Bray v. New York Life Insurance Company Brief for Plaintiff-Appellant

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT 
Nos. 75-2068, 2069

NAPOLEON CHISHOLM,
Appellee,

vs.

UNITED STATES POSTAL SERVICE, et al..
Appellants.

On Appeal From The United States District Court 
For The Western District Of North Carolina 

Charlotte Division

BRIEF FOR APPELLEE

JONATHAN WALLAS 
. JULIUS LeVONNE CHAMBERS

Chambers, Stein, Ferguson & Becton 
Suite 730
951 So. Independence Blvd. 
Charlotte, North Carolina 28202

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
DEBORAH M. GREENBERG 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Appellee



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INDEX

TABLE OF CASES AND AUTHORITIES PAGE

I. Introductory Statement................................... 1l
II. The District Court Did Not Have Jurisdiction

Over Matters Arising Before March 24 , 1972.............  2

III. The Class Was Not Properly Certified....................  5
A) No Class Was Defined Prior to Trial.................  5
B) Adequacy of Representation..........................  8
C) The Scope of the Class Was Not Proper............... 12

IV. The District Court Erred in Finding Class
Discrimination...........................................  12
A) Chisholm's Disparate Impact Claim..................  13
B) The Disparate Treatment Claim....................... 16

V. The Individual Claims............................. -..... 20

VI. The Judgment Would Be Improper Even If Some
Relief Were Warranted.................................... 22

VII. Conclusion................................................ 24

i



CITATIONS

CASES PAGE
Adashunas v. Negley 626 F2d 600 (7th Cir. 1980)......... 12

American Pipe and Construction Co. v . Utah
414' U.S. 538 ( 1974 ).............. ......................... 5, 7 , 12
Boeing Co. v. Van Lenert 444 US 477 (1980)..............  11

Brown v. USA 425 U.S. 820 (1976)...........................  3

Delaware State College v. Ricks ----US-----
24 FEP 827 ( 1980 )...........................................  2
Electrical Radio and Machine Workers, Local 790 v .
Robbins and Myers, Inc. 429 US 229 (1976)..... .........  3

EEOC v. General Electric Co. 532 F2d 359 (4th Cir.
1976)......................................................  6
EEOC v. United Virginia Bank 615 F2d 147 (4th Cir.
1980).......................................................  17
Friend v. Leidinger 588 F2d 61 (4th Cir. 1978)...........  14
Furnco Construction Co. v. Waters 438 US 567 ( 1973)....... 13, 16 , 20
General Electric Co. v. Gilbert 429 US 125 (1976)......  3

Griggs v. Duke Power Co. 401 US 424 ( 1971)..............  3
Guse v. J.C. Penney Co. 562 F2d 6 (7th Cir. 1977)......  7
Hazelwood School District v. United States 433 US 299
(1977).....................................................  7, 13, 16

Heagney v. University of Washington 642 F2d 1157
(9th Cir. 1981)................................. .........  13
Johnson v. Georgia Highway Express Co. 417 F.2d
1122 (5th Cir. 1969 ).... 1........... ....................  0

t

Johnson v. Uncle Ben's Inc. 628 F.2d 419 (5th Cir.
1980) . ...................................................... 9
Kremens v. Bartley 431 US 119 (1977)....................  10

I .J
V J

11



CASES PAGE
Roger v. Ball 497 F2d 702 (4th Cir. 1974)...............  3
Lewis v. Phillip Morris Inc. 419 F. Supp 345 (EDVa
1976) vacated and remanded on other grounds, 577
F.2d 1135 (4th Cir. 1978) cert, denied, 439 US
1089 (1979)............... 7 7 7 7...........................  9

Mohasco Corp. v. Silver 100 S. Court 2476 ( 1980 )........  2

McDonnell Douglas Co. v. Green 411 US 792 (7973 )........  13, 15

Nashville Gas Co. v. Satty 434 US 136 (1977)............  13
New York Transit Authority v. Beazer 440 US 568
(1979).........................7 7 7 7 7 7.....................  15

Patterson v. American Tobacco Co. 634 F2d 744 (4th
Cir. 1980 ) (en banc) cert, pending 49 US LW 3648 .......  4 , 17

Sanchez v. Standard Brands Inc. 431 F2d 455 (5th Cir.
1970). ----- 7777777777777777777 ...........................  6

Scott v. University of Delaware 601 F2d 76 (3rd Cir.
1979)... ....................... ........................... 10

Sledge v. JP Stevens & Co. 585 F2d 625 (4th Cir.
1979) cert, denied, 440 US 981 (1979)...................  22

Sosna v. Iowa 419 US 393 ( 1975)..........................  11
Stevenson v. International Paper Co. 516 F2d 103
(5th Cir. 1971).........................................  9

Teamsters v. United States 431 US 324 ( 1977)............ 13 , 16,

17, 20
Texas Department of Communitv Affairs v. Burdine
49 USLW 4214 March 3, 1981).............. 7777777 ........ 21, 23

United Airlines v. Evans 431 US 553 ( 1977 )..............  2, 6
United Airlines Inc, v. McDonald 432 US 385 ( 1977).....  11
Wright v. National Archives Record Service 604 F2d 702 
(4th Cir. 1979).........................................  13

iii



PAGE

US Constitution Amendment V .............................  3, 4

STATUTES

42 USC §1981..............................................  4

42 USC § 2000e-2...........................................  3i
42 USC S2000e - 5(g).........................    2, 4, 6
42 USC S2000e - 16......................................... 2, 4

OTHER

Executive Order 11478..................................... 3
117 Congressional Record 31981 (1971)...................  4
Rutherglen, Title VII Class Actions 47 University 
of Chicago Lav/ Review 688 / 7 0 8-709 ( 1980)...............  7

5 CFR §713.214(a) (1) ( ii).................................. 4
29 CFR 1613.603(b)........................................  6
Rule 23 FRCP..............................................  8, 10

Rule 65 FRCP..............................................  23

t

IV



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

REPLY BRIEF OF APPELLANTS

I. Introductory Statement

The Judgment appealed from creates a presumption that 

virtually every non-hiring personnel decision in any Post Office 
in Mecklenburg County over a ten-year period was made on the basis

t

of race. Appellants (hereafter collectively referred to as the 

Postal Service), argued in their principal brief that the evidence

4r*i

i ’



did not support such a presumption; that many of the claims 
raised by Appellees (hereafter referred to collectively as 
Chisholm) were time-barred; and that considerations of standing, 

the doctrine of the exhaustion of administrative remedies, and 

Rule 23 of the Federal Rules of Civil Procedure prevented Appel-i
lees from raising most of the claims adjudicated by the Trial 

Court; and that the sweeping terms of the Judgment were, in 
any event, not appropriate. Chisholm has responded by arguing 

that the Judgment was proper in all respects. The Postal Service 

now responds to critical portions of Appellees' argument.

II. The District Court Did Not Have Jurisdiction 
Over Matters Arising Before March of 1972.

The parties agree on the following facts: that Chisholm did

not file an administrative complaint until March of 1972; that 

his complaint was pending on the effective date of §717 of Title 
VII and therefore subject to the Act; and that the limitations 

period for filing his administrative complaint was 15 days. The 

Supreme Court has consistently held that the limitations period 
for filing administrative claims under §706 of Title VII are 

designed to "protect employers from the burden of defending 

claims arising from employment decisions that are long past.
Delaware State College v. Ricks, _____ U.S._____ , 24 FEP Cases

827, 830 (1980). Accord, Mohasco Corp. v. Silver, 100 S. Ct. 

2476, 2496-97 (1980); United Airlines, Inc, v. Evans, 431

-2-



U.S. 553, 558 (1977); Electrical Radio and Machine Workers,

Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 240 (1976).
Congress intended that the regulatory scheme establishing
the limitations period applicable to this suit would control

administrative proceedings in the federal sector. Brown v.
GSA, 425 U.S. 820, 832-833 (1976). It follows that the purpose
of the 15-day limitations period was to protect the Postal

Service from having to defend personnel decisions which are two
years old. Any effort by Chisholm to bring those stale claims
within this litigation must be reconciled with that purpose.

Chisholm does not attempt the reconciliation. Instead he
1/

first argues that he can proceed under the Fifth Amendment.
Chisholm's Brief, p. 20. But he does not explain why Congress

made his claim subject to Title VII in all respects save the
2/

15-day requirement. Nor does he explain why the 15-day limi-
T7 In doing so, he fails to come to grips with the fact that the 
Fifth Amendment does not allow for disparate impact claims. Postal 
Service's Brief, p. 24, n.21. He argues instead that he could have 
raised such claims under Executive Order 11478 . But, see Roger v. 
Ball, 497 F .2d 702, 704-705, n.7 (4th Cir. 1974) in which the Court 
equated the prohibitions in that Order with those in the due process 
clause. Setting aside the fact that it is somewhat late to raise 
the Executive Order as a basis for this suit, the fact remains that 
there is nothing in the language of the Order which creates dispar­
ate impact claims. Congress made disparate impact claims actionable 
under Title VII with the language in §703(a)(2) of Title VII forbid­
ding employers "to limit, segregate, or classify [their] employees 
in any way which would tend to deprive any individual of employment 
opportunities . . . because of [his] race . . . ." General Electric
Co. v. Gilbert, 429 U.S. 125, 137 (1977); Griggs v. Duke Power Co., 
401 U.S. 424, 425-426, n.l (1971). There is no corresponding pro­
hibition in the Executive Order.
2/ The Postal Service has argued that Chisholm surrendered any 
right he had to proceed under the Fifth Amendment when he agreed 
during an interlocutory appeal that Title VII was his exclusive

(footnote 2 continued on page 4)
-3-



tations period in 5 C.F.R. §713.214(a)(1)(ii) (1972) would not 
have been applicable to a Fifth Amendment action if Title VII 

had never been passed. See, Postal Service Brief, pp. 24-25.
Section §706(g) of Title VII allows a court to award 

backpay liability for two years prior to the filing of an 
administrative complaint. Chisholm in effect asserts that 
once a complainant files a timely claim, he can use §705(g) 
ho resurrect older, time—barred claims. Chisholm s Brief, 

at 19. His theory has no support in the legislative history 
of Title VII. See remarks of Congressman Erlenborn, 117 Cong.

Rec. 31981 (1971). If §706(g) is to be reconciled with the ap­

plicable limitations period, it can only be applied to claims in 
which the employer could not have been prejudiced by the loss of 

evidence during the two-year period. See Postal Service Brief, 

pp. 26-27.
Chisholm also contends that he can proceed under the "con­

tinuing discrimination" theory. Chisholm's Brief, pp. 21-22.

But he is not challenging a single practice which is alleged to 
mechanically perpetuate the effect of past discrimination, as 
was the case in for example,'Patterson v. American Tobacco Co.,

634 F .2d 744 ( 4th Cir. 1980) (en banc), pet. for cert, pend ing , 

(footnote 2 continued)
remedy. Defendant's Brief, pp. 25-26. Chisholm argues that he 
only conceded that he could not proceed under 42 U.S.C. §1981. 
Chisholm's brief, p. 5, n.2; p. 21, n.19. In point of fact, his 
brief in that 1976 appeal contends that class members are entitled 
to certain rights because 42 U.S.C. "§2000e-16 is . . .  the 
only court enforcement mechanism available to federal employees." 
Brief, 39. (Emphasis in original.)

-4-



49 U.S.L.W. 3648. In this case, numerous individual decisions
are challenged. Assuming, arguendo, that Chisholm proved a

policy of discrimination permeated decisions made in 1972, it

does not follow that the same policy existed in 1970. Chisholm's

claim was filed after the Postal Service was entitled to assume
3/

it would not have to defend those 1970 decisions. He therefore
1/cannot challenge them. Postal Service Brief at 27.

III.

A.

The Class Was Not Properly Certified. 

No Class Was Defined Prior to Trial

5/
At pages 38-41 of its Brief, the Postal Service argues 

that it was entitled to know from the outset of the litigation 
"the substantive claims being brought against [it and] the number 

and generic identities of any potential plaintiffs who may parti­

cipate in the judgment." American Pipe & Construction Co. v. Utah, 
414 U.S. 538, 555 (1975). It is undisputed that the matters to

37 It is clear that by trial many records of the period had 
been disposed of. Defendant's Brief, at 25.
4/ Chisholm contends that because "class allegations were not 
accepted [in the administrative process in 1972] . . . there was
no prejudice to USPS . . . ." Chisholm's Brief, p. 20. In 1972,
the Postal Service was entitled to notice of all claims of employ­
ment discrimination within 15 days after they arose. The fact 
that Civil Service Commission regulations did not provide an 
administrative analogue to Rule 23 does not mean that the Postal 
Service was not prejudiced by having to face claims which were 
two years old.

5/ We reply to Chisholm's
were s<et out in his Brief.
Postal Servi ce Brief.

arguments in the order in which they 
The order differs from that in the

-5



be litigated in a Title VII action must be "like or related to
those contained in the charge and growing out of such allegation

. . . Chisholm's Brief at 25-26, citing Sanchez v. Standard

Brands, Inc., 431 F. 2d 455, 466 (5th Cir. 1970). A charge
must give the employer timely notice of the need to prepare a

6/
defense. United Airlines, Inc, v. Evans, 431 U.S. 553 ( 1976). 

Chisholm argues that he gave notice of every claim he would 
later raise. The Postal Service argues that he only gave notice 

of an intent to attack promotion policies of the management of 

the Charlotte Post Office. Chisholm would have this Court deter­
mine that the reference in Sanchez to issues "like or related to

those [issues] contained in the charge" means "any conceivable
2/claim of discrimination that can be articulated."

The Postal Service also argues that the lawyer-drafted com­

plaints filed with the Trial Court do not support the breadth

of the class action. Defendant's Brief, p. 40. Chisholm does
not respond to this argument, and he cannot. None 

complaints even hint at a non-promotion claim such
of

as

those
discipline.

67 EEOC v. General Electric Co., 532 F. 2d 359 (4th Cir. 1976)
Ts not to the contrary. The issue in that case was whether the 
EEOC is bound by an individual charge; not whether the individual 
is bound by his charge. The EEOC is, of course, not subject to 
the limitations period of §706. A contrary decision would have 
imposed on the EEOC an obligation to file a meaningless series 
of Commissioner's charges without affording the defendant any 
additional protection. Id. at 366-367.

2/ The current class action regulations of the EEOC require that 
an administrative class action complaint set forth "specifically 
and in detail" the policy or practice under attack. 29 C.F.R. 
§1613.603(b).

-6-



Fairly read, they allege a policy of purposeful discrimination
8/

in promotions by Post Office management in Charlotte. The 

failure to set out non-promotion claims in the complaint precluded 
plaintiff from raising them years later. American Pipe & Construc­

tion Co. v. Utah, 414 U.S. 538, 552-556 (1974). The announcement 

that a deliberate policy of discrimination would be proved was 
binding. Hazelwood School District v. United States, 433 U.S.
299, 306, n .12 (1978).

Chisholm's only reply to the Postal Service's charge that 
the scope of the class was broader than the scope of the com­

plaint filed with the Court is that the Postal Service received 

a "Statement of Issues" in February, 1979. Chisholm's Brief, 
at 27, n.28. But providing information in 1979 does not cure 

the failure to provide it in 1973. Moreover, the "boiler-plate" 

language of the notice put everything in issue and thereby
deprived the Postal Service of notice of what it was that would1/actually be litigated. See, Guse v. J.C. Penny Co., 562 F.2d 6,

1[7 See, Rutherglen, Title VII Class Actions, 47 U. of Chi. L. 
Rev. 688, 708-709 (1980). (Generalized allegations of Title VII 
class discrimination should "not authorize the district court to 
investigate and remedy all claims of discrimination against a 
particular defendant.")
9/ Chisholm asserts 
not question the Cou 
numerosity, commonal 
25. However, such a 
vice's argument. If 
impossible to determ 
can say what nexus e 
of all persons who m 
Trial Court's Judgme

in his Brief that the Postal Servi
r t ' s findings that the requirements
ity, and typi cality wer e met. Brie
cha llenge is implicit in the. Posta
no fixed class has eve r been def in

ine if those requ icemen ts are satis
x is ts between Chisholm's claim and
ight come forward under paragraph 1
nt?

ce does 
of
f, at 
1 Ser- 
ed, it is 
fied. Who 
the claims 
0 of the

s



8 (7th Cir. 1977). No defendant with a complex personnel system

can prepare a defense to such a vague charge. See, Johnson v.

Georgia Highway Express Co., 417 F.2d 1122, 1126 (5th Cir.
1969) (Godbold, J., concurring). Even the trial court could not

10/
determine the contours of the class. Postal Service Brief, 
pp. 40-41. Late in the trial, it tried to resolve the problem 
by ordering the parties to look in the pleadings to determine 

the contentions in the case. Tr. 872. Needless to say, the 
pleadings before the Court did not allow for resolution of 

that problem.
B . Adequacy of Representation

At pages 42-45 of its Brief, the Postal Service argued that
11/

Chisholm was not an adequate class representative. Much of the
10/ Chisholm seems to be proceeding on the theory that the Postal 
Service simply has no right to defend against his claims. Thus 
he secured a Judgment adjudicating claims which arose a year 
after trial. Postal Service Brief, p. 41; Chisholm Brief, p. 33.

11/ Throughout its Brief, the Postal Service assumed that Chisholm 
was the only class representative. Chisholm_points out, however, 
that each of the Intervenors incorporated Chisholm's class alle­
gations in their complaint. Chisholm's Brief, p.4, n.l. A care­
ful reading of the Intervenors' complaint does indeed reveal that 
it contains a pro forma adaptation of large sections of Chisholm's 
complaint —  including his boiler-plate mimicry of the language 
of Rule 23. Although the trial court appeared to treat Chisholm 
as the Plaintiff who met the requirements of Rule 23 in its May 
29, T975 Order, the fact remains that it never identified who in 
this case is representing whom. This is yet another example of 
how the Postal Service has been, throughout this,case, reqaired to 
defend itself against vague, unspecified charges and findings on 
both the class issues and the merits.

Moreover, the presence of the Intervenors cannot affect the 
scope of the class. Only two Intervenors, Lee and Rushing, filed 
administrative EEO complaints. Both complained of deliberate 
discrimination in promotions that did not involve written exami­
nations. Lee ultimately withdrew his complaint.

(footnote 11 continued on page 9
-8-



argument is based on the proposition that the class is so broad 

that the claims of some members are certain to be overlooked.
See, e .g ., Johnson v. Uncle Ben’s , Inc., 628 F.2d 419, 423 (5th 

Cir. 1980); Stevenson v. International Paper Co., 516 F.2d 103,

111' (5th Cir. 1975); Lewis v. Phillip Morris, Inc., 419 F.Supp.
345, 351, (E.D. Va. 1976), vacated and remanded on other grounds, 

577 F.2d 1135, (4th Cir. 1978) cert. denied, 439 U.S. 1089 ( 1979). 

Chisholm's general response is that he adequately represented the 
class by vigorously pursuing the action. Brief at 28. "No collu­

sion," he says, "is alleged." JEd. But if a black later claims 

that one of the tests Chisholm did not attack is discriminatory, 
his claim of inadequate representation will not turn on proof of 
collusion.

In addition to arguing that the class was too diverse to be 
adequately represented, the Postal Service questioned the propriety 

of Chisholm's posing as its spokesman while seeking individual 

relief, contrary to the interests of other class members.

(footnote 11 continued)
Rushing's complaint was not pending on the effective date of 
Title VII. Postal Service Brief 19-23; 47-48. The complaint 
filed by the Intervenors in the court below raises no issue 
not raised by Chisholm. Therefore, the complaints filed by 
Chisholm in the administrative process and in the court below 
define the scope of the litigation.

The Court's apparent conclusion that all plaintiffs adequately 
represented the class is yet another example of the dangers inher­
ent in signing findings prepared by a party. Chisholm's Brief, p. 
28. It apparently overlooked the fact that Ricketts, one of the 
plaintiffs encompassed in that finding, did not even participate 
in the litigation at trial. Postal Service Brief, p. 19.

-9-



Postal Service Brief, p. 44. In plain terms, when A argues he 

should get a promotion B wants, he is not representing the 

interests of B.
Chisholm terms this proposition "novel." Chisholm's Brief, 

p. 29. First he points out that by consolidating the "individual 

liability claims of Chisholm and other plaintiffs and class mem­
bers who testified", he promoted judicial economy. While time 
clearly can be saved by hearing only one claimant and barring

others, we do not believe that such economy is permitted by
12/

Rule 23(a)(4) of the Federal Rules of Civil Procedure.
Next Chisholm urges that he was entitled to the relief he 

13/
sought, and that in any event class members failed to opt-out 
of the class in response to a notice given class members. Brief, 
p. 29. But even if Chisholm were entitled to the relief awarded, 

he cannot urge that proposition on behalf of rivals for that relief. 
The claim that class members failed to opt-out might have had

12/ Chisholm also notes 
to consolidation at trial 
the Postal Service failed 
their rights have been lo 
always be alert to the po 
E.g., Scott'v. University 
cert, denied, 444 U.S. 93 
U.S. 119 137-138, ( 1978) 
noted that the Court had 
Another answer is that th 
proceedings opposed the s 
action.

that the Postal Service did not object 
. This amounts to a claim that, because 
to protect the rights of class members, 

st. One answer is that the Court must 
ssibility of inadequate representation. 
of Delaware, 601 F.2d 76, (3rd Cir.),
1 ( 1979 ). See, Kremens v. Bartley, 431 
in which Justice Brennan, in dissent, 
vacated a certification order sua sponte 
e Postal Service has throughout these 
uggestion that this was a proper class

13/ Chisholm does not ad 
with the awards of relief 
class members.

vance this argument in connection 
to the Intervenors and other favored

-10-



some validity if the notice referred to had contained a candid

warning that Chisholm would not adequately represent the class

members. No such warning was given, however, and the unnamed
class members were entitled to rely on Chisholm to represent 

14/
them. United Airlines, Inc, v. McDonald, 432 U.S. 385, 394 

(1977).
Finally, Chisholm argues that class actions are often 

maintained on behalf of persons seeking the same position, and 

suggests that the Postal Service is seeking to preclude class 
actions. Chisholm's Brief, pp. 29-31. But the Postal Service 

does not question Chisholm's right to represent blacks with 
competing claims on the question of 1iability. See, Boeing Co. 
v. Van Gemert, 444 U.S. 477, 479 (1980). It was the decision of 

Chisholm to press his own claim for damages while still purporting 

to act for the class which was improper.
Clearly class members were not adequately represented. The 

only issue here is what relief is appropriate. The manner in 
which this case proceeded makes unmistakably clear that neither 
Chisholm nor the Court "contemplated that all members of the class 

[would] be bound by the ultimate ruling on the merits." Sosna v. 
Iowa, 419 U.S. 393, 403 (1975). There was never any intention 
that all black Postal Service employees in Mecklenburg County

f

147 This is not to say that the Notice is without significance. 
The notice, filed on the eve of trial, suggested that all blacks 
would be represented, and did nothing to limit the class to 
persons with claims v/hich would be litigated.

-11-



who did not receive relief would be bound by that judgment, and 
this was therefore a "spurious" class action of the kind condemned 
in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 541 

(1975). Certification was therefore improper and should be reversed.
i

C . The Scope of the Class Was not Proper

The effect of paragraphs 3 and 10 of the Court's Judgment 
is to leave class membership open. Under paragraph 3, class 

members are those who have been discriminated against in vir­

tually any way. Judgment. Under paragraph 10, the question 
of who has been discriminated against is to be decided later.

Id. This is a "spurious" class action with a vengence. Not 

only is the membership of the class as yet unknown, but it is 
defined in a way that excludes any black from membership who 

cannot prove his claim. Such a definition is unacceptable.

Adashunas v. Neglev, 626 F.2d 600, 604 (7th Cir. 1980); Postal 
Service Brief, pp. 41-42.

IV. The District Court Erred in Finding 
Class Discrimination.

Chisholm's Brief suggests that the Postal Service's defense 
on the merits rests solely on a contention that the trial court's 

findings are clearly erroneous. While the District Court did 
make some clearly erroneous findings in regard to, the merits, 

the Postal Service principally contends that the Court misapplied 
governing legal standards.

-12-



A. Chisholm's Disparate Impact Claim

A disparate impact claim requires an attack on facially neutra 

practices such as "employment tests . . .  or particularized require 
ments such as . . . height and weight specifications . . . ."
Furnco Construction Co. v . Waters, 438 U.S. 567, 575, n .7 (1977); 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.14 (1973); 
Heagnev v. University of Washington, 642 F. 2d F.2d 1157, 1163 
(9th Cir. 1981); Wright v. National Archives Records Service, 609

15/F.2d 702, 711 (4th Cir. 1979 en banc). A plaintiff must show 
that an employer consistently class if ies his employees by height, 
education, or in some other fashion, in order to invoke the lan­

guage of §703(a)(2) of Title VII. Nashville Gas Co. v. Satty,
434 U.S. 136, 139-141 (1977); Teamsters v. United States, 431 U.S. 
324, 378 (Marshall, J., dissenting). The application of disparate 

impact analysis to other situations is clear error. McDonnell 
Douglas Corp. v. Green, supra, 411 U.S. at 805-806.

Although elements of disparate impact analysis appear through­

out the Court's conclusions and Chisholm's Brief, the only prac­
tice in this case which could give rise to a disparate impact 
claim is Examination O/S 100, one of the four examinations given

15/ In Wright, the Court opined in a dictum that in certain 
circumstances gross statistical proof might establish a dis- 
prate impact case, "without identifying any particular policy 
or practice as its cause," citing Hazelwood School District v. 
United States, 433 U.S. 299 (1977)T But Hazelwood was a dis- 
parate treatment case. At 306-307, n.12. Proof of a gross 
statistical disparity which is not caused by a facially neu­
tral practice gives rise to a claim of disparate treatment. 
Teamsters v. United States, 431 U.S. 324, 339-340, n.20 (1976).

-13-



Chisholmto applicants for initial-level supervisory positions, 
contends that the Trial Court correctly found that the examination 

had a disparate impact on three groups of blacks: those seeking 

initial-level supervisory positions; those seeking other higher- 
level supervisory positions; and on those seeking details. 

Chisholm's Brief, pp. 33.
0/S 100 did not have a disparate impact on blacks seeking

the initial-level supervisory positions for which it was given.

The Court's findings in this regard, even if not erroneous, are

legally insufficient. They focus on the relative passing rates
for blacks and whites; they should have focused on the relative

17/
selection rates of blacks and whites. Postal Service Brief, 

pp. 27-28.
The claim that O/S 100 had a disparate impact on higher-level 

supervisory positions must fail for want of proof of either a 

policy or an impact. The Court found in its Finding 31 that 
"few if any individuals have been promoted to any upper level 

jobs without making satisfactory test scores." FF 31. O/S 100 

was only one of several tests'given by the Postal Service, and

16/

16/ Chisholm had passed the 1970 version of O/S 100. He 
therefore lacked standing to attack it. Postal Service Brief, 
p . 4 4, n .3 6.
17/ Chisholm tries to distinguish the authority the Postal Ser­
vice relies on, Friend v. Leid inger, 588 F.2d 61f(4th Cir. 1978 ), 
on the ground that the differences in relative passing rates were 
in this case more pronounced. The distinction is not persuasive. 
Moreover, there is evidence in the record that Chisholm gerryman­
dered his statistics to achieve a seemingly high failure rate.

(footnote 17 cont. on page 15).

-14-



it is impossible to tell from either the Trial Court's findings
or the record what, if any, impact any of the tests had on 

applicants for upper-level supervisory positions. This failure 

of proof is alone sufficient to defeat Chisholm's claim. New 

York Transit Authority v. Beazer, 440 U.S. 568, 584-588 (1979). 

Moreover, the Trial Court stopped short of a finding that use 

of any test for higher-level positions was a standardized 
requirement which would give rise to a claim of disparate 

impact. McDonnell Douglas Corp. v. Green, supra, 411 U.S. 

at 805-806 (1973). Nor could it have made such a finding.

Postal Service Brief, pp. 9-10.

Chisholm's claim that O/S 100 had a disparate impact on 

blacks seeking details also fails, as the Court made no findings 

which would allow it to conclude that O/S 100 had an adverse 
impact on those blacks. This was true not only because the 

Court made no statistical findings concerning details after 
1973, Chisholm's brief, p. 40, but also because there is no 

way of telling from the Trial Court's findings what impact, 

if any, O/S 100 had on blacks seeking details. In fact,

(footnote 17/ continued)
Dr. Outtz, one of his expert witnesses, testified that the 1968 
test had a lesser impact on blacks nationally than it did locally. 
Tr. 460. Chisholm used local statistics for the later examina­
tions. But the Postal Service develops its examinations for 
use nationally, and it should not be held to account for local 
deviations from national results. It could not possibly develop 
standardized examinations if the impact of each examination in 
each of its 28,000 installations had to be examined separately.

15-



the percentage of details given blacks mirrored their repre 

sentation in the workforce.

B . The Disparate Treatment Claims

The balance of Chisholm's case is one of disparate treatment, 

as no facially neutral practices are assailed. Selection proce­
dures, he says at p. 9, were "subjective, unreviewable, and often 

wholly ignored in favor of whites." This is a claim that whites 
ygre treated more favorably than blacks and therefore one of dis­
parate treatment. Furnco Construction Co. v. Waters, 433 U.S.

U.S. 567, 577 (1978). His efforts to prove his case through 
statistics do not change the nature of his claim. Teams ters 

v. United States, 431 U.S. 324, 328-343 (1976). Chisholm was 

therefore required to show a purposeful policy of systematic 

discrimination. Postal Service Brief, pp. 30-31.
The Court's finding that such a policy existed rests on 

the discrepancy between the racial composition of the Post 
Office's craft workforce and its supervisory workforce.
Chisholm's Brief, pp. 34-35. That discrepancy, however, 

is not of probative value unless there is evidence that a 
non-discriminatory promotion policy would have been expected 
to produce a supervisory workforce which mirrored the crafts. 

Teamsters v. United States, 431 U.S. 324, 339-340, n.20 (1976). 
Moreover, the statistical discrepancy must be the result of 
post—Act decisions only. Hazelwood School District v. United

-16-



States, 
Tobacco 
EEOC v.

433 U.S. 299, 309 
Co., 634 F.2d 744 
United Va. Bank,

( 1977 ) :
, 751-754 
615 F. 2d

Patterson 
(4th Cir. 
147, 152

v . American 
1981) (en banc.);
4th Cir. 1980).

And it must be sufficiently gross to justify a rebuttable

presumption that every member of the class .was subjected to 
the policy. Teamsters v. United States, supra, 431 U.S. at 362.

The Trial Court clearly erred in finding -- if indeed it did 

find —  that a non-discriminatory promotion policy after 1972 
would have produced a supervisory workforce reflecting the racial 

composition of the craft workforce. Indeed, it explicitly found 
that upper-level supervisors were drawn from a 11-state region, 
rather than from Mecklenburg County facilities. Postal Service 

Brief, p. 30. The Court assumed that no special qualifications 
were needed for any job —  in the face of evidence that Chisholm 
sought a supervisory position in a finance office responsible 

for auditing 200 post offices. Id. pp. 16-18. In point of fact,
the record is replete with evidence that numerous technical, mana­
gerial, and supervisory positions required specialized qualifica­

tions. _Id. ’ pp. 28-30 . Furthermore, the Court indiscriminately 
included small post offices in the class, and failed to allow 
for the possibility that they might have been operating under 

different policies from those in effect in the Charlotte Post
IB/ r

Office. _Id. pp. 6-7. It also failed to exclude statistics
18/ The Court appeared to find that all personnel decisions in 
all post offices within the sectional center of which the Char­
lotte post office was a part were made by Charlotte. Chisholm's 
Brief, p. 6, n.4. Chisholm believes this finding was not chal­
lenged. Id. He is incorrect. Postal Service Brief, pp. 6-7.

-17-



from its analysis which reflected the decisions of persons outside

the Charlotte Post Office. Id. pp. 10-11. In short, it failed to
identify the applicant pools from which various positions were 

19/
filled. Further, it made a point of not excluding pre-Act 

discrimination on a disparate impact theory. Chisholm's Brief, 
pp. 38-40. The statistical disparaties it found were therefore 

without probative value.

Nevertheless, the Postal Service does not rest on the fact 
that Chisholm failed to establish a prima facie case of purpose­
ful and systematic discrimination. It submits that the uncontra­

dicted evidence in the record negates the inference Chisholm was 
required to establish. For example, the Court's findings establish 
that the Post Office was not discriminating in promotions after 

1976. Chisholm's Brief, p. 35. The Postal Service does not rely 
on this finding to "erase its previous illegal conduct", as Chisholm 
suggests, id, but to rebut the charge that it was discriminating 

after 1976. For the period 1972-1975, it relies on unrebutted 
facts establishing that blacks as a class were promoted in 
numbers inconsistent with the existence of a systematic discri­

mination. Postal Service Brief, pp. 30-32. If the Post Office

19/ The same analysis applies to the statistical evidence con­
cerning discipline and details. At no point in this case did 
Chisholm establish a proper statistical model of'expected re­
sults with which actual results could be compared. The claim 
concerning the Management Training Program suffers from a different 
evidentiary deficiency —  the sample used by Chisholm was rejected 
by the Trial Court as too small to be of probative value. Tr, 271- 
273.

-18-



were operating under the policy Chisholm is required to prove,
20/

those results would be impossible.
The reliance on statistcs relating to discipline is an 

extreme example of the missapplication of governing legal prin­

ciples by the Trial Court. The Court found that blacks received 

proportionately more discipline than whites and that disciplinary 
decisions were made by individual supervisors. Postal Service 
Brief, p. 33-34. It made no finding that a facially neutral 

disciplinary practice was involved which might give rise to a 
claim of disparate impact. Nor did it find that blacks were 

treated more harshly than whites guilty of the same offenses.
In fact, it thought evidence that differences in treatment

might be attributable to differences in supervisors was irrelevant.

Postal Service Brief, pp. 33-34.

It is indisputable that the disciplinary statistics were 
affected by the independent decisions of third-party arbitrators, 

and hearing examiners of the Merit Systems Protection Board and 

the EEOC. I_d. at 13-14. The Court took note of the fact, that 
the Post Office was quick to resolve grievances involving claims

20/ Chisholm, who at one point makes much of a sample of only 
To promotions, (Brief, p. 34), immediately thereafter criticizes 
the Postal Service for using small samples. _Id, n. 34. But in 
seeking to disprove the existence of the alleged purposeful 
policy, the Postal Service is not required to show deviations 
from a random result. If the policy exists, it should operate 
on small groups as well as large. As jobs grow scarce, it 
would presumably be enforced with increasing vigor. Thus, a 
small sample does not detract from the Postal Service position 
that the actions it took are inconsistent with the existence 
of the policy Chisholm must prove.

-19-



of racial discrimination, and it was aware that black supervisors 
were involved in meting out discipline. id. at 14. This 

simply is not a case, to paraphase the Supreme Court in Furnco 

Construction Co. v. Waters, 438 U.S. 567, 577 (1978), in which 
"all legitimate reasons [for the disparity]- have been eliminated 

as possible explanations" for its existence. There is therefore 

no factual underpinning for the Trial Court's presumption that 
every black disciplined in Mecklenburg County between 1970 and 
1980 was more probably than not subjected to discrimination.

The presence of blacks throughout the Post Office hierarchy 
undercuts Chisholm's case in another way. Postal Service Brief, 
pp. 31-32. It is extremely improbable that the discriminatory 

policy Chisholm postulates could have existed without class mem­
bers learning of its existence. See, Teamsters v. United States, 

431 U.S. 328, 338, n.19 (1976). Yet Chisholm was relegated to 

the use of circumstantial evidence. Chisholm's Brief, pp. 35-38. 
Direct proof of the practice does not exist because the practice 
did not exist.

V. The Individual Claims

Chisholm criticizes the Postal Service for not subjecting 

this Court to a case-by-case analysis of each individual claim. 
Chisholm's Brief, p. 9, 13, 41, 42 and 43. The Postal Service 

believes Chisholm is correct in contending that each claim turns 

on individual facts. There is no common bond between the claims,

-20-



and this case should not have been tried under Rule 23. The
Postal Service has responded to the claims of Chisholm and the
Intervenors, Postal Service Brief, pp. 45-48; it has indicated

its belief that the Court misallocated the burdens of proof, in
21/

individual cases, at 36-37; and it now declines the invita­
tion to treat this case as 17 individual appeals with a class 

action appended.
With reference to Chisholm's individual claim, however, it 

is appropriate to note two matters. First, the Hearing Examiner 

did not find "that Chisholm was denied consideration for finance 
examiner because of his race [arid] that qualification standards 
were inconsistently applied . . . ." Chisholm's Brief, p.3.

Instead, the Examiner found that Chisholm was denied an interview 
on the basis of qualification standards that were inconsistently 
applied, and he therefore concluded that Chisholm was subjected 

to race discrimination. Px 1. The failure of the Examiner to look 
for evidence of disparate treatment suggests that this finding of 
race discrimination may more properly be termed a finding that 

the Postal Service did not consistently apply its qualification 
standards. While the Postal Service does not challenge the pre­
sumption Chisholm is entitled to as a result of the administratie 

finding, it challenges Chisholm's efforts to characterize the

2V  See, e.g., Chisholm's claim that the Postal Service failed 
"to prove class member McCombs was not the victim of discrimina- 
ation. Chisholm's Brief, p. 45. Compare Texas Community 
Department of Community Affairs v . Burd ine 49 U.S.L.W. 4214 
(March 3, 1981).

-21-



decision as more than it really was. Second, however, Chisholm 
mistates the Postal Service's rebuttal burden. Chisholm's Brief, 
p. 44. In this Circuit, the Postal Service must demonstrate by 

a "preponderence of the evidence" that Chisholm would not have 
been given a finance position had he been interviewed. Sledge 

v. J.P. Stevens & Co., 585 F.2d, 625, 637 (4th Cir. 1978) cert.

^en« t 440 U.S. 981 ( 1979 ). In all other respects, the Postal 
Service rests on pp. 14-18 and 46-47 of its Brief for its 

proposition that Chisholm was not qualified for the finance 
positions he sought.

VI. The Judgment Would Be Improper 
Even if Relief Were Warranted.

The Postal Service does not dispute that a "trial court's
discretion in shaping relief is . . . broad" in a case like
this. Chisholm's Brief, p. 5. It merely submits that the Court's

discretion is not completely unlimited. If, for example, the
Trial Court was correct in finding O/S 100 was illegal, that
does not justify a conclusion that every examination was illegal.

To take another example, if it is assumed arguendo that affirma-
~  2 2 /

tive promotional relief is ever appropriate by a federal agency,
the Trial Court has no discretion to order it five years after

it has found that the discrimination has ceased. '■

Chisholm contends that the Postal Service cannot complain
that its collective bargaining agreements are adversely affected

22/ See dissenting opinion of Justice Stewart to the denial of 
certiorari in Minwick v. California Dept, of Corrections No. 79- 
1213 (June 1, 1981).

-22-



Brief,by the decree because, he says, its reach is not clear, 
p. 48. But the decree he drafted for the Trial Court's signature 

does not exclude matters subject to negotiated contracts. It 
is for the Trial Court to state with precision what it meansi
to enjoin; not for the Postal Service to prove that the decree 

does not mean what it appears to mean. Rule 65, Federal Rules 

of Civil Procedure.
Chisholm's defense of the injunction against transferring 

employees into Mecklenburg County rests on a finding that Postal 

Service-procedures resulted in less qualified persons being 
transferred into Charlotte and that those procedures could not 

meet a business justification test. Brief, p._4£. But he cannot 

prove a violation of Title VII by convincing the Court that the 
postal Service "misjudged the qualifications" of the persons 

transferred. Texas Department of Community Affairs v. Burdine,

49 U.S.L.W. 4214, 4217 (March 3, 1981). Instead he must prove 
that the transfers were motivated by racial animus, or that 

the transfers were made pursuant to a facially neutral policy 
which adversely affected blacks. The managers who made the 
transfers were not in the Charlotte Post Office, and there is 

no evidence that they were racially biased. Postal Service 
Brief, p. 11. Nor is there evidence that transfers were made

tpursuant to a policy which would allow a disparate impact claim, 

or, for that matter, of the existence of a disparity. Tr. 720.

-23-



Counsel for Chisholm having notified counsel for the Postal 
Service that they will withdraw their statement that their

motion for over a quarter of million dollars in attorneys fees 

was unopposed, the Postal Service does not respond to that charge. 
All other arguments which it has not responded to have been met

in the Postal Service's principle Brief.

VII. CONCLUSION

Based on the foregoing and upon the entire record in this

matter, the Judgment and Memorandum of the District Court should

be reversed
Respectfully submitted,

STEPHEN E. ALPERN 
Associate General Counsel

DAVID G. KARRO 
Attorney

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

-24-

rr̂ ftrv— -f



CERTIFICATE OF SERVICE

I certify that on June 8, 1981, I mailed one copy of the 

foregoing Appellants' Brief to each of the following attorneys 
by express mail:

Jonathan Wallas, Esquire 
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

Louis L. Lesesne, Jr., Esquire 
2060 First Union Plaza 
Charlotte, North Carolina 28282

Bill Lann Lee, Esquire 
Suite 2030 
10 Columbus Circle 
New York, New York 10019