Albemarle Paper Company v. Moody Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    t

Page

Kober v. Westinghouse Elec. Corp., 480 F.2d 240 (3d Cir. 
1973) ............................................................................................ 8, 9

Manning v. International Union, 466 I'.2d 812 (6th Cir. 1972) .... 8

McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) ...........  14

Neely v. Martin K. Eby Conslr. Co., 386 U.S. 317 (1967) .........  15

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) .... 8

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th 
Cir.' 1974) ................................................................................ 11, 13

Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972) .... 8

United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 
1973) ........................................................................................ 13, 14

United States v. N. 1-. Industries, 479 F.2d 354 (8th Cir. 1973)..8, 9

United States v. St. Louis & S.F. Ry., 464 P.2d 201 (8th Cir. 
1972) ..............................................................................................  9

United States v United States Steel Corp., 371 F.Supp. 1045
(N.D. Ala. 1973) ........................................................................ 9

Other Authorities

28 U.S.C. § 1254(1) .......................................................................... 2

42 U.S.C. § 2000e-2(a)....................................................................  3

42 U.S.C. § 2000e-2(e) ....................................................................  3

42 U.S.C. § 2000e-2(g) ....................................................................  3

42 U.S.C. §2000e-2(h) .....................................................3, 12, 13, 14

42 U.S.C. § 2000(a)-5(g) ...........................................................7, 8, 9

29 C.F.R. § 1607 ................................................................................  13

J

In The

Supreme Court of the United States
October Term, 1974

No.

ALBEMARLE PAPER COMPANY, et al„
Petitioners,

v.

JOSEPH P. MOODY, et al .,
Respondents.

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

The Petitioners, Albemarle Paper Company (a Virginia 
corporation), Ethyl Corporation (a Virginia corporation), 
Albemarle Paper Company (a Delaware corporation) and 
Hoerner Waldorf Corporation (a Delaware corporation) 
respectfully pray that a Writ of Certiorari issue to review 
the judgment and opinion of the United States Court of 
Appeals for the Fourth Circuit entered in this proceeding 
on February 20, 1973.

OPINIONS BELOW
The final opinion and order of the District Court for 

the Eastern District of North Carolina (App. A of Peti­
tion) is reported at 4 FEP Cases 561. The opinion of the



2

United States Court of Appeals for the Fourth Circuit 
(App. B of Petition) is reported at 474 F.2d 134.

JURISDICTION

The judgment of the Court of Appeals for the Fourth 
Circuit was entered on February 20, 1973. A timely peti­
tion for rehearing en banc was granted on June 25, 1973. 
After briefing to and oral argument before the en banc 
court, a question of appellate procedure was certified to this 
Court by the Court of Appeals on December 6, 1973. The 
opinion of this Court on the question certified was delivered 
on June 17, 1974. Pursuant thereto, the Court of Appeals, 
on July 22, 1974, vacated its earlier order granting the 
petition for rehearing en banc and denied Petitioner’s 
petition for rehearing. This petition for certiorari was 
filed within 90 days of that date. This Court’s jurisdiction 
is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether this Court should resolve a conflict among 
the Circuits as to whether, in cases under Title VII of the 
Civil Rights Act of 1964, the District Courts have tradi­
tional equitable discretion to determine whether back pay is 
an appropriate remedy.

2. Whether a class action for back pay under Rule 23 
of the Federal Rules of Civil Procedure is inherently in­
consistent with the Congressional intent behind the remedial 
provisions of Title VII, particularly as to class members 
who did not file a prior written complaint with the Equal 
Employment Opportunity Commission.

3. Whether the decision below misconstrues this Court’s 
decision in Griggs v. Duke Denver Co., 401 U.S. 424, in a 
manner which effectively precludes the use of job-validated

3

employment testing and nullifies the Congressional intent 
reflected in 42 U.S.C. § 2000e-2(h).

4. Whether the decision below, in ordering the entry of 
specific injunctive relief against Petitioners’ use of testing, 
improperly usurps the power of the District Court on 
remand.

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions, 42 U.S.C. § 2000e- 
2(a), 42 U.S.C. § 2000e-2(e), 42 U.S.C. § 2000e-5(g) and 
42 U.S.C. § 2000e-2(h), are set out in Appendix C. The 
Equal Employment Opportunity Commission ( “EEOC” ) 
guidelines on employee selection procedures appear at 29 
CFR § 1607.

STATEMENT OE TEIE CASE

On August 25, 1966,1 four black employees of Peti 
tioner’s Roanoke Rapids, North Carolina pulp and pape 
mill brought this private class action under Title VII o 
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e et seq 
( “Title V II” ) against Albemarle Paper Company ( “Albe 
marle-Virginia”), a Virginia corporation2 and Halifav

1 The employer was first advised of the fact that it had been 
charged with discriminatory conduct on August 11, 1966, at which 
time it was served with the Respondents’ charges and was given until 
August 26, 1966, to respond to the charges. Thus, the complaint 
herein was filed, pursuant to then applicable procedural requirements 
before the employer was afforded any opportunity for conciliation

2 Albemarle-Virginia is a subsidiary of Ethyl Corporation. In 196' 
the assets of Albemarle-Virginia were sold to Albemarle Paper Com 
pany (“Albemarle-Delaware” ), a Delaware corporation and a suh 
sidiary of Hoerner Waldorf Corporation. Ethyl Corporation, All 
marle-Delaware and Hoerner Waldorf Corporation were added 
parties defendant in 1970. The interests of the corporate defendan 
coincide on the issues raised herein and they are jointly referred t 
as “Petitioners.” For convenience, the term “Petitioner” is used 
referring to the employer of Respondents.



4

Local No. 425, United Papermakers and Paperworkers, 
AFL-CIO (the “Union” ). The complaint alleged various 
racially discriminatory practices at the mill, including the 
implementation of a discriminatory seniority system em­
bodied in the collective bargaining agreement. Over Petition­
er’s objection, Respondents were allowed to proceed as repre­
sentatives of a broad class of black employees who did not 
file written complaints with the EEOC prior to commence­
ment of this action. 271 F.Supp 27.

The Roanoke Rapids mill commenced operations m 1907, 
but it was not until the 1950’s that mechanization and the 
addition of modern paper machines converted the fa­
cility into a sophisticated and complex paper mill. Like 
all paper mills, the Roanoke Rapids mill has been organized 
on a departmental basis,3 and the seniority provisions of 
Petitioner’s collective bargaining agreements with the 
Union have reflected this departmental sti ucture.

Modernization of the Roanoke Rapids mill created the 
need for a more highly skilled work force. To meet this 
need, in about 1956, Petitioner instituted a personnel screen­
ing program for use in the selection of employees for jobs 
created by the installation of new machinery. As part of this 
program, Petitioner made successful completion of certain 
ability tests a prerequisite for entry into certain skilled lines 
of progression.4

3 Each department is organized into one or more lines of progres­
sion into which employees can enter and move up into more demand­
ing jobs as vacancies occur, on the basis of seniority, ability and 
experience Entry into a departmental line of progression is generally 
from the Extra Board, introduced for the purpose of maintaining a 
reservoir of employees who would be available to staff entry level jobs 
in the various lines of progression.

4 The Revised Beta test, a professionally developed non-verbal test 
designed to measure the intelligence of illiterates, was adopted in 1956. 
Thereafter, in 1963, Petitioner also began using as a requirement for 
entry into’certain skilled lines of progression the Wonderlic test. 
Series A and B, professionally developed and widely used tests of 
verbal skills.

5

Since the passage of Title VII, Petitioner has taken 
many steps to insure that its employment practices comply 
with federal law. Among other things, significant changes 
were made in the seniority system embodied in Petitioner’s 
collective bargaining agreement. In the 1968 contract, Peti­
tioner and the Union eliminated rigid departmental seniority 
and adopted a form of plant-wide seniority.6 Then, in 1971, 
prior to trial, Petitioner and the Union advised the District 
Court that they had no objection to the entry of a decree 
permitting black employees to use “plant seniority” for the 
purpose of advancement. The substance of the proffered 
decree was adopted by the District Court.

Petitioner also took steps to insure that its use of tests 
was in conformity with the law. After this Court’s decision 
in Griggs v. Duke Power Co., 401 U.S. 424 (1971), Peti­
tioner retained an expert to conduct a validation study. This 
study showed a positive correlation between test results 
and performance on the job.6

Until 1970 this action was one seeking exclusively class­
wide injunctive relief, with Respondents having expressly 
abandoned any claim for class-wide back pay in order 
to insure qualification of the case as a class action. Never­
theless, in 1970 Respondents asserted that they were in

5 The 1968 contract afforded a transferring employee seniority in 
the new department equal to that held in his last job. The 1968 
contract also granted “red circle rates,” whereby a transferring em­
ployee would be entitled to the pay rate of the job from which he 
transferred until he moved high enough in the new line of progres­
sion to reach an equal pay level.

6 The study was conducted by use of the “concurrent validation” 
method. Petitioner’s expert selected, on the basis of his analysis and 
knowledge of the nature and content of the jobs, ten skill-related 
job groupings as typical of jobs in the skilled lines of progression. 
Each employee in each group was rated in comparison with each 
other employee in the group to obtain a ranking of job performance 
and statistical correlation was performed to determine correlation 
between job performance and test results.



6

fact seeking both injunctive and back pay relief on behalf
of the class. , ^  ,

After trial in July and August 1971, the District Court
issued its Memorandum Opinion and Order. The District 
Court entered a decree providing for the type of modifica­
tion of the seniority system which had been consented to by
Petitioner prior to trial.

But the District Court rejected the charge that Be - 
tinner’s use of the Revised Beta and Wonderhc tests .n 
certain skilled lines of progression violated Title M l, a 
the District Court, expressly exercising its discretion as to 
the appropriate remedy, ruled that the members of the
Respondent class were not entitled to back pay. _

A panel consisting of two senior judges (Bryan, J. an 
Boreman, J.) and one regular judge (Craven J.) reverse 
the District Court on both the testing and back pay issues. 
As to each issue, the decision was divided, with a dif eien 
combination of the panel providing the necessary 2-1 ma­
jority. Thus, two circuit court judges held that Petitioner 
had violated Title VII by using the tests, and a diftcien 
majority also reversed the District Court m its denial of

h^Following the panel’s decision, the Fourth Circuit granted 
Petitioner’s request for a rehearing en banc. Supplement 
briefs were filed by the parties and oral argument was he 
before the cn banc court. Thereafter, upon certification of 
the question by the Fourth Circuit, this Court held that the 
two senior judges who were members of the initial panel 
could not properly vote to grant rehearing en banc. There-

however, that this requirement had been waived since 
incumbent employees lured prior to July Z, tv .

7

after, the Fourth Circuit vacated its order granting the 
rehearing, thereby reinstating the divided decision of the 
original three-judge panel.

REASONS FOR GRANTING THE WRIT

The Decision Below Regarding Back Pay Conflicts With The Deci­
sions Of Other Courts Of Appeals, And Raises Critical Questions 
Concerning The Remedial Provisions Of Title VII.

Title VII provides that if the District Court finds that 
an employer has intentionally engaged in an unlawful em­
ployment practice, it “may enjoin the respondent from en­
gaging in such unlawful employment practice, and order 
such affirmative action as may be appropriate, which may 
include, but is not limited to, reinstatement or hiring of 
employees, with or without back pay.” Section 706(g), 42 
U.S.C. § 2000e-5(g). This case presents fundamental ques­
tions concerning the back pay remedy, as to which there 
has been a conflicting array of decisions by the various 
Courts of Appeals.

1. The grant of remedial authority in Section 706(g) 
is inherently equitable in nature and the question of back 
pay is expressly left to the discretion of the district court. 
The statutory directive is that the district court, upon find­
ing a Title VII violation “may enjoin the . . .  practice, and 
order such affirmative relief as may be appropriate, which 
may include . . . reinstatement . . . zvith or ivithout back 
pay.”

In distinguishing between Title VII and Title VIII 
actions on the question whether a jury trial is mandatory, 
this Court has observed that, “In Title VII cases, also, the 
courts have relied on the fact that the decision whether to 
award back pay is committed to the discretion of the trial 
judge.” Curtis v. Loether, 39 L.Ed. 260, 268 (1974). Peti-



8

tioner submits that this observation is the only correct 
interpretation of the Congressional intent underlying Sec­
tion 706(g). ,

The decision below virtually eliminates the trial court s
discretion to fashion appropriate relief under Section 
706(g) for the Fourth Circuit panel held that a District 
Court must award back pay “unless special circumstances
would render such an award unjust.”8 _

Other Circuit Court decisions have applied a conflicting 
standard, affirming trial court back pay denials in the ab­
sence of an abuse of discretion measured by traditional 
equitable standards. See Manning v. International Union 
466 F.2d 812, 816 (6th Cir. 1972), cert, denied,,410 IIS . 
946 (1973) ; Schaeffer v. Yellow Cabs, Inc., 462 F.2d 100-, 
1006-1008 (9th Cir. 1972) ; U. S. v. N. L. Industries, Inc., 
479 F.2d 354 (8th Cir. 1973). And the Third Circuit in 
Kober v. Westinghouse Elec. Corp., 480 F.2d 240, 246-47 
(3rd Cir 1973), recently considered both lines of cases 
and expressly rejected the Fourth Circuit’s “special circum­
stances” rule.9

The “special circumstances” rule derives from A ernnan 
v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968),

8 A panel of the Fifth Circuit has since adopted the “special cir­
cumstances” standard in Pettway v. American Cast Iron Pipe Co., 
494 F 2d 211, 252-253 (1974), which appears to be the only other 
case where a discretionary denial of back pay was reversed on 
anneal Similarly restrictive standards were set forth m Head v. *S,n Roller Bearing Co.. 4S6 F.2d 870, 876 ( 6th Cm 1973) ( o r,
“exceptional rtwumstances" warrant back pay deiml) ’A - F ls th  Cir
v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (3th u  . 
1974) (plaintiffs “presumptively entitled to back pay).

9 There is also evidence of a conflict within the Fourth Circuit. In 
its prior certification to this Court in this proceeding the Fourth 
Circuit stated:

“If the en banc court reaches the merits, the tentative vote is that 
it will modify the panel decision with respect to an award of 
back pay.”

9

dealing with the grant of attorneys’ fees to successful 
plaintiffs in Title II cases. However, far more complex 
equitable factors affect the question whether back pay is an 
appropriate remedy in a Title V ll action. See, e.g., United 
States v. St. Louis & S.F. Ry., 464 F.2d 301, 311 (8th 
Cir. 1972), cert, denied, 409 U.S. 1116 (1973); United 
States v. United States Steel Corp., 371 F. Supp. 1045 
(N.D. Ala. 1973). And a rule which makes an award of 
back pay flow almost automatically from any finding of an 
unlawful employment practice is likely to inhibit conciliation 
and to discourage the prompt resolution of disputes through 
the entry of injunctive relief by consent (as occurred with 
respect to the seniority issues in this case), all in contraven­
tion of the basic policies underlying Title VII.

The question of when back pay should be awarded in 
Title VII actions is of widespread and compelling sig­
nificance. Ignoring the plain language of Section 706(g), 
the Fourth Circuit has sharply curtailed the discretionary 
power of the District Court to fashion appropriate relief. 
The circuits are in conflict and this important issue should 
be resolved by this Court.

2. The extent to which the decision below emasculates 
the District Court’s remedial discretion in Title VII cases is 
graphically illustrated by the manner in which the panel 
majority categorically rejected the special circumstances 
found by the Distrit Court to justify the denial of back 
pay. First, the Fourth Circuit panel ruled that Petitioner’s 
good faith was totally irrelevant to the question of back 
pay. While no court has apparently denied back pay solely 
because of defendant’s good faith, a number of courts have 
relied upon defendant’s good faith as a relevant factor in 
denying back pay. See Kober v. Westinghouse Elec. Corp., 
supra; United States v. St. Louis & S.F. Ry., supra; United 
States v. Ar. L. Industries, Inc., supra.



10

Second, the Fourth Circuit panel rejected the District 
Court’s finding that Petitioner was prejudiced by Respond­
ents’ tardy claim for back pay, which came four years after 
the action was commenced, and after the Roanoke Rapids 
mill had been acquired by Albemarle-Delaware on the as­
sumption that this action only involved a claim for injunc­
tive relief.10 The panel majority reasoned that the Peti­
tioner’s defenses are the same whether or not back pay is an 
issue. But that overlooks the real prejudice to Petitioner. 
Had Petitioner been put on notice that back pay claims were 
involved, it may not have allowed Respondents to delay more 
than five years in bringing this case on for trial, there­
by compounding its back pay exposure. _ Further^ had 
Respondents made known their back pay claims m a timely 
manner, Petitioner and the Union could have sought court 
sanction for the changes they voluntarily and unilaterally 
made in the seniority system in 1968, so as to limit their 
potential back pay exposure. Finally, Petitioner is clearly 
prejudiced if back pay is allowed to the entire class after 
Respondents had earlier used the absence of such claims as 
justification for allowing the litigation to proceed as a class 
action. In this situation, even if the “special circumstances 
rule is generally appropriate, the District Court was well

10 It was not merely that this issue had not specifically been raised. 
Rather, Respondents had specifically and categorically represented 
that they were not seeking back pay. In an effort to defeat Petitioner s 
motion to dismiss the class claims and for summary judgment (an 
effort which was successful), Respondents represented :

“It is important to understand the exact nature of the class 
relief being sought by Plaintiffs. No money damages are sought 
for any member of the class not before the Courts nor is spe­
cific relief sought for any member of the class not before the 
Court. The only relief sought for the class as a whole is that 
defendants be enjoined from treating the class as a separate 
group and discriminating against the class as a whole in the 
future.”

11

within its discretion in denying Respondents’ tardy claim 
for back pay, and the Fourth Circuit panel exceeded the 
proper scope of appellate review in substituting its own 
judgment for that of the trier of facts.

3. The decision below is one of a number of recent 
lower court cases which could be read to authorize class-widi 
back pay in Title VII actions where some members of the 
class did not file a charge with the EEOC prior to com­
mencement of the lawsuit. See, e.g., Pettway v. American 
Cast Iron Pipe Co., 494 F.2d at 256-258.

The EEOC complaint and conciliation procedures built 
into Title VII were an integral part of the legislative com 
promise which led to the passage of the Civil Rights Act 
of 1964. After Federal Rule 23 was liberalized in 1966. 
the lower courts rather quickly reached a concensus that 
class actions seeking injunctive relief are appropriate unde; 
Title VII. Such a decision has relatively little impact, since 
injunctive relief in favor of the individual plaintiff normally 
will benefit all members of the class whether or not they 
are parties to the lawsuit. For example, Petitioner had littl* 
reason to be concerned on appeal with the District Court' 
preliminary order overruling Petitioner’s objection to th< 
class action, since the District Court ultimately denied back 
pay relief.

A class action for back pay, however, is quite anothei 
matter, both because of its economic impact on the de 
fendant, and because of the administrative burdens it place.- 
on a federal court, which must process untold numbers o. 
individual monetary claims without the assistance of th- 
EEOC complaint and conciliation procedures. This Com 
should grant certiorari to review whether a class actio 
for back pay under modern Rule 23 is inherently inco: 
sistent with the Congressional intent behind the remedia 
provisions of Title VII.



12

The Decision Below Regarding Testing Misconstrues Griggs In A 
Manner Which Effectively Precludes The Use Of Job Validated 
Employment Testing And Nullifies The Congressional Intent 
Reflected In 42 U.S.C. § 2000e-2(h).

In Griggs v. Duke Power Co., 401 U.S. 424 (1971), 
this Court held that the use of a testing or measuring de­
vice as a controlling force in employment or promotion 
violates Title VII if the device disqualifies blacks at a 
substantially higher rate, unless it is established that the 
test is “demonstrably a reasonable measure of job per­
formance.” This Court recognized that the use of suitably 
job-related tests was expressly sanctioned by Congress in 
Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h).

In Griggs, the employer had made no effort to “validate” 
its testing and educational requirements in accordance with 
professionally accepted methods of measuring the correla­
tion between test results and job performance. On the other 
hand, Petitioner, following this Court’s decision in Griggs, 
and in order to demonstrate that its tests did accurately 
measure job performance, retained a nationally recognized 
expert in the field of industrial psychology, who conducted 
a validation study11 of Petitioner’s tests.

Approving the validation procedures adopted by Peti­
tioner’s expert, and noting that the study results showed 
“positive correlations of a statistically significant natuie, 
the District Court found “that both the Beta and Wonderlic 
A tests can be reasonably used for both hiring and promo­
tion for most of the jobs in this mill.” (A. 18) The Dis­
trict Court also concluded that “ [t]he defendants have 
carried the burden of proof in proving that these tests 
‘are necessary for the safe and efficient operation of the 
business’ and are, therefore, permitted by the Act.” (A. 24)

11 The procedures employed in the validation study were sum­
marized in the District Court s opinion, A. 17, 18.

13

The three judge panel of the Fourth Circuit, with one 
strong dissent, held that the District Court “erred in up­
holding the validity of the pre-employment tests and in 
refusing to enjoin their use,” relying on the failure to in­
clude in Petitioner’s validation study “some form of job 
analysis resulting in specific and objective criteria for super­
visory ratings,” as supposedly required by the EEOC 
testing guidelines, 29 C.F.R. § 1607. The Circuit Court’s 
decision thus raises a fundamental question as to the proper 
application of Section 703(h) and this Court’s decision 
in Griggs.

While this Court in Griggs endorsed the EEOC guidelines 
as “expressing the will of Congress,” 401 U.S. at 434, the 
Fourth Circuit majority’s requirement of detailed and rigid 
compliance with the EEOC criteria for validation studies 
is inconsistent with this Court’s recent decision in Espinoza 
v. Farah Mfg.  Co., 414 U.S. 86 (1973). Likewise, th 
decision below conflicts with decisions in other Circuits 
which have refused to require compliance with each tech 
nical form of validation procedure set out in the guidelines 
United Slates v. Georgia Power Co., 474 F.2d 906 (5th Cii 
1973) ;12 Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) 

Test validation is a professional exercise in statistical 
prediction. Perfection is inherently unattainable, and thi 
practical realities of a particular employment setting must 
inevitably dictate the precise validation technique to be used. 
Thus, it is unrealistic to read the detailed and technical 
EEOC guidelines as establishing a mechanical structure 
which all validation efforts must satisfy. ' rhe ultimate result 
of the decision below would surely be to deny employers a 
realistic opportunity to establish that their tests are “de-

12 The Fifth Circuit has since suggested, in dictum, that the guide­
lines had been found to be mandatory in the Georgia Power case. 
Pettway v. American Cast Iron Pipe Co., supra.



14

monstrably a reasonable measure of job performance.” Such 
a result would render Section 703(h) a nullity and frustrate 
the intent of Congress and of this Court’s decision in 
Griggs.

The Decision Below Improperly Usurps The Power Of The District 
Court On Remand.

The decision below includes a directive that the District 
Court enjoin Petitioner’s use of its tests. Given the na­
ture of the Fourth Circuit’s ruling, this is an intrusion on 
the proper function of the District Court. The Fourth Cir­
cuit did not hold that Petitioner’s tests were not job related 
or that the tests could not be validated. It held only that 
the prior attempt at validation was procedurally inadequate. 
Even if that ruling was correct, it does not follow that Peti­
tioner cannot ultimately rebut the prima facie case of dis­
crimination by properly validating the tests. Compare Mc­
Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under these circumstances, the Court of Appeals should 
have remanded to the District Court as was done in United 
States v. Georgia Power Co., supra. The court therein 
noted:

“ [Standards for testing validity comprise anew and 
complicated area of the law. While the Hite Study 
did not demonstrate compliance with the Act, we 
hesitate to penalize this litigant, the first to confront 
such a demanding burden of proof, for failing to intro­
duce a more rigorous study. Had our standards been 
articulated at the time of trial, it may be that the com­
pany could have proven its compliance. Therefore, 
rather than now proscribing the testing program which 
Georgia Power has used, we remand this phase of the 
case to the trial court with directions to permit the 
company a reasonably prompt opportunity to validate

15

the testing program applied to the plaintiffs, in accord­
ance with the principles enunciated in this opinion.” 
474 F.2d at 917-18.

The question on remand should be whether the equities favor 
an immediate injunction against Petitioner’s use of tests, 
which carries all the ramifications "i a finding of discrimi­
nation, or favor further proceedin'. ; designed to determine 
whether the possible deficiencies ; ■ the validation study 
could be corrected. This is a qiu >n of potentially great 
importance which the Court of .’ , ' als should have left in 
the first instance to the discretion lie District Court. Cf.
Neely v. Martin K. Eby Constr. ( 3 %  U.S. 317 ( 1967) ;
Byrd v. Blue Ridge Rural Elc. corp., 356 U.S. 525 
(1958).

CONCLUS

For these reasons, a writ of c iiorari should be issued 
to review the judgment and opini . of the Fourth Circuit.

Respectfully sub’ ’ 'led,
F rancis V. Lowden, J r.

700 East Main Street 
Richmond. Virginia23219

Gordon G. B usdicker
1300 Northwestern Bank Bldg. 
Minneapolis, Minnesota 55402

Counsel for Petitioner
October 7, 1974