Cuthbertson v. Biggers Brothers, Inc. Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    No.

In the

(tort nf ti|F United States
October Term, 1983

Carl Cuthbertson, et. al.,

v.
B iggbes Brothers, I nc.

Petitioners,

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

J. Levonne Chambers 
John Nockleby

Chambers, Ferguson, Watt, 
Wallas, Adkins & Fuller, P.A. 
Suite 730
East S. Independence Boulevard 
Charlotte, North Carolina 28202

L in wood 0 . F oust 
Suite 102
Civil Plaza Building 
801 East Trade Street 
Charlotte, North Carolina 28202

Jack Greenberg 
O. Peter Sherwood 
Charles Stephen. Ralston 
Eric Schnapper*

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Counsel for Petitioners
^Counsel of Record

\



QUESTIONS PRESENTED

1. Does Rule 52, F.R.C.P., authorize 
the appellate courts to reconsider de novo 
or give little weight to the decision of a 
district court merely because the lower 
court based its findings of fact on pro­
posed findings submitted by counsel at the 
direction of the court?

2. Did the court of appeals err in 
concluding there was no substantial 
evidence to support a finding of racial 
discrimination where the record showed:

(i) that the defendant company had 
never hired a black salesman 
prior to 1976;

(ii) that company officials announced 
in 1968 that "the time was not 
right for blacks to be assigned to sales";

(iii) an owner of the company had 
announced that he "wouldn't have 
a black man sell a dog for him"; and

l



(iv) a company official testified in 
1981 that it would not employ 
black salesmen to work in certain 
territories because of customer 
hostility to blacks.

PARTIES
The parties to this proceeding in

this Court are Carl L. Cuthbertson, Brown
T. Worthy, Fred Johnson, Jr., Calvin
Gregory and Biggers Brothers, Inc. Eleven

* /other individuals” were named as plain­
tiffs in this action, but they were denied 
relief by the district court and did not 
appeal from that decision.

V  James H. Little, John Clay, James W. 
Baldwin, Bobby Campbell, Jimmie Anderson, 
Eddie Hicks, James Gill, Truemain Mainor, 
Charles Neal, Hendrick Robinson, and 
Willie Frazier, Jr.

11 -



TABLE OF CONTENTS

Questions Presented .....................  i
Parties .................................  ii
Table of Authorities ....................  v
Opinions Below ...................   2
Jurisdiction ............................  2
Rule Involved ...........................  3

Statement of the Case ..........   4
Reason for Granting the Writ ............  7

Certiorari Should Be Granted To 
Resolve A Conflict Among the Courts 
of Appeals Regarding the Use of 
Proposed Findings Prepared by 
Counsel for a Party ................  7

Conclusion ...............  24

- iii -



Page

APPENDIX
District Court Memorandum of Decision,January 30, 1981 . . . ............ ia
District Court Findings of Fact and 

Conclusions of Law, September 16, 1981 ..............    6a
District Court Judgment, September16, 1981 .....................   60a
Opinion of the Court of Appeals,

March 9, 1983 .....    67a
Order of the Court of Appeals 
Denying Rehearing and Rehearing 
En Banc, June 13, 1983 ......... 1 1 7a

xv



TABLE OF AUTHORITIES
Cases: Page
Arastar Corporation v. Domino's Pizza, Inc.,

615 F. 2d J.52 (5th Cir. 1980) ......  15,21
Askew v. United States, 680 F.2d 1206(8th Cir. 1982) ...................  15,20
Bradley v. Maryland Casualty Co.,

382 F. 2d 415 (8th Cir. 1967) ......  15
Chicopee Manufacturing Corp. v. Kendall

Co., 288 F.2d 719 (4th Cir. 1961) ....  18
Continuous Curve Contact Lenses v. Rynco 

Scientific Corp., 680 F.2d 605 (9th 
Cir. 1982) .......................  17,21

EEOC v. Federal Reserve Bank of Richmond,
698 F.2d 633 (4th Cir. 1983) .... 19

Halkin v. Helms, 598 F.2d 1
(D.C. Cir. 1978) .....................  12

Hill & Range Songs, Inc. v. Fred Rose 
Music, Inc., 570 F.2d 554
(6th Cir. 1978) ......................  13

Holsey v. Armour, 683 F.2d 864
(4th Cir. 1982) ...................  19

In Re Las Colinas, Inc.,
426 F.2d 1005 (1st Cir. 1970) ... 17,20,21

International Controls Corp. v. Vesco,
490 F. 2d 1334 (2d Cir. 1974) .........  16

Kelson v. United States, 503 F.2d 1291
(10th Cir. 1974) .....................  15

v



Pa^e

Mississippi Valley Barge Line Co. v.
Cooper Terminals, 217 P.2d 321(7th Cir. 1954) ....................... 14

O'Leary v. Liggett Drug Co.,
150 F.2d 656 (6th Cir. 1946)...... . 13

Ramey Construction Co. v. Apache Tribe,
616 F.2d 464 (10th Cir. 1980) .....  17,20

Roberts v. Ross, 344 F.2d 747
(3d Cir. 1965) ........ ......... 15,16,21

Saco-Lowell Shops v. Reynolds,
141 F.2d 587 (4th Cir. 1944) .......... 17

Schilling v. Schwitzer-Cummins Co.,
142 F. 2d 82 (D.C.Cir. 1944) ....... . 12

ScheHer-Globe Corp. v. Milsco Mfg. Co.,
636 F.2d 177 (7th Cir. 1980) ___...... 14

Schlensky v. Dorsey, 574 F.2d 131
(3d Cir. 1978) ...................... 15

Schwerman Trucking Co. v. Gartland 
Steamship Co., 496 F.2d 466 (8th Cir. 1974) ........... ........... 13

The Severance, 152 F.2d 916
(4th Cir. 1945) ........ ............ 18,19

United States v. Crescent Amusement Co.,
323 U.S. 173 (1945) ....... ......... 22,23

United States v. El Paso Natural Gas
Co., 376 U.S. 651 (1964) ......... . 23

vi



Page

White v. Carolina Paperboard Corp.,
564 F. 2d 1073 (4th Cir. 1977) ........  18

Statutes:
28 U.S.C. § 1254(1) ...................... 2
42 U.S.C. § 1981 ......................... 4
42 U.S.C. § 2000e ........................ 4
Rules:
Rule 52(a), Federal Rules of Civil

Procedure .........................  3,9,11

Vll



UNITED STATES SUPREME COURT

October Termf 1983
No.

CARL CUTHBERTSON, et. al. ,
Petitioners, 

v.
BIGGERS BROTHERS, INC.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners Carl Cuthbertson, et al., 
respectfully pray that a Writ of Certiorari 
issue to review the judgment and opinion of 
the United States Court of Appeals for the 
Fourth Circuit entered in this proceeding 
on March 9, 1983, petition for rehearing 
denied June 13, 1983.



2

OPINIONS BELOW
The decision of the court of appeals 

is reported at 702 F.2d 454, and is set 
out at pp. 67a-116a of the Appendix. 
The order denying rehearing, which is not 
yet reported, is set out at p. 117a. The 
district court's Memorandum Decision of 
January 30, 1981, is not reported, and
is set out at pp. 1a-5a. The district 
court's Findings of Fact and Conclu­
sions of Law, which is not officially 
reported, is set out at pp. 6 a-5 9 a .

JURISDICTION
The judgment of the Court of Appeals 

was entered on March 9, 1983. A timely
Petition for Rehearing was filed, which 
was denied on June 13, 1983. Jurisdiction 
of this Court is invoked under 28 U.S.C.
§ 1254(1).



3

RULE INVOLVED
Rule 52(a), Federal Rules of Civil

Procedure, provides:
In all actions tried upon the facts 
without a jury or with an advisory 
jury, the court shall find the 
facts specially and state separately 
its conclusions of law thereon, and 
judgment shall be entered pursuant 
to Rule 58; and in granting or 
refusing interlocutory injunctions the 
court shall similarly set forth the findings of fact and conclusions of 
law which constitute the grounds of 
its action. Requests for findings are 
not necessary for purposes of review. 
Findings of fact shall not be set 
aside unless clearly erroneous, and 
due regard shall be given to the 
opportunity of the trial court to 
judge of the credibility of the 
witnesses. The findings of a master, 
to the extent that the court adopts 
them, shall be considered as the 
findings of the court. If an opinion 
or memorandum of decision is filed, it 
will be sufficient if the findings of 
fact and conclusions of law appear 
therein. Findings of fact and conclu­
sions of law are unnecessary on decisions of motions under Rules 12 or 
56 or any other motion except as 
provided in Rule 41(b).



4

STATEMENT OF THE CASE
On July 21, 1977, petitioners com­

menced this action in the United States 
District Court for the Western District of 
North Carolina. Their complaint alleged 
that the defendant employer had engaged in 
a pattern and practice of discrimination in 
refusing to promote black employees to 
sales positions, in violation of Title VII 
of the 1964 Civil Rights Act, 42 U.S.C. §§ 
2 0 0 0 e et se^., and 42 U.S.C. § 1981.

The district court conditionally 
certified a class of all present and former 
black employees. Following a non-jury 
trial in January, 1981, the district court 
issued on January 30, 1981, a Memorandum of 
Decision. It held that the defendant had 
engaged in a pattern and practice of 
discrimination, and that it had for racial 
reasons denied promotion to sales jobs to



5

petitioner Cuthbertson and three other 
individuals. The trial judge rejected as 
pretextual the standards allegedly used by 
the company to deny promotions to peti­
tioners, holding that the standards 
were not reasonably related to the sales 
jobs and that most white workers did not 
themselves meet the purported requirements. 
(1a-4a) The district judge directed coun­
sel for plaintiffs to prepare a proposed 
judgment, together with proposed findings 
of fact and conclusions of law, and invited 
the defendant to comment on those proposals 
or offer proposals of its own (4a). 
Following submission of these materials the 
trial judge entered Findings of Fact and 
Conclusions of Law in substantially the 
form urged by plaintiff (6a-59a). The 
district court decertified the class on the 
ground that all of the identifiable victims



6

of discrimination were already named 
parties to the litigation (42a-43a, 61a).

On March 9, 1983 the Fourth Circuit
reversed. It found there was no pattern or 
practice of discrimination, and that 
neither petitioner Cuthbertson nor two of 
the other plaintiffs who had prevailed at 
trial had been denied promotions on the 
basis of race (67a-105a). The court of 
appeals remanded the claims of petitioner 
Worthy for a further hearing and for 
additional factfinding ( 1 05a-114a ) . A 
timely petition for rehearing and sugges­
tion for rehearing £n banc was denied on 
June 1 3, 1983, by a vote of 5-4. Judges
Winter, Phillips, Murnagham and Ervin voted 
to rehear the case en banc (117a—118a).



7

REASONS FOR GRANTING THE WRIT
Certiorari Should be Granted to 
Resolve A Conflict Among the Courts of 
Appeals Regarding the Dse of Proposed 
Findings Prepared By Counsel for a Party
This petition presents one of the 

extreme cases in which there is substantial 
direct evidence of intentional discrimina­
tion. The trial court found that in 1968 
Black employees who sought promotion to 
sales jobs were advised by the plant 
manager that "the time was not right for 
blacks to be assigned to sales" (2 0 a). 
At trial in 1981 a Vice President of the 
employer testified that it was still the 
policy of the company not to place blacks 
in sales jobs in certain parts of its
territory because it presumed its customers1/were too bigoted to deal with a black.

1/ Court of Appeals Appendix, pp. 281-83 
(hereinafter "CA App.").



8

One witness testified that in 1971 Mr.
Biggers, one of the owners of the firm,
stated that he "wouldn't have a black

2/
man sell a dog for him". True to Biggers'
word, the company did not hire or promote a
black into sales until 1976, although the
total sales force was close to 100 and at
least 58 whites were hired or promoted into

3/such jobs between 1965 and 1976.
In view of this record, it is hardly 

surprising that the district court found 
that the company had engaged in a pattern 
and practice of intentional racial dis­
crimination in selecting sales employees. 
What is extraordinary is that on appeal the 
Fourth Circuit reversed that finding and

2/ CA App. 682.
2 / CA App. 371-73, 744-45



9

held that, with one possible exception, the 
employer had never engaged in any such 
discrimination. Four members of the court 
of appeals voted for a rehearing en banc, 
apparently recognizing that the panel 
decision unjustifiably ignored the de­
ference to the district court's decision 
required by Rule 52, Federal Rules of 
Civil Procedure.

The court of appeals panel felt free 
to overturn the trial court's decision on 
the merits, and to make light of the trial 
judge's opinion, because the lower court 
had asked counsel for plaintiff to prepare 
proposed findings and, after considering 
the comments of the defendant, had chosen 
to adopt most of them. Many of the trial 
judge's holdings resolved conflicts in the 
evidence at trial; on appeal the Fourth 
Circuit felt entirely free to reconsider de



10

novo the same conflicting evidence. For 
example, a senior company official, under 
examination by counsel for plaintiffs, 
acknowledged that black delivery truck 
drivers were qualified to work as salesmen, 
but on cross examination by the company 
retracted that admission. The trial judge 
chose to believe the admission (8a-19a), 
while the appellate judges, none of whom 
had been present at the hearing or had 
had occasion to observe the witnesses' 
demeanor, chose to credit the retraction 
(81a-83a). Plaintiffs and defendant 
offered tables containing differing ac­
counts of the qualifications of the whites 
hired into sales. The trial judge accepted 
plaintiffs' analysis, and thus concluded 
that many whites never met the standards 
which were used to reject Blacks (15a-19a); 
the appellate judges, relying instead on 
the defendant's evidence, reached the



opposite conclusion. (85a-92a) The trial 
judge concluded that petitioners Cuthbert- 
son, Gregory and Johnson were qualified to 
work in sales (32a, 38a, 40a, 45a, 47a, 
58a) the appellate judges held that they 
were not (97, 101a, 103a, 105a, 108a). The 
trial judge concluded that petitioner 
Worthy had been the victim of discrimina­
tion (34a, 46a, 51a); the courts of appeals 
vacated and remanded that finding because 
it felt "the record is incomplete for us to 
make ... findings with respect to discrimi­
nation...." (1 1 1 a) (emphasis added).

Although aware of the "clearly erro­
neous" standard of Rule 52, Federal Rules 
of Civil Procedure, the court of appeals 
believed that it should accord the trial 
court's findings "less weight and dignity" 
(81a) —  indeed, that it should virtually
decide the case de novo —  solely because
the district court had adopted proposed



12

findings in essentially the form proposed 
by counsel for plaintiffs. But the proce­
dure utilized by the trial judge in this 
case, and disapproved by the Fourth Cir­
cuit, is expressly sanctioned in the 
Sixth, Seventh and District of Columbia 
Circuits. The court of appeals for 
the District of Columbia most recently 
rejected an attack on this practice in 
Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir.
1978). That circuit court defended the 
practice at length in Schilling v. Schwitz- 
er-Cummins Co. , 142 F.2d 82 (D.C. Cir.
1944) :

Whatever may be the most commendable 
method of preparing findings 
whether by a judge alone, or with 
the assistance of his ... law clerk 
... or from a draft submitted by 
counsel -- may well depend upon 
the case, the judge, and facilities 
available to him. If inadequate 
findings result from improper reliance 
upon drafts prepared by counsel —  or 
from any other case -- it is the



13

result and not the source that is 
objectionable. 142 F.2d at 83 (foot­
notes omitted)

In Hill & Range Songs, Inc, v. Fred Rose 
Music, Inc. , 570 F.2d 554 (6th Cir. 1978), 
the Sixth Circuit noted that it was "not 
unusual" for a court "to adopt verbatim" 
proposed findings of fact and conclusions 
of law, and held that so long as those 
findings and conclusions are supported 
by the record "it makes no real difference 
which counsel submitted them.” 580 F.2d 
at 558. See also O'Leary v. Liggett Drug 
Co. , 150 F. 2d 656, 667 ( 6th Cir. 1946 )
("findings of fact, prepared and submitted 
by the successful attorneys, [which] 
have been adopted by the trial court 
... are entitled to the same respect as if 
the judge, himself, had drafted them"). 
The Seventh Circuit upheld the practice in 
Schwerman Trucking Co. v. Gartland Steam-



14

ship Co., 496 F . 2 d 466, 475 (8 th Cir.
1974), explaining:

By having the prevailing party submit 
proposed findings of fact and conclu­
sions of law, the judge followed 
a practical and wise custom in which 
the prevailing party has "an obliga­
tion to a busy court to assist it 
in performance of its duty" under 
Rule 52(a).

See also Scheller-Globe Corp. v. Milsco 
Mfg. Co., 636 F.2d 177, 178 (7th Cir. 1980) 
("This circuit ... leaves the matter within 
the trial court's discretion and recognizes 
that the procedure can be of considerable 
assistance to a trial court ...."); Missi­
ssippi Valley Barge Line Co. v. Cooper 
Terminal Co., 217 F.2d 321, 323 (7th Cir.
1954 ) ("It was perfectly proper to ask 
counsel for the successful party to 
perform the task of drafting the findings 

" )•  * •  •  /

But this use of findings prepared by 
the prevailing party, a procedure described



15

by the Seventh Circuit as of "considerable
assistance" to the trial courts, has been
specifically disapproved, although in

4/ 5/varying degrees, by the Third, Fifth,
6/ 7/Eighth, and Tenth circuits. On the other

8/ 9/hand, the Third and Eighth circuits do 
approve the use of findings drafted by 
counsel if the trial court solicits and 
considers such proposed findings from both

4/ Schlensky v. Dorsey, 574 F.2d 131,
148-49 (3d Cir. 1978); Roberts v. Ross, 344 
F.2d 747, 751-53 (3d Cir. 1965).
5/ Amstar Corporation v. Domino's Pizza, 
Inc. , 615 F. 2d J^2, 258 (5th Cir. 1980).
6/ Askew v. United States, 680 F.2d 1206, 
1207-08 (8th Cir. 1982); Bradley v. Mary- 
1 and Casualty Co. , 382 F.2d 415, 422-23
(8th Cir. 1967).
2/ Kelson v. United States, 503 F.2d 1291, 1294 (10th Cir. 1974).
2/ Schlensky v. Dorsey, 574 F.2d at 148- 
49; Roberts v. Ross, 344 F.2d at 752-53.
9/ Bradley v. Maryland Casualty Co.,
F.2d at 423. 382



16

considers such proposed findings from both
sides prior to its decision on the merits.
In Roberts v. Ross, 344 F.2d 747, 752 (3d
Cir. 1965), the Third Circuit noted:

In most cases it will appear that 
many of the findings proposed by one 
or the other of the parties are 
fully supported by the evidence, 
are directed to material matters and 
may be adopted verbatim and it may 
even be that in some cases the find- 
ings and conclusions proposed by a 
party will be so carefully and objec­
tively prepared that they may all 
properly be adopted by the trial judge without change.

But the verbatim adoption of proposed
findings, sanctioned in appropriate cases
by these two circuits, is "roundly con-

1 0/demned" by the Second Circuit and ap­
proved only in "highly technical" cases in

10/ International Controls Corp. v. Vesco, 
490 F.2d 1334, 1341 n. 6 (2d Cir. 1974).



- 17 -

11/ 12/the First and Ninth Circuits. The
most recent Tenth Circuit opinion on this
subject states both that the verbatim
adoption of proposed findings "may be
acceptable under some circumstances" and
that it "is an abandonment of the duty

11/imposed on trial judges by Rule 52."
Consistent with this inter-circuit 

conflict, the Fourth Circuit's position on 
the use of proposed findings has undergone 
a complete reversal in recent years. Saco- 
Lowell Shops v. Reynolds, 141 F.2d 587, 589

11/ In Re Las Colinas, Inc., 426 F.2d 1005, 
1009 (1st Cir. 1970) ("[T]he practice of
adopting proposed findings verbatim 
should be limited to extraordinary cases 
when the subject matter is of a highly 
technical nature requiring expertise 
which the court does not possess.”)
12/ Continuous Curve Contact Lenses v. 
Rynco Scientific Corp. , 680 F.2d 605, 607
(9th Cir. 1982).
11 / __— •__A p a c heTribe, 616 F.2d 464, 466 (10th Cir. 1980).



18

(4th Cir. 1944), held that findings of fact 
"are not weakened or discredited because 
made by the trial judge in the form re­
quested by counsel." In The Severance, 
152 F.2d 916 (4th Cir. 1945), the trial 
judge had requested the prevailing party to 
draft proposed findings of fact and conclu­
sions of law, and had adopted them "practi­
cally in toto"; the court of appeals held 
that ”[t]his practice is not to be con­
demned." 152 F.2d at 918. Chicopee

_Kendall Co . ,
288 F .2d 719, 724-25 (4th Cir. 1961), 
citing decisions in the Sixth and District 
of Columbia circuits, noted there was 
authority for "the adoption of such ... 
proposed findings and conclusions as the 
judge may find to be proper," and condemned 
only the ex parte drafting of an opinion 
by counsel for one of the parties. In 
White v. Carolina Paperboard Corp., 564



19

F .2d 1073 (4th Cir. 1977), the court of 
appeals, although criticizing the content 
of particular findings adopted from the 
proposals of counsel, expressed no per se 
disapproval of the use of such findings, 
and merely concluded that" [o]n remand, we 
suggest the district court prepare its own 
opinion." 564 F.2d at 1082-83. (Emphasis 
added) In July, 1982, the Fourth Circuit 
"cautioned against" the adoption of find­
ings solicited by the trial judge from the 
prevailing party. Holsey v. Armour, 683 
F. 2d 864, 866 (4th Cir. 1982). In EEOC v. 
Federal Reserve Bank of Richmond, 698 F.2d 
633, 640 (4th Cir. 1983) that "caution" 
evolved into "disapproval". In the instant 
case the Fourth Circuit announced that it 
had "previously condemned" this practice, 
inexplicably citing The Severance, which, 
as we noted above, had held precisely 
the opposite. (80a)



20

Those courts of appeals which do 
disapprove the adoption of findings pre­
pared by counsel are themselves in dis­
agreement about how such findings should 
be treated on appeal. No court regards
that practice as reversible error. In

11/at least some circumstances the First and
11/Tenth circuits will remand a case for

additional findings drafted by the trial
court itself. The Eighth circuit applies
the same "not clearly erroneous" rule
regardless whether the findings appealed
from were drafted by counsel or the trial

11/judge. Five circuits apply a special

11/ In re Las Colinas, Inc., 4 2 6 F.2d1005, 1010 (1st Cir. 1970).
1 5/ Ramey Construction Co._v_._Apache
Tribe, 616 F.2d 464, 467-69 (10th Cir.1980) .
16/ Askew v. United States, 680 F.2d 1206, 1208 (8th Cir. 1982).



21

standard of review when considering find­
ings of fact adopted by the trial court 
from proposals submitted by counsel. The
First Circuit conducts a "most searching

11/examination for error" in such cases.
In the Third Circuit findings drafted by
counsel are "looked at ... more narrowly

18/
and given less weight on review." The
Fifth Circuit will "take into account" the

19/origin of such findings, while the
Ninth Circuit subjects them to "special 

20/
scrutiny."

As the very length and detail of 
the Fourth Circuit opinion make clear,

17/ In re Las Colinas, Inc., 426 F.2d 
1005, 1010 (1st Cir. 1970).
18/ Roberts v. Ross, 344 F.2d 747, 752 (3d 
Cir. 1965).
19/ Amstar Corporation v. Domino's Pizza 
Inc. , 615 F. 2d 252, 258 (5th Cir. 1980).
20/ Continuous Curve Contact Lenses, Inc. 
v. Rynco Scientific Corporation, 680 F.2d 
605, 607 (9th Cir. 1982) .



22

the widespread differences regarding 
the use of findings prepared by counsel 
raise equally serious issues regarding the 
roles of the appellate courts. The inde­
pendent factfinding apparent on the face of 
the Fourth Circuit's opinion would not 
have occurred in the three circuits which 
approve use of such findings, or in the 
Eighth Circuit which applies to them 
the usual "not clearly erroneous" rule. 
This division among the lower courts 
stems in part from this Court's past 
ambivalen** attitude towards findings 
prepared by counsel. United States v. 
Crescent Amusement Co., 323 U.S. 173
(1945), denounced the verbatim adoption of 
proposed findings as "leav[ing] much to be 
desired," and yet insisted "they are 
nonetheless the findings of the District
Court." 323 U.S. at 185. United States v.



23

El Paso Natural _Gas_Co_1_, 376 U.S. 651 
(1964) complained that such findings were 
"not the product of the workings of the 
district judge's mind," and nonetheless 
held that they were "formally his" and thus 
"not to be rejected out-of-hand." 376 U.S. 
at 656. The confusion and division among 
and within the courts of appeals cannot be 
eliminated until this Court resolves the 
conflicting implications of Crescent Amuse­
ment and El Paso Natural Gas by determin­
ing when if ever the adoption of findings 
prepared by counsel is impermissible, and 
by specifying what if anything the appel­
late courts are to do when that occurs.

23



24

CONCLUSION

For the above reasons a writ of 
certiorari should issue to review the 
judgment and opinion of the Fourth Circuit. 

Respectfully submitted,

J. LEVONNE CHAMBERS 
JOHN NOCKLEBY

Chambers, Ferguson, Watt, 
Wallas, Adkins & Fuller, P.A. 
Suite 730
East S. Independence 

Boulevard
Charlotte, North Carolina 28202

LINWOOD 0. FOUST 
Suite 102
Civil Plaza Building 
801 East Trade Street 
Charlotte, North Carolina 28202

JACK GREENBERG 
0. PETER SHERWOOD 
CHARLES STEPHENS RALSTON 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Counsel for Petitioners
*Counsel of Record



APPENDIX



IN THE DISTRICT COURT OF THE 
UNITED STATES FOR THE 

WESTERN DISTRICT OF NORTH CAROLINA 
Charlotte Division 

C-C-77-196

JAMES H. LITTLE,* JOHN CLAY; BROWN T. 
WORTHY; JAMES W. BALDWIN; BOBBY 
CAMPBELL; JIMMIE ANDERSON; EDDIE HICKS 
JAMES GILL; CARL L. CUTHBERTSON; 
TRUEMAIN MAINOR; FRED JOHNSON, JR.; 
CHARLES NEAL; HENDRICK ROBINSON; and 
WILLIE FRAZIER, JR.,

Plaintiffs, 
v.

BIGGERS BROTHERS, INC.,
Defendant.

MEMORANDUM OF DECISION

Pursuant to a non-jury trial on 
January 15, 16 and 19, 1981, the court has
reached the following conclusions:

The defendant, through the relevant 
periods, discriminated against black 
employees on account of their race.



2a

Defendant followed a pattern and 
practice of racially discriminatory job 
assignments in respect of the "driver- 
supervisors" who were listed as supervisors 
but were de facto drivers without time to 
perform their allegedly supervisory duties.

On racially discriminatory bases 
defendant denied or delayed the promotion 
of the plaintiffs Cuthbertson, Worthy, 
Johnson and Gregory to sales jobs.

The discharge of the plaintiff Johnson 
was not racially motivated.

The plaintiff Baldwin has not carried 
the burden of proving that his discharge 
was racially discriminatory.

The defendant throughout the periods 
in question had somewhere between ninety 
and a hundred different salesmen, of 
whom most had a high school education or 
less, and only approximately thirty-four 
had any formal education beyond high



3a

school. No legitimate educational qualifi­
cation for the job of salesman has been 
demonstrated. Even the sales manager 
had no formal education beyond high school.

The requirement of "sales experience" 
has not been proved. The most useful sales 
experience from the evidence appears to be 
not actual on-the-road selling, but rather, 
work in the warehouse, work in the order 
department, and work as truck drivers. In 
those three positions employees (a) learn 
the stock, which is the most important area 
of knowledge; (b) learn the customers; and 
(c) learn how to process orders.

Selling for the defendant is not the 
"Cadillac" of the sales world, as claimed, 
but is, instead, a sales job which, 
like all such jobs, requires more on-the- 
job training than previous education or 
applicable experience.



4a

Legitimate business reasons for 
denying sales opportunities to the four 
plaintiffs named were not shown. Racially 
prejudice in their non-selection has been 
shown.

Plaintiffs' counsel are directed to 
prepare appropriate findings of fact, 
conclusions of law and a judgment imple­
menting the above basic decisions.

No class will be certified or con­
tinued as to outside applicants because 
none surfaced during the trial.

I am open to argument on the question 
of decertifying the class as to internal 
applicants for sales jobs. I am inclined 
to de-certify the class. All the employees 
who might file such claims are known, and a 
notice to listed individuals, if there are 
any, who should be notified will be better 
than establishment of a class.



5a

Defendant will have thirty (30) days 
following service of a copy of plaintiffs' 
proposals in which to file exceptions 
or alternative proposals. Such exceptions 
should not take the form of simple indepen­
dent statements of the defendant's posi­
tion, but should be direct responses to 
particular paragraphs and sentences of 
plaintiffs' proposals, complete with the 
text of alternatives, if any, requested by 
defendant.

This 30 day of January, 1981.

James B. McMillan 
United States District Judge



6a

IN THE UNITED STATES DISTRICT COURT 
FOR THE

WESTERN DISTRICT OF NORTH CAROLINA 
Charlotte Division

CIVIL ACTION NO. C-C-66-196

JAMES H. LITTLE, et al. ,
Plaintiffs, v.

BIGGERS BROTHERS, INC.,
Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
This is another employment discrimi­

nation proceeding. Fourteen present and
former black employees alleged that defen-1/dant, Biggers Brothers, Inc., denied

]_/ Defendant has gone through several 
corporate changes or mergers since the 
institution of this proceeding. It began 
as a family owned operation and was pur­
chased by Viands, Inc. It is now a wholly 
owned subsidiary of Viands, Inc. Its 
management, employees and operation,



7a

equal employment opportunities to black 
employees and applicants for employment 
based on race and color. Defendant's 
practices allegedly violated Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. §§ 
2 0 0 0 e et seq. and 42 U.S.C. § 1981. 
Jurisdiction of the Court was invoked 
pursuant to 42 U.S.C. § 2000e-5(f) and 28 
U.S.C. § 1343.

Defendant has consistently denied 
plaintiffs' allegations and contended that 
its employment practices, at least during 
the time relevant to this proceeding, have 
been free of racial discrimination.

]_/ continued
however, have remained basically the same. 
No serious contention has been or could be 
raised that the present employer is not 
responsible for the employment practices of 
defendant as discussed herein whether com­
mitted by the former or present corporate 
entity.



8a

By Order of February 12, 1980, the
Court conditionally certified the proceeding
as a class action, defining the class as

all black present and former employees 
of the defendant Biggers Brothers, 
Inc., and its predecessors, who have 
worked for the company at any time 
since August 6, 1975 (six months prior 
to the charge [of employment discrimi­
nation] filed by plaintiffs Worthy, 
Baldwin, Johnson and Cuthbertson with 
the Equal Employment Opportunity 
Commission) in production and opera­
tion, transportation, warehouse, 
garage and maintenance, sales, super­
visory, professional, technical, 
clerical and other salaried and hourly 
paid job positions, and who have been 
denied equal employment opportunities 
because of their race or color by the 
defendant or its predecessor.

Leave was us "granted the defendant to move
for decertification after the conclusion of
discovery if discovery reveals substantial
grounds for contesting the existence of a
class."

Willie J. Tobias, Sr., a black em­
ployee in warehousing, was allowed to 
intervene on September 4, 1980. Tobias was



9a

within the class but moved to intervene, 
alleging that he had been retaliated 
against, demoted and discharged because of 
his participation in this proceeding. He 
had exhausted the administrative procedure 
under Title VII and moved for a preliminary 
injunction. His motion was deferred 
pending trial on the merits.

The action was tried on January 15, 16 
and 19, 1980. Based on the evidence
produced at trial, the briefs and arguments 
of counsel for the parties, and the entire 
record, the Court makes the following 
findings of fact and conclusions of law.

FINDINGS OF FACT
1. Defendant operates a wholesale 

and institutional food service distribution 
center servicing restaurants, groceries, 
institutions and other food retail estab­
lishment. Its operation is divided into a



10a

general office, including sales, clerical 
and professional job positions, warehouse 
and transportation, garage and maintenance 
and production where food products are 
received, processed and stored for ship­
ment. Superintendents and supervisors 
are assigned to the various divisions.

2. Historically, black employees 
have been assigned to warehousing, trans­
portation and limited areas of production. 
Although initially plaintiffs challenged 
defendant's employment end promotion 
practices in selecting employees for 
clerical and professional positions and 
supervisory positions, at trial plaintiffs 
limited their contentions and proof to 
defendant's practices in selecting employ­
ees in sales and in its treatment of 
Tobias and James Baldwin, a black employee 
who was discharged by defendant because he 
was physically unable to perform his



11a

truck driving duties. Plaintiffs contended 
that he should have been assigned lighter 
duties like white employees who had sus­
tained on-the-job injuries. Additionally, 
plaintiffs contended that the black super­
visors were treated differently and ac­
corded less job status and opportunities 
than white supervisors, solely because 
of race.

3. Plaintiffs' earliest charge of 
discrimination was filed with the Equal 
Employment Opportunity Commission on 
February 6, 1976. The parties have agreed
that the earliest period for which plain­
tiffs may seek relief under Title VI is 180
days prior to the charge or August 10,

2/1 975. Between that date and the date

2/ Although the defendant did not chal­
lenge the beginning date of liability under 
Title VII as set forth in the class defini­
tion, the correct date is August 10, 1975. 
Liability under Title VII is, therefore,



12a

of trial, defendant employed between 376 
and 532 employees, 30 to 40 percent of 
whom were black. Black employees, however, 
were principally assigned to operative and 
semi-skilled job positions. Defendant's 
EEO-1 reports for 1975-1977 show the 
following job family distribution by 
race:

Total
 ̂975 Employees Black

1/49 9
Official and Managers 3 0Professional 15 1Technicians 62 0Sales workers 46 8Office and clerical 16 2Craftsmen (skilled) 167 124Operatives 23 20Laborers 3 1Service workers

2/ continued
limited to this date. See Note 24 infra as 
to the statutory period of liability under 42 U.S.C. § 1981.
3/ Black employees listed as official and 
managers are assigned principally as 
supervisors in the predominantly black



13a

1976 Total
Employees Black

Official and Managers 38 13Professional 3 0Technicians 12 0Sales workers 90 0Office and clerical 96 12Craftsmen (skilled) 20 7Operatives 202 139Laborers 17 9Service workers 4 1

1977 Total
Employees Black

Official and Managers 45 10
Professional 4 0
Technicians 10 1
Sales workers 69 1
Office and clerical 45 27
Craftsmen (skilled) 16 4
Operatives 180 151
Laborers 7 7
Service workers 5 1

3/ continued
transportation division. For example, the 
9 blacks listed in this category in 1975 
were all in transportation; 7 of the 10 
blacks in this classification in 1977 were 
in transportation; the others were in the 
warehouse and production, another division 
where black employees were principally 
assigned.



14a

4. Defendant's truck drivers are 
paid on an hourly and varied salary 
basis.-/ Other hourly paid employees 
perform manual labor (receiving, storing 
and shipping food products) and work in 
maintenance. Salaried employees consist of 
supervisors, managers and office employees. 
Salesmen are paid a straight salary during 
training and are then placed on commission. 
Except for managers, salesmen earn on an 
average substantially more than other 
employees. Jobs in sales, therefore, are 
the most attractive jobs.

5. Sales employees have generally 
been promoted from within the workforce or 
hired from new applications. Defendant 
suggested that it preferred employees in

4 / Varied salary consisted of a base 
salary plus a percentage increase based on 
mileage and time travelled by truck drivers.



15a

sales who had college training, previous
food sales or restaurant experience, who
were neat in appearance and who were able
to communicate. Defendant's practices,
however, and other evidence before the
Court, failed to indicate a consistent
pattern except that the candidate be 

5/white.
6. Charles L. Black serves as Vice 

President in charge of sales. He has a 
high school education with no other formal 
education, except a course at Queen's

5/ Here, as in several other instances 
which follow, the Court has had to resolve 
conflicting evidence of the parties. 
Despite the testimony of defendant's 
witnesses regarding the criteria defendant 
has used in selecting salesmen, the docu­
mentary evidence —  the personnel files and 
other records reflecting the qualifications 
of persons selected as salesmen, as well as 
the admission of defendant's witnesses 
simply refute defendant's assertions that 
the criteria indicated have been consis­
tently applied.



16a

College in Charlotte in management. He has 
been in charge of sales since 1970. He 
started with the company in 1952 in the 
warehouse and went into sales in 1958. He 
worked in the ordering department in sales 
for 2 years and then became a sales rep­
resentative. He has been sales manager 
since 1967.

7. Lex Plyer, Melvin Richardson, 
Oren Biggers, Bill Gardner and Rhudy 
Johnson serve as supervisors in sales. 
Neither holds a college degree. Only 
Plyer, Biggers and Johnson have some 
college training —  Plyer 3 to 4 years, 
Biggers 1 to 2 years and Johnson 1 year. 
All of the supervisors had limited or no 
previous sales experience in foods.

8. Plaintiffs' trial exhibit 22 
lists defendant's salesmen with their 
education and prior experience during the 
relevant time period. The education and



1 7a

prior experience of salesmen demonstrate
that neither college training nor prior
sales experience has been a determining

6/factor in their selection.
9. Defendant also contends that 

after selection as a salesman, training in 
ordering various food products is an 
essential factor. Such training, defendant 
contends, exposes one to the defendant's

6/ During the relevant time period, 
approximately ninety to one hundred differ­
ent persons worked for defendant as sales­
men. Although most of them had high school 
educations, only thirty-four had any 
formal education beyond high school. No 
legitimate educational qualification for 
the job of salesman has been demonstrated. 
Even the sales manager, as indicated above, 
had no formal education beyond high school.

Moreover, the need for sales experi­
ence was not demonstrated. As found 
herein, the most useful sales experience 
was work in the warehouse, work in the 
order department, and work as truck driv­
ers. In these three positions, employees
(a) learn the stock, which is the most 
important area of knowledge? (b) learn the 
customers; and (c) learn how to process 
orders.



18a

products and sales procedures. Defendant
admits, however, that the same or more
significant training is obtained by truck
drivers who deliver various products of
defendant and who frequently handle sales1/of various products.

10. Defendant’s practices in select­
ing salesmen reveal the following:

(a) Historically, at least prior to 
the filing of plaintiffs' charges, 
no black employee or applicant in 
defendant's history had been 
selected as a salesman;

(b) White employees and applicants 
have been selected as salesmen 
with no prior sales experience or 
education beyond high school; 8/

2/ See trial testimony of Charles Larry 
Black Vice President in charge of sales.
8/ Plaintiffs' exhibit 22 shows the 
educational background and prior work 
experience of all salesmen in defendant's 
work force during the relevant time period. 
The education and prior work experience 
were taken from the personnel files of the 
employees. Although the personnel files 
may not reflect all of the educational 
training and work experience of the employ-



19a

(c) Training in ordering food pro­
ducts with defendant may help in 
preparing for a sales position; 
such training, however, is 
neither essential nor necessary 
for one to perform successfully 
as a salesman; 9/

(d) Truck drivers with the defendant 
acquire the necessary experience 
to be successful as a salesman. 
They learn defendant's products, 
must deal with defendant's 
customers and generally acquire 
equal or more relevant job 
experience for sales positions 
than employees who work in 
restaurants or other food estab­
lishments, for example, clerk in 
grocery, butcher or cashier.

11. Beginning in 1968, black employ-

8/ continued
ees, the records demonstrate, and the Court 
finds, based on the testimony and decorum 
of defendant's witness, that they are 
substantially reliable. Defendant does not 
question, for example, that most of its 
salesmen had no more than a high school 
education and that most had no prior food 
sales experience. Nor does defendant 
question that the preferable and most 
important experiences are those set forth 
in footnote 6, supra.
9/ See notes 6-8, supra.



20a

ees of defendant requested transfers or 
promotions to scales. They complained that 
they were being limited to jobs in produc­
tion, in the warehouse and as truck 
drivers. They also alleged that black 
supervisors in transportation were treated 
differently and less favorably than white 
supervisors in other departments.

12. The then plant manager arranged a 
meeting with the black employees to discuss 
the issue. Black employees were advised 
that the time was not right for blacks to 
be assinged to sales. Although sales 
positions were filled during this period, 
no black employee or applicant was se­
lected. Plaintiff Brown Worthy was prom­
ised a sales position but was not selected.

13. Plaintiff Carl Cuthbertson talked 
with the plant manager about a sales 
position in 1972. He continued to request 
assignment to sales until he filed a charge



21a

of discrimination with the Equal Employment 
Opportunity Commission (hereinafter EEOC or 
Commission) on March 10, 1976. Between 
1972 and the date of Cuthbertson's charge, 
more than 15 white employees, for example, 
Daryl L. Bandy in 1973, Edward Earl Bass in 
1976, Frederick A. Caudle in 1973, Terry 
Lee Centry in 1976, Walter W. Hanna, Jr. 
In 1976, John Harris in 1975, Donald Holmes 
in 1975, Rhudy Johnson in 1973, Carl Allen 
Jones, Jr., in 1976, John Mitchell, Jr. in 
1973, Winston F. Parker in 1976, Beaumond 
D. Patterson in 1975, Charles L. Thomas in 
1973, Joseph B. Whitaker in 1975, Bruce 
Fant in 1975 and Ben Williams in 1975, were 
hired in sales. No black, however, 
was hired in sales until Cuthbertson' s 
promotion in November, 1976.

14. Following Cuthbertson's charge, 
defendant's personnel manager began to 
contact some black employees about their



22a

interest in sales. A notice of vacancies in
1 0/sales was posted after the charge.

Twelve employees applied, including 4 black
employees. The notice advised employees
that the initial salary for the position
would be between $150.00 and $200.00 weekly
and that the employee selected would
be required to relocate.

15. The posted salary discouraged
black truck drivers who were already
earning in excess of $200.00 weekly.
Defendant did not advise the applicants
that they could earn substantially more

11/following completion of sales training.

11/ This was the first and apparently the 
only instance in which any vacancy notice has been posted.
11/. As a general practice, sales trainees during the relevant time period were paid 
between $150.00 and $200.00 weekly which 
was less than the weekly average salaries 
of truck drivers. Upon completion of the 
trainee program, however, salesmen could 
and did earn substantially more than truck drivers.



23a

16. The relocation requirement also 
discouraged some applicants. Defendant did 
not advise the applicants of the sales 
vacancies in Charlotte which required no 
relocation. For example, following 
Cuthbertson's charge, 13 salesmen were 
employed for the Charlotte office between 
July and November, 1976.

17. Plaintiff Cuthbertson was the
first black so assigned. He completed his
training and was assigned as a sales
representative in May, 1977. Two other
blacks (Harold Kelly in November 1977 and

12/Wayne Banks in May, 1979) and 37 white 
employees (see defendant's exhibits 
43 and 44) were subsequently assigned to 
sales.

12/ A Spanish surname (Roberta Alcala) was also assigned to sales during 1976.



24a-

18. Plaintiffs presented statistical 
analyses which tended to show that blacks 
constituted between 8.73 and 29.46 percent 
of the relevant job market from which 
defendant selected salesmen. Under plain­
tiffs' analyses, defendant's underutiliza­
tion of blacks in sales positions during 
the period covered by plaintiffs' data 
(1965 through 1978) ranged from 1.96 to 
3.16 standard deviations, using the bino­
mial analysis. Defendant's statistical 
analyses did not refute plaintiffs' conclu­
sions with respect to the underutilization 
of blacks in sales positions. Defendant 
used the 1970 Census as the availability of 
blacks for sales jobs -- 4.1 percent
for the Charlotte Standard Metropolitan 
Statistical Area. Defendant, therefore, 
concluded that the standard deviations, 
in sales, for the period 1 975 to 1 980, 
ranged from 1.07 to 1.71.



25a

Defendant's availability analysis 
ignored the promotion and hiring practices 
of the company and the increased opportuni­
ties blacks have enjoyed in sales positions 
generally since the 1970 Census. For

11/example, 5 of the 15 salesmen hired
promoted in Charlotte be tween 1 976 *
1980 were promoted from within. The
incumbent employees, therefore, constitute
a significant part of the relevant source
from which salesmen have been selected.
Additionally, salesmen have been selected

1_4/
from clerical and operative job families

±5/
as well as from laborers. Defendant
however, limited its consideration to

13/ Fred Parker, Dan Harris, Jake Hanna, 
Carl Jones and Tom Miller. See, e. g. , 
defendant's exhibit 43.
14/ As defined by the Census and EEOC. 
15/ See plaintiffs' exhibits 22 and 23.



26a

employees who had worked or who were 
presently working as salesmen.

North Carolina Labor Department and
supplemental United States Census data
reflect a significant increase of black
employees in sales positions since the 1970
Census. According to the 1979 Statistical
Abstract of the United States, Table #687,
black salesmen nationally increased from
3.08 percent in 1970 to 5 percent in

1 6 /1978. Black clerical and operative 
employees increased from 7.36 and 12.65 
percent respectively to 19.5 and 15.0 
percent.

Thus, it is obvious that minority 
availability for sales positions between 
1975 and 1980 was higher than the 4.1

16/ The minority availability for the 
Charlotte SMSA should be higher since 
minority availability in 1970 was higher 
than the nationwide average —  4.1 percent 
as compared with 3.08 percent nationwide.



27a

percent used by defendant. The Court finds
that minority availability during the

<*

period is more accurately shown by plain­
tiffs' Exhibit 23, Tables 3 and 4. Table 3 
analyzes promotions from within defendant's 
workforce in order to determine minority 
availability. It establishes that 38.97 
percent of the internal promotions into
sales should have been black. Externally,

11/8.73 percent of the new hires in sales 
should have been black. Prior to Cuthbert- 
son's charge in March 1976 and subsequent 
promotion in November 1976, no black was 
hired externally or promoted internally 
into sales. While 2 blacks were hired and 
1 promoted into sales following Cuthbert- 
son's charge, defendant's utilization of 
black employees in sales prior to that time 
could not have happended by chance in

17/ See plaintiffs' Exhibit 23, Table 4.



- 28a

5 in 100 times. The Court believes that 
defendant began hiring blacks into sales in 
1976 after the EEOC charges and only as a 
result of plaintiffs' charges.

19. Plaintiffs, however have not 
relied exclusively on statistical dispari­
ties; rather, 5 plaintiffs (Carl Lee 
Cuthbertson, Brown Worthy, Fred Johnson, 
Calvin Gregory and James Baldwin) testi­
fied and presented evidence of the dis­
parate treatment that they suffered.

Carl Lee Cuthbertson.
20. Cuthbertson was first employed by

defendant as a permanent employee on 
December 3, 1970. He was assigned to the

1 8/

18/ For example, plaintiffs' Exhibit 23, 
Table 13, shows 57 employees hired and 
promoted into sales between 1 965 and 
1978. Forty-eight of the 57 employees were 
new hires and 9 were promoted. Using 8.73 
availability for new hires and 38.97 
availability for promotions, Table 13 shows 
that this occurrence would not be expected by chance in 1 in 1000 times.



29a

warehouse. At that time, no black employee 
worked in sales. Beginning in 1972, Cuth- 
bertson, then a high school graduate, 
requested promotion to sales. He was ad­
vised by management to take some addi­
tional courses, although white employ- 19/
ees were not required to take train­
ing. Cuthberston enrolled in courses 
at Central Piedmont Community College. He 
again sought promotion into sales in 
1 973, 1 974 and 1 975, but was rejected.

Cuthbertson filed an EEOC charge in 
March 1976. He was not placed in a sales 
position, however, until November 1976. 
Defendant's Exhibits 43 and 44 show the

19/ For example, Daryl L. Bandy promoted 
into sales in 1973 with a high school 
diploma; Frederick A. Caudle promoted into 
sales in 1973 with a GED; Jerry L. Church­
ill was hired into sales in 1971 with a 
high school diploma. In fact, over two- 
thirds of defendant's salesmen had no 
formal educational training beyond high school.



30a

following promotions to or hires in sales 
20/

during 1976, prior to Cuthbertson's 
selection:

Date of 
Assignment

Race in Sales Education
Fred Parker W January 1976 H.S. - 

2+ years 
college

Ed Bass W February
1976 H.S.

Terry Cengry w March 1976 H.S. - MBA 
(May 1976)

Vance Abbott w Apirl 1976 H.S. - A.S. 
Degree

David Holly w June 1976 H.S.
Dan Harris w July 1976 H.S. - 3

years of 
college

20/ Two employees were hired in sales in 
1975 {James Lybrand and Winston Parker) 
with no more qualifications than Cuthbert- 
son. Four (Ben Williams, Jr., Charles 
Thomas, John D. Harris and Jerry Conder) 
were hired in 1975. At least 1 (Harris) 
had even less qualifications than Cuth- bertson.



- 31a

Jake Hanna W July 1976 H.S. - 4
yrs. col­
lege degree

Carl Jones W July 1976 H.S. - 1+
year college

Tim Miller W July 1976 H.S. - B.S.

They had the
Degree

11/following work experience:
Parker except for 6 months as order 

selector in A & P Warehouse, 
none in food sales

Bass 22 years
Gentry 4 months
Abbott none; 1 year route salesman 

for Buttercup ice cream
Holly 7 years
Harris none; worked as cashier clerk 

in drug store during college
Hanna none
Jones 2 1/2 years
Miller none; stock clerk in A & P 

Food Store for 5 months

21 Prior work experience has been taken 
collectively from defendant's Exhibits 43 
and 44 and Plaintiffs' Exhibit 22.



32a

Cuthbertson worked in the warehouse 
for 2 years and as a truck driver from 1972 
until his promotion to sales in 1976, 
experience which defendant admitted were 
comparable if not more relevant to sales 
than the prior work experience of some of 
the white employees selected for sales 
between 1974 and 1976. Cuthbertson also 
completed 1 1/2 years of study beyond high 
school before his promotion to sales.

21. Defendant offered no credible 
evidence to explain its non-selection of 
Cuthbertson in sales until after his charge 
of discrimination. The Court finds that 
Cuthbertson was not offered a sales posi­
tion until November 1976, solely because of 
his race.

Brown T .  Worthy
22. Worthy was employed by defendant 

as a laborer in the warehouse in 1963. He 
promoted to truck driver in 1963 and to



33a

supervisor in 1967. Beginning in 1968, 
Worthy and other blacks requested promotion 
to sales. Although Worthy was promised a 
sales position in 1970 and made preparation 
to move to assume the position, he was not 
assigned to sales. He continued his 
efforts to promote to sales until after 
his EEOC charge on February 6, 1976. He

22/

was offered but rejected a sales position
in June, 1976. At that time, Worthy had
given up hope. He and his family had
resolved that he would continue in his
supervisory position, rather than risking 
the possibility of being reassigned to

22/ As supervisor during this period, Worthy and other black supervisors in 
transportation principally filled in as 
relief drivers when other drivers were away 
from work. Because of their supervisory 
classification, they were not able to earn 
varied or overtime salaries as regular 
truck drivers, despite the number of 
hours they spent driving trucks. See Paragraph 24, infra.



34a

another location.
23. Worthy had 2 years of college

training and had worked in the warehouse
and in transportation since his employment.
He was qualified for the sales position by

24/his education and training. He should 
have been promoted to sales in 1970, in

23/

23/ Salesmen were subject to assignment in 
different districts.
24/ Defendant offered at trial some 
writing samples of Worthy and testimony 
that he was unqualified for sales. The 
documentary and other evidence shows his 
contention to be unreliable. As a truck 
driver and supervisor, Worthy was required 
to write and to prepare sales and delivery 
reports and to report on the performance 
of employees under his supervision. He was 
knowledgeable of defendant's products, a 
factor defendant contended was important; 
he was able to calculate sales and was 
equally or more qualified than several of 
the salesmen selected by defendant between 
1974 and 1976; for example, Lybrand in 
1974, Harris and Williams in 1975 and Bass 
in February 1976. In fact, defendant 
promised a sales position to Worthy in 1970 
and 1976, and again in 1977 with no conten­
tion that he was unqualified. The Court 
resolves this dispute in testimony in 
Worthy's favor.



35a

1974 and 1975 or prior to his charge in 
1976.

24. Worthy and other black super­
visors complained about their limited 
status as compared with white supervisors. 
Black supervisors in transportation were 
unable to hire or discharge employees. 
They assigned responsibilities and selected
employees for particular job assignments

25/only as directed by their supervisors. 
They supervised at times an all-black work 
force and they spent a major portion of 
their day not in supervising but in relief 
driving, filling vacancies of regular

25/ Defendant contended at trial that 
black supervisors had more responsibility 
and referred to Worthy's discharge of 
plaintiff Fred Johnson as an example. 
Johnson, however, was discharged in 1977 
following defendant's change in policies 
regarding the black supervisors in trans­
portation. Additionally, in discharging 
Johnson, Worthy simply carried out the 
express orders of his superintendent.



36a

drivers. Following Worthy’s charge, 
defendant made changes in the job duties 
and authority of transportation super­
visors, making them comparable to those of

26/other supervisors.
Fred Johnson
25. Johnson was employed by defendant 

in the warehouse on July 1 6, 1 969. He
subsequently promoted to truck driver and, 
in 1975, to supervisor in transportation. 
Johnson requested promotion to sales in 
1974 and continued his efforts until his 
discharge on July 22, 1977.

26/ Worthy and other black supervisors 
also questioned defendant’s assignment of

both white, to 
in trans- 
exercised 
employees 
were not 
Defendant

explained, however, that Ramsey and Robin­
son were only temporarily assigned to these 
jobs in order to assist defendant in 
conducting a survey of its routes and 
drivers. No discrimination is found in the 
assignments of Ramsey and Robinson.

Dave Ramsey and R. Robinson, 
assist in supervising employees 
portation. Ramsey and Robinson 
more control over transportation 
than the black supervisors and 
required to do relief work.



37a

26. Johnson filed a charge of dis­
crimination with EEOC on February 6, 1976.
He complained about his inability to 
promote to sales and defendant’s different 
treatment of black and white supersivors.

27. Following his charge, Johnson
began to experience problems with his job,
receiving complaints about his relationship
with customers and job performance until 

27/his discharge.
28. Johnson is a high school graduate 

with some additional studies at Carver 
College and Central Piedmont Community 
College. He was knowledgeable about 
defendant's products and customers from 
his warehouse and transportation experi-

27/ Johnson presented limited proof 
regarding his discharge at trial. His 
evidence does not demonstrate that he was 
treated differently with respect to his 
discharge than other employees.



38a

ence. He was qualified for a sales posi-
28/

tion.
29. As indicated, defendant had 

vacancies in sales in 1974, 1975, 1976 and
1977. Defendant offered no explanation of 
its failure to promote Johnson to sales in 
1974, 1975 and 1976. In 1977, Johnson
refused to sign the notice of vacancies in 
sales. Defendant contends that Johnson was 
not interested at that time because of the 
salary paid during training. Johnson and 
other black employees, however, were not 
advised of the salary increases upon 
completion of training. He was clearly 
interested in and qualified for the posi-

28/ Defendant contended that Johnson was 
unqualified for sales because of two 
experiences he had with customers. These 
incidents, however, came only after John­
son's charge and, as the credible evidence 
indicates, involved only 2 of the number of 
customers serviced by Johnson. They 
had no bearing on Johnson's rejection 
between 1974 and 1976.



39a

tion in 1974, 1975 and 1976. His interest 
and qualification continued until his 
discharge in 1977.

Calvin Gregory
30. Gregory was employed by defendant 

as a truck driver in 1973. He is a high 
school graduate with additional college 
training. He began efforts in 1976 to 
promote to sales. He applied again 
in 1977 with the posting. Gregory filed a 
charge with EEOC on May 2, 1977. He was
advised that he would have to take a 
reduction in pay and be transferred. He 
was not advised about the vacancies 
in Charlotte or the salaries in sales upon 
completion of training. Based on defen­
dant’s representation, Gregory withdrew his 
1977 request. He would not have done so, 
however, if he had known about salaries in 
sales following training, even if he had 
been required to relocate.



40a

31. Gregory was discharged on July
20, 1989. He does not challenge his
dismissal on this proceeding. He was 
interested in and qualified for a sales 
position, however, between 1976 and the 
date of his discharge.

James Baldwin
32. Baldwin was employed by defendant 

in transportation in 1964. He was injured 
in 1975, suffered permanent injuries 
which prevented him from performing his 
regular job. Baldwin requested that he be 
assigned "light duties." He complained to 
EEOC following the defendant's refusal to 
so assign him.

29/33. Baldwin contended that white 
employees with similar injuries had been

29/ Baldwin also raised a claim initially 
regarding his inability to promote to 
sales. He abandoned this position at trial 
and introduced no evidence in support of 
this contention.



given limited assignments which enabled 
them to continue their employment. 
The 4 employees (Bryant Williams, R. 
Robinson, David Ramsey and J. Hargett) 
referred to by Baldwin, however, were not 
assigned light duties; rather, they con­
tinued with basically the same duties they 
performed before their illness or injuries. 
Additionally, Baldwin has a 7th grade 
education and is limited in the type of 
clerical or other light duties that he 
can perform.

Willie Tobias
34. Tobias complained in his motion 

to intervene that he had been discrimina- 
torily demoted from his dock supervisory 
position in 1977 and discharged on May 15, 
1980. Tobias, however, introduced no 
credible evidence to support his claim.

Other Named Plaintiffs
35. The evidence does not show that



42a

other named plaintiffs have been treated 
differently or denied job positions because 
of their race or color.

The Class Claims
36. While plaintiffs' statistical 

evidence establishes that black employees 
were excluded from sales positions, at 
least through November 1976, and that this 
exclusion was statistically significant, 
plaintiffs did not produce at trial an 
unsuccessful, outside black applicant for a 
sales position. All incumbent black 
applicants or interested parties are well 
known and could be joined in this proceed­
ing had they desired to pursue claims that 
they were denied sales positions because of 
their race.

CONCLUSIONS OF LAW
1. The Court has jurisdiction of the 

parties and of the subject matter. Plain­



43a

tiffs have invoked the Court's jurisdiction 
under Title VII, 42 U.S.C §§ 20GQe et seq. 
and under 42 U.S.C. § 1981. Plaintiffs 
filed timely charges with EEOC and timely 
instituted this action following receipt of 
right-to-sue letters from the Commission.

2. Based on the evidence presented 
at trial, the Court concludes that the 
class action, previously certified, should 
be decertified. No evidence was presented 
by plaintiffs of unsuccessful, outside 
black applicants for sales or other job 
positions. Although the evidence does 
demonstrate that incumbent black employees 
were discriminatorily denied jobs in sales, 
all of these employees are known; they are 
limited in number and could have been 
easily joined in this proceedings. See 
Kelley v. Norfolk & Western Railroad Co. , 
485 F . 2 d 3 4 (4th Cir. 1978). Since
former class members, as the class was



44a

previously defined, may have relied on this 
proceeding to protect their interest, an 
appropriate notice should be directed 
to them advising of the decertification of
the class. Shelton v. 1̂ n ,
582 F .2d 1298 (4th Cir. 1978) and on 
remand, 81 F.R.D. 637 (W.D.N.C. 1979).

3. Plaintiffs Cuthbertson, Worthy, 
Johnson and Gregory alleged that black 
employees and applicants for employment 
were historically excluded from job posi­
tions in sales because of their race.
They have established that prior to their

30/charges of discrimination, no black had

30/ The earliest charge was filed on 
February 6, 1976. The earliest period of
liability therefore is 6 months prior to 
the charge or August 6, 1975 for purposes
of Title VII. See Wetzel v. Liberty Mutual 
Insurance Co.. , 508 F.2d 239, 246 (3d
Cir. 1975). Since this action was filed on 
July 21 , 1 977, the period of liability
under 42 U.S.C. § 1981 begins July 21,
1974, 3 years prior to the institution of
this proceeding. N.C. Gen. Stat. § 1-52.



45a

been employed in sales; that they and other 
blacks sought sales positions as early as 
1968 and continued those efforts thereafter 
without success until Cuthbertson was 
promoted in 1976; that they were qualified 
for the positions; that vacancies existed; 
that defendant passed over them and se­
lected white employees with no more qual­
ifications than the plaintiffs and in 
several instances, with less qualifica­
tions. Under McDonnell-Douglas Corp. v. 
Greene, 411 U.S. 792 (1973), plaintiffs'
evidence establishes a prima facie case of 
disparate treatment and liability under 
Title VII and 42 U.S.C. § 1981. See also, 
International Brotherhood of Teamsters 
v. United States, 431 U.S. 324 (1977);
Texas Department of Community Affairs v.
B u jr d; Jjn ê , ___U . S . ____ , 67 L . Ed . 2d 207
(1981). While disparate treatment requires 
proof of intent, Teamsters, 431 U.S.



46a

at 335 n. 1 5 , "failure to show conscious 
intent to discriminate does not preclude a 
finding of discriminatory intent." Russell
v. American Tobacco Co. , ___ F. Supp. ___
(M.D.N.C. Civ. No. C-2-G-68, July 10, 
1981); citing Village of Arlington Heights 
v. Metropolitan Housing Dev. Corp., 429
U.S. 252, 266 (1977).

4. Worthy requested a sales position 
in 1968. He was promised a sales job in 
1970. He made preparation to assume the 
position but was never selected. He 
continued his efforts thereafter through 
the filing of his charge in February 1976. 
He was qualified for sales, vacancies 
existed but defendant refused to select 
him. He was offered a sales job in June,
1 976 , but at that time was no longer 
interested. Worthy's proof establishes a 
prima facie case of liability until the
change in his position in June, 1976.



47a

5. Cuthbertson requested a sales
position in 1973. He was qualified at that
time but rejected because of his race.
He continued his efforts to promote to
sales, filed a charge in March, 1976, and
was finally selected in November, 1976.
Cuthbertson established a £rima facie
case of liability at least until the

11/date of his promotion to sales in 1976.
6. Gregory applied for a sales job 

in 1976. Although qualified and vacancies 
existed, Gregory was denied promotion to 
sales. He was discharged on July 20, 1980.

31/ Cuthbertson contends that had he been 
selected earlier, he would have completed 
his training before March 1977, and would 
have been earning substantially more than 
he earned during 1976 and 1977. The relief 
issue was separated from the liability 
issue and was not developed at trial. The 
Court, therefore, expresses no opinion on 
this contention and will refer this issue 
together with other relief issues to a 
Master.



48a

Gregory's proof established a prima facie 
case of liability.

7. Johnson sought a sales job in
1974 and continued his efforts until his 
discharge on July 22, 1977. Johnson was
qualified and vacancies existed. His proof 
establishes a prima facie case of liability 
until his discharge on July 2 2 , 1977.

8. Once a prima facie case of
liability is established, defendant must 
offer some evidence that "the plaintiff was 
rejected, or someone else was preferred, 
for a legitimate, nondiscriminatory 
reason." Burdine, supra, 67 L.Ed.2d at
216. Although defendant does not assume 
the burden of proof and need not persuade 
the Court, its evidence must "raise a 
genuine issue of fact as to whether it 
discriminated against the plaintiff. To 
accomplish this, the defendant must clearly 
set forth, through the introduction of



49a

admissible evidence, the reasons for the
plaintiff's rejection. The explanation
provided must be legally sufficient to
justify a judgment for the defendant."
I b Ail. If the defendant is silent or
if its explanation is simply pretextual, it
runs the risk of an adverse determination.
Ibid . ; Furnco Construction Co. v. Waters,
438 U.S 567 (1978); Board of Trustees of
Keene State College v. Sweeney, 439 U.S.
24 (1978); EEOC v. American National Bank,
___ F. 2d ___ (4th Cir., Nos. 79-1533 and
79-1725, June 26, 1981).

9. Defendant offered no acceptable
explanation for its failure to employ a
black in sales prior to plaintiff's charges 

32/
in 1976. The alleged criteria which de-

32/ As set out in the Findings, Paragraph 
18, supra, both parties presented statisti­
cal evidence in support of their conten­
tions. And while the Court is persuaded



50a

fendant claims it utilized, see Findings of 
Fact, Paragraphs 5, 9 and 10, to select
salesmen do not withstand scrutiny. The 
standards simply were not followed when 
whites were hired or promoted or in Bur- 
dine, supra, terms were pretextual. The 
Court concludes that blacks were not hired 
in sales solely because of their race. It 
offered some explanation for its failure to 
promote Worthy, Cuthbertson, Gregory and 
Johnson. Its suggested reasons, however, 
do not withstand analysis and are patently 
pretextual.

10. Defendant suggested that Worthy 
could not write and thought he knew more

32/ continued
that defendant's underutilization of blacks 
in sales prior to November 1976, is sta­
tistically significant, this fact is not 
essential for the Court's determination. 
It simply supports the results reached by 
the Court.



51a

than he did. Defendant selected Worthy 
as a supervisor in transportation. In 
connection with this job, Worthy was 
required to write reports, check invoices 
and orders and no one questioned his 
ability to write until after the institu­
tion of this proceeding. Worthy had more 
objective qualifications than many of 
the white employees selected for sales. 
Moreover, defendant promised a sales job to 
Worthy in 1970 but failed to assign him and 
offered him a sales position in 1976 and 
1977.

1 1 . Cuthbertson was told that he 
needed college training although white 
employees were selected in sales with no 
more and in several instances less formal 
training than Cuthbertson. Defendant 
also suggested that Cuthbertson advised 
management that he would not be ready for 
sales until he completed his education at



52a

Central Peidmont Community College, that
Cuthbertson completed his training in
September, 1976 and was promoted 2 months
later. Cuthbertson, however, should not
have been told to acquire more formal
education than required of white employ- 

33/ees. In fact, defendant offered no proof 
that training beyond high school was

34/necessary or generally required. More­
over, the evidence is clear that Cuthbert­
son was interested in sales as early as 
1 972 and 1 973 . He enrolled in Central 
Piedmont, only because he was instructed to 
do so by defendant if he wanted to promote; 
Cuthbertson did not condition his selection

33/ See Griggs v. Duke Power Co., 420 F.2d 
1225, 1230-1231 (4th Cir. 1970), rev'd on 
other grounds, 401 O.S. 424 (1971).
34/ See Griggs, supra. See also Dothard 
v. Rawlinson, 433 U.S. 321 (1977); Vanguard 
Justice Society, Inc, v. Hughes, 471 F. 
Supp. 670 (D. Md. 1979).



53a

on his completion of formal training at 
Central Piedmont.

12. Defendant contended that Gregory 
withdrew his request for promotion in 1977 
after being advised of the salary cut and 
requirement that he relocate. Defendant 
offered no explanation for its failure to 
promote Gregory in 1976. No explanation 
was offered for defendant's failure to 
advise Gregory in 1 977 of the salaries 
of salesmen after completion of their 
training, nor the sales vacancies in 
Charlotte which required no relocation. 
Had Gregory been advised of these condi­
tions he would not have withdrawn his 
request in 1977. Defendant also contended 
that Gregory was unqualified because he was
discharged on July 20, 1980. Whatever

35/the merits of Gregory's discharge, the

35/ Gregory did not challenge and offered 
no evidence with respect to his discharge 
in this proceeding.



- 54a

reasons for his discharge were not a factor
in defendant's decision in 1976 or 1977.

13. Johnson allegedly did not get
along with customers. He was discharged in
1977 because of his failure to come in and

36/make a delivery when called. No ex­
planation was offered for defendant's 
failure to promote Johnson to sales between 
1974 and his discharge in 1977. No com­
plaint was raised about Johnson's work 
until he and other blacks began to chal­
lenge defendant's racial practices. 
Johnson was never advised that he could not 
get into sales because of the two incidents 
he had with customers. The evidence is
clear that defendant's explanation is 

37/simply a ruse.

3 6 /  J o h n s o n  d i d  n o t  e s t a b l i s h  t h a t  h i s  
d i s c h a r g e  w a s  r a c i a l l y  d i s c r i m i n a t o r y .

37/ The Court is cognizant of the burden 
or lack thereof on defendant in the liabil­
ity stages of these proceedings. See 
Burdine, supra, Furnco Construction Co.,



55a

14. Based on the evidence before it, 
the Court is persuaded that plaintiffs 
Cuthbertson, Worthy, Gregory and Johnson 
have established that they were denied jobs 
in sales because of their race in violation 
of Title VII and 42 U.S.C. § 1981. Plain­
tiffs are, therefore, entitled to appro­
priate relief. The relief should, as far 
as possible, place the plaintiffs in the 
position they would be in in the absence of 
defendant's discriminatory practices. 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 
421-422 (1975):

37/ continued
supra. Defendant's explanations, however, 
should, upon a fair analysis, raise a 
genuine issue that plaintiff was not pro­
moted for a legitimate, nondiscriminatory 
reason. For the reasons set forth above, 
the Court concludes that defendant's 
asserted reasons are neither legitimate or 
credible. White employees were promoted to 
sales jobs without the alleged educational 
or prior work experience. The same oppor­
tunities were not extended to black em­ployees.



56a

It follows that, given a finding 
of unlawful discrimination, back 
pay should be denied only for reasons 
which, if applied generally, would 
not frustrate the central statutory 
purposes of eradicating discrimination 
throughout the economy and making 
persons whole for injuries suffered 
through past discrimination.

Franks v. Bowman Transportation Co., 424
U.S. 747, 763, 771 (1976):

To effectuate ... [the] "make whole" 
objective, Congress in § 706(g)
[42 U.S.C § 20003-5(g) ] vested broad 
equitable discretion in the federal 
courts to "order such affirmative 
action as may be appropriate, which 
may include, but is not limited 
to, reinstatement or hiring of employ­
ees, with or without back pay . . . , 
or any other equitable relief as 
the Court deems appropriate"...
No less than the denial of the remedy 
of back pay, the denial of seniority 
[and other equitable] relief [includ­
ing reinstatement and promotion] to 
victims of illegal racial discrimina­
tion ... is permissible only for 
reasons which, it applied generally, 
would not frustrate the central 
purposes of "eradicating discrimina­
tion throughout the economy and making 
persons whole for injuries suffered 
through past discrimination.
15. Cuthbertson has now been promoted

to sales. Worthy, Gregory and Johnson do



57a

not now seek sales positions. All four, 
however, have sustained monetary losses 
because of defendant's practices. They are 
entitled to be made whole for loss of 
wages and fringe benefits unless there is 
some justifiable basis, consonant with 
Title VII and § 1981, for denying such 
relief. Albemarle Paper Co. v. Moody, 
supra. The Court knows of no such basis. 
A Master will, therefore, be appointed with 
appropriate instructions to receive evi­
dence an! to make recommendations with 
respect to the back pay plaintiffs Cuth- 
bertson, Worthy, Gregory and Johnson should 
receive. UTU v. Norfolk & Western Ry. Co., 
532 F. 2d 336 (4th Cir. 1975); Sledge v. J. 
P. Stevens & Co. , 585 F.2d 625 (4th Cir. 
1978). Compounded interest on the back pay 
awards from the date of loss as to each of 
the four plaintiffs shall also be awarded 
at the rate of 8 percent per month. EEOC



58a

v« Ford Motor Co., 645 F.2d 183 (4th Cir.
33/1981).
16. Plaintiff Baldwin and intervenor 

Tobias failed to present sufficient proof 
that they were treated differently or were 
otherwise discriminated against because of 
their race or color. Judgment should, 
therefore, be issued dismissing their 
claim.

17. Plaintiffs are the prevailing 
parties in this proceeding. As such, they 
are entitled to their costs, expenses 
and reasonable attorneys fees. 42 U.S.C 
§ 2000e-5(k) and 42 U.S.C § 1988.

38/ While the evidence establishes that 
black supervisors in transportation were 
treated differently and discriminated 
against, defendant eliminated these prac­
tices in 1977. There is no evidence 
or indication that the defendant plans to 
or will resume such practices. The Court in 
its discretion, therefore, concludes that 
injunctive relief is not necessary with respect to this issue.



59a

This day of 1981 .

UNITED STATES DISTRICT JUDGE



60a

IN THE UNITED STATES DISTRICT COURT 
FOR THE

WESTERN DISTRICT OF NORTH CAROLINA 
Charlotte Division 

CIVIL ACTION NO. C-C-66-196

JAMES H. LITTLE, et al. ,
Plaintiffs, 

v.
BIGGERS BROTHERS, INC.,

Defendant.

JUDGMENT

Based on the Findings of Fact and 
Conclusions of Law filed herein on Septem­
ber 9, 1981, the Court enters the following 
judgment.

IT IS HEREBY ORDERED, ADJUDGED AND
DECREED:



61a

1. The class as originally defined 
by Order of February 12, 1980, is hereby 
decertified. An appropriate notice shall 
be issued to the former class members 
advising them of the decertification of the 
class and of their rights if they desire to 
pursue their individual claims.

2. The defendant, its agents, 
employees, attorneys and successors are 
hereby enjoined from discriminating against 
plaintiffs Carl Lee Cuthbertson, Brown T. 
Worthy, Fred Johnson and Calvin Gregory on 
the basis of their race and color in its 
selection of employees for sales positions.

3. The defendant shall pay back pay 
to plaintiffs Carl Lee Cuthbertson, Brown 
T. Worthy, Calvin Gregory and Fred Johnson 
for any loss of income they have sustained 
because of defendant's discriminatory 
employment practices. Cuthbertson, Worthy 
and Johnson shall be awarded back pay for



62a -

any income they have lost because of the 
denial of sales jobs. Back pay can begin 
no earlier July 21, 1974. Cuthbertson*s 
loss of income shall continue up until the 
time that he began earning what he would 
have been paid in the absence of defen­
dant's discrimination. Worthy's loss of 
income shall continue up until June, 1976, 
when he was no longer interested in a sales 
job. Johnson's loss of income shall 
continue up until his discharge on July 22, 
1977. Gregory shall be awarded back pay for 
any loss of income he sustained after May 
1, 1975 and prior to his discharge on July 
20, 1980. Cuthbertson, Worthy, Gregory and 
Johnson shall also receive adjustments in 
their fringe benefits based on the salaries 
they would have received as salesmen and 
shall be awarded interest in the back 
pay awards provided for herein from the 
date of loss, compounded monthly at the



63a

rate of 8 percent. The determination of 
the amount of back pay to be awarded to 
Cuthbertson, Worthy, Gregory and Johnson 
shall be referred to a Master for recom­
mendations.

4. On or before March 15, 1982 and
annually for a period of two years there­
after (to March 15, 1984), defendant shall
submit a report to the Court, with a copy 
to plaintiffs' counsel, setting forth the 
following information for the prior calen­
dar year:

(a) a list of the number of employees 
by race in each department and 
job position of the defendant;

(b) a list of the name and race of 
each employee who has, during the 
reporting period, been promoted, 
transferred or hired in sales.

5. The defendant shall designate an 
individual who will be responsible for 
preparing and submitting the reports 
provided for in paragraph 4. The name and 
address of the individual shall be given to



64a -

plaintiffs' counsel within thirty (30) days 
of the entry of this Judgment.

6. Plaintiffs are the prevailing 
parties in this action. The defendant 
shall pay plaintiffs' reasonable attorney 
fees, cost and expenses, including expert 
witness and consultation fees, paralegal 
time and unusual clerical time for all work 
performed in this proceeding until the date 
of this Judgment in the sum of $64,701.37 
exclusive of the services of Hoffman 
Research Associated, all as set out in the 
accompanying Memorandum of Decision as to 
Fees.

7. Plaintiffs* counsel shall also 
receive reasonable attorney fees, costs and 
expenses, including paralegal time and 
other proper expenses, for all future work 
done on behalf of the plaintiffs for all 
proceedings before the Master and for 
work done in the implementation of this



65a

Judgment, including fees and expenses for 
monitoring and examining the various 
reports required. Plaintiffs' counsel shall 
send monthly statements to counsel for 
the defendant. The defendant shall pay the 
bills submitted within fifteen (15) days 
after receipt. If the defendant contests 
any amount claimed, the Court shall deter­
mine what fees and expenses are appro­
priate.

8. The action as to James Baldwin, 
Willie Tobias, Sr. and other named plain­
tiffs shall be dismissed with prejudice. 
As to plaintiffs Cuthbertson, Worthy, 
Gregory and Johnson, however, the Court 
will retain jurisdiction of the action for 
2 years from the entry of this Judgment. 
The status of the action will be reviewed 
at that time and the action will be dis­
missed unless the Court finds it necessary



66a

to extend the period for retention of the 
Court's jurisdiction.

This 9th day of September, 1981.

UNITED STATES DISTRICT JUDGE



67a

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 81-2044

Carl L. Cuthbertson, Brown T. 
Worthy, Fred Johnson, Jr., 
Calvin Gregory,

Appellees.
and
James H. Little, John Clay, James 
W. Baldwin, Bobby Campbell, Jimmie 
Anderson, Eddie Hicks, James Gill, 
Truemain Mainor, Charles Neal, 
Hendrick Robinson, Willie Frazier, Jr.,

Plaintiffs,
-vs-

Biggers Brothers, Inc.,

Calvin Gregory,
Appellant,

Intervenor.

Appeal from the United States District Court for the Western District of North 
Carolina, James B. McMillan, District Judge.



68a

Argued July 20, 1982 Decided March 9, 1983

Before RUSSELL, WIDENER and HALL, Circuit 
Judges.

J. W. Alexander, Jr. (Blakeney, Alexander 
& Machen, on brief) for Appellant; J. 
LeVonne Chambers (Junathan Wallas, Cham­
bers, Ferguson, Watt, Wallas, Adkins & 
Fuller; Linwood 0. Foust, on brief) for 
Appellees.

WIDENER, Circuit Judge;
Biggers Brothers, Inc. appeals from a 

judgment entered after a bench trial, in 
which it was found to have discriminated 
against four black employees in violation 
of 42 U.S.C §§ 1 981 , 2000e e_t seq. , and 
which awarded relief. We reverse in part 
and remand in part for further proceedings.

I.

The defendant, Biggers Brothers, Inc., 
operates a distribution center in Char­



- 69a

lotte, North Carolina, where it receives 
and stores various food products for 
delivery to its customers. The defendant's 
principal business is selling foodstuffs to 
institutional buyers, such as restau­
rants, hotels, and hospitals for their 
in-house preparation.

The defendant's workforce comprises, 
from time to time as pertinent here, some 
350-500 employees who were assigned to some 
thirty different jobs in separate depart­
ments, including the warehouse, transporta­
tion, maintenance, and sales departments. 
Given the nature of the defendant's 
enterprise, its sales department is the 
heart of the business. Salesmen work 
within various assigned territories in 
North Carolina and surrounding States. 
Salesmen are expected to enlist customers 
and solicit orders. They must become 
familiar with the defendant's extensive



70a

line of products and they must help cus­
tomers select products of the appropriate 
quality in light of the customer's desires 
and resources, and what the customer's 
competitors are offering. Salesmen also 
help customers calculate overhead and 
profit, and advise customers on economies 
in purchasing.

In the course of their duties, sales­
men must place customers' orders with the 
defendant's order department, using a 
hand-held data-processing computer. They 
investigate their customers' credit-worthi­
ness and recommend to the accounting 
department whether the customer should 
receive credit. Although the defendant's 
management decides finally whether to allow 
a customer to purchase on credit, a sales­
man's faulty recommendation may rebound to 
both his and the company's detriment. The 
salesmen collect accounts. If the salesman



71a

cannot later collect from the customer, he 
is penalized for the delinquency. With at 
least a part of the cash and checks that he 
collects, the salesman must open and 
maintain bank accounts in the defendant's 
name. The salesmen must fully record and 
account for their collections, which in 
Cuthbertson's case exceeded a million 
dollars a year. In connection with their 
job-required responsibilities, salesmen 
must be proficient in and carry on corres­
pondence with customers and the various 
departments of the defendant. The job, as 
described by the plaintiff Cuthbertson, 
is a profession or career, not merely 
soliciting orders. He freely admitted he 
was not qualified for the job without 
his college education.

The position of salesman for the 
defendant is quite desirable. Established 
salesmen are paid on a commission basis;



72a

there are in fact one or more salesmen who 
have cultivated many customers and who earn 
more than $70,000 a year. Only members of 
defendant's top management earn more than 
the top salesmen. Until November 1976, no 
black employee worked for the defendant as 
a salesmen. The transportation depart­
ment employees were predominantly black. 
Other than sales, transportation is the 
highest paid department of the defendant.

On July 21, 1977, Cuthbertson, Worthy, 
and Johnson, along with eleven other 
plaintiffs, filed suit in the district 
court, alleging causes of action under 
Title VII of the Civil Rights Act of 1964, 
42 U.S.C. § 20Q0e et ££<£., and under 
42 U.S.C. § 1981. The plaintiffs alleged 
that the defendant, their employer, had 
discriminated against them and a class 
of black present and former employees. 
According to the complaint, the defendant



73a

had followed a pattern and practice of 
racial discrimination, had limited the 
opportunities of black employees to be 
promoted to sales positions, and had used 
subjective discriminatory criteria to 
prevent blacks from advancing into the 
higher paying hourly-paid and management 
positions. The defendant answered, denying 
all plaintiffs' material allegations.

The district court conditionally 
certified a class of all present and former 
black employees of the defendant, and a 
trial was had to the court. The plain­
tiffs' principal contentions were that they 
had sought sales positions and that the 
required qualifications were applied 
pretextually to exclude them. At the 
conclusion of the trial, the court filed a 
Memorandum of Decision, finding that the 
defendant had discriminated in its hiring 
of salesmen by denying or delaying the



- 74a

andpromotion of three of the plaintiffs
one other class member. The court in that
document directed plaintiffs’ counsel to
prepare "appropriate findings of fact,
conclusions of law and a judgment." It
gave the defendant 30 days following
service of plaintiffs' proposals to except
or submit alternate proposals. The twenty-
four pages of the findings of fact and
conclusions of law prepared by plaintiffs'
attorneys were adopted verbatim except for
inconsequential changes in three pages
which the court termed "relatively immater-1/ial." The district court then entered

]_/ The plaintiffs also alleged that the 
defendant treated black supervisors differ­
ently from the way it treated white 
supervisors in other departments. Although 
the district court made a conclusory 
finding that the defendant discriminated 
in this way, it also found that the defen­
dant voluntarily changed the complaint of 
practices before trial, was not likely to 
resume them, and granted no relief.



75a

judgment, decertifying the class, enjoining 
the defendant from practicing racial 
discrimination against the four named 
employees, and awarding back pay in 
amounts to be determined in later proceed­
ings before a master, as well as incidental 
relief. The court also awarded fees, 
costs, and expenses to plaintiffs' counsel. 
The balance of the plaintiffs' claims were 
dismissed. Defendant's principal claim on 
appeal is that the finding of facial 
discrimination by exclusion of the four 
black employees from sales positions was 
clearly erroneous.

V  continued
Especially in view of our vacation of the 
district court's order, we consider the 
finding mere dictum and unappealable. 
The plaintiffs, we note, agree that no appeal could be taken from the finding.



76a

II.
In establishing a prima facie case of 

racially discriminatory treatment in 
violation of Title VII, a plaintiff must 
show by a preponderance of the evidence 
that he applied for an open position for 
which he was qualified, but was rejected 
under circumstances that give rise to 
an inference of unlawful discrimination. 
Texas Dep't of Community Affairs v. Bur- 
dine, 450 O.S. 248, 253 ( 1980); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Once a plaintiff makes out his 
prima facie case, the burden of production, 
not the burden of persuasion, shifts to the 
defendant "to articulate some legitimate, 
non-discriminatory reason for the employ­
ee's rejection". McDonnell Douglas Corp., 
411 O.S. at 802. If the employer satisfied 
its burden of production, the plaintiff 
must have the opportunity to show that the



77a

proffered reason is merely a pretext to 
mask intentional discrimination. A plain­
tiff retains the burden of persuasion to 
show that the employer was more likely 
motivated by an illicit discriminatory 
reason than the one proffered or that the 
proffered explanation is unworthy of 
credence. Burd i ne, 450 U.S. at 256;
McDonnel Douglas Corp., 411 U.S. at 804-05.

At trial, the plaintiffs contended 
that they were qualified for sales posi­
tions by their training and work as truck 
drivers and in the warehouse. The defen­
dant challenged this contention. It 
claimed that at least since 1967, infor­
mally, and since 1976, formally, it had 
required for salesmen two years of sales 
experience, or two years of managing a food 
related business, or two years of college. 
In addition, the defendant sought persons 
who were neat in appearance, personable,



78a

and articulate, although these attributes 
are not at issue in the case. The defen­
dant did not conduct a study to see whether 
these criteria were necessary for a pro­
spective salesman's future success; never­
theless, because of the specialized selling 
involved, the defendant believed that these 
criteria would help it select successful 
salesmen who had the requisite math and 
verbal skills and who would responsibly 
carry out their selling duties.

The plaintiffs attacked defendant's 
insistence on these qualifications as a 
pretext. They claimed that many of defen­
dant's salesmen did not meet the qualifica­
tions for the job. The district court 
agreed. It found that white employees and 
applicants had been selected as salesmen 
with no prior sales experience or education 
beyond high school. It further found that 
the most useful sales experience was



79a

working in the warehouse and order depart­
ments, and driving trucks, in which jobs it 
said an employee could learn the defen­
dant's product line and the means of 
processing orders, and become familiar with 
the defendant's customers. Accordingly, 
the court concluded that four of the 
claimants established prima facie cases of 
unlawful discrimination. Having found that 
the defendant's standards were not followed 
for hiring white salesmen, the district 
court concluded that the defendant offered 
no acceptable explanation for its failure 
to employee the plaintiffs in sales, and 
gave judgment for three plaintiffs and one 
purported class member.

III.
We have previously condemned the 

practice of adopting the prevailing party's 
proposed findings of fact and conclusions 
of law, and we repeat that admonition here.



80a

EEOC v. Federal Reserve Bank of Richmond, 
No. 81-1536, et al (4th Cir. 1983); Holsey 
v. Armour & C o No. 81-1312 (4th Cir. 
1983); White v. Carolina Paperboard Corp., 
564 F. 2d 1 073 , 1 082-83 (4th Cir. 1977);
Chicopee Mfg. Corp. v. Kendall Co., 288
F. 2d 719 (4th Cir. 1961); THE SEVERANCE, 
152 F.2d 916 (4th Cir. 1945). Federal Rule 
of Civil Procedure 52(a) requires the 
court in non-jury cases to find the facts 
specially and to state separately its 
conclusions of law. The adversarial 
zeal of counsel for the prevailing party 
too often infects what should be disinter­
ested findings to entrust their preparation 
to the successful attorney. Although 
findings of fact should not be set aside 
unless clearly erroneous, where, as here, 
plaintiffs' counsel has prepared the 
findings and the district court has adopted 
them verbatim, we accord the findings less



81a

"weight and dignity [than] ... the unfet­
tered and independent judgment of the trial 
judge." THE SEVERANCE, 152 F.2d 916, 918
(4th C i r. ) , cert. denied 328 U.S. 853 
( 1945). In the case at hand, we hold, as 
explained later, the use of the practice is 
a reason to remand.

IV.
In finding that the prevailing plain­

tiffs were qualified to be salesmen by 
their truck driving and warehousing experi­
ence, a key finding, the district court 
relied upon a supposed admission by the 
defendant's vice president for sales, 
Charles Black. The court found that 
Black admitted at trial that defendant's 
truck drivers gain the same or more sig­
nificant knowledge with respect to de­
fendant's products from their work than 
defendant's salesmen have. From the 
admission it had found, the court further



82a

found that truck driving was among the most 
useful qualifying experiences for preparing 
someone for a sales position and that truck 
drivers for the defendant are qualified 
to become sales trainees.

Inspection of the record of Black's 
testimony, however, fails to reveal such 
admission. On direct examination, plain­
tiffs' counsel asked Black whether truck 
drivers become familiar with the defen­
dant's products. Black answered that the 
drivers should become familiar with the 
products, and, in response to a further 
leading question, responded that they may 
well know as much as the salesmen do. 
Plaintiffs' counsel then questioned, "Why 
isn't the experience of the driver not 
sufficient?" To which Black, just as 
vaguely, answered, "I didn't say it 
wasn't."

That this answer was not an admission



83a

is shown by Black's testimony on cross
examination immediately following:

Alexander (defendant's counsel): Now
you have testified that truck drivers 
require [sic] a knowledge of your 
product. It that right?
Black: They require [sic] a knowledgeof knowing the label on the product as 
far as delivery, not the actual 
product.
Alexander: Is there a difference
between the knowledge of the product 
that the driver requires [sic] and 
knowledge of the product that the 
salesman has to have?
Black: Oh, yes, definitely so. The
salesman has to know the cost per 
serving, the number of ounces in a 
can, how many servings you can get out 
of a can. He has to know the differ­
ent grades of items that a country 
club uses versus what a hot dog 
stand would use. You definitely 
wouldn't use the same type product. 
We have everything from extra-fancy 
merchandise down to standard merchan­
dise, and you have to know the cus­
tomer as well as the competition 
in the area of items you're going to 
use to compete to get the business.
Black's uncontradicted and unimpeached

explanation leaves no substantial support
for the district court's findings on the



84a

preparatory value of truck driving. See 
Evis Manufacturing Co. v. F.T.C., 287 F.2d
8 3 1 , 8 4 2 , cert_._d , 368 U.S. 824
(1961). Cf̂ . 7 J. Wigmore, Evidence In 
Trials at Common Law & 2094 (Chadbourn rev. 
ed. 1978)(completeness doctrine). Even 
more importantly, the testimony of plain­
tiff Cuthbertson, who had by then worked as 
a salesman for almost three years, cor­
roborated Black's testimony, and not the 
plaintiffs' theory, as to what relevant 
experience truck driving may provide for 
later sales work. He testified that he was 
not qualified to work as a salesman either 
by his truck driving and warehouse experi­
ence or by his high school education. 
Cuthbertson also testified on the compli­
cated nature of his sales duties, lending 
support to the defendant's contention that 
post-secondardy education or sales or food 
management experience was desirable prep­



85a

aration for a career in sales.
At trial, the defendant satisfied its

burden of production by articulating a
legitimate, non-discriminatory reason for
rejecting the plaintffs; that none of the
plaintiffs satisfied its qualifications for

2/a sales position. The plainitffs attempted 
to rebut this defense by showing that the 
defendant's application of its qualifica­
tions was pretextual and that their own 
qualifications were sufficient. The dis­
trict court found, relying on plaintiffs' 
trial exhibit 22, that "the education and 
prior experience of salesmen demonstrate 
that neither college training nor prior 
sales experience has been a determining 
factor in their selection." That plain­
tiffs' exhibit compiles the names of 97

2/ We assume, however, as later ex­
plained, that the plaintff Worthy was 
qualified.



86a

people who worked as salesmen between 
1972 and February 1978. Of that number, 
the plaintiffs in their brief do not con­
tend that 76 did not meet the defendant's 
standards. The remaining 21, and this is 
one of the two crucial points in their 
case, plaintiffs claim did not possess the 
qualifications sought by the defendant. 
After reviewing the evidence, however, we 
conclude that plaintiffs have not proved 
that the stated criteria were not applied.

Of the 21 salesmen who it is argued 
did not meet the defendant's criteria, 
plaintiffs' evidence shows two had two or 
more years of college education (Orbo, 
Miller), and seven had two or more years 
prior sales experience (Gardner, P., Bunn, 
Hartley, Heath, Conder, Sapozziello, 
Bostic). Three salesmen had prior experi­
ence in food management (Shaw, Johnson, 
Whitaker). Thus, these twelve salesmen all



87a

met the stated qualifications.
For four salesmen,, plaintiffs' evi­

dence allows no inference from their prior 
experience because it fails to reveal 
previous job positions they had held 
(Amos, blackburn, J.w., Hall and Green). 
The burden is on the plaintiffs to estab­
lish pretext, Burdine p. 256, and the 
plaintiffs did not show the prior job 
experience as just mentioned above. Even 
for these four, we note in passing unex­
plained and apparently credible evidence 
which the plaintiffs did not develop that 
Amos had previously been employed for 24 
years by R. P. Turner Company and Smith 
Drake Wholesale Company (other testimony in 
the record indicates these are food com­
panies); Blackburn had been vice president 
and general manager of his own company and 
had been employed four years by Surry 
Hardware Company; and Green had been



88a

employed for two years by Kent-Coffey. 
Additionally, Hall was employed as a 
salesman in 1959, before the effective date 
of the 1964 Civil Rights Act.

Two of the 21 claimed not to have the 
specified qualifications when they were 
hired by the defendant in sales were Hilton 
and Gardner, W. But they entered sales 
only after two or more years in the defen­
dant's order department, which is a part of 
sales, and Gardner was made a salesman in 
1 963, before the effective date of the 
1974 Civil Rights Act, as was Hilton, both 
of them being placed in sales before 1967.

One other man (Harris) was hired in 
1975, apparently in sales, although the 
plaintiffs' exhibit lists his employment as 
"sales-order department." His previous 
employment was not in the food business nor 
as a salesman according to plaintiffs' 
exhibit. Nevertheless, a defendant's



89a

exhibit which was credited by the court 
showed that Harris had three years of 
college and was a part-time salesman while 
in college.

The remaining two of the 21 salesmen 
are Caudle and Crowell. Crowell was placed 
in sales in 1958, well before the date of 
the 1964 Civil Rights Act, and Caudle 
was made a salesman in 1973, having pre­
viously worked in the defendant's warehouse 
order department and as an inside salesman 
from 1966 until 1973.

Thus, we see that the evidence with 
respect to the 21 people upon whom the 
plaintiffs depend for their case does not 
support any inference of pretext. Rather, 
it shows that since 1967, and perhaps even 
before that, when the defendant commenced 
insisting on its qualifications for sales­
men, that those hired or transferred 
into sales have met the qualifications. We



90a

should note here that the plaintiffs make 
no issue of one Bruce Fant, hired in 1975, 
made a sales trainee in 1977, and termi­
nated three months later. Apparently they 
accept the defendant's explanation that he 
was the most qualified of a number of 
applicants, although he did not meet the 
company's stated standards.

To underscore its finding that the 
defndant did not consistently apply its 
standards for beginning salesmen, the 
district court found that the company 
officers and supervisors in charge of sales 
were not qualified according to the stated 
standards (Black, Plyler, Richardson, 
Oren Biggers, Bill Gardner, and Rhudy 
Johnson). This finding also is contrary to 
the record. Black was employed by the 
company in 1952 and went into sales in 1958 
in the order department, where he stayed 
for two years, becoming a sales representa­



91a

tive in 1960, all well before the passage 
of the 1964 Civil Rights Act, He became 
sales manger in 1967 and vice president in 
charge of sales in 1975. Plyler had 
more than three years of college, majoring 
in business, and was a salesman for Caro­
lina Produce for three years; he was 
employed in 1949 as a salesman. Richardson 
was a salesman for more than three years 
for Frozen Foods, Inc. Oren Biggers had at 
least two years of college. Bill Gardner 
was employed in 1 957 and worked in the 
order department for six years before going 
into sales in 1963, all well before the 
passage of the Civil Rights Act of 1964. 
Rhudy Johnson was the owner of his own food 
business, Rhudy's Food Mart, for three 
years prior to being employed in 1 973.

Based upon the plaintiffs' evidence, 
the key parts of which we have just ana­



92a

lyzed, the district court found that 
the defendant inconsistently applied its 
job criteria. The court's error rests on a 
fundamental mistake. Noting that the 
defendant did not question that most of its 
salesmen had no more than high school 
education and that most had no sales 
experience, the district court disregarded 
the defendant's stated rule that these 
criteria were applied disjunctively, and 
applied them conjunctively in reaching 
its decision.

After reviewing plaintiffs' exhibit 
22, we find that nearly all of the employ­
ees hired or promoted into sales satisfied 
the rquirement of either two years of 
post-secondary educaion, two years of 
sales, or two years of management experi­
ence relating to food.

Having reviewed the findings concern­
ing the pretextual application of the



93a

defendant's standards and the findings that
the plaintiffs' on-the-job training was an
acceptable substitute for the defendant's
expreience requirements, we have "the
definite and firm conviction that a mistake
has been committed," United States v.
United States Gypsum Co., 333 U.S. 364, 395
(1947). We conclued that these findings of
the district court are clearly erroneous. 

3/FRCP 52(a).

3/ Appellees conceded, as they were 
obliged to, at oral argument that this case 
basically involves alleged disparate treat 
ment of the black plaintiffs. However, 
they also contend that the qualifications 
that the defendant specified for its 
salesmen had a disparate impact on blacks.

Neither in their complaint nor in 
their pretrial statement of contentions and 
issues, did the plaintiffs put forward a 
theory that the defendant's requirements 
had a disparate impact on blacks so that it 
might constitute illegal conduct by the 
defendant. The district court's opinion 
was obviously based on disparate treatment 
by the application of the defendant's 
stated qualifications. For example, in n.5 
of its opinion, the district court stated:



94a

3/ continued
"The Court, therefore, refused to accept 
defendant's assertions that the criteria 
indicated have been consistently applied."

Nevertheless, the district court's 
findings note that the defendant failed to 
prove the legitimacy of seeking salesmen 
with educational training beyond high 
school and remarkably enough the defendant 
was similarly condemned even for using 
prior sales experience as one criteria. 
Such language implies that the defendant 
had an affirmative burden of proof to show 
the job relatedness of its qualifications. 
The Supreme Court had held, however, that 
defendants in disparate treatment cases do 
not carry the burden of proof to show why 
aplaintiff was rejected from a position. 
Texas Dep't of Community Affairs v. Bur- 
dine, 450 U.S. 248, 256 (1980). The burden 
of proving intentional discrimination 
always remains on the plaintiff in a 
disparate treatment case, although, after 
a plaintiff establishes a prima facie case, 
the defendant does have a burden of produc­
tion "to articulate some letigimate, 
non-discriminatory reason for the employ­
ee's rejection." McDonnell Douglas Corp. v. 
Green, 411 U.S. 792, 802 (1973).

Because of the findings of the dis­
trict court which may seem to go to job 
relatedness, which we note parenthetically 
are supported by no substantial evidence 
called to our attention, we have sought to 
determine whether the plaintiffs estab­
lished in the record a prima facie case 
because of disparate impact on the stated



95a

We turn now to the individual cases of 
the plaintiffs who received back-pay awards.

3/ continued
qualifications. At trail the plaintiffs 
adduced testimony from their statistical 
expert who analyzed the availability and 
use of blacks in the defendant's sales 
positions between 1972 an 1978. His opinion 
evidence was calculated to show the under­
utilization of blacks as salesmen for the 
years 1972-1978 by a statistical analysis. 
He did not testify there was any disparate 
impact on Biggers' standards on blacks. 
Thus, there was no showing of disparate 
impact on blacks by defendant's use of its 
job qualifications, and the plaintiffs did 
not establish a prima facie case of such 
disparate impact which might have served to 
shift the burden of proving job relatedness 
to the defendant. We conclude, therefore, 
that the district court's language is not 
the basis for an alternative holding in this case.

We also note that the district court 
accepted in passing plaintiffs' statistical 
evidence, but it did not discuss defen­
dant's contrary testimony, and did not 
base its decision on the evidence of 
plaintiffs' statistician. Accordingly, we have no occasion to pass on the weight, 
if any, which should have been given to his testimony.



96a

A. Carl Cuthbertson
Carl Cuthbertson started working for 

the defendant as a warehouse worker in the 
fall of 1970. He was then 17 yeas old and 
had recently been graduated from high 
schooL. In 1971 Cuthbertson enrolled in a 
local community college. In 1972 he asked 
for, and he received, a promotion to 
position of truck driver. He attended the 
community college the summer and fall terms
of 1971 and the winter term of 1972
He did not attend again for two years
until the spring term of 1974. He attended 
that term and the summer and fall terms 
of 1974. He next attended the spring and 
mummer terms of 1975, and did not attend 
again until the summer term of 1976, 
which he completed in September of that 
year. He college training was inter­
rupted, then, in 1972-74 for two years;



97a

in the winter of 1975 for three months; and 
in 1975-76 for nine months.

The district court's findings on which 
it based Cuthbertson's eligibility for 
promotion are his two years' work in the 
warehouse and his subsequent experience as 
a truck driver beginning in 1972.

The district court's conclusion that 
Cuthbertson's experience in the warehouse 
and as a truck driver qualified him for 
promotion to a salesman is erroneous for 
two reasons. First, he had no experience in 
sales or food management. Second, and just 
as important, Cuthbertson admitted in 
his testimony that he was not qualified for 
the job by his warehouse and truck driving 
experience.

The district court found, and it seems 
to be agreed, that Cuthbertson had com­
pleted the equivalent of 1-1/2 years 
of college study beyond high school, in



98a

September 1976, just before he was promoted 
to sales in November of that year. Cuth- 
bertson had also enrolled in courses during 
the period 1971-1976, which, had he com­
pleted them, would have made enough hours 
to complete two years of college work. 
He withdrew from a part of such courses and 
took an incomplete grade in the others.

The district court made no specific 
finding as to when Cuthbertson completed 
his college training, although it may be 
inferred from its opinion that it fcund 
that training was completed in September 
1976 ("Cuthbertson also completed 1-1/2 
years of study behond high school before 
his promotion to sales.")

We think that such an inference is the 
most logical one from the record. The 
testimony, other than the college tran­
script, with reference to Cuthbertson's 
college training, including the completion



99a

date of that training, is confused. 
A vice president of the college, however, 
testified without refutation that Cuthbert- 
son's college transcript, which is a 
part of the record, reflected the records 
of the college, and and that must be 
accepted as the fact. Cuthbertson, then, 
completed his college training in September 
1976 and was promote to sales in November 
of that year. No issue is made of the two 
months' period between Septemer and Novem­
ber; neither was there any other promotion 
to, or hire into, sales during that period 
which has been brought to our attention. 
Whether the defendant accepted Cuthbert- 
son's enrollment in certain courses as the 
equivalent of the 1/2 year of college 
training he did not receive credit for 
is not shown by the record. Indeed, that 
subject was not explored. If the defendant 
in fact accepted whatever college training



100a

Cuthbertson had as the equivalent of two 
years, in September 1976 he met the stan­
dards the company had set for its salesmen. 
Even if the company promoted Cuthbertson 
before he met the company's standards, it 
preferred a black employee rather than a 
white one, so there would be no violation 
of the Civil Rights Act in the context 
presented here on that account.

Cuthbertson, in his testimony, claimed 
that he told members of the defendant's 
management in 1974 and 1975 that he had 
finished his education. We assume that he 
meant that he had completed as much of its 
education as he was going to. While 
his statement is entirely inconsistent with 
and is belied by his reentry into the 
community college in 1975 and again in 
1976, assuming that he did make the state­
ment as claimed, he had not completed 
two years of college work on either of



101a

those occasions, and thus did not meet 
defendant's standards for the job.

Cuthbertson's case fails because he 
was not qualified for the position he 
sought, McDonnell Douglas, p . 802, at
any time earlier than 1976, when he was 
promoted, even if he met the company's 
standards at that time. His judgment is 
reversed.
B. Calvin Gregory.

Calvin Gregory began working for the 
defendant in 1 973 as a truck driver. 
Gregory had finished high school and about 
six months of college when he started 
driving. He also had some previous experi­
ence as a clerical worker in the Army.

Gregory testified tht he had asked 
defendant's personnel manager about being 
promoted to sales before 1977 but had been 
told that he was unqualified. In 1977, 
Gregory signed an interview list for a



102

posted vacancy to be considered as a sales 
trainee. After learning that the posi­
tion required accepting a reduction in pay 
and relocating, Gregory withdrew his name 
from consideration because he did not 
desire to move or to quit his schooling. 
The district court found that Gregory would 
not have withdrawn if he had known what 
salary he would have earned after finishing 
the training program, despite the fact that 
Gregory testified that he was so advised: 
"He pretty well gave me a summary of it" 
["how much a salesperson was making"]. On 
May 31, 1977, Gregory filed a charge of 
discrimination with the EEOC. He was fired 
for not showing up for work in 1980, which 
is not an issue in the case.

Gregory was not a named plaintiff but 
was a member of the putative class which 
was decertified in the judgment of the 
district court. The defendant defended



103a

against Gregory's claim on the ground that 
he did not possess the qualifications 
reuired for a sales job. The district 
court entered findings and conclusions 
concerning Gregory and awarded him back 
pay.

At trial, the parties disputed whether 
Gregory was truly interested in a sales job 
when he signed up for an interview in March 
1977. Assuming that Gregory was inter­
ested, and even assuming, contrary to the 
record, that he was not advised of the pay, 
he failed to show that he met the qualifi­
cations the defendant set for the job. 
Gregory had no experience in sales or food 
management, and he had only six months of 
post-secondary education. Accordingly, we 
conclude that Gregory failed to establish 
a prima facie case, and the district 
court's judgment awarding him back pay must 
be reversed.



104a

C.  F re d  Johnson

Fred Johnson started working for the 
defendant as a truck driver in July 1969, 
and continued in that job until 1977, when 
he was fired at Worthy's instance either 
for discourtesy to customers or insubordi­
nation for failure to make a delivery. 
Before working for the defendant, Johnson 
had completed his high school education and 
had experience as a taxicab driver and as a 
mechanic and truck driver. Johnson had no 
experience in sales or food management, 
and only some additional college study, 
probably less than a year.

Johnson testified that he applied for 
a sales job for the first time in 1974, and 
that he asked for consideration again in 
January 1976. He filed charges of dis­
crimination with the EEOC on February 6, 
1976.. The court below concluded that 
the defendant's failure to promote Johnson



105a

to a sales position resulted solely because 
of Johnson's race. The court characterized 
the defendant's insistence that this 
plaintiff lacked the qualifications for a 
sales job as "simply a ruse." Johnson, 
however, who had no sales or management 
experience and only some additional college 
education, did not show that he was quali­
fied for the job he sought. Thus, the 
district court's award of back pay to him 
must be reversed.
D. Brown Worthy

Brown Wrothy began working for the 
defendant in 1963 as a warehouse laborer. 
Within a year, he started to drive the 
defendant's trucks, and by 1 968 he was 
promoted to relief driver. In 1979, he was 
made a route supervisor.

In 1968, Worthy, on behalf of himself 
and other black truck drivers, met with the 
defendant's management to discuss what they



106a

claimed were the company’s discriminatory 
practices and their desire to improve 
the opportunities of blacks to become 
salesmen.

The district court found that the 
defendant offered Worthy a job in sales in 
1970, some two years after the 1968 meet­
ing. This finding is not clearly 
erroneous. Worthy testified that after 
discussing the change in jobs with his 
family and the possible need to relocate, 
he decided, a week or so later, that he 
would accept the position, and notified the 
defendant to that effect. He further said 
he was told, however, that his promotion 
would have to await the training of his 
replacement. He continued, that, after the 
replacement was trained, the date of 
the completion of such training being not 
mentioned in his testimony, he notified his 
immediate supervisor of that fact but never



107a

heard anything further from the company. 
Other than the evidence we have just 
related, there is nothing in the record to 
support the finding by the district court 
that Worthy "continued his efforts [com­
mencing in 1970] to promote to sales until 
after his EEOC charge on February 6, 1976." 
Indeed, Worthy testified that one Biggers 
offered him a job in sales in 1975 or 1976, 
probably in 1975, but that he turned down 
the offer. A third offer of a job in 
sales was made to Worthy in 1976, after he 
had filed his EEOC charge in February, but 
he rejected that offer also. And he 
did not sign up for a 1977 posting of an 
opening in the sales department. The 1975 
job offer to Worthy, which he recounted 
in his testimony, is not discussed by the 
district court in its opinion.

The district court found that Worthy 
was qualified for the sales position by his



- 108a

education and training. The finding that 
he was qualifed by his training is clearly 
errnoeous, as we have before set out, 
because he had neither had sales experience 
nor been engaged in the management of 
a food business. While there is some doubt 
as to what date Worthy completed his two 
years of colllge training, for the purpose 
of this opinion, since the defendant 
offered him a sales job in 1970, we will 
assume that he had completed his two years 
of college at that time.

Worthy has not established that he was 
more qualified than anyone who was given a 
sales job between 1970 and 1976. The fact 
that he may have been equally qualified 
is not enough to establish a prima facie 
case, for "... the employer has discretion 
to choose among equally qualified candi­
dates, providing the decision is not based 
on unlawful criteria." Burdine at p. 259;



109a

EEOC v. Federal Reserve Bank of Richmond,, 
et al. , No. 8 1 - 1 536 , et al (4th Cir. 
1983).

Thus, absent other evidence, Worthy 
has not established a prima facie case 
under Burdine and McDonnell Douglas, for he 
did not establish that anyone of lesser 
qualifications was given a job as a sales­
man during the period in question.

But the fact remains that Worthy was 
offered a sales job in 1970 and again in 
1976, and may well have been offered the 
job on another occasion in 1975. The 
Burdine and McDonnell Douglas rules for 
establishing and countering prima facie 
cases completely aside, we think that 
Worthy should be allowed to try to prove 
that, for any vacancy which may have 
occurred within the pertinent period, 
he was not given the job, but his promotion 
was delayed, for discriminatory rather than



110a

neutral reasons. The record simply con­
tains no explanation of why the defendant 
did not give Worthy the job in sales, when 
it was offered to him in 1970, or there­
after, providing he had a continuing 
interest. While the record does not 
support the finding of Worthy's continuing 
interest in the sales job between 1970 and 
1976, there is his testimony which would 
tend to show an interest which continued at 
least until he spoke to his immediate 
supervisor, some time after the training 
of his replacement had been completed. The 
number of communications on that subject by 
Worthy to the defendant, if more than one, 
is not shown by the record. Neither 
is the date of any such communication. All 
of these matters, of course, are relevant 
because of applicable statutes of limita­
tion under Title VII and §1981, as well as 
going to the reason for not promoting



111a

Worthy. Worthy's turndown of the offer of 
a sales job, apparently in 1975, likewise 
deserved to be taken into account.

We think the record is too incomplete 
for us to make with confidence findings 
with respect to discrimination or to the 
statutes of limitations and are more 
appropriately the province of the district 
court in the first instance. Even more 
importantly, the findings of fact and con­
clusions of law were not prepared by the 
district court, rather by Worthy's attor­
ney. In view of the unclear record on tis 
point and the method of arriving at the 
findings and conclusions of the district 
court, the judgment in favor of Worthy must 
be vacated and remanded for further con­
sideration by the district court. On 
remand, all facts relating to any delay in 
offering the job to Worthy should be 
developed, and either party may introduce



112a

evidence relevant to that question. At the 
conclusion of the remand porceedings, the 
district court will prepare its own find­
ings of fact and conclusions of law. 
While, in Chicopee, we have recited that 
there is authority for the submission to 
the court of proposed findings of fact and 
conclusions of law by the attorneys for the 
opposing parties in the case and the 
adoption of such of the proposed findings 
and conclusions as the judge may find to be 
proper, that same case further stated that 
"there is no authority in the federal 
courts that countenances the preparation of 
the opinion by the attorney for either 
side," and that "that practice involves the 
failure of the trial judge to perform his 
judicial function," justifying a reversal 
and a remand for further proceedings. 
Chicopee, p. 724-725. The district court in 
the case at hand did not merely adopt such



113a

of the proposed findings and conclusions as
it found to be proper; it adopted 24 pages
of them verbatim, with only a few inconse-

4/quential charges. We express again our 
strong disapproval of this practice. Even 
if the vacation of the district court's 
order is not required by the practice, it 
is permitted because of it, and we are of 
opinion it is an additional reason to 
remand the judgment in favor of Worthy.

With the possible exception of Worthy, 
all of the grounds on which an injunction 
could have been based have failed, so it 
follows that the injunction must be dis­
solved, and that part of the order awarding 
an injunction is reversed. Even if Worthy

4/ On p. 1 it deleted "PLAINTIFFS' 
PROPOSED" before "FINDINGS OF FACT AND 
CONCLUSIONS OF LAW": on p. 6, line 5, it
changed "determinant" to "determining," and 
changed "and” to "to" in ; and on p. 8 it 
changed Wto" to "and" in para. 14, line 6, 
and added a "d" to "Discourage" in para. 16, 1. 1.



114a

succeeds on remand to the extent that he 
is awarded back pay for some period ending 
in 1975 or 1976, he declined an offer of 
employment as a salesman in 1976, as well 
as probably in 1975, and did not sign a 
posting for a salesman's vacancy in 1977. 
Within his own department, Worthy has been 
quite successful and has not been discrimi­
nated against. He is a supervisor. There 
is no indication that any racial discrimi­
nation which may have existed in the 
company's failure to promote him to a 
salesman's job some time between 1970 and 
1976 would be repeated. If anything, the 
contrary appears.

VI.
We do not decide any question of

attorneys' fees and related expenses at
this time, and the district court should
reconsider that matter on remand. For that



115a

court's guidance on remand, however, we do 
note that the attorneys' fees presently 
awarded are necessarily too large. Three 
of the four plaintiffs' cases have been 
reversed, and the fourth has been remanded. 
The injunction has been dissolved. The 
class action was terminated favorably to 
the defendant in the district court, and 
most of the plaintiffs' cases were there 
terminated favorably to the defendant. 
Worthy's case does not depend upon, and 
never did depend upon, vast amounts of 
research throughout the company files, much 
of which was pointed at tending to prove 
other cases than Worthy's. Neither does it 
depend upon the testimony of the expert 
witness. Should Worthy succeed on remand, 
the attorneys' fees awarded should be 
for the time and effort devoted to his 
claim. We realize, of course, that there 
will be some unavoidable overlap. For



116a -

exam ple,  p l a i n t i f f s '  e x h i b i t  22 was r e l e ­

v a n t  e v id e n c e  i n  W o r t h y ' s  case as w e l l  as 

o t h e r s ,  but  t h i s  i s  no t  to  say t h a t  a t t o r ­

n e y s '  fe e s  s h o u ld  be awarded f o r  the  e f f o r t  

expended on b e h a l f  o f  a l l  th e  p l a i n t i f f s '  

c l a i m s  w hich  have f a i l e d  f o r  one re a s o n  o r  

a n o t h e r  d u r i n g  the  c o u rse  o f  the p r o c e e d i n g .

The judgment o f  the  d i s t r i c t  c o u r t  i s  

a c c o r d i n g l y

REVERSED IN  PART, and 
VACATED and REMANDED 
IN PART.



117a

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 81-2044

CARL L. CUTHBERTSON, BROWN T. WORTHY, 
FRED JOHNSON, JR. CALVIN GREGORY,

Appellees.
and

JAMES H. LITTLE, JOHN CLAY, JAMES 
W. BALDWIN, BOBBY CAMPBELL, JIMMIE 
ANDERSON, EDDIE HICKS, JAMES GILL, 
TRUEMAIN MAINOR, CHARLES NEAL, 
HENDRICK ROBINSON, WILLIE FRAZIER, JR. ,

Plaintiffs,
-vs-

BIGGERS BROTHERS, INC.,

CALVIN GREBORY,
Appellant, 

Intervenor.

O R D E R

There having been a request for a poll 
of the court on the petition for rehearing



118a

en banc, and Judges Winter, Phillips, 
Murnaghan and Ervin having voted to rehear 
the case en banc, and Judges Russell, 
Widener, Hall, Sprouse and Chapman having 
voted against rehearing the case en banc?

While leave to file the petition for 
rehearing is granted, it is accordingly 
ADJUDGED and ORDERED that the petition for 
rehearing en banc shall be, and the same 
hereby is, denied.

The panel has considered the petition 
for rehearing and being of opinion it is 
without merit;

It is accordingly ADJUDGED and ORDERED 
that the petition for rehearing shall be, 
and the same hereby is, denied.

With the concurrences of Judges Russell 
and Hall.

For the Court



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