 

so, is plaintiff entitled to remedy in the nature of:

A. Declaratory or injunctive relief;

B. Equitable restitution, i.e., back or front pay; and,

if so, on the basis of what evidence and in what amount;

C. Compensatory damages (§ 1981 race claim only; and, if 

so, on the basis of what evidence and in what amount);

D. Punitive damages (§ 1981 race claim only; and, if so, 

on the basis of what evidence and in what amount)?

3. What award in terms of attorneys' fees and taxable costs, if any, 

should be made against plaintiff and for defendants in light of plaintiff's 

failure to comply with the Court's order entered in response to defendants' 

notion to compel discovery; in light of plaintiff's requirement that 

defendants produce evidence on subject matter as to which plaintiff denied 

certain of defendants' requests for admission; and in light of the Court's 

disposition of defendants' motion to dismiss?

Exhibits:

Defendants have moved to compel production during discovery of any 

exhibits on which plaintiff intends to rely. Notwithstanding a court order 

t0 produce same, defendants have not received such documents. Plaintiff,

-8-
0013?



as a sanction for noncompliance with this Court's order on defendants’ 

motion to compel discovery, may not introduce into evidence any document 

not identified to defendants as an Exhibit in answer to defendants' in

terrogatories or in response to their request for production and received 

by defense counsel on or before December 15, 1982.

VII. Witnesses:

The Court also ordered plaintiff to identify, in accordance with 

defendants' motion to compel, all witnesses she intended to call, 

particularly but not limited to any expert witnesses. Plaintiff, as a 

sanction for noncompliance with this Court's order on defendants' motion 

to compel discovery, may not call as a witness:

A. Any expert witness, medical or non-medical, or any other witness 

whose function otherwise would be to testify as to his or her "opinion" 

as opposed to otherwise competent and admissible testimony relevant and 

material to plaintiff's claims;

B. Any witness as to whom plaintiff has not filed and served upon 

defense counsel on or before December 15, 1982, answers to defendants' 

interrogatories.

United States District Judge
Agreed upon and approved 
for entry in accordance 
with Local Rule 11(a).

WILLIAMS & DINKINS

Richard H. Dinkins 
Attorney for Plaintiff
PAUL, HASTINGS, JANOFSKY & WALKER

-CU-h-sUC^-L G -lL £  ■ l \ j /  f fL W. IV  lU-A-C c-y~
R. Lawrence Ashe, Jr"! ''7

0013s
-9-



c

Thomas P. Kanaday, Jr

Ci . QjJcmt
Cornelia A. Clark 

Attorneys for Defendants

LGzdd& 1

-10- 0 0 1 3 9



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE MIDDLE DISTRICT OF TENNESSEE-.

NASHVILLE DIVISION L '-

' “ ■ H  1382
MRS. GWENDOLYN E. JONES. )

Plaintiff ) -
)

v. ) Civil Action No. 82-3572
)

THE CONTINENTAL INSURANCE ) Judge Morton
COMPANY, ■ )

)
Defendant. )

AGREED PRETRIAL ORDER

I. Jurisdiction:

The jurisdiction in this case is predicated on 28 U.S.C., Sections 

1343(3) and (4), 28 U.S.C., Sections 2201 and 2202 and 42 U.S.C., Sections 

1981 and 2000e.

The parties have agreed to the Court's disposition of all issues 

raised in defendants' pending motion to dismiss as follow:

1. Though the parent company of The Continental Insurance Company, 

defendant The Continental Corporation is not and never has been plaintiff's 

"employer" within the meaning of either §1981 or Title VII; the Court

lacks subject matter jurisdiction over the parent; and it is, therefore, 

dismissed as a party defendant.

2. The individual defendants, Messrs. Barsanti and Meulemans, are 

tot "employers" within the meaning of §1981 and Title VII; the Court 

lacks subject matter jurisdiction over them; and they are, therefore, 

dismissed as parties defendant. (Any actions or omissions within the 

scope of their authority by either of them which are found to have dis

criminated against plaintiff on account of her race or sex may be

ATTACHMENT C 0 0 1 4 0



attributable to defendant The Continental Insurance Company.)

3. In light of this Court's rulings in paragraphs 1 and 2, above, 

the issue of sufficiency of service as to defendants The Continental 

Corporation and R.R. Barsanti are moot.

4. It is undisputed that plaintiff entered into a "negotiated 

settlement agreement" approved by EEOC in July 1980, resolving her 

June 1980 EEOC charge; no evidence has been submitted to controvert

the fact that the agreement resulted in disposition of all claims raised 

in that EEOC charge; the Court lacks subject matter jurisdiction over 

all claims which were (or could have been) raised in that charge; such 

claims are, therefore, dismissed without prejudice to plaintiff attempting 

to prove at trial that during the relevant time frame set out in paragraph 

6 below defendant The Continental Insurance Company or an agent thereof 

engaged in "retaliation" against plaintiff in violation of the negotiated 

settlement agreement's terms and Section 704(a) of Title VII.

5. As a matter of law, this Court holds that it lacks subject matter 

jurisdiction under §1981 with respect to plaintiff's sex discrimination 

claims and under Title VII with respect to any remedy other than those 

allowed under Section 706(g), 42 U.S.C. §2000e-5(g).

6. For purposes of this litigation, the relevant time periods during 

which plaintiff may assert and attempt to prove an actionable claim are

as follow:

A. For §1981 race claims, June 23, 1981; and

B. For Title VII race or sex claims August 18, 1981.

Pleadings:

The Pleadings are amended to comply with this Pretrial Order.

0 0 1 4 1

-2-



Ill. Plaintiff's Theory Of The Case:

Plaintiff, a black woman, complains of racial discrimination in 

employment opportunities by defendant, The Continental Insurance Company 

Plaintiff was initially employed by defendant on or about 5 May L977 as 

a Rate and Code Clerk and, until 23 May L980 received only three in

creases in pay; as a result of which, plaintiff filed a Charge of Dis

crimination with the Equal Employment Opportunity Commission, which resulted 

in a negotiated settlement agreement with the Continental Corporation 

whereby plaintiff would receive a $1,000.00 increase in pay and agreement 

on the part of said Corporation that it would not retaliate against the 

plaintiff. Thereafter, about July of 1981, the plaintiff was passed 

over for a position of Supervising Underwriter and said position was given 

to a white employee who was transferred from California, even though 

plaintiff was equally or better qualified than said transferred person.

In addition, plaintiff complains of being denied opportunities for training 

which would have facilitated her rise through the company.

Plaintiff sues for declaratory, injunctive and compensatory relief- 

from the acts of defendant, including promotion to the highest position 

which she could have achieved but for the denial of training and promotional 

opportunities, with accompanying back pay or, alternatively, front pay 

until any of said positions become available, an injunction against further 

retaliation or discriminatory treatment, damages, costs, counsel fees 

and whatever other relief is deemed appropriate by the Court.

(Except as admitted and stipulated in paragraph one of its theory 

of the case set forth below, defendant otherwise disagrees

- 3-

0 0 1 4 2



/
/

with plaintiff's theory of the case.)

IV. Defendant's Theory Of The Case:

Defendant admits and stipulates that plaintiff i-s a black woman and 

that on or about May 5, 1977, she was initially employed by The Continental 

Insurance Company as a Rate and Code Clerk. Defendant further admits 

and stipulates that plaintiff filed with EEOC a charge of discrimination 

against The Continental Insurance Company with respect to the timing of 

her 1980 merit increase, that that charge was resolved by "negotiated 

settlement agreement" entered into by and on behalf of her employer (The 

Continental Insurance Company) and approved by EEOC in July 1980 (pursuant 

to which plaintiff, together with other male and white employees whose 

pay increase had not been timely granted, were given merit increases), and 

that her employer agreed not to retaliate against her.

Defendant denies that The Continental Insurance Company, by or through 

any supervisor or agent thereof, has ever discriminated against plaintifr 

on account of either her race or her sex with respect to any employment 

opportunities, particularly but not limited to actions or omissions in

volving her performance appraisals, compensation, promotion, or training 

opportunities.

Defendant contends (and will show at trial) that Carol Brown re

signed from The Continental Insurance Company's San Francisco District 

Office to return for personal reasons and at her own expense to the .\u.siiv ille 

area and, because of her prior experience and performance In the Underwriter 

Supervisor job classification, she was reemployed in that capacity by t..e 

Nashville Branch office.

Defendant contends (and will show at trial) that plaintiff has progressed

-4-
0 0 1 4 3



in terms of advancement and compensation consistent with comparative progress 

of similarly situated whites and men.

Defendant contends (and will show at trial) that plaintiff was not 

discriminated against in training opportunities in comparison with 

similarly situated whites and men. She was not assigned to the "entry 

level" training program at Glen Falls (filled by a new hire, Mr. Sullivan) 

because at the time it became available she had already been trained 

!,on-the-job" beyond the compentency level of a graduate of the entry 

level program. The cancellation of her assignment to the Glen Falls 

"advanced" underwriter training program was not discriminatory: the

program was cancelled for all offices and has not been held again to date 

as a result of cost-reduction requirements necessitated by the economic 

recession.

Plaintiff has neither been singled out for criticism nor been the 

victim of any retaliation: her performance appraisals and her "quality

control" critiques are comparable with other similarly situated employees.

On the basis of her employment history and treatment compared to 

similarly situated employees, plaintiff has suffered no adverse treatment 

or impact; and, accordingly, she is entitled to no equitable relief and 

certainly no "damages”.

Based upon the manner in which this case has been prosecuted, further

more, defendant believes it, not plaintiff, should be entitled to 

attorneys' fees and defense costs.

V• Issues To Be Submitted To The Court:

The issues to be tried by the Court are as follows:

1. During the relevant time period, was plaintiff the victim of

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discrimination on the basis of her race or sex:

A. In compensation;

B. In advancement;

C. In training opportunities;

D. In "treatment," i.e., retaliation?

2. If not, defendant is entitled to judgment in its favor; if

so, is plaintiff entitled to remedy in the nature of:

A. Declaratory or injunctive relief:

B. Equitable restitution, i.e., back or front pay; and,

if so, on the basis of what evidence and in what amount;

C. Compensatory damages (§ 1981 race claim only; and, if 

so, on the basis of what evidence and in what amount);

D. Punitive damages (§ 1981 race claim only; and, if so, 

on the basis of what evidence and in what amount)?

VI. Exhibits:

Plaintiff has agreed to produce on or before December 15, 1982, her 

exhibits to be offered at trial. Defendant has agreed to produce on or 

before December 20, 1982, its exhibits to be offered at trial. The fore

going agreements do not constitute a waiver by defendant of any objection 

it may choose to raise as to the admissibility of any exhibit offered 

by plaintiff as a result of proceedings with respect to defendant's motion 

to compel discovery and the Court's Order thereon entered on November 22, 

1982.

VII. Witnesses:

Plaintiff has agreed to produce on or before December 15, 1982, 

ber list of witnesses to be called at trial. Defendant has agreed to

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0014s



produce on or before December 20, 1982, its list of witnesses to be 

called at trial. The foregoing agreements do not constitute a waiver by 

defendant of any objection it may choose to raise as to the admissibility 

of any testimony offered by plaintiff as a result of proceedings with 

respect to defendant's motion to compel discovery and the Court's Order 

thereon entered on November 22, 1982.

Agreed upon and approved 
for entry in accordance 
with Local Rule 11(a).

WILLIAMS & DINKINS

Richard H. Dinkins 
Attorney for Plaintiff

PAUL, HASTINGS, JANOFSKY & WALKER

UNITED STATES DISTRICT JUDGE

R. Lawrence Ashe, Jr.

Lloyd Sutter

FARRIS, WARFIELD & KANADAY

(lotWjia (k ■ dJtoAK
Cornelia A. Clark

Attorneys for Defendants

00146



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December V, l'JH'i 
Hand Delivered

Richard 11. Dinkins, Inquire
Williams & Dinkins W •"
203 Second Avenue North jD-V i .• "• a
Nashville, Tennessee 37201 ■ . -t li poo

Re: 0. Jones v. The Continental Insurance Company

Dear Richard:

Enclosed for your execution are four copies of Che revised Agreed 
Pretrial Order which we have already executed pursuant to our conference 
this morning. Please execute them, retain one for your file and return 
the other three to Connie Clark: one for our file and two to be filed
with the Clerk.

We have unsuccessfully attempted to reach Mel Katsman by phone call 
!o his office and to the last number at which he was contacted in Tlorid 
yesterday. We will continue to attempt to reach him to ask whether he 
wi U authorize us to advise you that defendants will agree Co waive en
titlement to any attorneys' fees and costs attributable to their motion 
to dismiss in light of your agreement to stipulated disposition of all 
issues raised in that motion. As I told you this morning, Mel. had 
anticipated such a request being made and had earlier informed me that 
t ’-'as not so authorized without his permission.

Should we nevertheless agree to such a waiver, it would not run 
to the question of application by defendant for attorneys' fees and 
costs associated with the discovery issues, any decision with respect 
to which is premature until we have received plaintiff's exhibits and 
witness lists, answers to interrogatories and request for production 
°t documents still pending, and until we see whether the Stipulations 
erase our contentions as to piaiatiff's answers to defendant's request 
1 or admissions. Likewise, any such agreement will not waive defendant's 
ri;;i'C to make application after trial for attorneys’ fees and costs if 
it prevails.

Let us know if you have any problem with the Agreed Pretrial Order 
So that we can promptly advise Judge Morton that we need a pretrial

ATTACHMENT D 0 0 1 4 7



Richard 11. Dinkins, Esquire 
December 9, 1982 
Page 2

conference on che subject early next week.

With appreciation for your cooperation in this matter, I am,

Sincerely,

FARRIS, WARFIELD & KANADAY 

Cornelia A. Clark

CAC/kf
line.
cc: Lloyd Sutter

Mel Katzraan

P.S. After we had typed this letter and the Agreed Pretrial Order, Mel 
Katzman called us back. lie cold us that, while he understood why 
you would ask him to authorize us to waive any entitlement to 
attorneys' fees and costs associated with Che motion to dismiss, 
lie felt that the defendants had been put to tremendous expense 
and trouble to raise issues that we offered to resolve last August. 
Therefore, he reiterated that defendants would not waive entitle.-,:en 
to make application for such fees and defense costs, if necessary, 
at the appropriate time.

0 0 1 4 8



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

®S. GWENDOLYN E. JONES, 
Plaintiff,

vs.
THE CONTINENTAL CORPORATION, 
BCD MEULEMANS, NASHVILLE 
DISTRICT MANAGER, THE 
CONTINENTAL CORPORATION, and 
R. R. BARSANTX , REGIONAL 
MANAGER, THE CONTINENTAL 
CORPORATION,

D e fe n d a n ts .

. ) CIVIL ACTION NO 
Judge Morton

. 82-3572

DEFENDANTS' ANSWER TO 
PLAINTIFF'S SECOND AMENDED COMPLAINT

‘-!sKy&
~:ri*

>"aiker

Come now defendants, by and through their counsel of record, 
and f i l e  this their Answer to Plaintiff's Second Amended Complaint 
served October 3, 1982, pursuant to direction by the Court at the 
hearing held December 14, 1982, and subject to defendants' motion 
t° d ism iss originally filed August 13, 1982, supplemented 
September 17, 1982, and twice renewed on October 22, 1982 and 
November 9, 1982, as well as the Court's Order entered September 16, 
‘̂2 ("Motion to dismiss is reserved pending discovery").

FIRST DEFENSE

Plaintiff's complaint fails to state a claim upon which r e l i e f  

be granted. Rule 12(b)(6), Fed. R. Civ. P.

0 0 1 4 9



SECOND DEFENSE

Defendant, The Continental Corporation, is not plaintiff's 
"employer" within the meaning of either Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. §2000e, or the 1866 
Civil Rights Act, 42 U.S.C. §1981; rather it is the parent 
corporation of a subsidiary (The Continental Insurance Company) 
which is plaintiff's employer within the meaning of said Acts. 
This Court, therefore, lacks subject matter jurisdiction over 
said defendant, The Continental Insurance Company, Rule 12(b) (1), 
Fed. R. Civ. P.

THIRD DEFENSE

Defendants, Bud Meulemans and R. R. Barsanti, as individuals, 
are not plaintiff's "Employers" within the meaning of Title VII 
or §1981; and this Court, therefore, lacks subject matter juris
diction over either of them, Rule 12(b)(1), Fed. R. Civ. P.

FOURTH DEFENSE

Plaintiff has not sufficiently served with process either 
defendant, The Continental Corporation, or defendant, R. R. 
Barsanti; and this Court, therefore, lacks in personam juris
diction over either defendant, Rule 12(b)(2), Fed. R. Civ. P.

FIFTH DEFENSE

Plaintiff's claims predicated upon her 1980 EEOC charge of 
^Ployment discrimination were settled, with approval of EEOC,

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on July 14, 1980; end all such claims that were (or could have 
been) raised pursuant to said EEOC charge are barred by principles 
of accord and satisfaction, payment, waiver and estoppel. This 
Court, therefore, lacks subject matter jurisdiction over any 
such claims, Rule 12(b)(1), Fed. R. Civ. P.

SIXTH DEFENSE

Plaintiff's claims based upon personnel actions or omissions 
which occurred prior to August 18, 1981, are barred by the Title 
VII statute of limitations, 42 U.S.C. §2000e-5(f)(1), and which 
occurred prior to June 23, 1981, are barred by Tennessee Code 
Annotated §28-3-104 which controls claims asserted under 42 U.S.C. 
§1981. This Court, therefore, lacks subject matter jurisdiction 
over any claim antedating said dates, Rule 12(b) (1).

SEVENTH DEFENSE

This Court lacks subject matter jurisdiction under 42 U.S.C. 
§1981 over plaintiff's claims of sex discrimination, Rule 12(b) (1) , 
ped. R .  civ. P .

EIGHTH DEFENSE

This Court lacks subject matter jurisdiction under Title VII 
(specifically, 42 U.S.C. §2000e-5 (g) ) to grant relief requested
bY Plaintiff in the nature of damages, Rule 12(b)(1), Fed. R.
Civ. p.

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0 0 1 5 1



NINTH DEFENSE

A d d r e s s i n g  t h e  a l l e g a t i o n s  c o n t a i n e d  i n  p a r a g r a p h s  1-11 
of p l a i n t i f f ' s  c o m p l a i n t  f i l e d  June 23, 1982 (a n d  am en d ed  

O cto b er 3, 1982, t o  a d d  a s  a  nam ed d e f e n d a n t ,  The Continental 
I n s u r a n c e  C o m p a n y , d e f e n d a n t s  s t a t e  a s  t o  e a c h  p a r a g r a p h  a s  

f o l l o w s :

1. Admitted, subject to defendants' pending motion to 
dismiss and the First through Eighth Defenses asserted above.

2. Admitted, subject to defendants' pending motion to 
dismiss and the First through Eighth Defenses asserted above.

3. Defendants admit that plaintiff, Mrs. Gwendolyn E.
Jones (nee Kidd), is a black female citizen of the United States 
and the State of Tennessee. Otherwise, all allegations con
tained in paragraph 3 of plaintiff's complaint are denied.

4. Except as to allegations with respect to the state of 
incorporation and principal place of business of defendant, The 
Continental Corporation, the allegations contained in paragraph 

4 of plaintiff's complaint are denied.
5. Defendant, The Continental Insurance Company, admits 

that on or about May 5, 1977, it employed plaintiff as a Rate 
and Code Clerk in its Nashville District office. Otherwise, 
all allegations as contained in paragraph 5 of plaintiff's 

complaint are denied.
6. Denied.
7. Defendants admit that on or about June 3, 1980, plaintiff 

filed a charge of discrimination with EEOC (Exhibit F to defendant s

0 0 1 5 2-4-



motion to dismiss filed August 13, 1982), that said charge was 
settled pursuant to a "negotiated settlement agreement" the 
terms of which are reflected in Exhibit G to defendants' motion 
to dismiss filed August 13, 1982; otherwise, defendants deny all 
allegations made in paragraph 7 of plaintiff's complaint,

8. Denied.
9. Except as to the fact of filing by plaintiff on or

about February 13, 1982, of a charge of employment discrimination, 
defendants are without knowledge sufficient to admit or deny the 
allegations contained in paragraph 9 of plaintiff's complaint, as 
amended.
10. Denied.
11. Denied.
12. To the extent not otherwise admitted in their responses 

to paragraphs 1 through 11 of plaintiff's complaint, as amended, 
each and every allegation contained therein is hereby expressly 
denied.

WHEREFORE, defendants respectfully pray that this Court dismiss 
plaintiff's complaint, denying her any relief sought and awarding 
to defendants their costs of defense, including reasonable 
attorneys' fees, and such other relief as the Court deems just 
and appropriate.

PAUL, HASTINGS, JANOFSKY & WALKER

230 Peachtree Street, N.W. 
Atlanta, Georgia 30303 
(404) 588-9900

0 0 1 5 3

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FARRIS, WARFIELD & KANADAY

Seventeenth Floor 
Third National Bank Building 
Nashville, Tennessee 37219 
(615) 244-5200

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing 
Defendants' Answer to Plaintiff's Second Complaint has been 
delivered to Avon N. Williams, Jr., 203 Second Avenue, North, 
Nashville, Tennessee, 37201, this the day of December, 1982 „

d / r t v f c ________

0 0 1 5 4



IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE

Nashville Division

IN THE MATTER OF:

GWENDOLYN E. JOHNS, Plf., )
)

vs. ) No. 82-3572
)

CONTINENTAL CORPORATION, ETAL, )
Defendants )

December 14, ±982 
Nash.vj.ile, Tennessee

MOTION

R E P O R T E D  B Y :

Virginia K. Weils 
Official court Reporter 
A835 US Court House 

-- fcs-tou 1 1 a TN 37 203_____
V IR G I N I A  K. WELLS  

C e r t i f i e d  Sh o r t h a n d  R e p o r t e r
NASHVILLE, TENNESSEE

i

P R E P A R E D  F O R :

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IN THE UNITED STATES DISTRICT COURT FOR THE
KIDDLE DISTRICT OF TENNESSEE 

Nashville Division

IN THE MATTER OF:

GWENDOLYN E-. JOHNS, Plf., )
)

vs, } NO. 8 2--‘F T
)

CONTINENTAL CORPORATION, ET AL , )
De f. )

December 1 *, 126 2
Nashvi11e, Tennessee 
12:00 o'clock Noon

Honorable L. Clure Morton, District Judge

the Plaintiff: Messrs. Dinkins and Perkins.

For the Defendants: Messrs. Kanacay ana Sutter.

The above-styled cause c5me on for hearing in 

United Ftates District Court for the Middle jistrict c-i 

Tennessee, Nashville, Tennessee, before the Honorable 

L. Clure Morton, District Judge, on December 14, 1982 at

12:00 o'clock Noon, when the following proceedings were had, 

to-wit:

BEFORE: The

APPEARANCES : 
For

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PROCEEDINGS

(The Case was called by the Clerk and the parties announced 
ready.)

THE COURT: Whose motion is it? Who wants to

talk?

MR. DINKINS: If Your Honor please, I ha^e

a motion to enter and brief and pre-trial order.

Back on the first of December I tendered to 

Defendants in the case a proposed pre-trial order, and about 

a week or so later, at a time in which we were involved if. 

the hearing before Judge Wiseman, furnished me with an 

alternative draft of pre-trial order.

The next day we met, and in talking with them, 

regarding the pre-trial order, as the 'Court nay be aware, 

they have never answered, possibly because they have some 

pending motions to dismiss upon which the Court has reserved 

ruling pending --

THE COURT: You mean this cere is reedy for trial:

Is this case ready for trial? We've put down a pre-triel 

order and they haven't answered?

MR. DINK Well, thev raised rrc

THE COURT: Have they answered?

MR. DINKINS : No, sir, they have not.

THE COURT: Why haven’t they?

MR. SUTTER: Motion to dismiss is pendi
0 0 1 5 7

Your Honor.



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THE COURT When I reserved it, I overruled it. 

Now, look, when I reserved it, I reserved~TtT7 You”"flle ar 

answer or get out of Court, one or the other. I ’m not going 

to fool around with your motion, period- When I reserved it, 

I reserved it. File an answer and let’s get on with this 

thing.

MR. SUTTER: Your Honor, your order on the 16th 

of September and your order orally on the 5th of October at 

the hearing said you would reserve it pending completion of 

discovery. And one of our problems here is th*t we hr-v« net 

received discovery in compliance with year order to corr.oel, 

and that's the part and parcel of preparing the thine in 

the pre-trial order to be ready for trial.

THE COURT: Have you not discovered?

MR. DINKINS: If Ycur Honor please, that is no*-

entirely true, if Your Honor please.

THE COURT: Have you giver, them or. their d i soever*.

Yes or no.

MR. DINKINS: I have, I believe that I have. I

broke a rule and let Mrs. Clark look at my entire fil!~, if 

Your Honor please, and I have never done that before in a 

case. But I did partly out of fear of Your Honor, but r-,e 

matters that they complain of, if Your Honor please, pertaining 

to discovery, I think are more technical than anything else.

THE COURT: Which means you haven’t complied.

0015s



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MR. DINKINS:

For instance, one of their interrogatories they ask the nair.es 

of all witnesses, which we have, and one day after I had 

been up in the Court of Appeals, Mrs. Clark called and asked 

and I read her off the names of witnesses, and told her that 

I would give her a list of those when I could. And then 

they come in and say you haven't complied because you haven't 

told us who your witnesses are.

THE COURT: When is this case set for trial.-

MR. DICKINS: On the third of January, if vsur

Honor please.

THE COURT: -In Cookeville?

MR. DINKINS: Yes, sir.

THE COURT Are you going to comply or nrt7

MR. DINKINS: Well, if Your Honor please, I, i

order to establish that I did supply them with this -.cm. ’.nr 

with an up-dated response.

THE COURT: Have they given you everyth!,.c .

MR. SUTTER: It may be in the mail, we he v-::. t

received it. Your Honor.

MR. DINKINS: Mr. Perkins hand-carried it up

there, if Your Honor please, up to Mr. --

MR, SUTTER: I flew in this morning, and I

haven't seen it. I'm not saying he didn't.

In our proposed pre-trial order in response tc nis,• .

I have, if Your Honor please.

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Your Honor, we offered on the 15th---we proposed motions for 

resolution. In the course of the pre-trial order we offered 

if he agreed to the pre-trial order to answer on the 

15th. We gave him until the 15th to provide us with the 

names of the witnesses he was going to use. We asked him 

by the 15th to give us the answers to interrogatories as 

to exhibits he was going to use, and we agreed to respond 

within five days as to each one. He has never supplied us 

with the indication whether he is going to use an expert or 

answered our interrogatory, which is crucial.

THE COURT: If he hasn 't told you he'd gir.g to

use an expert, he's not going to use one, I guarantee.

MR. DINKINS: Is YOur Honor please, they took the

depositions of every physician who has'treated the plaintiff 

in this case. I told them then we wouldn’t have anv experts 

other tnan those. And I have not determined which of those 

we would use.

Now, and then in the answers --

THE COURT: Mr. Dinkins, are you pulling a

Williams on me? Don't you ever do anything? Don’t you ever 

do anything like you're supposed to, do it in writing and hand 

it over, and what have you? Everytime you've told mr 

anything, I was in the Court of Appeals, I was somewhere else.

MR. DINKINS: If Y0ur Honor please, when I

responded initially to the interrogatory, I pointed out at

00160



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that time we had not made the determination as to exoerts, 

that that information would be pm/ided.

Now, as I understand the rules, responses to 

interrogatories are complete as of the time that they are 

answered, and things change later on, you are under a duty to 

amend your answer, and that's what I have done, and provided 

them with this morning.

If Your Honor please, I don't like to curry fa-’cr 

with the Court, but I know Your Honor's attitude regarding 

preliminary matters like this, and I'm not trying to obstruct 

or keep them from anything they are entitled to and I b d  leva 

that I have complied with that.

MR. SUTTER: Your Honor, on the third of

September we asked him under Rule 26(b)(4) for the expert 

witness interrogatories straight out of the room. And 

his response was at the present time plaintiff has- neb 

engaged any expert, and will provide said inform? tier upon 

receipt of the same.

We moved to compel answer and your order--’.* u-ur 

Honor entered an order on the 22nd of November that said 

within ten days he produce and respond. And if he responded 

today-I am not saying he didn't, but as late as our meeting 

on the 9th he gave us the same response, and in our proposed 

pre-trial we thought we had agreed upon, we reserved, s i  I

told him forthrightly we'd accept the nine verbally car'5
00161



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witnesses as substantial compliance. We didn't know amor.cs*- 

500 pieces of paper plus additional discovery he is engaging 

in right now on short notice which pieces of paper he was 

going to deal with. Wanted it down, give him until thu 

fifteenth, but I was going to object to his using an expert. 

It was impossible for me to comply with the local rules, 

much less pick one--

THE COURT: what kird of expert has he got!

MR. SUTTER : I don't know unless he- fells a.a r
now.

THE COURT; Going to use a doctor!

MR. SUTTER; I asked for me d i c a 1 - -

THE COURT; He has to tel1 you the name of fix
witness . He doesn't have to comply with the expert rule
doctors, but he has to give you the name of the witness.

MR. SUTTER: Well, as of this point, and as o:

mere than ten days beyond Your Honor's order, he had not 

even declared who the person was. His comment to me 

was I want to use some depositions, read some information 

out of them.

I said the reason I asked the interrogatory, the 

reason I moved to compel was to know the nature of what you 

were dealing with, the type of expert, whether it was medical 

or non-medical, so that I could depose that individual as to

what that individual was going to testify to and select ore
00162

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o f my own.

down an order? Did I put down an order?

MR. DINKINS: I don’t recall that. I'm rot

saying —

THE COURT: Did you comply with the order?

MR. DINKINS: I believe I did, if Your Honor

please.

THE COURT: If you didn't, I'm going to rule

against you. I'll guarantee.

MR. DINKINS: May not have been on the record,

if Your Honor ©lease.

THE COURT: Well, you do everything cr; the record.

MR. DINKINS: I asked Mrs. Clark to state an an

officer of the Court if I did hot allow her to look through 

my files.

THE COURT: I don't care about looking through

your file. Did you comply with my order?

MR. DINKINS: I did, but it was not on the record.

THE COURT: How did you comply with it?

MR. DINKINS: I communicated with her, if Your

Honor please.

THE COURT: What did you tell her?

MR. DINKINS: I thought I had her cooperation.

THE COURT: What did you tell her? Did you fel’
«» „

her who your expert, was? 00163

THE COURT: Did I put down an order? Did I put



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a determination.

TEE COURT: Then you didn't comply with the

Court’s order.

MR. DINKINS: Well, I ’m not through, but if

we did it would not be anyone other than the peoole she 

had already.

THE COURT: You didn't tell her which one, did

you? You-didn't tell her which one,you didn't identify--

MR. DINKINS: No, if Your Honor please, and I

haven't made that determination yet.

THE COURT Yes, you have. You have, you've made 

it, you're not going to put any on.

MR. DINKINS: Well, if Your Honor please, I

just received the transcript back on those recently, 

if Your Honor please.

THE COURT: If you didn't comply with n y -t

order, I ’m going to burn you. This is one tire I ’... yi: 

to burn you.

MR. DINKINS: Well, I think I have —

THE COURT: You just said you didn't.

MR. DINKINS: I haven't complied on the record.

THE COURT: Did you tell her which one the

experts you were going to be using?

Not in those words, no.

001<jo4

MR. DINKINS: I told her that we hadn't made

MR. DINKINS:



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THE COURT: What words?

not use any particular one.

THE COURT: What did my order say?

SUTTER: Plaintiff will respond anc produce

documents within ten days.

THE COURT: What documents? What was his

response? What was he responding to?

MR. SUTTER: He was complying with a motion to

compel on request to produce documents. He did produce corns 

documents.On interrogatory that asked him to list the 

exhibits he intended to rely on at the trial, we do not .have 

that yet- List the witnesses he intended to use at the trial, 

he-did give her nine. And I said as to those nine we will 

not give you any problem. And as to expert witnesses, to this 

day he has not identified one to me, and in the nreser.ee of 

Mrs. Clark when we discussed it, he did not identify one then.

We got the same answer, I haven't decided yet 

THE COURT: Did you tell them that?

MR. DINKINS: If Your Honor please—

THE COURT: Did you tell then-, that?

MR,. DINKINS: No, sir, what I told them was chat

if we used one, it would be one of the people that had already 

been deposed, and what they did testify to would be what 

they testified in the deposition. Nov;, I had asked both of them •

0016s

MR. DINKINS: I did not tell her we would or would

i;



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rules. You know that doesn't comply.

MR. DINKINS: Well, if Your Honor please, I have

provided that today. To the extent that there was not 

technical compliance, I would move to be excused.

THE COURT: No way, I won't excuse you. I've

done it too many times, Mr. Dinkins. I'm not going to do 

it this time. I've done it time after time after time for 

you and Mr. Williams. I won't do it. Young man, I 1 rr- going 

to nold nis leer to the fire. Whatever he hasn't dene,

I'll guarantee you I'll not let hir.v do up there on the 

third.

Now, then, I don’t care whether we have a pre

trial order or not. Do away with the pre-trial order in 

this case, we'll try the case without pre-trial order, 

on the complaint and file an answer, complaint and answer, 

and to the extent he has not complied with the rules, I'll 

hold nis feet to the fire.

Is that all?

MR. DINKINS: If Your lienor please, I would like

to know exactly what your Honor is saying —

THE CuURT: Whatever the rules provide, I'm

going to enforce.

MR. DINKINS; Well, for instance, the informaticn 

the documents that I provided tnem --

THE COURT: That doesn’t corr.ply with the Court's

12
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THE COURT: I don't know, whatever the ru

irovids, I ’m going to erfor Then you get up there to:

.rial, you ’ il offer something-, they'll me ha their u, ' . < .• 

i ' 1 er "crtfe kht - iln It’s that simple.

All right.

'Thereupon the hearing -as adjourned at 12:20 o’clock Pi-..)

REPORTER' S CERTIFICATE

I, Virginia K. .Veils, Official Court Reporter f< 

:he United States District Court, Middle District of 

Tennessee, do certify that I recorded by stenograph mac 

ind tape recorder proceedings had in the f ongoing case or. 

:he date and at the place herein; that the tr-nscrip" is 

romp let e and accurate to the best cf my knowledge, skin a. 

ability .

This the 27th day of December, 1»62.

/ A H -
/JO

iOff_ciai Court Reporter

OOI67



IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHyiLLE DIVISION

HRS. GWENDOLYN E. JONES , 

Plaintiff

VS.

THE CONTINENTAL CORPORATION,
ET AL. ,

De fendants

)
)
) CIVIL ACTION N O . 82-3572

)
)
)

AMENDMENT TO COMPLAINT

The original Complaint filed in this case is amended as

f o l l o w s  °

I. By adding to the caption of the Complaint as defendants

the following :

"PAULETTE WINSETT,
Personnel Director 
The Continental Corporation 
311 Plus Park Boulevard 
Nashville, Tennessee 37219

TOMMY FARMER,
Commercial Casualty Lines Manager 
The Continental Corporation 
311 Plus Park Boulevard 
Nashville, Tennessee 37219

CAROL BROWN,
Underwriting Supervisor 
Commercial Casualty Lines 
The Continental Corporation 
311 Plus Park Boulevard 
Nashville, Tennessee 37219

DANNY REED,
Senior Underwriter 
Commercial Casualty Lines 
The Continental Corporation 
311 Plus Park Boulevard 
Nashville, Tennessee 37219

0016s



PEGGY TAYLOR,
Underwriter
Commercial Casualty Lines 
The Continental Corporation 
311 Plus Park Boulevard 
Nashville, Tennessee 37219"

II. By adding the following as paragraphs 10 and 11 of the 

Complaint and renumbering the existing paragraphs 10 and 11 as para

graphs 12 and 13 respectively:

"10. Following the recess of the trial of this case on or 

about 17 February 1983, the original defendants, acting through the 

defendants added by this Amendment, all of whom were white persons, 

to wit: Paulette Winsett, hereafter Winsett, Personnel Director of

defendants' Nashville Office, hereafter Office; and the following 

other Commercial Casualty employees in said office: Tommy Farmer,

Manager; Carol Brown, Supervisor; Danny Reed, Senior Underwriter; and 

Peggy Taylor, Underwriter; committed and conspired to commit the 

following additional acts of di s c r imina t io n on account of race and 

sex against the plaintiff and also thereby did retaliate intentionally 

egainst plaintiff on account of her filing this lawsuit and pursuing 

t:ie prosecution thereof against said original defendants, adding said 

newly added defendants as principal actors in reference to the dis

crimination outlined in the original Complaint and in the trial thereon 

on 16 and 17 February 1983:

(a) On 23 February 1983, the third day after plaintiff 
returned to work from said recess of the trial, Taylor and Brown falsely,

deliberately, maliciously and wrongfully accused plaintiff of soliciting 
 ̂h 6 Purchase of a commercial product from the Amway Company on the job 

and caused her to be brought before Winsett on such false charges where- 

P°n Winsett falsely, maliciously, deliberately and wrongfully threatened

-2- 0 0 1 6 9



plaintiff with discharge before giving plaintiff an opportunity to

defend herself and to bring out the true facts which were that she

had simply brought to work a catalogue of said company for her own
» -

perusal during lunch and break times. Since neither Taylor nor Brown 

had any evidence to sustain said false charges, Winsett was compelled 

to withdraw said threat of discharge upon p l a i n t i f f ’s statement of the 

true facts corroborated by a white witness who was called in by 

Winsett and Brown.

(b) The foregoing effort to trump up false grounds 

for plaintiff's discharge based on a false allegation of solicitation 

during work time constrasts with the following actions of white employees 

involving improper use of work time about which defendants are fully 

advised but as to which no punitive action has been taken:

(1) Jeff Corvin; a white male, who keyed his private 

record collection into the computer about June-July 1983 during work tin

(2) Bud Mailemans, white male, drinking beer during 

working hours at various times during plaintiff-’ s -entire tenure, the 

last such occasion being in 1983;

(3) Deborah Patterson, a white female, sleeping 

on the job regularly, the last such occasion of which plaintiff has 

knowledge and which was reported to management being about December 

1982 ;

(4) Several white employees actually selling 

merchandise on the job, including but not limited to Helen Starnes, 

phyllis Scruggs and Teresa McKee in the period between 1981 and the 

Current date;

-3- 0 0 1 7 0



(5) Taylor and Farmer inspecting through a window 

and discussing for about 15 minutes Taylor's new truck in early February 

1983, during work time.

(c) On or about 18 March 1983, Brown and Tw inse 11 

called plaintiff into W i n s e t t 's office and threatened plaintiff with 

termination upon a false, deliberate, malicious and wrongful charge

o f insubordination made by Brown to the effect that plaintif f had been 

told not to train Carolyn Hatcher, a black underwriter's assistant, 

and had violated said order. The true facts were that Reed had been assigned 

by Brown to train Hatcher but had refused to do so, telling Hatcher 

in Brown's presence that he did no t want to see h e r , train her or talk 

to her "No Goddam m o r e " , as a result of which Hatcher had work on her 

desk for three weeks that Reed had refused to check, and therefore came 

to plaintiff in desperation for assistance which plaintiff had given 

the day before. Upon plaintiff confronting -Brown with the exact 

language of pla-intiff's prior conversation with Brown about Hatcher 

(which was alluded to in plaintiff's testimony upon said trial) and 

which did not include an instruction to plaintiff not to train Hatcher, 

Brown then receded from said false charge of insubordination, admitting 

that she had not given such a specific instruction and stating that she 

was "Now giving such a specific instruction".

(d) The foregoing false allegation of insubordination 

and threat of termination contrasts with an instance in 1982 wherein 

farmer specifically instructed Brown to cancel the Harold Moore in

surance file and Brown refused to do so,with no threats or disciplinary 

acti°n taken against her because of said refusal.

(e) On 10 April 1983 the Casualty and Multi-Peril 

apartments merged and underwriters were assigned agents by territory

-4- 00171



with Reed and Brown being responsible for agency assignments and 

seating arrangements. P l a i n t i f f 's desk was placed in a corner beside 

a post with her back to all white underwriters and her face to the 

wall with poor lighting arrangements inhibiting her work. Her requests 

to both Brown and Winsett to move her and/or alleviate the lighting 

problem were unheeded, although other desk space was available. The 

desks of all white employees were placed in areas where normal lighting 

was aval lable .

(f) In April 1983, as a result of said merger, Farmer 

and Brown made new agency assignments by territory. Plaintiff's 

assignment included the Jack Brandon Agency and the Crump Agency, 

the two least-sought-out agencies in defendants' clientele, because 

or the magnitude of work and the special preferential relationship 

existing between Continental and these two particular agencies. T h e r e 

after plaintiff endured several incidents of oral and psychological 

abuse from persons in said Jack Brandon Agency, including but not 

United to both oral and written communications from personnel of said 

agency using repeated abusive and profane language, wrongfully and 

talsely accusing "The people at Continental" of incompetence, insisting 

on talking to defendants' white personnel rather than plaintiff on 

routine matters and calling plaintiff a "Goddamned Nigger". Said 

incidents are set forth in greater detail in a letter dated 2 August 

1983 from plaintiff's counsel to defendants' counsel, copy of which 

1S attached hereto marked Exhibit "A". Although plaintiff repeatedly 

CaUed the foregoing to the attention of Brown, Farmer and Winsett,

3nd reiuested relief from said psychological and racial abuse, the 

Pendants failed and refused to redress her complaints or take any 

ction in reference to the agency towards eliminating same. Finally,

- 5- 00172



on 15 July 1983, in responding to a letter of 8 July addressed, as

u s u a l ,  to white underwriter, Danny Reed, although it should have been

addressed to plaintiff by Beth Price, Market Co-ordinator of said
% ■

agency, plaintiff concluded with the following sentence: "May we

continue to work together on a professional basis and curtail some 

of the hate and prejudices of our business relationship." Thereafter, 

to plaintiff's surprise, she was called in by W i n s e t t , Farmer and 

Brown on 1 August 1983 and subjected to the accusation that she had 

done something wrong by using the word "prejudices" in said letter 

even though she pointed out in that meeting that Beth Price had phoned 

her after receiving said 15 July 1983 letter admitting that she had 

used abusive language towards plaintiff and apologizing for same. In 

said 1 August meeting, without giving plaintiff any opportunity'for 

consultation with counsel or defense, Winsett, in the presence of 

Farmer and Brown, informed plaintiff that she was summarily suspended 

indefinitely without pay and should phone two days hence to determine 

her status .

(g) On 15 July and 1 August 1983, prior to the f o re

ding 1 August 1983 meeting of plaintiff with Winsett, Farmer and Brown 

plaintiff’s counsel had written to defendants' counsel requesting re- 

let from the work station and lighting problem mentioned above, a copy 

°f which letters are attached hereto marked Collective Exhibit "B". On 

‘ ^u?ust 1983, counsel for plaintiff wrote to defendants' counsel de

manding relief in reference to the matters contained in the foregoing 

Sj5paragraph pertaining to said agency, copy of which letter, with 

attached enclosures, is attached hereto marked Exhibit "A" as afore- 

Said. On the afternoon of 2 August 1983, plaintiff received a phone

0 0 1 7 3-6-



call from Brown informing her that "We have reviewed the file in 

question and we have decided there was no need for you to use the 

word "prejudices", so I am advising you that you are terminated as of 

today. Come in tomorrow after 4:30 to pick up your belongings". There 

after on 5 August 1983, plaintiff received a letter of even date from 

Farmer, together with a Separation Notice dated 2 August 1983, d i s 

charging her for misconduct and furnishing the following explanation: 

"Unprofessional conduct in communicating with agency personnel; ge n 

erated an extremely negative company/agency rapport which may result 

in company loss of $ 1.% Million of business, as per the agency."

Copy of said letter and Separation Notice are attached hereto marked 

Exhibit "C". Defendants usually resign white underwriters with agency problems.

(h) Upon information and belief, all of the foregoing 

actions of the newly added defendants were made and done with the 

knowledge and/or pursuant to the specific instructions and/or a c 

quiescence of the original defendants pursuant to the same policies 

and practices of discrimination on account of race and sex as set out 

in the original Complaint and with the intention and effect of co n 

tinuing said discrimination against the plaintiff and retaliating 

against her because of her having filed the original Complaint in this 

case and the EEOC Complaint under Title VII of the Civil Rights Act 

1964 (42 U.S.C., Sec. 2000e et. seq.) and in conspiracy of the 

individual defendants, both original and newly added herein, to effectu

ate and carry out the purpose of the company as recently expressed in 

ntiff s presence by Ken LaBonte, a white male employee, as follows:
"All the company is thinking about is this damned Nigger, Gwen Jones;

Gwen Jones is number 1, Gwen Jones is number 2 and Gwen Jones is number 
3
0n their minds and we have got to get rid of her, because sffe has

0 0 1 7 4

-7-



filed a Million Dollar lawsuit against us". On information and belief,

white employees have committed substantial misconduct involving

both company and agency personnel which far exceeded any conceivable

claim by defendants of unprofessional conduct on the part of plaintiff,
»

arising from the foregoing or any other circumstances, without being terminated for same

11. On or about 7 February 1983, plaintiff filed an A m e n d 

ment to her Second Charge of Discrimination referred to in paragraph 

9 of the original Complaint and will request issuance of A Notice Of 

Right To Sue upon said Amendment upon the filing of this Amendment to 

the Complaint in this lawsuit."

III. Paragraph 12 of the original Complaint as amended herein 

by changing its number from 10 to 12, is further amended by deleting 

in the fourth line thereof the figure "9" and substituting therefor 

the figure "11" .

IV. By adding the following as a new prayer number 1 in the 

original Complaint and renumbering the original prayers number 1 to 

8, both inclusive as prayers numbered 2 to 9, both inclusive:

"1. Grant plaintiff a Temporary Restraining Order and/or 

Preliminary Injunction requiring defendants to immediately re-employ 

and re-instate plaintiff and assign and train her for assignment to 

the highest job which she would have held but for said discrimination 

l)n account of race and sex in her promotion and in the retaliatory 

discharge committed by defendants against her and to pay her forthwith 

aU back pay, front pay and/or other employment benefits to which she 

lS entitled and of which she has been deprived by said actions of d e 

fendants as set forth in the Complaint as herein amended."

V. By inserting in the sixth line of prayer number 2 of the 

°riginal Complaint as herein renumbered between the word "advancement"

0 ° 1 7 5



and t h e  w o r d  " a n d " ,  t h e  w o r d :  " d i s c h a r g e " .

y p  T T 4 M C  AMT- l  n T M V T H P

AVON N. WILLIAMS, JR.
203 Second Avenue, North 
Nashville, Tennessee 37201

Attorneys for Plaintiff

STATE OF TENNESSEE 

COUNTY OF DAVIDSON

Mrs. Gwendolyn E. Jones makes oath in due form of law that 

she is the plaintiff in the above case; that she has read and knows 

the contents of her foregoing Amendment to her Complaint in this case, 

and that the statements made therein are true as of her own knowledge, 

except as to those statements which are stated therein to be made upon 

information and belief, and these statements she believes to be true.

Sworn to and subscribed before me

the ^ ^ j L d a y  of September, 1983.

NOTARY PUBLIC 

KY COMMISSION EXPIRES: j u j u  jf(

0 0 1 7 6

-9-



CERTIFICATE

The undersigned certifies that a copy of the foregoing

Amendment To Complaint was mailed to Lloyd Sutter, Esquire, Paul,
»

Hastings, Janofsky and Walker, Suite 1100, 230 Peachtree Street, N .W 

Atlanta, Georgia 30303 and to Thomas P. Kanaday, Esquire, Farris, 

Warfield and Kanaday, Third National Bank Building, Nashville, 

Tennessee 37219 , this the jj^^f^day of September, 1983 .

001?7

- ! 0-



W IL L IA M S  A M O  D IN K IN S  
A T  T  O  P l \ j £  V S  »A T  - L, A W  

203 SECÔ iO Ax, t£NJU€. NOBrn 
NASHVILLE. TENNESSEE 37201

rELHe*-ONF «51S/P4<J- :19«0

2 August. 1983
A V S  .>»

CZR.TTFIED MAIL WITH RETURN RECEIPT REQUESTED

Cornelia A. Clark, Esquire 
Farris, Warfield And Kanaday 
Third National Bank Building 
Seventeenth Floor 
Sashville, Tennessee 37201
Lloyd Sutter, Esquire 
230 Peachtree Street, N.W.
Suite 1100
Atlanta, Georgia 30303

In Re: Gwendolyn Jones vs. The Continental Corporation
Civil Action No. 82-3572

Lear Counsel:
This is a follow-up of the letter dated 1 August 1983 

dictated 30 July 1983 and sent to you by my partner, Richard H.
Dinkins.

In addition to the matter of deliberately refusing to pro
vide ;!rs. Jones a work station equal to that afforded white _ employees , 
I an now advised that your clients, without any advance notice or 
opportunity for hearing, called Mrs. Jones before Miss Carol Brown,
Mrs. Paulette Winsett and Mr. Tommy Farmer, on 1 August 1983 and 
suspended her without pay for three days, directing her to call in 
on 3 .August to ascertain the status of her employment, on account 

her using the word "prejudices" in a letter to Ms. Beth Price 
or the Jack Brandon Insurance Agency, Inc. dated 15 July 1983, a 
copy of which is attached for ready reference.

Mrs. Jones informs me that since the month of April 19S3 
'•'Men said Jack Brandon Agency, hereafter Agency, was assigned to _ 
'or as underwriter, she has endured several incidents of oral and 
Psychological abuse from persons in that Agency including but not 
United to the following:

(a) A phone call by one Raymond Lyles, Agency^Producer, 
early in May in which Lyles said to Mrs. Jones: "Why ̂ in the cell 
couldn't you have given us more credit?", in a situation where she 
tad not even discussed credits with the Agency but had simply re
st or.de d to a request by Agency Employee, Ms. Sarah Benson, tor a 
Quotation of some liability rates a few minutes before. Lyles^also 
threatened her on this occasion with the following language: ^I m
just going to have to talk to someone about you and .hung up the

EXHIBIT "A" 0 0 1 7 8



Page 2
2 A u g u s t  1 9 8 3
Cornelia A. Clark, Esquire and 
Lloyd Sutter, Esquire

phone a b r u p t l y .

(h) About the middle of Hay 1983 Ms. Beth Price, Marketing 
Coordinator for the Agency, phoned and asked Mrs. Jones the following: 
"Tny the hell dc you keep sending these letters over here asking for
C.'R's; we always respond ;it's just that the people at Continental 
don't have sense enough to keep their files in order".

(c) When Mrs. Jones wrote to Ms. Benson on 10 May 1983 re
questing Broad Form Property Damage information on a policy which 
ltd been submitted by the Agency including a form indicating such 
coverage but belonging to the wrong policy (a fact unnoticed by
•Irs. Jones), Ms. Beth Price responded on 19 May 1983 with the following 
endorsement: "Please advise what the HELL you are talking about?"
Attached to said endorsement was a note from Ms. Benson to Danny 
iocd as follows: "Beth just enlightened me on which forms should
h“!T 31 shown on the policy. However my application which came with 
policy is clearly for plain old "vanilla" OL&T coverage PERIOD.
Ibis is too much!!

(d) Shortly after the foregoing in the latter part of May 
wild Raymond Lyles phoned Mrs. Jones stating: "Where is your boss, 
a:'d where in the hell did they get a Goddamned nigger like you."

(e) In connection with her duty of updating current payroll 
or, a workers compensation policy for Vol-State Insulation Co. ,’lnc. .. 
erd in conformity with a physical audit by a Continental Auditor,
•uaclph Loy, on 3 February 1983, Mrs. Jones issued an endorsement
"o said policy in July 1983 conforming same to said Company Auditor's 
classifications. Thereafter she received a return of said policy 
endorsement with the following on it: "Gwen 7/8/83 Can you not read
die? See Bureau Inspection Notice Cancel this End, (Initial i:i- 

^cipherable) "* Said returned endorsement was accompanied by a letter 
Ms. Price to Danny Reed, a copy of which is enclosed for ready 

-eterence. By way of commentary it should be pointed out that, ever 
!ll£)ce Mrs. Jones was assigned to this particular agency they have 
*e:erred all except the most clerical of inquiries to Danny Reed.
• rr~iv Farmer or other white personnel rather than to the assigned 
a;uenV'riter, Mrs. Jones. It was to this communication that Mrs. Jones 
r,:sponded by her letter of 15 July 1983 mentioned above. Before re- 
pending she discussed Ms. Price's letter of 8 July with her Manager, 
M-mv Farmer, who agreed with her that she had taken no improper action 
-r- issuing the endorsement.
'•According to information received from Mrs. Price, the initials arc 
-CSG of Raymond Lyles.

0 0 1 7 9



p.age 3
2 August 1983
Cornelia A. Clark, Esquire, and 
Lloyd Sutter, Esquire

Our client had reported the matters referred to in p a r a g r a p h s  
a to d inclusive to her Supervisor, C a r o l  Brown, who told h e r  t h a t  
she would check into the matters and see what she could do a b o u t  i t .  
She also discussed the matters in paragraphs a and d above w i t h  Danny 
Reed, her former Supervisor.

Likewise she discussed the matters mentioned in p a r a g r a p h s  c 
and d above with the Casualty Manager, Mr. Tommy Farmer. A l s o  s h e  
discussed the matters mentioned in paragraph e above with t h e  Human 
Resources Representative, Ms. Paulett Winsette and at that same time 
mentioned to her the previous events related in paragraphs a t o  d 
inclusive. A l l  of the other discussions mentioned above w i t h  Ms. 
Brown, Mr. Reed and Mr. Farmer were at or shortly after the time o f  
the o c c u r r i n g  of the respective events reported. Finally, a l l  o f  
said events reflecting the oral and psychological abuse t o  w h i c h  
drs. J o n e s  had been subjected by personnel of said Agency were d i s 
cussed in said meeting on 1 August 1983 when Farmer, Ms. Brown a n d  
'•!s. J i n s  ette were all present and in which Mrs. Jones pointed o u t  
that sh e  h a d  not used the word "prejudices" in the sense o f  r a c i a l  
i r e ju d ic e  b u t  rather in the sense of apparent dislike e v i d e n c e d  by 
overt mistreatment. She tells me that she also pointed out in t h a t  
" te t ing  t h a t  Ms. Price had telephoned her after receiving s a i d  15 
Mly 1983 letter, admitting that she used said abusive l a n g u a g e  and  
■me lop i c i n g  to  Mrs. Jones for same.

In the above circumstances it is difficult to reconcile s a i d  
punitive action taken • by 'your clients against Mrs. Jones c-n i Augus L 
-S3 w i t h  anything other than a motivation of continued racial p r e 
judice and discrimination and a further motivation of harassment and 
r e t a l i a t i o n  because of the EEOC Complaint and lawsuit filed by Mrs.  
conss against your clients.

Therefore demand is hereby made that said punitive a c t i o n  be 
t o t a l ly  withdrawn and expunged from Mrs. Jones' record forthwith. J n -  
pu-'s t h i s  demand i s  complied with the Motion For Temporary R e s t r a i n i n g  
:'rder And/Or Preliminary Injunction mentioned by Mr. D i n k i n s  i n  h i s  
-■utter o f  1 August will include an application for redress o f  t h e  
putters  mentioned above as well as those mentioned in said l e t t e r  o f  
!• August 1 9 8 3 ,  a copy of which is also enclosed for ready r e f e r e n c e .

i
Very truly yours,

. AJW/af
enclosures
: Mrs. Gwendolyn E. Jones 0 0 1 8 0



M e s s a g e
/

0 0 1 8 1



?; Anrrsrss os 
NATION

— /
z z

C“ “ UV*“ BmOST *" 55T!MATIONj

^DIVIDUAL

/*y  fcc£c.(.\, / 
S-3

t’ou Requested I Please Complete
7ou_ Information ,-j Please Discuss With Me
rou ' Comments Please Return
i’CwT Approval d For File

-arks: 7 / // >  , , t’.wv x.-.v C <- ClCzIl , >*£- d

Pleose Handle 
Diary_________

□
"Vu ~i~t L £ fr.

•uiA Aj?-' B£ *_• r-- ■' . .r/u: ,"!?{<■
■< Jt.- C, >_ v. -u. .c?L <-Vi/*6c 4.1-C&. .fifti

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v 7 7 —

'' 'V ̂  •■

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J-

0 0 1 8 2



SKUSG THE GLOBE

Jack Brandon Insurance Agency, Inc.
IN S U R A N C E  A N D  monos *

E X E C U T IV E  ^ L A 2 A  - S U ITE  SOS « 9 3 0 0  W EST E N D  A V E N U E . •  P. O. SOX * 8 3 2  *  N A S H V IL L E , TN. 3 7 2 0 2

July 8, 1983

fir. Danny Reed
Continental Insurance Company 
?.Q. Box 17606 
'iesmlle, IN 37217

RE: Vo 1 -State Insulation Company, Inc. 
Policy No. WC1004366

Dear Danny:

Ian returning the original of an endorsement to the above policy 
which was recently received unannounced in our office. We are completely 
fcaffled as to why this endorsement was sent to our office. Particularly 
in light of the compensation classification notice received from the 
bureau. Furthermore, anytime an endorsement which is totally amending 
tne classification'*'rates on “a policy is to be processed, we would expect 
in the very least, some word of explanation.
your files indicate some reason 

would appreciate being enlightened, 
note your file accordingly.

why this endorsement was issued, we 
Otherwise, please cancel flat and

Uncerely yours,

bttluV.- V / . - . o
“•th S. Price.
-anketing Coordinator
3SP/tf

0 0 1 8 3

. H O N E  C O D E  S I  5 - 3 8 3 = 1 2 0 0  *  T E L E X  3 3 4 . 0 .  -  C A B L E  A D O R E 5 S  •  6  f !  A N C O N



ITEM 4 OF THE DECLARATIONS AMEN 'D
-  Workmen's Compensation and Employers' liability P'-

The Glens Falls Ins. lo.
:insert Name of Company.'

;:*^E 12/31
Date-

c2l;HERSiG:;£D BY
•5«ych
J'iCE N ashville

>3 82 at 12:01
.hc-r and Minute.

Authorized Representative
AGENT

OR
BROKER

001S4

Jack Brandon Ins. Agcy.,
Nashville, TN

(Address;

In c ,

C-p'
PnlNTEO IN U '5 A



■ily 13, IV.<33

rath Price
jid Lrandon Insurance Agency, Inc.
-.at Office Box 1322 
ahvilic, I?.' 37202

Vo I State insulation Company, Inc. 
Policy ifWC 1004366

"r.r Eeth:
leas? find copies of all losses that are on our files attached herewith.

Use, In reference to your letter of July 8, 1983 addressed to ‘r. "nr.-v 
•onernung an endorsement that was issued by our office, let me explain t :sr ? • 
■■'?pection and all correspondence pertaining to the appropriate class!* ic.it ■■
V i*'? above risk were completed before a physical audit was conducted.

ii’t.e one of the classes necessitates regional approval, we had nailed aever si 
cnquast to your office for inspection of premises information. The first 
request was sailed August 2, 1982, second request vae September 2, 1982, tnird 
request was March 7, 1983 and fourth request waa March 28, 19S3. However, v.r 
lever received your reply, therefore, because of your lack of cooperation, thi-- 
'is* has not been submitted to the region.
lice the audit was completed February 3, 1933 which was after the hnr-ni: >: 
■spection, I certainly feel that if you had any adverse remarks, you won l . 
Pressed them to the Audit Department.
■V we continue to work together on a professional basis and curtail see? c: t'v 
■ate and prejudices of our business relationship.

'Incarely,

r3, Gwendolyn Jones 
•asualty Underwriter
;:J/wc OOI85



WILLIAMS ANO OMK1NSATTORNevS-AT-LAW . 
aecofso Â-sJMue. mort», 

\ A S h VILl E, r g M M 6 S 3 6 S  3 7 3 0 '

re^Es^Mtx a-ia/asiA~33e€i

1 August 1983

lia A. Clark, Esquire 
s, Warfield And Xanaday 
National Bank Building 
teenth Floor 
ills, Tennessee 37201
Sutter, Esquire 

eaciitree Street, N.W.
1100

ta, Georgia 30303
In Re: Gwen Jones vs. The Continental Corporation

.oun;
I a-, today consulting with Ms. Jones regarding the 

rs earlier addressed to you in my letter of 15 July, 
ieh I have not had a response. Ms. Jones informs mo 
h e r  work station situation has still not been rectified 
he is now at the point where it is beginning to cause 
roblems with her vision. She informs me that there ire- 
senior white employees who are not subjected to this 
of treatment. Indeed, Ms. Jones informs me that there 
onerous locations in the office for her desk, which would 
de adequate lighting and access; despite her request that 
esk be moved, however, Ms. Carol Brown has refused t-j app 
.! o s a n e .

Please be advised that, 
u ten days, we will file a 
r Preliminary Injunction, 
same, but see no ether

With kindest regards.

unless this situation is -uoui 
Motion For A Temporary Kestrui 
I hope that it will not be nat
al ter native .

Gwendolyn E. Jones
0 0 l 8 g



L lo y d  Sutter, Esquire 
Paul, Hastings, Ganolpluf, & Walker 
230 Peachtree Street, N.W.,Suite 1100 
Atlanta, Georgia 30303

In Re: Gwen Jones v. Continental Corporation
Dear Counsel:

I am today consulting with M s . Jones regarding certain 
problems she is experiencing and has been experiencing in 
her employment following the hearings in the above case 
in February of 1983. At this time, Ms. Jones is primarily 
concerned with a problem she is having securing a work 
station conducive to performing her responsibilities.
She informs me she has been endeavoring since April to secure 
a station with appropriate lighting and has been rebuffed 
by both Ms. Winsett and Ms..Carol Brown? Ms. Jones feels 
that this activity is a continuation of the acts which lead 
her to file the instant complaint.

I would appreciate your checking into this matter 
at your very earliest convenience and insuring that Ms. Jones 
is afforded a work station on an equal basis with other 
employees in order to properly perform her work. Also,
I would appreciate your notifying personnel at the company t h a t  
retaliation against a person who has prosecuted a claim under 
42 U.S.C. Section 2000e is itself prohibitive under said A c t ,

In regard to your request that the hearing be delayed 
for one day, I do not at this time foresee any problem.
However, I will consult with Attorney Williams and advise 
You further.

0 0 1 8 7



Ms. Clark 
Mr. Sutter 
Page Two 
15 July 1983

RHD/je
cc: Ms. Jones

0018g



1

The Continental Insurance Companies
subsidiaries oi The Continental Corporation 
311 Plus Park Boulevard, NashvtUe, TN 37217

August 5, 1983

Ms. Gwendolyn E. Kidd 
P. 0. Box 111426 
Nashville, Tennessee 37211

Dear Ms. Kidd:
On Monday, August 1, 1983, a meeting was held with you to discuss your 
unprofessional conduct in ccraamicating with agency personnel.
More specifically, the discussion centered on your correspondence of 
July 15, 1983, directed to Jack Brandon Insurance Agency, Inc., which 
did not reflect the acceptable business standards of our company.
Such cornamique generated an extremely negative company/agency rapport 
which may now result in our loss of $1% million of business, as per 
the agency.
Based on the adverse impact of your actions in representing the company, 
you were suspended from your position without pay and advised that a 
determination as to the status of your employment would be made during 
such suspension period.
Resultingly, on Tuesday afternoon., you were notified by telephone that 
your employment with our company was being terminated effective that 
"date, August 2, 1983.

Sincerely,

TDF/ksp

0 0 1 8 9

EXHIBIT "c"



*0 * if >Mfrr
s? a r a t : o n  n o t i c e

T E N N E S S E E  D E , . i^ T M E N T  O P  E M P L O Y M E N T  S E C U R IT Y
_*e.( 3ATI Or HOTJOtJ

AugusiL, . I«& (*>W( C*A«£0 TO EMPLOY

< «>
I. L-A*T oat wo««d»
Oi'-pnrin 1 yn E. Kidd— -----

(HAMS o r  WOUKCTI

CB» Afia_56_4S36-
(•OC1AA SKCUKITT DC.)

<•> rn
EMPLOYED OINCE- May ic  7-7 - *■. ui v <. 1 ~ ~ • —•—'—PAT* LA*T mrUCS *MrUOYM«HT) HnHprTjrl fpr

t m e t r ic  occupation  i

REASON ro t* SEPARATION I CMECiX R » .O N  ANO « P U I N  i r  R B U L t O  !
□ t a I LACK or WORK j| d  •*»
□  >■) VOLUNTARILY QUIT |j , MiSCOTKiuCt

(CXPI-AIN NL£W1 ii
T H U  EMPLOYEE RCCC.VCO W A O S. IN LIEU OF NOTICE IN  AMOUNT OF •

m    .. . — .—
FROM,----- --  ------- --------- -

SQUAL TO **iM

DETAILED EXPLANATpersonnel
( 101 

REMARKS

, MAT,ON I ' m r A f p R R i f i n a l  p r m d i i t L L  i n  — — --------
noneratea an extremelv negative company/agency rapport which ?r ------ ~--l-o3 3 :-e4 -̂ l%Birlr,HiOTrTrlr-btrsTmggs--, a r p e r  trmrTtreni-nr-.

Y Z FQ» *rj»Al*AT{OM THaT M£.f **S «4*T IM U .'M O W jF -“ ‘W
SHOULD mm INOJCATSO HC**Q*, 1US**3U«MT *TAT***WT3 * * t 

_____ MOfCOH anriTUTS CitOwfiOB worn Oi*.QU*a.*F*CA,TlCXo

.employer .The Continental Insurance.CqhiEIU
< 1 2 / A„JBY. at- g ̂

¥»T
"



%

1 3 ^#!%r% 4
;* % ^ a
\^t4':■) A VS
i^TSe

.-ENNESSEB DEPARTMENT OF EMPLOY dNT SECURITY- 
UNEMPLOYMENT COMPENSATION DIVISION

In s tru c tio n .'*  to Employer* for Separation Notice—Form DES-230. 11 A.
It ;s -eau;red by Regulation that an employer issue a Separation Notice to each worker within

' \ u r '  hours from, the time th*‘ - ‘ ----------- --  frnm
s

s required by Regulation that an -----  . .. - , .
wenly-fcur hours from the time that a temporary or permanent separation from employment 

hc'onv's elective—except, if the reason for separation is Lacic of Work, no population Notice 
will be’ required with respect to *  worker who has not been continuously in the employ of *ne 
employer for a period of at least one week.
Forms shou.J he filled out completely. Print legibly or typewrite.
A Separation Notice is not required with respect to temporal/ separation known to be for less 
than one week.
A few of the items shown on the form require explanation:

Item (8)—-Enter worker’s place of employment if different from address shown in Item (13).
Item (10)_-If determination has been requested or^claims filed under procedure co>.cr*..g
Partial Unemployment so indicate under “ Remarks.”
Item (13)_Itu.-it here the business address of employer. If more than one, give adorer.3
where payroll records for individuals are located.

When large groups of workers are simultaneously separated from employment in the same 
establishment 'in-: to ■ •fuck of Work," the employer should contact the nearest Department o.

Claitr.sE m V o v m e n t  Security office and arrange t« handle the filing of Unemployment Eeneh 
under "a “ Mass Separation” procedure. When th.s procedure is used, individual Separation -so- 
tices are not required.

■.* rtf

*?”*>» * v s t e * ■'ti:";• ■ »^y ;• •'••; * i ATf-WiX ■& - i K  i ~ kala. .•aa*^-.'aakigkw- ■-f *
•



IN THE DISTRICT COURT OF THE UNITED S' 
FOR THE MIDDLE DISTRICT OF TENNESS: 

NASHVILLE DIVISION

;s

MRS. GWENDOLYN E. JONES, ]
]

Plaintiffs 3
]

VS. ]
]

THE CONTINENTAL CORPORATION, ]
BUD MEULEMANS, Nashville District ]
Manager, THE CONTINENTAL ]
CORPORATION, R. R. BARSANTI, 3
Regional Manager, THE CONTINENTAL ]
CORPORATION, and THE CONTINENTAL ]
INSURANCE COMPANY, ]

]
Defendant. ]

F I L E D
SEP 1 - 1983 -

CL*-r?K

D E P U T Y  CLERIC

CIVIL ACTION NO. 82-3572

ANSWER TO PLAINTIFF * S AMENDMENT TO COMPLAINT 

FIRST DEFENSE
Plaintiff's Amendment to Complaint fails to state a claim upon 

which relief can be granted.
SECOND DEFENSE

Defendants incorporate herein by reference each and every defense 

heretofore asserted in their prior Answers to Plaintiff's Complaint and all 

amendments thereto.
THIRD DEFENSE

Responding to the specific numbered paragraphs I, II (page two 

uf the amendment to Complaint), II (page 8 of the amendment to Complaint), 

III, IV, and V, as well as all subparagraphs and interlineations thereof, 

defendants deny each and every allegation contained therein. Defendants, 

furthermore, aver that they have neither retaliated against Plaintiff nor 
have they terminated her without legitimate, nondiscriminatory reasons.

0 0 1 9 2



FOURTH DEFENSE

As this Court has already held on Defendants’ Rule 41(b) motion, 
individual managers and employees of Defendants such as denominated in 
paragraph I to Plaintiff's amendment to Complaint are not "employers" and 
cannot be sued individually under Title VII; and these same individuals, 
moreover, should also be held to be inappropriate defendants under 42 U.S.C, 

§ 1981.
PAUL, HASTINGS, JANOFSKY & WALKER

230 Peachtree Street, N.W. 
Suite 1100
Atlanta, Georgia 30303 
(404 ) 588-99Q0

Seventeenth Floor 
Third National Bank Building 
Nashville, Tennessee 37219 
(615) 244-5200

1 J Jf  kZZvw In* ALloyd f i t t e r '

Q j b v *GBr'ia J. Sflanolr'

FARRIS, WARFIELD & KANADAY

/ llHiijs Pm « T3 17«« T v* / "Thomas ?. Kanaday, Jr.

Q, __ Ah*. ifVL
Cornelia A. Clark I

Attorneys for the Defendants

CERTIFICATE OF SERVICE
I hereby certify that an exact copy of the foregoing Answer has been 

deposited in the United States mail, postage prepaid, addressed to the 
attorney for the Plaintiff, Avon N.
203 Second Avenue North, Nashville, 
of September, 1983.

Williams, Jr., Williams & Dinkins, 
Tennessee 37201, on this the 15th day

I  i i  f l w  *  j _ P  / \ C U A  Oi ,
Thomas P. Kanaday, Jr. *7-

-2-
0 0 1 9 3



U n it e d  S t a t e s  D is t r ic t  C o u r t
M ID D L E  D IS T R IC T  O F  T E N N E S S E E  

M O  U M ITSB STATES COVSTM OUSK  

N A S H V IL L E , T E N N E S S E E  3 7 2 0 3

flOFTHE CLERK

DATE s 12-15-83

• m s JONES vs, 
et al.

Enclosed is a conformed copy of the foil ovine;

entered
PRETRIAL ORDER 
12-15-83 in the sLc'-e

JULIA B. CEO?5 f

By <o Oj /' )
DeDut'- Clex k

snclosure
cc; Avon Williams 

Lloyd Sutter 
Thomas P. Kanady, Jr. 
Cornelia A. Clark 
Melvin S. Katzman
i

®̂se Notice No. 23

i

t
( S I S )  1 S I-S 4S 1

i

THE CONTINENTAL CORP.

82-3572 
JUDGE MORTON

srvled civil action.

CLERK

0 0 1 9 4



UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HE CONTINENTAL CORPORATION

IS, GWENDOLYN E. JONES

ET At.

PRE-TRIAL ORDER

) '
NO. 82-3!

I. JURISDICTION
This court has jurisdiction of the plaintiff's amended 

complaint pursuant to provisions of 42 U.S.C. S 2000(e) et seq, , 

and 42 U.S.C. § 1981.
H PLAINTIFF'S THEORY

It is the contention of the plaintiff that following the 
adjournment of the trial on February 17, 1983, defendants engaged 
ha pattern of discrimination and retaliation against the 
Plaintiff in violation of Title VII of the Civil Rights Act of 
1364 and 42 U.S.C. § 1981. The acts constituting a pattern of 
discrimination and retaliation caused plaintiff physical pain,

<s
a9°ny and anguish, resulting in her termination on August 2, 19 83 .

pre-trial order previously entered prior to the trial on 
February 17, 1983, if one was so entered, is made a part hereof.

0019s



III. DEFENDANTS' THEORY
As directed by the court and with respect... to plaintiff's 

single race discrimination "promotion denial" claim which 
survived the Rule 4 1 (b )  motion, defendants will produce those 
fitnesses necessary to explain the legitimate, nondiscriminatory 
and nonpretextual reasons for permitting Carol Brown to transfer 
to the Nashville District Office and why Ms. Brown was better 
qualified than plaintiff to be the sole supervising underwriter 
in the reorganized Commercial Casualty Department.

It is denied that plaintiff was subjected to any retaliation 
between February 17 , 19 83 , and her employment termination. It is 
further denied that race, color or sex played any part in 
plaintiff's employment termination. It is averred that her 
termination was precipitated by her unauthorized and unwarranted 
communication dated July 15 , 1983,  on official company stationery 
md addressed to a $1-1/2 million agency "customer" in which she 
accused the agency unjustifiably of "hate and prejudice. "

The defendants further assert that plaintiff has abused her 
statutory protection against discrimination, using the law not as 
3 shield but as a sword with which to harrass generally and 
otherwise challenge the authority and/or competence of every 
manager or co—employee whose opinion on any subject disagreed 
sith that of the plaintiff. This, in effect, is a "reverse 

rataliation" case.

0 0 1 9 6



f A

tv, ISSUES PRESENTED

1. How defendants engaged in acts of unlawful 
jiscrim ination and/or retaliation since the adjournment of _ this

tearing. ''
2. Whether the plaintiff can establish a prima facie case

of intentional discrimination with respect to her retaliation and 

termination claims.
3. Whether defendants have legitimate nondiscriminatory 

reasons for their actions, including appointment of Carol Brown
as supervisory underwriter, personnel actions involving plaintiff 
between February 27 and August 2, 1983, and her employment 
termination.

4. Whether the plaintiff or defendants, or either of them, 
are entitled to recover in whole or in part, costs and attorney 
fees.

I EXHIBITS
The parties will exchange exhibits not already in evidence 

pursuant to the Local Rules on or before December 30, 1983.
?I. WITNESSES

The parties will exchange witness lists pursuant to the 
bcal Rules on or before December 26, 19 83.

AMENDMENTS
Either party may amend this pre-trial order within five (5)

toys.

0 0 1 9 7

3 • W *



U n i t e d  S t a t e s  D i s t r i c t C o u r t
m id d l e  District or Te n n e s s e e

•S O  UMITKO S T A T U  COURT H O U M  

NASHVILLE. T E N N E S S E E  S720S
(fill of the  c l e r k

251-7178 
«•!•»

DATE: 6-29-84 * .5° •
*<Es .GWENDOLYN E. JONES vs’. THE CONTINENTAL 

CORPORATION s et al.

82-3572-Morton

ENCLOSED IS A CONFORMED COPY OF THE FOLLOWING:

MEMO & ORDERentered 6-29-84 in the above-styled
eivil action.

toclosure
xc: Avon Williams 

Lloyd Sutter 
Thomas P. Kanady, Jr. 
Cornelia A. Clark 
Melvin Katzman

CASE NOTICE NO.
28 & 29

Psu!. Hn.Uiric.;. Jana.'sky & Walker 
Atlanta, Georgia

O O l S g



UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

HRS. GWENDOLYN E. JONES

THE CONTINENTAL CORPORATION,
THE CONTINENTAL INSURANCE CO. , 
BOD MEULEMANS, NASHVILLE 
DISTRICT MANAGER, PAULETTE 
HINSETT, TOMMY FARMER, CAROL 
SHOWN, DANNY REED, and PEGGY 
TAYLOR

5
)
)
) NO. 82-3572
)
)
)
)
)
)
)
)
)

M E M O R A N D U M

Gwendolyn E. Jones, an employee of The Continental Insurance
company, files suit against the defendants pursuant to the
Provisions of Title VII of the Civil Rights Act of 1964, 42 

*
l's-C. § 2000e, et seq. , and 42 U.S.C. § 1981. She alleges the 
defendants discriminated against her in the opportunities, terms, 
conditions, and termination of her employment because of her 
bonder and race. The plaintiff made similar allegations against 
Continental Insurance Company prior to 1980. An EEOC 

^sement settled that affair and commanded the company not to 
cetaiiate against her for bringing her charges. The plaintiff



alleges that the company has retaliated against her for bringing 
that earlier claim and the present suit as well.

Before discussing the substantial issues that were raised by 
the facts of this case, the court shall dispose of the 
plaintiff's weaker allegations. First, this was not a disparate 
impact case. See International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 335 n. 15, 97 S. Ct. 1843, 52 L. Ed.. 
2d 396, 415, n. 15 (1977).! The plaintiff did not introduce 
any evidence which proved that blacks and women were more harshly 
affected by Continental Insurance Company's policies than were 
whites and males. Indeed, the proof showed that there were a 
number of blacks and women at all levels of the corporate 
hierarchy.2 The company apparently employs many women and 
blacks, a number of whom are better paid than and superior in 
rank to men and whites. Persons at the same level of similar

•̂During the course of this trial, plaintiff's counsel argued 
that Rowe v, Cleveland Pneumatic Co., Numerical Control, Inc.,
690 F. 2d 88 (6th Cir. 1982) stood for the proposition that there 
is no "hard and fast dichotomy" between disparate impact and 
treatment cases. If counsel meant to assert that there is no 
difference in the legal standards the courts are to apply in 
those two types of cases, he is clearly wrong. The gravamen of 
the Sixth Circuit's ruling in Rowe was that the lower court had 
failed to distinguish between the plaintiff's disparate impact 
and treatment claims. If counsel meant to assert that the proof 
adduced at trial can support either a disparate impact or 
treatment claim, the court agrees.

2No statistical proof was introduced. The statements in 
this opinion are based on the court's analysis of the individual 
ei®ployees referred to in the course of the trial.

00200

JUS 2 S1984
2



experience and ability are paid the same. Neither was this a 
gender-based disparate treatment case. The plaintiff's immediate 
supervisor was a woman as were many of the other management level 
employees. The plaintiff did not introduce the slightest bit of 
evidence indicating that The Continental Insurance Company 
discriminated against her because of her sex.

Neither The Continental Corporation nor the individual 
defendants named in the complaint were proper defendants. See 
Fed. R. Civ. P. 12(b)(2). The Continental Corporation is the 
parent corporation for a number of subsidiaries, including The 
Continental Insurance Company. The plaintiff knew that The 
Continental Insurance Company, not The Continental Corporation,
»as her employer. At any rate, there were insufficient indicia 
of an interrelationship between The Continental Insurance Company 
and The Continental Corporation to justify a belief on the 
Plaintiff's part that The Continental Corporation should be 
responsible for The Continental Insurance Company's acts. See, 

Armbruster v. Quinn, 711 F. 2d 1332, 1337 ( 6th Cir. 1982). 
is for the individual defendants, they were neither "employers" 
within the meaning of Title VII, see 42 U.S.C. § 2000e(b); Women 
•LCity Government United v. City of New York, 515 F. Supp. 295,
239 (S.D.N.Y. 1981); but see Compston v, Borden, Inc., 424 F.
| SuPP- 157, 158 (S.D. Ohio 1976), nor did they, in their 
individual capacities, violate any of those rights protected by

00201

JU/V 2 & f984



42 U.S.C. § 1981. Consequently, The Continental Corporation and 
all of the individual defendants are dismissed from-this suit.

In summary, all of the plaintiff's claims against the 
various defendants, except her race discrimination claims against 
The Continental Insurance Company, are dismissed. The court 
shall now address the remaining issues.

The evidence shows that this is one of those unfortunate 
situations where an employee, who in this case happens to be 
black, perceives every action of a regulatory, administrative, or 
disciplinary nature as being directed against her personally. As 
is true with most cases of this type, credibility is the deciding 
factor. The court finds against the plaintiff because of her 
lack of credibility. The plaintiff assumed her knowledge of her 
work place was omniscient. Many of her complaints were never 
communicated to her superiors. Many that were, were picayune.
In short, the plaintiff could be a quite petty person who assumed 
that anything that did not suit her was a product of racial 
prejudice.

The plaintiff's festering bitterness finally burst forth in 
a letter she wrote to Beth Price of the Brandon Insurance Agency 
on July 15, 1983. In that letter, the plaintiff accused the 
Brandon Agency of "prejudice and hatred" with the clear 
implication that such prejudice and hatred were directed toward 
blacks. Somewhat taken aback by the letter, Price called Jones 
and asked on what her accusations were based. The plaintiff

00202

j w  2 : ^

4



offered no explanation other than her own vague perceptions of 
mistreatment and a derogatory written comment that had been made 
by another Brandon agent. 3 Price testified that the 
plaintiff's letter was the last straw. The Brandon Agency had 
had repeated difficulty securing information through the 
plaintiff. Her errors had caused them to lose premiums and 
increased their work load. The Brandon Agency told The 
Continental Insurance Company that it would stop selling 
Continental's insurance if it was not assigned another 
underwriter and insulated from Jones. At the time it issued its 
ultimatum, the Brandon Insurance Agency, which was an independent 
agency, sold more insurance for The Continental Insurance Company 
than any other agency in Tennessee.

When the plaintiff admitted she wrote the letter and offered 
no facts substantiating her accusations, she was fired. The
company’s action was totally justified. Rudeness and insolence

\
from customers must be endured by employees in most businesses.

/_ /
3That comment by a Mr. Lyell had impugned the plaintiff's 

business aptitude without making any reference to her racial 
heritage.
t The plaintiff alleged at trial that Lyell had called her a 
"Goddamn nigger" sometime in May or June of 1983. The court does 

believe such a statement was ever made. The plaintiff never 
^ported this alleged statement to company management, and she 
bid not offer it as the justification for her letter of July 15, 
b983, when both Price and management asked her why she had 
bitten it. Furthermore, the plaintiff's attorneys never 
referred to this alleged slur in their protest letters to the 
bsfendant insurance company. The court believes the plaintiff 
concocted the alleged insult in an effort to bolster her case.

00203

JUH 2 P 1984,
5



The decision to take the risk of alienating a customer must rest 
with the party paying the bills. The termination of an employee 
for taking a customer to task is based upon a legitimate business 
purpose if ever there was one —  economic survival. Any employee 
who intentionally disrupts a business relationship producing more 
than $1.5 million worth of profit per year should expect nothing 
less than summary dismissal.^ The plaintiff's termination 
was the product of sound business judgment, not racial 
discrimination or retaliation for pressing her civil rights 

claims.
Given the plaintiff's earlier EEOC agreement and this 

court's holding that her termination was justified, the only 
remaining claims of racial discrimination are those covering the 

period from 1980 to August 1, 1983.
In support of her unlawful retaliation and discrimination 

claims, the plaintiff marshalled the following evidence: 1) She

^Realizing, perhaps, that she had overstepped the bounds of 
tolerance in taking it upon herself to chastize the Brandon 
Insurance Agency, the plaintiff argued at trial that her 
termination was nonetheless discriminatory because a white male 
agent who had had trouble with an account had been transferred to 
another account rather than being fired. That agent, however, 
had not written a haughty and caustic letter to the troublesome 
client. The rashness of the plaintiff's act of writing the 
letter was enough to convince the company that she was not to be 
trusted. Second, the plaintiff failed to prove that the company 
had the ability to transfer her at the time she complained about 
the Brandon Agency. Finally, the credible proof was that the 
Plaintiff merely asked her superior "what he was going to do" 
about the Brandon Agency's cursing, not that she be transferred 
to another account.

00204

m  2 91984



and a fellow white employee were reprimanded for looking at an 
Amway products catalog during working hours; 2) she was 
reprimanded for training another employee after being instructed 
not to; 3) her desk location and surrounding lighting were 
inferior to that afforded white underwriters; and 4) she was 
subjected to a working environment in which company managers 
occasionally engaged in profanity, but no racial epithets.

The Amway catalog incident is a perfect example of a flaw 
that ran throughout the plaintiff's case. The plaintiff knew 
that selling products on company time was a violation of 
corporate policy.5 she claimed, however, that white 
employees had sold products at work and had not, "to her 
knowledge," been reprimanded. Plaintiff did not report these 
alleged incidents to management. The proof showed that 
management was either unaware of the alleged violations or had in 
fact reprimanded the malefactors. The plaintiff cannot prove 
discriminatory intent by showing that management did not punish a 
violation of which it was unaware.

As for the training incident, it is paradigmatic of the 
plaintiff's arrogance. She finally admitted on cross-examination 
that she had in fact been instructed not to train Hatcher. The 
plaintiff disobeyed this order because Reed, who had been 
assigned to train Hatcher, was not, in the plaintiff's opinion,

^The plaintiff denied she was selling Amway products. The 
credible proof was that she was taking orders for her daughter.

00205

*7
2 S 7984



doing his job. The court doubts that the plaintiff ever 
considered that Reed's assignment might have been attest of his 
abilities, or that Hatcher's difficulties might have been her own 
fault. Whatever the reason for the order, it was given. In the 
court's opinion, a verbal reprimand was lenient punishment for 
deliberate violation of an order. There was no proof that any 
white employees were treated more leniently when they violated 
orders.

The lighting and desk location complaints were picayune and 
not substantiated by the evidence. The photographs plaintiff 
introduced showed her lighting was the same as those around her.
At any rate, the plaintiff's supervisor made repeated efforts toI
please her regarding this matter. The location of her desk was 
dictated by spatial constraints, not racial prejudice.

Finally, not even the plaintiff could allege that she was 
exposed to more profanity in the office than were other employees. 
Though not to be commended, profanity is one of the uncomfortable 
facts of business life.

It is true that between 1980 and 1983 the plaintiff 
requested that she be promoted to supervising underwriter.6

6The proof showed that the plaintiff was promoted and paid 
at the same rate as white employees of similar experience and 
ability. In short, with the exception of the Carol Brown 
incident discussed in the text of this opinion, the plaintiff's 
claims that she was discriminated against in the terms, 
conditions, and opportunity of her employment were without 
substance.

8

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W/.‘.



The defendant admits that the plaintiff’s performance appraisals 
rated her competent. Instead of the plaintiff, a white woman 
named Carol Brown was appointed supervising underwriter. Brown 
transferred to the defendant's Nashville, Tennessee, office from 
its San Francisco, California, office where she had been a 
supervising underwriter. Given the facts just recited, the court 
held that the plaintiff had made out a prima facie case of 
discrimination. See McDonnell Douglas Corp. v. Green, 411 u.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

The defendant, however, articulated a legitimate 
nondiscriminatory reason for Brown's transfer and appointment as 
supervising underwriter. See, e.g., Texas Department of 
Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089,
67 L. Ed. 2d 207, 216 (1981). Brown had decided to return to the 
geographical area of her Kentucky home and that Nashville would 
provide her with the proximity to her parents she desired as well 
as the amenities of a larger city. Absent a spot for her in the 
Nashville office, she would have gone to work for a competitor.
Brown's San Francisco supervisor wrote the Nashville office 
informing it of her excellent work. She was offered and accepted 
a job as supervising underwriter -- the same job she held in San 
Francisco. She paid her own moving expenses to Nashville.

At least three black females employed in the Nashville 
office had used the employee-initiated transfer policy that 
brought Brown to Nashville to transfer to other company offices.

0020?

9
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There is no question that Brown's credentials were far superior 

to the plaintiff's. She was better educated, had been with the 

company longer, and had proven herself to be a superior performer.

The Civil Rights Acts do not require an employer to prefer an 
inferior to a superior employee simply because the inferior 
employee happens to be a member of a disadvantaged class. See 

Griggs v. Duke Power Co., 401 D.S. 424, 436, 91 S. Ct. 849, 28 L.
Ed. 158, 167 (1971). Any shadow of doubt regarding Brown's 
superior qualifications was dispelled when two men were demoted 
and she was made sole supervising underwriter in the course of a 
reorganization. The plaintiff failed to prove that either 
Brown's transfer or the policy that made it possible were 

pretexts for discrimination.
In summary, many of the plaintiff's claims had not the 

slightest foundation in fact. She did not introduce any evidence 

that supported her claims of disparate impact or gender 

discrimination. There was no proof that she was subject to 

disparate treatment in the terms and conditions of her employment 

or her compensation. Her claims of unlawful retaliation bordered 

on the absurd. Certainly, she failed to prove there was any 

unlawful motive for the acts she claimed were evidence of 

discrimination. The plaintiff did make out a prima facie case of 

racial discrimination regarding her opportunity for promotion.

The defendant, however, rebutted that prima facie showing of

0 0 2 0 8  •

JUN 2 3 1984



discrimination, and the plaintiff failed to persuade the court 
that that rebuttal was pretextual.

An order granting judgment for the defendants has previously 
been entered in this case. This memorandum shall accompany and 
support that prior order.

L. CLURE MORTON 
CHIEF JUDGE

00209

JUN 2 & ̂
11



UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

RECEIVED FOR ENTRY
f u

ry Julia B. Crô s 
Qlerk

ferk

MRS. GWENDOLYN E. JONES )
)
)

V S .  ) NO. 82-3572
)
)

THE CONTINENTAL CORPORATION, )
ET AL. )

O R D E R

In accordance with the memorandum filed herewith, judgment 
shall be entered for the defendants and this case is hereby 
dismissed.

00210



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Baptist Church where she's a member of the choir, and 

I might say, a very effective one, too, if Your Honor 

please. She has never been arrested, convicted of any 

criminal offense.

Mrs. Jones, are those statements correct?

A. Yes. Counsel, before we get started, I need

to let the Judge see that I'm using notes for dates 

and—

THE COURT: That's all right, you made them

yourself? [yKJiNfTs]
THE WITNESS: Yes, they are from my testimony

A
THE COURT: Nobody made them for you?

THE WITNESS: No, I made them.

THE COURT: No problem about that, as long

as you made the notes. If he made them for you, I'm 

not going to let you use them.

Q. (Mr, Williams) Mrs. Jones, you are very soft

spoken, too. While the Judge may be hearing you well, 

I'm not, and I'm sure my adversary is not hearing.

Will you pull that--either pull yourself forward so 

you won't have to be unnatural about it, so you'll be 

talking into the microphone.

Are there any differences between the job 

classifications— the job classification of rate code 

at Travelers Insurance Company and that same job

00211

O ? T



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Mr. Farmer who is the manager knew how to write this 

particular policy, and that Mr. Reed actually advised 

the insurance agency incorrectly regarding the same.

These exhibits also refute the contention 

of the defendants that I did not teach anyone in the 

company about how to write the garage insurance 

coverage.

MR. SUTTER: Your Honor, is she reading from

a prepared written statement?

THE COURT: I don't know if she is or not.

Q* (Mr. Williams) Are you utilizing your own

notes in testifying that you prepared?

Yes, I am. I would not— I wouldn't think 

anyone else would know.

MR. SUTTER: Your Honor, I object to her

reading from prepared testimony.

THE COURT: Overruled.

MR. WILLTAMS: All right, now, then, will

you replace— request admissions of Exhibits 42 and 105,

if the Court please.

THE COURT: Granted.

(Exhibits No. 42 and 105 
received in evidence.)

£>• (Mr. Williams) Now, will you pull Exhibit

108, please, ma'am. Have you found it?
00212

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approved June 27, 1980, application for renewal of

automobile policy by Ken Labonte. But he did not have i 

the information as to the kind of business the insured I
was operating. This was a substantial underwriting 

error in that this information had relationship to the 

risk and the proper classification of the vehicles.

I secured this information from him, from 

the agency, as reflected by my handwriting where I 

wrote in that information in paragraph 2 of this 

application.

He also did not order the request for 

survey which is required when we are writing a fleet 

of vehicles in order to determine the hiring practices 

of the drivers. This default is shown on page 978 of 

the exhibit. This is also a policy where Carol Brown 

marked an error on me in 1982.

MR. SUTTER: Your Honor, I've never been in

a case where I had a witness read an extended set of 

testimony. I want to ask Senator Williams if she's 

reading script.

THE COURT: She said she made them, wrote it

out ahead of time. I'll take that into consideration.

It bears on her credibility.

Q. (Mr. Williams) Go on, please, ma'am.

A. , We were told that we could use the driver
00213



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%

A. Yes, I had--119 must have had an extra page

to it. Okay. On January 15, 1982, I wrote this memo

to the agents, telling them that the risk had been-- 

was the rest of that set up?

MR. WILLIAMS: Well, I-- '

MR. SUTTER: It's the second, page there--

THE COURT: You mean—

MR. WILLIAMS: No, she —

MR. SUTTER: He asked her if she had anything

else to say, flipped down, was going to read something 

she forgot to say, and they are trying to get their 

act together, and I object, Your Honor.
Jones J

THE WITNESS: We'll disregard this one.A
Q. (Mr. Willi ams) Just put that exhibit back

and pull Exhibit 57 and 118.

A. Okay.

MR. WILLIAMS: For benefit of counsel, she

had shown me something earlier this morning that she 

pulled out of there, and I had made some copies of it 

to give to him in advance, and I had forgot about it. 

So, I'll just abandon that, if Your Honor please, 

g. (Mr. Williams) Go to--pull Exhibit 57 and

120 .

If Your Honor please, I request admission 

of Exhibit 119. •
0 0 2 1 4



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documents.

THE COURT: Where did you get this document?
CMs.

THE WITNESS:^ I could have had a previous 

file, and if something was not stamped permanent, it 

would still be on that file, whether I had to finish 

processing the audit or whatever,

THE COURT: Did you keep a lot of these

documents on your desk?

THE WITNESS: The documents came to my desk.

THE COURT: Did you keep them?

THE WITNESS: On my desk, yes, until I got

through processing.

THE COURT: What happened after that?

THE WITNESS: After I finished processing,

usually they will go to rate code. Sometimes they'll--

THE COURT: The problem is here we have the

official document that's copied on December 22nd, or 

whatever it is.

MR. SUTTER: Every one of which, Your Honor,

has date stamp number, which is what this 1539 is. We 

have collated every document we produced and sent them.

THE COURT: And it's different from what y o u 'f

got here, and a lot of these notations are made here anft 

that's what is bothering everybody. Looks like they've 

been added to and doctored for this case, only fo
OOCij;

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case.

Ql (Mr. Williams) Mrs. Jones, have you added

to or doctored any documents for this case?

A. No, I have not.

THE COURT: We are not--I don't accuse you

of it, you understand, I don’t know. But, how do 

you explain that this is supposed to be a copy of this 

when it doesn't come close, or is it supposed to be a 

copy of this?
£Al$.3b*2>€S,J

THE WITNESS: Okay. It's the same file, whatA
I've been doing, but I wouldn't say back in whatever-- 

I would write policy numbers down when I found dis

crepancies, and then if I had an extra copy of a four- 

part snap-out of a memo from the agent or if they 

had Xeroxed too many copies and returned the endorse

ment back for cancellation, not the policy, but the 

endorsement, I would keep the extra copy instead of 

throwing it in the wastebasket, which was where it 

usually goes. But what I would do, I would compile 

on scratch pad policy numbers, and this is how my 

counselor got the policy numbers.

MR. WILLIAMS: Your Honor may recall back

when Mr. Dinkins was taking depositions in this case,

Mrs. Jones came to me very disturbed and said Mr.

Dinkins has told me that I have to turn over all of my
00216



notes to the defendant. And so then I filed--I 

remember that very distinctly, I took some time that 

afternoon and dictated it, and I said, what policy 

numbers are you concerned with, and I dictated a 

protective--motion for protective order asking, the 

Court to require them not to alter any policy, any 

of these policy files, most of which are listed right 

here, because she was afraid something like that just 

might happen, that they would alter—

THE COURT: What has that got to do with

what we're talking about here?

MR. WILLIAMS: I can verify, I don't believe

that she had any--certainly this does not represent-- 

THE COURT: I'm suspicious, this looks too

pat.

MR. SUTTER: Your Honor, this case was not

filed until June of 1982, complaint. This is a May 

stamp. This is an earlier copy of the document before 

there was ever a lawsuit. And, Your Honor, I'd like 

to invoke Rule 612, I'd like to see the script.

THE COURT: Let's--you can ask for the

script. No question about it.

MR. SUTTER: I think the script is the same

Senator Williams is using, he's referring to document 

numbers, that are our date stamp. • 0 0 2 1 7 !



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THE COURT: Is that what she's reading from?
C m $. T o n e s  3

THE WITNESS: Uh-huh.A
M R . SUTTER: Question 110, answer 110.

Exhibits cross collations. Okay. Okay. Handwritten

marks.

done--

THE COURT: Mr. Williams, I've never had it

MR. WILLIAMS: Her notes, if Your Honor

please, that she dictated, that she dictated in her 

name .

THE COURT: Her questions she dictated to

you?

MR. WILLIAMS: No, I asked her the questions.

THE COURT: I remember one time not too long

ago in a discrimination case which you won, by the way, 

I wouldn't let you do that. And this morning what she 

showed me were some pencil notes on a yellow piece of 

pad, said that's what she had. This script here, this 

is prepared testimony, you might as well file it as 

an exhibit, because this is rehearsed testimony.

MR. WILLIAMS: If Your Honor please, I

respectfully submit to you that is testimony which 

she prepared herself in response to my questions, and 

legitimately so. We have had difficulty enough keeping 

these documents straight, and separate with it organize
0021g



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in that fashion.

I'll ask you to, Mrs. Jones, to state whether 

you've testified to anything here that was not your 

testimony that you gave?

A. It would have to be my testimony,, I don't

feel like counsel would know anything about these files 

I had compiled numbers, and I dictated to counsel to 

prepare for this rather than going through and taking 

out each of these files and trying to find the others 

in court.

MR. SUTTER: Your Honor, this woman was not

under oath when they prepared the script for Mr. 

Williams to examine.

MR. WILLIAMS: So what, if Your Honor please?

No witness is under oath when he consults with counsel 

about what he's going to testify.

THE COURT: I'll take it under advisement,

and I'll think about it, but I'm still concerned about 

these documents here, which obviously are not the same 

documents. They are to a point, but from then on they 

are not. I'm very much concerned about that. I've 

had no explanation that is satisfactory.

Q. (Mr. Williams) Well,, Mrs. Jones, I would

appreciate it if you would explain again what the 

difference is between this speed letter dated December

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charge ?

THE COURT: I sustain the objection to that,

that could have no bearing at all.

MR. WILLIAMS: All righ-t.

Q. (Mr. Williams) Now, are you encountering

any continuing and other types of harassment from your 

supervi sors?

u;THE COURT: Sustain the objection to harass

ment. Let her tell what’s happened and I'll determine 

whether it's harassment or not.

0- (Mr. Williams) Tell what has happened to you,

you want to tell the Court about, that is relevant 

to the issues in this case, please, since the lawsuit 

has been filed.

A. Since the lawsuit has been filed?

MR. SUTTER: Your Honor, I'd like her to do

that without the script.
E h *.Joties]

THE WITNESS:^  Okay. It's not a script.

MR. WILLIAMS: She does not have script,

all she has is her own notes.

THE COURT: Let her talk without them. She's

a smart woman.

THE WITNESS: That's right, I haven't used

it all the time, anyway. Okay. Carol Brown makes a 

point to mark errors against me that are not justified,

00220

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class, I know it's the true way Continental wants it 

done. I said anytime you get an error, you mark an 

error on me, I deserve the error, that's fine, you 

let me know, it helps me to learn.

Another incident was this month, February, 

1983, I have trained, since I've been at Continental, 

several white persons. I have trained some to the 

extent where they've gone on to get better jobs such 

as John Brown, Carolyn Hatcher, a black woman that's in 

my department. And I asked Carol Brown if it was 

permissible for me to train Carolyn Hatcher. She says 

no, and I said why, Carol, I said she deserves the same 

training as the other employees I've trained. And she 

said that it was no concern of mine, and that Danny Ree- 

would train her. I said true, from the supervisor's 

aspect it is no concern of mine, I said, but as human 

being, knowing that this young lady is being improperly 

trained, I said, this is my concern. And I said, how 

can Danny Reed train her when he told her he didn't 

want to see her, he didn't want to talk to--he didn't 

want to train her. She said, we've handled that 

problem. He's going to train her.

Now, the reason I asked her, Danny Reed had

told Mrs. Hatcher to increase employer's liability on

Workers Compensation policy to $300,000, which cannot be
«

00221
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done as long as we have Workers Comp and employer’s 

liability on the same form, it's either a hundred 

thousand, five hundred or a million or more than a 

million. And I did not appreciate that at all.

Q* All right. Does that conclude your remarks
about--

That concludes my remarks.

Q- Continuing things that have happened since

this suit has been filed.

Will you pull Exhibits 18, 19 and 20, please

A- I have them.

& Can you identify Exhibit 18, P-18?

P-18 is a letter dated October, '81, to Mr.
Barsanti.

Q.

A.

Q.

A.

&

A.

a

From whom?

From my attorney, Avon N. Williams, Jr.

On whose behalf?

Mrs. Gwendolyn Jones.

Were you present when that letter was dictate^ 

Yes, I was.

Did you furnish the information that went 
into that letter?

A. Yes, I did.

Q- And request me to write it in your behalf?
A. Yes, I did.

00222

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A. No . No .
g. Have they been utilized in any way that you

know about to enable employees to improve their 

performance?

A. Not any way that I know about.

MR. WILLIAMS: No further questions.

MR. SUTTER: Your Honor, I think you said

copy of the question and answer sheet and a copy of 

her notes be made an exhibit?

THE COURT: Yes, I did.

MR. SUTTER: May I designate that joint

exhibit or Court's exhibit?

THE COURT: Be Court Exhibits 1 and 2.

MR. SUTTER: Can we have that impounded?

THE COURT: Be filed with the clerk.

MR. WILLIAMS: That's the question and

answer sheet beginning--that you were using in the 

beginning--

THE COURT: And the yellow sheets. Every

thing. And the questions and answers, file them both 

as Exhibit A and B.

MR. SUTTER: May I have permission to make

a copy of those?

THE COURT: You certainly may. Withdraw

them from, the clerk.
0 0 2 2 3

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M R  . W I L L I A M S : O f  c o u r s e ,  h e '  s  a h e a d  o  f  m e ,

H o n o r p l e a s e .  I h a v e n ' t  s e e n t h o s e  n o t e s  o n

the yellow pad myself.

THE COURT: ' You make a copy of them, too.

All you have to do is pay 50 cents a page.

MR. WILLIAMS:. No, sir, I don't need a

copy .

THE COURT: Then you won't get one. It's

that simple.

THE CLERK: The pad will be Court Exhibit A,

and the typed page will be Court Exhibit B.

(Said documents marked as 
Court Exhibits A and B 
respectively, and received 
in evidence.)

THE COURT: No other questions, Mr. Sutter?

MR. SUTTER: No, Your Honor. I assume

plaintiff has concluded his case, and I ’d like to 

make a motion.

THE COURT: All right. Step down.

MR. WILLIAMS: If the Court please, I'd

like to confer with Mr. Dinkins a moment about 

exhibits before I conclude our proof in chief.

THE COURT: All right.

(Pause)

MR. WILLIAMS: I'd like to ask the clerk

0 0 2 2 4
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Jones Direct 704
MF. WILLIAMS: All right. I'll hand vou a

document which I just marked Plaintiff's Exhibit 229.

Is that the handbook to which vou referred?

& Yes, this is the handbook.

MR. WILLIAMS: Request it be admitted.

THE COURT: Granted.

(Handbook admitted into evidence 
as Exhibit D- 2 2 9 .)

MR. WILLIAMS: And passed to the Court. And

I would refer the Court to a page in there where she 

has underlined s one material I think that--

THE COURT: All right. I see union free

best of all. That's right interesting.

MR. WILLIAMS: That’s aettinc more and more

to be the case in our section of the country, if Your 

Honor please.

BY MR. WILLIAMS:

0- Mrs. Jones, what if anythino out of the ordinary

happened after that?
£m s .
A °n Marc^ 18, 1983, I was summoned to Mrs. Finsett1

office again by my supervisor, Carol Brown. Carol 

Brown told Mrs. Winsett that she had told me, warned 

me not to train Carolvn Hatcher aoain. And that I had 

disregarded her order, and that this is insubordination. 

Carolyn Hatcher, a black female, and Danny Reed, were

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Jones - D ire ct 705

also called in.

I explained to Mrs. winsett that Hatcher had 

come to me with some files that had been on her desk 

for at least three weeks, and she told me that need 

was supposed to have checked these files before the^ 

could go through the regular process. However, she

told me that Reed had told her that he did not want to-
see her, he did not want to talk to her, and he didn't 

want to train her no goddamn more. So she asked me if 

I would check the work for her so it could go on through 

and I did so. And then Mrs. Carol Brown told Mrs. 

Winsett—

0, What you've just finished relatina you had told

Mrs. Brown, is that right, what vou just got through?

A. I told--exolained this to Mrs. winsett, personnel

director.

0. I'm sorry, all right.

MR. SUTTER: Your Honor, I move to strike

all the testimony which is relevant to the preceding 

witness who just spoke for herself as hearsav comincr j 

through the mouth of this witness, not as to Reed or
i

what she might have had discussion about--
i

THE COURT: I ’ll take it under advisement.
iBY MR. WILLIAMS:

0 Go on, Mrs. Jones. You had mentioned that

00226



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Jones - Direct 706

M r s .  H a t c h e r  a n d  M r .  D a n n v  R e e d  w e r e  a l s o  c a l l e d  i n .

A.  Y e s .

0 , W a s  t h a t  a t  t h e  o u t s e t  o f  t h e  t i m e  v o u  w e r e

c a l l e d  i n ?

A.  T h e  s a m e  t i m e  I  w a s  c a l l e d  i n .

0.  S o  w a s  e v e r y t h i n g  t h a t  y o u  h a d  r e l a t e d  a l s o - - d i d

a l l  o f  t h a t  a l s o  t r a n s o i r e  i n  t h e  p r e s e n c e  o f  ’ ’ r s  .

C a r o l  B r o w n  a n d  M r .  D a n n y  R e e d  a s  w e l l  a s  v o u  a n d  M r s .  

w i n s e t t ?

A.  Y e s .

0.  A l l  r i g h t .  W h a t  w a s  M r s .  W i n s e t t ' s  r e s p o n s e  w h e n

y o u  t o l d  h e r - - l e t  m e  a s k  y o u  t h i s .  w h e n  y o u  t o l d  h e r  

w h a t  M r s .  H a t c h e r  h a d  t o l d '  y o u  t h a t  M r .  R e e d  s a i d  i n  

h i s  p r e s e n c e  a n d  h e r  o r e s e n c e  a n d  M r s .  w i n s e t t ’ s  

p r e s e n c e ,  d i d  R e e d  d e n y  i t ?

M R .  S U T T E R :  O b j e c t ,  Y o u r  H o n o r —

T H E  C O U R T :  I  s u s t a i n  t h e  o b j e c t i o n  t o  w h a t

h e  s a i d  i n  t h e  q u e s t i o n ,  t h a t ' s  n o t  w h a t  s h e  s a i d .

T r y  i t  a g a i n ,  M r .  W i l l i a m s .

M R .  W I L L I A M S :  N o w ,  w a i t  a  m i n u t e - -

T H E  C O U R T :  W e l l ,  t r y  i t  a g a i n - .

B Y  M R .  W I L L I A M S :

0 .  W h e n  y o u  t o l d  h e r - ~ w h e n  y o u  t o l d  M r s .  W i n s e t t

w h a t  y o u ' v e  j u s t  s a i d  y o u  t o l d  h e r ,  w a s  M r .  R e e d  t h e r e ?  

A.  Y e s .

00227



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q , W a s  M r .  P e e d  l i s t e n i n g ?

A, Y e s ,  s i r ,  M r .  R e e d - -

0  H o w  f a r  w a s  h e  f r o m  y o u ?

A.  H e  w a s  s i t t i n g  t o  t h e  s i d e  o f  M r s . - .  V m s e t t ,  I

d o n ' t  k n o w  w h i c h  s i d e .

0 .  W e r e  t h e y  i n  a p p r o x i m a t e l y  h o w  m a n y  f e e t  f r o m

y o u ?

A.  F r o m  M r s .  W i n s e t t ?

0 ,  F r o m  y o u  w h e n  y o u  w e r e  t e l l i n g  h e r .

A.  A p p r o x i m a t e l y  8  f e e t  f r o m  m e .

0 .  W a s  M i s s  B r o w n  t h e r e ?

A.  M i s s  B r o w n  w a s  t h e r e .

0 ,  A p p r o x i m a t e l y  h o w  f a r  w a s  s h e  f r o m  y o u ?

A.  A b o u t  4  f e e t  f r o m  m e .

M R . SUTTER: Stipulate, Your Honor, t h e y  w e r e

all sitting around a table.

B Y  M R .  W I L L I A M S :

0 W e r e  t h e y  a l l  w i t h i n e  a r  s h o t o  f y o u ?

A. Y e s .  W e  w e r e  i n  M r s . w i  n  s  e  1 1 ’ s o f f i c e .

o. L o o k i n g  a t  y o u ?

A. Y e s .

Q. A l l  r i g h t .  W a s  a n y r e  s  n o n  s  e m  a d e  b v  M r

d i d  h e  s p e a k  a t  a l l ,  o r  m a k e  a n } '  r e s p o n s e  a t  t h e  e n d  

o f  y o u r  s t a t e m e n t  t h a t  y o u ’ v e  j u s t  t e s t i f i e d ?

T H E  C O U R T :  I t ' s  h e a r s a y .  I ' l l  t a k e  i t  u n d e r

0022s



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a d v i s e m e n t .

M R .  S U T T E R :  A l l  r i g h t ,  Y o u r  H o n o r .

MR. W I L L I A M S :  I f  Y o u r  H o n o r  p l e a s e ,  ' < r .

R e e d ,  M r s .  B r o w n  a n d  M r s .  W i n s e t t  w e r e -  a l l  m a n a g e r i a l  

e m p l o y e e s  o f  t h i s  c o m o a n y .

M R .  S U T T E R :  T h a t ' s  n o t  t r u e ,  M r .  R e e d  i s

n o t  e v e n  a  s u p e r v i s o r .  Y o u r  H o n o r .

T H E  C O U R T :  T h a t ' s  r i g h t .  A n d  n o t  m a n a g i n g

e m p l o y e e  o f  t h e  c o m p a n y .  T h e y  a r e  n o t  o f f i c e r s ,  n o t  

o f f i c e r s  o f  t h e  c o m p a n y ,  n o t  d i r e c t o r s  o f  t h e  c o m p a n y

i
a n d  n o t  m a n a g i n g  a g e n t s  o f  t h e  c o m p a n y .

MR. WILLI A M S : B u t  t h e y  a r e  a l l  h e r  s u p e r 

v i s o r s ,  a n d  s h e  w a s  b e i n g  c a l l e d  i n  o n  t h e  c a r p e t ,  i f  

Y o u r  H o n o r  P l e a s e ,  a n d  w a s  r e s p o n d i n g  t o . t h a t . II
T H E  C O U R T :  H e  m a d e  t h e  o b j e c t i o n  a n d  I  t o o k  1

i t  u n d e r  a d v i s e m e n t .  I ’ m  g o  i  n o  t o  k e e p  t a k i n c  i t  u n d e r

j
a d v i  s e m e n t .

M R .  S U T T E R :  I f  I  c a n  h a v e  a  c o n t i n u i n g  I|
o b j  e c t i  o n - -

T H E  C O U R T :  T h e  w h o l e  w o r k s ,  e v e r y t h i n g ,

a  1 1 - - 1 o  h e r  t e s t i m o n y ,  ' m u  h a v e  o b j e c t i o n  t o  h e a r s a y  

e v i d e n c e  a n d  t o  s t a t e m e n t s  o f  i n d i v i d u a l  o p i n i o n ,  

c o n c l u s i o n s  a n d  s o  f o r t h ,  a n d  I ’ l l  t a k e  t h e m  a l l  u n d e r  

a d v i s e m e n t .  G o  a h e a d .

I f  Y o u r  H o n o r  p l e a s e ,  I  o b j e c t

00229

M R .  W I L L I A M S :



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Jones Di rect 7 0 9

t o  t h a t  b e c a u s e  i n  t h a t  p o s t u r e  I  c a n n o t  k n o w  a t  

t r i a l  w h a t  i s  b e i n g  a d m i t t e d  a n d  w h a t  i s  n o t  b e i n g  

a d m i t t e d .

M R .  S U T T E R :  Y o u r  H o n o r ,  I  t h i n k  h e  c a n  k n o w

w h e t h e r  i t ’ s  h e a r s a y  s t a t e m e n t s .  I t ’ s  v e r y  e a s v .

T H E  C O U R T :  I t ' s  v e r y  s i m p l e .  Y o u  k n o w  w h a t

t h e  R u l e s  o f  E v i d e n c e  a r e .

MR. W I L L I A M S :  I t  s e e m s  t o  m e  i t ' s  c l e a r l v

n o t  h e a r s a y  i f  i t ' s  m a d e  i n  t h e  p r e s e n c e  o f  t h e  p e r s o n  

w h o  i s  a l l e g e d  t o  h a v e  m a d e  t h e  s t a t e m e n t ,  Y o u r  H o n o r  

p l e a s e .

T H E  C O U R T :  L e t  m e  r e a d  y o u  t h e  r u l e  o n

h e a r s a y  e v i d e n c e .

( R e a d i n g )  H e a r s a y  i s  a  s t a t e m e n t  o t h e r  t h a n  

o n e  m a d e  b y  t h e  d e c l a r a n t  w h i l e  t e s t i f y i n g  i n  t h e  t r i a l  

o f f e r e d  i n  e v i d e n c e  f o r  t h e  t r u t h  o f  t h e  m a t t e r s  

a s s e r t e d .  T h a t ’ s  h e a r s a y .

M R .  W I L L I A M S :  A n d  i t ' s  n o t ,  i *  v o u r  H o n o r

p l e a s e ,  i f  i t ' s - - w e l l ,  i f  Y o u r  H o n o r  p l e a s e ,  J  j u s t  

o b j e c t  t o  t h e  r u l i n g  o f  t h e  C o u r t  w i t h  t h e  g r e a t e s t  

r e s p e c t  a n d  d e f e r e n c e .

T H E  C O U R T :  Y e s ,  s i r ,  Q O  r i g h t  a h e a d .

B Y  M R .  W I L L I A M S :

0 .  N o w  t h e n ,  M r s .  J o n e s ,  w h a t  d i d  M r s .  W i n s e t t  t e l l

t h a t  c e r t a i n l y  i s  n o t  h e a r s a v ,  w h a t  d i d  s h e  t e l l

0 0 2 3 0

y o u  ,



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Jones Direct 710

y o u  a f t e r  v o u  t o l d  h e r  t h a t ?

I  e x D l a i n e d  t o  M r s .  W i n s e t t  w h y  I  h a d  h e l n e d  

C a r o l y n  H a t c h e r  i n  h e r  w o r k .  M r s .  w i n s e t t  d i d n ' t  s a v  

a n y t h i n g  a t  t h a t  p o i n t .

0  w h o  s a i d  a n y t h i n g  a t  t h a t  p o i n t ?

A.  M i s s  B r o w n  s a i d  s h e  t o l d  m e - - s h e  t o l d  M r s .  w i n s e t t

t h a t  s h e  h a d  t o l d  m e  n o t  t o  t r a i n  C a r o l y n  H a t c h e r .

T H E C O U R T :  A n d  s h e  h a d  t o l d  v o u  t h a t .

T H E

C m * .  i b i J e s J
W I T N E S S :  S h e  h a d  n o t  t o l d  m e  t o  t r a i n  

A

C a r o l y n  H a t c h e r  o n  a n y  l i n e s  o f  a n v  i n s u r a n c e .

T H E C O U R T :  S h e  h a d  n e v e r  t o l d  y o u  t h a t ?

m y E W I T N E S S :  N o .

T H E C O U R T :  S h e  l i e d  w h e n  s h e  s a i d  s h e  t o l d

v o u  n o t  t o  t r a i n  t h e  g i r l ?

T H E W I T N E S S :  S h e  l i e d  t o  m e  s a y i n g  s h e  t o l d

m e -  -

T H E C O U R T :  H a d  s h e  e v e r  t o l d  y o u  b e f o r e  n o t

t o  h e l p  t h i s  g i r l ,  t r a i n  h e r ?

T H E W I T N E S S :  N o ,  s h e  h a d  n o t  t o l d  m e  i n  t h a t

r e s p e c t .

T H E  C O U R T :  S h e  h a d  n e v e r  m e n t i o n e d  t h i s  g i r l |
t o  y o u  b e f o r e  a s  f a r  a s  a n v  t r a i n i n g  w a s  c o n c e r n e d ?

T H E  W I T N E S S :  N o ,  s h e  h a d  n o t .

T H E  C O U R T :  T h i s  w a s  a b s o l u t e l y  n e w s  t o  v o u

w h e n  t h e y  t o l d  v o u  t h a t  v o u  w e r e  g u i l t y  o f  i n s u b o r d i n a t i

0 0 2 3 1



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b e c a u s e  y o u  h a d  h e l p e d  h e r ?

T H E  W I T N E S S :  T h i s  w a s  n e w s  t o  n e , s h e  w a s

t e l l i n g - -

T H E  C O U R T :  W h a t  h a d  s h e  t o l d  y o u ?

T H E  W I T N E S S :  S h e  r e a l l v  d i d n ' t  h a k e  i t  c l e a r

w h a t  s h e  h a d  t o l d  m e  i n  t h e  o a s t ,  p r i o r  t o  t h e  t r i a l .

T H E  C O U R T :  D i d  y o u  t h i n k  t h e r e  w a s  s o m e

i d e a  s h e  d i d n ' t  w a n t  y o u  t o  h e l p  t h e  q i r l ?  r - i v e n  y o u

a n y  i n d i c a t i o n  a t  a l l ?

T H E  W I T N E S S :  N o ,  I  d i d n ' t  u n d e r s t a n d  w h y

I  c o u l d n ' t  h e l p  C a r o l y n  H a t c h e r .

T H E  C O U R T :  D i d  y o u  h a v e  a n y  k i n d  o f  t h o u g h t  

p r o c e s s  w h y  M i s s  B r o w n  d i d n ' t  w a n t  y o u  t o  h e 1 o  t h i s  o i r l  

T H E  W I T N E S S :  N o ,  I  d i d  n o t .

T H E  C O U R T :  T h a t  w a s  a b s o l u t e l y  n e w s  t o  y o u .

T H E  W I T N E S S :  T h i s  w a s  n e w s  t o  m e .

T H E  C O U R T :  G o o d  e n o u g h .  T h a t ' s  w h a t  I  w a n t e d

to know.

B Y  M R .  W I L L I A M S :

0. N o w ,  M r s .  J o n e s ,  w h e n  M i s s  B r o w n  t o l d  M r s - W i n s e t t

t h a t ,  w h a t  d i d  y o u -  t e l l  M i s s  B r o w n ?

A.  I  t o l d  M i s s  B r o w n  t h a t  I  c o u l d  r e m e m b e r  a  W o r k e r ' s

C o n d e n s a t i o n  c a s e  t h a t  h a d  c o m e  u p  p r i o r  t o  t h e  t r i a l  

i n  t h i s  c a s e  w h e r e  D a n n y  R e e d - -

0 .  W h e n  y o u  s a y  p r i o r  t o  t h e  t r i a l ,  w h a t  t r i a l ?

00232



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Jones - Cross 7 6 4
;

A. D o n n a  M a n n i n g .

0 A n d  i m m e d i a t e l y  b e h i n d h e r ? -

A. C a r o l  B r o w n .

0 . D o  y o u  k n o w  w h e t h e r  o r n o t t h e e - 1  e c t r i c i a n

w i t h w h o m  y o u  h a d  d i  s c u s s  i o n s o n t h e l i g h t i n g  w a s

Continental Insurance Company employee or an individual 

employed by the building owners?

A. I do not know.

MR.SUTTER: Your Honor, I have trial

testimony that qoes to the Hatcher instructions 

immediately prior to February, '83 trial period. Your 

Honor asked her a series of questions directly about 

what Miss Brown had done. I'd like to let her s e e  

that and ask her some questions.

THE COURT: All right.

MR. SUTTER: May I approach the witness,

Your Honor?

(DOCUMENT PASSED TO WITNESS.)

BY MR. SUTTER:

Q. I'm sorry, we have one copy of that transcript,

page 422 and 423. It's not very long, Your Honor,

I'd like her to read that and then I want to ask her 

some questions on it.

THE COURT: Read it to herself you mean?

MR. S U T T E R :  Yes.
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765Jones - Cross
[M 5. J

THE WITNESS: You want me to read the whole

page?

m r . SUTTER: Read the descriotion of the

Hatcher training. It runs over a little bit onto 423.

THE WITNESS: (Pause) Yes, I read it.

BY MR. SUTTER:

0.  You've read that. I s  it still your testimony

that Miss Brown did not tell you to discontinue 

training Mrs. Hatcher before the last segment of 

this trial?

A. It's still my testimony that when I apnroached

Carol about trainina of Carolyn Hatcher--

THE COURT: No, wait a minute. Answer yes

or no .

THE WITNESS: No.

THE COURT: No, what?

THE WITNESS: No, what is on here is not

what I understood Carol Brown to tell me.

THE COURT: Let me look at it.

A. (Passed to the Court) j

THE COURT: I know what she said.' Go to
ji

somethin^ else. I
MR. SUITER: All right,Your Honor.

!BY MR. SUTTER: !

0 Mrs® Jones, vou made a statement that sometime, j

00234 |



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Jones - Cross 7 6 6

M_a or June, if I've got the date right, 19 83,

Raymond Lyle is alleged to have said to you somethinc 

to the effect you were a goddamn nigger. That's the 

important phrase. And I want to ask you whether or 

not when you passed that telephone call to Mr. Farmer 

you advised Mr. Farmer that in fact that phrase had 

been used with respect to you.

A. Mo, I did not.

0. Isn't it a fact that you never advised anv

supervisor of the Continental Insurance Company, 

Nashville office, that that phrase had ever been used 

by Raymond Lyle against you?

A. No, I did not.

0.. You made a statement with resoect to the last

week in July in reference to a list of new business 

applications that you extracted from a Dentaflex 

folder that you believed to be Jeff Corvin's work, 

and your counsel showed you a list of two oaaes 

which had a number of agencv or account names on

them, and you read them into the record.. Did you show

that list to Miss Brown?

A. Miss Brown told. me--no, I did not.

0. Can. you tell me when 'mu were on vacation in

the summer of 1933, if I am correct, among other 

tines, it was the last week in Julv, 1983, was it not?

00235



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Jones - Cros s 770

meant by those terms?

A. Yes, and I told them the abusive and profane

language.

Q At that time did you make any 'reference to any

of those individuals in that conference to Paymond L y l e  

or anv other individual had used the term "goddamn 

nigger" with reference to you?

A. No, they did not ask' me any specifics.

MR. SUTTER: I have no further questions.

REDIRECT EXAMINATION

BY MR. WILLIAMS:

0. Now, Mrs. Jones, I'm handing you again page 422 j

of the transcript of the hearing in February of 1983. 

(PASSED TO WITNESS)
!

And to which you were referred by defense 

counsel on cross-examination. Do you have an explana

tion of that testimony in light of your testimony 

today?

A. When I had talked to Carol Brown about traininn I
jCarolyn Hatcher, we were only talking about Worker's 

Compensation, because at the time I pointed out to 

Carol Brown the rule because she says no, he did not 

tell her wrong, and I said, Carol, he told her wrona.

He should not be telling her incorrectly how to under

write if he's training her. And I showed her tqhe,

i

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0. Have a copy of those handwritten notes been

made the last page of Exhibit A-L?

A.  Y e s ,  i t  i s  t h e  l a s t  i t e m .

Q. Will you take vour time and tell us as much as

you remember about what vou said, what Mrs. Jones said 

during that telephone conversation?

MR.WILLIAMS: We object to the handwritten

notes as being inadmissible hearsay, if Your Honor 

please.

THE COURT: Overruled.

M R S .  C L A R K :  G o  a h e a d .

Du. Fz<ce]
T H E  W I T N E S S :  W e l l ,  i n i t i a l l y  I  c a l l e d  h e rA

and asked her to explain the letter, and she attempted 

to but I did not understand her explanat ion any more 

than I understood her letter. But the conversation 

took quite a tangent in that .Gwen did at that point 

for the first time to me, express her feelings about 

working with our agency, about our agency. She pro

ceeded to tell me that our agency had a 75 percent 

error ratio on the automobile policies that we rated 

and processed and sent over there, but that we had 

improved that within the last two years, and she said 

she would take full credit for that because she had 

worked really hard, I don't know, I don't know how? 

she felt--came to that conclusion, and she did not

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Price - Direct 800

e x p l a i n  t h a t .  B u t  s h e  s a i d  s h e  w o u l d  t a k e  c r e d i t  

f o r  t h a t .  S h e  s a i d  t h a t  s e v e r a l  v e a r s  a g o ,  a n d  a  l o t  

o f  t h e s e  a r e  d i r e c t  Q u o t e s ,  t h e s e  u n d e r w r i t e r s  d i d n ' t  

k n o w  p o o p  a b o u t  n o t h i n q ,  i s  w h a t  s h e  s a i d ,  a n d  s h e  

w e n t  o n  t o  s a y  t h a t  w h e n  s h e  c a m e  t h e r e  n o b o d y  k n e w  

a n y t h i n g  a b o u t  n o - f a u l t ,  w h i c h  i s  p r o b a b l y  t r u e ,  

b e c a u s e  w e  d o n ' t  d e a l  w i t h  n o - f a u l t  t h a t  m u c h ,  n o t  

b e i n g  a  n o - f a u l t  s t a t e  i n  T e n n e s s e e .

A n d  t h e  c h r o n o l o g y  o f  t h i s ,  I  c a n ' t  t e s t i f y  t o .  I  

d o n ' t  k n o w  i n  w h a t  o r d e r  a l l  t h i s  w a s  s a i d .  I t  w a s  

q u i t e  a  l e n g t h y  c o n v e r s a t i o n .  S h e  d i d  t e l l  m e  t h a t ,  

b e i n g  a  b l a c k  p e r s o n ,  i n  t h e  b u s i n e s s  w o r l d ,  t h a t  t h e  

b o o k s  w e r e  n o t  p r e s e n t e d  t o  h e r ,  a n d  s h e  h a d  t o  c o m e  

u p  t h e  h a r d  w a y ,  a n d  t h a t  p r i o r  t o  C a r o l  c o m i n g  s h e  

h a d  t h o u g h t  s h e  k n e w  a s  m u c h  a s  a n v o n e  t h e r e .  A n d  I  

a s s u m e d  s h e  w a s  t a l k i n g  a b o u t  C a r o l  B r o w n .  A t  o n e  

p o i n t  s h e  s a i d ,  I  h a v e  t o  b e  s o m e w h e r e —

M R .  W I L L I A M S :  I f  t h e  C o u r t  p l e a s e ,  w e  o b i e c t

t o  t h e  a s s u m p t i o n  c h a r a c t e r i z a t i o n .

T H E  C O U R T :  S u s t a i n  t h e  o b j e c t i o n  a s  t o  t h e

a s s u m p t i o n .  G o  a h e a d .

A.  ( B y  t h e  w i t n e s s )  S h e  d i d  t e l l  m e  t h a t ,  a n d  I

t h i n k  s h e  w a s  r e f e r r i n g  t o  t h e  w o r d  p r e j u d i c e  i n  t h e

l e t t e r ,  t h a t  o r e j u d i c e  h a s  a  l o t  o f  m e a n i n g s ,  n o t  j u s t

«
r a c i a l  p r e j u d i c e s .  S h e  w e n t  o n  t o  s a y  t h a t  s h e  t h o u g h t

0023s



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Price Direct 801

for awhile they would reassign her away from our 

agency. What promoted that I don't know. But she 

said, and then nothing. Then she wasn't reassigned.

She hadn't been reassigned at that point. But other 

things she said was she was talking about the comments 

that was written on the endorsement that we returned, 

the handwritten comment.

O' (By Mrs. Clark) Which comment was that?

it said--I'll get a copy of it here--it's dated 

7/8/83. It says, Gwen, can you not read a file? See 

Bureau inspection notice. Cancel this endorsement,

W . R . L .

0. What did either of you say about that?

A. Well, she told me that that was the most insult

ing thing that had ever been said to her in her business 

life. And I made the comment, asked her how long
i|

she'd been in business, and she told me how' long, and
II said, well, you’ve been awful damn lucky, because 

I've had worse— a whole lot worse things than that 

said to me. But she went on to explain that her inter-' 

pretation of that was that she was so stupid she didn't-’ 

know how to read. That was not the intent of the memo-t 

MR. DINKINS: Well, if Your Honor please,

she did not write that memo. She cannot say that.

I'll sustain the objection.

0 0 2 3 9

THE COURT:



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B Y  M R S  .  C L A R K :

0.  D i d  y o u  a d v i s e  h e r  y o u  h a d  n o t  w r i t t e n  t h e  m e m o ?

A.  A t  t h a t  t i m e  I  d i d ,  a n d  I  g o t  t h e  d i s t i n c t

i m p r e s s i o n  f r o m  h e r  t h a t  t h a t  w a s  t h e  f i r s t  s h e  

r e a l i z e d - - i n  f a c t ,  s h e  t o l d  m e  s h e  d i d n ' t  k n o w  t h o s e  

w e r e  R a y m o n d ’ s  i n i t i a l s ,  a n d  b e c a u s e  t h a t  e n d o r s e m e n t  

w a s  s e n t  b a c k  w i t h  a  c o p y  o f  t h e  c o v e r  l e t t e r  d i c t a t e d  

a n d  s i g n e d  b y  m e ,  t h a t  s h e  d i d  t h i n k  t h a t  I  w r o t e  t h e  

r e m a r k  o n  t h e  e n d o r s e m e n t .  W h e n  I - -  

Q.  G o  a h e a d .

A .  W h e n  I  i n f o r m e d  h e r  t h a t  R a y m o n d  L y l e  h a d  i n  f a c t

w r i t t e n  t h a t  o n  t h e  e n d o r s e m e n t ,  t h a t  c o m m e n t  w a s  t h e  

p o i n t  s h e  s a i d  t h a t  s h e  k n e w  a b o u t  R a y m o n d  L y l e  a n d  

h i s  m o u t h ,  a n d  h e ' d  b e t t e r  w a t c h  i t  b e c a u s e  t h e r e  w a s  

s u c h  a  t h i n g  a s  s l a n d e r  a n d  h i s  m o u t h  w a s  g o i n g  t o  g e t  

h i m  i n  t r o u b l e .

0 .  D i d  s h e  s t a t e  t o  y o u  a n y  s p e c i f i c  l a n g u a g e  u s e d

b y  M r .  L y l e  t o  w h i c h  s h e  w a s  r e f e r r i n g ?

A, N o  . N o  .

n. D i d s h e t e l l y o u  h e  h a d  e v e r  c a l l e d h e r a n y

a b u s i v e  n a m e s ?

A. N o  , s h e d i d n o t .

0 . D i d s h e u s e a n y  s p e c i f i c  e x a m p l e s ?

A. N o  , s h e d i d n o t .

0 . I  s t h e r e a n y t h i n g  e l s e  s h e  t o l d  y o u y o u h a v e  n o t

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Price Direct- 803

testified about?

A. There were other things di scussed, and it's been

six months ago. I don't recall all of it, and did not 

write i c all down. There was a gentleman in my office 

that came in to see me durina the conversation and 

knew that this w a s--w a s interested in it enough to 

sit down and listen. And he was making faces at me 

during it, but, anyway, there were a number of other 

things said. But quite frankly, some of the things 

that she said I didn't even understand what she was 

saying. Understood all the words, but I didn't under

stand the way they were put together.

0. Did she make any compl a m t  to you about foul

language, cursing that you had used?

A. No, she didn't.

0. What was your reaction to that telephone call?

A. Well, my reaction was that-based on things Gwen

had said to me, it was obvious to me that we had 

irreconcilable differences where we could not deal 

together. I discussed it as soon as possible with 

Parks Brandon, and as a result of that, we did tell 

Continental we demanded insofar as we could demand, 

another underwriter be assigned to us, and she be 

reassigned off our agency, or we were suspending all 

business with the company, period. #
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Price Cr o s s 835

of the sentence where Mrs. Jones indicated her desire 

to continue the business relationship?
D* s .?(2i c e 3A. Because she is the first one that brought up

hate and prejudice.

Q- And she also brought up her desire to continue

the professional relationship.

A. After 1 think accusing roe of acting improperly

toward her, but never specifying what those improper 

actions were.

0- Well, you had written her a rather hot memo,

is that correct?

A. That is true, I guess.

0- I believe your testmony in the deposition was

that even though--! don't mean to embarrass you here-- 

THE COURT: That’s all right, go ahead.

Q- (Mr. Dinkins) Even though you are prone to use

a little salty language every now and then, you do not 

put it in professional correspondence.

A. That is true.

Q- Yet you did put that language in writing, in

professional communication to Mrs. Jones'.

A. That is true.

0 Now, you recall in your deposition I also

asked you about Mr. Lyle and his proclivity or lack 

thereof for using salty language. And did you agree he

0 0 2 4 2
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Jones v. The Continental Corporation Appendix

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