Stallworth v. Monsanto Company Brief for Appellee
Public Court Documents
April 21, 1975

Cite this item
-
Brief Collection, LDF Court Filings. Stallworth v. Monsanto Company Brief for Appellee, 1975. 0f8d83f2-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f1b461c8-043f-4fd4-83f8-dce13e889de5/stallworth-v-monsanto-company-brief-for-appellee. Accessed July 12, 2025.
Copied!
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 75-2405 EDDIE STALLWORTH, et al., Plaintiffs, v . MONSANTO COMPANY, Defendant, J. W. PALMER, et al., Movants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA BRIEF FOR MONSANTO COMPANY AS APPELLEE R. Lawrence Ashe, Jr. Susan A. CahoonKilpatrick, Cody, Rogers, McClatchey & Regenstein 3100 Equitable Building Attorneys for appellee Georgia 30303 Monsanto Company(404) 522-3100 F 7 NO. 75-2405 n EDDIE STALLWORTH, et al., Plaintiffs, v . MONSANTO COMPANY, Defendant, J. W. PALMER, et al., Movants. Certificate required by Fifth Circuit Local Rule 13(a): The undersigned, counsel of record for defendant- appellee Monsanto Company, certifies that the following listed parties have an interest in the outcome of this case. These representations are made in order that judges of this court may evaluate possible disqualification or recusal pursuant to Local Rule 13(a). Eddie Stallworth, Jesse Ford, Henry Golston, Jonas Fairley and on behalf of all persons similarly situated, - Plaintiffs Monsanto Company - Defendant J. W. Palmer, Bobby W. Morris, G. C. Brantley, Huey Courtney, Richard S. Brown, Pete Bartley, E. V. Amason, Jr., W. L. Pugh, C. B. Kelley, J. W. Thompson, James D. Roberson, C. E. McLelland, R. H. Woodard, H. C. Fowler, W. D. Roberson, W. L. Bingle, W. S. Howell, R. D. Thomas, L. E. Sellers, R. C. Curtis, J. D. Ingram, Marcus Dobson, Don S. Smith, A. J. McCroskey, Marvin Sanders, C. L. Payne, C. E. Bryan, Bill Morris, C. R. Nelson, C. F. Kast, D. H. Morris, M. L. Chavers, H. L. McCrone, R. Y. Cotton, L. D, Goodson, Paul B. Vanlente, D. H, Smith, R. K, Bryan, and other members of the class which they represent - Intervenor movant- appellants SI _______ Attorney of Record for Defendant- Appellee Monsanto Company © TABLE OF CONTENTS PAGE TABLE OF CITATIONS ......................... ii- v 1ISSUE PRESENTED FOR REVIEW .................. STATEMENT OF THE CASE ............................ 2-4 ARGUMENT 5-21 5 I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING INTERVENTION OF RIGHT .................... ..... A. The District Court's Determination that the Application was Untimely 5-13 B. The District Court's Determination Regarding the Appellants' "Interest" in the Transaction for Purposes of Intervention of Right .......... 13-18 ' C. The District Court's Determination that Appellants Have Alternative Means to Protect Their Interests ... 18-19 II. the d i s t r i c t c ou rt d i d n o t a b u s e its DISCRETION BY DENYING INTERVENTION UNDER RULE 24(b) (2)............................ 19-21 CONCLUSION ........................................ 21 CERTIFICATE OF SERVICE ........................... 22 EXHIBIT "A" (Affidavit of K. C. Beene) ......... 23-24 EXHIBIT "B" (Order of July 29, 1975) ............ 25-27 i I TABLE OF CITATIONS CASES Afro American Patrolmens League v. Duck, 503 F .2d 294 (6th Cir. 1974). Allen Calculators, Inc, v. National Cash Register Co., 322 U.S. 137 (1944). Arvida Corp. v. City of Boca Raton, 59 ~FTR'.D. 3i"6 (S.D. Fla. 1973).---- Atlantis Dev. Corp. v. United States, 379 F.2d 818 (5th Cir. 1967). Augustus v. School Bd., 299 F.Supp. 1067 (N.D. Fla. 1969). Black v. Central Motor Lines, Inc., 500 F.2d 407 (4th Cir. 1974). Bros Inc, v. W . E. Grace Mfg. Co., 320 F.2d 594 (5th Cir. 1963). ^ Brown v. County of Buena Vista, 95 U.S. 157~(TS77).---- -------------- Diaz v . Southern Drilling Corp., 427 F .2d 1118 (5th Cir.), cert. denied sub nom. Trefina, A. G. v. United States, 400 U.S. W ( 1 9 7 0 ) .---- --------------- Donaldson v. United States. 400 U.S. 517 (1971) .------------------ Florida East Coast Ry, v. United States, 368 F.Supp. 1009 (M.D. Fla. 1973), aff'dmem., 417 U.S. 901 (1974). Franks v. Bowman Transp, Co., 495 F.2d 398 (5th Cir. 1974), cert, granted, 95 S.Ct. 1421 (1975). ------ Hatton v. County Bd. of Educ., 422 F.2d 457 (6th Cir. 1970). Iowa State University Foundation, Inc, v. Honeywell, Inc., 459 F.2d 447 (8th Cir. 20 14 6 11 6 6 7 5, 7, 13 5, 13, 14, 17 11 15 12 16 7 ii Local 189, United Papermakers v. United States, 416 F.2d 980 (5th Cir.), cert. denied, 397 U.S. 919 (1969). Mack v. General Elec. Co.. 63 F.R.D. 368 (E.D. Pa. 1974). McDonald v. E. J. Lavino Co.. 430 F .2d Tti'6'5 (5th” cir. 1970).----- Minersville Coal Co., Inc, v. Anthracite Export Ass'n, 58 F.R.D. 612 (M.D. Pa. T973)y NAACP v. New York, 413 U.S. 345 (1973). Nance v. Jackson, 56 F.R.D. 463 (M.D. ~Ala. 1972) .--- Nevilles v. Equal Employment Opportunity Comm'n, 511 F.2d 303 (8th CirT 1975̂ ) . QuarFes y. Philip Morris, Inc.. 279 F.Supp. 505 (E.D. Va. 1968) . Robinson v. Lorillard Corp.. 319 F.Supp. 835 (M.D. N .C . 1970), aff'd in part, 444 F.2d 791 (4th Cir.), petition for cert, dismissed. 404 U.S. 1006 (197TJ7--------- -------------- Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974) . ° Savannah Printing, Local 604 v. Union Camp Corp., 350 F.Supp. 632 (N.D. Ga. 1972). SEC v. Everest Management Corp.. 475 F .2d T23'6 (2d Ci'r". 1972).-------- Smith Petroleum Serv., Inc, v. Monsanto ~ Chem. Co., 420 F.2d 1103 (5th Cir. 1970') . Smuck v. Hobson, 408 F.2d 175 (D.C. Ar. 1969) . Stevenson v. International Paper Co.. No. ~ 71-1758 (5th cir., July 16, 1975). Swann v. Charlotte-Mecklenbure Bd. of Educ..402 U.S. 1 (1971). ------ -------------- Textile Workers Union v. Allendale Co.. 226 F.2d 765 “(D.C. Ar. 1955).------------ 9, 11, 15 7, 8 5, 6, 8, 11, 12 6, 8 5, 6, 7, 8, 10, 12 13 7, 8, 10, 11 15 10, 16 15 16 20 11 7 15 15 14 iii 10United States v. Bethlehem Steel Corp., 312 F.Supp. 977 (W.D. N.Y. 1970), modified, 446 F.2d 652 (2d Cir. 1971). United States v. Blue Chip Stamp Co., 272 F .Supp. 432 (C.D. Cal. 1967),aff'd mem, sub nom. Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580 (1968). United States v. Carroll County Bd. of Educ., 421 F.2d 141 (5th Cir. 1970) . United States v. Jacksonville Terminal Co., 451 F . 2d 418 (5th Cir'.' 1971) , cert. denied, 406 U.S. 906 (1972). United States v. Local 189, United Paper- makers'! 282 F.Supp. 39 (E.D. La 1968), aff'd, 416 F .2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970). United States v. Williams, 109 F.Supp. 456 (W.D. Ark. 1952). Van Hoomisen v. Xerox Corp., 497 F .2d 180 (9th Cir. 1974).-------- Rios v. Steamfitters, Local 628, F.2d , 10 FEP Cases 1223 (2d Cir., Juni"~24, 197TT* STATUTES AND RULES Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1970). 42 U.S. C. §1981 (1970) • Federal Rule of Civil Procedure 24 (a) Federal Rule of Civil Procedure 24 (b) Federal Rule of Civil Procedure 60 6, 7, 13 7 15 9, 11, 16 10 20 7, 12, 14, 16, 17, 1 passim 2 passim 19 ff. 19 iv , ' 'A -J OTHER AUTHORITIES Cooper & Sobol, "Seniority and Testing Under Fair Employment Laws," 82 Harv. L.Rev. 1598 (1969) . 18 J. Moore, 3 B Moore's Federal Practice 1(24.09-1[2] (2d ed. 1974) 14 J. Moore, 3 B Moore's Federal Practice 1(24.10[4] (2d ed. 1974) 20 J. Moore, 3 B Moore's Federal Practice U24.13[1] (2d ed.1974) 13, 20 J. Moore, 3 B Moore's Federal Practice K24.16[5] (2d ed. 1974) 17, 17 J. Moore, 3 B Moore's Federal Practice 1(24.18 [1] (2d ed. 1974) 21 C. Wright & A. Miller, 7A Federal Practice and Procedure §1901 (1972). 6 C. Wright & A. Miller, 7A Federal Practice and Procedure §1908. 5, 13 C. Wright & A.Miller, 7 A Federal Practice and Procedure §1913. 20 C. Wright & A. Miller, 7A Federal Practice and Procedure §1916. 7, 12, C. Wright & A. Miller, 7A Federal Practice and Procedure §1917. 21 C. Wright & A. Miller, 7A Federal Practice and Procedure §1923. 20 v ISSUE PRESENTED FOR REVIEW The issue before this Court is whether the district court abused its discretion under either Fed.R.Civ.P. 24(a)(2) or Fed.R.Civ.P. 24(b)(2) by denying appellants' application to intervene as plaintiffs in an employment discrimination lawsuit for the purpose of challenging certain aspects of a prior order entered by the district court which, inter alia, modified the seniority system theretofore used by appellee Monsanto Company. I—- — — - STATEMENT OF THE CASE This litigation originated as a class action brought on April 13, 1973 on behalf of present and former black employees of Monsanto Company at its Pensacola, Florida facility who alleged that certain employment practices discriminated against them because of race in violation of 42 U.S.C. §1981 (1970), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (1970). (R. 27-33.) Following extensive discovery and the determination of a variety of motions for partial summary judgment (see docket entries, R. 1-26), the case was set for pretrial and a lengthy pretrial stipulation filed by the parties, which, inter alia, included a substantial number of admitted facts concerning the history of defendant's plant and its seniority system. (R. 59-66.) On March 7, 1975, after two years of vigorous litigation, the parties presented to the court an order resolving class claims for equitable relief (hereinafter referred to as the "March 7th order") , which was duly entered on that same day. (R. 125-40.) The parties* then stipulated that they would not appeal from the March 7th order or seek to have it modified in any respect. (R. 141.) The March 7th order reserved individual claims for back pay and other equitable relief for later determination. 2 Prior to March 7, 1975, the seniority system adopted by Monsanto rested eligibility for promotion, job and shift assignments, and "rollback" (reduction from a higher to a lover paying job classification because of economic conditions) in some higher-paying jobs in certain seniority groups on group, rather than plant, seniority. The March 7th order changed the basis of the seniority system from group to modified plant seniority, i .e ., total length of service at the plant vith certain residency requirements. (R. 132-3.) On February 17, 1975, a rollback had been announced in vhich certain employees in the seniority group in defendant's Intermediates Department vere to be assigned to lower-paying jobs in the seniority group. Because the March 7th order required application of the new seniority system to all roll backs occurring after February 1, 1975, the announced rollback of February 17 was restructured and on March 17, 1975, when the rollback occurred, the Appellants were placed on rollback for the first time because they had less plant seniority than other employees who had previously been scheduled to be on rollback. This action pursuant to the Court's March 7th order apparently kindled Appellants' interest in this litigation (see R. 145-59), and on April 4, 1975, Appellants filed a motion to intervene. (R. 142-44.) Appellants are white employees of Monsanto Company who were senior to certain other employees in the Intermediates 3 Department seniority group under the group seniority system in effect prior to the March 7th order but junior to such employees under the plant seniority plus residency requirements system adopted in the March 7th order. (R. 145-59.) Such intervention was sought pursuant to Fed.R.Civ.P. 24(a)(2) and, in the alternative, Fed.R.Civ.P. 24(b)(2). (R. 142-4.) After a hearing (R. 179-228), the district court entered an order on April 21, 1975 which denied Appellants' motion, noting that back pay matters had been referred to a master for determination, that Appellants' application for intervention, if entered, would prejudice the original parties by unnecessarily delaying the case, that the application was untimely in any event, and that any claims which Appellants believe they have against Monsanto could be pursued in separate litigation. Appellants have now appealed to this Court from the order of April 21. At the same time Appellants filed their brief with this Court they also filed with the district court a renewed motion to intervene, together with a motion for relief from judgment. In responding to that motion, Monsanto filed an affidavit which reflected that the rollback had ended and all of the Appellants are now back in their prior job classifications. A copy of that affidavit is attached hereto as Exhibit "A". By order dated July 29, 1975, a copy of which is attached hereto as Exhibit "B", the district court denied the motions. - 4 - ARGUMENT I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING INTERVENTION OF RIGHT. Intervention will be allowed of right under Fed. R.Civ.P. 24(a)(2) only if four conditions are met: (1) a timely application; (2) the existence of a "significantly protectable interest"; (3) impairment of the applicant's ability to protect that interest if intervention is denied; and (4) inadequate representation of the applicant's interests by the existing parties. See Donaldson v. United States. 400 U.S. 517, 531 (1971); Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124-25 (5th Cir.), cert, denied sub nom. Trefina, A •G . v. United States, 400 U.S. 878 (1970); 7A Wright & Miller, Federal Practice and Procedure §1908, at 495 (1972). In the application at bar, the district court found that Applicants for Intervention failed to satisfy the first three of these four conditions. A . The District Court's Determination that the Application Was Untimely. ------ The determination of timeliness is committed to the discretion of the district court and will be disturbed on appeal only for abuse of discretion. NAACP v. New York. 413 U.S. 345, 265-66 (1973); McDonald v. E.J. Lavino Co.. 430 5 J F.2d 1065, 1071 (5th Cir. 1970). Timeliness must be determined from all the circumstances. NAACP v. New York, supra. The timeliness requirement serves the important judicial and public interest in the efficient and prompt resolution of controversies. Atlantis Dev. Corp. v. United States, 379 F.2d 818, 824 (5th Cir. 1967); 7A Wright & Miller, Federal Practice and Procedure §1901, at 465 (1972). Whereas intervention at an early stage in the proceedings may serve judicial economy by consolidating the trial of overlapping claims and interests, the opposite is generally true when intervention occurs at a late stage. In the case at bar, the issues that Appellants seek to raise have already received the careful consideration of both the parties and the court, and judgment as to those issues has been rendered. Because of the strong judicial policy favoring the finality of judgments, see McDonald v, E.J. Lavino Co., supra, 430 F.2d at 1971-72; cf. Bros Inc, v. W.E, Grace Mfg. Co., 320 F.2d 594, 610 (5th Cir. 1963), intervention after judgment is granted only in "unusual and compelling circumstances." Minersville Coal Co., Inc, v. Anthracite Export Ass'n, 58 F.R.D. 612, 614 (M.D.Pa. 1973); see Black v. Central Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974) ("unique factual situations"); McDonald v. E.J. Lavino Co., supra, 430 F.2d at 1072 ("an attempt to intervene after final judgment is ordinarily looked upon with a jaundiced eye'O; United States v. Blue Chip Stamp Co. 272 6 F. Supp. 432, 436 (C.D.Cal. 1967), aff'd per curiam sub nom. Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580 (1968) ("most unusual circumstances"). Thus intervention is generally denied when application is made after judgment has been rendered. See, e ,g ., Nevilles v. Equal Employment Opportunity Comm'n, 511 F.2d 303 (8th Cir. 1975); United States v. Carroll County Bd. of Educ., 427 F.2d 141 (5th Cir. 1970); 7A Wright & Miller, Federal Practice and Procedure §1916, at 579-80 (1972). Even when late intervention is allowed, prior orders and decrees of the court are generally not subject to attack by the intervenor. 3B Moore, Federal Practice 1(24.16 [5], at 24-651 (2d ed. 1974). At the least, when application is made after judgment, a "strong showing" must be made in order to satisfy the other conditions for intervention - interest, impairment, and inadequate representation. Smuck v. Hobson, 408 F.2d 175, 181 (D.C.Cir. 1969); United States v. Blue Chip Stamp Co., supra, 272 F. Supp. at 435; 7A Wright & Miller, Federal Practice and Procedure §1916, at 579 (1972). A variety of factors are relevant to the timeliness of an application for intervention that is entered at a late stage in the proceedings. Did the applicant have a reasonable opportunity to intervene earlier? See NAACP v. New York, supra, 413 U.S. at 365-68; Iowa State University Research Foundation, Inc, v. Honeywell, Inc., 459 F.2d 447, 449 (8th Cir. 1972); Diaz v. Southern Drilling Co., supra, 427 F.2d at 1125; Mack 6 v. General Elec. Co. , 63 F.R.D. 368, 369 (E.D.Pa. 1974). Will the late intervention prejudice the parties? See NAACP v . New York, supra, 413 U.S. at 369; McDonald v. E.J. Lavino Co.. supra, 430 F.2d at 1073; Minersville Coal Co., Inc, v. Anthracite Export Ass'n , supra, 58 F.R.D. at 614. Will the intervention interfere with the orderly processes of the court? See McDonald v. E.J. Lavino Co., supra, 430 F.2d at 1072; Rios v. Steamfitters. Local 628, ___ F.2d ___, 10 FEP Cases 1223, 1225 n.3 (2d Cir. June 24, 1975) (dicta). Are other means of relief available to the applicant? See NAACP v. New York, supra, 413 U.S. at 368; McDonald v. E.J. Lavino Co., supra, at 1074; United States y- Blue Chip stamp Co., supra, 272 F. Supp. at 435. An affirm ative answer to any of these questions militates strongly against intervention. The first of these questions - the existence of a reasonable opportunity for prior intervention - involves a factual inquiry into the applicant's notice of the proceedings and the reasons for his delay. An applicant is under a duty to act to protect his interests once he has reasonable notice of the need to do so. See NAACP v. New York, supra, 413 U.S. at 367 ("it was incumbent upon the appellants . . . to take immediate affirmative steps to protect their interests"); cf. Brown v. County of Buena Vista, 95 U.S. 157, 159-60 (1877). While it is true that the timeliness requirement "was not intended to punish an intervenor for not acting more promptly 7 but rather was designed to insure that the original parties should not be prejudiced by the intervenor's failure to apply sooner," McDonald v. E.J. Lavino Co., supra, 430 F .2d at 1074, once judgment has been entered a presumption of prejudice to the parties arises, see id. at 1072, because of the strong policy favoring the finality of judgments. This presumption may be overcome by a showing of "unusual circumstances." In McDonald, for example, the court noted the total absence of any prejudice whatsoever to the parties and stressed the fact that the applicant "was not attempting to reopen or relitigate any issue which had been previously determined." Td. at 1071-74. In this "unusual situation," the motion to intervene was timely even though made after judgment. Id. at 1074. The question of notice turns on general knowledge of the pendency of the proceedings, not on specific knowledge of the details of the litigation. See NAACF v. New York, supra, 413 U.S. at 366 ("knew or should have known of the pendency of the [suit]"); Mack v. General Elec, Co., 63 F.R.D. 368 (E.D. Pa. 1974). In Nevilles v. Equal Employment Opportunity Comm’n , 511 F.2d 303 (8th Cir. 1975), members of a union moved to intervene in a year-old sex discrimination case two months after entry of a consent decree that modified the applicants' seniority status. The applicants never received formal notice of the suit and alleged their complete ignorance of the pro ceedings. The applicants' union in that case, which was not 8 a party, had been kept informed of the proceedings informally by the EEOC and knew about the provisions of the proposed consent decree, but the court did not impute this knowledge by the union to its members who attempted to intervene or claim that the applicants were adequately represented by any party to the suit. Rather, the court declared that the burden of proof was on the applicants to demonstrate their ignorance of the suit; since other employees in the plant and the union had known of the pendency of the suit, the district court could reasonably have determined that the applicants had failed to carry their burden of proof. 511 F.2d at 305-6. Thus, the Eighth Circuit defined notice as knowledge only that the suit was in progress, not knowledge of the terms of the proposed decree or of the decree's specific impact on the applicants. In the case at bar, the district court in denying intervention held insufficient the Appellants' allegations that they did not know that the suit would affect their rights; the Court asked instead if the Appellants knew that the suit itself was in progress. Record at 230. The Court then found that, since Appellants failed to allege that they did not know and should not have known of the pendency of the suit, they had not acted diligently. Id. To so hold was in accord with the prior case law and was not an abuse of discretion. Indeed, seniority systems are frequently modified in Title VII suits. See, e .g ., Local 189, United Papermakers v. United 9 States, 416 F.2d 980 (5th Cir.), cert, denied, 397 U.S. 919 (1969). Applicants could have consulted a lawyer and not delayed for two years before attempting to intervene. Cf. United States v. Williams, 109 F. Supp. 456 (W.D.Ark. 1952). Applicants assert that they cannot be charged with knowledge that the seniority of all workers would be changed, Brief of Appellants at 9-10, but such relief is not uncommon in Title VII suits. See, e .g ,, Robinson v. Lorillard Corp., 319 F. Supp. 825 (M.D.N.C. 1970), aff'd in part, 444 F.2d 791 (4th Cir.), petition for cert, dismissed. 404 U.S. 1006 (1971); United States v. Bethlehem Steel Corp.. 312 F. Supp. 977, 994-96 (W.D.N.Y. 1970), modified, 446 F.2d 652 (2d Cir. 1971). However, the only relevant notice here is Appellants' knowledge that they could be affected in any way by the suit, regardless of the exact fashion in which that effect might be manifested. See Nevilles v. Equal Employment Opportunity Comm'n, supra, 511 F.2d at 305-6. It is common knowledge that remedies for discriminatory employment practices can affect the relative rights of workers. If the law requires notice of anything other than pendency of the suit, then notice that the suit might in any way affect the applicant for intervention is sufficient. The district court found that Appellants "knew or should have known," NAACP v. United States, supra, 413 U.S. at 366, of the pendency of the suit; Appellants offered no excuse for their two-year delay before moving to intervene; and the district court did not abuse its discretion in denying their petition. 10 The second issue relevant to timeliness - prejudice to the parties - is perhaps the most important factor when dealing with an asserted intervention of right. McDonald v. E.J. Lavino Co., supra, 430 F.2d at 1073, Smith Petroleum Serv., Inc, v. Monsanto Chem. Co., 420 F.2d 1103, 1115 (5th Cir. 1970). In the case at bar, the court found that intervention would prejudice the parties by delaying the lawsuit. Record at 230. This finding was clearly not an abuse of discretion. The Order of March 7, 1975, which approved the order presented by the parties which Appellants now attack, formed the basis for the Master's hearings that followed. Any proceedings for the modification of that Order would have delayed the Master's hearings and thus delayed ultimate resolution of the claims of the plaintiff class in this action. A delay in adjudication is sufficient prejudice to warrant denial of a motion to intervene. Augustus v. School Bd., 299 E Supp. 1067, 1068 (N.D.Fla. 1969); see Florida East Coast Ry. v. United States, 368 F. Supp. 1009, 1022 (M.D.Fla. 1973), aff'd , 417 U.S. 901 (1974). Courts have held that relief from the effects of discrimination, if proved, should not be delayed for the purpose of the type of proceeding contemplated by Appellants. Nevilles v. Equal Employment Opportunity Comm'n, 511 F.2d 303, 305 (8th Cir. 1975); United States v. Local 189, United Papermakers, 282 F. Supp. 39, 45 (E.D. La. 1968), aff'd , 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919 (1970). 11 ' / x Th® third issue relevant to timeliness - interference with the orderly processes of the court - was discussed in McDonald v. E.J. Lavino Co.. 430 F.2d 1065 (5th Cir. 1970). There intervention was granted since the applicant "did not seek to reopen or relitigate any issue which had been previously determined" and since intervention under the circumstances of that case would cause the trial court only "minor inconvenience." 430 F.2d at 1972-73. In the case at bar, however, neither of these conditions exists. The Appellants seek to reopen an order of the Court dealing with a major issue in an industrial setting. This order was crucial for the proceedings that followed. Courts have held that to reopen such an order causes far more than "minor inconvenience" for the trial court and constitutes substantial interference" sufficient to warrant denial of intervention. See Rios v. Steamfitters, Local 638. --- F -2d ___> 10 FEP Cases 1223, 1225 n.3 (2d Cir., June 24, 1975) (dicta); 7A Wright & Miller, Federal Practice and Procedure §1916, at 579-82 (1972). The final issue relevant to the timeliness of inter vention late in the proceedings is the availability of other means of relief. If no other means of relief are available to the applicant and if his right to intervene is otherwise clear, then intervention may be allowed after judgment. See NAACP v. New York, supra, 413 U.S. at 368; McDonald v, E.J. Lavino Co., supra, 430 F.2d at 1974; Hatton v. County Bd. of 12 Educ • i 422 F.2d 457, 461 (6th Cir. 1970); Nance v. Jackson, 56 F.R.D. 463, 471 (M.D. Ala. 1972); United States v. Blue Chip Stamp Co., supra, 272 F. Supp. at 435; 3B Moore, Federal Practice 1f24.l3[l], at 24-527 (2d ed. 1974). Availability of alternate relief is related to the issue of impairment, but is distinguishable from it in that here the applicant may have to suffer the impairment of a less satisfactory remedy because of his delay in seeking intervention. As is discussed in Part C, Appellants do have alternative remedies • The district court did not abuse its discretion in leaving Appellants to pursue their other remedies, rather than granting intervention. To summarize, the district court acted in accordance with the law and well within its discretion in denying the Appellants' Motion for Intervention because of its lack of timeliness. B * The District Court's Determination Regarding the Appellants' "Interest" in the Transaction for Purposes of Intervention of Right. -------- ------ Rule 24(a)(2) requires a "significantly protectable interest." Donaldson v. United States. 400 U.S. 517, 531 (1970). While the exact contours of this requirement have yet to be defined, 7 A Wright & Miller, Federal Practice and Procedure §1908, at 496 (1972), some precedential guidance is available. This Court in Diaz v. Southern Drilling Corp 427 13 J F.2d 1118, 1124 (5th Cir.), cert. denied sub nom. Trefina, A.G. v. United States, 400 U.S. 878 (1970), required a "direct, sub stantial, legally protectable interest." Accord, Arvida Corp. v. City of Boca Raton, 59 F.R.D. 316, 320 (S.D. Fla. 1973); 3B Moore, Federal Practice If 24.09-1 [2 ] , at 24-301 (1974). In Donaldson, the Court weighed the importance of the interest asserted and the availability of other remedies against the impact that recognizing that interest for purposes of inter vention would have on other important public policies. 400 U.S. at 531. In Rios v. Steamfitters, Local 638, ___ F.2d __ , 10 FEP Cases 1223, 1226 (2d Cir., June 24, 1975), the court considered the relevance of the applicants' asserted seniority rights to the goals of the Title VII suit before the trial court and found no "significantly protectable interest." Appellants contend that they must show only a "real economic stake in the outcome of the litigation," citing Textile Workers Union v. Allendale Co., 226 F.2d 765, 769 (D.C. Cir. 1955). Brief for Appellants at 14. But the court there was discussing the interest needed for permissive intervention under Rule 24(b); more is required for intervention of right. See Donaldson v. United States, 400 U.S. 517 (1970) (outcome of the litigation might affect applicant's income tax liability). After judgment has been rendered, a "strong showing" of an interest in the proceedings is required. 7 A Wright & Miller, Federal Practice and Procedure §1916, at 579 (1972). 14 The interest asserted by the Appellants in the case at bar are alleged contractual rights in a group seniority system. It is unnecessary to determine the nature of Appellants' rights in this regard, because such seniority claims have been required to yield to the requirements of Title VII. See, e.g., Franks v. Bowman Transp, Co.. 495 F.2d 398, 415 (5th Cir. 1974), cert, granted, 95 S.Ct. 1421 (1975); United States v. Jacksonville Terminal Co., 451 F.2d 418, 455 (5th Cir. 1971), cert, denied, 406 U.S. 906 (1972); Quarles v. Phillip Morris, Inc.. 279 F. Supp. 505, 520 (E.D. Va. 1968). The modification of the seniority system made by the March 7 order complies with the law and was within the permissible discertion of the district court in fashioning equitable remedies. See Swann v. Charlotte-Mecklenburg ._of Educ,, 402 U.S. 1, 15 (1971); Rodriquez v. East Texas Motor Freight, 505 F.2d 40, 61 (5th Cir. 1974). While more narrow relief in the form of a system differentially administered on the basis of race might have been ordered as the minimum relief necessary, see Stevenson v. International Paper Co.. F-2d ___ (5th Cir., July 16, 1975), the district court here apparently recognized that such a system would heighten rather than mollify race consciousness while placing a substantial administrative burden on the employer. The district court did recognize Monsanto's business interest in adequately trained employees by providing certain residency requirements in lieu of group seniority as a vehicle for assuring that 15 employees have attained necessary skills and experience prior to promotion. The court thus took into account this Court's concern in Local 189, United Papermakers v. United States. 416 F.2d 980 (5th Cir.), cert, denied, 397 U.S. 919 (1969), that the legitimate business interests of the employer be considered in fashioning an appropriate remedy. Courts have previously recognized implicitly consider ations which may render a unitary seniority system for all employees the more effective Title VII remedy and have often eschewed bifurcated seniority systems in favor of systems ap plicable equally to both black and white workers. See Rios v. Steamfitters, Local 638, ___ F.2d ___, 10 FEP Cases 1223 (2d Cir., June 24, 1975); Afro American Patrolmens League v. Duck, 503 F 2d 294, 298 (6th Cir. 1974); Robinson v, Lorillard Corn.. 319 F. Supp. 835 (M.D.N.C. 1970), aff'd in part. 444 F.2d 791 (4th Cir.), petition for cert, dismissed, 404 U.S. 1006 (1971). In addition, modification of seniority systems to attain compliance with Title VII can be performed unilaterally by the employer without regard to contrary provisions of a collective bargaining agreement. Savannah Printing, Local 604 v. Union Camp Corn.. 350 F. Supp. 632 (S.D. Ga. 1972). In Savannah Printing, the new seniority system had the effect of subjecting three blacks to rollback because other blacks had been promoted in seniority over them; nonetheless, the deprivation in seniority status of members of one race relative to other 16 members of the same race did not entitle the deprived members to assert their contractual rights under collective bargaining agreements. Thus, even if Appellants had the contractual right to a group seniority system which they assert, it would not be in the context of a proceeding for intervention of right in a Title VII suit a "significantly protectable interest," for such a right is not independently protected by Title VII. Only if the March 7th order were an abuse of the district court's discretion would the Appellants' interest be "protectable" here. Furthermore, were the intervention allowed, the general rule is that even intervenors of right cannot attack prior decrees of the court, 3B Moore, Federal Practice 1(24.16[5], at 24-651 to -654 (2d ed. 1974), making the Appellants' interest even less "protectable" for purposes of the case at bar. Public policy considerations also weigh heavily against recognizing seniority interests for purposes of intervention of right in Title VII cases. The asserted interests are adverse and foreign to the purposes of a Title VII action. Cf• Rios v. Steamfitters, Local 638, supra, 10 FEP Cases at 1226. The assertion of these interests can only impede the effectuation of Title VII policies. Cf. Donaldson v. United -States, 400 U.S. 517, 531 (1971). Seniority rights have not been considered to merit great protection in the context of equal employment opportunity cases, and it has been stated that the benefits of seniority to white workers are only 17 partially denigrated by modifications such as those instituted here. See Cooper & Sobol, Seniority and Testing Under Fair Employment Laws, 82 Harv.L.Rev. 1598, 1604-07 (1969). The rationale has been that white workers who have benefitted from past discrimination should not be heard to complain that other workers, even other white workers, are benefitted under a new, job-related, and nondiscriminatory system. Finally, permissive intervention under Rule 24(b) remains available in the proper case if the suit is not prejudiced, even though intervention of right is denied. In conclusion, Appellants do not have sufficient interest in the transaction to justify granting intervention of right. c - The District Court*s Determination that Appellant Have Alternative Means to Protect Their Interests.------ ------ s The Appellants assert generally that their interests will be imparied if intervention is denied. However, they are "strangers" to the purposes of this lawsuit, and "nothing prevents their obtaining vindication of these rights by way of an independent action." Cjf. Rios v. Steamf itters, Local 638, supra, 10 FEP Cases at 1226-27. All of the Appellants are currently back at their original jobs and no new rollback is anticipated for the remainder of the calendar year. See 18 1 /Affidavit of K. C. Beene, attached hereto as Exhibit "A". Thus, Appellants are not suffering any current injury, and any delay in asserting their rights will not cause them prejudice. Even if Appellants were granted intervention, it is doubtful that they could change the March 7 order, as discussed supra in Part B. Finally, several alternatives appear available to Appellants to vindicate their alleged interests: First, if any contractual rights of the Appellants were violated, a suit for damages would lie. Second, Appellants could confer independently with the parties, and if agreement is reached on a new seniority system, the parties could petition under Rule 60 for modification of the March 7 order. Thus Appellants have failed to show that denial of intervention will in any way impair their ability to protect their interests. II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING INTERVENTION UNDER RULE 24(b)(2). Appellants' motion for intervention below sought in the alternative to intervene under Fed.R.Civ.P 24(b)(2). Appellants' brief on appeal makes no mention of their earlier IT---------------- The attached affidavit was filed on July 21, 1975 in connection with defendant's brief in opposition to the inter- venors' renewed motion for permission to intervene and their motion for relief from judgment filed in the district court on July 8, 1975. Those motions were denied on July 29, 1975. See Exhibit "B" which is attached hereto. 19 motion under 24(b), so apparently the propriety of the district court's denial of intervention under this provision is conceded. Intervention under Rule 24(b) is discertionary with the trial court, 3B Moore, Federal Practice 1f24.l0[4], at 24-391 (2d ed. 1974); 7A Wright & Miller, Federal Practice and Procedure §1913, at 550 (1972), and a denial of intervention will be reversed only for clear abuse of discretion. Allen Calculators, Inc, v . National Cash Register Co.. 322 U.S. 137, 142 (1944); Van Hoomissen v. Xerox Corp.. 497 F.2d 180, 181 (9th Cir. 1974); SEC v. Everest Management Corp., 475 F.2d 1236, 1240 (2d Cir. 1972); 7A Wright & Miller, Federal Practice and Procedure §1923, at 630 (1972) . Some of the same factors that may influence a court to deny intervention under Rule 24(a) apply with equal or greater force to 24(b). A more restrictive timeliness standard is applied to application under Rule 24(b), and intervention will generally be denied unless application is made "at a very early stage" in the proceedings. 3B Moore, Federal Practice 1f 24.13 [ 1 ] , at 24-521 (2d ed. 1974). The rule expressly directs the court to consider prejudice to the parties and delay in adjudication. Intervention may also be denied where the applicant has other remedies. 3B Moore, Federal Practice 1(24.10[4], at 24-391 to -392 (2d ed. 1974); 7A Wright & Miller, Federal Practice and Procedure §1913, at 552-56 (1972). All of these factors were discussed supra. Rule 24(b)(2) also requires that the applicant's claim involve a common question - 20 - of fact or law; none has been alleged either below or on appeal. Certainly the existence or nonexistence of a con tractual right in a seniority system is extraneous to the Title VII suit at issue. Intervention under Rule 24(b)(2) also requires an independent jurisdictional ground, 3B Moore, Federal Practice 1f 24,18 [ 1 ], at 24-751 to -753 (2d ed . 1974); 7A Wright & Miller, Federal Practice and Procedure §1917, at 592 (1972); none has been alleged. Thus, the trial court acted within its discretion in denying intervention under Rule 24(b)(2). court in its order of April 21, 1975 did not abuse its discretion by denying the application for intervention. CONCLUSION For the reasons discussed hereinabove, the district Susan A. Cahoon Attorneys for defendant appellee Monsanto Company 21 CERTIFICATE OF SERVICE ' J ) I hereby certify that I have this 31st day of July, 1975 served the parties to this appeal with the foregoing brief of appellee Monsanto Company by sending copies thereof by regular U.S. mail to the following attorneys at their respective addresses: for plaintiffs-appellees, P. Kent Spriggs, 324 West College Avenue, Tallahassee, Florida and Elaine R. Jones, 10 Columbus Circle, New York, New York 10019; for the appellants, D. L. Middlebrooks, Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, P.A., Seville Tower, 226 South Palafox Street, Pensacola, Florida 32501. Susan A . Cahoon Attorney for defendant-appellee Monsanto Company UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION r ) EDDIE STALLWORTH, et al., Plaintiffs, J. W. PALMER, et al., ))))))Applicants for Intervention, ) v. ) CASE NO. 73-45-CIV-P MONSANTO COMPANY Defendant. ))))) AFFIDAVIT STATE OF FLORIDA ESCAMBIA COUNTY Personally appeared before the undersigned officer duly authorized by law to administer oaths, K. C. BEENE, who, after first being duly sworn, deposes and states that: Personnel and Industrial Relations, at the Pensacola plant of Monsanto Company. I make this affidavit for use by Monsanto Company in the above-captioned action. The facts herein stated are based on my personal knowledge and are true and correct. 2. All of the persons who are applicants for inter vention in this action are employees of Monsanto Company in the Intermediates Department of the Pensacola plant who were temporarily "rolled back" from a higher paying wage group 11 Chemical Operator job classification in March, 1975, along with several other persons employed as Chemical Operators, to a wage group 8 job in the Intermediates Department. 3. By June 23, 1975, all persons, including all of the applicants for intervention, who had been affected by the temporary roll back in the Intermediates Department had been 1. My name is K. C. Beene. I am Superintendent, EXHIBIT "A" 23 returned to their former wage group 11 Chemical Operator job classification. 4. In light of present economic conditions temporary roll backs in the Intermediates Department anticipated in the remainder of calendar year 1975. no new are K. C. Sworn to and subscribed before me this 21st day of July, 1975. Jo tar My Commission Expires Feb. 11, 1975 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION EDDIE STALLWORTH, et al., Plaintiffs, v s - NC MONSANTO COMPANY, Defendant. O R D E R Before the court is pleading styled "Renewal of Motion to Intervene." In it applicants seek permission to intervene for purpose of seeking relief from a portion of this court's order of March 7, 1975. These same applicants moved to intervene as. I plaintiffs on April 4, 1975. That motion was denied by order entered April 21, 1975, and they have appealed from that denial. | In April, 1975, these applicants sought to inter vene with a tendered complaint; here they seek to intervene with a Rule 50(b) motion. In both, they seek, at least to an extent, relief from the order of this court enterec j herein on March 7, 1975. In the present tendered motion, their contention is that the order of March 7, 1975 is too j broad and should be modified to include; group seniority I reinstated as to white employees. While the complaint itendered on the prior application for intervention mav have !•* l raised other contentions, it also raised this one. Under I the thrust of Zimmer v. McKeithan, 467 F.2d 1381 (5th Cir. ; 1972) and other cases, jurisdiction over that contention ). co PCA 7-3-4 5 «-0 t-n S 'S 'j r EXHIBIT 4,B" 25 r-''t - ■. ,<rS has passed to the appellate court. Applicants may not bypass i-he appeal and vest this court with jurisdiction of their contention, pending appeal, by presenting it through a ; renewed intervention application in which the point is sought ; to be presented by a Rule 60(b) motion, rather than by | complaint. I Beyond that, denial of application of April 4, 1975 was grounded on timeliness judged by tv/o criteria: the length of time during which proposed inter- venors knew, or should have known, about their interest; ana (2) the harm or prejudice that might result to the rights of other parties by delay. Respecting the first of these two criteria, it is ciear the length of time has increased. Respecting the second of those criteria, the order of March 7, 1975 and the subsequent order of reference to a master have been the foundation upon which extensive hearings have been conducted. It applicants were successful in obtaining their sought after moaifications, those hearings might have to be reopened. If they were not, or if reopening of them was not required for other reason, then, nonetheless, there would be additional delay in getting to final determination of this long pending suit already too long delayed. There may also be presented here the question whether this intervention is in any event allowable. Under Rule 24(b), to be permissible, the applicants' claim or defense and the main action must have a question of law or ract in common. Here intervenor applicants have said the relief sought_would not affect the black plaintiff class. - 26 - 1 * I * ' ...J 0 .4 i n ;l Instead, they seek change in the order only to the extent j| of reinstating group seniority with white employees, with |! the other employees affected by such change being other white j| employees. Thus they seek to use this suit, because of an order entered in this suit, as a vehicle for litigation between themselves and other white employees and the i j defendant. | jj Because, :or the other reasons stated, this courtjj concludes this motion should be denied, it finds it unnecessaryj ft° resolve ^ t h this question and other questions presented j ['by defendant arguing for denial. I |! , ' ' j jj Applicants cite in support of their motion the cases ! ,°f XAACP v. New York, 413 U.S. 345 (1973) and New York v. |.Uhited States, 65 F.R.D. 10 (D. D.C. 1974). In those cases, |iprejudice stemmed from threatened disruption of an election, jj Once the election was held, no prejudice existed. Factually j jjdifrerent in this and other respects from the instant case, j jj apart from the jurisdictional matter presented by the pending j [appeal, they afford no basis for allowing this intervention, jj untimely m April, and even more untimely now, to be made, jjlt is even more apparent than it was in April that applicants, I .clearly now seeking to litigate not with the black plaintiff .'class, but with defendant and other white employees not parties j ijt0 'CA1S SUit' Sh°uld be rentttted to separate litigation. j [ Intervener applicants request oral argument. This jjeourt, in most instances, allows oral argument when requested, even when, as here, it has had the benefit of [memoranda by the parties. Because, for the reasons stated, it I j.;is so clear to this court it should enter this order, it :jconcludes oral argument would serve no useful purpose. 0 27