Patterson v. The American Tobacco Company Reply Brief for Appellees and Cross-Appellants

    II! THE
Uh ITlI; states court of appeals

FOR THE l JURTH CIRCUIT

Nos. 75-1259, 75-1260, 75-1261

JOHN PATTERSON, et al,
Appellees, etc.,

vs.

THE AMERICAN TOBACCO COMPANY, et al,
Appellants, etc.,

and
. .ivnAiuui j.Hx>,KWiU iOwAj.' UNION, et al,

Appellants, etc.

Appeal from the United States District Court 
for the Eastern District of Virginia

REPLY BRIEF FOR JOHN PATTERSON, et al, 
APPELLEES AND CROSS-APPELLANTS

;I

HENRY L. MARSH, III
S. W. TUCKER 
JOHN W. SCOTT, JR.
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH

214 East Clay Street 
r. O. Box 27363 
Richmond, Virginia 23261

JACK GREENBERG 
ELAINE R. JONES 
BARRY L. GOLDSTEIN 
MORRIS J. BALLER

10 Columbus Circle 
Suite 2030
New York, New York 10019 
Counsel for Appellees



TABLE OF CONTENTS

TABLE OF CITATIONS ----------------------------------------  iii
INTRODUCTION ---  1
ARGUMENT --------------------------------------    2

Page

I. American's Argument That The District Court 
Lacked Jurisdiction Of Patterson Is 
Meritless ----------------- 1---------------

II. The Facts Of The Instant Case Clearly Support 
The District Court's Finding That American 
Discriminates In The Selection of Supervisory 
Personnel ------    4
A. American Failed To Rebut Plaintiffs' Proof 

Of Discrimination In Selection of
Supervisors ----------------------------------- 4

B. American Failed To Show The District Court's
Remedy Improper ------------------------------- 7

ill. The District Court Appropriately Fashioned An
Immediate Posting and Bidding Procedure Designed 
Finally To Terminate The Discriminatory Effects
Of The Past Segregated Employment System ---------  8
A. The Relief Granted Finds Support In Title

VII And Its Legislative History--•------------ 9
B. Nothing In Title VII Or Its Legislative

History Restricts The District Court In 
Fashioning Relief ---------------------------- 14

C. The Early Decisions Do Not Preclude Relief
As Granted In The Instant Case ----------------  17

D. The Specific Relief Granted Is Required
By The Law And The Evidence------------------ 21

E. Equitable Considerations Support Red
Circling-------------------------------------- 2 6

IV. The Defendant Company's Statistical Evidence
Demonstrates That Blacks Are Still "Locked In"
To The Lower Paying Positions At The Branch
Plants --------------------------------------------  28



11
TAELE OF CONTENTS 

(Continued)

V. The EEOC's Approval Of The Establishment Of 
"Lines of Progression" Has No Bearing On The 
Decision Of The District Court -------------------- 31

VI. The District Court Correctly Ordered "inter 
Branch Transfer Rights Based On Company- 
Wide Seniority" To Insure Adequate Relief
For All Members Of The Class --------------- ---..- 33
A. The Richmond And Virginia Branches Must 

Be Considered As A Single Facility If 
Meaningful Relief Is To Be Provided For
All Cl ass Members -------------- ■-------------- 33

B. Section 703(h) of Title VII Is Not Appli­
cable To The Case At. Bar ---------------------- 35

VII. The District Court Properly Found That The 
TWIN Was Liable For The Unlawful Employment 
Practices At The Company --------------------------  36

VIII. The Five-Year Statute Of Limitations Controls
The §1981 Action---------------------------------  39

CONCLUSION ------------------------------------------------  4 2



Ill

TABLIJ OF CI TAT I OKS
Pago

Alexander v. Gardner-Denver Co., 415 U.S. 36
(197 4 ) ------------------------------------- 21

Alexander v. Holmes County Board of Education,
396 U.S. 19 (1969)------------------------ 25

Allen v. Gifford, 462 F.2d 61s (4th Cir. 1972)- 39,40
Almond v. Kent, 459 F.2d 200 (4th Cir. 1972) -- 40,41
Austin v. Reynolds Metals Co., 327 F.Supp. 1145

(E.D. Va. 1970) ---------------------------- 3
Barnes Coal Corp. v. Retail Coal Merchant's

Assn., 123 F . 2d 645 (4th Cir. 1942) -------  ' 40,41
Boston Chapter N.A.A.C.P., Inc. v. Beecher,

504 F . 2d 1017 (1st Cir. 1974) -------------  3
Brown v. Board of Education, 349 U.S. 294

(1955) ------------------------------------- 20
Brown v. Gaston County Dyeing Machine Co.,

457 F .2d 1377 (4th Cir. 1972), cert, denied,
409 U.S. 982 (1972) ---------- ------------- 4,21

Bush v. Lone Star Steel Company, 37-3 F.Supp.
526 (E.D. Tex. 1974) ----------------------- 14

Carey v. Greyhound Bus Co., 500 F .2d 1372
(5th Cir. 1974) --------   36

Contractors Association of Eastern Pennsylvania 
v. Secretary of Labor, 442 F.2d 159 (3rd 
Cir. 1971), cert. denied, 404 U.S. 854
(1971) --------      7

Cox v. United States Gypsum Co., 409 F.2d 289
(7th Cir. 1969)--:------------------------- 3.

Fagan v. National Cash Register Co., 481 F .2d•
'1115 (D.C. Cir. 1973) ----------------------- 31

Franks v. Bowman Transportation Co., 495 F .2d 
398 (5th Cir. 1974), cert.. granted, 43
U.S.L.VJ.__(1975) —  ■------- ----— ---------- 16,27

Green v. County School Board of New Kent
County, 391 U.S. 430 (1968) ---------------  14,18,21,25,27

Griggs v. Duke Power Company, 401 U.S. 424
"(1971) -------------------   5,7

Grimm v. Westinghouse Electric Corp., 300 F.
Supp. 984 (N.D. Cal. 1969) ------------------ 31

Jersey Central Power £ Light Co. v. Local 327,
I LEW, 508 F. 2d 687 (3rd Cir. 1 975) --------  27

Johnson v. Goodyear Tire £ Rubber Company, 491
F . 2d 1364 (5th Cir. 1974 ) ----------------- 36

Jurinko v. Edwin E. Wiegand Co., 477 F .2d 1033, 
vacated and remanded on other grounds, 414 
U.S. 970 (1973) , reinstated,' 497 F.2cl 403
(3rd Cir. 1974 ) ---   27

Lea v. Cone Mills Corp., 301 F.Supp. 97 (M.D.
h'.C. 1909), aff'd in part, 4 38 F. 2d 8 6
(4th Cir. 1971) -----—  — ------------------- 35



. M

TABLE OF CITATIONS 
(Continued)

Lemon v. Kurtzman, 411 U.S. 1S2 (19 7 3) -------  26
Local 53 of International Ass'n. of Heat &

Fros-t I. & A. Workers v. Vogler, 4 07 F . 2d
1047 (5th Cir. 1 969) ------  35

Local 189, United Papermakers & Paperworkers 
v. United States, 416 F. 2d 980 (5 th Cir.
1969), cert, denied, 397 U.S. 919 (1970)--  16,17,10,19,2.1,

22,23,31
Louisiana v. United States, 380 U.S. 145

(1965) ------------------------------------- 14
Macklin v., Spector Freight Systems, Inc., 478

F . 2d 979 (D.C. Cir. 1973)--- -------------- 3,2.1,36
Meadows v. Ford Motor Co., 510 F . 2d 93-9 (6th

Cir. 197.5) --------------------------------  27
Myers v. Gilman Paper Corp., 9 EPD f,j9 9 2 0

(S.D. Ga. 1975) -----   38
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177

(1941) --------------------    16,17
Quarles v. Philip Morris, Inc., 279 F.Supp.

5 05 (l',.D. Va. 19 68) ---------------- -------  17,18,19,21,22,
2 3

Revere v, Tidewater Telephone Company, 6 EPD
118961 (4th Cir. 1973) -----------    40

Robinson v. Lorillard Corporation, 444 F.2d 
791 (4th Cir. 1971), cert, dismissed, 404
U.S. 1006 (1971) ------ —--- --------------- 5,10,36

Rock v. Norfolk and Western Railway Co., 473 
F .2d 134 4 (4th Cir. 1973), ccrt. denied,
411 U.S. 939 (197 3) -------- ---—  —  — ----  10

Rogers v. Internationa], Paper Co., F. 2d
__ , 9 EPD 119865 (8th Cir. 1975)"----------- ' 5,23

Sabalu v. Western Gillette Inc., 362 F.Supp.
1142 (S.D. Tex. 1973) ---------------------- 38

Sprogis v. United Air Lines, Inc., 444 F.2d 
1194 (7th Cir. 1971), cert. den., 404 U.S.
991 (1971) ---------- — ------- ------------ 31

Swann v. Chariotte-llecklenburcj Board of
Education, 402 U.S. 1 (1971) --------------  14,25,26

Taylor v. Armco Steel Corp., 8 EPD 1(9550 (S.D.
Tex. 19 7 3) ---------------------------------  8

Terrell v. U.S. Pipe and Foundry Corp.,
7 EPD 119055 (H.D. Ala. 1973) --- -----------  38

Tillman v. West-Haven Recreation Association,
Inc., ___ F.2d __  (4th Cir. 1975), decided
April 15, 1975, No. 14,9 57 ----------------  24

Tippett v. Liggett & Myers Tobacco Co., 316
F.Supp. 292" (M.D. N.C. .1970)-------------- 3

United States v. Bethlehem Steel Corp., 446 
F . 2d 652 (2nd Cir. 1971)

iv

Pago

22



« 4fa

TABLE Or CITATIONS 
(Continued)

United States v. Dillon Supply Co., 429 F .2d
BOO (4th Cir. 1970) ---------------------  5

United States v. Hayes International Corp.,
■ 4 56 F . 2d 112 (5th Cir. 1972) --------------  22

United States v. Jacksonville Terminal Company,
45.1 F.2d 418 (5th Cir. 1971), cert. denied,
406 U.S. 906 (1972) ------------ 22,35

United States v. Sheet Metal Workers
International Ass'n., Local 36, 416 F .2d
123 (8th Cir. 1969) -----------------------

United States v. United States Steel
Corporation, 371 F.Supp. 1045 (N.D. Ala.
1973) -------------- -----------------------

Waters v. Wisconsin Steel Works, 502 F .2d 1309
(7th Cir. 1974) ... — ---------------------

Watson v. Memphis, 373 U.S. 526 (1963) -------
Westover Court Corp. v. Lley, 185 Va. 718

(1946) ------- -----------------------------
Williamson v. Bethlehem Steel Corp., 468 F .2d 

1201 (1972), cert, den., 411 U.S. 931 (1973)
Worrie v. Boze, 198 Va. 533 (1956)--:--------

V

Page

14,22
27
25

4 0,4 .1
22
41

Statutes
United States Code:

42 U.S.C. §1981 -------------------- -- ---- 3,4,7,21,37
42 U.S.C. §198 3 ---------------------------- 39,4 0
42 U.S.C. §2000e (Title VII) --------------  11
42 U.S.C. §2000e-2 (a) ---------------------  ' 10
42 U.S.C. §2000e-2(c) ---------------------  11,39
42 U.S.C. §2000e-2(h) ---------------------  35
42 U.S.C. §2000o-2(j) ---------------------  7
42 U.S.C. §2000e-5(q) ---------------------  11
42 U.S.C. §2 00Oe-5(j) ---------------------  11
42 U.S.C. §2000o-12(b) --------------------- 31
29 U.S.C. §160 (c) -------------------------  13

86 Stat. 103 ----------------------    11
Code of Virginia, 1950, as amended:
■ §8-24 -----   39

r«T



ii

TABLE OF CITATIONS 
(Continued)

vi

Pane

Law Reviews
Gould, Employment Security, Seniority and Race:

The Role of 'i'it.1 e VII of_ the Civil Rights
Act of 1964 , 13 Howard L.J. 1 (1967) ------  2 3

Note, Title VII, Seniority Discrimination, and 
the Incumbent Negro, BO Harv. L. Rev. 1260
(1967) ---------------------------- 16,17,19,23,27

Otlier Authorities
110 Cong. Rec. 7213 (1964)   15
118 Cong. Rec. 4972 (1972) --------------------  12
118 Cong. Rec. 7168 (1972)     11
29 C.F.R. §1601.30 31



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Nos. 75-1259, 75-1260, 75-1261

JOHN PATTERSON, et al,
Appellees, etc.,

vs.
THE AMERICAN TOBACCO COMPANY, et al,

Appellants, etc.,
and

TOBACCO WORKERS INTERNATIONAL UNION, et al,
Appellants, etc.

Appeal from the United States District Court 
for the Eastern District of Virginia

REPLY BRIEF FOR JOHN PATTERSON, et al, 
APPELLEES AND CROSS-APPELLANTS

INTRODUCTION
Neither the Company nor the Unions attempt to refute 

the plaintiffs' extensive presentation of the basic facts which 
support the district court's findings of liability. Instead, they 
suggest that certain inferences might be drawn from selected 
factual assertions. In this reply brief, plaintiffs will respond
to these contentions.



2

With respect to the district court's finding that the 
promotional practices arc racially discriminatory, the defendants 
argue that the introduction of the posting and bidding system 
in 1968 satisfied their responsibilities under the Act. With 
respect to the finding of discrimination in the selection oi. 
supervisory personnel, they merely say that they are in line 
with other employers in the Richmond metropolitan area.

The defendants contend that, in ordering the only 
relief which can overcome the continuing effects of prior dis­
crimination in this case, the district court disregarded inhibi 
tions which they read into the statute as previously construed 
by the courts. It is the position of the plaintiffs that the 
district'court correctly found that, without the relief which it 
fashioned, the defendant's promotional system would continue to 
freeze black employees into discriminatory patterns that existed 
before the Act and that, accordingly, such relief is mandated 
by the statute.

I
AMERICAN'S ARGUMENT THAT THE DISTRICT COURT 
LACKED JURISDICTION OF PATTERSON IS MERITLESS
American somewhat imaginatively argues that the district 

court erred in failing to dismiss the Patterson case on the 
ground that the plaintiffs' January 3, 1969 EEOC charges were
not timely filed (Co. Hr. at 40-41). This argument is erroneous 
in fact and liiw.

Factually, American's argument is premised on the 
assertion that all discrimination ended by January 15, 1968



3
(Co. Dr. at 41). That assertion is wrong. As the district court 
held (Mem. Op. at 6-7, 8-9) and as plaintiffs have exhaustively 
shown (PI. Br. at 16-21), discrimination continued by reason of 
the use of departmental preferences on temporary vacancies, pro­
tected jobs, lines of progression, and the prohibition on inter­
plant transfers.

But even if ail discrimination had ended in 1968, 
American's position could not prevail. The nature of the pre- 
1968 discrimination shown by plaintiffs was continuing, as the 
district court found (Mem. Op. at 6-7). The abandonment of 
certain of those practices in 1968, without implementation of 
affirmative action to eliminate' the continuing effects of past
discrimination, could not suddenly cut off the plaintiffs' right

1/  'of action. Cox v. United States Gypsum Co., 409 F.2d 289, 290 
(7th Cir. 1969); Mack1in v. Speckor Freight Systems, Inc., 478 
F. 2d 979 , 986-7 (D.C. Cir. 1973); Austin v. Reynolds Me t a1s 
Co., 327 F.Supp. 1145, 1152 (E.D. Va. 1970); Tippett v. Liggett 
k Hyers Tobacco Co. , 316 F.Supp. 292, 29 6 (M.D. N.C. 1970) .

Moreover, plaintiffs' case was properly before the 
court under 42 U.S.C. §1981 regardless of the timeliness of EEOC 
charges. American concedes that the first charge was filed less 
than one year after the January 15, 1968 elimination of some of 
its discriminatory practices (Co. Br. at 41). Plaintiffs hatve 
argued that the filing of the EEOC charge tolled the running of

1/Plaintiffs' .1969 EEOC charges alleged continuing 
practices of discrimination (App. 36).



4

the statute of limitations applicable to the §1981 claim (PI. Br. 
at 62-64). Unless this Court rules against plaintiffs on 
that contention, the filing of this action under 42 U.S.C. §1981. 
was within the applicable statute of limitations.

II
THE FACTS OF THE INSTANT CASE CLEARLY SUPPORT 

THE DISTRICT COURT'S FINDING THAT AMERICAN DISCRIMINATES 
IN THE SELECTION OF SUPERVISORY PERSONNEL

A. American Failed To Rebut Plaintiffs' Proof
Of Discriinination In Se] ection Of Supervisors.

American's argument against the district court's
2/

finding of discrimination in supervisory selection completely 
omits discussion of most of the relevant facts on which that 
finding rests. Instead, the Company dwells solely on statistical 
indicia of discrimination and exclusively on post-1965 vacancies.
This Court must refuse this invitation to put on blinders. Upon 
the whole record, the finding of discrimination should be affirmed.

American's analysis of a ciise " lw] here a finding of 
discrimination is predicated purely on statistics" (Co. Br. at 42) 
is misdirected here. Plaintiffs proved, and the district court 
found, that American's selection process was racially discrimi­
natory in nature as well as effect. Brown v. Gaston County Dyeing 
Machine Co. 457 F.2d 1377, 1382-1383 (4th Cir. 1972), cert denied
409 U.S. 982 (1972), (see plaintiffs' brief at 21-23,

2/
The union defendants do not address this issue, claim­

ing to be uninvolved. See, e.g^, Brief of Local 182 in Patterson 
at pp. 5-6. But of. the district court's specific finding of
local union participation in supervisory selection, Stip. 1,
No. 56, App. 52.



49-50). American's temporal restriction of its statistical 
analysis to post-1965 vacancies is similarly unfounded. Title 
VII reaches not only renewed practices of post-1965 discrimina­
tion, but also facially neutral practices that perpetuate the 
effects of pre-1965 discrimination. Griggs v. Duke Power Co.,
401 U.S. 424, 429 (1971); United States v. Dillon Supply Co.,
429 F.2d BOO, 803-4 (4th Cir. 1970); Robinson v. Lori Hard 
Corja. , 4 4 4 F. 2d 7 91, 7 9 5-6 (4 th Cir. 1971), cor t dismissed, 404 
U.S. 1006 (1971)? Rogers v. International Paper Co.,
F.2d 9 EPD 119^65 (8th Cir. 1975) at p. 6590. Therefore,
the mere promotion of 8 Blacks out of 27 new supervisors since 
1965 at the Richmond and Virginia Branches does not suffice to 
satisfy American's legal duty to eliminate the vestiges of its 
past discrimination. Moreover, the record shows that American's 
hiring percentages began to improve not with the passage of Title
VII, but only with the filing of EEOC charges of discrimination'

4/
some four years later. American's simplistic justification of 
its post-1965 practices would have the court ignore the Company's 
responsibility for the continuing effects of its earlier policy

3/

3/
American implies that the record fails to show racial 

exclusion because no individual testified that he or she sought 
and was denied a position (Br. at 42 n. *). That contention is 
inapplicable to this case since /American provided no way for 
interested employees to apply for supervisory positions (Stip. I, 
No. 58, App. 53.

1/On May ]6, 1969, only 4% of the supervisors at 
Virginia Branch were black; at Richmond Branch, American had only 
a single black supervisor until 1971; and there lias never been a 
black supervisor at Richmond Office (see Pi. Br. at 23). More­
over, even after this suit was filed in 3973, American had only 
promoted one Black in any of its facilities above the lowest supervisory level (id.).

»-*



6
of exclusion. Its post-1965 performance is particularly inadequate 
since American's work force then contained many long-tenured, 
loyal, and experienced Blacks who would already have been super-

5/visors but for defendant's segregationist policies.
American's attempt to compare its hiring statistics to 

an imaginary figure for the number of Blacks in the Richmond 
"supervisory work force" is doubly defective. First, it extra­
polates from available data on the basis of entirely hypothetical

6/
assumptions (Co. Br. at 14) . Second and more fundamentally, census 
data based on jobs actually held reflects not just the qualifica­
tions or interest of black job-holders, but also the nature of 
opportunities open to them. Thus, American's reliance on 
purported estimates of Blacks in the SMSA "supervisory work 
force" incorporates the exclusionary practices of other Richmond 
employers as a basis for a finding of non-discrimination.
Common sense verifies that absurd conclusions flow from this

5/
Similarly 19 qualified white candidates advanced to 

supervisory positions, leaving an "enriched" pool of black talent 
in hourly paid jobs. American presented no evidence that it had 
attempted to identify able Blacks or to encourage their advancement.

£/
American's calculation assumes, without justification, 

that Blacks and Whites respectively are evenly distributed among 
the three separate census categories of crafts, foremen, and 
"related." It is noteworthy that the district court was cognizant 
of "the scarcity of qualified [black] craftsmen" (App. 39; cf.
Co. Br. iit 44). Craft jobs such as electrician do require some 
concrete skills and knowledge which Blacks might not have obtained 
in Richmond. American's supervisory jobs wore not shown to 
require any such technical knowledge, and the district court 
did not identify any scarcity of potential black supervisors.



7
twisted logic when American concludes that only 12% of available 
supervisory personnel are black and only 5% are female (Co. Br. at 
14 n. **). This conclusion is indefensible in light of the 
absence of objective standards or educational requirements for 
American 1s supervisors.

B. American Failed To Show The District 
Court1s Remedy_Improper____________

American does not contest the propriety of the
changes in its selection procedures ordered by the district
court, but attacks only the provision for temporary preferential
appointment of Blacks and females as being impermissible under
Title VII. American's argument is misplaced. It relies
primarily on the authority of Griggs v. Duke Power Co., supra,
on Section 703 (j) of Title VII, 42 U.S.C. §2000e-2(j), and on its

7/
legislative history (Co.Br. at 45-4G). The discussions cited deal 
with a situation fundamentally different from that of the case 
at bar; they consider quotas or preferences in the abstract, 
not as remedial measures designed to terminate the effects of 
discrimination. All the authorities relied on by plaintiffs (PI.
Br. at 53-54) are careful to specify that such preferences 

are constitutionally and statutorily proper only as a necessary

7/
American does not address the propriety of the relief 

under 42 U.S.C. §1981. liven if its discussion of §703 (j) as a 
limitation on Title VII relief had merit, that reasoning would 
not preclude the district court from granting the relief under 
42 U.S.C. §1981. Section 703 ( j) docs not limit the remedies 
available under statutes other than Title VII. Contractors 
Association of Eastern Pennsylvania v. Secretary of Labor, 442 
i’.2d 159, 192"" (3rd Ci r."~19 7I) , cert, denied-4 0'4 u7s.~ 854“ (1971) .



8
remedy for past discrimination.

Ill

8/

THE DISTRICT COURT APPROPRI/\TELY FASHIONED 
AN IMMEDIATE POSTING AND BIDDING PROCEDURE 

DESIGNED FINALLY TO TERMINATE THE DISCRIMINATORY 
EFFECTS OF THE PAST SEGREGATED EMPLOYMENT SYSTEM

"As a man is said to have a right to his property, 
he may be equally said to have a property in his 
rights * * * If the United States means to obtain 
or deserve the full praise due to wise and just 
governments, they will equally respect the rights 
of property, and the property in rights." James 9/ 
Madison, in the National Gazette, March 29, 1792.

8/See also Boston Chapter NAACP, Inc. v. Beecher, 504
F.2d 1017 (1st Cir. 19741, cert, denied, __ U.S. __(April 15,
1975), where the circuit court said:

"The goal of color blindness, so important 
to our society in the long run, does not mean 
looking at the world through glasses that see 
no color; it means only that colors are moral 
equivalents, to be treated on an equal basis.
We believe that our society is well served by 
taking into account color in the fashion 
used . . . [quota relief] by the district court.
[Id at 1027]

*  *  *

"Title VII was amended in 1972 and the legislative 
debates at that time, particularly the failure 
of Congress to pass the Dent amendment which 
would have foreclosed all affirmative action plans 
and racial balance relief, lend support to the 
inference that Congress ratified the power of 
the courts to impose color conscious relief of 
the sort that had been approved in several 
cases at the time the attempts to amend the 
amendments to Title VII failed." (Id. at 1028.)

9/
Quoted in Taylor v. Armco Steel Corp. , 8 EPD 119550

(Sept. 14, 1973 , S.D. TexT) .



9

A. The Relief Granted Finds Support In
T i t lo_ VII And_ J t s_ 1 »og is 1 ativc History

The defendants' practices have in large part resulted
in the long-term black workers' being relegated to the lower-

10/
paying,-more menial jobs. As a result of these discriminatory
policies, Blacks have received only token opportunity to promote
or "qualify" for higher-paying jobs. The adverse effects of
this discrimination were increased by the relatively static con-

11/dition of the work force. Consequently, Blacks have suffered
and will continue to suffer severe economic harm until they
attain the job positions which they would have hud but for

12/
the discriminatory practices of the defendants.

.1 0/
The defendants have used several practices since 

1965 which have preserved the racial inequity in job opportunity 
and earnings; c.g., the 900 hour "qualification" requirement, the 
filling of vacancies on a "temporary" basis, the ban on inter- 
Branch transfer, the establishment of segregated seniority rosters, 
and the establishment of line of progression requirements (PI.
Br. at .11-21, 29-38. Sec also p. 3, supra) Moreover, the over­
whelmingly white supervisory staff, by selective communication 
concerning job opportunities, has contributed to the continuance 
of discrimination. See PI. Br. at 35, n.57, and p. 5 supra.

11/See PI. Br. at pp. 20-21, and pp. 28-30, inf ra. In the 
top-four paying jobs in the fabrication department of the Virginia 
Branch (the department at the Company which contains the greatest 
earnings opportunities) there were only 60 vacancies from January 
15, 1968 through October 2, 1973 (PI. Br. App. "D".). As a result 
Blacks, as of December 31, 1973, held only 28 or 65 of these top­
paying jobs, whereas Whites held 457 or 947, (Pi. Br. App. "F").

12/The loss in earnings is substantial. As of December 
31, 1973 (excluding post-1967 hires) white males averaged $4.39; 
or $.56 or 155 more than the $3.83 per hour which black males 
averaged (Pi. BrT~App. "G"). Black females also earned less than 
white females (Id.).



10

The district court designed relief which would terminate, 
once and for all, the discrimination which has kept Blacks out 
of the better-paying, more desirable jobs.

The court established a practical and equitable system
for the posting and bidding for hourly production jobs at the
Company with all jobs being filled on the basis of a non-
discriminatory seniority criterion, company seniority (App. 168-
174; see PI. Br. 41-42 ). The district court structured the
system in a practical and equitable fashion. The court excludedIV
certain key jobs from the immediate posting and bidding system 
and provided that white workers would not suffer any reduction 
in earnings (I_d.) .

This aspect of the relief fashioned by the district 
court is consistent with the plain meaning of the statutory 
language and, under the circumstances here presented, the 
relief is consistent with the Congressional purpose. The pro­
vision which defines unlawful practices is broadly drawn:

It shall be an unlawful employment practice for an
employer--

*  *  *

(2) to limit, segregate, or classify his
employees or applicants for employment 
In any way which would deprive or tend 
to deprive any individual of ompToyment 
opportunities or otherwise adversely 
affect h1s status as an employer because

13/
Any restriction on relief which is required to 

terminate the effects of discrimination must meet the stringent 
"business necessity" test. Rob.i nson v. Lori Hard Corporation, 
444 l'.2d /91, 798 (4th Cir. 1971) cert dismissed 4 04 U.S. 10 06 
(1971), Rock v. Norfolk & Western Railway Co., 473 F.2d 1344, 
1349 (4th Cir. 1973) cert denied 411 U.S. 939 (1973).

■ff



11
of such 
sex, or 
Section

individual's race 
national origin. 
703(a), 42 U.S.C.

color/ religion, 
(emphasis added). 
§ 200 Oe-2(a) . W

As a parallel to this all-inclusive definition of unlawful 
practices, the Congress provided district courts with wide dis­
cretion to enforce the strong public policy to terminate dis­
crimination in employment. Section 706 (g) , 42 U.S.C. §2000e-5(g) 
reads in pertinent part,

. . . the court may . . . order such affirmative action
as may be appropriate, which may include, but is not 
limited to, reinstatement or hiring of employees, 
with or without back pay . . . or any other equitable
relief as the court deems appropriate. . .

The plain meaning of the statute, that the judicial remedy was
intended to terminate all aspects and effects of employment
discrimination, was made explicit by tire sponsors of the Equal

15/
Employment Opportunity Act of 1972, which amended Title VII
of the Civil Rights Act of 1964. The Conference Committee
of the House and Senate in its Scction-by-Section Analysis
reiterated the Congressional intent to give the district courts
plenary remedial powers:

The provisions of this subsection [706(g)] are 
intended to give the courts wide discretion in 
exercising their equitable powers to fashion 
the most complete relief possible. In dealing 
with the present section 706(g) the courts have 
stressed that the scope of relief under that

14/
Section 703(c), 42 U.S.C. §2000e-2(c) contains 

similar language defining unlawful union practices.

PI. 92-261, 86 Stat. 103
15/



12
Section of the Act is intended to make the 
victims of unlawful discrimination whole, and 
that the attainment of this objective rests 
not only upon the elimination of the particular 
unlawful practice complained of, but also requires 
that persons aggrieved by the consequences and 
effects of the unlawful employment practice be, 
no far a_s possible, restored to a position where 
they would have been were it not for the-unlawful
discrimination. 118 Cong. Rec. 7168 (1972).(emphasissuppl ied ,T 6/

The district court's remedy accomplishes the Congressional 
purpose. Blacks are placed in the jobs"where they would have 
been were it not for the unlawful discrimination."

Moreover, the remedy makes good sense. It is perhaps 
easiest to evaluate the court's remedial order by a straight­
forward example. A worker (who happens to be white) receives 
a job promotion instead of another worker (who happens to be 
black) because of the unlawful practices of the Union and 
the Company. The white worker is no more qualified than the 
black worker and has less seniority; accordingly, if the dis­
torting factor of discrimination had been absent, the black worker 
would have been awarded the job. It is difficult to argue 
with the proposition that equitable relief from discrimination 
would require that the black worker be placed in the job he would 
have had if the Union and the Company had not discriminated.
The white worker is not prejudiced by this order of relief since 
ho is simply placed in the position he would have had if he had

16/Senator Williams, a principal sponsor of the 
Ecjual Employment Opportunity Act of 1972, introduced a similar 
analysis into the Record in the Senate prior to the Senate's 
passage of the Act. 118 Cong. Rec. 4972 (1972).



13

not been afforded a discriminatory and unlawful advantage. The
apparent equity of the district court's order, providing for the
victims of unlawful discrimination to achieve the job position
which they would have had, absent the unlawful conduct, has been
routinely recognized and implemented under §10(c) of the National

18/
Labor Relations Act, 29 U.5.C. §160 (c).

Furthermore, the continued denial of opportunity to 
black workers to work jobs which they had previously been denied 
by discriminatory policies causes a continuing substantial 
economic loss (See. PI. Br. at 43-43 ). The plain fact of 
the matter is that a black worker, who is working as a "catcher" 
and who,as a result of various discriminatory practices, has been 
denied equal access to the job of "packing machine operator" in 
the Virginia Branch, continues to earn approximately $.65 less 
per hour than he would have earned if it were not for these 
discriminatory practices (PI. Br. App. "F" ). Whatever the
form of relief provided by the district court, it must provide 
a remedy which prevents this continued economic loss suffered 
by Blacks as a direct result of the defendants' discrimination. 
The lower court, by providing an opportunity for Blacks to 
attain the jobs they would have had but for the discrimination,

17/

17/
In fact, the white worker has directly benefited by 

the discrimination of the defendants. If not for discrimination, 
he would have been working in lower job classifications. He has 
therefore gained "windfall" income.

18/
See PI. Br. at 48-49.



1 4

has effectively remedied the problem of continuing economic
19/

harm.
B. Nothing In Title VII Or Its Legislative 

History Restricts The District Court In 
Fashioning Relief______________________

Neither the Company nor the Union discussed the
appropriateness of the district court's remedy for terminating'
employment discrimination; rather, the defendants rely on several
arguments which purport to carve out exceptions to the undeniable
Congressional purpose of providing full relief from discrimina-

20 /
tion.

21/
There is nothing in the statutory language nor the 

legislative history which prohibits the court's remedy. Rather, 
the statute and the legislative history, as set out supra, 
pp. 30-12, indicate approval of district courts' fashioning

19/
Other district courts, which did not order any dis­

placement of incumbent workers, provided that Blacks would be 
compensated for "future" economic harm. United States v United 
States Stcel Corporation, 371 F.Supp. 1045, 1060,' n.38 (N.D.
Ala. 1973); Bush v. Lone Star Steel Company, 373 F.Supp 526, 538 
(E.D. Tex 197 4)7 see PI. B r. at 43-4 3).“  "

20/
The Supreme Court has consistently held that the 

district courts have broad discretion to frame remedies which 
will fully terminate the effects of discrimination. Louisiana v. 
United States, 380 U.S. 145, 154 (1965); Green v. County School 
Board of New Kent County, 391 U.S. 430, 439 (1968); Swann v.
Chari ofte-Mocklenburg Board of Education, 402 U.S. 1, 15, 21 (1971) .

21/
The Company does not make an argument based on 

the statutory language. The Union's argument, which is based on an 
interpretation of §703 (h) of Title VII, is inapposite to the 
issue presented. See fn.39 , infra.



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16

basis of race, may lie afforded "fictional" seniority.
"Fictional seniority" is not at issue here. No workers

would be fired or laid off as a result of the decree; rather,
the district court lias ordered that the jobs at the Company
be redistributed on the basis of a non-discriininatory criterion,
the actual seniority of employees. Neither the Clark-Case
Memorandum nor the Congress directly confronted the question
of appropriate relief for the victims of discriminatory
seniority systems. Note, Title VII, Seniority Discrimination,

23/
and the Incumbent Negro, SO Harv. L. Rev. 1260, 1271 (1967). The 
statute does not define the explicit relief which is to be 
applied to discriminatory seniority systems. The Supreme 
Court lias stated with respect to a statute (the NLRA) similar 
to Title VI1 that "unlike mathematical symbols, the phrasing 
of such social legislation . . . seldom attains more than
approximate precision of definition," and therefore it is 
proper to seek guidance in the broad legislative policy.
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185 (1941). In light 
of the strong Congressional purpose to end employment discrimina­
tion and afford full relief "as soon as possible" as made explicit

22/

22/
The Supreme Court has just granted certiorari 

to consider an aspect of this question. Franks v. Bowman 
Transportation Company, 4 95 F.2d 39 8 (5th Cir. 19 7 4)/ "ccfrt. 
granted 43 U.S.L.W. 3510 (March 24, 1975), see footnote 39, infra .

23/
This Note is relied on by both the Company (Br. 

at 33-36) and Local 182 (Br. at 19). Moreover, this Note which 
set forth the various alternatives for seniority relief, "status 
quo", "rightful place" and "freedom now", was the analytic basis 
for the early Title VII cases which prescribe appropriate 
seniority relief. See Local 189 v. United States, 416 F.2d 980,
9 8 8 (5th Cir. 1969), cor t. dcjnied 397 U. sT 919""(1970) .



17
by Congress during the passage of the Equal Employment 
Opportunity Act of 1972, see supra pp. 11-12, the approach 
established by Phelps militates for allowing the district 
court to design relief which will immediately terminate the 
effects of discrimination.

The defendants principally rely on the Fifth Circuit's
1909 decision in Local 189 v. United States, supra, which
suggested that "rightful place" relief, not "freedom now"
relief, is the appropriate remedy for unlawful seniority

24/
discrimination.

C. The Early Decisions Do Not Preclude
Relief As Granted In-The Instant Case

It is crucial that we closely evaluate Local 189
United Papermakers £ Paperworkers v. United Stales, supra,
its specific reasoning, and the authority relied on (or not

25/relied on). Initially, it must be noted that if it was

24/Under the "rightful place" theory the victims of 
employment, discrimination must await future vacancies before they 
can exercise the non-discriminatory seniority criterion to move 
to the job they would have had but for the discrimination. Under 
the "freedom now" theory the victims of employment discrimination 
would be permitted to move immediately, if qualified, to the jobs 
they would have attained but for discrimination. See Local 189 
v. United States, supra at 988. The alternative forms of relief 
are fully described in Note, Title VII, Seniority Discrimination, 
and the Incumbent Negro, supra at 1268-75.

25/The opinion in Quarles v. Phi lip Morris, Inc., 279 
F. Supp. 505 (E.D. Va. 1968), did not reach the present issue. The 
court there stated that Congress did not intend "reverse dis­
crimination" -- the preference of Blacks without seniority over 
Whites with employment seniority, id. at 817. Plaintiffs do not 
seek any preference here, just the effective use of their employ­
ment seniority. (Continued on p. 18.)

FT■ 1.2



18
intended to be of universal application, the Fifth Circuit's

26/
rejection of "freedom now" was dictum. Even if it was intended
only with respect to the case before it, it was unnecessary to
a resolution of the question whether "rightful place" or "status
quo" was appropriate. It was based neither on an interpretation

27/
of the statutory language nor on the legislative history.
Father, the Fifth Circuit relied for its interpretation of appro­
priate seniority relief on equitable considerations and, while
unstated, on the district court's discretion to design effective 

28/
relief. Although the Local 189 analysis may have been proper

(Continuation of footnote 25)
In Quarles, the district court held that a "rightful 

place" theory incorporated in the plant within two and one-half 
years of the effective date of Title VII would reasonably comply 
with the Act. The court did not consider, nor was it asked to 
consider, a "freedom now" theory; moreover, it was not presented 
with facts, as are present in this case, that Blacks are still- 
relegated to the lower-paying, more menial positions almost ton 
years after the effective dale of Title VII.

Similarly, other courts have followed the dictum in 
Local 189 without any re-evaluation of its underlying premises 
because there was no issue that "rightful place" would not be 
effective and no challenge to the "rightful place" theory was 
presented. Finally, as is described, infra, many, years have 
now passed since the effective date of Title VII and courts 
should properly implement remedies that will work to finally 
terminate employment discrimination. See Green v. County 
School Board of New Kent. County, supr a at 438-39.

2_6/
The district court had adjudged the job seniority 

system at Crown-Zellerbach unlawful and had ordered "rightful 
place" relief. The defendants appealed these orders, but the 
government did not appeal the "rightful place" limitation on relief.

27/— The Fifth Circuit stated that the legislative history 
of the Title is singularly uninstructivo on seniority rights."
Local 189 v. United States, supra at 987.

') Q /-— Since the government had not requested back pay, the 
issue of continuing economic harm which results from the "right­
ful place" theory was not presented. See pp. .13-14, supra.



1 9

in the circumstances presented there within a few years after 
the effective date of the Act, it does not follow that it is 
proper in this case. Local 189 clearly does not warrant 
this Court's reversing the application of a "freedom now" 
relief order designed to remedy the continued denial of equal 
employment opportunity ten yoars after the effective date of 

the Act.
However, the Fifth Circuit's suggestion in .Local 

189 that the "rightful place" doctrine accords with the 
purpose and history of the legislation has been read as a flat 
rejection of the "freedom now" concept. That suggestion seems 
to contradict the court's earlier expression of agreement with 
the holdings in Quarles (1) that "[n]othing in §703(h), or in 
its legislative history suggests that a racially discriminatory 
seniority system established before the act is a bona fide 
seniority system under the act," (2) that nothing in the legisl.a- 
pp\/0 history "suggests that as a result Oj' past discrimination 
a Negro is to have employment opportunities inferior to those of 
a white person who has less employment seniority", and (3) "that 
Congress did not intend to freeze an entire generation of Negro- 
employees into discriminatory patterns that existed before the
Act. (416 F.2d at 987-88).

The apparent rejection of "freedom now" mirrors the 
conclusions of the author of the Note (written in 1967), Title 
VI1, Seniority Discrimination and the Ineumbent Negro, supra.
This Note expressed a preference for the "rightful place" 
approach and even indicated that considerations of prudence might



20
dictate acceptance of something lass. As justification for .its . 
position the article pointed out that: (1) The feasibility of
equal employment opportunity legislation depends to a great 
extent on voluntary compliance; (2) the EEOC does not have the 
facilities to oversee all the employers and unions which come 
before it and to police compliance with conciliation agreements 
and court orders; (3) efforts at compliance might provoke possible 
obstructive practices by hostile unions and employers; (4) the 
necessity for court action when conciliation fails may impose a 
considerable financial burden and delay on complainants; and 
(5) some state FEPC1s had refused to seek conciliation agreements 
which adversely affected white seniority rights (id at p. 1282).

Notwithstanding these political considerations, the 
article appears to acknowledge that Title VII requires an adjust­
ment of seniority rights to eliminate differences in present 
competitive status attributable to past employer discrimination. 
What it proposed was a compromise between (1) merely ending 
explicit racial discrimination and (2) affording complete relief 
from discrimination by requiring the displacement of white workers 
or the disruption of their job expectancies. The suggested com­
promise injected into this area of litigation the concept of

29/
"deliberate speed" which had so long frustrated the desegrega­
tion of public schools, and demonstrated that the vitality of 
established law should not be allowed to yield simply because of 
disagreement with it. Cf. Brown v. Board of Education,

Id at p. 127429/

Pf"



21
349 U.S. 294, 300 (1955); Green v. County School Board of New 
Kent Count y, supra.

Clearly, Quarles did not yield to these political 
considerations or adopt "rightful place" as an unvarying 
standard. And it is at least questionable whether Local 189 
did. In those cases the courts perceived that the remedies 
employed would in fact terminate the effects of discrimination 
within a reasonable time.

D. The Specific Relief Granted Is Required 
By The Law And The Ev1 dence_____________

It is now almost ten years since Title VII became 
effective. A denial of complete relief can no longer be 
justified upon "equitable" considerations for resulting incon­
veniences and disruptions. This Court in 1972 applied the- 
Civil Rights Act of 1866 (42 U.S.C. §1981) to tire area of equal
employment opportunity, as other circuits had done. Brown v. 
Gaston County Dyeing Machine Co., supra. See also Alexander v. 
Gardner-Denver Company, 415 U.S. 36, 47, fn 7 (1974); Mack1in 
v. Spector Freight System, Inc., supra, and cases, therein cited 
in footnote 26. That Act is without limitation as to what 
racially discriminatory practices are unlawful and is without 
restriction as to what redress may be extended. In making its 
1972 revisions to Title VII, the Congress again gave to the 
courts the broad remedial power to "order such affirmative 
action . . .  or any other equitable relief as the court deems 
appropriate". Experience has shown that the process of attrition 
following the termination of deliberate discrimination is not



22
30/

efficient in the removal of the effects of past discrimination.
The approximately 150 black workers who wore hired

prior to 1967 average almost thirty years of employment. Yet
these employees remain disproportionately relegated to the lower
paying and more menial jobs (PI. Br. Apps. B, D, F, G). The

31/
numbers of vacancies available to these employees has

30/
Moreover, the high employment rate and continued 

industrial growth which marked industry in the United States in 
the 1960's and led courts to assume that "rightful place" relief 
would be effective, is unfortunately quite different from the 
present state of American industry.

The Second Circuit, in expanding the scope of 
seniority relief available in order to remedy discriminatory 
effects in layoffs and recalls, made the following relevant 
observati on:

" . . .  when the Attorney General instituted the 
earlier case in 1.967 only 3.8 percent of the 
nation's workforce was unemployed. [The Local 189 
case was instituted in January, 1968] . . .
The very first case [Quarles], involving the issue 
of discriminatory seniority and transfer was 
decided only in January of 1968 . . . .  The dis­
criminatory impact of a departmental seniority 
recall system where there have been a multitude 
of layoffs may not have been foreseen by Government 
in the earlier suit [United States v. Bethlehem 
Steel Corp. , 446 F.2d 652 (2nd Cir. 19 7.1.) ] , 
especially where the Government was concerned with 
establishing a favorable precedent. . . "Milliamson
v. Bethlehem Steel Corp., 468 F.2d 1201, 1204 
(.19 7 2) , cert. den led, 41 1 U . S . 9 31 (19 7 3) .

Similarly, the district court properly took economic reality into 
account in order to formulate an effective remedy.

31/It is plain that the term "vacancies" which is used 
in the "rightful place" theory includes "temporary" vacancies 
and "vacancies" created by layoffs. United States v. Hayes 
International Corp., 456 F.2d .112, 119 (5th Cir. 1972); United
States v. Jacksonville Terminal Co. , 4 51 F.2d 4.18, 4 51 (5th Cir. 
T9 7T7“cert7“ lenIed“406 IF. S. 906 (1972) ; United (Continued p. 23)



23

been severely restricted by the Company s practice, yet con 
tinuiny, of filling temporary V3cancies in sucli wanner ns to 
perpetuate the discriminatory pattern. Between July 2, 1965 
and March 1, 1974, 73 whites received permanent'promotions to
automatic machinery operator positions. Of those promotions,
59 occurred prior to the institution of "job posting and employee 
bidd ing" i n 19 6 8 .

But for the violations of Title VII, more of the black 
employees would now be working in these preferred positions.
Seventy-three incumbent white employees wore assigned to these 
positions subsequent to the effective date of tire Act, although 
there were approximately 150 black employees with more seniority.
Neither the lav; 
initially tried) 
would hold that

irote nor Quarks nor Local 18 9, written (or
within three years of the Act's effective date
these assignments were lawful when made and are'

32/
therefore beyond the revisionary reach of Title VII.

(Continuation of footnote 31)
States v. United States Steel. Corporation, supra, at 1056-57. 
Rogers v. Internal;ional Paper Co. , supra, at 1353-56.

Of course, the defendants discriminated against Blacks 
in both the "remanning" of positions after reductions-in-force 
and in the filling of temporary vacancies. (PI. Dr. at pp. 12-15, 
17, 31-35).

32/
"When a seniority right 'matures' in the award of a 

particular job before Title VII's effective date, the award may 
plausibly be viewed as a closed transaction, not subject to 
attack after the Title comes into force." Note, Title VII, 
Seniority Discrimination, and the incumbent Negro, supra, at 1269; 
soq also Gem]d, Employment Security, Seniority and Race: The Bole 
off' Title VII of tlu; Civil' Right's Act of 1.9 64 , 13 Howard L. J. 1,
97 n. ~3 2 "(1 967).'



24

The suggested insulation of the earlier discriminatory
job assignments is not tenable. But for the earlier violations

33/
of the Civil Rights Act of 1866, others of the black employees 
would be- and would have been in these jobs. Earlier literature 
on Title VII does not take the .1866 legislation into account and 
thus it reaches the conclusion that a paramount right vested in 
the white workers who prior to July 1965 had obtained the pre­
ferred job assignments from which Blacks were barred.

If there ever was reason to suppose such vested 
right in any case, it v/ould not apply here. The defendants, 
Company and Unions, do not and have not considered that workers 
have vested rights in their respective job assignments. Prior 
to the enactment of Title VII, the Company, pursuant to agreement 
with the Union, "bumped" senior male employees from preferred • 
job assignments in order to place white females in jobs that 
did not require heavy lifting. Subsequently, a suit styled 
Lindsay v. American Tobacco Company was brought by white males, 
pursuant to 'title VII, alleging unlawful discrimination because 
of sex. The basis for settlement of the suit was that the 
white females were "bumped" from these preferred positions 
by white males with higher seniority (App. 411-413). The 
"bumping" technique was expressly recognized in Collective

33/
"IT]gnoranee of the rights secured by these statutes 

is not a defense to an action brought to enforce them". Tillman
v. Wost-JIavon Recreation Association, Inc., _ F . 2 d __(4 th Cir.
1975) decided April 15, 1975, ho. 14,957.

• r



25

Bargaining Agreements until March 1974. Job placement based
on seniority prevailed, except as to Blacks. More urgently
should it prevail hero to make equal employment opportunity
without regard for race a reality.

After reviewing the continuing effects of the
discriminatory practices by which Blacks were excluded from
the higher paying jobs and the relative scarcity of vacancies,
the district court rightfully concluded that a form of
"freedom now" relief was necessary to insure the effective
implementation of Title VII and that the long-term black
employees at /American Tobacco would at long ]ast have benefit

33/
of equal employment opportunity.

34/

34/
PX 35 FF (1971 and 1974) . Other "bumping" practices 

are mentioned in PI. Br. p. 46.
35/Similarly, in school integration litigation the 

"freedom of choice" remedial plans which grew out: of . the doctrine 
of "all deliberate speed" were, after they proved ineffective in 
certain areas, held to be unconstitutional and school boards were 
required to formulate plans that would work in fact Groan v. 
County School Board of New Kent County, supra, at 438-39:

"The time for mere 'deliberate speed' has 
run out . . . ; the context in which we must
interpret and apply this language [of Brown II] 
to plans for desegregation has been significantly 
altered . . . .  The burden of a school board 
today is to come forward with a plan that promises 
realistically to work, and promises realistically 
to work now." (citations omitted)

Sec also Watson v. Memphis, 373 U.S. 526, 529-531 (1963); 
TQdxaTider v. Holmes County Bd. of lid. , 396 U.S. .19, 21 ( 1969) ; 
Swann v. Char lot to-Mecklenburg lid. of Ed. , supra at 15.



2 6

E. Equitable Considerations 
Support Red_Circling _

The district court ordered that incumbent employees
who might be "bumped" to lower-paying jobs would have their
wages "red-circled" in order to prevent any loss in pay
(App. 41, 172-73). This provision is fully consonant with

36/
the equitable discretion of the district court. First,
the district courts have broad discretion to formulate
equitable decrees which both enforce the statutory policy
and are workable and fair. Swann v. Chariotte-Mecklenburg
Bd. of Ed., supra, at 15, 27; Lemon v. Kurtzman, 4.1.1 U.S.
192, 200-01 (1973). It was a proper exercise of this broad
discretion for the district court to formulate a remedy which
prevented monetary loss to any incumbent who, even though he
might have benefited from discrimination, had not violated
Title VII. Secondly, since the Company in any case would have
had to compensate black workers for continued economic harm
which they would have suffered if "rightful place" relief
had been ordered, the Company has no greater financial

37/
liability under the lower court's remedial order. Under the 
.lower court's order, Blacks have the opportunity to move into 
the job they would have had but for discrimination. Accordingly,

36/
The Company objects to the "red-circling" provision 

for displaced incumbents (Co. Br. 37).

11/ For a description of the Company's liability for 
continuing economic harm,see PI. Br. 42-43, supra, pp. 13-14.



2 7

although they will not be "made whole" as to past losses, they
39/

3_8/

suffer no continuing additional economic harm.
0/

"Rightful place" relief is no "sacred talisman"; it 
may not take precedence over its avowed purpose, i.e., the termi­
nation of employment discrimination. When, as the lower court

38/" . . .  Of course, no theory of Title VII will close 
the gap in lifetime earnings figures, since the economic losses 
exprienced before Title VII became effective cannot be restored." 
Note. Title VII, Seniority Discrimination and the Incumbent Negro, 
supra, fn. 72.

39/
Local 182 makes a further argument in opposition 

to the Court's remedial provision based on several courts of
appeals decisions which indicate that it is not permissible to 
afford "fictional" seniority to Blacks, even though Blacks had 
been denied employment (Local 182, Br. at 9-13). Sec Waters 
v. Wisconsin Steel Works, 502 F.2d 1309 (7th C.ir. 1974); Jersey 
Centra.! Power & Light Cc. v. Local 327, IBEW, 508 ” OA rp'
Cir. 1975); Franks v.
398 (5th Cir. 1974), cert.

Cc. v. Local 3 2 7, IBEW, 5.08 F.2d 687 (3rd 
Bowman Transportation Company, 495 F.2d

(March 24,
1975)

granted, 4a U.S.1..W. 3510
Several courts of appeals which were not mentioned by . 

Local 182 have ruled that Blacks or women who were the victims 
of discrimination may be afforded relief even if it alters an 
employment seniority system. Meadows v. Ford Motor Company,
510 F.2d 939, 948-9 (6th Cir. 1975); Jurinko v. Edwin L.
Wiegand Co. , 477 F.2d 1038, 1046 vacated and remanded on other 
grounds, 414 U.S. 9 70 (19 7 3) , reins t a l: ed, 497 F. 2d 403 (3rd Cir. 
1974); see United States v. Sheet Metal Workers International 
Ass'n. , Local '3 6, 41 6" 1'.'2d 123, "13IT 133-34 ( 8*Lh"Cir T  19691

'i‘hc difficult questions presented by these conflict­
ing opinions are not at issue here. The plaintiffs do not sock 
any "fictional" or "preferential" seniority, they only seek 
to finally utilize in a manner unencumbered by any discrimina­
tion their employment seniority.

40/
See Green v. Connty School Board of New Kent 

County, supra, at 440.



28
found, it is necessary to achieve the Congressional purpose of 
providing equal employment opportunity by a system of relief 
other than "rightful place", this Court should not reverse 
the district court and order relief that would not fully and 
finally terminate the effects of discrimination.

IV
THE DEFENDANT COMPANY'S STATISTICAL EVIDENCE 
DEMONSTRATES THAT BLACKS ARE STILL "LOCKED IN"

TO THE LOWER PAYING POSITIONS AT THE BRANCH PLANTS
The Company makes three statistical, assertions which 

must be clarified if this Court is to understand how Blacks 
have been "locked in" to lower paying traditionally black jobs 
and departments. Although the Company would have the Court 
believe that this data proves that all the vestiges of past 
racial discrimination have now been removed, the statistical 
comparisons witness plaintiffs' arguments.

First, the Company states that from July 2, 19 C 4 to
March 1, 1974, 30 of 145 promotions to operator of automatic
machinery were received by Blacks (Company's Brief, pp. 11 and
22 ). However, the Company did not mention that 1.16 of these
promotions (104 White, 12 Black) occurred during the period
prior to January 15, 1968, when the blatently discriminatory

41/
system of seniority plus "qualifications" was in effect. More­
over, the Company neglects to point out that "automatic machinery

41/
Prior to January 15, .1968 , the Company's system of 

filling temporary vacancies on a departmental basis and its heavy 
reliance on the temporary vacancy system to fill operator posi­
tions all but eliminated the opportunities for Blacks to fill 
these positions.



29
includes "container packer", "schmermund boxer" and 
"prefabrication department" operator classifications which 
either pay lower than packing and making machine operator 
rates or wore already held by Blacks (See Appendix "F1, 
Pa_tJ:erson Brief) .

Secondly, the Company asserts that 166 of the 659
promotions at the Virginia Branch between July 1, 1964 and
March 1, 1974, were received by Blacks (Company's Brief,
pp. 12 and 22). When the number of promotions to the more
desirable automatic machine operator positions is subtracted
from the total number of promotions, the result shows that 514
of these promotions were for laborer classifications in the
prefabrication or fabrication departments,. positions already

42/
hold by the vast majority of black employees.

Thirdly, the Company states that between January 15, 
1968 and November 11, 1974, 50.1% of the employees signing 
for positions and 51.5% of the successful bidders were black 
(Company's Brief, pp. 12 and 23). This simply shows that
the Company's blade employees will aggressively use their 
seniority to improve their position when given an opportunity 
to do so. Moreover, these statistics refute the Company's 
assertion that "a large number of the class members refused to

42/
659 total promotions loss 145 promotions to automatic 

machinery operator (Bee Ex. App. 3, VB-6).



30
bid on vacancies (Company's Brief p. 11.)

Finally, the defendant Company repeatedly refei's
throughout its brief to evidence which was not presented during
the trial of the instant case. Much of the Company's data is
based on information updated through November 11, 1974 (four
months after the trial of this case), which was introduced into

44/
the record through an attempted proffer of additional evidence 
(App. 79-136). The district court examined the defendant 
Company's proffer (App. 162-164) and concluded that the 
requests were "in actuality a reargument of the merits of the 
actions," and that ”[n]o finding of substance [was] requested 
that [had] not boon requested before".

The statistical evidence in the record of this case 
indicates that trie only explanation of the fact that Blacks 
occupy only 28 of the 457 highest paying positions in the TWIU 
bargaining unit is that the Company's racially discriminatory 
practices and policies have prohibited them from obtaining 
these positions (See Appendix "F", Patterson Brief).

43/

43/
To support this assertion, the Company cites the 

testimony of nine class members; three of whom were the first 
black employees to be transferred into the fabrication depart­
ment (Hopkins, Branch and Green); three of whom have been hired 
since 1968 (McLane, Anderson and Dickerson); and two of whom have 
used their seniority to successfully bid on jobs (Mosley, 1971 to 
watchman, App. 367; and, Howard, to learner adjuster, the second 
highest paying classification in the TWIU bargaining unit. Howard 
is the only Black among the 82 adjusters in the TWIU bargaining 
unit, Appendix "B", Patterson Brief).

4 4/- Appellees Patterson and FF.OC were not afforded the 
opportunity f.o examine the factual basis for the information con­
tained in the proffer or to cross examine the individuals who 
gathered the proffered evidence.



3 1

'J'HF. EEOC'S APPROVAL OF THE ESTABLISHMENT OF 
"LINES OF PROGRESSION" HAS NO BEARING ON THE 

DECISION OF THE DISTRICT COURT

V

The defendant Company places a great deal of reliance
on the fact that a representative of the EEOC assisted in
the creation of the "lines of progression" (Company's Brief
pp. 12 and 23) which were found to have a discriminatory
effect on the promotional opportunities available to black
employees (App. 60-61). This reliance is misplaced.

Section 713(b) of Title VII' provides that:
". . . No person shall be subject to any
liability . . . for the commission . . . .
of an unlawful employment . . . practice
if [the act complained of] was . . . in
conformity with, and in reliance on any 
written interpretation or opinion of 
the Commission 42 U.S.C. §2000e-12(b)."
The Fifth Circuit held in Local 189, United Papermakers

and Paperworkers v. United States, supra, that:
"The key phrase in this provision is ''written 
opinion or interpretation of the Commission'.
The EEOC published its own interpretation 
of the phrase in the Federal Register in 
June 1965, before Title VII took effect and 
some six months before the public stalements 
lit isiTue KereT~"Only" 7a) a letter entitled 
'opinion letter' and signed by the General 
CounsoJ on behalf of the Commission or (b) 
matter published and so designated in the 
Federal Register may be considered a 'writ­
ten interpretation or opinion of the Com­
mission' within the meaning of section 
713 of Title VII." 29 C.F.R. §1601.30,
Id at 997.



The action? the EEOC which the Company5 Of
relies on do not fall into either of these categories.
See also, Kagan v. National Cash Register, Co., 481 F.2d 111 
1125-1126 (D.C. Cir. 1973); Enroois v. United Air Lines, 
Inc,, 444 F.2d 11 94, 1200 (7th Cir. 1971) , cert, denied,
404 U.S. 991 (1971); Grinnn v. Wes tinghouse Electric Corp .
300 F.Supp. 984, 988-991 (N.D. Cal. 1969). Neither the EEOC
participation in the formulation of the discriminatory 
''lines of progression'1 nor the Company's bare assertions 
that the lines are predicated on a need for plant operating 
efficiency (Company's Brief p . 13) constitutes a legal 
defense to the discriminatory effects of these barriers.



33

THE DISTRICT COURT CORRECTLY ORDERED "INTER 
BRANCH TRANSFER RIGHTS BASED ON COMPANY-WIDE 
SENIORITY" TO INSURE ADEQUATE RELIEF FOR 

ALL MEMBERS OF THE CLASS
A. The Richmond and Virginia Branches Must Be

Considered As A Single Facility If■Meaningful 
Relief Is To Be Provided For /ill Class Members

The defendant Company's argument against inter-branch 
transfer relief is predicated on the premise that the district 
court ordered permanent transfer rights between Branches (Com­
pany's Brief, pp. 39-40). This is not the case. The district 
court's decree simply provides, for a limited period of time, 
an opportunity for those class members who indicate their desire 
to transfer, and who arc not able to move to the Branch of their 
choice during the court ordered posting and bidding procedure, to 
transfer as vacancies occur (App. 173-174). In its carefully 
structured relief provisions, the decree provides that after these 
class members have been given the opportunity to move to the Branch 
of their choice, the defendants may re-establish "plant-wide" 
seniority oi' any other type of promotional system which complies 
with the standards of Title VII.

The Company's assertions to the contrary, the 
Richmond and Virginia Branches operate as e* single unit in many 
respects. For example, accounting and record keeping duties for 
both Branches are performed by the same office staff (App. 45).
The Shipping Department at the Virginia Branch ships the products 
of both Branches (App. 46). Moreover, the defendant Company has 
on two occasions, the last being between 1957-1959, permanently 
transferred employees from one Branch to the other (App. 45). In

V I

rv



addition, certain processes which are required by the Richmond 
Branch are performed by Virginia Branch employees (App. 568-569).

Furthermore, it is clear, even from the defendant 
Company's description, that many of the processes at both Branches 
are strikingly similar. For example, whether making cigarettes 
or smoking tobacco, the prefabrication departments of both Branche 
"receive tobacco in strip form" and prepare it for fabrication by 
"flavoring, drying, cutting, blending and storing" it- (Company's 
Brief, pp. 8 and 10). The fabrication departments package the 
tobacco for the consumer.

In addition, the district court noted that the two 
Branch plants are very near one another (App. 56-57 and 77) . 
Moreover, the district court received uncontradicted evidence 
from two expert witnesses that 9 of the 15 jobs which they 
evaluated at the Richmond Branch were underpaid (PX--49). Over 90% 
of the employees in these classifications wore black. None of 
the eight evaluated jobs in the traditionally white fabrication 
department of the Virginia Branch were found to be underpaid 
(PX-49).

Although the district court questioned the propriety 
of determining whether or not a particular job is underevaluated 
or underpaid (App. 37), the court did find that jobs at the 
Richmond Branch have traditionally had lower wage rates than jobs 
at the Virginia Branch (App. 63).

Based on the foregoing facts, the district court 
found that the "presently practiced plant wide seniority system

3 4



. . . contributed to the perpetuation of the discrimination"
(App. 56-57).

In order to provide some form of meaningful relief to 
the 90 black employees at the Richmond Branch, who comprise 532. 
of that Branch's production unit work force, the district court 
was compelled to formulate a mechanism whereby these employees 
could escape a depressed wage structure which had become increas­
ingly worse as the Branch work force became predominantly black 
(Ex. App. 20, RB--2) . Anything less would have locked these Blacks 
into a location where there are only 36 positions with a wage rate 
greater than $3.80 per hour, as compared to the more than 500 
positions at the Virginia Branch which exceed this rate.

In formulating relief from discriminatory practices, 
courts are required to order such affirmative action as may be 
appropriate. Local 53_ of International Ass 1 n of Heat and Frost 
Insulators & Asbestors Workers v. Vogler, 407 F.2d 1047, 1052 
(5th Cir. 1969); Lea v. Cone Mills Corp.,' 467 F.2d 277 (4th Cir. 
1971); United States v. Jacksonville Terminal Co. 451 F.2d 418,
458 (5th Cir. 1971), cert. denied, 406 U.S. 906 (1972). Under the 
circumstances of the instant case, the ordering of Company wide 
seniority and transfer rights is clearly appropriate.

B. Section 703(h) Of Title VIJ Is Not 
Applicable To The Case At Bar

Patterson plaintiffs hereby adopt and incorporate by 
reference that section of the appellee EEOC reply brief concerning 
the applicability of Section 703 (h), found at pages 6 through 8

3 5

of said brief.



36

THE DISTRICT COURT PROPERLY FOUND 
THAT THE TWI U WAS LIABLE FOR THE 

UNLAWFUL EMPLCF'NBNT PRACTICES AT THE COMPANY
The collective bargaining agreements negotiated by Local

V I I

.182, TWIU and the Company were the principal mechanism for per-
4 5/

petuating the discriminatory allocation of jobs (App. 40).
It is enough that the consequences of the contracts are discrim­
inatory for the Union which negotiated the contract to be held
liable under Title VII. John soil v. Goodyear Tire and Rubber
Company, 491 F.2d 1364, ]381 (5th Cir. 1974); Macklin v. Specter
Freight Systems Inc. supra; see Robinson v. Lori Hard Corporation,
444 F.2d 791, (4th Cir. 1971), cert, dismissed 404 U.S. 1006 

4 6/
(1971). However, 
by the Unions were 
ferential position

in this case seniority contracts negotiated 
specifically tailored to preserve the pro- 
which white employees attained prior to 1963.

47/
when all jobs at the Company were filled on a segregated basis.

45/
The Company's historical segregated staffing of jobs 

was acquiesced in and supported by the TWIU's maintenance of 
segregated local unions (App. 48, PI. Br. at 9-10) .

46/
In fact, Title VII places an affirmative duty on 

unions to eradicate the continuing discriminatory effects of their 
prior policies of racial preference. Foe Carey v. Greyhound Bus 
Company, 500 F.2d 1372 (5th Cir. 1374) . In any case, to allow 
the Unions to escape the consequences of their purposefully 
discriminatory acts would undermine the effective implementation 
of Title VII. Macklin v. Spector Freight Systems, Inc., supra 
at 989.

47/
The specific provisions, "seniority plus qualifica­

tions", the maintenance of racially segregated seniority rosters, 
and line of progression requirements are described in the 
Plaintiffs' Brief at 11-21, 29-38. (Continucad at p. 37)



Although directly involved in the establishment and
perpetuation of the discriminatory practices, the TWIU denies
that it is liable under Title VII or §1981 by attempting to assert
the independence of Local. 182 and the lack of "agency" relationship
and by divorcing itself from the negotiating or signing of the
collective bargaining agreements. In light of the undisputed

48/
evidence this is an imaginative argument.

3 7

The TWIU's primary assertion, that it is neither a party
to nor bound by the collective bargaining agreements, is contra
dieted by the explicit language of the contract. For example,
Article 11 §A of the 1974 agreement states that:

The Union agrees not to ratify an unauthorized strike.
It fux thei agrees that if an unauthorized strike occurs, 
the Local and the International Union officials will 
immediately meet with the Company for the purpose of 
settling such strike . . . (emphasis supplied)

(Continuation of footnote from p. 36)
Moreover, white union representatives on numerous occa­

sions refused to support Blacks in their attempt to obtain decent 
and equitable working conditions. The Union representatives 
refused to support Ms. Sessoms, a black employee, when the Company 
refused to allow her to change from the night shift to bump a 
junior employee in her classification although the representative 
agreed she had a right to so move (compare 7vpp. 54 2-4 3 and 554-56) 
During protracted negotiations with Company officials undertaken 
by black union officials concerning an equitable adjustment 
of wage rates in the practically all-black profabrication depart­
ment. at the Virginia Branch, white union officials did not express 
any support for these adjustments but rather left the entire bur­
den of 'persuasion" on the black officials (App. 336-38). The
V.’hi to leadership of Local
late 1960's Blac in thi, 82 ignored the fact that until the 

rcfabrication department at the Virginia 
Branch aid not have lockers, while Whites in the fabrication depart­
ment hud enjoyed this privilege for over twenty years (App. 506)

!£./
It. would also be interesting to hear the TUIU, in 

light of its assertion of non-involvement in the affairs of Local 
182, justify receiving $3 out of the $5 monthly dues paid by 
members of Local 182 (App, 248-249).



Similar provisions are found in the 1965, 19G8 and 1971 collec­
tive bargaining agreements (PX 35FF).

Furthermore, the officials of the TWIU, since they were 
the chief negotiators of the contracts and signed each of these
agreements, specifically understood that the TWIU was bound by 4 9/
the contracts.. (App. 521-27, 573).

Even assuming that TWJU's factual assertions are correct, 
i.e., that Local 3.82 is not its agent and it i.s not bound by the 
agreement, the TWIU is still liable under Title VII for the dis­
criminatory practices which its officials helped negotiate and then
approved and for its failure to carry out. its affirmative duty to

50/
terminate the continuing effects of discrimination. As one court
stated "the mandate of Titie VII is one reaching constitutional
proportions, not limited by principles o.f agency or contractual 

5] /
provisions'. Here, the TWIU was intimately involved in the 
preparation of the unlawful collective bargaining agreements.
Its officials were the chief negotiators at the bargaining 
sessions (App. 435, 521-22, 573); they signed the agreements.

38

4 9/
Fvcn If the Court should hold that the TWIU is not a 

party to these agreements, it must then follow that Local 182 
acted as the agent of the TWIU with the express power to obligate 
TWIU to the terms and conditions of the contract.

Finally, the President of the TWIU has the power, pro­
vided by its Constitution, to approve or reject any agreement
entered into by Local 182. (App. 40)

50/
See cases cited on p. 36, supra.

51/
f 1 v e r:> v . Oilman Pa.per Corn., 9 EPD 1199 20, p. 6 83 4

(S.D.Cu . 1975)'; see aJ so Terre 11 v. U.E. Pipe and Foundry Corn
7 EPD y9055 (N.D. Ala . 1973), Sabala v. (Continued at p. 39)

• /



39
(App. 573) and, in fact, the Vice President of the TW1U testified 
that the TWIU ha 1 no objections to the terms and conditions of

52/ .
the contracts (App. 522). Therefore, the district court s 
finding that the TWIU is !!responsible for the unlawful employ­
ment practices' is supported by the overwhelming weight of the 

evidence (App. 50).
VIII

the fiv e-year statute of limitations
CONTROLS THE 51981 ACTION

The restriction of the two-year aspect of Virginia s 
statute of limitations to "actions for personal injuries" and the 
applicablity of the five-year aspect to those other "personal 
actions" which would survive the death of either actor, as 
contended by the Patterson plaintiffs, is illustrated by the ca.̂ e 
of Allen v. Gifford, 4G2 F.2d G15 (4th Cir. 1972) which the defen­
dant American has cited. The plaintiffs in Allen claimed dam­
ages for ".humiliation, emotional stress and anxiety resulting 
from the defendants' racially motivated refusal to sell them a 
home. Section 1903 of Title 42 U.S.C. and tire 1973 amendment 
to Section 8-24 of the Code of Virginia, 1950 both aside, the

(Continuation of footnote from p. 38)
Western Gillette Inc., 562 F.Supp. 1.142 (S.D.Tex. 1973) .

Certainly, this .is a proper interpretation of 
VII; 5703(c), 42 U.S.C. §2000c-2(c), which defines unlawful union 
practices, is broadly drawn and may not bo arbitrarily limited by 
agency or contract considerations which were devised in totally 
different contexts.

52/Accordingly, the TWIU, pursuant 
nrovi sion c i t e d  by tire district court (App. 
collective bargaining agreement.

to the constitutional 
40), approved the



quoted elements of damages would categorize the Allen cause of 
action among "those transitory torts for which a one-year period 
is prescribed". Almond v. Kent. 459 F.2d 200, 204 (4th Cir. 1972). 
Unlike the. instant case. Allen was not an action "to redress 
damage to property and estate for whiph Virginia prescribes a five 
year period". Almoncl, s u p r a  (459 F.2d at 204 ), citing V/estover 
Court Corp,. v. Eley, 185 Va. 718, 40 S.E. 2d 177 (1946) which, in 
turn, follows Barnes Coal Corp v. Retail Coal Merchant's Assn.
12 8 }•’. 2 d 6 4 5 (4th Cir. 1942).

This Court's apparent rejection of "the archaic concepts 
of survivability of the common law" Almond, supra , (459 F.2d at
204) was written within the narrow context of 42 U.S.C. §1983 and 
undei the assumption that all §1983 actions seek recompense for 
personal injuries. It was not written to nullify the test of 
survivability which Virginia's statute of limitations prescribes.
It says that the right of recovery which §1983 allows is not 
concerned within the archaic concepts of survivability (450 F.2d 
at 204). This does not suggest that survivability is immaterial 
with respect to when the exorcise of that right will be barred by 
Virginia's statute of limitations. A fair reading of the ooinioh 
will not support the notion that this Court "brushed by" the 
statute or misread or ignored its plain wording which makes 
survivability the touchstone of limitation. The Court frankly 

acknowledged that it had to "grapple with the Virginia statute of 
limitations' (450 F.2d at 203) and concluded that the statute 
applies generally to §1983 suits (450 F.2d at 204). The conclusion 
in A.1 mpnu was carried over to §1981 suits in Revere v. Tidewater 
T£le|diono Company, 6 FPL) 118961 (4th Cir., October 2 , 1963).

40



41
Ihe question arises whether this Court was correct in 

stating (in Alrnoiid) that "every cause of action under ((1983 which 
is well-founded results from 'personal injuries'" (459 F.2d at 
204) and, hence, will come under Virginia's two year period of 
limitations. Unlike Almond, in which recovery for personal 
injuries was sought, a tortious denial of the right, to vote in 
a given federal election would give rise to a personal action 
presenting the question whether the one-year or two-year or 
even the five-year aspect of Virginia's statute of limitations 
would apply. The Almond rationale, giving consideration to 
' Virginia's statute of limitation scale of values" (459 f . 2d at 
204), might tempt us to reject the one year and adopt the two- 
yeai period of limitations and, arguably might tempt us to reject 
the statutory test of survivability and adopt the five year period 
of limitations upon the thesis that redress of the constitutionally 
protected right to vote is equally important as the constitu­
tionally protected property'’ rights to which the common law ascribes 
survivability.

0nlY ky virtue of the 1954 amendment does the Virginia 
statute allow two years for the commencement of "every action for 
personal injuries". Otherwise, as construed by this Court in 
------' and bY Virginia's highest court in West over, supra,
and in Worrie v. Bozo, 198 Va. 533, 95 SB 2d 192, 03 ALR 2d 1315 
(.1950), the statute bars after one year those actions for torts 
m  the nature of personal wrongs which may be redressed only with­
in the lifetime of the parties. The statute allows five years
'dlc r<~' " l‘r-] '■ ' fbe v.long done and damage done are directed to the
estate or property oi the plaintiffs.



42
C O N C L U S I  0 N

The EEOC charges were filed in January of 1969 and
this litigation was instituted in March of 1973. The continuing 
irreparable harm experienced by members of the plaintiff class 
confirms the wisdom of Congress in providing for the prompt 
litigation of Title VII claims and the appropriateness of this 
Court's decision to expedite these appeals and to require that 
preliminary steps be taken to implement the injunctive relief 
ordered below.

soon as practical. As has been indicated previously, the one 
issue on which plaintiffs have cross-appealed— whether the EEOC 
charge tolls the statute of limitations for the §1981 action—  
is currently pending before the United States Supreme Court. In 
the event this Court decides to await the resolution of that 
issue by the Supreme Court, plaintiffs' respectfully request 
that this Court's ruling concerning all remaining issues be made 
independently of the tolling question.

that this Court will hold that the f i.l ing of a charge of dis­
crimination with the Equal Employment Opportunity Commission 
tolls the statute of limitations for an action subsequently 
brought pursuant to 42 U.S.C. §1981, and that in all other 
rcspects the decree of the district court will be affirmed.

Plaintiffs urge that this Court's ruling be. made as

For reasons urged herein, plaintiffs respectfully pray

Respectfully submitted,



i

IK THE
UK H E ' r\ l LO uCURT OF APPEALS

FOR IKE FOURTH CIRCUIT

N O i 75-1259, 75-1260, 75-1261

JOHN PATTERSON, et al,
Appe11ees, etc.,

vs

THE AMERICAN TOBACCO COMPANY, et. al ,
Appellants, etc.,

and
TOBACCO T . T / ^ T »  T V  T~‘ T > r *  

*V U J . U V  . C i X V O INTERN AT 1 ON A I- UNION, et al,
Appellants, etc.

Appeal from the United States District Court 
for the'Eastern District of Virginia

REPLY BRIEF FOR JOHN PATTERSON, et al, 
APPELLEES AND CROSS-APPELLANTS

HENRY L. MARSH, III
S. W. TUCKER 
JOHN W. SCOTT, JR.
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH 

214 East Clay Street 
r. O. Box 27363 
Richmond, Virginia 23261

JACK GREENBERG 
ELAINE R. JONES 
BARRY L . GOLDSTEIN 
MORRIS J. BALLER

10 Columbus Circle 
Suite 2030
New York, New York 10019 
Courise 1 for Appe 1.1 ees