Sylvester v. United States Postal Service Brief for Plaintiffs-Appellants

    IN THE

«

4

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1746

HAROLD L. SYLVESTER, et al.,

Plaintiffs-Appellants, 

-vs-
UNITED STATES POSTAL SERVICE, et al.,

Defendants-Appellees.

4*

On Appeal From The United States District Court For The 
Southern District Of Texas, Houston Division

BRIEF FOR PLAINTIFFS-APPELLANTS

MARK T. MCDONALD 
PAUL ZAREFSKY 
McDonald & McDonald 
1834 Southmore Boulevard 
Houston, Texas 77004

JACK GREENBERG 
BILL LANN LEE 
CLYDE E. MURPHY 
10 Columbus Circle 
Suite 2030
New York, New York 10019 

ATTORNEYS FOR PLAINTIFFS-APPELLANTS



IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1746..

i
HAROLD L. SYLVESTER, et al.,

Plaintiffs-Appellants,
-vs-

UNITED STATES POSTAL SERVICE, et al.,

Defendants-Appellees.

On Appeal From The United States District Court For The 
Southern District Of Texas, Houston Division

BRIEF FOR PLAINTIFFS-APPELLANTS

MARK T. MCDONALD 
PAUL ZAREFSKY 
McDonald & McDonald 
1834 Southmore Boulevard 
Houston, Texas 77004

JACK GREENBERG 
BILL LANN LEE 
CLYDE E. MURPHY 
10 Columbus Circle 
Suite 2030
New York, New York 10019 

ATTORNEYS FOR PLAINTIFFS-APPELLANTS



IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-1746.

HAROLD L. SYLVESTER, et al.,

Plaintiffs-Appellants, 

-vs-

UNITED STATES POSTAL SERVICE, et al.,

Defendants-Appellees.

On Appeal From The United States District Court For The 
Southern District Of Texas, Houston Division

«c
J CERTIFICATE REQUIRED BY FIFTH

CIRCUIT LOCAL RULE 13 (a)

The Undersigned, counsel of record for Harold L. Sylvester, 
Rayford V. Pryor, Callie McGilbert and Carroll Herron,«
Plaintiffs-Appellants; certifies that the following listed 
parties have an interest in the outcome of this case. These 

representations are made in order that the Judges of this Court 

may evaluate possible disqualification or recusal pursuant to 

Local Rule 13 (a).

x



Harold L. Sylvester, 
Rayford V. Pryor, 
Callie McGilbert, and 
Carroll Herron,

Plaintiffs-Appellees 
United States Postal Service,
Elmer T. Klassen, Postmaster General of the U.S., 
E.C. Stevenson, Postmaster and District Manager 
of the Houston, Texas Post Office,

Defendants-Appellants.

CLYDE E. MURPHY,
Attorney of record for
Harold L. Sylvester, Rayford V. Pryor, 
Callie McGilbert and Carroll Herron.

NECESSITY FOR ORAL ARGUMENT

Plaintiffs hereby request time for oral argument to give full 

exposition to the important questions raised herein on the 

appropriateness of class action certification in employment dis­
crimination suits brought pursuant to Title VII of the Civil 

I Rights Act of 1964, 42 U.S.C. §2000e ejt seq., and the denial of

preliminary relief from the racially discriminatory selection of 

persons for supervisory positions.
4

11



TABLE OF CONTENTS

Page

Certificate Required By Local Rule 13 (a) ........  i

Table of Contents ................................  iii

Table of Authorities .............................  iv

v Note On Form Of Citations ........................  x

Statement Of Issues Presented ....................

STATEMENT OF THE CASE ............................  1

STATEMENT OF FACTS ...............................  5

SUMMARY OF THE ARGUMENT ..........................  16a

ARGUMENT .........................................  17

1. THE DISTRICT COURT ERRED IN ITS 
REFUSAL TO ALLOW THIS ACTION TO 
PROCEED AS A CLASS ACTION ........  17

A. The District Court Erred In Its Conclusion 
That Allegations Of Racial Discrimination 
In Promotion And Salary Disparity Are 111-

 ̂ Suited For Class Action Treatment ........ 17

B. The District Court Erred In Its Conclusion
That There Was No Discrimination In The 
Selection Of Initial Level Supervisors And 
In Its Reliance On That Conclusion To Deny 
Preliminary Relief ......................  24

C. The District Court Erred In Its Conclusion 
That Plaintiffs Failed To Demonstrate That 
Their Claims Were Typical, Or Involved
Common Questions ........................  27

iii



Page

II. THE DISTRICT COURT ERRED IN 
RESOLVING THE TESTING ISSUE 
BY APPLYING THE STANDARD 
ENUNCIATED IN WASHINGTON V.
DAVIS TO A CASE FILED PURSU-
AND TO TITLE VII ...................  3 5

CONCLUSION ............................................  38
CERTIFICATE OF SERVICE ..............................  40

TABLE OF AUTHORITIES

Cases:
Alabama v. U.S., 304 F.2d 583, (5th Cir. 1962),

aff'd per curiam, 371 U.S. 37 (1962) ............... 20

Alexander v. Louisiana, 405 U.S. 625 (1972) ......... 25

Arkansas Edu. Ass'n v. Board of Educ. of The
Portland, Arkansas School District, 446 F.2d 763
(8th Cir. 1971) ...................................  30

Baxter v. Savannah Sugar Refining Co., 495 F.2d 437 20, 22,
(5th Cir. 1974)   38,

Bing v. Roadway Express, 444 F.2d 687 (5th Cir.
1973) ..............................................  20

Blank v. Sullivan & Cromwell, 10 EPD 1(10,364
(S.D.N.Y. 1975) .................................... 34

Blue Bell Boots, Inc. v. E.E.O.C., 418 F.2d 355
(6th Cir. 1969) ...................................  34

Bowe v. Colgate-Palmolive Co., 416 F.2d 711,
(7th Cir. 1969) .................................... 28

Brown v. Gaston County Dyeing Maching Co., 457 F.2d 
1377, (4th Cir. 1972) cert denied., 409 U.S. 982 
(1972) .............................................  20

IV



cases: Page

Carey v. Greyhound Bus Co., 500 F.2d 1372 (5th Cir. 
1974) .............................................. 33

Carr v. Cornoco Plastics, Inc., 423 F.2d 57 
(5th Cir. 1970) cert denied, 400 U.S. 951 
(1970) ............................................. 3, 29

Causey v. Ford Motor Co., 516 F.2d 416, (5th Cir.
1975) .............................................. 24

City of New York v. International Pipe & Ceramics
Corp., 410 F.2d 295 (2nd Cir. 1969) .............. 33

Cypress v. Newport News General & Nonsectarian Hosp. 
Ass'n., 375 F.3d at 658 ........................... 25

East Texas Motor Freight System, Inc., v. Rodriguez,
28

E.E.O.C. v. Detroit Edison Co., 515 F.2d 301,
18, 22

Franks v. Bowman Transportation Co, Inc. 423 U.S.
814 (1976) ......................................... 28, 38, 39

Georgia Power Co. v. E.E.O.C., 412 F.2d 462 (5th 
Cir. 1969) 28

Gibson v. Local 40, Supercargoes & Checkers, Etc., 
543 F .2d 1259 (9th Cir. 1976) ................. . 36

Graniteville Company (Sibley Div.) v. E.E.O.C. 438 
F.2d 32 (4th Cir. 1971) ........................... 34

Gresham v. Ford Motor Co., 53 F.R.D. 105
(N.D. Ga. 1970) ................................... 22

Griggs v. Duke Power Co., 401 U.S. 424, 28 L.Ed 2d 
158, (1970) ........................................ 17, 31, 37

Hackett v. McGuire Bros., Inc. 445 F.2d 442 (3rd Cir. 
1971) .............................................. 31, 32

V

vi



cases: Page
Moody v. Albemarle Paper Co., 422 U.S. 407

(1975) ............................................. 37

Moss v. Lane Co., Inc., 471 F.2d 853 (4th Cir.
1973) .............................................. 28, 29

Muller v. U.S. Steel Corp., 509 F.2d 923 (10th Cir. 
1975) .............................................. 22

Oatis v. Crown-Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) ................................... 28, 32, 34

Ochoa v. Monsanto Co., 335 F. Supp. 53 (S.D. Tex. 
1971) aff'd per curiam., 473 F.2d 318, (5th Cir. 
1973) .............................................. 20

Parham v. Southwestern Bell Telephone Co., 433 F.2d 
421 (8th Cir. 1970) ............................... 21, 22, 24

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974) ................................... 20, 22

Poindetter v. Tenbert 462 F.2d 1095 (4th Cir.
1972) .............................................. 23

Price v. Luck Stores, Inc., 501 F.2d 1177 (9th Cir. 
1974) .............................................. 33

Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir. 
1973) .............................................. 29

Robinson v. Union Carbide 538 F.2d 652 (5th Cir.
1976) .............................................. 22

Rowe v. General Motors Corp., 457 F.2d 348,
(5th Cir. 1972) .................................... 17, 18, 20, 

25, 30, 34, 
37, 38

Senter v. General Motors Corp., 532 F.2d 511,
(6th Cir. 1976) ................................... 19

Sprogis v. United Airlines, Inc., 444 F.2d 1194
(7th Cir. 1971) ................................... 34

vxi



Stamps v. Detroit Edison Co., 365 F. Supp. 87
(E.D. Mich. 1973)   22

Stewart v. General Motors Corp., 542 F.2d 445,
(7th Cir. 1976) .......................................  22

Swint v. Pullman-Standard 539 F.2d 77 (5th Cir.
1976) .................................................. 22

Trafficante v. Metropolitan Life Insurance Co., 409
U.S. 205 (1973) .......................................  32

Turner v. Fouche, 396 U.S. 346 (1970)   20

U.S. v. Hayes International Corp., 456 F.2d 112,
(5th Cir. 1972)   20

U.S. v. Hayes International Corp., 415 F.2d 1038,
(5th Cir. 1969)   20, 22, 27

U.S. v. Ironworkers Local 86, 443 F.2d 544,
(9th Cir.) cert, denied., 404 U.S. 984,
(1971) .............................................  21

U.S. v. N.L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973) ...................................  22

Voutis v. Union Carbide Corp., 452 F.2d 889 (2nd
Cir. 1971) .........................................  34

Washington v. Davis, 426 U.S. 229 (1976) ............ 16a, 34, 35,
37

Watkins v. Scott Paper Co, 530 F.2d 1159 (5th Cir.
1976) ..............................................  21

Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 229
(3rd Cir. 1975) . .................................. 29

cases: Page

viii



Statutes, Rules and Regulations: page

Title VII of the Civil Rights Act of 1964,
4 2  U . S . C . § 2 0 0 0 e  e t  s e g . . . . . . . . . . . . . . . . . . . . . . . .  p a s s i r n

Federal Rule of Civil Procedure 23 ...............  passim

Other Authorities;

Wright & Miller, Federal Practice and
Procedure Civil § 1771 ........................  30

«

A

IX



NOTE ON FORM OF CITATIONS

The following citations are frequently used in this brief:

"R._____ " ........... Record On Appeal
"_____ ,D.,_____ " ....Pages Of The Deposition Of Indicated

Party

"DI,_____ " ..........Defendants Answers To Plaintiffs'
Interrogatories

"PT.,_____ " .........Table Accompanying Plaintiffs
Memorandum Of Law In Opposition To 
Defendants' Motion To Dismiss Suit 
As A Class Action Or In The 
Alternative To Limit Class Along 
With Memorandum Of Law In Support 
Of Plaintiffs' Motion For 
Preliminary Injunction

"DX_____ " ........... Exhibit Offered By Defendants' With
Their Memorandum In Support Of 
Defendant's Motion To Eliminate Or 
Limit Class Action

"DIA,_____ " .........Attachment To Defendants' Answers To
Plaintiffs' Interrogatories.

x



STATEMENT OF ISSUES PRESENTED

1. Whether the district court erred in determining that 
this case was inappropriate for class action treatment.

2. Whether the district court erred in determining that 
there was no discrimination in the selection of initial level 

supervisors, and in its reliance on that determination to 

deny Plaintiffs' Motion For A Preliminary Injunction.
3. Whether the district court erred in determining that 

Washington v. Davis, insulated defendants promotion examina­

tion from attack under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. §2000e et seq. notwithstanding its dispropor­
tionate impact.

STATEMENT OF THE CASE

This appeal comes to this Court from an Order of the 

United States District Court for the Southern District of Texas, 
Houston Division, Honorable Ross H. Sterling, entered on March 7, 
1977. (R. 359). ( ) The appeal presents important

questions concerning the denial of class action status of this 
racial discrimination in employment action, brought pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e 
et seq., and denial of a preliminary injunction with respect to 
the racially discriminatory selection of persons for supervisory 
positions within the Houston Post Office system.

-1-



This Court has jurisdiction of the appeal under 28 U.S.C. §1292 

(a) (1) .
Plaintiffs Harold L. Sylvester and Rayford V. Pryor., Jr.

filed this suit as a class action on behalf of similarly

situated black workers under Title VII of the Civil Rights Act
1/

of 1964, as amended, on February 15, 1973. The complaint 
alleged a pervasive pattern of racial discrimination including 

discriminatory job assignment and promotion practices, the 

denial to blacks of equal opportunity for supervisory training, 

and harassment and retaliation against blacks who file employ­

ment discrimination charges.

Initially assigned to Judge Carl 0. Bue, Jr., the Court on 
April 23, 1975 issued a Memorandum and Order (R* 241) ( )

denying defendants Motions to Dismiss and for Summary Judgment

1/ Plaintiffs Sylvester and Pryor filed their first charge of 
racial discrimination with their E.E.O. Officer on June 26, 1972 
and June 27, 1972 respectively. A formal complaint of racial dis­
crimination was filed with the United States Postal Service at its 
Southern Regional Office on August 7, 1972 and August 2, 1972 
respectively. Plaintiffs filed this action after the expiration 
of 180 days from the filing of the administrative complaint, but 
prior to any final action by the United States Post Office.

-2-



Court noted that the 1972 Amendments to Title VII of the Civil
Rights Act of 1964 made the rights of federal employees to a
judicial determination of their claims substantially parallel to

those of a private employee. ( R. 248 ) ( ). Similarly,
the Court observed that while the Complaint filed by Sylvester

and Pryor was one relating to employment practices in the
supervisory area, this did not suggest that a finding that the

class included all black employees was improper. Rather, the

Court appropriately held that since "Postal Service supervisors
are chosen, at least in part, from those employees who have

served in a non-supervisory capacity", that "all black employees

can be viewed as potential supervisory personnel, even though
they are not supervisors at the present time." ( R. 251 )
( ). In so holding, the Court effectively noted that the
case at bar was analogous to those permitting an employee to

challenge discriminatory practices on behalf of a class that in-
2/

eludes all present as well as future employees.
On July 31, 1975, the Court consolidated Civil Action No. 

74-14-881 (as filed by Plaintiff Carroll E. Herron) and

as well as plaintiffs' Motion For A Preliminary Injunction. The

2/ In support of its holding Judge Bue cited: Carr v. Conoco 
Plastics, Inc., 295 F. Supp. 1281 (D.C. Miss. 1969). [aff’d 423 
F .2d 57 (5th Cir. 19 7 0)] ; Johnson v. Georgia Highway 
Express Inc.. 417 F.2d 1122, 1124 (5th Cir. 1969).

-3-



Civil Action No. 75-H-47 (as filed by Plaintiff Callie A. 

McGilbert) with the action filed by Plaintiffs Sylvester and 

Pryor. This consolidation added allegations that the 

Defendants discriminated against blacks by subjecting them to 
discriminatory and subjective evaluation standards while 
serving as probationary supervisors, with a further failure to 

promote black females because of their race and sex to supervis­
ory positions, and with maintaining arbitrary and subjective 

supervisory selection standards which discriminate against 

blacks as a class.
Pursuant to an order of the Court, issued July 31, 1975 

( R. 290 ) ( ) the depositions of the plaintiffs were taken
and filed, and the parties were instructed to submit legal 

memoranda on the propriety of class action treatment. By order 

of the Court on October 15, 1976 this case and several others 
were transferred from Judge Bue to the Honorable Ross N. 

Sterling, United States District Judge.
On March 7, 1977, the Court issued a Memorandum and Order 

(r . 350 ) ( ) withdrawing the earlier class determination
and, further, denying Plaintiffs' Motion For A Preliminary 
Injunction. Specifically, the Court held that plaintiffs had 

failed to demonstrate that their claims were typical or that they 

involved common questions with the claims of the alleged class. 

The Court also held, based on its analysis of the statistical

-4-



information provided, and the applicable legal standards, that 

a preliminary injunction was not appropriate. Plaintiffs 
filed their timely notice of Appeal on April 1, 1977.

STATEMENT OF FACTS
A. An Overview Of The Parties

The principle allegations as raised by each of the named 

plaintiffs involve the matter of blacks being denied promotional 

opportunities to supervisory level positions on an equal basis 
with whites. Plaintiffs Harold L. Sylvester and Rayford V.

Pryor, Jr., have been employed by the Houston, Texas Post Office 

since 1956 and 1954 respectively. Each has alleged in their 
Complaint and Oral Depositions that they as well as other blacks 

classified in initial level supervisory positions have been 

denied promotional opportunities to higher level supervisory 

positions because of their race. Plaintiff Carroll E. Herron 
was first employed by the Houston, Texas Post Office in 1964 as 

a clerk, and at the time of the filing of this action was still 
classified as a clerk. Plaintiff Herron alleged in his Complaint 
and in his Oral Deposition that he was required to serve as an 
acting supervisor for a period considerably longer than the 

standard 90-day probationary period, and that he was subsequent­

ly demoted from his position as acting supervisor without 
justification and because of his race. Plaintiff Herron further 

testified during the taking of his oral deposition that he was

-5-



unaware of any white employees who may have been denied 

promotion to permanent supervisor or foreman after completion of 

their 90-day probation, but that he knew of at least twelve (12) 

black employees who were required to serve beyond the initial 

90-day probationary period before getting promoted to a permanent 

foreman position, (r .292) (Herron, D.,92, 104-106). Plaintiff 
Csllie A. McGilbert, hired by the Houston, Texas Post Office in 1967, 
alleged in her Complaint and in her Oral Deposition that she and 
other black females who passed the Initial Level Supervisory 

Examination were being denied selection for promotion to initial 

level supervisory positions because of their race and sex.
(McGilbert, D., 27-28). (R. 294)

Plaintiff Sylvester's employment history is an excellent 

example of the pattern of discrimination that exists in the 

Houston Post Office. Hired by the Postal Service in 1956, as a 
Level 5 clerk, Mr. Sylvester received his first promotion to 

Level 6 in 1964. In 1970, he was promoted to Level 8 and in 

1971 he was promoted to Level 9. Finally in 1975, two years 
after the institution of this litigation, he was promoted to 

Level 17. (Sylvester, D., 31) ( R- 295 ) During his twenty

years of Service, Mr. Sylvester has personally encountered or 

witnessed discrimination against blacks via; denial of promotion 
to white neighborhoods, (Sylvester, D., 33); ( r . 295 ) denial of

-6-



reassignments to higher level positions (Sylvester, D., 33-34);

(R. 295) and lack of consideration for training, (Sylvester, D., 

35-38); ( R. 295 ). Similarly, his longevity and active involve­

ment in the employment procedures of the defendants makes him 

particularly well suited to serve as a class representative.
The method of selecting persons for supervisory level 

positions with the Houston Post Office has varied from time to 

time. (Sylvester, D., 45) (r .295 ) The most recent method
has involved the requirement that employees take the Initial 

Supervisory Level Examination. (DI, 11) (R. 185 ) This

examination is given periodically, with the persons who score in 
the upper one-half of the examinations, on a nationwide basis, 
placed in a pool from which lower level supervisory positions are 

filled. Persons who pass the Initial Level Supervisory examina­
tion are then rated by their local supervisors as "A", "B", or 
"C", indicating a priority of promotion, and, selections for 
supervisory openings are made from the rating lists. (DI, 11)

( R. 185 ) Persons selected for supervisory positions above the
3/

initial supervisory levels are chosen upon subjective evaluations

3/ For example, among the evaluations that the manager or super­
visor is required to make is an "Estimate Of Potential." This 
is not a rating of the employees performance in his current job, 
but his potential for higher level jobs. As such, the evaluator 
is asked to rate such factors as: Quality of Performance (as in 
indicator of effectiveness at a higher level); Capacity to Learn; 
Judgment; Personal Growth; and Motivation. See D.I.A. 11.

-7-



of the various assistant district managers and/or other higher 
level managers with the final approval by the Houston Postmaster. 
(DI, 11a) ( R. 215 ) .

At all times material to this action, the workforce at the 

Houston District of the Defendant United States Postal Service 

has been approximately 45% black. (PT, II) ( r . 353 ). Yet, 

until recently blacks have been virtually excluded from all 

levels of supervision and management with the Houston Post 
Office operation.

While the record in this case is not fully developed, it 

does contain facts sufficient not only to satisfy the require­

ments of Rule 23(a) and (b)(2) but also for a preliminary 
injunction. For example, in their Answer To The Complaint 

filed by plaintiffs Sylvester and Pryor, the defendants admit 
that as of March 1972, out of a total of 151 Level 9 and above 
supervisors in the Houston Post Office only 12 (7.9%) were 
black. Similarly, there were no blacks among the 34 supervisors 
at Level 12 and above. This, notwithstanding the fact that blacks 

made up approximately 45% of the 5,000 employees at the Houston 

Post Office at that time.
The picture revealed by defendants Answers to Plaintiffs 

Interrogatories is similarly revealing.

-8-



BREAKDOWN BY RACE OF ORGANIZATIONAL STRUCTURE
(As Of May 1974)

4/

Grade Level Positions Whites Blacks
Mexican-
Americans Vacancies

PMS-ll-PES--30 387 243 (6 2.8%) 61 (16%) 31 (8%)
PES-17-And Above 108 66 (61.1%) 11 (10.2%) 11 (10.2%)
PES-21-And Above 20 12 0 0

51
20

8

As this chart indicates, even as late as May, 1974, of a total 

of 387 Level 11 and above supervisory positions, whites held 243

or 62.8% of the total, whereas, blacks accounted for only 62 or 16%
5/

of the total number of supervisory positions.
The above figures plainly illustrate the racial allocation of 

jobs and promotions at the Houston Post Office. If the various 
selection methods were free of racial discrimination, the percentage 
of blacks at all levels of supervision would undeniably be more 

closely parallel to the percentage of blacks in the total non- 

supervisory workforce.
B . The Defendants Have Consistently Afforded Preferential

Treatment To White Employees With Respect To Supervisory 
Level Promotions.

A cursory review of the statistics which have been submitted 

in this case clearly demonstrates that the defendants have denied

4/ Analysis of attachment to Defendants Answers to Plaintiffs' 
Interrogatory No.5. See also. Plaintiffs' Table TV. (r . j v )
5/ The racial stratification of job opportunities is similarly
revealed by the Defendants' Exhibit 3 to their Memorandum in
Support of Defendants Motion to Eliminate or Limit Class Actions.(R. 317)
A corrected analysis of the figures contained therein indicates
that even as late as May, 1975 (a full two years after filing of
this suit) whites held 71% of the supervisory positions above
Level 15 whereas blacks held only 19% and Mexican-Americans
accounted for 9.4% of the total.

-9-



blacks (males and females) and are continuing to deny blacks 

equal opportunities for promotion to all levels of supervision 
with the Houston Post Office operation. The following chart 

lists all promotions to levels 7 or above between 1967 and 

1973 (P.T. Ill) (R. 354 ):
YEAR WHITES BLACKS MEXICAN-AMERICAN TOTAL % BLACKS % WHITES
1967 46 9 0 55 16 .4% 83.6
1968 46 7 3 56 12.5 82.1
1969 53 8 1 62 12.9 85.5
1970 55 12 8 75 16.0 73.3
1971 46 9 4 59 15.3 78.0
1972 31 12 4 47 25.5 66.0
1973 34 9 3 46 19.6 73.9

As this chart plainly illustrates, from 1967 through 1973, 

there were a total of 400 promotions made to initial and higher 

level supervisory positions within the Houston Post Office 

operation. Of that total, 311 or 77.8% went to white employees 

as compared to only 66 or 16.5% which went to black employees.
By contrast, from 1969 to 1972, blacks averaged 45.2% of the 

total workforce. Whites averaged 44% and all other minorities 

averaged 10.7% of the total workforce. (P.T. II) (r . 353 ).

Similarly, from 1969 through 1972, a total of 243 promotions 
were made to initial and higher level supervisory positions with­

in the Houston Post Office operation. Of that total, 185 

(76.1%) went to white employees and only 41 or 16.9% of such 

supervisory promotions went to black employees. Throughout this 
period, white employees were promoted at a rate of 1.7 times

greater than their overall representation in the total workforce

-10-



whereas, blacks were promoted at a rate of 2.7 times less than 
their overall representation in the total workforce. This 

disparity between whites and blacks with respect to supervisory 
level promotions is particularly egregious in view of the fact 
that blacks have taken and passed the nationwide Initial Level 

Supervisory Examination in sufficient numbers to have been 

selected for supervisory promotions in more representative 
numbers, but for the racial discrimination inherent in the 

selection process. (D.X. la) ( R. 313 ) .

As previously noted, a corrected analysis of defendants' 

Exhibit 3 shows that only 19% of all persons classified in 
Level 15 and higher level supervisory positions as of May, 1975, 
were black employees. As of May 1, 1974, there were a total of 

305 occupied supervisory level positions at and above the Level 

15 grade level, of which 219 or 71.8% were held by white 
employees and only 58 or 19% were held by black employees. 

Between May 1, 1974 and May of 1975, there was a net increase of 

36 occupied positions at and above the Level 15 grade level 
(from 305 to 341). Of this net increase of 36 supervisory level 

positions, 25 or 69.5% went to white employees, 7 or 19.4% went 

to black employees and 4 or 11.1% went to Mexican-American and/ 

or Spanish surnamed employeed.
Thus, even as late as 1975, defendants continued to award

-11-



is even more dramatic when black women are considered. For

example, from 1967 to 1973, of 400 promotions to Level 7 or

above only 3 or.75% went to black women. (P.T. IX) ( R. 358 ).

However, from 1969 to May 1972, black women average approximately

15.9% of the workforce. (P.T. VIII) ( R. 357 ) .
C. The Initial Level Supervisory Examination As Well As The 

Various Evaluational Processes All Have A Disparte 
Impact On The Promotion Of Black Employees.

In view of the fact that more than a sufficient number of

blacks have passed the Initial Level Supervisory Examination to

have been selected for promotion to supervisory levels, the

plaintiffs have not limited their opposition to the promotional
procedures used by the Postal Service to claims that the
examination is an unlawful testing or screening device within

the meaning of §703(h) of Title VII. However, the results of the
March 30, 1974 Examination (DX la) ( r . 314 ) show that a

significant and disparate number of blacks failed the examination
6/

as compared with whites who took the same examination.

the vast majority of the choiciest jobs to whites. The situation

6/ The defendants refused to answer Plaintiffs' Interrogatory 
No. 19 concerning the race, score and number of applicants 
taking promotional examinations from 1967 through 1971. There­
fore, the only statistics available to plaintiffs in this re­
gard are those from the March 30, 1974 examination (administer­
ed over a year following the filing of this action) and 
submitted by defendants in their Memorandum In Support Of 
Defendants' Motion To Eliminate Or Limit Class Action.

-12-



Of 808 persons who took the March 30, 1974 Examination, 366 

were black, 282 were white and 138 were Mexican-American and/or 
Spanish surnamed. Of the 366 blacks taking the examination 138 

or 31.1% passed. Whites passed at a rate of 12.3% (204) and 

Mexican-Americans and/or Spanish surnamed employees passed at a 
rate of 47.8% (66). Absent a showing of job relatedness and/or 

a business necessity for the use of such examinations, and, where 

such examinations have not been properly validated to conform 
with the appropriate testing guidelines, such disparate impact on 

racial minorities creates an inference of discrimination under 
Title VII. In this instance the defendants have not asserted 

nor have they introduced any evidence to support an assertion 

that the Initial Level Supervisory Examination has been validated.

In addition to the requirements of having to successfully pass 
the Initial Level Supervisory Examination, employees seeking 
promotion must also receive an acceptable rating from their 
immediate supervisor, and a favorable recommendation from the 
installation's Promotion Advisory Board. (DIA,11) (R.215) Therefore,
final selections for promotion to supervisory level positions are 
made almost exclusively by white managers. (Sylvester, D., 68) (R.296) 

As such, the defendants' maintain a system for promotion and 

transfer from hourly to salaried jobs (or craft positions to 

supervisory level positions) in which transfer and promotion is

-13-



substantially dependent upon the subjective evaluation and 

favorable recommendation of a supervisory workforce that is 
staffed predominately by whites.

The efforts of black employees to obtain promotions are 
further frustrated by the discriminatory manner in which 
"acting" or temporary assignments are made to supervisory 
positions. For example, once a vacancy in a supervisory 

position has been established, an employee is selected by the 

appropriate supervisor or manager to serve in that capacity on 

an "acting" basis. Subsequently, when the permanent vacancy is 

announced, the training received by the "acting" supervisor is 

credited by the Review Board in determining the employee's 
qualification for the job. Not suprisingly, the person serving 

in the "acting" capacity is generally the one selected to fill 

the permanent vacancy. (Sylvester D., 48) (r . 295 ). Similarly,
consistent with the general pattern of supervisory evaluations 

in the Houston Post Office blacks are rarely permitted to obtain 

valuable supervisory experience in this fashion.

Although these practices may be analyzed separately, they 
obviously interrelate, and above all, when viewed in the context 

of the statistically demonstrable disparate allocation of super­

visory positions, the historical pattern of racial discrimination 

within the Houston Post Office is evident. The discriminatory 

evaluation of blacks within the system is evident at various

2/

7/ See note 3, supra. -14-



points along the process. The problem is particularly acute 
however were access to training opportunities are concerned.

For example, as stated in Defendants' Answer To The Complaint 

Of Plaintiffs Sylvester and Pryor, only 3 blacks out of 38 

supervisors had attended training programs in Post Office 

regional offices as of March, 1972. This pattern of exclusion 

is further evidenced by Defendants' Answers To Plaintiffs' 

Interrogatories.
8/

EMPLOYEES PARTICIPATING IN O.P.T.P. AND P.S.T.&D COURSES
YEAR TOTAL WHITE BLACK MEXICAN-AMERICANS

1973 79 55 (69.9%) 16 (20.3%) 8 (10.1%)
1972 65 45 (62.2%) 12 (18.5%) 8 (12.3%)
1971 23 16 (69.2%) 5 (21.7%) 2 (8.7%)
1970 25 20 (80%) 5 (20%) 0
1960 7 7 (100%) 0 0

As these figures painfully illustrate blacks have been 

consistently denied the opportunity to receive training which 
might augment their ability to qualify for supervisory and 

management positions.
Similar exclusions can be observed in the award of 

Achievement Awards (P.T. V) (r . 356 ) and Quality Step Increases. 
For example, the Quality Step Increase is a salary step-increase 

given in recognition of high quality performance which is above 

the normal range of requirements found in the position concerned, 

and which appears to be characteristic of the employee.

8/ Analysis of attachment to Defendants' Answers to Plaintiffs' 
Interrogatory No. 37.

-15-



(DIA 35) (r . 215 ) . Of 54 such awards issued since July, 1970, 38
or 70.4% have gone to white employees as compared with 11 or 
20.4% to blacks and 5 or 9.3% to Mexican Americans. (PT VI)

(r . 356 ). Thus, as in the case of supervisory promotions, 
blacks are evaluated by their supervisors as being less qualified 

for these awards. As a result, blacks receive the quality step- 

increase at a rate substantially below the rate at which they 
appear in the workforce.

The practices and policies of the defendants have resulted 

in denying to blacks an equal opportunity for job assignment, 

promotion, evaluation, training and freedom from harassment and 

retailiation, and has otherwise adversely affected their status 
as employees because of their race. The record though sparse in 

many respects, makes clear, that the impact of defendants' 

policies has been a demonstrable failure of blacks to be promoted 
to supervisory positions and otherwise benefit from the 
privileges of employment, in numbers commensurate with their 

representation in the Houston Post Office generally.

-16-



SUMMARY OF THE ARGUMENT

1. The District Court mistakenly sought to distinguish 

plaintiffs' allegations of discrimination in promotional 
opportunities, from those employment practices which have 

been historically attacked via Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §2000e ejt seq. In so doing, the 

Court failed to give adequate consideration to the applicable 

legal principles in determining whether this action was 
appropriate for class action treatment.

2. The District Court's conclusion that there was no 
discrimination in the selection of initial level supervisors, 
and its denial of preliminary relief evidences a failure to 

apply the appropriate legal standards to the statistical show­
ings developed in this case.

3. The District Court's application of the Constitutional 
Standard enunciated in Washington v. Davis. 426 U .S. 229 (1976) 

to the plaintiffs' Title VII Complaint evidences a clear 
failure to adjudicate plaintiffs' claims under the appropriate 

legal standard.

-16a-



ARGUMENT
I.

THE DISTRICT COURT ERRED IN ITS 
REFUSAL TO ALLOW THIS ACTION TO 

PROCEED AS A CLASS ACTION
A. The District Court Erred In Its Conclusion That Allegations 

Of Racial Discrimination In Promotion And Salary Disparity 
Are Ill-Suited For Class Action Treatment

As noted by the United States Supreme Court in Griggs v .

Duke Power Co.. 401 U.S. 424, 429-430, 28 L.Ed 2d 158, 163 

(1970), the congressional objective in enacting Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. §2000e et seg., which requires 

equal employment opportunities, was to achieve equality of employ­
ment opportunities and remove barriers which operated in the past 
to favor an identifiable group of white employees over other 

employees. As such. Title VII of the Civil Rights Act of 1964,

prohibits all forms of racial discrimination in all aspects of 
9/

employment. It follows therefore, that the decision to promote or 

upgrade an employee must be based on the employee's qualifications 
for advancement, and not on his or her race, color, religion, sex, 

national origin or age. Failure to adhere to this principle must 
inevitably result in a finding that the employer has engaged in an

9/ Rowe v. General Motors Corp., 457 F.2d 348, 354 (5th Cir.
1972).

-17-



unlawful promotional practice.
The district court in its order below mistakenly sought to 

distinguish plaintiffs allegations of discrimination in 

promotional opportunities, from those employment practices that 
have historically been attacked via Title VII. In so doing, the 

Court below held that plaintiffs' allegations were therefore ill- 

suited for class action treatment under Title VII.
The district court premised its decision on the erroneous 

notion that by challanging the defendant's promotional policies, 

the plaintiffs' contentions concerned grievances that were of a 
highly personal nature and therefore presented no common 

questions of law or fact and were similarly not typical of those of 

the proposed class.
The district court's contention clearly misconceives the 

nature of the judicial standard applicable to the issue of common­
ality. The fact that each employee's promotion situation may 

present certain unique nuances is not dispositive of the commonal­

ity question. For example, one black employee may have been 

excluded from training that would have qualified him for a better 
job, another black employee may have been denied promotion after 

an unfavorable evaluation by his immediate supervisor. The

10/

10/ Rowe v. General Motors Corp., supra; E.E.O.C. v. Detroit 
Edison Co., 515 F.2d 301, 312-313 (6th Cir. 1975).

-18-



primary issue, at least insofar as certification of the action

as a class is concerned, is whether a policy of discrimination In fact 
exists in the employer's establishment. "Factual identity 

between the plaintiff's claims and those of the class he seeks 

to represent is not necessary. 11 Senter v. General Motors Corp..

Highway Express, 417 F.2d 1122 (5th Cir. 1965)?
Jenkins v. United Gas Corp., 400 F.2d 28, 33-35 (5th Cir. 1968).

Similarly, as the Court noted in Senter v. General Motors 

Corp.. supra, at 524, acceptance of the district court's line of 
reasoning would mean that no cases alleging discrimination in 

hiring and promotion could be maintained as class actions.
"It is manifest that every decision 
to hire, fire or discharge an 
employee may involve individual con­
siderations. Yet, when that decision 
is made as part of class-wide dis­
criminatory practices, courts bear a 
special responsibility to vindicate 
the policies of the Act regardless 
of the position of the individual 
plaintiff.11

The district court's view similarly evidences a failure to 
comprehend the fact that at the initial or liability stage of a 
pattern or practice suit the emphasis is focused on the ability 

of the class to establish that an employer's employment

532 F.2d 511, 524 (6th Cir. 1976), see, Johnson v. Georgia

-19-



practices have resulted in cognizable deprivations to it as a
class. Baxter v. Savannah Sugar Refining. 495 F.2d 437 (5th
Cir. 1974). See also. Pettway v. American Cast Iron Pipe Co.,

494 F .2d 211 (5th Cir. 1974).

This view was recently affirmed by the United States
Supreme Court in International Brotherhood of Teamsters v .

United States. 45 U.S.L.W. 4506, 4515 n.46 (1977).
"The point is that at the liability 
stage of a pattern or practice 
trial, the focus will not be on in­
dividual hiring decisions, but on a 
pattern or discriminatory decision 
making."

It is precisely the use of workforce statistics which helps

to establish the class-wide aspects of plaintiffs allegations,

regardless of whether they primarily concern the question of

promotion or involve all aspects of the defendant's employment
11/

practices. In Rowe, the Court focused its attention on promotion

ll/ Numerous cases in this Circuit and elsewhere have recognized 
that statistics and statistical constructs of proof can be of 
substantial probative value in civil rights cases. International 
Brotherhood of Teamsters v. U.S., supra. Turner v. Fouche, 396 
U.S. 346 (1970); Alabama v. United States, 304 F.2d 583, 586 
(5th Cir. 1962), aff'd per curiam, 371 U.S. 37 (1962) . This is 
particularly true in employment discrimination cases where 
statistical evidence has often been given critical weight in this 
Circuit. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 
225 (5th Cir. 1974); Ochoa v. Monsanto Co., 335 F. Supp. 53 
(S.D. Tex. 1971) , aff1d per curiam, 473 F.2d 318, 319 (5th Cir. 
1973); Rowe v. General Motors Corp., 457 F.2d 348, 356-358 
(5th Cir. 1972); Bing v. Roadway Express, 444 F-2d 687, 689 
(5th Cir. 1973); United States v. Hayes International Corp., 415 
F .2d, 1038, 1043 (5th Cir. 1969); United States v. Haves 
International Corp., 456 F.2d 112, 120 (5th Cir. 1972). See
also, Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 
(CONTINUED)

-20-



statistics. There the Court found "a great disparity in employ­

ment opportunities for blacks." This disparity was sufficient, 

the Court held to shift to the employer "the operational burden 
of demonstrating why, on acceptable reasons, the apparent dispar­

ity is not the real one."
Similarly, in Watkins v. Scott Paper Co., 530 F.2d 1159

(5th Cir. 1976) the Court noted that while the workforce was 30%

black, only 8.6% of the promotions made went to black employees.
"The only reasonable interpretation of the 
statistics from Scott1s Mobile plant is 
that whites have been preferred over blacks 
in promotions to salaried positions."

Watkins v. Scott Paper Co., supra, 530 F.2d at 11Q2.

The burden under which plaintiffs must labor, is the 

necessity of establishing the classwide aspects of the discrim­
inatory practices of which they complain. As noted above, it 

has been the consistent practice of this Court and others to find 

such a case established on the basis of statistics drawn from the 

defendant's workforce.
"Where statistical evidence demonstrates a 
discrepancy between the racial composition 
of those promoted to a given job and the 
pool of eligible applicants which is too

1 1 / (CONT'D) 1382 (4th Cir. 1972) cert denied, 409 U.S. 982 
(1972)? Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 
426 (8th Cir. 1970). Jones v. Lee Wav Motor Freight Inc., 431 
F .2d 245, 247 (10th Cir. 1970), cert denied.. 401 U.S. 954 
(1971); United States v. Ironworkers Local 86, 443 F.2d 544, 550 
(9th Cir.,) cert denied., 404 U.S. 984 (1971).

-21-



great to reasonably be the product of ran­
dom distribution, the burden should be 
placed on the employer to show that this 
disparity is the product of non-discrimina- 
tory factors."

Stewart v. General Motors Corp.. 542 F.2d 445, 449 (7th Cir. 1975) 
also; U.S. v. Haves International Co.. 415 F.2d 1038 (5th Cir. 

1969); Swint v. Pullman-Standard. 539 F.2d 77 (5th Cir.

1976); Robinson v. Union Carbide. 538 F.2d 652 (5th Cir. 1976); 

Pettway v. American Cast Iron Co., 494 F.2d 211 (5th Cir. 1974); 
Baxter v. Savannah Sugar Refining- Corn.. 350 F. Supp. 139 (S.D.

Ga. 1972) ; aff1 d 495 F.2d 437 (5th Cir. 1974) ; Stamps v. De'troit 

Edison Co.. 365 F. Supp. 87 (E.D. Mich. 1973); E.E.O.C. v .

Detroit Edison Co.. 515 F.2d 301 (6th Cir. 1975); Parham v . 
Southwestern Bell Telephone Co.. 433 F.2d 421 (8th Cir. 1970);

U.S. v. N.L. Industries. Inc.. 479 F.2d 354 (8th Cir. 1973);

Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975).
In the case at bar, the record clearly demonstrates a 

significant statistical disparity between the racial composition 
of those promoted to supervisory positions, and the racial com­

position of the workforce at the Houston Post Office. As noted, 

supra, at all times material to this action, the workforce at 

the Houston Post Office has been approximately 45% black.

(PT II) ( R. 353) . Yet, even as late as May of 1974, blacks held 

only 16% of the supervisory positions at Level 11 and above; and 
none of better paying supervisory positions above Level 20.

In the face of statistical evidence of this magnitude, the

-22-



district court's notion that the Court must look to the
"particular facts involved in each employee-employer dispute" is

12/
clearly without merit, at least insofar as the purpose is to 
determine the contours of a prospective injunction, rather than 

a demand for back pay. The clear import of plaintiffs statistics 
is that they indicate a pattern of behavior on the part of 

defendants which has a clear disparate impact on a class of 

black employees, of which the plaintiffs are members.

12/ The District Court cites Hill v. American Airlines, Inc., 479 
F .2d 1057 (5th Cir. 1973); Mason v. Calgon Corp., 63 F.R.D. 98,
103, (W.D. Pa. 1974) and Gresham v. Ford Motor Co., 53 F.R.D. 105 
(N.D. Ga. 1970) in support of its position, however, neither of 
these decisions present analgous situations to the case at bar.
In Hill v. American Airlines. Inc., 479 F.2d 1057 (5th Cir. 1973) 
this Court upheld the District Court's denial of a class action 
principally because of a lack of numerousity as well as a failure 
on the part of the plaintiff to establish on the record any 
substantial common questions of law or fact. That is, the 
plaintiff had not shown that the policies complained of applied 
to blacks generally. In Mason v. Calgon Corp., supra, the District 
Court held that the plaintiffs had failed to meet the threshold 
requirements of Rule 23(a) and noted specifically, that the 
plaintiffs had failed to demonstrate that there were any common 
questions of law or fact. Citing Poindetter v. Tenbert 462 F .2d 
1096 (4th Cir. 1972) the Court analogously observed that plaintiffs had 
"... allege[d] no facts tending to show that the defendants have 
engaged in similar practices with respect to other black citizens 
of Beckley, West Virginia. Thus, they did not show and have not 
shown that there are other members of the class they purport to
represent__" Finally, in Gresham v. Ford, supra, while denying
the class certification on the grounds of a lack of commonality 
and typicality, the district court specifically noted, "This does 
not appear to be a case involving an employer who refuses to hire 
or promote Negroes broadly... There is no indication that the 
defendant has otherwise acted or refused to act in such a general 
manner affecting a class of employees."

-23-



B. The District Court Erred In Its Conclusion That There 
Was No Discrimination In The Selection Of Initial 
Level Supervisors And In Its Reliance On That Conclusion 
To Deny Preliminary Relief.

The lower court's reliance on the defendant's assertions

that 41.9% of those promoted to initial level supervisors are
black is without legal foundation. The court, observing that

"[t]hrough September, 1975, 13 blacks were promoted while 12
13/

whites were promoted to initial level supervisors" concluded

that there was no discrimination in selection of initial level 
14/

supervisors, and further.denied Plaintiffs' Motion For A Preliminary 
Injunction adding that plaintiffs had not sufficiently shown a 
likihood of success on the merits.

The Court's conclusion ignores the gross statistics submitted 

by plaintiffs, and prepared from defendants responses to interr­

ogatories that as of 1974, one year following the filing of this 
lawsuit, 62.8% of all supervisory positions at Level 11 and above 
went to white employees. Similarly, 100% of the higher level 

supervisory positions, (above Level 20) went to whites. The 

district court failed to recognize that its inquiry should be 
focused on practices in effect at the time the discriminatory act 

occurred, not subsequently. See, Parham v. Southwestern Bell Co.,

13/ These figures are based on promotions made pursuant to the 
March 1974 Initial Level Supervisory Examination. This examina­
tion was administered approximately one year after the initiation 
of this lawsuit.
14/ This conclusion clearly misapplies the legal standards applica­
ble to the facts of this case. Review of findings of ultimate 
fact are not governed by the "clearly erroneous standard, see, 
Causey v. Ford Motor Co., 516 F.2d 416, 420 (5th Cir. 1975).

-24-



433 F.2d 421 (8th Cir. 1970). Thus, even if it were shown that

defendants, in the face of this lawsuit have recently begun to
promote blacks in more representative figures, this activity
does not insulate the defendants from liability nor does it

eliminate the need for judicial relief.
"In Cypress v. Newport News General and 
Nonsectarian Hospital Association., 
supra, 375 F.2d at 658, the Court 
stated, 'protestations or repentence 
and reform timed to anticipate or blunt 
the force of a lawsuit offer insufficient 
assurance that the practices sought to 
be enjoined will not be repeatedi"

Rowe v. General Motors Corp., supra, 457 F.2d at 359.
Similarly, as the United States Supreme Court has recently 

noted:
"The company's later changes in its hiring 
and promotion policies could be little 
confort to the victims of the earlier post- 
Act discrimination, and could not ease its 
previous illegal conduct or its obligation 
to afford relief to those who suffered 
because of it.

International Brotherhood of Teamsters v. United States., 
supra, 45 U .S.L.W. at 4510 . see also, Alexander v. Louisiana, 

405 U.S. 625, 632 (1972) .
In order to correctly analyze the promotional practices of

the defendant, the Court must look to a year-by year analysis of
15/

the statistics. Such an analysis for 1967 through 1973 plainly 
indicates that of 400 promotions made to initial and higher level

15/ see, supra, p. 10
-25-



supervisory positions, 77.8% went to white employees as compared 

to only 16.5% which went to black employees. On the basis of 

statistics such as these the proposition that there has been no 

discrimination in the selection of initial level supervisors 

clearly misconstrues the case law in this area and is without 

merit.
In light of the statistical showing made by plaintiffs

below the trial court's finding of no discrimination, and its
denial of a preliminary relief, based on that finding should be

viewed as a clear abuse of discretion. Hillsboro News Company v .

City of Tampa, 544 F.2d 861 (5th Cir. 1977). Similarly, the

courts holding that plaintiffs failed to sufficiently show a
16/

likihood of success can not withstand evaluation in light of the 

applicable legal principles.
The plaintiffs use of workforce statistics to establish the 

class wide aspects of their claim, has similar merit in establish­
ing a prima facie case of employment discrimination, which the 
district court should have considered in ruling on the Motion For 

A Preliminary Injunction. The district court's denial of the 
injunction risks the perpetuation of racial discrimination by

16/ The district court premised its refusal to grant the Preliminary 
Injunction solely on its statistical analysis with respect to 
racial discrimination, and the plaintiffs asserted failure to show 
a likihood of success.

-26-



promotion throughout the undoubtedly lenthy period until this

case is resolved on the merits; and opportunities for appointment
will then be limited since positions will have been filled. As

noted supra, the fact that defendants have recently begun to

promote blacks offers little assurance that these temporary

measures taken under pressure of this litigation will be long
lasting. Finally, by failing to correctly consider the

statistical information before it, the court failed to adequately

consider the harm done to plaintiffs and members of the class by

defendants discriminatory employment practices. As such, this

Court should affirm the position taken in United States v. Haves

International Co., 415 F.2d 1038 (5th Cir. 1969).

"...[w]e hold as did the Court in Volgler 
v. McCarty, Inc., 294 F. Supp. 368, 372 
(E.D. La. 1967) affirmed F.2d
(5th Cir. 1969) that where an employer 
has engaged in a pattern and practice of 
discrimination on account of race, etc., 
in order to insure the full enjoyment of 
the rights protected by Title VII of the 
1964 Civil Rights Act, affirmative and 
mandatory Preliminary Relief is required.

C. The District Court Erred In Its Conclusion That Plaintiffs 
Failed To Demonstrate That Their Claims Were Typical, Or 
Involved Common Questions.17/

Race and sex are the common class characteristics that link

denying to plaintiffs and their class equitable opportunities for

17/ While there are four prerequisites of Rule 23(a), the 
district court's denial was based on its conclusion that plaintiffs' 
(CONTINUED)

-27-



The Court's of this Circuit and others have consistently held
that a minority person can represent a broad class of minority

applicants, employees, or discharged employees, and bring an

across-the-board inquiry into the discriminatory practices of
an employer. Franks v. Bowman Transportation Co., supra; Sosna
v. Iowa. 419 U.S. 393, 413 n.l (1975); Johnson v. Georgia

Highway Express, 417 F.2d 1122 (5th Cir. 1969); Moss v. Lane

Co., Inc. 471 F.2d 853 (4th Cir. 1973) . The rationale for these
cases is as stated in Bowe v. Colgate-Palmolive Co., 416 F.2d
711, 719 (7th Cir. 1969):

"A suit for violation of Title VII is 
necessarily a class action as the 
evil sought to be ended is discrimina­
tion on the basis of a class 
characteristic, i.e., race, sex, 
religion or national origin."

See Oatis v. Crown-Zellerback Corp.. 398 F.2d 496, 499 (5th Cir. 
1968); Huff v. N.D. Cass Co.. 485 F.2d 710 (5th Cir. 1973) 

(rehearing en banc); Georgia Power Co. v. E.E.O.C.. 412 F.2d 462 

(5th Cir. 1969). The various manifestations of an employer's un­

lawful discrimination in hiring, promotion and transfer 

opportunities, as well as in discipline and discharge, are all

the plaintiffs with the class that they purport to represent.

17/ (CONT'D) claims were not typical and did not involve common 
questions." The court's order did not challenge the adequacy of 
representation or numerousity. Compare: East Texas Motor Freight
System. Inc, v. Rodriguez. __________ U.S. ____________(1977)

45______U.S.L.W. 4524 in which the Court vacated the class
certification of the Court of Appeals, after a trial on the merits 
in which it was determined that plaintiffs were not adequate re­
presentatives, and were not members of the class they sought to 
represent. -28-



aspects of a single problem. Therefore, the Courts have not

required the class plaintiffs to have experienced discrimination 

in precisely the same way as every other class member but only 

to demonstrate a "nexus with the class and interests and claims." 
Huff v. N.D. Cass Company, supra, 485 F.2d at 714. Once that 

nexus is shown, the aggrieved plaintiff "can represent other 

victims of the same policies, whether or not all have experienced 

discrimination in the same way." Long v . Sapp., 502 F.2d 34, 42 

(5th Cir. 1974). See also, Wetzel v. Liberty Mutual Ins. Co.,
508 F.2d 239 (3rd Cir. 1975).

This Court has held that the requirement of commonality is 

met by "an across-the-board" attack on employment practices, 
with the allegation of racial discrimination constituting the 

common question of fact to be resolved. Specifically, the 

Courts have permitted individuals denied hire to represent 
present employees, Carr v. Cornoco Plastics, Inc., 423 F.2d 57 

(5th Cir. 1970) cert, denied, 400 U.S. 951 (1970); Moss v. Lane 

Co., Inc., 471 F.2d 853 (4th Cir. 1973); Reed v. Arlington Hotel 
Co., supra, an employee whose claim had become moot or lacked 
merit to remain a class representative, Jenkins v. United Gas Co. 

400 F.2d 28 (5th Cir. 1968); Huff v. N.D. Cass Co., supra, Long 

v . Sapp, supra, present employees and discharged employees to 

represent applicants. Long v . Sapp. supra; Hoston v. United 

States Gypsum Co.. 67 F.R.D. 650 (E.D. La. 1975).

Within the context of this liberal application of

-29-



Rule 23 (a), certainly the plaintiffs in the present case have 

shown a demonstrable nexus with the class they seek to represent 

and its interests and claims. In the case at bar, plaintiffs 

have established: (1) that blacks as a group are consistently

denied promotion to supervisory level positions notwithstanding 
their heavy representation in the workforce; (2) that the named 

plaintiffs and class representatives have at various times been 
denied or hindered in their efforts to obtain promotion? and 

(3) that the plaintiffs and class representatives are all members 

of the class they seek to represent, namely black employees.
The fact that the denial or obstruction in obtaining a promotion 

has been manifested in various ways does not alter the commonal­

ity of the complaint of plaintiffs and the purported class. The 
underlying legal wrong sought to be eradicated is not the individ­
ual discriminatory act perpetuated against the single plaintiff, 
but, the racially discriminatory employment policy which 

prevents blacks from participating equally in the economic life 

of their job and community.

18/

18/ Wright & Miller, Federal Practice and Procedure: Civil §1771; 
Arkansas Edu. Ass'n v. Board of Educ. of the Portland, Arkansas 
School District, 446 F.2d 763 (8th Cir. 1971); Rowe v. General 
Motors Corn., supra, 457 F.2d at 359 n. 24.

-30-



When plaintiffs' claims, as outlined in their pleadings, 

and supported by the record, are that the defendants maintain a 

broad range of discriminatory practices which breach the rights 

of all past, present or perspective black employees and 

applicants, to wit: discrimination in assignment, training, 

promotion and compensation, these are not merely personal claims 
of the plaintiffs. They are systematic patterns of racial dis­

crimination that affect the employment opportunities of all 

blacks comprising the defendant employer's labor pool, including 

plaintiffs.
Individual claims such as these are necessarily representative 

of the broad claims of systemic discrimination that Federal Courts 

have long recognized are properly subject to class action treatment. 
See, e.g. . Grigg v. Duke Power Co., 401 U.S. 424 (1971); Local 189, 

United Papermakers and Paperworkers v. United States, 416 F.2d 980 
(5th Cir. 1969), cert, denied, 397 U.S. 929 (1970); Johnson v . 

Georgia Highway Express. Inc., 417 F.2d 1122 (5th Cir. 1969);

Hackett v. McGuire Bros., Inc. 445 F.2d 442 (3rd Cir. 1971).
The Third Circuit, in a careful opinion which is laced with

awareness of the "private attorney general" and public interest

aspects of Title VII litigation discussed in Jenkins v. United Gas

Corp.. supra, has held:
"If the plaintiff is sufficiently aggrieved 
so that he claims enough injury in fact to 
present a geniune case or controversy in

-31-



the Article III sense, then he should 
have standing to sue in his own right 
and as a class representative."

Hackett v. McGuire Bros, Inc., supra, 445 F.2d at 447. Quoted 

with approval in Trafficante v. Metropolitan Life Insurance Co.,

409 U.S. 205, 211 (1973). This entire line of employment discrim­
ination class action decisions is founded on the very practical 
consideration that like manifestations of a single discriminatory 

framework should be treated alike, Oatis v. Crown-Zellerbach Corp., 

supra, at 498-499. The most efficient way to do so is to recognize 

that plaintiffs' claims typify those of the class - of which they 

are members, regardless of the particular manifestations of those 
claims - and allow plaintiffs to present the class claims in this 

litigation.
In the case at bar, plaintiffs have made a strong statistical 

showing supporting the class-wide manifestations of defendants 
discriminatory promotion policies. Plaintiffs have demonstrated 
that while blacks constitute 45% of the workforce at the Houston 

Post Office, only 34% of those blacks taking the Initial Level 

Supervisory Examination passed; that of 400 promotions made to 

Level 7 or above between 1967 and 1973 only 16.5% went to black 

employees; that only 16% of the supervisory positions above level 

11 were held by blacks; and that no blacks held positions above 
Level 20. Similarly, indicative of a promotional system that 

depends to a large degree on subjective evaluations of a predom-

-32-



inately white supervisory staff, blacks as a class are denied 

incentive awards and opportunities for training in numbers far 
to inconsistent with their representation in the workforce to 
be a product of random distribution. On facts such as these, 
where plaintiffs have effectively made a prima facie case of 
racial discrimination, the case for class certification is 

particularly compelling.
Rule 23 (specifically Rule 23(a) and (b) (2)J is one of the 

tools that can be used to effectuate the public interest in 

effective enforcement of Title VII. It should be so used to 
effectuate the Congressional policy that employment discrimina­

tion by completely rooted out. Similarly, while class action 

determination under Federal Rule of Civil Procedure 23 is 
generally viewed as an issue to be left to the trial Court's con­

sidered discretion, City of New York v. International Pipe & 

Ceramics Corp., 410 F.2d 295, 298 (2nd Cir. 1969), the Court may 
not be arbitrary or capricious in its determination, and must act 
on an adequate record with findings keyed to the several class 
action prerequisites. Price v. Luck Stores, Inc., 501 F.2d 1177 
(9th Cir. 1974), and correctly applying permissible legal criteria 

or standards, Carey v. Greyhound Bus Company, 500 F.2d 1372 

(5th Cir. 1974).
The use of class action certification is particularly

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appropriate for remedying employment discrimination for several
reasons. First, race or sex discrimination is by its very

12/
nature class discrimination. Second, it is often necessary for

a Court to order injunctive relief on a class wide basis in
20/

order to totally terminate employment discrimination.

Accordingly, Court's have favored Title VII class actions
since by alleging broad practices of employment discrimination

they have set in motion a proceeding in which the public interest

is at stake. This public interest demands that "remedies [be]
devised to vindicate the policies of the Act, not merely to

21/
afford relief to the employees." Moreover, the examination of

claims of individual discrimination must include an examination

of class discrimination since evidence of class discrimination
22/

provides an inference of discrimination against the individual.

1 q/ Oatis v. Crown-Zellerbach Corp.. 398 F.2d 496 (5th Cir. 1968) 
("Racial discrimination is by definition class discrimination."; 
Hall v. Werthan Bay Co., 251 F. Supp. 184, 186 (M.D. Tenn. 1960).
20/ Jenkins v. United Gas Corp., LiOO F .2d 3.S (5th Cir. 1968);
Blank v. Sullivan & Cromwell, 10 EPD 510,364 (S.D.N.Y. 1975).
21/ Hutchings v. U.S. Industries. Inc., 428 F.2d 303, 311 (5th 
Cir. 1970); Jenkins v. United Gas Corp., 400 F.2d 28, 23-33 
(5th Cir. 1968); Voutis v. Union Carbide Corp., 452 F.2d 889, 893
(2nd Cir. 1971); Blue Bell Boots, Inc., v. E.E.O.C., 418 F.2d 355
(6th Cir. 1969); Sprogis v. United Airlines, Inc. 444 F.2d 1194, 
1202 (7th Cir. 1971).
22/ McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); Rowe 
v. General Motors Corp., 457 F.2d 348, 356-59 (5th Cir. 1972); 
Graniteville Company, (Sibley Div.) v. E.E.Q.C.; 438 F.2d 32, 39- 
41 (4th Cir. 1971).

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The injunctive relief sought by plaintiffs herein must by 

its nature be applicable to the class as a whole. The Court 

cannot properly order systemic changes for some black employees 
injured by discriminatory practices, but not others. Systemic 

discrimination requires systemic remedies.

II.

THE DISTRICT COURT ERRED IN RESOLVING THE 
TESTING ISSUE BY APPLYING THE STANDARD 
ENUNCIATED IN WASHINGTON V. DAVIS TO A 

CASE FILED PURSUANT TO TITLE VII

The principle method of selecting persons for supervisory 

positions with the Houston Post Office is through the Initial 

Supervisory Level Examination. Persons who pass this examina­

tion are then rated by their local supervisors as "A", "B", or

"C", indicating a priority for promotion, and, selections for 

supervisory openings are made from the respective rating lists.

The most recent statistics available to plaintiffs indicates 

that 808 persons took the examination on March 30, 1974. This 

number included 366 blacks, 282 whites and 138 Mexican-Americans 
or Spanish surnamed persons. As the District Court correctly 

notes in its Memorandum and Order, although 204 or 72% of the 

whites taking the 1974 test passed, only 138 or 34% of the 

blacks taking the test passed. However, while the Court below 

recognized the clear disproportionate impact of the test on 

blacks, the District Court held citing Washington v. Davis, 426

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U.S. 229, 96 S.Ct. 2040 (1976), that absent proof of an intent 

to discriminate, the disproportionate impact did not render 
the test unconstitutional.

In so holding, the Court below incorrectly applied the con­

stitutional standard for adjudicating claims of invidious racial 

discrimination as opposed to the standard applicable under Title
VII under which the case at bar was filed and judicially mandated 

23/
to proceed.

The Court in Washington v. Davis, supra, specifically noted 

that the case before it had been brought under the Due Process 
Clause of the Fifth Amendment, and 42 U.S.C. §1981, and not 

Title VII of the Civil Rights Act of 1964. As such, the Court 

was clearly enunciating the Constitutional rule, and thereby 
separating that standard from the statutory requirements applic­

able under Title VII. Gibson v. Local 40, Supercargoes & Checkers, 
Etc.. 543 F .2d 1259, 1265 n.9 (9th Cir. 1976).

As Mr. Justice Stevens observed in his concurring opinion in 
Washington v. Davis, 426 U.S. 229, 255 (1976), "...there is no 

Title VII question in this case." Mr. Justice Stevens, further 
noted, that while Title VII standards may shed some light on the

23/ Plaintiffs §1981 claim was dismissed by the Court which 
dismissal was not appealed.

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issues raised in Washington v. Davis, supra:

"... there is sufficient individuality and 
complexity to that statute, [Title VII] 
and to the regulations promulgated under 
it, to make it inappropriate simply to 
transplant those in their entirety into a 
different statutory scheme having a dif­
ferent history."

Thus, as both the majority and concurring opinions in Washington 
v. Davis, supra, explicitly point out, the constitutional 

standard for adjudicating claims of invidious racial discrimina­

tion is not identical to the standard applicable under Title VII.

The statutory requirement enunciated in Griggs v. Duke Power 

Co.. supra, is that Title VII of the Civil Rights of 1964, as 

amended, prohibits the use of tests that operate to exclude mem­
bers of minority groups, unless the employer demonstrates that 

the procedures are substantially related to job performance and/ 

or are required by business necessity. As such, the employer's sub­
jective intention to discriminate is irrelevant.

"... the intent of employers who utilize 
such discriminatory procedures is not 
controlling since 'Congress directed the 
thrust of the Act to the consequences of 
employment, practices not simply the mot­
ivation' Griggs v. Duke Power Company.. 
supra. 28 L.Ed 2d at 165."

Rowe v. General Motors Corp., supra, 457 F.2d at 355. Moody v . 

Albemarle Paper Company, 422 U.S. 407 (1975); International 

Brotherhood of Teamsters v. U.S., supra.

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The fact that of those blacks passing the March 24, 1977 

examination, 74 or 53% were rated "A", in no way diminishes 

the initial disproportionate impact of the test itself. 

International Brotherhood of Teamsters v. U.S.. supra, U.S.L.W. 
at4508-11. The evidence introduced so far clearly establishes a 

promotional system which operates to disproportionally penalize 
blacks in their efforts to obtain promotions. As such, the sit­
uation is analogous to that observed in Baxter v. Savannah Sugar 
Refining Corp.. 495 F.2d 437, 441 (5th Cir. 1974).

"The record demonstrates a classic example 
of consistent and continuous employment 
practices that have the impermissible con­
sequence of limited upward mobility of 
blacks seeking economic advancement through 
job promotions."

The situation is further aggravated by the fact that in the 

final analysis promotion decisions are based on the subjective 
evaluations of a supervisory force that is overwhelmingly white.
A practice which this Court has condemned in a number of related 

contexts. Rowe v. General Motors Corp., supra. Baxter v.

Savannah Sugar Refining Corp., supra.
CONCLUSION

The proper resolution of the issue in this case depends upon 

a recognition of the relationship between the substantive rights 
guaranteed by Title VII, and the procedures available in the 
federal courts to enforce them. For as the United States Supreme 

Court pointed out in a related context in Franks v. Bowman

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Transportation Co., Inc. 423 U.S. 814, 47 L.Ed 2d 444, 465

(1976) :
"Discretion is vested not for the purpose 
of 1 limit[ing] appellate review of trial 
Courts, or ... invit[ing] inconsistency 
and caprice,1 but rather to allow the 
most complete achievement of the object­
ives of Title VII that is attainable 
under the facts and circumstances of the 
specific case."

For the foregoing reasons, the decision of the Court below 
denying preliminary relief should be reversed and this action 

should be ordered to proceed as a class action.

Respectfully submitted,

MARK T. MCDONALD/
PAUL ZAREFSKY

McDonald & McDonald 
1834 Southmore Boulevard 
Houston, Texas 77004

JACK GREENBERG 
BILL LANN LEE 
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has served two 

copies of the foregoing BRIEF FOR PLAINTIFFS-APPELLANTS upon 

counsel for Defendants-Appellees by depositing copies there­

of in an envelope in the United States mail, postage prepaid,
. this 22nd day of June, 1977, addressed to:
c
»’ WILLIAM L. BOWERS, JR-,
*’ Assistant United States Attorney

P. 0. Box 61129 
Houston, Texas 77061

/  CLYDE E. MURPHY 

ATTORNEY FOR PLAINTIFFS-APPELLANTS

V

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