Lewis v National Labor Relations Board Suggestion of Rehearing En Banc by Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 83-2055

DONALD R. LEWIS, et al.,
Plaintiffs-Appellants,

v.
THE NATIONAL LABOR RELATIONS BOARD,

Defendants-Appellees.

On Appeal From The United States District Court 
For the Southern District of Texas 

Southern Division

SUGGESTION OF REHEARING EN BANC BY PLAINTIFFS-APPELLANTS

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
GAIL J. WRIGHT

99 Hudson Street 
16th Floor
New York, New York 10013

MARK MCDONALD
1834 Southmore Boulevard 
Houston, Texas 77004

Counsel for Plaintiffs- 
Appellants



TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES ...............  i

CERTIFICATE OF INTERESTED PERSONS ............ ii

STATEMENT OF COUNSEL .......................... iii

STATEMENT OF THE COURSE OF PROCEEDINGS
AND DISPOSITION OF THE C A S E ..................  iv

STATEMENT OF THE ISSUE ...........................  v

ARGUMENT ........................................  1
I. The Statistical Evidence 

Establishes A Prima Facie 
Case of Racial Discrimi­
nation With Respect To 
Promotions to Supervisory
and Managerial Positions............ 1

II. The Panel Decision Conflicts 
With Prior Decisions of 
This Court and The Supreme
Court ...............................  3

CONCLUSION ....................................  5

CERTIFICATE OF SERVICE 6



TABLE OF CASES AND AUTHORITIES

Page
Capaci v. Katz v. Besthoff, Inc., 711 F.2d 647 
(5th Cir. 1983 ) ................................  4

Carroll v. Sears Roebuck Co., 708 F .2d 183
(5th Cir. 1983) ................................  4

Hazelwood School District v. United States, 433 
U.S. 299 (1977) ................................  4

Payne v. Travenol Laboratories, 673 F.2d 798
(5th Cir. 1982)   4

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) 4

Teamsters v. United States, 431 U.S. 324 (1977) 4



CERTIFICATE OF INTERESTED PERSONS

Pursuant to Rule 35.2.1, the undersigned counsel 
of record for plaintiffs-appellants certify that the 
following listed persons have an interest in the outcome 
of this case:

1. Donald R. Lewis, the named plaintiff-appellant
2. Donald Dotson, Chairman of the National Labor 

Relations Board
3. Rosemarie Collyer, General Counsel of the National 

Labor Relations Board
4. Joseph E. DeSio, Associate General Counsel 

of the National Labor Relations Board
5. Louis Baldovin, Regional Director of Region 23 

of the National Labor Relations Board.

Respectfully submitted,

Gail J. Wright 
Counsel of Record for 

Plaintiffs Appellants



STATEMENT OF COUNSEL

Plaintiffs-appellants express their belief, based 
upon a reasoned and studied professional judgment that the 
panel decision is contrary to the following decisions of 
the Supreme Court of the United States and the United 
States Court of Appeals for the Fifth Circuit, and that 
consideration by the full court is necessary to secure and 
maintain uniformity of the decisions in this Court:

Teamsters v. United States, 431 U.S. 324 (1977)
Hazelwood School District v. United States, 433 U.S.
299 (1977)
Carroll v. Sears Roebuck Co., 708 F.2d 183 (5th Cir.
1983)
Capaci v. Katz & Besthoff, Inc., 711 F .2d 647 (5th
Cir. 1983)
Payne v. Travenol Laboratories, 673 F.2d 798 (5th
Cir. 1982)

Further, we express our belief, based upon a 
reasoned and studied professional judgment, that this 
appeal involves one or more questions of exceptional 
importance, namely the relative burdens of proof in a Title 
VII employment discrimination case.

Respectfully submitted,

Counsel of Record for 
Plaintiffs-Appellants



STATEMENT OF THE PROCEEDINGS AND DISPOSITION OF THE CASE

Donald L. Lewis, a Black professional employee of the 
National Labor Relations Board initiated this action in the 
District Court for the Southern District of Texas in Houston, 
Texas on May 6, 1976 pursuant to Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000 3, et. seq. as amended by the 
Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000C-16. 
The case went to trial on June 21, 1982, and concluded on July 
9, 1982. Plaintiffs-appellants challenged the various employ­
ment activities of the N.L.R.B. as they affected Black pro­
fessional employees in the field of examiner, field attorney, 
supervisory and managerial positions. Plaintiffs-appellants 
offered statistical, analytical, documentary, and testimonial 
evidence. The district court's final judgment, finding against 
the plaintiffs on all grounds was executed on November 24,
1984, and entered December 1, 1984.

Plaintiffs-appellants filed a notice of appeal on January 
20, 1983. A panel consisting of Judges Garza, Reaveley and 
Johnson heard argument on August 29, 1984, and in an opinion 
on January 18, 1985, affirmed the district court's judgment 
as to the merits. The court held that the statistical evidence 
adduced by plaintiffs-appellants did not demonstrate such a 
gross statistical disparity so as to demonstrate a pattern 
of discrimination in the National Labor Relations' promotional 
practices with respect to supervisory and managerial posi-



The panel reached this conclusion based upon its 
misapprehension of the facts in the case. Further, the 
ruling is squarely inconsistent with prior rulings from 
within the Circuit and from the Supreme Court.

*/ The Court also found against the plaintiffs-appellants 
with respect to other claims, however, those issues are not 
at issue in this petition.



STATEMENT OF THE ISSUE

Whether plaintiffs' statistical evidence demonstrated 
a pattern and practice of discrimination so as to establish 
a prima facie case of racial discrimination with respect to 
promotions to supervisory and managerial positions within 
the National Labor Relations Board.



ARGUMENT

I. The Statistical Evidence Establishes 
A Prima Facie Case of Discrimination

A. Promotions to supervisory positions 
Appellants respectfully suggest that the panel's 

analysis of the statistical evidence is flawed. That 
evidence demonstrates that Black professionals have moved 
into professional position over a period of 6 years at 
rates far below what would be expected given their repre­
sentation in the relevant labor force. If, as the panel 
and the district court concluded, Blacks moved up the lower 
ranks at speeds comparable to that of Whites, one would 
expect that over the time period involved they would become 
eligible for and receive promotions into the supervisory 
ranks at comparable rates also.

Such, however, has not been the case. Thus, in 
1974 and 1975, the two years prior to the filing of the 
complaint herein, Blacks received none or 0%, of the 117 
promotions to supervisor, even though they comprised nearly 
4% of the GS-13 Field Attorneys and GS-12 Field Examiners.- 
In 1976, when Blacks comprised 8.8% of the professional 
workforce (see slip op. at 1907, n.15), they received only 
4, or 4% of the 98 promotions to supervisors.

Even if the years of zero promotions are excluded, 
and even if it is assumed that Blacks remained at 8.8% of 
the professional workforce from 1976-1979, they received

1/ See PX 1, Tables 1C, 6C.



fewer promotions to supervisors at a level that is statis­
tically significant. —^ The panel discounts this evidence 
by adopting the district court's assumption that Blacks 
were represented as GS-13 Field Attorneys and GS-12 Field 
Examiners at a level below their representation in the 
overall professional workforce throughout the period. This 
assumption is contrary to the evidence. As the following 
Table shows, by 1979 a higher percentage of Blacks were GS- 
13 Field Attorneys and Field Examiners than in the profes­
sional workforce as a whole (12.8% —  ̂ to 10.5%). Throughout 
the period Blacks consistently received fewer promotions to 
supervisory positions than expected when compared to their 
members as GS-13 attorneys and GS-12 examiners.

2/ From 1976-1979 there were 379 promotions to supervisor 
and manager. 19 went to Blacks. See, PX 10. Using the 
formula set out at p.1906, n.12 of the slip opinion,

/number of promotion to x % of Blacks in x % of
supervisor workforce non-whites

= / 379(.088)(.912) = / 30.417 = 5.52
= Ko. of Blacks promoted(19) - Expected No. (8.8%x379)

5.52
= - 2.6 standard deviations
3/ Source: PX 1, Tables 1C, 6C. The figures show 33 Black 
GS-13 attorneys and 9 Black GS-12 examiners out of a total 
of 329 attorneys and examiners.

2



Table
Percentage of Black GS-13 FA and 
GS-12 FX and Percentage Promoted 
To Supervisors, 1976-79 _Z.

% Blacks GS-13 
FA, GS-12 FX

% of Promotions 
to Blacks

1976 6.4% 4%
1977 7.5% 3%
1978 10.13% 6.5%
1979 ] 2.8% 6%
The net result of six years of underselection of Blacks was 
that by 1980 Blacks remained severely underrepresented in 
supervisory positions at the level of — 3.12 standard 
deviations. Slip op. p.1906, n.12.

B. Managerial Positions
The inexorable zero shows up with regard to two 

of the three manager positions over the entire history of 
the agency since 1933 . There has never been a Black 
Assistant Regional Director, or a Black Regional Attorney. 
There has never been more than one Regional Director at any 
one time, for a grand total of 3 since 1933. Once more, 
appointment to these positions are from the internal work 
force. The absence of Black appointees remains unexplained.

II. The Panel Decision Conflicts With Prior
Decision of This Court And The Supreme Court

Plaintiffs' fundamental position is that prior 
decisions of this Circuit, as well as decisions of the

£/ Sources: PX 1, Tables 1C, 6C; PX 10.

3



Supreme Court, shift the burden to the employer to come 
forward with evidence, not conjecture, once the type of 
disparities that the above statistics show have been demon 
strated by the plaintiffs in a Title VII case. Conversely, 
neither the decisions in Payne v. Travenol Laboratories,
673 F .2d 798 (5th Cir. 1982) and Carroll v. Sears, Roebuck 
& Co., 708 F .2d 183 (5th Cir. 1983) nor those in Teamsters 
v. United States, 431 U.S. 324 (1977) and Hazelwood School 
District v. United States, 433 U.S. 299 (1977) require that 
the plaintiffs establish that the Blacks in the relevent 
labor force are as qualified as are the Whites. Rather, 
comparability of qualifications is the underlying assump­
tion upon which Title VII rests. See also Segar v. Smith, 
738 F .2d 1249 (D.C. Cir. 1984).

Reargument is necessary because the Court mis­
construed the facts in the case, and the opinion represents 
a sharp departure from prior decisions of the court which 
have considered the relative burdens of proof in a Title 
VII employment discrimination case challenging promotion 
procedures. See, e .g ., Payne v. Travenol Laboratories, 673 
F .2d 798 (5th Cir. 1902); Carroll v. Sears Roebuck Co., 708 
F .2d 183 (5th Cir. 1983); Capaci v. Katz Besthoff, Inc.,
711 F .2d 647 (5th Cir. 1983). See also Segar v. Smith, 738 
F.2d 1249 (D.C. Cir.).

In support of their claim of discrimination with 
regard to managerial positions, plaintiffs-appellants 
submitted evidence demonstrating that numbers of Blacks

4



in managerial positions was dramatically close to the 
"inexorable zero." The panel agreed that the number of 
Blacks in these positions is indeed, low (Slip op. 1908 
n .16). However, the panel opinioned that since these 
statistics failed to take into account special qualifi­
cations they would not support an inference of discrimi­
nation (Slip op. 1908 n.16).

Prior to this decision the opinions of this circuit 
had consistently held that where a plaintiff introduces 
accurate data, and a defendant alleges that additional 
relevant variables should have been included, the defendant 
may not rely on mere hypotheses to rebut that data, but 
must offer its own statistics demonstrating the effect of 
considering the submitted variable. See, e .g ., Capaci v.
Katz & Besthoff, 711 F.2d 647 (5th Cir. 1983). See also, 
Teamsters v. United States, 431 U.S. 324 at 360 (1976).

In Payne v. Travenol Laboratories, 673 F.2d 798 
at 817 (5th Cir. 1982) this Court held that once plaintiffs 
have shown a prima facie case through statistical proof, 
the employer cannot rebut the showing with general assertions 
of good faith or of hiring only the best applicants are 
insufficient. Contrariwise, in Lewis this Court concluded 
that plaintiffs-defendants case must fail because plaintiffs 
failed to compare those who were "qualified" for supervisory 
positions, or "special qualifications for managerial positions."

5



Slip op. 1907-08 n.16.
Thus, the Court's acceptance of the defendants- 

appellees unsupported and vague speculations to explain the 
low levels of Black representation in supervisory positions 
is inconsistent with previous decisions from this Court, 
which have imposed upon the defendants the burden of 
explaining why the expected proportion of Blacks have not 
received supervisory appointments. See, e,g., Carroll v. 
Sears Roebuck, 708 F.2d 183 (5th Cir. 1983), Payne v. 
Travenol Laboratories, 673 F .2d 798 (5th Cir. 1982). See 
also Harrell v. Northern Electric Co., 672 F .2d 444 (5th 
Cir. 1982). Had the panel adhered to its prior decision in 
Payne, Sears and Capaci, the result properly would have 
been a holding that plaintiffs presented an unrebutted 
prima facie case of racial discrimination with respect to 
promotions to supervisory and managerial positions within 
the National Labor Relations Board.

CONCLUSION
Wherefore, plaintiffs-appellants respectfully 

submit that the panel decision of January 18, 1984, should 
be vacated, and the case set for re-argument. Due to the 
importance of the issues presented by this case, appellants 
urge that it be reheard en banc.

Respectfully submitted,

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
GAIL J. WRIGHT 
99 Hudson Street, 16th Floor 
New York, New York 10013

6



MARK MCDONALD 
1834 Southmore Boulevard 
Houston, Texas 77004

Counsel for Plaintiffs- 
Appellants