Stallworth v. Monsanto Company Brief for Appellee

    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