Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974

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February 13, 1975

Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974 preview

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  • Brief Collection, LDF Court Filings. Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974, 1975. dc9a6461-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8751c668-5842-40b5-9252-22e6e24f9b0f/albemarle-paper-company-v-moody-petition-for-writ-of-certiorari-filed-october-7-1974-and-certiorari-granted-december-16-1974. Accessed May 13, 2025.

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O ctober T erm . 1970

No. 74-389

A l b e r m a r u  P a p e r  C o m p a n y , k t  a l „  Petitioners,

v.

JosEDi P. M oody, e t  ai.., Respondents.

Oa  u m  C l- CERl  i o r a r i  t o  THE UNITED S T  iTFS C'OUTT 
O f  APPEALS FOR THE FOURTH CIRCUIT

rilTiTiON FOk n u n  O! CERTIOR \ju  n r  ri) f i r m i r p  -
CERTIORARI GRANTED DECEMMER 1974 * 19/4

I 'rancis V. Lowden, ]a. 
T hom a s  j .  M anley 
A bram W. Vandf.rM eer , Jr . 

H u n t o .v . V teeia m s. G ay 
& G ibson

700 East Main Street 
Richmond, Virginia 23219

J ulian  R. A llserook , J r . 
.allser o o k . Re n to n . K.nott . 

Allsbrook  & C ranford 
P. O. Box 100 
200 Becker Drive 
Roanoke Rapids. North Caioiina

G ordon  G. B u s d ic k e r  
F aegre & B e n s o n  
1300 Northwestern Bank Hleio. 
-Minneapolis, Minnesota 55402

C h a r l e s  O ’C o n n e u  
P. O. Box 3260 
St. Paul. Minnesota 55365

C h a r les  F . B la n c h a r d  
B la n c h a r d , T u c k e r . T w ig g s  

. oC D i.NsON 
P. O Bom Drawer 30 
Raleigh. N'ortn CanC.na 27602

l

*



INDEX
Page.

I. O p in io n s  B e l o w ................. .......... .................. ................................ ........  ]

II. J u r is d ic t io n  ............................. ........................................................ .......... \

III. St a t u t e s  A n d  R e g u l a t io n s  I n v o l v e d .............. ............... ........... ]

IV . Q u e s t io n s  P r e s e n t e d  F or  R e v i e w ________________ ____ .... 3

V . St a t e m e n t  O f  T h e  C a s e .................. ....... ..........................................  4

VI. S u m m a r y  O f A r g u m e n t  _____________ _____ _______________  23

VII. A r g u m e n t

A. The District Court Correctly Refused To Enjoin The
Use Of Albemarle’s Testing Procedures._____________27
1. Introduction__________________________________  27
2. The Evidence In Tills Case Sliows Albemarle’s Tests

Were Not Discriminatory._____________________   28
3. Albemarle Demonstrated Its Tests To Be A Reason­

able Measure Of Job Performance.________________32
(a) Defendants’ Tests Were Found To Be Job Related

By The District Court.________________________32
(b) The Findings Of The District Court Have Not

Been Shown To Be Erroneous._______________34
(i) Job Analysis______ ___________________36

(51) Supervisors’ R atings_______________ ,__  39
(in) Business Necessity'______________ ;______ 43

B. In Any Event The.Court Of Appeals Erred In  Not
Remanding The Issue To The District Court.________47

i



Page
C. The District Court Had Traditional Equitable Discretion

To Determine Whether Back Pay Was An Appropriate
Remedy.................................. ....................................  59
1. Title VII Leaves I he Award Or Denial Of Back Pay

To The General Equitable Discretion Of The Dis­
trict Courts.....................................................................  50

2. The Discretion Of A District Court Regarding The
Back Pay Remedy Should Be Guided By Traditional 
Equitable Principles......................................................... 55

3. Even Under A “Special Circumstances” Standard, The
District Court Was Justified In Denying Back Pay.....  61

D. Back Pay Should Not Be Awarded To Class Members
W ho Did i\ot Pile Charges With The Equal Employment
Opportunity Commission.................. ............. .....................' g]

VIII. C o n c l u s io n  ........;............................................................................. _ 57

1. Affirm The District Court.............................................._ 57
2. Reverse The Court Of Appeals And Remand To The

District Court For Further Proceedings........................  67



TABLE OF c i t a t i o n s

Cases' : .. _.
Page

Austin v. Reynolds Metals Co.. 327 F.Supp. 1145 (E.D. Va. 1970) 64 

Barlow v. Collins, 397 U.S. 159 (1970) 35
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436 (5'th. Cir.

" 1974), cert,denied, ...... UjS. Z : ,  «  tJiSX.Wl 3306- (U.S.,
Nov. 26, 1974) 57

Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st Cir. 1974) 37 

Rowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. i969) ..54, 62

Bridgeport Guardians, Inc. v. Civil 'Sen-Ice Commission, 482 F.2d 
1333 (2nd Cir. 1973) .................................................•'....... 23> 24> 28

Carter v. Gallagher, 452 F.'2d '315 (8th Cir.), cert, denied, 406
u .s . 950 (1972) -28

Castro v. Beecher, 459 F.‘2d 725 (lst'Cir. 1972) 34

Chance v. Board of Examiners, 330 F.Supp. 2C3 (S.D. N.Y. 1971) .. 31

Commissioner v. Duberstein, 363 U.S. 278 (1960) .......... -.............. 50

Cojc Vf United States Gypsum, 284 F.Supp. 74 (N.D. Irid. 1968),_ 
afl’d., 409 F~2d 289 (7 th^ ir.'i969)

Curtis v. Loether, 415 U.S. 189 (1974) ....................................... 26, 53

^Dent v. St. Louis & S .F . Ry. Co.,^406 F!2d 399 (Sth^'Cir. 1969) ":../ 65

Duhon v. Goodyear Tire & Rubber Co., 494 K2d 81/ (5th Cir.  ̂
1974) ---- 51

England v. Louisiana Medical Examiners,' 375 "U.S. 411 (1964)
b z 2 5 / 4 8

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) ....24, 36

Fishgold v. Sullivan Dry dock and 'Repair Corp., 328 U.S. 275^ 
(1973) ^ IZ ^ Z Z Z Z Z ^ Z Z Z X X X X :::: :: :: :: : ::^ :: :: :: : ;: :: : . .:  35

m



Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir.
1974), cert, denied, .....  U.S........ , 43 U.S.L.W. 3330 (U.S.
Dec. 10, 1974) ............... ................................................................ 62

Griffin v. Pacific Maritime Ass’n., 478 F.2d 1118 (9th Cir.), cert, 
denied, 414 U.S. 859 (1973) .......................................................... 65

Griggs v. Duke Power Co., 410 U.S. 424 (1971) ....18, 23, 27, 31, 32,
33, 34, 35, 53, 57 •

Guardians Ass’n v. Civil Service Commission, 490 F.2d 400 (2nd 
Cir. 1973) .......................................................................................  34

Harper v. Mayor and City Council of Baltimore, 359 F.Supp.
1187 (D. Md.), modified sub noin. Harper v. Kloster, 486 
F.2d 1134 (4th Cir. 1973) ..........................................................  31

Head v. Timken Roller Bearing Co., 486 F.2d S70 (6th Cir. 1973)
51, 53, 57, 62

Hecht Co. v. Bowles, 321 U.S. 321 (1944) .....................................  53

Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974)
23, 28

Johnson v. Georgia Highway Express, 417 P’.2d 1122 (5th Cir.
1969) ..._...................................................    56

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th 
Cir. 1974) ..!......................................................................... ..... 57, 62

Kirkland v. Department of Correctional Services, 374 F.Supp.
1361 (S.D. N.Y. 1974) .............. :.................................................... 40

Kober v. Westinghouse Electric Co., 480 F.2d 240 (3rd Cir. 1973)
26, 54, 56, 61

LeBIanc v. Southern Bell Telephone and Telegraph Co., 460 F.2d 
1228 (5th Cir.), cert, denied, 409 U.S. 990 (1972) ........... 54, 56

Manning v. General Motors Corp., 466 F.2d 812 (6th Cir. 1972) 54

Mayor v. Educational Equality League, 415 U.S. 605 (1974) ....23, 31



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

23, 24, 25, 26, 28, 43, 48, 65

Newman v. Piggy Park Enterprises, Inc., 390 U.S. 400 (1968)..54, 63

NLRB v. Boeing Co., 412 U.S. 67 (1973) ............................... ....... 35

Norman v. Missouri Pac. Ry. Co., 497 F.2d 596 (8th Cir. 1974),
cert, denied,.... U.S..... , 43 U.S.L.W. 3433 (U.S. Jan. 28, 1975) 56

Parmer v. National Cash. Register Co.. 503 F.2d 275 (6th Cir
1975) ..................................................., ...._...._................ 43

Pennsylvania v. Glickman, 370 F.Supp. 724 (W.D. Pa. 1974) .... 41

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 
1974) ................................................ ................... ;..............51, 52, 57

Phelps Dodge v. NLRB, 313 U.S. 177 (1941) .................................  52

Porter v. Warner Holding Co., 328 U.S. 395 (1946) ............ ......... 60

Quarles v. Phiiip Morris, 279 F.Supp. 505 (E.D. Va. 1968) __ 14, 15

Rental Development Corp. of America v. Laver)', 304 F.2d 839 
9th Cir. 1962) ............ _......................... ....................................26, 59

Richardson v. Miller, 446 F.2d 1247 (3rd Cir. 1971) ............ ..... ,. 65

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), petition for 
cert, dismissed 404 U.S. 1006 (1971) .... ................................ 59  ̂ 61

Robinson v. Lorillard Corp'., 319 F.Supp. 853 (M.D. N.C. 1970).. 18

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972) ___  40

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir.
1972) ...— ......... ................. ............................... .......................54, 56

Shultz v. Mistletoe Express Service, Inc., 434 F.2d 1267 (10th Cir. .

Snyder v. Harris, 394 U.S. 332 (1969) ........ .......................27, 62, 66

Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 70 (N.D. 
Ohio 1973) ................................ .................... ...........................27, 66

v



Page

Ste,;b- V- Nati0n'vide Mutual Ins- Co-> 382 F-2d 267 (4th Cir 1967), cert, denied, 390 U.S. 910 (1968) ................  ‘ g5

SteA k 01972)Internati0nal ^  C°” 352 F‘SuPP- 238 (S.D.
‘ .................... ....... ...................  - .................................  38

Untied States v. Dillon Supply Co., 429 F.2d 800 (4th Cir. 1970) .. 56 

United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973)
24, 25, 26, 28, 31, 34, 48, 55

United States v. Local 189, Papermakers Union, 301 F.Sttpp. 906

S  u . s l l ^ . t o , 6 K‘2d 980 (5th CIr- ,969)-
'  .................................... —....................... 15

United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973)
53, 57, 60

United States v. St. Louis & S.F. Ry. Co., 464 F.2d 301 (8th Cir 
U72), cert, denied, 409 U.S. 1107............ ........  gg ^  •

United States v. United States Gypsum Co., 333 U.S. 364 (1948).. 43

VUChn 1973? V‘ CiVi' SerVke Comir‘ission> 433 U2d 387 (2d
' .......................... ................................................ 24, 35, 37

Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974) 57

Wai ? nS,Vo i COtt PapSr C°->.....  R 2 d .....  6 FEP Cases 511 (S D
'  ...... ...................................... - ............... - ...........33, 39

'^1973? °f K'nS °f 358 F-Supp- 684 (ED- Pa-
............... ....... ....................................... ~......- ........ 27, 66

Western Addmon^Community Organization v. Alioto, 340 F.Supp.
' ------------------------------------ --------------  40

W°c S  V1973)th AmCriCan Rockwe11 CorP-> 480 F.2d 64-1 (10th
........... ............. ................................................. 23, 28

' ' ’T f o th a r .T s S ?  C°' V' P°°' Co,,s,""=do"  C»-. 314 r.2d 405 .
.................  ................................  50

Zahn v. International Paper Co., 414 U.S. 291 (1973) ....26, 62, 66

VI



Statutes and Regulations
Page

29 U.S.C. § 160(c) ............ ....................................... ..........................  52

42 U.S.C. § 2000a................................................................................  51

42 U.S.C. § 2000a-1 (a) ..._........... ........... .....................................5]) 55

42 U.S.C. § 2000a-2......................................................................  51

42 U.S.C. § 2000a-3(b) .................. ........ ....................... ' ____ 55

42 U.S.C. § 2000e-3(a) .......... ................. ..........................................  51

42 U.S.C. § 2000e-5(a) ........................ ......................... ..............  g3

42 U.S.C. § 2000e-5(g) ............ ................. ...............................25, 51, 55
42 U.S.C. § 2000e-5(k) .......... ................. .................... _ _ 5g

Fed. R. Civ. P. 23, 54(c), 8 2 ............ ...............:.... ................J7j 27, 58

Equal Employment Opportunity Commission, “Guidelines on Em­
ployment lesting Procedures,” 29 C.F.R § 1607 1 et sea
197°) ........................ - ......... -----............................... :..... 34, 35; 40

Other Authorities
Ainsworth, Paper, The Fifth Wonder (2d Ed. 1959) _________ ___  4

American Psychological Ass’n., Inc., Standards for Educational and 
Psychological Tests and Manuals (1966) ........................  34 37

Barrett, Gray Areas in Black and White Testing, 46 Harv Bus 
Rev. 92 (1968) ......... .................... ........................ ;_____ ‘ ' 3Q

BNA, Daily Labor Report No. 8 (Jan. 13, 1975) .............. ............  36

Boehm,'A'egro-White Differences in Validity of Employment and 
rrammg Selection Procedures, Summary of Research Evidence,
55 Journal of Applied Psychology, 33 (1972) ____ ___ ____ ’ 45

Cooper and Sobol, Seniority and Testing Under Fair Employment 
Laws: A General Approach to Objective Criteria of Hiring &  
Promotion, 82 Harv. L. Rev. 1598 (1969) ........ .... ..............  40

111 Cong. Rec. 12819 (1964) .............. ......... ........... ^

vii

4



Page
E. F. Wonderlic and Assoc., Inc., Negro Norms, A Study of 38,452 

Job Applicants for Affirmative Action Programs (1972) .........  30

Equal Employment Opportunity Commission, “Guidelines on Em­
ployment Testing Procedures,” BNA Daily Labor Report No.
174 (Sept. 7, 1966) ....... ,.........................................................16, 35

Gael & Grant, Employment Test Validation for Minority and Non- 
minority - Telephone Company Service Representatives, 56 
Journal of Applied Psychology 135 (1972) ........................ ...... 41

H.R. Rep. No. 914, 88th Cong. 1st Sess. (1963) ........................ ....  53

Schmidt, Berner & Hunter, Racial Differences in Validity of Em­
ployment Tests: Reality or Illusion, 58 Journal of Applied 
Psychology 5 (1973) .................................................................  41

L’III



I.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the 
Fourth Circuit is reported at 474 F.2d 134 (4th Cir 1973). 
The decision and order of the United States District Court 
for the Eastern District of North Carolina is reported in
.....  F.Supp ... 4 FEP Cases 561 (E.D.N.C. 1971), and
earlier rulings by that Court on various motions are reported 
at 271 F.Supp. 27, i FEP Cases 234 (1967); 2 FEP Cases 
1002, 1081 (1970).

II.

JURISDICTION

The judgment of the Court of Appeals for the Fourth 
Circuit was entered on February 20, 1973. A timely petition 
for rehearing en banc was granted on June 25, 1973. After 
briefing to oral argument before the en banc court, a ques­
tion of appellate procedure was certified to This Court by 
the Court of Appeals on December 6, 1973. The opinion of 
This Court on the question certified was delivered on June 
17, 1974. Pursuant thereto, the Court of Appeals, on July 
22, 1974, vacated its earlier order granting the petition for 
rehearing en banc and denied Petitioner’s petition for re­
hearing. A petition for a writ of certiorari to the Court of 
Appeals for the Fourth Circuit was filed on October 7, 1974 
and was granted on December 16, 1974.

This Court’s jurisdiction is invoked under 28 U S C  
§1254(1).

III.

STATUTES AND REGULATIONS INVOLVED

A. Section 703(h) of the Civil Rights Act of 1964, P. L 
88-352, 78 Stat. 255, 42 U.S.C. §2000e-2(h):



2

Notwithstanding any other provision of this title, it 
shall not be an unlawful employment practice for an 
employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employ­
ment pursuant to a bona fide seniority or merit system, 
or a system which measures earnings by quantity or 
quality of production or to employees who work in dif­
ferent locations, provided that such differences are not 
the result of an intention to discriminate because of 
race, color, religion, sex or national origin, nor shall it 
be an unlawful employment practice for an employer 
to give and to act upon the results of any professionally 
developed ability test provided that such test, its ad­
ministration or action upon the results is not designed, 
intended or used to discriminate because of race, color, 
religion, sex or national origin. It shall not be an un­
lawful employment practice under this title for any 
employer to differentiate upon the basis of sex in deter­
mining the amount of the wages or compensation paid 
or to be paid to employees of such employer if such 
differentiation is authorized by the provisions of section 
6(d) of the Fair Labor Standards Act of 1938 as 
amended (29 U.S.C. 206(d) ).”

B. Section 706(g) of the Civil Rights Act of 1964 P L 
88-352, 78 Stat. 255, 42 U.S.C. §2000e-5(g):

If the couit finds that the respondent has intentionally 
enSagecl >n or is intentionally engaging in an unlawful 
employment practice charged in the complaint, the 
court may enjoin the respondent from engaging in'such 
unlawful employment practice, and order suchaffinna- 
tive action as may be appropriate, which may include 
reinstatement or hiring of employees, with or without 
back pay (payable by the employer, employment 
agency, or labor organization, as the case may be, re­
sponsible foi the unlawful employment practice) In­
terim earnings oi amounts eamable with reasonable 
diligence by the person or persons discriminated against



3

shall operate to reduce the back pay otherwise allow­
able.”

* * *

C. Rule 23, Federal Rules of Civil Procedure.

D. The “Guidelines on Employment Selection Proced­
ures” 35 F.R. 12,333 (August 1, 1970); 29 CFR §§1607.1- 
1607.14.

This has been reprinted in the Single Appendix hereto 
at pages 305-320.

IV.
QUESTIONS PRESENTED FOR REVIEW

A. Whether the District Court’s refusal to enjoin Albe­
marle’s use of employment tests was error as a matter 
of law.

B. Whether the Court of Appeals usurped the powers and 
function of the District Court by failing to remand the 
issues on testing.

C. Whether the District Court had traditional equitable 
discretion to determine whether back pay was an ap­
propriate remedy.

D. Whether a class action for back pay under Rule 23 of 
the Federal Rules of Civil Procedure is inherently in­
consistent with the Congressional intent behind the re­
medial provisions of Title VII, particularly as to class 
members who have not filed a charge with the Equal 
Employment Opportunity Commission.



-a'-* «-• am,I 1,1,

V .

STATEMENT OF THE CASE

This is an action brought on August 25, 1956 bv four 
black employees' of Petitioner's Roanoke Rap ds No-.I

v i? o tb T c -T ?  r a/ a private d “  ^t" e ^  v'd ivjghts Act of 1964. ( \  6 )2 

tiom 'm tQ O  7 " T  mi" , a t ROan°k t ^ P M s  began opera-

operations, papermaking

canv thE’ Albemarle Paper Manufacturing Com
L a ^ W,he , t h  3 iqUireu ‘he mUI- * * * * *  l°  " x x ta n iw  and - echnologically sophisticated machinery And
equipment necessary to bring the mill to its present i 000
•on per day capacity and to make the mill efficiru, V H

t - i m a m -P T ’ ^  Lxhiblt **o. 36A, pp. 68-69)
Dlrx°f V  T ke Rapids mil1 is a Ktodem, highly com- 
P ci ity, employing approximately 650 people which 
operates continuously, 24 hours a dav 7 A ?  P ’ , 
days a year. }’ 7 days a week> 3G2

A pulp and paper mill may be simply described3 a
complex,aclity in which raw m a te ria l U "

,(A ........»reterence, to the record are to a d e ^  i f f i S f  & £ &  c t d

Ainsworth, pjper, The 9 J ° i  v '7  derives from
Judge observed the p m c 2  as !t L S  Z  ? e S t r i c t
during Ins view of the facility Defendant’̂  RaPids Mill
Plaintiffs Exhibit No. 34A, ppy321?367 E* nblt N a  19- See also



5

chemicals and water arc combined in a cooking: or digesting 
operation to separate wood fiber to be made into paper 
from the lignin and other materials found in the raw wood, 
the separated fiber in the form of pulp being delivered to 
complex, intricate paper milling machines and the residue 
lignin, chemicals, water and waste being recycled through 
massive recovery furnaces, precipitation and filtration 
equipment to recover the chemicals and to prevent air and 
water pollution.

Like ncarlyr all paper mills, the Roanoke Rapids mill is 
organized into functionally distinct departments. In order 
to provide on-the-job training for functionally related jobs 
and to overcome the lack of an adequate specialized labor 
market in the locality', each of the departments is organized 
into functionally related lines of progression through which 
employees can move into more demanding jobs as vacancies 
occur, on the basis of seniority', ability and experience. En­
try' into a line of progression is generally' from the Extra 
Board, a reservoir of employees available as needed to staff 
entry level jobs in the various lines of progression. (A 88- 
89, 104)

Each of the functionally distinct departments contri­
butes to the central purposes of paper-making. The Wood- 
yard Department gathers and prepares the wood for fur­
ther processing/

4 The wood is delivered (by both railroad and truck) in the form 
of Chips, sawdust and logs. The Chip Unloader registers chips and 
sawdust receipts, records the condition of the particular shipment, 
operates a screen to take foreign matters out of the chips or sawdust, 
and then operates conveyor equipment to distribute the screened' 
material.

Logs are unloaded by the Large Crane Operator and then are un­
loaded by the Long Log Stacker Operator. Next the logs are debarked 
and converted into chips by means of a conveyor system, debarking 
drums, and Chippers (Nos. 1 and 2). The Chain Operator controls the 
conveyor from the woodpile dirough the debarking drum. The Chipper



6

At the time of the trial in this case, the Woodyard De­
partment was organized into a line of progression for 
seniority and promotion, training and flexibility of the 
workforce as follows (A. 109):

UuIlcJozcr
Operator

t___

WOOD YARD DEPARTMENT
Crane Operator (American)

t
Crane Operator 

(Large)
t

Long Log Operator
T

Log Stacker Operator
T

Small Equipment Operator 
A

Oiler
T

Chip Unloader 

Clapper Operator No. 2
T

Chain Operator
T

Chipper Operator No. 1
o- TTractor Operator «

. t
Chip Bin Operator

' f
Laborer
(Start)

— '■ ‘ S
Auxiliary functions in the Woodvard are performed hr rvi 

who services the equipment in the Woodvardmhe Buhdozer Operator'



7

The Pulp Mill Department is concerned with the con­
version of wood chips into pulp,5 through a cooking opera­
tion in a chemical solution under high temperature and 
pressure to separate the wood fibers for subsequent con­
version into paper, with the residues in the cooking solu­
tions being sent to a recovery operation so that the very ex­
pensive chemicals can be reclaimed for subsequent recy­
cling.6

At the time of trial in this case, the Pulp Mill Depart­
ment was organized into lines of progression for seniority 
and promotion, training and flexibility of the workforce as 
follows (A. 109):

5 Soft wood is basically 50% cellulose, 30% lignin and 20% car­
bohydrates, etc. The cellulose is composed of innumerable fibers, finer 
than a human hair and 2 to 4 millimeters in length. The fibers are 
held together by the lignin. The pulp process separates the fibers by 
dissolving the lignin binder in chemical solutions, which in proper 
concentration does not seriously attack the fibers. The sodium chemicals 
used in the process are reclaimed and reused. While the basic process is 
simple, its accomplishment on a scale required by a modem paper 
mill is technologically complex.

c The cooking process is the responsibility of the Digester Operator, 
who directs the charging of the cookers with the proper mix of pine, 
hardwood chips, sawdust and chemical solutions and controls the 
temperature and pressures at which this operation must be carried 
out.

Following the cooking process, the cellulose fibers are washed clean 
and the clean fibers are then put in storage tanks for use on the paper 
machines. The washing operation is the responsibility of the Stock 
Room Operator with the assistance of the Stock Room 1st Helper 
and 2nd Flelper.

The C. E. Recovery' Operator, with the assistance of the 1st Helper 
No. 6, Evaporator Operator, 1st Helper No. 5, 2nd Helper, and Utility- 
Helper, is responsible for the intricate process of operating the 
recovery- boiler for purposes of reclaiming the chemicals used in the 
cooking process. In that connection, the Caustic Operator, with the 
help of the Lime Kiln Operator, is responsible for reclaiming lime 
for use in the cookers.



- —

Digester Operator 
[Cooker)

t
Stock Room Operator

T
Stock Room 1st Helper

Stock Room 2nd Helper 
A

PULP MILL DEPARTMENT
C. E. Recover)' O perator Caustic O perator

! f
1st H elper No. 6 Lime Kiln O perator

‘‘'E vaporator O perator
t

1st H elper No. 5----------------------
T

2nd H elper
t

U tility H elper

By Products O perator
_  t

hen Used

, tLead loader-Blower
T

Loader
(S tart)

1 he B Paper Mil]7 is concerned with the conversion of 
pulp into paper.s At the time of trial in this case, the B

7 At the time of trial, the mill also had an “A Paper Mill” which 
served the same functions as the B Paper Mill on a much smaller 
p ile  with less intricate machinery. The A Paper Mill is no longer 
in operation. °

® From the Storage tanks at the end of the pulp operation, the 
pulp goes to the Stock Room (Seater Room in old mills), where it 
goes through refiners which cut the fibers into the desired lengths 
and reject that part of the pulp not usable.

After passing through the Stock Room, where the pulp is refined 
and subjected to chemical analysis by the Stock Room Operator helped 
b>,,the, St?ck Room ls* and 2nd Helpers, the pulp is introduced into 
a l ordrmier paper machine. The pulp is there distributed in a thin 
layer onto a moving wire screen and then moves continuously through 
a series of presses and steam-heated driers which remove water, con- 
tro] t.nckness and convert the pulp into a continuous sheet of paper, 
ihis intricate process must be under the constant control of the 
won; force, who must make the proper adjustments in speed of flow 
pressure, temperature, and other factors in order to keep the paper 
of acceptable weight, moisture content and configuration As the 
paper sheet leaves the paper machine, it is wound onto a reel. The



9

Paper Mill was organized into lines of progression for sen­
iority and promotion, training and flexibility of the work­
force as follows (A. 109):

B PAPER MILL DEPARTMENT
PA PER M A C H IN E ST O C K  R O O M

Line of Progression Line of Progression
M achine T ender Stock Room O perator

t T
Back T ender Stock Room 1st Helper

t t
T hird  H and Stock Room 2nd Helper

T
Fourtli H and

t
l i f th  H and

t
Sixth H and

o tSeventh H and
t

Sparc H and No. 4 
(S tart)

In 1965, the Mill began operation of a technologically 
complex modern Power Plant Department to generate and 
distribute electric energy to the mill and steam to the Pulp 
Mill and Paper Mills in an amount necessary to supply the 
needs of a small city. (Plaintiffs’ Exhibit No. 4-9, p. 139). 
This separate highly automated and controlled department 
is organized into a line of progression as follows (A. 109):

POWER PLANT DEPARTMENT
Power Plant Operator

t
1st Helper

t
2nd Helper 

(S tart)

paper machine operates continuously. As one reel of paper is filled 
and removed, a new reel begins to wind without an interruption in 
die process. The reel is then transferred to a winder, where the paper 
is cut and sized.



10

The Technical Service Department is really the quality 
control department of the mill, controlling the quality of 
the raw materials used and of the products produced 
throughout the entire 24-hour-a-day operation. The quality 
control employees must have a working knowledge of phy­
sics and chemistry, although a college degree is not re­
quired. The department is organized into lines of progres­
sion as follows (A. 109):

TECHNICAL SERVICE
M IL L L A B O R A TO R Y

B Mill Shift Testman General L ab  Testm ant
Additive M an T

General Lab Assistant
t A

A Mill I estrnan
T

i '
Sam rlcm an

*T .
Trainee

There are also several additional support-function de­
partments at the mill.9

With modernization of the mill in the early 1950’s10

9 T1^  Boiler Room Department operates small package boilers for 

pp'Ts”  365)” *
The Service Department services the whole mill with general labor 

services, fPlaintiffs Exhibit No. 34A, pp. 330-331). There is also 
a Shipping Crew m the B Mill which weighs and bands the rolls of 
paper at the loading docks and places them in either freight can or 
341-344)r0ad S °r Shipment- (Plaintiffs’ Exhibit No 34A, pp.

ThP r  ^  ‘ ' n  time! Certain, mi11 factions have been discontinued 
he hamvT Department, which prepared surplus pulp for sale to 

othei mills, was discontinued in 1969. ''A 245) The Prnrh,ot n
T ?  "  IS l!,FiniSlr S Cre"' « *  d -o m in u e d k ? ^  7 1  2« r Si I r Cr ,Q ^  shut oown in August of 1971, restarted in part (one 
machine) m 19/2, and shut down entirely again in 1974, 1



11

Albemarle found itself in need of a significantly greater 
number of skilled employees. (A. 346) The Company did 
not have such employees in its employ and there was no 
supply of skilled and experienced paperworkers in the local 
labor market. (A. 347-348) In an effort to develop and 
tiain its own pool of employees who could, with training, 
progress to higher skilled jobs in the lines of progression, 
Albemarle began to require that applicants for its skilled 
lines of progression have a high school education. (Plaintiffs’ 
Exhibit No. 31, p. 219) When Albemarle found that the 
high school education requirement by itself was not an ade­
quate predictor of job success, its Personnel Manager was 
directed to develop a better procedure for the selection of 
employees for successful progression in the skilled lines of 
progression. (A. 329, 339) The Personnel Manager, who 
was professionally trained in industrial psychology, selected 
the Revised Beta Examination (Beta)" and the Bennett 
Mechanical Aptitude Test (Bennett).12 In order to verify 
that the tests werc.,_a useful prcdirinr of joh .,n.
dertook a “concurrent validation study” by comparing 
of the test results of a sampling of employees in the skilled 
lines of progression with supervisory ratings of the em­
ployees. (A. 99) 330) He determined that the Beta correlated 
positively with job performance (A. 3301 and its use at the 
mill continued. (A. 99)13 In 1963, as part of the continuing 
effort to improve the quality of its workforce, Petitioner

, ” .A Professionally developed non-verbal test designed to measure 
the intelligence of illiterate and non-English speaking persons.

skilTsA pr0feSS‘0nall>' deveIoped test for mechanical ability and verbal

13 Petitioner found that the Bennett test did not validate for its 
operations and use of this test was discontinued sometime in 1963 
or be,ore. 1 here is no evidence that any employee or potential employee 
was disqualified by reason of his score on Bennett.



12

added the Wonderlic Test Forms A and B34 (A 9C?n n

^  « P < U £ M
education os ifs ^  ^
off score of 100 nn the p • j r f  d f achleve a cut-
either the Wonderlic A ?**?, Examination and 18 on
100) CSt °r the W°nderlic B test. (A. 99,

c * t ™ T Z l « L : T  A">emar,C had the edu-
employees’ ^

j ° bs it. fo? ^
changes in  tn ill opera tion" , ™ gT o f  c e rta  ,t

r - t r c s S iF ,-W A r a S r ?en try  in to  a to ta l o lfifteen i™ f ° r

to  “ “^%^XssiK3.ta:
»  A professionally developed test of mental ability and reading skills.

gression; Pulp Mill Grew line of pro-
Operator and Caustic Operator l £ S  C' E’ Rccover>'
Department Paper Machine and Beater ^  Paper Ml11 *
B laper Mill Department— Paper M a c h in e  !? °  Progression ;
progression; Product Department—FfnUh r ‘St°,ck Rooin lines of 
tor, finishing Crew Siieeter Operator and^ e, few.'Rev^ ncJer Opera- 
progression; Power Plant Department—Pm ShlPpinff ^ rew lines of 
of progression; Technical Sendee Deoartm! ^  iTJu?* ° perator line 
lines of progression; and Boiler Room^Denan ^  ,aild laboratory 
line of progression. ' K°°m Department—Boiler Operator



13

certain changes in the lines of progression at the mill and, as 
a result, Albemarle was able to reduce the test coverage 
to applicants for entry into a total of twelve lines of progres­
sion situated in six departments.16 Thereafter, further auto­
mation and curtailment of certain mill operations occurred 
(A. 90, 231-232) and by the time of trial in 1971, applicants 
for entry into a total of only eight lines of progression, situ­
ated in four departments, were required to fulfill the testing 
requirements.17

Prior to the passage of the Civil Rights Act of 3 964, there 
were predominantly white skilled lines of progression and 
predominantly black unskilled lines of progression. (A. 89) 
The skilled lines of progression led generally to the higher 
paying jobs in the mill. (Plaintiffs’ Exhibit Nos. 12-15, Ap­
pendices A) The unskilled jobs, however, are among the 
highest paying jobs in the Roanoke Rapids area—jobs 
which paid on the average more than those of policemen, 
schoolteachers, and most other jobs in the area. (Defendant 
Albemarle’s Exhibit Nos. 11-17).

At the time of passage of the Civil Rights Act of 1964, 
there were two Extra Boards, one feeding the skilled lines of 
progression and another feeding the unskilled lines of pro-

16 These were: Pulp Mill Department—Digester Operator, C. E. 
Recover)' Operator and Caustic Operator lines of progression; B Paper 
Mill—Paper Machine and Stock Room lines of progression; Product 
Department (B Paper Mill)—Rewinder Operator, Sheeter Operator, 
and Shipping Crew lines of progression; Technical Sendee Depart­
ment—Mill and Laboratory lines of progression; A Paper Mill Depart­
ment—Paper Machine line of progression; and Power Plant Depart­
ment—Power Plant Operator line of progression.

17 These were: Pulp Mill Department—Digester Operator, C. E. 
Recovery' Operator and Caustic Operator lines of progression; B 
Paper Mill Department—Paper Machine and Stock Room lines' of 
progression; Power Plant Department—Power Plant Operator line 
of progression; and Technical Service Department—Mill and Labora­
tory lines of progression.



1 di­

gression. Employees were placed on the respective Extra 
Boards either as new employees or by election to take Extra 
Board work rather than lay-off in cases of reduction in 
force. (A. 104) Prior to 1965, the Extra board for the 
skilled lines of progression was predominantly white, that 
for the unskilled lines was predominantly black. (A. 104) 

With the passage of Title VII on July 2, 1964, to be 
effective July 2, 1965, Petitioner undertook a series of steps 
to insure that its employment practices would be in compli­
ance with the law. Commencing in 1964, Petitioner began 
an affirmative recruiting program to obtain black graduates 
from high schools for its apprentice maintenance program 
and for its other skilled lines of progression. (Plaintiffs’ Ex­
hibit No. 32, pp. 531-533) While blacks had not been bar­
red from taking the employment tests, after passage of Title 
VII, Albemarle affirmatively sought to have all of its black 
employees who had a high school education take the tests 
so as to make them eligible for transfer into skilled lines of 
progression. (A. 105) Thereafter, in 1965, Petitioner waived 
the educational requirement as to all incumbent employees 
and again sought to have all black employees take the tests. 
(A. 105) In conjunction with the union, Petitioner in 1968, 
organized and funded a school at which its employees could 
acquire the verbal skills necessary to perform jobs in the 
skilled line of progression. (R. 1181-1186).

As the law developed under Title VII it became appar­
ent that seniority systems or other work conditions which 
were racially neutral but which had the effect of perpetuat­
ing past discrimination could be found violative of the 
Act.18

In light of the judicial interpretations of the Act, Peti-

18 In Quarles v. Philip Morris, 279 F.Supp. 505, 516 (E.D. Va. 
1968), tlie Court found “it is also apparent that Congress did not 
intend to freeze an entire generation of Negro employees into dis-



15

tioner, at the first opportunity, took further affirmative 
measures to ensure equal opportunities. In. 1968,..the two 
Extra Boards were merged into a single board. (A. 245-246) 
Employees who had formerly been in unskilled lines of pro­
gression were given temporary assignments to skilled lines 
even though such employees did not meet test and educa- 
tional requirements, if it reasonably appeared from past 
experience that the employees might be able to do some of 
the lower Jobs in the skilled lines of progression. (A. 246)

The collective bargaining agreement at the Roanoke 
Rapids mill which ran for the term September 18, 1965 
through September 15, 1968, provided a system of “job 
seniority” in a line of progression for advancement. (A. 286- 
290) There was a provision for transfers from one line of 
progression to another and from one department to another, 
but there was no seniority . iglit to transfer and the transferee 
did not carry either his rate of pav of his seniority with him. 
It thus appeared to the Company' that under the developing 
law the seniority provisions of the collective bargaining 
agreement at Roanoke Rapids “tended to perpetuate past 
discrimination as had the seniority’ provisions involved in 
Quarles and Crown-Zellerbach.

Therefore, in 1968, in the first contract negotiations fol­
lowing the Quarles and Crown-Zellerbach decisions, the
criminatory patterns that existed before the act,” and held a seniority 
system which tends to perpetuate past discrimination is not bona fide 
under Section 703(h) of Title VII.

On March 26, 1968, the United States District Court for the 
Eastern District of Louisiana, in the case of United States v. Local 1S9, 
Papermakcrs Union (Croivn-Zellcrbach), 301 F.Supp. 906 (E.D. La) 
1969) aff’d., 416 F.2d 980 (5th Cir.), cert, denied, 397 U.S. 919 
(1970) entered a temporary injunction ordering the Crown-Zellerbach 
Corporation to abolish the “job seniority” system at its paper mill in 
Bogalusa, Louisiana, and to replace it with a “mill seniority” system 
with transfer provisions including carrying seniority to a new job with 
red-circling of rates.



16

Company and the Unions negotiated a contract clause to 
provide for transfers on the basis of “mill seniority,” 19 for 
the carrying, of “mill seniority” with the transferee for pur­
poses of advancement and for the “red-circling” of the trans­
feree's rate of pay (i.e., if an employee transferred to a lower 
paying job, he would be paid his old rate of pay until his 
late m the new line of progression caught up to Iris old 
rate). (A. 98) This collective bargaining agreement was for 
a term beginning September 23, 1968. The relevant seniority- 
provisions were sections 10.2.2 and 50.2.3. (A. 292-293)

In May, 1966, charges were filed with the Equal Employ­
ment Opportunity Commission by Joe P. Moody, Theodore 
Daniels, Henry Hill and Arthur Mitchell, alleging discrimi­
nation because of their race. (A. 273-282)

These charges were served on defendants on August 11, 
1966, and the EEOC investigator gave defendant, Albe­
marle Paper Manufacturing Company, fifteen days, i.e., until 
August 26, 1966, to answer. However, before the Company 
could respond, on August 24, 1966 the first EEOC Guide­
lines on Employment Testing Procedures20 were published 
and on August 25, 1966 the complaint in this case was filed 
m the United States District Court for the Eastern District 
of North Carolina. (A. 6-10) The Complaint simply alleged 
in very general terms discrimination on account of race 
against Plaintiffs in violation of Title VII. The prayer was 
for injunctive and other equitable relief on behalf of Plain­
tiffs and the class they claimed to represent. (A. 10) By mo­
tion for summary judgment, Albemarle immediately raised 
the question whether Plaintiffs could bring a class action

19 While the contract did not, sirictly speaking, provide for mill 
S(T°2r33y-234)e SyStCm nCS°tlated was tantamount to mill seniority.

”  BNA> DaiIy Labor Report No. 174 (Sept. 7, 1966).



17

under Rule 2 3 . (See Motion for Summary Judgment filed 
October 5, 1966.) In their brief in opposition to that motion, 
Plaintiffs maintained the position :

“It is important to understand the exact nature of the 
class relief being sought by Plaintiffs. No money dam­
ages are sought, for any member of the class not before 
the Court, nor is specific relief sought for any member 
of the class not before the Court. The only relief sought 
for the class as a whole is that defendants be enjoined 
from treating the class as a separate group and dis­
criminating against the class as a whole in the future.” 
(A. 13-14) (Emphasisadded).

The District Judge, John D. Larkins, Jr., overruled the 
motion for summary judgment, but in the same order 
granted a motion to dismiss the International Union as a 
defendant on die ground ir had not been named in the 
charges filed with the Equal Employment Opportunity 
Commission. (A. 16-20)

Following Judge Larkins’ ruling, the case proceeded to 
the discovery stage. While the case was in this posture, on 
October 31, 1968, the assets of the Mill were sold to 
Hoemer Waldorf Corporation, a Delaware Corporation, 
which in turn assigned them to a new Albemarle Paper 
Company, a Delaware Corporation. The proceeds of the 
sale were assigned to First Alpaco Corporation which later 
merged into Ethyl Corporation, the parent of the old 
Albemarle Paper Company." (Plaintiffs’ Exhibit 36B pp. 
67-69)

On March 12, 1970, the United States District Court for 
the Middle District of North Carolina, decided the case of

21 F ed . R. C iv . F . 23.

22 For convenience, the term “Albemarle” is used in referring to 
the employer of Respondents.

1



18

Robinson v. Lorillard Corp., 319 F.Supp. 835 (M.D.N.C. 
1970) aff’d. 444 F.2d 791 (4th Cir.), petition for cert, dis­
missed, 404 U.S. 1006 (1971), in which District Judge 
Eugene A. Gordon, in a Title VII case, on motion first made 
after his findings on the merits of the case, in his discretion, 
allowed damages in the form of back pay. Thereafter, in 
1970, the issue of damages was injected into this case far 
the first time. (A. 28-29) On June 25, 1970, Plaintiffs moved 
to join Iioerner Waldorf Corporation, Ethyl Corporation, 
First Alpaco Corporation and the new Albemarle Paper 
Company (Delaware) as parties defendant. The old Albe­
marle Paper Company (Virginia) filed a motion to dismiss 
on August 20, 1970. The District Judge, John D. Larkins, 
Jr., issued his opinion and order on these motions on Sep- 
tembei 29, 19/0, (A. 30-39) denying' the motion to dismiss, 
permitting the joinder of the parties defendant23 and stating:

“Rule 54(c) of the Federal Rules of Civil Procedure 
provides in part: ‘except as to a party against whom a 
judgment is entered by default every final judgment 
shall grant the relief to which the party in whose favor 
it is rendered is entitled, even if the party has not de­
manded such relief in his pleadings.’ The'possibility of 
an award of money damages upon a determination of 
liability is still with us. It is not yet the proper time to 
drop the plaintiffs’ claims, which are, at least, litUable ” 
(A. 37-38) 5

Following This Court’s decision in Griggs v. Duke Power 
Co., 401 U.S. 424 (1971), the management • at the Mill 
promptly employed Dr. Joseph Tiffin, a professor at Purdue 
University, and an eminent industrial psychologist. Using 
the standard “concurrent” method of validation, Dr. Tiffin

Process was never served on I'irst Alpaco Corporation and it has 
never participated in this case.



conducted further validation studies on the tests in use for 
certain of the skilled lines of progression. (A. 165-166) 
As a result of his study, Dr. Tiffin concluded that the tests 
could reasonably be used for both hiring and promotion for 
most of the jobs in the Mill. (A. 438)

In the meantime, this case was transferred from Judge 
John D. Larkins, Jr. to Judge Franklin T. Dupree, Jr., who, 
at a conference of attorneys on May 17, 1971, on motion 
of Defendant, ordered the case set for trial beginning at 
10 a.m., July 26, 1971, at Raleigh, North Carolina.

First on May 28, 1971 and again on June 15, 1971, the 
District Court ordered plaintiffs to answer Defendants sup­
plemental interrogatory, which read:

“List the specific names of each employee or former 
employee whose personnel record or records in any way 
establishes or tends to establish any discrimination by 
Albemarle Paper Company in its employment prac­
tices and explain how such a record or records show 
discrimination giving the specific dates and instances.” 
(A. 44,46).

By order dated July 8, 1971, the District Judge defined 
the class, provided for notice to the class, ruled that dam­
ages might be recovered in this action and stated his inten­
tion to have all such claims for individual monetary relief 
tried with other issues at the trial, reserving the right to 
refer some of such issues to a master if the claims were too 
numerous or complicated to be completed at trial. (A. 
50-52)

On July 10, 1971, the parties agreed to a Stipulation of 
Facts, which included most of the relevant facts in the case, 
(A. 86) and on July 19, 1971, the parties agreed to and 
executed an elaborate pretrial order.



20

I j etrial Order, Plaintiffs listed 134 witnesses of 
whom 128 were:

“Black employees or former employees of Albemarle 
Paper Company who may be called to testify about 
their terms, conditions, privileges of employment such 
as jobs held, wages l'cceived and testimony going to the 
question of backpay.” (See Pretrial Order entered Tuly 
19,1971 at pp. 78-90)

The case came on for trial before the Honorable Franklin 
T. Dupree, Jr., promptly at 10:00 a.m., Monday, July 26, 
1971. There were four major issues: (1) Whether there 
should be injunctive relief with respect to the seniority sys­
tem at the mill; (2) whether the testing and high school 
educational requirements were unlawful; (3) whether there
should be back pay and (4) whether there should be attorney 
fees.

In an efrort to reduce the scope of the trial, Albemarle 
consented to the entry of an order providing mill seniority 
and red-circle rates for members of the class by representing 
in its opening statement as follows:

If tne Court please, I think there are four issues here 
and I will address myself to them very briefly. First 
the injunctive relief. The defendants believe that no 
injunction is warranted in this case. We believe that 
whatever relief they may have been entitled to some 
years ago we took care of in 1968, and that under the 
circumstances we would fight very hard not to be en- 
joined. However, without admitting any violation of 
Title VII, we have concluded to say to your Honor this 
morning that insofar as an injunction to provide plant 
seniority for these people along the lines of the system 
that vve set forth in the proposed consent agreement, a 
copy of which I have left on your desk, we would not 
buiden the Court today with all the evidence that we



21

think bears on that issue. I think it’s all in the deposi­
tions. And without admitting any guilt on our part, we 
can eliminate that part of the case because we would 
not object to an order along those lines.” (A. 114-115)

The trial of the case consumed eight full trial days and one 
day for the Court to view the Mill. There were literally 
scores of members of Plaintiffs’ class in attendance at the 
trial. The District Judge did not limit the evidence in any 
way. Plaintiffs called eleven employee, or former employee, 
witnesses and introduced the depositions of five others.

The District Judge made extensive findings of fact, found 
the Company’s testing program “job-related” and declined 
to enjoin its use. In his discretion the Judge denied back 
pay to plaintiffs. However, the Court ordered a mill sen­
iority system and, finding the tests sufficient for the purpose, 
proscribed the use of a high school education requirement 
for employment. (See A. 497, 499-502)

Plaintiffs appealed to the United States Court of Ap­
peals for the Fourth Circuit and the case was heard by a 
panel, consisting of Circuit Judge J. Braxton Craven and 
Senior Circuit Judges, Herbert S. Boreman and Albert V. 
Bryan, whose decision is best explained by them:

“The district court refused to order the abolition of or 
changes in the pre-employment testing procedures used 
by Albemarle. Plaintiffs appeal from the district court’s 
determination. Judge Boreman concurs with Judge 
Craven in reversing and remanding to the district court 
on this issue. Judge Bryan dissents.
“The district court also refused to award the plaintiffs 
back pay. Judge Bryan concurs with Judge Craven in 
reversing the district court on ’this issue. Judge Bore­
man dissents.



22

“The effect of this division in the court is to reverse 
and remand the district court's determinatipn as to the 
testing procedures and the refusal to award back pav ” 
(A. 531) J

Defendants asked for a rehearing and made a suggestion 
of rehearing en banc which was granted on June 25, 1973. 
Supplemental briefs were filed and argument was heard on 
October 2, 1973.

On December 6, 1973, Chief Circuit Judge Clement F. 
Haynsworth certified to This Court the following-

“Under 28 U.S.C. §46 and Rule 35 of the Federal Rules 
of Appellate Procedure, may a senior circuit judge, a 
member of the initial hearing panel, vote in the deter­
mination of the question of whether or not lire case 
should be reheard en banc?” (A. 540)

The certification also stated:
“If the en banc court reaches the merits, the tentative 
vote is that it will modify the panel decision with re­
spect to an award of back pay.” (A. 540)

17, 1974 Phis Court answered the certified ques­
tion in the negative and on July 22, 1974 the United States 
Court of Appeals for the Fourth Circuit denied Defendants’ 
petition for rehearing.

On October 7, 1974 Defendants filed a petition for a 
writ of certiorari to the United States Court of Appeals for 
the Fourth Circuit with This Court. The writ was granted 
on December 16, 1974.



23

VI.

SUMMARY OF ARGUMENT

A. The District Court Correctly Refused To Enjoin The Use Of
Albemarle’s Testing Procedures.

1. I n t r o d u c t io n

This case involves the interpretation of principles laid 
down-in Griggs v. Duke Power Co., 401 U.S. 424 (1970), 
with respect to the use of employment tests.

2- T h e . E v id e n c e  I n  T h i s  C a s e  S h o w s  A l b e m a r l e ’s  T e s t s  
W e r e  N o t  D is c r im in a t o r y .

There was no demonstration in the trial court that Albe­
marle’s tests, the Beta and the Wonderlic A & B, had a 
racially disparate effect upon a proper statistical universe

i.e. otherwise qualified blacks emploved in, or candidates 
for employment at the Roanoke Rapids mill. Mayor v. Edu­
cational Equality League, 415 U.S. 605, 620 (1974). The 
tests not having been shown to discriminate in the first place, 
there was no basis to proscribe their use. McDonnell Douglas 
Carp. v .  Green, 411 U.S. 792 ( 1973); Bridgeport Guardians, 
Inc. v. Civil Service Commission, 482 F.2d 1333 (2d Cir. 
1973); Hester v. Southern Railway Co., 497 F.2d 1374 (5th 
Cir. 1974); Woods v. North American Rockwell Corp. 480 
F.2d 644 (10th Cir. 1973).

3. A l b e m a r l e  D e m o n st r a t e d  T h e  T e s t s  T o  B e  A  R e a s o n ­
a b l e  M e a s u r e  O f  J ob  P e r f o r m a n c e .

(a ) The District Court Found That Albemarle’s Tests Were 
Job Related.

The District Court found, based in part on a view of the 
mill, that certain native intelligence and reading skills 
were required for the safe and efficient operation of the 
mill. That Court also found that Albemarle’s tests had



24

undergone validation studies and had been proven to be 
job related.

(b) The Findings Of The District Court Have Not Been Shown 
To Be Erroneous.

Ih e  attack on the tests in the Court of Appeals was not. 
that the tests were not job related, but that Albemarle had 
not proven them to be job-related in strict accordance with 
the EEOC Guidelines. The proper test is not compliance 
with the guidelines, Espinoza v. Far ah Manufacturing Co. 
414 U.S. 86, 94 (1973), but whether the tests are proven 
job related to the satisfaction of the Court. Vulcan Society 
v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir 
1973); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); 
Bridgeport Guardians, Inc. v. Civil Service Commission, 482 
F. 2d 1333 (2d Cir. 1973) ; United States v. Georgia Power 
Co., 474 F.2d 906 (5th Cir. 1973). Relying primarily on the 
guidelines and on contentions of fact raised for the first time 
on appeal, the Court of Appeals erroneously found fault with 
Albemarle’s proof of job relatedness.

(i) Job Analysis

Albemarle’s expert conducted an empirical validation 
study which correlated test scores with supervisory- ratings of 
actual job performance. In such a situation a written job 
analysis is unnecessary and its absence is irrelevant to the 
integrity of the correlations.

(ii) Supervisor R atings

Test validations do not fail as a matter of law upon an un­
supported presumption that supervisors’ ratings are racially' 
biased. McDonnell Douglas Corp. v. Green, 411 U S 792 
(1973). There is no basis for a presumption of supervisors’ 
bias in the first place and such bias clearly could not have 
affected the correlations obtained in this case.



25

(iii) Business Necessity

The objections raised concerning the use of a test for 
incs of progression m which' the test had not been speci­

fically shown to validate are based primarily on the Court 
of Appeals nnsassumption of facts and, in any event vo 
o the utilization of the tests, not their job-relatedness. The

lawful USC thC lCStS by th e m a tic  is reasonable and

B' D m D  r VC7  Th; C°Urt ° f Appeals Errcd ^  Not Remanding J lle Testing Issue To 1 he District Court.

\Vhen new standards of proof are set forth, simple fair- 
ness requires the party against whom the new rule is in-

VM?D ' C // n dCd; 311 °PPOrtUnity to present its evidence.
MQmT p  f T  Corp- v- U.s. 792, 807(ty/Oy , England v. Louisiana Medical Fram^rcrs *7^ TT c 
411 (1964); W J * S!ales v. £ £

6 (5th Gir. 1973). Especially is this true where, as here

the factT  °f APPCalS engaged in its own determination of

c - The District Court Had Traditional Equitable Discretion To 
Determine Whether Back Bay Was An Appropriate Remedy.

1 T it c e  V I I  L ea ves  T h e  A w a r d  O r  D e n ia l  O f  Ba c k  P ay  

C ou rts '" “  E 2 u ita b le  D i s c r e t e  O f  T h e  D is t r ic t

D; Phe Pi f m Ia^ u ag e  of the Statute expressly vests the 
<< ™ , C°Urt Wlth thc discretion to fashion remedies as

nay be appropriate, which “may include reinstatement 
nng ° CmpI°yces, Wlth or without back pay.” Section

reverfil 0f thU'SDC't .§20? ° '‘5 (g ) ' The Fourth Circuit’s e\ ersal of the District Judge’s denial was based on its
adoptive special circumstances” standard. This standard
whch mandates an award of b a d  p a , in e v ^



O

26
sa\ c exceptional cases, contravenes the legislative intent 
behind the express language of the Act. Curtis v. Loctker,
415 U.S. 189 (1974) ,■ hober v. IVeslinghousc Electric Co.,
480 F.2d 240 (3d Cir. 1973); 111 Cong. Rec. 12819 (1964).

2. 4 h e  D is c r e t io n  O f A T ria l  C o u r t  R egarding  T h e  B ack  
P ay  R e m e d y  S h o u l d  B e G uid ed  B y T r a d itio n a l  E q u it a b l e  
P r in c ip l e s .

Xiial courts in fashioning decrees to remedy violations 
of Title VII should be free to apply equitable considerations 
in light of all the facts and circumstances of the case. Two 
of those factors were cited by the District Judge below: the 
good faith of Albemarle, and the plaintiffs’ tardiness, 
amounting to laches, in presenting the back pay claims.
United States v. Georgia Power Co., 474 F.2d 906 (5th Cir.
1973); Rental Development Corp. of America v. Lavery 
304 F.2d 839, 842 (9th Cir. 1962).

f
3. E v e n  U n d e r  A “S pe c ia l  C ir c u m s t a n c e s ” S ta nd ard , T he 

D is t r ic t  C o u r t  W as J u s t if ie d  I n  D e n y in g  B a c k  P ay /

Even if a “special circumstances” rule is correct, the 
factors cited by the District Court make this an excep­
tional case.

D. Back Pay Should Not Be Awarded To Class Members Who Did 
Not File Charges With The Equal Employment Opportunity 
Commission.

Back pay is individual redress for damages actually suf­
fered as distinct from class wide prospective remedial meas­
ures. The previous filing of a charge with the EEOC is a 
jurisdictional requirement for individuals seeking relief under 
Title VII. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The device of a class action under Rule 23 of



27

the Pederal Rules of Civil Procedure may not be manipu­
lated to confer jurisdiction over such individual claims where 
it does not otherwise exist. F ed . R. C iv . P. 82; Zahn v. Inter­
national Paper Co., 414 U.S. 291 (1973); Snyder v. Harris, 
394 U.S. 332 (1969); JVeincr v. Bank of King of Prussia, 
358 F. Supp. 684 (E.D. Pa. 1973); Sperberg v. Firestone 
Tire&Rubber Co., 61 F.R.D. 70 (N.D. Ohio, 1973).

VII.

ARGUMENT

A. The District Court Correctly Refused To Enjoin The Use Of 
Albemarle’s Testing Procedures.

1. I n t r o d u c t io n

This case presents to the Court several questions either not 
reached or not definitively settled in Griggs v. Duke Power 
Co., 401 U.S. 424 (1971). In Griggs the Court considered 
the use of a standardized general intelligence test as a condi­
tion of employment in or transfer to jobs when (a) the stan­
dard is not shown to be significantly related to successful job 
performance, (b) the requirement operates to disqualify 
ISegioes at a substantially higher rate than white applicants, 
and (c) the jobs in question formerly had been filled only by 

. white employees.
In this case the District Court found that the jobs in 

Albemarle’s skilled lines of progression formerly had been 
filled only by white employees, made no finding with in­
spect to whether Albemarle’s tests had a disparate racial 
effect, and finally found that, in any event, Albemarle’s 
tests were significantly related to successful job perform­
ance.



I

1

i
1
I

28
2. T h e  E v id en c e  I n  T h i s  C a se  S h o w s  A l b e m a r l e ’s  T e s t s  

W e r e  N o t  D is c r im in a t o r y .

In any Title VII case, plaintiff bears the burden of show­
ing prima facie, discrimination. McDonald Douglas Corp. v. 
Green, 411 U.S. 792, 802 (3973); Woods v. North Ameri­
can Rockwell Corp., 480 F.2d 644, 647 (10th Cir. 1973). 
In the testing context plaintiffs most often make this showing 
with statistics from tests previously administered by the de­
fendant employer. Castro v. Beecher, 459 F.2d 725 (1st Cir. 
1972) ; Bridgeport Guardians, Inc. v. Civil Service Commis­
sion,482 F.2d 1333 (2d Cir. 1973) ; United States v. Georgia 
Power Co., 474 F.2d 906 (5th Cir. 1973); Carter v. Gal­
lagher, 452 F.2d 315 (8th Cir.), cert, denied, 406 U.S. 950 
(1972). But whatever the method, failure to show that a test 
has a disparate effect on . the minority group has been and 
should be fatal to a Title VII plaintiff’s case, Bridgeport, 
supra at 1339; Hester v. Southern Railway Co., 497 F.2d 
1374, 1381 (5th Cir. 1974) ; Woods, supra, at 647.

This threshold question of whether Albemarle’s tests had 
a disparate effect on the members of the class in this case 
was never specifically addressed in the District Court and 
the District Court made no findings of fact as to any dis­
criminatory effect of the tests. Indeed, plaintiffs’ proposed 
findings did not even include a provision bearing on this 
issue.

The Amicus Curiae, Equal Employment Opportunity 
Commission (hereinafter EEOC), tried to correct this 
glaring deficiency in plaintiffs’ case, in its brief24 to the Court 
of Appeals. Purportedly utilizing plaintiffs’ Exhibit No. 10,25

24 All briefs filed in the Court of Appeals were included in the record 
sent to this Court.

25 Exhibit No. 10 is supposedly a composite of all of Albemarle’s per­
sonnel records, which plaintiffs had taken two weeks to microfilm. No



29

Amicus Curiae contended that it showed that on Wonderlic 
A blacks averaged 17 and whites averaged 24.9, with 96% of 
the whites and 64% of the blacks obtaining a passing score, 
and that on Wonderlic B blacks averaged 14.8 and whites 
averaged 21.9. Amicus Curiae did not point out that the 
same exhibit also showed that on the Beta, blacks averaged 
104.20, whites 107.56 against a cut-off score of 100.00. But 
in their Supplemental Brief on Rehearing at page 36, the 
Amici Curiae (the EEOC now joined by the United States) 
conceded:

. . the evidence on the Beta alone showed only a 
slight, and perhaps not statistically significant impact.” 
(Brief for the United States and the Equal Employment 
Opportunity Commission as Amici Curiae on Prehear­
ing En Banc, p. 36).

Nevertheless, the majority panel of the Court of Appeals 
began its discussion of testing by noting:

“The plaintiffs made a sufficient showing below that 
Albemarle's testing procedures have a racial impact.” 
(A. 515)

In support of that conclusion the Court of Appeals Panel 
cited in a footnote some statistics concerning the Wonderlic 
tests, but never mentioned the Beta.

Thus, the finding by the Court of Appeals Panel is first of 
all grievously and astonishingly deficient in enjoining Albe­
marle’s use of the Beta, as to which there was absolutely no 
evidence, either presented to the District Court or otherwise, 
to show a disparate racial effect. As Dr. Richard Barrett

specific contentions based on Exhibit No. 10 were ever made in the 
District Court despite Albemarle's strenuous efforts to elicit them. 
(See R. 52-54.)



30

pointed out in his article, Barrett, Gray Areas in Black mid 
White Testing, 46 Harv. Bus. Rev. 92, 93 (1968):

“A test that places no special obstacle in the path of 
Negro applicants cannot be said to be discriminatory.” 26

As a consequence of this failure of proof by plaintiffs, 
Albemarle is clearly entitled to a reversal of that portion 
of the Court of Appeals’ judgment proscribing further use 
of the Beta.

But even as to Wonderlic, plaintiffs’ proof is deficient 
on the threshold question of whether the test was dis­
criminatory. The Court of Appeals Panel concluded that 
this requirement was satisfied by reference to Exhibit No. 10 
and to general statistics. But, while these factors may be 
the basis for speculation that the Wonderlic tests exclude 
more blacks than whites, they are not proof of discrimina­
tory effect at the mill at Roanoke Rapids.

The calculation and factual extrapolation from Exhibit 
No. 10 was never presented to the District Court; in fact, it 
was before the Court of Appeals that the possibility was first 
raised that Exhibit No. 10 could be utilized as proof of dis­
parate effect, and then the suggestion was made not by plain­
tiffs, but by the Amicus Curiae, EEOC. The District Court 
thus was never afforded an opportunity to consider the force 
of this supposed evidence.27 Further, Albemarle was never 
afforded the opportunity to demonstrate at trial that the 
conclusion drawn by the EEOC and the Court of Appeals

26 This conclusion was confirmed by plaintiffs’ other expert, Dr. 
Katzcll, as well. (A. 403).

27 Nor was the District Court ever given the study, E. F. Wonderlic 
and Assoc. Inc., Negro Norms, A Study of 38,452 job Applicants for 
Affirmative Action Programs (1972) because it was fiied for the first 
time with the Court of Appeals and served oil counsel for Albemarle 
along with Appellants’ Reply Brief in August, 1972.



I

31

from Exhibit No. 10 was erroneous for the reason that the 
statistical universe included test scores of employees who 
could hardly read or write and whose verbal facility was no 
more than 1 on the Wonderlic (R. 1135-6), and who were 
therefore not potential candidates for the skilled lines of pro­
gression.28

Having failed to prove disparate effect of the tests at 
trial, plaintiffs may not rely on the suggestion in Griggs, 401 
U.S. at 430, n. 6, that the Wonderlic has been shown to have 
a disparate effect in other cases. If meaningful conclusions 
are to be drawn a test “must be evaluated in the setting in 
which it is used.” Georgia Power, supra at 912.29 A rule to 
the contrary, aside from being illogical, would be inequitable 
in imposing the heavy financial burden of validation on an 
employer even though his tests do not discriminate against 
minorities. In other words, if the test does not discriminate 
in the first place, it should not have to be validated.

28 Since the District Court found that ability to read and write is a 
job and safety requirement for the skilled lines of progression, the in­
clusion of illiterate persons in the statistics relied on by the Court of 
Appeals renders its conclusions about differential impact meaningless.

I This Court has recognized with respect to racial statistics that unless
j “the relevant universe for comparison purposes” is limited to poten­

tially qualified persons, “simplistic percentage comparisons undertaken 
by the Court of Appeals lack real meaning.” Mayor v. Educational 
Equality League, 415 U.S. 605, 620 (1974). And see Harper v. Mayor 
and City Council of Baltimore, 359 F. Supp. 1187, 1193 (D. Md.), 
modified, sub nom. Harper v. Klostcr, 486 F.2d 1134 (4th Cir. 1973) ; 
Chance v. Board of Examiners, 330 F. Supp. 203, 214 (SD  N Y  
1971); aff’d., 458 F.2d 1167 (2nd Cir. 1972).

29 Even Dr. Katzell, one of plaintiffs’ experts, acknowledged that, 
in order to determine whether a particular test has a racially disparate 
impact, it would be necessary to study its impact upon the particular 
group involved. (A. 394-5).

t



32

3. A l b e m a r l e  D e m o n s t r a t e d  I t s  T e s t s  T o B e  A R e a so n a b l e  
M e a s u r e  O f  J ob P e r f o r m a n c e .

1 his Court held in Griggs at page 436:

“Nothing in the Act precludes the use of testing or 
measuring procedures; obviously they are useful. What 
Congress lias forbidden is giving these devices and 

- mechanisms controlling force unless they are demon­
strably a reasonable measure of job performance.

Thus, the question presented here is whether, even if 
the unproven assumption that Albemarle’s tests had a 
racially disparate effect were accepted, the Court of Ap­
peals could hold as a matter of law that Albemarle failed 
to make an adequate demonstration that its tests arc a 
reasonable measure of j'ob performance. Albemarle sub­
mits that the Couit of Appeals was in error in making that 
determination.

(a) Defendants’ Tests Were Found To Be Job Related By The 
District Court.

The tests used by Albemarle were professionally developed 
to measure the very attributes found by the District Court to 
be required for the skilled lines of progression. The Beta 
measures the intelligence of the taker, even though he is 
illiterate, (Katzell deposition, A. 360-2) ; the District Court 
found that a high degree of native intelligence was a neces­
sary attribute for workers in the skilled lines of progression. 
(A. 494) The Wonderlic tests also measure general mental 
ability and indicate the taker’s ability to read" and to under­
stand what he has read. (Katzell deposition, A. 362-3); the 
District Court found that reading ability was also a necessary 
requirement for workers in the skilled lines of progression. 
(A. 497) Without more, therefore, it would appear that the



33

tests were reasonable measures of a prospective employee’s 
ability to perform the skilled jobs in the mill.

But Albemarle’s case docs not rest, merely upon this basis 
since, through validation studies, Albemarle’s tests were 
found to correlate significantly with actual job performance 
at the mill. Before use of the Beta was instituted, in 1958, 
a concurrent validation study established positive correla­
tions.30 Further, after this Court’s decision in Griggs, Albe­
marle retained an unquestioned expert in industrial psychol­
og)7 to conduct a further validation study.31 As found by the 
District Court this study confirmed the validity and utility of 
the tests:

“This court has also found as a fact that a certain level 
of native intelligence is required for the safe and effi­
cient operation of Albemarle’s often complicated and 
sophisticated machinery. The personnel tests adminis­
tered at the plant have undergone validation studies and 
have been proven to be job related. The defendants 
have carried the burden of proof in proving that these 
tests are “necessary for the safe and efficient operation 
of the business” and are, therefore, permitted by the 
Act. However, the high school education requirement 
used in conjunction with the testing requirements is un­
lawful in that the personnel tests alone are adequate to 
measure the mental ability and reading skills required 
for the job classifications.” (A. 497)

30 Sec, supra, p. 11.
31 The study was conducted by use of the “concurrent validation” 

method. Ten skill-related job groupings were selected on the basis of 
skill level and content of the jobs, as being typical of jobs in the skilled 
lines of progression. Each employee in each group was rated in com­
parison with each other employee in the group to obtain a ranking of 
job performance and statistical correlation was performed to deter­
mine correlation between job performance and test results. (A. 490). 
The same method was also expressly approved in Watkins v. Scott

f .___ Efiper C o.,...F. Supp......, 6 FEP Cases 511, 537 (S.D. Ala. 1973).



34

It is clear, therefore, that the District Judge, who was 
the trier of fact in this case, had no doubt that Albemarle 
had demonstrated that its tests were related to perform­
ance on the job.

(b) The Findings Of The District Court Have Not Been Shown 
To Be Erroneous.

Plaintiffs’ contention in the Court of Appeals was not that 
Albemarle’s tests were not job related (indeed the EEOC’s 
Brief to the Court of Appeals as Amicus Curiae at p. 32 con­
ceded that “they may very' well be job related” ). Rather, 
plaintiffs contended that Albemarle had not proven job 
relatedness in the manner required by the EEOC guidelines 
in that (1) Dr. Tiffin's study had not been shown to have 
fulfilled all of the technical requirements of the guidelines, 
and (2) Dr. Tiffin had not been shown to have vone through 
all the procedures detailed in American Psychological Asso­
ciation, Inc., Standards for Educational and Psychological 
Tests and Manuals (1966) (Plaintiffs Ex. 71), and that Al­
bemarle had not presented evidence on extraneous issues not 
raised in the District Court.

Other Courts of Appeals reaching the question have held 
that an employer may satisfy the job relatedness standard of 
Griggs independently of the specific requirements of the 
EEOC guidelines. Castro v. Beecher,*459 F.2d 725, 737-38 
(1st Cir. 1972): Guardians Ass’n v. Civil Service Commis­
sion, 490 F.2d 400, 403 n. 1 (2nd Cir. 1973); United States 
v. Georgia Power Co., 474 F.2d 906, 913 (5th Cir. 1973). 
The error of the Court of Appeals panel below was in equat­
ing EEOC suggested technical methodology' with acceptable 
standards of judicial proof of job relatedness. “Experience 
teaches that the preferred method of today may be the re-



35

jected one of tomorrow.32 What is required is simply that an 
examination must he ‘shown to bear a demonstrable rela­
tionship to successful performance of the jobs for which it 
was used,’ Griggs v. Duke Power Co., 401 U.S. 424, 431.55 
Vulcan Society v. Civil Service Commission, 490 F.2d 387, 
394 (2d Cir. 1973) (Friendly, J.) (Footnote added).

Previous opinions of this Court make clear that deference 
to agency interpretation should be limited, when, as here, 
the interpretation derives from a nonadversary proceed­
ing, Fishgold v. Sullivan Drydock and Repair Corp., 328 
U.S. 275 (1946), and when the interpretation intrudes in­
to an area where a court’s expertise exceeds the agency’s.33 
In the case of testing, the EEOC guidelines have not been 
subject to adversarial scrutiny. The 1970 guidelines them­
selves state:

32 The First “Guidelines cn Employment Testing Procedures” (Plain­
tiffs Ex. 27A) adopted by the EEOC on August 24, 1966, one day 
before this case was brought stated inter alia:

“The Commission accordingly interprets ‘professionally developed 
ability to test’ to mean a test which fairly measures the knowledge 
or skills required by the particular job or class of jobs which the 
applicant seeks, or which fairiy affords the employer a chance to 
measure the applicants ability to peiform a particular job or 
class or jobs.” -x -* *

and advocated * * that tests be judged against job performance 
rather than by what they claim to measure.”

The Guidelines on Employee Selection Procedures adopted on Au­
gust 1, 1970 by the EEOC superseded the 1966 guidelines, and added 
stringent and technical standards with respect to job relatedness.

Further amended guidelines are presently under consideration by 
the Equal Employment Opportunity Coordinating Council (EEOCC).

33 Barlow v. Collins, 397 U.S. 159, 166 (1970); NLRB  v. Boeing 
Co., 412 U.S. 67, 76-77 (1973) (dictum). Like statutory construction 
and principles of equity, the allocation of proof and the proper weight 
to be accorded evidence are matters properly within the province of 
the courts.



36

"Because the material herein is interpretive in nature, 
the provisions of the Administrative Procedure Act (5 
U.S.C. §533) requiring notice of proposed rule making, 
opportunity for public participation, and delay in effec­
tive date are inapplicable.”34

Indeed, This Court, in Espinoza v. Farah Manufacturing 
Co:> 414 U.S. 86, 94 (1973) has held with respect to the 
EEOw. Guidelines on Discrimination Because of National 
Origin” :

“ Ihe Commission’s more recent interpretation of the 
statute in the guideline relied on by the District Court is 
no doubt entitled to great deference but that deference 
mus) ]iave h'ttdts where, as here, application of the 
guiclejine would be inconsistent with an obvious con- 
gressional iment not io reach the employment practice 
in question.” (Citations omitted)

i. Job Analysis

The principal defect found by the Court of Appeals 
was that Dr. Tiffin had not conducted a detailed job analy­
sis in connection with his validation study in the manner 
required by the EEOC Guidelines. Before discussing the 
particular reasons for which the Court of Appeals found a 
job analysis necessary, it will be useful to discuss when, in 
geneial, a job analysis should or should not be required.

1970 F t n e  e  i f  technical burden imposed on employers by the 
1970 EEOC Guidelines on testing marked a radical departure from 
previous practice, without the benefit of any input by employers.

\ lien the proposed amended guidelines containing similarly re- 
s rictne standards were opened for public comment by the EEOCC 
the impact oi those guidelines on industry was made clear. The people
‘W h o ' l l  SCn’,1d „them as Unworkable,” “incomprehensible,” 
- technica,ly unsound, “too stringent,” “beyond the state of the art 
in psychology, • ambiguous, yet restrictive,” “unnecessary',” “punitive ” 
and as one person said, “just irrational, unreasonable, and impossible.” 
E_\A, E)aily Labor Report, No. 8 (Jan. 13, 1975).



37

A validation study may be conducted in a variety of fac­
tual circumstances for various purposes, and may employ 
various strategies such as content, construct, or criterion 
related, i.c., predictive or concurrent studies.

Thus, when a test publisher or psychologist sets out to 
devise and market a test, he must conduct a “job analy­
sis” in order to demonstrate to potential clients the job con­
tent or duties for which the test has been correlated.

Similarly, if an expert psychologist were employed to 
set up a testing program for a particular plant, he would 
first of all study the jobs to learn what abilities were re­
quired, in order to obtain an indication of what tests might 
be valid job predictors; he would then select a test and, 
by empirical stud)', would determine if it correlated with 
job performance.

By contrast, the validation study here was intended to 
examine the validity of the tests already in use. The 
problem, therefore, was not to select among various tests 
to measure some unknown job cpntent, but to determine if 
an existing test correlated with known job performance. 
In this context the preliminary “job analysis” for selecting 
the test was superfluous.35

The fundamental point overlooked by the Court of Ap­
peals is that a test has almost no chance of correlating with 
job performance ratings unless it in fact measures critical job 
attributes. Boston Chapter, NAACP  v. Beecher, 504 F.2d 
1017, 1024 (1st Cir. 1974); Vulcan Society, supra, 490 F.2d

“ American Psychological Ass’n, Inc., Standards for Educational 
and Psychological Tests and Manuals (1966) (A. 1520-58), relied 
upon by Plaintiffs, expressly states at the outset (Standard A1) :

“Not all the standards in this report will apply to any one par­
ticular test. A standard may be ignored if it is iirelevant in the 
light of the purpose of the test and claims made for it. . ”
(A .1592)



38

at 396. In light of the high statistical significance of the cor- 
re ations here, the Court of Appeals Panel’s speculation that 
only a written job analysis could assure that the supervisors 
and the tests were measuring the same thing .exalts form 
over substance.
. ,Whllc for S°od reasons Albemarle does not have written 
job descriptions, (A. 223-24) the job categories for wa«e 
purposes are the result of union-employer negotiations. 
I be job content is directly related to the machinery and 
equipment on which the job holder works, and the lines 
cn progression are designed to group functionally related 
jobs ^or training purposes, as well as seniority, especially in 
the skilled lines oi progression. (A. 211-212) Thus the 
characteristics of the jobs are clearly understood.

Further, Dr. liffin was very familiar with paper mills 38 
having made validation studies for International Paper 
Company The Mead Paper Corp., Marathon Paper Com­
pany and Gulf State Paper Company and having been 
consultant to the American Paper Institute from 1965 for 
the purpose of analyzing the use of the personnel tests ' 
being made by the member companies of that association.37

hus, to say the tests were not proven to be job related 
because Dr liffin did not write down in his report what 
ic knew about the jobs is unjustified as the dissenting 

oenioi Circuit Judge aptly noted:

Secondly, in view of the findings by the rDistrictl 
Court that 'N a t io n  studies had been applied to the

* " . « * * *  “ d P " ® ™  is quite 

37 See Defendants Exhibit No. 22 (A 439-571 • a m i n  t--.ce .



39

personnel tests and that the tests had been proved to be 
job related, I cannot join in the determination that dis­
crimination resulted from the absence of ‘job analysis.’ 
It seems to me that these findings necessarily recognize 
that the equivalent of ‘job analysis’ was utilized. In rat­
ing the employees, the jobs’ features were undeniably 
considered, for the supervisors were unquestionably fa­
miliar with these elements.”

ii. Supervisors’ Ratings

In his validation study, Dr. Tiffin used the “paired com­
parison” method of obtaining job success criterion ratings ■ 
from supervisors.38 Judge Dupree described the process in his 
findings of facts:° F

“Each employee in a job grouping was individually j
rated in comparison to every other individual em­
ployee in that grouping to obtain a ranking of job per­
formance. The ratings took into consideration the ele­
ments of work behavior and job success. This rating 
method was performed twice by two different super­
visors making independent evaluations. Neither of the 
raters had access to or knowledge of the sample em­
ployees’ performance on the aptitude tests. The results 
of the dual ratings were then averaged to obtain the 
final job rating of the employees within each specific 
unit.”' (A. 490)

Thus, the supervisors were asked only the most ele­
mental question: “which of two of the employees who 
work for you can do the job, better?” The Court of Ap­
peals finds this simple question to be a “vague standard.”

38 This method was specifically approved in Watkins v. Scott Paper 
Co.,..... F. Supp........., 6 F.E.P. Cases 511, 537 (S.D. Ala. 1973).

1



40

K ' D^ ---- .{

6£--»«-iyrt <ywv<t̂ H' ■■.

Citing one case, not in point/* and a stray quotation from 
a iaw review article” and the EEO C guidelines”, the 
Couit of Appeals concluded:

Z ^ eV hff SOme form of J°b ana]ysis resulting in
crucial to a °°JecUvc cntena for supervisor}* ratings is ciuc ai to a proper concurrent validation study See
I f j f r c  Add\tl°n Community Organization v YAlloto 
34? F*Supp. 1351, 1354-55 (N.D. Cal. 1972)' To re
W H v m  tlS t0 leJ T -  ? erJ0b reIatedness requirement 

l Thr If g°°f faith ° the cmPIo),er and his super- 
the A c ?  Plainmg daSS is entitIed 10 more under

The Court of Appeals Panel’s overemphasis of “job anal­
yst, as crucial was apparently based on a confusion be- 
ween content validity” studies such as that attempted in 

If estern Addition Community Organization v Alioto 340
F* Supp; ? f 1 fN-D- Cab 1972), cited by the Court, and the 
more reliable empirical validation” successfully performed 
m this case. Unquestionably "[t]he cornerstone in the con- 
s luction °f a content valid examination is the job analysis.” 
F I  Department of Correctional Services, 31A
F.Supp. 1361, 13/3 (S.D.N.Y. 1974), since the tasks identi-

volved here. y Afferent evaluation from that in-

has no citation any

§ 1607.5(b) (4) (1970) exarrj,ned evidence of bias.” 29 C.F.R.



41

i I

i

I

ficd in the analysis provide the only criteria against which 
to evaluate the test. In empirical validation studies, how­
ever, where the test can be measured against actual job per­
formance rather than a mere description of job performance, 
the job analysis is far less important.

“In the jargon of psychometrics, predictive [empirical] 
validation involves comparing relative performance on 
a given test with subsequent job performance.

* *•

Content validation of a test, on the other hand, re­
quires that an analysis of the job involved be under­
taken to determine what characteristics are essential 
for the adequate performance of that job.” Pennsyl­
vania v. Giickman, 370 F.Supp. 724, 732 (W.D. Pa. 
1974).

The thrust of the law review quotation and that of the 
guidelines is based upon the premise that blacks, gen­
erally, perform less well on tests than whites, but perform 
as well on the job and therefore, if because of bias, super­
visors rate blacks lower, this would tend to make the test 
seem valid when, in fact, it would merely reflect parallel 
bias. Recent scientific studies find the underlying premise 
that blacks who do poorly on a valid test do just as well on 
the job unfounded.42

42 This premise is, in the jargon, called “differential validity.” In 
one recent study of thirteen validity studies, the author concluded that 
there is very little evidence of differential validity. Boelnn, Negro-White 
Differences in Validity of Employment and Training Selection Proce­
dures; Summary of Research Evidence, 56 Journal of Applied Psy­
chology 33 (1972). Sec also Gael & Grant, Employment Test Valida­
tion for Minority and Nonminority Telephone Company Service 
Representatives, 56 Journal of Applied Psychology 135 (1972); 
Schmidt, Berner & Hunter, Racial Differences in Validity of Employ­
ment Tests: Reality of Elusion 58 Journal of Applied Psychology 5 
(1973).

r

If
i



42

Aside from the fact that there is no scientific support for 
tia t idea, it clearly was not applicable in this case, and 
was not raised in the District Court.

Qnl}Jotwbjack_employees participated in the validation 
study conducted by Dr. Tiffin, and those four were all in 

^roupNo_8. t  herefore, in fact, in nine out of the ten groupT 
studied, racial bias could not have been a factor. Group 
Ao 8 consisted of eight employees (six black and two white) 
in the jobs of Chipper Unloader, Chipper Operator No. 2 
and Cham Operator in the Woodyard. Two of the black em-

-7-  A  ^  v/ i- l  P T 65 refused to takc the tests, so that four blacks and two
whites constituted the group. Both the Beta and the Won- '

7 = ^  1 ( ^er,]jC £  C0ITdaicd ^ r  Group No. 8. Although Dr. Tiffin
ad all of his work papers available in Court, he was not 

asked .or the test scores or supervisory ratings of the em­
ployees in Group No. 8. Thus, even for Group No. 8, the 
Court of Appeals Panel relies on a surmise, raised for the first 
tune in the Court of Appeals, that the four blacks did 
poorly on the tests, and did as well or better on the job 
than the whites, but that both supervisors rating them 
in ependently downgraded their job performance in the 
precise degree necessary to achieve correlation. The possi­
bility that this could have occurred is obviously remote
and does not provide a basis for invalidating Albemarle’s 
whole testing program.

Further, a supervisor is in the best position to know the 
rdatwe job performance of his employees. As long as the 
District Judge, in his role as trier of fact, is satisfied that
the supervisor is reporting honestly, the rating cannot be 
said to be unduly “vague.”
,. 'this instance, the Court of Appeals disagreed more with 
he District Court’s factual conclusions than with its leral 

standard. When the Court of Appeals criticized the lack of



job analysis, it essentially found a failure by Albemarle to 
meet a burden of proof. The District Court’s findings clearly 
recognized that the burden had been earned. The Court of 
Appeals’ conclusion that this was not enough constitutes a re­
versal on factual grounds, which was unwarranted since 
those findings of fact are not “clearly erroneous.” F ed . R. 
Civ. P. 52; Parmer v. National Cash Register Co., 503 F.2d 
275 (6th Cir. 1S75) ; United States v. United States Gypsum 
Co., 333 U.S. 364, 395 (1948) modified, 339 U.S. 960 
(1950).

Thus, it is apparent that the Court of Appeals was in 
error in reversing the District Court on the basis that all 
supervisory ratings are presumptively biased." This Court 
has already held that subjective or individual judgments con-. 
cerning minority employees cannot automatically be equated 
with racial prejudice. McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 803 (1973).

iii. Business Necessity

The Court of Appeals concluded that it was error “to 
approve the testing procedures for lines of progression not 
validated” and “to approve requiring applicants to pass 
two tests for positions where only one test was validated.” 
(A. 519) The Court of Appeals found that Albemarle had 
not shown that “hiring all employees into a pool is necessary 
to the safe and efficient operation of its business,” nor had it 
shown that “hiring employees for specific lines of pro­
gression is not an acceptable alternative.” (A. 519-520)

13 Most validation studies in the United States, including the United 
States Training and Employment Service General Aptitude Test Bat­
tery (GATB) which is in wide use throughout the United States, are 
based on supervisor)' ratings. Thus if the Court of Appeals was correct, 
tests which Congress has expressly authorized would be presumptively 
invalid.



44

7  -  o ./c

?-p- 4 -

4 ' 
|  •

j

J^—is -inanifcst that these objections of the Court of 
Ajjpcals go to the manner in which the tests slW lcFBe 
utilized_and arc irrelevant to the Question whether thetests 
arejob related. These objections may be grounds for modi­
fying the District Court’s order, but they are not grounds 
for enjoining the use of tests completely, as the Court of 
Appeals has done.

furthermore, the objections basically derive from the 
Court of Appeals Panel's apparent belief that Albemarle 
was requiring tests “for 14 lines of progression” in “8 de­
partments.” Apparently this belief was based on a stipu­
lation of fact which was correct as far as it went, but did. 
not take into account the subsequent evidence at trial 
which clearly demonstrated that many of such lines of 
progression and departments no longer existed. (A. 244- 
245) Although the District Court did not specifically note 
these changes in the lines of progression (A. 487), the un­
controverted record discloses that at the time of Dr. Tiffin’s 
study, Albemarle was using its tests only for .the skilled lines 
of progression in the Technical Service, Power Plant, B Mill 
Paper and Pulp Mill Departments, which were the lines Dr 
Tiffin was asked to study (A i8C).

Dr. Tiffin’s study found that the Wonderlic A" cor­
related positively with job performance in all the lines of 
progression in those departments except the B Paper Mill 
Stackiapm and the Pul£ _Mili_C. E. Recovery C 
lines of progression. So the question r e ^ y7s wbcth77he 
entire testing program should be cast aside because the

30 r / rr C U n° ParatC CftcC! °n Wacks and v' hites- See PP- 29-



}
[
I

.

45

District Court permitted the use of the Wonderlic in two 
lines of progression—one involving a total of twelve jobs, 
the other six jobs—or whether on the basis of Dr. Tiffin’s 
findings and the circumstances of the Mill it was reasonable 
to allow the testing procedure to stand. It is Albemarle’s 
contention that use of tests in both the C.E. Recovery Op­
erator and Stockroom lines was reasonable and appropriate.

In the Pulp Mill Department, the lines of progression 
do not start with the bottom job but branch out at higher 
levels so that an employee can be several jobs up the ladder 
before he will divert into the Digester Operator, the C.E.
Recovery Operator or the Caustic Operator line of progres­
sion. In the Pulp Mill Department, the Wonderlic A cor­
related significantly in Groups 9 and 1, but only the Revised 
Beta had significant correlation in Group 2 in the C.E. Re­
covery line of progression:



46

In this department, therefore, clearly Albemarle cannot pre­
dict m which line of progression an employee will be needed. 
To preserve the safe and efficient operation of its pulp mill, 
it is reasonable to require all employees entering this line to 
pass the \\ onderhc A as well as the Beta.
. Consequently, it is only as to the B Paper Mill Stockroom 

line of progression that a specific compelling reason for using 
the Wonderlic may not have been shown. However, it is 
unreasonable to disrupt the entire hiring system at the mill 
for so small a group. Nor does so small an inconsistency 
destroy the overall conclusion of the expert that it is reason­
able to use the Wonderlic for the skilled lines of progression 
generally.

Finally, the majority opinion• holds that Albemarle “has 
not shown that hiring all employees into a pool is necessary 
to the safe and efficient operation of its business, nor has it 
shown that hiring employees for specific lines of progression 
is not an acceptable alternative.” This holding misses the 
point because the use of a pool is no more discriminatory 
per SC' than hiring directly into a line of progression. How 
the hiring is done is what may cause the discrimination. 
Tnless it is assumed that Albemarle is requiring satisfactory’ 
test scores as a condition of employment for all applicants 
for the pool and thereby making the tests indirectly appli­
cable to lines of progression for which the tests are not vali­
dated, there is no discrimination by reason of the tests. There 
is no evidence to support that assumption and no reason to 
doubt that Albemarle is limiting its tests to potential candi­
dates for the “skilled lines” of progression. The District 
Court, whose job it was to fashion the remedy in this case, 
made specific provisions for the operation of the Extra Board 
or pool in its order so as to insure against the possibility of 
unfairness in its operation.



47

It is abundantly dear, if not precisely stated, that due 
to the modernization of the mill and the elimination of 
various Departments, the Extra Board or “pool” is a device 
foi sharing the available work among the many employees 
who would otherwise have been completely displaced. For 
Albemaile it has the advantage of flexibility in work­
force.

There was no suggestion made that some other method 
of handling this situation might be less subject to discrimi­
natory effect. To require Albemarle to conjure up some 
other system and disprove that it would have less discrimi­
natory effect is unreasonable, if not unreal.45

Albemarle respectfully submits that the Court of Ap­
peals had no basis upon which to reverse the District 
Courts refusal to enjoin its testing program and, there­
fore, the Court of Appeals should m turn be reversed by 
this Court.

B. In Any Evert The Court Of Appeals Erred In Not Remanding 
The Issue To The District Court.

The Court of Appeals.panel concluded its discussion of 
testing by stating:

“Thus we hold that the district court erred in uphold­
ing the validity of the pre-employment personnel tests 
and in refusing to enjoin their use.”

The final word of the opinion is simply, “Reversed.” Such 
bare reversal on the testing issues is improper on several

.r - , T n , ' 1 '’ °: “ ^ " “uve requirement is not clear, 
title VII imposes a heavy burden on defendants after a prim a facie 
effect on minorities is shown. Imposing impossibly strict standards on 
private employers collides directly with the business efficiency that is 
tne backbone of ths country’s economic power.



48

grounds and the Court of Appeals Panel should instead 
navre remanded to the ^District Court with permission, to 
reopen the record.

Even if we were to assume that the Court of Appeals was 
correct on the merits, its decision has the effect of setting 
forth the new rule that an employer has the burden of prov­
ing job relatedness in strict accordance with the EEOC 
guidelines and the standards of proof detailed therein. 
Simple fairness requires that Albemarle, against which the 
new rule has been invoked, should be afforded an oppor­
tunity to present evidence with the new rule in mind. Mc­
Donnell Douglas Corp. v. Green, supra; England v. Louisi­
ana Medical Examiners, 375 U.S. 411 (1964). Under prac­
tically the same circumstances, the Court of Appeals for the 
Fifth Circuit has noted :

[Sjtandards for testing validity comprise a new and 
complicated aica of the law. While the Hite Study did 
not demonstrate compliance with, the Act, we hesitate 
to penalize this litigant, the first to confront such a de­
manding burden of proof, for failing to introduce a 
more rigorous study. Had our standards been articu­
lated at the time of trial, it may be that the company 
could have proven its compliance. Therefore, rather 
than now proscribing the testing program which Geor­
gia Power has used, we remand this phase of the case 
to the trial court with directions to permit the company 
a reasonably prompt opportunity to validate the testing 
program applied to the plaintiffs, in accordance with 
the principles enunciated in this opinion.” Cleoreia 
Power supra, at 917-18.

A bare reversal allowing no further consideration by 
the District Court is especially inappropriate in light of 
the further fact that the Court of Appeals Panel under-



49

took to make factual determinations on issues as to which 
the District Court did not, and was not requested to make 
findings.

Thus the Court of Appeals Panel erred in its finding 
that tests were required at the time of trial in fourteen lines 
of progression in eight departments; they were in fact being 
utilized only in eight lines of progression in four depart­
ments/'0

Similarly, in applying the literal language of Section 
1607.4(c) (1) of the guidelines, the Court of Appeals said 
it did not reach the question of whether a testing proce­
dure which takes into account higher-level job require­
ments is permissible:

“. . . because of insufficient evidence below as to the 
time it takes an employee to progress to the higher level 
job.3’

No such time computation was made by the District Court 
because the issue was not injected into the case until the 
Amicus Curiae filed its brief in the Court eff Appeals. But in 
fact the raw data with which to make the computations was 
in evidence and available to the District Court/7

Even worse, the Court of Appeals Panel made a finding 
as to the disparate racial effect of the Wondcrlic test 
scores based on a document introduced in evidence in 
the Court of Appeals after all briefs had "been filed. Ob­
viously, Albemarle had no chance to probe the evidentiary 
value of that document, nor did the District Court have

*° See supra, p. 13.
47 Plaintiffs’ Exhibit No. 10 shows how long it took each employee to 

promote to each and every job. Hence, to determine how long it, in 
fact, took to progress from job to job would be a simple matter of 
computation.



50

opportunity to pass upon its relevance to or impact on the 
issues raised in this case.4S
. ^  ycr> êast’ the District Court should have been 

given the chance to determine the facts upon which issues not 
presented to the District Court were to be decided. Commis­
sioner v. Dubcrstein, 363 U.S. 278, 292-293 (1960).

tmmen-nt °f appdJate court *> read the

n  t D ’Stri\A/i ^ ? Urt traditional Equitable Discretion To
Determine W hether Back Pay Was An Appropriate Remedy.

T ^ T  V Ip  LF'AVES T H E  AvVAIU5 Q ii D e n ia l  O f  Ba c k  Pay 
C o u r t s^ *QUITABLE D i s “ e ™ n  O f  T h e  D is t r ic t

In the instant case, the District Court declined to award
bach pay to the plaintiffs based on the cumulative effect of 
several equitable factors.40

In what was apparently the first Title VII case to do so 
the Court of Appeals below reversed the trial judge’s dis 
a-eticmary- refusal to award back pay by.adopting, a

43 See supra, PP. 30-31.

faith non-com pliancef w hh T ide  V lP s 're a u h  presenlf d of bad
Albemarle Paper Company Sm.n l l D-K-ments on the part of

at all levels of employment Finally dip ™ le.hignest wages
tardy claims for mone ary relief m he L  n“  7  that Plaintiffs’ 
their express disclaimer of aty  iment to T e l s .S  ^  C° Up!e,d Wllh 
non-named class members at the outlet of the * )T10ne)tai''r' re 'e  ̂ ^°r
stantially prejudiced the Defendants. (A. 498) e instant legation sub-



51

circumstances” test under which once a violation is found, 
a back pay award is mandatory absent special circumstances 
which would render such an award unjust. (A. 523-524)50 
Ii is submitted that the “special circumstances” test severely 
distorts Congressional intent, as evidenced by the plain lan­
guage of Section 706(g) of Title VII, 42 U.S.C. §2000(e)- 
5(g), and operates to reduce traditional concepts of equi­
table discretion in the trial courts to a nullity.

Section 706(g), 42 U.S.C. §2000e-5(g), provides that if 
the district court in a private Title VII action finds that the 
respondent has intentionally engaged, or is intentionally en­
gaging, in the unlawful employment practice alleged,

“the Court may enjoin the respondent from engaging 
in such unlawful employment practice, and order such 
affirmative action as may be appropriate, which may in­
clude, but is not limited to, reinstatement or hiring of 
employees, with or without back pay . . .  or any other 
equitable relief as the court deems a p p ro p r ia te (Em­
phasis added).

Use of the word may in defining the enforcement or 
remedial powers of a court or agency normally signifies the 
grant of general equitable discretion to invoke, or refrain 
from invoking, the authority conferred.

The Civil Rights Act of 1964 is replete with careful dis­
tinctions between use of the word shall and the word may.51

Other courts of appeals have since adopted varying versions of 
the special circumstances test for reviewing the District "Courts’ Title 
VII decrees involving back pay. See e.g., Duhon v. Goodyear Tire & 
Rubber Co., 494 F.2d 817, 818 (5th Cir. 1974) ; Pettway v. American 
Cast Iron Pipe Co., 494 F.2d 211, 252-53, (5th Cir. 1974) ; Head v. 
Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973).

* Compare, 42 U.S.C. §§2000a, 2000a-l(a), and 2000a-2 with 
42 U.S.C. §2000e-3(a). ’



52

Moreover, the legislative history of Section 706(g) con­
clusively establishes that the word may was intended to con- 
e- discretionary remedial powers on the District Courts. In

tT e V n 'B  COn,f°rmi Ti v  VH rCmedies t0 lhose S^nted to 
l A  1C Natl°na) Labor delations Act, 29
th a t. ’ b 6° (c) ’ carI>' vei'Sions of the Title VII provided

If the court finds that the respondent has engaged in
the court Sing “? "n Un!aVVf,U! e,»Plo>™<™ practice . . .. fr .l ‘ ‘ • shal[ mdcr tlie respondent to take such 
affiimative action, including reinstatement or hiring of 
S^P*oyees> v’ ith or without back pay . . (H.R. 7^59
§ 707(e)) (emphasis added).

However the word may was substituted fo r shell in the 
lansfie d-Dirksen amendment adopted on the Senate floor "

I his legislative ! ' ' 1history demonstrates that the— i ——u.um uu mm trie oxart cf
remedial authority in Section 706(g) is inherently equitable
m nature and the question of back pay, like that of other
onus o, equitable relief, is left to the discretion of the trial 

court.

2^CU ^ c â ‘l6^fc)C latter

“  “ “  ™'e- S“  313 u l  *7T T m

53 Senator Dirksen commented that:

reinstatcm^dl n 7 b X a r '
been revised to read 'mav * * * order surh aft?™,*- • h



53

Indeed, there has never been any question that the above- 
quoted language vests the District Courts with discretion in 
fashioning relief.54 The question in this case is whether that 
discretion is properly limited by a “special circumstances” 
rule or whether it is governed by traditional equitable prin­
ciples.

Albemarle recognizes that judicial review is not eliminated 
by the discretionary nature of the District Court’s remedial 
powers under Title V II; the discretion must be exercised 
consistently with legislative objectives.50

In Griggs v. Duke Power Co., 401 U.S. at 429-30 (1971) 
This Court defined the purpose of Title VII as follows:

“The objective of Congress in the enactment of Title 
VII is plain from the language of the statute. It was to 
achieve equality of employment opportunities and re­
move barriers that have operated in the past to favor 
an identifiable group of white employees over other 
employees.”

This Court’s interpretation is supported not only by the 
plain language of Title VII, but also by its legislative history. 
Thus, in the sectional analysis of H.R. 7152 written by the 
House Judiciary Committee it is stated:

“The purpose of this title is to eliminate, through the 
utilization of formal and informal remedial procedures 
discrimination in employment based on race, color, re­
ligion or national origin.” (H.R. Rep. No. 914, 88th 
Cong., 1st Sess. (Title VII (1963)).

M Sec, e.g., Curlis v. Loether, 415 U.S. 189, 197 (1974); Head v. 
Timken Roller Bearing Co., 486 F. 2d 870, 876 (6th Cir. 1973) 
(“Congress evidently intended that the award of back pay should rest 
within the sound discretion of the trial judge” ) ; United States v. 
N. L. Industries, Ir.c., 479 F.2d 354 (8th Cir. 1973) (discretionary 
denial of back pay upheld due to unsettled state of law in Circuit).

55 Hecht Co. v. Bowles, 321 U.S. 321 (1944).



54

«T hV 1 heref°re’ an en'°neous extension to assert that 
The clear purpose of Title VII is . . .  to make whole in a

pecuniary fashion, those who have suffered by [all proscribed

t0 e, f / r a c ’, i  dfsr '• ' 969)' C,eari>• in g r e s s  wishedend racial discumination m employment. Bui the Con
Sc ~ ' » »  ®  <lle prospective d i m i n a t J o f X

cu 7 l Z r C!,C“̂  m°" reparali0-  T1“U ht battle over remedies for a Title VII violation in 
c uchng the substitution of the District Courts for the EEOC

“  " "  SUbStiU' li0" 0f foe_Section 706(g), indicate that Congress had no precon
cen-ed notions .hat compensatory damages in a d d L n T o

apprepriate ,,abs'mV  , Ra,her> Congress .visited to leave resolution of
implex tcniedial problems to the traditional .11 -

ootvers of the federd courts of equity'" ’

A, ^ , I t C,al f cumstances” ru,c ad°P«d by the Court of
Thfs Courfs dPePr :Catl°n V be baCt Pay rCmcd>' tfcrives front

i n , ,  m u s 7 m V m ) W7 "' • Park * * ” >**>  ________  (lyD8). Newman was an action under

• m ,  ^ f c C r t ' T i p p t r f o V t v ^ j r  F -2i‘ 240 (3dVital role of the DistrictCourts’ d ise te t^  ^ ^ !rculf recogn:zed the 
expressly rejected' the “sDfdal'nfre m formulating relief and
court below for that reason^ ’ cunlstances rule adopted by the

Scf-end,'Chtcuif ^  ,from the Fourth Circuit and
trial judge may deny b a c k n l ^ ' “ C™1!5tancf .  UTlder which a 
inclined to follow the more o e r s t i - ^ '^  °n 1 ?1S record vve are 
Circuit in Manning v. Genera! Motorc p eaSOniIlg of the Sixth 
812] at 815,-816; the Ninth^Circuit^ ° S <? r&’ SUpra> [466 F-2d 
Inc., supra. [46? F 2d 10CP1 nt im e  5 | lacf e' v- Yellow Cabs, 
U B h t tA  s k t h ,  £ £ , ■ ' »
mg opinion of Judge Borcnian of tl,„ r  r T and the Assent- .
V‘ AIbcrnarIc'’ suPr a ” (Footnote omittedMSOV f d z l ^  Moody



55

Title II of the Civil Rights Act of 1954, 42 U.S.C. §2000a-l 
ei. seq. in which This Court held that successful plaintiffs 
in such cases should ordinarily be awarded attorney fees ab­
sent special circumstances which would render such an 
award unjust. This Court reasoned that private litigants in 
Tide II cases5, act not for themselves alone, but as pri­
vate attorneys general, vindicating a policy concerning public 
accommodations that Congress considered of highest priority. 
Newman, supra, at 402. '

Ih e  recovery of back pay, being compensatory for past 
individual injury (see p. 66, infra), is vastly different from 
attorney fees for ‘"private attorneys general” for advancing 
the commonweal No compelling public purpose mandates 
an award of such private relief to Title VII plaintiffs.

2. T h e  D is c r e t io n  O f  A  D is t r ic t  C o u r t  R egarding  T h e  
Ba c k  P ay  R em e d y  S h o u l d  B e  G uid ed  By  T ra d itio n a l  
E q u it a b l e  P r in c ip l e s .

The real difficulty with a “special circumstances” rule 
is that it deprives the trier of fact (who is most familiar with 
the ambiance of the case and the merits of each position) of 
an opportunity to formulate an award in the light of tradi­
tional equitable principles.

Complex equitable factors affect whether back pay is an 
appropriate remedy in a Title VII action. In Georgia Power 
supra at 922, for example, the Court held in relation to back

l_he provisions for attorneys’ fees under Title II and Title VII
U S C,omf>are, 42 U-S-c - §2000e-5(k) with 42
L.S.C. §_0j0a-3.b). Each was deemed by Congress as sufficiently 
significant to ne expressed m an identical subsection of each Title. 
Ihe authority for the grant or denial of back nay in Title VII is 
lound among the general equitable remedies. 42 U.S.C. S9000e-5fed

° bff °n-1V irVen,ded Separate treatment of attorneys’ fees and 
back pay, affording the latter no greater presumption of appropriate­
ness than its companion remedies. ‘



56

pay, that equity demands that a true balance of interests be 
struck. The Court set forth a list of factors to be considered 
which, it cautioned, was illustrative and not exhaustive: (1) 
whether back wages are properly owing; (2) limitations and 
laches; (3) factors of economic reality; and (4) physical 
and fiscal limitations of the court to grant and supervise the 
relief. For other cases demonstrating complex equitable 
factors, see Normal] v. Missouri Pac. Ry. Cc., (497 F.2d
596 (8th Cir. 1974), cert, denied, .... U.S......, 43 U.S.L.W.
3413 (U.S. Jan. 28, 1975) ; United States v. St. Louis & S.F. 
Ry., 464 F.2d 301, 311 (8th Cir. 1972), cert, denied; 409 
U.S. 1107 (1973); Shaeffer v. Sen Diego Yellow Cabs, Inc., 
462 F.2d 1002, 1006 (9th Cir. 1972); Lc Blanc v. Southern 
Bell Telephone and Telegraph Co., 460 F.2d 1228, 1229 (5th 
Cir.) cert, denied, 409 U.S. 990 (1972); United States v. 
Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970); 
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 
1125 (5th Cir. 1969).

Two equitable factors present in this case were expressly 
cited by the District Court to support its denial of back pay. 
One was absence of bad faith non-compliance by Albemarle.

Albemarle submits that, while it may be argued that good 
faith in and of itself may not be sufficient cause for a denial 
of back pay, good faith is, at a minimum, a relevant factor 
which must be considered in balancing the equities to formu­
late an appropriate remedy.'* A number of courts have 
so held in Title VII cases. See Norman v. Missouri Pac. 
Ry. Co., supra; Kober v. Westinghouse Elec. Corp., 480

E The District Court’s finding of Albemarle’s good faith is amply 
supported on the record. Albemarle engaged in affirmative recruit­
ment of blacks at an early point; AJbemarle merged its Extra Boards 
and some lines of progression to enhance the opportunities of blacks; 
and, as judicial gloss was put upon Title VII, Albemarle took early 
steps to ensure its compliance. (See pp. 14-16 supra).



57

F.2d 240 (3rd Cir. 1973); United States v. N.L. In­
dustries, Inc., 479 F.2d 354 (8th Cir. 1973) ; United States 
v. St. Louis & S.F. Ry., supra. These cases which have held 
that good faith is .irrelevant or that it is an inadequate 
defense to a back pay claim” have apparently relied cn 
This Court’s observation in Griggs, supra:

“We do not suggest that either the District Court or the 
Court of Appeals erred in examining the employer’s 
intent; but good intent or absence of discriminatory 
intent does not redeem employment procedures or 
testing mechanisms that opeiate as ‘built-in head­
winds’ for minority groups and are unrelated to meas­
uring job capability.” 401 U.S. at 432.

It must be remembered that This Court in Griggs was 
speaking of good faith as a defense to a finding of a viola­
tion. Clearly a fundamental distinction exists between good 
faith as it relates to the continued maintenance of a discrimi­
nator)' employment practice which must be eliminated to 
effectuate the purpose of the Act, and good faith as it relates 
to an award of money damages. Where the fundamental 
purpose of the Act—the prospective elimination of obstacles 
to equal employment opportunity—is in issue, This Court has 
properly found good faith irrelevant. Where the prospective 
elimination of discriminatory barriers to employment has 
been achieved and the issue is reduced to whether an em­
ployer should be forced, by an award of back pay, to pay 
again for work already performed and paid for, good faith 
is clearly a relevant consideration.

59 See e.g., Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 
1974); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436 (5th
Cir. 3974) cert, denied, ...  U.S...... , 43 U.S.L.W. 3306 (U.S. Nov.
26, 3974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1S74) ; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 
1364 ( 5th Cir. 1974): Head v. Timken Roller Bearing Co. 485 F 2d 
870 (6th Cir. 1973). ' ,



58

A second factor, of even greater importance in this case, is 
the conduct of the plaintiffs. Plaintiffs’ complaint, filed 
August 25, 1966, sought only injunctive and other equitable 
relief. In response to Albemarle’s Motion [to dismiss as a 
class action and] for Summary Judgment filed October 5, 
1966, plaintiffs formally represented to the Court, “no money 
damages are sought for any member of the class not before 
the Court.’’ (A. 13-14). Plaintiffs’ purpose for disclaiming 
back pay was clearly to qualify their suit as a class action 
under Rule 23(b) (2), Federal Rules of Civil Procedure. It 
was not until four )cars had passed that Plaintiffs injected 
back pay claims into the case/'’ The long delay in adding the 
back pay claims satisfies all the elements of laches—a tradi­
tional equitable concern that the Court of Appeals found to 
be an insufficient “special circumstance.”

Plaintiffs’ disclaimer at tire time of Albemarle’s Motion 
for Summary judgment created the justifiable conclusion 
that Plaintiffs were not pursuing their back pay claims, 
furthermore, Plaintiffs clearly knew their rights under the 
Act, and their delay is not justifiable.

All defendants have been prejudiced by Plaintiffs’ tardy 
assertion of a claim which Plaintiffs initially disavowed. Dis­
covery relating to individual claims was clearly rendered 
much more difficult, if not impossible, by the passage of time.

Moreover, the parties have changed positions. Hoerner 
Waldorf Corporation, at the time an innocent third party, 
purchased Albemarle’s assets in 1968 in the belief that in 
this suit plaintiffs were not seeking damages. Thus, the 
claim of laches is meritorious.

Plaintiffs should not be permitted to excuse their laches 
by resort to Rule 54(c) of the Federal Rules of Civil Proce-

60 The first official indication that back pay would be in issue was in 
the District Court’s Memorandum Opinion and Order entered Sep­
tember 29, 1970. (A. 37-38).



59

dure, relied on in Robinson v. Lorillard, 444 F.2d 791 (4tli 
Cir. 1971), to uphold a discretionary grant of back pay de­
spite tire claim’s tardy assertion. This is not merely a case 
of a tardy assertion of the claim. Plaintiffs at the outset ex­
pressly disavowed any intent to seek back pay. The substan­
tial prejudice to Albemarle is amply demonstrated above.01 
The Fourth Circuit in Robinson cited with approval the fol­
lowing language from Rental Development Corp. of America 
v. Lavcry, 304 F.2d 839, 842 (9th Cir.4 962) :

“If, however, it is made to appear that the failure to 
ask for particular relief substantially prejudiced the op­
posing party, Rule 54(c) does not sanction the granting 
of relief not prayed for in the pleadings.”

Therefore, the substantial prejudice to Albemarle caused 
by plaintiffs’ express disavowal of back pay claims mandated 
the Distitc,. Court s denial of an award or back pay in this 
case.

The Court of Appeals’ “special circumstances” rule, is at 
best a vague standard. District Courts are hardly better 
guided by “special circumstances” than by traditional equi­
table principles.

Moreover, the District Court was never granted the op­
portunity to apply the “special circumstances” rule to the 
facts of this case. Had it been granted such an opportunity, 
the District Court may well have articulated further factors 
present in this case in justification of its denial of back pay. 
Thus, the Court may have explicitly cited the speculative 
nature of back pay relief in Title VII cases02, the unsettled

m The District Court’s finding of substantial prejudice (A. 498) to 
Albemarle cannot be said to be clearly erroneous.

42 Since Title VII litigation is “rightful place” litigation, back pay 
awards must take into consideration, on an individual basis for each 
alleged discriminatee, (1) selection of the presumably appropriate



60

state of Title VII law during the pendency of this action*5 
the absence of unjust enrichment to Albemarle*4, and the 
real failure of plaintiffs to make their case for back pay*5 as 
equitable factors which it considered in reaching its result.

. , ot only is a “special circumstances” rule hi conflict 
mth the plain language of the Act, it is inimical to the 
prompt elimination of “built-in headwinds” to equal em 
ployment opportunity. As a practical matter, a special 
circumstances rule will serve to inhibit voluntary concilia­
tion of Title VII claims. Thus, if the granting of any form 
ol injunctive relief will result in the virtually automatic trw- 
gam g of back pay liability, ever)' employer, however well 
mtentioned, will, out of fear of back pay judgments, be com­
p e lle d ^  oppose each item of requested injunctive relief, 
even if it be with respect to matters such as seniority which 
can benefit only employees— both black and white- -and not 
the employer. Such employers will surely not, as Albemarle 
did, voluntarily consent to entry of injunctive relief of the 
type sought by plaintiffs.60

Finally, the Court of Appeals reversed the District Court’s 
denial of back pay only after deciding that the factors cited
“rightful place”, (2) whether the employee would have achieved that

S  S ^ “ »n„a5 W ,h'  Vi0'a,i“ ’ anCi (3) W W  M * .

( S th c i r A m ) .  SU" “  V' N ' U  « 7  F.2d 354, 380

n q 4 C w u g'’ Porier V- Warner Holding Co., 323 U.S 395 399-400

.rial 2 o t‘mS b“ k ^  W“ 'd bc «GO See supra pp. 20-21.



61

by the District Court were individually insufficient to amount 
to special circumstances. Clearly the Court of Appeals erred 
in considering the District Court’s reasons for denying back 
pay as isolated factors and not in their totality.07

Since the decision of the Court of Appeals, by adapting 
Newman’s special circumstances rule to back pay claims 
effectively precludes the trial court from considering tradi­
tional equitable principles in deciding whether or not to 
award back pay, it should be reversed.

3. E v e n  U n d e r  A  “ S pec ia l  C ir c u m s t a n c e s ”  Sta n d a rd ,. T h e  
D ist r ic t  C o u r t  W as  J u s t if ie d  I n  D e n y in g  Ba c k  P ay .

The factors cited by the District Court in denying back 
pay—Albemarle’s good faith and Plaintiffs’ tardiness in 
filing the claim—arc of sufficient importance when taken 
together with the other factors mentioned above, to amount 
to special circumstances justifying the denial of back pay.

D. Back Pay Should Not Be Awarded To Class Members Who Did 
Not File Charges With The Equal Employment Opportunity 
Commission.

Upon the theory that back pay is merely a part of equit­
able relief, the Court of Appeals for the Fourth Circuit in 
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), 
followed below, permitted the recovery of back pay by all

. 67 See Kober v. Westingkouse Electric Corp., 480 F.2d 240 248 
(3d . Cir. 1973) :

“The statute says that the court may order such affirmative action 
as may be appropriate, with or without back pay. I t is our deter­
mination that this language clearly leaves the award or denial of 
back pay to the discretion of the district court to be exercised in 
the light of all the circumstances of each case.” (Emphasis 
added).



62
members of a Rule 23(b) (2) class in a Title VII action.68 
V ithout specifically considering the issue, the Lorillard de­
cision confers on the courts by the device of nomenclature 
(i.c. class action ) jurisdiction to award individual nione- 
taiy ldief to persons who otherwise have no jurisdictional 
standing before the Court. The decisions of This Court are 
to the contrary'. Zahn v. International Paper Co., 414 U.S. 
291 f 1973); Snyder v. Harris, 394 U.S. 332 (1969).

It is one thing to bring a class action seeking prospective 
relief from policies or practices generally applicable to a 
class, such as a discriminatory seniority system, since the re­
lief will apply to the class members, whether or not repre­
sented in the proceeding. It is quite another matter to bring 
an action for monetary relief on behalf of hundreds of indi­
viduals who may or may not have been actually damaged 
by application of broad practices to them.63 Cleat ly back pay 
is lediess tor an individual wrong. Even the decision below 
in this case warned that oack pay is limited to damages 
which are actually suffered. (A. 524)70

e6To the same effect: Bowc v. Colgate Palmolive Co., 416 F.2d 
711 (7th Cir. 1969) ; Franks v. Bowman Transportation Co., 4S5 F.2d
398 (5th Cir. 1974) cert, denied .... U.S......, 43 U.S.L.W. 3330 (U.S.
Uec.. 10, 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870 
(6th Cir. 1973); and others.

63 A critical factor ignored by the Court of Appeals is the very heavy 
burden of suit management that class-wide back pay cases would im- 
pose on District Courts. I he speculative nature of the relief together 
with the individual proofs required would make even the administra­
tive task of designating subclasses very difficult. The gathering col­
lating, and weighing of individual claims would be an even greater 
burden. °

'° See also Johnson v. Goodyear Tire and Rubber Co. 491 F 2d 
1364, 1375 (5th Cir. 1974) : 5

‘‘There should be a separate determination on an individual 
basis as to who is entitled to recovery and the amount of such 
recovery.”

T



63

I he administrative complaint and conciliation procedures 
built into XitJc \  II were an integral part of the legislative 
compromise which led to the enactment of the Civil Rights 
Act of 1964. i hereby the employer is given early notice of 
charges of discrimination filed against him, administrative 
investigation of such charges, and an opportunity to con­
ciliate such charges as may have merit. Section 706(a), 42 
U.S.C. §2O0Oe-5 (a ). A court-made rule permitting class'Jf 
wide back pay permits parties who have not filed a chargaf 
to cn cum vent litis administrative process to the prejudice, 
of employers. Not only are employers thus denied the pro­
tections provided by the statute, but are also denied timely 
notice of the nature and scope of the individual claims 
against them and the opportunity to prepare defenses to 
such individual claims.

Back pay claims are unique and personal to the individual, 
m  a claim for injunctive rebel, an employer who is unwilling 
to eliminate an allegedly discriminatory practice (such as 
job testing) in conciliation with one charging party, may 
leasonably be expected to adhere to the same position 
with respect to other individuals. By the same token, con­
ciliation of injunctive matters with a single charging party is 
effectively conciliation with everyone similarly situated. In 
contrast, the fact that an employer is unable to reach agree­
ment with one individual charging party regarding back 
pay does not piecludc the possibility that such an agreement 
could be reached on other individual back pay claims. The 
eligibility of an individual for back pay turns upon the speci­
fic circumstances applicable to that individual, lhus, the suc­
cess or failure of conciliation of one back pay claim turns on 
factois unique to the individual, and the filing and concilia­
tion of charges by other individuals claiming back pay does 
not involve duplication of effort.



64-

Judge Robert R. Merbige in Austin v. Reynolds Metals 
Co., 327 F. Supp. 1145 (E.D. Va. 1970), summed it up 
succinctly:

“The right to individual compensation, while an ele­
ment of federal policy incorporated in the act, 42 CJ.S.C. 
§20C>0e-5(g), is not so important as injunctive relief 
from a policy injurious to the public as a whole. Indi­
viduals can consistently be required to prosecute ad­
ministrative charges at their own initiative in order to 
be eligible for damages. Possibly the court in Antonopu- 
los [v. Aerojet-General Corp., 295 F.Supp. 1390 (E.D. 
Cal. 1968) ] believed that the charging party intended 

■ her submission to be a joint claim and honored it as 
such, or that at any rate the administrative agency had 
behaved accordingly. But to allow any individual to 
recover damages for a practice of which he has not 
complained administratively would frustrate the Com­
mission’s role in a manner which has been consistently 
disapproved. Johnson v. Seaboard Air Line Railroad 
Co., 405 F.2d 645, 1 FEP Cases 456, 69 LRRM 2916 
(4th Cir. 1967). The Commission’s conciliation efforts 
amount essentially to negotiations over a settlement 
satisfactory to all concerned and consistent with the Act. 
Success is not always complete, as this case shows. But 
there will be no genuine opportunity to conciliate if all 
of the aggrieved individuals are not before the Commis­
sion and the magnitude of their claims is not apparent. 
Therefore this Court holds that although non-charging 
parties may intervene on the issue of injunctive relief, 
they may not now sue for damages.”

Thus, while there may exist a common question of law in 
Title VII cases, that is the only relation between the mem­
bers of the class, and their back pay claims are no more than 
claims for individual redress, irivolving separate issues and 
sometimes conflicts of interests. Among the individual issues 
involved in computing whether damages warranting back



-\̂  •

'65

pay are actually suffered are: whether the individual was 
otherwise qualified by, for example, his experience, employ­
ment history and background, for the job or jobs in question; 
whether he actually applied for the job in question or would 
have applied absent a violation of the Act; whether, at the 
time of application a vacancy in the job existed; the pay 
rates of the individual and those of various jobs in question; 
and individual matters relating to mitigation (including in­
terim earnings, see §706(g), 42 U.S.C. §2000e-5 (g) ).

There is no question that in order to have standing to 
bring an action under Title VII, an individual must have 
filed timely charges of discrimination with the EEOC. This 
is a jurisdictional requirement. McDonnell Douglas Corp., 
supra at 798; Dent v. St. Louis & S.F. Ry.' Co., 406 F.2d 
399 (5th Cir. 1969) ; Stebbins v. Nationwide Mutual his. 
Co., 382 F.2d 267 (4th Cir.), cert, denied, 390 U.S. 910 
(1968); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 
1971); Griffin v. Pacific Maritime Ass’n., 478 F.2d 1118 
(9th Cir.), cert, denied, 414 U.S. 859 (1973); Cox v. United 
States Gypsum Co., 284 F. Supp. 74, 76 (N.D. lnd. 1968), 
afi’d, 409 F.2d 289 (7th Cir. 1969).

In Stebbins v. Nationwide Mutual Insurance Co., 382 
F.2d at 268, (4th Cir. 1967) the Court held :

“Having reviewed the legislative history of the Act, as 
well as its language, we agree with the District Judge 
that the Plaintiff could not bypass the federal agency 
and apply directly to the courts for relief. Congress 
established comprehensive and detailed procedures to 
afford the EEOC the opportunity to attempt by ad­
ministrative action to conciliate and mediate unlawful 
employment practices with a view to obtaining volun­
tary compliance. The plaintiff must therefore seek his 
administrative remedies before instituting Court action 
against the alleged discriminator.”



.

66

Therefore, the filing of a charge is jurisdictional and serves ] 
a very important purpose. In Zahn v. International Paper I 
C°7> 414 U.S. 291 (1973), This Court upheld the refusal of a / 
Distjict Court to permit a case to proceed as a class action/ 
because the unnamed plaintiffs, having separate and dis 
tmct claims, did not individually satisfy the jurisdictiona 
amount requirement. While Zahn involved jurisdictional 
amount, the principle is applicable here.

The decisions are unanimous that the jurisdiction of the 
Federal Courts is not available for the individual discrimina­
tion claims of persons who have not filed charges with the 
EEOC; and Rule 23 cannot be manipulated to confer juris­
diction where it does not otherwise exist. Zahn, supra.

The Federal Rules themselves prohibit the use of the class 
action device to circumvent statutory jurisdictional require­
ments. Snyder v. Harris, 394 U.S. 332, 33? (1969). Rule 
82 provides explicitly that:

‘These rules shall not be construed to extend or limit 
the jurisdiction of the United States district courts or 
the venue of actions therein.”

Quite apart from jurisdictional amounts therefore, Rule 82 
prevents the manipulation of Rule 23 to bypass any jurisdic­
tional requirements. Weiner v. Bank of Kino of Prussia 358 
F. Supp. 684, 694-96 (E.D. Fa. 1973); Spcrberg v. Fire-

5m l ) lre and Rubber Co'’ 65 F R D - 70>73-74 (n .d . Ohio,

Therefoie, bach pay, if any is held appropriate in this 
case, should be limited to the named plaintiffs.



67

VIII.

CONCLUSION

1. A f f ir m  T h e  D is t r ic t  C o u r t

After hearing eight days of evidence and having travelled 
to Roanoke Rapids and viewed the mill, the District Judge 
concluded that Albemarle’s tests were job related and de­
clined to enjoin their use. He did, however, enjoin the use
of a high school education requirement and prescribed a 
seniority system based on “mill seniority” and a system for 
the non-discriminatory use of the Extra Board (or pool). In 
his discretion, the District Judge denied back pay. It is ap­
parent from the record and from his findings of facts and 
conclusions of law, that the District Judge had diligently 
familiarized himself with all the ramifications of the case.

Albemarle submits that the District Judge was correct not 
only on the facts but also on the law. His order should be 
affirmed and after nearly nine years this litigation should be 
brought to an end. For those reasons, Albemarle requests 
This Court to reverse the Court of Appeals and affirm the 
judgment of the District Court.

2. R e v e r se  T h e  C o u r t  O f  A p p e a l s  A n d  R e m a n d  T o T h e  
D is t r ic t  C o u r t  F or  F u r t h e r  P r o c e e d in g s

Even if tne panel of the Court of Appeals were correct on 
the law, its decision still should be reversed by This Court 
and the case remanded to the District Court for further pro­
ceedings. The remand could conceivably be on a variety of 
issues depending upon This Court’s views on the broad test­
ing and back pay issues. Thus, Albemarle’s secondary re­
quest for relief is that to the extent the District Court’s de-



: rV
■ i-O i*  ■ —. /  » *  W .  U b  ■*«!<*

68

cision is not upheld that the case be remanded to the District 
Court for further proceedings.

Respectfully submitted,
F r a n c i s  V. L o w d e n , J r .

700 East Main Street 
Richmond, Virginia 23219

G o r d o n  G .  B u s d i c k e r

1300 Northwestern Bank Bldg. 
Minneapolis, Minnesota 55402

Counsel for Petitioners

February 13, 1975

!
I

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