Shipp v TN Department of Employment Security Respondents in Opposition

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978 

No. 78-1158

ERONEOUS SHIPP, 
Petitioner,

v.
TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, et al.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Of Counsel 
WILLIAM M. LEECH

HENRY HAILE 
HAILE & MARTIN, P.A.

916 J.C. Bradford Building 
Nashville, Tennessee 37219

SAM McALLESTER, JR.
Tennessee Department of 

Employment Security 
Cordell Hull Building 

Nashville, Tennessee 37219
DONALD C. CAULKINS 

Deputy Attorney General
450 James Robertson Parkway 

Nashville, Tennessee 37219 
Counsel for Respondents

Attorney General 
State of Tennessee

St. Louis Law Printing Co.. Inc.. 812 Olive Street 63101 314-231-4477



TABLE OF CONTENTS

Page

Opinions B e lo w .........................     1

Jurisdiction ...........................................    1

Question Presented ..................................................................  2

Statement....................................................................................  2

Argument ......................................................    5

Conclusion.............................................................   7

Table of Cases

Department of Banking v. Pink, 317 U.S. 264 ..................  1

East Texas Motor Freight v. Rodriguez, 431 U.S. 395. .5, 6, 7

Foreman v. United States, 361 U.S. 4 1 6 ...........................  1
Franks v. Bowman Transportation Company, 424 U.S. 747 6

McDonnell Douglas Corp. v. Green, 411 U.S. 792 .........  6

Teamsters v. United States, 431 U.S. 324 ......................... 6



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-1158

ERONEOUS SHIPP,
Petitioner,

v.
TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, et a!.

On Petition for a W rit of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The court of appeals’ opinion —  F.2d — 17 F.E.P. cases 
1430 (Aug. 7, 1978) is in petitioner’s Appendix pp. 37(a)- 
54(a). The opinions of the district court on December 20, 1974 
and Sept. 25, 1975 are not officially reported but are found 
in the petitioner’s Appendix, pp. la-8a and 9a-36a.

JURISDICTION

The judgment of the court of appeals was entered on Au­
gust 7, 1978. A  petition to rehear was filed on Aug. 18, 1978 
and overruled on October 26, 1978. The petition for a writ of



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certiorari was filed on January 24, 1979 and is therefore out 
of time under Rule 22(2) of the rules of this Court. But see 
Department of Banking v. Pink, 317 U.S. 264, 266 (1942); 
Foreman v. United States, 361 U.S. 416 (1960). The jurisdic­
tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

The three questions presented by the petition in this case 
are not fairly raised in the record in the opinion of the court 
of appeals. The true question presented is whether this case, 
which was never certified as a class action— or even asked to 
be certified as a class action— may be properly maintained as 
a class action and whether the plaintiff is a proper representa­
tive of a never-defined and never-certified class of persons 
alleging that they were discriminated against by the Memphis 
area office of the Tennessee Department of Employment Se­
curity.

STATEMENT

After a bifurcated bench trial in the United States District 
Court for the Western District of Tennessee in Memphis on 
March 20-22, 1974 and April 23, 1975, a lengthy opinion and 
judgment in favor of the defendants was entered on September 
25, 1975. The court held that the plaintiff, Eroneous Shipp, 
had not been subjected to any discrimination based on race in 
the decision of the Memphis Area Office of the Tennessee De­
partment of Employment Security not to refer him for a job 
at a local industrial plant and that the defendants had not 
engaged in a pattern or practice of racial discrimination which 
would entitle a class of persons purportedly represented by 
named Plaintiff Shipp to any relief. The Court of Appeals 
affirmed, Pet. App. 37a-54a.



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1. On March 7, 1969, the plaintiff, Eroneous Shipp, a black 
man, responded to an advertisement placed by the Memphis 
Area Office of the Tennessee Department of Security on black- 
oriented Memphis radio station, WLOK, announcing a job 
opening for an assistant traffic manager. Shipp, a school teacher, 
called the Memphis area office, inquired about the job and 
described his qualifications. He received a discouraging an­
swer but, undismayed, picked up an application and on the 
following Monday appeared at the local office, clipboard in 
hand. He demanded to be referred to the job, and took notes 
on everything that was said. The interviewer advised him that 
he was not qualified and refused to refer him. When he insisted 
that she call the employer anyway, she did, and only then 
learned that the job had been filled from another source. Plain­
tiff then angrily accused the interviewer of not referring him 
because of his race, confronted her superiors, and then retired 
to his lodgings to draft a statement based on his notes of the 
experience. After re-writing the statement several times, Shipp 
presented his report to the NAACP and then filed a timely 
complaint with the Equal Employment Opportunity Commis­
sion. After the EEOC investigation was completed and within 
30 days after receiving notice of his right to sue, plaintiff filed 
this civil action, alleging that the original defendant, Memphis 
Area Office of the Tennessee Department of Employment Se­
curity, discriminated against Negro job applicants by classify­
ing and referring them exclusively to badly-paid, menial, un­
skilled or demeaning jobs without regard to actual abilities, 
experience and interest of those applicants.

2. No Rule 23 certification of the class was ever made or 
even requested. The petition states at Page 5 that “ at a pre-trial 
conference on March 8, 1974 plaintiff expressly sought a more 
formal ruling on the propriety of the class action.” Ths state­
ment is not supported by the record. Another statement (on the 
same page) that the court took no formal action because “coun­
sel for TDES stipulated that the March 8, 1974 conference of



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the case was a proper class action” is not supportable either. 
Nevertheless, it is beyond dispute that the District Court con­
sidered what it repeatedly called the “class action” aspects of 
this case,” (see, e.g., Pet. App. 10a) at great length, and held 
that no pattern or practice of discrimination on the basis of race 
for the Memphis Area Office could be demonstrated. Experts 
for both sides agreed that no such pattern was shown by the 
computerized data presented, including detailed records of over 
52,000 referrals by the Memphis Area Office. Disparities in 
the wage levels of TDES referrals by race (TDES referrals are 
almost 70 per cent black) were explained by Dr. Joseph Ullman, 
plaintiffs’ expert, as resulting from the differences in education 
and experience levels of white and black applicants. Sophisti­
cated control methods employed by the plaintiff’s expert to 
eliminate natural disparity arising from these differences were 
successful. The defendants’ expert, Temple University Depart­
ment of Statistics chairman, Dr. Bernard Siskin, was able to 
demonstrate that the Memphis Area Office (which both sides 
agreed was specifically organized to aid the disadvantaged) 
could actually be said to be affirmatively discriminating in 
favor of black who were, on the average, referred to better­
paying, higher-skilled jobs than whites with similar education 
and job experience.

3. The court of appeals held that the district court’s finding 
that the plaintiff had not been discriminated against was not 
clearly erroneous. Pet. App. 49a-50a. The court of appeals 
further held that plaintiff was not eligible to represent a class of 
persons who were allegedly injured by discrimination because of 
the district court’s finding that he was not injured himself and 
and the fact that this finding preceded certification. The Court 
of appeals specifically stated “plaintiff never motioned the Court 
for class certification, nor did the District Court certify the class 
suu sponte.” The court of appeals added that, since Shipp had 
never been a TDES employee or even an applicant, his bid to 
represent a class of TDES employees failed to meet the typicality 
requirement of Rule 23(a)(3). Pet. App. 52a.



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ARGUMENT

1. The petition would have considerably more appeal if it 
correctly reflected the content of the record and the holding of 
the court of appeals. For example, it is clear that the district 
court did not “erroneously fail to certify the class action,” but 
that the plaintiff failed to request such a certification. And the 
pretended “stipulation” during the pretrial conference, where the 
plaintiff “expressly sought a more formal ruling on the propriety 
of the class action” is not supported by the record, to put it 
mildly. Petitioner’s statement that the Sixth Circuit held that 
“ the District Judge, despite two requests by plaintiff’s counsel 
[neither of which are in the record], erroneously failed to decide 
whether the case should be formally certified as a class action” 
(Pet. 9) does not fairly reflect Judge Keith’s holding for the 
unanimous Court. What Judge Keith did say was that Shipp 
was not a proper class representative because (a) his individual 
claim was held to be without merit before certification and (b) 
his claim was not typical because of his failure to be a member 
of the class— or one part of the class— he sought to represent—  
namely TDES’ employees and applicants for employment. In­
deed, except for the petitioner’s attempts to supplement the rec­
ord with non-existent requests for certification and “stipulations” 
this case is identical to the procedural situation in East Texas 
Motor Freight v. Rodriguez, 431 U.S. 395 (1977).

2. Petitioner’s second reason for granting the writ alleges 
that the court of appeals’ decision holds that an individual claim 
of discrimination can be rejected without deciding whether 
there is a pattern of practice of discrimination. The court of 
appeals held no such thing. Indeed, the District Court made 
two rulings that Shipp’s individual claim was without merit. 
The first ruling was made only after the Judge had heard all 
the evidence on Shipp’s individual claim and all of the plaintiffs 
evidence, statistical and otherwise, on the pattern and practice



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allegations. It is true that the plaintiff asked the Trial Judge 
to reconsider the ruling on the individual claim. He did so and, 
after hearing the defendants’ pattern and practice evidence, re­
affirmed his initial holding. The procedure employed was en­
tirely consistent with the holdings of this Court in McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 804-805 (1973); Team­
sters v. United States, 431 U.S. 324, 357-62 (1977); and 
Franks v. Bowman Transportation Company, 424 U.S. 747, 
772-773 (1976).

Whatever merit here is to petitioner’s implied argument that 
the Trial Judge erred in deciding the plaintiff’s individual claim 
without making an actual finding on the existence of a pattern 
or practice of discrimination (even though he had already heard 
the plaintiff’s entire case) was certainly remedied by his recon­
sideration and reaffirmation of his holding after hearing the 
defendants’ expert.

We agree that even in the case where a trial judge denies 
certification— properly or improperly— the individual plaintiff 
would be entitled to discover and introduce evidence of a general 
practice of discrimination in support of his own claim. The 
court of appeals did not hold to the contrary. There is nothing 
in the petitioner’s argument on this issue which deserves plenary 
review of this Court.

3. Petitioner’s third argument that certiorari should be granted 
to clarify what form of Order is required to constitute a class 
certification under Rule 23 is similarly contrived. Whatever 
form of order is required, it is clear that some kind of order is 
required. Since the plaintiff never even sought an order and 
since the district court entered none at all, there is no reason 
to grant certiorari on this issue, since it is entirely unnecessary 
to the decision of this case after East Texas Motor Freight v. 
Rodriguez, supra.



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CONCLUSION

This case is no different from East Texas Motor Freight v. 
Rodriguez. The petition for a writ of certiorari should be denied.

Respectfully submitted,

HAILE & MARTIN, P.A.

HENRY HAILE