Simmons v Brown Reply Brief for Plaintiffs Appellants
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January 29, 1979

21 pages
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Brief Collection, LDF Court Filings. Simmons v Brown Reply Brief for Plaintiffs Appellants, 1979. 7d3bd36c-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cb9b5a06-ced8-4fa9-ab58-b277741dd08e/simmons-v-brown-reply-brief-for-plaintiffs-appellants. Accessed July 20, 2025.
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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 78-1709 JAMES E . SIMMONS, et al. , Plaintiffs-Appellants, v. HAROLD R. BROWN, et al., Defendants-Appellees. IN THE On Appeal From The United States District Court For The Eastern District of Virginia Norfolk Division REPLY BRIEF FOR PLAINTIFFS-APPELLANTS JACK GREENBERG CHARLES STEPHEN RALSTON BILL LANN LEE GAIL J. WRIGHT Suite 2030 10 Columbus Circle New York, New York 10019 HENRY L. MARSH, III STEPHANIE J. VALENTINE RANDALL G. JOHNSON HILL, TUCKER & MARSH 509 North Third Street Post Office Box 27363 Richmond, Virginia 23261 Attorneys for Plaintiffs-Appellants IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 78-1709 JAMES E. SIMMONS, et al., Plaintiffs-Appellants, v. HAROLD R. BROWN, et al., Defendants-Appellees. On Appeal From The United States District Court For The Eastern District of Virginia . Norfolk Division REPLY BRIEF FOR PLAINTIFFS-APPELLANTS PRELIMINARY STATEMENT In their brief, the defendants-appellees urge two points: first, that the district court properly dismissed the class action on the ground the named plaintiffs were not proper class representatives; and second, that the district court in fact made a full Rule 23 determination in reaching its finding that the requirements for class certification had not been met. Both of these assertions are patently incorrect. ARGUMENTS 1. Plaintiffs in their motion for summary reversal and in their main brief present an exhaustive discussion which TABLE OF CONTENTS preliminary Statement............................... 1 Argument............................................. 1 Conclusion........................................... 12 Table of Authorities Cases: Allen v. Likins, 517 F.2d 532 (8th Cir.1975)...... 10 Arkansas Educ. Assn. v. Bd. of Educ. of Portland 446, F . 2d 763, 767 (8th Cir. 1971)................ 9 Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975).................................................... 10 Barrett v. united States Civil Service Comm., 14 FEP Cases 1007 (D.D.C. 1977)................. 10 Basil v. Knebel, 551 F.2d 395, 397 (D.C. Cir. 1977) 7 Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 442 (5th Cir. 1974)....................... 12 Berman v. Narragansett Racing Assn., 414 F.2d 311, 317 (1st Cir. 1969).............................. 9 Brown v. Gaston Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972)cert, denied, 409 U.S. 982 (1972) 11 Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973)........................................ 4 Chrapliwy v. uniroyal, Inc., ____ F.Supp.____ , 7 FEP Cases 343, 345 (N.D. ind. 1974)............. 12 Donaldson v. pillsbury, 554 F.2d 825, 832-834 (8th Cir. 1977) (plaintiffs' Brief 12-13)....... 4,8 Page -l- East Texas Motor Freight v. Rodriguez, 431 U.S. 395 (1977)............................................ 3,6 Ellis v. Naval Air Newark Facility, 404 F.Supp. 391 (N.D. Ca., 1975).............................. 10 Franks v. Bowman Transp. Co., 423 U.S. 814 (1976). 5,6' Geraghty v. united States parole Commission, 579 F.2d 238, 245-254 (3rd Cir. 1978)................ 7 Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978).................. 2 Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) 4 international Brotherhood of Teamsters v. united States, 431 U.S. 324............................. 5,6 Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969)................ 11 Lamphere v. Brown university, 553 F.2d 714, 719 (1st Cir. 1977)...... 5 Lasky v. Quinlan, 558 F.2d 113, 1136-37 (2nd Cir. 1977)..... 7 Leisner v. N.Y. Telephone Co., 358 F. Supp. 359 (S.D.N.Y. 1973)............... 9 Long v. Sapp, 502 F.2d 34 (5th Cir. 1974)......... 11 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973)........................................ 5 Pettway v. American Cast iron pipe Co., 494 F.2d 211, 257-258 (5th Cir. 1974).................... 4 Phillips v. Klassen, 520 F.2d 362, 366 (D.D.C. Cir. 1974)............................................. 8 price v. Lucky Stores, Inc., 501 F.2d 1177, 1179 (9th Cir. 1974).................................. 3 Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972).... 12 Page -ii- Page Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978)................................ . 5,6 Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976)........................................ 12 Sperry Rand Corp. v. Larson, 554 F.2d 868 (8th Cir. 1977)............... 9 United States Transportation union, Local 574 v. Norfolk & Western Ry„, 532 F.2d 336 (4th Cir. 1975) 4 V.Jo Rockier & Co., v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D. Minn. 1971)................... 8 Walker v. World Tile Group, 563 F.2d 918, 921 (8th Cir. 1977).... ............................. 7,8 Wells v. Ramsey Scarlett and Company, Inc., 506 F.2d 436 (5th Cir. 1975).............................. 9 Wetzel v. Liberty Mutual ins. Co., 508 F.2d 239 (3rd Cir. 1975).................................. 8 White v. Nassau County Police Dept., 15 FEP Cases 266 (S.D.N.Y. 1977).............................. 10 Williams v. City of New Orleans, ____ F.Supp.____ 18 FEP 347 (E.D0 La. January 14, 1978)......... 10 Winokur v. Bell Federal Sav. & Loan Ass'n., 560 F. 2d 271, 274 (7th Cir. 1977)................... 10 Zurak v. Regan, 550 F.2d 113, 1136-37 (2nd Cir. 1977) 7 Secondary Authorities Manual for Complex Litigation, part I §1.40........ 4 -ill- demonstrates that the lower court failed to comply with this Court's mandate. Plaintiffs rely on this Court's recent decision in Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978), and submit that at least this case should be remanded to the district court so that the other class members will have the opportunity to come forward. The defendants make a futile attempt to dis tinguish Goodman on grounds which do not withstand analysis. In Goodman, the district court decided the question of class action certification prior to class discovery being conducted. Accordingly, the Court of Appeals found that there was not enough evidence in the record to make a proper determination. In the instant case the facts which lead to a Goodman ruling are even more compelling. Here, there was no Rule 23 determination at all! Class certification was denied on the grounds that the named plaintiffs were not proper representatives because of the deter mination on the merits of their individual claims that they had not been discriminated against. Assuming, arguendo, that the Court below was correct in not reconsidering the individual claims, the posture of the present case now is even less favor able to the government than in Goodman, since there the Court had decided the Rule 23 issues, albeit prematurely. Both Goodman and the instant case involve the same essential elements: (1) a failure to properly decide class certifications; and (2) a decision on the merits of the individual claims. In both cases, a remand is required. 2 2. Defendants contend that the district court's cryptic statement, in its order denying reconsideration of its denial of a class action, that "the pleadings and facts presented fail to establish any basis for certifying a class action," was a decision on the merits of the Rule 23 issues. We submit that if such was the lower court's intention, then it failed to comply with the requirements of Rule 23, viz., that it make specific findings and explain in what way the requirements of Rule 23 were not met. With all due respect to the Court below, it appears to us that the one sentence pronouncement is no more than an afterthought. The basis for both the original order denying a class action and the order denying reconsideration was clearly the Court's reading of East Texas Motor Freight v, Rodriguez, 431 U.S. 395 (1977). The Court's determination which fails to describe the material facts or disclose the reasons on which the decision is based is insufficient. Price v. Lucky Stores, Inc,, 501 F .2d 1177, 1179 (9th Cir. 1974). Although defend ants contend that "the lower court considered and weighed the pleadings and facts," it is clear that they have no basis for supposing that such was the case, and in fact even if it were the court certainly did not consider all of the class wide evidence which plaintiffs had not discovered nor pre sented. (Defendants'Brief, p. 11). -3- 3. The defendants in their argument attempt to camouflage the fact that plaintiffs were not provided an opportunity to conduct or present classwide discovery by stating that the "doors to the Civilian Personnel Office were opened ..." (Defendants' Brief, p. 5). This discovery' which defendants describe as being extensive and inclusive of various personnel papers, was conducted for class certifi cation purposes, and is not to be confused with the broad scope of discovery which would be needed to prove the merits of classwide discrimination. See, e.g., Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973). See also, Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973). The courts have held that although limited discovery could be conducted for pre-certification purposes, broader discovery should be subsequently conducted pertaining to the merits of the allega tions of classwide discrimination. See, e.g., United States Transportation Union, Local 574 v. Norfolk & Western Ry., 532 F.2d 336 (4th Cir. 1975); Pettway v. American Cast Iron Pipe Co. , 494 F.2d 211, 257-258 (5th Cir. 1974). This practice is not only sanctioned by the courts, but the Manual for Complex Litigation recommends that discovery be conducted in "sequential waves"; the first wave limited to the class question followed by discovery on the merits. See Manual for Complex Litigation, Part I § 1.40. Had this process been followed, the individual named plaintiffs could have presented their claims in light of the classwide evidence. See, e.g., Donaldson v. Pillsburv, 554 F.2d 825, 832-834 (8th Cir. 1977) (Plaintiffs' Brief 12-13). -4- The Supreme Court has recognized that an individual claim of discrimination cannot be decided without first de ciding whether there is a classwide pattern or practice of discrimination. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324; Franks v. Bowman Transp. Co., 423 U.S. 814 (1976); McDonnell Douglas Corp v. Green, 411 U.S. 792, 805 (1973). The circuit courts in following this prin ciple have expressly required that the plaintiff be permitted to establish the classwide issue prior to a determination of the individual claim. See, e.g., Lamphere v. Brown University, 553 F.2d 714, 719 (1st Cir. 1977); Burns v. Thiokol, supra at 306; Donaldson v. Pillsbury, supra at 832-33. 4. Defendants in their brief cite Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) for the pro position that the individual named plaintiffs had no continuing interest in the litigation and did not have the necessary nexus to the proposed class because their claims were adjudged merit less. (Defendants Brief, p. 9). The facts which led to the court's denial of class certification in Satterwhite are dis tinguishable from this case. In Satterwhite the named plain tiff had never been an employee although she complained of specific employee oriented discriminatory employment practices affecting numerous classes of employees, nor had she suffered from the defendant employers' acts; and therefore did not re tain a personal stake in the outcome of the litigation. Plain tiffs here, are and were employees with a vested interest in the outcome of the lawsuit; they will continue to be affected by defendants' employment policies and procedures. Defendants' simplistic conclusion that they had "no nexus" because their -5- claimshad been negatively determined totally ignores that portion of Satterwhite which states that Long v. Sapp is still good law: "The lack of merit of representative's claim is not determinative in and of itself of the adequacy of his representation for Rule 23 purposes. ... a plaintiff without a viable claim may in appropriate circumstances, act as a class representative, provided he or she is a member of the class and maintains a sufficient homogenity of interests ...." at 993. As previously stressed, plaintiffs were denied a review of the classwide evidence which would demonstrate that their claims were homogenous with those of the class. 5. Defendants reliance on East Texas Motor Freight Systems, Inc, v. Rodriquez, 97 S.Ct. 1891, 1986 (1977) is fac tually misplaced. In that case the Supreme found that the individual claims lacked merit and that the plaintiffs had failed to appropriately request a certification hearing and that the plaintiffs failed to present class issues. In this action the Court considered the individual claims only and did not consider evidence of classwide pattern and practice discrimination, which plaintiffs here, contrary to those in Rodriguez, definitively desired to have considered. In addition, unlike plaintiffs in Rodriquez plaintiffs requested a class certification hearing during which they would have pre sented evidence of classwide discrimination which had affected the individual named plaintiffs. See, e.g.. International Brotherhood of Teamsters v. United States, supra; Franks v. Bowman Transp. Co., supra; McDonnell Douglas Corp. v. Green. supra. -6- 6. As these factors point out and as plaintiffs have discussed in their main brief and need not discuss to the point of being redundant, whether or not a motion for reconsideration had been filed was irrelevant to the outcome of the determination due to the fact that it was the prac tical unavailability of classwide evidence of discrimination that precluded a complete finding on the individual claims and not a premature technical pleading. 7. Defendants purport that Walker v. World Tile Group, 563 F.2d 918, 921 (8th Cir. 1977) is comparable to the instant lawsuit. First, it should be noted that other circuits have taken a position contrary to Walker and held that an erroneous failure to certify can be reviewed and corrected by an appellate court; and that such review "relates back" to the date on which the lower court failed to certify the class. See, e.g., Lasky v. Quinlan, 558 F.2d 113, 1136-37 (2nd Cir. 1977); Zurak v. Regan, 550 F.2d 86, 91-92 (2nd Cir. 1977); Geraghty v. United States Parole Commission, 579 F.2d 238, 245-254 (3rd Cir. 1978); Basil v. Knebel, 551 F.2d 395, 397 (D.C. Cir. 1977). It is our position that a careful reading of Walker, where the appellate court in fact stated that it did not approve of the lower court's convoluted certification procedure, reveals -7- that that case is inapplicable here. In Walker the plaintiff was given an opportunity to present pattern and practice evi dence but then did not prove that he was adversely affected by the alleged discriminatory practices. The court specifically determined that the case therefore was not controlled by Donaldson v. Pillsbury, supra. As plaintiffs have previously set forth, the remand order of the court of appeals required the development of classwide discovery which had not been con ducted or considered, and ordered that the named individuals claims were to be determined in light of such evidence. The distinction between the two cases is obvious. We do however, rely on defendants reference to Walker for another proposition which they omitted from their discussion, which is that: The District Court must have before it "sufficient material ... to determine the nature of the allegation and rule in com pliance with the Rule's requirement. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975) cert, denied. 429 U.S. 816 (1976)," at 921. 8. Finally, defendants cite Phillips v. Klassen, 520 F .2d 362, 366 (D.D.C. Cir. 1974) in a futile attempt to show that the named plaintiffs' claims are significantly antagonistic to those of the class they represent. Rule 23(a)(4), Federal Rules of Civil Procedure, is uniformly interpreted as re quiring a lack of antagonism between the representative and the class, Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd Cir. 1975), and freedom of conflict between the named plaintiffs' interests and those of the class, V.J. Rockier & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D. Minn. 1971). The courts -8- have firmly held that antagonism between the plaintiffs 1 interests and those of the class which would defeat claims of adequacy must go to the heart of the subject matter of the discrimination. See Sperry Rand Corp. v. Larson, 554 F.2d 868 (8th Cir. 1977); Berman v. Narragansett Racing Assn., 414 F.2d 311, 317 (1st Cir. 1969); and Arkansas Educ. Assn, v. Bd. of Educ. of Portland, 446 F.2d 763, 767 (8th Cir. 1971. Defendants' assertions fail to meet this test. Plaintiffs' interests in eliminating historic racially discriminatory practices can in no way conflict with the in terests of other, similarly-situated black persons. This is not a case where there are unionized and non-unionized employees which commonly involve conflicts of interest due to collective bargaining agreements and must include the union as an addi tional defendant. See, e.g., Wells v. Ramsey Scarlett and Company, Inc., 506 F.2d 436 (5th Cir. 1975). The former status of plaintiffs as past wage grade system employees and their current status as general schedule employees does not indicate any actualized antagonism between their interest and those of other class members. See Leisner v. N.Y. Telephone Co., 358 F. Supp. 359 (S.D.N.Y. 1973). Defendants suggest that the named individuals whom they finally decided to promote subsequent to the institution of the lawsuit cannot now adequately represent the class. To accept their "timely decision" to promote the named individuals as an action which removed the named plaintiffs from the class would be inequitable and unjust. Such a procedure would permit the defendant to deliberately preclude a class certification and -9- which would result in a denial of certification in the vast majority of cases. See, e.g., Allen v. Likins, 517 F.2d 532 (8th Cir. 1975); Winokur v. Bell Federal Sav. & Loan Ass'n., 560 F.2d 271, 274 (7th Cir. 1977). A recent court ruling on the very issue presented here held that named plaintiffs who were promoted to the positions they requested were still adequate representatives. Williams v. City of New Orleans, ____ F. Supp. ____ 18 FEP 347 (E.D. La. January 14, 1978). Furthermore, in actions challenging federal government agencies which involve various job classifications, categories, posi tions, and wage systems, the courts have not found the interests of the groups to be antagonistic. Ellis v. Naval Air Newark Facility, 404 F. Supp. 391 (N.D. Ca., 1975); Barrett v. United States Civil Service Commission, 14 FEP Cases 1007 (D.D.C. 1977); see also, White v. Nassau County Police Dept., 15 FEP Cases 266 (S.D.N.Y. 1977). The requirement of adequacy of representation has also been frequently treated as an adjunct of the requirement of typicality. Rule 23(a)(2) and (3) require respectively that there exist common question of fact or law and that the named plaintiffs' claims be typical of those of class members. Most employment discrimination decisions have viewed the two re quirements as closely related, illegal discrimination being both the common thread and the typical claim. The governing law in this circuit was declared in the Fourth Circuit's decision in Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975). There the Court of Appeals disapproved an unduly narrow class certification limited to class claims factually similar to those of the individual plaintiffs. It declared the approach -10- taken by the Fifth Circuit in Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969). "more consonant with the broad remedial purposes of Title VIT" and held "that the district court's less chari table view, under which Barnett could as a class representative challenge only those specific actions taken by the defendants toward him, would under cut those purposes." Barnett, supra 518 F.2d at 548. (Emphasis in text). The Fourth Circuit proceeded to declare itself in agreement with the Fifth Circuit's more recent decision in Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) where that court reversed the refusal of a district court to allow a plaintiff whose individual claim involved discriminatory discharge to represent a class includ ing rejected applicants. Like the plaintiff in Long, Barnett directed his attack at discriminatory policies of defendants manifested in in various actions, and as one who has allegedly been aggrieved by some of those actions he has demonstrated a sufficient nexus to enable him to represent others who have suffered from different actions motivated by the same policies." Barnett, supra 518 F .2d at 548. In this case plaintiffs make an across the board attack alleging that employment decisions at all steps of the employment process have been left to the uncontrolled discretion of white personnel. Historically such pervasive practices have been uni formly held illegal by the Fourth Circuit as well as other Courts of Appeals where they have an adverse impact on black employees. Brown v. Gaston Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972), -11- cert, denied, 409 U.S. 982 (1972); Rove v. General Motors Corp.. 457 F.2d 348 (5th Cir. 1972); Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 442 (5th Cir. 1974). The basing of employment decisions at all stages of employment on the un fettered discretion of predominately white officials and intermediate and higher supervisory personnel provides a nexus which amply satisfies the commonality and typicality require ments . Plaintiffs reasoned opinion as based on the case law is that the individual named plaintiffs are appropriate class representatives. However, should there be any questions, the courts have held that such doubts concerning the potential conflicts should be resolved in favor of upholding the class. See Chrapliwy v. Uniroval, Inc., ____ F. Supp. ___ , 7 FEP Cases 343, 345 (N.D. Ind. 1974); and Sperry Rand Corp. v. Larson, supra. CONCLUSION For the reasons presented in their Brief, Motion for Summary Reversal and as set forth herein, plaintiffs respectfully urge this Court to reverse the lower courts order, and remand the case and in accordance with the original -12- remand order which required that a decision be made as to whether a Rule 23 class action is maintainable; and for reconsideration of the named plaintiff's individual claims in light of classwide evidence. Respectfully submitted, JACK GREENBERG CHARLES STEPHEN RALSTON BILL LANN LEE GAIL J. WRIGHT Suite 2030 10 Columbus Circle New York, New York 10019 HENRY L. MARSH, III STEPHANIE J. VALENTINE RANDALL G. JOHNSON HILL, TUCKER & MARSH 509 North Third Street Post Office Box 27363 Richmond, Virginia 23261 Attorneys for Plaintiffs-Appellants -13- CERTIFICATE OF SERVICE I hereby certify that on this 29th day of January, 1979, copies of the preceding Reply Brief for Plaintiffs- Appellants were served on counsel for defendants-appellees by depositing same in the United States mail, first class postage prepaid, addressed as follows: Peter B. Lowenberg, Esq., Department of the Navy, 1735 North Lynn Street, Rosslyn, Virginia 22209. - / / ' Attorney for Plaintiffs-Appellants CERTIFICATE OF SERVICE I hereby certify that I have served copies of the attached Memorandum Amicus Curiae on the parties by depositing the same in the United States mail, first class postage prepaid, addressed as follows: John H. Harwood, II 1666 K Street, N.W. Washington, D.C. 20006 Attorney for Plaintiffs-Appellees John A. Terry William D. Pease Neil I. Levy Assistant United States Attorneys Room 3830 United States Courthouse Washington, D.C. 20001 Attorneys for Defendant-Appellant Dated: December , 1978. Attorney for Amicus Curiae 11 70 CONCLUSION In 1972 Congress was dissatisfied with the uncertain and ineffective enforcement of guarantees against employment dis crimination in federal departments and agencies.. Morton v. Mancari, 417 U.S. 535, 546-47 (1974); Roger v. Ball, supra, at 704-06. As a result, Congress enacted 42 U.S.C. §2000e-16 "to make the courts the final tribunal for the resolution of contro versies over charges of discrimination." Roger v. Ball, supra, 497 F. 2d at 70 6;. see also Alexander v . Gardner-Denver Co. , supra, at 60 n. 21. Proper resolution of the fundamental questions in this appeal - the availability of class actions, access to discovery of systemic discrimination, and the application of Title VII law to federal agencies - will in large measure decide if Title VII's broad pronouncement of rights is to become a reality for federal employees. For the foregoing reasons, the decision of the court below on the questions presented should be reversed. Respectfully submitted h e ; RANDALL G. JOHNSON STEPHANIE J. VALENTINE HILL, TUCRER & MARSH 214 East Clay Street P. 0. Box 27363 Richmond, VA 23261 JACR GREENBERG CHARLES STEPHEN RALSTON MELVIN R. LEVENTHAL BARRY L. GOLDSTEIN BILL LANN LEE Suite 2030 10 Columbus Circle New York, New York 10019 Counsel for Appellants C^c — *