Sweatt v. Painter Appendix to Petition and Brief in Support of Petition for Writ of Certiorari

    C.Si?

No. 88-1602

In the

Supreme CCmtrt of tire United 1*1 cites
October Term, 1988

Louis Swint, etc., et al.,
Petitioners,

-v.-

Pullman-Standard, et al.
Respondents.

ON petitio n  for  a  w rit  of certiorari to th e  un ited  states 
court  o f  a ppe a l s  for th e  eleventh  circuit

BRIEF OF RESPONDENT 
PULLMAN-STANDARD IN OPPOSITION

O f Counsel:
C.V. Stelzenmuller 
Burr & Forman 
3000 SouthTrust Tower 
Birmingham, Alabama 35203 
(205) 251-3000

* Floyd Abrams 
Thomas J. Kavaler 
Samuel Estreicher 
Taryn V. Shelton 
Peter Phillips
Cahill Gordon & Reindel 
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000
* Counsel o f Record fo r  

Respondent Pullman- 
Standard, Inc.



1

QUESTION PRESENTED

Did the Court of Appeals err in holding not “ clearly errone­
ous” the findings of the District Court that respondent’s senior­
ity system with one of its unions was neither adopted nor 
maintained with discriminatory intent, and hence was bona fide 
under Section 703(h) of Title VII of the Civil Rights Act of 
1964?



11

Pullman-Standard (“Pullman” or “ the Company”) respect­
fully offers to correct the list of parties, as it appears on page iii 
of the Petition. William B. Larkin, Spurgeon Seals, Jesse B. 
Terry and Edward Lofton are not properly parties to this 
appeal. They were plaintiffs-appellants in appeal No. 84-7319 
below—an independent action consolidated on appeal with 
Nos. 87-7057 and 86-7886—seeking review of the District 
Court’s denial of their motion to transform the 1976 dismissal 
of their action with prejudice into a dismissal without preju­
dice. The denial was affirmed by the Eleventh Circuit below; it 
is not mentioned in this Petition, and no issue presented in that 
case has been asserted in this Petition.

LIST OF PARTIES



Ill

PAGE

TABLE OF A U T H O R I T I E S . . . . . . . . . . . . .....................  v

OPINIONS B E L O W . . . . . ................................................  1

JURISDICTION ................................................................  2

STATUTES INVOLVED ............................... .................. 2

STATEMENT OF THE CASE ........................................ 2

REASONS FOR DENYING THE W RIT.......................  8
A. Petitioners’ Alleged “ Four Seniority Related

Practices” Mischaracterize The Record And, At
Bottom, Constitute Merely A Disagreement
With The Factual Findings Of Both Courts
Below.........................................................    9
1. Post-Act Intradepartmental Promotions . . .  9
2. The Creation of Separate IAM and USW

Departments in 1941............................    10
3. The Alleged Creation of Eight New Depart­

ments in 1954 ...................   10
4. The 1965 Training Requirement.................  11

B. The Purported Conflicts Among The Circuits
Do Not Withstand Analysis ...............................  12
1. Petitioners Improperly Characterize The

Focus Of The Court Below As Restricted To 
The Neutrality Of The Literal Terms Of The 
Seniority Rules..................... ..................... • • 12

2. IAM’s Motive May Not Properly Be
Imputed To Pullman.................   14

TABLE OF CONTENTS



IV

PAGE

3. The Court Below Properly Placed The Bur­
den of Persuasion On Plain tiffs.................. 15

C. Petitioners’ Challenge To The Validity Of A 
Facially Neutral Seniority System Adopted In 
1954 Is Time-Barred............................................. 17

CONCLUSION...................   18



V

TABLE OF AUTHORITIES

Cases p a g e

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) 16

Bernard v. Gulf Oil Corp., 841 F.2d 547 (5th Cir. 1988) 17n

Black Law Enforcement Officers A ss’n v. City o f Akron,
824 F.2d 475 (6th Cir. 1987) .......................................  16-17

EEOC v. Ball Corp., 661 F.2d 531 (6th Cir. 1981). . . . .  16

Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976)......................... ................................ ............. . . . . 13 ,  16

Harris v. Plastics Manufacturing Co., 617 F.2d 438 (5th 
Cir. 1980).....................    17n

Henn v. National Geographic Society, 819 F.2d 824 (7th 
Cir.), cert, denied, 108 S. Ct. 454 (1987) .................... 16n

International Brotherhood o f Teamsters v. United 
States, 431 U.S. 324 (1977)................. 5, 5n, 12-13, 15, 15n

James v. Stockham Valves and Fittings Co., 559 F.2d 310 
(5th Cir. 1977), cert, denied, 434 U.S. 1034 
(1978)...................................................5, 5n, 8n, 12, 15, 15n

Larkin v. Pullman-Standard (Swint XI), 854 F.2d 1549 
(11th Cir. 1988), pet. fo r  cert, filed sub nom. Pullman- 
Standard v. Swint, 51 U.S.L.W. 3670 (U.S. March 31,
1989) (Nos. 88-1601, 1602)........,3n, 7-8, 8n, 10, 11, 12, 15

Lorance v. A  T & T  Technologies, In c .,____U.S_____ _
109 S. Ct. 2261 (1989)....................... .. .3, 9, 13, 15-16, 17

Mitchell v. Mid-Continent Spring Co., 583 F.2d 275 (6th
Cir. 1978), cert, denied, 441 U.S. 922 (1979).............  14

Peters v. City o f Shreveport, 818 F.2d 1148 (5th Cir.
1987), cert, dismissed, 108 S. Ct. 1101 (1988)............ 16n



VI

PAGE

Pullman-Standard v. Swint (Swint VII), 456 U.S. 273 
(1982)................................................. 2-3, 7, 14, 14n, 15, 15n

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), 
cert, dismissed, 404 U.S. 1006 (1971)...........................  15

Sears v. Bennett, 645 F.2d 1365 (10th Cir. 1981), cert, 
denied, 456 U.S. 964 (1982).................................15, 15n, 16

Swint v. Pullman-Standard {Swint I), 11 FEP Cas.
(BNA) 943 (N.D. Ala. 1974)........................... .4, 4n, 9n, 11

Swint v. Pullman-Standard {Swint II), 539 F.2d 77 (5th 
Cir. 1976)................................................................. 5, lOn, 11

Swint v. Pullman-Standard {Swint III), 15 FEP Cas.
(BNA) 144 (N.D. Ala. 1977)........................................ 5n, 11

Swint v. Pullman-Standard (Swint IV), 15 FEP Cas.
(BNA) 1638 (N.D. Ala. 1977)....................................... 5n

Swint v. Pullman-Standard (Swint V), 17 FEP Cas.
(BNA) 730 (N.D. Ala. 1978)........3n, 4n, 5-6, 7, 10, 11, 17

Swint v. Pullman-Standard {Swint VI), 624 F.2d 525 (5th 
Cir. 1980), rev’d, 456 U.S. 273 (1982).........................  6

Swint v. Pullman-Standard (Swint VIII), 692 F.2d 1031 
(5th Cir. 1983)...............................................................  7n

Swint v. Pullman-Standard {Swint IX), No. CV 71-P- 
0955-S (N.D. Ala. Sept. 8, 1986) ................................  7

Swint v. Pullman-Standard {Swint X), No. CV 71-P- 
0955-S (N.D. Ala. Nov. 26, 1986)...............................  7n

Taylor v. Mueller Co., 660 F.2d 1116 (6th Cir. 1981) .. 14

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 
(1977)...............................................................................13, 15



PAGE

United Airlines, Inc. v. Evans, 431 U.S. 553 (1977)---- 13, 15

Wattleton v. International Brotherhood o f Boiler 
Makers, Local 1509, 686 F.2d 586 (7th Cir. 1982), cert, 
denied, 459 U.S. 1208 (1983).........................................14, 16

Rule
Federal Rules of Civil Procedure

Rule 52(a)................. .......... ....................................... 2-3, 6-7

Statutes
Age Discrimination in Employment Act, 29 U.S.C.

§§ 621-634 (1982 & Supp. V 1987)...............................  16n

Civil Rights Act of 1964

Title VII, 42 U.S.C. §§ 2000e et seq. (1982)............. passim

§ 703(h), 42 U.S.C. § 2000e-2(h) (1982)............... .passim

Civil Rights Law

42 U.S.C. § 1981 (1982)................................................  3

Equal Pay Act, 29 U.S.C. § 206(d) (1982).....................  16n

Judicial Code

vii

28 U.S.C. § 1254(1) (1982), as amended 2



No. 88-1602

In the

(Cnurt xtf tli* Mnxtzb l&nte
October Term, 1988

Louis Swint, etc., et al.,
Petitioners,

Pullman-Standard, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF RESPONDENT 
PULLMAN-STANDARD IN OPPOSITION

OPINIONS BELOW

For the complete text of all opinions below in this action, the 
Court is respectfully referred to the Appendix to the Petition 
for a Writ of Certiorari filed by Pullman-Standard on March 
31, 1989, in No. 88-1601. In the course of this Brief in Opposi­
tion, citations to sections of the opinions contained in the 
Appendix to the instant Petition will appear as “ Pet. App.
____ ” Citations to sections of other opinions below contained
in the Appendix to Pullman’s petition will appear as “ Pullman



2

A p p .____ ” Citations to the trial transcript will appear as
“T r.,” and to the instant Petition as “Pet.”

JURISDICTION

The decision of the Court of Appeals was entered on Septem­
ber 21, 1988, and a timely petition for rehearing was denied on 
January 3, 1989. The jurisdiction of this Court is invoked under 
28 U.S.C. § 1254(1) (1982), as amended.

STATUTES INVOLVED

The pertinent text of Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §§ 2000e etseq. (1982), and Rule 52(a) of the Federal 
Rules of Civil Procedure is set out at Pullman App. 293a-298a.

STATEMENT OF THE CASE

Petitioners seek review of the validity of a seniority system 
which the District Court below has found to be non- 
discriminatory on four separate occasions over the past fifteen 
years, and which the Court of Appeals has affirmed as bona 
fide within the meaning of Section 703(h) of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C § 2000e-2(h) (1982). Indeed, 
the validity of Pullman’s seniority system under Section 703(h) 
was previously before this Court in Pullman-Standard v. Swint 
(Swint VII), 456 U.S. 273 (1982) (Pullman App. 231a-258a), 
which held that the Court of Appeals, in substituting its own 
findings, had transgressed the proper limits of appellate review 
under Rule 52 of the Federal Rules of Civil Procedure. On 
remand from that decision, the District Court reaffirmed its 
earlier determination that the seniority system had not been 
adopted or maintained with racially discriminatory intent, and 
the Eleventh Circuit agreed that these findings were not clearly 
erroneous. While laboring in this Petition to assert several spe­
cious conflicts among the Circuits with respect to the principles 
governing Section 703(h), petitioners actually seek to have this 
Court review the findings of both courts below that Pullman



3

instituted and maintained a seniority system without a discrimi­
natory motive—“ a pure question of fact, subject to Rule 
52(a)’s clearly-erroneous standard.” Swint VII, 456 U.S. at 
287-88 (Pullman App. 243a). In any event, petitioners’ chal­
lenge to Pullman’s seniority system is time-barred under this 
Court’s recent ruling in Lorance v. A T  & T  Technologies, Inc., 
____U.S_______ 109 S. Ct. 2261 (1989).

On October 19, 1971, Louis Swint and Willie James Johnson 
initiated this class action under Title VII and 42 U.S.C. § 1981 
(1982), naming Pullman and the United Steelworkers of Amer­
ica, AFL-CIO (as well as Local 1466 of the United Steelwork­
ers) (collectively “ USW”) as defendants. As pertinent to this 
Petition, they challenged the departmental seniority system at 
Pullman’s Bessemer, Alabama plant-maintained in accord­
ance with the collective bargaining agreements between Pull­
man and the USW—charging that the system perpetuated the 
effects of pre-Title VII discrimination. The USW represented 
production and maintenance employees in twenty-six of the 
plant’s twenty-eight departments; a second union, the Interna­
tional Association of Machinists, AFL-CIO (“ LAM”), which 
represented employees in the remaining two departments, was 
later joined only for limited remedial purposes.1

1 Although the LAM had not been named in the original complaint, 
the amended complaints, or any of the charges filed with the Equal 
Employment Opportunity Commission (“EEOC”), the District Court 
permitted joinder of the LAM and its Local Lodge 372 on the eve of 
trial—not for the purpose of liability, but solely in the event the relief 
sought by plaintiffs’ challenge to the Pullman-USW seniority system 
might require some modification of the IAM labor agreement. See 
Swint v. Pullman-Standard (Swint V), 17 FEP Cas. (BNA) 730, 732 
n.2 (N.D. Ala. 1978) (Pullman App. 203a n.2).

Petitioners now seek to alter the focus of the entire litigation. Hav­
ing conceded below that the USW was not acting with discriminatory 
intent in adopting or maintaining the Pullman-USW seniority system, 
see Larkin v. Pullman-Standard (Swint XI), 854 F.2d 1549, 1578 n.46 
(11th Cir. 1988), pet. fo r cert, filed sub nom. Pullman-Standard v. 
Swint, 57 U.S.L.W. 3670 (U.S. March 31, 1989) (Nos. 88-1601, 1602) 
(Pet. App. 179a n.45), they offer this Court the wholly novel conten-



4

Under the Pullman-USW labor agreements, seniority was 
measured by length of continuous service in a particular depart­
ment and considered for purposes of layoff, recall and promo­
tion. All employees, white or black, who sought transfer to a 
new department lost any seniority they had accrued in the old 
department. This departmental seniority system in effect since 
1954 remained virtually unchanged until 1972, when Pullman 
entered into an agreement with the United States Department of 
Labor enabling black employees hired before 1965 to transfer 
from predominantly black departments or to predominantly 
white departments without losing seniority.2

After a 16-day trial, the District Court concluded in 1974 that 
“ the seniority system at Bessemer is not perpetuating the effects 
of prior discrimination.” Swint v. Pullman-Standard (Swint I), 
11 FEP Cas. (BNA) 943, 952; see also id. at 954 (Pullman App. 
74a, 78a). Indeed, the trial court pointed out that the “ Steel­
workers local, which was organized principally by blacks, and 
whose policies over the years have been shaped as much by 
blacks as by whites,”  had advocated departmental seniority and 
rejected Pullman’s proposals to merge several departments for 
broader seniority units. Swint /, 11 FEP Cas. (BNA) at 954 
(Pullman App. 78a). On appeal, the Fifth Circuit nevertheless 
remanded for a new determination of the validity of the senior­

tion that this case “ also presents” a dispute as to the bona-fides of the 
Pullman-IAM seniority system (Pet. at 25 n.25). The District Court 
made clear, however, that “ [t]he seniority system under attack in this 
case has its essence in the 1954 company-wide collective bargaining 
agreement between Pullman and the United Steelworkers,” that the 
IAM seniority units are “ not directly at issue in this litigation,” and 
that evidence concerning IAM is relevant only to the extent it sheds 
light on the validity of the USW-Pullman system. See Swint V, 17 FEP 
Cas. (BNA) at 732 & n.2 (Pullman App. 185a & 203a n.2). Moreover, 
the IAM agreements provided for seniority by occupation rather than 
department, see id. at 733 n.4 (Pullman App. 204a n.4); a challenge to 
occupation-based seniority was simply not preserved among the “ class 
issues” listed in the District Court’s pre-trial order. See Swint v. 
Pullman-Standard (Swint I), 11 FEP Cas. (BNA) 943 , 948 (N.D. Ala. 
1974) (Pullman App. 66a-67a).

2 See Swint V, 17 FEP Cas. (BNA) at 732 (Pullman App. 185a).



5

ity system in light of its rulings as to plaintiffs’ evidence of dis­
crimination in initial assignments to departments. Swint v. 
Pullman-Standard(Swint II), 539 F.2d 77, 97-98 (5th Cir. 1976) 
(Pullman App. 127a-128a).

While the matter was on remand, this Court rendered its deci­
sion in International Brotherhood o f  Teamsters v. United 
States, 431 U.S. 324 (1977), holding that a bona fide seniority 
system under Section 703(h) could not be invalidated on the 
ground that it perpetuated the effects of pre-Title VII discrimi­
nation. Teamsters requires proof of discriminatory intent in the 
adoption or maintenance of the system in order to find a Title 
VII violation. Also in the interim, the Fifth Circuit, in James v. 
Stockham Valves and Fittings Co., 559 F.2d 310, 352 (5th Cir. 
1977), cert, denied, 434 U.S. 1034 (1978), developed a four- 
factor test consistent with Teamsters for assessing the validity 
of a seniority system.3 On remand in 1978, the District Court 
held further evidentiary hearings and, in an opinion extensively 
discussing Teamsters and the Stockham Valves factors, sus­
tained the validity of the Pullman-USW system for the third 
time. Swint v. Pullman-Standard (Swint V), 17 FEP Cas. 
(BNA) 730, 732-739 (N.D. Ala. 1978) (Pullman App. 182a- 
201a).4

3 Stockham Valves requires an inquiry into “ 1) whether the seniority 
system operates to discourage all employees equally from transferring 
between seniority units; 2) whether the seniority units are in the same 
or separate bargaining units (if the latter, whether that structure is 
rational and in conformance with industry practice); 3) whether the 
seniority system had its genesis in racial discrimination; and 4) whether 
the system was negotiated and has been maintained free from any ille­
gal purpose.” See 559 F.2d at 352.

4 In its second pronouncement on the issue, the District Court, after 
taking additional evidence, again found the seniority system bona fide. 
The court did not issue its opinion, however, until after Teamsters had 
been decided. Swint v. Pullman-Standard (Swint III), 15 FEP Cas. 
(BNA) 144 (N.D. Ala. 1977) (Pullman App. 156a-164a). Subsequently, 
in view of the fact that plaintiffs had predicated their challenge on a 
theory rejected by Teamsters—the perpetuation of pre-Title VII 
discrimination—the court reopened the case for what was a third evi­
dentiary hearing and ruling. Swint v. Pullman-Standard (Swint IV), 15 
FEP Cas. (BNA) 1638 (N.D. Ala. 1977) (Pullman App. 178a).



6

First, as to the neutrality of the system, the trial court found 
that “ [t]o the extent the system ‘locks’ employees into a depart­
ment and discourages transfers, it does so equally for both 
white and black,” at least until the 1972 Labor Department 
agreement favoring certain black employees. Id. at 733 (Pull­
man App. 187a). Second, the seniority unit structure was found 
to be consistent with industry practice and a rational response 
to both the extreme fluctuation in employment levels and the 
absence of lines of progression within departments. Addressing 
the existence of two (one USW and one IAM) Die & Tool and 
Maintenance departments, the court determined that this sepa­
ration was not orchestrated with discriminatory purpose by 
Pullman, but was imposed by specific unit determination deci­
sions of the National Labor Relations Board (NLRB). Id. at 
736 (Pullman App. 193a-194a). Third, although the seniority 
system had its genesis at a time when racial discrimination was 
practiced, ‘‘this system was not itself the product of this bias,” 
but ‘‘came about as a result of colorblind objectives” of a 
union that ‘‘was not an arm of a segregated society.” Id. at 738 
(Pullman App. 198a). Declining to make any findings as to the 
motives of the IAM, the court ruled that any possible discrimi­
natory motive on the part of that union could not be attributed 
to Pullman or to the USW. Id. at 739 (Pullman App. 199a- 
200a). Finally, the court found that the Pullman-USW system 
had been ‘‘negotiated and maintained free from any discrimina­
tory purpose.” Id. at 739 (Pullman App. 200a). Based on the 
totality of the circumstances, the trial court concluded that the 
seniority system was bona fide under Section 703(h).

On appeal, the Fifth Circuit reviewed the evidence de novo. 
Stressing the existence of separate Die & Tool and Maintenance 
departments, the appeals court concluded that the purpose of 
the IAM was to exclude black workers from its own units, and 
therefore the motivation of that union infected the validity of 
the Pullman-USW system. Swint v. Pullman-Standard (Swint 
VI), 624 F.2d 525, 532-34 (5th Cir. 1980), rev’d, 456 U.S. 273 
(1982) (Pullman App. 218a-222a).

This Court granted certiorari and reversed the Fifth Circuit’s 
failure to honor the limits of appellate review mandated by Rule



7

52 of the Federal Rules of Civil Procedure. Pullman-Standard 
v. Swint (Swint VII), 456 U.S. 273, 276 (1982) (Pullman App. 
231a-258a). The Court of Appeals had failed to appreciate that 
under Section 703(h), “ there must be a finding of actual intent 
to discriminate on racial grounds on the part of those who 
negotiated or maintained the system . . .[, which finding is] a 
pure question of fact.” Id. at 289 (Pullman App. 244a-245a). 
Stating unequivocally that “ IAM’s discriminatory motivation, 
if it existed, cannot be imputed to USW,” this Court explained 
that evidence of a discriminatory purpose on the part of the 
LAM is relevant only to the extent it may shed some light on the 
purpose of the USW or Pullman “ in creating and maintaining 
the separate seniority system at issue in these cases.” Id. at 292 
n.23 (Pullman App. 248a).

On remand,5 after yet another trial, the District Court con­
cluded that nothing in plaintiffs’ most recent presentation 
altered the conclusion it had reached in Swint V that “ [t]he 
defendants have successfully carried their burden of showing 
that the seniority system is bona fide . . . .” Swint v. Pullman- 
Standard (Swint IX), No. CV 71-P-0955-S, slip op. at 11 (N.D. 
Ala. Sept. 8, 1986) (Pet. App. 30a-31a).6

The Eleventh Circuit (which inherited this litigation) 
affirmed on the Section 703(h) issue. Larkin v. Pullman- 
Standard (Swint XI), 854 F.2d 1549 (11th Cir. 1988), pet. fo r  
cert, filed sub nom. Pullman-Standard v. Swint, 57 U.S.L.W. 
3670 (U.S. March 31, 1989) (Nos. 88-1601, 1602) (Pet. App. 
58a-211a). Relying on Teamsters, the Court of Appeals found 
no showing that “ the [seniority] system itself was negotiated or 
maintained with an actual intent to discriminate,” and con­
cluded that “ none” of plaintiffs’ “ evidence goes directly to 
Pullman’s intent regarding the system.” 854 F.2d at 1576-77 
(Pet. App. 171a-175a) (emphasis in original). The Court of 
Appeals further held that the District Court was warranted in

5 Swint v. Pullman-Standard (Swint VIII), 692 F,2d 1031 (5th Cir. 
1983) (per curiam) (Pet. App. la-4a).

6 The District Court thereafter granted plaintiffs’ motion for entry of 
judgment in Swint v. Pullman-Standard (Swint X), No. CV 71-P-0955- 
S, slip op. at 5 (N.D. Ala. Nov. 26, 1986) (Pet. App. 41a-57a).



8

discounting “ the plaintiffs’ circumstantial evidence in the face 
of considerable direct evidence that the system was not the 
product of discriminatory intent,” and that “ there was nothing 
to suggest that Pullman acted with discriminatory intent in 
negotiating or maintaining nontransferable seniority.” Id. at 
1577-78 (Pet. App. 175a-178a).7

REASONS FOR DENYING THE WRIT

Although this Petition purports to raise a number of sup­
posed legal issues and to articulate a number of conflicts among 
the Circuits, it in fact seeks this Court’s review of purely factual 
findings of both courts below that the Pullman-USW seniority 
system was not adopted or maintained with a racially discrimi­
natory motive. The putative conflicts either do not exist or have 
already been fully resolved by this Court. Furthermore, peti­

7 The Court of Appeals observed that the District Court “ carefully 
analyzed the evidence presented, paying special attention to the four 
factors” emphasized in the Stockham Valves decision. As to whether 
the seniority system equally discouraged transfers by blacks and 
whites, the appeals court noted that “ [t]he evidence revealed that 
whites as well as blacks often desired to transfer but were disinclined to 
do so because they would lose their seniority.” On the rationality of 
the units, the evidence “ also showed that systems including nontrans­
ferable seniority between given units are quite common not only with 
manufacturers generally but with manufacturers of railroad cars.” 
Although the seniority system was established at a time when Pullman 
was “ discriminatory in other respects,” there was “ nothing to suggest 
that Pullman acted with discriminatory intent in negotiating or main­
taining nontransferable seniority.” Rather, it was Pullman that sought 
without success to merge seniority units:

“ Indeed, there was evidence that Pullman would have preferred no 
seniority or the narrowest seniority possible so that it could have the 
greatest flexibility in filling vacant positions. There was also evi­
dence that at a meeting of primarily black USW employees, a pro­
posal to merge certain departments was voted down.”

In sum, the Court of Appeals concluded that “ [h]aving thus found 
that three of the four James factors went against a finding of discrimi­
natory intent, the [district] court was not clearly erroneous in conclud­
ing that the seniority system was bona fide.” 854 F.2d at 1577-78 (Pet. 
App. 175a-178a).



9

tioners’ challenge to Pullman’s seniority system, adopted in 
1954, is time-barred under this Court’s ruling in Lorance v.
A T  & T Technologies, In c .,____U .S ._____, 109 S.Ct. 2261
(1989). The Petition should be denied.

A. Petitioners’ Alleged “Four Seniority Related Practices’’ 
Mischaracterize The Record And, At Bottom, Constitute 
Merely A Disagreement With The Factual Findings Of Both 
Courts Below

In an effort to create the mirage of a legal issue warranting 
this Court’s attention, petitioners argue that the courts below 
erroneously concluded that the Pullman-USW system was bona 
fide in the face of four allegedly racially motivated “ seniority 
related practices” : (1) post-Act intradepartmental promotions; 
(2) the creation of separate LAM and USW Maintenance and 
Die and Tool departments in 1941; (3) the alleged creation of 
eight new departments in 1954; and (4) Pullman’s requirement 
after 1965 that individuals seeking positions as welders demon­
strate either past experience as a welder or completion of a 
welder training program (with tuition reimbursement by Pull­
man).8 This list of so-called “ seniority related practices” mis- 
characterizes the record and, at bottom, merely constitutes 
petitioners’ disagreement with the manner in which the courts 
below weighed the evidence.

1. Post-Act Intradepartmental Promotions

Petitioners claim the existence of post-Act discrimination in 
intradepartmental assignments and describe this alleged prac­
tice as “ an unresolved dispute” (Pet. at 12). As the Court of 
Appeals noted, however, because plaintiffs could offer no justi­
fication for belatedly attempting to produce evidence on this 
theory for the first time at the fourth trial in 1984, the District

8 Black employees were principal beneficiaries of this reimbursement 
program. Swint I, 11 FEP Cas. (BNA) at 947 & n.16 (Pullman App. 
65a & 94a n.16).



10

Court did not abuse its discretion in excluding it. Swint X I, 854 
F.2d at 1578 (Pet. App. 180a-182a).9

2. The Creation of Separate IAM and USW Departments 
in 1941

Petitioners complain of the creation in 1941 of separate IAM 
and USW Maintenance and Die and Tool Departments, along 
with the LAM’s agreement in 1944 to cede certain of its own job 
classifications to the USW (Pet. at 15-20). Both courts below 
found that these events did not undermine the validity of the 
Pullman-USW seniority system. The District Court determined 
that the existence of these divided departments was “ due to 
actions of the NLRB in 1941,” that there was no evidence of 
“ any industry practice to combine positions represented by dif­
ferent unions into the same seniority unit,” and that any dis­
pute over the IAM’s motivation in ceding the job classifications 
was irrelevant because neither Pullman nor the USW had been 
motivated by racial discrimination. Swint V, 17 FEP Cas. 
(BNA) at 736, 738-39 (Pullman App. 193a, 199a-200a). The 
Court of Appeals upheld the findings as to the rationality of the 
seniority units and the absence of a discriminatory motive on 
Pullman’s part. Swint XI, 854 F.2d 1577-78 (Pet. App. 179a- 
180a).

3. The Alleged Creation of Eight New Departments In 
1954

Petitioners also challenge the failure to resolve whether Pull­
man acted with racial motivation in allegedly creating eight new 
departments in 1954 (Pet. at 24). There has never been a finding 
below, however, that eight new departments were created that 
year. In any event, the District Court, after assessing the evi­
dence presented as to all of Pullman’s departments, expressly

9 As to the issue of posting job vacancies, which petitioners attempt to 
link to this foreclosed issue of intradepartmental assignments (Pet. at 
13-14), the Court of Appeals in Swint II agreed with the District Court 
that any failure to post vacancies did not state an independent Title VII 
violation. See Swint II, 539 F.2d at 102 (Pullman App. 134a).



11

determined that the Company’s departmental structure was 
“ rational, in accord with the industry practice, and consistent 
with NLRB policies,” and “ that the seniority system between 
the company and the USW has been negotiated and maintained 
free from any discriminatory purpose.” Swint V, 17 FEP Cas. 
(BNA) at 737, 739 (Pullman App. 195a, 200a). Moreover, it 
was the USW—who petitioners now concede was not motivated 
by racial animus (see note 1, supra)—that resisted Pullman’s 
efforts to merge departments for broader seniority units. Id. at 
736-37 n.18, 738 (Pullman App. 205a n.18, 198a). The Court of 
Appeals admitted that its previous conclusion to the contrary 
did not survive this Court’s Swint decision, and sustained the 
District Court’s findings both as to the rationality of the senior­
ity units and the absence of evidence of discriminatory intent on 
Pullman’s part in negotiating or maintaining the nontransfer- 
able seniority system. Swint X I, 854 F.2d at 1577-78 & n.45 
(Pet. App. 177a-179a & n.44).

4. The 1965 Training Requirement
Petitioners’ final dispute with the record concerns Pullman’s 

decision in 1965 to assign to welding positions only those who 
had prior experience as welders or who had completed a welder 
training program (with tuition reimbursement by Pullman) 
(Pet. at 24-28). Initially, as both courts below noted in earlier 
decisions, it is doubtful whether this issue—not listed among 
the “ class issues” in the pre-trial order—is properly in the case. 
See Swint I, 11 FEP Cas. (BNA) at 947 n. 16 (Pullman App. 94a 
n.16); Swint II, 539 F.2d at 89 (Pullman App. 114a). In any 
event, the District Court’s factual findings—that Pullman 
“ actively sought and trained blacks” to be welders, imposed a 
training requirement for the non discriminatory reason of “pre­
vent [ing] on-the-job training of unqualified whites,” and did so 
only after “ black employees were given an opportunity to dem­
onstrate their skills as welders” —remain undisturbed. Swint 
III, 15 FEP Cas. (BNA) at 152 & n.21 (Pullman App. 170a & 
176a n.21).10

10 Petitioners’ selective quotation from the testimony of Harry 
Debrow, a black equal employment officer at Pullman, (Pet. at 27



12

B. The Purported Conflicts Among The Circuits Do Not With­
stand Analysis

None of petitioners’ purported conflicts among the Circuits 
withstands analysis.

1. Petitioners Improperly Characterize The Focus Of The 
Court Below As Restricted To The Neutrality Of The 
Literal Terms Of The Seniority Rules

Petitioners first assert that the Eleventh Circuit is in conflict 
with several other Circuits in confining its assessment of the 
validity of a seniority system to the neutrality of the rules as 
written. This assertion mistakes the nature of the inquiry under­
taken by the District Court and affirmed by the Court of 
Appeals. By their careful consideration of all of the factors sug­
gested in Teamsters and Stockham Valves, both courts below 
plainly did not restrict their focus to the literal terms of the 
Pullman-USW system. The Court of Appeals concluded, more­
over, that on the record it could not say that “ the district court 
attributed insufficient significance to plaintiffs’ circumstantial 
evidence in the face of considerable direct evidence that the sys­
tem was not the product of discriminatory intent.” Swint XI, 
854 F.2d at 1577 (Pet. App. 175a-176a).

Ultimately, petitioners are questioning the holding of this 
Court in Teamsters. Central to that decision is the distinction 
between discriminatory practices—independent of a seniority 
system—that may impact upon seniority rights and intentional

n. 12), indicates only that whites may have been unwilling to train more 
senior employees, whether black or white, who could then displace 
them. This emerges clearly from Debrow’s testimony on direct:

“A * * * So this young man, he agreed to go to school. Nobody 
there in his department would teach him how to do the job. The 
operators who were there said they weren’t going to train him 
because he had seniority over them.
“ Q Was the man you are talking about a Black man?
“A Black and White. It was a White man operating at the present, 
and they wouldn’t train him.” (1984 Tr. 121-22) (emphasis sup­
plied)



13

discrimination in the adoption or maintenance of the seniority 
system itself. There was no question in the Teamsters case that 
the union and employer had engaged in purposeful discrimina­
tion by deliberately barring black employees from higher­
paying line driver jobs. The non-transferable departmental 
seniority system, in turn, perpetuated the effects of that dis­
crimination by discouraging blacks from transferring thereafter 
to the higher-paying jobs and forfeiting their seniority. Never­
theless, this Court held that the seniority system itself was 
shielded under Section 703(h) in the absence of a finding of dis­
criminatory intent in the adoption or maintenance of the sys­
tem.

Findings of intentional discriminatory practices that affect 
senority rights—such as the exclusion of black employees from 
higher-paying jobs—certainly warrant specific remedies for the 
victims of those practices, including awards of competitive sen­
iority under Franks v. Bowman Transportation Co., 424 U.S. 
747 (1976). But to hold, as petitioners suggest, that such 
practices—insofar as they impact upon entitlements under a 
seniority system—therefore render the entire seniority system 
invalid, would undermine the thrust of Teamsters and would 
require relief for a vastly larger group that would not otherwise 
qualify for relief under Franks. This Court has therefore con­
cluded repeatedly that “ ‘absent a discriminatory purpose, the 
operation of a seniority system cannot be an unlawful employ­
ment practice even if the system has some discriminatory conse­
quences.’ ” Lorance v. A T  & T, supra, 109 S. Ct. at 2265, 
quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 
82 (1977). Rather, there must be a showing—not made in this 
case—of discriminatory purpose infecting the system itself. See 
id. at 83 n. 13; see also United Air Lines, Inc. v. Evans, 431 U.S. 
553, 558-60 (1977).

Moreover, none of the cases cited by petitioners in their 
endeavor to chart a conflict embraces their expansive theory or 
is inconsistent with the ruling below by the Eleventh Circuit. To 
the extent these cases are remotely on point, they involve appel­
late affirmance of trial court findings that the seniority system 
itself was adopted or maintained with discriminatory intent. See



14

Wattleton v. International Brotherhood o f  Boiler Makers, 
Local 1509, 686 F.2d 586, 590-91 (7th Cir. 1982), cert, denied, 
459 U.S. 1208 (1983) (affirming trial court’s factual finding that 
the seniority system itself was negotiated and maintained for 
illegal discriminatory purpose) Taylor v. Mueller Co., 660 F.2d 
1116, 1123 (6th Cir. 1981) (requiring proof of an “ illegal pur­
pose [that] entered into the negotiation of the seniority sys­
tem”); Mitchell v. Mid-Continent Spring Co., 583 F.2d 275, 
280 (6th Cir. 1978), cert, denied, 441 U.S. 922 (1979) (overt sex- 
based seniority lists; no discussion of Section 703(h)).

2. IAM’s Motive May Not Properly Be Imputed To 
Pullman

Petitioners also urge this Court to resolve a putative conflict 
between the Eleventh Circuit and the Tenth and Fourth Circuits 
over whether an employer can escape liability under Title VII by 
claiming that it was merely accommodating the discriminatory 
preferences of a union. This, too, misstates what the Court of 
Appeals held below.

The Eleventh Circuit simply followed this Court’s instruc­
tions in Swint VII:

“ IAM’s discriminatory motivation, if it existed, cannot be 
imputed to USW. It is relevant only to the extent that it 
may shed some light on the purpose of the USW or the 
Company in creating and maintaining the separate senior­
ity system at issue in these cases. A discriminatory intent 
on the part of LAM, therefore, does not control the out­
come of these cases. Neither does the fact, if true, that 
USW acquiesced in racially discriminatory conduct on the 
part of the IAM. Such acquiescence is not the equivalent 
of a discriminatory purpose on the part of the USW.” 
Swint VII, 456 U.S. at 292 n.23 (Pullman App. 248a).11

11 Recognizing the force of this Court’s Swint VII instructions, peti­
tioners abandoned in the latest appeal their contention that the USW 
acted with a discriminatory purpose (see note 1, supra). They neverthe­
less struggle to keep Pullman in the case by contending, for the first 
time in this Petition, that this case somehow “also involves” the valid­
ity of the Pullman-IAM system (see id.).



15

The Court of Appeals did not ignore evidence of the IAM’s 
possibly racial motives. Rather, the court held—in agreement 
with the District Court—that there was “ nothing” in the record 
“ to suggest that Pullman acted with discriminatory intent in 
negotiating or maintaining nontransferable seniority.” Swint 
XI, 854 F.2d at 1577-78 (Pet. App. 175a-178a) (emphasis 
added).

The cases cited by petitioners in support of a purported con­
flict among the Circuits on this issue are either off the mark, see 
Robinson v. Lorillard Corp., 444 F.2d 791, 799 (4th Cir.), cert, 
dismissed, 404 U.S. 1006 (1971) (jpie-Teamsters decision apply­
ing disparate impact analysis), or simply involve an application 
of the Teamsters-Stockham Valves factors to a different set of 
facts, see Sears v. Bennett, 645 F.2d 1365 (10th Cir. 1981), cert, 
denied, 456 U.S. 964 (1982).12

3. The Court Below Properly Placed The Burden Of Per­
suasion On Plaintiffs

Finally, petitioners maintain that the Eleventh Circuit is in 
conflict with other Circuits in placing on plaintiffs the burden 
of persuading the trier of fact that a seniority system is the 
product of discriminatory intent. This burden-allocation is con­
sistent, however, with decisions of this Court that Section 
703(h) “ unequivocally mandates that there is no statutory vio­
lation in the absence of a showing of discriminatory purpose.” 
Trans World Airlines, Inc. v. Hardison, supra, 432 U.S. at 83 
n.13; see also Swint VII, 456 U.S. at 289; Teamsters v. United 
States, supra, 431 U.S. at 353; United Airlines, Inc. v. Evans, 
supra, 431 U.S. at 553-54. This Court’s recent decision in Lor- 
ancev. A T  & T, supra, 109 S.Ct. 2261, makes clear that Section 
703(h) does not create an affirmative defense to be proved by

12 In Sears, decided before this Court’s Swint VII decision, the appeals 
court’s brief discussion of employer liability was not predicated on an 
imputation of the union’s discriminatory motives to the employer. 
Rather, employer liability was found because the application of the 
Teamsters-Stockham Valves factors led to the conclusion that the sen­
iority system was not bona fide under Section 703(h). Moreover, the 
employer in that case had settled, rendering the court’s discussion of 
the employer’s liability dictum. See 645 F.2d at 1368.



16

defendant, but rather stipulates that discriminatory intent is an 
element of the statutory offense to be established by plaintiff. A 
contrary interpretation of Section 703(h) is:

“ foreclosed by our cases, which treat the proof of discrim­
inatory intent as a necessary element of Title VII actions 
challenging seniority systems. At least as concerns senior­
ity plans, we have regarded subsection (h) not as a defense 
to the illegality . . . but as a provision that itself ‘deline­
ates which employment practices are illegal and thereby 
prohibited and which are not.’ Franks, 424 U.S., at 758, 
96 S. Ct., at 1261. Thus, in American Tobacco Co. [v. 
Patterson, 456 U.S. 63 (1982)] we determined § 703(h) to 
mean that ‘the fact that a seniority system has a discrimi­
natory impact is not alone sufficient to invalidate the sys­
tem; actual intent to discriminate must be proved.’ 456 
U.S., at 65, 102 S. Ct., at 1535.” Lorance v. A T  & T, 
supra, 109 S.Ct. at 2267.13

Moreover, petitioners fail to identify any conflict among the 
Circuits on the issue. Two cases—cited in other parts of the 
Petition—place the burden of persuasion properly on the plain­
tiff. See Wattleton v. Boiler Makers, supra, 686 F.2d at 590; 
Sears v. Bennett, supra, 645 F.2d at 1370. Although the Sixth 
Circuit initially referred to the issue in an ambiguous manner, 
see EEOC v. BallCorp., 661 F.2d 531, 538-39 (6th Cir. 1981), it 
has subsequently stated unequivocally—as did the Eleventh Cir­
cuit here—that the burden is on the plaintiff. See Black Law

13 Petitioners’ reliance on decisions arising under other statutes—the 
Equal Pay Act, 29 U.S.C. § 206(d) (1982) and the Age Discrimination 
in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982 & Supp. V 
1987)—is misplaced. The Equal Pay Act does not require proof of dis­
criminatory intent; a statutory violation is made out by demonstrating 
unequal pay between men and women in equal jobs. See, e.g., Peters 
v. City o f  Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987), cert, dis­
missed, 108 S. Ct. 1101 (1988). The seniority plan defense under Sec­
tion 4(f)(2) of ADEA, 29 U.S.C. § 623(f)(2), does not come into play 
until what would otherwise be a statutory violation already has been 
proven. See, e.g., Henri v. National Geographic Society, 819 F.2d 824, 
827-28 (7th Cir.), cert, denied, 108 S. Ct. 454 (1987).



17

Enforcement Officers A ss’n v. City o f Akron , 824 F.2d 475, 
481 (6th Cir. 1987).14

C. Petitioners’ Challenge To The Validity of a Facially Neutral 
Seniority System Adopted In 1954 Is Time-Barred

The departmental seniority system challenged in this case was 
established as a result of the 1954 collective bargaining agree­
ment between Pullman and USW. See Swint V, 17 FEP Cas. 
(BNA) at 732 & n.2 (Pullman App. 184a & 203a). Under the 
Court’s Lorance v. A T  & T  decision, a Title VII challenge to a 
facially neutral seniority system, as here, requires the filing of a 
charge with the EEOC within 180 days of adoption of the sys­
tem, or it is time-barred. As this Court observed: “ allowing a 
facially neutral system to be challenged, and entitlements under 
it to be altered, many years after its adoption would disrupt 
those valid reliance interests that § 703(h) was meant to pro­
tect.” Lorance v. A T  & T, supra, 109 S. Ct. at 2269.

14 Petitioners point also to the Fifth Circuit in Bernard v. Gulf Oil 
Corp., 841 F.2d 547, 551, 554 (5th Cir. 1988). The Bernard court, 
however, did not hold that a defendant has the burden of proving that 
its seniority system is valid; at the pages cited, the court simply restated 
plaintiffs’ characterization of the issues as including defendant’s fail­
ure of proof with respect to Section 703(h). Moreover, as cited by the 
Court of Appeals below, the Fifth Circuit previously has indicated its 
view that the burden rests with plaintiff. See Harris v. Plastics Manu­
facturing Co., 617 F.2d 438, 440 (5th Cir. 1980) (per curiam).



18

CONCLUSION

Petitioners are seeking review of findings of fact adopted by 
both courts below and present no significant legal issue or con­
flict among the Circuits warranting this Court’s resolution. The 
Petition therefore should be denied.

O f Counsel:
C.V. Stelzenmuller 
Burr & Forman 
3000 SouthTrust Tower 
Birmingham, Alabama 35203 
(205) 251-3000

Respectfully submitted,

Floyd Abrams*
Thomas J. Kavaler 
Samuel Estreicher 
Taryn V. Shelton 
Peter Phillips
Cahill Gordon & Reindel 
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000
* Counsel o f  Record fo r  

Respondent



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