471 F.2d 853 (4th Cir. 1973), 72-1628, Moss v. Lane Co., Inc.

Docket Nº:72-1628.
Citation:471 F.2d 853
Party Name:Fred MOSS, Jr., Appellant, v. The LANE COMPANY, INCORPORATED, Appellee.
Case Date:January 11, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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471 F.2d 853 (4th Cir. 1973)

Fred MOSS, Jr., Appellant,



No. 72-1628.

United States Court of Appeals, Fourth Circuit.

January 11, 1973

Argued Dec. 5, 1972.

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Barry L. Goldstein, NAACP Legal Defense & Educational Fund, Inc., New York City, and Henry L. Marsh, III, Richmond, Va. (James W. Benton, Jr., Hill, Tucker & Marsh, Richmond, Va., George W. Harris, Jr., Roanoke, Va., Jack Greenberg, William L. Robinson, New York City, and John K. Harkavy, New York City, on brief), for appellant Brown.

Hill Boswell, Charlotte, N. C. (J. W. Alexander, Jr., Charlotte, N. C., W. Barney Arthur, Alta Vista, Va., S. Bowling Hobbs, Lynchburg, Va., and Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The plaintiff sought both individual and class relief in this action filed under Title VII of the Civil Rights Act of 1964. A preliminary motion to dismiss the class action was made by the defendant and denied by the district court. The defendant, also, sought a jury trial but this motion, too, was denied. Thereafter, the cause came on for trial. The trial judge 1 impaneled an advisory jury and submitted the issues to it. The advisory jury found against the plaintiff on all issues submitted. 2 The trial court then made its own findings to the effect that the plaintiff (1) was discharged for cause, (2) was not discriminated against because of his race, and (3) was not entitled for such reasons to maintain the class action. It proceeded to dismiss the action, with a denial of attorneys' fees. The plaintiff appeals. We affirm dismissal as to the plaintiff's individual claim but remand the class action.

Plaintiff first directs his attack at the impaneling of an advisory jury by the trial court. In the preliminary stages of the case, as has already been noted, the district court had denied a motion on the part of the defendant for a jury trial. In denying such motion and in holding that the cause "is (was) not a proper one for jury trial", it had stated that "under the governing statutes the intent was for the courts to try these (discriminatory) cases". 3 Despite this prior ruling, the trial court found discretion to impanel an advisory jury in the broad language of Rule

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39(c), Federal Rules of Civil Procedure , which authorizes such procedure in any cause "not triable of right by a jury". The plaintiff urges that such action in effect represented a reversal of the earlier order denying a jury trial which represented the law of the case. Whether there was any such reversal we need not decide since we find no prejudice to the plaintiff in the procedure followed by the trial court. We feel it appropriate to observe, however, that, as we stated in Cox v. Babcock and Wilcox Company, 4 Cir., 471 F.2d 13, the use of advisory juries in discrimination cases is not favored, however broad the language of Rule 39(c) may be deemed, and should be restricted in any event to the exceptional case where there are peculiar and unique circumstances supporting its use. So far as the plaintiff's individual claim is concerned, however, plaintiff has suffered, as we...

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