Holsey v. Armour & Company Brief for Appellees
Public Court Documents
September 20, 1984
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FERGUSO N, WATT, W ALLAS Qc ADKINS, P.A.
JA M E S E. FE R G U S O N . II
M ELVIN L. WATT
JO N A TH A N W A LLA S
K AR L A D K IN S
YVO N N E M IM S EVANS
JO H N W. G R E SH AM
LE S L IE J. WINNER
JO H N T N O C K LE B Y
G ER ALD IN E S U M TE R
FRANK E. EMORY. JR.
T H O M A S M STERN
ATTORNEYS AT LAW
SUITE 7 3 0 EAST INDEPENDENCE PLAZA
951 SOUTH INDEPENDENCE BOULEVARD
C H A R L O T T E . N O R TH C A R O L IN A 2 8 2 0 2
TE LE P H O N E (7 0 4 ) 3 7 5 - 8 4 6 1
September 20, 1984
Mr. J. LeVonne Chambers
Director - Counsel
NAACP Legal Defense Fund
99 Hudson Street
16th Floor
New York, New York 10013
Re: Holsey, et a l . v. Armour
and Company________________
Dear Julius:
Enclosed is a copy of the Rehearing Petition.
Sincerely yours,
Jonathan Wallas
JW:cfd
Enclosure
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Record No. 83-1428
CURTIS HOLSEY, JACKIE L. DRAKEFORD,
JULIUS FRAZIER, et al.,
Appellees,
v .
ARMOUR & COMPANY,
Appellant.
On Appeal From The United States District Court
for the Western District of 'North Carolina
BRIEF FOR APPELLEES
J. LeVONNE CHAMBERS
JOHN T. NOCKLEBY
Chambers, Ferguson, Watt, Wallas,
Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202
(704) 375-8461
Attorneys for Appellees
f i l e d
M'fi A 1983
A,.-i.'.' '■
Fourth Circuit
TABLE OF CONTENTS
Page
Table of Authorities
Statement of the Issues
Statement of the Case . . . . . . . . . .
Statement of Facts .........................
I. Background ...........................
II. Discriminatory Refusal to
Promote Blacks Into Sales
Positions . . .........................
III. Discriminatory Refusal to
Promote or Hire Blacks Into
Office, Supervisory and
Management Positions ...............
IV. Harassment of Black Employees
Who Challenged Discriminatory
Practices ..............................
V. Individual Claims ....................
Argument ........................................
*/
I. On Remand, the District Court
Adhered To This Court's Mandate
In Every Respect [A] .................
II. The Court did not Abuse Its
Discretion in Allowing Hill,
Edwards and Harvey to Intervene
as named Plaintiffs, Nor in
Adjudicating all Individual
Claims Presented at Trial [F][G] . .
III. The Class Action Was Properly
Certified [B] .........................
1
2
2
4
8
9
11
21
21
22
24
*/ In order to make it easier for the Court to
follow Appellee's argument, the corresponding
sections of the Appellant's brief are indicated
by the bracketed letter after each statement of
an issue.
i
Page
IV. The District Court's Findings
With Respect To Class Claims
Were Not Clearly Erroneous [C] [D] , [E]- • • 31
V. The District Court's Findings
With Respect to the Individual
Claims Are Not Clearly
Erroneous ........ ....................... 40
A. The Defendant Has Not
Demonstrated That The
District Court's Finding
That Holsey and Frazier
Were Discriminatorily
Denied Bumping Rights Is
Clearly Erroneous [H] , [J] .......... 40
B. The Defendant Has Not
Demonstrated That The
District Court's Findings
That Drakeford Was D i s
criminatorily Denied Sales
And Foreman Positions,
Harassed and Constructively
Discharged Are Clearly
Erroneous [N] , [0] .................... 42
C. The Claim of Intervenor
Bennett is not Barred by
Laches; the District Court's
Findings on Bennett's and
Hill's Individual Claims
are not Clearly Erroneous [K],
[L], [M3 ................................ 47
D. Harvey [Q] .............................. 53
E. Edwards [P] ............................ 54
VI. The Judgment is Well Within the
Equitable Discretion of the Court ...... 55
A. Injunctive Relief [I], [R] .......... 55
B. The Award of Expenses For Plain
tiff's Consultant Was Proper [T] ... 56
C. Attorneys Fees and Expenses [S] .... 57
Conclusion .................................. 58
li
TABLE OF AUTHORITIES
Ca s e s :
Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975)........................................... . 37, 55
Abron v. Black and Decker (U.S.) Inc.,
654 F.2d 951 (4th Cir. 1981), aff'g
in pertinent part, 439 F. S u p p . 1095
(D. Md. 1977)........................................ 27, 45, 46
Allen v. City of Mobile, 331 F. Supp. 1134,
(D.C. Ala. 1971), aff'd, 466 F.2d 122
(5th Cir. 1972). . .77777............................ 53
Barnett v. W. T. Grant Co., 518 F.2d 543
(4th Cir. 1975)...... ................................ 29, 37, 55
Baxter v. Savannah Sugar Refining Corp.,
495 F . 2d 437 (5th Cir. 1974)...................... 37
Berg v. LaCrosse Cooler Co., 612 F.2d
1041 (7th Cir. 1980)................................ 52
Bernard v. Gulf Oil Coal Co., 596 F.2d 1249
(5th Cir. 1979), adopted on rehearing en banc.
619 F. 2d 459 (5t h ~ C l F 7 ~ T 9 W ) 777777.77.77.7777.. 48
Bourque v. Powell Electrical Mfg, Co.,
617 F. 2d 61 (5th Cir. 1980)........................ 44
Brown v. Eckerd Drugs, 663 F.2d 1268 (4th
Cir. 1981), vacated and remanded on other grounds,
__u -s -__ (1982)...................................... 23, 26, 45,47
Brown v. Gaston County Dyeing Machine C o . ,
457 F. 2d 1377 (4th Cir. 1972)..................... 26, 34, 36
Calcote v. Texas Educational Foundation,
578 F.2d 95 (5th Cir. 1978)....................... 54
Carroll v. Sears, Roebuck & Co., F.2d
32 FEP 286 (5th Cir., June 30, 19W3)............ 35, 36, 37
Chapman v. Pacific Tel. & Tel. Co., 456
F.2d 77 (N.D. Cal. 1978)........................... 57
iii
Chisholm v. United Postal Service, 665
F.2d 482 (4th Cir. 1981) ...................... 23, 26, 28, 42
Cline v. Rodeway Enterprises, Inc., 689
F. 2d 481 (4th Cir. 1982)...... ................. 34
Clark v. Olincraft, Inc., 556 F.2d 1219
(5th Cir. 1977)................................... 42
Connecticut v. Teal, U.S. , 7 3 L.Ed
2d 130 (1982).........777____777............... 32
DeGrace v. Rumsfield, 614 F.2d 796 (1st
Cir. 1980) ......................................... 27
EEOC v. American National Bank, 652 F.2d
1176 (4th Cir. 1981)............................ 32, 34, 36, 37, 38
EEOC v. Federal Reserve Bank of Richmond,
698 F.2d 633 (4th Cir. 1983) 24, 38, 45, 51
EEOC v. Ford Motor Co., 645 F.2d 183
(4th Cir. 1981) ................................. 33, 3 4 1 3 7 , 3 8, 40,
44, 53
EEOC v. General Electric Co., 532 F.2d
339 (4th Cir. 1976).............................. 42
EEOC Radiator Specialty, 610 F.2d 178
(4th Cir. 1979)................................... 35
Evans v. Harnett County Board of E d u c . ,
684 F . 2d 304 (4th Cir. 1982).................. 32, 33
Falcon v. General Tel. Co. of Southwest,
626 F.2d 369 (5th Cir. 1980), vacated and
remanded on other grounds, U.S. 101
S.Ct. 1752 (1981).................. 7 7 .......... 27, 28, 29, 30
FTC v. Ruberoid Co., 343 U.S. 470 (1952)____ 56
Franks v. Bowman Transportation Co..
424 U.S. 747 (1976).............................. 55j 56
General Telephone of the Southwest v. Falcon,
__U.S.__ (1982)................................. . 25
Griggs v. Duke Power Co., 401 U.S. 424
(1971)...... *...................................... 32, 38, 39
Hackett v. McGuire Bros. Inc., 445 F 2d
442 (3rd Cir. 1971).............................. 26
Hill v. Western Electric, Inc., 596
F;2d 99 (4th Cir. 1979), cert, denied,
444 U.S. 929 (1979)...... 7777 . .777777. ..... 30
iv
Hill v. Western Electric (Hill II), 672 F.2d
381 (4th Cir. 1982).............................. 23
Horne v. Associated Grocers, Inc., 555 F.2d
270 (10th Cir. 1977) ............................. 28
International Bhd. of Teamsters v. United
States, 431 U.S. 324 (1977).................... 32, 33, 3 5 ,
36 * 4 4 ’
International Woodworkers of America v.
Chesapeake Bay Plywood Corp., F.2d
___ , (4th Cir. 1981)............................. 27
James v. Stockham Valves & Fitting Co.,
559 F.2d 310 (5th Cir. 1977), cert, denied.
434 U.S. 1034 (1978)........... 77777.777777.. 32, 37
Jenkins v. United Gas Corp., 400 F.2d 28
(5th Cir. 1968)................................ 26
Jones v. Diamond, 636 F.2d 1364 (5th Cir.
1981) (en ba n c ) ................................... 57
Kelley v. Norfolk & Western Ry. Co.,
584 F.2d 24 (4th Cir. 1978).................... 29
Keyes v. School Dist. No. 1, Denver,
Colorado, 439 F.Supp. 393 (D. Colo.
(1977)............... 57
Kirk v. Rockwell I n t '1 Corp., 578 F.2d
214 (9th Cir. 1978)................ 48
Long v. Sapp, 502 F.2d 34 (5th Cir. 1974)... 26
Louisiana v. United States, 380 U.S. 145
(1965).............................................. 55
McPherson v. School Dist. No. 3186, 465
F.Supp. 749 (S.D. 111. 1978)................. . 57
Minor v. Califano, 17 EPD If8570 (D.D.C.
1978)............................................... 52, 54
Moody v. Albemarle Paper Co., 474 F.2d
134, 137 (1973), vacated and remanded on
other grounds, 422 U.S. 405 (1975)........... 55
Muskelly v. Warner and Swasey C o . , 653
F.2d 112 (4th Cir. 1981)................ ....... 23
v
Neely v. City of Grenada, 624 F.2d 547 (5th
Ci r . 1980).......................................... 57
O'Bryan v. Saginaw, Mich., No. 79-1297
(6th Cir. 1981). ......... 57
Occidental Life Ins. Co. v. EEOC, 432 U.S.
355 (1977).......................................... 47, 48
Oatis v. Crown-Zellerbach C o r p ., 398
F.2d 496 (5th Cir. 1968)...... 42
Parson v. Kaiser Aluminum & Chem. C o r p . ,
575 F.2d 1374 (5th Cir. 1978) reh'g 583
F.2d 132, cert, denied, 441 U.S. 968
(1979)----7^ 77.777777............................ 50
Payne v. Travenol Laboratories, Inc.,
565 F .2d 895 (5th Cir. 1978), cert, denied,
434 U.S. 835 (1977)............ 7777 . .777777. . . 39, 56
Pennsylvania v. O'Neill, 431 F. S u p p . 700
(E.D. Penn. 1977), a f f 'd m e m . , 573 F.2d
1301 (3rd Cir. 1971).............................. 57
Pullman-Standard v. Swint, U.S. (1982)
73 L.Ed 2d 6 6................777____ 777........ 31
Rios v. Enterprise Steamfitters Local,
400 F. Supp. 993 (S.D.N.Y. 1975), aff'd,
542 F. 2d 579 (2nd Cir. 1976)..... .77777 ....... 57
Robinson v. Lorilard Corp., 444 F.2d 791,
(4th Cir. 1971), ce r t . dismissed, 404 U.S.
1006 (4th Cir. ) ................................... 53
Rogers v. EEOC, 454 F.2d 234 (5th Cir.
1971)................................................ 53
Rogers v. International Paper C o . , 510
F.2d 1340 (8th Cir. 1975), vac. and remanded
on other issues, 423 U.S. (1975)7....... 37
Romasanta v. United Airlines, Inc., 537
F.2d 915 (7th Cir. 1976), aff'd s u b . n o m . ... 42
Sanchez v. Standard Brands, Inc., 431
F.2d 455 (5th Cir. 1970)......................... 42
St. Marie v. Eastern RR. Ass'n. , 650 F.2d
395 (2nd Cir. 1981)................................... 40
v i
Page
Schmidt v. Lessard, 414 U.S. 473 (1974). . . . . . 56
Senter v. General Motors Corp., 532 F.2d
511 (6th Cir. 1 9 7 6 ) ..................................... 26
Sherrill v. J. P. Stevens C o . , In c . , 410
F.Supp. 770 (W.D.N.C. 1975), a f f ’d, 551 F.2d
308 (4th Cir. 1 9 7 7 ) .............................. 45, 54, 56
Sise v. City Demonstration Agency, 588 F.2d
629 (9th Cir. 1 9 7 8 ) ..................................... 52
Sledge v. J. P. Stevens & Co., Inc., 585
F. 2d 625 (4th Cir. 1 9 7 8 ) ................. 24, 55, 56, 57
Stallworth v. Monsanto Co., 21 EPD If 30,425
(D.Fla. 1 9 7 9 ) ............................................. 48
Stastny v. Southern Bell Tel. & Tel. Co.,
628 F. 2d 267 (4th Cir. 1 9 8 0 ) ........................ 25
Swint v. Pullman-Standard Co., U.S. ,
72 L. Ed. 2d 6 6, 80-81 (1982)........................... 22
Texas Department of Community Affairs v. Burdine,
_____U.S._____, 67 L. Ed. 2d 207 ( 1 9 8 1 ) .......... 2, 43, 50
Thornberry v. Delta Airlines, Inc., 25 EPD 131,496
(N.D.Cal. 1 9 8 0 ) ...................... ............ .. . . 57
Townsend v. Nassau County Medical Center,
558 F. 2d 117 (2nd Cir. 1 9 7 7 ) ........................... 39
United Airlines v. McDonald, 432 U.S. 385
( 1 9 7 7 ) .................................................. 23, 42
United States v. Chesapeake & Ohio Ry Co.,
471 F. 2d 582 (4th Cir. 1972), cert, denied,
411 U.S. 973 (19 ) ...................................... 36
United States v. Warwick Mobile Homes Estates,
Inc., 558 F. 2d 194 (4th Cir. 1 9 7 7 ) .................... 56
Wetzel v. Liberty M u t . Ins. Co., 508 F. 2d 239
(3rd Cir.), cert, denied, 421 U.S. 1011 (1975) . . . 27
Wheeler v. American Home Products Corp. , 582 F. 2d
981, 563 F. 2d 1233 (5th Cir. 1977), (same case). . . 42
Wheeler v. Durham City Board of Education,
585 F. 2d 618 (4th Cir. 1 9 7 8 ) ........................... 56
White v. Carolina Paperboard Corp., 564 F.2d
1073 (4th Cir. 1 9 7 7 ) ..................................... 28
V l l
Wigginess, Inc. v. Fruchtman, 482 F.Supp.
681 (D.C.N.Y. 1979), aff'd, 628 F . 2d
1346 (2nd Cir. 1980) ......................
Page
53
Young v. Edgecomb Steel Co., 363 F.Supp. 961
(N.D.N.C. 1973), m odified, 499 F.2d 97
(4th Cir. 1 9 7 4 ) ................................... 30
Other Authorities
Conference Committee Report, 118 Cong. Rec.
at 7168 (1972), quoted in 432 U.S. at 366 . . . 48
S. REP. ______________________ 94-1011, 94th Cong.
2D SESS. 2, reprinted in U.S. Code Cong, and
Admin. News, pp. 5 908, 5910 ...................... 57
11 Wright and Miller, Fed. P r a c t . & P r o . ,
§ 2955, pp. 548-549 (1973) (construing Rule
65(d), Fed. R. Civ. P r o ........................... 56
vxxx
STATEMENT OF ISSUES
I. Did the District Court follow This Court's
Remand Order in every respect?
II. Did the District Court err by allowing
class members who presented individual
claims at trial to intervene as named
plaintiffs?
III. Was the class action properly certified?
IV. Did the trial court clearly err in finding
a pattern and practice and discriminatory
impact of discrimination in promotions/hires
into office and management positions, i n
cluding sales and foremen positions?
V. Were the District Court's Findings with
respect to the individual claims clearly
erroneous? .
VI. Did the District Court exceed its equitable
power under Title VII to "make whole" the
relief for the plaintiffs?
IX
STATEMENT OF THE CASE
On March 4, 1977 Curtis Holsey, Jackie L. Drakeford and Julius Frazier
instituted this action against Armour & Company and the United Food & Canirercial
Workers International Union alleging that Armour and the Union had engaged in
certain racially discriminatory employment practices affecting the plaintiffs
and a class of employees and applicants for employment in violation of Title VTI
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. and 43
U.S.C. §1981. Holsey, Frazier and Drakeford had previously filed charges of
discrimination with the Equal Employment Opportunity Commission (EEOC) on March
7, 1974. The EEOC found reasonable cause to believe plaintiffs had been discrimi
nated against and, on January 8, 1977 issued right-to-sue letters and plaintiffs
timely filed suit. On June 2, 1977, Mynell Bennett was allowed to intervene in
the proceeding as a named plaintiff. (App. 14-15) —■ Bennett had previously
filed an EEOC charge on January 27, 1972. Following an investigation of Bennett'
charge, the EEOC issued a Determination of reasonable cause dated August 25,
1976. Thereafter, Bennett obtained a right-to-sue letter dated May 17, 1977 and
her timely motion bo intervene as a named plaintiff was granted. (App. 6)
The class was conditionally certified on May 1, 1979. Stage I of the
bifurcated trial was held between March 27 and April 4, 1980. On August 13,
1980, the court issued a Memorandum of Decision dismissing the claims against
the Union, and concluding that Armour had discriminated against the plaintiffs
and their class in certain respects. (App. 16-20) On November 13, 1980 three
class members who had presented claims at the trial, Linwood Edwards, Janie
Hill, and Laura Ellen Harvey, moved to intervene as named plaintiffs. (App. 21-
24) Their motions were allowed on February 9, 1981. (App. 63-64) Findings of
Fact, Conclusions of Law and Judgment were entered on March 16, 1981.
1/ The Appendix will be referred to as (App.____ ) and will be followed by
a page number. Similarly, the two volumes of the Exhibits will be referred
to as "Exh. )."
Defendants took an appeal to the Fourth Circuit, and on July 23, 1982, this
Court vacated the judgment and remanded the cause for reconsideration of (1) the
then-recent Supreme Court Decision of Texas Dept, of Canmunity Affairs v. Burdine,
___U.S.___, 67 L.Ed.2d 207 (1981); and (2) to independently reevaluate its
Findings of Fact and Conclusions of Law.
On remand, the District Court held a hearing and, further, solicited pro
posals frati both the plaintiffs and the defendants prior to reaching any
decision concerning charges either party would prepose in the Findings and
Conclusions. Both parties thereupon submitted extensive proposals to the
District Court. The defendant, for example, preposed 29 pages of changes for
the District Court's consideration. (App. 1031-1054; App. 1057-61)
After considering each party's proposals for nearly three months, the
District Court on January 31, 1983 reissued Findings of Fact and Conclusions of
Law, Judgment and a Memorandum of Decision. On remand, the district court
redefined the class to include:
"All black applicants for employment and black
employees of the Company's Mecklenburg County, North
Carolina facility who have been adversely affected, at
ary time since July 27, 1971 (six months prior to
Bennett's charge filed with EEOC), by the Canpary's
racially discriminatory employment practices involving
promotions or hiring into Office and management posi
tions, including Sales and foreman positions, and
retaliation for having opposed discriminatory practices
or having exercised rights protected under Title VII.
(App. 1021-22) The defendant again appeals.
STATEMENT OF FACTS
I. Background
Since 1958, Armour & Campary has operated a meat processing facility in
Charlotte, North Carolina. The Company prepares meat products for sale and
distribution to retail and wholesale outlets in North Carolina, Scuth Carolina,
Tennessee and Georgia. (App. 93) The Charlotte facility is composed of four
- 2 -
production departments: Beef, Sausage, Operations, and Maintenance. The Beef
and Sausage Departments butcher beef and sausage, respectively. Operations is
responsible for shipping, receiving, storage and transportation, while the
Maintenance Department repairs vehicles and maintains the facilities. (App.
180-81) In addition to production facilities, the Charlotte facility includes
an office, which includes the sales headquarters, a laboratory, accountants and
data processors, as well as various clerks. (App. 185-86)
Since 1957, the Company and the Meat Cutters Union have negotiated collec
tive bargaining agreements that govern seniority rights, including layoff and
recall rights. (Exh. 1;670) However, the Agresnents do not involve Office
employees (including sales), supervisors or managers, or prohationary production
employees, and the Union does not represent than.
Between 1969 and 1973, Armour increased its Charlotte production workforce
from approximately 90 employees to over 200 employees. Since 1974, however,
sales have declined, and production workers at the time of trial (March, 1980)
numbered about 133, of whom approximately 50 worked regularly. During the same
period of time that the production workforce declined, Armour continued to hire
and promote persons into supervisory and management positions and Office posi
tions (including sales representatives). (Exh. 633, 738, 834, 885-813)
Prior to 1965, Armour limited the employment and promotional opportunities
of black applicants for employment and black employees to the Operations Depart
ment. After Title VII became effective (July 2, 1965) seme black employees were
allowed to transfer into Beef and Sausage. (Deposition of Stroud, PL. Ex. 42,
pgs. 759-800; PL. Ex. 24 and 25, pgs. 522-535) Nevertheless, vestiges of this
earlier period of avowed segregation remain in the Plant. For example, when
plaintiff Holsey began working for the Company in 1969, restroems were segre
gated and locker assignments were made by race. (App. 458-59) Though the
Ccmpany later took down the racial designations, at the time of trial both the
3-
"white" and "colored" bathrocms were still in use. According to Operations
Manager Stroud, most whites continue to use the former white facilities, and
most blacks use the former black facilities. (App. 250-51)
At trial, the plaintiffs presented evidence of specific patterns, policies
and practices of discrimination, as well as statistical evidence and anecdotal
testimony to demonstrate that Armour discrirn±natorily denied blacks hire,
promotion or transfer into sales and foreman positions and maintained a pattern
and practice of retaliating against and harassing black employees who complained
about discriminatory treatment.
II. Discriminatory Refusal to Promote Blacks into Sales Positions.
Armour's sales headquarters is Charlotte, though individual sales represen
tatives range over a four-state region. At the time of trial, the Company
employed approximately 32 sales personnel. (App. 367-68) The following facts
illustrate the Company's pattern of hiring into sales:
— In 1971, Laura Harvey, a black female, was told not to bother
applying for a sales position because the Company did not
hire blacks as salesmen. (App. 619)
— Between 1965, the effective date of Title VII, and 1977, the
Company employed 64 persons in sales capacities. Not a
single one was black. (App. 1088)
— Between 1971 (the beginning period of liability) and the date
of trial, 23 vacancies occurred in sales. (App. 114) No
black had ever held a sales job until after this lawsuit was
filed.
— Until suit was filed, Armour employed virtually no blacks in
the office. Intervenor Harvey, hired in 1973, was the first
black office worker. (App. 612-13)
— Ennis Graves, the only black salesman ever employed by Armour,
conducted all his sales business by phone. (App. 357)
Hired in 1977, Graves left Armour after nine months and Armour never again
employed a black salesman. Evidence of the following discriminatory practices
was presented to demonstrate the racial motivation behind the Company's failure
to hire even one black salesman:
- 4 -
1. According to Company officials, Armour does not post sales or office
vacancies in the plant. (App. 362-63, 198) It is thus difficult for black
employees to know when or how to apply. Nevertheless, both plaintiffs and
Company officials testified that numerous blacks applied for sales positions.
(App. 386-87; 486-88)
2. Several black employees testified that the Company actively discouraged
them from applying for sales or office positions. On different occasions,
Plaintiff Drakeford and other applicants and employees stated their interest in
office and sales positions, but were told that there were no vacancies at the
2/time. — Although the officials promised to alert them when a spot opened, the
officials never responded to the employees' requests. (App. 389; 553)
3. The Company does not provide written job descriptions for the sales
force, or publish the criteria that are utilized to select its sales force.
(App. 203; 321-22; 361-62; 370-71) Armour has established no objective, definite
or written criteria for hiring into office positions, including sales. (App.
357-69; 403-09) Sales Manager Kluttz testified that the only established
criteria for hiring into sales positions was a high school education. (App. 385)
4. Apart from a high school education, "and that [criteria wasn't really
in writing," (App. 385) Company officials used their subjective judgment as to
an applicant's ambition, personality, appearance, honesty, "and just an all
around type of person that would make an outstanding salesman." (App. 385-86)
The Company has not done a job analysis to determine what abilities are needed
in these positions. (App. 361)
5. Armour's sales manager for several years, Harold Kluttz, admitted he
had never compared the qualifications of the black applicants with those of
2/ Between 1975 and 1978 alone, in addition to Drakeford and numerous outside
applicants (App. 386-87), Thomas Brown, Dennis Williams, Henry Croutch and
Laura Harvey requested employment as salespersons. Other blacks with significant
prior training also requested employment in an office or sales position, but were
turned away. (A. 486-88) Class members who did not testify at trial will have
an opportunity to prove their qualifications and application during Stage II
proceedings.
-5 -
whites he hired. (App. 405-06)
6. Armour required no prior sales experience of its sales hirees. (App.
359-60; 385-86; Exh. 860, 857) After the Company hired a new salesman it pro
vides extensive on-the-job training that lasts several months. (App. 357-58)
Despite the fact that the Company required no prior experience, trained all new
salesmen from the ground up, and many blacks applied, the Ccmpary claims it (1)
couldn't get blacks to apply, or (2) couldn't find one that was "qualified."
(App. 391-92)
In addition to evidence of patterns, policies, practices, and specific
instances of discrimination (described below), plaintiffs also presented statis
tical evidence to buttress their class and individual claims. Their statistical
evidence consisted primarily of an Availability Study. (App. 681-712; Exh. 834-
82) The Study started by examining the prior training and experience of all 64
members of Armours all-white sales force between 1964 and 1977— i.e., it examined
the actual qualifications of the sales force employed by Armour. Relying upon
these actual qualifications, the Availability Study then asked: given the
sources frcm which the Company has historically drawn its white employees, what
is the availability of blacks holding those sane qualifications? Plaintiffs'
expert concluded that qualified black availability for promotions from within to
sales ranged from 10.65% (lowest estimate) to 17.05% (highest estimate), while
qualified black availability for new hires into sales ranged between 8.69%
(lowest) to 13.38% (highest). (App. 368-71; 388-93; 683-713; Exh. 834-62)
In response to plaintiff's evidence, Company officials were repeatedly
asked why biacks were never hired into sales jobs. Armour's articulated reasons
are summarized below:
DAYVAULT:
— "I can't answer that. I don't know." (App. 364)
— Dayvault testified he interviewed a black man for a sales
job: "I interviewed one boy that came in and had pre
viously been interviewed by Mr. Kluttz... ." (App. 371-72)
In response to a question about why Armour did not hire
- 6-
the black he interviewed, Dayvault said "I can't answer
that" (App. 372)
KLUTTZ:
Questions (by Mr. Chambers): You never did sit down and compare
the whites you hired as salespersons with the blacks who had
applied for sales positions did you?
A: No sir.
Q: There is no way to sit here now and say the white applicants
were better qualified or as qualified as the black applicants.
Mr. Loftis: Objection, Your Honor.
Court: Overruled.
Q: Am I correct? No way you can sit here now and say that the
whites you hired were better qualified or even equally as
qualified as the blacks who applied, is there?
A: I would say that they were, yes.
Q: According to what standards, Mr. Kluttz?
A: Because whenever we got the white ones, they was, we had,
some of than had sales experience. The ones that didn't
had the ambition and the knowledge and the willingness to
learn, and whereas whenever we contacted the schools we
just didn't have the colored that would apply for the~j~ob.
Q: The colored to apply for the job?
A: Yes, sir. The schools did not cane back to us, and we
didn't have the type applications from thorn...
* *
Q: Didn't you tell-the Court that you didn't know what quali
fications the blacks who applied to you had for the job?
A: I didn't know the qualifications they had?
Q: Yes, sir.
A: If I had taken the applications and talked to than, I knew
the qualifications.
Q ; Didn't you tell the Court there was no way you could tell
the Court new why those blacks weren't hired?
A: Yes, sir.
(App. 405-06, emphasis added)
-7 -
The District Court refused to credit Armour's explanation, and found a
pattern and practice of race discrimination in sales positions.
III. Discriminatory Refusal to Promote or Hire Blacks Into Office, Supervisory
and Management Positions.
The Company employs about 40 managers, officials and supervisors. (Exh.
37-40) Armour fills vacancies in supervisory positions by transferring or
promoting current employees or by hiring new employees. Incumbent employees
seeking supervisory positions are given no special consideration or treatment
over new applicants. (App. 112) Armour's practices, policies, patterns and
statistics regarding selection for office and supervisory positions mirrors its
practices, etc. regarding sales jobs.
Until four days before suit was filed, the Company had never employed a
black supervisor, despite the availability of qualified blacks for promotion
that ranged fran 25.11% to 26.73%, and frcm 14.66% to 32.11% for new hires.
Between 1965 and February 28, 1977, the date plaintiff Drakeford was promoted,
the Company filled 37 supervisory vacancies. Of these, 27 were promoted frcm
within, 10 were new hirees. Two were transferred frcm closed Armour facilities,
and one (Baumgardner) was hired from a closed facility of Swift and Company.
Between 1971 and Plaintiff Drakeford's promotion in 1977, the Campary hired or
promoted 19 employees to supervisory positions. (App. 112-13)
Beginning in 1971, the Company instituted a foreman trainee program, limiting
its consideration of applicants to college graduates. (App. 253-54) Between
1971 and the termination of the program in 1975, Armour selected eight persons
to participate in the program. The Company relied on word-of-mouth to advertise
the program within the plant. (App. 255) No black employee or applicant was
chosen to participate in the program. None of those selected had experience
with production of meat products, and none had experience working under union
contracts. Armour made no effort to validate the degree requirement, and none
8-
of the trainees proved to be successful as a front-line supervisor. The defen
dant admits that, though the supervisory trainees were required to be college
graduates, no such training was necessary to perform the job. (App. 254-55)
Indeed, the Ccmpary admits that the program was a total failure. Nearly all
the foreman trainees terminated their employment either before permanent assign
ment or shortly afterwards. (App. 427, 873-80; 861-91; 934-42) Plaintiffs
contend that the college degree requirement adversely impacted upon black
employees and thus violated Title VII.
The Company's hiring practices with respect to supervisors also parallel
the practices employed to select sales personnel. No written job descriptions
establishing necessary job qualifications are published. (App. 252-53)
Vacancies are not posted. Employees learn of openings by word of mouth. (App.
203, 255) When a vacancy does exist, the all-white management staff "seeks out"
persons it believes would be "good" supervisors by chatting with the all-white
supervisory staff. (App. 203) Selection is thereupon based upon the subjective
view of an all-white hiring staff of the employee or applicant best qualified.
(App. 252-53; 255-56; 326) On-the-job training for the selected employee is
provided.
!V. Harassment of Black Employees who Challenged Discriminatory Practices.
Several black employees and applicants testified that the Company discri
minated against them, and harassed them if they complained about the differen
tial treatment they received. The evidence showed that the Company retaliated
against every black employee who complained about discriminatory practices.
Specifically, the Campary intimidated, harassed and retaliated against black
employees who sought relief from discrimination by (1) operating the seniority
system in a discriminatory fashion: (2) by denying those blacks who were
finally promoted to supervisory positions under pressure of litigation equal
-9-
status with white supervisors; and (3) firing blacks who canplained about
discrimination. These practices are fully described at pp. H - 20 f infra,
and are merely outlined here.
At the time of the plaintiffs’ initial employment, and prior to their
transfer to Beef, black employees were generally confined to Operations. While
whites were sometimes initially assigned to Operations, they were usually trans
ferred into other Departments. In 1969, only one or two black employees were in
Beef, and only two black females and no black male were in Sausage. In 1969 no
black had ever been a supervisor or held a position in the office except as a
Janitor. (App. 94-95)
Shortly after plaintiff Holsey began working for Armour, Holsey's super
visor tried to discourage him from signing job postings, harassed him when he
signed anyway, and began refusing to provide Holsey necessary assistance in
doing his job. Both Holsey and Frazier protested the Ccmpany's refusal to
permit them to "bump" (displace) junior employees in accordance with the
Collective Bargaining Agreement during a temporary layoff in 1973. (See pp.
1.1 ~ 15 r infra) In 1974, the Company refused to permit Holsey to grieve that
he was being discriminated against, telling him to file with the EEOC. (App.
515-18)
After Holsey began to canplain about the Ccmpany's racial practices he was
issued several warning letters. (App. 459) As a result of a series of incidents
involving the Ccmpany's calling junior employees in to work over him, shorting
his pay and the like, Holsey was required to file over 15 grievances. (App.
513; 912-13) Further, contrary to the provisions of the contract, both Holsey
and Frazier were denied the opportunity along with white employees to bump into
the Sausage Department on a temporary or permanent basis between 1974-77. —^
J3/ Holsey filed his EEOC charge in March, 1974. However, he had on earlier
occasions utilized the grievance procedure to protest the discriminatory
treatment to which he had been subjected.
-1 0 -
(See the discussion of their individual complaints, infra.)
Plaintiffs/Intervenors Janie Hill and Mynell Bennett were initially employed
by the Company on a provisional basis. Each was denied permanent status by the
Company and was not permitted to establish seniority because of not being called
to work regularly by the Company. At one point Bennett asked her supervisor,
Snyder, if the Company was refusing to call her to work because of her race or
because of her work performance. Synder said it was not her work. However,
after their conversation, Bennett was never called to work again and was dis
charged .
Both Laura Harvey and Drakeford were subjected to different standards as
supervisors than white supervisors. Harvey was not given full supervisory
authority when white employees under her refused to cooperate with her
directives. When she complained, the Department Manager took away her super
visory authority over the white employees. Plaintiff Drakeford, finally pro
moted to foreman three years after filing EEOC charges, was also retaliated
against. Drakeford's supervisor deprived Drakeford of necessary supervisory
authority, by, for example, assuming control over his crew. The existance of de
facto segregated bathrooms even at the time of trial further underlines the
status of black employees at Armour & Company.
V. Individual Claims.
The individual claims of discrimination buttress the class claims.
Curtis Holsey - Plaintiff Holsey applied at Armour to be a warehouse shipper,
but when he was hired on December 1, 1969, he was assigned to the Operations
Department as a lugger-loader. (PI. Ex. 15-17) After three weeks in Operations,
he transfered into the Beef Department as a cleanup man. (App. 444) He per
formed well as a cleanup man, and decided to sign a job posting to become a beef
boner. However, Holsey's supervisor, Kenneth Privette, told him not to sign the
job posting, although Holsey had a right to sign and signing was a principal
-1 1 -
means of advancement in the production departments. (App. 444-46, 471) Holsey
signed the posting anyway, and was awarded the beef boner position since he was
the most senior beef employee who signed. (App. 444-45) Subsequently, however,
his supervisor began harassing him by cursing him and by refusing to tell him
how to do certain things the correct way. (App. 4, 46-47) At one point, Holsey
asked for sharper knives but had to go all the way to the plant manager, Paul
Gibson, in order to get than. (App. 446-47; 910 (testimony of Gibson))
In 1971, Holsey bid over to the primal cut job. Again Privette told him
not to sign for the job because "they wanted someone else" for that job. (App.
448-49) Although Holsey got the job, he was given additional duties that his
white predecessors did not have. (App. 451-54)
In March of 1974, believing he was being harassed and denied layoff rights
because of his race, Holsey filed a charge with the EEOC. (App. 211-14; 217-18;
457-59) The Canpany refused to allow him to grieve that he was being discrimi
nated against because of race in 1974, instead referring him to the EEOC, and
telling him if he did go to the EEOC he'd "better win" the case. (App. 515-18)
After Holsey filed his EEOC charge in 1974, a number of warning letters
were placed in his file; he was not able to get answers to several of his
grievances; he was not allowed to attend grievance meetirgs. (App. 502)
Additionally, Holsey was not allowed to bump into Sausage in accordance with the
Collective Bargaining Agreement, and on the same basis as other employees.
Holsey clearly demonstrated that he was discriminatorily denied bumping rights
in retaliation for his complaints about racial discrimination in promotions,
lay-off and recall. —
Beginning in 1974 the Canpany began to lay off its production employees in
Beef and subsequently in Sausage and Operations. Employees were laid off pursuant
to their department seniority with the employee with the least departmental
seniority being the first to be laid off. Hcwever, the Agreement provided that
4/ Contrary to the defendant's repeated assertions, it was not the validity
of the seniority system that was litigated at trial but rather the defendant' s
discriminatory operation of that system in its efforts to retaliate against black
employees who had complained about other discriminatory practices. Plaintiffs do
not concede or stipulate that the seniority system is bona fide. Rather, while
the facial lawfulness of the seniority system has not been put. in is^pe^pl^in;
tiffs do contend that the Cdmpany operated the system in a racial y
way.
liscr iminatory
-1 2 -
laid-off employees with five years or more Company seniority could bump junior
employees in other departments, (App. 207-10) Thus, employees in the Beef
Department who were laid off, but who had five or more years of Company
seniority, were allowed to bump junior employees in the Sausage or Operations
Departments.
Two different types of layoffs are involved here: temporary and permanent.
Temporary layoffs at the plant were virtually continuous between 1974 and 1976.
During a period of "temporary" layoffs, the Company would first determine how
many workers it would need in each department, and then post weekly bumping
lists in order to permit employees in (e.g.) Beef who had insufficient depart
mental seniority in Beef (but who had five years Company seniority) to bump
temporarily into other departments. During such temporary layoffs, the bumpirg
employee retained his departmental seniority in Beef. Bumped Beef employees
would then be recalled to work in Beef in the order of their seniority if the
Company needed additional Beef workers during a particular week. During such
periods of temporary bumping, the Beef employee who temporarily bumped into
(e.g.) Sausage would establish temporary departmental seniority in Sausage, in
addition to retaining his permanent departmental seniority in Beef. Laid-off
employees with less than five years seniority were not permitted to bump, but
retained their departmental seniority and could be recalled to work as
temporary, day-to-day replacements. It is important to note that such day-to-
day replacements were not subject to being bumped. (App. 231-32; 417-18)
In contrast to temporary layoffs, permanent layoffs occurred when the
Company and Union agreed that a permanent reduction in the workforce was
required. Permanent layoffs were conducted on three occasions: September 2,
1974, February 26, 1975 and February 24, 1976. On those dates, the Company
provided opportunities for laid-off Beef employees to use their Company or date
of hire seniority to permanently bump junior employees in other departments.
-1 3 -
The significance of a permanent "bump" was that recall rights thereafter were
established in the new department. (App. 228-29)
Although establishing five years seniority on December 1, 1974, plaintiff
Holsey was not thereafter allowed to bump junior white employees in the Sausage
5/department either temporarily or permanently. (App. 460-68) — Under the
Bargaining Agreement, Holsey had a right to bump into Sausage. (App. 272)
At the time, no black male was permanently assigned to Sausage, and only two
black females were so assigned.
Between December 1, 1974 when Holsey established five years seniority, and
June 6, 1976, Holsey was on lay-off 219 days. The Company told Holsey that no
employees junior to him were working "full time" in the Sausage Department.
(App. 463) However, at least four permanent Sausage employees who were junior
in seniority to Holsey were allowed to work virtually full time during Holsey's
6 /lay-off. — ' Plaintiffs' Exhibit 20(d), containing information supplied by the
_5/_Bumping into Sausage was' an important benefit for several reasons. First,
beginning in 1973, the Corrpany had been unable to obtain sufficient quantities of
Beef to keep all Beef Department enployees busy. At the same time, however, the
Sausage Department kept busy. _Second, if temporary vacancies occurred in Sausage,
bausage enployees (even those junior to laid-off enployees in other departments)
would be recalled to work before more senior enployees from other departments.
(Px 22E, p. 74)
6/ Bertha Cox (laid off 107 days), Dixie S. Wright (laid off 132 days), Joseph
. Newman (laid off 70 days) and Ulysses Phifer, Jr. (laid off 82 days), (App. 99-r
1UU), all were allowed to work during the time Holsey was laid off (219 days).
trary to defendant1 s assertion (Brief at 34)} the district court distinguished
between temporary and permanent lay-offs. According to the Company, if ten
enployees were needed in the Beef Department, all but the ten nest senior Beef
employees were^put on lay-off and would be recalled in Beef based on their de
partmental seniority. If a laid-off Beef employee with more than five years
seniority chose, lie could bump a junior employee in Sausage or Operations and
establish^seniority in that department. However, if a temporary (one day) vacancy
occurred in Sausage, Sausage enployees would be recalled based on their company
or date of^hire seniority. For such temporary vacancies, the Company would not
recall^senior enployees in other departments unless employees with departmental
Sausage were not available for work. Holsey's principal contention —
which the district court determined to be credible — was that the sausage
erpioyees junior to Holsey were not "daily replacements" as claimed by Armour,
lnus, the district court concluded as a matter of credibility that these junior
sausage enployees were subject to the bunping provisions of the Collective
(Exh. 823-32) The district court's credibility determination
28 ^ L 1? 1867’,3 testiinDny; (2) Plaintiffs’ Exhibits 20(d) (Exhibit 594);(Exh.684); and 65(b) (Exh. 823); (3) the incredible claim by Armour that the
white Saus< the fact they wori employees were called to work on a day-to-day basis despite -f — ------ - on a Virtually continuous basis between 1974 to 1976rrrjfop. -825) •
and (4) the unreliability of the Company's witness on this issue, Gibson. In fact,
the district court found that Gibson's "admitted representations, his decorum and
the docunentary evidence simply made his testimony unreliable and the Court refuses
o accept it. (App. 1126) (Footnote 6 continued)
-1 4 -
Company, shows Holsey laid off for several weeks while junior employees [listed
higher on the document list] continued to work. (Exh. 594; App. 266-82)
Different Canpany officials offered conflicting testimony as to why Holsey
was not allowed to bump these junior white employees in Sausage. One official
testified that Holsey did not wish to bump out of Beef. (App. 270-72) However,
another official attempted to show that these employees were "daily" replace
ments already on layoff, and thus were not permanent employees subject to being
bumped. However, the Court resolved this credibility determination against
Armour. (See footnote 6, supra)
Thus, although there were permanent Sausage employees junior to Holsey who
were subject to being bumped, the Canpany continually refused to permit Holsey
to displace the junior employees in accordance with the Collective Bargaining
Agreement after he filed an EEOC Charge in March 1974. Holsey's proof
established that the Company restricted his bumping rights in an effort to
discourage him frcm challenging the Company's discriminatory practices. —^
Julius Frazier - Plaintiff Frazier was also denied the opportunity to bump
into Sausage during a two week lay-off in December 1974 and suffered the same
discrimination because of it. (App. 584-86; Exh. 594))
Jackie L. Drakeford - Drakeford was employed by the Canpany in June, 1969.
in June, 1969. Assigned as a lugger-loader in the Operations Department, after
a year Drakeford went to the Beef Department as a trainee beef boner, and then
became a packing cutter until he was laid off in August, 1973. (App. 548-51)
In July 1973, Drakeford discussed becoming a foreman with Gibson. Drakeford
told Gibson he was definitely interested in becoming a foreman. Between 1973
_6/ (cont'd) The district court also credited plaintiffs' Exhibit 65(b) (Exh. 823),
after Exhibit 65(b) had been corrected. (See Deft's Exh. 23; Exh. 475)
_2J Since Holsey's principal contention is that the Company failed to provide him
an opportunity to bump into the Sausage Department in accordance with the Bargaining
Agreement, it is irrelevant with respect to the February 24, 1976
layoff that the Company provided him an opportunity to bump junior employees
in the Operations Department. Operations was unattractive to Holsey because he
had suffered an injury to his back and Operations was more physically demanding
than Sausage.
-1 5 -
and 1976, Armour passed over Drakeford eight times in favor of junior white
employees. Drakeford was qualified by college training and experience to be
foreman, had longer tenure with the Ccmpany and was more familiar with the
Company's operation and products than the junior white employees. (App. 318-20;
553; 558) For example, Roof, a junior white employee chosen over Drakeford in
1973, had less experience in the department, no greater educational background,
and was soon demoted because of his inability to perform supervisory duties.
(App. 551; 861-91; 935-42)
Failing to receive consideration or a foreman’s position, Drakeford in 1975
asked Dayvault about a sales position. Dayvault told him that no position was
then available, but that he would let Drakeford know when a position did become
vacant. Neither Dayvault nor any other Company official ever got back to
Drakeford about a sales position. (App. 553) At the time Drakeford talked to
Gibson and to Dayvault, Armour had no blacks in sales nor in supervisory posi
tions. According to the Company official with whom Drakeford talked, however,
no black person had ever expressed an interest in those positions. (App. 406)
Nearly three years after he filed his EEOC charge, and just four days
before the lawsuit was filed, Drakeford was promoted to foreman on February 28,
1977. Drakeford was the first black ever employed by Armour as a supervisor.
After becoming a foreman, Drakeford did not escape differential treatment.
Although hired to replace Gary McClellan on day shift, he was not put on
McClellan's job. Insteal he was put on the night shift beginning at 7:00 p.m.
Six months later, without telling him why, the Ccmpany moved his shift back to
4:00 p.m. Drakeford later learned that a white shipping foreman had wanted the
7:00 p.m. shift. (App. 555-56; PI. Exh. 16(b)) In addition to his changing
shifts, Drakeford found he was not assigned all supervisory responsibilities.
The General Foreman would grant leave to employees supervised by Drakeford
without advising him; other supervisors were provided assistance denied
Drakeford. (App. 556-57)
-1 6 -
On another occasion, the General Foreman yelled at Drakeford about a
product that Drakeford believed to be short and slammed the product down on
Drakeford s desk. Drakeford talked to Gibson and Stroud the next day, and they
assured him that such abuse would not happen again. (App. 557) For a time,
Drakeford had full control of his crew, but shortly afterwards he began having
the same problems and was again left without supervisory authority. Drakeford
again ccmplained about the difference in treatment and the harassment, but
received no relief. He requested a leave of absence, but was denied. (App.
564—67) Not being able to obtain relief, and being subjected to degrading
treatment, Drakeford left the Company on November 28. 1978. (App. 555-57; 865-
67; 957)
Mynell Bennett - Bennett was hired on July 16, 1971 as a probationary
employee assigned to a job limited to women in the Sausage Department. — '/
Bennett had favorable references, a good job record, and no complaints about
her work during the six months after she was hired. According to the Bargaining
Agreement, a person had to work thirty days during a consecutive sixty day
period in order to establish permanent status. One was classified as a proba
tionary or temporary employee until establishing permanent status. (Exh. 670)
The Company called probationary employees to work weekly or daily as
needed. Each supervisor was responsible for filling out weekly work complements,
and the Company had established no standards to govern the supervisor's discre
tion m calling prohationary employees for work. (App. 264-65; 777-89) Usually,
though, the most senior probationary employee would be called in. (App. 265)
In August, 1971, Armour hired several white wcmen from the closed Swift & Co.
facilities in Mecklenburg County. Although the former Swift employees were
junior to Bennett and were also probationary, the former Swift employees were
called in over Bennett. (App. 524-30)
8/ Until 1973 or 1974, Armour designated certain production jobs as "a" jobs,
which were limited to men; ,rb" jobs, limited to wamen; and "c" jobs, open to
both men and women. Bennett was assinged a "b" job. (App. 248-49) (testinnny
of Gibson)
-1 7 -
The Company also employed white high school students to work during the
summer months. These students were also called to work over Bennett. (App.
378-79; 528-29; 531-32; 931-32)
As a result of these practices, Bennett was unable to establish permanent
status and seniority. She inquired of her supervisor in January 1972 if the
Company was refusing to call her to work because of her race or because of her
work performance. Her supervisor, Snyder, assured her that her work performance
was acceptable— that if it had not been, he would have known weeks earlier. She
also talked to Mr. Strcud. After her conversation with Snyder, Ms. Bennett was
never called to work again. (App. 529-30) It was not until she attempted to
obtain unemployment compensation that Bennett learned that she had been fired.
The Company never gave her a reason for her termination. (App. 528-30)
The former Swift employees established seniority in December, 1971.
Bennett was never allowed to establish seniority although she was senior in date
of hire to the former Swift employees.
Janie L. Hill - Janie L. Hill, a black female, was hired by the Company on
June 3, 1971. She was also assigned to a female job in Sausage. Hill performed
her job proficiently and received no complaints about her work. However, Hill
was denied employment while junior white employees, including Sandra McAllister,
Ann Long, Ruth English, Peggy Hicks, and L. Purrell were allowed to work and
thereby establish seniority. These junior white employees established seniority
prior to Hill, who was unable to establish seniority until March, 1972. (PI.
Exh. 69; App. 539-545)
Laura Ellen (Harris) Harvey - Laura Harvey was employed by the Company on
January 8, 1973 as a keypunch operator in the office. At the time, other employees
in the Data Processing area included a computer operator and an order-writing
clerk. In 1973, Harvey was the first and the only black in the department.
(App. 613)
-1 8 -
In 1979, Harvey became the lead keypunch operator. Before she held that
position, it had been occupied by Barbara Baker (white). Barbara Baker had
been Harvey's supervisor, and supervised four people in the Department. At the
time, there were two blacks in the Department (including Harvey), and both
worked under Baker. Baker was trained for another job, and Gerald Morse (a
white who was Data Processing Manager) told Harvey that she was to get Baker's
position upon Baker's promotion. During the time that Baker was being trained,
Harvey acted as lead keypunch operator. (App. 614-15)
After Baker left, Harvey took over the supervisor's job. The position of
supervisor of the Department required that the supervisor log all incoming jobs,
distribute the work to the keypunch operators, and then see that the work was
done. (App. 617) However, the two white wcmen in the Department would not take
orders from Harvey. Harvey went to Morse about this problem and Morse said he
would take care of it. However, Morse "resolved" the problem by neetirg with
the white wcmen and keeping then under his personal supervision. Subsequently,
Harvey was permitted to supervise just the two black women in the Department,
and Morse supervised the two white wcmen. (App. 615-17)
In 1976, 1977, and 1978, Harvey applied to be a sales representative.
Although she spoke with several Ccmpary officials, she was told that Armour did
not hire black people in sales because the customers would not buy frcm than.
(App. 619) Each of the Company officials with whan she talked discouraged her
frcm applying and, although qualified, she was denied a sales position. (App.
618-21) Nevertheless, Harvey received very good performance evaluations (Exh.
748-58), and her 1975-76 evaluation noted she "needs the opportunity for
advancement" and listed sales as the most likely promotion. (Exh. 750) When
Mr. Dayvault was asked at trial if he knew any reason Harvey should not have
been hired as a salesperson, he replied: "No, sir, I do not." (App. 372)
-1 9 -
Harvey also complained about various other discriminatory practices. She
had applied to be trained on the switchboard, and was advised that she would be
trained, but she was denied training until two weeks prior to trial. (App. 620-21)
In addition, after complaining about the Company's racial policies, she was
required to work overtime more than other employees. (App. 635)
Being denied equal supervisory authority, and because she was unable to obtain
cooperation of the other employees or the assistance of Morris, Harvey left the
Company in March, 1979. (App. 616) In May, 1979, Harvey returned to Armour as
lead keypunch operator. At the time of trial, she did no supervising. Morse
did all the supervising. (App. 617-18)
Linwood Louis Edwards - Edwards began working for Armour on May 2, 1949 in
its Asheville, North Carolina plant. He supervised five to six employees in the
loading and unloading of trucks between 1967 and 1968. (App. 341-44)
In 1969, Armour closed its Asheville plant and transferred the four best
employees, including Edwards, to Charlotte, (testimony of Gibson, App. 428-31)
The Company's practice when it closed plants located nearby Charlotte was to
offer transferred employees positions in Charlotte that were comparable to
positions they held at the other locations. (App. 74, 198, 240, 937-39) For
example, J. E. Davis, G. E. McClellan, and W. F. Myers transferred from closed
facilities to the Mecklenburg facility as supervisors, as did Baumgardner, a
former Swift employee. (App. 309-10) Although also an experienced supervisor,
upon his transfer Edwards was placed in the Operations Department as a laborer.
(App. 341-46) Between 1969 and the time of trial, Edwards repeatedly requested
promotion or transfer to a supervisory job. Although he was qualified by experience
and had more seniority than the junior applicants, less experienced white
employees were appointed instead. (App. 432-34; 935-38) According to Manager
Gibson, Edwards was not offered a foreman trainee position because "I don't think
Mr. Edwards would have taken it," despite Gibson's admission that Edwards had
-2 0 -
continually requested assignment to the position. (App. 433) But no
explanation was given to Edwards why he was continually refused assignment as a
supervisor. (App. 344) In 1979, Edwards went on lay-off without having again
been considered for a promotion. (App. 344-45)
ARGUMENT
1. On Remand, The District Court Adhered To This Court's
Mandate In Every Respect._____________________________
On the first appeal, Armour ccmplained that it had been treated unfairly
because the district court had issued a Memorandum of Decision (App. 16-20)
which decided all issues; directed plaintiffs to prepare preposed findings and
conclusions; after which the defendant was requested to file alternative pro
posals (App. 34), hereupon the defendant in fact filed lengthy responses.
After reviewing all responses, the district court then issued its Findings of
Fact and Conclusions of Law. It was this process that the Fourth Circuit
criticized on the first appeal, and remanded the cause to the district court for
recons ideration.
On remand, the district court faithfully followed this Court's directives.
Prior to reaching any decisions on remand, the district court requested both
parties to attend a hearing at which the district court requested both sides to
submit new proposals which would alter the court's earlier findings and conclu
sions. Both parties submitted lengthy proposals. Armour submitted 29 pages of
preposed changes. (App. 1031-61)
It was only after receiving both sides' proposals, and considering them for
three months, that the district court made any decisions on remand. In a
Memorandum filed with the new Findings of Fact and Conclusions of Law, the
district court first reviewed the method it had followed in initially
drafting findings and conclusions. The district court then stated that it
understood that the
-2 1 -
Fourth Circuit discourages this [earlier] method of
preparation of findings of fact because it is feared
that the result may be partisan, argumentative, and
not the independent judgment of the trial court. With
this concern in mind, this court on ranand has held a
hearing and received extensive briefs frcm both
parties and has again carefully reviewed the Findings
and Conclusions in light of the parties' suggestions,
the evidence, the record, and the Court's opinion.
With several extra days of time invested in yet
another careful review of these Findings . . . this
court again finds that his independent judgment is
accurately contained in the acccmpanying Findings of
Fact and Conclusions of Law.
(App. at 1079-80).
The defendant's major complaint on this second appeal is not that the
procedures which the district court followed were improper, but that the Court
on remand reached a result contrary to what the defendant would have liked.
However, the fact that the defendant is displeased with the result of the
procedures followed on remand, does not mean that the procedures were defective
in any respect. In fact, as the district court repeatedly made clear in its
Memorandum, and its Findings and Conclusions, this decision is the product of
the district court's independent mind. Any challenge to the district court's
findings that is based upon the method by which they were developed is therefore
totally baseless.
This Court is, accordingly, obligated to give full expression to the
Supreme Court's recent decision in Swint v. Pullman-Standard Co. , ___U.S.___,
72 L.Ed. 2d 66, 80-81 (1982): "a court of appeals may only reverse a district
court's findings on discriminatory intent if it concludes that the finding is
clearly erroneous under Rule 52(a)."
II- The Court did not Abuse its Discretion in Allowing Hill, Edwards and
Harvey to Intervene as named Plaintiffs, Nor in Adjudicating all Individual
Claims Presented at Trial.____________________________________
After trial, but before Judgment, three members of the class who presented
claims at trial moved to intervene as named plaintiffs. The defendant claims
-22-
that these three class members' Motion to intervene was untimely and allegedly
"prejudiced" it in sane unspecified manner. Armour's contention that the district
court abused its discretion by allowing intervention is unsupportable in law
or fact.
The Fourth Circuit has repeatedly decided this precise issue against the
defendant. Brown v. Eckerd Drugs, 663 F.2d 1268, 1277-78 (4th Cir. 1981),
vacated and remanded on other grounds, U.S.__ (1982); Muskelly v. Whrner &
Swasey Co., 653 F.2d 112, 113 (4th Cir. 1981); Hill v. Wsstem Electric (Hill II),
672 F.2d 381 (4th Cir. 1982) (allowing intervention by class members after appeal
held that named plaintiffs dissimilar claims rendered then inadequate represen
tatives of intervenors' class); Chisholm y. United Postal Service, 665 F.2d 482
486-87 (4th Cir. 1981). See also United Airlines v. McDonald, 432 U.S. 385
(1977) (class members may intervene after judgment in order to protect their
interests in obtaining relief). As to Armour's generalized assertion that
it was "prejudiced", Eckerd Drugs is also on point:
"Indeed, since [the intervenor's] claim had been presented
at trial, it would be difficult for the defendant to
suggest that her metamorphosis [fran a class member witness]
into a named plaintiff worked to its detriment."
663 F.2d at 1278. Here, Armour knew of the Intervenors' claims long before
trial and fully litigated them at trial. Armour is simply seeking a second bite
at the apple. Intervenor status does not alter the fact that Edwards, Hill and
Harvey were members of the plaintiff class who proved their claims at trial, and
thus— even without intervenor standing— would be allowed to proceed to Stage II.
Therefore, having proved defendant's liability during Stage I, each would be
entitled at Stage II to an assessment of his or her damages.
The defendant also contends that it was somehow "improper" for the district
court to adjudicate even the plaintiffs' claims. Despite the fact that Armour
had full notice long before trial, and fought these individual claims tooth and
nail,it now asks this Court to give it a "second chance" to defend. However,
-2 3 -
the defendant never raised this objection below, and it does so now for the
sole purpose of getting a "second bite" at the apple.
It is important to note that each plaintiff and intervenor met a higher
standard of proof at trial than would have been required if he had waited until
the backpay stage of the trial, at which time he would receive the benefit of a
presumption of discrimination. See, e.g., Sledge v. J. P. Stevens & Co., Inc.,
585 F.2d 625, 636-43 (4th Cir. 1978). Relying on Sledge, Amour contends that
since a class member is not required to meet the more rigorous burden of proof
demanded of individuals at Stage I, Amour should not be required to rebut
individual claims until Stage II. But this argument is nonsensical: Sledge
held that class members were not required to prove individual claims during
Stage I of a bifurcated class suit; it did not forbid thorn frcm doing so.
Indeed, it is difficult to understand how Armour is "prejudiced" if the claim of
an individual discriminatee is so compelling that it meets the higher standard
of proof required of a plaintiff in Stage I. If Armour cannot rebut an indivi
dual claim during Stage I, then a fortiori it could not rebut that claim during
Stage II. —■
III. The Class Action Was Properly Certified.
Federal Rules of Civil Procedure Rule 23 sets forth several requirements
that must be satisfied before a class may be certified. A class is properly
certified if the representatives claims are typical of those raised by the class,
and the representatives will adequately represent the class claims; and if there
are questions of law or fact which are common to the class, and the class is so
_9/ Armour's reliance on EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633,
674 (4th Cir. 1983) is way off base. Federal Reserve Bank involved a situation
where the district court had ruled at the trial that it would not rule on the
merits of certain class members' individual claims, but would hear their testimony
solely to buttress the class claim. Thus, the panel opinion refers to the witnesses'
contention that "they were prevented by the District Court in proving their individual
claims" and their testimony "was not admitted to establish the class members” right
to relief." 698 F.2d at 675 (emphasis added).
-2 4 -
numerous that joinder is impracticable. Although Armour presents a generalized
shotgun attack on the district court's certification decisions, it fails to explain
exactly why certification was erroneous. The district court, in accordance with
Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d 267, 275-76 (4th Cir. 1980),
conditionally certified the class on May 1, 1979, and did not finally certify
the class ’until it assured itself after trial that classwide discrimination had
indeed occurred. Even on remand the district court took further steps to redefine
the class in light of a recent Supreme Court decision, General Telephone of the
Southwest v. Falcon, 72 L.Ed.2d 740, (1982). Here the nature of the case compelled
that the matter be treated as a class action. As pointed out in Stastny,
the class action and merit inquiries essentially
coincide. For to answer the procedural questions
[concerning class certification] in effect requires
answering the substantive question whether, under
either [disparate impact or disparate treatment]
theories, there exists the requisite 'pattern or
practice' sufficiently and comparably affecting an
identifiable class of protected employees.
628 F.2d at 274. As Stastny makes clear, it is the nature of the challenged
practices which determine the appropriateness and the scope of the class. Under
the Stastny criteria, therefore, it is apparent that the class here was properly
certified.
In summary fashion, the practices challenged included (1) the failure to
hire or promote blacks into supervisory, sales or office positions, and (2) the
denial of equal terms, status and conditions of employment to blacks by harassing
or retaliating against black employees who sought to exercise rights under
Title VII. Each of the named plaintiffs contend that he or she personally
suffered from one or more of these plant-wide policies, patterns and practices.
Each of the plaint if fs-intervenors thus meets the typicality criterion of Rule
23 and, since the challenged practices are plant-wide, they present issues of
law and fact that are common to the class of employees and applicants for employment.
-2 5 -
Typicality and Adequacy of Representation - With respect to the class
claim that Armour discriminatorily failed to hire or prcmote black employees
into office positions, including the sales department, both plaintiff Drakeford
and Intervenor Harvey were discriminatorily denied office or sales positions,
even though both were qualified for such positions. Although Frazier did not
sucessfully prcve his own claim to a sales position, he may also continue to
represent these claims. Brown v, Gaston County Dyeing Mach. Co., 457 F.2d 1377,
1380 (4th Cir. 1972). Drakeford, Harvey and Frazier are therefore proper
representatives of this portion of the class.
With respect to the foreman claims, Edwards was continuously denied assign
ment as a supervisor since his 1969 transfer into the Charlotte facility, even
though he was more qualified than the junior white employees promoted over him.
Additionally, plaintiff Drakeford was discriminatorily denied employment as a
foreman between his first application in 1973 until just shortly before suit when
he was finally appointed foreman. The Company cannot negate Drakeford's standing
to challenge earlier or subsequent discriminatory employment practices by the
simple expedient of offering him a supervisory position three years after his
EEOC charge and under threat of suit. Hackett v. McGuire Brcs. Inc., 445 F.2d
442, 445 (3d Cir. 1971) (former employee may represent current employee);
Brcwn v. Eckerd Drugs, supra 663 F.2d at 1275 and n.5 (same); Jenkins v. United Gas
Corp., 400 F.2d 28, 31 (5th Cir. 1968); Senter v. General Motors Corp., 532 F.2d 511
(6th Cir. 1976). Having been injured by the Company's continuing discriminatory
failure to hire him as a supervisor or salesman, Drakeford may represent a class
challenge to those practices. Chisholm v. United States Postal Service, 665
F.2d 482, 492-94 (4th Cir. 1981).
Nearly all of the plaintiffs and infervenors have suffered harassment and
retaliation after complaining about discriminatory treatment. Janie Hill (for
several months) and Mynell Bennett — ^ were each denied permanent status by
10/ Armour also suggests that Bennett was an inadequate representative of a class
of employees because, since Armour fired her, she is no longer a member of a class
of employees. However, it would create an anomalous result if an employer could,
merely by discharging a complaining miinority employee, eliminate her from con
sideration as a potential representative of miinority employees. See Long v. Sapp,
502 F.2d 34 (5th Cir. 1974). The Fourth Circuit has already ruledPChat a,former* s of current employees. Brown, 563 F.Zdat 1Z/5 n.5.
-26- (cont)
employee may represent a cl ass
Armour and were not permitted to establish seniority due to the Company's
practice of discriminatorily calling junior white employees in to work before
them. Bennett complained about discrimination and was promptly fired. Plain
tiffs Holsey and Frazier were not permitted to bump junior white employees and
thereby establish seniority in the Sausage Department after they complained of
discrimination. In addition, Laura Harvey and Drakeford challenged the fact
that they were subjected to different standards as supervisors than white
supervisors. All the plaintiffs' and intervenors' claims are typical of the
plantwide discriminatory practices they challenge. International Woodworkers
of America v. Chesapeake Bay Plywood Corp,, ____F.2d____, ____ (4th Cir. 1981);
Falcon v. General Tel. Co. of Southwest, 626 F.2d 369, 375 (5th Cir. 1980),
vacated and remanded on other grounds, ___U.S.___, 101 S.Ct. 1752 (1982). The
requirements of Abron v. Black & Decker, 654 F.2d 951 (4th Cir. 1981) have also
been met here since one or more of the named representatives alleged and were
found to have personally suffered frcm each of the challenged practices. — ■
Commonalty. The plaintiffs' and intervenors' complaints were also repre
sentative of pervasive plantwide discrimination commonly affecting all black
employees and applicants for employment at Armour's Charlotte Plant. In Parts
TV and V, the plaintiffs demonstrate the common reach of the employment
practices. To illustrate, the plaintiffs demonstrate that the Company admits
that it has done nothing to break down the de facto continued segregation of
bathroom facilities up to the time of trial; until pressure of suit, the Company
maintained a policy against having black supervisors or salesmen; Amour failed
TconE)
10/ Moroever, since Bennett seeks reinstatement, she would again be affected by the
challenged discriminatory practices if she were successful on her individual claim,
and thus she is a proper representative of a class of employees. See e,g., DeGrace
v. Rumsfield. 614 F.2d 796, 810 (1st Cir. 1980); Wetzel v. Liberty Mut. Ins. Co.,
508 F.2d 239, 250-51 (3rd Cir.), cert, denied, 421 U.S. 1011 (1975).
11/ Armour does not contend that plaintiffs-intervenors were inadequate representatives
3ue to any failure to vigorously represent or because of any conflicts of interest
with the class. Nor does Armour suggest that plaintiffs counsel has not adequately
Presented the class issues. Thus, these aspects of "adequacy of representation" are
not at issue here.
-2 7 -
to post vacancies, to advise employees of necessary qualifications for promotion
or selection criteria, and maintained other entirely subjective decisiomaking
processes; finally the Company subjected complaining blacks to unlawful
harassment. These policies and others (see parts IV and V)provide the "common"
set of challenged practices and policies. See Falcon, supra, 457 U.S. at 159
n.15; Chisholm, supra, 665 F.2d at 491-92.
Numercsity. More than 40 to 60 black employees of the Company and 20 black
applicants for employment annually have been affected by the Company's practices
concerning promotion, transfer or hire into supervisory or office positions,
and other differential treatment in the terms and conditions of employment. The
district court found as a fact that these large numbers made joinder impracticable
and thus satisfied the Rule 23 requirements.
The defendant attacks this ruling on numerosity, contending that since "only"
42 sales and foreman positions were filled during this period of liability (1971-80),
(the defendant incorrectly gives the number of sales/foramen vacancies as 34),
only 42 people could possibly be in the class. The Company's argument may be
relevant to a possible back pay limitation upon defendant's liability, see
White v. Carolina Paperboard, Corp., 564 F.2d 1073, (4th Cir. 1977) but is not relevant t<
the issue of numercsity. Numerosity is a function of the total number of
persons adversely affected by the challenged practices, and is not a function
of the number of positions which might have cane open in the past. Horne v .
Associated Grocers, Inc., 555 F.2d 270, 275-76 (10th Cir. 1977). Here all
black employees and applicants for sales or supervisory jobs were denied the
opportunity to compete for these jobs. Thus, they are legitimately part of
the certified class of black employees and applicants for sales and foreman
slots.
Moreover, all of the class members have been subjected to the defendant's
discriminatory practices, including segregated restrooms and lockers, the failure
-2 8 -
to post vacancies, the failure to provide written descriptions of positions,
the totally subjective criteria used to select applicants for the positions, the
disparate treatment accorded blacks when finally they were pranoted to positions
of responsibility, and retaliation practiced on all blacks who canplained.
All black employees and future applicants for sales/foronan slots have an
interest in overturning discriminatory policies which limit their opportunities
either new or in the future. The class mechanism is essential as a means of
effectuating a rsnedy for all such employees and future applicants.
The defendant's logic is flawed in still another respect. Even if the
class were limited to 42 persons corresponding to the 42 openings identified by
the defendant, it would be impossible to identify at the liability stage which
employees or applicants would have received the promotions or transfers, and
therefore joinder would be impracticable. In short, the mmercsity requirement
is met here (1) by a showing that the absolute numbers of class members is
large; (2) by a showing that it is impossible to identify which members of the
large nonemployee and employee greup would have been accorded benefits but for
the defendant's discriminatory practices; and (3) by a demonstration that all
employees and applicants for sales/supervisory jobs were similarly affected by
the defendants' discriminatory practices. See Falcon, 457 U.S. 159 n.15,
12/discussed infra. — ' The district court did not abuse its discretion. Barnett
12/ The defendant cites dictum in Kelley v. Norfolk & Western Ry. Co., 584 F.2d
24 (4th Cir. 1978) in support of its theory. However, Kelley involved representa
tion of an easily-identifiable group of employees of whom only 8 were apparently
qualified for promotion — two few for a class. In addition, Kelley recognized
tha numerosity turned on "the number of people who could have been injured by
such discrimination." 584 F.2d at 35. Here, all blacks were excluded from
promotion or hire into sales or foremen jobs and this practice affected all
blacks.
-2 9 -
v. W. T. G rant, 518 F.2d 543, 547 (4 th C ir . 1975).
The defendant also contends that the district court erred by including
applicants in the class, in asserted violation of Falcon. However, Falcon
expressley authorizes the inclusion of applicants in a class such as this:
"Significant proof that an employer operated under
a general policy of discrimination conceivably
could justify a class of both applicants and employees
if the discrimination manifested itself in hiring and
premotion practices in the same general fashion, such
as through entirely subjective decisionmaking processes."
457. U.S. at 159 n.15. (emphasis added) Here, plaintiffs have challenged the
"entirely subjective decisionmaking processes" utilized by Armour in its
selection of sales and supervisory personnel. Moreover, plaintiffs have proved
the existence of such "badges of discrimination." Therefore, the inculsion of
applicants in the certified class was proper. —
There is an equally compelling reason why including applicants was proper
here: Whatever standards Armour used for hiring salesmen/foremen were applied
equally to employees and nonemployee applicants. (App. 1108)
Thus, Drakeford, for example, has every incentive to litigate
to the hilt Armour's discriminatory refusal to hire any blacks including non
employee applicants, since Armour's pattern and practice of hiring no blacks into
sales because it did not want to be represented by a black face affects non
employee applicants in exactly the same way as employee applicants. Thus
black employee-applicants and nonemployee applicants share a "community of
interests." Hill v. Western Electric, Inc., 596 F.2d 99, 102 (4th Cir. 1979)
cert, denied, 444 U.S. 929 (1979). See Young v. Edgecombe Steel Co., 363
13/ With respect to sales and supervisory positions, several of Armour's policies
and practices, such as the college degree requirement adversely impacted employees
and applicants alike. As the Supreme Court recognized in Falcon, "[i]f petitioner
ysed a biased testing procedure to evaluate both applicants for employment and
incumbent employees, a class action on behalf of every applicant or employee who
might have been prejudiced by the test clearly would satisfy the commonality and
typicality requirements of Rule 23(a)." 457 U.S. at 159 n.15.
-3 0 -
F.Supp. 961 (M.D.N.C. 1 9 7 3 ) , m odified , 499 F.2d 97 (4 th C ir . 1974) (named
plaintiff, a current employee, may represent applicants since both suffered in
the same way fran use of unvalidated test).
Finally, the defendant argues that the district court erred in including
as part of the class those claims involving retaliation. However, the crux of
the retaliation claim is this: in every single instance between 1971 and the
time of trial, black employees who opposed discriminatory practiees or filed
EEOC charges were harassed and retaliated against. Such retaliation affects
every other noncanplaining black employee who might also have been discriminated
against, but who fears similar retaliation. Such other employees may very well
have been afraid to step forward to complain, even at trial, for fear of suffering
a similar fate. Thus, classwide treatment of the retaliation and harassment
claims gives expression to the common interest all black employees have in
protecting their rights under Title VII to oppose discriminatory practices
without fear of losing their jobs, or of other retaliation.
TV. The District Court's Findings With Respect To Class Claims Were Not
Clearly Erroneous.__________________________________________________
The plaintiffs and intervenors represented a class consisting of persons
who had been discriminaterily denied hire, promotion or transfer into supervisory
or sales positions, and who had been retaliated against and harassed after
submitting discrimination charges. Under Pullman-Standard v. Swint, ___U.S.___
(1982), 73 L.Ed. 2d 66, the district court's finding of classwide discrimination
on these issues is a finding of fact which may be reversed only if clearly
erroneous. Here, in evaluating the evidence and considering the credibility of
the witnesses, not only was the district court not clearly wrong, it was clearly
right.
This case was litigated under three theories of liability: (1) disparate
Mpact; (2) disparate treatment; and (3) pattern and practice. Under the three-
-3 1 -
step disparate impact theory, a plaintiff must first show that a facially neutral
employment practice had a significant discriminatory impact upon his racial group.
Such a showing of impact is most often made by demonstrating that given criteria
had the effect of excluding blacks at a rate greater than 80% (four-fifths) of
14/the rate at which whites were excluded. — ' Second, once plaintiffs have demon
strated such "impact," the employer has the burden of persuasion to demonstrate
that the "given requirement [has] a manifest relationship to the employment in
question." Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). Even if the employer
demonstrates the job-relatedness of the criteria, however, in the third step plaintiffs
may prevail if they show that the employer had other, less harmful alternatives.
In a disparate treatment class action, the ultimate issue is whether an employer
regularly and purposefully treats or has treated blacks less favorably than whites
and whether this disparate treatment is racially motivated. International Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 (1977). The plaintiffs'
prima facie showing may in a proper case be made out
by statistics alone, ...; or by a cumulation of
evidence including statistics, patterns, practices,
general policies, or specific instances of discrimi
nation.
EEOC v, .American National Bank, 652 F.2d 1176, 1188 (4th Cir. 1981) (citations
emitted) If the prima facie case is established by . . . statistical evidence,
the employer may nevertheless rebut it . . . by "demonstrating that the [plaintiff's]
proof is either inaccurate or insignificant." Teamsters, supra, 431 U.S. at 360.
Finally, in a pattern and practice case, if plaintiffs show that the defendant
engaged in "intentional segregative action," Evans v. Harnett County Bd. of Educ.,
IhJ See Connecticut v. Teal, ___U.S.___, 73 L.Ed.2d 130 (1982); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 425 (1975); and James v. Stockham Valves & Fittings
Co., 559 F.2d 310, 334-39 (5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978)7
Tbe EEOC has promulgated administrative rules which adopt this "four-fifths" rule.
See 29 C.F.R. Part 1608.
-3 2 -
684 F.2d 304, 307 (4th Cir. 1982), the burden of persuasion shifts to the
defendant to demonstrate that a given individual would not, in all events, have
received a given job. See Teamsters, 431 U.S. 324. in a pattern and practice
case, no class need be certified in order for plaintiffs to be entitled to
broad, class-type injunctive relief. Moreover, under Evans, if a pattern or
practice of discrimination is shown to exist, each individual affected by the
practice is presumed to have been the victim of discrimination, unless the
defendant can prove he was not.
The district ccurt, after evaluating the evidence under each of these
theories, concluded that plaintiffs had demonstrated liability. The pattern
of intentional exclusion of blacks from sales and supervisory jobs, coupled
with statistical evidence, evidence of practices, general policies, and specific
instances of discrimination overwhelmingly meet each of the standards under
each theory.
The Pattern of Intentional Segregative Action. Here there were no black
salesmen until 1978, and no black supervisors until four days before this suit
15/was filed. — Between 1971 and 1977, defendant hired 19 foranen and 23 sales
men. Not one was black. This result can be attributed to Armour's stated
policy that it did not want blacks in sales because it feared customers would
not buy from a black salesman. (App. 619) Additionally, Armour's practice
of (1) actively discouraging blacks frcm applying for sales and supervisory jobs
(App. 389; 553); (2) not comparing the qualifications of black applicants with
those of whites actually hired (App. 405-06); and (3) maintaining segregated
restrooms and lockers even at the time of trial in 1980 (App. 250-51) further
15/ Job offers made under "the threat of an EEOC complaint . . . .are entitled
to little weight." Ford Motor Co., 645 F.2d at 197. Here, no black salesmen was
appointed until after suit was filed, and the first black foreman (Drakeford) was
n°t appointed until 4 days prior to this suit, and one month after the EEOC issued
Drakeford his right to sue letter. (Exh. 570)
- 3 3 -
demonstrates that the total exclusion of blacks fran these positions did not
occur by chance. This ccurt has consistently held that evidence such as this
by itself provides a substantial basis upon which a district court may infer
a pattern of discrimination. In EEOC v. Ford Motor Co., for example, this
court found a pattern of sex discrimination based upon a total exclusion of
women fran warehouse jobs before 1973, even though the employer "made only
one contested employment decision between 1971 and 1973." 645 F.2d 183, 197
(4th Cir. 1981), vacated as to remedy, ___ U.S. (1982). Similarly, in
American National Bank, supra, 652 F.2d at 1189-90, this Court found a prima
facie case "compelling" and "firmly established" by evidence that in one faci
lity during "four of seven years there were no black officials and managers; for
the remaining three years there was one black employed in that category (2.7-2.8%)
[out of a total of 37 positions]. The percentage of blacks in the available
workforce was 4.8-6.9%." 652 F.2d at 1190. Similarly, here at the time of
trial, Armour employed approximately 32 persons in sales and 40 in management.
No salesmen were black and only two black foramen had been appointed. See also
Bravn, 663 F.2d at 1270 n.2 (finding classwide discrimination upon evidence
showing total exclusion of blacks frcm "main office" supervisory jots, and
only three black supervisors (3.09%) out of a total supervisory force of 97).
Cf. Cline v. Rodeway Express, Inc., 689 F.2d 481 (4th Cir. 1982) (in individual
age case, finding discrimination largely upon evidence "suggestive of a general
policy" of discrimination).
Statistical Evidence. In addition to evidence of an intentionally adopted
policy and practice of excluding blacks, plaintiffs also demonstrated their
case through an exhaustive Availability Study. (Exh. 834-882) During the
Period encompassed by the suit, blacks constituted between 10.65 and 17.05%
°f the internal qualified available workforce for sales and between 14.66 and
- 3 4 -
32.11 percent for supervisors. — '/ Between 1971 and 1977, when suit was filed,
the defendant hired 19 supervisors and 15 sales representatives. None were
black. The plaintiffs' expert witness concluded that race was a factor in this
result. (Exh. 852; Exh. 863) Thus, the defendant’s hiring practices into
foreman and sales positions prior to 1977 constitutes the "inexorable zero"
relied upon by the Supreme Ccurt in finding discrimination in Teamsters, 431
U.S. at 342 n.23.
A recent Fifth Circuit case, Carroll v. Sears, Roebuck & Co., ___F.2d___,
32 FEP 286, 294 (5th Cir., June 30, 1983), reversed a district court's
finding of no discrimination in promotion to (1) salaried jobs; (2) Division
Manager positions; and (3) "other managers" where the defendant failed to hire
16/ The defendant assails plaintiffs' Availability Study as concluding
blacks were in fact more available for sales jobs than their current repre
sentation in the general population workforce (SMSA) would indicate.
The reason for this is simple: Armour did not draw its salesmen from
the SMSA "pool" of already employed salesmen. Instead, Armour drew upon
other sources such as its own Operation Department which are not reflected
m the SMSA data. The district court specifically found this Study to be
reliable. See EEOC v. Radiator Specialty, 610 F.2d 178, 186-187 (4th Cir.
,,.79) (proper regard to be given to qualified labor market statistics
JiLthe absence of evidence indicating the actual percentages of blacks
j n lower positions who possess the required qualifications." (emphasis
-35
any blacks into 22 to 26 such positions. — '/ The Fourth Circuit has also
ruled that evidence of such statistical disparity by itself demonstrates a
pattern and practice of discrimination. Arterican National Bank, 652 F.2d at
1189-90 (evidence that there were no black managers during 7 years, despite
availability of 8.0-10.9% "firmly support[s]" finding of prima facie case).
In addition to all the other evidence, plaintiffs also demonstrated that
Armour continues to employ promotion practices repeatedly condemned by the
courts "for their tendency to perpetuate [racial] inbalance[s]" American National
Bank, 652 F.2d at 1198, and which constitute "badges of discrimination that
serve to corroborate, not rebut, the racial bias pictured by the statistical
pattern of the . . . work force." Brown v. Gaston County Dyeing Mach. Co., 457
F.2d 1377, 1383 (4th Cir. 1972). Armour does not post sales or supervisory
vacancies, crticized in United States v. Chesapeake & Ohio Ry. Co., 471 F.2d 582
(4th Cir. 1972), cert, denied, 411 U.S. 973 (19 ) or provide written job
17/ Most notable, however, is that Sears never had a
salaried black employee during the period covered
by this lawsuit even though there were 22 to 26
such positions in its workforce. Of the division
managers, the total number of blacks varied from
14.5 percent in 1974 to 18.7 percent in 1977 even
though the workforce was 26. 8 percent black in 1974
and 34.3 percent black in 1977. For the category
"other managers," only 2 of 49 were black in 1974,
and there were no blacks of 28 in 1977. These
comparisons, and especially the "inexorable zero"
found in the salaried employee category, show a
gross disparity in the treatment of blacks in
promotion to top managerial positions.
•k -k *
We also note that this discrimination was prolonged
in nature. Sears made little or no gain in the
promotion of blacks to managerial or salaried positions
between 1972 and 1979. This supports the conclusion
that discrimination in promotion was the "regular rather
than the unusual practice." Teamsters, 431 U.S. at 336.
Carroll, 32 IEP at 293-94.
-3 6 -
descriptions for these positions or publish criteria that are utilized to select persons
for vacancies, condemdd by Albemarle Paper Co. v,.Moody, 422 U . S. 405 (1975).
Such practices were found to warrant "strict scrutiny" in Carroll, supra, 32
FEP at 293. See also Barnett, 518 F.2d at 549 (4th Cir. 1975) ("word-of-mouth
hiring . . . is discriminatory because of its tendency to perpetuate the all-
white composition of a workforce"). "With notice of job openings and the
qualifications desired, blacks are totally dependent upon their white super
visors for premotion and economic advancement." Baxter v. Savannah Sugar
Refining Corp., 495 F.2d 437 (5th Cir. 1974). See Rogers v. International
Paper Co., 510 F.2d 1340 (8th Cir. 1975) vac, and remanded on other issues,
423 U.S. 809 (1975); James v. Stockham Valves & Fittings, 559 F.2d 310, 346
(5th Cir. 1977).
Moreover, supervisory and sales personnel are selected pursuant to subjective
standards. "Given the importance of supervisory ratings and opinions and the
presence of unwritten, subjective criteria for premotion, black employees face
a greater risk of discrimination at [Armour]." Carroll, 32 FEP at 293. See
Stacy, Subjective Criteria in Employment Decisions Under Title VTI, 10 Ga.L.Rev.
737 (1976). Finally, to be selected for sales or a supervisory job, an employee
needs a favorable recommendation from the all-white supervisory and management
staff. See EEOC v. Ford Motor Company, 645 F.2d 183, 198 (4th Cir. 1981)
("Ford's informal hiring procedure, which relied heavily on the recommendation
of a current employee, was [sexually] discriminatory because Ford1s workforce
consisted only of men."); EEOC v. American National Bank, 652 F.2d 1176, 1197-1200
(4th Cir. 1981).
Moreover, the testimony of several black employees who actively sought
office or supervisory positions must be viewed against the statistical back
-3 7 -
ground and prevalence of subjective decision-making. American National Bank,
sugra, 652 F.2d at 1198. The defendant boldly declares that these individual
incidents are "isolated" or "accidental." But Armour's ire re declaration cannot
obscure the discriminatory patterns, practices and policies exemplified by the
Ccmpany's failure to promote or hire a single black supervisor or salesman until
twelve years after the effective date of Title VII, despite black application,
qualification and availability; the Company's belief that customers would not
buy from a black salesman; its permitting the continuance of segregated lockers
and rest rooms; its active discouragement of black employees who were interested
m advancing into the office or supervisory positions; its failure to post infor
mation concerning such vacancies; its maintenance of subjective promotion
standards administered by an all-white hiring force; and its failure to support
or give full authority to those blacks who eventually, under the pressure of
litigation, were appointed to positions of authority; and finally, its intimi
dation and harassment of blacks who complained about these practices and others
by discriminatorily operating the seniority system.
Plaintiffs also demonstrated that these practices utilized by Armour
demonstrated an adverse impact. Although plaintiffs do not contend that Armour's
employment practices as a whole should be evaluated under the adverse impact
standard, see EEOC v. Federal Reserve Bank, 698 F.2d 633, 639 (4th Cir. 1983),
plaintiffs do contend that it is appropriate to evaluate under the adverse
impact standard the college degree requirement for foremen positions; Armour's
failure to post vacancies; Armour's failure to publish selection criteria;
and its reliance on subjective recommendations by an all-white supervisory staff,
jjge Ford Motor Co., 645 F.2d at 198 (evaluating such policies under adverse
“Kpact standard). These criteria all "operate as built-in headwinds," to
Prevent minority advancement. See Griggs, supra, 405 U.S. 424.
-38-
The defendant's argument that the college degree requirement of the fore
man trainee program did not create a disparate impact because only eight posi
tions were filled misses the point. "The proper focus when determinirg the
disparate impact of an employment condition is on those excluded by the require
ment, not on the number of positions to be filled as [Armour] suggests."
Payne v, Travenol Laboratories, Inc., 565 F.2d 895, 899 (5th Cir. 1978) (holding
that statistical proof that a company employed only five persons subject to a
college degree requirement was adequate upon a showing that all five analysts
were white). Armour made no effort to establish the job relatedness of the
degree requirement for the foreman trainee program See e.g. Griggs v. Duke
Power Co., 401 U.S. 424 (1971) (striking down high school degree requirement
where defendant did not demonstrate that the requirement was related to job
18/performance). — The defendant admits that though the supervisory trainees
were college graduates, no such training was necessary to perform the jobs to
which they were assigned. Indeed, the Company's actual experience with the
requirement demonstrated its total irrelevance to any function of the low
level production supervisor. Nearly all of the frustrated college grads either
dropped out of the program or left shortly after beccmirg foreman. The Company
admits that the trainee program was a total failure in terms of enhancing the
"qualification of its management".
The plaintiffs' proof that the defendant harassed those employees who
challenged its discriminatory practices is also sufficient to make out a prima
_ 18/ Townsend v. Nassau County Medical Center, 558 F. 2d 117 (2nd Cir. 1977),
cited by defendant, is inapposite. In Townsend, by contrast to the case at
hand, (1) whites as well as blacks had been affected by the degree requirement:
of the four persons "demoted for failure to satisfy the new job requirements,
three were white," (2) the plaintiff there "adduced no evidence whatsoever of
intentional discrimination past or present," by the defendant; and (3) the
plaintiff in Townsend had introduced no evidence relating to the general
employment practices of the particular defendant, and the district court had
refused to adjudicate whether the college degree requirement discriminated
against blacks in general. 558 F.2d at 119-21.
-39-
facie case of intimidation under §704(a). Five of the seven named representa
tives presented cases of individual harassment. Each black Employee who ever
complained to Armour has suffered retaliation. Obviously, statistics concerning
the effect of the defendant's harassing tactics upon other class members is
unavailable. However, each of the complaining parties suffered several indivi
dual instances of harassment, and thus together have demonstrated a pattern to
the defendant's behavior. See e.g., EEOC v. Ford Motor Co., 645 F.2d at 197
(although employer made only one contested employment decision between 1971 and
1973, its pre-1972 record of employment discrimination coupled with a history
of totally excluding women from permanent employment made out a prirna facie
case of discrimination); Ste. Marie v. Eastern RR. Ass'n, 650 F.2d 395, 406
(2nd Cir. 1981) ("if there were evidence that a policy of discrimination had
been adopted, perhaps two or even one confirmatory act would be enough" to
support an inference of a practice of discrimination).
It is exceedingly important in employment disc rumination cases that an
employer not be permitted to harass or intimidate employees who oppose
allegedly discriminatory treatment or practices or who participate in formal
EEOC proceedings. All class members have a profound interest in ensuring
that they are not harassed or intimidated in the future for exercising their
rights under Title VII.
V. The District Court's Findings With Respect to the Individual Claims are
Not Clearly Erroneous._______________________ _________________
A. The Defendant Has Not Demonstrated That The District
Court's Finding That Holsey And Frazier Were Discrimi-
natorily Denied Bumping Rights Is Clearly Erroneous.
The district court's findings with respect to Holsey's individual claim
are not clearly erroneous. Holsey's testimony concerning his pre-EEOC charge
difficulties in his department are probative of Armour's discriminatory attitude
-4 0 -
towards its black employees. After Holsey filed his charge in March, 1974, the
Company began a pattern of harassing him by, for example, placing unwarranted
warning slips in his file, failing to pay him monies he was due, failing to call
him back in the proper seniority order, and failing to give him vacation pay.
Holsey was required to file grievances on each of these incidents.
As to the refusal to permit Holsey to bump junior employees on the weekly
work complements, the district court's findings are also not clearly erroneous.
During the temporary layoffs, any employee with five or more years seniority was
permitted to exercise that right on a weekly basis. The Company's own witness
testified that unless Holsey declined bumping rights after establishing five
years, he would be entitled to bump another employee elsewhere. Under this
official's interpretation of the contract, Holsey should not have been on layoff
during the time any junior employee was working. However, the evidence showed
Holsey was on lay-off while junior whites were protected from being bumped by
Holsey. (App. 823-83)
With respect to the permanent layoffs, the defendant attempted to show that
Holsey was "unaffected" by the second permanent layoff on February 26, 1975.
However, the evidence shows that Holsey was in fact on layoff during this period
of time.
Thus, the district court refused to credit the Company's assertion that
Holsey's job had not been "permanently" eliminated. Armour also claimed that
the junior whites working in Sausage were "daily replacement workers, and... not
subject to the normal bumping rules." However, the district court ruled that
the junior white Sausage employees were not temporary employees, and therefore
that they were subject to being bumped. This finding is not clearly erroneous.
Plaintiff Frazier was also denied the opportunity during a two week lay-off
in December 1974 (App. 827) to use his five years seniority (achieved after
-41-
July 21, 1974) to bump junior white employees in Sausage. Like Holsey, he had
filed charges with EEOC in March 1974 and suffered the same discrimination
because of it. (App. 584-89, Exh. 594)
B. The Defendant Has Not Demonstrated That The District
Court's Findings That Drakeford Was Discriminatorily
Denied Sales And Foreman Positions, Harassed And
Constructively Discharged Are Clearly Erroneous.
Drakeford demonstrated that he had been (1) discriminatorily denied promotion
to supervisory positions; and (2) denied promotion to sales; and (3) constructively
discharged.
1. The district court held that between 1973 and 1977, Drakeford had been
continuously and for discriminatory reasons denied promotion to foreman. — /
Drakeford was clearly qualified for promotion in that he had received two years
of college, business or mechanical training, had served for three years in the
Marine Corps, during which time he was a squad leader, had received high perfor
mance ratings, was familiar with Armour's products and had served the Company in
three of the four production departments. The Company admitted that Drakeford
was qualified in 1973 for the Foreman position, but that it didn't promote him
until 1977. (App. 882, 935)
At trial, Armour's Manager Gibson attempted to explain the Campari's reasons
for passing over Jackie Drakeford in favor of a junior white— Roof— with less
experience and less time with the Company:
19/ Armour vaguely suggests (Br. 42) that there was no promotion within 180
days prior to Drakeford's EEOC charge. However, Armour's continuing failure to
promote Drakeford is a continuing violation. Chisholm, supra, 665 F.2d at 490
n*11' Clark v. Olincraft, Inc., 556 F.2d 1219, 1222 (5th Cir. 1977). Additionally,
Drakeford’s claim falls within the scope of Bennett's EEOC charge, which was
filed January 27, 1972. Wheeler v. American Heme Products Corp., 582 F.2d 891
(5th Cir. 1977); Rcmasanta v. United Airlines, Inc., 537 F.2d 915, 919-20 (7th
Cir. 1976), aff'd sub, ncm. United Airlines, Inc. v. McDonald, 432 U.S. 385;
Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968T- Bennett's
charge raised issues involving hiring, assignment, premotions and transfers,
and retaliation because of efforts to exercise rights under Title VII. EEOC v.
general Electric Co., 532 F.2d 339 (4th Cir. 1976); Sanchez v. Standard Brands,
Inc^, 431 F .2d 455 (5th Cir. 1970).
- 4 2 -
(Questions by Mr. Loftis, Armour's Attorney)
Q Can you explain to the Court why you did not give the job
to Mr. Drakeford?
A I did not feel at that time that Jackie was ready to take
that job. Jack was very much considered, yes, sir.
Q Can you explain what was it about Mr. Drakeford that
caused him not to be ready?
A Jackie at that time, I'm sure, was in the Beef Department,
and he had been gone from the Operating Department and
seme innovations had been made, and the familiarization
with this, he could have grasped it. He could have
done it, but I didn't think at that time...
The only "reason" articulated by the Company at trial for Drakeford's nonselection,
therefore, was that Drakeford "was not ready" to be a foreman in Operations due
20/to seme ’unspecified "innovations." — 7 However, Gibson admitted that Drakeford
could handle the job in spite of the alleged innovations]
2. Drakeford also demonstrated that he applied, was qualified, but was
discriminatorily rejected for a sales position. The defendants only defense to
Drakeford's sales claim was that he "never applied." (Br. at 42) However,
Drakeford testified that he (Drakeford) approached Sales Manager Dayvault, (App.
553). told Dayvault he was interested in a sales job (App. 554) asked Dayvault
"if he had any positions open in sales. [Dayvault] said he didn't but when he
did he would let me know something about it." (App. 553-54); and (Dayvault never told
Drakeford about any openings , despite his promise to do so. (App. 553, 563)
20/ In its brief (pps. 11, 42), Armour argues that Drakeford was not selected
because Roof had been in Operations "for several years," and that Drakeford had
not been in Operations "for several years." As this reason was not advanced
bŷ Armour at trial, it is yet another instance where Armour violates the Burdine
rtle that arguments of counsel are not legally sufficient to constitute an
articulation." Texas Dept, of Community Affairs v. Burdine, 450 U.S. at 255
n.9. Moreover, the record demonstrates that Roof had been hired barely two
years prior to his promotion (not "several years"); that Drakeford had been
with Armour four years, one of which was in Operations; and that Roof was
employed as a "Beef Cutter" (not as a lugger-loader in Operations) at the time
his promotion to foreman. (Exh. 421; 633)
- 4 3 -
Contrary to defendant's assertion, therefore, Drakeford's conversation with
Dayvault constitutes an "application" for a sales position because: (1) Drakeford
told Dayvault he wanted a sales job (App. 554); (2) Dayvault never told Drakeford
to fill out a written application; and (3) the Company did not require employee/
applicants to fill out written applications; one Company official testified that
one means that an employee could apply for promotion to a salaried job such as
sales was to talk to a supervisor. (App. 203)
At the time of Drakeford's request to be considered for sales, Armour had
no blacks in sales; had told Harvey it didn't want any blacks in sales; and had
actively discouraged other blacks from applying for sales jots. Moreover,
Armour didn't post or otherwise advertise vacancies in sales, so it would have
impossible for Drakeford and other blacks to know when vacancies arose. After
reviewing this evidence, the district court found that the defendant's only
articulated reason for not promoting Drakeford into sales was pretextual. The
defendant has not shown that the district court's conclusion that Drakeford
applied for a sales job is clearly erroneous. ~
3. The evidence fully supports a determination that Drakeford was construc
tively discharged. The general rule for Title VII cases is stated in Bourque v.
Powell Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980):
To find constructive discharge, we believe that "the
trier of fact must be satisfied that the . . . working
conditions would have been so difficult or un
pleasant that a reasonable person in the employee's
shoes would have felt compelled to resign."
(emphasis added).
. 21/ Under this evidence, even if Drakeford had not applied for a sales posi
tion, he still meets the standard under Teamsters that he would have applied
if he had known of vacancies. See 431 U.S. at 367-71.
The Company also argues, for the first time on appeal, tha Drakeford never
indicated he applied for a sales position until the time of trial. A similar
argument was rejected in EEOC v. Ford Motor Co., 645 F.2d at 188 n.4.
- 4 4 -
In recent Title VII cases involving constructive discharges, the Fourth
Circuit has adopted this position. In Abron v. Black and Decker (U.S.) Inc.,
654 F.2d 951 (4th Cir. 1981), aff'g in pertinent part, 439 F.Supp. 1095 (D.Md.
1977), this Court affirmed a district court determination that the plaintiff
was constructively discharged when, after her return to work after medical
leave, her employer refused to transfer her temporarily to light work for reasons
of health as recommended by her physician. 654 F.2d at 952. See also Brown v.
Eckerd Drugs, supra, 663 F.2d at 1272-74; Sherrill v. J. P. Stevens & Co., Inc.,
'410 F.Supp. 770, 781-82 (W.D.N.C. 1975), aff'd 551 F.2d 308 (4th Cir. 1977)
(where employer required black employees to perform additional duties not required
of whites, the employees' subsequent discharge violated Title VTI even though no
specific harassment was involved and the particular plaintiffs "voluntarily"
left work. But see Federal Reserve Bank, 698 F.2d at 672. — ■ In view of these
cases, Drakeford clearly demonstrated that he was constructively discharged.
The facts of Drakeford's case exposes a long trail of discriminatory treat
ment. Between July 1973 until February 1977, Drakeford had been continually
passed over in favor of lessor qualified, junior white employees. He was made
intimately acquanted with the Company's deliberate policy of not promoting
blacks to any management position or sales positions. When the Company finally
gave him his long-overdue promotion, Drakeford had already been subjected to
years of discouragement. Yet he stayed on the job.
22__/ Federal Reserve Bank seems clearly to conflict with Abron, Brown and
Sherrill on the standard to be applied in constructive discharge cases. Although
both the Abron majority and dissent, as well as the district court, believed
that Ms. Abron had been unlawfully discharged, none of the opinions required a
shewing that the employer had deliberately refused her transfer for the purpose
of forcing her to resign. Brown and Sherrill are to the same effect.
Nevertheless, whether evaluated under Federal Reserve Bank or Abron, Brown,
and Sherrill, the district court's decision that Drakeford was constructively
discharged is supported in the record.
- 4 5 -
Nor did the different treatment end when Drakeford became the first and
only black supervisor the Company had ever had. He was hired to replace McClellan,
a day-shift supervisor; instead he was placed on the night shift, caning in at
7:00 p.m. in the evening, so that a white foreman could have the day shift.
Later, his shift was moved back to 4:00 p.m. because another white shipping
foreman wanted the 7:00 p.m. shift. (App. 405) Although Drakeford performed
well as a supervisor, the general foreman harassed him. For example, on one
occasion when Drakeford shorted a product, the general foreman came up to him at
•the desk where he was sitting and "slammed the thing down in front of me, the
list, and told me that we had the product in the house. So I was real upset
about it. I didn't even go to bed at night." (App. 557) Drakeford sought
assistance from Gibson and Stroud, but he obtained no lasting relief.
The straw that finally compelled Drakeford to leave was when the Company
refused to grant him the supervisory authority given to white foremen in his
position. Others were permitted to take charge of his crew, and he was left
without the necessary personnel to perform his job properly. The daily insult
of being treated as a second class foreman sapped Drakeford's determination to
continue his decade-long battle to achieve equal status with white employees.
In light of the Company's history of discrimination against its black employees,
and particularly its refusal to appoint ary blacks as supervisors until Drakeford,
it is not surprising that these additional 'unlawful conditions left Drakeford
with only one option left to preserve his self-respect. As stated in Abron,
"[t]here is no requirement of a return to abusive corxiitions. " Unable to continue
to accept these intolerable conditions on his employment, Drakeford asked Mr.
Stroud for a transfer. "I said, Mr. Stroud, what's the chance of me getting a
transfer out. His words to me was [sic] about like a snowball in hell. After
that, I didn't know where to turn to. I just got fed up with it and that's when
- 4 6 -
I left." (App. 557) Thus, the evidence supports the conclusion that Drakeford
"resign[ed' in order to escape intolerable and illegal employment requirements."
Young, 509 F.2d at 144. — /
C. The Claim of Intervenor Bennett is not Barred by Laches;
The District Court's Findings on Bennett's and Hill's
Individual Claims are not Clearly Erroneous.
1. Plaintiff-Intervenor Mynell Bennett filed her charge on January 27,
1972. Presumably, Amour was notified of her charge within the 10 day statutory
period and could then take steps to investigate the facts and preserve any evi
dence. Subsequently, the EEOC investigated the charge, interviewed several
witnesses, and on August 25, 1976, issued a several page "Detemination" of
reasonable cause. After conciliation efforts failed, Bennett obtained a right-
to-sue letter on May 17, 1977 and promptly moved to intervene in the present
proceeding. The defendant now. contends that by patiently waiting for the EEOC's
investigative machinery to produce results between January 27, 1972 and August
25, 1976, Bennett should be barred frcm seeking ary relief. There is no legal
nor factual support for the defendant's argument.
When considering Title VII legislation, Congress set out two alternative
procedures a charging party may follow: (1) await the outcome of EEOC adminis
trative procedures and then bring suit if EEOC conciliation efforts are
unsuccessful; or (2) "she may elect to circumvent the EEOC procedures and seek
relief through a private enforcement action in a district court," but only after
obtaining a right-to-sue letter at least 180 days after the charge was filed.
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361 (1977) (emphasis added)
23/ The situation presented here is strikingly similar to that in Brown, 663
F.2d at 1274. Brown upheld a district court's finding that Brown was con
structively discharged where Brown was treated rudely by a white employee, and
not supported by management; Brown was called a racial epithet and denied
assistance by her supervisor and dealt with in an abusive manner during a con
ference with her supervisors. As detailed in text, Drakeford received similar
treatment. (Although not called a racial epithet, he daily confronted segregated
restrooms and had certainly observed Armour's racial motivation when between 1971
and 1976 it passed him over for promotion time after time in favor of lesser
qualified whites.)
- 4 7 -
(holding that Title VTI imposed no limitations period within which the EEOC was
required to bring any enforcement suit). Congress clearly preferred that
litigants adopt the first alternative. The Congressional Conference Canmittee
Report on the 1972 Amendments stated that:
[i[t is hoped that recourse to the private lawsuit
will be the exception and not the rule, and that the
vast majority of complaints will be handled through the
offices of the EEOC . . . However, as the individual's
rights to redress are paramount under the provisions of
Title VII it is necessary that all avenues be left
open for quick and effective relief.
Conference Canmittee Report, 118 Cong. Rec. at 7168 (1972), quoted in 432 U.S.
at 366. Thus, Congress emphasized that private litigants were to be encouraged
to seek redress through EEOC procedures instead of through private lawsuits.
Since Congress established a statutory preference that all discrimination
charges be first confronted by the EEOC, employees who file charges with the EEOC
have a right to "await the completion of the EEOC administrative process."
Bernard v. Gulf Oil Coal Co., 596 F.2d 1249, 1256 (5th Cir. 1979) (suit prcperly
filed more than nine years after filing of charge), adopted on rehearing en banc,
619 F.2d 459, 463 (5th Cir. 1980); Kirk v. Rockwell Int'l Corp., 578 F.2d 214,
816-19 (9th Cir. 1978) (action filed more than five years after the alleged
discriminatory act); Stallworth v. Monsanto Co., 21 EPD 1130,425 (D.Fla. 1979)
(delay of more than ten years between filing of EEOC charge and filing of judicial
complaint is not unreasonable and, even if employer is prejudiced by delay, com
plaint is cognizable since complainant is within his rights to await his right-
to-sue letter from EEOC). An employee who agrees to permit the EEOC to attempt
to resolve her complaint ought not to be penalized for acquiescing in clearly-
stated national policy. See Occidental, supra. Nor should she be penalized
because EEOC procedures are time-consuming. In ary event, the four and one-half
year interval between Bennett's charge and the EEOC's Cause Determination is not
sufficiently lengthy to permit Armour to invoke a laches defense.
- 4 8 -
The defendant's claim of prejudice is also unwarranted. In Occidental, the
Supreme Court recognized that an allegation by an employer that it had been
prejudiced by inordinate delay was extremely suspect in light of the detailed
procedures for notification.
The absence of inflexible time limitations on the
bringing of lawsuits will not, as the company asserts,
deprive defendants in Title VII civil actions of fun
damental fairness or subject than to the surprise and
prejudice that can result fran the prosecution of stale
claims. Unlike the litigant in a private action who
may first learn of the cause against him upon service
of the complaint, the Title VII defendant is alerted to
the possibility of an enforcement suit within 10 days
after a charge has been filed. This prompt notice serves,
as Congress intended, to give him an opportunity to
gather and preserve evidence in anticipation of a Court
action. Moreover, during the pendency of EEOC adminis
trative proceedings, a potential defendant is kept informed
of the progress of the action. Regulations promulgated
fcy the EEOC require that the charged party be promptly
notified when a determination of reasonable cause has
been made . . . and when the EEOC has terminated its
efforts to conciliate a dispute . . .
432 U.S. at 372-73 (emphasis added). Accordingly, Armour's assertion of a laches
defense is without merit.
2. Bennett and Hill were hired by Armour as probationary onployees until
they acquired seniority. Seniority could be established only by working 30 days
out of a consecutive 60 day period. Bennett and Hill were qualified to perform
the work for which they were hired. Subsequently, however, the Company brought
in junior white workers and high school students which Company supervisors then
began calling in for work ahead of Bennett and Hill. Though qualified and avail
able for work over a period of seven months (Bennett) and ten months (Hill),
Bennett was never permitted to acquire seniority, and Hill was not permitted to
establish seniority until long after the junior white employees had done so.
The Company contends that seme of the white onployees were given preference
over Bennett and Hill because they had acquired useful experience at a closed
- 4 9 -
Swift plant. However, despite the Company's attempt to introduce it through
their brief (Br. 39), there is no evidence in the record that "Armour considered
it of value to employ experienced employees frcm Swift." (See App. at 781).
This "argument of counsel" does not constitute an articulation under Burdine,
supra, 450 U.S. at 255 n.9.
Moreover, the Company's own witnesses' testimony demonstrates the pretex-
tuality of this argument. According to the Production Manager at the time,
Arthur Stroud, employees were typically hired in the least skilled positions,
24 a/which generally required only a few days or weeks to learn. (App. 243) --- Addi
tionally, the Company has a policy of providing probationary employees a training
period to learn their jobs. (App. 243-44) Further, Stroud admitted that a Swift
employee would not be given any preference over employees previously employed
by the Company, regardless of how much experience they had. (App. 242) irl®/
Finally, Stroud admitted that any comparison between Swift employees and
Armour employees would have been made solely on the basis of a supervisor's
subjective opinion. There were no Company or even departmental standards used
in evaluating the probationary employees. Thus, an individual foreman— operating
without the benefit of any qualitative or quantitative standards and using his
own subjective judgment of which employee was "best"— determined on his own which
probationary employee to call in. (App. 779) In the face of such admissions,
the district court's finding that the Company's explanation as to Bennett and Hill
24C/was pretextual is not clear error. ---
2 4 A/— - Ford' supra, 645 F.2d at 198 n.13, relied on "the speed with which a
new employee is expected to learn" his job as evidence supporting a finding
that defendant's assertion that a white employee possessed "greater qualifica
tions" was pretextual.
24B/ Further Armour had done no comparative study to determine whether log
experience at packing hot dogs made one a more efficient hot dog packer, or
merely turned such a person into a bored and inefficient worker. "Experience"
may not be utilized as a hiring criteria unless the employer can demonstrate
its job relatedness. Parson v. Kaiser Aluminum & Chem. Corp., 575 F.2d 1374
(5th Cir. 1978), on reh'g 583 F.2d 132, cert, denied, 441 U.S. 968 (1979).-- - ^
Moreover, high school students with even less experience than Bennett and
Hill were called in to work over Bennett and Hill, a fact further demonstrating
the pretextualitv of the Company's contention on appeal.
see Ford, 645 F.2d at 188 n.13, 199 (employer cannot rely on "relative
qualifications" to justify its behavior when it never evaluated the minority's
application). Kn
The Company also suggested that Bennett lacked manual dexterity. However,
Bennett's testimony demonstrated the pretextuality of this claim— which was made
by a person who never saw her perform. (App. 785; 799-800) Bennett had received
no criticisms of her work, and when she asked her supervisor whether it was her
performance or her race that was preventing her being called in, her supervisor
said it was not her work. That Bennett was immediately discharged after cart-
plaining, without herself even being informed, further demonstrates the pretex
tuality of the Company's position.
The Company did not further attempt to explain why Hill did not establish
seniority as promptly as white employees. Although Armour contends that Campary
records established her seniority date as of December 20, 1971, Plant Manager
Gibson admitted that the Company records were inaccurate. (App. 929-34) Thus,
the lower court's decision to credit Hill's testimony (App. 540, 545, PX 82) over
unreliable Company officials (App. 1125-26), pretextual explanations and unreliable
Company records is not clearly erroneous. (App. 115 ) See Federal Reserve Bank,
698 F.2d at 669 (holding that testimony was to be credited over a contrary
written record); Ford, 645 F. 2d at 118 and n. 4.
3. The court's findings concerning Bennett's discharge in retaliation for
opposing the Company's refusal to call her to work on account of race are also
supported by the evidence. The evidence showed that Bennett went to her supervisor
demanding to know if she was not being called to work because of her race or
because of her performance. After being assured that it was not her performance,
Bennett went to another supervisor, who was able to tell her nothing. The next
day, without informing her or indicating in any way that her work was unsatis
factory, the Campary advised the North Carolina Employment Security Commission
that Bennett was being discharged because she "did not prove satisfactory."
Viewed against a background of plantwide retaliation against minority employees
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who challenged discriminatory practices, and viewed against the fact that at the
time of her discharge, only two black women, and no black men, worked in the
Sausage Department, it is a pemissable inference that Bennett was discharged
because of her opposition to practices she believed to be discriminatory. See,
e-g-* Berg v. LaCrosse Cooler Co., 612 F.2d 1041, 1042-43 (7th Cir. 1980)
("peaceable [opposition] mild in form and manner" to defendant's unlawful refusal
to grant pregnancy benefits supports finding of retaliatory discharge); Sise v.
City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978); Minor v. Califano, 17
EPD 1(8570 (D.D.C. 1978) (withdrawal of work fran plaintiff four days after
charge of discrimination constitutes reprisal).
Here, Bennett established that the Company was, in fact, refusing to call
her to work because of her race. Bennett demonstrated her proficiency in the
Sausage Department and was assured by Company officials that she performed well.
However, the moment Bennett complained to (1) her immediate supervisor and (2)
his boss that she was being discriminated against, Armour fired her. This firing
occurred the next day.
Based upon substantial evidence of historical segregation in jobs— segrega
tion maintained by the same personnel at Armour in 1971; the pattern of discrimi
nation showing segregated lavoratories still marked with racial designations in
1971; a pattern of racially-based assignment which kept blacks out of Sausage
(only 4 of 78 permanent Sausage employees were black at the end of 1971) (App.
638-39; 629-31) and in Operations (App. 759-800; 522-35); the Company's maintenance
of an all-white supervisory force exercising subjective judgments as to which
probationary employee to call in; the fact that Bennett did a good job and was
told so by her supervisors and was fired only after she demanded to know if her
race was involved; the fact that race was, indeed, involved; and the fact that
Bennett's racial complaint was followed immediately by her termination without
- 5 2 -
notice to her— these are facts which permitted the district court to infer that
Bennett was discharged in retaliation for opposing practices made unlawful by
Title VII.
0. Harvey - The court's findings that Harvey was retaliated against in
violation of Section 704(a), discriminatorily rejected for sales positions and
constructively discharged is supported by the evidence. The defendant's "resolu
tion" of the refusal of the white worsen to follow Harvey's instructions in Data
Processing merely because the white women did not wish to be supervised by a
black, by having Morse thereafter supervise the two white employees and Harvey
the two black wcmen, constitutes a classification or segregation of employees on
the basis of race clearly in violation of Title VII. Allen v. City of Mobile,
331 F. Supp. 1134, (D.C. Ala. 1971), aff'd, 466 F.2d 122 (5th Cir. 1972) (asser
tion that black police officers were more effective when dealing with blacks was
insufficient justification for assignment of "black" cases to black officers and
refusal to assign black officers to "white" cases); Rogers v, EEOC, 454 F.2d 234
(5th Cir. 1971); Wigginess, Inc, v. Fruchtman, 482 F.Supp. 681, (D.C.N.Y. 1979), aff'd,
628 F.2d 1346 (2nd Cir. 1880) (employers may not discriminate in their employment
practices on the basis of their customers' preferences). Cf. Robinson v.
torilard, Corp., 444 F.2d 791 (4th Cir. 1971), cert, dismissed 404 U.S. 1006
(4th Cir.) (all employees are entitled to the same expectations regardless of
race).
Between 1976 and 1978, Harvey spoke with a number of Company officials about
becoming a sales representative, and though qualified, was denied a position.
In the face of direct testimony that she would not be considered for a sales posi
tion because Armour did not hire black people to be sales representatives, the
Company's effort to discredit her qualifications is weak indeed. EEOC v. Ford Motor
Co., supra, 645 F.2d at 188 (4th Cir. 1981) (where gravamen of complaint is that
- 5 3 -
employer failed altogether to consider female applicants, employer "can hardly
defend itself on the basis of relative qualifications when it never evaluated
the qualifications of the [discriminatees]").
Harvey was also denied training on the switchboard and assigned extra duties
after she complained about the treatment. That the Company harassed her for
opposing its discriminatory practices also constitutes a deprivation of rights
under Title VII. Minor v. Califano, supra, 17 EPD If8570.
Forced to participate in a racially segregated work environment, deprived
of supervisory authority because the white women would not follow instructions
from a black, and intimidated for opposing these practices, Harvey was justified
in terminating her employment in March, 1979. Sherrill v. J. P. Stevens, 410
F.Supp. 770 (w.D.N.C. 1975), aff'd 551 F.2d 308 (4th Cir. 1977); Calcote v. Texas
Educational Foundation, 578 F.2d 95, 97-98 (5th Cir. 1978). See cases cited
supra at 42 - 43 »
E. Edwards - The Court's determination that Edwards was discriminatorily
denied a supervisory position is well supported in the evidence. Edwards applied
for, was qualified, but was turned down for a supervisory position. The Company's
explanation for why Edwards was not offered a supervisory position commensurate
with his Asheville supervisory position is clearly pretextual. A review of the
relevant transcript pages demonstrates that each of the Company's proffered
reasons were exposed as false.
The Company offered several reasons why Edwards was not promoted to super
visor. In his first appearance before the Court, Gibson stated that he did not
offer edwards a position as a supervisor or foreman trainee because (1) "I don't
think Mr. Edwards would have taken it" and "I would have been doing Mr. Edwards
an injustice if I had promoted [him]" (App. 433, 437); (2) Edwards had "less
time" with the Charlotte facility than Roff, and (3) he assertedly had less
experience at a Union facility. Yet (1) Gibson did not ask Edwards whether he
-5 4 -
would have taken the position. Moreover, (2) and (3), in 1973 Gibson passed
over Edwards for Roof— who had two fewer years Union experience than he, and two
fewer years experience at Charlotte! (App. 439; 935-37). Indeed, the Company
brought in persons with absolute no Company or union experience to be trained as
supervisors! (App. 433; transcript 282) On his second trip to the witness stand,
Gibson proffered a new explanation (App. 881) which was on its face an after-
the-fact justification. Gibson admitted his explanation made no sense. (App.
936-37) The district court did not take Gibson's incredible testimony oat of
context in ruling that Armour's explanations were pretextual.
VT. The Judgment is Well within the Equitable Discretion of the Court
A. Injunctive Relief - In Albemarle Paper Co. v. Moody, 422 U.S. 405, 418
(1975), the Supreme Court declared that the duty of the district court in framing
equitable relief in a Title VII action is "to make persons whole for injuries
suffered on account of unlawful employment discrimination."
Where racial discrimination is concerned, "the [district]
court has not merely the power but the duty to render a
decree which will so far as possible eliminate the discri
minatory effects of the past as well as bar like discri
mination in the future." Louisiana v. United States, 380
U.S. 145, 154 (1965).
The trial court's discretion in shaping relief is thus broad. Sledge v. J. P.
Stevens & Co., supra, 585 F.2d at 643; Barnett v. W. T. Grant Co., supra, 518
F.2d at 550; United States v. Ironworkers Local 86, 443 F.2d 553 (9th Cir. 1971).
Armour's technical objection to the form of the judgment does not establish
any abuse of the lower court's equitable judgment. The judgment is based on detailed
findings of fact. Armour is put on notice of the particular discriminatory
practices enjoined. — ■ Such remedial provisions are common. — ̂ "when
25/ Nor does Paragraph 9 of the judgment amount to an "obey the law" injunction.
Because the defendant was shown to have retaliated against several employees on
account of their excercise of protected rights, an order directing Armour not to
discriminate against them if they again exercise such rights was entirely within
the court's discretion.
26/ See, e.q., Franks v. Bowman Transportation Co., 424 U.S. 747, 751 (1976); Moody v.
Albemarle Paper Co., 474 F.2d 134, 137 (1973), vacated and remanded on other grounds,
422 U.S. 405 (1975); Sledge v. J.P. Stevens & Co., Inc., 585 F.2d 626, 6 4 3 "T4th cir.
(Footnote 26 continued)-5 5 -
infringements of civil rights have taken or may take place , . . courts are
justified in issuing decrees that embrace a fairly wide range of conduct." 11
Wright & Miller, Fed. Pract. & Pro., §2955, pp. 548-49 (1973) (construing Rule
65(d), Fed. R. Civ. P.). — The court below was well advised in concluding
that a more narrowly drawn injunction might be circumvented in light of Armour's
intransigence in curing discriminatory practices long ago condemned. See, e.g.,
FTC v. Rubberoid Co., 343 U.S. 470, 473 (1952).
In particular, the retractive seniority awarded Holsey and Frazier was a
proper exercise of the court's equitable discretion to "make whole" the injuries
suffered by Holsey and Frazier in not being permitted to bump into the Sausage
Department. See, e.g., Franks v. Bowman Transp. Co., Inc., supra, 424 U.S. 747.
B. The Award Of Expenses For Plaintiff's Consultant Was Proper. While the
general rule in civil litigation in Federal Courts is that fees paid for expert
witnesses are not recoverable as costs, Vheeler v. Durham City Board of Education,
585 F.2d 618 (4th Cir. 1978), the rule is different in cases brought ’under Title
28 /VII* — Congress has manifested an intention that a different rule be applied
under 42 U.S.C. §1988 and in Title VII cases:
If private citizens are to be able to assert their
civil rights, and if those who violate the Nation's
fundamental laws are not to proceed with impunity,
then citizens must have the opportunity to recover
what it cost them to vindicate those rights in Court.
26/ (cont'd) 1978), aff'q in pertinent part, 12 EPD 111,047 at p. 643 (E.D.N.C. 1976);
Sherrill v. J.P.Stevens Co., 551 F.2d 308 (4th Cir. 1977), aff'q 410 F.Supp. 770, 833
(W.D.N.C. 1975); see also, United States v. Warwick Mobile Hemes Estates, Inc., 558
F.2d 194 (4th Cir. 1977).
27/ Schmidt v. Lessard, 414 U.S. 473 (1974), involving a "judgment entered in
accordance with the Opinion," is in no way comparable to the provision here. Payne
v. Travenol Laboratories, Inc., 565 F.2d 895, 897-898 (5th Cir.), cert denied, 434
U.S. 835 (1977), involved a bar to "[d]iscriminaing on the basis of color, race, or
sex in employment practices or conditions of employment." In contrast, the provision
in the instant case specifies the discriminatory practices enjoined, and concerns only
discrimination on the basis of race.
28/ Wheeler was brought under the provisions of 20 U.S.C. §1617, which has been
repealed, and in which there was some question about the necessity of the expert.
-5 6 -
S.REP.No. 94-1011, 94th Cong. 2D Sess. 2, reprinted in (1976) U.S. Code Cong,
and Admin. News, pp. 5908, 5910. Section 1988, 42 U.S.C. is modeled after the
fees and costs provision of Title VII.
In Title VII cases, expert witnesses are essential in order to assist a court
in understanding the statistical and other technical presentations so often
required in these types of cases. If private litigants were unable to recover
their costs for necessary experts, they would be deterred fran bringing such suits
just as much as if they were not provided attorneys fees. A number of courts
have ruled that prevailing plaintiff's in such cases are entitled to experts'
fees as a part of costs. See, e.g., Jones v. Diamond 636 F.2d 1364, 1382 (5th
Cir. 1981) (en banc); (§1988), cert, dismissed?; O'Bryan v. Saginaw, Mich.,
No. 79-1297 (6th Cir. Jan. 6, 1981) (same); Sledge v. J. P. Stevens, 12 EPD
1(11,047 (E.D.N.C. 1976) (prospective award of fees for plaintiff's expert
necessitated by defendant's computerized records); McPherson v. School Dist.
3186, 465 F.Supp. 749, 763 (S.D.Ill. 1978) Thornberry v. Delta Airlines, Inc.,
25 EPD 1(31,496 (N.D.Cal. 1980); Chapman v. Pacific Tel. & Tel. Co., 456 F.2d 77
(N.D.Cal. 1978); Keyes v. School Dist. No. 1, Denver, Colorado, 439 F.Supp. 393,
418 (D.Colo. 1977); Rios v. Enterprise Steamfitters Local, 400 F.Supp. 993,
997 (S.D.N.Y. 1975), aff'd, 542 F.2d 579 (2d Cir. 1976); Pennsylvania v. O'Neill,
431 F.Supp. 700-713 (E.D. Penn. 1977), aff'd mem, 573 F.2d 1301 (3rd Cir. 1971).
The district court did not abuse its discretion.
C. Attorneys Fees and Expenses - The award of attorneys fees was well within
the court's discretion. See, e.g., Neeley v. City of Grenada, 624 F.2d 547 (5th
Cir. 1980); Stenson v. Blum, 512 F.Supp. 680 (S.D.N.Y. 1981). The district court
did not on paper calculate a "lodestar" but its award of attorney fees is below
the lodestar, so it is difficult to understand the defendant's complaint. If an
historical rate were to be used for attorney time, the fees awarded for
-5 7 -
services performed in, e.g. 1979, would then need to be increased to account
for inflation, with interest to compensate plaintiffs' counsel for the delay in
receiving payment. As for the microfilming, a paralegal's judgment was required
in order to select the proper records. As for Ms. Gaither, the court reviewed
her work product, so was in a position to judge whether her work was poor. In
any event, the district court reduced the paralegal and law clerk claim by over
20 percent.
CONCLUSION
On the basis of the foregoing, plaintiffs submit that the judgnent of the
district court should be affirmed.
Respectfully submitted
Chambers, Ferguson, Watt, Wallas, Adkins,
& Fuller, P.A.
951 S. Independence Boulevard
Suite 730
Charlotte, North Carolina 28202
5 8 -
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he has this
day served copies of the foregoing BRIEF FOR APPELLEES
upon opposing counsel by depositing copies of same in
the United States mail, postage prepaid, addressed to:
Mr. W.R. Loftis, Jr.
Mr. W.R. Maready
Petree, Stockton, Robinson,
Vaughn, Glaze & Maready
1011 West Fourth Street
Winston-Salem, North Carolina 27101
This 1st day of August, 1983.