Williams v. E.I. Dupont De Nemours Reply Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 80-3177

JOHN R. WILLIAMS, et al.,
Plaintiffs-Appellants, 

- vs. -
E. I. DUPONT DE NEMOURS & CO., et al.,

De fendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Kentucky 

(Thomas A. Ballantine, Jr., J.)

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
PATRICK 0. PATTERSON 
JUDITH REED 
10 Columbus Circle 
Suite 2030
New York, New York 10019 
JAMES C. HICKEY
EWEN, MACKENZIE & PEDEN, P.S.C. 2100 Commonwealth Building 
Louisville, Kentucky 40202
Attorneys for Plaintiffs-Appellants



Table o f Contents

Table of Authorities ....... . .........— ....... .....
Argument ..................... .................... • •

I. DEFENDANTS HAVE MADE SERIOUS FACTUAL ERRORS, 
OMISSIONS r AND MISSTATEMENTS IN THEIR 
BRIEFS. ................... -...............

II. DEFENDANTS HAVE MISREAD THE SUPREME COURT'S
DECISIONS IN TEAMSTERS AND EVANS. ...........  8

III. DEFENDANTS HAVE IGNORED THE STANDARDSGOVERNING SUMMARY JUDGMENT...... .............  12

Conclusion 13



Table of Authorities

Cases:
Albemarle Paper Co., v. Moody, 422 U.S. 405 (1 975) .........  8
Alexander v. Aero Lodge 735, Machinists, 565 F.2d 1344

(6th Cir. 1977), cert, denied, 436 U.S. 946 (1978) ---  9
County of Los Angeles v. Davis, 440 U.S. 625 (1979) .......  8
Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527

(5th Cir. 1 980) ......................................  9,1 2
Fowler v. Birmingham News Co., 608 F.2d 1055(5th Cir. 1 979) ......................................  12
Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) ... 7,8
Garner v. E.I. duPont de Nemours & Co., 2 FEP Cases 60

(W.D. Ky. 1969) ..... ..... ........ ........ .......... 4,5
Griffin v. Copperweld Steel Co., 22 FEP Cases 1113

(N.D. Oh 10 1979) ....................................... 10
Hazelwood School District v. United States, 433 U.S. 299

(1977) ................................................ 9
International Brotherhood of Teamsters v. United States,

431 U.S. 324 ( 1977) .............................  8, 9, 10, 1 2
James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th

Cir. 1977), cert, denied, 434 U.S. 1034 (1978) .......  9,12
Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) .....  12
Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978),

cert, denied, 441 U.S. 906 (1 979) ....................  12
Mullane v. Central Hanover Bank and Trust Co., 339 U.S.306 (1 950) ......... ..................................  5
Sertic v. Cuyahoga Carpenters District Council, 459 F.2d579 (6th Cir. 1972) ..................................  5
Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979), cert.

dismissed, 100 S.Ct. 495 (1980) ......................  13
Swint v. Pullman-Standard Co., 17 FEP Cases 730 (N.D.

Ala. 1 978) ...........................................  10
Trabucco v. Delta Airlines, 590 F.2d 315 (6th Cir. 1979) ... 12



Page

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) ... 8,11,12
Washington v. Davis, 426 U.S 229 (1976) ...................  8
Winfield v. St. Joe Paper Co., 20 PEP Cases 1103

(N.D. Pla. 1979)  ................ .................... 10
Younger v. Glamorgan Pipe & Foundry Co., 20 PEP Cases 

776, 21 EPD u 30,406 (W.D. Va. 1979), aff'd, 23 
EPD 1 30,908 (4th Cir. 1 980) ..................... .... 9,10

Statutes, Rules, and Guidelines:
Civil Rights Act of 1866, 42 U.S.C. § 1981 ................  8,9
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

S 2000e-2(h)  ........... .....................  8,9,10,12

Other Authorityr
Stacy, Title VII Seniority Remedies in a Time of Economic

Downturn, 28 Vand. L. Rev. 487 (1975) ................  7

- iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 80-3177

JOHN R. WILLIAMS, et al. ,
Plainti ffs-Appellants,

- vs .-
E. I- DUPONT DE NEMOURS & CO., et al., 

De fendants-Appellees.

On. Appeal from the United States District Court for the Western District of Kentucky 
(Thomas A. Ballantine, Jr., J.)

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

I.,- DEFENDANTS HAVE MADE SERIOUS FACTUAL ERRORS,
OMISSIONS, AND MISSTATEMENTS IN THEIR BRIEFS.

The briefs filed by E.I. duPont de Nemours & Company,
Inc. ("duPont") and the Neoprene Craftsmen Union ("the Union") 
contain a number of serious factual errors, omissions, and mis­
statements, as set forth below.

1. DuPont and the Union repeatedly assert or suggest 
that plaintiff Williams' EEOC charge and judicial complaint do 
not allege any present violations with respect to either the de­



fendants' testing practices or their seniority system. See, e.g.,
duPont Brief, pp. 17, 24, 39-40; Union Brief, pp. 3 n.1, 5, 19-21.
The record is to the contrary. Plaintiff Williams' EEOC charge 
alleges, inter alia, that duPont's testing practices and the 
operation of the seniority system constitute "present acts of dis­
crimination against me and other Negro employees hired prior to 
1956," and that "the Union has consistently refused to support me 
and other similarly situated Negroes in our claims for transfer 
rights and adjustments in seniority" (A_ 542) (Williams EEOC Charge, 
p. 2) (emphasis added). The complaint in this civil action also 
alleges in unmistakable terms that duPont and the Union are engaged 
in present and continuing acts of discrimination: "intentionally and
unlawfully maintaining" a discriminatory and non-bona fide seniority 
system, and "maintaining general intelligence tests that are totally 
unrelated to job performance and are artificial barriers to equal 
employment opportunity and job transfer and promotion opportunity"
(A. 12—13) (Williams Complaint, U IV). See Williams Brief, 
pp. 12-14.

2. DuPont and the Union have mischaracterized plain­
tiffs' contentions with respect to the discriminatory testing 
practices. Contrary to defendants' assertions (duPont Brief, 
pp. 6, 14, 37, 39-40; Union Brief, pp. 19-21), plaintiffs do not con­
tend that defendants are liable merely because they used dis­
criminatory tests in the 1950s and 1960s and then applied their 
seniority system in a manner which perpetuated the effects of that 
discrimination. Rather, plaintiffs contend that the defendants' 
present testing practices are unlawful because (a) duPont currently

2



uses general intelligence tests which have an adverse impact on 
blacks and which are unrelated to job performance, and (b) black 
employees who before 1956 were excluded from white jobs on the 
basis of race now are excluded on the basis of tests which were 
not applied to whites during the period of overt racial allo­
cation of job opportunities. See Williams Brief, pp. 44-47.

3. Defendants assert that they refused to comply with 
proper discovery requests as a "routine procedural matter" (duPont 
Brief, p. 12)r and that plaintiffs did not take sufficient action 
to overcome defendants' recalcitrance throughout the course of the 
litigation (Union Brief,, p. 7). The record shows that both de­
fendants consistently refused to provide relevant information, even 
after being ordered to do so by the district court. See Williams 
Brief, pp. 14-15. The record also shows that the court below 
granted summary judgment to the defendants without ruling on a 
motion to compel discovery which had been pending before it for more 
than a year and which, if granted, would have required the defen­
dants to disclose information with respect to the adoption, ne­
gotiation, and maintenance of their seniority system. Id., p. 15.

4. DuPont asserts that employees were permitted toVtransfer between units before 1956 (duPont Brief, p. 4). The 
record shows that, until at least 1956, duPont placed all newly 
hired black employees, regardless of their qualifications, in the

1/ Elsewhere in its brief, duPont concedes that the EEOC found in Its determination that "prohibitions against transfer . . . existed 
prior to 1956" (duPont Brief, p. 9), and duPont also concedes that 
"the 1956 agreement . . . was the first contract which permitted transfer between units by seniority" (id., p. 37).

3



classified seniority division or its equivalent, and that 
employees were not allowed to transfer from one division to 
another. See letter from L.M. Cressey to L.M. Groeniger dated 
Nov. 7, 1972 (A. 131-32), and letter from L.M. Cressey to D.W.
Lacy dated Feb. 14, 1973 (A. 133-35), attached to duPont Response 
to EEOC Request for Admissions, H 50.

5. DuPont states that the consent order in Garner v.
E.I. duPont de Nemours & Co., 2 FEP Cases 60 (W.D. Ky. 1969), "sig­
nificantly altered duPont's seniority system in favor of those 134 
employees" who are members of the proposed class in the instant 
case (duPont Brief, p. 9), and the Union contends that the Garner 
judgment should be given res judicata effect in the instant case 
(Union Brief, pp. 15-17). In fact, the order which was entered in 
Garner provided partial seniority adjustments for only 23 named 
employees; it provided no back pay or other relief to those 23
employees, and it provided no relief whatsoever to the 111 re-

27
maining members of the class. 2 FEP Cases at 60-61. Plain­
tiff Williams was not a named plaintiff in Garner (A. 125) (duPont 
Response to EEOC Request for Admissions, 11 52), nor was he among the 
small group of employees who received limited relief under the order 
in that case. Moreover, as the court below recognized, the 1969 
order in Garner was not intended and cannot be used to bar the plain 
tiffs in the instant case from seeking relief for subsequent viola­
tions of the civil rights laws (A. 399-400) (Memorandum and Order 
entered March 13, 1975)(Bratcher, J.). Although the defendants now 
appear to regard the Garner order as a settlement of a class 
action (duPont Brief, p. 7; Union Brief, p. 16), the members of the

2/ The settlement in Garner did provide for a payment of $6,000 
to Mr. Garner's attorney. 2 FEP Cases at 61.

4



class in Garner were never given notice of the settlement (A. 259)
(Plaintiff's Response to Defendants' Motion to Dismiss, filed Dec. 
2, 1974, Ex. B). In these circumstances, it would be contrary to 
Rule 23(e), Fed- R. Civ. P., and a denial of due process to hold 
that the Garner judgment bars plaintiff Williams and the class 
from bringing this action- See Sertic v. Cuyahoga Carpenters 
District Council, 459 F.2d 579, 581 (6th Cir. 1972); Mullane v. 
Central Hanover Bank and Trust Co., 339 U.S. 306 (1950).

6. In September 1972, the U.S. Atomic Energy 
Commission decided to hold up duPont's government contracts 
because the seniority system at the Louisville Works was not in 
compliance with the equal employment opportunity requirements of 
Executive Order 11246 (A. 133-35) (letter from L.M. Cressey to 
D.W. Lacy dated Feb. 14, 1973, attached to duPont Response to EEOC 
Request for Admissions, 1 50). In response to this decision, in 
February 1973 duPont modified the seniority system (^d.). This 
modification was codified in subsequent collective bargaining 
agreements. See Williams Brief, p. 7.

DuPont has described the effect of this modification 
in the following terms:

The result of the conciliation between 
duPont and the AEC was that all of the 134 black employees [hired before 1962] were 
permitted to use their plant seniority date 
as their Master Division and unit seniority 
dates so that the previous "lock-in" effect 
of the system was eradicated as to the whole 
class. Only benefit seniority (such as 
vacation schedules) was thereafter governed by unit seniority for these 134 blacks.

*  *  *

For those 134 employees, plant senior­
ity is the only competitive seniority

5



criterion. Consequently, none of them are today 
"locked into" the Classified Division. What 
this case involves is claims for back pay by 
those 134 employees for promotions allegedly 
lost prior to the 1973 conciliation with the 
AEC, not any attempt to further modify the 
seniority system for them.

DuPont Brief, pp. 10, 15.
These assertions misstate the plaintiffs’ claims and mis­

represent the record in this case- In fact, the 1973 modification 
of the seniority system, as codified in subsequent collective bar­
gaining agreements, provides as follows:

The 134 black employees hired prior to 
August 27, 1962 shall have Master Division 
Seniority and Unit Seniority equal to Plant 
Seniority for the purpose of promotion to 
(except for those who do not qualify on a medical basis), demotion from and layoff 
from jobs in wage grades 9 and 10 (but not 
for other purposes) with job vacancies in 
these wage grades to be filled on this 
basis after exhaustion of call-back lists, using minimum qualifications of the current 
job incumbents.

DuPont Response to EEOC Request for Admissions, K 50 (A. 123-24).
DuPont's characterization of the effect of this provision 

departs from the record in significant respects. Although the provi­
sion permits the black employees to use their plant seniority for pro­
motion to and demotion from jobs in the formerly all-white engineer-37ing and operations divisions (provided that call-back lists have 
been exhausted), unit seniority continues to be used for purposes of 
bumping, recall, overtime listing, work schedules, vacation sched­
ules, and job retention within each unit (A. 123-24; A.592) (duPont 
Response to EEOC Request for Admissions, 11 50; McConnell Dep., p. 41).

3/ The provision states that black employees may also use
their plant seniority for layoffs. The record indicates, however, 
that plant seniority has governed layoffs for all employees 
since approximately 1974 (A. 594; cf. A. 564) (McConnell Dep., 
p. 56; cf. EEOC Determination, p. 2).

6



Moreover, the unit seniority which is used for these purposes in 
wage grades 9 and 10, and for promotion and demotion as well with 
respect to all other jobs, cannot properly be characterized as 
"benefit" seniority. As the Supreme Court explained in Franks v. 
Bowman Transportation Co., 424 U.S„ 747 (1976), "competitive 
status" seniority is used to allocate entitlements to scarce 
benefits among competing employees, while "benefit" seniority 
is used to compute noncompetitive benefits earned under the 
contract of employment. 424 U.S. at 766. The purposes for which 
unit seniority is used by duPont and the Union in the instant 
case all fall within the "competitive status" category:

Included among the benefits, options, and 
safeguards affected by competitive status 
seniority, are not only promotion and layoff, 
but also transfer, demotion, rest days, shift 
assignments, prerogative in scheduling vacation, 
order of layoff, possibilities of lateral 
transfer to avoid layoff, "bumping" possibili­ties in the face of layoff, order of recall, 
training opportunities, working conditions, 
length of layoff endured without reducing 
seniority, length of layoff recall rights will withstand, overtime opportunities, parking 
privileges, and in one plant, a preferred 
place in the punch-out line.

424 U.S. at 766-67, quoting Stacy, Title VII Seniority Remedies 
in a Time of Economic Downturn, 28 Vand. L. Rev. 487, 490 ( 1 975).

Finally,- the record makes it clear that black employees 
who were hired into the segregated classified division are indeed 
still "locked into"' that division. As late as December 31 , 1 973, 
over 74% of the employees holding jobs in the classified seniority 
division were black, over 97% of the employees in the formerly all- 
white operations seniority division were white, and the engineering 
seniority division remained 100% white. See Williams Brief, pp. 10- 
11. Black employees today cannot move from jobs in the classified

- 7 -



division to jobs in the operations and engineering divisions 
unless they commit "seniority suicide" by surrendering valuable 
competitive status seniority rights. Id., p. 8. Consequently, 
plaintiffs do not merely seek back pay for promotions which were 
discriminatorily denied before 1973; rather, plaintiffs seek the 
full back pay, retroactive seniority, and other "make whole" 
relief to which they were entitled under Franks v. Bowman Trans­
portation Co., supra, and Albemarle Paper Co. v. Moody, 422 U.S. 
405 (1975). Plaintiffs also seek prospective injunctive relief 
requiring duPont and the Union to alter their seniority system and 
testing practices to comply with Title VII of the Civil Rights 
Act of 1964 and 42 U.S.C- § 1981.

II. DEFENDANTS HAVE MISREAD THE SUPREME COURT'S 
DECISIONS IN TEAMSTERS AND EVANS. £/

DuPont argues that § 703(h) of Title VII, as interpreted
in International Brotherhood of Teamsters v. United States, 431
U.S. 324 (1977) and United Air Lines, Inc, v. Evans, 431 U.S. 553
(1977), immunizes all seniority systems which perpetuate the

5/
effects of any past discrimination. DuPont Brief, p. 22. DuPont

4/ Defendants' briefs contain other errors of law as well. For 
example, duPont argues that the Supreme Court's decision in Washington v. Davis, 426 U.S. 229 (1976), requires proof of dis­
criminatory intent to establish a violation of § 1981 (duPont Brief, pp. 29-30). In factr Washington v. Davis imposes this re­
quirement in suits alleging unconstitutional discrimination; the 
Supreme Court has not yet resolved this question under § 1981.
See County of Los Angeles v. Davis, 440 U.S. 625 (1979); Williams BrieTJ pp. 3(j-37. With respect to all other issues not spe­
cifically addressed in this reply brief, plaintiffs rest on their 
principal brief and on the brief for the EEOC.
5/ The Union, on the other hand, concedes that a facially neutral seniority system may be unlawful if it was adopted with the a dis­
criminatory intent. Union Brief, p. 8. However, both the Union and 
duPont argue that any inquiry into the genesis of the system may not

8



accuses the Fifth Circuit and other courts— including by impli­
cation this Court— of being "disingenuous" in holding that 
§ 703(h) and Teamsters do not immunize all seniority systems, and 
that evidence bearing on the creation, operation, and maintenance 
of a facially neutral system must be considered in determining 
whether the system is protected. See, e.g., Alexander v. Aero 
Lodge 735, Machinists, 565 F.2d 1364, 1378 (6th Cir. 1977), cert. 
denied, 436 U.S. 946 (1978); James v. Stockham Valves & Fittings 
Co., 559 F .2d 310, 351-52 (5th Cir. 1977), cert, denied, 434 U.S. 
1034 (1978). Under duPont's theory, a seniority system which was 
created for the purpose of discriminating against blacks, which 
has been negotiated and maintained for that purpose, and which in 
its operation has harmed primarily or only blacks, could not give 
rise to any liability under Title VII or § 1981 unless it was 
applied with discriminatory intent in a particular instance by a 
demonstrably racist supervisor- DuPont Brief, p. 28. This mis­
construction of S 703(h) is contradicted by the cases on which 6/
duPont relies, and it is fundamentally at odds with the language

5/ (Continued)
go back to its creation in the 1940s and 1950s, but must be re­
stricted to the negotiations surrounding the 1968 and 1971 collec­
tive bargaining agreements. See duPont Brief, p. 36; Union Brief, p. 13. This contention is contrary to the case law which has 
developed under Teamsters (see Williams Brief, pp. 29-30), and it is 
refuted by the Supreme Court's recognition that evidence of pre-Act discrimination is relevant and admissible to "support the inference 
that such discrimination continued, particularly where relevant 
aspects of the decision-making process had undergone little change." Hazelwood School District v. United States, 433 U.S. 299, 309 
n. 1 5 (19-J-J).
6/ See, e.g., Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527,
542 (5th Cir. 1980)(duPont Brief, pp. 23-24)("purposeful dis­
crimination in connection with the establishment or continuation of a seniority system is integral to a determination that the system 
is or is not bona fide"); Younger v. Glamorgan Pipe & Foundry Co.,

9



7/ 8/
of the statute, the opinion of the Supreme Court in Teamsters,
and the legislative history and congressional intent underlying 
Title VII. See Williams Brief, pp. 22-27.

6/ (Continued)
20 FEP Cases, 776, 784 (W.D. Va. 1979)(Butzner, J. , sitting by 
designation), aff'd, 23 EPD 1| 30,908 (4th Cir. 1980)(duPont 
Brief, p. 23) ("The key . . .  is proof that the system was adopted or maintained for a discriminatory purpose"); Griffin 
v. Copperweld Steel^Co., 22 FEP Cases 1113, 1118 (N.D. Ohio 1979) 
(duPont Brief, pp. 30-31)("defendants assume the burden of showing that 'the seniority system did not have its genesis in racial dis­
crimination, and that it was negotiated and has been maintained 
free from any illegal purpose'"); Winfield v. St. Joe Paper Co., 20 FEP Cases 1103, 1131 (N.D. Fla. 1979)(duPont Brief, pp. 26-27, 
30-31, 34)(the issue is whether there is "a discriminatory purpose 
underlying the creation and maintenance of a seniority system"); Swint v. Pullman-Standard Co., 17 FEP Cases 730, 739 (N.D. Ala.
1 978) (duPont Brief, pp. 2(>, 34 (the central issue is "whether 
there has been purposeful discrimination in connection with the establishment or continuation of a seniority system").
7/ Section 703(h) provides that "it shall not be an unlawful em­
ployment practice for an employer to apply different standards 
of compensation, or different terms, conditions, or privileges 
of employment pursuant to a bona fide seniority . . . system,
. . . provided that such differences are not the result of an 
intention to discriminate because of race . . . 42 U.S.C.
§ 2000e-2(h) (emphasis added).
8/ The Court in Teamsters stated that "§ 703(h) does not 
immunize all seniority systems. It refers only to 'bona fide' systems, and a proviso requires that any differences in treat­
ment not be 'the result of an intention to discriminate be­
cause of race ► . . .'" 431 U.S. at 353. The Court stated its holding in the following terms: "We hold that an otherwise
neutral, legitimate seniority system does not become unlawful 
under Title VII simply because it may perpetuate pre-Act 
discrimination." Id. at 354 (emphasis added).

10



DuPont also contends tha-t the decision in Evans bars
employees from obtaining a remedy for ongoing discriminatory
seniority and testing practices which currently restrict their

2/employment opportunities on a daily basis. DuPont Brief, pp. 
23-24, 39-41. Under duPont's theory of the Evans case, it would 
not be enough to show that an employer currently engages in unlaw­
ful employment practices which have the present purpose and effect 
of excluding blaclc employees from white jobs. The plaintiff 
would be required to show in addition that within 180 days of 
filing his charge of discrimination, he personally requested and 
was denied the right to a nondiscriminatory transfer or promotion 
(see duPont Brief, p. 24), a futile step in light of the employer' 
announced and observed policies that require employees to take a
discriminatory test and deny full seniority rights to those who

12/
pass. Evans does not mandate this futile exercise. Moreover,

9/ The Union contends that Evans bars relief because the plain­
tiffs have not alleged present violations. Union Brief, pp. 20-22 
As discussed above, this is a misstatement of the record. See Section I, supra; Williams Brief, pp. 39-40.
10/ In Evans, the "past event which [had] no present legal signi- TTcance,‘n 4 31 U.S. at 560, was the plaintiff's termination in 1968 
The genesis and maintenance of the seniority system were not at 
issue, and the plaintiff did not allege as present violations 
either the operation of a non-bona fide seniority system or the 
use of discriminatory tests. See Williams Brief, pp. 39-40. As 
the Court noted in Evans, that case did "not involve any claim by [plaintiff] that United's seniority system deterred her from 
asserting any right granted by Title VII." 431 U.S. at 558 n.10.



duPont's interpretation is inconsistent with the decisions of
11/this and other courts, and it is unsupported by the cases on

12/
which duPont relies. DuPont's misconstruction of the Evans 
decision has no conceivable purpose except to permit the con­
tinuation of discriminatory practices, and it therefore should be 
rejected. See Williams Brief, pp. 38-43.

III. DEFENDANTS HAVE IGNORED THE STANDARDS GOVERNING SUMMARY JUDGMENT.

Neither duPont nor the Union has attempted to refute
plaintiffs' statement of the principles governing motions for

11/summary judgment. See Williams Brief, pp. 18-21; EEOC Brief,

11/ See Marlowe v. Fisher Body, 489 F.2d 1057, 1063 (6th Cir. 1973); 
Morelock v. NCR Corp♦, 586 F.2d 1096, 1103 (6th Cir. 1978), cert. denied, 441 d.S 906 (1979) ("the adoption of a seniority system, if 
discriminatory . . . , constitutes a continuing violation . . .  as 
long as that system is maintained by the employer"). See also cases cited in the Williams Brief, pp. 42-43 nn.17-18.
12/ See, e.g., Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527,370 (5th Cir. 19So)(dukont Brief, pp. 23-24)(Evans and Teamsters 
"do not hold . . .  that a continuing violation can never constitute 
an actionable wrong”); Trabucco v. Delta Airlines, 590 F.2d 315, 316 (6th Cir. 1979)(duPont Brief, p. 40)(plaintiff did not contend that 
her current employment constituted a violation of Title VII); Fowler 
v. Birmingham News Co.,. 608 F.2d 1055, 1057 (5th Cir. 1979) (duPont Brief, p. 40)(plaintiff did not claim that his employer was engaging 
in current discriminatory employment practices).
13/ The Union has argued, however, that summary judgment was appro­
priate because plaintiffs had ample time to conduct discovery. Union 
Brief, p. 7. The Union has failed to note that both it and duPont consistently refused to provide relevant information; that those re­
fusals occurred even after the district court entered an order com­
pelling discovery; that although the lawsuit was filed in 1973, the issues and the evidence relevant to those issues became substantially different in 1977 when Teamsters departed from prior interpretations 
of Title VII (see Teamsters, supra, 431 U.S. at 346 n.28; James v. Stockham Valves, supra, 559 FTZdat 353); and that the district court 
granted summary judgment to the defendants without ruling on a motion 
to compel discovery which had been pending before it for more than a year and which, if granted, would have required the defendants to disclose information which was critical to the issue of whether the 
seniority system was "bona fide" under § 703(h) as interpreted in Teamsters. See Williams Brief, pp. 14-15.

12



pp. 14-16. Under these principles, the district court erred as a 
matter of law in granting summary judgment to the defendants. The 
court did not properly consider all discovery on file and all 
inferences to be drawn therefrom in the light most favorable to 
the plaintiffs, and the court compounded its error by using summary 
judgment to resolve questions of motive and intent without ruling 
on plaintiffs' pending motion to compel the discovery of relevant 
evidence.. Smith v; Hudson, 600 F.2d 60, 63-66 (6th Cir. 1979), 
cert, dismissed, 100 S.Ct. 495 (1980).

appellants' principal briefs, the district court's order granting 
summary judgment should be reversed, the judgment should be vacated, 
and the case should be remanded to the district court for further 
proceedings.

CONCLUSION

For the foregoing reasons and for the reasons stated in

Respectfully submitted

JACK GREENBERG 
PATRICK 0. PATTERSON 
JUDITH REED

10 Columbus Circle Suite 2030
New York, New York 10019July 1980

JAMES C. HICKEY
EWEN, MACKENZIE & PEDEN P.S.C. 

2100 Commonwealth Building 
Louisville, Kentucky 40202

Attorneys for Plaintiffs-Appellants

13



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing 
Reply Brief for Plaintiffs-Appellants were served this date 
by ordinary United States mail on the following:

Edgar A. Zingman, Esq.
Sheryl G. Snyder, Esq.
Robert B. Vice, Esq.
Wyatt, Grafton & Sloss 
2800 Citizens Plaza Louisville, Kentucky 40202
Charles W. Brooks, Jr., Esq.
Borowitz & Goldsmith 
310 West Liberty 
Louisville, Kentucky 40202
Laverne S. Tisdale, Esq.
Senior Trial Attorney
Equal Employment Opportunity Commission 
1389 Peachtree Street, N.E.
Suite 101Atlanta, Georgia 30309
Leroy D. Clark, Esq.
Phillip Sklover, Esq.Office of the General Counsel
Equal Employment Opportunity Commission
2401 E Street, N.W.Washington, D.C. 20506