U.S. Fidelity & Guar. Co. v. Lord, 78-1127
| Decision Date | 13 September 1978 |
| Docket Number | No. 78-1127,78-1127 |
| Citation | 585 F.2d 860 |
| Parties | 18 Fair Empl.Prac.Cas. 171, 17 Empl. Prac. Dec. P 8627 UNITED STATES FIDELITY AND GUARANTY COMPANY, L. K. Merz, Howard Gould, Robert Rowe, and John Aitken, Petitioners, v. The Honorable Miles W. LORD, Judge of the United States District Court for theDistrict of Minnesota, Fourth Division, Respondent, and Sheila Mead and Terry Oakley, and all other persons similarly situated, andEqual Employment Opportunity Commission, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Stephen D. Shawe, Shawe & Rosenthal, Baltimore, Md. (argued), Earle K. Shawe, Arthur M. Brewer and Eric Hemmendinger, Baltimore, Md., on brief, for petitioners.
Frank E. Vogl, Best & Flanagan, Minneapolis, Minn. (argued), and Thomas D. Carlson, Minneapolis, Minn., on brief, for respondents Mead, et al.
Philip B. Sklover, Atty., Equal Employment Opportunity Commission, Washington, D. C. (argued), Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, and Beatrice Rosenberg, Asst. Gen. Counsel; Equal Employment Opportunity Commission, Washington, D. C., on brief, for respondent Equal Employment Opportunity Commission.
Before HEANEY, Circuit Judge, STEPHENSON, Circuit Judge, and BECKER, Senior District Judge. *
In this class action litigation petitioners pray for a writ of mandamus commanding the respondent (1) to limit an order of the respondent district judge, certifying a national plaintiff class, (2) "compelling" the respondent to limit to Minnesota and set a cut-off date for the class conditionally, and (3) to vacate an order permitting the Equal Employment Opportunity Commission (EEOC) to intervene in the action.
The petitioners are defendants in the civil action pending before the respondent United States District Judge in the Fourth Division of the United States District Court for the District of Minnesota. The action in question is pending on a class action complaint filed by Sheila Mead and Terry Oakley, former employees of United States Fidelity & Guaranty Company (USF&G) until January and April, 1977, respectively. The amended complaint seeks to enforce provisions of Title VII of the Civil Rights Act of 1964, on their behalf individually and on behalf of a "company-wide" class of "all female persons who have been, or are presently employed or might be employed and all past, present and future female applicants for employment at defendant USF&G offices throughout the United States . . . ." (Supplemental Appendix, "S.A." hereinafter, 3).
In the amended complaint ("complaint" hereinafter) plaintiffs Mead and Oakley allege that the defendant USF&G is a Maryland corporation, doing business in Minnesota and elsewhere in the United States (S.A. 2); that the "following company-wide practices, policies, rules, regulations, customs and usages made unlawful by Title VII, have been and continue to be uniformly instituted and/or maintained by defendant USF&G throughout all of its offices in the United States" (S.A. 3, 4); and that USF&G has discriminated and continues to discriminate against plaintiffs individually, and members of the alleged national class of female employees solely on the basis of sex (S.A. 3-8). The complaint alleges discrimination in practically every imaginable detail, including generally discriminatory denial of recruitment, training, promotion, equal pay, equal status, opportunities for transfer and employment as underwriters, outside claim adjusters, assistant supervisors, supervisors, management and higher paying "policy level positions" (S.A. 5, 6).
In Count I, ("Claim I" in complaint) plaintiffs Mead and Oakley allege discriminatory denial of their requests for training and transfer to positions of underwriters, and that they and other female employees have been segregated into clerical, secretarial, and other "non-professional, low-paying, dead-end job classifications with no promotional opportunities," in contrast to the different treatment of males (S.A. 7).
In Count I, plaintiff Mead alleges that she was pregnant in 1976; that upon learning of her pregnancy the defendants attempted to discourage her from continuing her employment by unsupported adverse reviews of her work, and by "encouraging her not to return to work following her pregnancy" (S.A. 7, 8); that USF&G delayed her return to employment, when she was ready for return, solely because of her pregnancy and denied, solely because of her pregnancy, other benefits for illness and disability, available to other employees (S.A. 7, 8).
In Count II, plaintiff Mead alleges that she filed a charge of discrimination with the EEOC in May 1976 (S.A. 8); that in retaliation the defendants harassed, intimidated and coerced her by assigning excess work to her, excessive monitoring of her work, depriving her of the assistance of other employees, making unsupported adverse reviews, denying her without just cause a raise in pay, and wrongfully discharging her within several days of receipt by her of notice of a right to sue (S.A. 8).
In Count III, plaintiff Mead alleges damage from discrimination described in Count I, and in addition discrimination in maternity benefits, measured by non-pregnancy benefits in the "company-wide group medical insurance plan" of USF&G in violation of the Minnesota Human Rights Act, as amended, Minn.Stat. 363.03 subdivision 1(2) (S.A. 9).
The individual defendants, Merz, Aitken, Gould, and Rowe, are alleged to have been, or to be presently, officers in the Minneapolis office of USF&G in which the individual plaintiffs were employed, and to have participated in the alleged discrimination.
Exhaustion of "jurisdictional and administrative remedies" of Title VII and the Minnesota Human Rights Act is alleged in the complaint.
The complaint contains allegations that the requirements of paragraphs (a), (b)(2), and (b)(3) of Rule 23 F.R.Civ.P. have been met (S.A. 3).
The relief prayed for is (a) declaration by the court that the alleged discriminatory practices are unlawful; (b) a preliminary injunction against USF&G, its agents, successors, employees, directors, officers, and attorneys from continuing the alleged unlawful practices; (c) that the court order USF&G "to make whole" plaintiffs, and members of the class, by "backpay, front pay and otherwise, all individuals who have been adversely affected" by the alleged discrimination; (d) reinstatement of plaintiff Mead to employment by USF&G, and enjoining the defendants from subjecting her to special regulations or denying her equal employment; (e) award of punitive damages against USF&G (f) other general relief including, but not limited to, orders directing recruitment, hiring, training, promotions of plaintiffs and class members; and (g) award of attorneys' fees and costs to plaintiffs under § 2000e-5(k), Title 42 U.S.C., and Minn.Stat. 363.14, subd. 3 (S.A. 10, 11).
Before certification of the class, the district court for fourteen days heard evidence on the claim for relief of plaintiff Mead for retaliatory discharge, and found that she was constructively discharged in retaliation for her filing of charges of discrimination with the EEOC.
On November 22, 1977, the district court ordered that the action below be certified as a compulsory class action under paragraph (b)(2) of Rule 23, F.R.Civ.P., on behalf of a class defined as "all past, present, and future women employed by defendant 'USF&G' at any of its offices in the United States since July 2, (sic) 1965, and all past, present, and future female applicants for employment with defendant 'USF&G' at any of its offices in the United States since The EEOC was granted leave to intervene as plaintiff intervenor and to file a complaint in intervention, pursuant to Rule 24(b)(1) F.R.Civ.P. and to Sections 705(g)(6) and 706(f)(1) and (3) as amended, Title VII of the Civil Rights Act, 42 U.S.C. § 2000e Et seq.
July 5, 1965" (A. 10, 11). The minor discrepancy in the dates July 2, 1965, and July 5, 1965 (the date Title VII of the Civil Rights Act of 1964 became effective) appears to be a clerical error easily correctable.
This leave to intervene was first limited to intervention in the claim in Count II of plaintiff Mead for retaliatory discharge (A. 1-9). Later after allowing time for conciliation efforts, without results, the district court granted leave to the EEOC to intervene as a party plaintiff without restriction, after the General Counsel of EEOC certified that the action was one of general public importance, pursuant to Rule 24(b)(1) F.R.Civ.P. and Sections 705(g)(6) and 706(e) of Title VII of the Civil Rights Act of 1964 as amended, Sections 2000e-4(g)(6) and 2000e-5(f)(1), Title 42 U.S.C. (A. 12-15).
On January 13, 1978, the district court entered a carefully prepared memorandum of findings of fact, conclusions of law, and affirmation of its prior order certifying the action as a class action. The full text of this memorandum is attached hereto and entitled Addendum (A. 16-30).
After the filing of the complaint by plaintiffs Mead and Oakley, the district court consolidated an action brought by EEOC pursuant to Section 706(f)(2) of Title VII with the Mead claim for relief based on alleged retaliation. Later, the EEOC moved to intervene in the original action, alleging a pattern of nationwide discrimination. A certificate of the General Counsel of EEOC was issued certifying that the action was one of "general public importance" under Section 706(f)(1) of the EEOC Act of 1972, Section 2000e-5(f)(1), Title 42 U.S.C. The class allegations of the complaint in intervention were substantially the same as those in the (amended) complaint of Mead and Oakley. Originally, as stated above, the district court allowed the EEOC to intervene only in respect to the retaliation claim of plaintiff Mead. In respect to the complaint of nationwide discrimination, the district court stayed the...
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