Sylvester v. United States Postal Service Reply Brief for Plaintiffs-Appellants

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 77-1746

HAROLD L. SYLVESTER, et al.,

Plaintiffs-Appellants, 

-vs-
UNITED STATES POSTAL SERVICE, et al.,

Defendan ts-Appellees.

On Appeal From The United States District Court For The 
Southern District Of Texas, Houston Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

MARK T. MCDONALD 
PAUL ZAREFSKY

1834 Southmore Boulevard 
Houston, Texas 77004

JACK GREENBERG 
BILL LANN LEE 
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS-APPELLANTS



TABLE OF CONTENTS

t '

4 ’

f

s

r

Page

Table of Contents ...................................  i

Table of Authorities ................................  iii
ARGUMENT .............................................

I. PRELIMINARY STATEMENT .............  1

II. THE COURT HAS JURISDICTION OF 
THE APPEAL UNDER 28 U.S.C. §1292
(a) (1) .................................  2
III. THE DISTRICT COURT ERRED IN 
ITS REFUSAL TO ALLOW THIS ACTION
TO PROCEED AS A CLASS A C T I O N... ......  3

A. The Defendants' Statistical 
Showing Fails To Rebut The
Plaintiffs Prima Facie Case ........... 10

B. The Defendants' Reliance Upon
An Overly Restrictive Interpretation
Of The Typicality Requirement Of
Rule 23 Is Not Supported By Title
VII L a w ....... ....... ................. 11
C. Neither The Facts Of This Case 
Nor The Holdings Of This Circuit 
Support The Defendants' Assertions 
With Respect To Standing, The 
Representative Character Of
Plaintiffs, Or A Conflict Of Interest . 13

IV. THE DISTRICT COURT ERRED IN ITS
DENIAL OF PRELIMINARY RELIEF .......... 16

-l-



A. Plaintiffs Prima Facie Case Of 
Classwide Racial Discrimination 
Clearly Demonstrates Their
Liklihood Of Success ...................  16

B. The Racially Discriminatory 
Policies And Practices Of The 
Defendants Pose An Irreparable Harm To
The Members Of The Class ...............  IV

CONCLUSION .........................................   18
Attachment: Memorandum For United States Attorneys

And Agency General Counsels, Re: Title 
VII Litigation .........................

CERTIFICATE OF SERVICE ..............................  19

Page

-xi-



TABLE OF AUTHORITIES

Adams v. Brinegar, 541 F.2d 129 (7th Cir. 1975) .... 9

Albemarle Paper Company v. Moody, 422 U.S. 407, n.8
(1975) ...............................................  4, 13

Baxter v. Savannah Sugar Refining Co., 495 F.2d
437 (5th Cir. 1974)   12

Brown v. G.S.A. 425 U.S. 820 (1976) ................  8, 9

Causey v. Ford Motor Company, 516 F.2d 416,
(5th Cir. 1975)   16

Chandler v. Roudebush, 425 U.S. 840 (1976) ......... 8, 12
Donaldson v. Pillsbury Company, 554 F.2d 825,

(8th Cir. 1977)   13, 14
East Texas Motor Freight v. Rodriguez, 45 U.S.L.W.

4524 (May 31, 1977) ..............................  2, 4, 5, 14

Franks v. Bowman, 424 U.S. 747 (1976) ............ . 5
Fujishima v. Board of Education, 460 F.2d 1355

(7th Cir. 1972) ......................................  4

Gibson v. Local 40, Supercargoes & Checkers, 453
F.2d 1259, n.9 (9th Cir. 1976) ..................  1

Hackett v. McGuire Brothers, Inc., 445 F.2d 442
(3rd Cir. 1971)       15

Hazelwood v. United States, 45 U.S.L.W. 4882
(June 27, 1977) ......................... .....= ... 4, 7, 9, 10

Hillsboro News Company v. City of Tampa, 544 F.2d
861 (5th Cir. 1977)   16

Huff v. N.D. Cass Company, 485 F.2d 710 (5th Cir.
1973) ................................................  12

International Brotherhood of Teamsters v. U.S.
45 U.S.L.W. 4506 (1977) . . . „....... ......... „ . . . 11, 12

Cases: Page

-iii-



Jair.es v. Stockham Valves & Fittings Company
F.2d [no. 75-2176, September 19, 1976] (5th
Cir. 1977) ........................................  1

Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969) ..................................  4, 12

Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) .... 3

Koger v. Ball, 497 F.2d 702 (1974) .................  9

Lamphere v. Brown University, 553 F.2d 714 (1st Cir.
1977) .............................................  2

Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) .......... 12, 13
Moss v. Lane Company, 471 F.2d 853, (4th Cir.

1973) .............................................  5
Oatis v. Crown-Zellerback Corp., 398 F.2d 496

(5th Cir. 1968) ............................ ...... 14

Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975)   17

Place Ve. Weinberger, 426 U.S. 932 (1976) ........... 9
Rowe v. General Motors Corp., 457 F.2d 348,

(5th Cir. 1972) ................................... 11
Satterwhite v. City of Greenville, Texas, 557 F.2d

414 (1977) . .......................................  5
Sen ter v. General Motors Corp., 532 F.2d 511,

(6th Cir. 1976)   12
Sosna v. Iowa, 419 U.S. 393, n.l (White J.,

dissenting) (1975) . 0 . . 0 . . . . . 0 0 . . . . 0 0 . . . . . . . . 0 0 . .  15

Sylvester v. United States Postal Service, 393 F.
Supp. 1334, (S.D. TeXo, 1975) .............. . 4

Trafficante v. Metropolitan Life Ins. Co.,, 409 U.S.
205 (1972) .................................. ..... 15

U.S. v. Hayes-International Corp., 415 F.2d 1038
(5th Cir. 1969) .............................. . 17

Cases (Cont'd) Page

-iv-



Washington v. Davis, 426 U.S. 229 (1976) ........... 1
Williams v. Mumford, 511 F.2d 363 (D.C. Cir. 1975) . 3

Statutes, Rules and Regulations:

42 U.S.C. §2000e-16(a) ................................  8

42 U.S.C. §2000e-16(c)   8

28 U.S.C. §1292 (a) (1)   3

5 U.S.C. §7151 .......................................... 7
Rule 23 (b) (c) , Fed. R. Civ. Pro....................  4

Rule 23, Fed. R. Civ. Pro............................  12, 13
5 C.F.R. Part. 713 .....................................  7

Executive Order 11246 .................................  7

Executive Order 11478 .................................  8
Equal Employment Opportunity Act of 1972:

§717 (a)    8

§717 (c)    8

Legislative History:
Legislative History of the Equal Employment

Opportunity Act of 1972 ............................  8

S. Rep. No. 92-415, 92nd Cong. 1st Sess. (1971) „... 8, 11

Cases: (Cont'd) Page

-v-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 77-1746

HAROLD L. SYLVESTER, et al. ,

Plaintiffs-Appellants,
-v s -

UNITED STATES POSTAL SERVICE, et al., 

Defendants-Appellees.

On Appeal From The United States District Court For The 
Southern District Of Texas, Houston Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS



I.
PRELIMINARY STATEMENT

It is important to note at the outset, the issues 
which remain in contension after submission of the initial 
briefs by the parties. The defendants decline to defend the 

District Court's conclusion that the standard of Washington 

v. Davis, 426 U.S. 229 (1976), should be applied in 

resolving the issue of the disproportionate impact of the 

Initial Level Supervisory Examination. Such a determination 

applying the constitutional standard to this case filed 

pursuant to Title VII has no basis in the case law, and is 
repudiated by the decisions of this circuit and others,

James v. Stockham Valves & Fittings Co., F.2d ,

[No. 75-2176, Sept. 19, 1976], (5th Cir. 1977); Gibson v . 

Local 40, Supercargoes & Checkers, Etc., 543 F.2d 1259,
1265 n. 9 (9th Cir. 1976). Similarly, conceded is the error 

of the District Court's conclusion that racially discrimina­

tory policies and practices involving promotion and salary 
increases are ill-suited for class action treatment.

The contensions the defendants do assert have no 

basis in Title VII law. The defendants suggest that the 

class certification denial was appropriate because: (1) no
class needing representation exists; (2) there was no



Pre-Act or Post-Act discrimination; (3) the plaintiffs' claims
are not typical; and (4) the plaintiffs lack standing to

1/
raise the testing issue. The defendants additionally argue 

that the District Court's denial of the Preliminary Injunction 

was appropriate.
II.

THE COURT HAS JURISDICTION OF THE 
APPEAL UNDER 28 U.S.C. 51292 (a) (1)

The parties have previously briefed the question of
this Court's Jurisdiction to consider this appeal. On August

4, 1977, this Court entered an Order carrying the motion to
dismiss with the appeal. The plaintiffs are, in the main,

prepared to rely on their Memorandum In Opposition To Motion

To Dismiss Appeal, and herein incorporate by reference that

memorandum= The defendants, however, have cited the additional

case of Lamphere v. Brown University, 553 F.2d 714 (1st Cir.
1977). The Lamphere decision is distinguishable on its face

and can have no bearing on the case at bar. The essential

question before the First Circuit in Lamphere was whether the

1/ The defendants have not asserted that common questions are 
lacking, apparently conceding that common questions are 
typically present in litigation of this kind. East Texas 
Motor Freight v. Rodriquez 45 U.S.L.W. 4524 (May 31, 1977).

-2-



defendant would suffer irreparable harm by virtue of the

increased costs of litigation if there were no review of 

the district court's order granting class certification.

In the case at bar, the question involves the denial of 

class certification and the narrowing thereby of the 

scope of possible injunctive relief.

Plaintiffs' submit that this Court's decision 

in Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975), 

rejects the reasoning and conclusion of Williams v .

Mumford. 511 F.2d 363 (D. C. Cir. 1975), and that it 

has previously held that where the denial of class 
certification has the effect of narrowing the scope of 
injunctive relief, appellate jurisdiction is authorized 

under 28 U.S.C. §1292(a) (1).

III.
THE DISTRICT COURT ERRED IN ITS 
REFUSAL TO ALLOW THIS ACTION TO 

PROCEED AS A CLASS ACTION
The district court permised its refusal to certify a

class in this action on its conclusion that the plaintiffs

had "... not demonstrated that their claims ... [were] typical

or involve[d] common questions with the claims of the alleged
2/

class. " (R. 363)„

2/ The District Court's order did not challange the adequacy 
of representation or numerousity.

-3-



The principle assertion of defendants is the lack
3/

of a class needing representation and the supposed failure

of plaintiffs to demonstrate that their claims are typical

of the class. Plaintiffs seek to represent all black

persons who are employed or who in the future will be

employed by the Houston, Texas Post Office. And, as Judge
Carl 0. Bue, Jr., stated in an earlier ruling in this case:

"It is apparent that the Postal Service 
supervisors are chosen, at least in part, 
from those employees who have served in 
a non-supervisory capacity. Thus, all 
black employees can be viewed as 
potential supervisory personnel, even 
though they are not supervisors at the 
present time." (R. 251).

Reported at 393 F. Supp. 1334,1341 (S. D. Tex., 1975).

In support of their narrow view of the typicality 

and adequacy of representation requirements of Rule 23, the 
defendants rely on the Supreme Court's holdings in East 

Texas Motor Freight v. Rodriquez, 45 U.S.L.W. 4524 (May 31, 

1977), and Hazelwood v. United States, 45 U.S.L.W. 4882 

(June 27, 1977).
The Rodriguez opinion plainly does not apply to

3/ Defendants apparently suggest that plaintiffs must further 
demonstrate that a class action is "necessary." The simple 
answer is that Rule 23(b) (2) does not incorporate a
necessity hurdle before certification, Fujishima v. Board of 
Education. 460 F.2d 1355 (7th Cir. 1972); and that the 
Courts and Congress have favored Title VII class actions 
Albemarle Paper Company v. Moody. 422 U.S. 407, 418, n. 8. 
(1975); Johnson v. Georgia Highway Express, InCo, 417 F.2d 
1122 (1969). See also, Plaintiffs Brief pp. 27-35.

-4-



the facts of this case. As this Court authoritatively points

out in Satterwhite v. City of Greenville, Texas, 557 F.2d

414 (1977), the dispositive point in Rodriquez was the fact

that the class determination was made after it was clear
that the plaintiffs were not members of the class. That is,

the issue of certification had been left until after the
4/

trial of the named plaintiffs individual claims.
Moreover, in Rodriquez, the Supreme Court found 

that the plaintiffs had never seriously put the class 

question in issue. No such assertion can be made in the 

case at bar. Here, the plaintiffs - all victims of various 

manifestations of the defendants racial discrimination - 
have consistently presented evidence and testimony 
regarding the classwide effects of the defendants discrimina-

V
tory policies, and have actively pursued those claims, as 
this appeal evidences.

4/ For example, the Court clearly distinguishes the holdings 
in Franks v. Bowman, 424 U.S. 747, 752-757 (1976), and Moss 
v. Lane Co0, 471 F.2d 853, 855-856 (4th Cir. 1973), East 
Texas Motor Freight v. Rodriquez, supra, 45 U.S.L.W. at 4527, 
n . 12.

5/ Defendants' attempt to suggest that the named plaintiffs 
have disclaimed the existence of discrimination is wholly 
unsupported by the record and refuted by even the most cursory 
reading of plaintiffs' depositions. For example, Mr. Sylvester 
clearly expresses his concern about the lack of black super­
visors, Sylvester D., 10; the failure of blacks with scores on 
the examination equal to those of whites to be considered for 
promotion, Sylvester D., 15; the adverse impact and lack of
(CONT'D)

-5-



5/ (CONTINUED)

job relatedness of the examination, Sylvester D. 18; and 
various instances in which Mr. Sylvester either personally 
encountered or witnessed racial discrimination at the 
Houston Post Office, Sylvester, D. 33-36. Similarly,
Miss McGilbert clearly states that she believed her 
failure to be promoted to "204-B" supervisor, after having 
taken the 1973 examination was discriminatory^ McGilbert,
D., 14; that whites with lower examination scores, and 
with poorer employment records (i.e., pending adverse 
action charges) where officially assigned to temporary 
supervisory vacancies while she and other better qualified 
blacks were not, McGilbert, D., 27; she specially names 
the individuals and supervisors she feels were responsible 
for and/or participated in the discrimination against her, 
McGilbert, D., 36-39; she discusses several other positions 
which she felt were discriminatorily denied her,
McGilbert, D., 43; and freely discusses the lack of female 
supervisors, McGilbert, D., 48.

Mr. Herron's deposition likewise contains testimony 
indicating that out of a group of 12 employees assigned to 
90 day probationary periods as supervisors in February of 
1973, only he was denied promotion, Herron D., 44; that 
reprisals were being taken against him because of his 
participation in this suit, Herron, D., 73; and that he was 
constantly subjected to racially discriminatory evaluations 
of his performance, Herron, D., 87.

Finally, Mr. Pryor's deposition clearly indicates 
his concern about the Postal Service's discriminatory 
practices and the many EEOC complaints he filed, both on his 
own behalf, and on behalf of others, Pryor, D., 16-22; the 
reprisals he suffered because of the filing of complaints, 
Pryor, D., 38; the lack of upward mobility for blacks, and 
the discriminatory application of discipline to black 
employees, Pryor, D., 133; and his complete familarity with 
the problems of discrimination in the Houston Post Office and 
his efforts over the years to fight these practices, see 
Pryor deposition generally.

Furthermore, proof of Mr. Sylvester's and 
Mr. Pryor's retaliation claims must of necessity involve 
proof that the employment practices of the defendants' were 
the subject of complaints by them and that such complaints 
were genuine and not the imaginings of disgruntled employees.

-6-



The Supreme Court's decision in Hazelwood v. United
States, supra, similarly fails to provide support for the 
District Court's typicality findings as asserted by the 

defendants. The Court in Hazelwood was concerned about the 

Court of Appeals "total" disregard of the "possibility" that 

the post-Act statistics might have rebutted the plaintiffs 

prima facie case. However, the Court was careful to note the 

following: (1) That public employers, even before the 
extension of Title VII in 1972, were subject to the command 
of the Fourteenth Amendment not to engage in racial 

discrimination? and (2) That where relevant aspects of the 

decision making process had undergone little change, proof of 
pre-Act discrimination was still probative. Hazelwood v .

United States, supra, 45 U.S.L.W. 4885, n. 15.
Prior to the amendment of Title VII by the Equal

Employment Opportunity Act of 1972, racial discrimination by
the federal government was clearly prohibited, not only by

the Fifth Amendment, but also by statute and executive order.

See 5 U.S.C. §7151 and Executive Orders 11246 (1964) and 11478.
The enforcement mechanism was U.S. Civil Service Commission

Regulations, 5 C.F.R. Part 713.
"A principle goal of the amending legislation, 
the Equal Employment Opportunity Act of 1972,
Pub. L. 92-261, 86 Stat. 103, was to eradicate 
"'entrenched discrimination in the Federal 
service,'" by strengthening internal safeguards

-7-



and by according "[a]ggrieved [federal] 
employees or applicants ... the full 
rights available in the courts as are 
granted to individuals in the private 
sector under Title VII." (footnote 
omitted).

Chandler v. Roudebush, 425 U.S. 840, 841 (1976).
The 1972 Act reiterated the prohibition of employ­

ment discrimination, §717 (a), 42 U.S.C. §2000e-16(a), and 
provided the additional civil action remedy for the 

enforcement of Executive Order 11478 and §717 (a), after
L/

the administrative process, §717 (c), 42 U.S.C. §2000e-16(c). 

See Brown v. G.S.A. 425 U.S. 820, 825 (1976); and Legislative 
History of the Equal Employment Opportunity Act of 1972,

[S. Rep. No. 92-415, 92d Cong. 1st Sess. (1971) at p. 12],

410, 421.

6/ "(c) Within thirty days of receipt of notice of final 
action taken by a department, agency, or unit referred 
to in subsection 717(a), or by the Civil Service 
Commission upon an appeal from a decision or order of 
such department, agency, or unit on a complaint of 
discrimination based on race, color, religion, sex or 
national origin, brought pursuant to subsection (a) of 
this section. Executive Order 11478, or any succeeding 
Executive orders, or after one hundred and eighty days 
from the filing of the initial charge with the 
department, agency, or unit or with the Civil Service 
Commission on appeal from a decision or order of such 
department, agency, or unit until such time as final 
action may be taken by a department, agency, or unit, an 
employee or applicant for employment, if aggrieved by 
the final disposition of his complaint, or by the 
failure to take final action on his complaint, may file 
a civil action as provided in section 706, in which 
civil action the head of the department, agency, or 
unit, as appropriate, shall be the defendant. [emphasis 
added] .

-8-



This policy applies with equal force to discrimination that
occurred either before or after the passage of the Act.

Roger v. Ball, 497 F.2d 702 (1974). The remedial character

of the 1972 Amendments clearly indicates that the Act ought
1/

to be applied retroactively. That is, absent a claim that 

the government has a vested right to discriminate on the 

basis of race, this remedial statute should be allowed 
retoactive application. Roger v. Ball, 497 F.2d 702, 707 

(4th Cir. 1977); Adams v. Brinegar, 541 F.2d 129 (7th Cir. 

1975) .
8/

The statistics previously presented by the parties 

makes plain a consistent pattern of pre-Act and post-Act 

underrepresentation of blacks in the supervisory grades of 
the Houston Post Office. Moreover, the defendants have not 
indicated that the decision-making process which led to 
this racial stratification has been modified or improved in 

any fashion since the passage of the Act. Hazelwood v .

United States, supra, 45 U.S.L.W. 4885. Therefore, Hazelwood

7/ In Brown v. G.S.A., supra, the government acquised in the 
lower Court's finding of retroactivity. See also United States 
Solicitor General's Memorandum to a Petition For Rehearing in 
Place v. Weinberger, United States Supreme Court, October Term, 
1974, No. 74-116, cited in Adams v. Brineger, 541 F.2d 129, 131, 
n. 5. (7th Cir. 1975) .

8/ See Plaintiffs Brief, pp. 5-16.

-9-



is clearly inapposite. In no sense can it be stated that the 
1972 Act provided federal employees with a new right which 

was non-existent prior to 1972. Furthermore, unlike the 

situation posited in Hazelwood, the process which led to the 

pre-Act discriminatory conduct has remained unchanged during 

the post-Act period.

A. The Defendants Statistical Showing Fails To Rebut The 
Plaintiffs Prima Facie Case.

The defendants spurious attempt to demonstrate the

lack of pre-Act discrimination by citing the promotion to
Initial Level Supervisor of two blacks, and the fact that three

of the top five rated people on the 1968 Supervisory Promotion
9/Register were black, is indicative of the defendants statistical 

presentation.
• —  The statistical data provided by the parties below

and summarized in Plaintiffs' Brief, [pp. 5-16], makes plain

the concentration of black employees in the lower job grade

levels, and their virtual exclusion from upper level super-
10/

visory positions. In this respect the following comment from 
the Senate Report on the Equal Employment Opportunity Act of

9/ Defendants do not tell us whether any of these three top 
rated blacks were ever promoted.
10/ See especially Plaintiffs' Brief p. 9 "Breakdown By Race 
Of Organizational Structure" and p. 10., year by year break­
down of promotion decisions, 1967-1973.

-10-



1972, on minority group employment in the federal government

is particularly appropriate:

"Their [minority group] concentration in 
the lower grade levels indicates that 
their ability to advance to higher 
levels has been restricted."

S. Rep. No. 92-415, 92d Cong. 1st Sess. (1971), p. 13.

The defendants assertion that there has been no

post-Act discrimination is equally absured. For example, the
defendants representations regarding promotions [Defendants'
Brief, p. 12] fail to make plain either the grade level to

which these persons were promoted or the years during which
11/

these figures were compiled. Such an ambiguous assertion is

meaningless in the face of the widespread racial stratification
12/

clearly established by plaintiffs statistical evidence.
B. The Defendants' Reliance Upon An Overly Restrictive 

Interpretation Of The Typicality Requirement Of Rule 23 Is Not 
Supported By Title VII Law.

Notwithstanding the clear pattern and practice elements

11/ Even if it could be shown that the defendants in the face of 
this lawsuit had made some belated efforts to improve the 
employment situation of blacks, this actively could not insulate 
defendants from liability, nor would it eliminate the need for 
judicial relief. International Brotherhood of Teamsters v. U.S. 
45 U.S.L.W. 4506, 4510 (1977); Rowe v. General Motors Corp.,
457 F.2d 348, 359 (5th Cir. 1972).
12/ For example, between May, 1974 and May, 1975, while there 
was a net increase of 36 occupied positions at and above the 
Level 15 grade level, only 19.4% of these supervisory positions 
went to black employees. See also, Plaintiffs Statistics 
regarding Black participation in Post Office Training Courses, 
Plaintiffs Brief, p. 15; Distribution of Achievement Awards 
pp. 15-16; and year by year breakdown of Employment Decisions, 
1967-1973, p. 10.

-11-



of this case, International Brotherhood of Teamsters v. United

States, supra, 45 U.S.L.W. at 4515 n. 45 (1977); Baxter v .
Savannah Sugar Refining Co., 495 F.2d 437 (5th Cir. 1974);

Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir.

1976); the defendants have persisted in refuting the class 

elements of the lawsuit by an unrealistically narrow 

interpretation of the typicality requirement of Fed. Rule Civ.

Pro. 23. Such a position is not only contrary to the law in 
this Circuit, Long v. Sapp., 502 F.2d 34 (5th Cir. 1974); Huff 

v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973); Johnson v .

Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969), but if 

accepted would mean that virtually no cases alleging racial 
discrimination could be maintained as class actions. Senter 

v. General Motors Corp., supra. 532 F.2d at 524.
The position taken by the United States Attorney in this 

action is contrary to the Supreme Court's holding in Chandler v . 

Roudebush, 425 U.S. 840 (1976), which indicates that the 

substantive and procedural rights of federal employees under 
Title VII are the same as those available to private employees. 
Furthermore, as United States Attorney General, Griffin B. Bell, 

recently directed in a policy memorandum designed to adopt as 

Justice Department policy the full spirit of Chandler v. Roudebush. 
supra, and establish a consistent litigating posture for the 

Civil and Civil Rights Divisions of the Justice Department:

-12-



"...[w]here Federal employees and applicants 
meet the criteria of Rule 23 of the 
Federal Rules of Civil Procedure, they are 
also entitled to the same class rights as 
are private sector employees. Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 414 
(1975) . "

See attached, Memorandum For United States Attorneys And 

Agency General Counsels, Re: Title VII Litigation.
The Eight Circuit, in a thorough opinion which relied 

heavily on the holding of this Court in Long v. Sapp., supra, 
recently overruled a lower court's denial of a class 

certification in a Title VII action, which was based on the 

asserted uniqueness of the named plaintiff's employment 
situation. Noting that the plaintiff had charged discrimina­

tion based on the patterns and practices of the defendants and 
that she had made a showing that a significant number of class 

members had been victimized by the same patterns and practices, 
the Court held that the plaintiff's claims were in fact typical 

and found:

"When a claim arises out of the same legal 
or remedial theory, the presence of 
factual variations is normally not 
sufficient to preclude class action treat­
ment. (citations omitted).

Donaldson v. Pillsbury Co., 554 F.2d 825, 831 (8th Cir. 1977).

C . Neither The Facts Of This Case Nor The Holdings Of This 
Circuit Support The Defendants' Assertions With Respect To 
Standing, The Representative Character Of Plaintiffs, Or A 
Conflict Of Interest.

Notwithstanding the lack of support for their argument,

-13-



the defendants persist in their narrow view of typicality,

grafting onto it questions concerning the plaintiffs standing
13/

to raise the testing issue, and adequacy of representation
14/

vis a vis a perceived conflict of interest.

The defendants citation to Oatis v. Crown Zellerback 
Corp., 398 F.2d 496 (5th Cir. 1968), is not supportive of a 

denial of "standing" in the case at bar. In order to apply 
Oatis in such a fashion to this case, the Court would have to 

hold that plaintiffs were not representative of a class of 

black employees who had been aggrieved by defendants policies 

and practices of racial discrimination. No reading of Oatis 
or the several class action cases decided by this Circuit 
since that case was decided is supportive of such a view.

Similarly, as noted, supra, Rodriquez is not 

applicable to the case at bar because of the peculiar facts 
presented therein which were dispositive of the issues presented. 
Furthermore, at this stage of the proceedings it cannot be said 

that plaintiffs are not members of the class they seek to 

represent, nor can it be asserted that they have failed to 
put forward the claims of the class.

13/ Neither standing to raise the testing issue nor adequacy 
of representation was indicated as a basis for the district 
court's denial of the class action.

14/ cf. Donaldson v. Pillsbury, supra, 554 F.2d at 829.

-14-



The rank absurdity of defendants' position is
particularly manifest in their assertion of a conflict of

interest between the plaintiffs and class members, and their
additional assertion that plaintiffs have an interest in

15/
"defending" the discriminatory examination from attack. The 

fact that the named plaintiffs may have passed the examination 
is clearly not dispositive of their ability to attack it as one 

of several manifestations of defendants discriminatory employ­

ment practices. Furthermore, as several plaintiffs are 
incumbent employees they clearly have standing to challange 

the complete range of the Postal Service's employment practices 
as they relate to blacks. Particularly, insofar as the severe 

underrepresentation of blacks on the supervisory staff affects 

"the very quality of their daily lives". Trafficante v . 
Metropolitan Life Ins. Co,, 409 U.S. 205, 211 (1972); Sosna v . 
Iowa. 419 U.S. 393, 413 n„ 1 (White, J., dissenting) (1975); 

see also Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3rd 

Cir. 1971).

15/ The job relatedness of defendants' examination is not an 
issue which can be determined by the lay opinion of the 
individual plaintiffs; particularly, where, as here, the dis­
proportionate racial impact is clear and undeniable. However, 
notwithstanding, defendants' assertions, the plaintiffs 
clearly expressed their opinion that the examination was not 
job related. Sylvester, D. 8.

-15



IV.

THE DISTRICT COURT ERRED IN ITS 
DENIAL OF PRELIMINARY RELIEF
The district court premised its refusal to grant the

Preliminary Injunction solely on its statistical analysis with

respect to racial discrimination, and the plaintiffs asserted
16/

failure to show a likelihood of success.

A. Plaintiffs Prima Facie Case Of Classwide Racial 
Discrimination Clearly Demonstrates Their Liklihood Of Success.

The statistical showing made by plaintiffs, and
17/

corroborated by their depositions, clearly establishes both the 

class wide aspects of plaintiffs' claim, as well as a prima 
facie case of employment discrimination. The district court's 

conclusion that plaintiffs failed to establish a prima facie 
case and thereby show a likelihood of success, clearly mis­

applies the legal standards applicable to the facts of this 
case, Causey v. Ford Motor Co,, 516 F.2d 416, 420 (5th Cir. 

1975) and should be considered an abuse of its discretion. 
Hillsboro News Company v. City of Tampa, 544 F.2d 861 (5th 
Cir. 1977). Furthermore, the district court's denial risks the

16/ Defendants evidently concede that the district court linked 
these two issues, as evidenced by their assertion that 
plaintiffs' failure to establish a prima facie case indicated a 
failure to establish a likelihood of success. See Defendants' 
Brief., p. 19.

17/ See supra, n. 5.

-16-



perpetuation of racial discrimination by denying to plaintiffs 

and their class equitable opportunities for promotion through­

out the period until this case is resolved on the merits; as 

opportunities for appointment will then be limited since 

positions will have been filled.
B. The Racially Discriminatory Policies And Practices Of 

The Defendants Pose An Irreparable Harm To The Members Of 
The Class.

The case at bar is not analogous to Parks v. Dunlop, 

517 F.2d 785 (5th Cir. 1975) in which a white employee sued 

the Secretary of Labor alleging reverse discrimination. Here, 

more is involved than the promotion of a single individual. 

Should plaintiffs prevail on the merits, the relief required 

will affect all black employees seeking promotion in the 

Houston Post Office. Thus, every promotion would be under 

scrutiny. Using the years 1967 through 1973 as a benchmark, 
this would mean an average of 57 promotions per year. Therefore, 

in order to provide the same type of relief as would have been 
available in Parks v. Dunlop, supra, the Court would have to 

order the immediate promotion and/or displacement of as many 

as 57 workers. To do otherwise would unfairly perpetuate the 
discrimination suffered by black employees.

Moreover, as this Court noted in United States v. 

Hayes International Corp., 415 F.2d 1038, 1045 (5th Cir. 1969)

-17-



"Whenever a qualified Negro employee is 
discriminatorily denied a chance to 
fill a position for which he is qualified 
. . . he suffers irreparable injury and 
so does the labor force of the country as 
a whole."

CONCLUSION

For the foregoing reasons, the decision of the Court 
below denying plaintiffs Motion For A Preliminary Injunction 

and further denying plaintiffs Motion For Class Certification 

should be reversed.
Respectfully submitted.

MARK T. MCDONALD
PAUL ZAREFSKY /

McDonald & McDonald 
1834 Southmore Boulevard 
Houston, Texas 77004

JACK GREENBERG 
BILL LANN LEE 
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
New York, New York 10019

-18-



Attachment:

MEMORANDUM FOR UNITED STATES ATTORNEYS 
AND AGENCY GENERAL COUNSELS

RE: Title VII Litigation



MEMORANDUM FOR UNITED STATES ATTORNEYS 
______AND AGENCY GENERAL COUNSELS

Re: Title VII Litigation

In 1972, as additional evidence of our Nation's deter­mination to guarantee equal rights to all citizens, Congress 
amended Title VII of the Civil Rights Act of 1964 to provide 
Federal employees and applicants for Federal employment with 
judicially enforceable equal employment rights. The Department 
of Justice, of course, has an important role in the affirmative 
enforcement of rights under the Act, in both the private and 
public sectors. To effectively discharge those responsibilities, 
we must ensure that the Department of Justice conducts its 
representational functions as defense attorneys for agencies 
in suits under the Act in a way that will be supportive of and 
consistent with the Department's broader obligations to 
enforce equal opportunity laws. This memorandum is issued 
as part of what will be a continuing effort by the Department to this end.

Congress, in amending Title VII, has conferred upon Federal 
employees and applicants the same substantive right to be free 
from discrimination on the basis of race, color, sex, religion, 
and national origin, and the same procedural rights to judicial 
enforcement as it has conferred upon employees and applicants 
in private industry and in state and local governments.
Morton v. Mancari, 417 U.S. 535 (1974); Chandler v. Roudebush,425 U.S. 84f) (1976) . And, as a matter of policy, the Federal 
Government should be willing to assume for its own agencies no 
lesser obligations with respect to equal employment opportunities 
than those it seeks to impose upon private and state and local government employers.

In furtherance of this policy, the Department, whenever 
possible, will take the same position in interpreting Title VII 
in defense of Federal employee cases as it has taken and will 
take in private or state and local government employee cases.
For example, where Federal employees and applicants meet the



2

criteria of Rule 23 of the Federal Rules of Civil 
they are also entitled to the same c?asS rights Is'Ire
422V“ i . S:0C5°r4ie4Pn  ??;? • ^ e?arle §o v m" 5 v ,in a_ • i 1 . (1975). Further, the Departmen t~o fhas acquiesced in the recent rulings of the lfth and Sixth Circuit Courts of Appeals that it"is 
necessary f°r unnamed class members to exhaust their 

administrative remedies as a prerequisite to class 
membership. Eastland v. TVA, 553 F.2d 364 (5th Cir 1977  ̂Williams v. TVA, F.2d T6 rh rir- iQ7n  1977):

eaS'clLs’J  I S ? ' 1"'
Remedy ^  haVe exhausced his or her admitstrative

In a similar vein, the Department will not urge 
arguments that rely upon the unique role of the Federal 
Government. For example, the Department recognized that 
the same kinds of relief should be available f"ainst the 
Federa! Government as courts have found appropriate in
action plans bark63’ including imposition of‘affirmative action plans, back pay and attorney's fees See fnnpldnH
r a r p r z i ' i o ^ S  ? u r 4t 4 1( ? ; ? < c -c 1 ? 7 « =  ^  x T M i i ^c i c -p oi , r r- dlx • P97^)’ Sperling v. United States465 (3d Cir. 1975). ThST," »hiie~th— Department might oppose particular remedies in a given case it will

v T  different standards be afplrid (t easesMinst the Federal Government than are applied in other tills S
The Department, in other respects, will also atternr

thePy97?te Che underlyin§ Purpose of Title VII. For example
a ? i « h t  t o m r f ^ i t 0i T i t l e  VI1 d°  n ° C g i v e  the  Government ' 
c . x^a a civil action challenging an agenev finding

thpdC n S F mina^ ° n ' Accordingiy. to avoid any appearance on§
suits thSmrnt S Part Ynfairly hindering Title VII law suits, the Government will not attempt to contest a final
bpeI«kiL'^VriirirdiCe CoIr‘n,lssion finding of discrimination 7 seeding a trial de novo m  those cases where an enrolovpp
Iithe?Sthe6a SUCCessful in Proving his or her claim before either the agency or the Commission files a civil action
f i n a i nd e c ? s i o n °  UP° n the  remGdy Pr o Po se d  such



3

The policy set forth above does not reflect, and should 
not be interpreted as reflecting, any unwillingness on the psi’C of the Department to vigorously defend, on the merits 
claims of discrimination against Federal agencies where 
appropriate. It reflects only a concern that enforcement of 
the equal opportunity laws as to all employees be uniform and consistent.

Iti addition to the areas discussed above, the Department 
Justice is now undertaking a review of the consistency of 

ls§3.1 positions advanced by the Civil Division in 
defending Title VII cases with those advocated by the Civil 
Rights Division in prosecuting Title VII cases. The objective of 
this review is to ensure that, insofar as possible, they will 
be consistent, irrespective of the Department's role as either plaintiff or defendant under Title VII. As a part of this 
review, "the Equal Employment Opportunity Cases" section of 
the Civil Division Practice Manual (§3-37), which contains 
the Department's position on the defense of Title VII actions 
brought against the Federal Government, is being revised.
When this revision is completed, the new section of the Civil Division Practice Manual will be distributed to all 
United States Attorneys' Offices and.will replace the present 
section. Each office should rely on the revised section of 
the Manual for guidance on legal arguments to be made in Title VII 
actions. In order to ensure consistency, any legal arguments 
which are not treated in the Manual should be referred to the 
Civil Division for review prior to their being advocated to the court.

This policy statement has been achieved through the 
cooperation of Assistant Attorney General Barbara Babcock 
of the Civil Division who is responsible for the defense of 
these Federal employee cases, and Assistant Attorney General Drew Days of the Civil Rights Division who is my principal 
adviser on civil rights matters. They and their Divisions 
will continue to work closely together to assure that this policy is effectively implemented.

GRIFFIN B . BELL

August 31, 1977

DOJ-1977-09



CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has served 

two copies of the foregoing REPLY BRIEF FOR PLAINTIFFS- 

APPELLANTS upon counsel for Defendants-Appellees by deposit­

ing copies thereof in an envelope in the United States mail, 

postage prepaid, this 12th day of October, 1977, addressed to

WILLIAM L. BOWERS, JR.,
Assistant United States Attorney 
P. 0. Box 61129 
Houston, Texas 77061

ATTORNEY FOR PLAINTIFFS-APPELLANTS

%■