662 F.2d 975 (3rd Cir. 1981), 80-1569, Croker v. Boeing Co. (Vertol Division)

Docket Nº:they represent, in No. 80-1569.
Citation:662 F.2d 975
Party Name:Mamie CROKER, Eric P. Travis, Chivis Davis, Sr., Robert W. DeBose, and Leolin Dockins, Jr., individually and on behalf of all others similarly situated v. The BOEING CO. (VERTOL DIVISION) and Local No. 1069 of International Union; United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Appeal of Mamie CROKER, Eric Travis,
Case Date:September 30, 1981
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 975

662 F.2d 975 (3rd Cir. 1981)

Mamie CROKER, Eric P. Travis, Chivis Davis, Sr., Robert W.

DeBose, and Leolin Dockins, Jr., individually and

on behalf of all others similarly situated

v.

The BOEING CO. (VERTOL DIVISION) and Local No. 1069 of

International Union; United Automobile, Aerospace

and Agricultural Implement Workers of

America (UAW).

Appeal of Mamie CROKER, Eric Travis, Chivis Davis, Leolin

Dockins, and Robert DeBose, on their own behalf

and on behalf of the class of persons

they represent, in No. 80-1569.

Appeal of The BOEING CO. (VERTOL DIVISION) in No. 80-1570.

Nos. 80-1569, 80-1570.

United States Court of Appeals, Third Circuit

September 30, 1981

Argued Dec. 2, 1980.

Reargued In Banc May 12, 1981.

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Jeffrey A. Less, John F. Smith, III (argued), Hope A. Comisky, Dilworth, Paxson, Kalish & Levy, Philadelphia, Pa., for appellants Mamie Croker, et al.

Robert M. Landis (argued), Jerome A. Hoffman, Marie M. Gursky, Bruce A. Cohen, Dechert, Price & Rhoads, Philadelphia,

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Pa., for appellant The Boeing Co. (Vertol Div.).

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION

SEITZ, Chief Judge.

This is an appeal from several orders of the district court entered in a class action suit brought by five employees of the Vertol Division of the Boeing Company (Boeing Vertol). The plaintiffs (the individual and class plaintiffs are hereinafter referred to as "the employees") alleged racial discrimination in employment, in violation of title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and of the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1985. The employees assert that this court has jurisdiction under 28 U.S.C. § 1291 (1976). Boeing Vertol has moved to dismiss portions of the appeal for lack of subject matter jurisdiction.

I. PROCEDURAL HISTORY

Boeing Vertol is a major government contractor located in Ridley Township, Delaware County, Pennsylvania. It is engaged in the manufacture of helicopters, and nearly all of its production is purchased by the United States Department of Defense. Five Boeing Vertol employees, Mamie Croker, Eric Travis, Leolin Dockins, Chivis Davis, and Robert DeBose, brought an action individually and on behalf of a class of black employees of and applicants for employment at Boeing Vertol. They alleged that Boeing Vertol and Local 1069 (the Union) had discriminated on the basis of race in all phases of employment. Under rule 23(b)(2) of the Federal Rules of Civil Procedure, the district court certified a class action. The class was later modified to consist of:

Under Title VII, all Negro persons who had applications pending for employment with Boeing Vertol on or after March 23, 1968, or who have been employed by Boeing Vertol at any time between March 23, 1968 and June 30, 1975, the date on which trial of this action commenced;

Under 42 U.S.C. §§ 1981, 1985, all Negro persons who had applications pending for employment with Boeing Vertol on or after September 2, 1965, or who had been employed by Boeing Vertol at any time between September 2, 1965 and June 30, 1975, the date on which trial of this action commenced.

Croker v. Boeing Co. (Vertol Division), 437 F.Supp. 1138, 1198 (E.D.Pa.1977).

The district court bifurcated the case, and a nonjury trial on the liability issues began in 1975. Shortly after trial began, the Union and the employees reached a settlement. The employees and Boeing Vertol proceeded to trial, presenting both extensive statistical evidence and supporting individual testimony.

In June 1977, the district court found in favor of Boeing Vertol and against the class and certain individual employees on all issues of liability, but in favor of Croker, Dockins, Davis, Travis, and two class member witnesses, Donald Ferrel and Horace Dixon, on portions of their claims of racial discrimination in employment. 1 See id. Specifically, the court found that Croker, Dockins, Davis, and Ferrell were discriminatorily denied promotions, that Dixon was discriminatorily denied a request for transfer, that Croker and Travis were subject to discriminatory harassment, and that Travis was also subject to discriminatory discipline and retaliation.

Trial on the issue of damages for the six employees was held in November 1977. In that same month, the district court, while reserving the issue as to the amount, awarded attorney's fees and costs to then-prevailing plaintiffs Croker, Travis, Davis, and Dockins, and awarded costs to Boeing

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Vertol against the class and DeBose. See Croker v. Boeing Co. (Vertol Division), 444 F.Supp. 890 (E.D.Pa.1977). In October 1979, the district court issued an opinion and order on the damages portion of the action. See Croker v. Boeing Co., 23 FEP Cases 1783 (E.D.Pa. Oct. 12, 1979). The court held, relying on an opinion handed down by this court after the liability phase of trial had been completed, see Dickerson v. United States Steel Corp., 582 F.2d 827 (3d Cir. 1978), that Ferrell and Dixon were not entitled to individual relief because they were not named plaintiffs, but were class-member witnesses whose class-wide claims had been unsuccessful. See id. at 834. The court also found that Dockins was not entitled to damages because the discriminatory acts on which liability to him was predicated occurred in a period barred by the applicable statute of limitations. Croker, Travis, and Davis were awarded damages: Croker and Travis were awarded $15,050 and $3,550 respectively for section 1981 and title VII violations; Davis was awarded title VII backpay in the amount of $891.13 plus interest.

In March 1980, the district court fixed the amount of attorney's fees to be awarded to Croker, Travis, and Davis, whose right to fees had been previously determined. The employees then filed this appeal from the June 1977, November 1977, October 1979, and March 1980 orders.

On appeal, the employees contend that the district court erred in (1) requiring the employees to prove purposeful discrimination under 42 U.S.C. § 1981; (2) ruling that title VII liability commenced in March 1968 rather than July 1965; (3) applying an incorrect standard of proof to the employees' title VII claims; (4) failing to find Boeing Vertol liable for discrimination against the class of black employees in (a) initial placement, (b) promotions to supervisory and leadman positions, and (c) discipline and harassment; (5) failing to find Boeing Vertol liable for discrimination against certain individual black employees in promotions to supervisory and leadman positions; and (6) holding that Boeing Vertol was entitled to costs against the class of black employees and individual plaintiff DeBose. Boeing Vertol filed a cross appeal, but in its brief it presented no issues for review on its cross appeal. Instead, it responded only to those issues raised by the employees. Boeing Vertol has also moved to dismiss the employees' appeal as to the 1977 and 1979 orders on the ground that the employees did not file a timely notice of appeal from those orders.

II. APPELLATE JURISDICTION

We must first address Boeing Vertol's motion to dismiss portions of this appeal for lack of subject matter jurisdiction. 2 Boeing Vertol contends that the employees' notice of appeal was timely only as to the March 1980 order, and it therefore seeks dismissal of all portions of the appeal not concerning that order.

In the October 1979 order, the district court entered judgment against Boeing Vertol in favor of Croker, Travis, and Davis and in favor of Boeing Vertol against Dockins, Dixon, and Ferrell. Because the district court had determined entitlement to attorney's fees in its November 1977 order, the only issue that was unresolved after entry of the October 1979 order was the amount of such fees to be awarded. In its March 12, 1980 order, the district court set the amount of attorney's fees. Thereafter, on April 8, 1980, the employees filed their notice of appeal from all four orders (June 1977, November 1977, October 1979, March 1980).

Boeing Vertol contends that the employees were required to appeal the 1977 and 1979 orders within thirty days of the October 1979 order, which Boeing Vertol contends was the final judgment as to the

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matter to be decided. See 28 U.S.C. § 1291; Fed.R.App.P. 4(a) (appeal shall be filed within 30 days from entry of judgment). The employees respond that the judgment was not final until the amount of attorney's fees was set, and that their notice of appeal, filed within thirty days of the March 1980 order, was therefore timely as to all the orders.

Thus, the issue raised by Boeing Vertol's motion to dismiss is whether an order is final for purposes of appeal when a district court has decided all issues in a case, including entitlement to civil rights attorney's fees, except the amount of attorney's fees. An answer to this question is important because our prior panel opinions provide conflicting guidance. Compare, e. g., Paeco, Inc. v. Applied Moldings, Inc., 562 F.2d 870, 879 (3d Cir. 1977) (in patent case, order nonfinal that does not decide liability and damages for antitrust violations and amount of attorney's fees), and Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (in employment discrimination case, order nonfinal that left unresolved issue of attorney's fees), with DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1138-39 n.3 (3d Cir. 1980) (in patent case, order disposing of merits final if it has determined entitlement to, but not amount of, attorney's...

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