Stallworth v. Monsanto Company Reply Brief of Appellants

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

1-----------
No. 75-2405

Eddie Stallworth, et al.,

* Plaintiffs,
v.

Monsanto Company,

J. W. Palmer, et al. ,
Defendant,

Movants.

Appeal from the United States 
District Court for the Northern 

District of Florida

REPLY BRIEF OF APPELLANTS

D. L. MIDDLEBROOKS and JEFFREY 
A. CRAMER, of
Levin, Warfield, Middlebrooks, Graff 
Mabie, Rosenbloum & Magie 

Seville Tower, 226 S. Palafox St. 
Pensacola, Florida 32501 
Attorneys for appellants-intervenors



TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ii-
ARGUMENT - INTRODUCTION 1

I . THE GRANTING OF THE MOTION TO INTERVENE 
WOULD NOT PREJUDICE THE EXISTING PARTIES 
TO THE LITIGATION, NOR UNDULY DELAY THE
PROCEEDINGS. 1

II. INTERVENORS DID NOT KNOW AND COULD NOT HAVE 
KNOWN THAT THE PENDENCY OF THIS LAWSUIT
COULD IN ANY MANNER AFFECT THEIR RIGHTS. 4

III. INTERVENTION SHOULD HAVE BEEN ALLOWED AS
O^ RIGHT. 8

A

CONCLUSION 11
CERTIFICATE OF SERVICE 12



TABLE OF AUTHORITIES

PAGE

CASES
Atlantis Development Corp. v. United States,
379 F .2d 818 (5th Cir. 1967) 8,10

Clark v. Sandusky, 205 F.2d 915 (7th Cir. 1953) 8

Diaz v. Southern Drilling Corp., 427 F.2d 1118 
(5th Cir. 1970), cert, denied Sub. nom., Trefina 
A. G. v. United States, 400 U.S. 878 (1970) 6

Donaldson v. United States, 400 U.S. 517 (1971) 9
EEOC v. United Airlines,Inc., 515 F.2d 946 (7th 
Cir. 1975) 6

Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir. 1974) 7

Hodgson v. United Mine Workers of America, 473 F.2d 
118 (D. C. Cir. 1972) 3-

Kinsey v. Legg, Mason & Co., Inc., 62 F.R.D. 469 
(D. D. C. 1974) 11

McDonald v. E. J. Lavino Co., 430 F.2d 1065 (5th 
Cir. 1970) 2,11

NAACP v. New York, 413 U.S. 345 (1973) 4,11
Nuesse v. Camp, 385 F.2d 694 (D. C. Cir. 1967) 8

Securities & Exchange Commission v. Bloomberg,
299 F .2d 315 (1st Cir. 1962) 6

Smith Petroleum Service, Inc. v. Monsanto Chemical Co.,
420 F .2d 1103 (5th Cir. 1970) 3

Smuck v. Hobson, 408 F.2d 175 (D. C. Cir. 1969) 8
Stevenson v. International Paper Co., _____ F.2d_____ ,
(5th Cir. Case No. 73-1758, decided July 16, 1975) 7

Walpert v. Bart, 44 F.R.D. 359 (D. Md.1968) 6



ARGUMENT

INTRODUCTION

Inasmuch as intervenors must reply to two briefs, a 

general discussion of the major issues raised by plaintiffs and 

the company will be presented in lieu of specific responses to 
arguments espoused by plaintiffs and the company.

I. THE GRANTING OF THE MOTION TO 
INTERVENE WOULD NOT PREJUDICE THE 
EXISTING PARTIES TO THE LITIGATION,
NOR UNDULY DELAY THE PROCEEDINGS.

/
The major question intervenors sought to bring before 

the lower court concerned the total abolition of group seniority 

at the company's plant by the court's order of March 7, 1975. That 

order caused many other white employees of the company to move 

ahead of intervenors on the company's seniority list, even though 
the elevated white employees had never suffered discrimination at 

the hands of the company. Because all employment advantages such 
as promotion and immunity to roll-backs is based on the "new" 

seniority system devised by the lower court, intervenors presently 
suffer and will continue to suffer irreparable harm as a result 
of the lower court's total abolition of the group seniority system. 

Unless intervention is allowed, this needless, irreparable harm 

to intervenors cannot be rectified. In determining the propriety 
of allowing the intervention sought, it is this irreparable harm 
which intervenors will suffer if denied the right to intervene, 
which must be compared to the prejudice such intervention might

-1-



possibly cause to the existing parties in this litigation.

Intervenors agree that prejudice to the existing parties 

is the most important consideration in determining the timeliness 

of intervention. McDonald v. E. J. Lavino Company, 430 F.2d 1065 

(5th Cir. 1970). A decision on the question of the total abolition 

of the group seniority system at company's plant will not delay 
the litigation, nor will it in any way prejudice either of the 
existing parties to the litigation. Counsel for intervenors 

affirmatively stated to the lower court that it could decide the 
question of seniority rights without having any testimony taken 

(R. 21,0). Counsel also stated that the claims of the intervenors 
were not in any way related to the claims of the plaintiffs for 

back wages and further stated to the lower court that it could 

proceed with the Master's hearings and take up the claims of inter­

venors at a later date, because the Master's hearings would not 

affect those claims (R. 214). The court's finding that appellants' 
intervention would impede the progress of the case because of time 

needed for the filing of pleadings, discovery, and trial thus has 

no factual basis in the record.
Plaintiffs can in no way be prejudiced by allowing the 

intervention sought in this case. Intervenors do not seek to 
relitigate any of the issues of liability on the part of the company. 

Intervenors' challenge goes not to the issue of liability, nor to 
the determination of the plaintiffs' "rightful place" and the 
granting of compensatory seniority therefor, but only to the status 

of these white employees who have been displaced on the seniority 

roll by other white employees who have not been the subjects of

-2-



r~\

previous discrimination by the defendant company. The hearings of 

the Master could have been concluded without interruption, as those 

hearings were concerned only with the issue of back pay and the 

determination of the proper formula by which to compute such back 
pay. The question which intervenors wish to bring before the 

lower court in no way relates to or affects the issues of back pay 

and the plaintiffs'"rightful place" within the company.
Since the intervenors have no quarrel with plaintiffs 

and in no way seek to limit the relief fashioned by the court as 

it applies to the "affected class", the lower court's findings to 
the contrary have no basis in fact. The company does not argue 
that it would be prejudiced by the appellants' intervention; neither 

did the company oppose the motion to intervene in the lower court 

(R. 169) .
Without any factual support in the record to indicate 

that appellants' intervention would unduly delay the proceedings or 
would prejudice the existing parties to the litigation, the denial 

of appellants' motion to intervene was an abuse of discretion. The 

court below had no basis on which to deny the motion other than the 
fact that the litigation has been in progress for two years. The 
amount of time which has elapsed since the litigation began is not 
in itself the determinative test of timeliness. Hodgson v. United 
Mine Workers of America, 473 F.2d 118 (D.C. Cir. 1972); Smith Petro­

leum Service, Inc, v. Monsanto Chemical Company, 420 F.2d 1103 (5th 
Cir. 1970). Intervenors respectfully submit therefore, that the 
denial of the motion to intervene should be reversed.

-3-

\



II. INTERVENORS DID NOT KNOW AND 
COULD NOT HAVE KNOWN THAT THE PENDENCY 
OF THIS LAWSUIT COULD IN ANY MANNER 
AFFECT THEIR RIGHTS.

The Court in NAACP v. New York, 413 U.S. 345, 366 (1974) 
found that the NAACP knew or should have known of the pendency 

of the litigation because of: (1) An informative article in the

New York Times discussing the controversial aspect of the suit;
(2) Public comment by community leaders; (3)' The size and astute­
ness of the membership and staff of the organizational appellant; 

and (4) The questioning of two of the individual appellants them- 

selves, by the Department of Justice attorneys investigating the 
use of literacy tests in New York. The record in the instant case 
is totally devoid of any indication that the intervenors knew or 

should have known of the pendency of this lawsuit. There have been 

no informative newspaper articles regarding this lawsuit and none 

appear in the record in this case. There has been no public comment 
on this lawsuit. Intervenors are not an astute, organized group of 

people, but rather are an unorganized group of blue-collar workers. 

Affidavits in the record show that intervenors were never informed 
prior to March 7, 1975, that any of their seniority rights were 
in jeopardy in any lawsuit or that their rights were even in issue 
in any lawsuit (R. 148, 153, 158).

There is other evidence in the record, however, which 
leads to the conclusion that intervenors did not know of the pendency 
of this lawsuit. In the company's response to this motion to 
intervene, its counsel attached a letter which it sent to the lower

-4-



court on July 17, 1974 (R. 169-173). In pertinent part that letter 

states:
"Monsanto accordingly respectfully urges 

the Court upon grounds of fundamental due pro­
cess and basic fairness to notify or direct 
notification of Monsanto's white employees of 
the pendency of this action and give them a 
reasonable opportunity to intervene, or be 
joined as defendants, and to be represented 
and heard at any and all hearings at which 
relief is considered which will or may adversely 
affect their interests. Monsanto feels so 
strongly about the equities involved that it 
will, with the Court's permission, voluntarily 
undertake to post such notices on its bulletin 
boards. It is also willing to include Mr.
Spriggs' statement of plaintiffs' case with 
such notice." (R. 171)

The comments made by the company in its brief to this Court con­
cerning the question of intervenors' knowledge of this suit, when 

considered in the context of its July 17, 1974, letter to the 

lower court, present a questionable change of position which 

should be disregarded by this Court.
The record which the District Judge had to consider 

thus contained a letter dated July 17, 1974, urging the court to 

inform the intervenors of the pendency of this lawsuit and three 
affidavits stating that none of the intervenors knew their rights 

were being involved in any lawsuit. Absolutely no evidence of 

the type of publicity or opportunity for knowledge which was present 

in NAACP v. New York, supra, is contained in the record in this 

case. The court below had no factual basis on which to make its 

finding that the intervenors knew or should have known of the 

pendency of this lawsuit (R. 230).
In the absence of any evidence to support the finding 

that intervenors knew or should have known of the pendency of this

-5-



litigation, the proper test to be applied in resolving the time­
liness of the motion to intervene is that test expressed by this 

Court in Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir. 
1970), cert, denied Sub. nom., Trefina A. G. v. United States,

400 U.S. 878 (1970) and followed by the 7th Circuit in EEOC v. 

United Airlines, Inc., 515 F.2d 946 (7th Cir. 1975). The inter- 

venors moved to protect their interests within less than thirty 

days from March 7, 1975, the date on which they first learned that 

their rights were involved in this lawsuit (R. 148, 153, 158).

The refusal of the lower court to allow intervention 

at an/earlier stage in this lawsuit, as requested by the company's 

letter, suggests that intervention was inappropriate as inter- 
venors1 rights were not directly in issue at that earlier date. 
Timeliness of intervention is to be judged from the time when 

intervention was first appropriate. E. g., Securities & Exchange 
Commission v. Bloomberg, 299 F.2d 315 (1st Cir. 1962); Walpert v. 
Bart, 44 F.R.D. 359 (D. Md. 1968). Intervention was first appro­
priate in this case on March 7, 1975, when the District Court 
exceeded its powers in granting relief under Title VII and irre­
parably damaged the valuable seniority rights of intervenors.

Both plaintiffs and the company attempt to further 
denigrate intervenors' contention that they did not know their 

rights were in issue in this lawsuit by arguing that the District 

Court acted well within the scope of its broad remedial powers 

under Title VII. Both the plaintiffs and the company cite a 
school desegregation case to support this contention. The remedial 
powers granted District Courts in devising guidelines for school

-6-



OF APPEALSIN THE UNITED STATES COURT

FOR TEE FIFTH CIRCUIT

No. 75-2405

EDDIE STALLWORTH, et al

P1a int if fs-Appe11ees, 
- v .  -

MONSANTO COMPANY,

D e fend an t-App ell e e , 

-v. ~

J. W. PALMER, et al.f
Aoplicante for Intervention-Appe 1 lar.ts .

On Appeal Fro: 
Norfhe

District Cour t For
trict of F Lor itla

BRIEF FOR PLAINTIFFS-APPELLEES

KENT SPRIGGS
3 24 W.. CoIIeuo Avenue 
Tallahassee, Florida

JACK GREENBERG 
E LA INFi R , • ! ONES 
BARRY L. GOLDSTEIN

Suite 2030, 10 Columbus Circle 
New York, New York 10019

Attomeys for P1 a i n t i £ £ s - App e 11 e e s



desegregation cases differ substantially from those powers avail­

able to fashion relief in Title VII actions. This Court has most 

recently cast aside all doubts as to the scope of the District 

Court's remedial powers in Title VII cases in the case of Stevenson

v. International Paper Company, ______ F.2d _______ , (5th Cir. Case

No. 73-1758 , decided July 16, 1975) . In Stevenson, this Court 

specifically enumerated the principles involved in granting affirma­
tive relief in Title VII cases, involving seniority systems which 
are not "per se" discriminatory, but merely perpetuate the effects

of past discriminatory practices; such as the seniority system ✓
involved in the case at bar. This Court stated:

"Thus, a 'neutral' seniority system 
should not be enjoined totally, but should 
be modified only as it applies to those 
employees who were previously subjected to 
discrimination, only to the extent necessary 
to remove the elements perpetuating that 
discrimination, and only for a limited period 
of time. Such a system should be allowed to 
apply unabated to all employees, black and 
white, against whom the employer did not 
discriminate."

These guidelines had previously been expressed by this Court in 

Franks v. Bowman Transportation Co., 495 F.2d 398, 415-416 (5th
Cir. 1974) .

The court below has gone much further than the specifically 
delineated guidelines established by this Court and has irreparably 

damaged intervenors in the process. This is the reason intervenors 

seek to intervene in this case and also the reason intervenors did 
not attempt to intervene prior to the lower court's unexpected and 
unnecessary abuse of its powers.

-7-



III. INTERVENTION SHOULD HAVE BEEN 
ALLOWED AS OF RIGHT.

A. Intervenors have the requisite "interest" in this 
litigation which enables intervention as of right.

Intervenors' "interest" in this lawsuit centers on the 

complete abrogation by the District Court of their hard-earned 

group seniority rights, through the court's order of March 7, 1975. 

Neither the plaintiffs nor the company contest the fact that the 

proper test to determine intervenors' interest is whether inter­

venors have been "practically disadvantaged" by the court's order 

of Ma^ch 7, 1975. E. g., Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 

1969); Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967). Instead, both
the plaintiffs and the company questioned the validity of inter­
venors' contractual claims. The District Court stated on this 

point: "I can't construe this to be a binding contract between

Monsanto and any of its employees." (R. 213).
This in itself demonstrates the abuse by the lower court 

of its discretion in determining the timeliness of the motion to 

intervene. For purposes of a motion to permit intevention, all 
allegations in the pleadings, which the intervenors propose, to 

serve when they are made parties to the action must be deemed to 
be true. E. g., Clark v. Sandusky, 205 F.2d 915 (7th Cir. 1953).

In addressing this point in Atlantis Development Corp. v. United 

States, 379 F.2d 818, 827 (5th Cir. 1970), this Court stated:
"But it hardly comports with good 

administration, if not due process, to 
determine the merits of a claim asserted 
in a pleading seeking an adjudication

-8-



through an adversary hearing by denying access 
to the court at all."

Intervenors submit that this is precisely what the District Judge 

has done in this case ahd that such a ruling constitutes reversible 
error.

Both plaintiffs and the company further argue that inter­
venors have no "interest" in this litigation because their seniority 
rights are not indefeasible and must, in any event, yield to the 

positive mandate of Title VII. Intervenors do not.contest that 
their seniority rights can be modified with respect to black em­

ployees who have been subject to previous discrimination. None of 

the cases cited by the plaintiffs or the company, however, stand 

the proposition tnat contractual rights can be unilaterally 

bargained away when a question of public law and overriding public 
policy is not involved. Thus, although the lower court acted 

correctly in granting compensatory seniority to the members of the 
affected class' ; the court had no such reason for totally doing 

away with group seniority as it affects white employees in their 
relationships with other white employees of the company. White 
employees have not been the subjects of previous discrimination and 
therefore Title VII does not command that their seniority rights

altered in relation to other white employees. Thus, intervenors' 
interest in this lawsuit, their seniority status in relation to 

other white employees, is a "significantly protectable" interest, 

sufficient for intervention of right under Rule 24 (a)(2). Donald- 
son v,- United States, 400 U.S. 517 (1971).

-9-



B. The disposition of this action will as a 
practical matter impair and impede intervenors' 
ability to protect their interest, as inter­
venors have no alternative methods of relief 
available.

The company argues, in connection with both the question 

of "timeliness" and the question of intervenorsinterest" in this 

litigation, that intervenors have alternative methods of relief 
available. Such argument is groundless. Intervenors cannot launch 
a direct attack on the court's order of March 7, 1975, except through 

intervention in this lawsuit. Even if there were another form of 

actior) by which intervenors could bring another lawsuit to protect4
their seniority rights, it is clear that the principle of stare 

decisis would greatly inhibit a redetermination of the issues 

decided in this lawsuit and effectively bar intervenors from pro­

tecting their rights.
This Court's analysis in Atlantis Development Corp. v.

United States, supra, at page 826, is pertinent to this point:

"Foremost, of course, is the plain pro­
position that the judgment itself as between 
government and defendants cannot have any 
direct, immediate affect upon the rights of 
Atlantis, not a party to it.

"But in a very real and practical sense 
is not the trial of this lawsuit the trial 
of Atlantis' lawsuit as well?"

If the consent decree has the effect of abolishing group seniority, 

does not that also adjudicate the contractual question of the 

seniority rights of intervenors? This Court in Atlantis, at page 

828-829 also stated:
"That is but a way of saying in a very

-10-



graphic way that the failure to allow Atlantis 
an opportunity to advance its own theories both 
of law and fact in the trial (and appeal) of the 
pending case will if the disposition is favorable 
to the government 'as a practical matter impair 
or impede [its] ability to protect [its] interest'.
That is, to be sure, a determination by us that 
in the new language of 24(a)(2) stare decisis 
may now - unlike the former days under 24(a) (2) -
supply that practical disadvantage which warrants 
intervention of right."
Intervenors thus satisfy all the requirements for inter­

vention of right. Where the applicant should be allowed to inter­

vene as of right, and thus will be seriously prejudiced if not 
permitted to do so, the Court will exercise its discretion in
denving a motion with qreat reluctance. McDonald v. E. J. Lavino/A.
Company, supra; Kinsey v. Legg, Mason & Co., Inc., 62 F.R.D. 469 
(D. D.C. 1974). The District Court's discretion is not unbridled. 

The court did not determine the propriety of interventions from 
all the circumstances, as required by NAACP v. New York, supra.

The denial of the motion to intervene under the circumstances of 

this case constitutes an abuse of discretion and intervenors 
respectfully submit that the decision of the District Court should 

be reversed.

CONCLUSION
Because the District Court abused its discretion in

denying the motion to intervene, intervenors-appellants respectfully 

submit that the denial should be reversed.
Respectfully submitted^

D^L. MIDDLEBROOKS and^ JEFFREY A.
CRAMER, of Levin, Warfield, Middlebrooks 

Graff, Mabie, Rosenbloum & Magie 
Seville Tower, 226 S. Palafox St. 
Pensacola, Florida 32501 
Attorneys for intervenors-appellants.



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished 
to ROBERT P. GAINES, ESQUIRE, P.0. Box 12950, Pensacola, Florida,
S. PHILIP HEINER, R. LAWRENCE ASH, JR., SUSAN A. CAHOON, JAMES 

H. COIL, III, and WILLIAM A. WRIGHT, 3100 The Equitable Building, 
Atlanta, Georgia 30303; ELAINE R. JONES, 10 Columbus Circle,
Suite 2030, New York City, N.Y. 10019; and KENT SPRIGGS, 324 W. 
College Avenue, Tallahassee, Florida, at their respective addresses, 
by mail this 9th day of August, 1975.



Certificate of Service

I, the undersigned attorney, hereby certify that I 

have this 25th day of September, 1975, served a copy of the 

foregoing Brief for Plaintiffs-Appellees upon counsel for 

all parties as listed below by placing same in the United 

States mail, adequate postage prepaid:

D. L. Middlebrooks, Esq.
Levin, Warfield, Middlebrooks, Graff, 

Mabie, Rosenbloum & Magie, P.A. 
Seville Tower
226 S. Palafox Street co]
Pensacola, Florida 32501

Robert P. Gaines, Esq.
P. 0. Box 12350 
Pensacola, Florida 32576

R. Lawrence Ashe, Jr.
3100 Equitable Building 
Atlanta, Georgia 30303

BARRY L. GOLDSTEIN 
Attorney for Plaintiffs-Appellees