Chisholm v. United States Postal Service Brief of Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RECORD NO. 80-1800

NAPOLEON CHISHOLM, et al.,
Plaintiffs-Appellees, 

v.
THE UNITED STATES POSTAL SERVICE, et al.,

Defendants-Appellants.

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APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRIEF OF APPELLANTS

4FS'*"

STEPHEN E. ALPERN 
Associate General Counsel

#DAVID G. KARRO 
Senior Attorney
DAVID FISHMAN Attorney
Office of Labor Law 
United States Postal Service 
475 L'Enfant Plaza, S.W. Washington, D.C. 20260 v̂
(202) 245-4647

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I N D E X
Page

I. TABLE OF CASES AND AUTHORITIES................
II. STATEMENT OF THE ISSUES........................
III. STATEMENT OF THE CASE..........................
IV. ARGUMENT

A. The District Court erred in exercising
jurisdiction over claims of discrimination
prior to March 1, 1972.
1. The Court erred in awarding relief

under the Fifth Amendment.
2. The Court erred in applying §706(g)

of Title VII to this case
B. The Court erred in finding that plaintiffs

had established their class claims.
1. The statistical evidence does not 

establish that blacks were subjected to 
discrimination in promotions.

2. The statistical evidence does not 
establish that blacks were subjected to 
discrimination in detailing.

3. The statistical evidence does not 
establish that blacks were subjected to 
discrimination in discipline.

4. The non-statistical evidence will not 
support a claim of class discrimination.

C. The District Court erred in certifying a class.
1. The failure of the District Court to 

properly certify a class prejudiced 
defendants.

2. Chisholm was not a proper class represen­
tative.



Page

D. The District Court erred in finding for 
plaintiffs on their individual claims.

E. The Court erred in the nature of relief 
granted to plaintiffs.

V. CONCLUSION



IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RECORD NO. 80-1800

NAPOLEON CHISHOLM, et al.,
Plaintiffs-Appellees,

v.
THE UNITED STATES POSTAL SERVICE, et al.

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRIEF OF APPELLANTS

II. STATEMENT OF THE ISSUES

1. Did the District Court err when it allowed Chisholm, in 
his role of class representative, to resurrect and liti­
gate claims which could not have been presented to the 
administrative process in a timely fashion pursuant to 
§713.214(a)(iii) of Title 5 of the 1972 Federal Code of 
Civil Procedure?

2. Did the District Court err in finding a systematic policy 
of racial discrimination from the undifferentiated statis­
tical evidence in the record and from the testimony that 
class members had been subjected to individual acts of 
racial discrimination by whites and other class members?



3. Did the District Court err in certifying a class which had 
never been precisely identified, which had members with 
interests unrelated to Chisholm's, and which had members 
whose interests were betrayed by Chisholm?

4. Did the District Court err in finding for the individual 
Plaintiffs in view of the fact that several claims were 
time-barred when Chisholm filed his administrative claim; 
that many claims arose long after the investigation of 
Chisholm's administrative complaint was completed; and 
that no claim was supported by the evidence in the record.

5. In view of the District Court's failure to find that any 
selection device other than 0/S 100 was discriminatory, 
its exclusion of hiring claims from the lawsuit, its find­
ing that no discrimination in promotions had taken place 
after 1977, and its failure to join the bargaining agents 
for Postal Service employees as parties to the action, was 
it error to enjoin the Postal Service from generally vio­
lating Title VII, to issue an injunction concerning the 
recruitment of applicants, to set quotas, and to impose 
its mandate on all Postal Service practices, whether sub­
ject to collective bargaining agreements or not.

III. STATEMENT OF THE CASE 
A. The Course of the Proceedings Below 

This case arises out of a March 1972 decision by the Charlotte, 
North Carolina, Post Office to fill two higher level positions in 
its Finance Department: those of Finance Examiner and Budget Assis­
tant. After inconclusive informal proceedings, Plaintiff-Appellee 
Chisholm filed a formal administrative complaint of racial discri­
mination pursuant to 5 C.F.R. § 713.214(a)(1)(ii)(1972), claiming 
that he "was denied an equal opportunity to be considered for the 
. . . positions" because of his race; that Post Office management
had "manipulated" certain rules to achieve this result, and that 
it did so in pursuit of a willful and consistent discriminatory 
policy of denying blacks promotions. FF 7.

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On June 23, 1973, Chisholm commenced this action with a timely 
complaint, later amended in ways not here relevant, charging vio­
lations of the Fifth Amendment; The Civil Rights Act of 1866, 42 
U.S.C. §1981; and §717(a) of Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C.§2000e-16(a). He further alleged that 
he was bringing the action on behalf of all black persons affected 
by the "unlawful employment practices complained of herein at the 
facilities of the United States Postal Service in Mecklenburg 
County." Those practices were said to be the refusal to promote 
Chisholm, a policy of refusing to promote blacks, a policy of pre­
venting blacks from becoming supervisors, and a policy of excluding 
blacks from serving on promotion boards which interview applicants 
for promotion. Complaint, HIV. A year later, five other blacks 
moved to file a complaint in intervention which raised the same 
promotion-related claims raised by Chisholm. Complaint In Inter- 
vention. None sought to be appointed class representatives. Id.

On May 29, 1975, the motion for intervention was allowed and a 
class was certified. judge McMillan did not restrict membership to 
blacks with the promotion claims set out in Chisholm's complaint, 
but included blacks

who are or have been limited, classified, restricted, 
discharged, excluded or discriminated against by def­
endants in ways which deprive them or tend to deprive 
them of employment opportunities and otherwise affect 
their status as employees or applicants for employment 
or promotion because of their race or color.

Order. Defendants, sometimes collectively referred to as the
"Postal Service," then took an interlocutory appeal, during the

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course of which Plaintiffs formally acknowledged that their sole
basis for claiming relief was Title VII. Brief, p. 12, n ■ 13 ; p. 39.
On the basis of that concession and two intervening Supreme Court 
cases, the Postal Service withdrew its appeal.

On July 17, 1979, Judge McMillan narrowed the class to exclude 
applicants and persons with claims which arose prior to March 24, 
1970 FF 2. At the trial that followed, he appeared to further limit 
class membership by excluding persons with promotion claims unless 
they arose before 1974 and involved higher level positions. Tr♦ 
726-727, 871.

On June 23, 1980, ten months after trial, the Court entered a 
three-page decision holding, without explanation, that the Postal 
Service had discriminated against blacks in promotions, details 
(temporary assignments), assignment of rural carriers, use of 
tests, certain training programs, adherence to its discriminatory 
practices, and its rules governing transfers between crafts. It 
made a preliminary determination that 17 named individuals were 
subjected to discrimination and that the extent of the Postal 
Service's liability to class members would probably have to be 
determined by a master. Plaintiffs were given 38 days to draft 
findings of fact, conclusions of law, and a judgment, and Defend­
ants were given "two weeks only to file a response." Memorandum 
of Decision.

Without further guidance from the Court, each party then sub­
mitted voluminous findings of proposed facts and conclusions of

-4-



law. Despite this Court's admonition in White v. Carolina Paper 
Board, 564 F.2d 1073, 1083, (1977), Judge McMillan signed Plain­
tiffs' 115-Page submission, making only the minor changes noted 
in his August 28, 1980 Order. Order. His Judgment extended 
class membership to October 3, 1980, and in effect found against 
the Postal Service with respect to virtually every non-hiring 
claim of race discrimination any black in Mecklenburg County 
might have had between March 24, 1970 and October 3, 1980.'
He not only granted relief under Title VII, but also under the 
Fifth Amendment. Extensive injunctive relief was ordered, and 
the Postal Service took this appeal. Notice.

B. The Facts
1. The Organization of the Postal Service 

Chisholm and the intervenors were employed at the Charlotte 
Post Office in Charlotte, North Carolina. In May of 1972, that 
Post Office employed about 1400 people in about a dozen stations 
and branches in and around the city of Charlotte. FF 14. The 
Post Office was organized into four main organizational units: 
Mail Processing, which is concerned with the distribution, pro­
cessing, and dispatching of mail and with plant maintenance; 
Customer Services, which is concerned with activities directly 
involving Postal Service patrons and with certain other matters 
such as maintenance of Postal Service vehicles; Finance, which 
is concerned with budget administration, data systems information 
accounting and costing, and auditing and administrative services;

-5-



and Employee and Labor Relations, which is concerned with personnel 
matters. FF 17, 18. The Charlotte Post Office is administered by 

a Postmaster.
The Charlotte Post Office is one of some 202 post offices within 

the Charlotte Sectional Center. That Sectional Center consists of 
a three-county-wide area of the western part of the state of North 
Carolina which runs from the Virginia border in the North to Chester, 
South Carolina in the South. In addition to the Charlotte Post Of­
fice, at least three other post offices in the sectional center are 
found in Mecklenburg County. Thus, the certified class does not 
correspond to any administrative unit of the Postal Service, as 
it is larger than the Charlotte Post Office but smaller than the^ 
Sectional Center. FF 14, 15.

The Postmaster of the Charlotte Post Office is also the Direc­
tor of the Sectional Center. The Court found that "the same manage­
ment officials are in charge of the operation of both the Charlotte 
Post Office and the Sectional Center." FF 16. If that finding is 
intended to mean that the Charlotte Postmaster was at all times 
directly responsible for all personnel actions in other post of­
fices in the Sectional Center, it has no evidentiary support.
While there is evidence that the Charlotte Postmaster did on 
occasion assign class members to serve as acting postmaster 
(Officer-in-Charge) of associate post offices, e.g., FF 110, 122, 
there is also evidence that each postmaster within the Sectional 
Center selects its own rural carriers. Tr. 838-839. Moreover, 
evidence in Plaintiffs' Exhibit 21 establishes that the Sectional

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Center provided technical support to associate post offices in 
personnel matters, but that each post office made its own personnel 
decisions. Exhibit 21, pp. 7-8.

The Charlotte Sectional Center is part of a District consist­
ing of six sectional centers. FF 15. The District is in turn part 
of the Postal Service's Southern Region, which encompasses eleven 
states. 39 C.F.R. §225.1(c). Id.

2. The Personnel System In the Charlotte Post Office 
a. Promotions and Rural Carrier Assignments. The Postal 

Service is subject to significant portions of the National Labor 
Relations Act and has negotiated collective bargaining agreements 
with several collective bargaining agents. 39 U.S.C. §1206, 1209. 
Employees subject to those agreements were denominated "craft 
employees" by the trial court and may be treated as a discreet 
sub-class for purposes of this appeal. About 31% of the craft 
employees were black during the decade at issue. FF 87a.

The Court found that "craft lower-level vacancies are filled 
by a bidding system principally based on craft seniority pursuant 
to collective bargaining agreements." FF 21. Although employees 
claiming they were denied promotions to craft positions are within
the class described by the Court's Judgment, there are, with one

1/exception, no findings which would relate to promotions or job
1/ The exception concerns Rural Carriers, who are craft employees 
represented by their own collective bargaining agent, the National 
Rural Letter Carriers Association. FF 22, Px 8. Although the 
Association was not a party to the action, the Court found that 
its collective bargaining agreement discouraged black employees 
from transferring into the craft by requiring such transferees to 
start at the bottom of the Rural Craft seniority roster. FF 108. 
Nothing in the record suggests that the seniority agreement was 
not bona fide. See Tr. 43, 569, 812.

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assignments within the crafts —  presumably because at trial the 
Plaintiffs disavowed any intehtion to press such claims. Tr. 871.

Positions outside the crafts are for the most part what the 
Court called "higher level" positions. Prior to 1973, these posi­
tions were at level 7 or higher. In 1973, all such positions were 
given new level designations. Thus a level 7 foreman would have 
been redesignated as a level 15 foreman, and known as such there­
after. The Court found that all positions at level 7 and above 
after 1973 were higher-level positions. FF. 22-24.

The bulk of higher-level positions were initial-level super­
visors. Id. For present purposes, it is useful to treat those 
positions as a distinct sub-class, as applicants for initial- 
level supervisory positions were required to qualify on one of 
four written examinations. FF 32, 35. Three of those examinations 
were not challenged by Plaintiffs at trial. Tr. 464. The Court 
found that the fourth examination, 0/S 100, had a disparate impact 
on blacks which was not justified by business necessity. FF 37-64. 
The Court did not distinguish between the several versions of 
O/S 100 which were used by the Postal Service during the years 
at issue. See, Pp. 14-15, infra.

After the effective date of §717 of Title VII, the Charlotte 
Post Office filled 19 initial-level supervisory positions for which 
O/S 100 was required. Five of those nineteen promotions were award­
ed to blacks. Tr. 749. The examination was abandoned in October, 
1976, and replaced with a new procedure, referred to at trial as the 
"interim procedure." FF 68. Although the Court suggested that the

-8-



interim procedure was discriminatory,, FF 70, blacks obtained three 
out of the four promotions awarded under it. Dx. 38. In 1978, a 
third procedure, known as P.A.S.S., replaced the interim procedure. 
FF 70a. The Court did not find P.A.S.S. discriminatory. Id.

In addition to initial-level supervisors, the Charlotte Post 
Office has other higher-level employees, either in technical 
positions or in managerial positions, the latter being positions 
in which the incumbent supervises supervisors or other managers. 
Those positions are normally filled by soliciting applications 
from employees in the Charlotte Post Office. However, in the case 
of managerial vacancies, applications may be solicited throughout 
either the eleven states comprising the Southern Region or the 
United States. Personnel specialists in Charlotte then screen 
the applications and forward the names of qualified applicants to 
promotion advisory boards, which are composed of supervisors chosen 
by the Postmaster. The boards review the applications and recommend 
several candidates to the Postmaster, who selects one. FF 72.

The Court seemed to find that obtaining "a satisfactory test 
score" was an unwritten requirement for all higher-level positions 
and not just for certain initial-level supervisory positions. It 
further implied that the score had to be on the single test it 
found illegal - O/S 100. FF 31. But the record will not support 
anything more than a finding that passing O/S 100 may have been 
useful to applicants for certain unspecified non-supervisory 
promotions. Thus one finance position required applicants to 
have a certain amount of specialized experience, but allowed

-9-



applicants to substitute a passing score on "(1) Postal Super­
visory Examination, (2) Federal Service Entrance Examination, 
or (3) Postal Inspector Examination" for some of that experience.
Dx. 12, Exh. 1, p. 3, see, Tr. 599-600. In another position, no 
such substitution was allowed. Dx. 12, Exh. 2. There is no finding 
that the ability to substitute examination scores in certain situa­
tions had an adverse impact on blacks as a class.

It should be noted that not all promotions in the Charlotte 
Post Office were made by the management of that Office. For exam­
ple, when Chisholm applied for the position of Manager of Budget 
and Manager of Accounting and Reporting in 1974, the Charlotte 
Postmaster was not consulted about the promotion, as it was filled 
by someone at the District Office. Tr. 650. The Court's findings 
do not provide a basis for determining which higher-level positions 
were filled by management in Charlotte and which were not.

The Court made two statistically based findings concerning 
promotions to higher-level positions after the effective date of 
§717 of Title VII. First, Findings 27 and 28 indicate that 10 (8%) 
of the 124 higher-level employees at the Charlotte Post Office were 
black in 1972, that 13 (10%) of the 136 higher-level employees at 
the Charlotte Post Office were black in 1973; and that in 1975 16 
(15%) of the 107 higher-level employees in Charlotte were black. 
Thus, the higher-level workforce dropped by 27% between 1972 and 
1975, while black participation in that workforce rose by 60%.
FF 27, 28.

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Second, Findings of Fact 83-87 show that blacks obtained
2/

5% of the higher-level promotions in 1972, 10% in 1973, 13% in
1974, 12% in 1975, 9% in 1976, and 30% or more thereafter. FF 83-
£T7. But, an examination of the cover of Plaintiffs' Exhibit 5 _
the sole basis for those Findings -- shows that the personnel
actions set out in the Findings are not all "promotions." Rather

3/
some are new hires, and others involve the reranking of positions 
with a consequent increase in grade for the incumbent. Yet others 
involve lateral reassignments of employees from other post offices 
into Charlotte. FF 75. Such transfers, known as "excessing," are 
made when one post office has a vacancy and another has excess em­
ployees. The post office to which the employee is transferred has 
no choice in the matter, as the decision to transfer the employee 
is made by the District Office. Tr. 659-660. The statistics relied 
on by the Court in Findings of Fact 83-87 are therefore not reliable
indicators of what the management of the Charlotte Post Office _
the management charged with discrimination by Chisholm —  would do 
when offered an opportunity to advance an employee to a higher grade 
U  No distinction is made between pre-Act and post-Act promotions.
_3/ The Exhibit may have been compiled before hiring claims were 
excluded from the lawsuit.

4/

_4/ For example, Finding 86 suggests that in 1976 the Post Office 
promoted one black and eleven whites. FF 86. However, the 
underlying data in Plaintiff's Exhibit 5 reveals that five of 
the whites "promoted" were actually lateral transfers from other 
post offices. A sixth "promotion" turns out to be a lateral re­
assignment within the Post Office. Therefore, although Plaintiff's 
Exhibit 5 does not indicate the nature of the remaining personnel 
actions, it shows that the management of the Charlotte Post Office 
had at most only six opportunities to advance employees from a 
lower grade to a position at level 7 or above in 1976. One of 
those positions went to a black and five went to whites.

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To recapitulate, the Court's findings and record evidence 
reveals that promotions and transfers within the crafts are for 
the most part governed by negotiated seniority agreements; that 
candidates for initial level supervisory positions were, through 
1976, required to qualify on one of four written examinations, one 
of which was found to have an adverse impact on blacks; that new 
procedures for selecting initial-level supervisors were developed 
in 1976 which did not involve use of written examinations; and 
that these 1976 procedures were again replaced in 1978. Those 
findings and record evidence further reveal that candidates for 
most other positions were recruited from either within the Char­
lotte Post Office, from post offices within the Southern Region, 
or from post offices around the country; that applicants found to 
be qualified would be considered by promotion boards; and that the 
boards would forward several names to the Postmaster for selection 
Uncontroverted evidence in the record also reveals that there were 
an unknown number of higher-level positions in Charlotte which 
were filled by Postal Service officials at the District level, 
either through promotions or through the reassignment of indivi­
duals from other post offices to Charlotte.

b. Details. In addition to considering the Postal Service's 
promotion practices, the Court considered the related problem 
of "detailing," the filling of vacant positions through temporary 
assignments. Details are generally made by initial level super­
visors, and top level management rarely becomes involved. FF 89. 
Although the Court found that plaintiffs were unable to show that

-12-



details were given in disproportionate numbers to whites after 
April, 1973, FF 98, it inexplicably found for class members with 
detailing claims after that date. Conclusion of Law 13. Its 
finding that the Plaintiffs had made a post-Act case for the 
period prior to April 1973 rests on evidence that blacks obtained 
20% of all details in 1973 and 16% in 1972. FF 96(f) , (g ) ♦ The 
Court recognized that details could be for short, as well as long 
periods, but did not require Plaintiffs to distinguish between 
short and long details in their statistics or between qualified 
and unqualified applicants. FF 94.

c. Discipline. The Court's findings on discipline appear to 
relate exclusively to craft employees subject to collective bar­
gaining agreements. FF 100. Those employees are subject to 
"a series of various disciplinary steps of progressive severity," 
ranging from oral counselling to suspensions and discharge. FF 
100. The agreements provide for a procedure by which an employee 
may grieve a disciplinary decision and seek binding third-party 
arbitration. Px. 8, § 16. An employee entitled to veterans pre­
ference is also able to challenge a disciplinary decision in an 
administrative proceeding before the Merit Systems Protection 
Board. 39 U.S. §1005(a)(2), which makes the provisions of 5 U.S.C. 
§§7501, 7502 and 7701 available to Postal Service employees who are 
preference eligibles.

Chisholm was disciplined in either 1970 or early 1971. J7F . 
110. There was no finding that any intervenors were disciplined.
FF 111, 114, 117, and 121. Class member McGill, a union officer,

-13-



■ ' , eSUfied that whenever ^
Proceedings that discipll S abl° tQ establish durl
U,an “Mtes. the p „ ^  b1̂  had been „ ^  9 M ««
or reduce it/''°St °£flCe WOUW  deep the dl« erent

± £ • 4 2 4 - aiSciPlinxr 
inferred that th7Ẑ7~. FF l2fi
such cl • 1 Iingness of th The c°urtClarms „as ey the Post 0ff

°ne a class „ discrimination pp C™Promlse
another class G a i n e d  that „ ----~  In at Jeast

Iass member ~ he was die- ,
£LA24 „ith Tr_ 50Q lpiined ^

a- Waintiff chl

The c°u“  ^  that Ch.
££_iiO. 0n several occasio Chlsholm „as

pa«  o/s 100.. “ ;;; pre~Tiue v«  iocidontbset.ween 1968 a n d « » .

Ia''SUit ^  would aPPea-  *> have i ^ ’6*
given in 196„ 9' However th s for the968 was not the ' the 0/S loo „

hCOVered ** th-  lawsuit J r 1" " 10" d« « g t h e T nati°n
r M  been developed by ^  fa^ d  an

°PJaCed ^  1970 “ith a new ^  ^  0“ 1Ce DePartment
“ ntr—  In 1974 examination developed b ^
^ 1 ^ 5 7 7 .  The ' "W  °/S 1,1 y a  Private

the —  e.aminat:;; T  a„y

any m°ro ^ Z Z l

^  —  -  -  trom the 1 9 7 ^  ■1974 e^ inati
* ^ £ 749.-14-



to each other than examinations not attacked by Plaintiffs.
Chisholm passed the 1970 version of the O/S 100 examination. 

FF 110. He thereby qualified for promotions and details to 
initial-level supervisory positions, but not for technical posi­
tions, such as those in the Finance Department. FF 34, 35. In 
late 1971 or early 1972, he applied for two technical positions, 
Finance Examiner, level 9, and Budget Assistant, level 8. The 
promotions were awarded to two whites, Wallace and Holland, 
respectively. Chisholm was not interviewed for either position 
because of his lack of experience. FF 110. An administrative 
hearing officer subsequently determined that Chisholm should have 
been interviewed for the Finance Examiner's position because 
"there was an inconsistency in the application of qualifications 
standards by the Personnel Office of the Charlotte Post Office." 
The Postal Service accepted that finding.

However, there was no administrative finding or evidence at 
trial to support the Court's conclusion that Chisholm was the 
best qualified applicant for both positions. In early 1972, ali 
of his experience with the Postal Service had been as a city 
letter carrier. Tr. 103. Holland had been a Postal Source Data 
Technician since 1969. Wallace had been promoted to that some 
position in 1970 -- after four years as an accounting clerk fol­
lowed by two years as an accounting technician. Dx 12. These 
were positions in the finance section, which involved working 
with financial records. E.g. , Tr. 170, 350, 352, 591. Chisholm

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was therefore less qualified for the positions he sought than
Holland, Wallace, or other applicants with finance experience,- 
but this unrebutted testimony was ignored by the Court.- Tr.

7

818-819. There is no factual basis for the Court's finding that 
Chisholm lacked the experience he needed to compete with Wallace 
and Holland because his race prevented him from obtaining details 
within the Finance Department. Rather, the only inference Chis­
holm's testimony will allow is that the Postal Service detailed 
people to higher-level finance positions from lower-level finance 
positions and that Chisholm did not obtain those details because 
he was a letter carrier. Tr. 163-164, 170-171. Chisholm admitted 
at trial that he had not made his interest in obtaining finance 
details known prior to his applications for the two positions.
Tr . 171.

The Court also found that Chisholm was also denied several
high-ranking positions in the Finance Department in 1973 and 1974.
The Charlotte Finance Department was at that time undergoing
something of a crisis. A new Postmaster, Sloan, had been told
27 Intervenor Lee and Class member Richardson were also candidates 
for the Finance Examiner position. Had the matter of who was best 
qualified been referred to a master, both men would have had color­
able claims that they were better qualified than Chisholm. Tr. 
589-590. However, Plaintiffs pursuaded the Court to award the 
position to Chisholm. While Intervenor Lee must be presumed to 
have abandoned his claim to the position, it appears that class 
member Richardson would have preferred to have had his interests 
represented on this point. Tr. 608-611.

8/ Defendant's Exhibit 12 shows that of the twelve applicants 
who competed for the two positions, five -- Warfel, Brawley, 
Holland, Wallace, and Chisholm —  would, before the date of the 
trial, obtain higher-level finance positions. Of those five, 
only Chisholm did not first fill a lower-level finance position.

-16-



d j
**'

*.;
«*- * r.x -

202aS7 S thG reSP°nSlbilit5' £"  ^  finances of the hitherto 
independent post offices in the Sectional ^  ^  ^

>e finances of the charlotte post of£ice_ ^  ^  ^

the records of those post offices had t„ hices had to be audited and a million
missing dollars accounted for The dfor. The Postmaster's problems were
compounded by the fact that a number of people in the pre-easting

lr  "  in Charl°tte had le£t -  —  Office. Thus, he later testified, "the management of rthe fJ In°nt of [the finance function] at
that time was just in chaos." T r ^ 4 5 ^ 4 ^ 6 6 5 ^ .

juncture that Chisholm apparently decided that

h; V“  3 tOP—  —  -  Department.^ hccordingl
the P°St“  advertised for applicants for the level 2i '

Position of Manager of finance, in M e m b e r  of 1973, Chlsholm
^PPl J . He then had  ̂i l „.c c

°f 5 ”°nthS «P«ience in a financial 
Position as a result of a detail. Tr 105 He

Lt— 10_5• He was interviewed
y a promotion advisory board which found his knowledge to be
ellent m  some respects and acceptable in others buti-iiers, but GxprGs^pH

concern about its narrowness and his h
. and hls having never held an inter-

mediate financial position Py i-Lion. PX_18-12. The Board eventually
ranked him third in a list of applicants. id. a t 20-2l. The
irst ranked candidate was a white named Ooiner, „ho was the 

ACt" 9 Mana9er °£ PinanCS in the Jacksonville, Plorida Post Office.

^a[ar™eJ^ate‘level^ls'position£in£th°e o££ered Chisholm an 
relief ordered in the administrative®.-, °££lce Pursuant to 
the position because he preferred to ?roces7  Chisholm declined 

from the administrate p t e t t  f ^ 106.
-17-



Id . at 9. Joiner was selected, but chose not to come to10/

Charlotte. Tr. 111.
The still vacant level 21 position was not filled. Its func­

tions were divided between two new level 20 positions, Manager, 
Accounting and Reporting Systems, and Manager, Budget and Cost 
Analysis. Chisholm applied for both positions. Tr, 112. At 
trial, the Postmaster testified that he believed Chisholm had not 
been ready for the responsibility of either position, as "we really 
had a mess in the Accounting Office" and needed "people with a lot 
of experience to run these things and straighten them out." Tr. 
649-650. See, also, Tr. 640. However, both positions were filled 
by the District Office, and the Charlotte Postmaster was not in­
volved in the promotion process. Tr. 650. One of the positions 
went to a white named Gearen, who had risen from accounting clerk 
in 1959 to the position of a level 18 Manager of Mail Processing 
in Daytona Beach, Florida at the time of his selection. Tr. 790- 
792, Px 19-18. The other went to a white named Pollard, who had 
risen from the position of accounting clerk in 1958 to a level 18 
Budget and Accounting Assistant slot by 1973. Tr . 7 8 8-789 . The 
Court nonetheless found that Chisholm should have been awarded 
all three positions, and ordered that he be made whole for losing 
the level 21 position which was never filled. FF 110.
10/ Neither Chisholm nor Joiner held regular positions within six 
grades of the level 21 position, and both were therefore ineligible 
for promotion under Postal Service regulations. This was true 
even though Chisholm was an acting level 15 and Joiner an acting 
level 20. The Postmaster therefore had to seek a waiver from higher 
authority before he could appoint Joiner. Px. 18 at 14, 20, 22.

-18-



b. Intervenor Rickett. Rickett did not testify at trial,
and the Court made no findings as to him. Defendants do not know
if Rickett has specific claims which were preserved by paragraph11/10 of the Court's Judgment.

c. Intervenor Lee. In 1968, Lee was detailed to a PSDS 
Technician position "with", as the Court noted, "no change in his 
rate of pay." FF 117. This was because he was already earning 
the appropriate rate of pay. Tr. 368. In 1969, he was, as the 
Court found, denied a PSDS Technician position. FF 117. However, 
his counsel affirmatively stated at trial that he was not claiming 
the position was denied because of his race. Tr. 367. As of 1971, 
he had never received a detail to an Accounting Technician's posi­
tion and was denied a promotion to that position in favor of someone 
who had received such a detail. His only post-Act claim appears to 
be that he was denied a promotion to a Senior PSDS Technician posi­
tion, level 7, in 1972. FF 117. He filed an administrative EEO 
complaint, but withdrew it upon being offered what turned out to be 
a seven-month detail to another higher-level position. Tr. 369-370. 
The Court found that Lee was denied that promotion and various un­
specified details-because of his race. FF 117. There is unrebutted
testimony in the record that the successful applicant for the promo-

12/
tion was more qualified than Lee. Tr. 808-809.
11/ "All plaintiffs and class members . . . will be entitled to
present any additional claims not presented at trial . . . before
the mas ter . . . ."
12/ The record does not exclude the possibility other class members 
might have wanted to compete for the position. Nevertheless, Lee 
was not willing to have his claim referred to a master to deter­
mine who would have obtained the position. Instead, he persuaded 
the Court to find that he would have been the successful candidate.

19-



*uxtt

d. Intervenor McCombs. In 1974 McCombs was detailed to the 
vacant position of Assistant Station Manager, level 15. He was 
ineligible to fill the position permanently, as he had failed 0/S

13/
100. The vacancy was eventually filled by a white. Tr. 285-286. 
in 1974 or 1975, McCombs applied for a level 13 position as Customer 
Services Representative, but he was not among those interviewed.
The Court found that the position was awarded to a white with less 
seniority in the Postal Service than McCombs, but made no finding

14/that seniority was a requirement for that position or that McCombs 
was better qualified than the white employee. FF 113.

In 1975, McCombs, then a level 5 clerk, determined that the 
University Park Station where he was employed should have a level 
6 Window Services Technician position. Arguing that he was doing 
the work of a level 6 Technician, he filed a collective-bargaining 
grievance. Tr. 287-288. Local Management agreed with him and sought 
authorization from Regional Headquarters in Memphis to create such 
a position. Tr. 288. In the interim, McCombs' grievance was

13/ Although the issue of whether McCombs' inability to pass the 
written examination had cost him other promotions was referred to 
a master, the Court, at McCombs' urging, found that McCombs was 
entitled to relief as a result of having failed to obtain the 
level 15 position. FF 113. Thus McCombs, like Chisholm, and 
Lee, used his position as a plaintiff to ensure that class members 
could not compete with him for a promotion once he had purportedly 
shown that they were all the victims of racial discrimination.
14/ The successful applicant was a white named Livingston. Tr.
281. Rushing also lost a Customer Services position to a man 
named Livingston and it is therefore safe to presume that both 
McCombs and Rushing were candidates for the same position.
Tr. 796. The Court found that Rushing would have obtained the 
position but for his race. FF 111.

-20-



satisfactorily resolved by giving him a level 6 detail pending a 
decision by Memphis. That decision was ultimately negative, and 
McCombs was returned to a level 5 salary. Tr. 288-289 . The Court

15/
found the Memphis decision was based on race.

e. Intervenor Yongue. The Court found that Yongue was denied 
the positions of Postal Systems Auditor in 1973, Postal Service Exam­
iner in 1974, and Accounting Assistant in 1975. FF 121. In each 
case, Yongue testified that he was best qualified for the position
at issue and postal Service witnesses testified to the contrary.
Compare, Tr. 470-474 with Tr. 809- 810. Yongue also testified that
if he was not the best qualified, it was because he was unfairly
denied details. Tr. 473-474. One of the Postal Service officials. 16/
who denied him those details was a class member. Tr. 473-474.

f. intervenor Rushing. The Court found that Rushing had
been discriminated against on several occasions prior to 1972.
157 A postal Service witness testified that Memphis would make such 
decisions on the basis of, inter alia, the size of the station in 
question, the number of employees involved, the amount of revenue 
taken in, and the number of window transactions. He also testified 
that other stations of the Charlotte Post Office were without 
window technician positions. Tr. 660-661. The Court, however, 
found that "other small stations comparable to the University Park 
Station were assigned a level 6 Window Service Technician position", 
and held that the only explanation for the Memphis decision is the 
fact that University Park Station services a black neighborhood.
FF 113. No evidence was offered to support the finding that compar­
able stations had Window Service Technician positions or that 
officials in Memphis knew that the University Park Station served a 
black neighborhood.
16/ Like Chisholm, McCombs, and Lee, Yongue was unwilling to rest 
his primary case on a finding of class-wide discrimination and 
leave to a master the issue of who should obtain relief. At his 
urging, the Court found he was entitled to relief for losing the 
level 15 position. It did not find that no other class member 
had a competing claim for the position.

-21-



0ne such act incc involved u •

:: tec n r day—
Service.,,. °mplai"t on that '---- ~ R ushl "9 filed
fore thV  deCl—  -  * U d  Ja °C°aSi°" -  ^

active date of ^ 8' 197 2. 57 d.
^  1972 Needments t a y s 1b-

The iS71 d , VII- ~
Suddreth lh 1 de"ied Rushing „as

" — c  — .-" r .  t -*-—
beiievetd, it IO" Ma"a9er. Tr ? S“ lon °f

baSGd on the promotion ° ’ ’ ’ Pr°Vlde dachpay t ^
£ U i i .  No thing • 3 SUddreth received'' bet ° RUShi"9n i n 9 in the v-n between 1971 18/1971 three record suggest 971 a"d 1979.— '

three-month detail 3 °°nnection k
In 197. and Sudreth'3 sub„ Ween the

itepres *U“W n 9  apP ^  for a ^ o t i o n c . ^ 7
Presentative. He „as /  * as Cus

c°nsistin erviewed hv Services

^  ■ - •” -  ■— i::r*“ — - -
refer to . Cô IFt̂ — j — v—

^ r° - a- yc i S S ^
T^ s  Rushin ~~~-- ^ - ^ £ ^ 2 2 0 .  °f the Office of J" theSUaded the r ?  ng' like Chio, "  f Egual

cinatUled to °eiriefthat he' ^ t h e r ' t ^ '  M^ o mbs „

■ srr*  ■" s - s S " - ' -Pushing to * testifU9b the Court
,the promotion, y ab°ut the made dear th „

is
-22-



“ vin9ston "as ths b- t  9-lified applicant.
selected Livingston. ^  ^  — tet then

"as not selected because of hi °Utt thou9ht Rushirr nis race. FF j,,
conclusion because u ------* 1 reached thisause two members of the boar^ < •. •
in9 OVer Li-"93ton. Tt. 6„ . 670 The ni lally faTO£e<1 «“-h-
ptefetred Livi„gston, was ^  ^
knowledgeable about the r , S °met Servlces and mot.uuc the Customer Service
board members Tr rfiq ' ^tio n ' t h a n  the other

—  r  to~ -
anVU.lng but convince his colleagues that h T Z  ^  ^

rati09 —  — g. Tr. 669.670 ai7  7 “ “* *>'
^ e  class member on the Board, t e s ^ 7 T ~  °U9 RlCha£dS°n'
tif£s disassociate himself f ' 9 ^  by Plai"-
bivingston be selected. Tr. 614 I23 n°a^ ' S n that

°f the 3 of the B ^ r ^ r : a; ; e court’s finding that "2
cannot stand in view Gf th . 3 UShlng WaS better qualified"
be appointed. * °ard'S “eCOnimendation that Livingston

Iv« ARGUMENT
A. The_District Court Frm *  •

20 The C°—  — ould award b e l i e f  in this case

I S 5 S S  F traâ “ lt- " " a Ci1idoefIwnhto " en0r
a"a£dsd to them. that “ ‘M  have'"been



SU3nt t0 the Fiffch Amendment
inclusion of La„ 10_ ' ' ‘ t0 June 27, l970.„ 2i/

■ l8 encompassed wlJ n ^  -Chisholm.
1,19 °n “ e effe«ive date of the i972e VI1' lnaS“ Ch aS 4t « •  Pend 
^  497 *>2. 704 (4th Cir. W 7 4 ;mend,"entS'" V.

re'"edieS °f TiW e  VII -are . ' £22£iHSi2njofjia!1_9. Bu,
covered bv n *. lusive when . f

y that statute see* to redress th . ' ‘ 1 ei"Pl° ^
^  Davisv GSS -Olation Of rights gua

,1979’- C—  -aim U 2  a'S-

COUld n0t —  th. Fi£th Araondrae; ̂  TltiP -  -  therefore
820 Ci976,. • *  V, css, <25 0 ^

Even if Chisholm could h„ .
this action, the c the Due Process Cl' thG Cou t̂ could not h Clause in
to March of l970. slnce W  rly awarded relief back

complaint procedure for federal ^ 1,35 *" ad”lnistrative

nation — • * c , „  SS7;;:2:;:;;r- -  — t a w . , .
W1Shl"9 tQ file notions under the Plfth U970)’ Fedei:al eraPl°yees 

were therefore required to t that

^pry----- —__  (i»th Cl  r.  19741 /21/ Th;T7>̂ Tp̂ ~--p__  _ (en

Defendants other'than^th" ln ndjudicatinc, Cl. '

-• c: m :  »  a *  v f ' ^ i H g :
-24-



banc), adopting dissent to panel decision at 490 F.2d 700, 707- 
714 ( 19 73 ). See, Weitzel v. Portney, 548 F.2d 489, 492 (4 th
Cir. 1977). Moreover they were required to do so within 15 
days of the effective date of the personnel action they wished 
to challenge. 5 C.F.R. §713.214(a)(1)(ii)( 1972). When Chisholm 
began the administrative proceedings which gave rise to the law­
suit, employees with race discrimination claims more than 15 days 
old were therefore time-barred, and Chisholm was therefore unable 
to represent them. Eg., Wetzel v. Liberty Mutual Insurance Co.,
508 F.2d 239, 245 (3rd Cir.) cert, denied, 421 U.S. 1011 (1975); 
Valentino v. USPS, 25 FEP Cases, 24, 51 (D.D.C. 1981) (App. pending).

Moreover, if Fifth Amendment jurisdiction had existed, the 
Court should not have exercised it. During the course of the 1976 
interlocutory appeal Defendants took in this case, Plaintiffs af­
firmatively conceeded that they would no longer pursue any claims 
save those under Title VII. Brief. Thus when the Postal Service 
obtained a voluntary dismissal of the appeal, it was entitled to 
believe that Plaintiffs had abandoned all non-Title VII claims.
The Postal Service was therefore prejudiced by Plaintiffs' eve-of- 
-trial announcement that they would, after all, pursue decade-old 
claims under the Fifth Amendment. By that time, few promotion 
files from the period still existed, Tr. 769, and there was no way 
of fully analyzing the Post Office's promotion system prior to the 
effective date of Title VII. Tr. 564-565. This was a situation 
in which "a party may not be 'entitled' to relief if its conduct of 
the cause has improperly and substantially prejudiced the other

-25-



VI
•<

i

PaEtY-" ^ ^ _ £SP ^ C o i v. Mooa^. 422 „.s. 405_ m  (i975)_

2' I!lVEE™^iEilM2̂
Section 706(g) o£ Title VII provides.

Sha“  fl°m 3 datP -  ^  -  - a  1o the filing of a charge with the [Equal
Commission." mho pa, , nity]* Ine Court concluded that ,that thls ianguage authorized it

iu icate claims arising as early as March 24, 1 9 7 0 ^onclu

But c“  -  • p ^ ti£f subject to the^ a 
ons pec lod of 5 C.p .r . S713.214, a, < I, , i t, , 1972). The

° 9.ther0f°re “  *  ™  —  IB1. that defenda ts

made the suhioot- . . , not
Ino r ^  admini« » t i v e  claims. United
Inc. , v. Evans, 4 7 1  ri c nr--> --------- -----—  r -il U.S. 553, 558 (19771 Tf _ , .' 7' * IC a black failed to
complain that to was denied ptomotion, oc a tcansfec to the Ratal

: i ; r r  °n a p i u  ^ - — — —
WP ^  ^  Y —  ̂  C.P.R. 5713.21 4(a) (ii)

f ~  V- “ * *  a a a .  5., at m
If 5706(g) could subsequently cesurcect th
treat a Title VII cl • th™' no defendant could

II claim as time-barred unt-ii *-

last date on which an ad • • WO YeatS th®an administrative claim could be filed. But,

.23/ But cf . , Pat ter con—77--T
W 7 <4th cTr.' l ^ r t ^ b a n c ^ — ^ e U ^  24 PEP Cases 531 

by purposefully £xclSlngrNegrSes‘■ »^ ^ ^ " ^ H - S h i t e ^ ^ I o ^ e 1*

-26-



v. Evans, supra.see, United Airlines, Inc.,
Plaintiffs in this case are not challenging a single, 

unvarying policy which, if illegal on one occasion, was neces­
sarily illegal on all. Compar e, e. g. , City of Los Angeles v. 
Manhart, 435 U.S. 708 (1978). Sectin 706(g) is being used in 
this case to challenge discreet acts, any of which may have been 
lawful or unlawful. It is patently unfair to first assure the 
Postal Service that it need not preserve evidence pertinent to 
a March 24, 1970 decision for more than 15 days, and then, two 
years, later, require it to show that the 1970 decision was not 
subject to a discriminatory policy.

B. The District Court Erred In Finding That
Plaintiffs Had Established Their Class Claim. 1

1• The Statistical Evidence Does Not
Establish that Blacks Here Subjected 
to Discrimination in Promotions.

Examination O/S 100 was the only personnel selection instrument 
found to have an adverse impact on blacks. Conclusion of Law 14. 
Therefore the suggestion in paragraphs 10 and 17 of the Court's 
Judgment that any selection device other than O/S 100 is illegal 
is patent error. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 
(1975). Moreover, the conclusion that O/S 100 was illegal is also 
error. The Court focused on "the relative passing rates of black 
and white applicants." Conclusion of Law 14. But it should have 
looked to the relative selection rates of blacks and whites. Fr iend 
v. Leidinger, 588 F.2d 61, 66 (4th Cir. 1978). Between the effec-

-27-



tive date of Title VII and the date 0/S 100 was abandoned, five 
blacks and fourteen whites were promoted to positions for which 
O/S 100 was required. FF 68, 88. Therefore, the test was not 
illegal. Moore v. Southwestern Bell Telephone Co., 593 F.2d 
607, 608 (5th Cir. 1979).

The Court also concluded that between March 1970 and the date 
of Judgment, the Postal Service practiced a policy of deliberate 
discrimination. Conclusions of Law 11, 11a, 12, and 15. It based 
this finding in part on the fact that blacks are more heavily re­
presented in the Charlotte craft positions than in the positions 
immediately above them. Conclusion of Law 11. But the signifi­
cance of that discrepancy depends on the Court's subsidiary con­
clusion that the Postal Service failed "to demonstrate that there 
exist special qualifications for those higher-level positions."
Id. If the Court erred in finding that no such special qualifi­
cations exist, its statistical analysis is legally inadequate.
EEOC v. United Va. Bank, 615 F.2d 147, 149-150 (4th Cir. 1980.) 
(Plaintiff "failed to present any evidence as to the percentage 
of persons qualified to hold the various positions at UVB.")

The Court's own findings bely its conclusion. For example, 
the significance of class member Jones' promotion to an Electronic 
Technician position is discounted because the position was "spec­
ialized" and "outside the normal USPS promotion ladder." FF 86d. 
But Plaintiff's Exhibit 5 makes clear that one or more of the 
promotions analyzed by the Court for each of the years 1972, 1973, 
1975, 1976, and 1977 involved promotions to that position. Px 5.

-28-



-•**. K f. .v xtrtJt

Similarly, the Court found fhaf ^
• ,. Class member Holman had the spec­
ialized experience to be a Drive*- T P

Instructor Examiner. ff 114
Moreover, the Court found that th ----~
fn „ ' three examinations which were not
found to be illegal were used to fill i ■• ,
poSition - 7 initial-level supervisory
in ^  an0thSr UnChallen9ed examination was used

:nn;;rn with ths ~  -  —  - alyst POSUton.
-----<See’ alS°' testim°n5' °£ — -enot Rushing that h0
passed "the accounting technioiy technician exam." Tr. 214 1 a 
1-pcj. _ _  ----———' ) A passing
regulrem 8 °n thOSG UnCha“ en9ed eXaminations is a legitimate 

£0t U’'3 Positions they ate used to fin.
It is also cleat ftom Plaintiffs. Exhibit 5 that many 

technical positions were filler)
fh „ Uled evecy ^ ar which "the fact
a special -lifications . . . exist (is, . . . m a n i f e s t , ^

~  U; 610 F.2d 178, i85 (4th cir.
ese tacude the linance positions which figuted so prominently ^

“  tl9atl°n- «  -  615 E.2d at 153
stmply not realistic to say that evety membet of the labot

r  haSthC 9UallfiCati0-  -  -  —  - n e t  fot example, n
lhS POStal S6rViCe did n0t -ny such presumptions,

only two of the examinations after

CTeatXytspel?!}liJnpi*^, the ^  °“ ic® fill£?d the following 
Vehicle Maintenance AnaJvnt- w Budget and Accounting Assisting
Budget Assistant; ? h t e f o ^ l u p ^ L T ^ c n " 103''.
tv°o S“pp"yC°ff

.

-29-



but offered unchallenged testimony that such requirements exist.
26 /

E.g. , Tr. 635 , 649-650 .
The Court also concluded that the "practice of limiting upper- 

level management positions to those employees, almost exclusively 
white, in the next lower supervisory levels" was discriminatory. 
Conclusion of Law 11a. But the Court itself found that management 
vacancies "are circulated throughout the [thirteen-state] region of 
which the Charlotte Post Office is a part and sometimes even nation­
wide". FF 25. There is therefore no evidence which would support 
a finding that the employees in the next lower supervisory levels 
from which upper-level management was drawn are exclusively white. 
Moreover, even if there were, the Postal Service would not have 
been required to recruit its upper-level management from craft 
positions. "One does not look for supervisors at the bottom rung 
of the ladder; it is at the top where any search may be expected 
to produce fruitful results." Hill v. Western Electric Co., Inc., 
596 F.2d 99, 105 (4th Cir.), cert, denied, 444 U.S. 929 (1979). A 
fortior i, one does not look for high-level management at the bottom 
of the ladder. See, Tr. 650. The Court's indiscriminate use of 
promotion statistics accordingly cannot support its conclusions.

The Court's own findings defeat Plaintiffs' case. In order
26/ The Court thought that Defendants' rebuttal burden required 
them to prove non-discrimination by "clear and convincing evidence." 
Tr. 948. But Defendants were merely required to provide a non- 
racial explanation for the perceived statistical imbalance. See, 
Texas Department of Community Affairs, v. Burdine, 49 L.W. 4214 
(March 4, 1981). It was Plaintiff's burden to show that racial 
considerations were the most probable cause of that imbalance.
See, Id., EEOC v. United Va. Bank, supra, 615 F.2d at 150.

-30-



to prevail, Plaintiffs were required to show a "'pattern or prac­
tice' [of discrimination], followed as the employee's 'regular or 
standard operating procedure,' v/hich so demonstrably treats blacks 
in relatively unfavorable ways that it justifies an inference that 
it proceeds from an intention to treat them differently because of 
their [race]." Stastny v. Southern Tel. & Tel. Co., 628 F.2d 267, 
273 (4th Cir. 1980). But no "regular or standard operating proced­
ure" could have produced a situation in which, the Court's findings 
show, the percentage of higher-level positions at the 7-17 levels 
held by blacks rose from 5% to 15% between 1970 and 1975. When the 
absolute number of total positions at those levels increased by 10% 
between 1972 and 1973, the number held by blacks increased by 30%. 
Perhaps most significantly, when the absolute number of those posi­
tions declined by 21% between 1973 and 1975, the absolute number of 
blacks holding them increased again, by 23%. FF 27(d )(g), 28. A 
"regular or standard operating procedure" of systematic discrimi­
nation against blacks would not have resulted in blacks obtaining 
an ever-increasing share of a dwindling number of positions.

There is other evidence that no systematic policy of discrimi­
nation existed. As already noted, blacks who passed O/S 100 were 
selected for initial-level supervisory positions at rates compar­
able to their representation in the crafts. Later, under the 1976 
"interim procedures," they were selected in disproportionate num­
bers. Dx 38. Furthermore, there is no dispute that blacks received 
promotions at a rate the Court thought appropriate after 1976. FF 
86(d)-87♦ Indeed the Court itself acknowledged "that there were

-31-



in recent years . . . promotions of both races roughly propor­
tionate to the make-up of the races in the whole employed body."
Tr. 724-725. There is also uncontroverted evidence in the record 
that, from among 984 applications for promotion, 7.7% of the black 
applicants and 8.5% of the white applicants were succesful in ob­
taining promotions, and that the difference in the promotion rates

27/
was not statistically significant. Dx 37. Blacks, who consti­
tuted 19% of the applicants obtained 18% of those promotions. Id.
In short, there is no trace of the purposeful policy of "systematic" 
discrimination which Chisholm was required to prove. Teamsters v. 
United States, 431 U.S. 324, 342 (1977.) Valentino v. Postal Ser­
vice , 25 PEP Cases 24, 51-52 (D.D.C. 1981) (App. pending).

2• The Statistical Evidence Does Not
Establish That Blacks Were Subjected 
to Discrimination in Detailing.

The Court found that Plaintiffs were unable to show a statis­
tical pattern of discrimination in detailing after April 1973.
FF 98. There is therefore no basis for the inclusion of detailing 
claims after that date in its Judgment.

The Court further found that blacks obtained 20% of all 
higher-level details in 1973, 19% in 1972, 18% in 1971, and 15% 
in 1970, without distinguishing between short details filled on an 
emergency basis and longer ones which could be planned for. FF 96. 
These statistical disparities are not so "longlasting and gross" as 
to be indicative of a systematic policy of discrimination. Team-

277 Forty-nine out of 150 promotion files were missing. Tr . 7 2 2.
-32-



sters v. United States, supra, 431 U.S. at 339-340, n.20. See,
Bar nett v. W.T. Grant Co., 513 F.2d 543, 549 ( 4th Cir. 1975).

A more fundamental error made by the Court is its assumption 
that no special skills exist for any positions in the Post Office. 
As in promotions, this is manifestly not true, and there is no 
reason to believe that a non-discriminatory detailing policy 
will result in blacks obtaining 30% of all details. The Court 
again failed to identify the proper applicant pools for details.

3. The Statistical Evidence Does Not Establish That
Bracks Were Subjected to Discrimination in Discipline.

The statistical evidence relating to discipline establishes 
that blacks tended to receive various kinds of discipline in pro­
portionately greater numbers than whites. FF 101, 102. However, 
there was no statistical evidence that blacks were treated more 
harshly than whites guilty of the same offenses. Moreover, the 
Court found that disciplinary decisions tended to be made by 
individual lower-level supervisors, FF 100, but would not consider 
the possibility that the differences in the treatment of blacks
and whites corrolated with the identity of the supervisor involved

28/
rather than with the race of the employee being supervised. Thus, 
it held that Defendants could not defend against the claim of class

28/ It is clear that blacks were not distributed uniformally 
throughout the Post Office. Defendant's experts were able to 
explain salary differences which seemed to corrolate with race 
by showing that they instead corrolated by craft. Tr. 862.
The question remains open as to whether the differences m  
discipline also corrolate with craft assignments or with 
other factors.

-33-



member Todd by showing that he and the white he was comparing him­
self with worked in different areas under different supervisors.
FF 103.

As Judge Johnson, now of the Fifth Circuit, has recognized, 
disciplinary matters are very difficult to treat in a class action 
setting. Browder v. U.S. Postal Service, 14 FEP Cases 1769, 1771 
(N.D. Ala. 1976). See, also, Alexander v. Gino1s, Inc. , 621 F.2d 
71, 74 (3rd Cir.), cert, denied, - U.S. - ( 1980). Cf. , Doctor v. 
Seaboard Coast Line, 540 F.2d 699, 706 (4th Cir. 1976). It would 
not be desireable for an employer to have a centralized and in­
flexible disciplinary system of the kind envisioned by the Court 
in 16 of its Judgment. See, generally, F. Elkouri and E.A.
Elkouri , How Arbitration Works, 643-644 ( 3rd Ed. 1978 ).

While the Postal Service would not argue that class relief
29/

is never appropriate in a Title VII discipline case, the un­
differentiated statistics in this record and the impact of the 
collective bargaining grievance-arbitration procedures, EEO pro­
cedures, and the Merit Systems Protection Board procedures on 
discipline in the Post Office make such relief especially inap­
propriate in the instant case. Furnco Construction Co., v.
Water s, 438 U.S. 567 , 578 ( 1978 ). ("Courts are generally less 
competent than employers to restructure business practices, and 
unless mandated to do so by Congress they should not attempt it.")
29/ A class action would be more likely to be appropriate if 
Plaintiffs could show the existence of a disciplinary rule 
adversely affecting blacks, or a practice of imposing disparate 
penalties on blacks and whites guilty of the same offense.

-34-



Congress specifically authorized the Postal Service to manage its 
own personnel matters. 39 U.S.C. §1001. It further authorized 
the Postal Service to bargain collectively with its employers 
over how this would be done. 39 U.S.C. §1206. The Court should 
not, on the meager evidence available to it, have undertaken to 
set those agreements aside and restructure the Postal Service's 
disciplinary system. See, Doe v. Hampton, 566 F.2d 265 (D.C.
Cir. 1973); Harvey v. Nunlist, 499 F.2d 335 (5th Cir. 1974);
Grover v. United States, 200 Ct. Cl. 337 (1973); Henley v.
United States, 379 F. Supp. 1044 (M.D. Penn. 1974).

4. The Non-Statistical Evidence Will Not
Support a criTin~of Class Discrimination.

In Teamsters v. U.S., supra, 431 U.S. at 338 , n. 18, a sta­
tistical showing of race discrimination was bolstered by the non- 
statistical testimony of witnesses that agents of the employer 
had, during the relevant time period, admitted the existence of 
a systematic policy of discrimination. Conclusion of Law 12.
The Court in this case held that Plaintiffs had bolstered their 
statistical case with testimony of isolated acts of discrimina­
tion, although it later suggested that it was the statistical 
case which bolstered the individual claims. Conclusions of Law 
12, 19. In any event, none of the individual witnesses were able 
to testify to the existence of the alleged policy, and even if—  
as the Court found--the individual claims are valid, there is no 
reason to believe they "rose out of the systematic policy of which

35-



the Teamsters case requires proof." Valentino v. USPS, 25 FEP
24, 52 (D.D.C. 1981) (App. pending).

Moreover, some of the Findings concerning the individual
claims are so improbable as to suggest that the Court misallo-

11/cated the burden of proof. For example, four out of nine 
promotions made from the O/S 100 register which expired in 1974 
were awarded to blacks. FF 88; Tr . 749. Neverthless, the Court 
found that class member Holman, who had twice previously passed 
O/S 100, reasonably believed it would be futile for him to take 
the new examination. FF 114. Similarly, class members Dixon and 
Harrison were found to have been denied the position of Foreman, 
Mails, in 1978 because of their race, FF 119, 125. But that 
position was in the group of initial-level supervisory positions 
for which three blacks and three whites were selected in 1978.

30/

3 0/ The only testimony cited by the Court similar to that 
cited in Teamsters was by Chisholm that a single member of 
a promotion board thought the number of blacks to be promoted 
should be limited. FF 114. The Court did not find that board 
member was speaking for anyone but himself. The incident hap­
pened in 1975, when, as noted earlier, the Post Office as a 
whole had suffered a loss of higher-level positions, accompanied 
by a gain in the number of blacks holding higher-level positions.
FF 27, 28.

31/ The Court appears to have required the Postal Service to prove 
that it was not motivated by racial animus. E.g., FF 116. ("The 
Postal Service has presented no evidence to explain any reason 
other than race" for Askew's promotion.); FF 130 (Because Manage­
ment could have waived a qualification requirement for class member 
McGill, its unexplained failure to do so was discriminatory.) But, 
SGei Texas Dept, of Community Affairs v. Burdine, 49 U.S.L.W. 4T24 
(March 4, 1981). When evidence in the record established the exist­
ence of a nondiscriminatory reason for a personnel action, it was 
ignored. Compare, FF 116 with PX 47, (EEO Report, Chesser Affi­
davit); FF 120 with Tr. 656-657.

-36-



FF 34, 88. Perhaps the Court's most anamolous holding was that 
Intervenor McCombs' failure to obtain a level 6 craft poposition 
is probative of the animus of Charlotte management. FF 113.
McCombs, himself, admitted that local management took his side in 
that dispute. Tr. 288. See, pp. 20, supra.

There is uncontroverted non-statistical evidence in the record 
incompatible with the theory that Charlotte followed a systematic 
policy of discrimination. Specifically, it is clear that Postmaster 
Sloan - presumably a key participant in any Post Office personnel 
policy - did not himself refuse to promote blacks. For example, 
in November of 1973, Sloan induced George W. Johnson to successfully 
apply from Atlanta for the position of Director of Finance in 
Charlotte. Tr. 632, 635-638. Plaintiff's counsel suggested that 
Johnson was pre-selected for promotion by Sloan. Tr. 637. Johnson 
is black. Tr. 655. As Director of one of the four administrative 
divisions of the Post Office, he reported directly to Sloan. Tr.
632. While it is not clear how many other blacks were promoted to 
top-level positions by Sloan, Plaintiffs did not dispute Sloan's 
testimony that over 20% of the people he personally selected for 
promotion were black, until new Postal Service promotion procedures 
allowed him to raise the percentage to 30 by giving him more dis­
cretion to determine the qualifications of candidates. Tr. 691-692.

Moreover, it is also clear that any policy of systematic 
discrimination in Charlotte had to be executed through class mem­
bers. As head of the Finance Department, class member Johnson was 
clearly implicated in any discriminatory policies practiced within

-37-



the department. Indeed, Intervenor Rushing named him as a discri­
minating official. Tr. 473-474. The findings that class members 
Little, McCullough, and Morgan were subjected to the policy impli­
cate class members Robinson, Jones, and Muldrow in its execution. 
Compare, FF 115 with Tr. 324; FF 123 with Tr. 493; and FF 124 with 
Tr. 500. See, also, testimony of class member Pettice concerning 
his involvement in discipline. Tr . 337-338 . So many blacks were 
involved in executing the alleged policy as to make its existence 
extremely improbable.

C. The District Court Erred in Certifying a Class.
1. The Failure of the District Court to Properly 

Certify a Class Prejudiced Defendants.

A Title VII class action case must be commenced with an 
administrative charge broad enough to prompt an investigation into 
all the practices which are to be challenged. See, Ray v. Freeman, 
626 F.2d 439, 443 (5th Cir. 1980). If this is done, "[t]here can 
be no claim of surprise" by the defendant. Bowe v. Colgate-Palmolive 
Co., 416 F.2d 711, 720 (7th Cir. 1969).

When the civil action is filed, the complaint must provide the 
defendant with "the essential information necessary to determine 
both the subject matter and size of the litigation." United Air- 
lines, Inc., v. McDonald. 432 U.S. 385, 392-393 (1977); Amer ican 
Pipe & Construction Co., v. Utah, 414 U.S. 538, 555 (1974). It 
does this by setting out "the substantive claims" to be litigated 
and "the number and generic identities" of the class members. Id.

-38-



Claims not raised by the complaint will be quickly time barred by 
the 30-day limitations period in §717(c). Id_. The Court then 
acquires an independent duty to examine the evidence —  sua sponte 
if necessary —  to ensure that the class representatives are in­
deed members of the class they have defined. Krernens v. Bartley, 
431 U.S. 119 (1977); Belcher v. Bassett Furniture Industries, Inc.,

588 F.2d 904, 906 (4th Cir. 1978).
Chisholm's administrative complaint alleges a deliberate 

policy by Charlotte management of preventing black employees from 
being promoted or detailed to desirable positions. It does not 
call for an investigation into disciplinary practices, or into 
collective bargaining agreements with the Rural Letter Carriers 
Association. Nor does it call for an investigation into personnel 
selection devices beyond the control of local management, such as 
written examinations. Tr. 292. Thus, while Chisholm's complaint
encompasses the charge that local management was manipulating 
test scores, it does not require an investigation of the content 
of a nationwide examination administered in Charlotte in a non­
discriminator y fashion. See, Albemarle Paper Co. v. Moody, 422 
U.S. 405, 425-436 (1975). In short, Chisholm's complaint did not 
require an investigation of every written examination given by the 
Post Office, of the requirements for the nurse and the industrial 
engineer positions filled in 1973 (See, Px-5), or into every other 
neutral selection device the Post Office administered.

The District Court thought it unfair to impose on a layman 
the burden of being too specific in an administrative complaint.

-39-



Conclusion of Lav; 4. But the lawyer-drafted complaints * f iled by
Chisholm and the intervenors are no broader than Chisholm's charge. 
They fairly allege a deliberate policy of discrimination by Post 
Office management in Charlotte with respect to promotions and 
details, and nothing else.

Thus, a case can be made that Chisholm took the necessary
initial steps to represent a class of blacks denied promotions and
details in Charlotte due to the alleged animus of local management.
But in May of 1975, the Court, at Plaintiffs' urging, opened class
membership to any black in Mecklenburg County with a claim of race
discrimination. FF 2. From that point on, the lawsuit had no
shape. The Certification Order, which should "give clear defini-

11/tion to the action", instead used "boiler-plate" language of the 
kind that this Court has condemned when used in complaints. Belcher 
v. Bassett Furniture Industries, Co, supra, 588 F.2d at 906, n.2; 
Shelton v. Fargo, Inc., 582 F.2d 1298, 1311 (4th Cir. 1978).

The Postal Service was therefore never able to ascertain the 
scope of the lawsuit against it. At trial, for example, the Court 
expressed doubt that "we have any issue . . . with regard to
non-super visory employees" and obtained Plaintiffs' agreement 
that the issue in the case "was promotions into supervisory posi­
tions and promotions among supervisors." Tr. 871. Later, the 
Court admonished the Postal Service that it was "not aware of any 
debate here about mobility within the post office as a matter of 
statistics . . . . " Tr. 882. See, also, the testimony of Dr.

32/ Advisory Committee notes to Rule 23, 39 F.R.D. 69, 104.
-40-



I M

3

Urane- l!U_890. „----— '^verthelpqc . >
the Postal Service denied In ' C°“ ‘ Uiti”“ eiy £ound that

f ■ b8CaUSe 0t hl= tace and that itVen°r HCC°mbS a position
moving to the Kura! Carr c Pt<5Vented W a °k ^Ployees from

- e r a :  occasions t„ ‘
£°rtS t0 Sh°“ « e y were „ot dlsor°;mrt dlSC°U- ^  Defendantst ef_

,‘hat eVidenCe n̂ ocsn 1 t realiy h e l p T * 11"9 "  ^  ^  b°Cause
PCetty “e11 l0Cked ip by 197 2 or 73 , ^  iSSU8S Whlch « e-lan had "n^ Tr. 720 m,

Ptesent curiosity about H ~  US Jud9e «CMU-
; r  °f - — . - u 8h: nto t  t,,e r t a u s  °f -  « «
^ J L U .  Disputes over the ^  ^  ^  —  *
^  °PlnSd' td resolved by the ' *  ^  oere.
Pleadin9E- ^ Z 2 .  Thls Kas bec; r lS;' Wh° Sh°“id -ber to the 
about all c ause we aren't- <employees, but tryiriQ _ Lrymg a Case
complaint." Tr Do CasG aboat those all* ,- ^ - ^ ^ 390. Moreover k 11 9ed ln the
VanCy °f *u<* the post_1973 s ' /  n0t doubted the rele-

bUt ^nowledged that - J  1StlCS PreSSnted the Postal
°f b°th —  —  coughiy pt: r  • • • ~ i o n s
“  th e  „hoIe employes b l° thc «k=-«p of Uces

“  * «  thus not until „
leaCned that the August 1 9 7 9 ^ 1  "'d ° thB P°=tal Service 
tln9 35 late «  October 1980 B matters occur-
COrti£V • class as retired bv ", GV°n ^  C°U“  £«led to
Comm1rs v 7 RUle 23( ° H 3). India-----S- v. dacot^, 420 u_s_ iI!iia!laEillis_Sc^
10 »* the courfs dudgment , < W74K P« ^ T 7 ^ T ~

-  ™ - -  Z L T T T
-41- still do not



* X.

- - v t:u Dy

2- Chishojjnjvas Not a P m
"A class representatTv ~ ^E^csen^ta^t^^

the same interest and suffer t h ^  ^  ^  ^  ^  *** ’P0i

— j ; : r s injutY' -  t h e « * « —
A common racial ident i t ^ T T ^ T  . 431 U.S. 395, 403

— • m  .. ^ ^ ; : ; r i:7 —  -
Oth Cir.) oei;t . . ~ --- tt^Inc^, 596 F. 2d 99, 10] ,,

=STt. denied 444 u.s. 929 (197R,
have numerous claims which rai " ete * , b e t

-  need to “  -  -  too

EePte~ i-  to overlook ^  ^  ^  ^

515 —  — a (4th Cll. 197;}

£s £ailed t o «—  = - ims of an ontl; ; ; which the
-  interests of the class membe£s '

°° teC°9eni0US to be accomodated unde
US6lf "that you can't try th ^  ^  ^

t « *  we've got here ^  «*
infusion . . . . „ Tt ' °ne £ca">= without some
failure to define a ^  ^  in Ch- h o lm's

^  > -  racially ^  ^

;; 7  —  -  « •  —

° animUS ^  " "  mana9ement in charlotte- and h “
337— rKT-r— i— r__-__ 974 claims
class EastlandV ^ ^ a t i v e  claim must defi

J « *  >;2‘ the
v s T m T s;??,mpare l > S 0v s°“9ht to • 21l< Hth^rrrigsof— 2̂

-42-



are directed at an animus at the District level, while Intervenor
McCombs' job-level claim is directed at a Regional animus in
implementing a national collective bargaining agreement. Pp. 20,
supra. Moreover, the class claims span a decade, during which
time new management was appointed with a mandate to make significant

34/
changes in operating policies. E.g ♦, Tr. 632-633, 636-638, 644-645.
Further, different post offices within Mecklenburg County have, at

35/
least in some respects, autonomous personal policies. Px 21, 7-8. 
When a class representative alleges that numerous, apparently 
autonomous, decision makers implement a common policy of discri­
mination, it is his obligation under Rule 23(a) to establish that 
those decision makers are, in fact, not autonomous. Stastny, v. 
Southern Bell Tel. and Tel. Co., 628 F.2d 267, 277—280 (4th Cir.
1980 ). See, Mayor v. Educational Equality League, 415 U.'S. 605, 
622-623 (1974). No such evidence was introduced in this case.

In point of fact, Chisholm had nothing in common with many
class members. In order to win relief he had to prove the
existence of an illegal promotion policy. He had no personal
interest in proving discrimination in discipline, in Rural Carrier
assignments, or in any other matter not related to local manage-
■347 TnTtastriy", supfa7_6 28 F.2d at 2 77, this Court made clear 
that "the length of the time span covered by the allegations, as 
it relates to the degree of probability that similar conditions 
prevailed throughout the period" is an important consideration in 
class certification.
35/ Although the Court's factual findings clearly distinguish 
between a post office and its subordinate stations and branches 
on one hand, and two post offices in the same sectional center on 
the other, it merged the distinction in its conclusions. Compare 
FF 14 and 15 with Conclusion of Law 6.

-43-



merit's promotion and detailing policy Hill v wy Hill v. Western Elec. To

— ■ 596 F-2d at io1-102' <««> 1979 )
hS laCk°d “ y P°rSOnal Stake in th= o-tco-e of those issues that 
he was able to select those claims raised by the class definition
he wanted to litigate, such as the legality of o/S 100, and insist
on what amounts to a nonsuit without prejudice as to all others
— ' — ’ v . g r a b ,  4 1 4  „ . s _
545-519 (1974).

Chisholm betrayed his fiduciary obligation to those members 
who had interests paralleling his -  persons whose right to 
recovery rests on the proof of the.animus he assailed. Once 
Chisholm convinced the Court that the Postal Service had illegally 
denied blacks positions they all wanted, his interests became 
antagonistic to theirs. See, Teamsters v. United States. 431 u S 
324, 361-362 ,1677,. Ile should at that point have asked the

to leave the question of who was entitled to relief to a 
master. he did not do this, but used his position of access to 
the class attorneys to argue that he and the Interveners should 
be awarded the positions they wanted. hut see, Mandujano v. Basic

Inc,, 541 F. 2d 832, 834-835 (9th Cir. 1976). 
Accordingly, this action will encourage litigation, not re-

Class members cannot be bound by a decision secured by 
an adversary. S - . F o x j ^ u ^ ^  v. ^ _ d Sfcates> m  u>s<

^37 Chisholm lacked Ar ti r 1 p ttt j ■
version of o/S 100 as he had Lssld i t ^ n ^  challen9e the 1970 Laboratories, Tnn ê c P 9 not-0 - J_fLyne v* Travenol
3 i n i i I 7 - 4 M m / T £ i ) 5  ( 1978 ) d 9 5 ' 8 9 8 - 899 ( 5 t h  C i r T T T H H .

-44-



638, 691 (1961). Judgment awarding positions they wanted to 
Chisholm and the intervenors is not res judicata as to them, as 
they clearly had a right to rely on their representative's aver­
ments that those representatives would protect their interests. 
United Airlines, Inc, v. McDonald, 432 U.S. 385, 394 (1977). The 
salutory effect of a class action judgment has accordingly been 
lost. The class should have been decertified by the District Court 
as soon as Chisholm began taking positions antagonistic to class 
members. National Association of Regional Medical Programs, Inc., 
v. Mathews, 551 F.2d 340, 346 (D.C. Cir. 1976), cert, denied, 431 
U.S. 954 (1977).

D. The District Court Erred in Finding For 
Plaintiffs On Their individual Claims.

Plaintiff Chisholm's 1971 claims of discrimination have no 
support in the record. Indeed, because it is undisputed that he 
lacked the financial background other applicants had, Tr. 818-819; 
Dx 12, even the presumption accorded him by the administrative
finding that he was discriminatorily denied an interview will not

37/
suffice to establish his claims. The Court seems to have con­
cluded that Chisholm's educational background was an adequate 
substitute, but "the fact that a court may think that the em­
ployer misjudged the qualifications of the applicant does not
37/ The presumption is, of course, only valid against the claims 
olT whites that they were more qualified than he. He cannot use 
the finding of discrimination to secure an advantage over Inter- 
venor Lee and Class Member Richardson. Both had the experience 
Chisholm lacked. Dx 12, Tr. 588-590.

-45-



Texas Depart-
ment of Community Affairs v. Burdine, 49 U.S.L.W. 4214, 4217

(Mar ch 4, 19 81).
Chisholm's 1971 administrative claims of discrimination could 

not exhaust claims that a new Post Office management would discrim­
inate against him in 1973, or that District officials would discrim­
inate against him in 1974. Ray v. Freeman, 626 F.2d 439, 442 (5th 
Cir. 1980). Nevertheless, the District Court adjudicated them.
In doing so, it did not find that the evidence that he lacked the 
experience necessary for the positions was pretextual. See Bur dine, 
supra. Rather it awarded him a level 21 manager's position because 
of the 1971 administrative ruling that Chisholm was to be given 
the next position for which he was eligible. Yet Chisholm had in 
the interim been offered a level 15 Accounting Assistant position 
which he declined, because

(1) It was not advertised. . . . That was con­
trary to advertisement procedures. . . . That
was one of the factors of which I was complain­
ing about, arbitrarily . . . selecting someone
for a particular position. I had no reservations 
about being interviewed along with anybody else 
. . . . Simply trying to maximize, . . . .  I
reserved the application until the position of my 
choice upon which I met the minimum cjual if ications.

Tr . 105-106, Chisholm had no right to demand that others be
interviewed for positions which he claims must be awarded to
him. Nor can he use the administrative finding about a lower-
level finance position as a basis for claiming entitlement to
top-level management positions. When the Postal Service offered

itself expose him to Title VII liability . . . .

-46-



him the accounting assistant's position, it discharged its obliga­

tion to him. FF 4.
Intervenor Lee had a single post-Act allegation. Pp♦ 19, 

supra. He raised it in an EEO administrative complaint 
which he later withdrew as part of a settlement. His complaint 
was therefore resolved and should have been dismissed. Stroz ier 
v. Ge nera1 Mo tors Corp., 635 F.2d 424, 426 — 427 (5 th Cir. 1981).

Intervenor McCombs was denied three positions in 1974 and 
1975. Pp. 20, supra. All were for that reason beyond the scope 
of Chisholm's administrative complaint. Ray v. Freeman, supra. 
Moreover, the claims that he was denied one position because he 
faiJed O/S 100 and another because Regional Headquarters would 
not authorize a craft position that he wanted did not turn on 
the animus of local management, and were barred for that reason. 
Finally, the claim that he was denied a Customer Services position 
must fail on the merits, as Plaintiffs' assertion that Intervenor 
Rushing was the most qualified candidate for the position neces­
sarily concedes that McCombs was less qualified than Rushing.

Intervenor Yongue, the Court found, was denied several posi­
tions. Pp. 21, supra. But nothing in the record or its findings 
suggests that he was denied them "under circumstances which give 
rise to an inference of unlawful discrimination. lexas Depart— 
ment of Community Affairs v. Burdine, supra, 49 U.S. L.W. at 
4215. Moreover, there is no finding that the articulated reasons 

for not promoting him were untrue.

-47-



Intervenor Rushing's claim of discrimination in 1971 was barred
by the period of time which elapsed between the final agency deci­
sion on his claim and the effective date of Title VII. Pp. 22, 
supra. His claim that he was denied a Customer Services position 
in 3974, by a management not present in 1971, was not within 
the ambit of Chisholm's administrative claim. Ray v. Freeman, 
supra. Moreover, there is no factual basis for the Court's 
finding that the promotion advisory board which interviewed him 
for the position considered him the best qualified applicant.

E. The Court Erred In the Nature of the 
Relief Granted to Plaintiffs

Assuming, arguendo, that the Court correctly found for Plain­
tiffs, several paragraphs of its Judgment are nevertheless clearly 
improper. Thus, paragraph 1 simply commands the Postal Service to 
obey Title VII without specifying "the act or acts . . .  to be 
restrained." Rule 65(d), FRCP. It explicitly forbids uninten­
tional, as well as intentional, violations of the Act. Defendants 
are entitled to know what acts on their part may bring them into 
contempt. Schmidt v. Lessard, 414 U.S. 474, 475-77 (1974). The 
Court's "obey-the-law" injunction therefore cannot stand. Payne 
v. Travenol Laboratories, Inc., 565 F.2d 895, 897-898 (5th Cir.), 
cert, denied, 434 U.S. 835 (1977).

The Court's requirement in paragraph 11 that the Postal 
Service meet certain promotion goals within less than four years 
is also improper. Its own findings make clear that the Charlotte 
Post Office has been promoting in a non-discriminatory fashion

-48-



since at least the beginning of 1977. Indeed, when the evidence 
was fresh in the Court's mind, it thought that the alleged dis­
crimination might have ended as early as 1972. It therefore 
expressed doubts that it could order remedial relief without 
supplemental evidence. Tr. 948-949. But no such evidence 
accompanied the findings of fact and conclusions of law provided 
to the Court by Plaintiffs. Although the Postal Service recog­
nizes that goals may be a proper remedy in an appropriate case, 
there is nothing in the instant record which will justify their 
imposition almost four years after the alleged discrimination 
has ended. Sledge v. J.P. Stevens, 585 F.2d 625, 629 (4th Cir. 
1978.) The question of affirmative action in the Post Office is 
properly left to the EEOC, which has the statutory responsibility 
of ensuring that the Postal Service has "an affirmative program of 
equal employment." §717(c) Title VII, as amended by the President's 
Reorganization Plan No. 1 of 1978, 5 U.S.C. App. II. (1978).

The indiscriminate sweep of paragraphs 11 and 15 cuts across 
negotiated agreements with collective bargaining agents. Those 
agents are not parties to this action, and their rights should 
not be adjudicated in their absence. Teamster s v. United States, 
431 U.S. 324, 354, n.42 (1976). Because the collective bargaining 
agreements which the Court has ordered modified are enforceable,
39 U.S.C. §1208, the Court has "subject[ed] the Postal Service 
to a substantial risk of incurring . . . multiple or otherwise
inconsistent obligations by reason of [the unions'] claimed 
interest." Rule 19, F.R.C.P.

-49-



Finally, there is no factual basis for the Court's Order 
in Paragraph 16 that the Post Office establish the position of 
EEO Employee Complaints Examiner (Compare, 29 C.F.R. §1613.214 
(b)); for its determination in that same paragraph that such a 
position should be at a 21 level; for its prohibition in para­
graph 18 against assignments of excessed employees from outside 
Mecklenburg County; or for its award in paragraph 19 of $235,000 
interim fees to Plaintiffs' counsel.

The mere fact that the higher-level workforce in the Charlotte 
Post Office does not have the same racial composition as the craft 
workforce does not justify the conclusions that every decision 
involving employees in the Mecklenburg County Post Office was made 
pursuant to systematic policy of discrimination against blacks or 
that Chisholm can represent every black subjected to that alleged 
policy. The Court's Judgment should be reversed in its entirety.

V. CONCLUSION

Respectfully submitted

STEPHEN E. ALPERN 
Associate General Counsel

DAVID G. KARRO 
Senior Attorney

DAVID FISHMAN 
Attorney
Office of Labor Law 
United States Postal Service 
475 L'Enfant Plaza, S.W. 
Washington, D.C. 20260

-50-