Franks v. Bowman Transportation Company Reply Brief for the Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 72-3239

HAROLD FRANKS,

and
Plaintiff-Appellant,

JOHNNIE LEE,
Intervenor-Appellant, 

- vs -
BOWMAN TRANSPORTATION COMPANY, ET AL.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Northern District of Georgia

REPLY BRIEF FOR THE APPELLANTS

HOWARD MOORE, JR.
ELIZABETH R. RINDSKOPF

75 Piedmont Avenue, N.E.
Suite 1154
Atlanta, Georgia 30303

JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN

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

Attorneys for Plaintiff-Appellant and 
Intervenor-Appellant



TABLE OF CONTENTS

PAGE

Table of Authorities ................................  i
REPLY BRIEF

I. BOWMAN'S ATTEMPTS TO MINIMIZE THE SEVERITY 
OF ITS DELIBERATELY DISCRIMINATORY EMPLOY­
MENT PRACTICES ARE REFUTED BY THE RECORD .... 1
1. Road Driver Hiring.....................  1
2. Transfer from Dock Department..........  5
3. Promotion and Transfer from Tire Shop... 5

II. THE DISTRICT COURT ERRED IN REFUSING TO 
CONSIDER AWARDS OF BACK PAY TO
MEMBERS OF THE CLASS.......................  6

III. A RECENT FOURTH CIRCUIT DECISION ACCORDS 
WITH APPELLANTS’ REQUEST FOR FULL USE 
OF COMPANY SENIORITY BY VICTIME OF
DISCRIMINATION.............................  10

IV. BOWMAN'S CONTENTION THAT AN AFFIRMATIVE 
REMEDY OF RATIO HIRING WOULD VIOLATE 
TITLE VII HAS BEEN REPEATEDLY REJECTED.... 11
1. The Franks claim......................  11
2. The Lee claim .......................  12

CONCLUSION........................................  13
CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES

Cases
Page

Bowe v. Colgate-Palmolive Co., 416 F.2d 711
(7th Cir. 1969).................................... 8

Johnson v. Georgia Highway Express, Inc., 417
F .2d 1122 (5th Cir. 1969)..........................  8

LeBlanc v. Southern Bell Telephone and Telegraph 
Co., 333 F.Supp. 602 (E.D. La. 1971), aff'd 
per curiam 460 F.2d 1228 (5th Cir. 1972),
cert, denied 5 EPD 1(8021 (1972)....................  8,9

N.L.R.B. v. Clark, F.2d , 81 LRRM 2353
(5th Cir. 1972)....................................  12

Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971)....................................  8

Schaeffer v. San Diego Yellow Cabs, Inc., 462
F . 2d 1002 (9th Cir. 1972)..........................  9

Southern Illinois Builders Assn. v. Ogilvie, F.2d
, 5 EPD ^8085 (7th Cir. No. 71-1771,

December 1, 1972)..................................  10
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971)................................  13
Syres v. Oil Workers Union, Local 53, 257 F.2d 479

(5th Cir. 1958), cert, denied 358 U.S. 929 (1959) . 9
United States v. Chesapeake and Ohio Railway Co.

F.2d (4th Cir. No. 72-1297, December
26, 1972)................................ .. . . . 10

United States v. Jacksonville Terminal Co., 451 
F.2d 418 (5th Cir. 1971), cert, denied 31 
L.Ed.2d 815 (1972) ..............................  7

United States v. Lathers, Local 46, F.2d ,
5 FEP Cases 318 (2nd Cir. No. 72-1345,
Jan. 2, 1972)....................................  11

i



Statutes and Other Authorities

Page
Advisory Committee Note to Federal Rules of Civil

Procedure, 39 F.R.D. 69.............................. 8
National Labor Relations Act, 29 U.S.C.

§§151 et s e q ........................................ ..
Rule 23(b)(2), Federal Rules of Civil Procedure ..........  8,10
Title VII, Civil Rights Act of 1964,

42 U.S.C. §2000e et seq. . . . . . . . . . .  . . .  passim
42 U.S.C. §2000e-2(j)............................  11
42 U.S.C. §2000e-5(f) ............................  7



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 72-3239

HAROLD FRANKS,
Plaintiff-Appellant,

and
JOHNNIE LEE,

Intervenor-Appellant, 
- vs -

BOWMAN TRANSPORTATION COMPANY, 
et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Northern District of Georgia

REPLY BRIEF FOR APPELLANTS
I. BOWMAN'S ATTEMPTS TO MINIMIZE THE SEVERITY OF ITS 

DELIBERATELY DISCRIMINATORY EMPLOYMENT PRACTICES 
ARE REFUTED BY THE RECORD .

1. Road Driver Hiring.
Bowman's brief attempts to persuade this Court that its 

corporate policy not to hire Black Road Drivers was understandable



for practical reasons, and that in any event not many Black 
applicants were injured by the policy (Bowman brief at 2-6).
The facts belie the latter assertion, and the former can have 
no conceivable weight in this Court of law.

(a) Far more than a "handful" of Blacks applied 
before 1970.
Appellants' exhaustive statistical and documentary evidence 

did include only a handful of pre-1970 applicants. The appellants' 
inability to identify a larger number of such applicants was 
due to the fact that Bowman's application records, which appellants 
sought to discover back to July 2, 1965 (Third Interrogatories 
to Defendant Company, #1), were kept only as far back as 1970 
(see Bowman's answer to same; and 137a). The testimony of both 
of Bowman's pre-1970 hiring officers indicates that a substantial 
number of Blacks did apply. Dwight Rice agreed that he might 
well have received one per month in 1959 and other early years, 
and as many as one per week by 1968 (115a). Sam Crisco also 
agreed that he might have received as many as one per week after 
1967. The record shows 62 Black applicants in 1970 (889a).

(b) A great number of post-1969 Black applicants 
had qualifications which satisfied Bowman's minimal 
requirements.
Bowman's basic qualification standards were a good driving 

record and one year's truck driving experience. It is impossible 
to predict how Bowman would have evaluated the driving record 
of its numerous Black applicants during the period when it refused

2



to consider Black applicants regardless of qualifications. In 
any event no such evaluations were made; race alone was the 
decisive factor. With regard to the one year experience standard, 
however, an objective survey can be made. Of Bowman's 229 Black 
applicants in 1970-1971, 146 (almost two-thirds) showed at least 
one year of truck-driving experience on their applications.
Bowman rejected 127 of these applicants. Bowman was able to verify 
sufficient experience in the cases of 59 Black applicants, but 
still rejected 40 of them. (889a-891a) It bears repeating, in 
addition, that Bowman was hiring white applicants with no exper­
ience at all during these years (Appellants' main brief at 10).

(c) Bowman's assertions that nearly all Black appli­
cants were rejected for non-racial reasons, and that very 
few Blacks were as qualified as the whites actually hired, 
are not credible.
Bowman's assertion that Black applicants "uniformly failed 

to meet the qualifications" (brief at 4) is founded solely on the 
conclusory testimony of Sam Crisco. (256a-257a) Mr. Crisco 
hired hundreds of white drivers in a four year period, but no 
Blacks. (226a, 251a, 887a) He discriminatorily rejected 
Intervenor Lee's application (22a, 239a) because at the time it 
was his policy not to hire Black Road Drivers. (248a) Crisco 
also testified that he never had a single qualified Black applicant, 
and that all his Black applicants were less qualified than all 
the whites whom he hired. (256a-257a) Yet, the record shows 
that Crisco hired a large number of whites with atrocious driving

3



records. The driving records and prior experience of nine white
drivers hired during the period when Johnnie Lee was unsuccessfully
applying are summarized in a document entitled Intervenor's

- 1/Designation of Evidence Relating to Road Driver Hiring. This 
document summarizes information contained in Plaintiffs' Exhibit 
P-l(s). The only conclusion possible upon review of this document 
is that Bowman received and rejected dozens of applications from 
Blacks who were better qualified than whites who were hired as 
Road Drivers or Trainees.

(d) Bowman's claim that Intervenor showed no instance 
of discrimination against an identifiable Road Driver 
applicant, other than himself, squarely contradicts the record. 
Bowman's discussion of the claims of two Road Driver appli­

cant witnesses, McLaughlin and Harbor, neglects to mention that
the District Judge found them apparent victims of discrimination. 
(6a) The facts of record summarized above also show that dozens
of other Black applicants with apparently adequate qualifications 
were denied consideration for strictly racial reasons. These 
individuals are identifiable; indeed the record contains full

1 / Included in this list are the following examples: (i) J.C.
Wilson, hired January 11, 1970, had three speeding convictions 
in last three years, license suspended in 1969, had been fired 
from last job because of chargeable accident occurring one week 
before date of application, (ii) John Jarnagin, hired January 30, 
1970, had no truck-driving experience, and had two traffic 
convictions plus one accident in 1969. (iii) Alan J. Gunter had 
no truck-driving experience, two recent accidents, and two 
recent traffic convictions.

4



particulars already. (See Bowman's Answers to Third Interro­
gatories, #1.) Appellants have therefore made out an unrebutted 
prima facie case of individual discrimination against the large 
number of applicants who met the minimum standards, but who applied 
before the very recent dates when Black applicants were first 
considered for hiring at the various terminals.

(e) Bowman had vacancies for qualified OTRs throughout
the period relevant to this case.
The availability of OTR openings at Bowman can be characterized 

as continuous. Bowman hired at least 324 white drivers in 1965- 
1969, before Blacks were even considered. (887a) Its Road Driver 
force has experienced a 50% annual turnover rate. (I08a-109a,
667a) As a result, Bowman constantly seeks to hire more drivers, 
with or without experience. (667a) No Road Driver applicants 
at Bowman are rejected for lack of openings.

2. Transfer from Dock Department.
Bowman concedes that at least two Blacks who were hired onto 

the Dock before Blacks were considered for Road Driver positions 
are apparently qualified for OTR jobs (brief at 7). Others of 
the 18 Black Dock/City Department workers might also qualify.
All of these have suffered injury by deprivation of the oppor­
tunity to transfer to OTR, if qualified, without loss of seniority.

3. Promotion and Transfer from Tire Shop.
Bowman asserts that, with rare exceptions, the Blacks in the 

Tire Shop never sought any other job and were content with their 
position, the worst, lowest-paying job at the Terminal (brief

5



at 8-10). The tire changers' testimony refutes that contention. 
Three current tire changers and two discharged tire changers 
all testified that they had personally sought transfer or pro­
motion (main brief at 17-19) . Furthermore, there was testimony 
that "not all the guys, [but] practically all of them" had re­
peatedly sought better jobs. (324a-325a) Indeed, it is re­
markable that even a substantial minority of the tire changers 
would have so testified, in light of Bowman's threats and actions 
against Blacks who sought advancement (main brief 17-19) •

Similarly, the Company's position that virtually all of the 
tire changers had specifically sought to be hired into only that 
job, and preferred not to move up, must strain the Court's 
credulity. Judge Smith more realistically found that referrals 
were according to race. (5a) It is clear that a number of tire 
changers have unsuccessfully sought to escape the trap of racial 
restrictions in the past. They now have a right to full relief.

II. THE DISTRICT COURT ERRED IN REFUSING TO CONSIDER 
AWARDS OF BACK PAY TO MEMBERS OF THE CLASS.

Bowman echoes the District Court's unsubstantiated general­
ities about "opening, qualification, and performance" in arguing 
against appellants' class back pay claim. As we pointed out in 
the appellants' main brief (at 42-43), these generalities bear no 
relation to this case. In reply to these and other inapplicable 
abstractions we have further spelled out what the facts show in 
this record. (supra at 2-6 ). In this case, a significant
number of class members - both applicants and employees - were 
economically injured by Bowman's discriminatory practices.

6



Bowman's citation to the opinion in this Court in United
States v. Jacksonville Terminal Co., 451 F.2d 418, 446 (1971), 
cert, denied 31 L.Ed.2d 815 (1972), does not buttress the Company's 
argument. Appellants have abundantly met the Jacksonville 
Terminal standard with respect to the class and a large number of
class members, as a reading of Section IV of that opinion, 451

_2/
F.2d at 443-448, the context of that citation, makes clear.

Next and somewhat inappropriately Bowman emphasizes the 
Congressional preference for conciliation instead of litigation.
In fact, of course, Bowman had no interest whatever in concil­
iation, as is indicated by its continued brazen discrimination in 
the face of EEOC charges, investigations, and decisions. Where 
conciliation has failed - as here it failed by reason of Bowman's

_aJintransigence rather than EEOC's lack of diligence - Congress intended 
to establish a full and effective remedy for victims of unlawful

discrimination through litigation, 42 U.S.C. §2000e-5(f). Indeed, 
if the ultimate resort to litigation is incapable of providing 
an effective remedy, discriminatory employers will lose all in­
centive to conciliate at all.

2 / The Jacksonville Terminal Court dealt in that Section with 
the question of discrimination vel non in post-1965 hiring. It 
discussed class-wide proof (which appellants obviously made here ) . 
It had no reference to the requirements for individual relief to 
class members, after class-wide discrimination had been shown.
That is the issue here.
3 / Bowman received EEOC's decision finding discrimination in the 
Terminal in December, 1969 (815a), and was told by EEOC to hire 
Black Road Drivers everywhere in mid-1970 (118a). Nevertheless, 
Bowman continued to discriminate until after suit was filed and in 
some respects until the injunction issued.

7



Both defendants argue broadly that the class action device, 
carefully revised with intensive study in 1966, does not apply 
to monetary relief. This argument would certainly receive short 
hearing in a securities regulation class action, or an antitrust 
or price-fixing class action. It is to be taken seriously here, 
merely because human rights and economic benefits are inextricably 
linked?

The painstaking draftsmanship of the revised Rule nowhere 
indicates that such a limitation was intended. On the contrary. 
Rule 23(b) (2) is_ fully applicable to civil rights actions as well 
as other commercial actions, as the drafters intended, see 
Advisory Committee Note, 39 F.R.D. 69, 102 (1966). As this Court
and others have recognized, the monetary relief here sought is 
neither the exclusive nor the predominant aspect of the remedy; 
tie back pay relief is incidental to and part of the class-wide 
remedy. Johnson v. Georgia Highway Express. Inc., 417 F.2d 1122, 
1125 (5th Cir. 1969); Robinson v, Lorillard Corp.. 444 F.2d 791,
802 (4th Cir. 1971); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 
720 (7th Cir. 1969) . The Fourth Circuit in Robinson has explicitly 
held that this factor brings back pay within the ambit of the 
Rule 23(b)(2) class action, 444 F.2d at 801-802.

Bowman also relies on the last-ditch invocation of discretion 
by the district judge (10a), buttressed by this Court's affirmance 
of Judge Heebe1s decision in LeBlanc v. Southern Bell Telephone 
and Telegraph Co.. 333 F.Supp. 602 (E.D. La. 1971), aff'd per

8



curiam 460 F.2d 1228 (1972), cert, denied 5 EPD ^8021 (1972).
Nothing in LeBlanc contradicts our position here. The situation 
here is worlds apart from that of LeBlanc. where the employer's 
unlawful conduct was compelled by a mandatory state protective 
law, see 333 F.Supp. at 611. The Ninth Circuit has already 
perceived and relied upon this distinction. In Schaeffer v. San 
Diego Yellow Cabs, Inc., 462 F.2d 1002 (1972), that Court con­
sidered a back pay claim against an employer which had violated 
Title VII by adhering to an invalid state protective law both 
before and after it was declared federally defective. The Court 
denied back pay for the period of good-faith reliance, but 
awarded back pay from the time the employer had notice that its 
conduct pursuant to the protective law violated Title VII. 462 
F.2d at 1007-1008. Here, of course, Bowman's practices cannot be 
excused or justified in any manner cognizable in law.

Defendant unions, conceding that the on-point Title VII cases 
of several circuits support appellants' view, seek to resurrect 
Syres v. Oil Workers Union, Local 53. 257 F.2d 479 (5th Cir. 1958), 
cert, denied 358 U.S. 929 (1959), as a bar to back pay here. That 
decision has little continuing vitality in the present context.
It was brought against a labor union under the National Labor 
Relations Act, 29 U.S.C. §§151 ejb seq., under a theory of breach 
of the duty of fair representation to Negro members, see Syres v. 
Oil Workers Union, Local 53, 350 U.S. 892 (1955). Unlike Title
VII, the N.L.R.A. of course contains no back pay provision for 
claims of this nature.

9



On the particularly compelling facts of this case, the breadth 
of Rule 23(b) (2) and the purpose of Title VII both require that

_4/the class back pay remedy be made available here.

III. A RECENT FOURTH CIRCUIT DECISION ACCORDS WITH 
APPELLANTS' REQUEST FOR FULL USE OF COMPANY 
SENIORITY BY VICTIMS OF DISCRIMINATION.

We have already shown that the district court's decree is 
defective in failing to grant full seniority relief to class 
members. (Main brief at 26-29) We note that defendant Unions, 
the guardians of the employees' interests, have not disputed 
appellants' request, here or at trial. In a recent decision, 
United States v. Chesapeake and Ohio Railway Co., F.2d
(4th Cir. No. 72-1297, December 26, 1972), the Fourth Circuit 
has considered and vacated a lower court seniority remedy. The 
defect found in that remedy was that it only partially corrected 
the ongoing effects of past discrimination. The same principle 
applies here, and we refer the Court to Judge Butzner's thorough 
discussion.

4 / We do not suggest that this Court should at this stage attempt 
to anticipate or resolve all the questions as to procedures for 
determining class members' entitlements, computations of amounts 
due, etc. Those issues must be initially faced by the district 
court on remand. We simply seek reversal here, with instructions 
that the district court must provide for proceedings in which 
the back pay remedy will be made available to non-plaintiff class 
members in amounts to be determined by such proceedings.

10



IV. BOWMAN’S CONTENTION THAT AN AFFIRMATIVE REMEDY 
OF RATIO HIRING WOULD VIOLATE TITLE VII HAS BEEN 
REPEATEDLY REJECTED.

Appellants have requested affirmative relief including hiring 
of qualified Black OTRs according to a ratio (main brief at 
30-32). Bowman baldly asserts that such a remedy would violate 
§703(j) of Title VII, 42 U.S.C. §2000e-2(j) - the Act's provision 
against preferential treatment for any group. In addition to the 
many cases rejecting that contention which we have cited pre­
viously (see main brief at 32), two more Courts of Appeals have 
squarely ruled in favor of appellant's position in recent weeks. 
See United States v. Lathers. Local 46. F.2d , 5 FEP
Cases 318, 321-322 (2nd Cir. No. 72-1345, Jan. 2, 1973), and 
Southern Illinois Builders Assn, v. Oqilvie, F.2d , 5  EPD
H8085 (7th Cir. No. 71-1771, December 1, 1972) at 6944-6945. 
Bowman's position obviously finds no support in courts of law.

V. THE INDIVIDUAL CLAIMS.
1. The Franks claim.
Bowman asks this Court to invoke an extremely harsh and 

tortured interpretation of statute of limitations law against 
Harold Franks, the victim of its blatant discrimination. Bowman 
postures as an innocent party subjected to unfair surprise and 
prejudice by Franks' course of action. The Company's position 
wholly ignores the facts showing that it was in no way prejudiced 
here. Bowman had actual notice of the first suit letter - unlike 
plaintiff Franks - in March, 1969 (Bowman brief at 19; 970a-971a).

11



Both of the Franks charges were served and investigated in the 
Spring of 1968 (12a, 973a). The 1971 filing of this suit could 
not have come as a surprise. In fact, Bowman was fully able to 
present contentions, evidence, and witnesses at trial, as the 
record reflects. The district judge simply ruled against Bowman 
on every factual point.

N.L.R.B. v. Clark, F.2d ,81 LRRM 2353 (5th Cir.
1972) does not support Bowman's position. Significantly, the
Court there noted that

The record also does not contain any state­
ment by Clark denying that he received notice, 
and there is a strong inference from all of 
the facts that he had notice. 81 LRRM at 
2356 [dictum].

See also, dissenting opinion of Judge Godbold, 81 LRRM at 2359. 
Moreover, the purpose of the Clark ruling was to construe 
statutory notice provisions in such a manner as to effectuate 
the goals of the national labor policy. In contrast, it would 
thwart the national fair employment policy to bar the plaintiff's 
meritorious Title VII claim despite the fact that he had no 
actual notice of the first right to sue letter.

2. The Lee Claim.
The keystone of Bowman's argument on the Intervenor's dis­

charge claim - and of the district court's decision - is that 
Lee occupied the same position as a number of whites who were 
also terminated. This overlooks the entire thrust of inter­
venor's proof. Lee was unlike any other dischargee. First, he 
was Black. The record of pre-and post-hiring discrimination

12



against Lee individually and others of his class shows that 
Lee’s circumstantial evidence that white mechanics in all like­
lihood altered his fuel pump is far more than mere speculation. 
Second, Lee is the only dischargee whose termination has been 
conclusively determined to be without cause, under the union 
contract.

Finally, since Bowman has asked the Court to draw inferences 
regarding who had motivation for the fuel pump alteration (brief 
at 33), we point out that the circumstances cast strong doubt 
on Bowman’s position. Lee had no motive for leaving in a "stinger” 
when he left the truck for servicing, knowing that automatic 
discharge would follow its discovery. His testimony shows that 
he has for years diligently struggled to become and remain a 
Road Driver. If the Court is to speculate on motives, as Bowman 
suggests, those considerations can only buttress intervenor's 
position.

CONCLUSION
Defendant Company attributes some significance to impli­

cations of the historic Supreme Court decision in Swann v. 
Charlotte-Mecklenburg Board of Education. 402 U.S. 1 (1971).
We agree that the Court's discussion of the breadth of equitable 
discretion available to a federal court to remedy racial dis­
crimination is highly pertinent outsude the school-desegregation 
area. But to read that endorsement of discretion as extending 
to the unjustified denial of equitable relief perverts the spirit

13



of that landmark decision. The broad power to invoke equitable 
remedies carries with it a broad responsibility, of particular 
force in cases of invidious race discrimination. The Court
below recognized only its power, but not its responsibility. 
This Court should therefore provide for a full remedy.

Respectfully submitted,

±5 i ̂HOWARD MOORE,
ELIZABETH R. RlNDSKOPF

75 Piedmont Avenue, N.E. 
Suite 1154
Atlanta, Georgia 30303

JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Plaintiff-Appellant
and

Intervenor Appellant

14



CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that on the 
day of January, 1973 he served a copy of the foregoing Reply 
Brief for the Appellants upon William Pate, Esq., 6th Floor, 
Atlanta Federal Building, Atlanta, Georgia 30303 and Robert B. 
Hocutt, Esq., 2400 National Bank of Georgia Building, Atlanta, 
Georgia 30303 by depositing copies of same in the United State 
mail, with adequate postage affixed thereto.

A t v ,  X ... v ; . -MvfolYVi
Attorney for Plaintiff-Appellant 

and InteisA/enor-Appellant