Sledge v JP Stevens & Company, Inc. Brief for Plaintiffs-Appellees and Plaintiffs-Appellants

Public Court Documents
November 30, 1976

Sledge v JP Stevens & Company, Inc. Brief for Plaintiffs-Appellees and Plaintiffs-Appellants preview

112 pages

Cite this item

  • Brief Collection, LDF Court Filings. Sledge v JP Stevens & Company, Inc. Brief for Plaintiffs-Appellees and Plaintiffs-Appellants, 1976. 8d4988c7-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/88307247-e21c-4660-9998-0fd4ba4d5808/sledge-v-jp-stevens-company-inc-brief-for-plaintiffs-appellees-and-plaintiffs-appellants. Accessed April 19, 2025.

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    LAWYERS' COMMITTEE
FOR CIVIL RIGHTS UNDER LAW

SUITE 400 •  1400 EYE STREET, NORTHWEST •  WASHINGTON, D.C. 20005 •  PHONE (202) 371-1212

CABLE ADDRESS: LAWCIV, WASHINGTON, D.C. 
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FACSIMILE: (202) 842-3211

M E M O R A N D U M
September 21, 1990

To: Ron Ellis
Steve Ralston
Eric Schnapper
Kerry Scanlon
Ken Kimerling
Dick Larson
Isabelle Katz Pin&ler

From: Rick Seymour
Re: Sledge v. J.P. Stevens & Co. (4th Circuit)

Nine days ago, I mailed you a copy of our brief in this 
case. Kerry, who reads his mail closely, noted that pp. 7, 8, 
and 10-13 were missing from the copies mailed to you. The 
brevity of this note is due to the fact that I am sprinkling 
ashes over myself as I write. Herewith are the missing pages.



Plaintiffs andtical for the claims arising in either period.15

October 30, 1984 Order adopting the Special Master's recommenda­
tions, document no. 252; November 20, 1984 Stipulation and Order 
dismissing 192 claimants who did not provide discovery as or­
dered, allowing 30 additional days for three claimants to provide 
discovery, and providing for four other claimants, document no. 
253; August 29, 1986 Consent Order resolving certain questions on 
the timeliness of back pay claims, document no. 263; June 8, 1987 
Consent Order ending the first wave of discovery, document no.
270; August 14, 1987 Consent Order on the starting and ending 
dates of the period of liability, on the second wave of discovery 
on back pay claims and on the merits of the claims, document no. 
272; August 21, 1987 Consent Order dismissing multiple claims, 
allowing the withdrawal of some claims in their entirety, and 
allowing the withdrawal of other claims in part, as a result of 
information obtained on the merits of the claims, document no.
273; September 17, 1987 Consent Order dismissing multiple claims, 
document no. 274; September 18, 1987 Consent Order on the timeli­
ness of back pay claims, document no. 275; November 6, 1987 Order 
on the starting dates of the period of recovery and the dismissal 
of claims covering earlier periods and allowing the starting date 
to be raised again based on the theory of a continuing violation, 
document no. 277; May 13, 1988 Consent Order re-opening the first 
wave of discovery for 60 days, document no. 286; May 11, 1988 
Consent Order allowing the withdrawals of entire claims and of 
parts of claims, document no. 287; February 23, 1989 Order on 
Plaintiffs' Motion for Partial Summary Judgment on specified back 
pay questions, document no. 327, 2 Joint Appendix 541 at tab K; 
February 12, 1990 Order determining the dates of documented 
applications, where the dates on the application forms are 
incomplete or ambiguous, document no. 432; March 8, 1990 Order 
denying plaintiffs' motion for a determination of their entitle­
ment to prejudgment interest and for a determination of the rate 
thereof, with leave to renew the motion upon the final determina­
tion of the defendant's liability, document no. 442; April 6,
1990 Consent Order on Plaintiffs' Motion for an Order Establish­
ing a Procedure for Narrowing the Issues as to Delay-in-Hiring 
Claims, and as to the Dismissal of Unfounded Claims, document no. 
456; April 6, 1990 Consent Order on Undocumented Applications, 
document no. 454; and April 6, 1990 Consent Order on the Defend­
ant's Application for a Stay of Proceedings and on Plaintiffs' 
Motion to Dismiss the Defenses Asserted by the Defendant to Back 
Pay Claims, document no. 455.

15 For example, the February 12, 1990 order determining the 
dates of documented applications, where the dates on the applica­
tion forms are incomplete or ambiguous, document no. 432, covered 
applications filed after November 10, 1972 as well as those filed 
earlier. Determinations as to the timeliness of claims, with­
drawals or dismissals of claims to date based on their merits, 
discovery from claimants, etc., are much more efficiently handled 
if they are addressed once rather than twice.

7



the company have conducted joint interviews with more than 2,900 
back pay claimants, pursuant to stipulated procedures approved by 
the district court.16 The initial filing of completed question­
naires filled 16 cartons.17 These interviews took place in the 
Roanoke Rapids area, and in areas to which large numbers of 
claimants had moved: Raleigh, Greensboro, Richmond, the Tidewater 
area, Washington, Philadelphia, and New York. Telephonic inter­
views took place with claimants elsewhere in the country, in the 
armed forces in Germany and the Pacific, and on naval vessels 
docking at various ports of call. Plaintiffs have contracted 
with the Social Security Administration to obtain annual reports 
of earnings, to assist in the determination of interim earnings. 
More than 1,700 consent forms have already been filed with the 
government, and plaintiffs are obtaining the remainder.

Contrary to the implication of the defendant's brief, a 
great deal of work has been done on the back pay claims, and but 
for this appeal the day of judgment on those claims would not be 
long distant.

On July 13, 1989, the company moved to vacate the 
district court's 1975 findings of liability, affirmed by this 
Court in 1978, on the ground that these findings did not meet the 
standards set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 
___ ^ 104 L.Ed.2d 733, 109 S.Ct. 2115 (1989).18 The district

16 June 27, 1983 Consent Order concerning discovery from 
back pay claimants as to the merits of their claims, document no. 
164, and the further orders on this subject noted above.

17 Docket entry for July 26, 1984, 4 Joint Appendix 848 at 
Tab BB.

18 2 Joint Appendix 584 at Teds O.

8



ant's officials favored whites over blacks without regard to 
qualifications? the defendant never seriously questioned the 
accuracy of any of plaintiffs' exhibits or analyses although it 
disputed the conclusions to be drawn from them; and the defendant 
presented no meaningful analyses of its own.

J.P. Stevens used a centralized hiring office, and the 
same hiring procedures, for all positions at its plants and 
offices in Roanoke Rapids.22 This case involves the normal in­
dustrial situation in which employees are hired for what are 
hoped to be permanent positions. It does not involve seasonal 
employment.

The selection procedures used by the defendant were 
subjective,23 and all of the persons making personnel decisions 
were white.24

(a) The Defendant's Records
The company did not keep any records of the reasons why

22 See findings 4-5, 1 Joint Appendix 22-23. The one excep­
tion was a post-suit 1971 change as to the Customer Service 
Office and the Information Services Center. Applicants for those 
positions go through the same hiring process as applicants for 
other facilities in Roanoke Rapids, except that they also had to 
be approved by company officials outside of Roanoke Rapids. See 
finding 4, 1 Joint Appendix 22. The cited references to the 
transcript in these findings can be located in the Joint Appendix 
as follows: Finding 4: testimony of Mr. Akers, 6 Joint Appendix 
2378-79 and 2462-63; Finding 5: testimony of Mr. Akers, 6 Joint 
Appendix 2464-66. Plaintiffs' exhibit 105 is not in the Joint 
Appendix.

23 Finding 20, 1 Joint Appendix 26.
24 Findings 17, 18 and 21, 1 Joint Appendix 25-26. The 

cited references in Finding 17 can be located in the Joint 
Appendix as follows: testimony of Mr. Miller, 5 Joint Appendix 
2112; 4 Joint Appendix 1753-71 (pages of defendant's exhibit 4 
out of order and appearing in the middle of defendant's exhibit 
2) .

10



it hired one applicant instead of another, why it rejected an 
applicant, why it assigned one person to one department or job 
category and another person to a different department or job 
category, or why it promoted one person instead of another. The 
application forms of unhired plaintiffs are in the record, and 
they contain no information from which anyone could glean the 
reason for their rejection.25 The employment records of plain­
tiffs who worked for the company are also in the record, but they 
contain no information explaining the plaintiffs' initial assign­
ments to particular jobs or departments, or the reasons for the 
plaintiffs' lack of promotion.26 Nor do these illustrative 
records even show the names of the company official who made the 
decisions in question.

The unhired applicant, and the misassigned or unpromo­
ted employee, cannot supply the missing information. Applicants 
are routinely told only that they should come back later, or that 
nothing is available at the time, or that they will be called if 
anything comes open.27 The defendant never produced at trial 
any evidence showing why any of the named plaintiffs was not 
hired, or was not assigned to a better job, or was not promoted 
to a better job. Indeed, the defendant admitted it did not know 
why plaintiff Sledge was not rehired, and that its records did

25 Plaintiffs' exhibits 33, 35, and 37, 4 Joint Appendix 
1040-43, 1053-54, 1058-59.

26 Plaintiffs' exhibits 32, 34, 36, 38, and 39, 4 Joint 
Appendix 1037, 1046-47, 1057, 1065, 1068 and 1070.

27 Testimony of Mr. Miller, Tr. 314, 499, 5 Joint Appendix 
2063, 2247.

11



not disclose the reason.28 The defendant never produced at 
trial any explanation for its failure to hire any of the numerous 
highly-qualified black applicants discussed in open court.29

The defendant did not keep records showing the race of 
its employees,30 and did not keep records showing whether ad­
verse impact resulted from any personnel practice, procedure, or 
asserted qualification.

The defendant filed a sworn Affidavit in the district 
court, in which its former Industrial Relations Manager stated 
that "it is virtually inconceivable" that the 180 or so officials 
involved in personnel decisions for the 1972-80 period and still 
employed by the company or its successor "could remember what 
input they had, or the reasons for, any particular employment 
decision."31 If so, it is even less conceivable that such offi­
cials would remember the bases for their personnel decisions for 
the earlier period at issue in this appeal.

The district court found that plaintiffs had gone as 
far as it was possible to go in identifying the causes of the 
adverse impact against blacks in every aspect of the defendant's 
selection process,32 and the defendant's brief points to no way 
in which plaintiffs could have made a more detailed showing.

28 Testimony of Mr. Miller, Tr. 565, 5 Joint Appendix 2313.
29 See the discussion below at 18-19.
30 Finding 103, 1 Joint Appendix 47.
31 Affidavit of Tandy Fitts, 3 Joint Appendix 784 at Tab Y.
32 November 30, 1989 Order on Defendant's motion to Vacate 

Findings of Liability, 1 Joint Appendix 8-9.

12



(b) The Role of Qualifications in Personnel 
Decisions

The company has never developed any standardized 
qualifications to use in selecting applicants to hire, hires to 
assign initially to specific job categories, or employees to 
promote.33 Hiring decisions are made by personnel officers who 
have "little knowledge of any specific qualifications for specif­
ic jobs, other than a general requirement that employees be able- 
bodied and genuinely interested in working."34 Departmental 
overseers are the officials with knowledge of specific job 
requirements, and have the power to accept or reject applicants. 
The company relies on them to ensure that applicants meet specif­
ic job qualifications.35 However, the Personnel Director testi­
fied without rebuttal that it was "very rare" for a departmental 
supervisor to reject an applicant,36 so virtually all hiring 
decisions were made without regard to any specific qualifica­
tions.

The Personnel Director described the "general qualifi­
cations" taken into account in hiring as "general appearance, 
apparent intelligence, as you would judge from the interview, 
apparent interest in the job; of course, their background,

33 Finding 9, 1 Joint Appendix 24. The cited references in 
Finding 9 can be located in the Joint Appendix as follows: 
testimony of Mr. Miller, 5 Joint Appendix 2103, 2107, 2117-21.

34 Findings 8(b) and 9, 1 Joint Appendix 23-24.
35 Finding 10, 1 Joint Appendix 24.
36 Testimony of James B. Miller, Tr. 313 lines 5-13, Tr. 368 

lines 5-8, and Tr. 505 line 4 to 508 line 2, 5 Joint Appendix 
2062, 2117, and 2253-56.

13



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 76-1988 
No. 76-2150

LUCY M . SLEDGE, et al.
Plaintiffs-Appellees in No. 76-1988 
Plaintiffs-Appellants in No. 76-2150

and
TEXTILE WORKERS UNION OF AMERICA 
AFL-CIO, CLC,

Plaintiff-Intervenor-Appellee in No. 76-1988 
Plaintiff-Intervenor-Appellee in No. 76-2150

- v -
J.P. STEVENS & COMPANY, INC.,

Defendant-Appellant in No. 76-1988 
Defendant-Appellee in No. 76-2150

On Appeal from the United States District Court 
for the Eastern District of North Carolina

BRIEF FOR PLAINTIFFS-APPELLEES IN No. 76-1988 
AND FOR PLAINTIFFS-APPELLANTS IN No. 76-2150

Of Counsel:
RICHARD B. SOBOL
910 - 17th Street, N.W.
Washington, D.C. 20006
JACK GREENBERG
0. PETER SHERWOOD 
10 Columbus Circle, Suite 2030 
New York, New York 10019
JULIUS L. CHAMBERS
951 South Independence Boulevard
Charlotte, North Carolina 28202

RICHARD T . SEYMOUR 
316 Southern Building 
19-25 H Street, N.W.
Washington, D.C. 20005
T. T. CLAYTON 
Clayton & Ballance 
307 W. Franklin Street 
Warrenton, North Carolina 27589

Counsel for Plaintiffs-Appellees 
in No. 76-1988

Counsel for Plaintiffs-Appellants 
in No. 76-2150



INDEX
Page

TABLE OF AUTHORITIES iv

STATEMENT OF THE ISSUES 1

STATEMENT OF THE CASE 5

A. Statement of Proceedings 5

B. Statement of the Facts 8

1. Class Claims of Discrimination 8
(a) Findings as to Selection Practices 8

(b) Findings as to the Effects of these
Practices 10

(1) Statistical Evidence on
Hiring Claims 10

(2) Labor Force Data 13

(3) Statistical Evidence of 
Discrimination against
Black Employees 18

(M) Differences in the Form 
and Intensity of Racial 
Discrimination against 
Black Females and of 
Racial Discrimination
against Black Males 21

(5) The Defendant's State­
ments of Facts as to the 
Initial Assignment Claims 23

2. The Personal Claims of the Plaintiffs 2H

(a) The Individual Claim of Plaintiff
Sledge 25

(b) Claims as Class Members for Hiring
Discrimination 29

(c) Claims as Class Members for
Discrimination in Assignments 3LI

a.



ARGUMENT

A. A Previously Certified Class Action Does Not 
Become Moot as to the Class Because of the 
Dismissal of the Personal Claims of the Class 
Representatives

B. Statistical Evidence, Supported by Evidence of 
Facially Neutral Practices Which have a Dispro­
portionately Adverse Impact on Blacks, Are 
Sufficient to Establish a Prima Facie Case

C. The District Court Did Not Err in Finding That 
the Defendant Discriminates in Hiring, or in 
Granting Relief from that Discrimination, Not­
withstanding the Defendant's Claim that it 
Already Employs Enough Blacks

D. Where the Record Showed that Hundreds of White 
Supervisors Have the Power to Make Completely 
Subjective Personnel Decisions, that for Several 
Years They Had Made their Decisions on the Basis 
of Race, and that This has Continued for the Years 
Since the Trial, and Where the Defendant Was Unable 
to Propose any Alternative Form of Relief that 
Would Be Effective, the District Court Did Not 
Abuse its Discretion by Ordering Temporary Quotas

1. The District Court Had the Duty to 
Exercise its Discretion so as to Grant 
Complete Relief

2. The District Judge Exercised Great Care 
in Framing Relief

3. In an Appropriate Case, a Temporary 
Remedial Quota May Lawfully be Decreed

R. Under the Facts of this Case, and the 
Defendant's Demonstrated Unwillingness 
or Inability to Control its Supervisors, 
and in Light of the Defendant's Inability 
to Propose any Effective Alternative, the 
District Court Did Not Abuse its Discretion 
by Ordering Temporary Quota Relief

5. The Defendant's Objections to the Form of 
the Quota Relief Entered Herein Are Without 
Merit

Ml
Page

Ml

M-3

M7

5M

5M

55

57

59

63

- ax



E. The District Court Did Not Abuse Its Discretion 
With Respect to Any Other Part of the Decree

1. The District Court Was Not Required to 
Ignore the Differences between J. P.
Stevens' Racial Discrimination Against 
Black Males and its Racial Discrimination 
Against Black Females

2. The District Court Did Not Abuse its 
Discretion by Adopting Some of the 
Defendant's Suggestions

(a) Anti-White Bias

(b) Training Requirements

3. The District Court Did Not Abuse Its 
Discretion by Entering Any Other 
Provision of the Decree

(a) Red-Circling

(b) Bumping Less Senior Employees 
in the Event of Layoff

(c) Constructive Seniority Under 
Franks v. Bowman Trans porta- 
tion Co.

(d) Other Provisions of the Decree

F. The District Court Used an Incorrect Legal Standard 
in Determining Whether the Plaintiffs Had Established 
a Prim a Facie Case as to their Personal Claims

1. The District Court Erred by Failing to 
Consider the Statistical Evidence and the 
Evidence of Company Practices

2. The District Court Erred by Placing the 
Burden on Plaintiffs to Prove Specific 
Racial Motivation on the Part of the 
Defendant as to their Personal Claims

3. The District Court Erred by Placing the 
Burden on Plaintiffs to Prove their Specific 
Qualifications for the Defendant's Jobs

- i.ii -

G5

65

6 6
66

67

68 

68

68

71

71

75

75

78

kage

80



Page
G. When Tested by Proper Legal Standards, the 

Uneontroverted Evidence Establishes that 
Plaintiffs Have Proved Discrimination 

' Against Them 81
CONCLUSION 83
Addenda la
Civil Rights Attorneys’ Fees Awards Act of 1976, 

Pub.L. 94-559, 90 Stat. 2641 7a

TABLE OF AUTHORITIES

A. Cases Pages

Afro-American Patrolmen’s League v. Duck, 
503 F .2d 294 (6th Cir., 1974) 60

Albemarle Paper Co. v. Moody, 
M22 U.S. 405 (1975) 33,54

Ass’n of Data Processing Service Organizations v. Camp, 
397 U.S. 150 (1970) 42

Barnett v. W.T. Grant Co.,
518 F .2d 543 (4th Cir., 1975)

42 ,43,54, 
60,64,76

Barrows v. Jackson, 3M6 U.S. 249 (1953) 42

Baxter v. Savannah Sugar Refining Corp.,
495 F.2d M37 (5th Cir., 1974), cert, den., 
.419 U.S. 1033 (1974) 80

Boston Chapter, NAACP v. Beecher,
371 F.Supp. 507 (D.Mass., .1974), 
aff’d, 504 F .2d 1017 (1st Cir., 1974), 
cert, den., 421 U.S. 910 (1975) 49

Bradley v. School Bd. of City of Richmond, 
416 U.S. 696 (1974) 75

Bradshaw v. Associated Transport,
12 F.E.P. Cases 859 (M.D.N.C., 1974) 78,83

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

41,43,46, 
60,72 ,73, 
78,79

Carter v. a.l .1 aglie r ,
452 F .2d 327 (8th Cir., 1971) (en bane) , 
cert, den., 4 06 U.S. 950 (1972) 64

- 1 v -

JL



Cathey v. Johnson Motor Lines,
'398 F.Supp. 1107 (W.D.N.C., 1974)

Pages

78
Chambers v. Hendersonville City Bd. of Ed., 

364 F .2d 189 (4th Cir., 1966) (eu bane) 79,81
Contractors' Ass'n of Eastern Pennsylvania v. 

Secretary of Labor, MM2 F.2d 159 
(3rd Cir., 1971), cert, den., MOM U.S. 85M 
(1971) 58

Crockett v. Green,
388 F.Supp. 912 (E.D.Wis., 1975) M 9

Cypress v. Newport News General and 
Nonsectarian Hospital Ass'n., 
375 F.2d 6M8 (4th Cir. , 1967) 60,79

Davis v. County of Los Angeles,
F .2d , 13 F.E.P. Cases 1217 

(9th Cir., 1976) 64,65
Davis v. Washington, 512 F.2d 956

(D.C.Cir., 1975) , rov'd on other issues, 
U.S. , s.ct. 5.1,52

Dickinson v. United States, 
346 U.S. 389 (1953) 83

Doctor v. Seaboard Coast Line R.R. Co., 
540 F .2d 699 (4th Cir., 1976) 42

East v. Romine, Inc., 518 F.2d 332 
(5th Cir., 1975)

SI

English v. Seaboard Coast Line R.R. Co., 
12 F.E.P. Cases 75 (S.D.Ga., 1975) 72

E.E.O.C. v. Elevator Constructors, Local 5
398 F.Supp. 1237 (E.D.Pa., 1975), aff'd, 
538 F .2d 1012 (3rd Cir,, 1976) M 8,51

E.E.O.C. v. Elevator Constructors, Local 5 
538 1.2d 1012 (3rd Cir., 1976) 58

E.E.O.C. v. Local 638, Sheet Metal Workers. 
532 1.2d 821 (2nd Cir., 1976) 73,7M

Erie Human Relations Coinrn'n v Tullio 
493 F .2d 371 (3rd Cir., 1974) 62

Fairley v. Patterson. 493 r ?r 1 5Q» 
(5tli Cir., 197M) 75

Fowler v. Seliwar/.walder. 35.1 F Sunn 721 
(D.Minn., 19/2) 49

Franklin v. J i ' o \ e 1 E1JV. co . ,
501 F.2d 10'3 (6th Cir. , 1974) - v - ___ 82



Pages
Pranks v. Bowman Transportation Co.

995 F .2d 398 (5th Cir., 1979), 
rev'd in part, 929 U.S. 79 7 (1976)

98,99,67 
72 ,73

Franks v. Bowman Transportation Co., 
929 U.S. 79T (1976)

91,71,
80,81

Gamble v. Birmingham Southern R.R. Co., 
519 F .2d 678 (5th Cir., 1975) 63 ,7 0

Graniteville Co. (Sibley Div.) v. E.E.O.C., 
938 F .2d 32 (9th Cir., 1971) 78

Gray v. Greyhound Lines-East,
F.2d , 13 F.E.P. Cases 1901 

(D.C.Cir., 1976) 92

Green v. County School Bd., 391 U.S. 930 (1968) 59

Hackett v. McGuire Bros., 995 F.2d 993 (3rd Cir. , 1971) 92

Hairston v. McLean Trucking Co.,
520 F .2d 226 (9th Cir., 1975) 67 ,79 ,S0

Harper v. Mayor and City Council of Baltimore, 
359 F.Supp. 1.187, aff'd sub nom 
Harper v. Kloster, 986 F.2d 1139 (9th Cir., 1973) 98,51,52

Hawkins v. North Carolina Dental Society, 
355 F.2d 73.8 (9th Cir., 1966) 60

Hester v. Southern Ry. Co.,
997 F .2d 1379 (5th Cir., 1979) 51,52

Hill v. Western Electric Co.,
F.Supp. , 12 F.E.P. Cases 1175 

(E.D.Va., 1976) 51

Interstate Circuit v. United States, 
306 U.S. 2 08 , 226 (1939) 82

Johnson v. Ryder Truck Lines,
12 F.E.P. Cases 895 (W.D.N.C., 1975) 78

Jones v. Lee Way Motor Freight,
931 F.2d 295 (10th Cir., 1970) 78

Jones v. Pitt County Bd. of Ed.,
528 F .2d 919 (9th Cir., 1975) 79

Jones v. Tri-County Electric Cooperative, 
512 F .2d 1 (5th Cir., 1975) 98

Kirkland v. Now York State Dept. of Correctional Sorvices,
520 F.2d 920 (Pnd dir., 1975), cert, den., U.S.

, ‘15 U.S. Law Week 5299 (1976) 61,02

vx



Pages

Lea v. Cone Mills Corp., 4-38 F.2d 8G (4 th Cir., 1971) 83

Logan v. General Fireproofing Co., 
521 F .2d 881 (4th Cir., 1971) 50,52

Louisiana v. United States, 380 U.S. 145 (1905) 54

McDonnell Douglas Corp. v. Green, 
411 U.S. 792 (197 3) 78,79,81

Mims v. Wilson, 514 F.2d 106 (5th Cir., 1975) 48,73

Morrow v. Crisler, 4-91 F.2d 1053 (5th Cir., 1974) 
(en bane) , cert, den., 419 U.S. 895 (1974)

4 S,51, 
58,62

Moss v. Lane Co., 471 F.2d 853 (4th Cir., 1973) 41

Muller v. United States Steel Corp., 
509 F .2d 923 (10th Cir., 1975) 78

NAACP v. Allen, 493 F.2d 614, (5th Cir., 1974) 48,51,54,
58,6.1,62

North Carolina Teachers' Ass'n v. Asheboro City Bd. of Ed., 
393 F.2d 73G (4th Cir., .1968) (en banc) 79

O'Shea v . Littleton, 4.14 U.S. 488 (1974) 42

Parham v. Southwestern Bell Telephone Co., 
433 F .2d 421 (8th Cir., 1970) 78

Patterson v. American Tobacco Co.,
535 F.2d 257 (4th Cir., 197 6) ,
cert, den., U.S. , 45 U.S. Law Week 3330 
(1976)

46,57,58, 
59 ,61,67 , 
70,73,82

Patterson v. Newspaper & Mail Del. Union of N.Y. & Vic., 
384 F.Supp. 585 (S.D.N.Y., 1974) 74

Payne v. Travenol Laboratories,
416 F.Supp. 248 (N.D.Miss., 1976) 4 9

Peters v. Jefferson Chemical Co., 
516 F .2d 447 (5th Cir., 1975) 78

Pettway v. American Cast Iron Pipe Co., 
494 F .2d 211 (5th Cir., 1974) 60,68,73

Quarles v. Philip Morris,
279 F.Supp. 505 (U.D.Va., 1968) 64

Reed v. Arlington Hotel Co.,
476 F .2d 721 (8th Cir., 1973), 
cert, den., 414 U.S. 854 (1973) 72

VXZ



Rios v. Enterprise Ass ’ n Sleamflttcrs Local 038 of U.A. , 
501 I-.2d 022 (2nd Cir., 197M)

Pages

r

Robinson v. Lorillard Coop.,
MMM F .2d 791 (Mth Cir"., 1971)

Robinson v. Union Carbide Co.,
538 F .2d 052 (5th Cir., 1976)

Rook v. Norfolk & Western Ry. Co.,
973 F .2d 13MR (Mth Cir., 1973)

Rodriguez v. East Texas Motor Freight, 
505 F .2d M0 (5th Cir., 197M) , 
cert, granted, U .S. ,
MR U.S. Law Week 3670 (1976)

Rogers v. Int'l Paper Co.,
510 F .2d 13M0 (8th Cir., 1975) , 
vacated with respect to the denial 
of back pay, M2 3 U.S. 809 (1975)

Rowe v. General Motors Corp. ,
M57 F .2d 3MS (5th Cir., 1972)

Russell v. American Tobacco Co.,
528 F .2d 357 (Mth Cir., 1976) , 
cert, den., U.S. ,
MM U.S. Law Week 3593 (1976)

Schlcsinger v. Reservists to Stop the War,
M18 U.S. 208 (197M)

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

Sims v. Sheet Metal Workers' Int'l AssTn, Local No. 65, 
M89 F .2d 1023 (6th Cir., 1973)

Surowitz v. Hilton Hotels Corp.,
383 U.S. 363 (1966)

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

Trafficante v. Metropolitan Life Insurance Co., 
M09 U.S. 205 (1972)

United States v. Allegheny-Ludlum Industries, 
517 F .2d 826 (5th Cir., 1975) , 
cert. den., U.S. ,
MM U.S. Law Week 3593 (1976)

United States v. Hethlchem Steel Corp, , 
MM6 F.2d 652 (2nd Cir., 197l)

65

68

51

55,63,70

81

68

60

67 ,7M 

M2

60

60

78

M5,50,51, 
5M ,66,68, 
70 ,73,7M

M2

72

60,68

VI11



United States v. Chesapeake & Ohio Ry. Co., 
471 F.2d 582 (9th Cir., 1972) , 
cert. den. , Mil U.S. 939 (1973)

Fa^cs

471 F .2d 582 (9th Cir., 1972), 
cert, den., Mil U.S. 939 (1973)

57,6M ,65 
66 ,79

United States v. Dillon Supply Co., 
M29 F .2d 800 (9th Cir., 197 0) 78

United States v. Fast Texas Motor Freight, 
10 F.E.P. Cases 971 79

United States v. Hayes Int’l Corp. 
956 F .2d 112 (5th Cir., 1972) 69

United States v. Hazelwood School District, 
539 F .2d 805 (8th Cir., 1976) 60,81

United States v. Ironworkers Local 86, 
993 F .2d 599 (9th Cir., 1971), 
cert, den., MOM- U.S. 98M (1971) 58

United States v. Jacksonville Terminal Co., 
951 F .2d 918 (5th Cir., 1971) , 
cert, den., 906 U.S. 906 (1972) 46,73,79

United States v. Local Union 212, I.B.E.W., 
972 F .2d 639 (6th Cir., 1973) 58

United States v. Montgomery County Bd. of Ed., 
395 U.S. 225 (1969) 65

United States v. N.L. Industries, 
979 F .2d 359 (8th Cir., 1973) 60,68

United States v. St. Louis-San Francisco Ry. Co., 
969 F .2d 301 (8th Cir., 1972), 
cert, den., M09 U.S. 1107, 1116 (1973) 67

United States v. Sheet Metal Workers, Local 10, 
6 F.E.P. Cases 1036 (D.N.J., 1973) 67

United States v. T.I.M.E,-D.C.,
517 F .2d 299 (5th Cir., 1975), 
cert. granted, U.S. ,
49 U.S. Law Week 3669 (1976)

69,72,
79,81

United Transportation Union and Rock v. Norfolk
& Western Ry., 532 F.2d 336 (Mtli Cir., 1975) ,
cert, den., U.S. , 99 U.S. Law Week 3592 (1976) 71,80,81

Wade v. Mississippi Cooperative Extension Service, 
528 F .2d 508 (5th Cir., 1976) 6 0

Wall v. Stanly County Bd. of Ed.,
378 l'.2d 275 (Mth Cir., 1967) (on banc) 79

Ward v. Appricc, 6 Mod. 269 (1705) 82

X X



Worth v. Seldlru 422 U.S. 490 (1976) 42
Pages

Watkins v. Scott Paper Co.,
530 F .2d 1159 (5th Cir., 1976) , 
cert, den., U.S. ,
45 U.S. Law Week 3253 (1976)

46,55,68,
71,73

B. Statutes and Constitutional Provisions 

Constitution, Article III 42

42 U.S.C. §1981 1, 75

Civil Ri.ghts Attorneys’ Fees Awards Act of 1976 , 
Pub.L. 94-559, 90 Stat. 2641 75

Equal Employment Opportunity Act of 1972, 
Pub.L. 92-261, 86 Stat. 103 58

Title VII, Civil Rights Act of 1964, 
42 U.S.C. §§2000e et seĉ . passim

C. Other Authorities

118 Cong. Rce. 58

122 Cong. Rec. 75
Note, "Employment Discrimination and Title VII of 

the Civil Rights Act of 1964" ,
84 Harv.L.Rev. 1109 (1971) . 50

U.S. Bureau of the Census, Bureau of Labor Statistics, 
Jobseeking Methods Used by American Workers (1975) 16

x



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 76-19S8 
No. 76-2150

LUCY M. SLEDGE, et aL,

Plaintiffs-Appellees in No. 76-1988 
Plaintiffs-Appellants in No. 76-2150

and

TEXTILE WORKERS UNION OF AMERICA,
AI'L-CIO, CLC ,

Plaintiff-Intervenor-Appellee in No. 76-1988 
Plaintiff-Intervenor-Appellee in No. 76-2150

- v -

J. P. STEVENS & COMPANY, INC.,

Defendant-Appellant in No. 76-1988 
Defendant-Appellee in No. 76-2150

On Appeal from the United States District Court 
for the Eastern District of North Carolina

BRIEr FOR PLAINTI IT S-A PPE LLEES IN No. 76-19S8 
AND FOR PLAINTIFFS-APPELLANTS IN No. 76-2150

STATEMENT OF THE ISSUES

A number of questions are presented for review in these consoli­

dated appeals:

1. Does an action previously certified as a class action become 

moot as to the class because of the ultimate dismissal of the personal 

claims of the class representatives?



2. Is uncontested statistical evidence, coupled with uncontested 

evidence of the defendant's use of departmental seniority and of its 

effect on blacks, the defendant's reliance on primarily subjective cri­

teria in deciding whom to hire or to promote, and the defendant's 

failure to post notices of job vacancies, sufficient to establish a prima 

facie case of racial discrimination against a class?

3. Was the district court clearly erroneous in deciding to credit 

the testimony of Ur. Sheldon Haber, plaintiffs' expert witness, with 

respect to the propriety of using workforce statistics as a standard for 

determining whether an employer has discriminated in hiring?

L! . Where the district court found that the defendant had had a 

longstanding practice of discriminating against black applicants for em­

ployment, and where the record was supplemented in February 1976 to show 

that the defendant had continued this practice from the time of trial to 

the end of 1975, did the district court abuse its discretion by entering 

a Decree prohibiting such discrimination, notwithstanding the defendant's 

contention that it was already employing enough blacks?

5. The district court found that the defendant left hiring, 

initial assignment and promotional decisions to a virtually all-white 

group of hundreds of supervisors, that the defendant gave them no objec­

tive standards to follow in making these decisions, that for a long time 

these supervisors had been making their decisions on the basis of race, 

and that the defendant had done nothing to prevent them from exercising 

their discretion along racial lines. The Record was supplemented to show 

information for the three years following the trial, and it showed three 

years' post-trial continuation of the sane racial exercise of supervisory 

discretion. The district court requested the defendant to propose a form 

of relief, short of a quota, which would effectively end these practices. 

The defendant did not do so. Under these facts and circumstances, was it

2



an abuse of the district court’s discretion to order temporary quota 

relief?
6. Where the district court found that the defendant discriminated 

against black males on the basis of their race, and where it found that 

the defendant discriminated against black females on the basis of their 

race, but where it found that the manner of the defendant's racial dis­

crimination was different for black males than it was for black females, 

did it abuse its discretion by taking this difference into account in 

shaping its Decree?

7. Did the district court abuse its discretion by including within 

its Decree provisions for red-circling, provisions to implement the de­

cision of the Supreme Court of the United States in Franks v. Bowman 

Transportation Co., 424 U.S. 747 (197G) , provisions (such as the manner in 

which the Franks provisions worked) to which the defendant made no objec­

tion below, provisions (such as the training program) which the defendant 

had proposed below, provisions (such as the limitation of the effect of 

some seniority changes to blacks) on which the defendant had insisted be­

low, or any other provisions?
8. in determining the personal claims of the named plaintiffs, did 

the district court err by failing to consider the evidence, and its own 

findings, with respect to the class claims?

9. In determining the personal claims of the named plaintiffs, did 

the district court err by placing the burden of proof on the named plain­

tiffs to prove specific racially discriminatory intent as to their personal 

claims, and by placing the burden of proof on them to prove their specific 

qualifications for the defendant’s jobs, in the absence of any allowing by 

the defendant that there were in fact such specific qualifications?

10. Did the plaintiffs in this action establish a prima facie case

of discrimination against them by proving that the defendant has

3



discriminated against the class in specific ways, and that they have 

been affected by this discrimination in exactly the same manner as other 

class members?

11. Did plaintiff Sledge establish a prima facie individual case 

of discrimination against her by proving that following her layoff she 

had recall rights to the Terry Inspector job from which she had been 

laid off, that her work record before the layoff had been exemplary, 

that she was not required to, but did, apply for re-employment with the 

defendant several times during her layoff, that during the period of her 

layoff the defendant violated its own policies by hiring four white women 

for this job, that all Inspector jobs were largely reserved for whites at 

the time, that the defendant never recalled her or tried to recall her, 

and that the defendant has no explanation for its failure to recall her?

12. If either of the questions 10 or 11 is answered in the nega­

tive, did the district court err by restricting plaintiffs’ discovery in 

such a way as to affect the outcome of these determinations?

13. May the prima facie claims of discrimination against plain­

tiffs Sledge and Hawkins be defeated by speculative inferences, totally 

unsupported by the record, that plaintiff Sledge was unavailable for work 

during the period in which the defendant is contended to have discrimi­

nated against her, and that plaintiff Hawkins had applied for employment- 

in bad faith, without any real interest in obtaining it?

1H. As cm alternative to the last question, when a prima facie 

claim lias otherwise been made out and neither the defendant nor the Court 

had ever indicated that availability for work or good faith was at issue, 

may the claims of these plaintiffs be finally dismissed without affording 

them an opportunity for an evidentiary hearing at which they can disprove 

the inferences of unavailability and of bad faith?

>1



STATEMENT OF THE CASE

A . Statement of Proceedings

This case was filed on October 2, .1970 as an across-the-board 

class action under Title VII of the Civil Rights Act of 19OR, 42 1J.S.C. 

§§2000e et seq., and under M2 U,S.C. §1981. it challenged racial dis­

crimination in employment at eight plants and three office facilities
1/

of the defendant in Roanoke Rapids, North Carolina. (JA 12). Approx­

imately 4,000 employees worked in these plants and offices at the time 

of trial. (Defendant's exhibit 1, JA-Exh. 147, and Finding 87, JA 303).

There were extensive discovery disputes between the parties, and 

the Court ultimately allowed restricted discovery to proceed. (JA 2 04- 

06, JA 253-55, and SJA 21) . Plaintiffs had requested full access to the 

personnel files of present and of former employees, and had filed inter­

rogatories seeking relevant information as to present and former employ­

ees. (Plaintiffs' Third Interrogatories 9 and 10, JA 1.85-88; plaintiffs' 

Second Request for Production, items 12 and 14, JA .199; plaintiffs' Re­

quest for Inspection and Copying, SJA 1). Following motions to compel 

discovery and hearings thereon, plaintiffs filed a Further Motion to 

Compel Discovery on August 28, 1972. (JA 239). The district court on 

September 29, 1972 denied the Further Motion insofar as it related to 

these interrogatories and items, and denied plaintiffs' motion to require 

the defendant to race-identify former employees. (JA 254-55).

T7
By order of this Court entered on November 19, 1976, the Joint 

Appendix in No. 76-1988, another appeal involving the same parties, is 
to be used as the Joint Appendix in this appeal. References to "JA” 
are to this Joint Appendix, and references to "JA-Exh." arc to the Ex­
hibit volume of the Joint Appendix in No. 76-1988. References to "SJA" 
are to the Supplementary Joint Appendix in both appeals. Please note 
tliat plaintiffs' exhibit 101 is not the document appearing at pp. 38 to 
144 of the Exhibit volume, but appeal's at SJA 35-147.

_ S _



Plaintiffs requested reconsideration and set forth the prejudice that 

would ensue if it were denied (SJA 3) but the district court allowed 
the request only insofar as it pertained to the inspection of the appli­

cation forms of then-current female employees hired on or after 

October 2, 1967 and the personnel information forms of then-current em­

ployees. (SJA 21) .

The case was fully tried on liability from November G-10, 1972, 

briefed, and finally argued on February 23, 1973. On December 22, 1975, 

the district court entered its Findings of Fact and Conclusions of Law.

(JA 276). The district court held that plaintiffs had shown classwide 

racial discrimination with respect to hiring, initial assignment, pro­

motions, layoffs, recalls, the use of departmental seniority, the racial 

reservation of certain jobs for whites and others for blacks, the defen­

dant's reliance on uncontrolled supervisory discretion, the defendant's 

failure to establish objective criteria for hiring, promotion and trans­

fer, the defendant's failure to post notices of job vacancies, and the 

defendant’s imposing on black females a .longer waiting period before hire 

than it imposes on white females. (Conclusion 8, JA 333-35). The dis­

trict court also held, however, that the defendant had not discriminated 

against any of the plaintiffs, (Conclusion 5, JA 331), and dismissed all 

of their personal claims of discrimination. (JA 275).

The district court directed counsel to confer with respect to the 

form of Decree to be entered, (JA 338) , and several meetings were subse­

quently hold for this purpose between counsel for plaintiffs and counsel 

for the defendant. Counsel for plaintiffs also met or conferred several 

times with counsel for the Textile Workers’ Union of America, which repre­

sented the defendant’s production and maintenance employees in Roanoke 

Rapids. The union moved for leave to intervene as a plaintiff "for the 

limited purpose of assisting this Court in fashioning and effectuating a

6



suitable remedial decree", (JA 399) , and the motion was granted. (R. 707).

The parties were unable to agree on the form of a remedial decree, 

and plaintiffs (JA 359) and the defendant (JA 392) each submitted pro­

posed Decrees to the Court on February 29, 1976. The defendant’s pro­

posed Decree did not specifically remedy several of the discriminatory 

practices described in Conclusion 8 of the district court's Conclusions 

of Law (JA 333-35), including Conclusion 8(a) (reliance on subjective 

decisions of white supervisors), 8(b) (failure to establish objective 

guidelines for selection), 8(f) (reservation of low-paying Warehouseman

job for blacks) , 8(g) (black males are assigned to much lower-paying 
2/

jobs generally), 8 (j) (discrimination against black females in their 

original job assignments), 8 (k) (discrimination in layoffs and recalls), 

or 8 (1) (imposition on black females of longer waiting period before 

hire than is imposed on white females) .

The union essentially supported plaintiffs' proposed Decree. The 

district court heard argument as to the form of Decree to be entered, 

and received documentary evidence to update the Record. (Plaintiffs' 

exhibits .133 and 139; Record Volume XVIII; R.70G) . At this hearing, 

the district court directed the defendant to file a paragraph-by­

paragraph statement of its objections to the various provisions of
3/

plaintiffs' proposed Decree. The defendant complied (R.720) and 

plaintiffs and the union responded (R.79-5, 7 55). An evidentiary hearing 

with respect to the proposed Decree was held on May 9, 1976, and both

-------77
With respect to Weaver and mechanical jobs, the defendant did 

propose a training program. (JA 393-99) .

3/
The court reporter lias not yet completed the transcript of 

this hearing on February 29 , 1976. It lias been requested numerous times 
by the parties.

7



documentary and expert evidence was received. The defendant filed 

several post-argument memoranda with respect to the proposed Decree, 

and plaintiffs and the union responded to them. On June 25, 1970, the 

district court entered its Decree. (JA 489).
On April 22, 1976, plaintiffs had requested reconsideration of 

the district court's holding of, and dismissal as to, the? named plain­

tiffs' personal claims. (SJA 23). This request was denied in an Order 

entered on September 10, 1976. (JA 530). On September 25, 1976, the 

district court entered a certificate under Rule 54(b) of the Federal 

Rules of Civil Procedure, (JA 53.1a), and on October 1, 1976 the Clerk 

entered judgment against plaintiffs with respect to their personal 

claims. (JA 531b). The eight plaintiffs who testified at the trial 

then took this appeal. (Supplement 2 to Record, at 45).

B. Statement of the Facts

1. Class Claims of Discrimination

(a) Findings as to Selection Procedures 

The district court found the following facts as to the defen­

dant’s practices in the selection of applicants to hire and employees 

to assign to jobs or to promote: The defendant has many more applicants

than it can hire (Findings 25-28; JA 298-99) , and of course lias at any 

given time many more employees than it can then promote. All hiring 

and promotional decisions are based upon the subjective opinions of an 

all-white group of personnel officials and supervisors. (Findings 9,

11, 17, 18; JA 299-96). There are no objective qualifications or stan­

dards for hire or for promotion. (Findings 9, 11; JA 29*1-95). Most 

hires are inexperienced and have to be trained for the jobs on which 

they are placed (Appendix I to Findings of Fact, Adopted Findings 27 ,

31, 59; JA 340-41, 396). Level of education is not very important for

8



most jobs (Adopted Finding 29; JA 390). The defendant’s Personnel 
Director testified, and the district court found, "that most of the job 

categories in these plants can be filled by any willing, able-bodied 

person." (Adopted Finding 26; JA 3M0) . The company makes no effort to 

hire the "most qualified" applicant, (Adopted Finding 35; JA 391) , and 

allows its supervisors to fill vacancies in identical jobs by using 

their differing subjective opinions about the importance of various 
criteria. (Adopted Findings 97, 98; JA 395-96).

There is no posting of job vacancies, and there is no job bid­

ding system. (Findings 15, 16; JA 295-96). In filling vacancies by 

promotion, the company makes no effort to find and promote the best 

qualified employee; it ordinarily ignores all employees in other depart­

ments. (Findings 13, 19; JA 295). Most of this evidence was adduced 

in the testimony of company officials and was undisputed. The district 

court then made the following findings:
20. Decisions in hiring and in promotion are based 

primarily on the subjective opinions of personnel offi­
cials and of departmental overseers.

21. Stevens' policy of heavy reliance upon sub­
jective considerations in hiring and promotion, and its 
policy of relying exclusively upon an informal "grape­
vine" network among departmental overseers in making 
interdepartment promotions, in effect gives the officials 
making these decisions the power to discriminate. This 
finding is strengthened by the fact that all officials 
making these decisions are white, and all such officials 
have always been white.

22. Stevens has never adopted any systematic means 
of preventing these officials from using their powers so 
as to discriminate, and its only evidence that they do 
not in fact use their powers in such a fashion is the 
subjective feeling of company officials that the officials 
making personnel decisions would never do such a thing.

23. Decisions to promote are made by departmental 
overseers without the aid of ony company standards. Over­
seers have the power to impose any criteria they wish, and 
different overseers may apply different criteria in 
filling vacancies to the same job categories in theii dif­
ferent departments.

9



24. In summary, the defendant's procedures for 
hiring and promotion not only afford opportunities for 
discrimination but in many instances are conducive to 
discrimination.

(JA 297) .

(b) Findings as to the Effects 
of These Practices

(1) Statistical Evidence on 
Hiring Claims

With respect to applicants, the district court found the foi­

lowing facts based on company records for the period of time for which
they were available •

Percent of Applicants Who Were Successful in Getting Jobs
Period White Black White Black
of Time Hales Males Females Females
5/69-12/31/69 86% 61% 54% 25%

1970 92% 54% 56% 33%
1971 75% 42% 56% 20%

1/1/72-6/30/72 60% 30% 49% 18%

(Findings 25-28; JA 298-99) . For the entire period May 1969 through
June 30, 1972, the figures were:

White Black White Black
Males Males Females Females

Applicants 1,237 1,968 1,260 1,9.18

Hires 932 874 684 ' 442

% Hired 75.3% 44.4% 54'. 3% 2 3.0%

led The company did not, either at the trial or in the evidentiary 

hearings held to frame the Decree, offer any explanation for these dif­

ferences. (Finding 29; JA 300).

After the entry of decision, the record was supplemented. 

Plaintiffs' exhibit .133 is a collection of company documents showing 

data about applicants, hires and initial assignments for the period from

10



January 1, 1972 through December 31, 1975. When added together, they 

show the following information with respect to the years 1972-1975, the

years involved in the company's "50- 50 hiring" claim (defendant's brief
at 16) :

Number of 
Applicants

No. of 
Hires

Percent of Applicants 
Successful in Getting 

Jobs
Other

Comparisons
White Males 1,889 1,529 81% —

Black Males 3,595 1,576 99% —

% of Appli­
cants Who 
Were Black: 66%

% of Hires 
Who Were 
Black: — — -- 29%

* * *

White Females 1,669 1,022 61% —

Black Females 3,652 973 27% —

% of Appli­
cants Who 
Were Black: 69%

% of Hires 
Who Were 
Black: 99%

Again, the company offered no explanation for these differences.

There is no evidence that the number of applicants includes any 

duplicate applications -- i ,e., subsequent applications filed by persons 

who already have an active application pending. The dates of subsequent 

visits to the personnel office are recorded on the original application 

form if the original form is still active. Q'..g . , JA 869; plaintiffs' 

exhibit 96). At trial, plaintiffs' exhibits 65, 66, 69, 72, 77, 78, SI 

and 83 listed the name, address, Social Security number, month and year 

of first application for over 1,800 applicants 18 years old and older,

11



all who could at that time be race-identified. The proportion of these 

listed individual applicants who were black is generally higher than- the 

proportions obtained from the applicant-flow figures stated in

Findings 26-28 (JA 298-99) .

Period of Time

1970

1971

1972 (part)

Percent of Male Appli­
cants Who Were Black

Percent of Female Appli­
cants Who Were Black

Lists of Applicant-flow Lists of Applicant-flow 
Applicants from Findings Applicants from Findings

71.0%

70.3%

69.3%

58.7%

60.3%

65.1%

61.4%

61.8%

66.7%

55.5%

60.7%

69.0%

Plaintiffs’ exhibit 141 (SJA 148), introduced in evidence at the 

May 4, 1976 hearing (JA 1611-12) is a collection of documents compiled 

by the North Carolina Employment Security Commission for Halifax and 

Northampton Counties, North Carolina. The parties have stipulated that 

this is the defendant's labor market area. (JA 1544, 1612). This ex­

hibit shows that there were 3,426 separate job applicants in these two 

counties who had current applications for employment referrals with the 
North Carolina Employment Security Commission as of January 1976, and 

that 2,208 of them -- 64.4% of the total -- were black.

The proportion of blacks among the defendant's employees was 

15.9% in 1967, 17.4% in 1968, 17.4% in 1969 as well, 19.4% in 1970 when 

the Complaint was filed, 23.7% in 1971, and 33.7% in 1972 when the case 

was tried. (Defendant's Exhibit 1, JA Exh. 147). Plaintiffs' exhibit 

139, introduced in evidence at the February 24, 1976 hearing, (R.706) , 

is a group of EEO-1 forms which shows that the proportion of blacks 

among the defendant's employees was 36.9% on March 30, 1974 and declined 

to 34.2% on January 11, 1975. These figures exclude over a hundred em­

ployees of two of the defendant's clerical facilities, the Customer 

Service Office and the Information Services Center, 99.of whom were

12



white. (Finding 33, ,TA 302). Including them in the figures would reduce 

the percentage of blacks. The defendant's exhibit 9(e), (JA-Exh. 2 00), as 

explained by the Affidavit of Tandy Fitts, (JA-Exh. 203) , excludes all sal­

aried positions, held almost exclusively by whites, and shows that MO.8% 

of the defendant's remaining employees were black as of December 1975.

There is no direct evidence to show the proportion of blacks among the de­

fendant's employees at the Roanoke Rapids facilities involved in this ease 

as of December 1975. Plaintiffs' exhibit .134 shows that there were 217 of­

ficials and managers, 3 of whom were black, as of January 11 of the same 

year. Adding these and the 1972 figures for the Customer Service Office 

.and Information Services Center, the best available estimate is that 37.1% 

of the defendant's employees were black in December 1975. Cf. defendant's 

brief at 17.

(2) Labor Force Data

The civilian labor force in Halifax and Northampton Counties consisted 

of 28,900 persons in 1979. (Plaintiffs' exhibit 141, table 20; defendant's 

exhibit 7, JA-Exh. .180). The defendant had 4,000 employees at that time, in­

cluding the two facilities not reflected in the EEO-1 forms, (plaintiffs'ex­

hibit 134) ,• and thus employed 13.8% of the civilian labor force, roughly one 

out of every seven persons in the labor force. It employs 80.9% of the lo­

cal textile labor force. (JA .1629) . The total civilian labor force in these 

counties, including the defendant's employees, was M0.6% black in 197M.

At the May 4, 1976 hearing, plaintiffs introduced the testimony of 

Sheldon Haber, Ph.D., who was qualified as a labor economist and testified 

as to the appropriate standard -- applicant-flow or labor force data -- 

for determining the labor pool available to an employer, and thus whether 

it lias discriminated in hiring.

Generally, lie testified, applicant-flow data provide a fairer and 

more accurate measure of the labor pool available to an employer than is

13



provided by labor force data. It would not be appropriate to use appli­

cant flow data where the employer has discriminated so much against 

persons of a particular race or sex that it has discouraged them from 

applying. (JA 1606-07).

Sudden surges in the number of applicants of one race, while the 

number of applicants of the other race remains substantially the same, 

are probably due to local short-term changes in the labor market. The 

1072 surge in the number of black applicants and the 1975 surge in the
4 /

number of white applicants do not in themselves mean that any outside

groups were artificially generating black applications in one year and
5/

white applications in the other. In any event, an employer which is 

required to hire blacks, or to offer to hire them, in the ratio in which 

they apply is not harmed by either black or white surges as long as the 

applicants are qualified and willing to work for the employer. (JA 1607- 

09, 1635-39, 1642-43).

The main problem with the use of labor force figures is that they 

do not accurately reflect the persons who are available to fill the

47
From 1971 to 1972, the number of black applicants rose from 1,395 

(Finding 27; JA 299) to 2,292 (plaintiffs' exhibit 133), an increase of 
70.4%, while the number of white applicants declined from 880 to 759, a 
decrease of 19.3%. From 1974 to 1975, the number of black applicants re­
mained identical, but the number of white applicants rose from 683 to 991, 
an increase of 9 5.1%. (Plaintiffs' exhibit 133) . both the black increase 
and the white increase were outside the time included within the trial 
record, so neither affected the district court's findings.

5/
There is no evidence of such efforts, and there is no evidence 

that either surge included any persons who were either unqualified for 
employment with the company, or who were in bad faith, i . e . , applied with­
out any interest in working for the defendant. To the contrary, the per­
centage of black applicants who were hired went up from 1971 (41.9:% of 
black male applicants hired, and 20.3% of black female applicants hired; 
Finding 27, JA 299) to 1972 (96.9% of black male applicants hired, and 
30.0% of black female applicants hired; plaintiffs' exhibit 133), rather 
than down as would be expected if such a manipulation had taken place.

19



particular jobs the employer lias to offer, at its pay rates. These 

figures are too abstract for this purpose. Only applicant-flow data 

provide this information. (JA 162 5-26) .

He testified that there are other serious problems with the use 

of labor-force figures in this case. First, he testified that a sub­

stantial part of the local labor-force figures are made up of persons 

such as professionals, who arc unlikely to be interested in textile 

jobs, (JA 1614-16), and this group is disproportionately made up of 

whites. It is not appropriate to include them in labor-force figures 

as if they were available for textile jobs. (JA 1615). Plaintiffs' 

exhibit 141, table 3A for each county, (SJA 152, 159) , shows that the 

employed part of the local labor force was 27,080 persons. This in­

cludes 5,370 persons -- .19.8% of the entire labor force -- who arc

engineers, medical and health service professionals or technicians,
6/

teachers, other professionals, nonfarm managers and administrators 

and sales workers. Only 840 blacks, 15.6% of the total, are included 

within these 5,370 persons. By subtracting these persons from the 

totals, the proportion of blacks in the employed part of the local, labor 

force becomes 44.7%. (Plaintiffs' exhibit 141; JA 16.17) . No comparable 

breakdown of the unemployed part of the local .labor force is possible , 

but the problem of the inclusion of a disproportionately-white group, sub­

stantial in size, who are unlikely to be interested in employment with 

the defendant is likely to occur with respect to them as well. (JA 1617- 

18) . The only correction that can be made is with respect to the 5,370 

already-employed persons. Subtracting them from the local labor force of

------------ TT7
Managerial jobs arc at issue in this case, but the defendant 

generally trains and promotes its managers from within, rather than 
hiring them from "Nonfarm Managers and Administrators" who show up at 
its Central Personnel Office.

15



28,900 persons results in a corrected figure of 23,530 persons, of whom 

10,890 persons -- 96.3% -- are black. (Plaintiffs' exhibit 181).

Second, lie testified that the local labor-force figures are com­

posed of both the employed (90.7% of the total) and the unemployed (5.3% 

of the total) , but persons who are already employed are much less likely 

to be interested in obtaining jobs with the defendant. A nationwide study 

by the U.S. Census Bureau, Jobseeking Methods Used By American Workers , 

stated that only a quarter of jobseekers were employed at the time they 

sought other jobs. Another quarter had had jobs recently, and he testi­

fied that it was fair to consider the recently-employed as having the
7/

characteristics of the employed. Statistics compiled by the North 

Carolina Employment Security Commission, introduced in evidence as part 

of plaintiffs' exhibit 181, showed that approximately 95% of the indi­

vidual jobseekers applying for employment referrals at the Commission's 

Roanoke Rapids branch office had no full-time job, part-time job, or job 

attachment (layoff status, etc.). (JA 1618-23). The employed portion 

of the labor force is 3S.9% black, corrected to 00.7% black because of 

the first problem addressed, and the unemployed portion of the labor force 

is 66.7% black. (JA 1617, 1622; plaintiffs' exhibit 101). Reweighting 

the labor force statistics to account for the difference between the 

availability for hire of already-employed persons and the availability 

for hire of unemployed persons produces a labor force 55.7% black accord­

ing to the nationwide Census Bureau data, and 65.6% black according to the 

local North Carolina Employment Security Commission data.

Third, the 1970 Census disproportionately undercounted blacks, by 

a range of from 2% to 5%. This affects the labor force statistics, and

This assumption favors the defendant, since the proportion of 
blacks among the already-employed is much less than the proportion of 
blacks among the unemployed.

16



requires that the percentage of blacks be adjusted upward by that amount. 

(JA 1624) .

Taking these problems into account produces labor force statistics 

which more closely approximate the labor pool available for hire by the 

defendant:

Available Labor Pool for 
Halifax and Northampton Counties

Original: Percent Black
Employed (94.7% weight) 38.9%
Unemployed (5.3% weight) 66.7%

Labor Force (reflecting this weighting)

*  *  *

Corrected:
Employed, excluding professionals, nonfarm managers 

and administrators and persons in sales

40.6% +2% to 5% 
for undercount

44.7%

Unemployed (no comparable adjustment possible) 66.7%

Labor Force, weighted 50-50 between employed 
and unemployed persons (source: U.S. Bureau
of Census, Jobseeking Methods Used by Ameri­
can Workers) 55.7% +2% to 5%

for undercount

Labor Force, weighted 5% for employed persons 
and 95% for unemployed persons (source: 
plaintiffs' exhibit 191, N.C. Employment 
Security Commission statistics on persons
seeking work) 6 5.6%. +2% to 5%

for undercount

Even with these refinements, however, Dr. Haber testified that the 

resulting figures are a less accurate reflection of the persons available 

for hire than are the applicant-flow figures. (JA 1625-26). Dr. Haber 

testified that courts and government agencies "sometimes" rely on labor 

force figures for EEO purposes, but that the reason for some such uses 

"is that the complications are not really appreciated or understood fully", 

that the data was originally collected by the Census Bureau for other

17



purposes, and that "[t]here is this temptation, if you will, to use pub-
8/

lished data simply because they are published.

White employees generally work for shorter periods of time than

black employees. Only 95.5% of the white hires from January 1, 1970 to

September 30, 1972 were still working on October 1, 1970, but 56.5% of

the black hires were still working on this date. For females alone, the

difference was twice as large: only 93.7% of the white female hires, but

68.0% of the black female hires, during this period were still working at 
9/

its end. The greater rate of white terminations thus inflates the pro­

portion of blacks among the defendant's employees beyond the proportion 

that would occur from its hiring practices in isolation.

(3) Statistical Evidence of Discrimination 
against Black Employees

With respect to employees, the district court found the following 

facts based on company payroll and personnel records: At the time of

trial, the average black male with twelve years' seniority made less than 

the average white male with one year's seniority (Finding 62; JA 310-11); 

the average white male without any previous work experience made over 

twenty cents an hour more than the average black male with previous tex­

tile experience (Finding 63; JA 3.11); the average white male with a 3rd-

grade education made 19/ an hour more than the average black high school
10/

graduate (Finding 67; JA 313-19) . The company had reserved clerical,

8/
Cf. the defendant's treatment of this testimony in its brief

at 91.
9/

The number of hires was taken from Findings 26-28 (JA 298-99) for 
the period from January 1, 1970 to June 30, 1972, and from plaintiffs' ex­
hibit 133 for the period July 1 to September 30, 1972. The number of such 
employees still working for the defendant on October 1, 1972 is taken from 
plaintiffs' exhibit 59 (Record Volume XI).

10/
The defendant's black employees are better educated than its white 

employees. (Findings 66 and 7 0(d); JA 313, 317) . These statistics are 
all for hourly employees.

18



supervisory, weaver and fixer jobs for whites, and the low-paid job of 

warehouseman for blacks. (Findings 32-59; JA 30.1-09). The company as­

signed black males to its lowest-paid departments, and penalized them 

with loss of seniority if they transferred to higher-paying departments. 

(Findings 71-76; JA 317-19). A much higher percentage of white female em­

ployees than of black female employees had jobs at the top of the defen­

dant's pay scale, and this was true even when education and previous ex­

perience were equalized. (Findings 78-81, JA 320-22). White females who 

were hired in 1972 had to wait an average of 99 days from their applica­

tion to the date of hire; the company made black women wait an average of 

89 days (Findings 89-90; JA 326).

The post-trial supplementation of the record indicates that the de­

fendant's practices are having the same effect now that they did at the 

time of trial. The defendant's own exhibit 9(c) , (JA-Exh. 200) , while it 

excludes the predominantly-white salaried jobs, (JA-Exh. 203; plaintiffs' 

exhibit 139) , nevertheless shows that the average hourly pay rate for the

whites in December 1975 who were included in the exhibit was $3.93 an hour.
U /

For blacks, the average was $3.21 an hour. On October 1, 1972, the

white average had been $2.56 an hour and the black average had been $2.37 

an hour. (Calculation from plaintiffs' exhibit 29, Record Volume XI).

The racial gap in average hourly pay rates lias thus widened even after the 

more highly paid whites are deleted from the figures for both periods.

The defendant's EEO-1 forms for January 11, 1975 for all facilities 

but the Customer Service Office and the Information Services Center (plain­

tiffs' exhibit 139) -- for which it provided no information -- also show

u y
These figures arc obtained by dividing the aggregate hourly pay 

for each race by the number of employees of that race.

19



that little substantial change has been made, compared with the March 9, 

1972 EEO-1 forms introduced at trial (plaintiffs' exhibits 89 and 90 

(table 2 (a)) ; Record Volume XVI) :

dob Categories

1972 1975
Number of 
Employees

Number of 
Blacks

Number of Percent 
Employees Black

Officers & Managers 208 0 217 3
Professionals 15 0 28 0
Technicians 18 0 21 0
Sales Workers 0 0 0 0
Office & Clerical 212 3 226 7
Craftsman (Skilled) 981 33 592 75

Operatives (Semi-skilled) 2,252 662 1,920 787
Laborers (Unskilled) 996 259 928 281

Service Workers 39 29 9 9
TOTAL 3,666 986 3,386 1,157

Plaintiffs' exhibit 133 shows that, in the three years since the 

trial for which figures arc available, the company lias continued to prac­

tice reserving certain jobs for persons of one race. Cf. Findings 32-59 

(JA 301-09) .

Initial Assignments in 1973, 1979 and 1975 to Jobs the 
_______District Court Had Found to be Racially Reserved_________________

Jobs

Number of 
Vacancies 
Filled

Number 
Filled 
by Blacks

Percent 
Filled 
by Blacks

Clerical 67 9 6%

Fixer 92 1 2%

Supervisory 78 0 0%

Weaver (males only) 162 37 23%

Warehouseman 57 59 95%

In the one area in which performance seems to have improved -- the

20



assignment of black males to weaving jobs -- virtually all of the progress 

was made in the two years after the trial. In 1D73 and 1979 , the company 

initially assigned 97 males to weaving jobs, of whom 35 were black. In 

1975, the company initially assigned 30 males to weaving jobs. Only 2 

were black.

(9) Differences in the Form and Intensity 
of Racial Discrimination against Black 
Females and of Racial Discrimination 
against Black Males

The district court found that the defendant discriminated against 

black females on the basis of their race, but that the form and intensity 

of its racial discrimination against black fcmoJ.es differed from that of 

dts racial discrimination against black males. (Findings 99, 77, and 81; 

JA 30G, 319-20, 322) .

Black females, for example, were not hired by the defendant until 

relatively late. Plaintiffs’ exhibit 59 shows that botli black males and 

black females were excluded from the defendant's plants, but that the ex­

clusion of black males was not nearly so total as the exclusion of black 

females. Tables 1(a) and 1(b) of this exhibit show the following data for 

current hourly employees as of October 1, 1972:
* Bl ack White Black White

Females Females Males Males

Number 960 1,062 783 1,170

No. Hired before 1965 18 639 195 679

-- Percent of Total

No. Hired before 1970
(filing of Complaint)

3.9% 60.1% 18.5%. 57.6%

(includes persons above) 176 839 919 919

-- Percent of Total 38.3% 7S .5% 52.9%
12/

78.5%

Plaintiffs' exhibit 89 

127“

confirms the tibove data:

The district court did not allow plaintiffs to discover CEO-1 
forms for periods prior to October 2, 1967. (JA 209, 259). The defendant’s 
exhibit 1, which includes data for J.967 , is not broken down by sex.

21



Date of Number of 
EEO-1 Data Male Employees

Percent
Black

Number of 
Female Employees

Percent
Black

February 29, 1968 1,997 23.9% 1,310 7.9%

March 8, 1969 2,051 23.1% 1,211 7.8%

April 25, 1970 (J.ast 
data before filing 
of Complaint) 1,961 26.6% 1,310 8.8%

March 6, 1971 2 ,078 28.6% 1,928 16.6%

March 9, 1972 2,198 31.0% 1,518 21.1%

Once insi.de the plant, black males were assigned to traditionally 

black low-paying jobs, but black femaJ.es were given job assignments which, 

while discriminatory, were less so. Racial differences in average hourly 

pay rates were much greater for black maJ.es than for black females 

(Findings GO, 62 , 63 , 67 and 77; JA 309-11, 313-19 and 3.19-2 0), and racial 

differences in the proportion of blacks in jobs at the top of the defen­

dant's pay scale are, while still substantial for black women, much larger 

for black males. Findings 61(b) and 78, (JA 3J.0, 320) , for example, state

61(b) . 2.7% of the black males -- but 35.0% of the
white males -- earned $2.81 an hour or more. ...

* * *

78. As of October J., 1972 , for current hourly em­
ployees, 13.1% of black females -- and 23.8% of white 
females -- earned $2.51 an hour or more ... .

Nevertheless, both of the differences stated in these findings arc statis­

tically significant. (Plaintiffs' exhibits 95 and 50; JA 703-06).

The district court gave a specific example of the differences be­

tween the defendant's racial discrimination against black males and 

against black females. After noting that the Weaver job "is one of 

Stevens' relatively high-paying jobs for both males and females" and that 

the company "frequently hired inexperienced persons off the street for 

weaving jobs", (Finding 99; JA 305) , the district court stated that in

22 -



mid-May, 1969, "Stevens had 73 male weavers and 209 female weavers. Only 

three of the male weavers, and four of the female weavers, were

black ... ." Finding *15; JA 305) . In the next thirty-seven months,

"Stevens hired 119 males and 99 females whom it initially assigned to the 

job of weaver [and] ... 21 males and 17 females whom it initially assign­

ed to the job of weaver learner." "Of those persons ... 3b.5% of the fe­

males -- but only 5.7% of the males -- were black." (Finding 96; JA 305).

In this period, "the average white male hire had a chance of being as­

signed" to such a job "over fifteen times greater than the chance of an 

average black male hire." (Finding 47; JA 306). After finding that the 

defendant had advanced no explanation for these facts, (Finding 98;

JA 306) , the district court stated its ultimate finding (JA 306) :

99. The court finds that Stevens ordinarily reserved 
the job of weaver for whites until May, 1969. Thereafter, 
it fully eliminated the racial restriction insofar as it 
affected black women, but kept the restriction in force in­
sofar as it affected black men.

(5) The Defendant’s Statements of Facts 
as to the Initial Assignment Claims

The defendant’s brief states at 17 that "of all employees assigned 

to the top paying jobs immediately upon being hired, 33.92% of such assign­

ments went to blacks during the years 1969 through 1972." At 17-18, it 

states that in J969, "when blacks were only 17.4% of the total ... employ­

ees ... blacks received 40% of such initial ... assignments ... ." At 18, 

it states that for males in the years 1969-72, "32.25% of such assignments 

went to blacks" and in 1969, "when ... blacks were only 17.9% of the total 

number of employees in these plants, black males received 39.21% of such 

initial ... assignments ... ." The jobs to which the defendant refers are 

those paying $2.53 or more an hour as of October 1, 1972, the period in 

question is from May 18, 1969 through June 30, 1972, and these assignments 

are only to jobs where plaintiffs knew of the pay rates. Be that as it

23



may, the defendant's statements do not accurately reflect their stated 

source, plaintiffs' exhibit 93 (Record Volume XVI). The following table 

is drawn from this exhibit and accurately reflects it:

Breakdown of Initial 
Assignments

No. of Such 
Assignments

No. of Such 
Assignments 
of Whites

No. of Such 
Assignments 
of Blacks

Percent
Black

Total, 1969-72 2,531 1,390 1,191 95.1%

Total to Jobs Paying 
$2.53 or More 510 337 173 33.9%

Percent So Assigned — 29.2/6 15.2% —

'A* * * * 9;

Total Males, 1969-72 1,605 823 782 98.7%

Total to Jobs Paying 
$2.53 or More *103 273 130 32.3%

Percent So Assigned — 33.2% .16.6% —

* * * *

Total, 1969 377 195 .182 9 S. 3%

Total to Jobs Paying 
$2.53 or More 51 31 20 39.2%

Percent So Assigned — 15.9% 11.0% —

* * * *

Total Males, 1969 262 113 199 56.9%

Total to Jobs Paying 
$2.53 or More *18 28 20 91.7%

Percent So Assigned — 29.8% 13.9% —

2 . The Personal Claims of the Plaintiffs

Eacli plaintiff is contended to have a personal claim of discrimi-

nation indistinguishable from that of any class member; only plaintiff 

Sledge is contended to have an additional claim of individual discrimi­

nation unlike the general treatment accorded to class members.

2*1



(a) The Individual Claim of Plaintiff Sledge 

Plaintiff Lucy Sledge is a black woman (JA 642) hired by the defen­

dant on July 18, 1966. (Finding 1 (m) ; JA 289). With the exception of a 

leave of absence for childbirth, she worked for the defendant until she 

was laid off from her job as a Terry Inspector on July 11, 1968. (ItU) .

It is not contended that her layoff was discriminatory, but the defendant’s 

inspection jobs were still largely segregated, with only a few token 

blacks in them, as of May, 1969 (Finding 82(d); JA 323-24).

The termination form filled out by her supervisor stated that the 

quality and quantity of her work were good, that her conduct and attendance 

were good, that her attitude toward other employees was good, that ho rec- 

commended her for another job in the plant, that lie wanted her to return to 

his department in the future, and that lie recommended re-employing her on

the same job. (Plaintiffs' exhibit 102; JA-Exh. 145). She applied for
13/

re-employment on several occasions ending at some point in 1969, but 

was never recalled or rehired. (JA 643). She filed an E.E.O.C. charge 

on March 6, 1970 and ultimately received a Notice of Right to Sue dated 
September 15, 1970. (JA-Exh. 2-3).

Under the defendant's personnel policies, an employee who has 

been laid off lias priority over applicants for placement in jobs 

opening up in the plant without being required to apply for employment,

(JA 561-63, JA-Exh. 48, 50), and a laid-off employee who keeps returning 

to the personnel office seeking employment will ordinarily be hired.

137
The dates of her applications are unknown. She could not remem­

ber them, (JA 643) , and the defendant did not have records oL' them when 
they were requested in discovery. (JA 198 and 234). In the ordinary 
course, this was to lie expected. Applications were ordinarily destroyed 
after the expiration oi the six months for which they were considered cur­
rent, (Adopted Finding 34, JA 341), and the parties did not stipulate the 
retention of application forms and other personnel records until January 7, 
1971. (R. 83). The applicati ons thus preserved would only go back to
July or August 1970.

25



(JA 1097-98). nils is particularly true if the employee had a good work

record, as indicated on his or her termination form (JA 1098-99).

The defendant hired a substantial number of persons in 1908; its

own exhibit 5 shows a total of 70 persons who were hired in 1968 were

still employed at the time of trial four years later. (JA-Exh. 2.08,

170, .172 , 179, 176, and 178). Plaintiffs' exhibit 1 s2iows that several

white women were hired after plaintiff Sledge was laid off, and were

liired despite liaving liad work experience inferior to hers , or education
14/

inferior to hers. The exliibit is explained at JA 569-73 and 771-73.

The district court found that the defendant had rehired a number 

of persons whom it Jiad previously fired; that it had rehired a number 

of persons whoso former supervisors had recommended against re-employing 

them in the same or other jobs; and t2iat it had rehired former employees 

with poor attendance records and poor work records. (Finding 88;

JA 325-20). The evidence presented to the district court to sustain 

that finding involved a number of whites, including Marie G. Wilson,

19_/
E ,g, , Monnie M. Powell, on July 29 , 1968; Jane M. Hawkins on 

August 28, 1908; Lucy C. Hatche.1 on the same date; Sandra Floyd on 
September 6, 1968; Helen F. Marshall on September 27, .19GS; Margie P.
Peffer on October S, 1968; Maxine G. Walker on November 8, 1908;
Lillian L. Draper on November 20, 1968; Cecelia L. Carver on December 9, 
1968; Lois M. Acree on December 11, 1908; Betty Collier on December 13, 
1968; and Linda V. Smith on December 27, 1968.

The codes on the sane exhibit show that Hawkins, Floyd, Marshall, 
Peffer and Carvei1 were hired despite having had either no previous employ­
ment experience or no such experience relevant to textile work. The same 
exhibit shows further that several of these women were hired despite 
having education inferior to that of plaintiff Sledge: Hatehel (0th-grade),
Marshall (lOth-grade) , Peffer (llth-grade) , Carver (llth-grade) , Acree 
(7th-grade) and Collier (7th-grade) .

Because of the district court's limitation on discovery, the 
first paragraph includes only persons who were stil3. employed in 1972, and 
the second paragraph includes only persons who wore still employed as of 
October 23, 1972. (SJA 21). Education and experience data was therefore 
not available to plaintiffs for all persons listed in the first paragraph. 
Experience codes are the same as the table numbers in plaintiffs' 
exhibit 52 (Record Volume XI) .

26



a white female who had either quit or been discharged a total of 14

times, frequently with recommendations against re-employing her on any

job, and who had been warned several times about her absenteeism. One

such voluntary termination, accompanied by an adverse recommendation

against her employment in any job in the plant, occurred on December 26,

1968. By April 1969, she had been rehired and was already being warned

again about her attendance. She was nonetheless rehired a total of 13
15/

times. (Plaintiffs' exhibit 101, SJA 37-42).

T 5 7  ‘
Other examples were:

-- Clyde B. Wages, a white male who had had nine accidents while 
employed by the company, and had in that time received eight warnings as 
to absenteeism and other problems. He was fired on October 29, 1969 for 
excessive unexcused absenteeism; rehired on December 29, 1969; fired for 
the same reason on March 19, 1970 with a supervisory recommendation 
against re-employing him in any job; rehired again on May 7, 1970 and quit 
without notice six months later. (Id., SJA 47-51).

-- Johnnie Strickland, a white female, was originally hired on 
September 19, 1966, quit without notice on May 8, 1967, was rehired three 
weeks later, quit again on November 2, 1967, was rehired eleven months 
later, quit again without notice on March 21, 1972 with a supervisory rec- 
commendation against re-employing her in any job, and was rehired on 
June 28, 1972. (Id., SJA 59-61).

-- S. Ray Barnett, a white male, was originally hired on Septem­
ber 28, 1965, quit on October 13, 1966 with a supervisory recommendation 
against re-employing him in any job; was rehired shortly, thereafter; quit 
again on November 4, 1966 with a supervisory recommendation against re­
employing him in any job; was rehired again; quit again on April 14, 1967 
with a supervisory recommendation against re-employing him in any job; was 
rehired again, and quit again on March 4, 1971 with a supervisory recom­
mendation against re-employing him in any job. (Id. , SJA 84-86) .

-- Cynthia B. Wells, a white female with a 9th-grade education, 
quit on July 26, 1971 -- five months after her hire -- because the work 
was too hard for the pay. Her supervisor recommended against re-employing 
her in any job. She was rehired on October 18, 1971, less than three 
months later. (Id. , SJA 42-44) .

-- Clarence Sewell, Jr., a white male with an 8th-grade educa­
tion, had had 6 accidents while employed by the defendant and quit on 
July 31, 1967. His supervisor recommended against re-employing him in any 
job. He was rehired on August 26, 1968, (Id. , SJA 35-37).

27



The defendant hired four white women, and no blacks, for Terry 

Inspector jobs from May 18, 19G9 to the end of the year. (Plaintiffs' 

exhibit 92 at p. 17, Record Volume XVI). It introduced no evidence to 

explain the disparate treatment of plaintiff Sledge. The district court- 

held that she had not been discriminated against, on the ground that there 

was no evidence of her dates of application or of vacancies on those 

dates, and on the inconsistent ground that the defendant was then hiring 

blacks in substantial numbers "and the court cannot assume that this 

plaintiff was singled out for rejection simply because she was black.” 

(Finding 1 (m) , JA 290) .

At a hearing held in this case on February 29, 1976, the dis­

trict court stated that its reason for finding that she had not been

discriminated against was that she testified at trial that she then
16/

lived in New Jersey, and the court was uncertain when she’d moved.

-------- 1(77
The court reporter lias not yet provided the requested tran­

script. Both plaintiffs and the defendant have pressed for it, but 
without avail.

28



Whan plaintiffs requested, reconsideration of the dismissal of her 

claim, they pointed out that plaintiffs1 exhibit 32 showed her address 

the time of her layoff (JA—Exh. 1) and at the time of her January 8, 

1970 E.E.O.C. charge (JA-Exh. 2) , to have been in Roanoke Rapids,
North Carolina. (SJA 24).

The October 2, 1970 Complaint alleged that she was a resident 

of Nortli Carolina (JA 13-14) and the Answer admitted the allegation.
(JA 95) .

(b) Claims as Class Members for 
Hiring Discrimination

Plaintiff Patricia Purnell is a black woman (JA 646) who had a 

high school degree (JA 649) but no previous employment experience.

(JA 648). She applied for employment with the defendant on a number of 

occasions, her two application forms retained by the defendant show 

dates of October 10 aid 23, .1969 and June 1 and 13 , 1972. (JA-Exh. 4, 

6). She also applied in August 1972. (JA 647). She was never em­

ployed by the defendant. (JA 646-47). Plaintiffs' exhibit 1 shows

that several white women were hired by the defendant shortly after
17/

plaintiff Patricia Purnell's applications, some with no better work 

IT/--------- ------
P-g- , Alice S. Cook on October 24, 1969; Grace M. McCoy on 

October 30, 1969; Frances W. Borrell on November 5, 1969; Dorothy M. 
Gray on November 11, 1969; and Patricia II. Shearin on November 21,
1969; June T. Cobb on June .13 , .1972; Judith W, Elli s on the same date; 
Ellen A. Harlow on the sane date; Polly p. Odom on the sane date; 
Cynthia 13. Edwards on June 14, 1972; Martha C. Turner on the same date; 
Cheryl A. Wasmund on the sane date; Ruby 1. Waters on June 15, 1972; 
Frances H. Harris on June 21, 1972; Marguerite Wheeler on June 21,
1972; Nina L. Albertson on June 22, 1972; Carol A. Yates on the sane 
date; Carolyn 13. Warner on June 23 , 1972; Jean G. Moseley on June 26, 
1972; Shelby 13. Mann on the same date; Johnnie Strickland on June 28, 
1972 (see p. 2 7 note 15 supra) ; and Ruby S. Turner on July 11 , 1972 .

The codes in rhe sane exhibit show that Cook, Shearin, Ellis, 
Martha Turner, Wasmund and Mann were hired despite having had either no 
previous employment experience or no such, experience relevant to
(footnote continues on following page)

-29



experience or with education inferior to hers, or who had applied on 

or after the date she filed her application. Plaintiffs’ exhibit 105 

(R. Volume XVII) is a monthly compilation of applicants and hires.

It shows that, in the month of her October 19G9 applications, 71.9.1 

of white female applicants, but only 15.9% of black female applicants, 

were hired. In the October-Decembcr 19G9 calendar quarter, 61.9 

of white female applicants, and only 21.2% of black female applicants, 

were hired. In the month of June, 1972 -- the latest data avail­

able at trial -- 92.6% of white female applicants, but only 18.3 of 

black female applicants, were hired. On plaintiffs' request for re­

consideration, the district court had available to it plaintiffs' 

exhibit .133 (R. Volume XVIII) which includes such documents for the 

July-Septcmber 1972 calendar quarter. In that period, 62.7. ! of white 

female applicants, but only 39.1% of black female applicants, were 

hired.

She filed an E.E.O.C. charge on September 5, 19G9, alleging 

continuing discrimination in hiring from April 19GS on (JA-Exli. 8) 

and ultimately received a Notice of Right to Sue dated September 15, 

197 0. (JA-Exh. 9).

The defendant introduced no evidence as to why she was not 
hired. The district court correctly noted that plaintiffs had aban­

doned the nonclass contention in the Amended Complaint that she had

textile work (1.e . , waitress, maid, etc.). The exhibit also shows 
that several of these white women were hired despite having less edu­
cation than plaintiff Patricia Purnell: Cook (lOth-grade), Borrell
(lOth-grade) , Cobb (7th-grade) , Odom (7th-grade) , Martha Turner (10th- 
grade) , Harris (9th-grade) , Warner (lOth-grade) , Mann (11 th-grade) 
and Ruby Turner (lOth-grade). The exhibit also shows that five of 
these white women -- Cobb, Ellis, Odom, Mann and Ruby Turner -- applied 
on or after the date on which she filed her application. Notc: data 
on education, experience and date of application arc missing for many 
of the white women listed in the first paragraph above, for the reasons 
stated in note 19 supra.

30



been singled nut for retaliation on the basis of her civil rights 
J B /  h

activities, but held without explanation that she had not been dis­

criminated against. (Finding 1 (k) ; JA 2S7) .

Plaintiff Clara Purnell is a black woman who unsuccessfully 

applied for employment with the defendant on more than one occasion.

(JA 664-65). The defendant had retained an application dated July 26, 

1972 , (JA Exh. 17) , but this was not her first. (JA 665) . She had a 

high school degree, and had had three years’ experience working as a 

motel domestic. (JA Exh. 17). As stated above, the defendant hired 

62.7% of white female applicants, but only 39.1% of black female appli­

cants, in the July-Soptember 1972 calendar quarter. Plaintiffs' 

exhibit 1 shows that a number of white women were hired shortly after 

her July 26, 1972 application, some of them with no relevant work ex­

perience, or with education inferior to hers, or who applied later 
19/

than she did.

w
Plaintiffs did not press the contention because there was no 

evidence available to support it. Plaintiffs requested only a finding 
that she had been discriminated against as a class member.

19/
E ,g ,, Elizabeth D. Arp on July 26, .1972; Connie D. Cullom on 

July 27 , 1972; Judy D.Stanley on July 28, 1972; Mary B. Hux on July 31, 
1972; Evelyn J. Smith on July 31, 1972; Betsy M. Vaughan on July 31, 
1972; Kathy G. Whitton on August 1, 1972; Nancy T. Shadrick on 
August 3, 1972; Lottie S. Edenbeck on August 4, 1972; Mary S. Wood on 
August 4, 1972; Betty J. Jones on August 7, 1972; Aubria F. Warwick on 
August 8, 1972; Debra M. Atkins on August 9, 1972; Sara F. Turner on 
August 14 , 1972; Donna M. Finney on August .15, 1972; Sadie B. Butts on 
August 17, 1972; Barbara S. Ellis on August 17, 1972; Brenda G. Poole 
on August 17, 1972; Shelby W. Massey on August 22, 1972; Carolyn G. 
Keeter on August 23, 1972; Betty M. Keeter on the same date; Barbara A. 
Powell on the same date; and Gloria N. Edwards on August 24, 1972.

The codes in the same exhibit show that Arp, Cullom, Smith, 
Vaughan, Whitton, Edenbeck, Wood, Jones, Butts, Ellis and Keeter were 
hired despite having had either no previous employment experience or no 
such experience relevant to textile work. The exhibit also shows that 
several of these white women were hired despite having less education

(footnote 19 continues on following page)
3.1



She filed an E.E.O.C. charge on September 5, 1969, and ulti­

mately received a Notice of Right to Sue dated September 15, 1970.

(JA-Exh. 19-20).
The defendant introduced no evidence as to why she was not 

hired. The district court held without explanation that she had not

been discriminated against. (Finding 1 (j) ; JA 286).
Plaintiff Lucy Sledge did not rest solely on her recall rights, 

but applied for re-employment several times after her layoff, in 

addition to her individual, nonclass claim as to the defendant's 

failure to recall her, she also has a class member-type claim as to

its failure to hire her pursuant to her applications.
Plaintiff Thomas K. Hawkins is a black male who applied for

employment witli the defendant on July 21, 1969 . (JA 672). He had

worked for a year and a half as a sheet metal apprentice with Bethlehem

Steel (Finding 1(f); JA 280) and had a year and a half of college at
20/

the time of his 1969 application. (JA-Exh. 22). He was not hired.

(JA 672). The defendant hired 73.7% of white male applicants and 

61.5% of black male applicants in 1969, and during the July 1969-

January 1970 period for which his application was current, hired 

of white male applicants and 55.8% of black male applicants. (PIa

82 .B% 

i n t‘i ffs>1

than plaintiff Clara Purnell: Arp (9th-grade) , Cullom (lltli-grade) ,
Smith (10th-grade) , Vuigjion (9th-grade) , Whitton (llth-grade) , Ldenbeek 
(8th-grade) , Wood (9th-gradc) , Warwick (8th-grade) , and Ellas (8th 
grade) . The exhibit also shows that Jones, AtkinsButts and Ellis 
were hired despite having applied later than plaintiff Clara Lurncll 
did. For the reasons explained in note IB, supra, such data is missing 
for many of the women listed in the first paragraph above .

2 0/Although the district court stated that there was no evidence 
whether he went back to college after he filed his application, there 
was in fact evidence that he did not. He testified at trial in 19/2 
that he then had only a year and a half of college, the amount of ecu 
cation stated on his 1969 application.

- 32 -



exhibit 105). Hiring patterns for males were not uniform during this
21/

period, however. In the period for whieh his application was cur­

rent, the defendant hired several white males, some of whom had educa­

tion inferior to his, or who had either no previous employment
22/

experience or none relevant to textile work.

He filed an E.E.O.C. charge on September 5, 19G9, and ultimately 

received a Notice of Right to Sue dated September 15, 1970. (JA-Exh. 

2*1-28) .
The defendant introduced no evidence as to why he was not hired. 

The district court found that lie had not been discriminated against on 

- too grounds. The first ground was that he was not a bona fide appli­

cant, a finding based on his having signed an E.E.O.C. charge five days

after his application, on the fact that Joe P. Moody, who had been
2_3_/

active in trying to end employment discrimination, had witnessed

--------- 2T7
Tor the calendar quarter ending in September 19G9, this ex­

hibit shows that the defendant hired 66 . 2 % of white male applicants 
and 75.7% of black male applicants.

22 /
E.g., David L. Connor on July 2*1, 1969; Willie H. Male on 

July 30, 19G9; Joe Peterson, Jr. on August *!, 1969; John J. Clark on 
August 18, 19G9; Thomas E. Nowell on August 28, 1969; Lee B. Brown on 
September 3, 1969; Everette P. Moore on September 5, 1969; Junior L. 
Morgan on September 8, 1969; Jesse L. Reid on September 11, 1969;
James W . Hayes on September 16, 1969; Henry C. Glasgow on September 30, 
1969; Edward Clements, Jr. on October 6, 1969; Albert L. Cushing on 
October G, 19G9; Aaron L. Oliver on October 7, 1969; William A. Booth 
on November 3, 1969; Milbert Leo Hux on December 5, .1969; Thomas L. 
Rainey on December 15, 1969; Bobby R. Phipps on January .12, 1970; and 
Will T. Lynch on January 13, 1970.

The sane exhibit shows that each of these persons for whom 
educational information is available had a level of education inferior 
to that of plaintiff Hawkins, and that the following persons either 
had no previous employment experience or no such experience relevant to 
textile work: Connor, Male, Reid, Clements, Little, Hux, Rainey,
Phipps and Lynch.

23/
Tliis Court cun take judicial notice that Mr. Moody was a 

plaintiff in Albemarle Paper Co. v. Moody, *122 U.S. *105 (1975) .



his charge, and the fact that he listed one of the attorneys for plain­

tiffs as a personal reference. (Finding 1(f); JA 280-81) . Plaintiff 

Hawkins was never asked, by the defendant or by the district court, 

whether his application was in good faith. The second ground was that 

there was no evidence to show that the defendant's failure to hire him

was racially motivated. (Id.) .
(c) Claims as Class Members for Discrimination 

in Assignments

Plaintiff Luke Phipps is a black male (JA 670) who was hired on 

April 3, 1969 and initially assigned to the job of Warehouseman. He 

took a leave of absence on January 23, 1971 because of sickness and was 

re-employed as a warehouseman on February 8, 1971. lor the entire 

period of his employment until his discharge on June 26, 1971, 

he worked in the Warehouse Department of the Roanoke Rapids Fabri­

cating Plant. (Finding 1 (i) ; JA 289-85; JA-Exh. 21). Finding 55

(JA 308) states that the job of Warehouseman, paying $2.07 an hour at 

the time of trial, is one of the defendant's lowest-paid jobs. The 

district court further found that the defendant "has ordinarily reserved 

the low-paying job of warehouseman for blacks.” (Finding 59; JA ^09).

At the end of 1969, the average white male pay rate was $2.90 an h o u r .  

(Finding 60; JA 309). On January 1, 1970, plaintiff Phipps’ pay rate 

was $1.85 an hour. (JA 210). At the end of 1970, the average white 

male pay rate was $2.53 an hour. (Finding 60; JA 309). On January 1, 

1971, plaintiff Phipps' pay rate was $1.96 an hour. (JA 210). This 

was a larger difference than before. At the time of trial, the average 

pay rate for white males hired in 1969 was $2.70 an hour. (Finding 62; 

JA 310), sixty-throe cents an hour more than what plaintiff Lhipps

w ~No claim of discrimination is raised herein as to bis discharge.

3i



would then have made as a Warehouseman if he had continued in this job.

As an employee, he was also affected by the failure to post notices of

job vacancies and by the loss-of-seniority penalty for transferring

departments. Finally, plaintiffs' exhibit 1 shows that several white

men with no previous employment experience relevant to textile work

were hired within four months of plaintiff Phipps' hire date and by

1972 were earning at a rate far above the $2.07 an hour then appli-
25/

cable to Warehouseman.

The defendant introduced no evidence as to why he was initially 

assigned to the Warehouseman job or as to why he was never promoted.

The district court found, without explanation, that he had not been 

discriminated against. (Finding 1 (i) ; JA 285).

Plaintiff Herman Jones is a black male who was hired on 

October 17 , 1962 as a Janitor. (Finding 1(g); JA 281). Until his 

voluntary termination on August 3, 1970, he worked variously as a 

Janitor, a Warehouseman, a Sweeper and Cleaner and again as a Ware­

houseman. During this entire eight-year period, he remained in the 

Warehouse Department of the Roanoke Fabricating Plant. (JA-Exh. 29).

At the time of trial, the average hourly pay rate for white males 

hired in 1962 was $2.79 mi hour (Finding 62; JA 3.10) rather than the 

$2.07 an hour he would have been making if lie had remained employed as 

a Warehouseman. The following table contrasts average white male hourly 

pay rates as of the end of the years stated (Finding 60; JA 309) with

257
The restrictions placed by the Court on discovery deprived 

plaintiffs of the ability to show the initial assignments of these 
persons. They are: Raymond H. Adams, hired on April 3, 1969 and
earning $2.53 an hour in 1972; Marvin 0. Whitfield, hired April 28,
1969 and earning $3.30 an hour in 1972; Arthur T. Hawks, hired June 13,
1969 and earning $2.62 an hour in 1972; Thurman S. Wynne, hired May 6,
1969 and earning $3.06 an hour in 1972; and Lloyd C. Salmon, Jr.,
hired June 26, 1969 and earning $3.30 an hour in 1972.

- 35



plaintiff Jones’ hourly pay rates a few days later (JA 210):

White Males Plaintiff Jones

End of 1967: $2.12 January 1, 1968: $1.69

End of 1968: 2.26 January 1, 1969: 1.79

End of 1969: 2 .90 January 1, 1970: 1.85

As with plaintiff Phipps, the difference became larger over

time. As with him, plaintiff Jones was affected by the defendant's

failure to post notices of job vacancies and by the .loss-of-seniority

penalty for transferring departments. As with plaintiff Phipps,

plaintiffs' exhibit 1 shows later-hired white males were by 1972 in

jobs paying far more than the $2.07 rate for Warehousemen, despite
26/

their lack of relevant employment experience.

Plaintiff Jones filed an E.E.O.C. charge on November 17, 1969 

and ultimately received a Notice of Right to Sue dated September 15, 

1970. (JA Exh. 30-31) .

The defendant introduced no evidence as to why he was assigned 

to a job as a Warehouseman, or as to why he was never promoted. The 

district court found that lie had not been discriminated against, on 

the grounds that he had not substantiated his charge of having been 

assigned to a low-paying job because of his race and of having been 

denied transfer, and because there was "no evidence from which the 

court can find that Jones was qualified to perform any other job than 

that of janitor ... or warehouseman ... ." (Finding 1(g); JA 281-82).

-------2E7
E .g,, Earl J. Evcrette, hired on October 19, 1962 and earning 

$2.73 an hour in 1972; Howard H. Jones, hired on November 15, 1962 and
earning $2.23 an hour in 1972 ; Billy J. Sorie, hired on January 2, 1963
and earning $3.30 an hour in 1972; Milton E. Harris, hired on January 7, 
1963 and earning $2.29 an hour in 1972; and Carlton S. Edwards, hired
on January 9, 1963 and earning $3.19 an hour. Plaintiffs do not have
information on Evcrette's previous employment experience. With that 
exception, none of these white males had previous employment experience 
relevant to textile work.

36



Plaintiff Marie G. Robinson is a black woman who was hired by 

the defendant on September 2b, 19G5 and assigned to work as a Winder 

Tender. (Finding 1(1); JA 288). She had a 12th-grade education, and 

previous experience of a type unrelated to textile work. (Plaintiffs’ 

exhibit 1; JA-Exh. 33). Through the time of trial, she worked only in 

the Preparation Department of the Patterson plant. On February 2G, 

1969, she was transferred to the job of Spooler Tender, where she 

worked at the tine of trial. (Finding 1.(1); JA 288-89; JA-Exh. 32). 

There is no difference in pay between these jobs. (JA-Exh. 155). She 

believed that she was in one of the higher-paid jobs in her department 

and so testified,but clearly knew little about the defendant’s pay 

rates for different jobs in her own department. (JA 680-81). xn fact, 

there were 23 job slots in her department higher paid than her job, 

and 36% of the whites but only lb% of the blacks were in such higher- 

paid jobs. (Defendant's exhibit b, JA Exh. 155). The defendant's 

exhibit b showed that only the Warehouse Department of the Patterson 

plant had a greater proportion of blacks than the Preparation Depart­

ment, and that the Preparation Department had the fourth lowest-paying 
mix of jobs. Using the same approach the defendant used for its 

exhibits 9 (b) and 9 (c) and which is described in the Affidavit of its 

present Personnel Manager (JA Exh. 202-03) , plaintiffs calculated the 

total hourly outlay for all of the hourly-paid employees in each of 

the departments of the Patterson plant, as shown on the defendant's 

exhibit b, (JA Exh. 155-56) , and divided this outlay by the total 

number of hourly-paid employees to determine which departments in the 

Patterson plant had better concentrations of high-paying jobs than 

others. The results are:

37



Department

Number of 
Hourly
Employees

Percentage Average Pay of
Black_____ Hourly Employees

Weaving 258 12.8% $2.73
Supply 9 0 % 2.59
Slashing 26 26.9% 2.51
Spinning 91 35.2% 2.51
Repair 22 31.8% 2 .98
Carding 39 99.1% 2 .98
Ind'l Eng. 5 0 % 2 .95
Preparation 85 99.9% 2.36
Cloth 21 33.3% 2.25
Warp Drawing 3 0 % 2.16
Warehouse 13 89.6% 2 .16

The first three departments contain half of the 562 hourly em­

ployees in the Patterson plant. When the total outlay for hourly-paid
S

employees is calculated for the three highest-paid departments as a 

unit (51.2/0 of hourly employees) and for the eight lowest-paying de­
partments as a unit (9-8.8% of hourly employees) , and the average pay 

in each group is calculated by simple arithmetic, the results from 

defendants exhibit 9 arc:

Department

Number of
Hourly
Employees

Weaving, Supply and
Slashing 288

Spinning, Re pair, C nrding,
Ind'l Eng., Preparation,
Cloth, Warp Drawing, and 
Warehouse 2 7'I

Percentage ' Average Pay of 
Black_____ ■ Hourly Employees

13.9% $2.71

91.6% 2.38

Plaintiff Robinson's pay rate was then $2.37 an hour, close to the de­

partmental average for the lower-paying departments in her plant, and

38



putting her within the showings of discrimination against black 

female employees generally, against black female employees with her 

12th-grade level of education, and against black female employees 

with previous employment experience unrelated to textile work.

(Findings 78-81 and Conclusion 8 (j) ; JA 320-22 , 335) .

As an employee, she was also necessarily affected by the 

defendant’s failure to post notices of job vacancies and by the loss- 

of-seniority penalty for transferring out of her low-paid department.

Plaintiffs’ exhibit 45 (R. Volume XI) shows at p. 10 that ‘12.2% 

of white female hourly employees in the Patterson plant, but only 

1 8 .4/0 of black female hourly employees in that plant, were at the time 

of trial in jobs paying $2.71 an hour or more.
Plaintiffs' exhibit 93 (R. Volume XVI) shows that, from May 18, 

1969 to June 30, 1972, the defendant initially assigned over three 

hundred white women to jobs paying more than Winder Tender or Spooler

Tender.
Plaintiff Robinson filed an E.E.O.C. charge on November 17, 1969 

and ultimately received a Notice of Right to Sue dated September 15,

1970.
The defendant did not introduce any evidence as to why she was 

assigned to the Preparation Department or to the jobs she held m  that 

department, or as to why she was never promoted to better-paying jobs 

and/or departments. The district court found that she had not been 

discriminated against, on the grounds that there was no evidence 

showing that she was qualified for a job other than that to which she 

was assigned, or that a vacancy existed and some white person got the

job.
Plaintiff Mable Moody Miles is a black women (JA 651) who has 

a lUth-grade education and previous employment experience unrelated to

39



textile work. (JA Exh. 10) . After several years of efforts to obtain 

employment with the defendant, she was hired on June 21, 1967 as a 

Winder Tender in the Preparation Department of the Patterson plant. 

(Finding .1(h) ; JA 283; JA Exh. 11) . She was at various times a 

Spooler Tender and a Warper Tender, and was in the latter job at the 

time of trial. (JA Exh. 119; JA 652). At the time of trial, only the 

Section Men and Overseer jobs in the department were paid at a higher 

rate. (Defendant’s exhibit 4, JA Exh. 155). At trial, the district 

court sustained the defendant's objection to the question whether she 

would prefer to be working in another department with a higher-paid 

job, on the ground that the answer was so certain to be in the affirma­

tive that it didn't need to be asked. (JA 659-60) .

The facts with respect to the pay levels of the jobs available 

in the Preparation Department, as opposed to those available in other 

departments, arc the same for her as for plaintiff Robinson. The 

Warper Tender job had a pay rate of $2.45 an hour at the time of 

trial, (JA Exh. 155), and from May 18, 1969 to June 30, 1972, the 

defendant hired 79 white women and assigned them to jobs paying more 

than the Warper Tender pay rate. (Plaintiffs' exhibit 93) . As with 

plaintiff Robinson, she comes within the class showings of discrimi­

nation against black women. As with her, she was affected by the

defendant's failure to post notices of job vacancies and by its loss-
27/

of-seniority penalty for transferring departments.

She filed an E.E.O.C. charge on November 7, 1969, charging that 

whites, but not blacks, were hired into the weaving department and into

277
The district court's finding referred to her complaint about 

inability to get assigned to the first shift, (JA 284), but plaintiffs 
do not complain of this as discrimination except insofar as her problem 
is based on the seniority she lost because of the discriminatory delay 
in her hire. The lack of any defense makes it difficult to 
divine the nature of this problem.

40



c

H
(i

ii
’l

I!
n

'i
ii

I f  allowed, plaintiffs withdraw items 8 and 9 of their 

ther Motion to Compel Discovery From the Defendant.

Of Counsel:
RICHARD B. SOBOL
1110 Royal Street
New Orleans, Louisiana 70116
JULIUS L. CHAMBERS 
237 Vest Trade Street 
Charlotte, North Carolina 2S202
JACK GREENBERG
JAMES M. NAUR IT, III
WILLIAM ROBINSON
10 Columbus Circle
New York, New' York 10019

Respectfully submitted

RICHARD T. SEYMOUR 
1 7 6 3  R S t r e e t ,  N . W .  
Washington, D.C. 20009
T. T . CLAYTON
FRANK W. BALLANCE .
307 West Franklin Street 
P. 0. Box 236
Varrenton, North Carolina 275S9

Attorneys for Plaintiffs

Dated: August 28, 1972



the cloth room, that whites obtained better jobs without asking for them, 

and that the defendant did not post notices of job vacancies. (JA-Exh. 

12). The charge was amended on August 27, 1970, with substantially the 

same allegations. (JA-Exh. IS). She ultimately received a Notice of 

Right to Sue dated September 15, 1970.

The defendant introduced no evidence as to the reason she had been 

assigned to the low-paying Preparation Department or as to the reason she 

was not given a promotion into a department with better-paying jobs. The 

district court credited all of the evidence proffered on her behalf, but 

held without explanation that she had not been discriminated against.

ARGUMENT

A . A Previously Certified Class Action Does Not 
Become Moot as to the Class Because of the 
Dismissal of the Personal Claims of the Class 
Representatives

The defendant’s appeal in No. 76-1988 and plaintiffs' appeal in 

No. 76-2303 demonstrate that there is a live "case or controversy" between 

the plaintiff class and the defendant. The defendant’s brief raises no 

questions "concerning the continuing desire of any of these class members 

for the ... relief in issue" and raises no questions "concerning the 

tenacity and competence of their counsel in pursuing ... legal relief". 

Under such circumstances, held the Supreme Court in Franks v. Bowman 

Transportation Co., 424 U.S. 747, 752-57 (1976), the class action may not 

be dismissed as moot.
The defendant urges that Rule 23's requirement of "typicality" and 

of "fair and adequate representation" cannot be met if the class represen­

tative no longer has a personal stake in the case. This was resolved ad­

versely to the defendant in Franks, 424 U.S. at 752-59. See also Brown v. 

Gaston County Dyeing Machine Co., 457 F.2d 1377 , 138U (4th Cir., 1972) , 

cert. den., 409 U.S. 982 (1972); Moss v. Lane Co., 471 F.2d 853, 855-56

ill



(4th Cir., 1973); Barnett v. W.T. Grant Co., 518 F.2d 543, 548 note 5 

(4th Cir. , 1975) .

The cases cited by the defendant are inapposite. 0'She a v.

Littleton, 414 U.S. 488 (1974), rested on the failure of the purported

class representatives to claim that they had a personal stake in the case,

not on their failure to prove such a claim on the merits. Two other eases,

Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974) and

Warth v. Seldin, 422 U.S. 490 (1976) turned upon the prudential aspect of
28/

standing doctrine, and are inapplicable here.

Doctor v. Seaboard Coast Line Railroad Company, 540 F.2d 699 

(4th Cir., 1976), was an interlocutory appeal from a denial of class certi­

fication, and thus turned on the sufficiency of the named plaintiffs' 

claims, not on the effect of a failure to prove that the claims were valid. 

This Court made this perfectly clear in its opinion. Holding that the 

typicality requirement must be met both at the time the complaint is filed 

and at the time of class certification, this Court continued in footnote 24

... Of course, if the representative party so quali­
fies, the mere fact that later the representative 
party's claim is found without merit will not destroy 
the class action ... ."

~287
The Court has held that there are too aspects to the doctrine of 

standing. First and primarily, the plaintiff must have a significant nexus 
with the claim to satisfy the Article III requirement of a "case or contro­
versy" . Second, there is a prudential "rule of self-restraint", Barrows v. 
Jackson, 346 U.S. 249, 255 (1953) which the Court has created "for its own 
governance" and which enables it to refuse to hear some cases which meet 
the Article III requirements. Ass'n of Data Processing Service Organiza­
tions v. Camp, 397 U.S. 150, 154 (1970) . The Court said in Camp that 
"Congress can, of course, resolve the question one way or another ... ."
Id. In Hackctt v. McGuire Bros., 445 F.2d 943, 446 (3rd Cir., 1971) , the 
court held that, in enacting Title VII, Congress intended "to define 
standing as broadly as permitted by Article III" , thus rendering the pru­
dential aspect of standing inapplicable to Title VII cases. The Supreme 
Court approved Hackctt in Trafficante v. Metropolitan Life Insurmico Co., 
409 U.S. 205, 209 (1972). See also Cray v. Greyhound Lines-Cast,

F .2d , 13 F.L.F. Cases- DT01 (D.C .Cir. , l97b) .



540 F .2d at 707.
B. Statistical Evidence, Supported by Evidence of 

Facially Neutral Practices Which Have a Dispro­
portionately Adverse Impact on Blacks, Arc 
Sufficient to establish a Prlma Facie Case

It is late in the day for the contention that statistical evidence, 

particularly when supported by evidence of a departmental seniority 

system locking black employees into lower-paying departments, failure to 

post notices of job vacancies, and reliance in making personnel decisions 

on the uncontrolled subjective discretion of a virtually all-white group 

of supervisors, is insufficient to establish a prima facie case. E,g., 

Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1382-83; 

Barnett, supra, 5.18 F.2d at 54-8-50.

The defendant raises several contentions in an effort to escape 

this now-settled rule. First, it presents statistics tending to show that 

it employed a lot more blacks at the time of trial than it did earlier. 

Brief, at 14-. The fact that the pendency of this litigation lias led to 

some changes is not, however, a defense to liability. Second, it urges 

that blacks have received a greater rate of promotions in four plants, and 

a lesser rate in two others. Brief at 14-, 18. In the absence of a showing 

that the cents-per-hour value of the promotions was as great for blacks as 

for whites, and that these promotions wiped out the effect of the discrimi­
natory initial assignments which started blacks out at much lower pay

29/
rates, this is not a defense to liability. Third, the defendant urges

297
Edwin Akers, the official of the defendant through whom defen­

dant's exhibit 5 was placed in evidence, testified that any pay increase, 
whether an increase of a cent an hour or forty cents an hour, was included 
in this exhibit without differentiation, (dA 1318-19) , that black males 
have been assigned to lower-paying departments according to plaintiffs' 
exhibit 91 (JA 1322), and that the cents-per-hour value of promotions is 
not as much when promotions arc given to persons in low-paying jobs than 
when given to persons in higher-paying jobs (JA 1323-24) .
(footnote continued on following page)

- 43 -



that plaintiffs did not contend that J.P. Stevens paid blacks less money 

than whites for working on the same job. Brief at 15. This is not a de­

fense to liability on a claim of discrimination in assignments to its 

various jobs. Fourth, the defendant urges that black females, once em­

ployed, have roughly the same average pay rates as white females. Brief 

at 15. This is correct, but they have still been discriminatorily denied 

equal access to the defendant's top-paying jobs for women. See the State­

ment of Facts, supra, at 22-23 . Fifth, the defendant points out that 

plaintiffs did not seek to prove that its discharges of employees, or that 

its testing system, was discriminatory, Brief at 15; the transcript ref­

erences are to plaintiffs' opening statement, (JA 54-1-42, 547). This is 

irrelevant to the claims presented. Sixth, the defendant quotes Finding 

102 (JA 329 i Brief at 15) without indicating that it has been withdrawn 

and that the new Finding 102 states only:

Plaintiffs do not claim that the promotional 
opportunities of Stevens’ employees are controlled 
by seniority.

(JA 531). Seventh, the defendant points to the lack of evidence of a de­

liberate racial motivation on the part of J.P. Stevens. Brief at 15. As 

the district court held, this is not a defense to the defendant's liability 

for its practices and for the actions of its supervisors. (JA 331, 336-37). 

Eighth, the defendant urges that the district court did not find discrimi­

nation with respect to 29 blacks who hud clerical qualifications and had 

unsuccessfully applied for employment with the defendant. Brief at 16.

Adding together the figures from defendant's exhibit 5 for per­
sons hired in 1968, 32 blacks and 43 whites were hired, and 26 "promotions" 
went to blacks and 28 to whites. Blacks were thus M2.7^ of the.hires but . 
obtained M8.1?o of the "promotions". Yet, as of October 1, 1972 , white 
males hired in 1968 had an average hourly pay rate 35.7d per hour higher 
than the average black male pay rate. (Finding 62; JA 3.10). Clearly, 
either the value of black promotions is much less than the value of white 
promotions, or blacks started out in much lower-paying jobs and the pro­
motions did not eradicate this difference. Cf. JA 1325-32.



The district court's finding 9G (JA 328-29) was in fact based upon its

uncertainty that the applicants in question were in fact applying for

clerical jobs, Id^, and the court clarified this finding to provide that

they could supply this missing fact in future back pay proceedings.

(JA 531) . There was no affirmative finding of nondiscrimination as to 
3Q/these persons. Ninth, the defendant presents its workforce contention.

Brief at 16-17. The facts relevant to this contention are discussed in 

the Statement of Facts at 13-18, and the matter is briefed at 97-54, 

infra. Tenth, the defendant incorrectly urges that plaintiffs' exhibit 93 

proves nondiscrimination in initial assignments. Brief at 17-18. The 

correct facts are stated in the Statement of Facts at 23-24. Eleventh, 

the defendant urges "that of the total pay to all production and mainte­

nance employees in the Roanoke Rapids plants" as of December 1975, "blacks 

receive a share ... almost identical to their numerical proportion ... 

Brief at 18-19. As explained in the Statement of Facts at 19, this chart 

excludes the higher-paid and disproportionately white salaried jobs.

Even at that, it shows that whites are earning an average of 22/ an hour 

more than blacks. At 2 ,080 hours a year, the total annual earnings loss 

for blacks, as compared with earnings of whites, is $571,542.40. This is 

not "almost identical", and is a confirmation of, rather than a defense 

to, liability. Twelfth, the defendant urges upon the Court the vague

30/The case of just one of these persons may be informative 
Ellen I Ellis is a black woman who first applied for a job on August 
1969 She had a high school degree and two years' clerical experience as 
a receptionist and typist. She returned to Stevens' p e r s o n n e l  office at 
least nineteen times after her first application, in further eifoils to 
rUv»--vin emolovnicnt After three years, she was hired, on September 1 , 
1972 for one of Stevens' lowest-paid jobs for women, tying arid wrapping 

o? towels for $2.07 an hour. Mr. Akers testified that this was 
not a very suitable job for a person of her cpalifications. Llaintif 
exhibits 1, 25 and 96 (Record Volumes VIII, X and XVI), JA S6J, 130 1- .

~ 7The persons in those jobs should be included if the chart is to 
be relied upon! It distorts reality tc> exclude categories^  
will. Swint v. lMllman-Standnrd__Co_i, 539 1 .2d 77, 96 
r5tii Cir. , 1976) .



generalities proffered by Mr. Akers, Brief at 19-20, and found insuffi­

cient by the district court as a defense to liability. (Conclusions 9-

10; JA 335-37). The district court was plainly correct as a matter of 
32/ 33/

law, and plainly correct as a matter of fact. Thirteenth, the

defendant urges that some excellently-qualified whites, whose applications 

were examined on the record, had not been hired "even though many of them 

had re-applied time and time again". Brief at 22-23. The cited appli­

cations involved 22 persons; with the exception of Dennis Robert Scherrer, 

the company witness who discussed them testified that none of them re­

turned a single time. (JA 1393-99). Fourteenth, the defendant lias quoted 

a couple of questions and answers to make it appear that Dr. Mann had

327United States v, Jacksonville Terminal Co., 951 F.2d 918, 992 
(5th Cir., 1971) cert, den. , 906 U.S. 906 (1972) held that protestations 
of racial neutrality were insufficient to rebut inferences of discrimina­
tion arising from statistics. The Title VII defendant may rebut such 
inferences only if it "evidentially demonstrates that objective criteria 
pertinent to the particular job are the determinants of who is 'best qual­
ified’ ." Accord, Watkins v. Scott Paper Co., 530 F.2d 1159, 1.177-78 
(5th Cir., 1976) , cert. den. , U.S. , 95 U.S. Law Week 3253 (1976) .
In Brown, supra, 957 F.2d at .1382-83 , this court held that "elusive, purely 
subjective standards must give way to objectivity if statistical indicia 
of discrimination are to be refuted" and that "in the absence of objective
criteria __ the statistics indicate that race.is the only identifiable
factor ... ."

33/
The testimony quoted in the defendant’s brief overlooks some im­

portant matters. First, it is not correct simply to state that "Roanoke 
Rapids __ is predominately [sic] white". The witness testified.as fol­
lows on cross-examination (JA 1265) :

Q: Would it be accurate to say that the City of
Roanoke Rapids is essentially a white island amongst a 
population of a much higher proportion of blacks all 
around it?

A: Yes, it is definitely that.

Second, Mr. Akers' testimony that whites were better skilled 
tlian blacks in the past had just one stated objective fact to back it up: 
that the white schools in Roanoke Rapids used to run a night "textile 
school" at which whites were trained to work on textile jobs.. (JA 1208- 
09). On cross-examination, he testified that the defendant's predecessor 
operator of these plants provided free textile machinery to this school, 
but did nothing comparable for the black schools in Roanoke Rapids or in 
Halifax County, and that this racially segregated training program was 
discontinued in the 1990's. (JA 1219-26).



reached a "totally erroneous" conclusion, Brief at 27-28, but omitted to 

mention that Dr. Mann testified on this subject correctly just before the 

quoted passage, momentarily misspoke in the quoted passage, and corrected 

himself immediately after the quoted passage, before counsel's statement. 

(JA 722-25) .

None of these matters arc a defense to liability on any of the 

claims of discrimination found.

C. The District Court Did Not Err in Finding That the 
Defendant Discriminates in Hiring, or in Granting 
Relief from that Discrimination, Notwithstanding 
the Defendant's Claim that it Already Employs 
Enough Blacks

The figures shown at pp. 10-11 above demonstrate that a white appli 

cant who walks into the defendant’s Central Personnel Office in Roanoke 

Rapids and asks for a job has nearly twice the chance of getting hired 

that a black applicant has. Plaintiffs contend that this situation is un­

lawful and must be remedied, regardless of how many blacks or whites the 

defendant may then have working for it, for such a fact is legtilly irrele­

vant to the defendant's favoring of white applicants over the six and a 

half years included in the record. This Court so stated in Patterson v. 

American Tobacco Co., 535 F.2d 257 , 275 note 18 (4th Cir., 1976) , cert. 

den., U.S. , 45 U.S. Law Week 3330 (1976) .

To hold otherwise would be to impose a ceiling on the law's pro­

tection of blacks or of whites, and to say that once the employer has ap­

proximated the community racial proportions in its employment of a particu 

lar group, it may thereafter discriminate against additional applicants 

from that group with complete immunity from the commands of Title VII.

This is not, and never has been, the law. The law, instead, requires
34V

equality of access. Where access is unequal., the law is not satisfied 

------ 3TT7
Sometimes, where access lias been found to have been unequal, it 

is necessary to impose a temporary, result-oriented quota to remedy the 
inequality and to guarantee that future access will truly be equal.. This 
is discussed below at 54-65. In any event, this is a matter of remedy



by a racial proportion among employees which mirrors the racial proportions 

in the community. Where access is equal, the Jaw does not require that the 

racial proportion of a group of employees mirror the racial proportions in 

the community. See Morrow v. Cr.isler, 991 F.2d .1053, 1056 (5th Cir., 1979) 

(en banc) , ccrt. den. , 919 U.S. 895 (1979) ; NMCP v. Allen, 993 F.2d 619,

618 (5th Cir., 1979); Harper v. Mayor and City Council of Baltimore,

359 F.Supp. 1187 , 1193 note 5 (D.Md., 1973) , aff*d sub nom Harper v.

Kloster, 986 F.2d 1139 (9th Cir., 1973); Mims v, Wilson, 5.19 F.2d 106, 109 

note 5 (5th Cir., 1975).

The question in any case is, what is the best standard to determine 

whether there is true equality of access? In some cases, discrimination 

has been so total that virtually no blacks apply, and failure to use Census- 

type statistics, whether racial proportions of the community or of the 

workforce, would enable the worst violators of Title VII to escape J.iabil- 

ity. There,where nothing else is available, the courts have used Census- 

type statistics as the standard for deciding whether there was true 

equality of access. This was the case in Jones v. Tri-County Electric Co­

operative , 512 F.2d 1, 2 (5th Cir., 1975) , in H.H.O.C. v. Elevator Con­

structors, Local 5, 398 F.Supp. 1237 , 1299 , 1252 (H.l).Pa., .1975) , aff1 d ,

53S F.2d 1012, 10J.9-16 (3rd Cir., 1976) , in Franks v. Bowman Transporta-

tion Co., 995 F.2d 398, 919 (5th Cir., 1979), rev'd on another issue,
3_5_7

929 U.S. 797 (1976), in Morrow and in Allen. Sometimes, courts have

Changes in local, labor conditions -- the closing of a plant with 
low-paying jobs and a predominantly black group of employees, or the closing 
of a plant with a predominantly white group of employees -- may lead to 
temporary fluctuations on applicant flow. Such fluctuations, from unknown 
causes, occurred once for blacks and once for whites in the six and a 
half years for which there is evidence herein. The fact that the black 
percentage of applicants deel.ined because of the white surge does not bring 
this principle into play. If there is a substantial proportion of black 
applicants for the employment in question, that fact in itself indicates 
that the employer's policies arc not discouraging blacks from applying, 
even if the black proportion of applicants is somewhat J.ess than their pro­
portion in the community.



used population or workforce figures to confirm showings of discrimination 

based as well on applicant-flow or test pass/fail rates. Boston Chapter, 

NMCP v. Beecher, 371 F.Supp. 507, 519 (D.Mass., 1979), af f' d , 509 F.2d 

1017 (1st Cir., 1979) , cert. den. , 921 U.S. 910 (1975); Payne v. Travenol 

Laboratories , 916 F.Supp. 298, 257-58 (N.D.Miss., 1976). In some eases, 

population statistics alone have been so convincing of discrimination that 

no additional showing was required. Fowler v. Schwarzwalder, 351 F.Supp. 

721 (D.Minn., 1972); Crockett v. Green, 388 F.Supp. 912, 917 (E.D.Wis., 

1975) . Cf_̂ , Franks, supra, 995 F.2d at 919 ("The most vociferous figure

__ is that Bowman's office staff was __ and had always been one hundred

percent white.").
In this case, there is ample evidence to support the district 

court's findings that the relevant standard is applicant-flow. There is 

data on applicant flow over a period of six and a half years, and it shows 

a consistent pattern throughout this period. Statement of Facts at 10-11. 

There is no evidence of îny problem of duplicate applications being filed 

while a current application is pending, and there is affirmative evidence 

that the number of separate individuals who have applied for employment at 

J.P. Stevens has a proportion of blacks even higher than that shown in the 

applicant-flow data. Statement of Facts at 12. There is evidence that 

the proportion of blacks among the persons seeking employment referrals at 

the Roanoke Rapids branch office of the North Carolina Employment Security 

Commission is comparable to the proportion of blacks shown in the 

applicant-flow data, Statement of Facts at 12, and this supports the accu­

racy of the applicant-flow data. There is evidence that the defendant 

employs 13.8% of the local workforce and 80.9% of the local textile work­

force, Statement of Facts at 13, making it clear that the use of workforce 

statistics would in effect be "bootstrap" evidence, using the defendant's 

performance as the standard by which to judge the legality of its



performance. There is the unrebutted testimony of plaintiffs' expert

witness that applicant-flow data is the appropriate standard in this

case, Statement of Facts at 13-17, and the district court chose to credit

this testimony. There is the fact that the defendant excluded hundreds

of white employees in its calculation of the proportion of blacks among

its employees. Statement of Facts at 13. There is the fact that white

hires don't work as long as black hires, thus inflating the proportion of

blacks among the defendant's employees beyond what it would be from the
36/

defendant's hiring practices in isolation. Statement of Facts at 17. 

Finally, there are several corrections to the raw labor force data which 

are necessary to approximate the actual labor pool available for hire by 

the defendant, and the resultant data confirm the conclusion indicated by 

the applicant-flow data. Statement of Facts at 17. The district court's 

decision to credit this testimony and to rely upon this evidence cannot 

be considered clearly erroneous.

Tliis Court has cautioned against the kind of unthinking use of 

"community racial proportions" advocated by the defendant. Logan v. 

General. Fireproofing Co., 521 F.2d 881, 883 (4th Cir., 1971) . In Log cm, 

tills Court cited a Note, "Employment Discrimination and Title VII of the 

Civil Rights Act of 1964", 84 Harv.L.Rev. 1109, 1154 (1971). This Note, 

quoted in the defendant's brief at 25-26, singles out the essential prob­

lem to which Dr. Haber testified: that Census-type statistics do not

36/l
The Fifth Circuit addressed this type of situation in Swlnt v. 

Pullman-Standard Co., 539 F.2d 77, S3 and 83 note 10 (5th Cir., 1976) . 
Greater job opportunities for whites elsewhere may have been the cause 
leading to a white rate of terminations which was much higher tluui the 
black rate of terminations. This produced a situation in which the black 
percentage of its employees was 49.5/, almost half again the black percen­
tage of the workforce, but did not mean that the defendant had been dis­
criminating against whites in its hiring. Id. It seems apparent from thi 
that an employer with the sane percentage of blacks in its entry-level job 
as the percentage of blacks in the workforce may still be discriminating 
very substantially against blacks in hiring.

50



i

reflect the persons interested in filling the company’s jobs at the com­

pany’s rates of pay. Accord, harper, supra.

The courts have looked with disfavor on the use of Census or labor-

force statistics when they Eire inconsistent with available and valid

applicant-flow data. E,g., Davis v. Washington, 512 F.2d 95G, 900

(D.C.Cir., 1975) , rev’d on other Issues, U.S. , 148 L.Ed.

597 (1976) ("There is no authority -- and we decline to provide any --

for the proposition that proof of a. racially disproportionate impact must

encompass botli pass/fail rates and disparate population figures.");

Hester v. Southern Ry. Co., 997 F.2d 1379, 1379 (5th Cir., 1979) (Recourse

to Census-type figures provides "no more than an indication", and "recourse

would still have to be had to the statistics concerning the applicant pool

and its racial composition before meaningful comparison with the percentage

of blacks actually employed could be made."); Swint, supra note

Hill v. Western Electric Co., F.Supp. , 12 F.E.P. Cases 1175, 1179-

80 (E.D.Va., 1976). The Fifth Circuit decided to use labor-force rather

than applicant-flow data in Robinson v. Union Carbide Co., 538 F.2d 652

(5th Cir., 1976), but because the level of duplicate applications was so
37/

high that the applicant-flow data was completely unreliable. The case

therefore fits in with Morrow, Allen, and Elevator Constructors. Unlike 

the case at bar, there was also no independent evidence in Robinson con­

firming the reasonableness of the applicant-flow figures. Robinson turned 

on its facts, and indicates no intention to overrule Hester, decided a 

year earlier, or to disapprove Swint, decided eleven days earlier. No

377
The court of appeals quoted one witness who testified that the 

problem of duplicate applications was so extensive that trying to deter­
mine the racial proportion of individual applicants frein the number of 
forms filed was like "trying to measure jellyfish with a rubber 
band ... ." 538 F.2d.at 658.

51



court in the country has ever chosen to disregard valid applicant-flow 

data in favor of Census-type statistics which pointed to a different con­

clusion .
The Davis-Hester-Logan-liar per approach makes excellent factual as 

well as legal sense. Apart from all other matters discussed above, first, 

workforce statistics incorporate the actions of all local employers. If 

some of them are discriminating and the standard of performance is work­

force statistics, their discrimination lowers the standard of legality for 

other employers as well as for themselves. If none of the .local employers 

hired a single black, there would be virtually none in the workforce and 

reliance on workforce statistics would immunize them from liability.

Second, reliance on workforce statistics gives too great an opportunity to 

the panties to define the relevant area in an arbitrary manner. Although 

Roanoke Rapids is a "white island" in a predominantly black county, supra 

at M6 note 33, the defendant at trial introduced its exhibit 3,

(JA-Exh. 1LI8), showing that the population of Roanoke Rapids was 10.1% 

black, but that 33.7% of the defendant’s employees were black. (JA 1173). 

Third, the lack of any necessary connection between a defendant's hiring 

practices and the percentage of its employees who are black gives too much 

of an opportunity to employers to manipulate the percentage of their em­
ployees by not counting persons in predominantly-white jobs. Fourth, totally 

unconnected events would have too much influence on a workforce standard.

If a company was discriminating in hiring on March 1, and another company 

opened up a plant on March 8, offering higher pay rates and hiring away 

the defendant's white employees, reliance on this percentage-of-workforce- 

versus-percentage-of-employees standard would mean that a company which 

discriminated in hiring on March 1 would not be discriminating on March 8, 

with no change in the underlying practices.

The defendant urges, in the utter absence of any proof, that appli­

cant-flow data arc subject to "manipulation". Brief at HO note 1. See the



Statement of Facts at 14. In any event, the objection is not strong. 

Virtually anyone can do the defendant’s jobs, and it cannot suffer if the
G ...persons it employs can perform its jobs. The defendant seems to fear the 

specter of some civil rights organization recruiting blacks to apply for 

jobs when they have no interest in working for the defendant, in order to 

increase the defendant's obligation to hire blacks. The defendant urged 

below that it could not distinguish between bona fide and mala fide appli­

cants so as to delete them from the applicant-flow count. The district 

court responded to this fear, however unrealistic it may be, by changing

the standard of the defendant’s performance from actual hires to offers
38/

to hire, and this resolves the problem.

Finally, the defendant tries to set in motion a rather limping 

parade of horribles -- What if ten times as many blacks apply? What if 

only one white applies and is hired? The short answer is that such tilings 

have never happened in the six years, seven and a half months for which 

the figures are in the record. If unusual situations occur, the defendant’s 

remedy is to move for a clarification of the Decz'ec, or an amendment to it,

38/
For example, suppose that there were 500 white and 500 black 

applicants, all bona fide, and 200 jobs to fill. Under plaintiffs' origi­
nal proposal, (JA 407), both blacks and whites would get a hundred jobs.
If a thousand black mala fide applicants applied, blacks would have ob­
tained three-quarters of the vacancies -- 150 jobs -- and whites would 
receive only fifty jobs.

Under the court's modification, (JA 493) , blacks would not re­
ceive a single extra job because of the mala fide applicants. The company 
would make its offers according to applicant-flow -- 50 to whites and 150 
to blacks. Fifty whites and 50 blacks would accept, with two-thirds of the 
blacks being mala fide and refusing to accept. The company would then 
make additional offers to fill the remaining hundred jobs, and at eacli 
stage only the bona fide applicants would accept. The result would be 100 
new employees of eacli race, exactly as if there had been no mala 1 idc ap­
plicants. Mala fide applicants making no difference, it would require an 
even wilder flight of fancy to believe that some civil rights organization 
would take such an approach.

53



under paragraphs 36 and 37. (JA 512-13). Otherwise, since the defendant 

already keeps a daily tally of applicants and hires by race and sex, it 

can comply in the same manner in which it makes sure that it doesn't run 

out of materials and that its checks don't bounce.

D . Where the Record Showed that Hundreds of White Super­
visors Have the Power to Make Completely Subjective 
Personnel Decisions, that for Several Years They Had 
Made their Decisions on the Basis of Race, that this 
Continued for the Years Since the Trial, and Where 
the Defendant Was Unable to Propose any Alternative 
Form of Relief that Would be Effective, the District 
Court Did Not Abuse its Discretion by Ordering 
Temporary Quotas

1. The District Court Had the Duty to Exercise Its 
Discretion So As to Grant Complete Relief

On the record of racial discrimination herein, "the district [court] 

has not merely the power but the duty to render a decree which will so far 

as possible eliminate the discriminatory effects of the past as well as 

bar like discrimination in the future." Louisiana v. United States,

380 U.S. 145, 154 (1965). "The terms 'complete justice' and 'necessary 

relief' have acquired a clear meaning in such circumstances." The purpose 

of the district court's discretion under Title VII is "to make possible the 
fashioning [of] the most complete relief possible." Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 418 (1975). " ... [A] court cannot abdicate to defen­

dants' good faith its duty of insuring removal of all vestiges of discrimi­

nation." Barnett, supra, 518 F.2d at 550. "The federal chancellor lias the 

nondiscretionary duty to end all discriminatory practices, past, present 

and future." NAACP v. Allen, supra, 493 F.2d at 622. A remedy necessary to 

complete relief "must be granted despite difficulty in its formulation." 

Swint, supra, 539 F.2d at 101. While a district court has discretion, its 

remedy must "promise realistically to work and to work now." Allen, supra, 

993 F.2d at 617, citing Green v. County School Board, 391 U.S. 430 (1968). 

Whore a district court is faced with two alternative Title VII remedies, one 

which would be completely effective and the other less effective, only a



showing of business necessity can justify entry of the less effective 

relief. Rock v, Norfolk & Western Ry, Co., 473 F.2d 1344, 1348-49 

(4th Cir., 1973). The Fifth Circuit has adopted the same position this 

Court took in Rock:

The question is not whether the opportunities af­
forded by Seott were "ample" in the sense that 
they substantially reduced the effects of prior 
discrimination. The question is whether Scott 
has done enough. And "enough" means, for the pur­
poses of Title VII, everything that is possible.
This realm of possibility should be limited only 
by the most compelling business reasons. If the 
business can function safely and efficiently after 
the imposition of remedial relief, it must be 
subject to such remedial relief.

Watkins v. Scott Paper Co., supra, 530 F.2d at 1.168.

2. The District Judge Exercised Great Care in 
Framing Relief

Faced with a record establishing the unusual breadth and intensity 

of discrimination herein, and faced with the clear duty to grant "complete 

relief", the district judge properly proceeded with great caution and fair 

ness. First, he directed the parties to meet and confer on the injunctive 

relief to be entered. (JA 338). Even if no agreement were forthcoming, 

this required the parties to confront each others' problems and attempt to 

deal with them. As explained at the February 24, 1976 hearing, counsel 

for plaintiffs met four tunes with counsel for the defendant, twice in 

Charlotte and twice in Washington, and plaintiffs' original draft Decree 

was substantially altered to resolve some problems raised by the defendant 

Second, he allowed counsel for plaintiffs to hold a meeting with class 

members, to explain the decision on liability to them and to obtain infor­

mation and views from them relevant to the drafting of a proposed Decree. 

(R. 630). This was of great assistance to counsel for plaintiffs. Third, 

he allowed the Textile Workers Union of America to intervene as a party 

plaintiff, so that the defendant's employees, both black and white, would 

have an independent voice in the framing of the Decree. The union had in



fact made several suggestions to plaintiffs prior to the February hearing, 

and plaintiffs' proposed Decree reflected these suggestions when ulti­

mately presented to the district judge. Fourth, he allowed the supple­

mentation of the record to determine whether the defendant was still 

discriminating. Fifth, the terms of the Decree were fully argued on 

February 2M, 1976 and he then gave the defendant the opportunity to make 

a written, paragraph-by-paragraph critique of plaintiffs' proposed Decree, 

and asked that practical questions of burden be fully set forth. Sixth , 

he allowed the defendant to file several additional memoranda objecting 

to plaintiffs' proposed injunctive relief. Seventh, he held an eviden­

tiary hearing at which the parties could introduce evidence of all facts 

bearing on relief. Dr. Haber testified at this hearing. The Personnel 

Manager for all but two of the facilities involved in this litigation 

also testified, but only to introduce the defendant's exhibit 8. (JA 1661 

JA-Exh. 187).

At every stage of these proceedings, counsel for plaintiffs 

responded in good faith to as many of the defendant's practical objections 

as they could, consistently with their knowledge of the record and their 

duty to the class. They proposed several revisions in the Decree they had 

already proposed to the district court, to take account of matters raised 

by the defendant. The defendant was similarly given every chance to pro­

pose alternative forms of relief which would be effective, but could not 

come up with any. In his entry of relief, Judge Dupree relied on his own 

great familiarity with the record, the experience he has gained over the 

past six years with the defendant's now-routine predictions of disaster 

if it is not heeded at every procedural and substantive turn, and his 

experience as a trial judge with the practical workings of relief. He

50



did not grant plaintiffs all that they had asked, but struck a middle 

ground consistent both with his desire to be fair to the defendant and 

with his plain duty to grant complete relief in the face of the defendant's 

demonstrated inability or unwillingness, either before or after the trial, 

to control its own supervisors. Cf. this Court's discussion of persistence 

in discrimination, as warranting injunctive relief which might nof other­

wise be appropriate, in United States v. Chesapeake & Ohio Ry. Co.,

971 F .2d 582 , 591 (9th Cir., .1972), cert, den. , 911 U.S. 939 (1973). The

Decree from whicli the defendant appeals is his judgment of what is required
90_/

to effectuate Title VII at these plants.

The product of so careful and painstaking a process should not 

lightly be overturned.

3. In an Appropriate Case, a Temporary Remedial 
Quota May Lawfully be Decreed

This Court held in Patterson v. American Tobacco Co., supra,

535 F.2d at 273-79, that the imposition of temporary remedial quotas in an 

appropriate case does not offend §703 (j) of the Civil Rights Act of 1969 ,

92 U.S.C. §2000e-2 (j) , and no purpose would be served by re-arguing the 

authorities there discussed. There are, however, two additional matters

39/

397
E .g,, he denied the general promotional quotas plaintiffs had re­

quested (JA 381-83, *J37) and substituted a bidding system (JA 505-06, *|29) ; 
he denied the interplant transfer of seniority requested by plaintiffs 
(JA 37.1, ,J2|I) ; and he even limited the posting of vacancies in response to 
the defendant's contention that it would be too burdensome to require 
posting vacancies on all bulletin boards. (JA 375, «J26; JA 509, *J22) .

9 0 /

The language used by the district court in denying the company's 
motion for a stay of the Decree (JA 527) makes it plain that he would never 
have entered the Decree if lie believed that any lesser relief would have 
been adequate to effectuate Title Vll under the facts of this case. Nothing 
in the record would support the proposition that he committed clear error in 
his view of the facts, or that his framing of relief was an abuse of dis­
cretion in light of his view of the facts.

57



worth mentioning. First, the concurring and dissenting opinion in 

Patterson raised the question of the constitutionality of temporary reme­

dial quotas. Judge Clark raised a similar question in his concurring 

opinion in Morrow v. Crlsler, supra, 4-91 F.2d at 1058, and resolved it in 
NAACP v. Allen, supra.

Second, the concurring and dissenting opinion in Pattersoa raised 

the question of Congressional intent with respect to temporary remedial 

quotas. The answer is now clear. Congress ratified the use of temporary 

remedial quotas in appropriate cases when it enacted the Equal Employment 

Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103. During debate on 

the measure, Senator Ervin-introduced an amendment, No. 829, which if 

passed would have barred such relief. Senator Javits urged its defeat 

because it would legislatively overrule decisions such as United States v. 

Ironworkers Local 86, 443 F.2d 544, 552-54 (9th Cir., 1971) , cert. den., 

404 U.S. 984 (1971) and Contractors' Ass'n of Eastern Pennsylvania v. 

Secretary of Labor. 442 F.2d 159 (3rd Cir., 1971), cert, den., 404 U.S.

854 (1971). He inserted both decisions into the Congressional Record.

118 Cong. Rec. S 693 to S 704 (daily ed., January 28 , 1972) . He stated 

that the amendment "would torpedo orders of courts seeking to correct a 

history of unjust discrimination ... ." 118 Cong. Rec. S 704-05. Senator

Williams stated that "this amendment would strip Title VII ... of all its 

basic fiber. ... This amendment raises the real threat of destroying any 

potential for effective law enforcement." 118 Cong. Rec. S 705. The 

amendment was defeated. 118 Cong. Rec. S 706. Reviewing the legislative 

history, the Sixth Circuit held that it was not the intent of Congress to 

forbid such quota remedies. United States v. Local Union 212, I.O.E.W., 

472 F.2d 634, 636 (6th Cir., 1973). Accord, Elevator Constructors, supra, 

53S F .2d at 1019-20.

58



ll-. Under the Facts of this Case, and the Defendant's 
Demonstrated Unwillingness or Inability to Control 
its Supervisors, and in Light of the Defendant's 
Inability to Propose any Effective Alternative, 
the District Court Did Not Abuse its Discretion by 
Ordering Temporary Quota Relief

This case involves the "exaggerated facts" evisioned in the con­

curring and dissenting opinions in Patterson, 535 F.2d at 277. Over two 

hundred white officials daily make absolutely standardless personnel 

decisions with respect to the selection of persons to hire, the selection 

of departments and jobs to which the new hires should be initially assigned, 

the selection of employees to promote, and the selection of the jobs to

which they should be promoted. Even among whites, by themselves, it is
43/

impossible to find any consistent approach for making these decisions.

The defendant's failure to impose any objective standards in practice

allows supervisors to base their decisions on whim, on caprice, and on
42/

racial stereotypes. This is why court after court has condemned the

vesting of such unchecked power in virtually all-white groups as, in the 

words of the district court, "conducive to discrimination". (Finding 24,

41/
Dr. Ireland performed multiple linear regressions to find out 

whether there was any relationshop between objective qualifications such 
as level of education, type of previous employment experience, and 
seniority, and the job assignments of white males, lie then went through 
the same procedure for white females. These operations were performed on 
the data for the individuals reflected in plaintiffs’ exhibit 1. He found 
that "there was really no practically meaningful relationship" between these 
objective criteria and the pay levels of whites of either sex. (JA 1570-77, 
1596-1G04; plaintiffs’ exhibit 135). All objective variables known to 
plaintiffs were included in this analysis.

42/
One cannot help wondering how many of the defendant's super­

visors, for example, believe that the company's black employees arc lesser- 
educated than its white employees, even though the truth is that they're 
better educated.

59



I

quoted at 10, supra) .

The record herein establishes that, at each point in the personnel 

process at which subjective judgment plays a part, whites are consistently 

favored and blacks are consistently disfavored. This must be remedied, 

remedied completely, and remedied now. In view of the number of per­

sonnel decisions being made, the large number of job categories with re-
W

spect to which they are made, the defendant's insistence that it must 
continue to roly on subjective factors, its demonstrated unwillingness or 

inability to control their exercise of discretion in the one matter rele­

vant to this case -- the exercise of discretion along racial lines -- and 

the inability of the defendant to propose any effective alternative, the 

imposition of temporary remedial quotas is the only effective form of 

relief possible. It does not destroy supervisors' discretion, as the 

defendant suggests, but channels their exercise of discretion in the one 

way relevant to this case, .leaving all others untouched.

_43/

------ u y ..............
Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723-24 

(4th Cir., 19G6); Cypress v. Newport News General and.Nonsectarian Hospital 
Ass'n., 375 F.2d 648, 655 (4th Cir., 1967); United States v. Bethlehem 
Steel Corp., 446 F.2d 652 , 655 (2nd Cir., .1971); Rowe v. General Motors 
Corp,, 457 F.2d 348, 359 (5th Cir., 1972) ("We and others have expressed a 
skepticism that Black persons dependent directly on decisive recommenda­
tions from Whites can expect non-discriminatory treatment."); Brown v.
Gaston County Dyeing Machine Co., supra, 457 F.2d at 1382-83; United 
States v. N.L. Industries, 479 F.2d 354, 369 (Sth Cir., 1973); Sims v.
Sheet Metal Workers' Int'l Ass'n, Local No. 65, 489 F.2d 1023, 1026 
(6th Cir., 1973); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211,
232 (5th Cir., 1974); Afro-American Patrolmen's League v. Puck, 503 F.2d 
294, 300 (6th Cir., 1974); Barnett, supra, 518 F.2d at 550; Wade v. 
Mississippi Cooperative Extension Service, 528 F.2d 50S, 517-18 (5th Cir., 
1976); Senior v. General Motors Corp., 532 F.2d 511, 528-29 (6th Cir., 1976); 
United States v. Hazelwood School District, 534 F.2d 805, 812-13 (Sth Cir., 
1976).

44/
Plaintiffs' exhibit 2 is a job-by-job listing of employees, 

which shows that, at the time of trial, there were 595 hourly positions 
at the defendant's plants and Central Office.

60



The imposition of such relief in this case is justified under the
most exacting standards. In NAACP v. Allen, supra, 993 F.2d at 621,

Judge Clark stated that such quotas "should be reserved for those situations 

in which less restrictive means have failed or in which the chancellor 

could reasonably foresee that they would fail". (Emphasis supplied). Here, 

no party has been able to propose any effective alternative, and the post­

trial experience shows that only the compulsion of the district court will 

bring about change. In Patterson, supra, 535 F.2d at 275, this Court found 

no compelling need for a quota where the employer had, albeit tardily, 

accomplished on its own the same goal sought by the district court's quota 

relief. Here, the defendant's hiring practices have continued exactly as 

they were, and the pay disparity between black and white hourly employees 

has actually increased since the trial. In Allen, Judge Clark found It 

important that there was "clear evidence of a long history of intentional 

racial- discrimination" (as herein, with the findings of subjective dis­

crimination by white officials and supervisors), the absence of efforts 

"to recruit minority personnel" (as herein; while there was no need to re­
cruit for black applicants generally, the defendant has done nothing to 

recruit blacks into its traditionally-white jobs, such as supervisory, 

clerical, fixer, male weaver jobs, and other high-paid jobs), and the uti­

lization of discriminatory selection procedures (as herein). 993 F.2d 

at 620. While not holding that such evidence was essential to support 

quota relief in any case, its presence in Allen, as here, provides addi­

tional- strong support. 993 F.2d at 621.

In Kirkland v. New York State Dept, of Correctional Services,

520 F.2d *120, 927-30 (2nd Cir., 1975), the court of appeals announced 

guidelines for the imposition of quota relief. First, there must be evi­

dence of "a clear-cut pattern of long-continued and egregious racial dis­

crimination.” 520 F.2d at 927. That requirement is satisfied herein.

61



Second, the adverse effect of the quota must be spread over as broad a 

group of whites as possible. If the effect of the quota is concentrated 

on a small number of readily identifiable whites, such as the persons 

ranked on a valid Civil Service promotional examination, the quota is not 

permissible. Here, there is nothing like a promotional ranking which 

would have such a concentrated effect on a small number of identifiable 

whites. 520 F.2d at 127, 429. Here, the very anarchy of the defendant's 

selection practices guarantees the inability to predict the whites who will 

be adversely affected. Third., the quota cannot require the placement of an 

objectively unqualified person. 520 F.2d at 430. Here, the Decree express­

ly provides that the defendant is not required to place such persons.

(JA 490, 497, 498, 506, 511). Under those standards, one quota was affirmed 

and the other reversed. Plaintiffs do not urge that this Court adopt 

the Kirkland test, since there are a number of problems with respect to 

its second standard and the enshrinement of ranking systems not really ad­

dressed by that court, but note that this case meets the Kirkland standards, 

whether Kirkland is or is not adopted as the law of this Circuit in a case 
ill which the facts squarely pose the issue. Cf. Erie Human Relations 

Comm'n v. Tullio, 493 F.2d 371, 373 (3rd Cir., 1974) , which rejected the 

contentions that quota relief could only be entered upon (.1) a showing of 

intentional discrimination and (2) a showing that the selection procedures 

not challenged in the litigation lire job-related.

The imposition of quota relief was clearly an appropriate exercise
457

of discretion under the facts of this case. Neither this Court nor the

W
See also Judge Clark's statement in NAACP v. Allen that the 

district court's failure to impose quota relief in Morrow v. Crisler, 
supra, "itself contravened the Fourteenth Amendment since it operated to 
perpetuate constitutionally deficient employment practices aid preserve the 
discriminatory status quo." 993 F.2d at 618.

62



district court have been presented with any alternative "complete relief" 

for the longstanding pattern of racially-based supervisory judgments shown 

on the record.

5. The Defendants Objections to the Form of the 
Quota Relief Entered Herein Are Without Merit-

This Court held three years ago in Rock, supra, that a failure to

enter the most effective relief must be justified by business necessity.

473 F.2d at 1348-49. Accord, Gamble v. Birmingham Southern R.R. Co.,

514 F.2d 678, 684 (5th Cir., 1975). Notwithstanding these holdings, mid

notwithstanding the defendant's opportunity to introduce evidence below,

it has introduced no evidence of "business necessity" with respect to the

form of the quota relief entered below or, for that matter, as to any

other part of the Decree. Its objections stand before this Court clothed

in rhetoric alone. If this be sufficient, few defendants indeed would ever

be enjoined.

The defendant first objects to the form of paragraph 5 of the 

Decree, (JA 493-94), Brief at 39-40, and 45. Its practical- objections are 

discussed at pp. 52-54, supra. Two additional matters are significant. 

First, despite the defendant's implied representations, it hires on a 

fairly constant basis. A relatively small number of jobs arc usually 

available, rather than hiring occurring irregularly, in large unpre­

dictable clumps. The defendant's Personnel Manager testified at trial:

Q: You often have a number of jobs available, is that
correct?

A: We have most of the time jobs available, I would
say. I wouldn't say a lot of jobs available.

(JA 885-86). Second, this is much milder than the traditional form of

quota, since it does not provide for any accelerated hiring of blacks; it

is not a "catch-up" quota. It prevents ongoing discrimination in hiring

and docs nothing further. It lias no adverse effect upon white applicants,

other than to deprive them of the benefits of ongoing racial favoritism

63



in hiring. Under the Decree, each white applicant will have precisely the 

same opportunity to be hired as each black applicant, no less and -- 

because of the Decree -- no more.

The defendant next objects to the form of paragraph 1G. (JA 998) , 

Brief at 95-96. This requires the defendant to develop an affirmative 

action program which, if not objectionable, will spell out the actual re­

quirements of this paragraph. It is important to note that tills paragraph 

does not in terms require the placement of any set proportion of blacks, 

but only that "efforts" be made to place blacks in the specified jobs.

Judge Dupree did not draw the "one-third" figure "out of thin air", but 

drew it from paragraph .18 of plaintiffs' original proposed Decree, (JA 3G9) , 

which based it on plaintiffs' exhibit 7, which showed that 35.1% of the 

defendant's employees in Roanoke Rapids were black at the time of trial. 

While granting a temporary absolute preference for blacks in filling these 

jobs would be permissible under United States v. T.I ,M .E .-D ,C . , 5.17 F.2d 
299, 319-20 (5th Cir., 1975), cert, granted, U.S. , 99 U.S. Law

Week 36G9 (197G), plaintiffs would have no objection to the modification 

of this paragraph to require, instead of efforts to place only blacks, the 

actual placement of one black for every white so placed, on an alternating

basis until the goal is met. See Carter v. Gallagher, 952 F.2d 327,
96/

330-31 (8th Cir., 197.1) (on banc) , cert. den,, 90G U.S. 950 (1972) .

96/
The defendant cites Quarles v. Philip Morris, 279 F.Supp. 505, 

508 (E.D.Va., 1968) for the proposition that relief may not be granted 
because no specific instance has been shown of the denial of a super­
visory position to a qualified black. The law on this point has evolved 
substantially since Quarles, and such showings are not required. C,g., 
Chesapeake & Ohio Ry., supra, 971 F.2d at 586 and 586 note 7; Barnett, 
supra, 518 F.2d at 599; T . I .M ,C . -D ,C . , supra, 517 I’.2d at 315; United 
States v. Hayes lnt’1 Corp., 956 F.2d 112, 120 (5th Cir., 1972).

Nor may the benefits of affirmative relief be limited to persons 
specifically identified as victims of past discrimination. Carter v. 
Gallagher, supra, 952 F.2d at 330; Davis v. County of Los Angeles,

F .2d , 13 F.L.P. Cases 1217 , 1222 (9th Cir., 1976).

69



The defendant next objects to the form of paragraphs 28 to 30 of 

the Decree, (JA 508-10) , Brief at U8-49, but does so only in the most 

general of terms. The district court's exercise of discretion is amply 

supported by the considerations that two hundred white supervisors are 

making personnel decisions with respect to almost six hundred job cate­

gories , that the form of discrimination being remedied is not likely to 

alert its victims so that they may complain, that the decisions of this 

and other appellate Courts bar reliance on the defendant's "good faith", 

and that the provisions of the Decree must be capable of being effective. 

The provisions in question meet all of these considerations, and no better 

provisions have been suggested.

Finally, it should be noted that, in cases where the imposition of 

remedial quotas is appropriate, the district court has traditionally been 

accorded great latitude with respect to the actual form of the quota.

In United States v. Montgomery County Bd. of F,d., 395 U.S. 225 (1969) , the

Supreme Court reversed the Fifth Circuit's weakening of a quota ordered 

by a district court, in large part because of the district court's greater 

familiarity with the situation being remedied.

Nor are remedial goals limited to any specific or pre­
scribed form. The precise method of remedying past miscon­
duct is left largely to the broad discretion of the district 
judge.

Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A., 501 F.2d 622, 631 

(2nd Cir., 1971); Davis v. County of Los Angeles, supra, 13 F.C.F.

Cases at 1222-23.
E . The District Court Did Not Abuse Its Discretion With 

Respect to Any Other Fart of the Decree

1. The District Court Was Not Required to Ignore the 
Differences Between J.L* 1. Stevens' Racial. Discrimi­
nation____Against Black Males and its Racial Dis­
crimination Against Black Females

In Chesapeake and Ohio Ry., supra, this Court required the entry of 

different types of relief with respect to subclasses discriminated against 

in different ways, and reversed, as "paradoxically unnecessarily broad
o r



and unduly restrictive", an injunction which did not pay close enough at­

tention to the distinctions between these subclasses. 471 I'.2d at 588-90.

Cf, the Fifth Circuit’s insistence in Swint that an injunctive remedy be 

tailored so as to concentrate relief among those blacks most likely to 

have been discriminated against. 539 F.2d at 99-100. The distinction of 

which the defendant complains is simply a response to this common-sense 

imperative.

2. The District Court Did Not Abuse its Discretion by 
Adopting Some of the Defendant’s Suggestions

(a) Anti-White Bias

The defendant describes the Decree as a "total regime of pro-black 

and anti-white discrimination" the like of whicli has never been seen in the 

land. Brief at 50. Among the "principal features" of the "pro-black and 

anti-white" Decree are the provisions for red-circling (Brief at 47-98) and 

bumping less senior employees in the event of layoff. (Brief at 49) . At 

oral argument, the defendant may also include the abolition of departmental, 

seniority for blacks but not for whites (paragraphs 19-21 of the Decree,

JA 503-04) as an example of such "pro-black and anti-white" bias.

The defendant is attempting to mislead tills Court. Plaintiffs had 

originally proposed seniority changes which would have benefitted whites as 

well as blacks, (JA 374-75), and had originally proposed bumping rights in 

the event of layoff which would have affected whites as well as blacks.

(JA 385). Plaintiffs had no objection whatsoever to the extension of red- 

circling benefits to whites. These extensions of relief would not have 

harmed blacks in the slightest and might have led to a readier acceptance 

of the Decree by white employees. For this reason, the union also supported 

these extensions. The law is clear, however, that such remedial provisions 

cannot be entered with respect to any group, not discriminated against, 

unless the defendant consents to such relief. E .g . , Chesapeake & Ohio Ry.,

GG



supra, 471 F.2d at 588-89; Patterson, supra, 535 F.2d at 2G5. Some
employers, interested in a smoothly harmonious integration of decretal 

terms into the life of their pi tint s, may readily consent. This defendant 

did not. Instead, it exercised its legal prerogative to veto the extension 

of such rights to whites, and announced that it would engage in collective 

bargaining with the union about extending these provisions to whites. See 

the appended exchange of correspondence, pp. la to 6a, copies of whicli 

were sent to the court below. The original provisions were changed ac­

cordingly. (JA 374, 384). The defendant's decision was perfectly proper, 

and one which it alone could make. What is not proper, however, and indeed 

is highly improper, is its representation to this Court that the result 

of its decision is "pro-black and anti-white" provisions. This manner of 

dealing is extremely unfair to the district court.

(b) Training Requirements

The defendant objects to the requirement of paragraph 16 that it 

train blacks for its higher-paying jobs. Brief at 45-46. The training re­

quirement was proposed by the defendant in its proposed form of Decree.

(JA 393-94). At the February 24, 1976 hearing, the defendant admitted in 

open Court that blacks had not been given the same training opportunities 

in the defendant's plants as whites, and that this was the reason for the

defendant’s training proposal. Training requirements are also a common
47/

element of Title VII relief, and there is no factual or legal basis for 

477
Hairston v. McLean Trucking Co., 520 F.2.d 226, 235 (4th Cir., 

1975); Russell v. American Tobacco Co., 528 F.2d 357, 364 (4th Cir., 1975); 
Franks v. Bowman Transportation Co,, supra, 995 F.2d at 920-21; T.I,M.L , - 
D.C., supra, 517 F.2d at 321; United States v. St. Louis-San Francisco Ry. 
Co., 464 F .2d 301, 310-11 (8th Cir., 1972) , cert, den., 409 U.S. 1107, 1116 
(1973); United States v. Sheet Metal Workers, Local 10, 6 F.E.P. Cases 1036, 
1043 (D.N.J., 1973) (special apprenticeship program for over-age blacks 
and Puerto Ricans); Patterson, supra, 535 F.2d at 265.

67



arguing that the district court's adoption of the defendant’s suggestion 

was an abuse of discretion.

3. The District Court Did Not Abuse Its Discretion 
by Entering Any Other Provision of the Decree

(a) Red-Circling

The red-circling remedy is important because employees transferring 

to higher-paid jobs must sometimes take pay cuts while they're learning 

how to perform the new job. In the company's incentive-rate jobs, for 

example, an employee may be expected to earn at a certain level once the 

employee has mastered the basic techniques of the job. Until then, basing 

the employee's earnings on the incentive rates would result in virtually 

no pay. The defendant has established "floor" pay rates to take care of 

this situation. Regardless of his or her level of production, an employee 

or learner In an incentive rate job will not be paid at a rate lower than 

the "floor". Plaintiffs’ exhibits 25 and 26. (Record Volume X). this 

"floor" rate is fairly low, Id., and transferring employees will frequently 

be in jobs already paying more than the "floor" rate. This will retard the 

progress of affected class members to their "rightful place", and red- 

circling pay rates is a standard remedy in such situations. If a single

class member will be affected by the absence of red-circling, the remedy 

must bo granted. Swint, supra, 539 F.2d at .100-01. It should be noted that 

the provision is temporary, and is limited in application to blacks hired 

before the Decree goes into effect.

The defendant's speculation that red-circling will make blacks 

shiftless is met by the fact that nothing in the Decree prohibits it from

987
Robinson v. Lorillard Corp., 999 F.2d 791, 796, 799 (9th Cir., 

1971); Pettway, supra, 999 F.2d at 298; Bethlehem Steel, supra, 996 F.2d 
at 660, 665; N.h Industries, supra, 979 F.2d at 375-76; Watkins, supra,
530 F.2d at 1173-/9; Rogers v. Intrl Paper Co., 510 F.2d 1390, 1355-56 
(8th Cir., 1975), vacated with respect to the denial of back pay,
923 U .S. 809 (1975) .

68



taking disciplinary action against any employee who shirks his or her 

responsibilities.

(b) Bumping Less Senior Employees 
in the Event of Layoff

The defendant complains of paragraph 32 of the Decree, (JA 510-11),

but misdescribes the provision. It docs not allow any black employee to

exercise any choice of the job to which he or she is re-assigned. That is

the defendant’s choice to make, and plaintiffs so stated to the district
49/

court before it entered the Decree.

The defendant has already accorded bumping rights to its employees,

(Brief at 49) , and the provision in question is simply an expansion of the
50/

jobs into which an affected class member can "bump”. Finding 62

(JA 310-11) indicates that there are many more blacks than whites who have 

high seniority but are in low-paying jobs. A white employee going 

"back along the route by which he came to his present job" is likely to 

wind up in a lesser-paying, predominantly-white job with many persons of 

low seniority. The existing bump-back right is effective for whites.

With a black employee,bumping "back along the route" will land him in an 

even le'sser-paying job held by many persons with high levels of seniority. 

The existing bump-back right is thus less likely to be effective for blacks 

and, when effective, lands them in jobs disdavantageous to those their 

similarly laid-off white colleagues will obtain under the same system. 'Die

W
If the defendant desires to have the agreed construction of the 

Court and of the parties expressly incorporated in the language of para­
graph 32, its remedy is to move for a clarification pursuant to paragraph 
36 of the Decree, (JA 512-13) , not to appeal to this Court.

50/
Layoffs are not made on a plantwide or departmentwide basis, but 

only from among the employees in a particular job category. (Finding 83;
JA 324).

69



present system works precisely by allowing the old racial classifications 

to reassert themselves, and this is unlawful under the same rationale by 

which departmental seniority has been held unlawful in the context of 

discriminatory departmental assignments. E,g,, Swint, supra, 539 F.2d 

at 98 note 52 and the "legion" of precedents there cited. It also retards 

the advancement of victims of discrimination to their rightful place, and 

is unlawful under the same rationale by which "red-circling" pay rates has 

become a standard remedy.

The relief in question is not foreclosed by Patterson. Patterson 

held "freedom now" permanent bumping of incumbent whites .and males to be 

impermissible under Title VII and under 92 U.S.C. §1981, 535 P.2d at 267- 

70, but the relief in question is quite different. The district court did 

not create a bumping right, but merely took the bumping right already 

given employees by the company and modified its application to remedy the 

two present discriminatory effects of the present policy described above.

If Patterson be hold to bar tliis kind of modification to pre-existing bumping 

rights, it would bar as well any remedy in a case in which an employer 

allowed only whites to use its "bump-back" rights in the event of layoff and 

fornuilly barred blacks from participation.

Despite Rock and Gamble, the defendant has not even attempted to 

show business necessity in opposition to this modest change in a pre­

existing practice. Instead, it complains in general terms that the ex­

tension applies to jobs the affected class member could perform "with 

reasonable training". To this there are two responses. First, the defen­

dant will be deciding the job to which the affected class member will be 

transferred, and con presumably be counted upon to minimize its own burden. 

Any irreducible burden would not be large, since the district court found 

that the defendant uses "informal, on-the-job training" sometimes lasting 

only "a few days". (Adopted Finding 60; JA 396) . Second , even a showing

70



of "substantial burden" , which the defendant did not even try to make 

herein, would not constitute a showing of business necessity adequate for 

the denial of relief. Watkins, supra, 530 F.2d at 1171.

(c) Constructive Seniority Under Franks v. Bowman 
Transportation Co.

The defendant complains of the working of paragraph 18 of the Decree 

(JA 999-503) , Brief at 97, but raised no objection below to the manner in 

which this provision worked. Nor does it now provide any alternative sug­

gestion for giving effect herein to the Supreme Court's decision in 

Franks.

The defendant's claim of unfairness is specious. While many whites

will have a waiting time more than the white average, an equivalent group

of whites will have a waiting time less than the white average. Paragraph

18 will not give any black employee a constructive waiting time less than
51/

the white average. This classwide injunctive relief meets the require­

ments of Franks, is administrable, and is fair.

(d) Other Provisions of the Decree

The defendant's brief does not object to any other provision of the 

Decree. For the convenience of the Court, plaintiffs will briefly outline 

its various parts.

Part I of the Decree (JA 989-93) contains a standard general pro­

hibition of discrimination, a guarantee that the Decree does not require the 

placement of objectively unqualified persons, a training provision, general 

definitions, a provision for the retention of jurisdiction. The retention 

of jurisdiction is linked to the progress of blacks towards their rightful 

place, and the defendant in a very real sense will by its acceptance or

517
Cf. this Court's acceptance of classwide approaches to back pay 

in United Transportation Union and Rock v. Norfolk N Western Ry., 532 F.2d 
33G, 39U (9 th Cir., 1975) , cert, den. , U.S. , 99 U.S. haw Week
3592 (197G) .

71



resistance of the Decree determine the length of the retention of juris- 
52/

diction.
Part II of the Decree (JA 493-95) contains the hiring provisions

of the Decree, including the previously-discussed hiring requirements, a

requirement that notices of vacancies and their pay rates be posted where

applicants will sec them, a provision barring discrimination in waiting

periods before hire, and recordkeeping requirements for applicants and 
53/

hires.

Part III of the Decree (JA 495-99) provides remedies for the com­

pany’s practice of racially reserving certain jobs for whites and others 

for blacks, including quota relief and the affirmative action and training 

program discussed above. Additionally, it provides for the posting of a 

notice stating the necessity, under the company's present practices, of 

using a special application form to apply for clerical jobs. It also 

provides for a determination of the black applicants and employees

527
Retention of jurisdiction to ensure compliance with the Court’s 

decision is a standard feature of Title VII cases. Drown v. Gaston County 
Dyeing Machine Co., 457 F.2d 1377 , 1383 (4th Cir., 1972) , cert. den.,
409 U.S. 982 (1972); Reed v. Arlington Hotel Co., 476 F.2d 721, 726 
(8th Cir., 1973) , cert. den. , 414 U.S. 854 (1973) ; Franks v. Bowman Trans­
portation Co,, supra, 495 F.2d at 423 ("at least two years”) ; United 
States v. T.l ,M.E ,-D.C . , supra, 517 F.2d at 322 ("specific. provision should 
be made to assure continuing power in the District Court to monitor per­
formance") ; English v. Seaboard Coast Line R.R. Co., .12 F.E.P. Cases 75,
89 (S.D.Ga., 1975) (five years). The industrywide steel consent decree, 
United States v. Allegheny-Ludlum Industries, Ine. , 517 F.2d 826 , 83 5 
(5th Cir., 1975) provides for continuing jurisdiction in the district 
court for five years.

53/
The posting of such notices will give blacks an opportunity to 

make immediate complaints if they arc rejected for hire when vacancies 
are in fact available, or if they are automatically assigned to low-paying 
jobs when better-paying jobs are available. It will help to avoid prob­
lems. The recordkeeping requirements ensure the ready accessibility of 
evidence if problems do still occur.

72



interested in clerical jobs,for the defendant’s inviting them to apply for

such jobs, and for their being given written statements of the reasons for
their rejection, in the event that they are rejected. It also bars ef-

54/
forts to defeat the relief provided by the Decree.

Part IV of the Decree (JA 499-504) contains its provisions on

seniority and has been discussed above.

Part V of the Decree (JA 504-08) contains job posting, training,

bidding, and red-circling provisions. The defendant is also required to

prepare and post copies of job descriptions and statements of qualifications,

if any. Retreat rights are provided if an employee is unable to perform the

new job. Training and red-circling have been discussed above, and there

is ample case support for job posting, job descriptions, and bidding re- 
55/

quirements.

Part VI of the Decree (JA 508-10) contains temporary quota relief 

ensuring that new black employees will not be discriminated against and 

that the pay rate disparities against present black employees be elimina­

ted.
Part VII of the Decree (JA 510-11) contains provisions on layoffs, 

recalls, and "bumping" as an alternative to layoff.

w
Recruitment programs are a standard part of Title VII relief.

Mims v. Wilson, supra, 514 F.2d at 109; Franks, supra, 495 F.2d at 420; 
E.E.O.C. v. Local 638, Sheet Metal Workers, 532 F.2d 821, 830-31 (2nd Cir., 
1976). The requirement of a written statement of reasons for rejection 
will tend to prevent rejections for frivolous reasons, and is supported by 
United States v, Jacksonville Terminal Co., 451 F.2d 418, 460 (5th Cir., 
1971), cert, den., 406 U.S. 906 (1972).

55/
E .g., Drown, supra, 457 F.2d at 13S3; Patterson, supra, 535 F.2d 

at 264; Pettway, supra, 494 F.2d at 248-49; Jacksonville Terminal. _
451 F .2d at '4 5'9; Franks, supra, 495 F.2d at 420; Watkins, supra, ^30 F.2d 
at 1194; Swint, supra, 539 F.2d at 101-02. Both Patterson and Jacksonville 
Terminal approved the requirement of job descriptions. Retreat rights were 
approved in Jacksonville Terminal and Swint.

73



Part VIII of the Decree (JA 511-14) provides a mechanism for the 

resolution of disputes under the Decree, requires the defendant to appoint 

an "Equal Employment Opportunity Complaints Officer" to receive and in­

vestigate complaints, provides for motions to amend, clarify or enforce 

the Decree, provides a conciliation period for ordinary problems, and

appoints the United States Magistrate for that district as a Special
56/

Master for the administration of the Decree.
Part IX of the Decree (JA 514-18) provides for recordkeeping and the 

regular provision of information with which to assess the defendantTs com­

pliance with the Decree. In part, this provision stems from the inordi­

nate difficulty over the course of this litigation in obtaining infor­

mation from the defendant. Without it, the Decree could not be enforced. 

This Part also provides for the distribution of copies of an outline of the 

Decree to class members, and for the publication of the outline in the local

newspaper. Class members must know their rights under the Decree in order
57/

to take advantage of them.
Part X of the Decree provides for the reimbursement of part of 

plaintiffs' out-of-pocket expenses incurred in reasonable representation of 

the class. The defendant has not yet objected to the amount of the award.

By written agreement of the parties, the defendant lias the right to object 

to specific items included within this figure even after payment, if the 

objections are made within a reasonable time. If the district court

56/
The use of

in Hairston v. McLean 
T.I.M.E.-D.C., supra, 
Metal Workers, supra, 
Union of N.Y. & Vic., 
States v. East Texas

Special Masters or of Administrators has been approved 
Trucking Co., 520 F.2d 226, 238 (4th Cir. , 1975);
517 F .2d at 324 note 45; E.E.O.C. v. Local 638, Sheet 
532 F .2d at 829; Patterson v. Newspaper X Mail Del.
384 F.Supp. 585, 593~-95 (S.D.N.Y., 1974); and United 

Motor Freight, 10 F .E . P. C. ases 971, 979 (N. 1). lex. , 1974).

57/
This Court held in Russell v. American Tobacco Co., sugra,

528 F.2d at 364, that district courts possess broad discretion with respect 
to recordkeeping requirements and the provision of information. Accord, 
Jacksonville Terminal, supra, 451 F.2d at 460. Both Jacksonville Terminal 
Imd Swint, supra, 539 F.2d at 101, required that class members be informed 
of their rights.

74



ultimately upholds objections as to any amounts, such amounts will be de­

ducted from subsequent awards. This agreement was made for the defen­

dant’s benefit, on the basis of its representation that it had not had 

enough time to examine plaintiffs’ statement of expenses before entry of 

the Decree. The amount awarded therefore does not seem to be before this

Court. In any event, the district court had authority to make an award
58/

of out-of-pocket expenses.

None of these provisions constituted an abuse of discretion.

F . The District Court Used an Incorrect Legal Standard 
in Determining Whether the Plaintiffs Had established 
a Prima Facie Case as to their Personal Claims

1. The District Court Erred by Failing to Consider 
the Statistical Evidence and the Evidence of 
Company Practices

There are ample indications that the district court decided the

_B87
Fairley v. Patterson, 493 F.2d 598 , 607 note 17 (5th Cir., 1974) . 

Additional support for the award is provided by the Civil Rights Attorneys' 
Fees Awards Act of 1976, Pub.L. 99-559, 90 Stat. 2641, which provides for 
the award of attorneys fees in cases brought under §1977 of the Revised 
Statutes, a provision which includes 42 U.S.C. §1981. Rep. Drinan, the 
floor manager of the legislation in the Mouse , stated during debate that an 
award should encompass out-of-pocket expenses:

I should add that the phrase "attorney’s fee" would 
include the values of the legal services provided by counsel, 
including all incidental and necessary expenses incurred in 
furnishing effective and competent representation.

122 Cong. Rec. H 12160, col. 1 (daily ed., October 1, 1976).

All employment practices challenged herein were challenged under 
both Title VII and §1981. Pub.L. 94-559 applies to eases pending in Court 
on the date of enactment and to services performed in such cases prior to 
that date; the House rejected, 104 to 268, a motion offered by Rep. Ash- 
brook which would have had the effect of limiting the measure to cases 
filed after the date of enactment. 122 Cong. Rec. H 12166 (daily ed., Oc­
tober 1, 1976) . See also 122 Cong. Rec. H 12155, col. 3 (remarks of Rep. 
Anderson) (Id.) ; 122 Cong. Rcc. H 12160, col. 1 (remarks of Rep. Drinan) 
(Id.); Bradley v. School Bd. of City of Richmond, 4.16 IJ.S. 696 , 711-21 
(1974) .

75



personal claims of the plaintiffs in isolation from the evidence, and its

own findings, with respect to the class claims. First, nowhere in its

discussion of the plaintiffs' personal claims does it even mention any

evidence other than the plaintiff's individual testimony, individual

personnel records, and individual E.E.O.C. charges. Its discussion of

plaintiff Sledge's claim makes no mention of the finding that the job

category to which the defendant failed to recall her was still largely
segregated for whites (Finding 82(d) ; JA 323) . Its discussion of hiring

claims doesn't even mention its findings of class discrimination in hiring.

Its discussion of job assignment claims is similarly isolated from the

rest of the case. Second, the district court entered findings as to the

personal claims of the plaintiffs which were inconsistent with its

findings on class claims. The court held that Marie Robinson and Herman

Jones had failed to prove their claims because they introduced no evidence

that they were qualified for higher-paying jobs. (JA 282 , 288-89) . This

necessarily implies that there were objective qualifications that had to

be met, such as there are in a case involving over-the-road trucking jobs.

Cf. Barnett, supra, 518 F.2d at 546. The district court had, however,

reached a contrary result in considering the class claims of discrimina- 
59/

tion. The district court also referred to the absence of evidence of

597
In considering the class claims of discrimination, the district 

court had found "that most of the job categories in these plants can be 
filled by any willing, able-bodied person", (Adopted Finding 26; JA 340) , 
that "previous experience is desirable, but unnecessary" and that "[m]ost 
new employees are in fact inexperienced, and must be trained", (Adopted 
Finding 27; JA 340), that "[m]ost of the job categories in these plants 
... do not require specific minimum levels of education for successful 
performance" (Adopted Finding 29, JA 340) , that " [m] ost of the job cate­
gories in these plants are 'entry level' in that they can be filled by 
persons hired off the street", (Adopted Finding 31, JA 341), and that 
most applicants and most employees had no previous textile employment ex­
perience. (Adopted Findings 59, 61 and 62; JA 3*16-47).

76



vacancies, or of vacancies in higher-paying jobs, when discussing the
60/

claims of Lucy Sledge and of Marie Robinson, (JA 288-90) , but evidence

outside their personal testimony and personal records amply filled this 
61/

gap. Third, the colloquy between the Court and counsel for the defen­

dant at the May 9, 1976 hearing strongly suggests that the district court

believed it could not consider the entire record in deciding plaintiffs’
62/

personal claims. (JA 1699-51).

The district court erred in so restricting its view of the evidence 

relevant to plaintiffs’ personal claims. Even in an individual, non-class 

Title VII suit, evidence as to a company's ’’general policy and practice 

with respect to minority employment" and statistics "may be helpful to a 

determination of whether [the action affecting the plaintiff] conformed to 

a general pattern of discrimination against blacks.” McDonnell Douglas

W
The district court referred to vacancies occurring on the date 

of Lucy Sledge's applications, but the class findings establish that ap­
plicants were ordinarily hired several weeks after they filed their appli­
cations. (Findings 89, 90; JA 326). Again, only a severing of the evi­
dence can explain the contradiction.

61/
See the Statement of Facts at 26 and at 37-39, supra.

62/
Throughout this litigation, plaintiffs have consistently urged 

that the evidence showing discrimination against the class must also be 
considered in the determination of plaintiffs' personal claims. See 
plaintiffs' Reply to the Defendant's Post-Trial Brief (filed February 20, 
1973) at 2.1-22, and plaintiffs' Request for Reconsideration (SJA 26-30).

77



Corp. v. Green, 411 U.S. 792, 804-05 (1973). The district court's 

failure to consider any such evidence was similar to the exclusion of evi­

dence, disapproved by this Court in United States v, Dillon Supply Co.,

429 F.2d 800, 803-04 (4th Cir., 1970) . In effect, it would bar all claims 

of discrimination in which the complainant did not personally know all of 

the facts necessary to his or her claim -- those in which some elements of

proof were dependent on information obtained in discovery, or obtained
64/

from other witnesses. Such a view cannot be sustained.

2. The District Court Erred by Placing the Burden on 
Plaintiffs to Prove Specific Racial Motivation on 
the Part of the Defendant as to their Personal 
Claims

63/

In ruling against plaintiffs Lucy Sledge and Thomas Hawkins, the 

district court expressly relied on the absence of direct evidence of the

637
Additional, cases supporting this proposition are Graniteville Co. 

(Sibley Div.) v. E.E.O.C., 438 F.2d 32 , 42 (4th Cir., 1971) ("Evidence of 
plant-wide discrimination seems most relevant to a charge ... that particu­
lar action taken was racially motivated."); Jones v. Lee Way Motor Freight, 
431 F.2d 245, 247-48 (10th Cir., 1970) (cited in McDonnell Douglas, 411 U.S. 
at 805); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 
(8th Cir., 1970) ("Discrimination, or conversely fairness, in general hiring 
practices often indicates whether an employer has discriminated against a 
particular applicant for employment."); Peters v, Jefferson Chemical Co.,
516 F.2d 447, 450-51 (5th Cir., .1975) ("The judge also incorrectly opined 
that statistics have little probative value in a non-class action. ... [This 
statement] might indicate an erroneously limited appraisal of the fact 
situation being judged."); Muller v. United States Steel Corp, , 509 l'.2d 
923, 928 (10th Cir., 1975).

Other district courts in North Carolina have followed the proper 
standard, and considered all evidence of record when passing upon the 
merits of individual claims. Cathey v, Johnson Motor Lines, 398 F.Supp. 
1107, 1118-19, 1121 (W.D.N.C., 1974); Johnson v. Ryder Truck Lines,
12 F.E.P. Cases 895, 906 note 1 (W.D.N.C., 1975); Bradshaw v. Associated 
Transport, 12 F.E.P. Cases 859, 863-64 (M.D.N.C., 1974).

64/
This Court has "observed that proof of overt racial discrimina­

tion in employment is seldom direct." Brown v. Gaston County Dyeing 
Machine Co., supra, 457 F.2d at 13S2. Cf. Surowitz v. Hilton Hotels Corp., 
383 U.S. 363 (1966), which held that the plaintiff in a shareholder's 
derivative suit was not required to have personal knowledge of the matters 
alleged in the Complaint in order to verify it, but was entitled to rely on 
the investigations and knowledge of others.

78



defendant's specific racial motivation against them. (JA 281, 290).

There is no reason to believe that the district court failed to apply such 

an evidentiary requirement to the other plaintiffs as well. The placement 

of the burden of proof was improper.

This Court has repeatedly held that, where a background of discrimi­

nation has been shown, it is not the plaintiff's burden to prove racial 

motivation, but the defendant's burden to prove nonracial motivation. 

Chambers v. Hendersonville City Bd. of Id., 369 F.2d 189, 192 (9th Cir., 

1966) (en banc) ("Innumerable cases have clearly established the principle 

that under circumstances such as this where a history of racial discrimi­

nation exists, the burden of proof has been thrown upon the party having 

the power to produce the facts.") ; Cypress v. Newport News General & Non­

sectarian IIosp. Ass'n., 375 F.2d 698, 655 (9th Cir., 1967) (en banc) ("To 

cast this burden upon the plaintiffs would seriously attenuate the doc­

trine of equal access ... by effectually limiting relief to the rare case
66/

where the defendant is willing to admit its wrongdoing."); Wall v. Stanly 

County Bd. of Ed. , 378 F.2d 275, 278 (9th Cir., 1967) (en banc) ; North 

Carolina Teachers' Ass'n v. Asheboro City Bd. of Ed., 393 F.2d 736, 795 

(9th Cir., 1968) (en banc) (Burden of proof placed on defendant "after the 

initial demonstration of a background of discrimination"); Chesapeake &

Ohio Ry. , supra, 971 F.2d at 586; United States v. Chesterfield County 
School Dist., 989 F.2d 70, 72-73 (9th Cir., .1973); Jones v. Pitt County Bd. 

of Ed., 528 F.2d 919, 917 (9th Cir., 1975). In McDonnell Douglas, 91.1 U.S.

6h7
The district court imposed no such requirement as to the class 

claims. (JA 331) .

Cf. Brown, supra note 69.

65/

66/

79



at 802, the Supreme Court specified a series of showings which would be 

sufficient to raise an inference of discrimination in an individual, non­

class action. They did not include a showing of racial motivation. When 

the showings were made, the Court held, the burden shifted to the defen­

dant to prove "some legitimate, nondiscriminatory reason” for the personnel

action in question.
The district court's placement of the burden of proof cannot be sus­

tained.
3 District Court Erred By Placing the Burden on

Plaintiffs to Prove their Specific Qualifications 
for the Defendant's Jobs

In ruling against plaintiffs Herman Jones and Marie Robinson, the 

district court expressly relied upon the absence of any evidence that they 

were qualified for higher-paying jobs. (JA 282 , 288-89) . There is no 

reason to believe that the district court failed to apply such an evi­

dentiary requirement as to the other plaintiffs as well. This placement

of the burden of proof was improper.
Plaintiffs have proved, and the defendant has now admitted in its 

brief at 3 9 , that virtually anyone can be hired off the street to perform 

most of the defendant’s jobs. Plaintiffs have also proved that the defen­

dant discriminates against blacks, as a class, in both hiring and job 

assignment. Under these circumstances, the defendant has the burden of 

proving, first, the existence of specific job qualifications which are both 

job-related and have uniformly been applied to whites and, second, that an 

individual plaintiff lacks such specific qualifications. Franks v. Bowman 

Transportation Co,, supra, 424 U.S. at 773 note 32; Hairston, supra,

520 F.2d at 232; United Transportation Union and Rock, supra, 5i2 P.2d at 

341; Baxter v. Savannah Sugar' Refining Corp., 495 F.2d 437 , 443-44 

(5th Cir., 1974), cert, den., 419 U.S. 1033 (1974).
The district court's placement of the burden of proof cannot be

sustained.
- 80 -



G . When Tested by Proper Legal Standards, the 
llneontroverted Evidence Establishes that 
Plaintiffs Have Proved. Discrimination 
Against Them

The Supreme Court held in McDonnell Douglas that an individual in a

non-class action may establish a prima facie case:

... by showing (i) that he belongs to a racial minority;
(ii) that he applied and was qualified for a job for which 
the employer was seeking applicants; (iii) that, despite 
his qualifications, he was rejected; and (iv) that, after 
his rejection, the position remained open and the employer 
continued to seek applicants from persons of complainant's 
qualifications."

411 U.S. at 802 (footnote omitted). Despite the fact that this is a class
67/

action and that such individual showings are not required, the uncontro­

verted evidence in the Statement of Facts establishes that this standard 

has been met as to each plaintiff. E,g., East v. Romine, Inc., 518 F.2d 

332, 338 (5th Cir., 1975). Moreover, the "background of discrimination" 

shown herein is sufficient to bring their claims within the Chambers line 

of cases. The defendant, which alone was in a position to state its 

reasons for its rejections of the unhired applicant plaintiffs, and its 

reasons for the job assignments of the employee plaintiffs and for its 

failure- to promote them, said nothing. "Silence then becomes evidence of

677
The Supreme Court said in Franks, 424 U.S. at 772:

But petitioners here have carried their burden of demon­
strating the existence of a discriminatory hiring pattern 
and practice by the respondents and, therefore, the burden 
will be upon respondents to prove that individuals who re­
apply were not in fact victims of previous hiring discrimi­
nation.

And see United Transportation Union and Rock, supra, 532 F.2d at 341. The 
McDonnell Douglas standards have been held not to apply to class actions or 
"pattern and practice" actions in Rodriguez v. East Texas Motor Freight,
505 F .2d 40, 55 (5th Cir., 1974), ccrt. granted, U.S. , 44 U.S. Law 
Week 3670 (1976) , and T.I.M.E.-D.C., supra, 517 F.2d at 315-16. But sec
United States v. Hazelwood School Dist., supra, 534 F.2d at 814.

81



the most convincing character." Interstate Circuit v. United States,
68/  ~

306 U.S. 208, 226 (1939). These dismissals should be reversed.

The district court advanced particular justifications for findings

of nondiscrimination as to plaintiffs Lucy Sledge and Thomas Hawkins which

have not been addressed above. First, the district court relied upon the

fact that the defendant was hiring blacks in substantial numbers at the

time of Lucy Sledge’s difficulties in obtaining re-employment. This is

tied up with the district court’s view that plaintiffs hadn't proved

racial motivation but, additionally, overlooks the district court's own

finding that the job from which she had been laid off in 1968 was still

largely segregated for whites and that only white hires were initially

assigned to her old job in 1969. Statement of Facts at 25, 28. Moreover,

the fact that some other blacks were being hired and placed is not a

defense to a claim that her recall rights arid right to re-employment were

violated because of her race. Franklin v. Troxel Mfg. Co., 501 F.2d 1013,

1016 (6th Cir., 1974); cf■ Patterson, supra, 535 F.2d at 275 note 18.

Second, the district court stated at the February 24, 1976 hearing that

there was no evidence to show when she moved to New Jersey. Since there

is uncontroverted evidence that she lived in Roanoke Rapids during the

period for which discrimination is claimed, and since there is no evidence

to support a finding of nonavailability if one had been made, this is not

sufficient to bar her claim.
... [W]hen the uncontroverted evidence supporting a regis­
trant's claim places him prima facie within the statutory 
exemption, dismissal of the claim solely on the basis of

Cf. Ward v. Appricc, 6 Mod. 264 (1705) :

... [I] f very slender evidence be given against him, then, 
if lie will not produce his books, it brings a great slur 
upon his cause.

82



suspicion and speculation is both contrary to the spirit of
the Act and foreign to our concepts of justice.

Dickinson v. United States, 346 U.S. 389, 397 (1953). Third, the district 

court did not consider plaintiff Thomas Hawkins to be a bona fide appli­

cant, based on no more than the "suspicion and speculation" condemned in 

Dickinson. This was improper. Even assuming arguendo that he was only a 

"tester" -- which he was not -- this is not a defense to liability, but 

only to back pay. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir., 1971); 

Bradshaw v. Associated Transport, supra, 12 F.E.P. Cases at 864-65. 

Plaintiffs seek reversals as to all three of these matters. If this Court 

considers these last two matters to be sufficiently supported in the 

record to preclude reversal, it must yet be remembered that the questions 

of plaintiff Sledge’s availability and of plaintiff Hawkins' bona fides 

were not reasonably in issue at the trial. Both due process and basic 

fairness require that the dismissals be vacated as to these two plaintiffs, 
and that their claims be remanded for an evidentiary hearing at which they 

will have the opportunity to disprove, by direct testimony, both of the 

inferences drawn by the district court.

CONCLUSION

Title VII was enacted on July 2, 1964 and became effective a year 

later. The record in this case establishes that, at the J.P. Stevens 

facilities in Roanoke Rapids, the effectiveness of this statute was more a 

matter of theory than of reality. On June 25, 1976 , almost twelve years 

after its enactment, the district court took Title VII out of the realm of 

the theoretic and the abstract, and made it a concrete reality for the 

black applicants and employees of J.P. Stevens. The effectiveness of 

Title VII at these facilities should not longer be delayed. Plaintiffs 

pray that the stay be dissolved immediately after the argument of this

83



case, and that the Decree be affirmed. For themselves, they pray that 

the dismissals of their personal claims be reversed.

Respectfully submitted,

RICHARD T. SEYMOUR 
316 Southern Building 
1425 H Street, N.W.
Washington, D.C. 20005

T. T. CLAYTON
Clayton & Ballance
307 West Franklin Street
Warrenton, North Carolina 275S9

Counsel for Plaintiffs-Appellees 
in No. 76-1988; and 

Counsel for Plaintiffs-Appellants 
in No. 76-2150

Dated: November 30, 1976

Of Counsel:

RICHARD B. SOBOL
910 Seventeenth Street, N.W.
Washington, D.C. 20006

JACK GREENBERG 
0. PETER SHERWOOD 
10 Columbus Circle, Suite 2030 
New York, New York 10019

JULIUS CHAMBERS
Chambers, Stein, Ferguson & Becton 
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

84



a /  l£ u m

3 1 6  S O U T H E R N  B U IL D IN G  

1423  H STR E E T .  N. W.

W A S H IN G T O N .  D. C. 2 00 03

D E N IS E  G. D E N G L E R  ,202) «36- «370
A S S I S T A N T March 19, 197G

R ichard T. S eymour

Whiteford S. Blakeney, Esq.
Blakeney, Alexander & Machen 
39-50 NCNB Plaza Building 
Charlotte, North Carolina 28202

Re: Sledge v. J.P. Stevens & Co., Inc.
C.A. No. 1201 (E.D. N.C.)_________

Dear Mr. Blakeney:

I was surprised by your objection to paragraphs 23, 90 and 91 of 
plaintiffs’ proposed Decree. These paragraphs had originally been 
drafted to provide relief only to black employees, and were expanded to 
include whites at your suggestion. I don’t mean to suggest that the 
defendant ever consented to the entry of relief to anyone along the 
lines of these paragraphs, but simply that if such relief were to be 
ordered for anyone, the defendant preferred that it be entered for all 
employees rather than just for blacks.

My understanding of the law, particularly as explained by Patter'son, 
is that the defendant lias an absolute right to insist that such relief 
be extended only to the members of either subclass of black employees. 
Without the defendant's consent, therefore, the relief set forth in these 
paragraphs should be so limited. I don’t think that the defendant should 
necessarily be bound by your prior suggestion, but do think it necessary 
to have a clear statement of the defendant's position.

To avoid delay in the Court's consideration of injunctive relief 
herein, plaintiffs propose that the Court consider and, if appropriate, 
enter the proposed Decree in its present form, on the understanding that 
the scope of application of these three paragraphs will be limited if 
the defendant so desires. I’ll submit revised pages effectuating the 
defendant’s wishes as soon as I receive a statement of position. In this 
way, the Court would not have to delay decision while the company deter­
mines its position.

Very truly yours,

Richard T. Seymour

cc: Hon. Franklin T. Dupree, Jr.
Jonathan Harkavy, Esq.
Henry Woicik, Esq.
T. T. Clayton, Esq.
Richard B. Sobol, Esq.

- la -



f

a /  1/2*41*

3 1 6  S O U T H E R N  B U IL D IN G  

1425  H S T R E E T .  N. W.

W A S H IN G T O N .  D. C. 2 0 0 0 5

D E N IS E  G. D E N G L E R  <2021 630-0370
A S S I S T A N T

R ichard T. S e y m o u r

March 26, 1976

Whiteford S. Blakeney, Esq.
Blakeney, Alexander & Machen 
3450 NCNB Plaza Building 
Charlotte, North Carolina 28202

Jonathan Harkavy, Esq.
Smith, Patterson, Follin, Curtis & James 
7Oh Southeastern Building 
Greensboro, North Carolina 27401

Re: Sledge v. J. P. Stevens & Co., Inc.
C.A. No. 1201 (Wilson Division)____

Dear Sirs:

I have enclosed my draft of substitute pages 5, 10 through 10b, 
and 19. These pages would conform the proposed relief herein to the re­
quirements of Franks v. Bowman Transportation Company, U.S.
(1976) , and establish a l argely extrajudicial procedure for determining 
constructive seniority dates, with only the disputed determinations 
having to be referred to the Special Master. These pages also propose 
language making clear that the seniority remedies herein would apply 
only to blacks, if such is the defendant’s wish.

Mr. Clayton and I will be meeting with Mr. Blakeney in Charlotte on 
Thursday, April 1, at 3:00 P.M. The meeting will primarily concern the 
manner of handling back pay herein, but may involve these other matters 
as well.

Very truly yours,

Richard T. Seymour

Enclosures

cc: Hon. F. T. Dupree, Jr. (w/o end.)
Henry Woicik, Esq. (w/encl.)
T. T. Clayton, Esq.

2a



S&tor~f a/ l/ L .
3 1 6  S O U T H E R N  B U IL D IN G  

142 5  H S T R E E T .  N. W.

W A S H IN G T O N .  D. C. 2 0 0 0 3

D E N IS E  G. D E N G L E R  ,202) ®30-«37O
A S S I S T A N T

April 10, 1976

R ichard T. S e y m o u r

Honorable Franklin T. Dupree, Jr.
United States District Judge
P.0. Drawer 27585
Raleigh, North Carolina 27610

Re: Sledge v. J. P. Stevens & Co., Inc.
C.A. No. 1201 (E.D.N.C.)________ _

Dear Judge Dupree:
The defendant in this case has decided that any seniority 

modifications to he imposed by the Decree should be imposed only as 
to blacks, and all parties agree that the defendant has the legal 
right to insist that such relief be limited to blacks. The defendant 
and the union may, of course, agree in collective bargaining to the 
extension to whites of the changes made for blacks in paragraphs 22,
23, 4-0, and 4-1 of plaintiffs' proposed Decree.

The parties have also agreed on procedures for the establishing 
of constructive seniority dates, to comply with the holding of Franks 
v. Bowman Transportation Co. , U .S. ,94 U.S. Law Week 4356 (1976) .
This procedure is set forth in new paragraphs 21A (a) through 21A (d) .
New paragraph 4(g) defines the term "seniority" to include constructive 
seniority dates, and new paragraph 21A (e) provides that such constructive 
seniority dates shall be used for all purposes. Paragraph 23 lias been 
modified to take account of Franks, by substituting the phrase "present 
black employee" for the phrase "such person" in the third line.

Substitute pages of the proposed Decree, incorporating the 
above changes, are enclosed herewith.

It has recently occurred to plaintiffs that it may be necessary 
to file a Motion for Entry of Their Proposed Decree , in order to have 
a right to appeal 'a denial of injunctive relief under 28 U.S.C.
§1292 (a) (1) . Plaintiffs are today filing such a Motion, to which is 
attached an up-to-date edition of plaintiffs’ proposed Decree.

3a



Hon. Franklin T. Dupree, Jr.
April 10, 1976 
Page 2

Plaintiffs are still working on the Request for Reconsideration 
the Court suggested that we file. We regret the delay, but remedial 
proceedings herein and in another case just decided have consumed all 
available time. We hope to file the document within a week.

Enclosures

cc: Whiteford S. Blakeney, Esq.
Henry C. Woicik, Esq. 
Jonathan R. Harkavy, Esq.
T. T. Clayton, Esq.
Richard B. Sobol, Esq. 
Julius Chambers, Esq.

Very truly yours

R j - ^ l l C X J .  U .  JL .  U C J I l l U U i .

Ba



S'BLAK
J . . . A U X A N O C R . J  • 
ERNEST w- MACHEN'BBOWH_H^f^ELL 
j O M N  O. P O L L A R O  

W.LUIAM L . » “ TEN 

w. T. JR‘

FY A L E X A N D E R  &  M * = H E N
B l*“e w » » ‘“  AT LA“

OTTt S S T - 2eoC H A R L O T T E ,

April 28, 19^6

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Richard T. Seym our, Esq-

t f e T o ^ n ^ " ;
1425 II Street, N.
Washington, b>*

In H e:
i\/r Pledge, et 3-1 vS * Lucy M. bL & Inc.J# P. Stevens & *Dear Mr. Seymour: 0 . * • -

. to some of the observations

1 want to add
set forth in your letter ^  ln th*  c « «  ̂ cre.

That letter stab"Modifications to be impose tQ me
, ,._ + anY seniority ̂  , n That phrasing anvthing 3-s

---------- *

your letter re ^  haVe been p nl0n a contract

not been achieve . ^^ further state*  ttet ^ J ^ t i v e

„ forth

E s s : - ' = r
prevent confusion.

_ Sa



As pointed out above, the defendant is acquiescing in a 
decree abolishing departmental seniority and directing plant seniority, 
which the defendant accepts as being within the Court's authority 
to require in behalf of blacks in this case - and which, incidentally, 
may be more than is required by the recent holding of the Supreme 
Court in the case of Franks vs. Bowman Transportation Co.

I have also stated to you that the defendant will certainly 
cooperate in the ascertaining, from its records, what are the 
employees' plant seniority dates. I have certainly not agreed, 
however, to whatever may be contained in "new paragraphs 21A(a) 
through 2lA(d)" of your proposed decree. It may well be, as I have 
stated, that upon carefully correct interpretation of your letter it is 
not to be construed as saying that I have agreed to those paragraphs 
of your proposed decree, but I do want to make it expressly and 
specifically clear that that is not what I have agreed to.

What I have agreed to is that the defendant will cooperate 
and assist in the ascertainment of the employees' respective plant 
seniority dates.

Very truly yours,

BLAKENEY, A L E X A N D E R  & MACHElf

WSB:ig

CC: Hon. Franklin T. Dupree, Jr.
CC: T. T. Clayton, Esq.
CC: Jonathan R. Harkavy, Esq.

6a



TEXT OF THE CIVIL RIGHTS ATTORNEY’S FEES AWARDS ACT OF 197G 
Pub.L. 94-559, 90 Stat. 2641

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act may be 
cited as "The Civil Rights Attorney's Fees Awards Act of 1976".

Sec. 2. That the Revised Statutes section 722 (42 U.S.C. 1988) is 
amended by adding the following: "In any action or proceeding to en­
force a provision of sections 1977, 1978, 1979, 1980, and 1981 of the 
Revised Statutes, title IX of Public Law 92-318, or in any civil action 
or proceeding, by or on behalf of the United States of America, to en­
force, or charging a violation of, a provision of the United States 
Internal Revenue Code, or title VI of the Civil Rights Act of 1964, 
the court, in its discretion, may allow the prevailing party, other 
than the United States, a reasonable attorney's fee as part of the 
costs".

7a -



STATEMENT PURSUANT TO LOCAL RULE 17

The undersigned counsel hereby certifies that lie knows of no 

corporate affiliation or financial interest required to be disclosed 

by Rule 17 of the Rules of the United States Court of Appeals for the 

Fourth Circuit.

RICHARD T. SEYMOUR 
316 Southern Building 
14-2 5 H Street N.W.
Washington, D.C. 20005 
(202) 638-6370

Counsel for Plaintiffs-Appellees 
in No. 76-1988; and 

Counsel for Plaintiffs-Appellants 
in No. 76-2150.

Dated: November 30, 1976

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