Shaw, Ted, 1995, undated - 1 of 8

    No. 87-801

In the

mprerne (Etmrt erf tip? States?
October Term, 1987

Hazel Robinson,
Petitioner,

vs.
Montgomery Ward & Company, Inc.,

Respondent.

On Petition for a Writ of Certiorari to the United 
States Court of Appeals for the Fourth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Randel E. Phillips* 
Hayden J. Silver, III 
Margaret A. Behringer 

Moore & Van A llen 
3000 NCNB Plaza 
Charlotte, N.C. 28280 
(704) 331-1000

Attorneys for Respondent

*Counsel of Record
December 1987



QUESTIONS PRESENTED

1. Whether dismissal of a plain­
tiff's employment discrimination claims 

under Title VII and § 1981 was proper 
where plaintiff's purported "direct" 

evidence was not connected to the plain­
tiff or to an employment decision involv­
ing the plaintiff and the circumstantial 
evidence failed to support a reasonable 
inference of discriminatory intent?

2. Whether a plaintiff who seeks 
to avail herself of the indirect method 
of proof set forth in McDonnell Douglas 
v. Green failed to make out a prima facie 
case where, by her own admission, she did 
not apply and was not equally qualified 
for the job?



TABLE OF CONTENTS

RESTATEMENT OF QUESTIONS
PRESENTED . .................. ....... i
TABLE OF CONTENTS .....   ii
TABLE OF AUTHORITIES ...........  iv

STATEMENT OF THE CASE .............. 1
SUMMARY OF ARGUMENT ................ 11
ARGUMENT ............................  13
I. THE FOURTH CIRCUIT PROPERLY 

CONCLUDED THAT PETITIONER 
HAD FAILED TO ESTABLISH 
A PRIMA FACIE CASE ..............13
A. Petitioner was not

equally qualified. .......  19
B. Petitioner chose not to

apply for promotion........22
C . There was no evidence 

that Montgomery Ward 
sought applicants with 
qualifications equal
to petitioner' s  ...... . ... 27

D . Petitioner did not 
introduce any evidence 
of pretext as to 
Montgomery Ward's 
decision to train 
McManus instead of 
petitioner 28



E. Petitioner's "Direct 
Evidence" of Discrim­
ination was Insuffi­
cient to Establish 
a Prima Facie Case........33

II. CERTIORARI IS INAPPROPRIATE 
BECAUSE THIS CASE PRESENTS 
QUESTIONS OF EVIDENCE 
RATHER THAN ANY ISSUES OF
LEGAL PRINCIPLE ............... 38

III. THERE IS NO "PATTERN OF 
IMPROPER USURPATION" BY
THE FOURTH CIRCUIT ............ 42

CONCLUSION ..........................51
APPENDIX
Excerpts from Trial Transcript .... 1A

Testimony of John Hunt ....... 1A
Testimony of Joe Matthews ....10A
Testimony of Sue Mack ....... 10A
Testimony of Hazel Robinson ..13A

Excerpts from Lytle v. Household 
Manufacturing, Inc. ......... . 2 4A
Robinson's January 11, 1984
job evaluation .................... 31A
Robinson's May 9, 1984
job evaluation .................... 33A

iii -



TABLE OF AUTHORITIES

Cases: Page

Babrocky v. Jewel Food Co. ,
773 F .2d 857 (7th Cir. 1985) .....  24
Box v. A & P Tea Co., 772 F.2d
1372 (7th Cir. 1985), cert.
denied, 106 S. Ct. 3311 (1986) .... 25
Brady v. Southern Railroad,
320 U.S. 476 (1943) .... ..........  43
Bundy v. Jackson, 641 F.2d
934 (D.C. Cir. 1981) ........... . . 23
Clarke v. Atchison, Topeka &
Santa Fe Ry. Co., 731~F.2d 698 
"(10th Cir. 1984) .................. 20
Crawford v. U.S. Steel Corp.,
660 F .2d 663 (5th Cir. 1981) ...... 22
Easley v. Empire, Inc., 757
F . 2d 923 (8th Cir. 1985) ........  24
Fernandez v. Wynn Oil Co.,
653 F .2d 1273 (9th“cir. 1981) ....  21
Foster v. Tandy, 828 F.2d 1052
(4th Cir. 1987) ................... 49-50
Freeman v. Lewis, 675 F.2d 398
(D.C. Cir. 1982)  22,25
Gifford v. Atchison, Topeka 
& Santa Fe Ry. Co., 685 F.2d 1149 
(9th Cir. 1982) ...................  23
Graver Tank & Manufacturing 
Co. v. Linde Air Products Co.,
336 U.S. 271 (1949) ............... 38-39

iv



Holmes v. Bevilacqua, 794 F .2d
142 (4th Cir. 1986) (en banc) ..... 45

International Brotherhood of 
Teamsters v. United States,
431 U.S. 324 (1977) ..............  16
Jamerson v. Board of Trustees,
662 F .2d 320 (5th Cir. 1981) .....  19
Lytle v. Household Manufacturing 
Co., No. 86-1097, Slip op.
(4th Cir., October 20, 1987) ..... 50-51
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ...............  12,14-

19,27,
33,39,
46,48

Miles v. MNC Corp., 750 F.2d
867 (11th Cir. 1985) .............  37
Moore v. City of Charlotte,
754 F .2d 1100 (4th Cir.), cert. 
denied, 105 S. Ct. 3489 (1985) ....47-48
Pacheco v. Advertisers Litho­
graphing, Inc., 657 F.2d 191 
(8th Cir. 1981) ............ ...... 19
Packing House & Industrial
Services, Inc, v. NLRB, 590 F.2d
688 (8th Cir. 1978)~ ..............  23
Patterson v. McLean Credit Union,
805 F.2d 1143 (4th Cir.), 
cert, granted, 108 S. Ct. 65
(1987) ............................ 20-21,

44

v -



Pick Manufacturing Co. v. General 
Motors Corporation, 299 U .S. 3 
(1936) ............................  38
Pullman -Standard v. Swint,
456 U.“s7 273 (1982) . ..............  43
Ramsey v. American Air Filter 
Co., 772 F .2d 1303 (7th Cir.
1985) ..............................30-32

Scott v. Sears, Roebuck & Co.,
798 F.2d 210 (7th Cir. 1986) .....  20
Texas Dept, of Community Affairs 
v. Burdine, 450 U.S. 248 (1981) ...15-16,

21,30

United States v. Johnston,
268 U.S. 220 (1925) ..........   38
Statutes and Rules:
42 U. S.C. § 1981 ........... -.....2,11,

14,19, 
25,44, 
49-50

Supreme Court Rule 17.1(a)   42

vi



No. 87-801

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

HAZEL ROBINSON,
Petitioner,

vs.
MONTGOMERY WARD & COMPANY, INC.,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE 
This individual employment discrimi­

nation action against Montgomery Ward & 

Company, Inc.  ̂ alleges violations of

1 Montgomery Ward is a who11y owned
subsidiary of Marcor, Inc., which is

1



Title VII of the Civil Rights Act and 42 
U.S.C. § 1981 arising from its decision 
to promote a white female, instead of the 

petitioner, to a Dispatcher position.
The case was tried to the district 

court, Potter, C. J., on petitioner's 
Title VII claims and to a jury on her 
§ 1981 claims.

The case is unusual in that peti­
tioner called as one of her witnesses, 
John Hunt, Montgomery Ward's terminal 
manager, who explained the reasons for 
his decision to promote someone other 
than petitioner. Thus, at the close of 
the petitioner's evidence, the district 
court had before it not only petitioner's 
evidence, but Montgomery Ward's explana­
tion for its actions.

wholly owned by Mobil Corporation. 
Montgomery Ward has no subsidiaries 
other than wholly owned 
subsidiaries.

2



Uncontradicted and unimpeached 

evidence introduced at trial established 

the following facts:
Petitioner was employed by 

Montgomery Ward & Company, Inc. ( Mont­
gomery Ward") at its distribution facili­
ty in Charlotte, North Carolina. Before 
May 1983 more than 50 employees worked in 
the facility. In a restructuring of the 
operations many employees were laid off 
or transferred, categories of jobs were 
eliminated, and other jobs were combined. 

(T. 15; 41; 42) By fall of 1983, only 
five employees remained: the terminal
manager, computer operator, a secretary 
or dispatch clerk and two key punch 

operators. (T. 14)
John Hunt was the terminal manager. 

The petitioner, Hazel Robinson, was the 
computer operator. Hunt decided to 
cross-train the five office employees 
because the office was now small and each

3



job position was specialized. (Res. App. 

1A-2A; T. 25-27) Cross-training was 
intended to reduce hours and to equip the 

employees to do one another's jobs so 
that the terminal office would not be 
affected when one person could not come 
to work. (Id.)

In December 1983, Robinson asked 
Hunt if she could be trained to perform 
the duties of a traffic clerk and dis­
patcher. (Pet. App. 66a-67a) Hunt 
agreed, and stated that all employees 
should be cross-trained, (T. 26)
Robinson was the only employee, however, 
thoroughly familiar with all aspects of 
operating the office computer. (Res.
App. 18A) Thus her expertise as a 
computer operator was particularly 
critical to the day-to-day office opera­
tion. (Res. App. 17A-20A) For this 
reason, Hunt asked petitioner first to 
cross-train other employees on the

4



computer. (Res. App. 3A-4A; 31A) Then 
she would receive training as a dispatch­

er and traffic clerk. (Res. App. 31A) 
According to petitioner's January 1984 
employee evaluation, petitioner s job 
objectives were specifically stated to 
include training other employees on the 
computer, as well as learning the job 
responsibilities of a dispatcher and 

traffic clerk. (Res. App. 3A-4A)
In early 1984, Joe Matthews held the 

position of dispatcher. (T. 40) Peti­
tioner began to train Matthews and others 
on the computer, and another employee, 
Donna McManus, began to train as a 
dispatcher and traffic clerk. (T. 41)
In March 1984 Matthews resigned. (T. 40) 
Sue Mack, the traffic clerk, resigned a 
day later. (Id.) When Matthews re­
signed, McManus had been performing the 
dispatcher's duties. (Res. App. 13A-15A; 
T. 175-77) Since petitioner had only

5



cross-trained Matthews, petitioner 
remained the only person capable of 
operating all of the computer functions, 

and McManus was the only person with 
significant training as a dispatcher.

At the time of Matthews' departure, 
petitioner had performed only one of the 
four tasks regularly performed by the 
dispatch clerk, and then only two or 
three times. (T. 170) McManus, however, 
had done all but one of the dispatch 
clerk tasks. (Res. App. 15A-16A)

The petitioner herself candidly 
admitted that McManus was more qualified 
than she as a dispatcher:

Q. You admit, do you 
not, that at the time Mr.
Matthews left, Ms. McManus was 
more qualified to do the job 
functions listed on Exhibit 7 
[dispatcher job description] 
than you were?

A. Yes.
(Res. App. 22A)

6



Petitioner testified that, when 
Matthews and Mack resigned, Hunt told her 

that "he wasn't going to fill [their 

positions] at this time.11 (Res. App. 
14A-15A) (emphasis added) Hunt also 

testified,
I told [the plaintiff] at 

this time we had no immediate 
plans to fill the position. We 
were going to try to consoli­
date the activity and reduce 
manhours.

(T. 42) Hunt went two months without 
filling either Mack's or Matthews' 
positions. After two months, however, of 
working 10 to 14 hour days with McManus, 
Hunt hired Sylvia Lord in late May 1984 
to assume part of Sue Mack's job as a 
secretary and traffic clerk, to help with 
typing, keypunching data, and general 
office duties. (T. 46-47) In July 1984 
he hired Fred Smith to work part-time 
(3:00 p.m. to 7:00 p.m.) as a traffic

7



clerk to relieve the work load)on McManus 

and himself. (Id.)

There were still no employees other 

than the plaintiff who had been trained 
in the essential job of operating the 
computer because the office staff had 

never had sufficient time, given its 
reduced numbers, to implement Hunt's plan 
to cross-train employees. Indeed, 
petitioner acknowledged in her May 1984 
performance evaluation that she was not 
promotable "due to employee turnover," 
referring to the difficulties caused by 
the departure of Mack and Matthews.
(Res. App. 33A-34A)

As of late June 1984, McManus had 
been performing most of a dispatcher's 
job responsibilities for three months, 
the probationary trial period for any new 
position. (T. 47-48; Res. App. 4A-6A) 
McManus was the employee most familiar 
with the job requirements of the dispatch

8



position, and she had performed this job 

well. (Id;, Res. App. 4A-6A) Since 
McManus had also specifically requested 

the promotion to dispatcher, Hunt then 
decided to designate McManus as the 
office dispatcher. (Res. App. 4A-6A)

Hunt also considered the petitioner 
for the dispatch position, but she lacked 
McManus' experience in the job, and was 
less familiar with the overall operation 
of the office. (Res. App. 4A-6A) For 
example, McManus had supervised the 
keypunch operators and was preparing 
manuals for other job positions in the 
office (Id.. ) Thus McManus was appointed 
to be the dispatcher and the "ready 
replacement" in charge of the office when 
Hunt was absent. (T 50)

Petitioner never asked Hunt for the 
dispatcher position during this time, 
even though she observed Hunt interview­
ing outsiders for the job. (Res. App.

9



22A-22A) On the other hand, "McManus 
called Hunt's boss and specifically 

requested the job. (Res. App. 5A-6A; T. 
6 3 )

Petitioner stated she first learned 
McManus had been officially promoted to 
dispatcher on September 20, 1984, during 
a meeting with Hunt concerning petition­
er's refusal to accept McManus' supervi­
sion and direction. (T 178-79) Yet 
McManus had been performing all of the 
dispatch job responsibilities since June, 
and the majority of them since March when 
Matthews left. (Res. App. 4A-6A) She 
had also been supervising the keypunch 

operators. (Id-)
At the close of petitioner's evi­

dence, the District Court entered Find­
ings of Fact and Conclusions of Law 
dismissing petitioner's Title VII claims 
for the reason that she had failed to 
offer any direct or indirect evidence of

10



racial discrimination and had failed to 
make out a prima facie case of discrimi­
nation. (Pet. App. 24a-40a) Judgment on 

the § 1981 claim was entered for those 

same reasons. (Id. 41A-42A)
Petitioner appealed to the United 

States Court of Appeals for the Fourth 
Circuit. After a detailed review of the 
record, the Fourth Circuit affirmed. 823 

F .2d 793 (July 14, 1987)
SUMMARY OF ARGUMENT 

Petitioner fails to offer a plausi­

ble reason for the Supreme Court to 
conduct the third review of an eviden­
tiary record that both the District Court 
and the Court of Appeals held was insuf­
ficient to create a jury issue of racial­

ly discriminatory intent.
Petitioner characterizes the opinion 

below of the Fourth Circuit as turning on 
legal principles that allegedly conflict 
with decisions of other Circuits. The

11



Fourth Circuit's decision, however, 
applied generally accepted rules regard­

ing proof of a prima facie case in a 
disparate treatment case.

Moreover, the Fourth Circuit applied 
those rules correctly. First, the Court 
of Appeals correctly held that Robinson 
had failed to satisfy at least two 
elements of the prima facie case outlined 
in McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973): she had failed to show 
she was at least as qualified as the 
person who received the promotion; and 
she had failed to show that she had 
applied for the promotion.

Second, after correctly holding that 
Robinson could not avail herself of the 
McDonnell Douglas presumption, the Court 
of Appeals correctly concluded that her 
evidence, unaided by the presumption, was 
insufficient to support a finding of 
racially discriminatory intent. In so

- 12



doing, the Court below did not announce 

or rely on any legal principles at 

variance with those announced by this 

Court or other Circuits.
Finally, the petitioner has certain­

ly not shown that the Fourth Circuit "has 
so far departed from the usual course of 
judicial proceedings" as to call for the 
Supreme Court's extraordinary exercise of 
its powers of supervision. All petition­
er shows is that there are a few other 
Fourth Circuit opinions which held 
(correctly, it appears) that a plaintiff 
had failed to present sufficient evidence 
of discrimination. That does not consti­

tute a "pattern of usurpation."

ARGUMENT
I. THE FOURTH CIRCUIT PROPERLY CON­

CLUDED THAT PETITIONER HAD FAILED 
TO ESTABLISH A PRIMA FACIE CASE
Petitioner attempts to characterize

the Fourth Circuit's decision as invasive

13



of the jury's role as finder of fact in 

actions under 42 U.S.C. § 1981, as well 
as contrary to the law in other courts of 
appeal. Petitioner's evidence at trial 

fell far short, however, of establishing 
a prima facie case under the standards of 
McDonnell Douglas Corp, v. Green, 411 
U.S. 792 (1973). There was no substan­
tial evidence that petitioner was equally 
as qualified to receive the promotion at 
issue as the woman to whom the promotion 
was given, or that petitioner had applied 
for the promotion. Given these clear 
deficiencies in petitioner's evidence, 
none of the circuit decisions cited by 
petitioner suggests that any other 
circuit would have reached a decision 
contrary to the one below.

To establish a prima facie case of 
racial discrimination under 42 U.S.C.
§ 1981, the "petitioner must prove by a 
preponderance of the evidence that she

14



applied for an available position for 
which she was qualified, but was rejected 

under circumstances which give rise to an 
inference of unlawful discrimination." 
Texas Dept, of Community Affairs v. 
Burdine, 450 U.S. 248, 253 (1981). In 
McDonnell Douglas v. Green this Court 
articulated four elements of a prima 
facie case which creates a presumption of 
discrimination if unexplained, and puts 
on the employer the burden of articulat­
ing a non-discriminatory reason for its 
decision. 411 U.S. at 802. These four 
elements are: (i) that the petitioner
belongs to a racial minority; (ii) that 
she applied and was qualified for a job 
for which the employer was seeking 
applicants; (iii) that, despite her 
qualifications, she was rejected; and 
(iv) that, after her rejection, the 
position remained open and the employer

15



)
continued to seek applicants from persons 

of the petitioner's qualifications. Id.
The purpose of the McDonnell Douglas 

prima facie case is to eliminate the most 
common non-discriminatory reasons for the 
employee's rejection. International 
Brotherhood of Teamsters v. United 
States, 431 U.S. 324, 358, 44 (1977).
"[T]he allocation of burdens and the 
creation of a prima facie case is intend­
ed progressively to sharpen the inquiry 
into the elusive factual question of 
intentional discrimination." Texas 
Dept, of Community Affairs v. Burdine,
450 U.S. at 255, n. 8. Although the 
specification of proof may vary depending 
upon the facts of a case, 411 U.S. at 
802, n. 13, the employee nonetheless has 
the burden to produce some minimum amount 
of evidence sufficient to invoke the 
presumption that she was a victim of 
unlawful discrimination.

16 -



To retain its usefulness to courts

and litigants the elements of the prima 
facie case must retain some predictabili­
ty. Likewise, courts must take care not 
to detach the prima facie case from its 
rational basis in a set of facts which, 
if proven, rule out possible nondis- 
criminatory reasons for a challenged 
employment decision. The McDonnell 
Douglas model can be reshaped only so far 
before it ceases to serve its purpose. 
Here petitioner attempts to dispense with 
most of the elements of the McDonnell 
Douglas test, and desires to diffuse 
rather than sharpen the trial court's 
inquiry. In the light of her own testimo­
ny and the uncontroverted evidence from 
her case in chief, petitioner simply 
failed to adduce evidence sufficient to 
give rise to a presumption of unlawful 
discrimination.

17



Petitioner's own evidence at trial 
established that she was black, had asked 
to be trained in the duties of a dispatch 

clerk but had never applied for or sought 
promotion to that position, and that the 
promotion to dispatch clerk was awarded 
to a white woman who (a) had specifically 
requested the job, and (b) was, by 
petitioner's own admission, better 
qualified for the job than petitioner. 
Nothing in this uncontroverted evidence 
gives rise to an inference of discrimina­
tion, nor establishes a prima facie case.

Petitioner nonetheless assails the 
Fourth Circuit's purported "improper, 
extremely rigid" application of the 
McDonnell Douglas test in concluding that 
she had failed to make a prima facie 
case. In fact, as shown below, the 
Fourth Circuit's decision is consistent 
with a number of circuit court decisions 
which have addressed the same issues.

18



&, Petitioner was not equally 
qualified.

A key gap in petitioner's prima 
facie case was evidence that her qualifi­

cations were equal to or greater than 
those of the woman selected for the 
promotion to dispatch clerk, Donna 
McManus. Under McDonnell Douglas, a 
Title VII or § 1981 plaintiff must 
establish that she was qualified for the 
position she sought. McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 802 (1973). 
Time and again the Courts of Appeals have 
held that a plaintiff must prove that she 
possessed, at a minimum, qualifications 
equal to or greater than those of the 
person selected for the promotion. E .g., 
Pacheco v. Advertisers Lithographing,
Inc, 657 F .2d 191, 193 (8th Cir. 1981); 
Jamerson v. Board of Trustees, 662 F.2d 
320, 322-323 (5th Cir. 1981) ("The core 
of [plaintiff's] claim requires proof

19



that he was at least as qualified as the

white teachers. . . . Without this

proof, [plaintiff's] claim collapses.");
Clarke v. Atchison, Topeka & Sante Fe
Ry. Co., 731 F.2d 698, 701 (10th Cir.
1984) (dismissal of claim appropriate
absent "showing that [plaintiff] was
equally or better qualified than those
employees actually promoted.") See also
Scott v. Sears, Roebuck & Co., 798 F.2d
210, 215 (7th Cir. 1986) (petitioner
properly discharged where qualifications
not equal to those of co-workers).

Contrary to petitioner's assertions,
the Fourth Circuit did not require her to
prove that she was more qualified than
McManus, but only that she was as quali-

2fied as McManus. The Court simply

2 Petitioner apparently confuses this 
case with Patterson v. McLean 
Credit Union, 805 F.2d 1143 (4th 
Cir. 1986), granted, ____ U.S. ____

20



accepted petitioner's own testimony that 

she was less qualified than McManus and 
thus not equal or "similarly situated" to 

McManus.
As this Court noted in Burdine, "it 

is the plaintiff's task to demonstrate 
that similarly situated employees were 
not treated equally." 450 U.S. at 258. 
"Title VII . . . does not demand that an
employer give preferential treatment to 
minorities or women . . . nor was it
intended to diminish traditional manage­
ment prerogatives." 450 U.S. at 259.
See also Fernandez v. Wynn Oil Co., 653 
F .2d 1273, 1276 (9th Cir. 1981) (The

108 S. Ct. 65 (1987). Patterson 
upheld a jury instruction that a 
§1981 plaintiff was required to show 
he was more qualified than the 
person promoted. The Fourth Cir­
cuit's decision here makes no 
reference to Patterson or to requir­
ing proof of superior 
qualifications.

21



Civil Rights Act was not intended "to 

saddle business with unqualified 
employees.")

By her own admission, petitioner 
lacked the qualifications necessary to be 
promoted to dispatch clerk in June 1984. 
(Res. App. 22A) Thus she was not a 
"similarly situated employee."
Crawford v. U.S. Steel Corp., 660 F.2d 
663, 667 (5th Cir. 1981) (where plaintiff 
lacked necessary qualifications for 
promotion, "conceding these facts is 
tantamount to conceding that [plaintiff] 
failed to establish a prima facie case.")

B . Petitioner chose not to apply 
for promotion.

Petitioner also failed to establish 
that she had applied for promotion to 
dispatch clerk, another necessary element 
of a prima facie promotion case. Freeman 
v. Lewis, 675 F.2d 398 (D.C. Cir. 1982);

22



Bundy v. Jackson, 641 F.2d 934, 951 (D.C.
Cir. 1981). Petitioner argues, however, 

that since her "filing of a formal 
application would not have resulted in a 
different decision, it would have been 
futile for Robinson to apply." (Petition 
43) The three circuit decisions cited by 
petitioner (Petition 42) clearly demon­
strate that an application for promotion 
is futile only when the employer's past 
discriminatory practices and procedures 
leave no doubt that an application would 
be rejected. Thus, in Packing House & 
Industrial Services, Inc, v. NLRB, 590 
F.2d 688 (8th Cir. 1978), the court noted 
that a plaintiff can dispense with the 
application requirement only "where the 
circumstances make it clear that a rebuff 
would result." hi- at 696.

In Gifford v. Atchison, Topeka & 
Santa Fe Ry. Co., 685 F.2d 1149 (9th Cir. 
1982), the plaintiff established a prima

23 -



facie case where the employer's "prior 

refusal to hire women for the position of 
wire chief," was such that "the employ­

er's promotional policies made applica­
tion futile." Id. at 1154. Similarly, 
in Babrocky v. Jewel Food Co., 773 F.2d 
857 (7th Cir. 1985), the application 
requirement was dispensed with where the 
employer had created an atmosphere "in 
which employees understood that their 
applying for certain positions is fruit­
less." hi- at 857. Accord, Easley v. 
Empire, Inc., 757 F.2d 923, 930 n. 7 (8th 
Cir. 1985) ("formal application for a job 
will be excused when a known discrimina­
tory policy . . . deters potential
j obseekers.")

In contrast, there is no evidence 
here that Montgomery Ward had ever 
deterred or hindered blacks in promo­
tions. Hunt himself praised and valued 
Robinson as an employee, and tried to get

24



pay increases for her beyond the maximum 

authorized for her grade. (T. 33-38, 58) 

As the Fourth Circuit noted below, 
petitioner "asserted no argument whatso­
ever that she was in any way inhibited 
from making an application by Montgomery 
Ward's alleged discriminatory practices." 
823 F.2d at 796. A § 1981 plaintiff 
should be required at least to apply for 
a job before she is entitled to legal 
redress, absent evidence that the employ­
er's past employment practices suggested 
that an application would be rejected. 
Freeman v. Lewis, 675 F.2d at 400-401 
(requiring proof that the plaintiff both 
applied for and was in fact considered 
for the promotion). In Box v. A&P Tea 
Co., 772 F .2d 1372 (7th Cir. 1985),
cert, denied, __ U.S. , 106 S. Ct. 3311
(1986), cited by petitioner (Petition at 
45), an employee's statement to her 
manager that she "wanted to receive

25 -



training for some other position so [she] 

could advance" was held to be an insuffi­
cient application for a promotion. Id. 
at 1377.

At no time did petitioner ask for 
the job of dispatcher; she simply asked 
to be trained in the duties of the 
dispatch clerk when extra time for 
training became available. (Res. App. 
19A-20A) Petitioner admitted that the 
necessary man-hours never became avail­
able because the number of employees in 
the office was decreasing, and that she 
first needed to cross-train other employ­
ees before she could abandon her job to 
train for another. (Res. App. 19A-21A)

Likewise, the Fourth Circuit's 
decision here is not in conflict with the 
decisions of other circuits that have 
dispensed with the application require­
ment for a prima facie case when a 
plaintiff was unaware of a job opening.

26



Petitioner's own evidence at trial 

demonstrated that she was aware of Hunt 
interviewing two applicants for the 
dispatch position in June 1984. (Res.
App. 21A-22A) Further, from January 1984 
to September 1984, petitioner observed 
McManus undertaking all of the duties of 
a dispatch clerk. (Res. App. 20A) Not 
once, however, did she ask for promotion 
to dispatch clerk. Indeed, only a few 
weeks before McManus was promoted, 
petitioner acknowledged in her job 
evaluation that she was not promotable at 
that time. (Res. App. 19A)

C. There was no evidence that 
Montgomery Ward sought 
applicants with qualifications 
equal to Petitioner's._______

The Fourth Circuit also properly 
found that petitioner had failed to 
establish the fourth McDonnell Douglas 
element: "that, after the rejection, the

27



position remained open and the employer 
continued to seek applicants from persons 

of the plaintiff's qualifications." 
(emphasis added). Read in context, it is 

clear that the Fourth Circuit reached 
this conclusion "[b]ecause [petitioner] 
admitted that the white female who was 
hired to fill the dispatcher position had 
higher qualifications than she . . . "  823 
F.2d at 796. Whether the position 
remained open was not at issue; rather, 
Montgomery Ward had selected a more 
qualified person than petitioner.

D. Petitioner did not introduce 
any evidence of pretext as to 
Montgomery Ward's decision to 
train McManus instead of 
petitioner.___________________

Unable to prove a prima facie case 
because of her lack of qualifications and 
failure to apply, petitioner attempts to 
reshape the entire theory of her case.
She asserts that her claim of discrimina­

28



tion arises not from Montgomery Ward's 

failure to promote her in June 1984, but 
from its decision in early 1984 to have 

her cross-train other employees on the 
computer before she received training as 

a dispatch clerk. During her case 
Petitioner called as a witness John 
Hunt, Montgomery Ward's terminal manager, 

who articulated the legitimate, 
non-discriminatory reason why petitioner 
was not trained in the duties of a 
dispatch clerk before Donna McManus. As 
noted by both courts below, petitioner 
could not then be trained as a dispatch 
clerk because no other employee could 
operate the computer. Her work as 
computer operator was critical (Res. App. 
17A-20A); and, as she admitted, only she 
could perform all of the computer func­
tions. (Res. App. 18A) Petitioner 
conceded that she never completed her

29



cross-training of other employees so that 

she could be trained.

The record does not support an 
inference that Montgomery Ward's explana­
tion of why McManus was trained first was 

pretextual. Petitioner introduced no 
evidence which suggested that "the 
proffered reason was not the reason for 
the employment decision." Texas Dept, 
of Community Affairs v. Burdine, 450 U.S. 
at 256. Regardless of whether this 
uncontroverted evidence is viewed as 
fatal to petitioner's effort to show a 
prima facie case, or as an unrebutted 
non-discriminatory reason for Montgomery 
Ward's decision, the result is the same: 
petitioner failed to establish a case for 
the jury.

Petitioner relies heavily upon 
Ramsey v. American Air Filter Co., Inc., 
772 F.2d 1303 (7th Cir. 1985), concerning 
her requests to be trained. There the

30



seventh circuit held that the defendant's 

motion for JNOV was properly denied 
because there was abundant evidence of 

discriminatory intent, including racial 
comments written by defendant on the 

plaintiff's employment application. Id. 
at 1310.

Petitioner claims a conflict with 
Ramsey, merely because one of the numer­
ous incidents upon which Ramsey based his 
complaint is similar to the facts of this 
case. Ramsey requested a job that became 
open, and the company then trained two 
white candidates for that position but 
did not train Ramsey. The job was then 
awarded to a third candidate with greater 
seniority and experience than Ramsey.

The Ramsey court never said or 
implied that this incident standing alone 
would have been sufficient to uphold the 
jury's verdict. In fact, the other 
incidents that Ramsey complained of are

31



'J

more compelling and also provided the 

basis for the jury's verdict. The 

defendant employer had failed to inform 
blacks of their rights during lay-offs in 
violation of the company's own policies. 

Id. at 1308-09. The company had also 
decided to fill job openings sought by 
Ramsey with employees who were as quali­
fied as Ramsey but who had less seniori­
ty, despite the company's admission that 
seniority should be a factor in those 
decisions. A company employee had also 
written racial remarks on Ramsey's 
employment application. Id. at 1310.
Thus there was substantial evidence of 
the employer's selective failure to 
enforce its mandatory policies to the 
prejudice of blacks, and of its practice 
of promoting whites ahead of blacks with 

more seniority.

32



E. Petitioner's "Direct Evidence" 
of Discrimination was Insuffi­
cient to Establish a Prima 
Facie Case.____________________

In addition to faulting the Fourth 
Circuit's application of the familiar 
McDonnell Douglas test, petitioner also 
claims that there was enough "direct 
evidence" of racial discrimination to 

take this case to the jury.
This contention is based on a 

distorted view of the record. Petition­
er's argument asserts facts that the 
record does not support, exaggerates 
other facts, and ignores still other 
uncontroverted facts that do appear in 

the record.
There are four "facts" that peti­

tioner claims provided direct evidence of 

racial discrimination.
First, petitioner points to instanc­

es where Hunt inquired about the race of 
candidates for two positions. Petitioner

33



overlooks that in both instances Hunt 

approved hiring blacks to fill the jobs. 

(Res. App. 12A-13A) This cannot be 
evidence of racial animus.

Second, petitioner points to Hunt’s 
use of the phrase "Black Beauty" to refer 
to petitioner. The evidence is simply 
that Hunt called Robinson, a handsome, 
black woman, "Black Beauty"; that when 
Robinson indicated to Hunt her dislike 
for the expression, he stopped using it, 
and that this occurred more than a year 
before the promotion at issue in this 
lawsuit. While Hunt's language may have 
been impertinent, it is hardly evidence 
that race was a factor in the employment 
decision at issue.

Third, Robinson testified that, at 
some unspecified time, in the context of 
a discussion about Jesse Jackson's 
presidential prospects, Hunt remarked 
that "blacks can't succeed at anything

34



but sports." This remark had nothing to 

do with employment practices or deci­

sions. From Robinson's fragmentary 
report, it is impossible to tell whether 
Hunt was opining about the innate abili­
ties of blacks or simply offering his 
assessment of the external barriers a 
black presidential candidate faces in 
trying to attain national success.

Fourth, petitioner asserts that the 
racial attitudes of another employee, 
Donna McManus, are somehow probative on 
the question of whether the employer had 
a racially discriminatory motive. 
Petitioner claims that Hunt supported or 
endorsed McManus' use of racially deroga­
tory language. The record shows unequiv­
ocally, however, that the witnesses were 
not in a position to know, and did not 
know, whether Hunt had reprimanded 
McManus or not. (Res. App. 10A-12A) One 
incident that petitioner wants to see as

35



Hunt's attempt to comfort McManus (Peti­
tion at 9), was clearly seen by the 

witness herself as just an attempt to 

quiet McManus down. (Res. App. 11A-12A) 
Moreover, there was uncontradicted 
testimony by two eyewitnesses that on one 
instance when McManus used a racially 
derogatory epithet, Hunt immediately 
called her into his office, and when 
McManus emerged from behind closed doors, 
she was crying. (Res. App. 11A-12A) The 
rational inference is that Hunt repri­
manded her. In any event, there is no 
evidence that Hunt approved or condoned 
her language.

These individual facts do not add up 
to the minimum quantum of proof necessary 
to take a case to the jury. Petitioner 
nevertheless attempts to characterize the 
issue as one of a "Conflict Between the 
Circuits on the Use of Direct Evidence."

36



(Petition at 57) No such conflict was 

demonstrated, and none exists.
In the sole case cited by petitioner 

in this context, Miles v. MNC Corp., 750
F.2d 857 (11th Cir. 1985), there was 
testimony that the relevant supervisor, 
when asked why he did not hire any 
blacks, replied "Half of them weren't 
worth a shit." Thus, there was clear 
evidence that the supervisor in Miles had 
racially bigoted views about the abili­
ties of blacks that were the admitted 
reason for his racially disparate hiring 
practices. No such evidence exists in 

this case.
There is no "conflict" between the 

Eleventh and the Fourth Circuits on the 
use of direct evidence--only two cases 
that reached different results based on 
very different evidence.

37



II. CERTIORARI IS INAPPROPRIATE BECAUSE 
THIS CASE PRESENTS QUESTIONS OF 
EVIDENCE RATHER THAN ANY ISSUES OF 
LEGAL PRINCIPLE____________________
Despite assertions about conflicts

between the Circuits, the real crux of
petitioner's complaint is simply that two
courts looked at a particular set of
facts and concluded that they did not add
up to the minimum proof required to take
a racial discrimination case to the jury.

The Supreme Court does not grant
certiorari "to review evidence and
discuss specific facts." United States
v. Johnston, 263 U.S. 220, 227 (1925).^

In essense, petitioner asks the
Court to review all the evidence and find

3 Similar considerations of judicial
policy and economy underlie the "two 
courts rule", which this Court 
applies to avoid review of trial 
court fact finding that has already 
been sustained on appeal. E .g . ,
Pick Manufacturing Co. v. General 
Motors Corporation, 299 U.S. 3, 4 
(1936); Graver Tank & Manufacturing

38



what the trial judge, who heard all the 
evidence, was unable to see--evidence of 

racial discrimination in hiring.
It is easy to see why petitioner 

strains so hard to bring this case within 
the ambit of the McDonnell Douglas test. 
Petitioner's evidence simply lacks the 
probative force to establish race dis­
crimination without the aid of an artifi­
cial presumption specially --and 
improperly-- tailored to the facts of 
petitioner's case.

Unable to make out a case for 
discrimination in promotion, petitioner 
attempts to transform this into a case 
about discriminatory access to training. 
Her evidence, however, simply fails to 
support an inference of "the discrimina­
tory manipulation of training opportuni-

Co. v. Linde Air Products Co., 336 
U.S. 271, 275 (1949).

39



ties that she now alleges. Indeed 

petitioner's own case in chief estab­

lished a reasonable nondiscriminatory 
explanation why petitioner was not 
trained in the dispatch job.

The evidence showed that petition­
er's office was a small operation in the 
process of being phased out. It was 
manned by a skeleton, five-person crew. 
Hunt, the supervisor, made a reasonable 
decision to try to cross-train office 
employees in each other's jobs so that 
the absence of one would not shut down 
the office. (Res. App. 1A-2A; T. 25-27) 
Petitioner's position as computer opera­
tor was, by her own admission, critical 
to the operation of the office (Res. App. 
17A-20A). No one else, by Robinson's own 
admission, could handle all the aspects 
of her job. (Res. App. 18A). It was 
reasonably decided, with petitioner's 
agreement, that she would need to train

40



others in computer operation before she 

herself could be trained in other job 
functions, including the dispatch func­

tion. (Res. App. 3A-4A; 13A; 31A-32A) 
Unfortunately, the cross-training 

program never got off the ground. The 
resignation of two employees in March 
1984 -- forty percent of the five-person 
staff -- left the office too thinly 
staffed to proceed further with the cross 
training. Donna McManus, whose regular 
duties overlapped with dispatcher and who 
already had prior training, continued to 
work at the dispatcher position. (Res. 
App. 15A-16A) Hunt's goal, as Robinson 
knew, was still to provide dispatch 
training to Robinson as soon as Montgom­
ery Ward authorized the necessary addi­
tional man hours. (Res. App. 15A-16A) 
However, the added manhours were never 
approved. (Id.) Hunt avoided filling 
the vacant dispatcher's and secretarial

41



jobs for the shoestring operation until 

he spent two strenuous months working 
14-hour days (Res. App. 14A-15A) As 

petitioner was aware, he then interviewed 

two persons from outside the office for 
the dispatcher job before giving it to 
McManus after she had called Hunt's boss 
and specifically requested it. (Res.
App. 5A-6A) Only after three additional 

months had passed, and an argument about 
McManus' authority as "ready replace­
ment, " did petitioner complain about the 
arrangement. (T. 198)
III. THERE IS NO "PATTERN OF IMPROPER

USURPATION" BY THE FOURTH CIRCUIT
Petitioner's charges of "usurpation" 

are apparently intended to show an 
alternate ground for certiorari under 
Supreme Court Rule 17.1(a). The Fourth 
Circuit, however, has not engaged in a 
pattern of usurping the fact finder's 
role in employment discrimination cases.

42



To the contrary, it applies the standards 

for review dictated by this Court in 

cases cited with approval by petitioner 

such as Pullman-Standard v. Swint, 456 
U.S. 273 (1982) and Brady v . S outhern 
Railroad, 320 U.S. 476 (1943).

Petitioner points to five cases 
besides this one as evidence of the 
Fourth Circuit's alleged pattern of 
usurping the factfinder's role in employ­
ment discrimination cases. An examina­
tion of those cases shows that no such 
pattern exists.

One of the cases, Patterson v.
McLean Credit Union, 805 F.2d 1143 (4th 
Cir.), cert, granted, 108 S. Ct. 65 
(1987), is currently before the Court on 
certiorari. In Patterson, the plaintiff's 
§ 1981 claims were submitted to the jury 
on the issues of discriminatory failure 
to promote and discriminatory discharge. 
The jury found in favor of the employer.

43 -



The issues before the Fourth Circuit did 

not even create an opportunity to "invade” 

the province of the jury. The principal 

issues on appeal were whether racial 
harassment is cognizable as a discrete 

cause of action under § 1981 and whether 

the evidence was sufficient to make out a 
state-law claim for intentional infliction 
of emotional distress. On the former, 
the Fourth Circuit declined to recognize 
a new cause of action for racial harass­
ment under § 1981. On the latter, the 
Fourth Circuit correctly affirmed the 
district court's dismissal of the state 

law claim, on the grounds that the 
employer's alleged conduct -- while 
blameworthy if true -- simply did not 
rise to the level of the "extreme and 
outrageous" conduct required for the tort 
under North Carolina law. Nothing in 
Patterson infringes on the role of the 

jury.

44



The next case, Holmes v. Bevilacqua,

794 F.2d 142 (1986), apparently did not 
involve a jury trial. See id. at 148. 

(Murnaghan, J., concurring) There, the 
Fourth Circuit affirmed a dismissal of 
Title VII and § 1983 claims granted under 
Rule 41(b) at the close of plaintiff's 
evidence. Plaintiff was the one black 
among five admittedly "very well quali­
fied" candidates for an administrative 
position. A white was chosen. The 
plaintiff had offered no direct or 
indirect evidence of discrimination.

The court found that the plaintiff 
could not satisfy the McDonnell Douglas 
test because the plaintiff could not show 
that the job remained open after he was 
rejected, despite his qualifications.
The court acknowledged that evidence 
other than the job remaining open could 
have supported an inference of discrimi­
nation, but could find no such evidence.

45



Because the employee could not satisfy 

the McDonnell Douglas test or point to 

some other evidence that race was a 

determining factor in the decision, the 
court held that plaintiff could not make 

out a prima facie case.
Moreover, the court found that even 

if plaintiff had made out a prima facie 
case, the evidence was clearly insuffi­
cient to rebut defendant's legitimate 
nondiscriminatory reason for its action. 
That reason had been introduced as part 
of the employee's affirmative case, 
through documentary exhibits.

In Moore v. City of Charlotte,
754 F .2d 1100 (1985), a District Judge's 
finding of discriminatory discipline 
under Title VII was correctly reversed on 
appeal. The plaintiff, a police officer, 
had been demoted for serious misconduct. 
He had admitted using his position to 
secure the absence of essential witnesses

46



from a friend's trial for driving under 
the influence. The charge was dismissed 

as a result. Moreover, there was an 
accusation that Moore's misconduct was 

prompted by a bribe. The plaintiff 
offered evidence purporting to show that 
white employees were exposed to less of a 
risk of punishment for comparable offens­
es. In fact, the evidence showed that 
white police officers accused of the same 
or similar offenses were treated the same 
way as the plaintiff. The Fourth Circuit 
reversed the trial court's decision 
because it was based on equating disci­
plinary offenses without regard to their 

seriousness.
The Fourth Circuit did not add a 

requirement to the McDonnell Douglas test 
to reach this result, as petitioner 
suggests. Rather, the Fourth Circuit 
simply applied a test appropriate to a 
case alleging discriminatory discipline,

47



with no direct evidence of discrimination 

or circumstantial evidence of a general 

pattern of racial discrimination. The 

plaintiff based his claim solely on 
circumstantial evidence purporting to 

compare treatment of similarly situated 

blacks and whites. Id. at 1105. The 
Fourth Circuit in no way required that an 
employee introduce such comparative 
evidence. It simply addressed a situa­
tion where that was the only evidence the 
employee purported to have, and correctly 
concluded that the evidence was legally 

insufficient.
In Foster v. Tandy, 828 F.2d 1052 

(4th Cir. 1987), the Fourth Circuit 
affirmed a JNOV in a § 1981 discriminato­
ry discipline case. The district court 
found no direct evidence of discrimina­
tion, nor any other evidence upon which a 
jury could reasonably infer discrimina­
tion. The employee appealed, claiming

48



that his only indirect evidence, a 

statistical exhibit, was adequate to 

support the jury's verdict.
In explaining its holding, the 

Fourth Circuit emphasized that a JNOV is 
compelled when the jury reaches a "deci­
sion on the basis of mere speculation":

Only evidence which shows the 
"probability" and not mere "possi­
bility" of discriminatory motivation 
will allow jury consideration. More 
simply stated, the inference of 
discrimination on the part of the
defendant in a racial discrimina-
tion case which the jury draws must
be "reasonably" probable under the
facts shown. Id. at 1056 (emphasis 
added)

The problem with Foster's case was that 
he presented raw statistical data but 
failed to produce any evidence which 
related the statistics to the alleged 
discriminatory practice of the employer 
in his case. Because this was the only 
evidence of racial discrimination the 
plaintiff presented, the appellate court 
correctly affirmed the JNOV.

49



The last case petitioner cites is 

Lytle v. Household Manufacturing, Inc.,

No. 86-1097, slip op. (4th Cir., Oct. 20, 
1987) (disposition reported at 831 F.2d 
1057). Respondent agrees that the Fourth 

Circuit incorrectly applied an earlier 
precedent there to deny a jury trial to a 

§ 1981 plaintiff by holding he was 
collaterally estopped by the trial 
judge's adverse findings on his Title VII 
claim. Lytle, however, is an unpublished 

opinion with no precedential value. More 

importantly, Judge Widener, the only 
judge in the present case who also sat in 
Lytle, wrote a vigorous dissent in Lytle 
and wanted to remand the case for a jury 

trial on the § 1981 claim (Res. App. 
24A-30A) So much for petitioner's 

"pattern of usurpation."

50



CONCLUSION
For the reasons stated, the petition 

for writ of certiorari should be denied. 
Respectfully submitted,

* RANDEL E. PHILLIPS 
HAYDEN J. SILVER, III 
MARGARET A. BEHRINGER 

Moore & Van Allen 
3000 NCNB Plaza 
Charlotte, N.C. 28280 
(704) 331-1000

Attorneys for Respondent

* Counsel of Record

December 28, 1987



APPENDIX



-1A-

Excerpts from Trial Transcript 

September 22, 1986

Testimony of John Hunt
k k k

[p. 24] Q. Now, in December of 1983,
Ms. Robinson approached you about learn­
ing the responsibilities of the dispatch­
er, didn't she, Mr. Hunt?
A. In that general time frame, yes.
Q. She told you she wanted to learn how 
to be--how to do the dispatcher responsi­
bility to expand her experience and her 
knowledge. Isn't that correct?
A. Yes. It was part of an overall set 
of objectives we had set for every 
employee to be cross-trained in other 
functions. That was one of Hazel's 

obj ectives.
Q. Okay. But before Ms. Robinson 
approached you, you had not developed

these goals?



2 A -

A. Yes, they were developed prior to 
that, yes.

k k k

[p. 31] Q. While she was on maternity 
leave, who performed her job 

responsibilities?
[p. 32] A. Initially we try to split 
them up, and over a period of time, I 
started doing most of them myself.
Q. Why did you start doing them your­
self, Mr. Hunt?
A. Because they were being done improp 
erly, and the critical areas, I took 
control of and did them myself, freight 
payment, exceptions on ordering reports. 
Q. Would you tell who were the people 
performing Ms. McManus's tasks, Mr. Hunt 
A. Well, the freight payment was being 
performed by Hazel Robinson. As far as 
how the other functions were distributed 
I don't really recall exactly at this
point in time.



-3A-

* * *

0. Did you discuss with Ms. Robinson 
the problems she was having in performing 

the responsibilities that were given to 
her?
A. Yes, I did.
Q. And what did you tell her, Mr. Hunt? 
A. I explained the problem and ex­
plained how I expected it to be done, and 
you know, how it should be done, and it 
was on a corrected basis.

■k k k

[p. 37] Q. Now, Exhibit 3-D is a 
typewritten evaluation, isn't it? Isn't 

that correct, Mr. Hunt?
A. That's correct.
Q. And it is dated January 11, 1984.
Isn't that correct, Mr. Hunt?
A. That is correct.
Q. And in this evaluation you give Ms. 
Robinson her objectives for the year 
1984. Isn't that correct?



-4A-

A. That's correct.
Q. And you also gave her an evaluation 

at this time, didn't you?
A. That's correct.
Q. Now, one of the things she was
assigned to do was to train [p. 38] the 
other individuals in the computer func­

tion. Isn't that correct?
A. Correct.
Q. She was also supposed to learn the 
responsibilities of traffic clerk and 
dispatch. Isn't that correct?
A. That's correct.

k  k  -k

[p. 52] 0. And why didn't you consider-
-or did you consider Ms. Robinson for the 
position?
A. Yes. All employees that were 
qualified on the payroll at that time 
were considered.
Q. And Ms. Robinson was qualified?



- 5 A -

A. Ms. Robinson had the qualifications 

to be considered for the job, yes.
Q. And why didn't you select Ms. 

Robinson?
A. Well, there's a lot of different 
reasons. I guess the primary reason is 
Donna McManus had been performing the job 
for three months, or a couple months 
rather, on the training program. She had 
performed the job in the past. She was 
familiar with the job, the workings of 
the job, the requirements of the job. 
Donna McManus was also familiar with 
other aspects of the office that Hazel 
Robinson wasn't. She was a traffic 
clerk, in charge [p. 53] of keypunch 
operators. Donna was compiling manuals 
for other employees to help them do other 
jobs. Donna had a wide office back­
ground. I guess you could call her a 
Girl Friday, and she was qualified in 
almost all areas. Secondly, Donna



-6A-

McManus was the only party that asked for 
the j ob.

* * *

[p. 64] Q. And that's dated January 11, 

1987. Correct?
A. Hazel Robinson?
Q. Yes.
A. Correct.
Q. And then at the very top it proceeds 
to list the three items of training which 
you have planned for her. Is that 
correct?
A. That's correct.
Q. And the first item is, says train 
assigned individuals in the proper 
operation of the computer function, and 
that's to be reviewed on May 9, 1984. 
Correct?
A. Correct.
Q. And then the next item is to her to
learn and understand the responsibilities



-7A-

of the traffic clerk, and that is also to 
be reviewed on May 9. Is that correct?
A. Correct.

Q. The third was to learn and under­
stand the responsibilities of the dis­
patcher clerk, and that was to be 
reviewed on May 9, too. Correct?
A. Correct.

* * *

[p. 70] Q. You mentioned that while Ms. 
McManus was on maternity leave, Ms. 
Robinson did some of her--part of her 

functions?
A. Correct.
Q. And there was some problem with the 

way she did that?
A. Correct.
O. Could you tell us what those func­
tions were and what the problems were?
A. We had assigned Hazel Robinson the
function of auditing freight bills.



-8A-

Q. What does that mean?

A. We pay in-bound carriers to haul 
freight from a particular city to 
Charlotte, North Carolina, and we pay 

them for the freight charges, and it 
involves approximately $18,000,000 a 
year. Part of our process is to insure 
the accuracy of the bill, no duplicate 
payments, that the amount is correct, and 
that particular function--then we send 
them up to our Chicago office where they 
cut a check and pay the carrier--and that 
process was turned over to Hazel 
Robinson.
Q. What, if any, problems did you have? 
A. We found there were bills not being 
paid. Interstate commerce requires they 
be paid within seven days. Found the 
bills [p. 71] weren't being paid.
Carriers occasionally send in duplicate 
bills. The duplicates were being paid. 
Some bills were not being paid at all.



- 9 A -

Some of the amounts were being paid 

incorrectly.
Q. Did you discuss that with Ms. 

Robinson?
A. Yes.
0. What did you tell her?
A. I explained the problems to her 
initially, you know, what the errors 
were, what she needed to do to correct 
them. We had all the raw data she needed 
to verify the accuracy of the billing, 
avoid duplicates, and the problems 

continued on.
Q. Did you tell her anything when you 
took the function away from her?
A. I explained to her why. When an 
error like that is made, it might take 
five minutes to find the initial error 
and correct it, but when it goes through 
the whole billing process, it might take 
eight to ten hours to correct that one 

and we were rather shorthanded,error,



- 10A-

and I couldn't afford to take that amount 

of time.
0. Did you explain that to her?

A. Yes, I did.

Testimony of Joe Matthews 
* * *

[p. 103] Q. Do you know if Ms. McManus 
was reprimanded for referring to a fellow 

employee as a nigger?
A. No, sir, I don't know if she was or 

not.

Testimony of Sue Mack
k k k

[p. 114] Q. Did you ever overhear Donna 
discussing Corrine Thomas with Mr. Hunt? 
A. Well, there was one time the two of 
them were in an argument, [p. 115] and it 
was over at the keypunch machine and my

desk.



- 1 1 A -

0. By the two of them, who are you 

referring to?
A. Corrine was keypunching and Donna 
was standing up. I don't know if Donna 
had been explaining something to her. I 
don't recall the circumstances that 
brought it on. But I was at my desk, 
which was a few feet away, and I suddenly 
heard Donna say, "Well, you kiss my ass," 
and I looked up, and whey I looked up, 
Corrine jumped up from her keypunch 
machine, and Donna took off into John's 
office, and she was yelling and she said, 
"I'm not taking anymore of this g.d. 

stuff from that nigger."
•k k k

And he said, "Sh-h-h, it's okay." He 
tried to quieten her down.
Q. Who was the "he" you're referring 

to?
A . Mr. Hunt.



-12A-

0. And is that the only thing he did to 

her at that time?
A. Well, she closed the door. I didn't 

make it any of my business to pay any 
attention to what else was said. I don't 
know what else was said after that.
Q. Did he send her home on that occa­
sion? I'm referring to Donna McManus.
Did he send her home or do anything that 
was obvious to you that represented some 
kind of disciplinary action?
A. She was in there for quite a while, 
and when she came out, she had been 
crying.

fp. 123] Q. You mentioned that Mr. Hunt 
asked about the race of Ms. Edwards and 
Ms. Thomas before they were hired. He 
approved them being hired, did he not?

A. Yes, sir.
Q . And he did that with the knowledge
that they were black?



-  1 3 A -

[p. 124] A. Yes, sir.

■k k  k

Q. Do you know what, if anything, Mr. 
Hunt told Ms. McManus about that kind of 

behavior?
A. No, sir. They did close the door, 
and like I say, she came out and she had 
been crying. That's all I know.

Testimony of Hazel Robinson 
* * *

[p. 175] Q . Now, did you discuss at any 
other time with Mr. Hunt about the 
training for the position of dispatcher? 
A. Yes. I mentioned it to him when he 
asked me to train Joe Matthews. I said I 
thought that I was going to get trained 
on dispatch, and he said, "You are, but I 
want people to cross train on the comput­

er first."



-14A-

Q. And did you question him again about 

the dispatcher position when Joe 
officially announced his resignation?
A. Yes, when Joe had put in his two- 
week notice, I asked Mr. Hunt what did he 
want me to do about Joe's training in the 
computer room. Did he want me to contin­
ue. And he said, yes, and I said, "Well, 
why? He's leaving. He don't need 
knowledge of the computer." And I said, 
"Well, am I not going to get trained on 
the dispatch? And he said, "Yes, but I 
want Corrine to cross train on the 
computer first."
[p. 176] 0. Did he tell you that he
intended to fill the position that Mr. 
Matthews was vacating?
A. No, he did not. There was two 
positions vacant at that time because Sue 
Mack also gave her notice and I asked him 
specifically what was he going to do 
about those positions, and he said he



-15A-

wasn't going to fill them at this time, 

and when he told me that he wanted Joe 
Matthews to continue training in the 
computer room, I asked him if I could 
train on some of Sue Mack's work because 
Joe was training on the computer. He was 
getting the hang of it. I really don't 
have that much to keep me busy, so Sue 
was leaving, and so I asked to be trans­
ferred to some of her duties so I would 
have something else to do and something 
new to do.

k k k

[p. 178] I'm going to turn your atten­
tion back to Plaintiff's Exhibit No. 7, 
please, the responsibilities that are 
listed for the dispatcher. Would you 
point out these that were being performed 
by Donna McManus before Mr. Matthews 
left?
A. Okay. She was doing No. 3.



- 1 6 A -

Q. That's processing in-bound and 
outbound bills as required by Montgomery 
Ward?

A. Yes. No. 4 and No. 8 was her 

regular duties.
Q . Now, she didn't do any work with 
respect to payroll, did she?
A. No.

* * *

[p. 192] Q. It's May of '82. Somebody 
punched a hole in the day.
A. Okay, 5/82.
Q. And that's your appraisal. Right?
A. Yes.
0. Was this discussed with you at that 
time?
A. Yes.
Q. On Page 2 where it lists potential, 
says to consider qualifications for 
position of greater responsibility. Then 
says indicate potential in terms of



-17A-

immediately promotable, potentially 

promotable, new, best suited for present 
assignment, etc., and it has written in 
there best suited for present [p. 193] 
assignment. Correct?
A. Yes.
Q. You didn't make any complaint about 
that at that time, did you?
A. No, I did not.

* * *

Q. Look at Exhibit 3-C. It says the 
same thing, does it not, under potential? 
A. Yes.
Q. And it's dated 8/83?
A. Uh-huh.
Q. And you made no objection to that, 
did you?
A. No.
Q. Now, in January of '84, when you 
began or the employees began this cross­
training that you've testified about, at 
that time is it not true that you were



-18A-

the only person who was fully capable of 
running a computer?

A. All functions of the computer, yes. 
Q. You were the only one that could do 
that whole job?
A. Uh-huh.

* * *

[p. 195] Q. And 3-D is on an appraisal 
form and that is the document that's 
dated January 1, 1984, that has the 
objectives as far as training. Correct? 
A. Yes.
Q. And it lists at the top there to 
train assigned individuals in computer 
function, and that was to be reviewed on 
May 9, and that's what you undertook to 
do in the early part of 1984. Is that 
right?
A. Yes.
Q . And then 3-E is another similar 
document on May 9, 1984, which notes that 
you have trained the three individuals in



-ISA-

various operations and that the other 
objectives have not been accomplished 
because it says due to employee turnover, 

unable to be trained to this date. Is 
that correct?
A. Yes.
Q. Was that discussed with you by Mr. 

Hunt?
[p. 196] A. Yes.
Q. And you signed that document in May? 
A. Yes, I did.
Q. On the second page, it says you're 
going to try when additional man hours 
are available, to learn traffic clerk and 
dispatch functions. Is that correct?

A. Yes.
Q. And since May through this date, 
today I guess, the operation there at the 
Wardex facility has continued to decline, 

has it not?
A. Yes.



-20A-

Q. You didn't get additional man hours; 

in fact, things went down until all the 

hourly people have been laid off. Is 

that correct?
A. Yes.

* * *

[p. 198] A. No. I was told that 
everybody would be cross-trained, and I 
was to cross-train people in the computer 
room first.
Q. You were told in May in Exhibit 3-E 
that you weren't going to be cross- 
trained until there were additional man 
hours available, and yet you thought Ms. 
Manus was still getting training and you 
weren't and you didn't say anything about 

it?
[p. 199] A. No. I was still training
people in the computer room.
Q. But you weren't getting trained, and 
you didn't say anything about it, did 

you?



- 2 1 A -

A. No. That was because I hadn't 
completed my training of the people in 
the computer room.

* * *

[p. 200] 0. Did you see people being
interviewed in the office prior to the 
time Sylvia Lord was hired?
A. Yes.
Q. There was another man that was 
interviewed and another woman that was 
interviewed?
A. Well, I saw one lady, and Corrine 
Thomas told me about a guy that came in, 
but I didn't see him.
Q. That was when, April, 1984?
A. I can't remember the exact date, but 
it was during the time Sylvia Lord was 
hired.
Q. Do you know when Sylvia interviewed?



-22A-

A. She interviewed during that time 

period because out of the people that 
came in to be interviewed, she has hired. 
0. Did you know what those people were 

applying for?
A. I know what Mr. Hunt told me.
Q. What did he tell you?
A. I came out of the computer room one 
day, one afternoon, or [p. 201] maybe 
one morning--I don't remember exactly 
when--and I saw someone filling out an 
application, and I asked Mr. Hunt was he 
filling a position, and he told me that 
he needed someone to catch up on the 
exceptions and do some typing.

* * *

Q. You admit, do you not, Ms. Robinson, 
that when Joe Matthews left Montgomery 
Ward's employment, that Ms. McManus was 
more qualified to do the dispatcher job 
than you were, wasn't she?



-23A-

A. Because she had got the training and 
I hadn't.

Q. She was more qualified to do the 
work than you were, for whatever reason. 
The fact is she was more qualified to do 
these duties than you were at that time. 
You admit that, don't you?

k k k k

[p. 202] A. Yes.



- 2 4 A -

Excerpts from Lytle v. Household 

Manufacturing, Inc.

k k k

WIDENER, Circuit Judge, dissenting:
As the Seventh Circuit has pointed 

out: "Collateral estoppel is a judicial­
ly developed doctrine, United States v . 
Mendoza, 464 U.S. 154, 158 (1984), which, 
when properly applied, can relieve 
parties of the cost and vexation of 
multiple law suits, conserve judicial 
resources, and by preventing inconsistent 
decision, encourage reliance on adjudica­
tion. Allen v. McCurry, 449 U.S. 90, 94 
(1980)." Hussein v. Oshkosh Motor Truck 
Co., 816 F .2d 348, 355 (7th Cir. 1987). 
The majority argues that our decision in 
Ritter v. Mount St. Mary's College, 814
F .2d 986 (4th Cir. 1987) (Ritter II) 
requires the application of collateral



- 2 5 A -

estoppel in this case. I disagree and 

therefore respectfully dissent.

In this court's Ritter decisions, 
the district court had dismissed the 
plaintiff’s legal claims under the Age 

Discrimination in Employment Act (ADEA), 
29 U.S.C. § 621 et seq., and Equal Pay 
Act, 29 U.S.C. § 206(d), on First Amend­
ment grounds. The district court then 
conducted a bench trial on the equitable 
claims under Title VII of the 1964 Civil 
Rights Act, 42 U.S.C. § 2000e et. seq.
At the close of the bench trial, the 
lower court made findings of fact adverse 
not only to the plantiff's Title VII 
claims but also Findings inconsistent 
with the maintenance of her ADEA and 
Equal Pay Act claims. On appeal, in an 
unpublished opinion we affirmed the 
district court's Title VII fact finding 
as not clearly erroneous, see Fed. R.
Civ. P . 52(a), but reversed the lower



-26A-

court's dismissal of the plaintiff's ADEA 

and EPA legal claims and remanded the 

case for proceedings consistent with our 

opinion. Ritter v. St. Mary's College,
No. 81-1534 (4th Cir., June 8, 1984) 
(unpublished) (Ritter I). On remand, the 

district court determined that its 
findings made in the Title VII equitable 
suit collaterally estopped the relitigation 
of those same facts before a jury on the 
remanded ADEA and Equal Pay Act legal 
actions. We affirmed that lower court 
ruling. Ritter II, 814 F.2d at 992. I 
think it most significant that no ques­
tion was raised in Ritter I that the 
erroneous conclusion of law of the 
district court had deprived plaintiff of 
her Seventh Amendment right of trial by 
jury. That question was not raised until 
after remand in Ritter II. Having failed 
to appeal the issue in the first appeal,
it would not seem too unreasonable to



-27A-

apply collateral estoppel the second time 

around. Cf. Hussein, 816 F.2d at 359, 

Judge Posner concurring.
This case, however, is significantly 

different than Ritter II. Here, the 
lower court erroneously concluded that 

the § 1981 claims were precluded by the 
Title VII claims. By its erroneous 
holding that Title VII was the exclusive 
remedy for employment discrimination, it 
specifically denied the plaintiff his 
right to trial by jury and that is the 
point which is appealed. In other words, 
the sole reason that plaintiff has been 
denied his right to a jury trial is the 
erroneous ruling of the district court 
which was appealed as soon as the oppor­
tunity presented itself. This is not, 
therefore, a case like Ritter II where 
the district court's error was let slide 
until the second appeal. If a litigant 
can be denied the right to a jury trial



-28A-

simply because a district court has come 

to a justifiable factual conclusion in a 

trial without a jury, the Seventh Amend­

ment means less today than it did yester­

day. (FN4) Furthermore, it is 
significant that the Seventh Circuit, 
when faced with exactly this issue on 
indistinguishable facts, has determined 
that "an application of collateral 
estoppel does not permit findings made by 
a court in (a Title VII) proceeding to 
bar further litigation of (§ 1981) claim 
that had been properly jointed...." 
Hussein, 816 F.2d at 356.

I am also disturbed by the justifi­
cation of the denial of a litigant's 
Seventh Amendment right to a jury trial 
by reason of judicial interest in economy 
of resources. This reason undoubtedly 
existed at the time of the ratification 
of that Amendment and has since, in my 
opinion, however; it does not suffice as



- 2 9 A -

a policy argument to circumvent a posi­

tive provision of our organic law. To my 
way of thinking, in the event of a policy 
contest between judicial economy and the 

Seventh Amendment, the Amendment should 

prevail.
Accordingly, I would vacate the 

judgment of the district court and remand 
this case for trial by jury on all the 

issues so triable.



i plaintiffs
i EXHIBIT

'" " 3£D_ %SfSŜ §gg5%gg:

'■toper atioru. o f' - the/.CcT=?utaprjupctioa.

— — ^-^r;-r^,=:N-y^^^-^o4£^MrjHÂ Qrrx..Ĵ zX-̂ ŷ c&zg 
t y p  = nf' " '- '■  r ' ; ' ' — ' ' " T F  DATE O E / ^ r  ,  .  ^ ! N j C 3 r A---------.  ..-  A - ^ ^ - . - ' ^ - rV " JC_3  tTTnA , c a  ’ n c  ', n " F :tz.‘ 'Six tenth •--Tflgvi'iw'C 01/ 11/ 8&V-Si?p - Computer Operate; .̂ '..-r ^ ;0EWXC6 qats Q££SZ>7£1
OBJECTIVES /PERFORM ANCE.STANDARDS AND RESULTS OBTAINED-FOR R E V fE W P E R tO py

: £~ Ob | act rv a /Pedorrn in co S ran dardit-.T;
'’■Tr^^'ri^a33ignedr'/fadividukl3 -in the proper -^:

Learn arid understand the r e sp o n s ib ilit ie s  . 
o f  the T r a f f ic  C le rk " ' • .;•______:_______

Leara and understand the re sp o n s ib ilit ie s  
o f  the Dispatch Clerk

, iflw Lrits  ̂ Attain ‘

>TO''BÊREvirw:SD'ON KAY ''̂'X984!~ji^C*^^^^

-'TO BE BE7IZWZD ON HAY ~9,' 19

TO BE REVIEWED ON HAY 9, 1984

PERFORMANCE DIMENSIONS: Put an X next lo  the fating under the description that best defines the employee's performance on each factor duringthe rating ■; 
period. (The  rating codes are defined at trie"bottom of this formA backpage, use a plus {- )  or minus (- )  sign for greater accuracy, if appropriate except r.Mcbde). Then . 
ent^r specific statements/examples in the Supporting Comments Section to Support tne rating. . . ;  . \1-

Volume exceptionally . 
high.

CZZ3 R ^  .

Volume dearly exceeds 
re tirem en ts .

%* V. . *

• " ' D e n  -  ' .

Volume meets requirements 
in a fully acceptable manner..

0 ^  '• .*»

Volume does not consistent­
ly meet requirements.

- • D m m

Volume tails to meet 
requirements. r ’ •

; D fm

 ̂ ' P poR TIN G  COMMENTS: .

Q ua lity  o f W o rk  - C o n s id e r  a c cu ra cy , com p le ten ess  and n ea tn ess  o l w ork .

Work exceptionally 
accurate, com plete & 
neat. Rarely makes 
mistakes.

Work accurate, complete v 
4 neat. Seldom makes 
mistakes. ,

[ ^ f c e .

Accuracy, completeness 
and neatness o f work is 
fully acceptable.

□ m u

V/ork often unacceotabie. 
Makes trequent mistakes.

□ m m

Inaccurate work. 
Makes excess™* 
mistakes.

□  f u

SUPPORTING COMMENTS: . • • • * • » ■  -.•*.■ V.' T\ '

P lan n in g  1 O r e .n lz , l io n  o l W ork  - C o n . ld . r  . l l . c l l v . n . , 1  In o rga n iz in g  and c o m p ly in g  l s , k .  ac cord in g  lo prig rlty.

Tasxs exceptionally 
weil orgam jed  jn d  
always com pleted ac­
cording to priority.

'  ■•■•■ C D  RE .............

Tasks well organized 
and consistently com­
pleted according to 
priority. .r .

........  ® C E  * '

Tasks organized and com­
pleted in a fully acceptable 
manner.

□  UR  • '*

Tasks often disorganized. 
Pnorities often out ol order.

• D ™

Tasks generally disor- — ; • 
gamzed. Unable to '/•• 
determine priorities. •" '  * • '

r u - T v r ^

-W o r t  R e la tion sh ip s  -  C on s id e r  coo p era tio n  w ith  Internal and externa l Individuals In support o f com pan y and departm ent o b j e c t i v e * ^ ^

Cooperate* very welt- , 
with Others in supportln 

•pompany objectnw*- Jw,
<3 * &  ■

Cooperates with others V v ' ’* 
‘"Jn support of company 
f  objectiv«s. ^

'Frequently uncooperative .*£?•_* 
'with others in support 6? 
'company objectives.''

Exceotlonahy C oopera te* 
h\ Others m aupoort of 

•r-.v?!* •'•: ■ \par-y objectives.AA -  Hjrr-y V _

j* . ly ’u n c o o p e r * tN « j
with other! In •upporTh.^'-'ii’?  

“ o f company objectWeaT-’^ / i ^

i r "



. C o o * ^ * - ■ r t * c ‘_ " » « ^ * j »  0V -*iw **ag  ■'*rtn ittH , or no  «OD>nirnOf? ,rw i *.**Jng pc3ot> on nw-'.. 3 . ' ' '  g f ' . _ ~. ^V’
---------* ~  '— -- 'i •- ^.-w -'• *-- " — * •• - '  -------- --- - :---- ~ --1 ----------■*- -.1 . ..-XTVy. _ ■,_•■

iJaSJUJn gdn d*o  erwderrt 'eci'y&v-C

,^ :p o C-a ’ ~^G CCUM  = STS

f̂lrfidsjd "iupepnejori-.r equ ir wi -. 
-jrt^deraow*tr*fe« consider-': 

4  v-r*/V

Requires jvxirji&motif}^Qf.-...7C 
supervision in  d -*#me(V/!̂-~
InUin

- .T-D
!*-Ŝr7fx& » . - . -X ir :  * ’-• • - -'>’ 4iiE5S^iSEii^i]E"

'Jf̂raj '.r ; /, j » y r » »U  >*T1»1- -<*. v -l-~ j-»-J-‘~* !

Sug>err‘ * o ry  S tt ila  -  C o a p U l *  th.ia M e llo n  O N L Y  II t u M n l i i o n  Is s  regu la r part o f Ihe jo ix  o i ,W w < M , l* a r *  blank.-,-.!

~ŷz\- stm,?

§£'
mxijr,fee-fy  -j^sna and assign* w w »  . j o  - “  

r  -excecOOrtaiy w*d. Secures _ -  
L  . #*c»*«r^t. cooceve too  and 
£", psrtpr roan c *-_  v-_-'~ •‘‘p/' i-m

n ^ g f i F

(P!ao* end assign* w ort. _ .- y  
weiU. Secure* *~f
good-cooperaUen and . J.'. 
performance.' • .'„ .—r'-'

Provicee suihcient superyT 
vision and ce'egatlon to y*- 
M Cur* fully accept act y  —lu
p irtO 'm m c* •>. i/lc. A>1

Root leacer •<‘xj deieg-e:«* Vary poor Weder W 'O^CTTT^' 
ineffectively. Crtan fa.is • y i w ‘p c * »n c f  den*;ale: -V C -T 7•I—.'?, 

-fo u o j m  acceptable Generally tad* to jrRTTg
p*Wo/m anca . rsecur* a c c e p ta b le -A *

Hjc '
r>ii

S k ills  ( C ”  ce & O r t c s l  C n lv l:  U s in g  the cod es  as d e iln ed  at the b ottom  o f the p a g e , fat#  the afcllli the em p lo y e e  dem onstrated on  the jo b
d u rin g  the  ra llng  p er io d . It n o t ap p lica b le , n o te  NA_ . '  "  y.V —Oc*:.- Su.’ u ' :-~ii i‘‘i\ >S' . * v *• h .-

Typing Language Arts  ̂Office Machines /&£< __ Telephone j.^Fillng Shorthand^^/J“ .^ v ; v  . i f - r .

rt- . - . t r ->

OVTP ALL HATING OP PERPORWANCE: Considering all factors in relation to their importance to the employee's job. place sn *X next to the r iting which best
desenoes the employee s overan perlormance. Use a plus {* )  or minus (-) sign for greater accuracy it appropriate (except FW C^de). The ratings are defined at 
the b ottom 'd  the p age .'  • '  - 1 *" . •

"  ■■■■ • ■ ‘ "  • □ « FVY- • ■ ' • • '  ( I m U * J — 1 ^
PERPQRM ANCS IMPROVEMENT: 3 ss«d  on tn« amployM * ovarall psrtormancs during tfls rating period. Uat employ M ‘* main strengths and development needs.

Strengths: *\ dependable--employee who needs v e ry  l i t t l e  su p e rv is io n  o r  fo l lo w  op.
E rro rs  a re  a t  a minimum. v She does a v e r y  good jo b  in  a s s is t in g  d ther employees - 
In  the o f f i c e  in  va r iou s  tasks . _ '. .

Development Needs: "* /  ^ '  *•  .. •

A reas o f  th e o b je c t iv e s  l i s t e d  on page 1 -  employee w i l l  be w orking on these o b je c t iv e s

IMPRQVEUEHT PLAN: Indicate what sctiona wiU be taken to help the employee improve his/her performance on present job (e.g.. on the|obtraining.company 
training programs, etc.) ‘ v . ' • * _ . __n . .

Employee w i l l  be lea rn in g  va r iou s  aspects  o f  the o f f i c e .

P nO U Q TA S IU T T  STATUS: Place an_X_in the spece that applies. t( prom otade. Ust the type of lob(s).

m  ..  n  v {> .  > lT T ^ e (s ) :  _

* P n



r tM im irr  a 
EXHIBIT

-3- E
D WAGE'EMPLOYEE TE BF O R M A N CTtTtVIL W

is 5 RO iiESŜit:Vrju'krji;~ EV>.S'̂ t238T_ • 0 R &‘ -o r g :

->■  ■ r i ' j : ,  n  ~ V . '  v ? .  Y L -  "  * a T s »

sagT. yy fcg^(o5To?y4'j°?e c c K ^ c i i i x i c i
NAM E NO.

‘rO B J E c r iV E S * '/?E R  F O R M A N C E  S T A N0A ?fS »  E S U L7S  O B T A IN E D  FO R  R E V IE W  P E R IO D

■ • j l r a in  f a s  s i g n e d  - i n d i v i d u a l s  l i t  * t h e ' ' p r o p  e r f  i\c\ H A S  T R A I N E D  T H R E E  E T O C T H I U A L S  IN "  7A R J O O S  

O P ^ -R A T I O N S , ' C O N T IN T J IK C  P R O C E S S

L e a r n  a n d .  u n d e r s t a n d  t h e  r e s p o n s i b i l i t i e s  o r  

■ "tha T r a f f i c  C l a r k  ■'" . / V
D u e  t o  ' e m o l o y e e  t u r n - o v e r ,• : u n a b l e . ;: t o  ••besmfcmS*.: 

. . . t . r ji i.n i» j3_ a ^ - ^ . t h i - S - u d L ^  f l L l '

W  *V- •*.->• .1 Vs vt .-v-M-tr -.-f-.'.-o Jj -«•» . r  - s" k d i - ' E i r - t

L e a r n  a n d  u n d e r s t a n d  t h e  r e s p o n s i b i l i t i e s  o f  

t h e  D i s p a t c h  C l e r k  ... . -  • . - - ’

D u e  t o  e m p l o y e e  t u r n - o v e r ,  u n a b l e  t o  b e  * 
t r a i n e d  a s  o f  t h i s  d a t e .  ' *

PERFORMANCE DIMENSIONS: Put an X next to the rating under the description that best delines the employee's performance on each factor during tne ratmg "
• period. (The rating codes predefined 31 tne cottomof thu form s back page, use a plus (*) orm.nuj (-) iny\ lor greater accuracy, if appropriate except FCt code). Then. - 
. antjr specific statements/examples in the Supporting Comments Section to support tnt rating. . V . - . . V  - "  ‘ - .r < \

Quantity of W ork -  C o m ld e r the volume o! work produced.
Volume meets requirements Volume does not comment- volume fails to meet

•; -. . ;u. .> ..... . . ■ ,.- • , -v >( !•• - ' ~  .-*» 'iv

-  - -  ■ H m r +  ■ , V - r. . □  fm

'p o r t in g  c o m m e n t s : Employee perform s ‘ job  requ irem ents dependent: on d a ily  volume to be 
p rocessed . Capable o f  -producing maxinun volume on heavy work days-adjusts her 
perform ance acco rd in g ly " on slow  work days. * - ;•

of WorSt

'Op t in g  c o m m e n t s : Hakes a concerned e f f o r t  to  k eep -e rro rs  a t mininun-when erro rs  do deve lop  
m akes.-kil n ecessary  e f f o r t s  to  d e te c t  and co rrect.- '--F in ish ed  p rod u c t.is  fu rn ished in  a , 
com p lete  and neat manner. >t ”. j lJ  *i‘ H  * V * * r  * ~ \ '•

aL!g?QBTING COMMENTS.........  . tm ployee understands the requ irem ents o f  the^assigned r e s p o n s ib i l i t ie s -
r ^ ‘DeveTops‘"'and"'plan's d a ily  "work schedule a cco rd in g  to computer t in e  a v a ila b le , needs o f. 
n r  c o n s o lid a t io n  dock,:'and t o e r ^ f f l c « ’ ’t e q » l r e a e n t » . V f l ^ ^ ^ J I J ^ ^ ^ g ? ^ î ' ' - y i

C o n sid e r coopiTalion with Irvlemai and-externaJ Indlvjduafi In support of

Cl *1 w p p o n  g ii.v-c .

, t aide- ;b us iriea’rf̂ jr.;

accurate, complete & and neatness of work is
Work often unacceptaOle. 
Makes frequent mistakes.

neet. Rarely makes mistakes. • • fully acceptaote. _ • -  . - ’ mistakes. . . /  .. . - .

□  r e B c z  - □ m r  . n .M s i - - O ™  ’ • "  ■

T .,v . Tasks well organized • . -  ’ Tasks organized and com- Tasks often disorganized. Tasks generally rfisor- •
well organized and and consistently com- . •. pleted in a fully acceptable Priorities often out of order. . ganized Unas1# to • % ;
always completed ac- pleted according to manner. . . ■
cording to priority. priority. - v  .. • • i  • . . '  .  !

- - ••• 0- -  - D u m  - - - - - -  L J p u  • —' w~;



h J tt<e.-o f_n «:*U 5>^v '»ion  a r>d U «  ̂  :

'-̂bs: Xomorts tr^  W _iacra i»«<bT^ r^u^saorciiaa *fx } (S m orv

X w la o i V* I i

i"LS5'%-5fl us -t̂Sdl

I JUST»<VO«SQi •;f2

X ^ Q
->7? ^ ^ ~^in^errstand3 tha m a jo r i t ^ ^ f  -yrork^eiLat:& j j g x g 3 p P o 3 i ^v-$ 
^^T^rforaecf^by - o t i ie r jp a i^ 'a & 's 7 o th e rs  when t in e  la  ~ A7fillflble'.~-^rHn.3VaXdeaixe '.to~C3crplete'T~
LT7 j o b ’ y  a ig n ^ n  t  sX ayu ll'ab l e^on c r - t in a ly  b a s is . •--- j

S u p a rr iso ry  S t i l l *  -  C om p la ta  Lhia auction  O N L Y  It. aupanrla lon  U  *  regu la r part, o f th « j o b ; p i h * r w l i a , t ^ v a . b f a n f c ^ k a ^ i a ^ y ^

mPlana am> assign* work . ^ - * .  I PUna and a**rgn* work 
axcopiloivaiiy wall. Sacura* a>«fy.

provide* aufficlaot suptr- 
vision and daiagatton to 

• M cu ri fuily accept col* •
.P^rfbrVnanoal; ; i  • **-;ytrtCp.'’

SUPPORTING COMMENTS: ;^ t r t V ^ ' T V ’' '
-;;-:-E>

Poor leader » iy j  daiogata 
lna/T*clN*ry. O ftao faiU^r 
to a*cur« accaptablV

— yiĝiiL) uuĵ q;

Vary poor 
dO«* -fiot-d'
G ana n il y fall* .  _ _  „  .„,____

n**cu r 4 ̂ c c - w y o 4 ^ ^ jy ^ S p ;  jX yX  
. p»r-‘tvm*ruo*^--".LlX.V*l:o. «^ ‘-s —..S '.£?-
.— ?•■••v y .- . f f f -  l y y r ~ " ------ ------

_ _ ,  . . . _____  y  »/ -r Vi r - ____. . . . . ___ v -  • . , . . . _  ...._____ „ . . . . _ .  . ^ ^.y - - -^, . - .•..,S ;7 ^ '-3 r ) j
255

-r-ii
SVHlt (Qtflca 3. Clerical Only): Using tha codaa a* dallnad at th# bottom ol tha paga, rata lha *xJll» tha amployaa da-monitriled on tha job 
during tha rating pariod. It not appllcabla, nota NX.^ f _  ../• ;' '■-.j — '- *'-<gj*; ...T,\  :h.‘.i*i* ; r  l - “ ." .5/-S :

Typing _ _ H 5 - . < Languaga Arts _ U 2  ■ • • Of f l c* f a K R +  Talapfiona _H ?v+  _' Filing K R _  Shorthand NA_'/'.' \'~ ZZ‘~.7̂ -~ '

OVERALL RATING OP PERFORMANCE: Considering all factors in relation io (hair importance lo tha employee's joo. place an-X^eal to (h « rat*«3 which bast 
descnoes tna em ploy** s overall partormanca. Use a plus (• )  or minus (-) sign lor graaler accuracy if appropriate (accept FW-Q^da). Tha ra!>ng» ara delm*d at 

tha bottom of tha page. * * ’  _ ........J~/ ' -  **• •*•

U s XL _E« ' P-./ ' • H e
PERFORMANCE IMPROVEMENT: 3 u *d  on the amployaa's ovarail partormanca during the rating pariod. list amployaa * mtin strangthi and da«*oomant n**dt.

Strengths: •y-ipInyoA i s  v e ry  dependable and w i l l  con p le te  her d a i ly  - r e s p o n s ib i l i t ie s  on a 
t im e ly  b a s is . She does no t h e s i t a t e  to  help  o th ers in  the-perform ance o f  th e ir  
r e s p o n s ib i l i t i e s .  '--***' .X.V- *• ' •*'" *•-*■'- •'• '  • -jc* .

'ejooment Naeds: Needs to  -ob ta in  a b e t t e r  understanding o f  the C la im s/ In d iv id u a l Excep tion
R eport fu n c tio n s .

MPROVEMENT PLAN: Indicate what actions will be taken to help tha employe* improve his/her performance on pre it job (e.g.. on tha job tra*

t/ainmg programs, ate.) * .
In  near fu tu re , when a d d it io n a l manhours a v a ila b le ,  p rov ide  th e  op portu n ity  to the 
em ployee to  le a rn  and understand the r e s p o n s ib i l i t ie s  perform ed b y -th e  T r a f f i c  C le rk  
and D ispatch  Fu n ctions. -A lso  p ro v id e  the employee^ t in e  and op p ortu n ity  to  lea rn  more 
anu understand b e t t e r ,  th e c la im s  and handling o f  Exceptions.'- V ; f -  ■

PRO M PT ABILITY STATUS: P lica  an X in lha jpaca that appliaa. If promotabla. list tha typa of job (j).

. . .  . . . .  ; .t  !- . X *  i p -  - i— I I— I Job Till# (»):• . ...-
Promotabla Now -v< * • • .*’ f . '-* Y es  I__ ] No LX i

Promotabla Futura (within naxt 2 years)

Suparvisor • .. ........... -

■ -JOHN V .' .'HUNT : I r r r k ^ :

r'Z‘~ Empigyaa » 3$natur» (O o«j not imply fv'l agr*
7 "Z~ - w. X * ~ '  Indicate* »oor*!ia i h*a tw vi dt*OJ***d wah you ) ..— ,

; D*lln lbon» ol Rating C>d<:

rflar*ty *su*ft*d
V -  C . - «. -v -'-'v  c%  v \ x  >'-A  t . ' .V  < ,»J ¥ X H i ^

t o r