Ford v. United States Steel Corporation Brief for Plaintiffs-Appellants
Public Court Documents
April 3, 1974
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 73-3907
JOHN S. FORD, et al.,
Plaintiffs-Appellants,
- vs -
UNITED STATES STEJEL CORPORATION,
et al. ,
Defendants-Appellees.
On Appeal From The United States District Court
For The Northern District of Alabama
Southern Division
BRIEF FOR PLAINTIFFS-APPELLANTS
OSCAR W. ADAMS, JR.
JAMES K. BAKER
U. W. CLEMONSuite 1722 - 2121 Building
2121 Eighth Avenue North
Birmingham, Alabama 35203
JACK GREENBERG
MORRIS J. BALLER BARRY L. GOLDSTEIN10 Columbus Circle
Suite 2030New York, New York 10019
Attorneys for Plaintiffs—Appellants
Cory Of o. ?-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 73-3907
JOHN S. FORD, et al.,
Plaintiffs-Appellants,
- vs -
UNITED STATES STEEL CORPORATION, et al.,
Defendants-Appellees.
On Appeal From The United States District Court
For The Northern District of Alabama
Southern Division
CERTIFICATE
The undersigned counsel for plaintiffs-appellants
Ford, et al., in conformance with Local Rule 13(a), certifies
that the following listed parties have an interest in the out
come of this case. These representations are made in order
that Judges of this Court may evaluate possible disqual
ification or recusal:
1. JOHN S. FORD, WILLIE CAIN, WILLIE L. COLEMAN,
JOE N. TAYLOR, ROBERT CAIN, DAVID BOWIE, and
EARL BELL, plaintiffs;
The class of black employees of United States
Steel Corporation, whom plaintiffs represent; >
United States Steel Corporation, defendant;
United Steelworkers of America, defendant;
Local 1733 of the United Steelworkers of
America, defendant.
■ ' ■ V ' ■ /■- __________ _ i ---— ---------- '- 1 ---------------------------Attorney for Plaintiffs-Appellants
I N D E X
Note on Form of Citations........................... xi
Statement of Question Presented..................... x
STATEMENT OF THE CASE......... ..................... 1
STATEMENT OF FACTS................................. 9
Introduction
A. General Background........................ 10
B. The Unlawful Employment Practices of
the Defendants Which Caused Economic
Loss to Black Workers..................... 14
1. The lA-lB Concept................... 17
2. Seniority Rule VII-A-l-a............ 18
3. The Application of the lA-lB
Concept at the Bessemer
Rolling Mill........................ 19
4. There Is No Relevant Difference
Between The Factual Circumstances
in the Departments in Which Back
Pay Was Awarded and Those in
Other Departments at Fairfield
Works............................... 20
a. The Ford case.................. 22
b. The Hardy case................. 24
c. The McKinstry case............. 25
C. There Is No Relevant Distinction Between
The Economic Harm Suffered By Blacks in The Departments In Which Back Pay Was
Awarded and Those in Other Departments.... 28
Page
i
I N D E X [Cont'd]
ARGUMENT
Introduction
I. THE DISTRICT COURT ERRED IN NOT AWARDING BACK
PAY AS AN ESSENTIAL REMEDY FOR DISCRIMINATORY
EMPLOYMENT PRACTICES........................
II. THE DISTRICT COURT ERRED IN DENYING BACK
PAY TO THE CLASS WITHOUT SUFFICIENT SUPPORT
IN LAW OR FACT AND FURTHER ERRED IN FAILING
TO USE REASONABLE AND PROPER METHODS TO DETERMINE AN AWARD OF BACK PAY..............
A. The Reasons Advanced by the District Court
For Denying Back Pay Are Inadequate as
A Matter of Law...........................
1. The District Court Did Not Apply
Proper Standards of Proof to the
Determination of Back Pay Nor DidIt Properly "Balance The Equities"...
a. The Applicable Law Requires
Reasonable Estimation, If
Necessary, Of Economic LossIn Order to Compensate the Victims
Of Unlawful Pratices...........
b. A "True Balancing of the Equities"
Requires That Any Unavoidable
Error in Estimation Fall on
the Wrongdoer..................
c. The Developed Law Regarding Back
Pay Under the NLRA Plainly
Indicates The Error of the Lower Court's Denial of Back Pay......
2. The Supposed Good Faith of the
Defendants Has No Bearing on Whether
Back Pay Should Be Awarded..........
- 1 1 -
Paqe
31
35
36
38
39
42
44
47
I N D E X [Cont'd]
B. This Cause Should Be Remanded To The
District Court To Determine Reasonable
Procedures For Calculating The Award of
Back Pay..................................
1. proper and Reasonable Procedures For
Determining Back Pay, Such as Those
Developed by the Court in the Hardy,
Ford, and McKinstry Cases, Are Feasible And Appropriate for This
Class...............................
2. The Applicable Law and Clear Reasons
of Policy Dictate That This Court
Remand The Cause to the District Court For An Appropriate Determination of
An Award of Back Pay................
CONCLUSION..........................................
CERTIFICATE OF SERVICE
- iii -
49
Page
49
58
64
TABLE OF AUTHORITIES
Cases:
Page
Bigelow v. RKO Radio Pictures, 327 U.S. 251
(1946)...................................... 41,42,65
Bing v. Roadway Express, Inc., 485 F.2d 441
(5th Cir. 1973).......... 4,59,62
Bing v. Roadway Express, 444 F.2d 687 (5th
Cir. 1971).................................. 60
Blake v. Robertson, 94 U.S. 728 (1877)............ 40
Bowe v. Colgate-Palmolive Co., 416 F.2d 711(7th Cir. 1969)............................. 34
Bowe v. Colgate-Palmolive Co., F.2d
6 EPD K8973 (7th Cir. 1973)................. 59
Brennan v. City Stores, Inc., 479 F.2d 235
(5th Cir. 1973)............................. 48,59
Burns v. Thiokol Chemical Corporation, 483
F . 2d 300 (5th Cir. 1972).................... 5
Buncher v. NLRB, 405 F.2d 787,
(3rd Cir. 1969)(en banc) cert, denied
396 U.S. 828 (1969)......................... 47
Bush v. Lone Star Steel, 7 EPD [̂9179,
p. 6921 (E.D. Tex. Jan. 16, 1974)........... 44,53,55,56
Clark v. American Marine Corp., 304 F.Supp. 603(E.D. La. 1969) aff'd per curiam 437 F.2d 959
(5th Cir. 1973)............................. 61
Culpepper v. Reynolds Metals Company, 421 F.2d
888 (5th Cir. 1970)......................... 31,32
Florence Printina Company v. NLRB, 376 F.2d 126(4th Cir. 1967)............................. 55
Fontana Aviation, Inc. v. Beech Aircraft Corp.,
432 F. 2 d 1080 (7th Cir. 1970)............... 42
Griggs v. Duke Power Co., 401 U.S. 424 (1971)..... 48
Hardy v. United States, 289 F.Supp. 200
(N.D. Ala. 1967)............................ 4
iv
Page
Head v. Timken Roller Bearing Co., 486 F.2d 870
(6th Cir. 1973).........................
Hodgson v. Ricky Fashions, Inc., 434 F.2d 1261
(5th Cir. 1970).........................
Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir.
1973)...................................
Johnson v. Georgia Highway Express, 417 F.2d
1122 (5th Cir. 1969).................
Johnson v. Georgia Highway Express, 488 F.2d
714 (5th Cir. 1974)..................
Johnson v. Goodyear___ (5th Cir.
Opinion)....
Tire & Rubber Co., ____ F.2d
March 27, 1974) (Slip.
Jinks v. Mays, 464 F.2d 1233 (1972)
Local
Local
53, Asbestos Workers v. Vogler, 407 F.2d
1047, (5th Cir. 1969)..................
189 v. United States, 416 F.2d 980(C.A . 5, 1969) cert, denied 397 U.S. 919
(1970).................................
Long v. Georgia Kraft, 450 F.2d 557 (1971)....
McDonnell-Douglas Corp. v. Green, 411 U.S. 972
(1973).................................
Miller v. Amusement Enterprises, Inc., 426 ]
534 (5th Cir. 1970).................
Miller v. International Paper Co., 408 F.2d
283 (5th Cir. 1960).................
Mitchell v. Mitchell Truck Lines, Inc., 286
F. 2d 721 (5th Cir. 1961)............
59
66
32
31,61
34
28,33,37,40,42,44,
45,48,49,50,55,
58,61,63
59,60,61,62
36
12,14,16,26,66
12,16
5
49
31,66
5 9
Mitchell v. Texas Gulf Sulphur Co., 446 F.2d
90 (10th Cir. 1971)...................
Mize v. State Division of Human Rights, 6 EPD
f8925 (N.Y. Court of Appeals 1973)....
Moody v. Albemarle Paper Co., 474 F.2d 134
(4th Cir. 1973)......................
v
NLRB v. Brown & Root, Inc.,
(8th Cir. 1963).....
311 F .2d 477
Page
47
NLRB v. Carpenters' Union Local 180, 433
F .2d 934 (9th Cir. 1970)......................
NLRB v. Charlie Toppino & Sons, Inc., 358 F.2d
94 (1966).....................................
NLRB v. East Texas Steel Casting Co., 255 F.2d 284 (5th Cir. 1958) affirming per curiam
East Texas Steel Casting Co., 116 NLRB
1336 (1956)...................................
NLRB v. Ellis and Watts Products, 341c., 344
F .2d 67 (6th Cir. 1965).......................
NLRB v. International Union of Operating Engineers,
Local 925, 460 F.2d 589 (5th Cir. 1972).......
NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258
(1969)........................................
NLRB v. Miami Coca-Cola Bottling Company, 360
F.2d 569 (5th Cir. 1966)......................
NLRB v. Mooney Aircraft, Inc., 375 F.2d 402(5th Cir. 1957) (per curiam) cert, denied
389 U.S. 859 (1967)...........................
NLRB v. Rice Lake Creamery Co., 375 F.2d 888
(D.C. Cir. 1966)..............................
Oatis v. Crown-Zellerbach, 398 F.2d 496
(5th Cir. 1968)...............................
Pettit v. United States, 6 EPD *ft9036 (Court
of Claims, 1973)..............................
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941)......
Philp v. Nock, 84 U.S. 460 (1873)....................
Poster Exchange, Inc. v. National Screen Service Corp.
431 F.2d 334 (5th Cir. 1970)...................
Robey v. Sun Record Company, 242 F.2d 684
(5th Cir. 1957)................................
Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir. 1971), cert, dismissed, 404 U.S.
1006 (1971)....................................
46,47,55
45,46
45
47.55
45
47.55
45.55
46
46
66
34
47
40
42
40
34
vi
Pago
Robinson v. Lorillard Corporation, 319 F.Supp. 835
(M.D.N.Y. 1970), aff'd in pertinent part, 444
F.2d 791 (4th Cir. 1971) cert, dismissed
404 U.S. 1006 (19 71 )........................ 56
Rosen v. Public Services Electric and Gas Co.,
477 F. 2d 90 (3rd Cir. 1973)................. 33
Rowe v. General Motors Corporation, 457 F.2d
348 (5th Cir. 1972)......................... 48
Rutter-Rex Mfg. Co. v. NLRB, 473 F.2d 223 (5th
Cir. 1973)................................. 55
Schultz v. Parke, 413 F.2d 1364 (5th Cir. 1959).... 32
Story Parchment Co. v. Patterson Parchment Paper
Co., 282 U.S. 555 (1931)..................... 40,41,62
Taylor v. Armco Steel Corporation, 429 F.2d 498
(5ht Cir. 1970)................. ........... 48
The Pennsylvania v. Troop, 22 L.ed. 148 (1874).... 43
United States v. Georgia Power Co., 474 F.2d 906
(5th Cir. 1973)............................ 16,33, 37,38,44,
48,64,66
United States v. Georgia Power, 7 EPD f9167
(N.D. Ga. 1974)............................. 57
United States v. Hayes International Corp.,
456 F. 2 d 112 (1972)......................... 32,33,66
United States v. Huff, 175 F.2d 678 (5th Cir.
1949)....................................... 40
United States v. Ironworkers Local 86, 443
F.2d 544 (9th Cir. 1971) cert, denied
404 U.S. 984 (1971)......................... 37
United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971) cert, denied,
406 U.S. 906 (1972)......................... 5,16,66
United States v. Lee Way Motor Freight Co.,
6 EPD 58812 (t/.D. Okla. 1973)............... 56
- vii -
Page
United States v. Local 47, Lathers, 328 F.Supp.
429 (S.D.N.Y. 1971) aff'd 471 F.2d 408
(2nd Cir. 1973) cert, denied 37 L.ed.2d 398
<1973>.......................................... 56
United States v. Local 189, 282 F.Supp. 39 (E.D.
La. 1968), aff'd 416 F.2d 980 (5th Cir. 1969)cert, denied 397 U.S. 919 (1970)................ 48
United States v. Louisiana, 380 U.S. 145 (1965)...... 36
United States v. N.L. Industries, 479 F.2d 354
(8th Cir. 1973)................................. 34,65
Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir.
1971).......................................... 37,66
Westinghouse Electric & Mfg. Co. v. Wagner Electric& Mfg. Co., 225 U.S. 604 (1912)................. 43
Whitfield v. United Steelworkers, 263 F.2d 546(5th Cir. 1959)................................ 48
Wirtz v. B.B. Saxon Co., 365 F.2d 457 (5th Cir.1966)....................................... 22
- viii -
Statutes and Other Authorities:
Conference Report of the Equal Employment
Opportunity Act of 1972, Cong. Rec. H 1863;
118 Cong. Rec. 3462 (1927)................
Equal Pay Act, 29 U.S.C. §203 .................
Federal Rules of Civil Procedure, Rule 53 .....
National Labor Relations Act, 29 U.S.C.
§§151 et seq..............................
United States Constitution, Fourteenth Amendment
Title VII, Civil Rights Act of 1964,
42 U.S.C. §§2000e et seq..................
28 U.S.C. §1291 ...............................
42 U.S.C. §1981................................
34, 35
59
56
44,45,47
60
passim
1
6
Page
IX
NOTE ON FORM OF CITATIONS
The following citations are frequently used
in this brief:
llA. pages of the "joint Appendix" filed in
this appeal, as numbered therein.
" _____ , R" - exhibit or testimony contained in the
original record, as designated therein.
"PX. ___" - exhibit introduced by private plaintiffsin the private actions consolidated for
trial below, as designated therein.
"GX. ____" - exhibit introduced by the United States in
the '.'pattern and practice" suit
consolidated for trial below, as
designated therein.
"CX. ____" - exhibit introduced at trial by the
defendant, United States Steel Corporation, as designated therein.
x
QUESTION PRESENTED FOR REVIEW
1. Whether the district court's denial of back pay to
members of the class, in light of the court's clear finding
that the defendants unlawful and discriminatory practices
resulted in economic harm to the class, was erroneous in that:
A. The district court's conclusion that plaintiffs
did not adequately bear their burden of proof
in establishing individual economic harm is
contrary to the nature of the proceedings below
which were directed at the general practices of
discrimination and not the precise effects of those
practices on individuals;
B. The district court's requirement of precise
determination of economic loss is contrary to law;
C. The court's consideration of the "good faith"
and the lack of unjust enrichment of the defendants,
and the adequacy of the injunctive relief awarded
was contrary to law; and
D. The court failed to follow reasonable and practical
procedures for the determination of the economic
loss suffered by members of the class.
xi
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 73-3907
JOHN S. FORD, et al. ,
Plaintiffs-Appellants,
- vs -
UNITED STATES STEEL CORPORATION, et al.,
Defendants-Appellees.
On Appeal From The United States District Court
For The Northern District of Alabama
Southern Division
BRIEF FOR PLAINTIFFS-APPELLANTS
STATEMENT OF THE CASE
This appeal involves a broad class action attacking
across-the-board practices of employment discrimination.
The appeal is from final judgment in this action
entered by the United States District Court for the Northern
District of Alabama. This Court has jurisdiction of the
appeal pursuant to 28 U.S.C. §1291.
After their previous attempts at resolving their
allegations of discrimination failed, John S. Ford and six
other black employees of defendant United States Steel filed
on October 7, 1966 a complaint pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§2000e et seg.. [A. 36-47]
The complaint alleged that defendants United States
Steel Corporation, (hereinafter sometimes "U.S. Steel" or
"Company") United steelworkers of America, AFL-CIO (herein
after "Steelworkers"), Local 1733 of the United Steelworkers
of America, AFL-CIO (hereinafter "Local 1733") and William A.
Daniels, president of Local 1733, engaged in pervasive practices
of discrimination.
This action must be viewed in the context of two other
causes that were filed several months prior to Ford: McKinstrjy,
et al. v- United States Steel Corporation, United Steelworkers
of America, T.ocal 1013 of the United Steelworkers of America,
Civil Action No. 66-343; Hardy, et al. v. United States Steel
corporation. United Steelworkers of America, Local 1489._of
the United Steelworkers of America, Civil Action No. 66-423.
The complaints in Hardy and McKinstry alleged similar broad
discriminatory practices and sought similar relief as the
1/ See
pp. 2 2 - 24,
the discussion
infra.
in the Statement of Facts,
2
3/
complaint in Ford. Together these three actions included a
substantial number of the black workers at U.S. Steel s
Fairfield Works. The plaintiffs in the Ford, Hardy and
McKinstry actions were all represented by the same counsel.
On November 15, 1966, the defendants, U.S. Steel,
Steelworkers, Local 1733 and Mr. Dawson all moved to dismiss
the Ford complaint. [A. 11] After plaintiffs' motion re
spectfully requesting the district court to rule on pending
motions, the lower court, per the Hon. Seybourn H. Lynne,
overruled on August 2, 1967 defendants' motion to dismiss.
[• Id. 1 However, the court ruled that the plaintiffs could only
represent other black employees who worked in the same depart
ment. Hie plaintiffs were ordered to amend their complaint
2/
1/
2 / in essence the three cases were brought on behalf of
black employees in three of the local Steelworker unions
at Fairfield Works and consequently on behalf of Blacks who
worked in three of the plants at Fairfield works: Fairfield
Steel Plant (McKinstry), Ensley Steel Plant (Hardy) and Rail
Transportation (Ford)■ [A. 69-70] Fairfield Steel Plant
and Ensley Steel Plant are two of the largest plants at
Fairfield Works. [GX 102, R]
2 / These three actions were later consolidated for trial
along with other private actions, brought by parties repre
sented by different counsel, and a "pattern and practice
suit brought by the United States Department of Justice.
[A. 147] See also p. 6 , infra.
4/ Except that Mr. Dawson's motion was granted; Mr.Dawson was dismissed as a party-defendant. (Mr. Dawson
had been incorrectly designated as Mr. Daniels in the
Complaint). [A. 11]
3
in conformity with the court's opinion. rid.]
The court issued similar orders in the companion cases
of Hardy and McKinstry. See Hardy v. United States, 289
F.Supp. 200, 202-203 (N.D. Ala. 1967). Consequently the scope
of these three class actions was severely narrowed by court
order.
The plaintiffs in compliance with the court's Order
of August 2, filed on September 29, 1967, an amendment to their
complaint and a listing of class members. [A. 48-49] The Ford
plaintiffs pursuant to this amendment represented a class of
black employees who worked in the Car Shop of the Rail
6/Transportation Department.
V ■
5/ The court further ruled that the class action could
only be maintained pursuant to Rule 23(b) (3), Federal Rules
of Civil Procedure, and therefore ordered the plaintiffs to
file a list of all class members with the court. [A. 11]
The plaintiffs had maintained that the action was
properly filed pursuant to Rule 23(b) (2), FRCP, the provision
directed specifically to civil rights actions. Bing v.
Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973).
The plaintiffs' motion, filed September 12, 1967 to
alter or amend the court's order on this point was denied
by order of the court, October 13, 1967. [A. 11]
The court, per the Honorable Sam C. Pointer, Jr.,
in its Decree of May 2, 1973 held that this was properly
a Rule 23(b) (2) class action. [A. 128]
6/ This was not the precise wording of the amendment to
the complaint, but this was the definition applied to the
class during the subsequent course of the litigation. See
the order of court limiting discovery to the Car Shop, December 8, 1967. [A. 11-12] See the definition of the classarticulated by the court for relief purposes. [A. 128]
4
The defendants again filed motions to dismiss the
amended complaint. These motions were overruled by an Order
of the court, per Hon. Seybourn H. Lynne, dated December 8,
1967. [A. 11] Also by its December 8, 1967 Order the court
ruled that U.S. Steel should answer the plaintiffs' interro
gatories. However, the court substantially circumscribed the
scope of the required interrogatory answers by limiting the
answers to the Car Shop facility and by limiting the answers
Vto the period subsequent to January 1, 1963.
The defendants, U.S. Steel, Steelworkers and Local 1733,
filed Answers to Plaintiffs' Complaint in May, 1968. The
defendants in their respective Answers, generally denied any
discriminatory practices and set forth their good faith.
[A. 51-58; 59-63] The plaintiffs amended their complaint by
motion which was allowed by the court on November 19, 1971.
[A. 64-65] Said motion specifically set forth plaintiffs'
prayer for back pay. [Id.-]
Two pre-trial conferences before the Honorable Sam C.
Pointer, Jr. delineated the trial preparation and procedures.
The first pre-trial conference was had on June 17, 1971. The
7/ Plaintiffs had argued that the relevant scope of the
discovery was significantly broader both as to subject matter, see Burns v. Thiokol Chemical Corporation, 483 F.2d 300, 305-
306 (5th Cir. 1972), McDonnell-Douglas Corp. v. Green, 411 U.S.
972 (1973), and as to the time period, see United States v.
Jacksonville Terminal Co., 451 F.2d 418, 440 (5th Cir. 1971),
cert. denied, 406 U.S. 906 (1972).
5
court ordered the consolidation of the "pattern and practice"
suit which had been filed against U.S. Steel, the Steelworkers,
and pertinent Steelworker Locals with eight private-party
8/class actions including Ford, Hardy and McKinstry. On May
11, 1972, the second pre-trial conference was held.
Trial commenced on June 20, 1972 and continued on an
Vintermittent basis for the next six months.
On May 2, 1973, the court issued a lengthy and com
prehensive Decree establishing injunctive relief to remedy the
discriminatory practices, and the effects of those practices.
[A. 117-141] The court also found that Ford and five other
private party actions were due to be maintained as class
10/actions. A[. 128] The court held the defendants liable for
8/ The others were:
Brown, et al. v. U.S. Steel, et al., C.A. No. 67—121;
Love, et al. v. U.S. Steel, et al., C.A. No. 68-204; Johnson,
et al. v. U.S. Steel, et al.. C.A. No. 69-68; Donald v. U.S.
Steel, et al., C.A. No. 69-165; Fillingame v. U.S. Steel, et
al., C.A. No. 71-131.
All these private actions, except for Fillingame. were
brought pursuant to Title VII and 42 U.S.C. §1981 on behalf of
black employees alleging unlawful discriminatory practices. The
Fillingame case was brought by a white employee and basically
involved a claim of unfair representation against the union.
[A. 147]
9/ The plaintiffs' exhibits in the Ford action were desig
nated PX 401-424; testimony for plaintiffs was heard on June 27th and 28th, on July 10, and rebuttal testimony on December 1.
10/ The court found that Johnson v. United States Steel,
cTa . No . 69-68, was moot and that Fillingame v. United States
Steel, C.A. No. 71-131 was not supported by the evidence;
both cases were dismissed. [A. 129]
6
attorneys' fees and costs in these six cases. [A. 129]
However, the court only held the defendants liable for back
pay in Ford, Hardy and McKinstry. [Id.] U.S. Steel and the
pertinent Steelworker local, Local 1733 in this action, were
each held liable for one-half of the back pay and attorneys'
fee awards, fid.]
Of paramount importance for this appeal was the court's
holding with respect to the definition of the class in this
action:
"the class being all black persons who have
at any time prior to January 1, 1973, been
employed in the former Pratt City Car Shop line of promotion; and, for the purposes of
this Decree, the plaintiffs herein repre
sent a class consisting of all black per
sons who have at any time prior to January
1, 1973, been employed at the Fairfield
Works (except to the extent they may be otherwise included as a class member under
sub-paragraphs (a) through (f))[that is,
Blacks who had been included in any of the
private action classes]. . . ." [A. 128]
The plaintiffs herein have appealed the order of the court
so far as it denied back pay to the class designated for the
Decree. [A. 190-191]
The court during an in-chambers conference determined ̂
a formula for computing back pay in the three private actions.
The defendant U.S. Steel was ordered to provide sufficient
evidence to implement the court's formula and then to make the
11/ The court in its determination of appropriate relief,
effectively used in-chambers conferences with counsel to
facilitate its deliberations.
7
required calculations. The evidence was reviewed at a hearing
before the court on August 6 , 1973. Four days later the court
issued an order detailing the precise back pay awards in the
Ford. Hardy and McKinstry actions and the attorneys' fees and
costs awards in Ford and the five other remaining private
12/
actions. [A. 142-146]
Also by its August 10 order the court made its Decree
of May 2, 1973 final and appealable. [A. 143] Plaintiffs filed,
September 10, 1973, a timely Notice of Appeal; the plaintiffs
appeal the court's decision insofar as it denies back pay to
black employees who worked at Fairfield Works prior to January
1, 1973 and who were not included in any of the classes re
presented in the private actions. [A. 190-191]
On October 9, 1973 the United States filed a timely
Notice of Appeal, appealing, inter alia, the court's denial
of back pay to black employees except those included in the
Ford. Hardy and McKinstry actions. [A. 192-193] The appeal of
the United States of America was consolidated with the appeal
13/of the plaintiffs herein by order of this Court.
12/ In this action thirty-three class members were awarded
a total of $112,033.06 in back pay; the total award for attorneys' fees and costs amounted to $58,500. [A * 142-145]
13/ Several individuals by separate counsel sought to inter
vene in this action after final judgment had been entered. The
Motion to Intervene with Complaint In Intervention were filed
on September 10, 1973. [A. 178-183] An Amended Complaint In
Intervention was filed on September 19, 1973. [A. 184-188] The
suit in intervention seeks certain seniority and training rights
for former ore miners, both Black and white. The motion to inter
vene was denied by the district court on September 21, 1973. [A. 189]
A notice of appeal was filed and the appeal was consolidated with
this appeal, sub nom Craig, et al. v. United States Steel Corporation.
8
The lower court entered a Memorandum of Opinion,
December 11, 1972, which focused primarily on the issues which
had been appealed. [A. 147-175] Thus, the court's opinion deals
mainly with an explanation of its denial of back pay to the
large majority of Blacks at Fairfield Works even though it
awarded back pay to employees in the classes represented in the
Hardy, Ford and McKinstry actions.
STATEMENT OF FACTS
Introduction
This statement of facts is in summary form for several
reasons: the issue raised on this appeal, the denial of back
pay to the affected class, is essentially a legal question; it
is undisputed that the defendants engaged in unlawful practices
which caused economic loss to black workers [A. 159-161]; and,
finally, the stipulation, "Production and Maintenance Seniority
Systems" entered into between the United States, U.S. Steel
and the Steelworkers, which is reprinted in full in the Joint
Appendix, comprehensively details the development and the im
plementation of the seniority^promotional and transfer
practices at Fairfield Works. [GX 3, A. 66-116]
14/ The consolidated actions, private and traduced^acticc," were tried on a single record; evidence introduced
in one case was deemed admitted for all.
9
However, a brief factual description is in order to
place the legal argument in perspective by demonstrating the
similarity between the discrimination in the Stock House, Pratt
City Car Shop, and the Plate Mill, and that in the rest of
15/Fairfield Works.
The class in this cause was re-defined for purposes of
the Decree of May 2, 1973 from which this appeal is taken: for
trial the class consisted of those black employees who had
worked in the Pratt City Car Shop at any time prior to January
1, 1973; for purposes of this appeal the class consists of those
black employees who worked at Fairfield Works prior to January
1, 1973 and who were not represented in any of the private-party
actions. [A. 128; see Statement of Case, supra pp. 7-8]
Consequently, the factual context of the Pratt City Car Shop
is not developed herein except to the extent that it reflects
on the issue on appeal.
A . General Background
The litigation below involved seven private-party
actions representing distinct classes of black employees and a
16/"pattern and practice" suit brought by the United States ;
15/ Back pay was awarded by the lower court to black employeein the Stock House, Blast Furnace Department, Knsley Steel Plant
in Hardy, the Pratt City Car Shop in Ford, and the Plate Mill in
McKinstry.
16/ See Statement of Case, supra, p. 6 .
10
each charqed that defendants were engaging in discriminatory
17/
practices at Fairfield Works.
Fairfield Works is an integrated steel-making facility18/
which processes raw materials into finished steel products.
[A. 148] Approximately 12,000 employees work at Fairfield Works
on a busy day, of whom approximately 26% are Black. [A. 150]
Of the 12,000 employees there are approximately 9,100 production
and maintenance (hereinafter "P&M") employees; about 3,100 of
the P&M employees are Black. [Id.]
Fairfield Works comprises nine separate units commonly
referred to as "plants." [A. 148] A separate Steelworkers
local represents P&M employees at each plant. [A. 69-70] The
triennial industry-wide Agreement establishes basic conditions
and terms for the employment of P&M workers. [A. 149] The
industry—wide Basic Steel Agreements establish, for instance,19/
the pay rates by "job class" for P&M jobs. However, since 1953
\1/ The court found for the plaintiffs in all these actions
except in Johnson v. United States Steel, which pertained only to
segregated facilities and which the court dismissed as moot.
18/ Stipulation No. 2, entered into by the United States, U.S.
Steel and the Steelworkers describes the facilities and pro
duction processes at Fairfield Works. [GX 2, R]
12/current
The pay rates for each job class are listed in the
Basic Agreement in Appendices A and A-l. [GX 45, R]
Each job is given a specific job class rating which
determines pay. These job class levels developed from the
wage inequity study program instituted by the War Production
Board. Occasionally the unions and the Company negotiated "special" or "out of line differentials" for certain jobs (e.g.,
trade and craft) which cause these jobs to be paid at a dif
ferent rate than that indicated by the job class. [A. 150]
Lhe principles embodied in the Basic Steel Agreements have
been modified by "local seniority rules and regulations."
As a result of the separate negotiations of the local
seniority rules and regulations by each Steelworker local at
Fairfield Works there were different seniority arrangements
at each of the nine plants. [A. 149, 85-86]
The jobs on the lower-end of the job class structures,
jobs in classes 2 and 3, most jobs in class 4 and some jobs
in class 5, are grouped into "pools", except in the Ore Con
ditioning Plant. The lower court accurately described these
as "waiting" jobs - menial jobs in which employees work while
waiting to move into, or return to, Line-Of-Promotion (herein-
20/
after "LOP") jobs. [A. 153]
The higher-paying jobs, those not in the pools, are
essentially grouped into LOPs, which are "ladder-like" sequences
of jobs grouped for promotional and reduction-in-force pur-
21/poses. [A. 151] As one moves up the ladder the jobs, in
19/[Cont'd.]
In addition, whether or not a job is on an incentive
program has an effect on the earning rate of a jcb . [A. ISO-
151; the GX 16-24 indicate the average earnings for P&M jobs
with incentive earnings included].
20/ The job pools were developed as a result of the 1962
Basic Steel P&M Agreement. Their growth and utility are
fully described in Stipulation 3. [A. 81-84; 89-91; 109-114]
21/ This Court is familiar with the basic purpose and work
ings of LOPs: see Local 189 v. United States, 416 F.2d 980 (1969),
cert, denied, 397 U.S. 919 (1970); Long v. Georgia Kraft, 450
F .2d 557 (1971).
12
theory, increase in skill-level and pay; however, this is not
always the case, fId. 1
Promotions and reductions-in-force within the LOP
were determined by seniority, assuming relatively equal abilities
and fitness. [A. 152] However, "seniority” was measured
differently at the various plants according to the local senior
ity agreement. In some plants the most senior employee was
determined by length of service on the job below the vacancy
("occupational" seniority); in other plants seniority was
determined by length of service in the LOP ("LOP" seniority) or
by length of service in the department ("departmental" seniority)
and in the Wire Mill seniority was determined by length of
service in the plant ("plant" seniority). [A. 152; the part
icular seniority used in each plant is listed in Stipulation
3, A. 85-86]
Permanent vacancies in LOPs which were not filled by
employees within the LOP were posted for employee bidding as
set forth in the local collective bargaining agreements.
[A. 153-154; the local agreements are included in the Record
as GX 48 and 49] Employees in the pools and in other LOPs
were free to bid on these vacancies and, ability and fitness
being relatively equal, competed on the basis of plant seniority.
[A. 153-155]
13
B. The Unlawful Employment Practices ol the
Defendants Which Caused Economic Loss
to Black W o r k e r s __________________
The district court succinctly summarized the extensive
evidence of discrimination, documentary and testimonial, pro
duced at trial.
"The foundation for this litigation rests
upon the undisputed fact that at Fairfield Works a policy of segregation was generally
followed until the past decade. Most LOPs
were segregated, with the blacks only and
few racially mixed lines containing, not surprisingly, most of the less desirable
jobs and none of the highest paying ones.
There were few black employees in the
T & C [Trade and Craft] positions, and none
in Clerical and Technical jobs, plant pro
tection occupations, or managerial and
supervisory positions." [A. 159]
Further, as the district court noted, the seniority
system perpetuated the discriminatory effects of this system of
racial segregation right up until the Court's Order of May, 1973.
"It is clear that on July 2, 1965, the
effective date of Title VII, the basic principles of the seniority system in effect
at Fairfield Works were not 'actively ' dis
criminatory. It is likewise clear that in
many respects this system, in violation of
Title VII, has perpetuated the effects of
the pre-1963 discrimination. Local 189 v.
U.S . , 416 F. 2 d 980 (C.A. 5, 1969).
The sequential arrangement of jobs in
a line of promotion has a tendency, by its
very nature, to prolong the effects of a
prior resl.r Lotion of black:) lo lower jobu, as does the judicial impediment to 'bumping' incumbents. However, when supplemented by
a standard that uses occupational or LOP
age to measure promotions or retention
priority, the secondary position of blacks becomes fixed — initially behind, they will
14
remain behind their white contempor
aries in progressing up the ladder to
wards better jobs. Use of LOP age pro
duces similar results where, as here, the past discrimination involved segregated
lines; and even departmental age has like
consequences where, as here, black em
ployees where not assigned in the past,
proportionately among all departments."
[A. 160-161]
The lower court accurately summarized the discrimi
natory practices of the defendants; however, some further
background is helpful. In 1962, at a time when the seniority
units at Fairfield Works were segregated, representatives of
the President’s Committee on Equal Employment conducted com
pliance reviews at Fairfield Works under Executive Order 10925.
[A. 86]
The basic purpose of this review and the concomitant
examination of the system by defendants was to place jobs which
were then all-black in functionally related all-white LOPs.
By the fall of 1963 the restructuring of the LOPs to terminate
22/
the segregation of jobs was basically completed. [A. 87]
It is important to emphasize that the intent of these
LOP alterations was only to end overt job segregation; as the
court found, and as is patently obvious from a review of the
22/ Both the Company and the Government prepared charts
which illustrate the LOPs as of 1971 and which indicate the
former racial composition of the jobs. These charts were
stipulated to by the Company and the Government. [Company
charts, GX 7-15; Government charts GX 16-24, R]
15
evidence, the system of promotions, transfers, etc. continued
to discriminate against Blacks. [A. 159-1611
The seniority system with revised LOPs, established
in 1962-1963, was in effect without essential modification
until 1973. In its May 2, 1973 Decree the lower court thoroughly
revamped the seniority system. However, until the institution
of the court's Decree the system stripped black employees of
use of their previous seniority for promotion or retention in
the former all-white LOPs. Of course, this resulted, as this
Court has repeatedly pointed out, in a pattern and practice
of discrimination. Local 189 v. United States, supra; Long v.
Georgia Kraft, supra; United States v. Jacksonville Terminal,
451 F.2d 418, 453 (1971), cert, denied 406 U.S. 906 (1972);
United States v. Georgia Power, 474 F.2d 906, 927 (1973). This
pervasive discrimination which locked Blacks into lower-paying
jobs affected equally the black workers who received back pay
(those represented in Hardy, Ford and McKinstry) and those
black workers who did not receive back pay.
Moreover, the varied seniority systems at Fairfield
Works had several features which had a particularly severe
23/
impact.
23/ In concentrating on the discriminatory nature of the
seniority system the plaintiffs do not mean to minimize the
other discriminatory aspects of the employment system at
Fairfield Works. For example, the Blacks have been largely
excluded from hiring into clerical, technical, plant protection,
managerial and supervisory positions. [A. 159]
16
1 . The 1A-1B Concept
In the Ensley Steel Plant, the Bessemer Rolling Mill
and (prior to December 17, 1971) the Pratt City Car Shop, the
Company and the local Unions adopted the "1A—IB concept. This
concept was an alternative to merger of the all-black LOP into
a functionally related all-white LOP; the white line generally
was designated "LOP A" and the black line generally was design
ated "LOP B." [A. 92-93] "LOP B" employees (Blacks) had
priority over any other employees in filling permanent vacancies
in LOP A, except for job incumbents in and those holding rights
to (white) LOP 1A. [A. 94]
But black employees did not carry their LOP B seniority
with them to LOP A; these black employees entered LOP A as
new employees for purposes of progression, regression and recall
in LOP A. [A. 94] It is transparently clear that the 1A-1B
system was designed to, and effectively did, keep the black
workers locked into inferior positions in LOP IB. Black workers
were permanently relegated to inferior positions below white
employees who were hired during the period of job segregation,
no matter how junior the whites were to the Blacks in terms of
plant seniority. In essence, this arrangement continued to
fulfill the white workers' "expectations" based on prior dis
crimination of working in more desirable jobs than Blacks.
On occasions when the relative seniority of employees
was altered for reasons other than promoting equality of.
opportunity for black employees the Company and the Unions did
17
not concoct 1A-1B type arrangements. For example, in 1953-
1954 local seniority rules and regulations were developed
at each of the plants. [A. 76] As a result the standard for
determining seniority was altered at several plants. Of course,
when the criterion of seniority changed, the relative seniority
standing of some employees also changed. It was agreed that
an employee who held a specific occupation by reason of greater
"occupational" seniority, the original seniority criterion at
the plants, would not lose his job to another employee who had
greater "LOP" seniority simply because the plant was changed
from an occupational to an LOP seniority system. [A. 78] But
with respect to all future job progressions and regressions
the new seniority criterion governed; thus, the expectations
based on occupational seniority "rights" of the employees were
24/changed. [A. 78-79]
2. Seniority Rule VII-A-l-a
Rule VII-A-l-a simply provided that if an employee was
laid-off from his "home" LOP, he could exercise his seniority
to bump a junior employee in any LOP appearing below his "home"
LOP on the same LOP chart; the lower LOP was considered an
24/ Another smaller scale example occurred when the No. 4
Galvanizing line was created in 1968 at the Fairfield Steel Plant. [A. 115-116] Experienced workers from the Fairfield
Sheet Plant were transferred to man the highest four jobs in
the facility. They were afforded a "proxy" occupational
seniority date on the jobs below them in the LOP as of the date
they were initially assigned to the new facility. [Id.-]
Black employees in the Fairfield Steel Plant who had
their jobs transferred into formerly all-white LOPs did no]_
receive any "proxy" seniority dates.
18
extension of his home LOP during reductions-in-force.25/
[A. 105, 162, n. 28]
This rule was applied in ten of the thirteen instances
in the Ensley Steel Plant in which all-Black and all-white LOPs
were joined pursuant to the 1A-1B concept. [A. 95] This pro
duced a particularly invidious result. On the one hand, white
employees in the formerly all-white 1A LOPs could use their full
1A seniority to bump Blacks in the formerly all-black IB LOPs
during reductions in force; on the other hand, black employees
who promoted to 1A LOPs could not carry with them their lB
seniority for promotional or other purposes.
3. The Application of the lA-lB Concept at the
Bessemer Rolling Mill
The lA-lB Concept was applied to two LOPs, present units
122 and 123, in the Bessemer Rolling Mill. [A. 96] Under the
system implemented at the Bessemer Rolling Mill, as in Ensley
Steel Plant and the Pratt City Car Shop, black employees were
forced to enter the previous all-white LOP as new men. How
ever, unlike Ensley or the Car Shop, a black employee who entered
LOP 1A surrendered all seniority rights which he had in LOP lB,
the all-black line. [Id.] If such a black employee were then
bumped back out of the 1A LOP, he would fall all the way into
the pool or "out the gate."
2 5/ This Rule had been
situations since 1954. [A.
in existence in one or more
105]
- 19 -
%
Accordingly, black employees in order to advance
into higher-paying jobs had to forfeit their security in the
IB jobs which they had built up over their years of employ-
16/ment with U.S. Steel.
4. There Is No Relevant Difference Between The
Factual Circumstances in the Departments in Which Back Pay Was Awarded and Those in
Other Departments at Fairfield Works
The lower court ordered back pay to employees repre
sented in three private actions but paradoxically denied back
pay to any other Blacks:
"the groups, and the causative employment
practice involved, were: employees in the
former Pratt City Car Shop LOP, where a
needed merger of segregated lines was in
excusably rescinded until December 1971
(the Ford class); employees in the Blast
Furnace Department of the Ensley Steel
plant hampered by discriminatory lines of
26/ The situations detailed in sub-sections (1)— (3), supra
do not exhause the instances of particularly severe discrimi
nation at Fairfield Works; rather these situations were selected because they gave an indication of the type of unlawful
practices at Fairfield Works and because the description of these practices is readily available to the Court in the Joint
Appendix (Stipulation 3, A. 66-116).
However, the court should note the particularly dis
criminatory consequences of the establishment of the labor pools
in 1962. Since jobs with the lowest job classes were placed in
the pools and since these jobs were overwhelmingly filled by
Blacks, the pools were basically filled with all-black jobs. Blacks in the pool retained no promotional rights to the higher
paying LOP jobs. [A. 89-93] This severance of the pool jobs from their former LOPs was a practice not followed industry-wide
and was contrary to the Basic Steel P&M Agreements. [A. 113-114;
GX 45, R]
Blacks who were thus relegated to the pools not only
lost promotional rights but did not benefit from the mergers of the all-black and all-white LOPs in the following year.
20
promotion ("1A-1B" configurations)(the
Hardy class); and PM Finishing Hookers in
Fairfield Steel's Plate Mill Department,
who promotional opportunities were
frustrated by placement of the Finishing
Craneman jobs up in a separate line of
promotion (the McKinstry class)."
[A. 167-168]
The district court "distinguished" these situations
from the departments on the basis of two factual assertions:
" . . . the evidence showed that a part
icular group of black employees, or some of them, had been injured by an unlawful
employment practice and, at least with
supplementation of the original evidence,
it would be possible to fix with a rea
sonable degree of accuracy, though not with exactitude and certainty, the approx
imate amount of their respective individual
damages." [A. 167]
These purported factual distinctions are just not
2 7/supported by the Record. Surely the evidence showed that
other black employees had been injured by the same employment
practices that afflicted black employees in the Pratt City
car shop, the stock house in the blast furnace department, and
the hooker PM finishing job in the plate mill. This conclu
sion is inescapable from the court's own findings concerning
the defendants' general practices of discrimination. [See pp.
14 _ 16, supra] These practices were not limited to three small
departments but were applied throughout the Fairfield Works.
27/ The lower court made no attempt to support these
factual assertions; they are merely bold statements without
examples in support or reference to the evidence.
21
The Ford case.
In the car shop (Ford case) the defendants established
2 8/a 1A-1B system. [GX 105, R] While no less pernicious than the
1A-1B system established elsewhere at Fairfield Works neither
was the car shop seniority segregation any more pernicious.
Blacks in the all-black line in the car shop were denied use of
all their accumulated seniority for purposes of promotion and
regression in LOP 1A, the all-white line. While this was
emphatically proved at trial, it was just as thoroughly proved
that Blacks were similarly discriminated against in the other
situations in which the 1A-1B concept was used.[See subsection 1,
supra]
There is one unique aspect of the Ford case which re
flects on the intent of the defendants tc merely affect token
changes not only in the car shop but throughout Fairfield Works
and not significantly to ameliorate the disadvantaged position
of black workers. On August 5, 1963, U.S. Steel and the Steel
workers entered into an agreement which tacked the all-black LOP
onto the bottom of the all-white LOP. However, the agreement
further provided that after two years the lines would be "merged;
28/ In the Car Shop there were three lines established:
1-C the all-black line, 1-B, the entry-level jobs to the all-
white line, and 1-A the all-white line. However, the system
worked basically the same as the 1A-1B system described in sub
section 1, supra. The history of the system in the car shop ̂
is set forth in the Government's Request No. 5 and U.S. Steel s
Response thereto which are included in the Record as
Government Exhibit 105.
22
that is, the black employees would be able to use their LOP
seniority in the all-black line for promotions and regression
in the white LOP. [GX 105, paras. 2-5, R] The black car shop
employees, while not happy that they had to wait two years to
obtain equal employment opportunity, accepted the promise of
such opportunity. [See testimony of black car shop employee Mr.
Hicks, Vol. 7, June 27, pp. 280-282]
Unfortunately, the promise of equal employment became
a broken promise. On June 3, 1964, without any notice to the
black car shop employees, the Steelworkers and U.S. Steel
cynically abrogated the August 5, 1963 Agreement. [GX 105,
paras. 6-10, R] The 1964 Agreement established a variant of
the discriminatory lA-lB system. [Id.*]
The black car shop employees were, understandably, con
siderably disturbed by the 1964 Agreement. Accordingly, they
met with the staff representative of the Steelworkers, Mr.
Phillips, and the District Director of the Steelworkers, Mr.
Strevel, in an attempt to attain, at least, the promise of equal
employment opportunity contained in the 1963 Agreement. [Mr.
2 9/
Hicks, Vol. 7, June 27, pp. 284-291] The black employees
following the advice they received from their union officers
29/ The black car shop employees wrote letters to Mr.
Phillips and Mr. Strevel protesting the abrogation of the 1963
Agreement and attempting to arrange a meeting to discuss the
problem. They wrote a letter to Mr. Phillips on December 26,
1964 [PX 416, R] and on January 20, 1965 [PX 420, R] and they
wrote a letter to Mr. Strevel on January 20, 1965 [PX 419, R] .
23
filed a grievance protesting the 1964 Agreement. [PX 418, R]
But at the request of the Union the grievance filed by the
black workers was withdrawn. [Testimony of Mr. Carles Adams,
who was then the Car Shop Supervisor, Vol. 36, pp. 97-98;
CX 893, R]
Subsequently, the discriminatory lA-lB system remained
in force at the car shop until the LOPs were belatedly merged
in December, 1971. [GX 105, paras. 12-13, R]
The district court referred to the abrogation of the
1963 Agreement to merge the segregated car shop seniority lines
as "inexcusable." Yet in its effect, it was no different from
the 1A-1B systems in other areas where no promise was ever made.
Certainly, the failure by U.S. Steel and the Steelworkers to
make any attempt to merge lines in the other analogous situations
at Fairfield Works was no less excusable than the broken-
promise of equal opportunity in the car shop.
In the car shop the Company and the Union, even if years
late and on the eve of trial, merged the LOPs at their own
initiative. The lower court had to order mergers of numerous
other lA-lB LOPs by its Decree of May 2, 1973. [A. 122] Other
Black employees trapped by lA-lB plans were therefore worse off
than even the car shop class in Ford. The denial of back pay
in the latter situations while granting it in the former cannot
be justified on any factual distinction.
b. The Hardy case
In the Blast Furnace of Ensley Steel (the Hardy case)
24
the defendants instituted a 1A-1B system similar to that
described in subsection, supra. While the plaintiffs in Hardy
set forth the obviously discriminatory practices in the Blast
Furnace they did not establish those practices any more clearly
than the Government did with respect to the other 1A-1B situations
in Ensley Steel.
In fact, the basics of the discriminatory 1A-1B concept
was stipulated to by U.S. Steel and the United States. [Stipu
lation 3, pp. A. 92-93, 94-95, 105] Moreover, the Government
by Request for Admission of Facts exhaustively established the
discriminatory nature and consequences of the practices in Unit
308 of Ensley Steel. [GX 108, R]
It is particularly bewildering that the court denied
back pay to all black employees in Ensley Steel except those
in the Blast Furnace. The 1A-1B system in the Blast Furnace
was, if anything, less discriminatory than in other departments
of Ensley Steel. Rule VII-A-l-a did not apply to the Blast
Furnace; [A. 95; see subsection 2, supra] unlike other depart
ments in Ensley Steel white employees could not^use their 1A
seniority to bump Blacks out of their IB jobs,
c. The McKinstry case
The same occupational seniority system applied in the
30/ The lA-lB concept was applied to thirteen LOPs at
Ensley Steel; in ten of those LOPs, Rule VII-A-l-a applied.
[A. 95]
25
plate mill in the Fairfield Steel Plant and specifically to
the finishing hookers in that department (the McKinstry case), as
31/applied throughout Fairfield Steel. The district court ruled
that the finishing hookers (all Black) were "frustrated" in
seeking promotional opportunities by the placement of their job
in a separate LOP from the job of Finishing Craneman. In addi
tion to awarding back pay to the finishing hookers the court
ordered the merger of the finishing craneman job with the LOP
32/
containing the Finishing Hooker job.
There is no doubt that the defendants' system of joining
the all-black jobs to the formerly all-white LOPs in those plants
operating under an occupational seniority system seriously
3 3/"frustrated" the promotional opportunities of Blacks.
31/ Occupational seniority existed, until terminated by the
Decree of May 2, 1973, in the Fairfield Tin Plant and the Ore
Conditioning Plant (only for promotions) as well as the Fair-
field Steel Plant. [A. 86]
32/ The mergers ordered by the court are set out in Appendix
B to its Decree of May 2, 1973. This Appendix has not been re
produced in the Joint Appendix filed by the parties to this appeal. The LOP with the merged Finishing Craneman job is
designated as LOP 403 of Fairfield Steel Plant.
33/ This Circuit in its landmark decision, Local 189 v.
United States, supra succinctly described the discriminatory
effects of an occupational seniority system:
"The translation of racial status to job-
seniority status cannot obscure the hard,
cold fact that Negroes at Crown's mill
will lose promotions which, but for their
race, they would surely have won. Every
time a Negro worker hired under the old
segregated system bids against a worker in his job slot, the old racial classification
reasserts itself, and the Negro suffers
anew for his employer's previous bias."
Id. 988.
26
Under this system an employee only established seniority on
a job after he was regularly assigned to work on the job.
Of course, prior to 1962-1963 Blacks had no opportunity to
acquire any seniority in the higher-paying, all-white jobs;
accordingly, for promotion or regression purposes in the all-
white jobs Blacks were relegated to inferior positions to whites
who had worked in those jobs no matter how junior those whites
were to the Blacks in terms of plant seniority.
Moreover, black employees were, for all practical pur
poses, limited in their promotional opportunities to the all-
white LOPs into which their particular job was merged. If an
employee voluntarily transferred into a job in an LOP other
than his home LOP he forfeited all his accumulated seniority in
jobs in his home LOP. [GX 48, R] As a result, the lower court
ordered back pay for black finishing hookers who were denied,
in effect, the opportunity to promote to the functionally-
related job of Finishing Craneman.
Of course, Blacks in three plants, Fairfield Steel,
Fairfield Tin Plant, and Ore Conditioning, suffered the harsh
discriminatory effects of the same occupational seniority system
imposed on segregated job assignment. This system was not
peculiar to the plate mill. Also Blacks in numerous other jobs
besides Finishing Hooker were "frustrated" in their promotional
opportunities because of the LOP placement of all-black jobs
in which they worked. The lower court by causing numerous job
27
and LOP mergers in order "to effectuate Title VII", in fact,
34/held that this was the case. [A. 122]
C. There Is No Relevant Distinction Between
The Economic Harm Suffered By Blacks in
The Departments in Which Back Pay Was
Awarded and Those in Other Departments
After a review of the discriminatory practices of the
defendants, as set forth above, it is an inescapable conclusion
that Blacks lost wages as a result of those practices - Blacks
were just locked into the lower paying jobs. [A. 159-161]
However, neither the Government nor the private parties
rested on this inescapable conclusion but presented statistical
evidence demonstrating the disparity in earnings between black
35/and white workers.
The statistical evidence presented in the "pattern and
practice" suit and in the private suits was different only in
scope. The United States presented clear evidence of gross
disparity in earnings between black and white workers in terms
of job class, average hourly rates and average yearly earnings.
34/ The mergers ordered by the court are marked by an
asterisk in Appendix B to its May 2, Decree. [A. 122]
35/ The plaintiffs may not have even needed to demonstrate
actual earnings disparity; the undeniable evidence that the
unlawful practices of defendants resulted in Blacks being denied
earnings opportunity is sufficient to entitle members of the class to back pay and to cast the burden of proof on the defendants to
show that their discriminatory practices did not adversely affect
particular claimants. Johnson v. Goodyear Tire & Rubber Co.,
F.2d (5th Cir. March 27, 1974) Slip. Opinion at
2051-52.
28
[GX 101-102, R] This demonstration of earnings disparity
closely resembles the evidence introduced in those actions in
36/which the court awarded back pay.
As might be readily expected from the fact that the
unlawful practices were similar throughout Fairfield Works,
the amount of the earnings disparity was as large or larger
in departments in which Blacks did not receive back pay as in
departments in which back pay was awarded. For example, in the
Stock House, Ensley Steel (Hardy case), Blacks earned in 1970
37/on the average $831 or 11% less than whites; [PX 303, 307, R]
however, in the Ensley Steel Plant as a whole, Blacks earned
38/$1,676.71 or 20.67% less than whites. [GX 101, R]
Similarly in the car shop, the department in which black em
ployees received the largest award of back pay, the average
black employee earned in 1970 $745.66 or 9.8% less than the
average white worker; yet in the Fairfield Steel Plant where,
apart from eight black finishing hookers none of the more than
1500 Blacks who worked there received back pay, the average
black employee earned $1,893.54 or 23.34% less than the average
white worker. [PX 403, GX 101, R]
36/ Compare PX 201-204 (McKinstry), PX 301-308 (Hardy), andPX 401-405 (Ford) with GX 101-102, R.
37/ The earnings figures for the private actions are taken
from Plaintiffs' Requests for Admission of Facts; in its Responses
to those Requests, U.S. Steel made minor corrections which are
not significant.
38/ It should be noted that in GX 101 only those employeeswith greater than $3,500 in earnings were included while in
PX 303 all employees were included.
29
It is clear that there just is no relevant factual
distinction between either the application nor the economic
effects of the unlawful practices on the black workers who
were denied back pay and those few black workers awarded back pay
in the private actions.
3D
A R G U M E N T
Introduction
The facts of this case plainly indicate the discrim
inatory practices which resulted in substantial economic loss
to black workers.
We argue first that the district court in denying back
pay to black workers to compensate them for their lost earnings
ignored, in effect, the integral role that back pay has in
implementing Title VII. (Section I, infra) Next we argue that
the reasons advanced by the district court in support of its
back pay denial are inadequate as a matter of Law. (Section
II,A, infra). Finally, we argue that reasonable and practical
methods exist for a judicial determination of back pay
(Section II,B,1, infra) and that the law requires that the
district court calculate back pay in accordance with such methods.
(Section II, B,2, infra). I.
THE DISTRICT COURT ERRED IN NOT AWARDING BACK
PAY AS AN ESSENTIAL REMEDY FOR DISCRIMINATORY
______________EMPLOYMENT PRACTICES___________
The district court's denial of back pay has to be set
within the context of the two-fold purpose of Title VII: the
strong public policy of terminating all employment discrimina
39/tion generally; and the direct purpose of terminating the
39/ This Circuit through a series of strong declarations of
policy has consistently stressed the duty of the Courts to enforce this paramount public policy. Miller v. International
Paper Co., 408 F.2d 283, 294 (5th cir. 1969); Culpepper y.
Reynolds Metals Company, 421 F.2d 888, 891 (5th Cir. 1970);
Johnson v. Georgia Highway Express, 488 F.2d 714, 716 (5th Cir. 1974).
31
effects of discrimination on individuals and compensating those
who have suffered from these effects. The lower court in
categorically denying back pay to all members of the class
simply failed to exercise its equitable powers to grant full
relief in a manner consistent with this two-fold purpose.
Where a district court fails to exercise its discretion "with
an eye to the purposes of the Act," it must be reversed.
wi.rtz y. B. B- Saxon Co., 365 F.2d 457, 463 (5th Cir. 1966);
c ^ l h z v. Parke, 413 F.2d 1364, 1368 (5th Cir. 1969); Moody_v;.
alhpmarle Paper Co., 474 F.2d 134, 142 (4th Cir. 1973). See
^ipopr^r v. Reynolds Me t a l s . , 421 F.2d 888, 891 (5th Cir. 1970)
That back pay is plainly an essential and important
part of a full Title VII remedy is beyond question. This Cir-
cuir early in the development of Title VII remedies established
the importance of back p a y ^ n d has recently reaffirmed this
position. in united States v. Hayes International Cor£ ., 456
40/ .Tnlinsnn v- ceoraia Highway Express, 417 F.2d 1122,
H 2 5 (5th Cir. 1969), strongly approved the award of back p y.
"It is clear that the element of back
pay is remunerative in nature and is ex
pressly provided for by the Act itself.
42 U.S.C. §2000e-5(g). Under that section,
if the court finds illegal employment practices, one available remedy is rein
statement with or without back pay. The
demand for back pay is not in the nature
of a claim for damages, but rather is an integral part of the statutory equitable
remedy, to be determined through the exercise of the court's discretion, and
not the jury."
32
F.?d 112, 121 (1972) this Circuit considered back pay as so
integral a part of Title VII remedy and as so intrinsic
to "the broad aims of Title VII" that it required the issue
to be fully determined on remand even though the question of
back pay "was not specifically raised until the post-trial
stage of the litigation."
The Fifth Circuit in a recent opinion has explicitly
and emphatically established the essential role of back pay,
Johnson v. Goodyear Tire & Rubber Co., F.2d (March
27, 1974) (Slip. Opinion):
"It is obvious to us that where employment
discrimination has been clearly demon
strated, employees who have been victims
of that discrimination must be compensated
if financial loss can be established."
(emphasis added) Id. at 2052-2053.
See United States v. Georgia Power Co., 474 F.2d 906, 921
(5th Cir. 1973).
The other Courts of Appeals have, like this Court,
determined that back pay is an essential part of Title VII
relief. Rosen v. Public Services Electric and Gas Co., 477
41/
F .2d 90, 95-96 (3rd Cir. 1973); Moody v. Albemarle Paper Co.,
42/supra at 142; Robinson v. Lorillard Corporation, 444 F.2d 791,
4 1/ The Third Circuit in reversing the district court's
denial of back pay, held simply that the courts were "under a
duty to render relief which will eliminate the discriminatory
effects of the past as well as bar like discrimination in the
future." Id.
42/ The Fourth Circuit recognized that "because of the compensatory nature of a back pay award and the strong congressional
policy embodied in Title VII," back pay is appropriate unless
"special circumstances would render such an award unjust." Id.
(Decision on Rehearing en banc is pending in Moody).
33
804 (4th Cir. 1971), cert, dismissed, 404 U.S. 1006 (1971);
„ ^ d v. Timken Poller Bearing Co., 486 F.2d 870, 876 (6th Cir.
iQ-7^ . ^ o w e v. Colqate-Palmolive_Co. , 416 F.2d 711, 720 (7th
Cir. 1969); united States v. N.L. Industries, 479 F.2d 354,
380 (8th Cir. 1973). See also Mize v. State Division of Human
Rights, 6 EPD 1(8925 (N.Y. Court of Appeals 1973); Pettit v.
united States, 6 EPD 1(9036 (Court of Claims, 1973).
In addition the legislative history of the Equal
Employment Opportunity Act of 1972, which amended Title VII of
the Civil Rights Act of 1964, made it clear that Congress re
cognized that back pay was a routine and essential form of relief
Congress made it quite plain that it expected back pay to be
awarded as a necessary relief to compensate the victims of
discrimination. The Conference Report of the Act, after reit
erating the similarity between the Section 706(g) of the Civil
Rights Act of 1964 and the amended section of the same number,
declared:
The provisions of this subsection are ̂
intended to give the courts wide discretion
exercising their equitable powers „o fashion
the most complete relief possible. In deal
ing with the present section 706(g) the_^"ha-up! stressed that the scone of j
43/ The Sixth Circuit clearly enunciated the importance
of back pay:
"The finding of discrimination by the dis
trict court, in addition to the nature of the
relief (compensatory as opposed to punitive)
and the clear intent of Congress that the grant of authority under Title VII =»ould be
broadly read and applied, mandate an award of
back pay unless exceptional, circumstances,
present." [emphasis added] Id.-
34
under that section of the Act is intended to make the victims of unlawful discrimination
whole, and that the attainment of this ob
jective rests not only upon the elimination
of the particular unlawful employment practice complained of, but also requires that persons
aggrieved by the consequences and effects of
the unlawful employment practice be, so far
as possible, restored to a position where
they would have been were it not for the
unlawful discrimination. Cong. Rec. H.
1863 March 8, 1973; 118 Cong. Rec. 3462 (1972).
The lower*court recognized, at least in principle, the
importance of back pay: "[b]ack pay is properly viewed as an
integral part of the whole of relief, which seeks not to punish
the defendant but to compensate the victim of discrimination."
(footnote omitted)[A. 164] However, the district court plainly
did not apply the substance of this rule but merely paid it lip-
service. To allow district courts only to recite the importance
of back pay without giving substance to its recital would be to
backtrack on this Circuit's strong commitment to terminate
employment discrimination and to make a hollow promise of its
commitment to fully and actively enforce the equal employment
opportunity laws.
II.
THE DISTRICT COURT ERRED IN DENYING BACK PAY TO THE CLASS WITHOUT SUFFICIENT SUPPORT IN
LAW OR FACT AND FURTHER ERRED IN FAILING TO USE
REASONABLE AND PROPER METHODS TO DETERMINE __________ AN AWARD OF BACK PAY_______________
It is undisputed that the defendants engaged in unlawful
discriminatory practices which resulted in obvious economic loss
to black employees. [See Statements of Facts pp. 14-20. The district
35
court has the serious responsibility where discriminatory
practices are clearly proven to terminate all the effects of
that discrimination. United States v. Louisiana, 380 U.S. 145,
154 (1965); Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047,
1052 (5th Cir. 1969). Accordingly, where the adverse effects
of the unlawful practices includes economic loss, back pay is
an appropriate remedy. [See Section I, supra)
The court's failure to afford full relief, in the form
of back pay, is plainly contrary to law.
A. The Reasons Advanced by the District Court
For Denying Back Pay Are Inadequate as a
Matter of L a w _________________________
The district court based its refusal to award back pay
to members of this class on three basic grounds. Two of the
reasons, lack of proof and "equitably determining the true
balance of interests," are as the court noted interrelated and
analytically inseparable. [A. 171] The third reason - good faith
is, as the lower court also noted, subsidiary to the above two
reasons. [A. 171-172]
In addition, the court tacked-on two minor considerations
for "weighing the equities" for determining an award of back pay:
(1 ) there is no unjust enrichment to the defendant parties;
and (2) the court afforded extensive injunctive relief.
While there may be no unjust enrichment in the tradi
tional sense, companies and unions doubtless save substantial
expenditures of time and money by not complying with Title VII.
The restructuring of seniority and promotion systems and the
36
establishing of necessary training programs, which Title VII
requires, clearly are not inexpensive undertakings. Neither
companies nor unions will have substantial incentive to volun
tarily undertake the rather expensive steps necessary to
voluntarily comply with Title VII wihtout the knowledge that if
Title VII is not complied with then they, with some degree of
certainty, will be liable for back pay. [See pp. 65- 6 6 , infral
Even assuming arguendo, that there is no "unjust
enrichment" this factor cannot have any bearing on back pay
determination. If the lack of unjust enrichment may be con
sidered by the district courts then this important form of relief
may be nullified; for, as the lower court itself pointed out,
"[lack of unjust enrichment] is true in virtually all employment dis
crimination cases." [A. 173] Of course, this result is directly con
trary to the essential role that back pay plays in implementing
the important public policy embodied in Title VII. [See Section
I, supral And it is also contrary to the purpose of back pay
awards: to compensate the victims of discrimination not to punish
the wrongdoers. Johnson v, Goodyear Tire & Rubber Co., supra at
2054-2056; United States v. Georgia Power, supra at 921.
The court's award of full injunctive relief to remedy the
discriminatory practices of the defendants is required by law.
Vogler v. McCarty, Inc., 451 F.2d 1236, 1238 (5th Cir. 1971);
United States v. Ironworkers Local 8 6, 443 F.2d 544, 553 (9th
Cir. 1971) cert, denied 404 U.S. 984 (1971). The court s grant
37
of one form of required relief, injunctive relief, is no
license for the court to deny another form, back pay. Back pay
is "[a]n inextricable part" of relief and "may not properly be
viewed as a mere adjunct of some more basic equity." United
States v. Georgia Power, supra, at 921.
Thus, the court's argument for denying back pay depends
on lack of proof or determining a "true" balance of the interests,
and on the "good faith" actions of the defendants.
1. The District Court Did Not Apply ProperStandards of Proof to the Determination of
Back Pay Nor Did It Properly "Balance
The Equities"
It is apparent that all the district court could have
meant by "lack of proof" was a lack of specific evidence per
taining to economic harm suffered by individual class members,
since it is patently clear that there was abundant evidence of
discrimination which demonstrated the defendants' unlawful
practices and the adverse economic impact on black workers.
[A. 159-161; see Statement of Facts, pp. 14-30, supra]
It is difficult to square the court's denial of back
pay because of lack of proof as to the economic harm suffered by
individuals with the court's admission that it was not concerned
at the trial with "individual complaints as such, but to charges
of discriminatory procedure, policies, and continuing practices.
[A. 156] In fact, it is doubtful, as the lower court mentioned,
that the litigation could have been effectively managed if the
court examined at the first instance not only the general practices
38
of discrimination but also each individual claim of discrimi
nation. [A. 156 n. 18] Consequently, proof was not presented
44/concerning each individual case of discrimination.
To the extent that the court relied on this reasoning
(failure of individual proof) it denied essential relief because
of lack of evidence when there was no opportunity for that
evidence to have been produced.
However, the court carries the argument one step further:
the court assumed that sufficient evidence could not have been
45/
adduced even if further proceedings were held. The court states
that the determination of back pay "would be fraught with
46/speculation and guess-work." [A. 170]
a. The Applicable Law Requires Reasonable
Estimation. If Necessary. Of Economic
Loss In Order to Compensate the Victims
Of Unlawful Practices
The basic rule that precludes the award of speculative
damages applies only to those damages which are the uncertain
result of the wrong, but does not apply to damages which are
44/ In the three private suits in which back pay was awarded.Hardy. Ford, and McKinstry, the Court ordered further evidence
to be produced after trial which would allow for a calculation
of the back pay.
45/ This in itself is an anomalous position for the court
because in three private actions further evidence was taken by
the court and obviously the court, since it awarded back pay,
found that evidence satisfactory. See Section II,B, infra.
46/ Of course, the court "speculated" on the speculative
nature of the damages since, unlike the three private actions,
evidence was not presented on the back pay entitlement of
individuals.
39
attributable to the wrong and are uncertain only in amount.
storv Parchment Co. v. Patterson,Parchment Paper Co., 282 U.S.
555, 562 (1931); Pobev v. Sun Record Company, 242 F.2d 684,689-90
(5th Cir. 1957). In Johnson v. Goodyear Tire & Rubber__Co. , this
Court has specifically applied this rule to Title VII back Pay:
47/
"We are not unmindful that in many instances proving entitlement to back
pay will be based on probabilities.
However difficult the ultimate resolu
tion, discriminatees must be compensated
for the unlawful strictures preventing
this ascension to a more economically
viable job." Id. at 2062.
Exactitude of calculation is just not required for an
award of compensatory relief. See Johnson v. Goodyear Tire &
Rubber Co., supra at 2061.
this rule was made by the
One of the clearest statements of
Supreme Court in Story Parchment Co_. v.
Patterson Parchment Co., supra:
Where the tort itself is of such a nature as to preclude the ascertainment
of the amount of damages with certainty, it would be a perversion of fundamental
principles of justice to deny all relief to the injured person, and thereby relieve
the wrongdoer from making any amends for
■hie art-.s. In such a case, while the
su Hr ir
g S r foun^th^defendants^liable a/d J k
considering evidence o^econ-ic loss denred - c o v e ^ l t - s
the “ s f f ^ ^ L w e ^ o the " o k and not any inability to
k c u l a t e k e loss that caused these courts to deny monetary
relief.
40
damages may not be determined by mere
speculation or guess, it will be enough
if the evidence shows the extent of the
damages as a matter of just and reasonable
inference, although the result be only
approximate. The wrongdoer is not en
titled to complain that they cannot be
measured with the exactness and presision
that would be possible if the case, which
he alone is responsible for making, were
otherwise." Id.* at 563.
The appropriateness of reasonable estimation where more
precise measurement is impossible or impractical was reiterated
by the Supreme Court in another antitrust case fifteen years
later. In Bigelow v. RKO Radio Pictures, 327 U.S. 251 (1946),
the court distinguished illegal speculation from required
estimation:
"In such a case, even where the defendant
by his own wrong has prevented a more pre
cise computation, the jury may not render a
verdict based on speculation or guesswork.
But the jury may make a just and reasonable
estimate of the damages based on relevant
data, and render its verdicts accordingly.
In such circumstances ’juries are allowed
to act on probable and inferential as well
as upon direct and positive proof.Story Parchment Co., supra, Eastman Kodak
Co. v. Southern Photo Material Co., supra.
Any other rule would enable the wrongdoer
to profit by his wrongdoing at the expense
of his victim. It would be an inducement
to make wrongdoing so effective and com
piete in every case as to preclude any recovery by rendering the measure of dam
ages uncertain. Failure to apply it would
mean that the more grievous the wrong done,
the less likelihood there would be of
recovery." Id. at 264-265.
As the Supreme Court has forcefully pointed out, if
estimation of damages is not permitted in complex factual
situations then statutory compensation provisions would be
little more than a sham.
41
Trial and appellate courts alike must
also observe the practical limits of the
burden of proof which may be demanded of a treble-damage plaintiff who seeks recovery
for injuries from a partial or total exclusion
from a market; damage issues in these cases
are rarely susceptible of the kind of con
crete, detailed proof of injury which is
available in other contexts. Zenith Radio
and Hazeltime Research, 395 U.S. 100, 123
(1969).
See Bigelow v. RKO Radio Pictures, supra at 264; Poster Exchange,
Inc, v. National Screen Service Corp., 431 F.2d 334, 340 (5th
Cir. 1970); Fontana Aviation, Inc, v. Beech Aircraft Corp., 432
F.2d 1080, 1085 (7th Cir. 1970).
In a Title VII case such as this one the incompleteness
of employee records, the difficulty of exactly reconstructing
over an eight—year period the employment structure as if no
unlawful practices existed, etc., will almost always prevent an
exact determination of damages. As the courts have not let an
exactitude requirement defeat the purpose of anti trust and other
statutes so should this Court not let the difficulty of exact
calculation of damages defeat or hinder the strong public purpose
of Title VII. See Johnson v. Goodyear Tire & Rubber Co., supra_
at 2061-1963.
b . A "True Balancing of the Equities" Requires
That Any Unavoidable Error in Estimation
Fall on the Wrongdoer
Of course, any estimation may involve error. However,
when the choice is between the error falling on the wrongdoer
or the innocent victim of racial discrimination, it is clear who
must bear the burden of error. See The Pennslyvania v. Troo£,
42
22 L.ed 148, 152 (1874). The logic of any error falling on the
wrongdoer was most fully articulated by the Supreme Court in
patent and trademark cases. Westinghouse Electric & Mfg.— Cc).
v. Wagner Electric & Mfg. Co., 225 U.S. 604 (1912).
"The loss had to fall on the innocent or the guilty. In such an alternative, the
law places the loss on the wrongdoer. . . .
But when a case of confusion does appear—
when it is impossible to make a mathematical
or approximate apportionment — then, from
the very necessity of the case, one party
or the other must secure the entire fund. . . .
He [the wrongdoer] cannot appeal to a court
of conscience to cast the loss upon an
innocent patentee." Id. at 619-620.— /
In the instant case the district court did not just limit
the award of back pay because of the possible difficulty of
calculation but completely denied back pay to the affected class.
No one would doubt that, at least, some class members lost sub
stantial wages due to discrimination; yet the court below deprived
all class members of all compensation - for the certain as well
48/ The Tenth Circuit recently applied this principle to
a securities case. Mitchell v. Texas Gulf Sulphur Co., 446
F.2d 90 (10th Cir. 1971).
This case concerned the losses suffered by the plaintiff
investors because of a deceptively worded press release. The pivotal factual question was the stock price after a curative press
release which allowed investors to buy back the stock they had sold and would therefore be the measure of damages. [Damages would
equal the specific stock price after the curative press release
minus the stock price at which each plaintiff investor sold].
The court chose the highest daily price of the stock during a
period of 20 days after the curative press release:
"In selecting the highest daily price [rather
than averaging] the advantage works, to a
greater degree, against TGS. But where, as here, the injury is suffered by an act making difficult the exact computation of damages,
the wrongdoer is not heard to complain. Id.*
at 106.
43
as the uncertain loss. This plainly was error; since surely
the principles enunciated by the Supreme Court in commercial
cases apply with equal vigor to cases involving the denial of
equal work opportunities to Americans solely on the basis of
their race.
Judge Justice in a recent opinion in a Title VII case
closely analogous to this one clearly articulated this principle:
"In attempting to allocate among the parties
the burden of remedying many years of discrimination in employment, however, the court
must choose between placing the burden on the
company and union or placing the burden on the wronged employees. A decision to deny back pay is necessarily a determination that victims
of employment discrimination should bear their
own loss. A balancing of the equities in this
case compels the court to conclude that as
between the company and the union on the one
hand, and the wronged employees on the other,
the former should bear the burden of back pay.
Bush v. Lone Star Steel, 7 EPD fl9197, p. 6920
(E.D. Tex. - Jan. 16, 1974)
c. The Developed Law Regarding Back Pay
Under the NLRA Plainly Indicates The
Error of the Lower Court's Denial of
Back Pay
In applying the established principle of law regarding
calculation of economic loss to the issue of compensation for
unlawful employment practices, this Court will be treading on
familiar territory. Plaintiffs' position here is supported and
even required by the reasoning of a long line of NLRA cases.
Johnson v. Goodyear Tire & Rubber Co., supra at 2062. As this
Court has specifically stated, the Title VII back pay remedy was
directly patterned after the NLRA back pay remedy, United States
v. Georgia Power Company, supra at 921, n.19.
44
The NLRA decisions fully support the use of approxi
mation in determining back pay awards. The necessity to estimate
the economic loss caused by an unlawful employment practice
simply does not defeat recovery; as a corollary, any possible
error in approximation, if such error is unavoidable, falls on
the wrongdoer. NLRB v. International Union of Operating
gnf npprs. T.ocal 925, 460 F.2d 589, 599 (5th Cir. 1972); NLRB. y.
Miami Coca-Cola Bottling Company, 360 F.2d 569, 575-576 (5th Cir.
1966); NT.RB v. East Texas Steel Casting Co., 255 F.2d 284 (5th
Cir. 1958) affirming per curiam East Texas Steel Casting Co.,
116 NLRB 1336 (1956) .
The NLRB once having proved discrimination must then only
provide a reasonable formula for estimating the economic harm
resulting from that discrimination in order to satisfy its burden
49/
for obtaining back pay.
This Circuit with a view to the practicality of the
situation has liberally allowed "reasonable" estimations to deter
mine back pay. For example, this Court has permitted the use of
a "representative employee's earnings" formula: that is, the use
of the earnings of the individual who replaced the discriminatee
to measure the economic loss sustained. NLRB v. International
nninn of Operating Engineers, Local 925, sufira at 599; NLRB_v-
overlie TQPPino & Sons, Inc., 358 F.2d 94, 97 (1966). Also, the
49/ The Court in Johnson v. Goodyear Tire & Rubber go.
reasoned that a similar burden of proof would apply m Title
VII cases, supra at 2052, 2061-6^.
45
Court has approved the "projection of average earnings" formula:
that is, the use of the weekly earnings of the discnminatee
over a stated period prior to the discharge to measure economic
loss. NLRB v. Charlie Topping & Sons,— Inc., supra.
Moreover, this Court permits the NLRB in determining back
pay to infer that an employee would have been promoted and order
relief accordingly. NLRB v. Mooney Aircraft, Inc., 375 F.2d 402
403 (5th Cir. 1967) (per curiam) cert, denied. 389 U.S. 859 (1967);
See also NLRB v. Carpenters' Union Local 180, 433 F.2d 934, 935
(9th Cir. 1970). It should be noted that the lower court in
this action, in effect, made an inference opposite to that of
Mooney. The district court's ruling deprives compensation to
those employees who were most ambitious and would have seized the
promotional opportunities, had they been available, by equating
these employees with those others who might not have moved^and
therefore who lost nothing sure "due to discrimination.
Other Courts of Appeals have, like the Fifth Circuit, re
cognized that the use of approximations in determining back pay
is necessary to the enforcement of the policy and purpose of the ^
NLRA. NT,rb v. Rice LaXe Creamery Co., 365 F.2d 888. 891 (D.C. 1966);
50/ It is paradoxical that lower court^in^the^prrvat^actrona,
hrchPp a r w a r = a l S eiftedn„ ^ t mareeferenceP?o "declinations" and
^future pay" was calculated on the basis that employees will
accept p?omotions. [A. 168-169; 169 n. 38)
m / -the D C Circuit in Rice Lake Creamery Co. permitted the. r n 0f back pay by a straight averaging formula. The
would have earned to determine the back pay award. Id.
46
Riinrher v. NLRB. 405 F.2d 787, 790 (3rd Cir. 1969) (en banc) cert.
--- - 52/
denied 396 U.S. 828 (1969); NT.RB V. Ellis and Watts Products,
Trw-. f 344 f . 2d 67, 69 (6th Cir. 1965); NLRB v. Brown & Root,— Inc.,
311 F .2d 477, 452 (8th Cir. 1963); NLRB v. Carpenters' Union*
Local 180, supra at 935 (9th Cir. 1970).
The Supreme Court also has spoken of the importance of
approximating back pay in order to remedy anti-union discrimi
nation. NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263
(1969). Indeed in Phelps-Dodge Corp. v. NLRB, 313 U.S. 177 (1941)
the Court told the Board not to use "sterotype formulas" but to
avail "itself of the freedom given it by Congress to attain just
results in diverse, complicated situations. Id. at 198—199.
Under Title VII Congress looked towards this NLRB back
pay precedent to set the pattern for Title VII back pay cases.
It is clear that exactitude has not been a common factor in,
and indeed was not expected of, back pay calculations under the
NLRA. There is no reason in the legislative history or in the
furtherance of the purpose of Title VII to impose such a standard
on Title VII back pay remedies — indeed legislative history and
purpose point in the opposite direction.
2. The Supposed Good Faith of the Defendants Has
No Bearing on Whether Back Pay Should Be Awarded
52/ in Buncher the Third Circuit (en banc) ruled that back
pay should be approximated on the basis of employees' seniority
even though the defendant company did not have a formal seniority system. The court reasoned that this was a proper formula absent
any showing by the company that an alternative means of appro
ximating the remedy existed. Id.
47
-The Supreme Court in an unequivocable rulxng stated
"that Congress directed the thrust of the Act [Title VII] to the
consequences of employment practices, not simply the motivation."
c ^ qqg v. nuke Power Co., 401 U.S. 424, 432 (1971). No less
unequivocable was this Court's holding in Johnson v. Goodyear
53/
Tire & Rubber Co.:
"We find it unnecessary to resolve this
factual controversy since we hold as a
matter of law that such a finding [of good faith] is totally irrelevant as a
defense to a claim for back pay. supra
at 2054.
Whether the motivation of the defendants was good or
bad, the simple fact remains that black workers took less money
home than white workers because of the unlawful practices at
Fairfield works. Back pay is directed to these "consequences,"
economic harm.
Similarly, the district court's statement that the
defendants had "good reason to believe" that the seniority systems
at Fairfield Works were consistent with Title VII is beside the
point.^[A. 1721 As this Court has so clearly pointed out-.
qpe also Douo W General Motors Corporation, 457 F -2d 348,
at 921; Brennan v. City Stores.,—
(5th Cir. 1973).
54/ The district court points
tion that this same seniori Y . y . -d was found unacceptableNational Labor Relations Act in ^ “ ^eltL was 498,under Title VII in Taylor v. Armco,̂ e e ^ S q g E Q a t ^ ^ 282
i f <H.o!7l 1: ■c /t denied 397 U.S. 919 (1970).
48
". . . the actions . . . became subject to
the prescribed judicial relief not because
the Court said so, but rather because the
Court said - even perhaps for the very first
time - that the Congress said so."
Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 536 (5th
Cir. 1970). Moreover, in Johnson v. Goodyear Tire & Rubber Co..
this Court specifically rejected this argument, the "unsettled"
state of the law, as offering any defense to a claim for back pay,
supra at 2057.
In conclusion, it is crystal clear that defendants' good
faith or defendants' perception of statutory application has
no bearing on whether the innocent victims of racial discrimi
nation should be compensated, as Congress directed, for the
economic harm suffered as a result of that discrimination.
B. This Cause Should Be Remanded To The District
Court To Determine Reasonable Procedures For
Calculating The Award of Back Pay___________
1. Proper and Reasonable Procedures For Determining
Back Pay, Such as Those Developed by The Court
in the Hardy. Ford, and McKinstry Cases. Are Feasible and Appropriate for This Class
The lower court pungently pointed out the breadth of
the litigation involving Fairfield Works: there were "hundreds
of witnesses, more than 10,000 pages of testimony, and over ten
feet of stipulations and exhibits. . . ." [A. 147] In this
situation the Court properly restricted its initial inquiry "not
to individual complaints as such, but to charges of discrimi-
49
natory procedures, policies, and continuing practices. [A. 156]
To do otherwise, to have tried individual claims with the trial
of the general policies and practices, would have made the
initial trial all but unmanageable.
However, this in no way means that the valid claims of
the individual members of the class should go unadjudicated.56/
The proper course is to hold second—stage proceedings to deter—
mine whether specific class members suffered economic harm.
The lower court in the three private cases of Hardy,
Ford and McKinstry in fact followed this procedure:
"In three situations this burden was carried;
that is, the evidence showed that a part
icular group of black employees, or some of them 53-7bac3 been injured by an unlawful em
ployment practice and, at least with
'55/
55/ AS a result of this extensive review of the policies
and practices of the defendants the lower court issued a com
prehensive order, for injunctive relief. [A. 117-140] The plaintiffs take no appeal from this order; although they agree
with the position of the United States that the provisions
pertaining to "red—circling" are unduly and unlawfully
restrictive.
56/ The plaintiffs suggest that a bifurcated trial proceeding
a practical and efficient means for determining back pay.
the "first stage" is a general determination of whether and to
what extent discriminatory practices exist; and the "second stage"
is a determination of economic harm suffered to particular class
members as a result of those practices. See Johnson v. Goodyear
Tire & Rubber Co., supra at 2053.
57/ There is no discussion by the lower court which in any
way argues that the Blacks in these three particular situations
suffered discrimination in a way which led to economic harm
Knt- H-iJ not rddIv to anv other black workers at Fairfield Works.
See Statement of Facts’/]ppT'^CT- 30, and see pp. 63 - 64 , infra.
50
supplementation of the oriqinal evidence,
it would be possible to fix with a_ reasonable
deqree of accuracy, though not with exactitude and certainty, the approximate amount
of their respective individual damages.
(emphasis and footnote added) [A. 167]
The Court's further reasoning as to the propriety of
this method in no way argues against instituting such proce
dures for the instant class. The court points to the example
58/of Mr. William Hardy, [A. 166] In Mr. Hardy's case the court
first determined that discrimination resulting in economic loss
had occurred to a class, the black Stock House employees, to
which Mr. Hardy belonged. The court then proceeded to order
further evidence to be produced by United States Steel to deter
mine whether individuals in that group had lost pay as a result
of discrimination, and if so, how much. (See pp. 7 - 8 , supra)
After this evidence was produced pursuant to the Court s care
ful instructions, the Court determined that Mr. Hardy had, in
fact, not suffered any financial loss as a result of the dis
criminatory seniority practices. It should also be noted that
the court found that twenty other Stock House employees had
suffered economic loss in the amount of $43,125.96. [A. 144]
The plaintiffs seek the same fair adjudication of the
individual claims of the class herein that Mr. Hardy and the
other Stock House employees received.
58/ The court specifically describes Mr. Hardy's situation
in Footnote 35. [A. 166]
51
The court in order to give a fair adjudication to
individual claims for compensation must take advantage of
methods of estimation, special masters and other devices
available. In fact, the lower court in Ford., Hardy;, and
McKinstry established a workable and efficient method for
determining economic loss.
"The basic approach to fixing the damage
claims in these situations [Ford, Hardy.,
McKinstry! was to assume that the changes
made in the affected LOPs by the court
decree [A. 117-140] had been made on July 2,
1965, along with the changes in measurement
of 'age' (i.e., by using plant age and in defining when vacancies arose (i.e., on-force
cut-backs of 15 days or more). The employees in the lines were assumed to possess
equal fitness and skill and to be equally interested in accepting vacancies higher in the
LOP. Then a history was prepared since July
1965, showing deaths, retirements, trans
fers, increases and decreases in work
forces, etc., and vacancy events thereby
determined. Employees were then slotted
into the vacancies using plant age and the
assumptions indicated, producing in essence
a flow chart of hypothetical personnel
changes. Earnings in a hypothetical assign
ment were determined during a particular
time segment by looking at the earnings in
fact of the employees who actually had
occupied that job, the number of hours
actually worked during that time by the
assumed occupant of the job and multiply
ing those hours worked times the hourly rate of the hypothetical assignment. Then
the employee's hypothetical earnings were
compared to his actual earnings over the
same period. Those shown to have sustained
a loss by such study were then given an award
of back pay equal to 150% of the difference
in earnings." (footnotes omitted)[A. 168-
169, 176-177]-^/
59/
by the
The passage from the opinion is presented as amended
court's order of January 25, 1974. [A. 176-177]
52
The basic assumptions relied on by Judge Pointer in
his formula illustrate the practical art of establishing
equitable relief. The court assumed equal fitness and skills
among the pertinent employees and assumed those employees to60/
be equally interested in accepting vacancies. The court made
these assumptions because they permit a reasonable degree of
accuracy and because, to do otherwise, would have submerged the
back pay calculations in minutiae.
Moreover, the lower court's procedure for determining
the formula and application of that formula was an example of
efficient and sound judicial economy. The court first deter
mined that back pay was appropriate in Ford. Hardy and McKinstry
in its May 2, 1973 order. [A. 129] Subsequently, the court
requested that the parties attempt to settle the calculation
and amout of the award. The court also held a series of in-
chambers meetings with counsel to determine the appropriate
method of calculation. At one of these meetings, the parties
having failed to settle the amount of back pay, the court
announced that back pay would be calculated according to the
formula set out above and consequently, the court ordered the
defendants to supply the evidence and computations necessary.
[A. 148, n. 3]
60/ The court's method for assessing back pay for future
harm (which by definition contains an element of speculation)
which Blacks will suffer until they reach their rightful place is
another example of practical and necessary estimation. [A. 169,
176] Judge Justice in a recent decision apparently perceived the
need for similar estimation. Bush v. Lone Star Steel, 7 EPD ]̂9179,
p. 6921 (E.D. Tex. Jan. 16, 1974).
53
The defendants, primarily United States Steel, pre
sented not only the requisite computations but also other com
putations which were made in support of a position previously
taken by the company on back pay calculation. The Company
argued that an individual's "declination" of a job "promotion"
should diminish the back pay award. Thus, the Company produced
two computations of back pay and the evidence in support thereof61/
one took declinations into account and one did not.
A final conference to determine the back pay award was
held by the court on August 6, 1973. [A. 13] The court, after
reviewing the computations of back pay and hearing argument,
ordered that the amounts calculated by the court s formula to
be paid as back pay except for one important modification.
[A. 142-146, 168-169]
The one modification concerned the Ford action.
[A. 168, 176] The court in examining the two back pay studies
prepared by the Company found "a significant number of declina
tions of promotion" in the car shop. In order to do equity,
the court ordered that the back pay amount awarded the Ford
class would be determined by averaging the results of the study
g w it is pertinent to the question of difficulty of cal
culation that the company on its own initiative produced com
putations and back-up evidence for two different methods of
determining back pay.
62/
correc
error
The original text of the court's opinion [A. 168] in
tly designated the exception as the Hardy action; this
was corrected by the Court's January 25, 1974 order.
[A. 176]
54
taking declinations into account with the results of the study
which did not take declinations into account. [A. 168, n.37]
The court's use of considered approximation to most
equitably and reasonably determine back pay in specific in
stances, such as in the Pratt City car shop (Ford case), amply
demonstrates the proper approach available to the District
Court for the determination of appropriate compensation for
63/
this class.
Judge Justice has also recently established a proce-
64/dure for calculating back pay. Bush v. Lone Star Steel, supra.
Like the court in Ford, Hardy and McKinstry. Judge Justice
first found the defendants liable for back pay, then established
general principles for the computation of back pay, and pro
vided for additional evidence to be presented. However, un
line the lower court in the three private actions, Judge Justice
63/ It is perfectly appropriate that once a reasonable
formula for determining back pay has been established, the
burden to mitigate or to demonstrate a more appropriate formula falls on the defendant: "any doubts in proof should be resolved
in favor of the discriminatee. . . . " Johnson v. Goodyear Tire
& Rubber Co., supra at 2062. The court below successfully followed this procedure in Ford and should be ordered to follow
the procedure with respect to other black employees at Fairfield
Works. See Rutter-Rex Mfg. Co., v. NLRB, 473 F.2d 223, 230-231
(5th Cir. 1973); NLRB v. Miami Coca-Cola Bottling Co., supra
at 576; NLRB v. Carpenters' Union Local 180, supra at 935;
NLRB v. Ellis and Watts Products, Inc., supra at 69; Florence Printing Company v. NLRB ̂ 376 F.2d 216, 223 C4th Cir. 1967).
64/ There are approximately three hundred (300) affected
class members in Bush.
55
ordered a "Special Master" to take the additional evidence
§5/and to make the actual back pay calculation.
The selection of a "Special Master," pursuant to
Rule 53, FRCP, to assist in the formulation of the back pay
66/
award is a particularly useful and appropriate device.
Numerous courts have indicated the utility of the appointment
of a Special Master specifically for the determination of the
amount of back pay after liability has been determined.
Robinson v. Lorillard Corporation, 319 F.Supp. 835, 845 (M.D.
N.C. 1970) aff'd in pertinent part, 444 F.2d 791 (4th Cir. 1971)
cert, dismissed 404 U.S. 1006 (1971); United States v. Local
47. Lathers. 328 F.Supp. 429 (S.D.N.Y. 1971), aff'd 471 F.2d
408 (2nd Cir. 1973); cert. denied. 37 L.ed.2d 398 (1973);
United States v. Lee Wav Motor Freight Co., 6 EPD 1(8812 (W.D.
Okla. 1973).
In addition to the court-ordered procedures for
determining back pay there have been many settlements between
parties that have established back pay awards. See e.g.,
65/ But the court in Bush further provided that if during
the presentation of evidence any particular issue of sub
stance arose then the issue should be presented to the court
for resolution.
66/ Congress in amending Title VII in 1972 specifically eased
the Rule 53, FRCP, requirements for appointment of masters. Title VII
of the Civil Rights Act of 1964 (as amended 1972) section 706(f) (5),42 U.S.C. §2000e-5. The Congress expanded the district court's
discretion to employ Special Masters to handle in an expedited
manner the resolution of complicated factual determinations
such as the calculation of back pay.
56
United States v. Georgia Power, 7 EPD 119167 (N.D. Ga. 1974).
It should be emphasized that an affirmance of the lower court s
decision would have a substantially negative effect on out-
of-court settlements. Discriminating defendants would have little
incentive to develop in settlement with victimized plaintiffs
reasonable methods for determining back pay if there was sub
stantial likelihood that the district court could order that
while defendants clearly violated Title VII the amount of eco
nomic harm suffered was "unclear" and consequently not award
any back pay - and the more protracted and larger scale the
manifestations of unlawful conduct, the more security would
such defendants feel.
It is a platitude that there are difficult problems
with respect to the computation of back pay. However, while
these problems may not be lightly brushed aside, neither may they
be made into an impenetrable barrier that prevents any compen
sation for the innocent victims of employment discrimination.
Certainly, as demonstrated above, the federal courts are neither
powerless nor without the necessary imagination to implement
the mandate of Congress to terminate the widespread evil of
employment discrimination and to compensate its victims.
57
2. The Applicable Law and Clear Reasons Of Policy Dictate That This Court Remand
The Cause to the District Court For An Appropriate Determination of An Award
of Back Pay
The district court anticipated that plaintiffs might
well pose the question to this Court that if Blacks in the
plate mill, stock house, and Pratt City car shop could properly
have their individual claims of discrimination adjudicated then
why not Blacks in the Tin Mill, Open Hearth, Rolling Mill, etc?
However, the court did not, as it could not, adequately answer
this riddle; rather, the court vaguely stated that
"[t]he ultimate conclusion, simply, is
that in the particular context of this
case the assessment of back pay for the
pre-1963 discrimination systematically
perpetuated by the effects of inhibit
ing seniority standards upon the bidding
procedures would be fraught with specu
lation and guess-work." (footnote
omitted) [A. 170]
This Circuit has just recently and emphatically rejected
this argument that difficulty in or impossibility of precise
67/
calculation may defeat an award of back pay. Johnson v.
Goodyear Tire & Rubber Co., supra at 2061-2062.
Moreover, the district court, in effect, established
an unrealistic burden of proof on the plaintiffs to establish
67/ As previously shown the court's constricted view of
determining compensatory relief is contrary to the established
law developed in the fields of anti-trust, patent and labor
law among others. (Section II,A, supra) It is also clear that
the district court in its blanket refusal to consider back pay
for the instant class disregarded proper and practical pro
cedures for facilitating back pay calculation. (Section II,B,1,
supra.)
58
their individual economic harm and then simultaneously ruled
there was no manageable way that the plaintiffs could shoulder
the burden. The Fifth Circuit, in an Equal Pay Act case, has
made it plain that injured parties may not be barred from farr
recovery by an impossible burden of proof.
tory wage structure ^ “ K suffrees for
thee?rtaJ'co“ t to determine the amount ofthe trial court f just and reason-back wages as a matter ,D .9ficulty of aScer-
able infer r confused with right
1970)." Brennan v. City Stores, 1 ^ .
479 F.2d 235, 242 (5th Crr. 1973)--
Finally, this Court's decisions in .links v. Mam , 464
F 2d 1223 (1972) and B i n a j ^ padway Express. 485 F.2d 441
68/ similarly, ^ r l l f S o u r t S V 11
^ P - calculation..
"Where resort to presumption deemed nec
essary, the presumption should be in ra
the member of the class. . • •
The determination of damage for injury . pyact We are confident thatcan rarely be exact. . trict court
in those instances w er test period doesfinds that experience in the test per ^
not provideJ court*1 can®devise a method for
anvtnara-fair and reasonable approximation ofmaking a fair ana individual with athe money loss for eaeft ^ law requires
foundation as adeq v. Palmolive
for an award of damages. - ^ ^ 8 9 7 3 ;
cpnipany^ Z in 1073^p. 6132 (November 28, iy/->i-
59
(1973) do not, as the lower court asserts, support the denial
of back pay to the class.
The district court argues that the applicable rule70/
for awarding back pay is set forth in Jinks. [A. 166, 171]
While plaintiffs do not quarrel with the relevance of Jinks they
do strenuously quarrel with the notion that Jinks_ supports uhe
denial of back pay to each and every member of the affected class.
Jinks involved a class action brought pursuant to the71/
equal protection clause of the Fourteenth Amendment to enjoin
gg/ This Circuit had previously found that Roadway Express
transfer and departmental seniority system was discriminatory and
remanded the action to the district court for appropriate relief.
Bing v. Roadway Express, 444 F.2d 687 (1971).
The pertinent section of Jinks reads as follows:
"But, back wages are not to be automatically granted whenever a person is ordered reinstated. The wages sought must be 'pro
perly owing to the plaintiffs.' This requires
positive proof that plaintiff was ordinarily
entitled to the wages in question and, being
without fault, would have received them in
the ordinary course of things but for the inequitable conduct of the party from whom
the wages are claimed." Id_. at 1226.
7 1 / it is important to note that the Jinks action was brought
pursuant to the Fourteenth Amendment and not pursuant to a
statute, like Title VII, which specifically makes discrimina
tory employment practices unlawful and specifically provides
for back pay as an essential tool for implementing the sta
tutory purpose. See Section I, supra.
The different review which the Court of Appeals apply to
district court's discretion to grant monetary relief in a cause, like Jinks brought under the Fourteenth Amendment, as compared
to the instant cause, brought under Title VII, is amply demon-
sttated by the standard applied in J inks to the award of
attorneys' fees.
60
a school board from discriminating between tenured and non-
tenured teachers in its maternity leave policies. While the
plaintiff brought a class action for injunctive relief, she
only sought back pay for herself.
The court in Jinks found the maternity leave practices
of the defendant violative of the Fourteenth Amendment but denied
72/
the plaintiff back pay. However, the court only denied back
pay to Ms. Jinks after careful reviewing the circumstances
surrounding her employment. The court found that Ms. Jinks had
failed to comply with two critical and reasonable administrative
regulations for returning to work. Ms. Jinks neglected to (1)
give pre-departure notice and (2) make proper application to
return to work. Id̂ . at 122 5. Tenured teachers had to comply
with these regulations in order to be re-assigned after taking
a maternity leave.
It is clear then that Jinks falls into the long-line
of cases which distinguish speculation as to whether an in-
71/ [Cont'd.]
"The allowance of such fees is within the
discretion of the district court and its
exercise of this discretion will not be upset
on appeal in the absence of clear abuse." Id.. at 1228
Of course, the standard for review of the district
court's award of attorneys’ fees in Title VII cases is sub
stantially broader. Clark v. American Marine Corp., 304F.Supp.
603 (E.D. La. 1969) aff'd per curiam 437 F.2d 959 (5th Cir. 1973)
Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974).
72/ Since back pay was sought only for the individual
plaintiff the appropriateness of back pay for the class was not
at issue.
61 -
dividual was harmed by the wrong from speculation as to the
amount of harm. Story Parchment Co. v. Patterson Parchment
Paper Co., supra; see cases cited in Section II,A. The court
determined that Ms. Jinks could not be awarded damages for being
discriminatorily denied a position for which she never applied.
Similarly in Bing the district court did not deny back
pay until after examining the circumstances surrounding each of
the black employees who were subject to the discriminatory
policies. This Court reviewed this denial of back pay with
respect to each individual and modified the denial with respect
to one claimant:
" . . . the trial court's notice effectively
brought forth all class members who deserved individual relief in this proceed
ing. Of the five who were entitled to road
jobs, only Bing was blocked by discrimination from entering the OTR [over-the-road] unit.
The other four are not entitled to back pay
because they were hired by Roadway in a period when no road drivers were hired; even if Roadway had not been discriminatory, they
could not have obtained road jobs earlier
than they did." Id. at 452 — /
While Jinks and Bing may be interpreted to mean that
back pay is not "automatically granted" to each member of the
7 3/ it is noteworthy that the method used by the lower
court in determining back pay in the Ford^ HardYand McKinstry
actions resembled the method approved in Bing.- The low^ . court relied on "vacancies" in determining back pay as this
Court did in Bing. The plaintiffs simply request that the
tneory applied by the lower court in the three private-party
actions and by this Court in Bing, might be.^Ppiie .̂ t0, 'without suggesting or implying that this will be the best
only method for such determination.
- 62 -
affected class, conversely the decisions may not be read to
argue that back pay may be automatically denied because of
difficulties in calculation. Basically the cases indicate that
the district court, if it finds that the defendants have com
mitted unlawful practices, should look to the effect of those
practices on individuals and should determine a reasonable method
for calculating that harm.
The lower court did not follow this standard except74/
in the Ford, Hardy and McKinstry cases. The black workers in
74/ The lower court's obviously incorrect standard of proof
is clearly apparent from a comparison of its standard, and that
of this Court in Johnson v. Goodyear Tire & Rubber Co., supra.
The lower court's standard -
"In a case such as the one sub judice, where
employee initiative and choice are critical
factors in the job selection process, it
seems clear that the burden of proof must . . .
be placed on the claimant to establish his
injury and damages." [A. 167]
This Court's standard -
"If an employee can show that he was hired into the labor department . . . and was sub
sequently frozen into that department be
cause of the discriminatory practices es
tablished here, then we think the individual
discriminatee has met his initial burden of
proof unless there are apparent countervail
ing factors present. It will be incumbent upon Goodyear to show by convincing evidence
that other factors would have prevented his
transfer regardless of the discriminatory
employment practices. . . . It is the employer who created the discriminatory situation
which prevented free choice in the first instance. It is, therefore appropriate to require
the employer to show that the invidious limita
tions on free mobility were not the cause of the discriminatee's current position in the
economic ladder." Id. at 2061—2063.
63
this class suffered from the same patterns of discrimination
as those black workers represented in the private actions: the
unlawful seniority system which locked Blacks into lower paying
jobs, the denial of training oppotunities/ the discriminatory
impact of the implementation of the labor pool agreement, and
the 1A-1B Concept. [See Statement of Facts, pp. 14-27] Con
sequently, the economic loss sustained by this class as a result
of the defendants' unlawful practices was comparable to the
loss sustained by those who recovered back pay in the private
actions. [See Statement of Facts, pp. 28-30]
Therefore, the applicable law and the plain facts of
unlawful practices which caused economic loss to the class re
quire that this cause be remanded to the lower court for an
appropriate determination of back pay.
C O N C L U S I O N
In Georgia Power this Court suggested that district
courts include
" . . . a weighing of . . . factors of
economic reality . . . and, most assuredlythe physical and fiscal limitations of the ̂
court to properly grant and supervise relief.
United States v. Georgia Power Company,
supra at 922.
Assuredly this declaration does not establish a price-tag on
judicial enforcement of equal employment laws. Rather the
district courts must, in Title VII actions, like courts in
complex commercial litigation, e.g., anti-trust and patent cases
develop efficient and practical means to enforce the law.
(See Section II,A, supra) The courts in NLRA cases have demon-
64
4
strated how the issue of back pay may be resolved (see Section
1,C, supra); and courts have already applied appropriate
methods to the calculation of back pay in Title VII actions.
(See Section II, B, 1 supra). .
ijvj-jg failure to use all reasonable methods to estimate
back pay and to accordingly allow defendants in large and com
plicated cases to escape having to pay compensation to the
victims of their unlawful and discriminatory practices would
serve as a severe blow to the successful judicial enforcement
of Title VII. As the Supreme Court said in a different but
related context:
"Failure to apply it [reasonable methods for
calculating economic harm] would mean that
the more grievous the wrong done, the less
likelihood there would be of recovery."
Bigelow v. RKO Radio Pictures, supra at 265.
It is a commonplace that the re—ordering of a seniority
system, the altering of promotion and training programs, whether
to comply with Title VII or for some other purpose, is often a
time-consuming, expensive and difficult process. If there is
a substantial chance that back pay will not be awarded, defendants
will lack a definite economic incentive to make the necessary
extensive changes in their employment practices to terminate
the continuing effects of discrimination. See United States__v.
N.L. Industries, supra at 379.
If the lower court's ruling is upheld, the larger com
panies with the most widespread practices of discrimination which,
of course, present the most complex factual pattern, would be
the defendants most likely to escape back pay and consequently
65
have the least incentive to voluntarily, or through out-of-
court settlement, comply with Title VII. Certainly this is
counter-productive to the effective implementation of the strong
public policy of fair employment.
This Circuit has been in the forefront of judicial
decision-making which has come a long way towards effectuating
the strong national commitment of equal employment opportunity;
the Circuit has repeatedly issued decisions which made Title VII
work procedurally, realistically defined the parameters of dis
crimination,^nd authoritively established the need for effec
tive relief."^ The court has come too far in helping to make
equal employment opportunity a national reality rather than a
national commitment to back-off at the final obstacle - the clear
and undeniable establishment of effective measures of judicial
relief, including back pay.
-7R/ nati s v. Crown-Zellerbach, 398 F.2d 496 (5th Cir. 1968)
v. international Paper Co., supra; Huff v. N.D. Cass Co.,
485 F .2d 710 (5th Cir. 1973) (en banc).
76/ T.ncal 189 v. United States, supra; United States„_v.
Jacksonville Terminal, supra; United States v. Hayes
International Corp., supra.
22/States
Vogler v. McCarty, Inc.,
v. Georgia Power,
supra; United
66
WHEREFORE, for the above-stated reasons the plaintiffs
respectfully urge the Court to reverse the lower court's
arbitrary denial of back pay to each and every member of the
instant class and to remand the cause to the district court
for a proper determination of back pay due to members of the
class.
Respectfully submitted,
OSCAR W. ADAMS, JR.
JAMES K. BAKER
U. W. CLEMONSuite 1722 - 2121 Building
2121 Eighth Avenue North
Birmingham, Alabama 35203
JACK GREENBERG
MORRIS J. BALLER BARRY L. GOLDSTEIN
10 Columbus Circle
Suite 2030New York, New York 10019
Attorneys for Plaintiffs
67
CERTIFICATE OF SERVICE
*
v I hereby certify that on this 3rd day of April, 1974,
I served two copies of the foregoing Brief for Plaintiffs-
Appellants on appeal upon the following counsel of record
by depositing same in the United States mail, postage
prepaid.
James R. Forman, Jr., Esq.
Thomas, Taliaferro, Forman, Burr, & Murray
1600 Bank for Savings Building Birmingham, Alabama 35203
Jerome A. Cooper, Esq.
Cooper, Mitch & Crawford
409 North 21st Street
Birmingham, Alabama 35203
Robert T. Moore, Esq.
Civil Rights Division
U.S. Department of Justice
Washington, D.C. 20530
Demetrius C. Newton, Esq.
Suite 1722 - 2121 Building
2121 Eighth Avenue North
Birmingham, Alabama 35203
Attorney7for Plaintiffs-Appellants