Head v. Timken Roller Bearing Company

• Decision Date: 12 October 1973
• Docket Number: No. 72-1994.,72-1994.
• Parties: John Henry HEAD et al., Plaintiffs-Appellants, v. TIMKEN ROLLER BEARING COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

486 F.2d 870 (1973)

John Henry HEAD et al., Plaintiffs-Appellants, v. TIMKEN ROLLER BEARING COMPANY et al., Defendants-Appellees.

No. 72-1994.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1973.

Decided October 12, 1973.

COPYRIGHT MATERIAL OMITTED

William D. Wells, New York City, for appellants; Irwin W. Barkan, Barkan, Barkan & Neff, Columbus, Ohio, on brief.

Nancy E. Stanley, Washington, D. C., for United States, amicus curiae; William A. Carey, Gen. Counsel, Julia P. Cooper, Associate Gen. Counsel (Acting), Beatrice Rosenberg, Joseph T. Eddins, Attys., E.E.O.C., Washington, D. C., on brief; Howard Besser, E.E.O.C., Cleveland, Ohio, of counsel.

Lawrence D. Stanley, Columbus, Ohio, for appellees; David M. Selcer, Porter, Stanley, Platt & Arthur, Columbus, Ohio, John G. Ketterer, John F. Buchman, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, on brief; Clayman, Jaffy & Taylor, Columbus, Ohio, of counsel.

Before WEICK, MILLER and KENT,^* Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal by the plaintiffs from an order by the district court in a civil rights case finding unlawful employment discrimination but denying relief. Thirteen named plaintiffs, twelve blacks and one white, all employees of Timken Roller Bearing Company (herein the Timken Company or Timken) brought this class action on behalf of themselves and all similarly situated employees in the Columbus, Ohio, plant of Timken. The complaint alleged racial discrimination by Timken and the labor union representing Timken's employees at the Columbus plant, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

The gravamen of the complaint is that Timken and the labor union had agreed on a system of seniority and transfer that effectively denied blacks the opportunity to obtain many jobs that prior to the effective date of the Civil Rights Act of 1964, had been assigned almost exclusively to whites. The suit was dismissed as to the labor union and no appeal is taken from such dismissal.

The court below divided the consideration of the case into two time periods, pre-1968 and post-1968. The significance of the demarcation is that in 1968 the Timken Company changed from a departmental seniority transfer system to a plant-wide seniority transfer system. Some limited bid occupations were exempt from the plant-wide system.¹ The entire pre-1968 system and the limited bid provision of the post-1968 system were challenged as discriminatory by the plaintiffs. The plaintiffs also moved at the close of their evidence to amend their complaint to allege an additional cause of action under the Civil Rights Act of 1866, 42 U.S.C. § 1981, specifically to obtain the benefit of alleged racially discriminatory activities by the company prior to the effective date of Title VII (July 2, 1965).

The court below denied the motion of the plaintiffs to amend their pleadings. It also declined to grant any relief to the plaintiffs despite its holding that Timken had violated the Civil Rights Act of 1964. The court thus refused to enter an injunction against Timken, or to award back pay or reasonable attorney's fees as prayed for. From that decision the plaintiffs have appealed.

Four issues are presented: (1) Whether the court below erred in denying the plaintiffs' motion for leave to amend; (2) Whether the court below erred in not awarding back pay to the plaintiffs despite its holding that prior to 1968 Timken had violated Title VII; (3) Whether the court erred in not enjoining Timken's limited bid system; and (4) Whether the court abused its discretion in not awarding reasonable attorney's fees to the plaintiffs.

Under Rule 15(b) of the Federal Rules of Civil Procedure,² the federal courts are obligated freely to allow amendments to the pleadings. If the amendment is not timely the court must weigh the cause shown for the delay against the resulting prejudice to the opposing party. In Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir.1971), the court said:

While it is generally true that leave to file amendments should be freely given, Fed.R.Civ.P. 15(a), amendments should be tendered no later than the time of pretrial, unless compelling reasons why this could not have been done are presented. . . . A trial judge\'s decision must weigh good cause shown for the delay in moving, vis a vis dilatoriness of counsel resulting in last minute surprise and inability of opposing counsel to meet the tendered issue. See Albee Homes, Inc. v. Lutman, 3 Cir. 1969, 406 F.2d 11, 14; Inland Container Corp. v. Atlantic Coast Line R.R., 5 Cir. 1959, 266 F.2d 857, 861, 3 J. Moore, Federal Practice §§ 15.08(4), 16.12 (2d ed. 1968).

Rule 15(b) is not a carte blanche, allowing parties to amend their pleadings at any time. Proper analysis is, as stated, to weigh the cause shown for the delay against the resulting prejudice to the opposing party.

Admittedly, the district court did find pre-1965 discrimination and the plaintiffs insist, therefore, that the issue whether the company discriminated in the past was actually litigated in the case. This argument presents two problems germane to appropriateness of the denial of leave to amend. First, there was more presented by the proposed amendment than an issue of pre-1965 discrimination. The issue of whether the defendants were liable under § 1981,³ even granting discrimination, would also have to be litigated. Secondly, the prejudice to Timken, if any, and what it would have to prove in order to defeat the claim would also have to be considered. The plaintiffs would not have a significantly heavier burden but Timken would indeed be required to offer evidence much different from that which it would be expected to offer against the plaintiffs' other claims.

Was there good cause for the delay and if so, how does it weigh against the factors already noted? The plaintiffs insist that the discovery of "new" law justified the delay. This so-called new law was the case of Brown v. Gaston County Dyeing Machine Co., 457 F. 2d 1377 (4th Cir. 1972). The plaintiffs' view is that this case was a novel decision articulating a new theory of damages. Brown perhaps is the first case actually to hold that pre-Title VII acts of racial discrimination in employment may be remedied by back pay under § 1981. However, even the members of the court deciding Brown were in disagreement as to the novelty of the decision.⁴ We find it unnecessary, however, to venture an opinion on this topic. Whether Brown was the first case to award back pay for pre-Title VII racial discrimination in employment is largely irrelevant. The plaintiffs cite in their brief numerous cases for the proposition "that § 1981's applicability extends to private acts of racial discrimination in employment and that it is concurrent with and independent of Title VII's applicability." These authorities,⁵ (Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. den. 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972), being the leading case) do establish § 1981 as a separate and concurrent cause of action with Title VII. The court in Caldwell held that a person may purposely avoid filing with the Equal Employment Opportunity Commission and seek an independent remedy for employment discrimination under § 1981. These decisions make it apparent that back pay for pre-Title VII racially discriminatory acts in employment was potentially available under § 1981⁶ before the Brown decision. We find therefore that there was no just cause for delay and that the district court's denial of the motion for leave to amend the pleadings was not an abuse of its discretion.

Did the district court err in not awarding back pay to the plaintiffs despite its holding that prior to 1968 Timken had violated Title VII? On this issue we are concerned only with a time period beginning July 2, 1965, the effective date of Title VII, and ending November 4, 1968, the termination date of Timken's unit or departmental seniority system.

The district court held that prior to the effective date of the Civil Rights Act of 1964, Timken hired along racial lines and that this coupled with the pre-1968 unit or departmental seniority system⁷ constituted a policy of racial assignment that denied black employees equal opportunity. We agree with this holding. We also agree with the district court's holding that the 1965-68 seniority system was not justified by a "business necessity".

Although the plaintiffs prayed for back pay as part of their relief, the district court did not directly meet the issue in its opinion. Back pay is clearly an appropriate remedy for Title VII violations.⁸ This remedy has been recognized as appropriate by several courts in Title VII class actions.⁹ In one of the early cases awarding classwide back pay, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969), the court expressly considered the proper remedy for persons who had been denied equal opportunities as a consequence of an illegal seniority system:

The clear purpose of Title VII is to bring an end to the proscribed discriminatory practices and to make whole, in a pecuniary fashion, those who have suffered by it.

In Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.) cert. den. 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), the Fourth Circuit, adopting the analysis in Bowe with respect to the nature of back pay awards under Title VII, stated:

The back pay award is not punitive in nature, but equitable—intended to restore the recipients to their rightful economic status absent the effects of the unlawful discrimination.

In light of the congressional intent courts should extend

a wide scope to the act in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities. Rowe v. General Motor Corp., 457 F.2d 348, 354 (5th Cir. 1972).

The finding of discrimination by the district court, in...