James v. Stockham Valves & Fittings Company Post-Argument Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 75-2176

PATRICK JAMES, et al.,
Plaintiffs-Appellants 

-vs -
STOCKHAM VALVES AND FITTINGS COMPANY 

et al.,
Defendants-Appellees.

On Appeal From the United States District Court 
For the North District of Alabama

POST-ARGUMENT BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
PATRICK O. PATTERSON 

10 Columbus Circle 
New York, New York 10019

BARRY L. GOLDSTEIN 
Suite 426
733 - 15th Street, N.W. 
Washington, D.C. 20005

DEMETRIUS C. NEWTON
2121 - 8th Avenue North 
Birmingham, Alabama 35203

Attorneys for Plaintiffs-Appellants



I N D E X

Table of Authorities ii
Introduction 1

t Seniority Discrimination 3
Adverse Impact 5
Disparate Treatment: Tests & H.S. Degree 8

Requirements
The Requirement of Detailed Job Descriptions for 10

Criterion-Based Validation
Evidence Sufficient to Establish a Violation 11

of Title VII and §1981
Affirmative Action: Goals and Timetables 15
Front Pay and Full Monetary Relief 17
Interim Award of Attorneys' Fees 21
Conclusion 25

Appendix A, Patterson v. American Tobacco Company, Civil Action 
No. 101-73-R (E.D. Va. Order, January 13, 1977)

Appendix B, Lewis v. Philip Morris, Inc., Civil Action
No. 73-488-R (E.D. Va. Order November 15, 1976)

Appendix C, Russell v. American Tobacco Company, Civil Action
No. C-2-G-68 (M.D. N. Car. Order December 29, 1976)

Appendix B, Lewis v. Philip Morris, Inc., Civil Action

i



TABLE OF AUTHORITIES
Cases: Pa£e
Albemarle Paper Co. v. Moody, 422 U.S. 405 9, 11, 17-8
(1975).........................................
Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U. S. 240 (1975)..........  22
Baxter v. Savannah Sugar Refining Co., 495 

F. 2d 437 (5th Cir. 1974), cert, denied 
419 U.S. 1033 (1974)........................ 24
Bradley v. School Board of the City of Richmond

416 U.S. 696 (1974) .................... 23
Crockett v. Green, 534 F. 2d 715 (7th Cir.1976)___  16
EEOC v. Enterprise Association Steamfitters,
Local No. 638, F.Ld 579 (2nd Cir. 1976). . . 17-9
EEOC v. Local 638, Sheet Metal Workers,

532 F. 2d 821 (2nd Cir. 1 9 7 6 ) ........... 16
Fitzpatrick v. Bitzer, 49 L. Ed. 2d 614 ,(1976)___  13
Franks v. Bowman Transportation Co.,

42 4 U.S. 747 (1976)...................... 8, 15
Gibson v. Local 40, Longshoremen, 543 F. 2d
1259 (9th Cir. 1 9 7 6 ) ........................ 14, 24
Griggs v. Duke Power Co., 401 U.S. 424

(1971)..................................... ll> 13-14
Grubbs V. Butz, F. 2d (D.C. Cir. 1976),
12 EPD para. 11, 090 ........................ 24
Harrington v. Vandalia - Butler Board of 
Educ., 12 EPD para. 11, 170 (S.D. Ohio

(1976)___  14
Hill v. Western Electric Co., Civil Action

No. 7 5-375-A (E.D. Va. Dec. 1, 1976). . . 22
Jones v. Milwaukee County, 12 EPD para.

11, 070 (E,D. Wise, 1 9 7 6 ) ................  14
Kirkland v. N.Y. Dept, of Corrections,520 F. 2d 420, reh. den. 531 F. 2d 5, cert.
denied 45 USLW 3249 (1976)..................  16

li



Laffey v. Northwest Airlines, Inc., F. 2d
(D.C. 1976), 12 EPD para. 1 1 2 1 6 ........... 8

League of United Latin American Citizens 
v. City of Santa Ana, 13 FEP Cases
1019 (C.D. Cal. 1 9 7 6 ) ...................... 14

Lewis v. Philip Morris Inc., Civil Action 
No. 73-488-R (E.D. Va. 15, 1976) (App.

B . hereto).... 21-2
Meadows v. Ford Motor Co., 510 F. 2d 445

(6th Cir. 1 9 7 5 ) ............................  18
Mieth v. Dothard, 418 F. Supp. 1169 (M.D. Ala.

1976) Xper curiam opinion of three-judge 
District Court) prob. juris, noted 45
USLW 3399 (Nov. 29, 1 9 7 6 ) .................  14

Mills v. Electric Auto-Lite Co., 396 U.S. 375
(1970)---  23

Myers v. Gilman Paper Co. F. 2d (5th Cir. 1977),
13EPD para. 11, 300 .........................  1

Patterson v. American Tobacco Co, 535 F. 2d 
257 (4th Cir. 1976) Cert, denied
45USLW3330 (1976)............................  16-21

Patterson v. American Tobacco Co., 8EPD para.
9722 (E.D. Va. 1974).................................  21

Patterson v. American Tobacco Co., 9EPd para.
9909 (E.D. Va. 1974).................................  21

Patterson v. American Tobacco Co., 9EPD para.
10,039 (E.D. Va. 1974).......................  21-2

Patterson v. American Tobacco Co., Order
entered January 13, 1977 (App. A hereto). . . 21-2

Payne v. Travenal Laboratories, Civil Action
No. D.C. 72-13-5 (N.D. Miss. Dec. 8, 1976). . 22

* Pettway v. American Cast Iron Pipe Co,
494F. 2d 211 (5th Cir. 1 9 7 4 ) ...............  19

v Robinson v. Union Carbide, 538 F. (Jan. 10
1977)---  5-7Russell v. American Tobacco Co., Civil Action 

No. C-2-G-68 (M.D.N. Car. Dec. 29, 1976)
(App. C hereto) ........................

Page

- iii -

21*-2



Sabala v. Western Gilette, Inc., 516
F. 2d 1251 (5th Cir. 1975) .............

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

Shield Club v. City of Cleveland, 13 FEP 
Cases 1373, 13 FEP Cases 13 94 (N.D.
Ohio 1976) ..............................

Stewart v. General Motors Corp., 542
F. Ld 445 (7th Cir. 1976)...............

Swint v. Pullman-Standard, 539 F. 2d 77 
(5th Cir. 1976)..........................

U.S. v. City of Chicago, F. 2d (7th Cir. 
1977), 13 EPD para. 11, 380 ...........

U.S. v. Elevators Constructors, Local No. 5, 
F. 2d (3rd Cir. 1976), 12 EPD para. 11,
1 0 5 .......................................

United States v. United States Steel Corpo­
ration, 520 F. 2d 1043, Mod. on reh.
525 F 2d 1214 Cert Denied 45 USLW 3249

(1976)___
United States v. United States Steel Corpo­

ration, 371 F. Supp. 1045 (N.D. Ala.
(1973)___

Van Davis v. County of Los Angeles, F. 2d 
(9th Cir. 1976), 12 EPD para. 11, 219. . .

Village of Arlington Heights v. Metropolitan 
Housing Development Corp.................

Vogler v. McCarty, Inc, 451 F. 2d 1236
(5th Cir. 1971) ..........................

Washington v. Davis, 426 U.S. 229 (1976). .
Watkins v. Scott Paper Company 530 F. 2d 1159 

(5th Cir. 1976) cert, denied 45 USLW 
3253 .......................................

Woods v. City of Saginaw, 13 EPD para. 11,
229 (E.D. Mich. 1976) .....................

19-20

1

14

11, 18 

1, 3-4, 11 

10, 14-6

15-6

20

20
15-6

11,12, 14

15 
11-14

1, 3-8, 11 

14

- IV



Page
Statutes:
Civil Rights Attorneys' Fees Awards Act of

1976, Public Law No. 94-559, 90 Stat. 2641 . . .  22
Equal Employment Opportunity Act of 1972, Pub. L.

No. 92-261, 86 Stat. 103 (March 24, 1972). . . .  12
Fair Housing Act, 42 U.S.C. §3601 et seq........... 12
Title VII of the Civil Rights Act of 1964, (as

amended 1972) 42 U.S.C. §§2000e et seq........... passim
42 U.S.C. §1981 ..................................... 2

Other Authorities:
EEOC Guideline, 29 C.F.R. §1607.5 (b) (3) and (4) . . 10
EEOC Guideline, 29 C.F.R. 1607.11 .................  8
H.R. Rep. No. 94-1558, 2d Sess.....................  23-4
S. Rep. No. 94-1011, 2d Sess........................ 23-4
122 Cong. Rec. 12155, 12160, 12166 (Oct. 1, 1976. . 24
122 Cong. Rec. 17052 (Sept. 29, 1 9 7 6 ) ............  24

nf

V



I N T R O D U C T I _ O N

This appeal is unlike the recent generation of cases which 
have come before this Court which have concerned whether the 
substantial and good faith efforts of employers have been 
sufficient to comply with Title VII 1/ or whether settlements are 
fair to minority employees or other parties. 2/ Rather this case 
concerns blatant practices of racial discrimination which have 
long been held to be unlawful by this and other circuits. The 
illegality of these practices and the appropriate remedy for 
them has been fully briefed by plaintiffs and it is not necessary 
to repeat these arguments. 3/

This Brief reviews recent decisions which clarify the law 
pertaining to the illegality of some of the Company’s practices,4/ 
the effect of recent Supreme Court opinions concerning the standard 
required to prove racial discrimination in violation of the

17 Watkins v. Scott Paper Company, 530 F.2d 1159, 1168 (5th Cir. 
1976) cert, denied 45 USLW 3253 (1976); Swint v. Pullman-Standard,
539 F .2d 77, 81 (5th Cir. 1976).
2/ Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 
1976); Myers v. Gilman Paper Co., F.2d (5th Cir. 1977), 13 EPD 
para. 11,300.
3_/ The plaintiffs have not included the numerous opinions which 
have in the last year simply adopted or followed without any modi­
fication this Court's landmark opinions upon which the plaintiffs' 
based their Briefs.
4/ Seniority discrimination and the use of tests and H.S. education 
requirements (disparate treatment, adverse impact and validation).

1



Constitution of or 42 U.S.C. §1981, 5/ and certain requirements 
for effective relief.6/

5_/ This question was specifically raised during oral argument.
6_/ Goals and timetables, future pay and interim awards of attorneys' 
f ees.

2



Adverse impact

In the last year this Court has twice ruled that evidence 
less substantial than that introduced in this case was sufficient 
to meet plaintiffs' burden of establishing adverse impact and to 
shift the burden to the defendant to demonstrate that the test has 
a "manifest job relationship" 45/ Watkins v. Scott Paper Co.,
530 F.2d 1159, 1185-86 (1976), cert, denied 45 USLW 3253 (1976); 
Robinson v. Union Carbide, 538 F.2d 652, 659-61 (1976) mod. on 
other grounds, F.2d (Jan. 10, 1977).

Scott Paper Company had used three sets of tests to select 
employees for the apprenticeship program: the Kopas test (1958- 
1968), the Wonderlic Test (1968-1970), and the Scott Battery 
(1970 to present). There was no evidence introduced which 
showed actual scores or pass/fail rates for blacks and whites on 
the Kopas Test and the Wonderlic.\j/ This Court held, however, that 
there was a demonstration of adverse impact in light of the fact 
that few blacks had been promoted to the jobs for which these tests

15/ The plaintiffs concentrated their challenge on three distinct 
tests or educational requirements: (1) the use of the Wonderlic 
from 1965-1971 for all jobs in the plant; (2) the use of a H.S. 
education requirement from 1969 to the present for admission to 
the apprentice program; (3) the Tabaka tests instituted in 1973 
for some jobs. The Company also used the Bennett Mechanical 
Comprehension Test for selection to the apprenticeship program. 
During the period that the Bennett Test was used, until 1971, not 
one black was selected for the apprenticeship program.

16/ The district court had held that there was no demonstration of 
adverse impact, Watkins, supra at 1167.

5



were required 17/ and in light of the fact that the Wonderlic has 
been regularly demonstrated to have adverse impact in other cases, 
id. at 1185. Union Carbide Company employed a test battery to 
select employees for promotion to higher-level, hourly-paid jobs.
As in Watkins, there was no evidence introduced which demonstrated 
actual scores or pass/fail rates for blacks and whites. The Court 
stated that the "grossly disproportionate"allocation of jobs by 
race at the Company (40% of the oiler-helper jobs were black and 
only 7.1% of the maintenance employees out of a workforce which 
was 19% black) is sufficient to establish the adverse impact of the 
selection procedure. 1 8 Robinson v. Union Carbide, supra at 659-60.

The evidence of adverse impact of the Wonderlic at Stockham 
is more comprehensive than the evidence in either Watkins or 
Robinson. The appellants introduced evidence at trial demonstrating 
the "grossly disproportionate" racial allocation of jobs, the higher 
the Wonderlic score required for promotion to a job the fewer the 
proportion of blacks in the job, which under the Watkins - Robinson 
rule is sufficient to demonstrate adverse impact. However, the 
record contains additional evidence establishing adverse impact

17/ "We have recognized that a statistical showing of black 
exclusion from a particular kind of job establishes a prima 
facie case of discrimination," Watkins, supra at 1185-86.
18-9/Of course, the allocation of jobs at Stockham during the 
period when the Wonderlic was used was substantially more 
disproprotionate than at Union Carbide, see Reply Brief 19-20.

6



beyond that which was required in Watkins and Robinson, see Brief 
57-61, Reply Brief 19-21 .

The Court's opinion in Watkins also makes it clear that the 
district court erred in finding that the H.S. education requirement 
had no adverse impact. There was direct evidence in the Record 
that proportionately fewer blacks than whites had high school 
degrees, Brief at 57. In Watkins the Court held that it was clearly 
erroneous to find that the H.S. educational requirement had no 
adverse impact because the lower court ignored the general census 
reports, e.g. that in Alabama 33% of white males in the 30-40 age 
range compared to only 22% of black males have completed high 
school, id. at 1185. Here the district ignored not only the 
census reports but the evidence in the Record.20/

2jy Because of the confusion in the Record concerning the use 
of the Tabaka Tests this issue should be remanded to the 
district court with instructions concerning the standards for 
establishing the validity of a test and precluding disparate 
treatment, see Brief 60, , Reply Brief 22-9 . Compare
Watkins v. Scott Paper Co., supra at 1186.

7



Disparate Treatment: Tests and H.S. Degree Requirements

The Company by introducing the Wonderlic Test as a selection 
device in 1965, the H.S. educational requirement in 1969, and by 
its intended use of the Tabaka Tests has or will require disparate 
standards for blacks ( who previously had been excluded because of 
their race from the jobs these devices are or will be used to 
select for) and whites who were hired contemporaneously and who 
did not have to pass these requirements in order to promote. The 
plaintiffs argued that this disparate treatment, which violated 
EEOC Guideline, 29 C.F.R. 1607.11, was unlawful, Brief 54-7. The 
district court specifically refused to apply the EEOC Guideline 
(255a). This Court has since relied on the Guideline in indicating 
that disparate treatment was in violation of Title VII. Watkins v. 
Scott Paper Co., supra at 1178 N.27 (1976). Similarly, the District 
of Columbia Circuit approved the EEOC Guideline and held that the 
affected class members who had been excluded from jobs in the past 
on the basis of sex may not be required to meet standards more 
severe than those required of their male contemporaties. Laffey v. 
Northwest Airlines, Inc., F.2d, 12 EPD para. 11216 p. 5622 (1976). 
cf. Franks v. Bowman Transportation Company, 424 U.S. 747 773 n.9 (1976) .

Of course the Company may apply more strict standards to new 
employees who were not barred in the past because of their race.
Also the new requirement may amount to a "business necessity". See 
Watkins v. Scott Paper Company, supra at 1178, N.27, 1181 ("It is 
clear that business necessity is limited to those cases where an 
employer has no other choice"). However, unless a job was totally

8



restructured it is difficult to imagine how a new standard could 
be justified by "business necessity", especially if, as at Stockham, 
the incumbent white employees were not tested under the new standard 
as a condition for retaining their jobs. See Albemarle Paper 
Company v. Moody, 422 U.S. 405, 434 (1975).

9



The Requirement of Detailed Job Descriptions for Criterion-Based 
Validation, EEOC Guideline 29 C.F.R. §1607.5 (b) (3)and (4)_______

One of the major defects of the validation study performed by 
Mr. Tabaka was the failure to do a detailed job description which 
would assist in the development of criteria which "represent major 
or critical work behaviors", EEOC Guideline, 29 CFR §1607.5(b)(3). 
This failure, combined with the selection of criteria, e.g. "number 
facility", "spatial relationships", which, in effect, were no more 
than descriptions of the tests, artificially inflated the 
correlation between the test and the so-called criteria, see Reply 
Brief 24-8.

The Seventh Circuit recently emphasized the importance of 
this EEOC Guideline and ruled that the failure to perform a 
sufficient job analysis negated any purported validity which the 
defendant had shown in a criteria-related study, u.s. v. City of 
Chicago, F.2d (1977), 13 EPD para. 11,380 p. 6277.
Ironically, the same expert, Dr. Philip Ash who testified in this 
case in support of the Tabaka study, testified (unsuccessfully) in 
support of the validity study performed by Chicago, id. at 6278.

10



Evidence Sufficient to Establish a Violation of Title VII and $1981

It is well settled that Title VII prohibits employment practices 
which are discriminatory in effect unless the employer meets the 
burden of showing that those practices have a manifest relationship 
to the employment in question. Griggs v. Duke Power Co., 401 U.S.
424, 432 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 
(1975). Statistical or other evidence of a discriminatory effect 
in recruitment, hiring, promotion, job or departmental assignment, 
seniority, employee testing and selection, or other employment 
practices has therefore been held sufficient to establish a prima 
facie case of unlawful discrimination under Title VII. See, e.g.,
Swint v. Pullman-Standard, supra at 93-98; Watkins v. Scott Paper 
Co^, supra at 1185-86, 1191-92 (5th Cir. 1976). See also Stewart 
v. General Motors Corp.. 542 F.2d 445, 449 (7th Cir. 1976).

The Supreme Court's recent decisions in Washington v. navis.
426 U.S. 229 (1976), and Village of Arlington Heights v. Metro­
politan Housing Development Corp., 45 U.S.L.W. 4073 (U.S. Jan. 11,
1977), have done nothing to change this principle. In Davis. the 
Court held that a showing of de facto racial impact in public 
employment testing practices is not adequate in itself to establish 
a violation of the Fifth or Fourteenth Amendment so as to trigger 
the "rigid scrutiny" standard of equal protection review, but that 
the plaintiffs in such a case must prove a discriminatory racial 
purpose.21/ 426 U.S. at 238-44. In Arlington Heights, the Court

2_1_/The ~ Court did not define what standard of proof permits (or require^ 
a finding of discriminatory purpose, see concurring opinion of 
Justice Stevens.

11



extended this standard of proof to cases in which municipal zoning 
practices are challenged as racially discriminatory in violation 
of the Equal Protection Clause, and the Court suggested some methods 
of proving an invidious discriminatory purpose which would satisfy 
the constitutional standard. 45 U.S.L.W. at 4077-78.

In both cases, the Court was careful to confine the discrimi­
natory purpose requirement to constitutional equal protection claims 
and to exclude federal statutory claims from the reach of its 
decision. In Arlington Heights, the Court held that the evidence 
was insufficient as a matter of law to show a violation of the 
Equal Protection Clause, but the Court remanded the case for 
further consideration of the plaintiffs' claims that the same 
practices violated the Fair Housing Act of 1968, 42 U.S.C. §3601 
et seq. 45 U.S.L.W. at 4078-79. In Davis, the Court more explicitly 
stated that its decision did not apply to Title VII:

We have never held that the constitutional 
standard for adjudicating claims of invidious 
racial discrimination is identical to the 
standards applicable under Title VII, and we 
decline to do so today. 426 U.S. at 239.

Unlike the instant case, the Davis action was filed at a time 
when Title VII did not apply to the discriminatory employment 
practices there under attack,22/ and no Title VII claims were ever 
asserted. The Court in Davis explained at length the different 
standard of proof which would have applied if the same employment

2 2 / Title VII was amended to cover public employment by the Equal 
Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.
103 (March 24, 1972).

12



had been subjected to a Title VII challenge:
Under Title VII, Congress provided that 

when hiring and promotion practices disqualifying 
substantially disproportionate numbers of blacks 
are challenged, discriminatory purpose need not be 
proved, and that it is an insufficient response to 
demonstrate some rational basis for the challenged 
practices. It is necessary, in addition, that 
they be 'validated' in terms of job performance 
in any one of several ways . . . .  However this 
process proceeds, it involves a more probing 
judicial review of, and less deference to, the 
seemingly reasonable acts of administrators and 
executives than is appropriate under the Consti­
tution where special racial impact, without 
discriminatory purpose is claimed. We are not 
disposed to adopt this more rigorous standard for 
the purposes of applying the Fifth and the Four­
teenth Admendments in cases such as this. Id. 
at 246-48.

The Supreme Court went on to emphasize the continued validity 
of the principle that, in Title VII cases, "a statute [or practice] 
designed to serve neutral ends is nevertheless invalid, absent 
compelling justification, if in practice it benefits or burdens 
one race more than another . . .." Id. at 248. The language of 
Davis opinion clearly reflects the Court's view that Congress 
exercised its constitutional power to reach beyond the confines of 
the Equal Protection Clause when it enacted Title VII. See also 
Fitzpatrick v. Bitzer, 49 L.Ed. 2d 614 (1976).

Thus, the Court in Davis did not invalidate, but rather 
reaffirmed, the principle that a showing of a racially dispropor­
tionate impact is in itself sufficient to establish a prima facie 
violation of Title VII. As the Court recognized in Griggs, "Congress 
directed the trust of the Act to the consequences of employment 
practices, not simply the motivation," and even proof of "good

13



intent or absence of discriminatory intent does not redeem employ­
ment procedures" which are discriminatory in effect. 401 U.S. at 
432 (emphasis in original). The courts which have reconsidered 
these Title VII principles in the wake of Davis have found them 
unaltered. U.S. v. City of Chicago, F.2d (7th Cir. 1977)
13 EPD para. 11,380 pp. 6275, 6280; See Gibson v. Local 40, 
Longshoremen, 543 F.2d 1259, 1265 N. 9 (9th Cir. 1976?; Woods v. City of 
Saginaw, 13 EPD para. 11,229 (E.D. Mich. 1976); League of United 
Latin American Citizens v. City of Santa Ana, 13 FEP Cases 1019 
(C.D. Cal. 1976) (evidence of disproportionate impact constitutes 
prima facie violation of both Title VII and 42 U.S.C. §1981); 
Harrington v. Vandalia-Butler Board of Educ., 12 EPD para 11,170 
(S.D. Ohio 1976); Jones v. Milwaukee County, 12 EPD para 11,070 
(E.D. Wis. 1976).

Even if the Title VII standards were for some reason inappli­
cable here, the record in the instant case contains ample evidence 
of overt discrimination and racial segregation to satisfy the 
constitutional standard.23/ See Arlington Heights, supra, 45 U.S.L.W. 
at 4077-78. As the Supreme Court said in Davis, "an invidious 
discriminatory purpose may often be inferred from the totality of 
the relevant facts . . 426 U.S. at 242. The record in this
case permits no other reasonable inference.

23/ In non-Title VII public employment cases decided after Davis, 
the courts have found an unconstitutionally discriminatory purpose 
on the basis of less compelling evidence than that presented here.
See Mieth v. Dothard, 418 F. Supp. 1169, 1179-82 (M.D. Ala. 1976)
(per curiam opinion of three-judge district court), prob. juris, 
noted, 45 U.S.L.W. 3399 (U.S. Nov. 29, 1976); Shield Club v. City 
of Cleveland, 13 FEP Cases 1373, 13 FEP Cases 1394 (N.D. Ohio 1976).

14



Affirmative Action; Goals and Timetables

At the time that plaintiffs' briefs were filed the appellate 
courts were unanimous in approving affirmative relief in the form 
of goals and timetables to insure an effective remedy to victims 
of employment discrimination.24/ In the last year the judicial 
support for strong and effective remedies is even more emphatic.

The Supreme Court made clear, as this Court has previously 
done, 25/ that the courts have wide discretion to formulate injunc­
tive relief which will make the victim of discrimination "whole"? 
that discretion must be exercised consistent with the paramount 
purpose of Title VII - to terminate and remedy all practices of 
employment discrimination and their adverse effects. Franks v.
Bowman Transportation Company. 424 U.S. 747, 763-66 (1976). While 
not directly ruling on the question, this strong statement mandating 
full and effective relief certainly supports the use of goals and 
timetables. United States v. City of Chicago. F.2d , (7th Cir.
1977) 13 EPD para. 11,380 p. 6280; cf. U.S. v. Elevators Construc­
tors, Local No. 5, F .2d (3rd Cir. 1976), 12 EPD para. 11,105
p. 5109. In recent decisions the appellate courts have re-affirmed 
the necessity of providing "goal and timetable" relief where per­
sistent and substantial practices of discrimination occurred. See

24/ Brief 53; see extensive list of citations in Van Davis v.
County of Los Angeles. F.2d (9th Cir. 1976) (Tuttle, J.)
12 EPD para. 11,219 p. 5652.
25/ See e.g. Voqler v. McCarty, Inc. .451 F.2d 1236, 1238 (1971).

15



e .g . U.S. v. Elevators Constructors, Local No. 5, supra; Patterson
v. American Tobacco Company, 535 F.2d 257, 274 (4th Cir. 1976) cert, 
denied 45 U.S.L.W. 3330 (1976); 26/ Crockett v. Green, 534 F.2d 715,
718 (7th Cir. 1976); U.S. v. City of Chicago, supra; Van Davis v.
County of Los Angeles, supra.

During the past year the Second Circuit has issued several 
opinions which appear to be in conflict with previous opinions of 
that Court which have limited the use of goal and timetable relief.27/ 
Recently, the Second Circuit emphasized that none of its decisions 
prohibited this relief, but rather circumscribed it to specific 
factual situations . EEOC v. Local 638, Sheet Metal Workers, 532 
F.2d 821, 827-29 (1976). Although, the Second Circuit's rule is, we 
submit, too narrowly drawn and contrary to the rule in several 
other Circuits including the Fifth, it would not preclude the 
direction that goal and timetable relief be provided in this case 
where the Record demonstrates a "clear-cut pattern of long continued... 
discrimination", where there is a large group of non-minority 
employees who have benefited from that pattern, and where there is 
an identifiable group of employees, the black worker presently at 
Stockham, who have been denied opportunity because of that pattern.

26/ The Fourth Circuit in Patterson approved the use of "goals and 
timetables" but stated that in light of the fact that approximately 
30% of the promotions to the position since 1965 were black it was 
inappropriate to award such relief in that case. Also, unlike this 
case, the Court did not determine that the overwhelming majority of 
the supervisors were promoted from the hourly workforce.
27/ See generally the dissent of Judge Mansfield from the denial 
of rehearing in Kirkland v. N.Y. Dep't of Corrections, 520 F.2d 
420, reh. den. 531 F.2d S, cert, denied 45 U.S.L.W. 3249 (1976).

16



Front Pay and Full Monetary Relief

Two appellate courts in the past year have considered the 
question of when should the period for calculating monetary 
relief terminate: the date an order is entered or the date a
victim finally attains an opportunity to move to his "rightful 
place". Patterson v. American Tobacco Company, 535 F.2d 257 (4th 
Cir. 1976) cert. denied 45 USLW 3330 (1976); EEOC v. Enterprise 
Association Steamfitters, Local No. 638, 542 F.2d 579 (2nd Cir. 
1976).

In Patterson the Court reasoned that the dual objectives of 
the Title VII monetary award 28/, to "make whole" those employees 
who have lost earnings opportunities because an employer has 
engaged in an unlawful employment practice and to encourage com­
pliance with the law, require a monetary award for wages lost 
after an injunction is entered:

back pay must be allowed an employee from 
the time he is unlawfully denied a promotion, 
subject to the applicable statue of limitations, 
until he actually receives it. Patterson v.
American Tobacco Company, supra at 269.

The Fourth Circuit further argued that "front pay" was especially
necessary in light of the approved form of injunctive relief,
"rightful place". The courts had rejected "freedom now" relief,
the immediate placement of the victims of discrimination in the
jobs which they would have otherwise been but for discrimination,
on basically two grounds. It would be inequitable to "bump"

287 Albemarle Paper Company v. Moody, 422 U.S.405, 419-21 (1975).

17



employees from their present jobs merely because they had been
the beneficiaries of a discriminatory practice and it would be
impractical to effect a sudden, comprehensive re-alignment of the
workforce. The Fourth Circuit noted that neither of these grounds
prevented an award of full economic relief. On the contrary, the
court's rejection of full injunctive relief, placing the victim
of discrimination in the job he would have been in but for
discrimination, necessitated a continuing monetary award. Patterson,
supra at 269-70. The Second Circuit concurred:

We also agree with appellants that since 
the purpose of back pay is to make whole 
the victims of discrimination, Albemarle 
Paper Co. v. Moody, supra, the district 
court erred in setting June 21, 1973, 
the day when it ordered injanctive relief, 
as the termination date for the back pay 
award. Obviously, the injunctive relief 
did not provide for immediate entry into 
the A Branch for all identifiable victims 
of past discrimination (much less immediate 
job placement of those who had been denied 
equal job referrals). It is the date of 
actual remedying of discrimination, rather 
than the date of the district court's order, 
which should govern. Patterson v. American 
Tobacco Co. [ citation omitted ]. We agree 
with the Government that to hold otherwise 
is to encourage the union to delay the 
remedial process rather than to encourage 
the rapid achievement of the discrimination 
victims' rightful place. EEOC v. Enterprise 
Association Steamfitters, Local No. 638, 
supra at 590-91. 29/

2y The Sixth and the Seventh Circuits appear to have approved the 
cut-off of back pay as of the date that the injunctive order is 
entered. cf. Meadows v. Ford Motor Company. 510 F.2d 445, 454 (6th 
Cir. 1975); Stewart v. General Motors Corp. 542 F.2d 445, 454 (7th 
Cir.1976). However, there is no discussion of the issue in these 
opinions or any indication that the question was raised or the relief requested.

18



This Court's decision in Sabala v. Western Gilette, Inc..516
F.2d 1251 (1975) is inapposite. 3j/ The Court held that in the 
circumstances of that case the district court had not abused its 
discretion in terminating the calculation of the monetary award 
as of the date of its order. However, the Court stated that 
"although logic may suggest that these two dates should coincide 
[opportunity to move to rightful place and termination of monetary 
award], we do not think that that result is required as a matter 
of law. We think that a court of equity, in framing its relief, 
is at liberty to do what the district court has Grdered here," 
id. at 1256. 31/ Thus, the Court recognized that in some cases 
the back pay calculation could properly be extended after entry of 
the order and, in fact, on remand stated that the lower court may 
"reconsider the back pay relief granted in light of the company's 
ability to date to find jobs for the discriminatees", id. at 1266. 
The Court, it is respectfully submitted, should go a step further 
in this case. Where the Company has refused to dismantle its 
racially dual employment system until well after 1965 and where 
the Company has refused to take any steps designed to provide real 
equal employment opportunity the district court should be directed

3J/7 This opinion was filed just prior to the submission of the 
briefs in this case; however, the decision is discussed in this 
brief because of the recent decisions in Patterson and Local 638 
which may be viewed as in conflict with Sabala.
3j/ In Sabala at 266, the Court relied on the opinion in Pettway 
v. American Cast Iron Co. While Pettway was one of the initial 
decisions establishing the standard for reversing a district court's 
denial of back pay, the issue of when the calculation of back pay 
terminates was not presented to the Court.

19



to calculate back pay until the affected class members have an 
opportunity to promote to their rightful place.32/ Moreover, in 
light of the "make whole" requirement of the Title VII monetary 
award, the Court should, as a general matter, establish a rule 
consistent with that of the Second and Fourth Circuits: back pay
must be calculated until the affected class members have had an 
opportunity to promote to their rightful place.33/

££7 As the Fourth Circuit observed there are two methods for cal­
culating "front pay": to make a reasonable approximation of
future losses or to hold an annual hearing to assess the progress 
under the decree and calculate continued economic loss. Patterson 
v. American Tobacco Company, supra at 269 ; see also United States
v. United States Steel Corp., 371 Supp. 1045, 1060 n.58 (N.D. Ala.
1973).
3_y Of course, courts in the interest of saving time and resources 
may make reasonable approximations of the total economic loss suffered 
by class members. See United States v. United States Steel Corp.,
520 F.2d 1043, 1055-6, modified on rehearing 525 F.2d 1214 cert, 
denied 45 U.S.L.W 3249 (1976). This is in fact what the district 
court did in sabala; however, the lower courts should be directed 
that such approximations must include estimates for losses suffered 
after an order is entered but before there is an opportunity to move 
to "rightful place".

20



Interim Award of Attorneys' Fees

The district courts have recognized that where "litigation 
and preparation [in Title VII cases] has been over an extended 
period of time it would be unjust to require attorneys to invest 
such substantial time and effort without at least partial payment 
along the way." Patterson v. American Tobacco Company, 9 EPD para. 
10,039, p. 7288 (E.D. Va. 1974). In Patterson the district court 
after finding the defendants liable after Stage I proceedings 34/ 
and ordering injunctive relief 35/, but before determining the 
amount and allocation of Stage II liability, ordered that the 
defendants pay the plaintiffs' counsel $125,000 in interim attorneys' 
fees. This award was stayed by the Fourth Circuit pending an appeal 
in which the defendants contested the basic finding of liability.
After the Fourth Circuit affirmed 36/, the district court ordered 
the defendants to pay the initial award of attorneys' fees as well 
as a second award of $50,00037/. Similarly, the district courts 
in Lewis v. Philip Morris Incorporated 38/ and Russell v. American 
Tobacco Company 39/ each awarded interim fees of $50,000 to plaintiffs'

347 8 EPD para. 9722 (E.D. Va. 1974).
35/ 9 EPD para. 9909 (E.D. Va. 1974).
36/ Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976) 
cert. denied 45 USLW 3330 (1976).
37/ Order entered January 13, 1977, attached hereto as Appendix A.
38/ Civil Action No. 73-488-R (E.D. Va. Nov. 15, 1976), attached as 
Appendix B. This award was made after a finding of Stage I liability 
but before Stage II calculation of back pay.
3j/ Civil Action No. C-2-G-68 (M.D. N. Car. Dec. 29, 1976), attached 
as Appendix C. This award was made after a remand from the Fourth 
Circuit but before Stage II proceedings.

21



counsel.
In Patterson, Lewis and Russell the district courts did not 

make a calculation as to a final award for the time expended 
and work produced but rather determined an appropriate interim 
award which would, of course, be deducted from the final award. 
Other courts have taken evidence and made an award of fees after 
Stage I proceedings which while entered prior to the final resolu­
tion of all issues in the litigation were intended to finally 
determine fees and expenses owing for the work performed prior to 
the award. Payne v. Travenol Laboratories, Civil Action No. D.C. 
72-13-5 (N.D. Miss., Dec. 8, 1976); Hill v. Western Electric Co., 
Civil Action No. 75-375-A(E.D. Va. Dec. 1, 19 7 6 ) 40/. Although 
the approach taken in Payne and Hill satisfies the reason for 
awarding interim fees, generally it would be preferable to award 
an adequate interim amount, as in Patterson, Lewis and Russell, 
rather than attempt to make a final determination.41/

Perhaps of even more relevance for this appeal, is the Civil 
Rights Attorneys' Fees Awarcfe Act of 1976, Public Law No. 94-559,
90 Stat. 2641, which became law on October 19, 1976. This law was 
passed in response to the decision in Alyeska Pipeline Service Co. 
v. Wilderness Society, 421 U.S. 240 (1975). This Act provides

40/ Both of these awards are effectively stayed pending appeals.
41/ It is easier and quicker for the lower court to determine an 
"adequate" amount which requires less of an evidentiary hearing 
than to make a final calculation of fees and thus will divert less 
time and attention from Stage II proceedings. Also one of the 
elements included in the calculus for establishing reasonable fees 
is "benefit to the class" which, of course, is better reviewed at 
the end of the litigation.

22



statutory authority for awarding attorneys' fees under, inter alia,
42 U.S.C. §1981, 4_§/ and adopts the "special circumstances" standard
for awards to plaintiffs. 4_y Most importantly, both the Senate
and the House made it plain that interim awards were appropriate.

In appropriate circumstances, counsel fees under 
S.2278 may be awarded pendente lite. See Bradley 
v. School Board of the City of Richmond. 416 U.S.
696 (1974). Such awards are especially appropriate 
where a party has prevailed on an important matter 

the course of litigation, even when he ultimately 
does not prevail on all issues. See Bradley, supra;
Mills v. Electric Auto-Lite Co.. 396 U.S. 375 (1970).S. Rep. No. 94-1011, 2d. Sess. 5.

* * * *
Furthermore, the word "prevailing" is not intended 
to require the entry of a final order before fees 
may be recovered. "A district court must have 
discretion to award fees and costs incident to the 
final disposition of interim matters". Bradley v. 
Richmond School Board, 416 U.S. 696, 723 (1974); see 
also Mills v. Electric Auto-Lite Co.. 396 U.S. 375 
(1970). Such awards pendente lite are particularly 
important in protracted litigation, where it is dif­
ficult to predicate with any certainty the date 
upon which a final order will be entered. While the 
courts have not yet formulated precise standards as 
to the appropriate circumstances under which such 
interim awards should be made, the Supreme Court 
has suggested some guidelines. "[T]he entry of any 
order that determines substantial rights of the 
parties may be an appropriate occasion upon which 
to consider the propriety of an award of counsel 
fees.... Bradley v, Richmond School Board, supra 
at 722, N.28. H.R. Rep. No. 94-1558, 2d Sess. 8.

The Court should properly direct an interim award of attorneys' 
fees pursuant to this provision since Congress intended that this

^ 2 / This case was brought under both Title VII and §1981.
4J/ S. Rep. No. 94-1011, 2d Session. 4; H.R. Rep. No. 94-1558, 2d Sess. 6,9.

23



Act apply to pending litigation, 44/, and since this legislation 
is a direct indication that Congress intended that interim fees 
be awarded under Title VII as well as §1981. 45/

This Court has previously stated that "[i]f conditions 
warrant, an interim award may be granted"46/; in this case, 
plaintiffs respectfully submit, the Court should direct that the 
"conditions" warrant an interim award: lengthy and costly
litigation in which the plaintiffs have substantially prevailed.
To do otherwise would reward obdurate defendants who might 
prevail by resorting to a litigation strategy amounting to a war 
of attrition and frustrate class plaintiffs from attaining a full 
remedy because they lack the resources to support complex litigation 
over many years. 47/

44/ H.R. Rep. No. 94-1558, 2d Sess. 4,6; 122 Cong. Rec. 17052
(Sept. 29, 1976); 122 Cong. Rec. 12155, 12160, 12166 (Oct. 1, 1976).
45/ "It is intended that the standards for awarding fees be 
generally the same as under the fees provision of the 1964 Civil 
Rights Act." S. Rep. No. 94-1011, 2d Sess. 4.
46/ Baxter v. Savannah Sugar Refining Corporation, 495 F.2d 437, 447 
(1974), cert, denied 419 U.S. 1033 (1974).
47/ See Gibson v. Local 40 Longshoreman, 543 F.2d ____
1259 (9th Cir. 1976) (an award of costs and attorneys' fees to
Title VII plaintiffs for their work done on appeal). cf. Grubbs v.
Butz, F.2d (D.C. Cir. 1976), 12 EPD para. 11,090 (interim
fees not usually appropriate after the plaintiff only prevails on 
a procedural issue but may be appropriate "once discrimination has 
been established") .

24



C O N C L U S I O N

Wherefore, for the reasons set forth in this and their 
previously filed briefs, the plaintiffs-appellants respectfully 
submit that this Court reverse the district court and remand 
with specific instructions for conducting Stage II proceedings 
and awarding full and effective relief.

Respectfully submitted,

JACK GREENBERG 
PATRICK 0. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

BARRY L. GOLDSTEIN 
Suite 426
733 - 15th Street, N.W. 
Washington, D.C. 20005

DEMETRIUS C. NEWTON
2121 - 8th Avenue North 
Birmingham, Alabama 35203

25



CERTIFICATE OF SERVICE

I, the undersigned attorney, hereby certify that I
have this 14th day of February, 1977, mailed two (2) copies
of the Post-Argument Brief for Plaintiffs-Appellants upon
counsel for all parties as listed below:

John J. Coleman, Jr., Esq.
Bradley, Arant, Rose and White 
1500 Brown-Marx Building 
Birmingham, Alabama 35203
Jerome A. Cooper, Esq.
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203
Charles Hodge, Esq.
Equal Employment Opportunity Commission 
2401 "E" Street, N.W.
Washington, D.C. 20506

by placing a copy of same in the United States mail, adequate 
postage prepaid.

Attorney for Plaintiffs-Appellants



Appendix A

UNITED STATES DISTRICT COURT* • 
EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION i-T C ?
£  l  l.

JOHN PATTERSON, ET AL.,
PLAINTIFFS

VS.

THE AMERICAN TOBACCO CO., ET AL., 
DEFENDANTS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
PLAINTIFF

VS.

AMERICAN BRANDS, INC., ET AL., 
DEFENDANTS

)
)

)
)
)
)
)

,)
)
)
)
)
)
)
)
)

M  Yi'tify

CIVIL 'ACTION NO. 101-73-R

CIVIL ACTION NO. 104-73-R

ORDER

Upon motion of counsel for plaintiffs John Patterson, 
et al., for an interim award of attorneys’ fees, and the argument 
of counsel, and for good cause shown IT IS HEREBY ADJUDGED AND 
ORDERED:

1. The defendants shall pay to counsel for plaintiffs 
John Patterson, et al., as an interim award of attorneys’ fees, 
the sum of $50,000.00, assessed jointly and severally against the 
defendants and to be paid by them to the law firm of Hill, Tucker 
& Marsh, counsel for plaintiffs, on or before January 21, 1977.

2. This award of interim attorneys' fees is not intended 
to express any opinion of the court as to the amount of attorneys' 
fees to which plaintiffs attorneys will ultimately be entitled,
the Court reserving the right to make that determination at the 
conclusion of the litigation.



3. The Court reserves the right to decide, at a later 
date, whether each defendant will be required to pay a specific 
portion of the final attorneys' fee award, and if so, the amount 
of the award allocable to each defendant.

Let the Clerk send copies of this Order to each counsel
of record.

DATE

\



Appendix B

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF 

RICHMOND DIVISION ^ £  D

NORA LEWIS, ET AL.
Plaintiffs

v. Civil Action No. 73-488-R
PHILIP MORRIS, INCORPORATED 
ET AL.,

Defendants.

ORDER

Upon motion of counsel for plaintiffs, Nora Lewis, 
et al., and the argument of counsel, and for good cause shown, 
it is hereby ADJUDGED AND ORDERED:

1. The defendants shall pay to plaintiffs' counsel,
as an interim award of attorneys' fees, the sum of $50,000.00 
assessed jointly and severally against the defendants and to be 
paid by them to counsel for plaintiffs on or before November 29, 
1976.

2. The payment required by this Order shall be made
to the law firm of Hill, Tucker & Marsh. The requirement of such 
payment is conditioned upon counsel for plaintiffs entering in a 
bond by or before November 29, 1976, with corporate surety or 
other surety satisfactory to the defendants, in the penal sum of 
$60,000.00. The condition of the bond shall be that if counsel 
for plaintiffs shall, if so required as a result of a decision 
of an appellate court or of this Court, refund to the defendants 
the said $50,000.00, or any part thereof so required to be 
refunded, plus interest from the date of payment, then the bond 
shall be void; otherwise to remain in full force.

3. The Court reserves the right to decide, at a later 
date, whether each defendant will be required to pay a specific



portion of the final attorneys' fee award, and if so, the 
amount of the award allocable to each defendant.

/

United States District

Date: N O V  15 1976

Judge



Appendix C

IN TH E UNITED STATES DISTRICT COURT 
F O R  THE M IDDLE DISTRICT O F  NORTH CAROLINA 

GREENSBORO DIVISION

) 
) 
)
) 
) 
) 
) 
) 
) 
) 
)

T H E  AM ERICA N  TOBACCO COMPANY )
and LO C A L 192, TOBACCO WORKERS' )
IN TERN A TIO N A L UNION, an  a f f i l ia te  of ) 
A F L -C IO ,  )

) 
)

EDGAR RU SSELL, F R E D E R IC K  D. 
BROADNAX, ALVIS M O T L E Y , J R . ,  
JA M E S  R. VAUGHN, LAW RENCE 
P R IC E ,  JR .  , GLEN A. L E E ,  
HAYWOOD G ILLIA M , and JA M ES R. 
K AYLOR,

P la in t i f f s ,

vs. C iv il  A ct io n  No. C - 2 - G - 6 8

D efendan ts .
'Jh'C -

" ° ^ 6  'U
O R D E R

T h is  m a t t e r  is  b e f o r e  the  C o u r t  on m o tio n  of the  p la in t i f f s  fo r  an in t e r im  

a w a rd  of c o s t s ,  e x p e n s e s  and a t t o r n e y s '  f e e s .  T h is  ac t io n  w as  f i led  on  

J a n u a r y  5, 1968, p u r s u a n t  to  T i t le  VII of the C iv il  R ig h ts  A c t  o f  1964, 42 U .S .C .  

§§2000e  et s e q .  T h is  C o u r t  e n te r e d  a Ju d g m e n t  on M a r c h  8, 1974, f ind ing  th a t  

the  de fen d an ts  had engaged  in  c e r t a i n  r a c i a l l y  d i s c r im in a to r y  p r a c t i c e s  in 

v io la t ion  of T i t le  VII and a w a rd e d  in junc tive  r e l i e f ,  b a c k  pay , c o s t s  and 

a t t o r n e y s '  f e e s .  On S e p te m b e r  24, 1975, the F o u r th  C i r c u i t  C o u r t  of A p p ea ls  

a f f i rm e d  th is  C o u r t ' s  f ind ing  of d i s c r im in a t io n  but o r d e r e d  ad d i t io n a l  r e l i e f  

fo r  c e r t a i n  e m p lo y e e s  of  the  defendan t  in the L e a f  D e p a r tm e n t  and a w a rd e d  

a t t o r n e y s '  f e e s  on appea l .  R u s s e l l  v. A m e r ic a n  T o b acco  C om pany ,  528 F .  2d 

357 (4 th  C i r .  1975).

T h e  C o u r t  f inds th a t  the p la in t i f fs  a r e  the  p re v a i l in g  p a r t i e s  in th is  

m a t t e r  and th a t  p la in t i f f s '  co u n se l  h ave  expended c o n s id e ra b le  t im e  and r e ­

s o u r c e s  in m a in ta in in g  th is  p ro c e e d in g .



A ltho u g h  p la in t i f fs  h av e  s u b m it te d  a s t a t e m e n t  of c o s t s ,  e x p e n s e s  

and t im e  e x p en d ed  in  c o n n ec t io n  w ith  th is  p ro c e e d in g ,  th e  C o u r t  is  no t now 

m a k in g  any  f ind in g s  o r  a w a rd  w ith  r e s p e c t  to c o s t s  and e x p e n s e s  n o r  is  the  

C o u r t  d e t e r m in in g  a  r e a s o n a b le  f in a l  a t t o r n e y s '  fee .  T h e  C o u r t  is  f a m i l i a r ,  

h o w e v e r ,  w ith  th e  c o m p le x i ty  of th i s  ac t ion ,  th e  i s s u e s  in v o lved ,  th e  d i s c o v e r y  

c o n d u c te d ,  and th e  p r e s e n ta t i o n  of th is  c a s e  and f inds and c o n c lu d e s  th a t  an 

i n t e r i m  a w a rd  of  c o u n se l  f e e s  of  $50, 000. 00 shou ld  now  b e  a l lo w ed .

IT  IS, T H E R E F O R E ,  O R D E R E D , ADJUDGED AND D E C R E E D  th a t  the 

p la in t i f f s  be and they  a r e  h e r e b y  a l low ed  an  in t e r i m  c o u n s e l  f e e  a w a rd  of 

$50, 000. 00 to b e  taxed  jo in t ly  and s e v e r a l l y  a g a in s t  th e  d e fe n d a n ts ,  T he  

A m e r i c a n  T o b a c c o  C om pany  and L o c a l  192 o f th e  T o b a c c o  W o r k e r s  

I n t e r n a t io n a l  U nion , A F L -C IO .  Said s u m  is  to be pa id  d i r e c t l y  to  J .  LteVonne 

C h a m b e r s  p r i o r  to D e c e m b e r  31, 1976. A lthough  the  C o u r t  is  o r d e r i n g  th a t  

th is  i n t e r i m  a w a rd  of a t to r n e y  f e e s  is  to be tax ed  jo in t ly  and s e v e r a l l y  a g a in s t  

the  d e fe n d a n ts ,  the  C o u r t  ackn o w led g es  th a t  the  d e fe n d a n t  T h e  A m e r i c a n  

T o b a c c o  C o m p a n y  h a s  no t w a ived  i ts  r ig h t  to p ro c e e d  a g a in s t  L o c a l  192 of 

th e  T o b a c c o  W o r k e r s  I n te rn a t io n a l  Union, A F L -C IO  fo r  c o n t r ib u t io n  w ith  

r e g a r d  to  s a id  i n t e r i m  a w a rd .

T h i s  th e  Ĉ LJ day  of D e c e m b e r ,  1976.

C h ie f  Ju tfge, U n ited  S ta te s  D i s t r i c t  C o u r t  
M id d le  D i s t r i c t  o f  N o r th  C a r o l in a

-2-