Sledge v JP Stevens & Company, Inc. Brief for Plaintiffs-Appellees and Plaintiffs-Appellants
Public Court Documents
November 30, 1976
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 October 31, 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.
TELEX: 205662 SAP UR
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
l
I
I
1
I
I
I
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