Savannah Sugar Refining Corp v Baxter Brief of Respondent in Opposition to Certiorari

    I n  th e

fsatpmtte (Unurt of Hip United States
O ctober T erm , 1974 

No. 74-351

S avan n ah  S ugar R efin in g  C orporation,

Petitioner,
——v—

A dam B axter,
Respondent.

P E T IT IO N  FOR a  W R IT  OF CERTIORARI TO T H E  

U N IT E D  STATES COURT OF A PPEALS FOR T H E  F IF T H  CIRCU IT

BRIEF OF RESPONDENT 
IN OPPOSITION TO CERTIORARI

F letcher  F arrington  
H ill , J ones & F arrington

208 East Thirty-Fourth Street 
Savannah, Georgia 31401

J ack  G reenberg 
M orris J . B aller 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Respondent
Of Counsel:

K en n eth  L. J ohnson  
Suite 1500 
American Building 
Baltimore, Maryland

R obert B elton 
951 S. Independence Blvd.
Charlotte, North Carolina



TABLE OF CONTENTS
PAGE

Opinions Below .......................      1

Jurisdiction ........      1

Questions Presented ....................................   2

Statement .............        2

Argument—

I. The Ruling of the Court of Appeals for the 
Fifth Circuit is Entirely Consistent With 
This Court’s Decision in McDonnell Douglas 
Corp. v. Green ............................................    4

II. Petitioner’s Racially Discriminatory Promo­
tional Policies Were Not Mandated by State 
Law ............................................    7

III. Good Faith Efforts Which Produce No Re­
sults Are No Defense to a Back Pay Award 
Under Title VII .. .........................    7

Conclusion ................................................................    10

Table of A uthorities

Cases:

Ash v. Hobard Mfg. Co., 483 F.2d 289 (C.A. 6) ........... 8

Boles v. Union Camp Corp., 57 F.R.D. 46, 52 (S.D. Ga.) 7

Dent v. St. Louis-San Francisco Ry. Co., 406 F.2d 399 
(C.A. 5) ......................................................      4

Griggs v. Duke Power Co., 401 U.S. 424 ........ ..............  4, 9

Harvey v. International Harvester Co., 56 F.R.D. 47,
48 (N.D. Cal.) 7



II

PAGE

Johnson v. Georgia Highway Express, 417 F.2d 1122 
(C.A. 5) ............................................................................ 4

Kober v. Westinghouse Electric Corporation, 480 F.2d 
240 (C.A. 3) ....................................................................  7,8

LeBlanc v. Southern Bell Tel. & Tel. Co., 460 F.2d 1228
(C.A. 5), cert, denied 409 U.S. 990 ...... ......................  8

Local 53, International Association of Heat & Frost 
Insulation & Asbestos Workers v. Vogler, 407 F.2d
1047 (C.A. 5) .................................................................. 7

Love v. Pullman Co., 404 U.S. 522 .......... ........................  4
Louisiana v. United States, 380 U.S. 145 ................... 7

McDonnell Douglas Corp. v. Green, 411 U.S. 792 ....3, 4, 5, 6 
Manning v. General Motors Corporation, 466 F.2d 812 

(C.A. 6) .....    7,8

Parham v. Southwestern Bell Telephone Company, 433 
F.2d 421 (C.A. 8) ............................................... .'.........  3,9

Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002 (C.A.
9) .......................................................................................  7,8

United States v. Jacksonville Terminal Company, 451 
F.2d 418 (C.A. 5), cert, denied 406 U.S. 906 .......3, 4, 5, 6

Wernet v. Pioneer Foods Co., 484 F.2d 403 (C.A. 6) .... 8

Constitution:

United States Constitution, Amendment VII ...............  4

Statutes:

28 U.S.C. § 1254(1) ........    1

Title VII of the Civil Bights Act of 1964, 42 U.S.C.
§ 2000e, et seq.................................................................... 2, 4



In the

Supreme QJmtrt at %  llniti'i States
O ctober T erm , 1974

No. 74-351

S avann ah  S ugar. R efin ing  C orporation,

Petitioner,
—v—

A dam B axter,
Respondent.

P E TIT IO N  FOR A W R IT  OF CERTIORARI TO T H E  

U N IT E D  STATES COURT OF APPEALS FOR T H E  F IF T H  CIRCU IT

BRIEF OF RESPONDENT 
IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the district court (Pet. App. pp. la-19a)x 
is reported at 350 F.Supp. 139. The opinion of the United 
States Court of Appeals for the Fifth Circuit (Pet. App. 
pp. 21a-41a) is reported at 495 F.2d 436. The order of the 
court of appeals denying rehearing is reprinted at Peti­
tioner’s Appendix p. 42a.

Jurisdiction

Jurisdiction of this Court is founded upon 28 U.S.C. 
§1254(1).

1 This form of citation refers to the Appendix to the Petition for 
Certiorari filed in this Court on September 27, 1974.



2

Questions Presented

1. Did the court of appeals erroneously allocate the 
burden of proof with respect to the relief required in a 
Title YII case following an uncontested finding of discrim­
ination based upon race?

2. Were Petitioner’s discriminatory promotional prac­
tices mandated by state law?

3. Did the court of appeals err in holding that, despite 
Petitioner’s efforts to end discrimination, it continued 
unlawfully to deny promotions to its black employees?

Statement of the Case

Until it begins describing the ruling of the district court 
(Petition, p. 4), the Statement of Petitioner accurately sets 
forth the history of this litigation. At that point, however, 
the Statement strays from the record. It conspicuously 
omits mention of the district court’s ruling that Petitioner’s 
promotional practices violated Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000e, et seq. (Pet. App. lla-12a), 
a ruling not contested by Savannah Sugar on appeal.

The Court of Appeals affirmed the district court’s finding 
that Petitioner’s promotional policies, in general, violated 
Title VII, and expressly approved the trial court’s adop­
tion of affirmative remedies to cure that discrimination 
(Pet. App. 30a). It also agreed that Respondent Baxter 
had not himself been the victim of discrimination in the 
Company’s failure to promote him to the position of Relief 
Boiler Room Operator. The appeals court did not agree, 
however, with the trial court’s ruling that monetary relief 
was not required. It held that the trial court had imposed



3

an improper burden of proof in requiring Respondent to 
show, in a trial where the issue was whether the Company 
had discriminated in the first instance, that individual 
members of the class were entitled to such relief (Pet. App. 
33a). The Court of Appeals also ruled that good faith 
efforts by the Company provided no defense to a back pay 
award where discrimination continued despite those good 
faith efforts (Pet. App. 32a).

ARGUMENT

Petitioner is thoroughly confused as to the meaning of 
this Court’s decision in McDonnell Douglas Corp. v. Green, 
411 U.S. 792, and the decision of the United States Court of 
Appeals for the Fifth Circuit in United States v. Jackson­
ville Terminal Company, 451 F.2d 418 (C.A. 5), cert, denied 
406 U.S. 906 (1972). Both those decisions deal with the 
order of proof and the nature of proof (separate issues 
which Petitioner does not recognize as such) required to 
prove discrimination. Neither of those opinions are ad­
dressed—as is the opinion in issue here—to the order or 
nature of proof required to show the necessity for monetary 
relief once discrimination against a class has been shown. 
Accordingly, Petitioner’s arguments are irrelevant and ill- 
conceived.

Petitioner suggests that the opinion below is in conflict 
with those cases which have denied back pay where the em­
ployer’s discriminatory conduct was mandated by state 
law. That suggestion is obtuse. Petitioner’s further sug­
gestion of similarity between the facts of this case and those 
of Parham v. Southwestern Bell Telephone Company, 433 
F.2d 421 (C.A. 8), is equally vacuous. There is no reason 
to grant the writ in this case.



4

I

The Ruling of the Court of Appeals for the Fifth 
Circuit Is Entirely Consistent With This Court’s Deci­
sion in McDonnell Douglas Corp. v. Green.

The relatively short history of Title VII litigation has 
spawned three generations of issues. The first generation 
was born of the procedural aspects of the statute: whether 
EEOC is required to attempt conciliation before an ag­
grieved party may bring suit,2 whether the EEOC may refer 
to a state agency a charge filed initially with it,3 whether 
jury trials are required under the Seventh Amendment,4 
and a host of other such questions. The second-generation 
issues resolve around what happens to complaining parties 
after they come to court: what constitutes discrimination,5 
and what manner of proof complainants are required to 
adduce in order to substantiate their claims.6 In the third 
generation of Title VII cases, courts are facing the problem 
of what to do after a complaining party comes to court 
and wins, i.e., proves discrimination. The issues presented 
by this case belong to that third generation.

The egregious flaw in Savannah Sugar’s Petition is that 
it confuses the second-generation issues addressed by this 
Court in McDonnell Douglas Corporation v. Green, 411 
U.S. 792, and by the United States Court of Appeals for 
the Fifth Circuit in United States v. Jacksonville Terminal 
Company, supra, with the third-generation questions of 
relief which form the basis of the opinion below.

2 Dent v. St. Louis-San Francisco By. Co., 406 F.2d 399 (C.A. 5).
3 Love v. Pullman Co., 404 U.S. 522.
4 Johnson v. Georgia Highway Express, 417 F.2d 1122 (C.A. 5).
5 Griggs v. Duke Power Co., 401 U.S. 424.
6 McDonnell Douglas Corp. v. Green, 411 U.S. 792.



5

In McDonnell Douglas Corporation v. Green, supra—a 
second generation case involving only an individual claim 
of discrimination7—this Court held that, with respect to 
the order of proof, the complainant in a Title VII suit 
has the initial burden of proving discrimination (Step 1). 
With respect to the nature of proof required in Step 1, this 
Court set forth specifications by which the complainant 
could have created—and did—a prima facie showing of 
discrimination. This Court noted, however, that

The facts necessarily will vary in Title VII cases, and 
the specification above of the prima facie proof re­
quired from the complainant in this case is not neces­
sarily applicable in every respect to differing factual 
situations. [411 U.S. at 802, n. 13.]

The Court further held that, following plaintiff’s prima 
facie showing, the proper order of proof requires that the 
burden shift to the defendant to articulate legitimate, non- 
discriminatory reasons for its employment decision (Step 
2) .

The United States Court of Appeals for the Fifth Cir­
cuit in United States v. Jacksonville Terminal Company, 
supra, held, with respect to the order of proof, essentially 
the same thing: the burden of proof was initially on plain­
tiff to establish a prima facie case. With respect to the 
nature of proof required in Step 1, the Fifth Circuit recog­
nized the principle later established by this Court—that 
the nature of proof of necessity will depend upon the facts 
of each case— and held that plaintiff met its burden with 
its introduction of statistical data. 451 F.2d at 444. With

7 The court expressly noted that, “ The critical issue before us 
concerns the order and allocation of proof in a private, non-class- 
action challenging employment discrimination,” 411 U.S. at 800. 
The Court did not address problems of proof arising in class ac­
tions where class-wide discrimination practices have been shown.



6

regard to Step 2, the Fifth Circuit looked to Jacksonville 
Terminal for a “ plausible racially neutral explanation,” 
451 F.2d at 445— a legitimate, non-discriminatory reason— 
for its apparently discriminatory policies. In both Mc­
Donnell Douglas and Jacksonville Terminal, the employers 
were able to meet their Step 2 burden.

The approach of the district court in this case is sub­
stantially identical to the approach used in McDonnell 
Douglas and Jacksonville Terminal. In essence, the district 
court found that Respondent met his initial, Step 1 burden 
of proving discrimination by the introduction of statistical 
data (see Pet. App,, pp. 17a-19a). The court then held that 
Petitioner failed to carry its Step 2 burden of meeting the 
prima facie showing, because of its lack of objective, ascer­
tainable standards for promotion. It is this Step 2 issue 
which, as evidenced by its querulous Statement (Petition, 
pp. 4-8), Petitioner now seeks to relitigate in this Court. 
Since it took no appeal from the district court’s findings, 
Petitioner can not now be heard to complain that the court 
of appeals’ express approval (Pet. App. 30a) of the dis­
trict court’s findings is erroneous.

It is not the second-generation issue of discrimination 
which forms the substance of the opinion below, but the 
third-generation issue of appropriate relief following a 
finding of discrimination. And, it is upon that issue that 
the court of appeals differed with the holding of the dis­
trict court. With respect to the order of proof on appro­
priate relief, the court of appeals held that it was improper 
to require plaintiff to establish entitlement of individual 
class members to monetary relief prior to the resolution 
of the discrimination issue. That holding in no way con­
flicts with McDonnell Douglas Corporation v. Green, supra, 
United States v. Jacksonville Terminal Company, supra, 
or any other Title VII case of which Respondent is aware.



7

In fact, that holding is in accord with the practice of lower 
courts both within and without the Fifth Circuit.8 Not 
only is the Court of Appeals ruling amply supported by 
those other cases; it is eminently sensible.

If Petitioner’s argument can be read at all to attack 
the Court of Appeals’ approach to the relief issue, it does 
not, as the titles suggest, assail the court’s allocation of 
the order of proof. Rather, Petitioner quarrels with the 
nature of proof which will be required of individual class 
members to establish their entitlement to back pay. That 
issue was not before the Court of Appeals, and was wisely 
and appropriately remanded by it to the district court for 
that determination to be made. Cf. Louisiana v. United 
States, 380 U.S. 145, 154ff; Local 53, International Asso­
ciation of Heat & Frost Insulation and Asbestos Workers 
v. Vogler, 407 F.2d 1047 (C.A. 5). The ruling of the Court 
of Appeals therefore provides no basis whatsoever for 
issuing the writ.

II

Petitioner’ s Racially Discriminatory Promotional 
Policies Were Not Mandated by State Law.

Petitioner argues that, since an award of back pay is 
within the trial court’s discretion, and since the Court of 
Appeals failed to invoke the magic words, “abuse of dis­
cretion” in reversing the trial court (Petition, p. 17), the 
opinion below creates an “ immutable” conflict with Kober 
v. Westinghouse Electric Corporation, 480 F.2d 240 (C.A. 
3 ); Manning v. General Motors Corporation, 466 F.2d 812 
(C.A. 6 ); and Schaeffer v. Yellow Cabs, Inc., 462 F.2d 
1002 (C.A. 9). Petitioner’s argument has no merit. Each

8 Boles v. Union Camp Corporation, 57 F.R.D. 46, 52 (S.D.G-a.) ; 
Harvey v. International Harvester Co., 56 F.R.D. 47, 48 (N.D.Cal.).



8

of those cases involved sex discrimination claims where 
the employment practices under attack were mandated 
by state protective legislation. The denial of back pay in 
these cases was based on the presumptive constitutional­
ity of state legislative enactments and the fact that their 
mandatory nature put the employers on the horns of a 
dilemma from which only a federal court Title VII rul­
ing could release them. Those cases, and a few others 
like them,9 comprise the universe of appeals court deci­
sions which have affirmed the exercise of discretion by 
lower courts in denying back pay, where discrimination 
and resultant economic loss was proved. Petitioner can 
take no comfort in those cases. It had a completely free 
hand to adopt and implement its promotional policies, and 
was under no state-imposed obligation to allow its all- 
white supervisory staff to be the sole arbiter of qualifi­
cations (See Pet. App. pp. lOa-lla, 30a). The facts of 
Kober, Manning and Schaeffer have nothing to do with 
the facts of this case of voluntary private discrimination. 
Accordingly there exists no conflict of authorities.

Ill
Good Faith Efforts Which Fail to Terminate Dis­

crimination Are No Defense to a Back Pay Award 
Under Title VII.

Petitioner argued below, and the district court so held, 
that its good faith efforts to end its discriminatory prac­
tices was reason enough to deny back pay to those members 
of the class who had suffered economically as a result of 
those practices (Pet, App., p. 13a). The Fifth Circuit re­

9 Ash v. Hobart Mfg. Co., 483 F.2d 289 (C.A. 6 ) ;  Wernet v. 
Pioneer Foods Co., 484 F.2d 403 (C.A. 6) ; LeBlanc v. Southern 
Bell Tel. & Tel. Co., 460 F.2d 1228 (C.A. 5), cert, denied 409 U.S. 
990.



9

versed, holding that neither an employer’s beneficence nor 
his malevolence are proper criteria to apply in determin­
ing appropriate relief (Pet. App., p. 32a).

Petitioner argues that the Court of Appeals’ reversal has 
created a conflict with the Eighth Circuit’s ruling in 
Parham, v. Southwestern Bell Telephone Co., 433 F.2d 
421 (C.A. 8). That argument ignores the plain mandate 
of Griggs v. Duke Power Co., 401 U.S. 424, where this 
Court held that

. . . good intent or absence of discriminatory intent 
does not redeem employment procedures . . . that 
operate as ‘built-in headwinds’ for minority groups and 
are unrelated to measuring job capability. . . . Con­
gress directed the thrust of the Act to the consequences 
of employment practices, not simply the motivation. 
[401 U.S. at 432, emphasis the Court’s.]

Both the Parham court and the court below in this case 
followed that mandate: they examined the consequences 
—not the motivation— of the employment practices under 
attack. In Parham, the court, found that Southwestern Beil 
had embarked on a good faith journey toward equal em­
ployment opportunity and had succeeded. In this case, 
both the trial court and the Court of Appeals found that, 
despite Petitioner’s good faith efforts, discrimination con­
tinued unabated (Pet. App., pp. 9a-10a, 32a).

The Fifth Circuit in this case and the Eighth Circuit 
in Parham used the same analytical approach to deter­
mine the relief required. The results were different be­
cause the facts were different: Southwestern Bell had 
stopped discriminating; Savannah Sugar had not. Those 
differing factual situations do not amount to conflicts of 
rulings of law. There is therefore no reason to grant the 
writ on that basis.



10

CONCLUSION

For the foregoing reasons, Respondent respectfully sub­
mits that the writ should be denied.

Respectfully submitted,

F letcher  F arrington

H ill , J ones & F arrington

208 East Thirty-Fourth Street 
Savannah, Georgia 31401 
(912) 233-7727

J ack  Greenberg

M orris J . B aller 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Respondent

Of Counsel:

K en n eth  L. J ohnson  
Suite 1500 
American Building 
Baltimore, Maryland

R obert B elton 
951 S. Independence Blvd.
Charlotte, North Carolina



ME!IEN PRESS INC. —  N. Y C  219