5 Fair empl.prac.cas. 374, 5 Empl. Prac. Dec. P 8093 Calvin A. Cox, Individually, & on Behalf of Others Similarly Situated v. Babcock & Wilcox Co., a Corp., 471 F.2d 13 (4th Cir. 1972). · Go Syfert
Search
5 Fair empl.prac.cas. 374, 5 Empl. Prac. Dec. P 8093 Calvin A. Cox, Individually, & on Behalf of Others Similarly Situated v. Babcock & Wilcox Co., a Corp., 471 F.2d 13 (4th Cir. 1972). Cases Citing This Book View Copy Cite
153 citation events (24 in the last 25 years) across 36 distinct courts.
Strongest positive: Medina v. District of Columbia (dcd, 2010-06-18) · Strongest negative: Jeanette J. PLUMMER, Plaintiff-Appellant, v. WESTERN INTERNATIONAL HOTELS COMPANY, INC., Defendant-Appellee (ca9, 1981-12-03)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Jeanette J. PLUMMER, Plaintiff-Appellant, v. WESTERN INTERNATIONAL HOTELS COMPANY, INC., Defendant-Appellee (2×) also: Cited as authority (rule)
9th Cir. · 1981 · signal: but see · confidence high
But see Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Smith, 454 F.2d at 160-61 (Dyer, J., dissenting from denial of en banc rehearing).
discussed Cited as authority (rule) Medina v. District of Columbia
D.D.C. · 2010 · confidence medium
See, e.g., Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041 , 105 S.Ct. 525 , 83 L.Ed.2d 413 (1984); Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972).
discussed Cited as authority (rule) Medina v. Dc Government
D.D.C. · 2010 · confidence medium
See, e.g., Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041 (1984); Walton v. Eaton Corp., 563 F.2d 66 , 74-75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972).
discussed Cited as authority (rule) Byrd v. BT FOODS, INC. (2×)
Fla. Dist. Ct. App. · 2009 · confidence medium
See, e.g., Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir.2008); Tulloss v. Near N. Montessori Sch., Inc., 776 F.2d 150, 153-54 (7th Cir.1985); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); Smith v. Universal Servs., Inc., 454 F.2d 154 (5th Cir.1972).
discussed Cited as authority (rule) Rhone-Poulenc Agro, S.A. v. Monsanto Co.
M.D.N.C. · 2006 · confidence medium
See Tamko Roofing Prod., Inc. v. Smith Eng’g Co., 450 F.3d 822, 828 (8th Cir.2006) (explaining when a jury sits in a solely advisory capacity the court is free to accept or reject its findings); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir.1972) (noting findings of advisory jury are merely advisory and the court must make its own findings); Sheila's Shine Prod., Inc. v. Sheila Shine, Inc., 486 F.2d 114 , 122 (5th Cir.1973) ("[The trial court] is not bound by the findings of the advisory jury, which it is free to adopt in whole or in part or to totally disregard.”).
discussed Cited as authority (rule) McKenzie v. Carroll International Corp.
W. Va. · 2004 · confidence medium
See Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3rd Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); Johnson v. Yellow Freight Sys., 734 F.2d 1304, 1309 (8th Cir.1984); Barfield v. Orange County, 911 F.2d *693 644, 650 (11th Cir.1990); Cortes v. Maxus Exploration Co., 758 F.Supp. 1182, 1183 (S.D.Tex.1991).
discussed Cited as authority (rule) Shotwell v. Donahoe
Ariz. · 2004 · confidence medium
Paper Bd. Co., 479 F.2d 97, 99-100 (2d Cir.1973) (refusing to reverse a trial court’s exclusion of an EEOC investigatory report from evidence); Cox v. Bab-cock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972) (recognizing a trial court’s discretion over whether EEOC records are admissible).
discussed Cited as authority (rule) Kimball, Bennett, Brooslin & Pava v. McGahan
Mass. Super. Ct. · 2003 · confidence medium
See id.; Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir. 1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972).” Although the language of Massachusetts’ Proposed Rule 803(8) tracks the language of the analogous federal rule, judicial interpretation of the two rules differs.
examined Cited as authority (rule) Chisolm v. TranSouth Financial Corp. (3×) also: Cited "see, e.g."
E.D. Va. · 2000 · confidence medium
See Walters v. Edgar, 163 F.3d 430, 432 (7th Cir.1998); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 16 (4th Cir.1972); Booth v. Prince George’s County, 66 F.R.D. 466, 473 (D.Md.1975).
discussed Cited as authority (rule) Redmond v. State Farm Insurance
D.C. · 1999 · confidence medium
R. 39(c) in all material respects, “specifically authorizes a Court in its discretion to employ [an advisory jury] procedure in any case ‘not triable of right by a jury’ and the Court’s exercise of such discretion in these circumstances is not reviewable.” Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir.1972) (citation omitted).
discussed Cited as authority (rule) Equal Employment Opportunity Commission v. Ford Motor Company
6th Cir. · 1996 · confidence medium
Second, the only reasons given by the Ninth Circuit in Plummer for adopting a per se admissibility rule is that the EEOC is an impartial agency and that Title VII plaintiffs have a difficult burden of proof and "should not be deprived of what may be persuasive evidence." Plummer, 656 F.2d at 505 . 4 We reject the notion that the EEOC is impartial on the basis of our own analysis, the Smith dissent, and the Fourth Circuit's dicta in Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972) (noting that the reasons given to exclude EEOC cause determinations in the Smith dissent were "persuasiv…
cited Cited as authority (rule) Brown v. Town of Chapel Hill, N.C.
4th Cir. · 1996 · confidence medium
Chandler v. Roudebush, 425 U.S. 840 , 863 n. 39 (1976); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972).
cited Cited as authority (rule) Brown v. Town of Chapel Hill
4th Cir. · 1996 · confidence medium
Chandler v. Roudebush, 425 U.S. 840 , 863 n.39 (1976); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972).
discussed Cited as authority (rule) Olson v. Largo-Springhill Ltd. Partnership
D. Maryland · 1995 · confidence medium
See also Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir.1979) (“[An administrative agency] has no adjudicative power, and its proceedings are not binding upon the employer.”); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972) (citing Smith dissent which “expresses persuasive reasons why such evidence should not be admitted” and noting that “even in those cases where a contrary view is taken, it is stated that the admission of such records is discretionary with the District Court.”) Thus, the preliminary determination of “reasonable cause” by the county HRC is no…
discussed Cited as authority (rule) Michael E. Hubbard v. Administrator, Environmental Protection Agency, Michael E. Hubbard v. Environmental Protection Agency (2×)
D.C. Cir. · 1992 · confidence medium
See Ramos v. Roche Products, Inc., 936 F.2d 43, 49-50 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 379 , 116 L.Ed.2d 330 (1991); Walton v. Eaton Corp., 563 F.2d 66, 69, 84 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir.1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969); Moore v. Sun Oil Co., 636 F.2d 154, 156 (6th Cir.1980); Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir.1979); Harmon v. May Broadcasting Co., 583 F.2d 410 (8th Cir.1978) (per curiam); Slack v. Havens, 522 [ 299 U.S.App.D.C. 158 ] F.2d 1091, 1094 (9th Cir.19…
discussed Cited as authority (rule) Michael E. Hubbard v. Environmental Protection Agency, Michael E. Hubbard v. Administrator, Environmental Protection Agency (2×)
D.C. Cir. · 1992 · confidence medium
See Ramos v. Roche Products, Inc., 936 F.2d 43, 49-50 (1st Cir.1991); Walton v. Eaton Corp., 563 F.2d 66, 69, 84 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir.1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969); Moore v. Sun Oil Co., 636 F.2d 154, 156 (6th Cir.1980); Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir.1979); Harmon v. May Broadcasting Co., 583 F.2d 410 (8th Cir.1978) (per curiam); Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir.1975); Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir.1991); Lincoln v. Board of Regent…
discussed Cited as authority (rule) 57 Fair empl.prac.cas. 1880, 54 Empl. Prac. Dec. P 40,226, 31 Fed. R. Evid. Serv. 216 Brenda L. Barfield v. Orange County, Orange County Sheriff's Dept., Lawson Lamar, Individually, Lawson Lamar, in His Official Capacity as Sheriff of Orange County
11th Cir. · 1990 · confidence medium
See id.; Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972). 39 We are unwilling to say, as the Ninth Circuit seems to, that there can exist no EEOC determination in which "the sources of information or other circumstances indicate lack of trustworthiness" sufficient to justify exclusion from evidence.
cited Cited as authority (rule) Barfield v. Orange County
11th Cir. · 1990 · confidence medium
See id.; Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972).
discussed Cited as authority (rule) Conkwright v. Westinghouse Electric Corp.
D. Maryland · 1990 · confidence medium
Goldberg, 836 F.2d at 848 n. 4 ("While the admission of such findings is within the discretion of the district court ... such findings may be more prejudicial than probative’’); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); contra Plummer v. Western International Hotels Co., Inc., 656 F.2d 502, 504 (9th Cir.1981) ("We recognized that a civil rights plaintiff has the right to a de novo trial in federal court, and while prior administrative determinations are not binding, they are admis *1015 sible evidence.”).
discussed Cited as authority (rule) William B. Smith v. Massachusetts Institute of Technology
1st Cir. · 1989 · confidence medium
And in a jury case under Title VII, the Fourth Circuit affirmed the refusal of the district court to admit the EEOC records into evidence, stating that even in cases where the records may be admitted, “the admission of such records is discretionary with the District Court.” Cox v. Babcock and Wilcox Company, 471 F.2d 13, 15 (4th Cir.1972).
discussed Cited as authority (rule) In Re Richard Thornburgh
D.C. Cir. · 1989 · confidence medium
See Goodman v. Schlesinger, 584 F.2d 1325, 1332-33 (4th Cir.1978) (allowing counsel a “reasonable time” to find new plaintiffs with live claims); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15-16 (4th Cir.1972) (same).
discussed Cited as authority (rule) Reed ex rel. Burns v. Bowen
10th Cir. · 1988 · confidence medium
Under the facts of this case, we need not decide whether to adopt the view, accepted in the Fourth Circuit, see Goodman v. Schlesinger, 584 F.2d 1325, 1332-33 (4th Cir.1978); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15-16 (4th Cir.1972), that when named plaintiffs are inadequate representatives for an uncertified class, and there are no other potential intervenors or substitutes apparent to the court, the suit may nonetheless remain live for a "reasonable time” to allow further intervention.
discussed Cited as authority (rule) Reed v. Bowen
10th Cir. · 1988 · confidence medium
Iowa 1974) Under the facts of this case, we need not decide whether to adopt the view, accepted in the Fourth Circuit, see Goodman v. Schlesinger, 584 F.2d 1325, 1332-33 (4th Cir.1978); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15-16 (4th Cir.1972), that when named plaintiffs are inadequate representatives for an uncertified class, and there are no other potential intervenors or substitutes apparent to the court, the suit may nonetheless remain live for a "reasonable time" to allow further intervention.
discussed Cited as authority (rule) Barry S. GOLDBERG, Plaintiff-Appellant, v. B. GREEN AND COMPANY, INC., Defendant-Appellee
4th Cir. · 1988 · confidence medium
While the admission of such findings is within the discretion of the district court, see Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972) (relying on Smith v. Universal Services, Inc., 454 F.2d 154, 160 (5th Cir.1972) (Dyer, J., dissenting)), such findings may be more prejudicial than probative.
cited Cited as authority (rule) Willard M. Mason v. Richmond Motor Co., Inc., T/a Richmond Ford R. C. King, Sr. Charlie Johnson
4th Cir. · 1987 · confidence medium
Cox v. Babcock and Wilcox Company, 471 F.2d 13, 15 (4th Cir. 1972).
discussed Cited as authority (rule) Bruce Gilchrist v. Jim Slemons Imports, Inc., and Jim Slemons
9th Cir. · 1986 · confidence medium
See, e.g., Johnson v. Yellow Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041 , 105 S.Ct. 525 , 83 L.Ed.2d 413 (1984); Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972).
discussed Cited as authority (rule) McCluney v. Jos. Schlitz Brewing Co.
7th Cir. · 1984 · confidence medium
See Denny v. Hutchinson Sales Corporation, 649 F.2d 816 , 821-22 (10th Cir.1981); Cox v. Babcock and Wilcox Company, 471 F.2d 13, 15 (4th Cir.1972); Heard v. Mueller Company, 464 F.2d 190, 194 (6th Cir.1972).
discussed Cited as authority (rule) 34 Fair empl.prac.cas. 273, 33 Empl. Prac. Dec. P 34,186, 15 Fed. R. Evid. Serv. 205 Forrest F. McCluney Cross-Appellee v. Jos. Schlitz Brewing Co., Cross-Appellant
7th Cir. · 1984 · confidence medium
See Denny v. Hutchinson Sales Corporation, 649 F.2d 816 , 821-22 (10th Cir.1981); Cox v. Babcock and Wilcox Company, 471 F.2d 13, 15 (4th Cir.1972); Heard v. Mueller Company, 464 F.2d 190, 194 (6th Cir.1972).
cited Cited as authority (rule) Cordell TROTTER, Plaintiff-Appellant, v. James A. TODD, Et Al., Defendants-Appellees
10th Cir. · 1983 · confidence medium
Cox v. Babcock and Wilcox Co., 471 F.2d 13, 14 (4th Cir.1972).
discussed Cited as authority (rule) 33 Fair empl.prac.cas. (Bna) 1462, 32 Empl. Prac. Dec. P 33,760, 13 Fed. R. Evid. Serv. 1975 Monroe Coleman v. The City of Omaha, a Municipal Corporation Mayor Albert Veys William McDonnell Public Safety Director Richard Anderson, Chief of Police Gary L. Troutman, Personnel Director Individually and in Their Official Capacities
8th Cir. · 1983 · confidence medium
See Plummer v. Western Int'l Hotels Co., 656 F.2d 502, 504 (9th Cir.1981); Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir.1972); Smith v. Universal Servs., Inc., 454 F.2d 154 (5th Cir.1972).
discussed Cited as authority (rule) Coleman v. City of Omaha
8th Cir. · 1983 · confidence medium
See Plummer v. Western Int’l Hotels Co., 656 F.2d 502, 504 (9th Cir.1981); Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir.1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir.1972); Smith v. Universal Servs., Inc., 454 F.2d 154 (5th Cir.1972).
discussed Cited as authority (rule) Harris v. Ballone
4th Cir. · 1982 · confidence medium
See East Texas Motor Freight System, Inc. v. Rodriquez, 431 U.S. 395 , 97 S.Ct. 1891 , 52 L.Ed.2d 453 (1977); International Woodworkers v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1270 (4 Cir. 1981); Goodman v. Schlesinger, 584 F.2d 1325, 1332 (4 Cir. 1978); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 16 (4 Cir. 1972). 4 Therefore, the district court need take no action until a proper representative comes forth.
discussed Cited as authority (rule) Harris v. Ballone
4th Cir. · 1982 · confidence medium
See East Texas Motor Freight System, Inc. v. Rodriquez, 431 U.S. 395 , 97 S.Ct. 1891 , 52 L.Ed.2d 453 (1977); International Woodworkers v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1270 (4 Cir. 1981); Goodman v. Schlesinger, 584 F.2d 1325, 1332 (4 Cir. 1978); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 16 (4 Cir. 1972). 4 Therefore, the district court need take no action until a proper representative comes forth.
discussed Cited as authority (rule) International Woodworkers v. Chesapeake Bay Plywood Corp. (2×)
4th Cir. · 1981 · confidence medium
Goodman v. Schlesinger, 584 F.2d 1325, 1332 (4th Cir. 1978); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972).
discussed Cited as authority (rule) International Woodworkers Of America, Afl-Cio, Clc v. Chesapeake Bay Plywood Corporation (2×)
4th Cir. · 1981 · confidence medium
Goodman v. Schlesinger, 584 F.2d 1325, 1332 (4th Cir. 1978); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972).
discussed Cited as authority (rule) Denny v. Hutchinson Sales Corporation
10th Cir. · 1981 · confidence medium
See Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir. 1977); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972). 18 We cannot say the trial court abused its discretion by refusing to admit the report.
cited Cited as authority (rule) Denny v. Hutchinson Sales Corp.
10th Cir. · 1981 · confidence medium
See Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir. 1977); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972).
cited Cited as authority (rule) 18 Fair empl.prac.cas. 191, 18 Empl. Prac. Dec. P 8659 Harold A. Goodman, Woodrow Debrew, and Joyce K. Martin v. James R. Schlesinger, Secretary of Defense, John Warner, Secretary of the Navy, and Rear Admiral E. T. Westfall, Commanding Officer, Norfolk Naval Shipyard
4th Cir. · 1978 · confidence medium
We have decided that point specifically in Cox at p. 15.
cited Cited as authority (rule) Goodman v. Schlesinger
4th Cir. · 1978 · confidence medium
We have decided that point specifically in Cox at p. 15.
discussed Cited as authority (rule) 15 Fair empl.prac.cas. 1735, 14 Empl. Prac. Dec. P 7760 Carol J. Walton, on Behalf of Herself and on Behalf of Others Similarly Situated v. Eaton Corporation. Carol J. Walton v. Eaton Corporation
3rd Cir. · 1977 · confidence medium
In determining that Mrs. Walton's discharge was neither discriminatory nor a reprisal, the district court applied the correct standard of law 8 and its findings of facts were not "clearly erroneous." 9 The same is true of the district court's determination that Mrs. Walton had not been discriminated against in pay. 10 24 We are convinced that the district court did not abuse its discretion in denying Mrs. Walton's motion for a class action determination, since that motion was not made until 21 months after her first complaint was filed. 11 Finally, we believe that the district court did not ab…
discussed Cited as authority (rule) Walton v. Eaton Corp.
3rd Cir. · 1977 · confidence medium
In determining that Mrs. Walton’s discharge was neither discriminatory nor a reprisal, the district court applied the correct standard of law 8 and its findings of facts were not “clearly erroneous.” 9 The same is true of the district court’s determination that Mrs. Walton had not been discriminated against in pay. 10 We are convinced that the district court did not abuse its discretion in denying Mrs. Walton’s motion for a class action determination, since that motion was not made until 21 months after her first complaint was filed. 11 Finally, we believe that the district court did…
discussed Cited as authority (rule) Booth v. Prince George's County (2×) also: Cited "see"
D. Maryland · 1975 · confidence medium
The Fourth Circuit suggested a practical alternative in Cox v. Babcock & Wilcox Co., 471 F.2d 13, 16 (4th Cir. 1972), where, after finding that the prospective representative in a class action did not have standing to bring the action on behalf of the class, it required the district court to retain an employment discrimination class action on its docket for a reasonable time in order to allow the class to come forward with a more representative named plaintiff.
cited Cited as authority (rule) Tuma v. American Can Company
D.N.J. · 1974 · confidence medium
Moss v. Lane Co., Inc., 471 F.2d 853, 856 (4th Cir. 1973) ; Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972) ; Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972).
discussed Cited as authority (rule) Tuma v. American Can Company
D.N.J. · 1973 · confidence medium
Moss v. Lane Co., Inc., 471 F.2d 853, 856 (4th Cir. 1973); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972); see also Gillin v. Federal Paper Board Co., 52 F.R.D. 383, 384-385 (D.Conn.1970).
discussed Cited "see" Holley v. North Carolina Department of Administration (2×) also: Cited "see, e.g."
E.D.N.C. · 2012 · signal: see · confidence high
See id.
discussed Cited "see" Anderson v. Westinghouse Savannah River Co.
4th Cir. · 2005 · signal: accord · confidence high
Accord- ingly, Miss Anderson no longer has any valid claims pending in this case.In Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir. 1972), and later in Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978), we considered almost the same issue.
discussed Cited "see" Stetter v. Shalala, Sec
4th Cir. · 2001 · signal: see · confidence high
See Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972) (rejecting admissibility of EEOC investigative report); United States v. MacDonald, 688 F.2d 224, 230 (4th Cir.1982) (noting that evaluative public records may suffer from an undue risk of prejudice, and may “undermine the exclusive province of the jury.”).
discussed Cited "see" Murphy v. Cartex Corp. (2×)
Pa. · 1988 · signal: see · confidence high
See Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir.1972).
examined Cited "see" William Ray JOHNSON, Appellant, v. YELLOW FREIGHT SYSTEM, INC., Appellee (4×) also: Cited "see, e.g."
8th Cir. · 1984 · signal: see · confidence high
See Walton v. Eaton Corp., 563 F.2d 66, 74-75 (3d Cir.1977), and Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972).
discussed Cited "see" Whatley v. Skaggs Companies, Inc.
10th Cir. · 1983 · signal: see · confidence high
See Cox v. Babcock and Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); Smith v. Universal Services, Inc., 454 F.2d 154, 160-61 (5th Cir.1972) (Dyer, Circuit Judge, dissenting); cf. Gillin v. Federal Paper Board Co., Inc., 479 F.2d 97, 99 (2d Cir.1973).
Retrieving the full opinion text from the archive…
5 Fair empl.prac.cas. 374, 5 Empl. Prac. Dec. P 8093 Calvin A. Cox, Individually, and on Behalf of Others Similarly Situated
v.
Babcock and Wilcox Company, a Corporation
72-1315.
Court of Appeals for the Fourth Circuit.
Dec 29, 1972.
471 F.2d 13
Cited by 42 opinions  |  Published

471 F.2d 13

5 Fair Empl.Prac.Cas. 374, 5 Empl. Prac. Dec. P 8093
Calvin A. COX, Individually, and on behalf of others
similarly situated, Appellant,
v.
BABCOCK AND WILCOX COMPANY, a corporation, Appellee.

No. 72-1315.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 4, 1972.
Decided Dec. 29, 1972.

William L. Robinson, New York City (Charles M. L. Mangum, Henry B. Hinton, Jr., Lynchburg, Va., Jack Greenberg, Morris J. Baller, Jonathan K. Harkavy, Nahomi Harkavy and Albert Rosenthal, New York City, on brief), for appellant.

Norman K. Moon, Lynchburg, Va. (Edward S. Graves and Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

[*~13]1

This is both an individual and class action, instituted under Title VII of the Civil Rights Act of 1964 to redress alleged unlawful discrimination in employment practices on the part of the defendant. The parties stipulated the issues of fact in the case and agreed initially that the issues so stipulated should be submitted to a jury. The issues, as agreed upon, it seems, related only to plaintiff's individual claim. After a jury trial had been agreed upon, the plaintiff withdrew his consent. The District Judge at this point convened an advisory jury under the terms of Rule 39(c), Federal Rules of Civil Procedure, and tried the plaintiff's claim on the basis of the issues agreed upon by the parties. After a full trial, the advisory jury found a want of discrimination against the plaintiff by the defendant. The District Court reviewed these findings and proceeded to make its own findings that the plaintiff had not been discriminated against in violation of the Act and dismissed the individual action. Having made that determination of the plaintiff's individual claim, the District Court proceeded to conclude that the plaintiff, being without any individual rights himself, was not a proper representative to maintain a class action and dismissed the class action. The plaintiff appeals the dismissal of both the individual and the class action. We affirm the dismissal of the individual action, but remand, with instructions, the class action.

2

The denial of the plaintiff's individual claim by the District Court is amply supported by the record and is binding on this Court. Brown v. Gaston County Dyeing Machine Company (4th Cir. 1972) 457 F.2d 1377, 1379. The plaintiff, however, complains that, in the resolution of his individual claim, the District Court improperly impaneled an advisory jury under Rule 39(c). He argues that the Act contemplates that discrimination actions are to be tried by the Court itself and not to a jury. Such has been the construction given the Act. Johnson v. Georgia Highway Express, Inc. (5th Cir. 1969) 417 F.2d 1122, 1125; Moss v. Lane Company (D.C.Va. 1970) 50 F.R.D. 122, 128.[1] This does not, however, preclude a Court from impaneling an advisory jury under Rule 39(c). That Rule specifically authorizes a Court in its discretion to employ such procedure in any case "not triable of right by a jury" and the Court's exercise of such discretion in these circumstances is not reviewable. In Re Pan-American Life Ins. Co. (5th Cir. 1951) 188 F.2d 833, 834. The findings of such a jury are, of course, merely advisory; the Court must, as it did in this case, make its own findings and "[r]eview on appeal is of the findings of the court as if there had been no verdict from an advisory jury". 9 Wright & Miller, Federal Practice and Procedure: Civil Sec. 2335, at 127 (1971). While it may well be that the use of an advisory jury as provided by Rule 39(c) should be sparingly exercised in discrimination cases, its use in this case does not warrant a reversal of the findings of the Court itself, amply supported as they are in the record.

3

Neither may the plaintiff complain of the refusal of the District Court to admit into evidence the EEOC records. The dissenting opinion of Judge Dyer expresses persuasive reasons why such records should not be admitted. Smith v. Universal Services, Inc. (5th Cir. 1972) 454 F.2d 154, 160-161.[2] Generally, even in those cases where a contrary view is taken, it is stated that the admission of such records is discretionary with the District Court. Heard v. Mueller Company (6th Cir. 1972) 464 F.2d 190, 194; Gillin v. Federal Paper Board Co. (D.C.Conn.1970) 52 F.R.D 383, 384-385; but see, Smith v. Universal Services, Inc., supra. Error cannot accordingly be sustained on account of the refusal of the District Court to admit such records in evidence.

[*~14]4

The main thrust of plaintiff's complaint on appeal is directed at the dismissal of his class action. The District Court delayed consideration of such action until it had disposed of the plaintiff's individual claim. The plaintiff urges that the Court should have made an interim determination of the maintainability of the class action prior to any final disposition of the individual claim. In support of this position, he cites the language of Rule 23, which provides that, "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." It may be argued with plausibility that this language contemplates an interim determination on the standing of the plaintiff to represent the class prior to any final determination on his individual claim. Whether such interim determination, essential to the maintenance of the class action, requires a finding of a substantial possibility that the plaintiff will be able to succeed on his individual claim on the merits, as is indicated in Blecher, Is the Class Action Rule Doing the Job? 55 F.R.D. 365, 370 (1972), or merely that plaintiff's individual claim is not frivolous, as the Eighth Circuit seems to hold in Parham v. Southwestern Bell Telephone Co. (8th Cir. 1970) 433 F.2d 421, 428, is an issue that need not be determined here. The District Court has concluded that the plaintiff has no valid individual claim. That conclusion we have already found is binding on appeal. A party, such as the plaintiff, who has been finally adjudged not to be a member of the class he seeks to represent, it is urged, is hardly a proper representative to present the claims of such class. See Heard v. Mueller Company, supra, 464 F.2d at 193; Bradley v. Southern Pacific Company (D.C.Tex.1970) 51 F. R.D. 14, 15; Burney v. North American Rockwell Corporation (D.C.Cal.1969) 302 F.Supp. 86, 90-91; Note, Class Actions and Employment Discrimination Under Title VII of the Civil Rights Act of 1964, 43 Miss.L.J. 275, 283 (1972).[3] It has been suggested that it would be inappropriate in that situation to remand the class action to the District Court to permit a party to prosecute an action in behalf of a class of which he has already been adjudged not to be a member. However, affirmance of a dismissal of the class action on that ground would not foreclose any subsequent action on the part of any other party with standing to prosecute an action charging illegal discrimination. Recognizing the difficulties in this situation and conceding that the defendant has, in his view, taken commendable action to avoid future discrimination, counsel for the plaintiff has stated that as a possible alternative remedy, the Court might remand the class action to the District Court, with instructions that the class action be retained on the docket for a reasonable time to permit the presentation of any proper claims for further relief under such class action. No substantial prejudice to the defendant is perceived in granting such request. The class action will accordingly be remanded to the District Court with such instructions. Should no proper claims for further relief be presented within a reasonable time, the District Court shall strike the class action from the calendar and enter a final dismissal thereof.

[*~15]5

Affirmed in part and remanded with instructions.

1

There have been instances, however, in which suits have been tried to a jury-presumably by consent. Note, The Right to Jury Trial Under Title VII of the Civil Rights Act of 1964, 37 U.Chi.L.Rev. 107, 168 nn. 19 & 20. Moreover, there have been cases in which the plaintiff has sought a jury trial (Gillin v. Federal Paper Board Co. (D.C.Conn.1970) 52 F.R.D. 383, 386) and in which the defendant has moved for a jury trial (Moss v. Lane Company, supra)

2

See, also, Butler v. Local No. 4 and Local No. 269, Laborers' Int. U. (D.C.Ill. 1969) 308 F.Supp. 528, 533-534, 8 A.L.R. Fed. 452; Hyatt v. United Aircraft Corp., Sikorsky Aircraft, Div. (D.C.Conn. 1970) 50 F.R.D. 242, 246, n. 4; Hart v. Buckeye Industries, Inc. (D.C.Ga. 1968) 46 F.R.D. 61, 62-63

3

Apparently, a similar result was reached in Dolgow v. Anderson (D.C.N.Y.1971) 53 F.R.D. 664, 668, but when the individual claim in that case was reversed, the Court reversed the order dismissing the class action. Dolgow v. Anderson (2d Cir. 1971) 438 F.2d 825, 830

See, also, Mintz v. Mathers Fund, Inc. (7th Cir. 1972) 463 F.2d 495, 499:

"Before one may successfully institute a class action, it is, of course, necessary generally that he be able to show injury to himself in order to entitle him to seek judicial relief. * * * A plaintiff who is unable to secure standing for himself is certainly not in a position to 'fairly insure the adequate representation' of those alleged to be similarly situated. In short, a predicate to a party's right to represent a class is his eligibility to sue in his own right. What he may not achieve himself, he may not accomplish as a representative of a class. Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3 Cir. 1970)."