Grigsby v. North Mississippi Medical Center Appellants' Brief

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 76-2207

OTHA GRIGSBY, et al.,
Plaintiffs-Appellants,

-v-
NORTH MISSISSIPPI MEDICAL CENTER

Defendant-Appellees

On Appeal from the United States District Court 
for the Northern District of 

Mississippi

APPELLANTS' BRIEF

JACK GREENBERG 
MELVYN R. LEVENTHAL 

10 Columbus Circle 
New York, New York 10019

KENNETH MAYFIELD
303 1/2 West Main Street 
Tupelo, MS 38801

Attorneys for Appellants



TABLE OF CONTENTSi

1

-.i.1

.11■M:j

Page

Table of Cases...................................... i
Rule 13 Certificate...............................  2
Statement of the C a s e .............................  4
Statement of the Facts . . . . .  ...................  7

1. G e n e r a l .............................  7
2. Statistical and Other Evidence

of Employment Discrimination .........  8
3. Statistical Evidence Relating 

to Racially Discriminatory
Discharges...........................  13

4. Named Plaintiffs .....................  14
\

Argument ..........................................  21
Conclusion..........................................  31
Exhibit A ..........................................  32
Exhibit B ..........................................  34



TABLE OF CASES

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975).................................  27

Baxter v. Savannah Sugar Ref. Corp.,
495 F.2d 437 (5th Cir. 1974).......................  25

Brown V. Gaston County Dyeing Machine Co.,
457 F.2d 1377 (4th Cir. 1972).......................  25

Burns v. Thiokol Chemical Corp.,
483 F.2d 300 (5th Cir. 1973).......................  30

East v. Romine Inc.,
518 *F.2d 332 (5th Cir. 1975).......................  27

Local 189, United Paperwork v. U.S.,
416 F.2d 980 (5th Cir. 1969).......................  27

Rodriguez v. East Texas Motor Freight,
505 F .2d 40 (5th Cir. 1974).........................  29

Rowe v. General Motors
457 F .2d 348 (5th Cir. 1972).......................  25

Sagers v. Yellow Freight Systems, Inc.,
529 F .2d 721 (5th Cir. 1976).......................  21

United States v. Hayes International,
456 F.2d 112 (5th Cir. 1972).......................  21

United States v. N.L. Industries, Inc.,
479 F .2d 354 (8th Cir. 1973).......................  25

Watkins v. Scott Paper Co.,
530 F.2d 1159 (5th Cir. 1976) .....................  25

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IN THE
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UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 76-2207

OTHA GRIGSBY, et al.,
Plaintiffs-Appellants,

-v-
NORTH MISSISSIPPI MEDICAL CENTER

Defendant-Appellees

CERTIFICATE REQUIRED BY LOCAL RULE 13 (a)

The undersigned counsel for plaintiffs-appellants 
Otha Grigsby, et al., in conformance with local Rule 13(a), 
certifies that the following listed parties have an interest in 
the outcome of this case. These representations are made in order 
that judges of this Court may evaluate possible disqualification 
or recusal:

1. Otha Grigsby, Eddie Black, and Essie Sneed, named 
plaintiffs and intervenors.

2. The class of present, past or future black 
employees of the North Mississippi Medical Center, Inc. 
represented by named plaintiffs.

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3. The North Mississippi Medical Center, Inc., 
defendant.

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IN TH E
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 76-2207

OTHA GRIGSBY, et al.,
P iaintiffs-AppeIlants, 

-v-

NORTH MISSISSIPPI MEDICAL CENTER

Defendant-Appe1lees

On Appeal from the United States District Court 
for the Northern District of 

Mississippi

APPELLANTS' BRIEF

STATEMENT OF THE CASE 

I

On August 20, 1974, plaintiff Otha Grigsby filed a 
complaint as a class action against the North Mississippi Medical 
Center (hereinafter called the "Medical Center") in Tupelo, 
Mississippi charging racial discrimination in employment in 
violation of 42 U.S.C. 1981. Plaintiff charged individually that

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he was terminated because of his race. (O.R. 1)

January 14-, 1975, the District Court entered an Order 
granting plaintiffs' October 29, 1974 motion for leave to add 
plaintiffs-intervenors and to amend his Complaint (O.R. 52, 65). 
Specifically, Betty Sullivan intervened alleging that she had 
been harassed by defendant because of her race and Eular Young 
intervened alleging that she had been constructively discharged 
because of race. May 12, 1975, the District Court entered an 
Order granting plaintiffs' February 27, 1975 motion for leave to 
add plaintiffs-intervenors and to amend Complaint a second time. 
(O.R. 94, 97) This time, Eddie Black, Doris Collier, and Essie 
Sneed intervened alleging that they were, either actually or 
constructively, discharged by defendant because of race; in 
addition, Eddie Black alleged that he had been denied a promotion 
because of race. Intervenor Black had filed a complaint of 
discrimination with the Equal Employment Opportunities Commission 
(which resulted in a finding of discrimination), had received a 
"Right to Sue" letter and, accordingly, jurisdiction then vested 
in the district court under 42 U.S.C. §2000e, et seq.

January 12, 1976, plaintiffs filed a Motion for Class 
Action Certification. (O.R. 108) The motion was referred to the 
U.S. Magistrate for a report and recommendations. On February 11, 
1976, the magistrate filed his report and recommended that a class 
action, defined as follows, be approved:

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"&11 present, discharged, laid off, and future 
black employees of defendant who have been or may in 
the future be affected by any policy or practice of 
defendant of racial discrimination in the areas of 
initial job assignment, promotions, job classification, 
employee disciplinary actions and termination of 
employment." (O.R. 114)

February 23, 1976, the Court entered an Order 
certifying the case as a class action, exactly as suggested by 
the magistrate. (O.R. 146)

Plaintiffs filed three sets of interrogatories. The 
second set sought to discover information relating to all of 
defendant's complexes, units, divisions and departments. (O.R. 31) 
The defendant filed a motion for a protective order and refused 
to answer most of the interrogatories. (O.R. 54) January 24, 1976, 
after a hearing, the District Court granted defendant's motion 
for a protective order and required the plaintiffs to submit a 
third set of interrogatories relating only to post hiring employment 
practices at the Mental Health Complex and at the Baldwyn Satellite 
Unit, two divisions of the hospital only employing approximately 
100 persons. (O.R. 84)

Prior to trial Doris Collier moved to be dismissed 
and was dismissed as a plaintiff. Betty Sullivan was dismissed 
from the employment of defendant shortly before trial, m s . Sullivan

i
moved for leave to amend her complaint to include her dismissal 
and after that was denied by the Court, she withdrew her original 
complaint. (O.R. 147)

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The case was tried on the claims of Otha Grigsby, 
Eular Young, Essie Sneed and Eddie Black and the defined class 
on February 23, 1976. February 27, 1976, after four days of 
trial, the District Court made a bench ruling (Tr. Tr. 895-916) 
and entered its Final Judgment for defendant on all issues. 
(O.R. 149)

A notice of Appeal and Motion to Proceed in Forma 
Pauperis was filed by plaintiffs March 26, 1976 (O.R. 151, 153) 
and granted by the District Court on April 26, 1976. (O.R. 163) 
Plaintiff intervenor Eular Young on October 20, 1976, filed a 
Motion to dismiss her appeal. This appeal, then is advanced by 
Otha Grigsby, Essie Sneed, Eddie Black and the defined class of 
blacks.

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Statement of Facts

General

The defendajit-appellee, North Mississippi Medical
Center, Inc.^ operates three interdependent health facilities:
(a) a 467 bed hospital in Tupelo which has between 18-20 different
departments (e.g. housekeeping, dietary, nursing); (b) a separate
50 bed "satellite unit," itself a small hospital. *in Baldwyn;
(c) a Mental Health Complex,, physically located within the *

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hospital in Tupelo but operating a mental health program in a 
ten county area. (O.R. 116, T.Tr. 15-16) Defendant employs 

a hospital administrator who is responsible for all three facets. 
Authority for all relevant employment decisions, at the Baldwyn 
unit and the Mental Health Complex, lies in department heads who 
report to and work for superior department heads operating in the 
main hospital facility. (T. Tr. 17-18) Thre are no standards of 
any kind controlling any supervisor in his or her hiring, promotion 
and dismissal decisions. (T. Tr. 17, 20, 37, Ans. to Interrogatories, 
40-41) Each department head is, and always has been, white. . In 
addition to the department heads the Medical Center has between 
six and nine other persons in general administrative positions at 
the Medical Center all of whom are and always have been white.
(Exh. 135-138) No black employee has ever supervised any white 
employee in defendant's entire history. (P.Exh.64, Interrogatory 43).

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The satellite unit and mental health complex employ
approximately 100 persons, 27 percent of whom are black. As of
November 30, 1975, defendant had a total of 1,120 employees,
814 (73%) of whom were white and 306 (27%) of whom were black.
The Medical Center is located in an area that is 21 percent

1/
black. (Tr.Tr. 93)

Statistical and Other Evidence of 
Employment Discrimination

The Medical Center's work force can be conveniently 
divided into five (5) categories: (1) officials and managers;
(2) professionals; (3) housekeeping; (4) dietary; and (5) 
business office and clerical personnel.

At the Mental Health Complex and Baldwyn Satellite Unit
the above categories are and have been, with few exceptions for
the last five years, one hundred percent (100%) either black or

2/
white (Exhibit "A" hereto) All professional employees (excluding 
nurses) are and have been white, with the exception of Otha Grigsby

1/ During discovery plaintiffs attempted to discover 
information from the Medical Center relative to its employment 
practices in all of its departments over a 15 year period.
However, the District Court, on Motion of the Medical Center for 
a Protective Order, ruled that plaintiffs could discover only 
employment practices relative to the Mental Health Complex and 
the Baldwyn Satellite Unit —  the units where then named plaintiffs, 
Otha Grigsby, Betty Sullivan, and Eular Young were either employed 
or had been employed. Moreover, discovery was limited to the 
post-hiring practices of the Medical Center after January 1, 1970. 
(Tr.Tr.84) Most of the statistical data presented by plaintiffs 
therefore relates directly to the Mental Health Complex and Baldwyn 
Satellite Unit and only by inference to the remainder of the 
Medical Center.

2/ see on the following page

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(the lead plaintiff), and three other blacks who were at best,
"paraprofessionals" holding positions which do not require any 
training or even a high school diploma (O.R.323). Moreover, 
the "paraprofessionals" were hired as a part of a specially 
funded alcoholism program which has been discontinued; and 
currently there are no black professionals or "paraprofessionals." 
(O.R.31D-2/

In housekeeping, one of the least desirable and lowest 
paid categories, defendant, from January 1, 1971 to May of 1974, 
employed seven or eight blacks and no whites. (Exhibit "A" hereto) 
On May 27, 1974, a white (Polly Nelson) was transferred from the 
dietary department to housekeeping and (O.R.696) immediately made 
supervisor over all the blacks in the department. Ms. Nelson has 
only a ninth (9th) grade education, (O.R.697) has been employed 
by the defendant since February 2, 1970 (P. Exh., 64, p,12e) and 
has never worked in the housekeeping department. (O.R.695)
Compare Ms. Nelson's qualifications to those of blacks; Irene 
Copeland has an eleventh (11th) grade education, has been employed 
by the defendant since July 28, 1969, and has always worked in the 
housekeeping department. (P. Exh. 64, p.l2m); Annie Richardson 
has been employed by the defendant since May 1, 1967, has always 
been employed in the housekeeping department and had an eight (8th) 
grade education? (P. Exh. 64, p.l2p) Helen Beene has been employed

2/ The only category on which plaintiffs have data 
covering the entire Medical Center (see f.n.l above) is officials 
and managers. No black has ever been so employed at the Medical 
Center although up to 59 whites have been so employed at a given 
time. (P. Exh.135)

3/ In January, 1975, there were 19 persons employed as professionals or "paraprofessionals," 2 persons (10%) of whom were black.

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by the defendant since February 3, 1968, has always worked in
the housekeeping department and has an eight (8th) grade education.
(P. Exh. 64, p.l2m) Indeed, Ms. Nelson testified that Ms. Beene
supervises in her absence:

Helen Beene has been with the Medical Center for 
nine years and on the days that I am off she 
relieves me. If anything comes up Helen is in charge 
to see that things are done. (Testimony of Ms. Nelson, 
O.R.708)

The defendant offered no explanation for its failure to 
promote any of the named black employees to the supervisory 
position nor did it explain why the housekeeping department has 
remained all black for at least the last five years, except for 
the white supervisor. The following is an excerpt taken from the 
testimony of the hospital administrator (Dan Wilford):

BY THE COURT:

Q. I think his question was if you had 
an explanation as to why during all 
these years, '71, '12, '12, '74 and 
'75 all the people that worked in 
the housekeeping department were black, 
with the exception of this one supervisor.

A. No sir, I have no explanation (O.R.29)

On January 1, 1971, eleven (11) persons were employed in 
the dietary department, eight (73%) of whom were white. From 
January, 1972 to May, 1974 there were ten persons who were working 
in the dietary department, seven (70%) of whom were black. From 
May, 1974 up to the date of trial there were nine persons working

10



in the dietary department, seven (78%) of whom were black.
(Exhibit "A" hereto). Of the three whites employed, one 
(Ozelle McCarthy) is head supervisor, Nora Lovell is an assistant 
supervisor (O.R.34) and the thrid white (Polly Nelson) was promoted 
to supervisor after working for the defendant on a part time 
basis for only two months. (O.R.696) The white supervisors are 
no more qualified than the blacks whom they supervise. The head 
supervisor has an 11th grade education and has been employed by 
the defendants since May of 1969. Ms. Lovell has a grade school 
education and has been employed by the Medical Center since 
May 29, 1969, and Ms. Nelson, as noted above, has a ninth (9th) 
grade education, and has been employed by the defendant since 
February of 1970. (O.R.696) Again, compare these whites to black 
employees: Rosi Mae Richardson, whose educational background is
unknown, has been employed by the defendant since October of 1967 
(P. Exh. 64, p,12m) Ms Richardson was used by defendant to instruct 
Ms. Nelson in her responsibilities; coincidental to Ms. Nelson's 
promotion Ms. Richardson was made a "first line supervisor," (the 
first black to hold that position in defendant's history) but she 
still occupies a position inferior to that of Ms. Nelson; (Tr.Tr. 
710-714) Rosie Lee Richardson has a ninth grade education and 
has been employed in the dietary department since September of 
1968 ; (p. Exh. 64, p.l2m) Eulene Scales has a 12th grade education
and has been employed in the dietary department since July of 1969. 
(P. Exh. 64, p.l2m) The testimony of the hospital administrator 
is representative of the explanation offerred by defendant for 
this discriminatory pattern:

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Q. Do you have any explanation as to why 
from 1971 to 1975 the only whites that 
you had in the dietary department were 
supervisors or assistant supervisors?

A. No sir.
Q. Do you have any explanation as to why

all of the workers in those departments 
from 1971 to 1975 were blacks?

A. No sir. I assume that those were the
jobs that they applied for or they were 
placed in after making application for 
employment. (O.R.39, 40)

In January, 1971 and 1972 there were 11 persons employed
in the business office and as clerical personnel none of whom was
black. (Exhibit "A" hereto) In January, 1973, a black woman was
employed but only under the same specially funded alcoholic program
as the "paraprofessionals" referred to above. In addition, she
was not working at the main unit or even at a branch unit of the
hospital? rather she worked at the New Life Center, a walk-in
center for alcoholics located in the black neighborhood in Tupelo.
(Tr. Tr.469) In January, 1974, no black was employed as secretary.
In January, 1975, there were 17 persons listed in the category of
business office and clerical personnel, one of whom was black.
(Exhibit "A" hereto) But she was employed after this lawsuit was
filed and replaced another black that had been employed a few months
earlier during an EEOC investigation into defendant's practices.
(Exh.64, p.35x)

Turning to job classifications, the Medical Center admits 
that 14 are, and for the last five years have been, occupied solely 
by whites. The classifications are: (1) Registered Nurse, (2) Head 
Supervisor, (3) Supervisor-Housekeeping, (4) Business Office Personnel, 
(5) Maintenance worker, (6) Medical Technologist, (7) Radiological

12



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Technologist, (8) Psychiatric Social Worker, (9) Recreational

• ]
Therapist, (10) Recreational Assistant, (11) Social Worker, (12) 
Coordinator-counselor, (13) Therapist and (14) Mental Health Worker. 
(P.Exh. 64, Interrogatory 13)

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The Equal Employment Opportunity Commission investigated 
a charge of racial discrimination filed by Eddie Black individually 
and on behalf of a class of black employees segregated to the lower 
job classifications. The EEOC found on the basis on the records at 
the Medical Center that there was probable cause to believe that the 
jobs were segregated according to race. The following excerpt is

•j taken from the determination:J,.J
"While only four persons at the Mental Health Complex 
serve in the capacities of Director, Supervisor, or 
Manager, and all are white, the North Mississippi Medical ■j  Center, as of April 26, 1974, employs 26 officials and
Managers and all are white. While 161, or 75 percent of 

.] its black employees are employed in the lowest category,
j that of service worker, only 221, or 31 percent, of its

white employees are employed in this category." (P.Exh.90)
The Medical Center has absolutely no explanatory evidence to rebut 
those statistics.

STATISTICAL EVIDENCE RELATING TO 
V  RACIALLY DISCRIMINATORY DISCHARGES

Whereas, the black employees at the hospital comprise 
only 27 percent, the percentage of blacks discharged for cause is 
44 percent. No evidence was presented by the hospital to explain 
why the discharge for cause rate for black employees is 17 percent 
higher than the percentage of blacks employed by the hospital.
The following excerpt is taken from Mr. Wright's (the Personnel 
Manager) testimony:

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Q. How do you explain the fact that 27 percent of 
your employees are black and yet 44 percent of 
those dismissed for cause are black? That is 
about a 17 percent differential.

A. I don't know that I can realistically tell you 
the reason why. I guess my off-the-head comment 
would be that people who are terminated for 
cause are newer employees, probably in less 
highly skilled areas, prone to terminate because 
of the type of work that is being done. It is 
a more transient group of employees, I would 
imagine. (O.R.836)

NAMED PLAINTIFFS

Otha Grigsby, the lead plaintiff, holds a B.S. Degree 
from Alcorn A&M University and a M.S., from the University of 
Mississippi. (O.R.534) He was employed by the Medical Center 
in the Mental Health Complex as an Occupational Health Special­
ist on August 23, 1973 (P.Exh.64, p.120). Before being em­
ployed by the Medical Center, Grigsby had years of experience 
in industry at both the production and supervisory levels. 
(O.R.552) He was terminated one year after being employed, in 
August, 1974, by Duncan Clark, the Director of the Mental Health 
Complex (P.ExH.31)

I-1j

Grigshy was the first and last truly professional black 
to be employed by the Medical Center in the Mental Health Com­
plex or Baldwyn Satellite Unit. He was hired as part of a 
specially funded Mississippi Occupational Health Program, 
established to assist employers with troubled employees, e.g., 
those with alcohol problems, and administered through Mental 
Health Complexes throughout the State; the Mental Health Com­
plex of the defendant Medical Center was responsible for the 
program in Lee and ten surrounding counties. Grigsby's

14



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responsibility was to solicit participation in the program.
(Tr. Tr. 16, 356, 357)

Grigsby's initial tasks included compiling information 
on the various industries and businesses in his 11 county area, 
preparing an Industrial Health Program, and obtaining signed 
contracts from businesses confirming their participation in 
the program. (O.R. 536)

It took Grigsby approximately two months to gather 
statistical and other data on the businesses in his area. (O.R. 
555) During this time Duncan Clark set up two industrial 
luncheons. After Grigsby gathered his information and the 
luncheons were held, he attempted to obtain signed contracts, 
but faced the following obstacles: (1) the program was new and 
had to be explained in detail to each business; (2) the program 
was in "contract" form; (3) there was a fee provision in the 
contract; (4) Grigsby was not allowed to demonstrate how the 
program worked; (5) some of the businesses were waiting to see 
how-the program worked at other companies; and (6) Grigsby was 
black and all of the businesses were managed by whites.

Because of the aforementioned obstacles, the program 
was not accepted initially by the businesses. However, the 
program was not being accepted well in other regions of the State 
of Mississippi. (Tr. Tr. 580) Around April, 1974, the program was 
revised with the burdensome "contract" and the fee provisions 
deleted. (O.R. 540) Grigsby again diligently sought industry

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participation. (Tr.Tr.542) He obtained his first signed agree­
ment in June, 1974, and his second, third, fourth and fifth 
between June and August, 1974. In January, 1974, Clark had told 
Grigsby to get four signed contracts within his first year, and 
this requirement had been exceeded. Nevertheless, Grigsby was 
terminated on August 14, 1976, through a letter praising him 
for his initiative, enthusiasm, cooperativeness and responsibility. 
He was told that the program would take a clinical approach for 
which he was not qualified. (Exhibit "B" hereto)

Grigsby was replaced with a white, Douglas Von Horn, 
who also had a Bachelor's and a Master's Degree. He was fresh 
out of school and had no supervisory experience in industry.
(O.R. 738, 739)

Compare the experience of Grigsby with that of Eldridge 
Flemings, a white man hired in June, 1969, as Director of Education 
and Alcoholism Programs. His first assignment was to develop 
an "Industrial Alcoholic Rehabilitation Program," (O.R. 202) 
remarkably similar but narrower in scope to Grigsby's "Occupa­
tional Health Program." (O.R.210) After six months, Flemings 
was not able to obtain one signed agreement. (Tr.Tr.192,1202) 
However, Flemings was not terminated; his title was merely 
changed from "Director of Education and Aicohol Programs" to 
"Director of Alcohol Programs^" (Tr. Tr. 186)

Eddie Black, a black intervenor, holds a Bachelor's 
Degree in Social Science. (P.Exh.87) He, with Alvin Thomas,

16



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j also black, was hired in July, 1972, as a Manager-Counselor
of a New Life Center, a walk-in facility for alcoholics, 
located in the black community of Tupelo, Mississippi and 
a facet of the alcoholics program of the Mental Health 
Complex. Three other black employees were also employed 
in the program, all in inferior positions. (Tr.Tr.468-69, 
Def.Exh.25) Supervising this program were two white men: 
Buddy Ramage, the Coordinator of Counsellors and Eldridge 
Flemings, the Director of the Alcoholism Program, both sta­
tioned in the Mental Health Complex in Tupelo. Intervenor 
Black contends that upon Ramage1s resignation he, and other 
black employees, were denied the Coordinator of Counsellors 
position because of their race.

assigned to the Mental Health Complex and for six weeks per­
formed most of the duties formerly assigned to Ramage.
(Tr.Tr.473, P.Exh.110) Thereafter, Black attended Atlanta 
University where he earned a Diploma in the Alcoholism Counselor 
Program which qualified him "to work with individuals, groups, and 
and communities on the problem of alcoholism." (P.Exh;86)
This background, and the guidelines of the program and regu­
lations of the Medical Center affording incumbents a prefer­
ence for all promotions and vacancies, (P.Exh.105 and 32) 
suggested that plaintiff intervenor or Mr. Thomas should have 
received the vacant Coordinator of Counsellors position.

Upon Ramage’s departure, Black and Thomas were

-1 17



y The Coordinator position was filled on July 2, 1973,j
with a new employee, Kelly Ferguson, a white male. He had only

5 a Bachelor's Degree and had no counselling experience except 
for that obtained while working in a half-way house in the Army. 
(P.Exh.64, p.35r, Tr.Tr.458) Thereafter, Black and Thomas com­
plained to the EEO officer of "LIFT" (the funding source for the 

5 program), (Tr.Tr.886), which resulted in Flemings compiling a
statement of why none of his black employees was promoted.

‘.I
(D.Exh.25) Flemings then called a meeting of such employees 

. and advised them of his disposition. (Tr.Tr.475) Thomas
resigned in frustration. Black filed a charge of racial discrimi­
nation with the EEOC and also resigned somewhat later. Plaintiff's 
claim of unlawful discrimination was upheld by the EEOC in a 
compelling determination:

"In summary, the evidence indicates that Charging 
Party's original application indicated that he 
desired the position of Coordinator of Counselors, 
that at the time this position was filled he and 
another black employee were carrying out most of 
the duties of this position, and Charging Party's 
performance had been highly rated by his super­
visor just a few months prior to this position 
being filled. Further^the record shows that 
while the staff was told that the position would 
not be filled, the Director of the Program pro­
ceeded to fill the position without internal 
announcement of the vacancy to the staff, which 
employees, without exception, said had been done 
in the past. Finally, while all the decision­
makers regarding this position were white, the 
two staff members, both black, who, by virtue 
of having been carrying out the functions of the 
job, would have to be considered leading con­
tenders for it, were not even told that a vacancy 
existed and thus given an opportunity to apply 
and be interviewed for the position." (P.Exh.90, p.5)

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Essie Sneed, a black, was employed by the North 
Mississippi Medical Center on December 17, 1975, as a nurse's 
aide. Sneed has an 11th grade education, has six children and 
had previous work experience mostly as a housemaid. The job 
as nurse's aide entailed serving breakfast, taking temperatures, 
and assisting the nurses in other various duties. (R.vol.IV,pp.622,623)

After working at the Medical Center for a few weeks, 
Sneed injured her back while lifting a patient in bed. She was 
immediately sent to the emergency room where she was treated 
by Dr. Harris (an employee of the Medical Center) who advised 
her to remain off work and attend therapy sessions. Sneed 
returned to work a few weeks later and had a re-occurrence of 

back problem. Sneed obtained medical treatment while she 
continued to perform her duties. Defendant terminated plaintiff 
on March 5, 1974, while she was hospitalized for her on-the-job 
injury. (R.vol.IV, pp.624,625,627)

The Medical Center has a 90-day probationary period 
during which an employee can be fired for any reason. Plaintiff 
was within the 90-day period when she was fired for absenteeism. 
However, it is also the policy and practice of the hospital not 
to fire a person for absenteeism if the employee is hurt on the 
job:

BY THE COURT:
Q. Is there any exception to that 

rule where an employee is hurt 
on the job? Do you mean you have 
a rule there that during the



j& a ta e a a u a fa < a M h -VV .

period [of probation] if the 
employee suffers an injury on 
the job, that to take sick 
leave or be away from work on 
account of injury would for­
feit her right to complete 
her employment?

A. No sir, that is not what I
meant to say. Our sick leave 
policy for employees injured 
on the job differs from our 
policy that deals with em­
ployees who become ill on 
their own. If an employee 
were hurt on the job we would 
certainly extend the probation­
ary period to make sure that we 
had a full three months to look 
at them and have a full three 
months to look at us.
(R.vol.IV,p.826, testimony of 
Barry Wright, Personnel Manager).

It is undisputed that (1) the policy of the hospital 
is to not fire a probationary employee for absenteeism if related 
to on-the-job injury; (2) Sneed was injured on the job and 
indeed was hospitalized as a result ,at the time of her dis­
charge; (R.vol.II, pp.77,80) (3) the treatment accorded Sneed
was different from that accorded white employees under similar 
circumstances; (R.vol.IV, pp.628,637) (4) the Medical Center
provided no explanation for its treatment of Sneed, nor could 
it name any whites who had been similarly treated.

20



ARGUMENT ONE

Plaintiffs Established a Priraa Facie Case of 
Class Discrimination.

The district court's bench opinion at first addressed 
only the named plaintiffs' individual claims of discrimination. 
After specific inquiry from plaintiffs' trial counsel, the court 
provided the following - and only the following - explanation of 
its decision as to the class:

Although the Court is of the opinion that 
the named plaintiffs and plaintiff intervenors 
made out a prima facie case on their individual 
claims, the Court believes that the proof was 
wholly insufficient to make out a prima facie 
case against the defendant as to the plaintiff 
class. Accordingly, the burden of proof never 
shifted to the defendant on the class issue. 
(Tr.Tr. 914-915)

A prima facie case of racial discrimination, under 
Title VII, is established by statistics alone. "The inference 
[of discrimination] arises from the statistics themselves and 
no other evidence is required to support the inference." United 
States v. Hayes International, 456 F.2d 112, 120 (5th Cir. 1972). 
Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721, 729 (5th 
Cir. 1976) (and see lengthy citation td additional authorities in 
Sagers, 529 F.2d at 729, n. 16). The district court erred in not 
finding for appellants in light of the compelling statistical case 
and additional evidence of class discrimination.



With reference to the administrative personnel at 
the Medical Center, there were 59 officers and managers as 
of 1972, none of whom was black. From 1973 to 1975 there 
were at all times either 25 or 26 officers and managers, (it 
appears that 32 or 33 of the employees previously classified as 
officers and managers were reclassified) none of whom was black. 
The Medical Center has never employed a black in an administrative

* -»r
capacity, even though 27 percent of its work force is black and 
even though it is located in an area that is 21 percent black 
geographically. Furthermore, in 1975, of the 25 whites serving 
as officials and managers, five had only a high school diploma.

In the business office - clerical personnel category,
racial discrimination is also demonstrated by statistics. From

4/
1971 through 1974, defendant's staff was entirely white; in 1974 
the first black secretary was hired. The exclusion of blacks 
from such positions through 1974 and the subsequent employment 
of only one such person, is a facet of a prima facie case of 
unlawful discrimination.

In Housekeeping, from 1971-74, appellee employed seven 
or eight blacks and no whites. In May, 1975, one white (Ms. Nelson) 
was transferred from Dietary to Housekeeping and immediately made 
supervisory over the seven more qualified blacks.

4/ In 1973, defendant employed a black secretary to work at 
the New Life Center which was located in the black community of 
Tupelo and part of a specially and separately funded program; she 
answered to Thomas and Black, two black employees of the same 
program. 22



In 1971, appellee's Dietary Department consisted of 
11 persons, eight of whom were black. From 1972 to 1974 it 
consisted of ten persons, seven of whom were black. In 1975 it 
consisted of nine persons, seven of whom were black. From 1971 
through 1975 every white employee of the Dietary Department was 
a supervisor.

t1 .
Although plaintiffs were not permitted discovery on 

the termination practices of the whole hospital, appellee demon­
strated that although blacks comprise only 27 percent of the work 
force, they are 44 percent of those discharged.

Although plaintiffs could have successfully relied upon 
the foregoing proof for their priraa facie case, they went much 
further. They particularized the pattern revealed by the statistics 
with proof of discrimination against individual employees. Thus, 
it was demonstrated that defendant has employed a total of four 
blacks as "paraprofessionals;" two (Prude and Coleman) were 
discharged (not transferred) when funding for the special alcoholism 
project was reduced; the remaining two (Black and Thomas) were 
forced to resign when they were passed over for a critical promotion 
awarded to a white man recruited from without the agency. Predict­
ably, the position in question. Coordinator of Counselors, had 
always been restricted to whites. Plaintiffs also demonstrated 
that Ms. Nelson, made supervisor over all blacks in the Housekeeping 
Department, had never before worked in that department and was 
taught her responsibilities by the black employees in her charge.

- 23 -



.^■'.■■•^...^wi>,«■; ,

Aggravating matters, Ms. Nelson had previously been made . 
supervisor in the Dietary Department after working there 
part-time for two months.

Under well established indistinguishable 
precedent plaintiffs made out a prima facie case of racial 
discrimination against the defined classes. The district 
court erred in holding otherwise.

24



'l l—  L.. I— - .V, ~_a s-l. s--~ ..-■:. ,- . -< -

ARGUMENT TWO

Employment decisions based entirely 
upon the subjective judgment of an 
all-white supervisory staff which 
result in the promotion of only whites, 
or the employment of only whites for 
positions of responsibility, or which 
result in disproportionate discharges 
of blacks, are violative of Title VII.
And defendant's discharge of plaintiffs 
Grigsby and Sneed and its failure to 
promote intervenor Black and similar 
situated class members violated Title VII.

ii “
In Watkins v« Scott Paper Co., 530 F.2d 1159, 1193

(5th Cir. 1976), the Court found the following facts combined 
to render defendant's promotion decisions violative of Title VII:
(1) the supervisor's recommendation for a promotion was critical;
(2) supervisors were not given written instructions controlling
their decisions? (3) standards in existence were "vague and
subjective;" (4) incumbent employees were not notified of
vacancies or the necessary qualifications; (5) there were no

_4/
"safeguards" to avert discriminatory practices.

J1

-4/ Watkins is merely recent authority for a principle 
now entrenched. Rowe v. General Motors, 457 F.2d 348 (5th Cir. 
1972) ; Baxter v. Savannah Sugar Ref. Corp. 495 F.2d 437, 442 
(5th Cir. 1974) United States v. N.L. Industries, Inc.. 479 F.2d 
354, 367-68 (8th Cir. 1973). Brown v. Gaston County Dyeing Machine 
Co^ 457 F.2d 1377 (4th Cir. 1972).

25



All of the deficiencies enumerated in Watkins are
present in the case sub judice; T. Tr. 37-41, Pi. Exhibit 64, 
Interrogatories, 40-41. It is clear, too, that these deficien­
cies have resulted in blacks being passed over for all meaningful 
promotions, since defendant freely admits that not one of its 
black employees "in the ordinary course of his duties...exercises 
general supervisory authority over any white person or persons." 
(P. Exhibit 64, Interrogatory 43). The trial court erred in 
not directing modifications to defendant's employment practices 
required by Watkins.

The district court, perhaps in light of Watkins,
found that named plaintiffs had established a prima facie case
of unlawful discrimination. However, it found that prima facie
case rebutted by proof that defendant's decisions were made in
"good faith" and were not "illegally motivated:"

While it is no doubt true that 
Mr. Grigsby holds a bachelor's 
and a master's degree as does- 
his successor, Mr. Van Horn, the 
Court does not intend at this 
point to pass upon the question 
of whether Mr. Grigsby possesses 
the necessary qualifications for 
the job from which he was dis­
charged or whether Mr. Van Horn 
possesses qualifications superior 
to those of Mr. Grigsby. The only 
question which is now before the 
Court and which the Court will 
address is whether Mr. Grigsby's 
discharge was prompted by illegal 
motivation, that of race. In the 
Court's mind, the evidence shows 
that it was not.... More specifical­
ly, the Court finds that Mr. Clark, 
acting in good faith, discharged 
Mr. Grigsby because he, Mr. Clark, 
felt that Mr. Grigsby was not per­
forming adequately. Whether Mr.
Grigsby's performance was adequate 
or inadequate is not for the Court 
to decide. (Tr. Tr. 902-903)
(emphasis added).

- 26 -



.M
S;
 i.

_.r

Grigsby proved by a preponderance of the evidence 
that he performed satisfactorily, that he possessed the 
necessary qualifications for the position and that the white 
who replaced him was not more qualified. The district court 
required that Grigsby prove more- that he was intentionally 
and in bad faith victimized. Title VII requires no such 
proof. Local 189, United Paperwork v. United States. 416 F.2d 
980, 996 (5th Cir. 1969). Albemarle Paper Go., v. Moody.
422 U.S. 405, 422-23, 45 L. Ed. 2d. 280, 299 (1975). In ad­
dition, the district court's refusal to compare the qualifications 
of named plaintiffs with those of the whites who obtained the 
positions sought or held by named plaintiffs, was clearly 
improper under controlling principles. East v. Romine Inc..
518 F.2d 332, 340 (5th Cir. 1975).

- 27 -



ARGUMENT THREE

Plaintiff Sneed's Prima Facie Case 
Was Not Rebutted.

It was established that Essie Sneed was employed 
by the Medical Center in December, 1973 as a nurse's aide 
and that she was injured while performing that job. It was 
further established that she was fired for absenteeism 
necessitated by this injury in the face of a Medical Center 
policy not to fire a person for absenteeism if it resulted 
from an on the job injury; supra. pp. 19-20.

The District Court found that Sneed established 
a prima facie case and required defendant to come forward 
with rebuttal evidence. (T. Tr. 911) The one witness 
presented by the Medical Center testified that it was not 
the hospital's policy to fire an employee for absenteeism 
related to an on-the-job injury. No other proof relating 
to the merits was advanced.

Defendant apparently relies entirely upon the 
fact this plaintiff, at her deposition, stated that she did 
not think that her race was a factor in her treatment.
This "admission," explained and withdrawn by the plaintiff 
at trial, is the sum and substance of defendant's defense.
(T. Tr. 634-646) We know of no Title VII requirement that 
a named plaintiff be able to define racial discrimination 
or know that she was so victimized. Judges and lawyers 
expert on Title VII often erroneously find no discrimination.

- 28 -



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And this kind of admission by a plaintiff has been held 
irrelevant to a Title VII claim. Rodricruez v. East Texas 
Motor Freight. 505 F.2d 40, 59 (5th Cir. 1974).

Ms. Sneed filed this lawsuit claiming racial 
discrimination; from that point forward the issue was not 
whether she knew she was victimized but rather whether she 
was in fact victimized.

ARGUMENT FOUR
The District court Improperly Limited 

Discovery.

October 29, 1974, plaintiffs propounded a second 
set of interrogatories against which defendant sought a 
protective order. The district court, on January 2, 1975, 
entered an order sustaining defendant's objections and 
limiting discovery to the Mental Health Complex and the 
Baldwyn unit. (O.R. 85-86, 89-90).

January 2, 1976, plaintiffs filed a motion for 
class action certification. (O.R. 108) February 23, 1976, 
the district court, on the basis of a lengthy and cogent 
recommendation from the Magistrate, (O.R. 114-46), granted 
class certification for all facets of defendant's operations. 
Trial began on the very day this certification was granted.
And so plaintiffs faced the burden of proving across the 
board unlawful discrimination at all of defendant's facilities 
while under a January 2, 1975 order limiting discovery to 
only two facets of defendant's operation.

- 29 -
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■-:v...l-1~± -;ai'..,_■ , . " •  - '- -’------- ■ ~£ -» ■ .' -  ■ --■_ : :  ,'.■

Of course, the district court on January 2, 1975 
did not anticipate the later broad class certification. But 
no matter the explanation, plaintiffs could not possibly 
adequately present proof of class discrimination in all 
facets of the hospital without the discovery foreclosed by 
the Court on January 2, 1975. And on remand plaintiffs 
should be permitted to advance a more complete statistical 
case. Burns v. Thiokol Chemical Corp. 483 F.2d 300, 306 
(5th Cir. 1973).

- 30 -



>r * u (■min ♦ ■■-nr ,

1l
■4j;j

j

CONCLUSION

For the foregoing reasons the following district court 
determinations must be reversed: that no prima facie case
of class discrimination was established; that defendant did 
not engage in any policy or practice violative of Title VII; 
that defendant's successfully rebutted named plaintiffs' 
prima facie cases; limiting discovery to two facets of 
defendant's operation while certifying the case as a class 
action for all facets. And the case should be remanded 
for the entry of appropriate relief for the class and named 
plaintiffs.

Respectfully submitted,

10 Columbus Circle 
New York, New York 10019

KENNETH MAYFIELD
303 1/2 West Main Street 
Tupelo, MS 38801

Attorneys for Appellants



EXHIBIT A

Mental Health Complex and 
Baldwyn Satellite Unit

EMPLOYEES BY RACE

HOUSEKEEPING DEPT.

Black White Total
Percentage
Black

Jan. 1, 1971 7 0 7 100%
Jan. 1, 1972 7 0 7 100%
Jan. 1, 1973 7 0 7 100%
Jan. 1, 1974 7 0

*/
7 100%

Jan. 1, 1975 7 1 8 87.5%

*/ The one white in the department is the supervisor. She
was transferred from the dietary department in May, 1974.(Tr.Tr.28)

DIETARY DEPT.

Black White
*/

Total
Percentage

Black
Jan. 1, 1971 8 3

*/
11 73%

Jan. 1, 1972 7 3
*/

10 70%
Jan. 1, 1973 7 3

*/
10 70%

Jan. 1, 1974 7 3
*/

10 70%
Jan. 1, 1975 7 2 9 78%

*_/ All the whites employed in the dietary department are 
supervisors. (Tr. Tr. 32-35)

- 32 -



i3
:I■A

■ k ■•—  a w / t -- ■ ■ » T ~ i '^ r j - v A .  /> ¥  S u ' ,  -  . U . ■-- « . , ^ ■ ',. f Y ^

Exhibit A page 2

BUSINESS OFFICE & CLERICAL PERSONNEL
Percentage

Black White Total Black
Jan. 1, 1971 0 11 11 0
Jan. 1, 1972 0

*/
12 12 0

Jan. 1, 1973 1 10 11 10
Jan. 1, 1974 0 15 15 0
Jan. 1, 1975 1 16 17 .06

V' This one black secretary was hired on a specially 
funded Alcoholism Program. She was not working at the Main facility 
of the hospital but was working at the New Life Center which is 
located in a black neighborhood in Tupelo.

PROFESSIONALS (Excluding nurses)

Black
Jan. 1, 1971

~*7
1

Jan. 1, 1972
*/

2
Jan. 1, 1973

*/
4

Jan. 1, 1974
*,/

3
Jan. 1, 1975 */

2

Percentage
White Total Black

9 10 10
11 13 15
10 14 29
14 17 18
17 19 10

*/ All the blacks except one were employed in an al­
coholism program which was specially funded project and is not 
currently in effect. Moreover, by admission of defendants all 
of the blacks are "paraprofessionals" in that their jobs do not 
even require a high school education. The one black not included 
in the alcoholism program was Otha Grigsby and he was discharged 
and is a party to this lawsuit.

- 33 -

T.w’;■ 1 *t;̂:rr7r!:"-Pyf-



1-

u te a itk  C>oynpLex. | |  *30 *

SERVING. BENTON. CHICKASAW. ITAWAMBA. ' LEE. MONROE 
PONTOTOC AND UNION COUNTIES

1<■
COUNTT OFFICES

BENTON COUNTY 
Benton County Clinic Building 
Ashland. Miuiuippi J8402 
Phone 224-8883
CHICKASAW COUNTT 
223 Eaat Washington 
Houston, Mississippi 38SS1 
Phone 453-4239
ITAWAMBA COUNTY 
Crane Office Building 
Bo* 87
Fulton. Mississippi 38843 
Phone 852-9898 ------
MONROE COUNTY ^
East Comma re# Street 
Box 18
Aberdeen, Miseiseippi 39738 
Phone 449-2922
PONTOTOC COUNTY 
Boone Building 
Box 263
Pontotoc, Mississippi 38883 
Phone 489-8141
UNION COUNTY
Room 11, Houston Buildins
Bankhead Street
New Albany. Mississippi 38882
Phono 534-5009

■1 - *

I. GLOSTER STREET • PHONE 801-848.3032 (EXT. 384) 

TUPELO. MISSISSIPPI 38801

August 14, 1974

Mr. Otha Grigsby
Occupational Health Specialist * 
Mental Health Complex 
North Mississippi Medical Center 
Tupelo, Mississippi 38801
Dear Otha,

Because of the limited response of industry to the Occu­
pational Health Program, it will be necessary for your employ- 
ment as Occupational Health Specialist to terminate on August 30,
1974 with two weeks additional pay in lieu of your annual vacation. 
You are being 'laid off" rather than discharged. (See page 8 of 
Employee's Handbook"). The reason is non-disciplinary be­

cause of such "limited results on the^part of industry, as you and 
I first discussed on May 8, 1974, and at which time.you were issued 
a warning notice. This termination notice is in agreement w'ith our • 
conversation <Jn June 28, 1974_at which time you were given two weeks' 
notice and guaranteed a job-until July 12, at which time you would 
go on a week to week" basis until a satisfactory replacement could 
be secured. This is also wri-tteTi confirmation of our conversation 
on August 12, 1974 at which time you were told that a satisfactory 
replacement has been secured and that your last working day will be August 30, 1974.

The program will take another approach which will require a 
specialist with clinical skills to provide clinical consultation to 
personnel directors about their problem employees. I deeply regret-
that your training as a Sociologist does not include such a clinical orientation.

However, your initiative in this new program has provided a use-- 
.ful experience for the Mental Health Complex and the entire staff is 
grateful for your initiative.-

This means that if you care to use the Mental Health Complex as 
a reference in seeking employment, you will be given a positive

f t - % %

✓f \\ i£

EXHIBIT B



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Exhibit B -2- page 2

recommendation based on your enthusiasm, cooperativeness, and 
responsibility.

Sincerely,

Duncan As Clark 
. Center Director 
Mental Health Complex

- £ L  , < l - r
Elizabeth Ford \
Assistant Administrator
North Mississippi Medical Center

DAC/pp