Hutchins v. American Telephone and Telegraph Co. Brief of Appellant
Public Court Documents
January 1, 1991
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Brief Collection, LDF Court Filings. Hutchins v. American Telephone and Telegraph Co. Brief of Appellant, 1991. 6bdcedaf-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/08f80501-5058-4d74-8a3a-4bc6ffa6245e/hutchins-v-american-telephone-and-telegraph-co-brief-of-appellant. Accessed July 30, 2025.
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No. 92-8433
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
HENRY HUTCHINS,
Plaintiff-Appellant,
vs.
AMERICAN TELEPHONE AND TELEGRAPH CO., et a l,
Defendants-Appellees.
On Appeal from the
United States District Court
for the Northern District of Georgia
BRIEF OF APPELLANT
Valerie A. Voorhees
2166 Broadway
New York, NY 10024
(212) 769-7940
Attorney for Plaintiff-Appellant
USCA No. 92-8433: Hutchins v. AT&T
%
Certificate of Interested Persons and Corporate Disclosure Statement
The undersigned counsel for plaintiff-appellant certifies, pursuant to Eleventh Circuit
Rule 26.1-1, that the following persons and entities have an interest in the outcome of this
case.
American Telephone and Telegraph Company
Arrington & Hollowell
AT&T Information Systems, Inc.
Tony L. Axam
Axam, Gavrin & Hughes
William C. Campbell
Julius L. Chambers
Ellis, Funk, Labovita & Campbell
Hon. Orinda D. Evans, United States District Court Judge
David L. Forbes
Randy C. Gepp
Hon. William L. Harper, United States Magistrate
Thomas J. Hughes, Jr.
Henry Hutchins
NAACP Legal Defense and Educational Fund, Inc.
W. Ray Persons
C-l of 2
USCA No. 92-8433: Hutchins v. AT&T
Carlton R. Stewart
Dwayne Chester Vaughn
Valerie A. Voorhees
Vaferie A. Voorhees------------------
Counsel for Plaintiff-Appellant
C-2 of 2
TABLE OF CONTENTS
Certificate of Interested Persons and Corporate
Disclosure Statement .........................................................................................C-l
Statement Regarding Oral Argument........................................................................................j
Table of Contents ................................................................................................................. ii
Statement of Jurisdictio n .............................................................................................. 1
Statement of the Is s u e s ................................................................................................... 1
Statement of the Ca s e ..................................................................................................... 2
1. Course of Proceedings and Dispositions in the Court Below.......................... 2
2. Statement of the Facts............................................................................................ 4
Management in AT&T’s Southeast A r e a ........................................................ 5
The Selection Process....................................................................................... 5
Plaintiff’s Background, Education, and Experience......................................... 5
The Prima Facie Case ..................................................................................... 8
The Reasons for Plaintiff’s Non-selection ..................................................... 8
Staff Experience................................................................................................. 9
Sales Experience ............................................................................................ 10
Other Reasons Found by the Magistrate ..................................................... 11
Testimony by Selecting Official of Reasons for Selection ........................... 12
Evidence in the Record Regarding Discriminatory Motive ........................ 12
Discriminatory Treatment After Filing the EEO Com plaint...................... 13
3. Standard of Review............................................................................................... 15
Summary of Argum ent ................................................................................................... 17
A rgument ............................................................................................................. 18
I. The Damages and Jury Trial Provisions of the Civil Rights
act of 1991 apply to Cases Pending on the Date of its
Enactm ent ................................................................................................... 13
A. Introduction............................................................................................... lg
B. The Plain Language of the Act Applies to Pre-Existing Claims. . . 19
C. The Language of Section 102 Requires That It Be Applied to
Pending Cases...................................................................................... 23
D. The Act Should Be Presumed Applicable to Pre-Existing Claims
As a Matter of Law............................................................................ 25
t il The Bradley R u le .................................................................... 25
(2) Bradley Continues to be Good L a w .................................... 28
ii
II. Plaintiff Established a Prima Facie Case of Racial
Discrimination That Defendant Failed to Re b u t ....................... 31
III. The District Court and the Magistrate Failed to Make
Specific Subsidiary Findings of Fact on Pretext and
Retaliation and Failed to Provide Reasons for Rejecting
Plaintiff’s Evidence ................................................................................ 36
IV. The District Court Applied the Wrong Standard in
Reviewing the Findings of Fact Made by the Magistrate to
Determine if They Were Clearly Erroneous ........................... 40
Conclusion ......................................................................................................................... 42
Certificate of Se r v ic e ................................................................................................... 43
Statutory Addendum
TABLE OF AUTHORITIES
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)........................................................ 27
Bell v. Birmingham Linen Service, 715 F.2d 1552 (11th Cir. 1983), cert. den. 467 U.S.
1204 (1984) ............................................................................................................. 30-33
Bell v. New Jersey, 461 U.S. 773 (1 9 8 3 )...................................................................... 25, 26
Bennett v. New Jersey, 470 U.S. 632 (1985) ............................................................... 26, 29
Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988)............................... 28-30
Bradley v. Richmond School Board, 416 U.S. 696 (1974)......................................... passim
Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir. 1 990 )......................................... 31, 41
Campbell v. Dominick & Dominick, Inc., 872 F.2d 358 (11th Cir. 1989)...................... 30
Colautti v. Franklin, 439 U.S. 379 (1979) .......................................................................... 21
Cornelia v. Schweiker, 728 F.2d 978 (8th Cir. 1984) ........................................................ 22
Cort v. Ash, 422 U.S. 66 (1975)............................................................................................ 26
Crawford v. Western Electric Co., Inc., 614 F.2d 1300 (5th Cir. 1980) ........................ 35
Curtis v. Loether, 415 U.S. 189 (1 9 7 7 )................................................................................ 24
Delmay v. Paine Webber, 872 F.2d 356 (11th Cir. 1989) ................................................ 30
Eastland v. TV A, 704 F.2d 613 (11th Cir. 1983) ........................................................ 35, 36
Eikenberry v. Callahan, 653 F.2d 632 (D.C. Cir. 1981) ...................................................22
Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815 (11th Cir. 1991) ........................ 30
Fray v. The Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992) ................. 18, 30
Furnco Construction Co. v. Waters, 438 U.S. 567 (1978)......................................... 31, 32
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ........................................................ 26
Greene v. United States, 376 U.S. 149 (1964)............................................................... 27-29
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1 9 8 1 )............................................ 26
Hallowell v. Commons, 239 U.S. 506 (1 9 1 6 )...................................................................... 25
Hamling v. United States, 418 U.S. 87, reh’g denied, 419 U.S. 885 (1974) ................... 26
Cases: Pages:
IV
Harris v. Birmingham Bd. of Ed., 712 F.2d 1377 (11th Cir. 1983)........................... 33> 35
Hastings v. Earth Satellite Corp., 628 F.2d 85 (D.C. Cir.) .................................. 22
Hicks t ^ B r o ^ G ro u £ ,^ n c ^ 9 ^ F d ^ ^ 3 4 4 (8th Cir. ^*91), vacated and remanded, 503 ^
Hutto v. Finney, 437 U.S. 678, reh’g denied, 439 U.S. 1122 (1979)
Hydrospace-Challenger, Inc. v. Tracor-Mas Inc., 520 F.2d 1030 (5th Cir. 1975) 38
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) 34
James ^ StoddiMl Valves & Fitting Co., 559 F.2d 310 (5th Cir. 1977), cen. denied, 434
* * * * * * • • • • • • • • • • • 34j 33
Johns°n v Uncle Ben’s Inc., F .2d___, 59 FEP Cases 483 (5th Cir. July 1 1992)
petition for rehearing pending..............................................v y ’ fg 3Q
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990) 28 29
Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982) ............................... 26
Lanphear v. Prokop, 703 F.2d 1311 (D.C. Cir. 1983).................................. 36 41
Lee v. Russell County Bd. of Educ., 684 F.2d 769 (11th Cir. 1982)........................ 38
L"’C° l * V«.B464r u 0Sf 82f("983) UniVersi,>' S>'s,em> 697 R2d 928 (H th Cir. 1983), cen.
Luddington v. Indiana Bell Tel. Co., 1992 U.S. App. LEXIS 13450 at >12 (7th Cir June
15, 1992), petition for rehearing filed (7th Cir. July 13, 1 992 )............ ̂ 18 30
Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990)...................... 17, 19, 24 30
Mackey v. Lanier Collections Agency & Serv., Inc., 486 U.S. (1988)...................
Matter of Reynolds, 726 F.2d 1420 (9th Cir. 1984) .................................... 22
McDonnell Douglas v. Green, 411 U.S. 792 (1973)................... 31
Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985) ....................................... 41
Mozee v. American Commercial Marine Sendee Co., 940 F.2d 1036 (7th Cir. 1992)18, 30
N.L.R.B. v. Food Store Employees, 417 U.S. 1 (1974) 2g
pars°nj/.^Kaiser Aluminum ^ C h em ica l Corp., 575 F.2d 1374 (5th Cir. 1978), cen.
* * * * * • • • • • • • • • 34) 35
Pages:
Patterson v. McLean Credit Union, 491 U.S. 164 (1 9 8 9 )........................ 3, 18, 19, 23, 24
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ............................................................... 40
Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (11th Cir. 1981) . . 34, 35
Rowe v. Gen. Motors Corp., 457 F.2d 348 (5th Cir. 1972)....................................... 34, 35
Russello v. United States, 464 U.S. 16 (1 9 8 3 ).................................................................... 21
Saint Francis College v. Al-Khazraji, 481 U.S. 604, reh’g den., 483 U.S. 1011 (1987) . 26
Scarboro v. First American National Bank of Nashville, 619 F.2d 621 (6th Cir. 1980) 24
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) .......... 31, 35
Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982) ........................................................ 22
Thompson v. School Board of Newport News, 472 F.2d 177 (4th Cir. 1972) ............... 25
Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969)............................... 26, 29
U.S. v. Peppertree Apartments, 942 F.2d 1555 (11th Cir. 1991), vacated and remanded,
504 U .S .___, 118 L.Ed.2d 419 (1992)...................................................................... 30
United States v. Merz, 376 U.S. 192 (1964)........................................................................ 38
United States v. The Schooner Peggy, 5 U.S. 103 (1 Cranch) (1801) ............................. 26
United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1982)......................................... 21
Vance v. Southern Bell Telephone and Telegraph, Co., No. 90-3559 ........................... 18
Vogel v. Cincinnati, 959 F.2d 594 (6th cir. 1992)........................................................ 18, 30
Watson v. National Linen Service, 686 F.2d 877 (11th Cir. 1982).................................. 33
Wright v. Director, FEMA, 913 F.2d 1566 (11th Cir. 1 9 9 0 )............................................ 29
Youakim v. Miller, 425 U.S. 231 (1 9 7 6 )............................................................................. 26
Statutes: Pages'
42 U.S.C. § 1981.............................................................................................................................
42 U.S.C. § 1981a........................................................................................................................
42 U.S.C. § 2000e et seq.......................................................................................................... 2
Pages:
vi
Pages:
. . 3842 U.S.C. § 2000e-3(a) ..................................
Civil Rights Act of 1991 ...............................
Equal Employment Opportunity Act of 1972
Title VII of the Civil Rights Act of 1964 . .
§ 102, Civil Rights Act of 1991 ...................
§ 109, Civil Rights Act of 1991 ...................
§ 402(a), Civil Rights Act of 1991 ..............
§ 402(b), Civil Rights Act of 1991 ..............
18, 19, 23, 30, 44
. . . 2, 3, 17, 19, 24, 27, 33, 34
18, 19, 23, 24, 26, 28, 30, 44, 1
......................................... 20-22
20-23
20-22
VI1
No. 92-8433
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
HENRY HUTCHINS,
Plaintiff-Appellant,
vs.
AMERICAN TELEPHONE AND TELEGRAPH CO., et al.,
Defendants-Appellees.
On Appeal from the
United States District Court
for the Northern District of Georgia
BRIEF OF APPELLANT
St a t e m e n t o f J u r is d ic t io n
This Court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291, this being
an appeal from a final order and judgment of the District Court dismissing the action on
the merits in its entirety with regard to all parties.
St a t e m e n t o f t h e I ssu e s
1. Whether section 102 of the Civil Rights Act of 1991 applies to the present case
so that plaintiff was entitled to damages and a jury trial on his claims of intentional racial
discrimination arising under Title VII of the Civil Rights Act of 1964?
2. Whether the Magistrate and District Court erred in substituting their reasons for
the employment action involved here for the reasons stated by the selecting official?
3. Whether the Magistrate and District Court erred in not finding that the failure
to consider plaintiff for a Industry Manager position in 1985 could not be justified by
business necessity nor as a "legitimate, non-discriminatory" reason?
4. Whether the Magistrate erred in not making specific subsidiary findings of fact
on whether the defendant’s proffered reasons for not promoting plaintiff were pretextual?
5. Whether the Magistrate erred in not making specific subsidiary findings of fact
and not providing an analytical basis for review of plaintiffs claim that he had been
discriminated against by defendants because he had filed charges of discrimination with the
EEOC or had otherwise opposed actions that violated Title VII of the Civil Rights Act of
1964?
6. Whether the Magistrate and District Court erred in not finding that the plaintiff
established a prima facie case of retaliation?
7. Whether the District Court erred by applying the wrong legal standard in
determining whether the Magistrate’s findings were clearly erroneous?
St a t e m e n t o f t h e C a s e
1. Course of Proceedings and Dispositions in the Court Below.
This is an action filed by plaintiff-appellant Henry Hutchins [hereinafter plaintiff],
an African American employee of American Telephone & Telegraph Co. [hereinafter
AT&T], The complaint alleges discrimination on the basis of race in promotions and
disparate treatment for his filing an equal employment opportunity complaint.
The complaint was filed in the United States District Court for the Northern District
of Georgia pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.
(Record Excerpts, Tab 1 [hereinafter "Rec. Exc."].) Plaintiff first filed a grievance with
the Office of Equal Employment Opportunity of AT&T on or about January 7, 1985,
following notice that he was not selected to fill a position for which he was better qualified.
2
Thereafter, within 180 days of the acts complained of, plaintiff filed a charge with the
Equal Employment Opportunity Commission [EEOC]. He subsequently filed other charges
with the EEOC on March 25, 1986, March 16, 1987, and June 23, 1987 for retaliation and
further discrimination in promotions. (Rec. Exc. Tab 1, Exhibits A-E.)
On or about September 27, 1988, plaintiff received a "Determination on Review and
Dismissal of the Title VII Charge" from the EEOC with a right to sue in United States
District Court within ninety days of receipt of the EEOC’s notice. Thereafter, plaintiff
instituted civil proceedings in District Court by a complaint filed December 19, 1988
pursuant to his right to de novo review of his allegations. He alleged, inter alia, that the
failure to promote him to Sales Manager in 1985 because of his race violated Title VII and
§ 1981 and that AT&T had continued not to promote plaintiff and to take other actions
because of race and because he had filed an EEO complaint, all in violation of Title VII
and § 1981. In his complaint he sought compensatory and punitive damages and a jury
trial. (Rec. Exc. Tab 1, pp. 7-8.)
AT&T filed a motion to dismiss the complaint in all respects. Upon review of the
Magistrate’s Report and Recommendation, adopted in part and denied in part, on
November 13, 1989, the district judge denied AT&T’s motion to dismiss the Title VII
claims and denied the motion to dismiss the § 1981 claims to the extent the claims involved
acts that occurred after December 19, 1986, two years prior to the complaint being filed.
(Original Record Document 12 [hereinafter "Orig. Rec. Doc."], Rec. Exc. Tab D, p. 4.)
AT&T subsequently filed a motion for summary judgment (Orig. Rec. Doc. 35, Rec. Exc.
Tab D, p. 6) On July 2, 1991, the District Court, in denying AT&T’s motion for summary
judgment, adopted the Magistrate’s order that all claims under § 1981 be dismissed as non-
actionable under Patterson v. McLean Credit Union, 491 U.S. 164 (1989). (Orig. Rec. Doc.
50; Rec. Exc. Tab D, p. 8.)
On November 27, 1991, following issuance of the Magistrate’s Pre-trial Order on
September 30, 1991, plaintiff filed a motion requesting leave to modify or amend the
3
Pretrial Order to permit the case to be tried to a jury pursuant to the Civil Rights Act of
1991, which had been signed into law on November 21, on the grounds that he sought
compensatory and punitive damages. (Orig. Rec. Doc. 56; Rec. Exc. Tab D, p. 8.) At the
beginning of the trial on December 2, 1991, plaintiff renewed his motion for a jury trial;
the Magistrate denied the motion. (Transcript of Trial, pp. 3-11 [hereinafter "TR"]; Rec.
Exc. Tab D, p. 8.) Following trial without a jury from December 2 through 6, 1991, the
Magistrate issued his Special Magistrate’s Report and Recommendations [hereinafter
"Report"] recommending that plaintiffs case be dismissed and that judgment be entered
for AT&T. (Orig. Rec. Doc. 58; Rec. Exc. Tab 58.)
Plaintiff filed objections to the Report (Orig. Rec. Doc. 59; Rec. Exc. Tab D, p. 9)
and the District Court issued its Order on March 31, 1992, upholding the Magistrate’s
recommendations. (Orig. Rec. Doc. 64; Rec. Exc. Tab 64.) In the course of its Order, the
District Court held that the plaintiff was not entitled to a jury trial because even if the Civil
Rights Act of 1991 did apply to the case, "At this stage, the Magistrate Judge has
determined, and the court agrees, that Defendant is not liable to Plaintiff and that Plaintiff
may not recover any damages in this action." (Id. at pp 9-10.) With regard to the other
issues raised, the District Court held that the Magistrate’s findings of fact were not clearly
erroneous. The District Court entered a final judgment for the defendants on April 1,
1992, dismissing the case (Orig. Rec. Doc. 65; Rec. Exc. Tab 65; Rec. Exc. Tab D, p. 10),
and a timely notice of appeal was filed on April 29, 1992. (Orig. Rec. Doc. 67; Rec. Exc.
Tab D, p.10.)
2. Statement of the Facts.
This action was precipitated by plaintiffs non-selection for a position in January,
1985. Plaintiff was an AT&T Account Executive reporting to a supervisor whose title was
Industry Manager. (TR 50.) When the Account Executive was transferred out of her
position, she was replaced by a white male who had never previously held a position in
4
sales or as an Account Executive. (TR 726-29, 774.)
Management in AT&T’s Southeast Area
Du™ g 1983 and 1984 plaintiff worked in (he Somheas[ ^ reportMg to Ms ^
2 T S: tTV Ma”a8er ° f ^ - Medical Market.
A j e a a “ 7 r ° Tw a s R o b e r t L e w i s ' B r a n c h M a a a g e r - , o p ° f f i c ,a i ^ , h e s ° u i " -
a une was Boyd Guttery, Area Vice President. (TR 473, Magistrate's Report
Finding #7 (hereinafter "Magistrate's Binding *"]; Rec. Exc. Tab 53, p. 4 , . The number'
mpoyees under Guttery's control in AT&T's Southeast Area ranged from
approximately 1000 in 1983 ,o 600 in 1987 (TR 641-642).
At the time of the 1085 selection and continuing through 1987, there were no Blacks
r 7 7 — MaDager “ " " " * ^ — ( » - 1 0 1 1006,1
S' 1 7 ; - - s e levels were made by whites.
-l he Selection Process
Job vacancies were not announced and there was no application process. (TR 357 )
r — ns were made on the basis of recommendations by o n e , supervisor. (TR 905 948
2. T" ab°Ve' ‘he ^ — >— - « exclusiveiy b
hues. Tfiere were no written job qualificat,o„s. Qualifications and criteria for selection
decisions were set by the selecting supervisors. (TR 887 950 ) The t
mouth /tr cun 1 ’ 5°-) The system was word of
■ ( R 310, 357, 950, 952.) With little in p,ace in the of „
: 7 a7 ~ ~ — - knew and whether the selecting “
had heard of you. (TR 357 osn \ c S IICia
388, 673, 764, “ " h° (TR 278,
Plaintiffs Background, Education, and Experience.
From October 1980 until the Bel, System was ordered to divest, plaintiff worked
A™ * » — - * » * « . . . . . "
a — « . . . „ „ 7 “ ' *•
became a t ^ t \ a ' which laterEl.,,,
5
and Medical (hereinafter GEM) Market for the Southeast Area of AT&T. (TR 30, 31)
Prior to working for Southern Bell in October 1980, plaintiff had other business
management experience. He had been an accountant/auditor for a CPA firm (1971-72),
the controller of a mechanical contracting firm (1972-74,) and an assistant controller for
the non-profit Southern Regional Council where he managed a staff of up to six people and
performed budgeting, contract negotiations, and conducted business with government
agencies (1974-77). Thereafter, he was a financial analyst (1978) and a controller and
financial analyst for Atlanta University in the Leadership Development Project (1978-80).
(TR 20-23; Magistrate’s Finding # 3; Rec. Exc. Tab 53, pp. 2-3.)
In 1971, plaintiff received a bachelor’s degree in Accounting with minors in
management and computer science from Central State University, now known as the
University of Central Oklahoma. Thereafter, in 1980, he earned a Master’s Degree in
Business Administration ("MBA") with a concentration in finance from Georgia State
University. (TR 15; Magistrate’s Finding # 2; Rec. Exc. Tab 53, p. 2).
Throughout his professional life plaintiff has also been active in politics and political
campaigns. Plaintiff has worked in local, state, and presidential campaigns as well as having
run for local political office. He also has leadership experience in community service,
including a Vice Presidency in the Atlanta Chamber of Commerce, a Vice Presidency of
the Citywide League of Neighborhoods, a position on the Fulton County Jail Bond
Committee, as well as serving as President of the local chapter of the Black MBA
Association, National Vice President of the Alliance of Black Telecommunications
Employees, and as the President of the Ben Hill United Methodist Church’s Men’s Group.
(TR 16-19; Magistrate’s Finding #4; Rec. Exc. Tab 53, p. 4.)
When plaintiff started with Southern Bell he attended a training class lasting about
10 weeks (TR 415). According to uncontradicted testimony from one of plaintiffs
classmates, Don Stewart, who subsequently became a Sales Manager with AT&T, in most
modules plaintiff was No. 1 in the class. (TR 415). Stewart testified that because of
6
plaintiffs MBA he had an edge with problem and cash flow analysis (TR 416) and was very
good at putting together financial packages (TR 418); he was a leader in the class and
people went to him for advice on problem solving (TR 417); he had a good knowledge of
business (TR 422); and he knew how to motivate people, as well as how to make sales (TR
422).
In 1982 plaintiff was certified as an Account Executive/Industry Consultant, to his
knowledge, one of the first Blacks to receive that distinction in the Southern United States
(TR 29). Plaintiff made it known in 1983 and 1984 that he was interested in becoming an
Industrial Manager (TR 53). In 1982-84 plaintiff exceeded his sales quotas. He sold 250%
of his sales objective 1982, 190% in 1983, and 170% in 1984 (TR 66). In 1984 he was
acknowledged for his performance and achievements in five of the twelve monthly editions
of Excel, the AT&T company publication. (Plaintiffs Exhibits 1-5 [hereinafter "P. Exh.";
TR 45-48.) Also, in 1984 he earned membership in the Achievers’ Club. (P. Exh. 8.)
Plaintiff was viewed by his supervisor, Industry Manager Judy Ammons, as having
excellent sales skills in being able to position with the customer (TR 840). She testified
that customers liked him (TR 840) and he was at the top of the group as far as being a
strategist (TR 841). Plaintiff was viewed by Robert Lewis as a "very committed, dedicated
salesperson" (TR 612) and knowledgeable about government strategy (TR 613).
When Ammons was out of the office, plaintiff was one of the people she assigned
as Relief Manager, performing the day-to-day duties of her position. She testified that he
liked to relieve her and did not view it as a burden in addition to his other duties. She
viewed that as definitely in his favor (TR 842). He was good at financial and business
analysis (TR 842) and good at cost justification (TR 842). Plaintiff and demonstrated good
interpersonal skills in the context of Relief Manager (TR 843). He participated in group
discussions where the Account Executives shared with each other ideas on how to close or
get beyond a barrier. (TR 841.)
7
By memo on January 7, 1985, it was announced that Ammons was transferred to a
Staff Manager position and that John Williams had been placed in her position. (TR 501;
Defendant’s Exhibit 15 [hereinafter "D. Exh."]; Magistrate’s Finding #12; Rec. Exc. Tab
53, p. 6.)
Plaintiff filed an EEO grievance with AT&T contending he should have been
selected for the Industry Manager position for which John Williams was selected. Plaintiff
alleged that he was denied the position due to racial discrimination. (Magistrate’s Finding
#13; Rec. Exc. Tab 53, p.6.)
The Prima Facie Case
Plaintiff established a prima facie case of discrimination. (District Court Order, Rec.
Exc. Tab 64, pp. 3-4, declining to adopt the Magistrate’s finding that plaintiff had not
established a prima facie case). Plaintiff was a Black male and, at the time he filed his
complaint, knew he was qualified for the Industrial Manager position (P. Exh. 37), yet was
not selected whereas a white male was selected in an organization of 600-1000 employees
where no Blacks held that level of management or above. (TR 709-10.)
The Reasons for Plaintiff’s Non-selection
The Magistrate found that
Branch Manager Lewis made the decision to select Williams as the Industry
Manager for the GEM Market and that decision was approved by Area Vice
President Guttery. The reasons that Lewis selected Williams included his
superior qualifications, the breadth of his corporate experience including
serving in staff positions, his technical and sales competence, and being the
highest rated Systems Manager in Guttery’s Southeast Area. The Industry
Manager position was a lateral transfer for Williams rather than a promotion.
Plaintiff was employed at a lower salary level than Williams, was familiar with
only a small segment of the market, was not rated as highly as Williams,
lacked corporate staff experience, and did not have William’s breadth of
experience. The Industry Manager position would have been a promotion for
plaintiff.
(Magistrate’s Finding #20; Rec. Exc. Tab 53, p. 9.) The Magistrate made no findings of
fact on whether these or any of the articulated reasons were pretextual.
8
Staff Experience
The Magistrate found that:
AT&T had typical career path guidelines for progression and promotion from
Account Executive to Industry Manager and other positions. Those
guidelines included obtaining experience in non-sales positions, called staff
jobs. An AT&T career path publication indicated that several positions
within the career path required prior staff experience. Included in these
positions was Industiy Manager.
(Magistrate’s Finding #8, Rec. Exc. Tab 53, p. 4, referring to TR 642-44 and D. Exh. 19.)
The record shows that while there was a document that had been prepared
describing career progressions, it was clearly marked "DRAFT." (D. Exh. 19.) There is no
evidence that it was formally adopted. The only date appearing on the document is a
transmission date after the selection in question was made. (D. Exh. 19).
Most telling, however, two managers testified staff experience was not required.
Defense witness and Industry Manager Ammons testified that staff experience was not a
requirement (TR 833-34) and George Terrell, who had held both a System Manager and
staff positions for AT&T (TR 343), plaintiffs witness, testified that there was no written
rule regarding staff experience as a requirement for advancement, and that such experience
was used only when convenient. (TR 369.)
The Magistrate also found that
Area Vice President Guttery and Branch Manager Lewis both placed great
significance on staff experience. Staff experience was important in order to gain
knowledge of AT&T’s corporate policies and practices, obtain a broad range of
experience, and demonstrate management maturity and ability. Both Guttery and
Lewis considered staff experience essential to reaching positions at the second level
of management, including Industry Manager.
(Magistrate’s Finding #9, Rec. Exc. Tab 53, pp. 4-5.)
However, Guttery testified that although Ammons needed staff experience, she
nonetheless did her job very well (TR 681).
Williams, the selectee, testified that he had not held a staff position with AT&T.
(TR 730.) He described his position as a "line sales support position — not a staff
position." (TR 730.) He testified he had held a staff position with Southern Bell (TR 730).
9
AT&T corporate policies and practices changed after divestiture. (TR 583.) The
industry became one of a competitive marketplace for the first time. (TR 348.) At
Southern Bell, there were procedures on everything, whereas there was a lot of confusion
about policies and procedures with the entity now known as AT&T. (TR 420, 421.) After
the divestiture, Southern Bell continued to exist as a fully regulated separate entity, whereas
what came to be known as AT&T was a for profit competitive company that had to start
from scratch. (TR 583). Both plaintiff (TR 20-22) and the selectee had held staff positions
outside of AT&T. Neither would have gained knowledge of AT&T’s corporate practices
and policies in those positions.
Sales Experience
Lewis testified that sales experience was an important element of the position and
that it was a qualification for the position that the selectee have "strongly demonstrated
sales ability (TR 502). Lewis testified that Williams had sales experience (TR 503).
Williams testified that, prior to his selection as Industry Manager, the only position
he had held for AT&T was Systems Manager, a post held since December 1982. (TR 729.)
As such, he was responsible for the management of technical resources (TR 729), with
duties to "support the account team sales efforts in the process of supplying technical
resources as well as working directly with account teams to further the sales process." (TR
729-30.) Industry Manager Ammons confirmed that Williams was not part of the Account
Executive team, but was there to help provide "the necessary technical support for the sales
group." (TR 855.)
Lewis testified that he believed Williams had sales experience (TR 503), however,
Williams himself testified that sales and technical people brought "different skills to the
table" and that he had never been on the sales side, only the technical side that supported
sales. (TR 774.) Moreover, in Williams’ evaluation for 1984, under technical sales support,
it said "demonstrated strong relationship with service division. By way of example, E.G., U.
Ga., Fulton County, St. Joseph’s, etc." and talked about his outstanding personal support
10
to the account team in the technical area. (TR 857.)
Don Stewart, who started the same day as the plaintiff as an Account Executive and
who eventually became a Sales Manager, had been on sales calls with Williams present.
When he went out on calls with him, he found Williams not to be a sales personality. "I
would basically do all of the talking. John would sit back, and I would almost have to pull
him into the conversations to answer a technical question or something like that. Other
than that, he would just sit there." (TR 427.) On the other hand, Stewart found plaintiff
very much "qualified to be a sales manager. In fact, he operated pretty much like a sales
manager, because like I said, his ability at putting together proposals, all of us would come
to Henry for advice. In fact, I have even had Henry go out and make calls with me where
we would actually go out and make sales calls together just for his assistance." (TR 426-
27.)
The District Court discounted the view of plaintiff and Stewart regarding plaintiffs
qualifications, finding it was only their personal assessment of plaintiffs qualifications since
neither participated in the selection decision. Such a finding would preclude any EEO
challenge to a selection decision.
Other Reasons Found by the Magistrate
The Magistrate found Williams was also selected for the breadth of his corporate
experience and because he was the highest rated Systems Manager in Guttery’s Southeast
Area. (Magistrate’s Finding #20, Rec. Exc. Tab 53 p. 9.) However, Lewis, the selecting
official, did not testify that these reasons were a basis for his decision. (TR 502-07.) The
Magistrate also found Williams was selected for his superior qualifications. However, Lewis
did not testify that he had compared the qualifications of plaintiff and the selectee. (TR
502-07.)
Moreover, the record in fact shows that plaintiff had broader experience than the
selectee. Plaintiff had held positions as an accountant, auditor, controller, financial analyst,
manager, and account executive in sales. (TR 20-23.) The selectee had held positions as
11
an engineer, as technical support to sales teams, and manager of technical consultants. (TR
726-30.)
Testimony by Selecting Official of Reasons for Selection
Lewis testified that he did not consider any Account Executives for the position of
Industry Manager. (TR 506-07.) He thus confirmed plaintiffs testimony that Lewis had
told him that he "was not considered and that Mr. Williams was his candidate all along."
(TR 76-77.)
Therefore, plaintiff was not considered for this position (TR 506-07), despite being
qualified. (P. Exh. 37.)
Lewis also testified that previous experience supervising AT&T personnel gave
anyone a strong advantage. "It would have been a differentiating factor." (TR 505.)
Neither the Magistrate nor the District Court made any findings regarding this
testimony of Lewis, the selecting official. Instead, the Magistrate substituted his judgment
and engaged in a process of comparing plaintiffs and the selectee’s qualifications although
Lewis did not testify that he engaged in such a comparative process.
There were no findings on whether the failure to consider plaintiff was legitimate,
non-discriminatory, and required by business necessity.
Evidence in the Record Regarding Discriminatory Motive
Account Executives were 1st level management. (TR 709.) There were no Black
Industry/Sales Managers (2nd level) in 1983, 1984, or 1985 and no Blacks at the 3rd or 4th
levels in 1983, 1984, or 1985. (TR 709-10.) In fact, there were no Black Sales/Industry
Managers in Guttery’s organization until 1988. (TR 1011.) Boyd Guttery testified in
response to these numbers that there were no openings. (TR 710.) Yet, the record shows
that twice the Industry Manager position in GEM became open — once when Ammons left
(TR 565) and next when Williams left (TR 566). There also were other openings that
became available, filled by the whites referred to in Magistrate’s Findings 35-43; Rec. Exc.
53, pp. 16-19. Thus, there were "openings" for whites but not for Blacks.
12
When there was an obvious opportunity for a Black — plaintiff — to enter
management level 3, Williams, a white, was lateralled into the position instead. As Lewis
testified, referred to above, Williams’ AT&T supervisory experience was a "differentiating
factor," a practice that would block Blacks since there were no Black AT&T supervisors.
When Williams left, rather than let plaintiff (or any other Black) have the opportunity to
enter that sales management level, Ammons was put back into a job she already had served
in. (TR 566-67.) This policy of giving preference to AT&T managers (TR 505) eliminated
Blacks from consideration for until they had supervisory experience they would not be
selected to be a supervisor.
Discriminatory Treatment After Filing the EEO Complaint
After he filed his EEO complaint, plaintiff complained that his sales quota was
drastically increased with no change in his territory. (TR 80.) While the Magistrate made
findings that the sales quotas were increased for other Account Executives as well
(Magistrate’s Findings 25, 26; Rec. Exc. Tab 53, p. 11), he made no findings on whether
the defendant had demonstrated that other Account Executives had their quotas increased
without a change in territory. Moreover, AT&T did not produce evidence to show that
there were other Account Executives who did not have their territoiy changed, thus failing
on its burden of production on this issue.
Also, after filing his EEO complaint, plaintiff was written up for things like customer
complaints and monitored in a way that had not occurred before and that was different
from the way others were treated. George Terrell, a Systems Manager who also held
positions in sales, testified that in general employees were not monitored closely — there
was not time in an environment like AT&T where sales and money are at risk. (TR 380.)
Terrell also testified that sales people were encouraged to bring the sales in and solve any
problems later. (TR 351.) If there was a problem with a sale, normally an Account
Executive would not be penalized. "Otherwise you would have a sales force that won’t
respond. (TR 351) Boyd Guttery testified that Terrell was highly competent and
13
respected. (TR 659) Moreover, in a sales job, customer complaints are common. (TR
439, 800.) The defendant produced no memos written about or to others to show that
others received similar treatment. Prior to filing his EEO complaint, plaintiff had excellent
performance evaluations (P. Exhs. 13, 14.) and defendant produced no memos written
about plaintiff before he filed his EEO complaint
With the exception of two memos relating to plaintiffs scheduling (D. Exh. 38, 39),
the counseling memos did not contain his response or explanation for the occurrence he
was counseled on. (D. Exhs. 22, 23, 24, 25, 26. 27, 28, 29, 32, 33, 37.) At trial, plaintiff
testified to the various occurrences, usually with corroboration by witnesses and or
documents. The defendant’s witnesses usually could not remember what he had said at the
time.
Objective counseling memos would contain the employee’s response, yet these
memos were one-sided recitations of the charge with little or no indication of plaintiffs
response. Even Williams, a management participant in some of the occurrences for which
plaintiff was counseled, acknowledged that the only way to test the accuracy of complaints
is to talk to the individual involved. (TR 782.) The failure to record plaintiffs responses
leads to the inference that there was no concern on the part of AT&T for completeness
or accuracy, but just with building a record.
In 1987 Robert Lewis was replaced by Harold Reynolds as Branch Manager (TR
967). Within just five months, Reynolds decided that plaintiff was not "promotable" within
the organization. (TR 981; D. Exh. 40(A).) A meeting was held on May 28, 1987, in which
a number of things were discussed, including plaintiffs EEO complaints. (TR 976, 994.)
Reynolds wanted plaintiff out of his organization. (TR 983; D. Exh. 40(A).)
In Reynolds’ notes of that meeting, among other things, Reynolds faulted plaintiff
for not working effectively with the technical consultant assigned to him. (D. Exh. 40(A),
11 2.c.). Yet, plaintiffs supervisor, Ammons, confirmed and testified expansively that this
technical consultant was "incompetent." (TR 831.) However, Reynold’s memo would lead
14
a reader to believe that the problem was plaintiff. (D. Exh. 40A.)
Reynolds’ memo explicitly states: "It is appropriate that due to lack of trust arising
from your civil suit, you should be assigned to another organization." (D. Exh. 40(A), U 3.)
Although this comment was made prior to the filing of the present action, the only matters
pending at the time were plaintiffs EEO complaints, which had been discussed at the
meeting. (TR 994.)
Early in 1985, Robert Lewis and Boyd Guttery knew that plaintiff had filed an EEO
complaint. (TR 517-18, 662, D. Exh. 2.) And, as discussed above, Lewis’ replacement
Harold Reynolds knew about plaintiffs’ EEO complaint. (TR 976.) And after his transfer
in 1987, plaintiffs new supervisor testified that she was told that he had filed EEO
complaints (TR 889, 979) and Reynolds told her to keep good records on plaintiff. (TR
979.)
The Magistrate found that plaintiff had not made out a prima facie case of
retaliation. Neither the Magistrate nor the District Court made subsidiary findings of fact
to provide a reviewing court with the basis for a determination that, for example, the
change in quota without change in territory, counseling memos, and transfer in 1987 were
not due to plaintiffs having filed an EEO complaint.
Neither the Magistrate nor the District Court analyzed these occurrences to see if
the defendant had produced evidence to show that they were legitimate, non-discriminatory,
and worthy of belief, or analyzed plaintiffs evidence and arguments as to why these
occurrences were not legitimate and were in fact pretextual.
3. Standard of Review.
A. The first issue, whether the damage and jury trial provisions of the Civil Rights
Act of 1991 apply to this and other cases pending at the time of its enactment, is a question
of law and thus is subject to plenary de novo review by this Court.
15
B. The second issue, whether the court below erred in substituting its own reason
for the challenged employment action and finding that that reason was legitimate and non-
discriminatory, rather than relying on the reasons articulated by the selecting official is a
question of law and thus is subject to plenary review by this Court.
C. The third issue, whether the court below erred in not finding, on this record, that
the failure to consider the plaintiff for the position in question could not be justified by
business necessity or as a legitimate, non-discriminatoiy reason, is also a question of law
subject to plenary review by this Court.
D. The fourth issue, whether the Magistrate erred in not making specific subsidiary
findings of fact relating to pretext with regard to the promotion claim is also a matter of
law subject to plenary review by this Court.
E. The fifth issue, whether the Magistrate erred in not making specific subsidiary
findings of fact relating to his claim that he was discriminated against because he had filed
charges of discrimination is also a matter of law subject to plenary review by this Court.
F. The sixth issue, whether the court below erred in holding that the plaintiff had
not established a prima facie case of discrimination because he had filed EEO complaints
is also a matter of law subject to plenary review by this Court.
G. The seventh issue, whether the District Court applied the proper legal standard
in reviewing the Magistrate’s findings, is also a matter of law subject to plenary review by
this Court.
16
Su m m a r y o f A r g u m e n t
i .
The Civil Rights Act of 1991, insofar as it provides for a jury trial in a Title VII
action in which compensatory and/or punitive damages are sought, applies to this case. The
plain language of the statute, together with governing case law in this Circuit, requires that
such remedial and procedural changes apply to cases tried after the effective date of the
Act. Since the denial of a jury trial was in error, this case must be remanded for a new
trial before a jury. Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990).
II.
The plaintiff established a prima facie case of discrimination in promotion which the
defendant failed to rebut by coming forward with legitimate, nondiscriminatory reasons for
its actions. The defendant’s promotion system was highly subjective and did not utilize
announcements of vacancies or of qualifications for them. There were no Black employees
in positions of selecting officials and the system was in the hands of an all-white supervisory
force. The Magistrate erred by coming forward with reasons for the employer’s actions that
were not articulated by the defendant itself.
III.
The decisions of this Court require that the fact-finder make specific subsidiary
findings of fact that fully support its conclusion as to the ultimate issue of whether or not
there was illegal discrimination. The Magistrate and the District Court failed to meet this
standard. There were no findings made on the issue of pretext and insufficient subsidiary
findings with regard to plaintiffs claim that he had been discriminated against because he
filed EEO complaints.
IV.
The decisions of this Court establish that there must be substantial evidence to
support findings of fact, or they will be held to be clearly erroneous. The District Court,
in reviewing the Magistrate’s findings, erred in applying a lesser standard of review.
17
A r g u m e n t
i .
The Damages and Jury Trial Provisions of the Civil Rights act
of 1991 Apply to Cases Pending on the Date of Its Enactment
A. Introduction.
The question of whether and to what extent the Civil Rights Act of 1991 applies to
cases pending on November 21, 1991, the date it was signed into law, has engendered much
litigation and controversy,* 1 but as of the date of this Brief had not been decided by this
Court.2 The specific question presented in this case is whether the remedial provisions of
§ 102 of the Act, 42 U.S.C. § 1981a, which permits compensatory and punitive damages and
a jury trial in disparate treatment cases under 42 U.S.C. 2000e-5, should apply to pending
cases. Here, plaintiff had originally filed under both Title VII and 42 U.S.C. § 1981 and
LThere are over 100 District Court opinions on the issue; the courts are divided, with a
majority holding that the Act does not apply. To date, four courts of appeals have ruled on
the issue. In dicta the Sixth Circuit held that certain provisions of the Act did not apply to a
case pending on appeal. Vogel v. Cincinnati, 959 F.2d 594 (6th Cir. 1992). A petition for a writ
of certiorari has been filed that does not raise the retroactivity issue. Vogel v. Cincinnati, (U.S.
Sup. Court No. 91-2001). Fray v. The Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992),
held that the Act did not apply "retroactively" by a 2-1 vote. A petition for rehearing in banc
is being held pending a decision in banc in Hicks v. Brown Group, Inc., 946 F.2d 1344 (8th Cir.
1991) , vacated and remanded, 503 U.S._, 117 L.Ed.2d 485 (1992), which the Supreme Court
remanded for reconsideration in light of the Act. Hicks was argued in banc on July 21, 1992.
Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th Cir. 1992), held that the
amendments to substantive law in the Act did not apply to pending cases, but suggested that
the remedial and procedural amendments might. A petition for writ of certiorari will have been
filed by the date of the submission of this Brief. Luddington v. Indiana Bell Tel. Co., 1992 U.S.
App. LEXIS 13450 at *12 (7th Cir. June 15, 1992), petition for rehearing filed (7th Cir. July 13,
1992) , held that the new Act in general is applicable only to conduct occurring after its effective
date. Finally, the Fifth Circuit has ruled that § 101 of the Act does not apply to conduct that
predates both the Act’s enactment and the decision in Patterson v. McLean Credit Union, 491
U.S. 164 (1989). Johnson v. Uncle Ben’s Inc.,__ F.2d___ , 59 FEP Cases 483 (5th Cir. July
1, 1992), petition for rehearing pending. These decisions will be discussed in the text, infra.
^ h e issue of whether § 101 of the Act, which overrules Patterson v. McLean Credit Union,
should be applied to a pending case is before the Court in Vance v. Southern Bell Telephone and
Telegraph, Co., No. 90-3559, which is scheduled for argument in October, 1992. A holding in
Vance that § 101 is applicable to pending cases would almost certainly govern the result in this
case. A contrary holding, however, would not necessarily mean that § 102, which is at issue in
the present case, should not be applied to pending cases. The issue of the applicability of a
variety of the provisions of the Act to pending cases is before the Third, Fourth (in Patterson
v. McLean Credit Union itself), Ninth, Tenth, and District of Columbia Circuits, in addition to
the circuits listed in the preceding footnote.
18
sought a jury trial and damages. His 1981 claims were dismissed, however, under Patterson
v. McLean Credit Union, 491 U.S. 164 (1989).
Just prior to trial the Civil Rights Act of 1991 was enacted, and plaintiff moved to
amend the pre-trial order to permit an award of damages and a jury trial pursuant to § 102
of the Act of his claims of intentional discrimination brought under 42 U.S.C. § 2000e-2
and § 2000e-3. The Magistrate denied the motion prior to trial. Nevertheless, the District
Court affirmed, holding that even if the statute did apply to the case there could be no
entitlement to compensatory and punitive damages once the Magistrate and the court had
decided against the plaintiff on the merits. This conclusion was in error under Lytle v.
Household Manufacturing, Inc., 494 U.S. 545 (1990). Thus, if the 1991 Act does apply, the
case must be remanded for a new trial before a jury.
In the argument that follows, plaintiff will demonstrate that the plain language of
the Act as a whole and of § 102 in particular requires the conclusion that the Act applies
to pending cases since it is remedial in nature. Further, this Court has consistently
followed the rule of Bradley v. Richmond School Board, 416 U.S. 696 (1974), that statutes
are presumed to apply to cases pending at the time of their enactment, unless it would be
manifestly unjust to do otherwise. Since the conduct complained of in this case has always
been illegal under Title VII of the Civil Rights Act of 1964, the application of § 102 would
simply provide plaintiff with additional remedies — compensatory and punitive damages
— and a different procedure — trial by jury — and would not impose new substantive
liabilities. Under these circumstances, it would clearly not be "manifestly unjust" to apply
the statute in this case.
B. The Plain Language of the Act Applies to Pre-Existing Claims.
The Civil Rights Act of 1991 has three specific provisions governing the applicability
of its various sections to pre-existing claims. First, section 109, prohibiting discrimination
against certain Americans working abroad, is expressly limited to acts of discrimination
19
occurring after November 21, 1991:
(c) Application of Amendments. The amendments made by this
section shall not apply with respect to conduct occurring before
the date of the enactment of this Act.
Second, section 402(b) exempts from all provisions of the Act "certain ... cases" involving
claims3 that already existed prior to November 21, 1991:
(b) Certain Disparate Impact Cases. Notwithstanding any other
provision of this Act, nothing in this Act shall apply to any
disparate impact case for which a complaint was filed before
March 1, 1975, and for which an initial decision was rendered
after October 30, 1983.
Third, the applicability of the Act to pre-existing claims not governed by section 109(c) or
402(b) is controlled by section 402(a):
(a) Except as otherwise specifically provided, this Act and the
amendments made by this Act shall take effect upon
enactment.
The interpretation of section 402(a) is the central question at issue.
It is clear for several reasons that section 402(a) cannot mean that no provisions of
the Act apply to any pre-existing claim. The specific language of sections 109(c), 402(b)
and 402(a) embodies a careful and deliberate scheme in which Congress dealt expressly
with the issue of which pre-existing claims should and should not be covered by the Act.
Congress clearly decided there were certain pre-existing claims to which the Act should not
be applied — pre-existing claims involving allegedly discriminatory conduct occurring
outside the United States, and certain very old instances of alleged disparate impact.
Equally clearly, however, Congress made a deliberate decision not to exclude from coverage
by the Act those pre-existing claims that were not exempted by sections 109(c) or 402(b),
such as intentionally discriminatory conduct occurring within the United States, or disparate
impact cases filed after March 1, 1975. This carefully crafted and precise scheme would be
3 In fact Congress understood there to be only one such case, the continuing litigation
against the Wards Cove Packing Co.
20
violated by a holding that the Act was inapplicable to pre-existing disparate treatment
claims that arose within the United States, or to disparate impact claims that were filed
after 1975.
The conclusion that section 402(a) contemplates application of the Act to pre
existing claims not exempted by sections 109(c) and 402(b) is dictated by several well
established canons of construction. First,
[wjhere Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.
Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472
F.2d 720, 111 (5th Cir. 1982)). The decision to exempt from section 109, and from that
section alone, "conducting occurring before the date of enactment", can only be read as a
decision not to place any such limitations on the other provisions of the Act. Second, if
the general language of section 402(a) were interpreted to exclude application of the statute
to any existing claim, sections 109(c) and 402(b) would be utterly redundant.
As our cases have noted in the past, we are hesitant to adopt an
interpretation of a congressional enactment which renders superfluous
another portion of the same law.
Mackey v. Lanier Collections Agency & Serv., Inc., 486 U.S. 825, 837 (1988); see also Colautti
v. Franklin, 439 U.S. 379, 392 (1979) (reading a statute to render a section "redundant or
largely superfluous" violates "the elementary canon of construction that a statute should be
interpreted so as not to render one part inoperative.").
The provisions of sections 109(c) and 402(b) show that Congress knew full well what
language to use if it wished to exempt a category of pre-existing claims from the Act, and
that Congress deliberately utilized such explicit language where, and only where, it wanted
to create an exemption.4 That section 402(a) establishes a different rule of application
4 See Hastings v. Earth Satellite Corp., 628 F.2d 85, 92-93 (D.C. Cir.) ("the absence of a
provision prohibiting retroactivity is significant" because other amendments to the same statute
had been expressly inapplicable to pre-act claims) (emphasis in original) cert, denied, 449 U.S.
21
than sections 109(c) and 402(b) is emphasized by the very terms of the statutory language.
The provisions of section 402(a) control "except as otherwise specifically provided."
(Emphasis added). This language makes clear that the specific provisions of section 109(c)
and 402(b) are exceptions to, and thus necessarily different from, the otherwise applicable
general rule under sections 402(a).
Section 402(a) provides that "the amendments made by this Act shall take effect upon
enactment." (Emphasis added).5 If all or most of the amendments made by the Act
contained new standards of conduct for employers, the statute would "take effect" upon
enactment, regardless of whether all pre-Act conduct were exempt, because employers
would presumably bring their current practices into conformity with the Act as soon as it
became law. But almost all of "the amendments made by this Act" are entirely remedial.
They do not render illegal previously lawful practices, but provide (or restore) certain
procedures, standards and remedies which the courts are to use in resolving and redressing
claims. The amendments incorporating these remedial provisions can "take effect upon
enactment" in a meaningful way only if they apply to pre-existing claims. On the date of
enactment there were, of course, no cases to remedy involving post-Act conduct.
905 (1980): Eikenberry v. Callahan, 653 F.2d 632, 633-34 n.5 (D.C. Cir. 1981) (1980 amendment
to 28 U.S.C. § 1331(a) regarding federal jurisdiction held applicable to pending cases because,
in part, 1979 amendment to 28 U.S.C. § 1343 had been expressly limited to deprivation of rights
"occurring after the date of enactment"; "It cannot be gainsaid that Congress knows how to
restrict the retroactive application of the laws it enacts if it so wishes"); Cornelia v. Schweiker,
728 F.2d 978, 988 (8th Cir. 1984) ("Congress could have excluded pre-effective date fees had
it chosen to do so. It has not done so and we will not imply such a limitation.")
5 Matter of Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984):
While not dispositive on the issue before us, the fact that Congress expressed its
intention that the statute take effect upon enactment is some indication that it
believed that application of its provisions was urgent. We certainly cannot
construe this expression of congressional concern as a direction that the law
should not be applied to pending matters.
(Emphasis in original). See Thompson v. Sawyer, 678 F.2d 257, 280 (D.C. Cir. 1982)
(application to pre-existing claims supported by fact Congress did not defer effective date).
22
Even more incongruously, if section 402(a) were construed to exempt all pre-existing
claims, the law generally in "effect" in most cases until the mid-1990’s would be not the
Civil Rights Act of 1991, but the very Supreme Court decisions that Congress
overwhelmingly voted to overturn. If the Civil Rights Act were construed in this manner,
a majority of the instances in which the discredited Supreme Court decisions are applied
will probably occur after Congress voted to set aside those very decisions. In light of the
typical nine-year history of those decisions, it is likely that courts would still be attempting
to interpret rejected decisions like Patterson even after the turn of the twenty-first century.
C. The Language of Section 102 Requires That It Be Applied to Pending Cases.
The particular language of § 102 compels application to any pre-existing claim.6
Subsection (a)(1) states, subject to certain circumstances, that "[i]n an action brought by
a complaining party under section 706 or 717 . . . against a respondent who engaged in
unlawful intentional discrimination . . . prohibited under section 703 [or] 704 [§§ 2000e-2
and 2000e-3] . . . the complaining party may recover compensatory and punitive damages
. . . ." A lawsuit pending today, but arising in 1990, is "an action ... under section 706," and
fits within the literal language of the law. There is nothing in the language of this
subsection authorizing the courts to create an exception based on when the conduct
occasioning the injury may have occurred.
Application of section 102 raises no serious questions since compensatory or punitive
damages were already available at the time of the alleged discrimination. Therefore,
section 102 is procedural, providing an additional basis for an already available remedy.
For example, in the present case, as in other race discrimination cases arising prior to 1989,
the plaintiff was already entitled to compensatory and punitive damages under section 1981;
the new section 102 merely provides a somewhat different procedure, Title VII, for
‘The pertinent parts of § 102 are set out in the Addendum to this Brief.
23
obtaining the same relief in the same federal court for the same conduct. On this ground
alone section 102 must be applied to a pit-Patterson race case, since section 1981 in the era
prior to Patterson authorized even broader damages (i.e., no caps) than section 102.
This is not a situation in which the action complained of was legal, and the
defendant made a decision in reliance on the established cost of that choice. In the case
of section 102, Title VII already flatly prohibited the conduct at issue — intentional
discrimination — at the time it occurred. Defendant cannot be permitted to argue that it
knew it was violating Title VII, but "relied" on the fact that violations, at the time, were
inexpensive. Title VII imposes a prohibition against discrimination, not a licensing fee
(based on the amount of lost pay) for the privilege of continued discrimination.
Section 102 authorizes jury trials of a Title VII claim for compensatory and/or
punitive damages. Since, as shown above, the Act authorizes such damage awards for a
pre-existing claim, it authorizes a jury trial which, of course, is required by the Seventh
Amendment. Lytle v. Household Manufacturing, Inc., supra; Curtis v. Loether, 415 U.S. 189
(1977). Thus, since damages are awardable under section 102, and defendants have no
"right" to a bench trial, a jury trial is necessarily available.
The fact that the availability of damages carries with it a right to a jury trial in no
way militates against the availability of damages for a pre-existing claim. Subsection (c)(1),
providing for jury trials, does not alter the substantive prohibitions of Title VII. Rather,
subsection (c)(1) merely changes who is to decide whether Title VII was violated,
substituting a jury for a judge. In Scarboro v. First American National Bank of Nashville,
619 F.2d 621, 622 (6th Cir. 1980), the court of appeals applied to a pre-existing claim a new
statute guaranteeing a right to jury trial in ADEA cases, explaining, "[W]e do not believe
that a jury resolution of plaintiffs claims poses any threat of injustice to either party." Such
a change of forum raises no problems of injustice or retroactivity. See Hallowell v.
Commons, 239 U.S. 506, 508 (1916); Bell v. New Jersey, 461 U.S. 773, 794 (1983) (White,
J., concurring). This change is procedural in the sense that it affects only how a claim is
24
to be litigated, not the substantive standard of conduct to be applied to the defendant.
D. The Act Should Be Presumed Applicable to Pre-Existing Claims As a Matter of Law.
(1) The Bradley Rule
The controlling standard of statutory construction is set out in Bradley v. Richmond
School Board, 416 U.S. 696 (1974). The question in Bradley concerned the applicability of
a 1972 statute authorizing awards of counsel fees in school desegregation cases.
Segregation of the Richmond schools dated from the turn of the century; the plaintiffs in
Bradley had sued in 1961, and had obtained a series of injunctions between 1964 and 1972.
The legal work for which counsel fees were sought had occurred prior to the effective date
of the 1972 law. The court of appeals denied a fee award, asserting that statutes should
not be construed to apply to conduct occurring before their effective date unless Congress
had clearly mandated such application.7
The Supreme Court unanimously overturned that interpretation of the statute,
holding that the correct rule of construction was precisely the opposite:
We anchor our holding in this case on the principle that a court is to apply
the law in effect at the time it renders its decision, unless doing so would
result in manifest injustice or there is statutory direction or legislative history
to the contrary.
416 U.S. at 711.
[W]e must reject the contention that a change in the law is to be given effect
in a pending case only where that is the clear and stated intention of the
legislature.
416 U.S. at 715. The Court observed that this rule of construction had long been applied
by decisions reaching back into the nineteenth century,8 most recently in Thorpe v. Housing
7 See 416 U.S. at 715 n. 20 (quoting Thompson v. School Board of Newport News, 472 F.2d
177, 178 (4th Cir. 1972)) ("legislation is not to be given retrospective effect to prior events
unless Congress has clearly indicated an intention to have the statute applied in that manner").
8 416 U.S. at 711 (citing United States v. The Schooner Peggy, 5 U.S. 103 (1 Cranch)
(1801)). V ’
25
Authority of Durham, 393 U.S. 268 (1969).
The Supreme Court has repeatedly reaffirmed its commitment to the rule of
construction mandated by Bradley. Cort v. Ash, 422 U.S. 66 (1975); Gulf Offshore Co. v.
Mobil Oil Corp., 453 U.S. 473 (1981). In Bennett v. New Jersey, 470 U.S. 632 (1985), the
Court again reiterated its adherence to Bradley.
[Bradley] rested on the general principle that a court must apply the law in
effect at the time of its decision . . . which Bradley concluded holds true even
if the intervening law does not expressly state that it applies to pending cases.
470 U.S. at 639; see also id. at 654 (Stevens, J., dissenting). The majority in Bennett
declined to apply the statutory amendments at issue in that case because to do so would
have worked a manifest injustice. See also Hamling v. United States, 418 U.S. 87, 102 (citing
Bradley), reh’g denied, 419 U.S. 885 (1974); Hutto v. Finney, 437 U.S. 678, 694-95 n.23, reh’g
denied 439 U.S. 1122 (1979); Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 87 (1982) (majority
opinion) (assuming statutory amendments apply to the earlier arising case); see id. at 90 n.l
(dissenting opinion) (quoting rule in Bradley)-, Bell v. New Jersey, 461 U.S. 773, 793 (1983)
(White, J., concurring) (quoting rule in Bradley)-, N.L.R.B. v. Food Store Employees, 417
U.S. 1, 10 (1974); Youakim v. Miller, 425 U.S. 231, 237 (1976); Saint Francis College v. Al-
Khazraji, 481 U.S. 604, 608 (citing Thorpe and Bradley), reh’g den. 483 U.S. 1011 (1987);
Goodman v. Lukens Steel Co., 482 U.S. 656, 662 (1987) (citing Thorpe and Bradley).
Bradley establishes a three part test for determining whether the application of a new
statute to a pending case or other pre-existing claim would be "manifestly unjust":
(a) the nature and identity of the parties, (b) the nature of their rights, and
(c) the nature of the impact of the change in the law upon those rights.
416 U.S. at 717.
1. The first of the Bradley standards poses no problem for the application of the
Civil Rights Act to existing claims. The central distinction made by Bradley in this regard
is between "mere private cases between individuals," in which application of a new law to
pre-existing claims may be inappropriate, and litigation involving matters of "great national
26
concern," where application of a new statute to pre-existing claims is presumed absent clear
congressional intent to the contrary. 416 U.S. at 718, 719. The Court in Bradley identified
two specific illustrations of matters of public, rather than purely private, concern — school
desegregation, the issue in Bradley itself, and the public accommodations provisions of Title
II of the 1964 Civil Rights Act. In Title II litigation, the Court observed, the plaintiff
functions "as a private attorney general, vindicating a policy that Congress considered of
the highest priority." 416 U.S. at 718-19. The Court characterized Title VII as of similarly
vital public importance Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 417, 421 (1975).
2. With regard to the second Bradley factor, the nature of the rights at stake,
the Court explained that manifest injustice would result if the rights affected adversely by
application of a new law were vested rights.
The Court has refused to apply an intervening change to a pending action
where it has concluded that to do so would infringe upon or deprive a person
of a right that had matured or become unconditional.
416 U.S. at 719 (citing Greene v. United States, 376 U.S. 149 (1964)). This factor is
primarily concerned with protecting accrued causes of action of plaintiffs. The plaintiff in
Greene alleged that in 1953 he had improperly been fired from his employment by a
defense contractor after federal officials wrongfully cancelled his security clearance. In
1959 the Supreme Court decided the merits of the case in favor of the plaintiff; on remand
in that same year Greene sought compensation for lost earnings in the years 1953-59. (See
Greene, 376 U.S. at 161 n.16.) In 1960, after the period for which Greene sought
compensation had ended, the Defense Department promulgated a new regulation that flatly
excluded from compensation certain individuals entitled to it under earlier regulations,
apparently including Greene himself. 376 U.S. at 157. The Supreme Court refused to
subject Greene’s claims to the new substantive restrictions in the 1960 regulations,
reasoning that "[wjhatever petitioner’s rights are, there can be no doubt that they matured
and were asserted under the 1955 directive." 376 U.S. at 160. Thus the Bradley
presumption is inapplicable in cases like Greene where it would divest a party of an accrued
27
claim, but does apply to changes in the procedures for resolving such pre-existing claims.
3. With regard to the third Bradley factor, the impact of the change in the law,
the Court explained that it was concerned lest "new and unanticipated obligations ... be
imposed." 416 U.S. at 720. This factor is primarily concerned with protecting defendants
from being held liable for conduct which they had no reason to believe was actionable when
it originally occurred. Because the new statute at issue in Bradley dealt only with counsel
fees, and did not purport to affect when or how schools were required to desegregate,
application of that law to the case at hand worked "no change in the substantive obligation
of the parties." 416 U.S. at 721. The Court reasoned that there was no basis for
concluding that the school board, in refusing to desegregate and thus provoking the
litigation in question, had relied at the time on the absence of a counsel fee statute. 416
U.S. at 721.
(2) Bradley Continues to be Good Law
The application of Bradley to the Civil Rights Act in general and § 102 in particular
is not undermined by the existence of a line of cases suggesting that a statute should not
be construed to be "retroactive" unless that interpretation is supported by the language or
legislative history itself. The decisions cited in and relying on Bradley long co-existed with
this other line of cases regarding retroactivity. The Supreme Court again referred to this
second set of precedents in Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988)
and Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827 (1990).
In Bowen, certain rule-making authority of the Secretary of Health and Human
Services was construed by the Court not to encompass authority to adopt a "retroactive
cost-limit rule," which would have permitted the United States to recoup fees already paid
to the hospital under prior reimbursement standards. The majority opinion contained the
following language:
Retroactivity is not favored in the law. Thus, congressional enactments and
administrative rules will not be construed to have retroactive effect unless
their language requires this result. E.g., Greene v. United States, 376 U.S. 149,
28
160 (1964); Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164
(1944); Miller v. United States, 294 U.S. 435, 439 (1935); United States v.
Magnolia Petroleum Co., 276 U.S. 160, 162-63 (1928).
438 U.S. at 208.
Two years later, in Kaiser Aluminum & Chemical Corp. v. Bonjomo, supra, the
majority detail the presumption and the "manifest injustice" standard in Bradley and Thorpe,
and then noted that they were "[i]n apparent tension" with the passage quoted above from
Bowen. 494 U.S. at 837. Because it believed that the plain language of the statute in
Bonjomo did not apply to the circumstances of that case, the majority concluded that it
"need not in this case . . . reconcile the two lines of precedent represented in Bradley . . .
and [Bowen]." Id.
In Bennett v. New Jersey, 470 U.S. 632 (1985), the Supreme Court explained how
these precedents could be reconciled, arguing that the presumption against "retroactivity"
was a presumption regarding statutes affecting substantive rights and obligations, and did
not apply to statutes that alter procedures or remedies. 470 U.S. at 639-40. Bennett held
that the statute at issue in that case was "presumptively" inapplicable to existing claims
because the statute had altered standards of conduct on which the parties would earlier
have relied.
This Court has ruled unequivocally that it continues to adhere to Bradley. In Wright
v. Director, FEMA, 913 F.2d 1566 (11th Cir. 1990), the court relied on Bennett to reconcile
Bradley and Bowen:
[Tlhe principle affirmed in Bradley has generated some confusion in the
federal courts, since it appears to conflict with ... Bowen .... In this case,
however, we find no conflict between Bradley and our ruling because of the
nature of the issue presented. Simply stated, we would reach an identical
result under the Bowen concept of presumed prospective regulation, as well
as the "manifest injustice" exception to the Bradley rule.... Justice O’Connor
explained the expressly acknowledged limits to the Bradley principle in
Bennett.... As Bennett suggests, where a regulatory change interferes with
matured or vested rights, the Bradley analysis coincides with the principle of
prospective statutory application.
913 F.2d at 1573.
29
Since Bowen this Court has in four instances relied on Bradley in holding a new law
applicable to a pre-existing claim. U.S. v. Peppertree Apartments, 942 F.2d 1555 (11th Cir.
1991) , vacated and remanded, 504 U .S .__, 118 L.Ed.2d 419 (1992); Federal Deposit Ins.
Corp. v. 232, Inc., 920 F.2d 815 (11th Cir. 1991); Delmay v. Paine Webber, 872 F.2d 356,
357-58 (11th Cir. 1989); Campbell v. Dominick & Dominick, Inc., 872 F.2d 358, 360-61 (11th
Cir. 1989). As plaintiff has shown above, § 102 deals solely with the remedy of
compensatory and punitive damages and the consequent procedural right to a jury trial.
Therefore, all of the cases cited above lead inexorably to the conclusion that the provision
should have been applied to the present case. Since the denial of a jury trial was error, the
case must be remanded for one, despite the holding of the court below on the merits of
plaintiffs claims. Lytle v. Household Manufacturing, Inc., supra.
Finally, this Court should not follow the decisions of the courts of appeals that have
held, on one ground or another, various provisions of the Civil Rights Act of 1991
inapplicable to pending cases. The discussion in Vogel v. Cincinnati, 959 F.2d 594 (6th Cir.
1992) was dicta, since the result in the case would have been the same whether or not the
Act applied. Moreover, in both Vogel and Fray v. The Omaha World Herald Co., 960 F.2d
1370 (8th Cir. 1992), the issue of the Act’s applicability was neither fully briefed nor argued
to the court. Both Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th
Cir. 1992) and Johnson v. Uncle Ben’s Inc.,___F .2d___ , 59 FEP Cases 483 (5th Cir. July
1, 1992, acknowledge the distinction between changes in the substantive law and changes
in remedies and procedures such as are involved in the present case. However, for the
reasons set out above, plaintiff urges that the holdings in those cases and in Luddinglon v.
Indiana Bell Tel. Co., 1992 U.S. App. LEXIS 13450 at *12 (7th Cir. June 15, 1992), which
refuse to apply the Act, are in error and should be rejected.
30
Plaintiff Established a Prima Facie Case of Racial
Discrimination That Defendant Failed to Rebut
This is a disparate treatment claim of employment discrimination for which ”[t]he
analytical framework has been set forth in numerous opinions of this Court." Bell v.
Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir. 1983), cert. den. 467 U.S. 1204
(1984). The Supreme Court has set forth the elements of analysis of the evidence in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), with clarifications in Fumco Construction
Co. v. Waters, 438 U.S. 567 (1978), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).
As stated by this Court in Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir. 1990),
A plaintiff has the initial burden of establishing a prima facie case of racial
discrimination by a preponderance of the evidence, which once established
raises a presumption that the defendant racially discriminated against
plaintiff. If the plaintiff establishes a prima facie case, the burden then shifts
to the defendant to rebut the presumption by producing sufficient evidence
to raise a genuine issue of fact as to whether the defendant discriminated
against the plaintiff. This may be done by the defendant articulating a
"legitimate, non-discriminatory reason" for its actions against the plaintiff, a
reason which is "clear and worthy of credence." The defendant has the
burden of production, and thus does not have to persuade a court that it was
actually motivated by the reason advanced. Once the defendant satisfies this
burden of production, the plaintiff then has the burden of persuading a court
that the employment decision is a pretext for discrimination. The plaintiff
may satisfy this burden by persuading the court either directly that a racially
discriminatory reason more than likely motivated the defendant or indirectly
that the proffered reason . . . is not worthy of belief. By so persuading the
court, the plaintiff satisfies the required ultimate burden of demonstrating by
a preponderance of evidence that he or she has been the victim of intentional
racial discrimination.
Id. at 1554 (citations omitted).
As this Court noted in Bell, 715 F.2d at 1556, "the method suggested in McDonnell
Douglas . . . was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely
a sensible, orderly way to evaluate the evidence in light of common experience as it bears
on the critical question of discrimination." (citing Fumco Construction Co.) The McDonnell
Douglas method addresses two common evidentiary problems: "(1) direct evidence of
discriminatory intent will be most likely nonexistent or difficult to prove; and (2) the
II.
31
defendant enjoys greater access to proof of its reasons for its own employment decisions."
Bell, 715 F.2d at 1556.
Analysis of pretext is essential because "we know from our experience that more
often than not people do not act in a totally arbitrary manner, without any underlying
reasons, especially in a business setting. Thus, when all legitimate reasons . . . have been
eliminated as possible reasons for the defendant’s actions, it is more likely than not the
defendant . . . based his decision on an impermissible consideration such as race." Furnco
Construction Co v. Waters, 438 U.S. at 577 (citation omitted); Bell, 715 F.2d at 1556.
In this case, plaintiff raised numerous matters to show that defendant’s reasons for
not selecting plaintiff were pretextual. For example, plaintiff had five years experience as
Account Executive at AT&T and Associate Account Executive at Southern Bell. However,
although the selecting official said sales experience was an important element, the selectee
never held a position as Account Executive. Rather, in 1984, while he held the position
of technical support manager, he led one account team in which there were three Account
Executives.
Given that this position of Industry Manager was a sales position, managing sales
representatives, such rationale has all the appearance of the job being described to fit the
man selected. This practice is highly suspect and can camouflage unlawful discrimination
after the fact. When there exist no Blacks in management positions and there are no job
announcements or announced qualifications, then Black employees would never know with
certainty what is needed to get ahead. Moreover, defendant clearly was willing to give a
white employee the position with little experience in a critical area, while unwilling to give
plaintiff such a chance.
Likewise, defendant said that staff experience was necessary. While the Magistrate
so found, he provided no analysis of the conflicting evidence so that this Court can review
how he arrived at that finding. Nor did he provide an analysis that addressed plaintiffs
argument that this articulated reason was but a pretext. The Magistrate based his finding
32
on a career booklet and the testimony of Guttery and Lewis. However, an examination of
the document (D. Exh. 19), shows that it was a draft, that there is no evidence in the
record to show that it was formally adopted, and that the only date on it is after the date
of plaintiffs non-selection. Two other managers testified that it was not a requirement and
the selectee’s immediate predecessor in the job did not have it. Moreover, while Guttery
testified that the purpose of the requirement was to gain knowledge of the internal
workings of the AT&T, the evidence established that neither the selectee nor the plaintiff
had staff experience in AT&T, but both had outside staff experience. Since the Magistrate
provided no analysis of pretext an essential element is missing from his decision.
A careful review of the record shows that the selecting official did not consider any
Account Executives and thus did not consider plaintiff. Thus, based on the evidence, the
question becomes, was the failure to consider plaintiff a violation of Title VII.
This Court has often held that the use of subjective criteria in an environment of all
white supervisors is a ready mechanism for discrimination. Harris v. Birmingham Bd. of Ed.,
712 F.2d 1377, 1383 (11th Cir. 1983). Since the AT&T Southeast Area had no adopted
written policies on promotion and no written job qualifications, the issue is squarely raised
whether this system unlawfully discriminated against plaintiff because of his race. As noted
in Harris, "This Court has previously stated that ‘[T]he failure to establish fixed or
reasonably objective standards or procedures for hiring is a discriminatory practice," citing,
Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir. 1982). See also, Bell v.
Birmingham Linen Service, 715 F.2d at 1559.
Until 1988 there were no Blacks in management level 3 or above in an organization
of 600 to 1000 people. The number zero speaks loud and clear. In a work environment
free of unlawful discrimination, Blacks would be represented. A strong inference of
unlawful discrimination is made where there are no Blacks in those positions with the
authority to make selection decisions. As the Supreme Court has held: "Statistics showing
racial or ethnic imbalance are probative in a case such as this one only because such
33
imbalance is often a telltale sign of purposeful discrimination." International Brotherhood
of Teamsters v. United States, 431 U.S. 324, 339 and n. 20 (1977).
Here, numerous policies are suspect: a promotion system that did not use vacancy
announcements or written specifications of qualifications announced to employees, and a
requirement that one’s supervisor find an employee "promotable" with no definition of the
term. When, as here, a Black employee cannot count on ever being given information as
to what is necessary to get ahead, an environment of mistrust is created, especially where
there are no Blacks in the decision-making positions.
Even in the instance of the requirement of staff experience, an objective and non-
discriminatory promotional system would provide for an analysis of the underlying elements
of "staff1 experience — to insure that any person in fact met the needed job elements,
however attained. There is more than one way to gain knowledge. Where jobs are at issue
and people’s livelihood, it is not the place to apply unthinking litmus tests, and to do so is
illegal under Title VII when such a system has obviously operated as a headwind to bar
Blacks from management positions.
As late as 1987, twenty-three years after Title VII was passed, it is startling that a
corporation as large as AT&T would have no Blacks in positions to make selection
decisions in the Southeast Region. Moreover, there was little or no concern at AT&T over
this state of affairs — although there is a wealth of information available to managers and
companies on how to develop objective qualifications and EEO plans to insure compliance
with anti-discrimination laws.
This Court has repeatedly held that there are dangers to be guarded against in such
a system. "Subjective selection processes involving white supervisors provide a ready
mechanism for racial discrimination." Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d
1064, 1067 (11th Cir. 1981). Accord, Parson v. Kaiser Aluminum & Chemical Corp., 575
F-2d 1374, 1385 (5th Cir. 1978), cert, denied, 441 U.S. 968 (1979); James v. Stockham Valves
& Fitting Co., 559 F.2d 310, 345 (5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978); Rowe
34
v. Gen. Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972). In Robbins this Court held:
The Supreme Court’s requirement that "the defendant’s explanation of its
legitimate . . . reason be clear and reasonably specific " provides the plaintiff
with some protection against the potential for discrimination inherent in a
subjective selection process involving subjective job criteria. . . . Obviously,
the more subjective the qualification sought and the more subjective the
manner in which it is measured, the more difficult will be the defendant’s
task in meeting the burden under Burdine.
660 F.2d at 1067 (citing Burdine, supra). Further,
An employer may not utilize wholly subjective standards by which to judge
its employees’ qualifications and then plead lack of qualifications when its
promotion process, for example, is challenged as discriminatory.
Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1315 (5th Cir. 1980).
The system used by AT&T is basically the same as that found illegal both in Rowe
v. General Motors, 457 F.2d at 358-59 and James v. Stockham Valves & Fittings, 559 F.2d at
346, namely:
a) the supervisors’ recommendation is the single most important factor in the
promotion process;
b) the supervisors were not given written instructions pertaining to the qualifications
necessary for promotion;
c) controlling standards are vague and subjective;
d) employees are not notified of promotion opportunities or of the qualifications
necessary to get jobs; and
e) there were no safeguards in the procedure designed to avert discriminatory
practices. See also, Harris v. Birmingham Bd. of Ed., 712 F. 2d at 1383; Parsons v. Kaiser
Aluminum & Chem. Corp, 575 F.2d at 1384, in which the District Court was held to have
erred in making no mention of the statistics and in ignoring the impact of the subjective
and discretionary promotion procedures in effect at the time the plaintiff was not selected.
Moreover, in this case, as the Court held in Eastland v. TVA, 704 F.2d 613, 626 (11th
Cir. 1983), AT&T’s decision cannot be defended — by the Magistrate or the District Court
— on the basis of relative qualifications if those qualifications were not considered by the
35
selecting official. As in Eastland, the selecting official did not testify that plaintiff was not
selected due to his relative qualifications vis-a-vis the selectee. The plaintiff was not even
considered.
In sum, plaintiff established a prima facie case of intentional discrimination in at
least two ways. First, he is Black, he was qualified, was not considered although qualified
and, and a white was selected. Second, plaintiff, a Black, was qualified for consideration
for a promotion to Industry Manager position yet was not even considered when defendant
utilized a subjective system based on supervisory recommendations in a work force of 600-
1000 employees where there are no Blacks at the grade 3 level and above at the
management levels where selection decisions were made.
Therefore, the defendant was required to articulate a legitimate, non-discriminatory
reason for not considering plaintiff although he was qualified. And defendant was required
to demonstrate that its policies were required by business necessity. This AT&T has failed
to do, and it was error for the Magistrate to substitute his own reasons for the employer’s
action. Lanphear v. Prokop, 703 F.2d 1311, 1315-17 (D.C. Cir. 1983.)
III.
Tiie District Court and the Magistrate Failed to Make Specific Subsidiary
Findings of Fact on Pretext and Retaliation and Failed to
Provide Reasons for Rejecting Plaintiff’s Evidence
The Magistrate made no finding on pretext on the promotion claims and insufficient
subsidiary findings on the retaliation claims. While the District Court attempted to fill in
some of the findings missing from the Magistrate by addressing some of plaintiffs evidence
and arguments of pretext in the promotion claim, the judge nonetheless each time
concluded that the Magistrate must have made his finding based on the credibility of the
defense witnesses. However, that is District Court’s surmise only. There might have been
other reasons, appropriate for review, but they are unascertainable from the Magistrate’s
Report. To read his decision, one would never know that there was any conflicting
36
testimony or even that plaintiff had any witnesses other than, perhaps, himself.
In addition, neither the court nor the Magistrate addressed any of plaintiffs
evidence on the matters about which he was counseled. Thus, no factual or analytical basis
has been provided for review. In fact, analysis of these occurrences reveal in some
instances that plaintiffs explanation is the logical one and defendant’s position illogical,
that he was being held accountable for the response of someone else, or that he submitted
evidence from a third person directly contradicting defendant’s position.
Furthermore, the evidence and common experience that complaints are common
regarding telephone and information system service and equipment was not articulated by
the Magistrate. Also, common experience shows that if anyone’s actions are put under a
microscope, flaws can be found and that if management engaged in the kind of memo
writing done regarding plaintiff, government and corporate America would come to a
standstill.
Most significantly, the record in this case leads necessarily to the inference that the
kind of monitoring plaintiff was subjected to was not inflicted on all employees. For
example, if there were management "counseling" memos about plaintiff before he filed his
EEO complaint, one can be sure that defendant would have submitted them into evidence.
None were put in evidence, as were none on other employees. Plaintiff’s new supervisor,
as late as 1987, was instructed to keep records on him. If similar records were being kept
in the regular course of business for all employees, such an order would not have had to
have been made in plaintiffs case. Also, plaintiffs witnesses testified that counseling
memos were not written about everyone — there would be too many.
By failing to provide any analysis of the conflicting testimony in the record, there
is no basis to know the reasons why all of plaintiffs evidence, both from witnesses and
through documents, was rejected. In any case, this is an unacceptable way to proceed,
especially in a civil rights case. The lack of specific findings of fact by the Magistrate is
particularly unsatisfactory with regard to plaintiffs claim that he was discriminated against
37
because he had filed EEO complaints and his claim that the reasons given for non-selection
were pretextual. The omissions in this record demonstrate the very useful purpose of the
requirement that specific and complete findings be made — to insure that a fact finder "will
give more careful consideration to the problem if they are required to state not only the
end result of their inquiry, but the process by which they reached it." United States v. Merz,
376 U.S. 192, 200 (1964).
The Magistrate was required to weigh all the evidence to reach his decision.
Decisions that recite the evidence that only supports one view do not provide assurance
that each side was actually heard and the judgment fairly reached. In Hydrospace-
Challenger, Inc. v. Tracor-Mas Inc., 520 F.2d 1030, 1034 (5th Cir. 1975) the Court remanded
when the district court findings did "not provide a sufficiently definite predicate for proper
appellate review." Like here:
Many of the findings are couched in conclusory terms. Some were
announced solely as ultimate findings without support which clearly reflected
a choice between conflicting accounts of events or between alternate legal
interpretations of those events. This court cannot be left to guess.
Id. Similarly, in Lee v. Russell County Bd. ofEduc., 684 F.2d 769, 775 (11th Cir. 1982), this
Court held that reasons for disbelieving plaintiffs evidence must be given in order for it
to exercise properly its function of appellate review.
In this case, as set out in the Statement of Facts, plaintiff presented testimony and
introduced documents relating to many facts that went to demonstrating that defendant’s
reasons were but a pretext for discrimination or that defendant had unlawfully
discriminated against him for opposing discrimination in employment. Nonetheless, the
Magistrate’s decision is devoid of any articulation of the consideration or analysis he gave
to such evidence.
A retaliation claim is one alleging a violation of 42 U.S.C. § 2000e-3(a), which
provides, "It shall be an unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has made a charge . . . under this subchapter."
38
Thus, to establish a prima facie case, a plaintiff need only show, as in any other
discrimination case, facts that if otherwise unexplained would raise an inference of
discrimination. It can be made by a showing that plaintiff was treated differently than he
would have been treated absent filing an EEO complaint.
Herein, the record shows that plaintiff filed EEO complaints, his supervisors knew
he had, that he was treated differently than he had been treated prior to his filing, and
different from others. At that point, the defendant must produce evidence to show that
the treatment was legitimate and non-discriminatory and if it does, plaintiff has the
opportunity to show pretext.
On the increase in sales quota without a change in territory, plaintiff made a prima
facie case and defendant failed to produce evidence that there were other Account
Executives who also did not have a change in territory.
On the counseling memos, plaintiffs other witnesses testified that such memos were
not usually written Furthermore, plaintiff had received none before filing his charge. The
magistrate not only erred in finding that plaintiff had not made a prima facie case, but
erred in not making specific findings to determine whether the memos were justified and
non-discriminatory. There is also direct evidence from a subsequent supervisor that she
was instructed to keep good records on plaintiff. The Magistrate made no finding on this
testimony or the obvious inference to be drawn that records were not usually kept. In the
absence of an articulated analyses, the findings of the Magistrate must be reversed.
On plaintiffs involuntary transfer, there is direct evidence that his EEO charges
were discussed in the meeting at which he was given one day’s notice of the transfer.
Plaintiff was told the transfer was being ordered because there was distrust because of his
filing suit. The only "suit" pending at the time of the meeting were his EEO complaints.
Clearly, plaintiffs exercising his federally protected right to complain about management
actions caused him to be transferred from his position.
39
The Magistrate erred in not making specific findings weighing this evidence. He was
required to determine whether the transfer would have been taken absent the plaintiffs
having exercised his rights under Title VII. On this record, it would be impossible to make
such a finding. Plaintiff did not want to go to the position, and defendant clearly did not
know how to work with him because of the "lack of trust."
In any event, the above were all matters to be specifically considered and weighed
by the Magistrate. He failed to explain why he rejected plaintiffs evidence. Simply citing
"credibility of witnesses," an assumption of the District Court, cannot be used as a substitute
for a reasoned analysis that provides the parties and a reviewing court with an adequate
basis to determine if the law was properly applied.
Because the findings of fact made below fail to meet the standard set by this Court,
the decision must be reversed. Ordinarily, it would be remanded to the District Court and
the Magistrate to make findings on all the evidence regarding all of the claims made by
plaintiff, with reasons articulated for rejecting or accepting evidence. Only in this way can
there be a proper basis for review, if any. However, as demonstrated in Argument I, supra,
this case must be remanded for a new trial before a jury.
IV.
The District Court Applied the Wrong Standard in Reviewing
the Findings of Fact Made by the Magistrate to
Determine if They Were Clearly Erroneous
In this case, the District Court Judge held:
The court . . . "shall accept the masters’ findings of fact unless clearly
erroneous." Fed. R. Civ. P. 53(e)(2). Thus to the extent that there is
evidence to support the Magistrate Judge’s findings, the court will not reject
them.
Rec. Exc. No. 64, pp. 1-2. While the District Court was correct that a finding of fact may
not be set aside unless clearly erroneous, Pullman-Standard v. Swint, 456 U.S. 273 (1982),
she erred in interpreting that standard to mean essentially any evidence.
40
This Court has held that a finding of fact will be held clearly erroneous if the record
lacks "substantial" evidence to support it. Caban-Wheeler v. Elsea, 904 F.2d at 1555; Miles
v. M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985); Lincoln v. Board of Regents of University
System, 697 F.2d 928 (11th Cir. 1983), cert. den. 464 U.S. 826 (1983). This Court has
further held that:
Even if substantial evidence supports a finding, we must consider the
evidence as a whole and set the finding aside if we are "left with the
impression it is not the truth and the right of the case."
Lincoln v. Board of Regents, 697 F.2d at 939.
Herein, as demonstrated above in the Statement of the Facts and in Argument III,
there were many instances in the Magistrate’s findings, adopted by the District Court,
where there is not substantial evidence and, indeed, in some cases no evidence to support
the findings.
For example, one of the centra] and most crucial findings was the Magistrate’s
determination that the selectee was more qualified than plaintiff in the face of the selecting
official’s own testimony that establishes that he did not compare their qualifications. Of
course, it was not the role of the court to develop and articulate a reason that was not
relied on by the defendant. See, Lanphear v. Prokop, supra.
Another crucial finding was the conclusion that plaintiff had failed to establish the
elements of a prima facie case of discrimination because he had filed complaints of
discrimination. As demonstrated above, there was substantial evidence and undisputed
circumstances that established a prima facie case. These included, among others, the
knowledge of management personnel that plaintiff had filed EEO charges; the timing of
critical memos, which began only after he had filed charges; the absence of any
documentary evidence that other employees were similarly treated; the increase in plaintiffs
sales quotas in the same territory; the instruction to a new supervisor that she keep records
on plaintiff; etc. In the face of this evidence, the conclusion that there was no retaliation
against plaintiff is wholly without support by any substantial evidence, and, indeed, is belied
41
St a t u t o r y A d d e n d u m
Section 102 of the Civil Rights Act of 1991
Pertinent Parts
SEC. 102. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION.
The Revised Statutes are amended by inserting after section 1977 (42 U.S.C. 1981)
the following new section.
SEC. 1977A [42 U.S.C. 1981al. DAMAGES IN CASES OF INTENTIONAL
DISCRIMINATION IN EMPLOYMENT.
(a) Right of Recovery. —
(1) Civil rights.—In an action brought by a complaining party under
section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a
respondent who engaged in unlawful intentional discrimination (not an employment
practice that is unlawful because of its disparate impact) prohibited under section
703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the
complaining party cannot recover under section 1977 of the Revised Statutes (42
U.S.C. 1981), the complaining party may recover compensatory and puntivc damages
as allowed in subsection (b), in addition to any relief authorized by section 706(g)
of the Civil Rights Act of 1964, from the respondent.
* * *
(b) Compensatory and Puntive Damages.—
(1) Determination of punitive damages.—A complaining party may
recover punitive damages under this section against a respondent (other than a
government, government agency or political subdivision) if the complaining party
demonstrates that the respondent engaged in a dicriminatory practice or
discriminatory practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.
(2) Exclusions from COMPENSATORY DAMAGES.—Compensatory damages
awarded under this section shall not include backpay, interest on backpay, or any
other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.
* * *
(c) Jury Trial.—If a complaining party seeks compensatory or punitive damages
under this section—
(1) any party may demand a trial by jury;
la