Metro Board of Education of Nashville, Tennessee v. Kelley Brief in Opposition to Petition for Writ of Certiorari

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 76-2207

OTHA GRIGSBY, et al..
Plaintiffs-Appellants, 

- v -
NORTH MISSISSIPPI MEDICAL CENTER

Defendant-Appellees

On Appeal from the United States District Court 
for the Northern District of 

Mississippi

REPLY BRIEF

JACK GREENBERG 
MELVYN R. LEVENTHAL 

10 Columbus Circle 
New York, New York 10019

KENNETH MAYFIELD
303% West Main Street 
Tupelo, MS. 38801

Attorneys for Appellants



Q )

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 76-2207

OTHA GRISBY, et al.,
Plaintiffs-Appellants, 

- v -
NORTH MISSISSIPPI MEDICAL CENTER

Defendant-Appellees

On Appeal from the United States District Court 
for the Northern District of 

Mississippi

REPLY BRIEF

1. Appellee now acknowledges that statistics 
revealing the impact of an employer's practices are 
fundamental to a prima facie case of racial discrimina­
tion. (Appellee's brief, P.22) This position is con­
trary to its position in the district court (O.R. 114, 
Tr. Tr. 894) and consequently appellee made no effort 
below to rebut appellants prima facie case.

Appellee also apparently acknowledges that the 
statistics presented by appellants were sufficient to 
establish a prima facie case against the Mental Health



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Complex and the Baldwyn Satellite Unit; however, accord­
ing to the appellee although the statistics may show class 
discrimination at the Mental Health Complex and the Baldwyn. 
Satellite Unit (the two units for which appellants were 
permitted discovery), such statistics were not sufficient 
to establish class discrimination in the Medical Center as 
a whole because the sample was not large enough. (Brief 
of Defendant Appellee, P.24)

Appellee's argument fails for three reasons:- 1) statis­
tics relating to the Mental Health Comples and Baldwyn 
Satellite Unit demonstrated glaring discrimination at those 
particular units and by inference at the other two units of 
the hospital; 2) Appellants by the use of EEO-1 reports 
established that the pattern prevailing at the Mental Health 
Complex and Baldwyn Satellite Unit was present in the 
Medical Center as a whole; (Pi. Tr. Exh. Nos. 135, 136,
137, 138) and 3) even if the pattern of discrimination 
which exists at the Mental Health Complex and Baldwyn 
Satellite Unit does not carry an inference of discrimina­
tion at the other two units of the hospital, the discrim­
ination which exists at the Complex and Baldwyn Unit is 
not excused and should have been remedied by the Court.

Appellee correctly states that the Mental Health 
Complex and the Baldwyn Satellite Unit has about 100 
employees or almost 9% of the total work force. This

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group of employees was not picked as a sample from the 
Medical Center as a whole. Instead appellants' statis­
tical proof emphasizes the Mental Health Complex and the 
Baldwyn Satellite Unit because the trial court restricted 
appellants discovery to those units. Nevertheless, 
appellants introduced into evidence EEO-1 reports filed 
by the Medical Center in 1972, 1973, 1974 and 1975 re­
vealing that blacks were disproportionately relegated to 
the lower classified jobs at the entire Medical Center.
The appellee's only response to this proof is a bare 
assertion that the reports are of questionable probative 
value because of their age and because the categories of 
employees reflected in the EEO—1 reports are not identical 
in name to the five categories of employees which 
appellants proved were racially segregated at the Mental 
Health Complex and Baldwyn Satellite Unit. (Brief of 
Defendant-Appellee, P..25)

The Reports are not outdated; they cover 1972-75 
the very period at issue in this case. And although 
categories in the reports do not mirror categories 
covered by other proof, they do reveal racially segre­
gated job classifications with blacks relegated to 
inferior levels.

2. Appellee suggests that the EEOC Determination 
is of questionable significance because it was issued 
on August 16, 1974 which was one and one-half years

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before the case was tried (Brief of defendant-appellee,
P.26) However, the relevant data is the date the 
allegedly unlawful discrimination occurred. The Complaint 
was filed on August 20, 1974, six days after the EEOC 
determination issued.

3. Appellee also argues that although 44 percent of 
the employees terminated for cause were black while only 27 
percent of the workforce is black, this proof should fail 
because there was no proof of any policy, procedure or 
standard applied by the Medical Center unrelated to the 
orderly and efficient administration of the hospital.
On the contrary,it was shown that appellee has a policy 
of givingunfettered discretion to department heads to dis­
charge employees. (Tr. Tr. 17) By admitting that 44 
percent of the employees discharged were black appellee 
was called upon to explain why there was a gross disparity 
between the percentage of blacks employed and the percent­
age of blacks discharged for cause. ' Appellee was not able 
to provide any explanation. Bolton v, Murray Envelope 
Corp. 493 F .2d at 191 (5th Cir. 1974).

4. Appellee argues that appellants did not prove that 
unfettered discretion of the white department heads has a 
discriminatory effect on blacks. Appellee points to the 
unsubstantiated statement of the personnel manager who 
guessed that "at least half a dozen" blacks supervise whites. 
(Tr. Tr. 830) The personnel manager apparently guessed

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again when he made the unsubstantiated statement that 
"there are probably another ten" blacks who supervise 
blacks or blacks and whites. (Tr. Tr. 830) These 
casual assertions by the personnel manager were not 
supported by any records and were revealed for the first 
time at trial although appellants had attempted to get 
that information through discovery. The weakness in 
the statements of the personnel manager was revealed in 
cross-examination wherein he admitted that Mildred Barnes
and Rosie Mae Richardson were two of the blacks who he 
judged to supervise whites. Mildred Barnes is in charge 
of Central Supply at the Baldwyn Unit which has only two 
other employees and was given her title six months after
this lawsuit was filed. Rosie Mae Richardson is shift 
supervisor in the dietary department at the Baldwyn 
Satellite Unit. She does not supervise any whites. 
Moreover, the head supervisor over the dietary department 
at the Baldwyn Satellite Unit is white. Neither Mildred 
Barnes nor Rosie Mae Richardson has authority to hire, 
fire, or promote anyone. (Tr. Tr. 840-841) in any 
event, the overwhelming majority of supervisors with 
authority to discharge and promote employees are white.

5* PLAINTIFF GRIGSBY: Appellee erroneously suggests 
that the District Court found Otha Grigsby terminated 
because of non-productivity, negative responses, lack of

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clinical experience and lack of training in a mental 
health discipline. (Brief of Appellee, P.38) In fact, 
the District Court specifically stated that it "does not 
intend . . .  to pass upon the question of whether 
Mr. Grigsby possesses the necessary qualifications for 
the job from which he was discharged, or whether Mr.Van 
Horn possesses qualifications superior to those of Mr. 
Grisby's. The only question which is now before this 
Court and which the Court will address is whether Mr. 
Grigsby's discharge was prompted by illegal motivation, 
that of race." (Tr. Tr. 902) Thus, the Court made no 
effort to compare the qualifications of Mr. Grigsby with 
his predecessor or successor as required by East v. Romine, 

518 F.2d (5th Cir. 1975). It is clear that by 
virtue of his Bachelor and Master's Degrees, several years 
of work experience, and one year of experience with the 
program that Mr. Grigsby possessed qualifications superior 
or at least equal to his successor, Mr. Van Horn, who had 
just finished school and who obtained his clinical 
experience as part of his course study. (Tr. Tr. 749)

6. PLAINTIFF EDDIE BLACK; East v. Romine, Inc., 
supra, was also violated here. It was not shown at trial 
that Buddy Ramage, who previously held the position Mr. 
Black was seeking, had any previous supervisory experience 
or any experience whatsoever over drug or alcoholism 
counselors. If the Medical Center could hire Buddy 
Ramage who did not nave supervisory experience or any

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experience as a drug or alcoholic counselor, why was 
Eddie Black, who had one year of experience with the 
program, two months in-service training, and a 
Certificate in Alcoholism with courses in supervision 
from Atlanta University, not qualified. (Tr. Tr. 471,
472)

Moreover, Eldridge Fleming, Director of Alcoholism
at the Mental Health Complex, acknowledged that Mr. Black
could have handled the Coordinator position with six months
of training; he stated that he did not have time to give
Mr. Black any additional supervisory experience during the
six months the Coordinator position remained vacant.
(Tr. Tr. 245) But Kelly Ferguson, a new employee, admitted
that it took him three or four months to familiarize himself

1/
with the program. (Tr. Tr., 456)

7. PLAINTIFF ESSIE SNEED, testified that she was 
terminated while in the hospital for an injury she re­
ceived on the job. (Tr. Tr., 627) Appellee states that 
there is no evidence to corroborate her testimony that she 
was hospitalized at the time she was terminated. (Brief 
of Defendant-Appellee, P.43) However, since appellee

1/ When the district court ruled on Mr. Black's claim 
it stated that Kelly Ferguson, who replaced Buddy Ramage, 
possessed a Master's Degree. The Court,after being 
reminded that the record did not support such a finding - 
indeed Mr. Ferguson had no credits towards a Masters - 
revised its findings. (Tr. Tr. 912-913)

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presented no evidence to rebut Sneed's testimony, no 
corroboration was necessary. The only witness present­
ed to rebut Sneed's prima facie case was Barry Wright, 
the personnel Manager, and he stated that he did not 
know that Sneed was in the hospital when she was 
terminated. (Tr. Tr., 842)

Appellee is now apparently changing its position with 
regard to Essie Sneed. At trial appellee took the 
position that Sneed was to be denied relief because when 
deposed she stated that she did not believe that race was 
the cause of her termination. (Tr. Tr., 908) However, 
the appellee now concedes that the issue is whether Sneed 
was in fact terminated because of race. The Medical 
Center concedes that it does not terminate white employees 
for absences necessitated by an on-the-job injury; Sneed, 
who is black, was terminated for that reason; the burden 
shifted to the Medical Center to demonstrate why Sneed 
was treated differently. The Medical Center did'not even 
attempt to meet this burden.

Respectfully submitted

MELVYN R. LEVENTHAL 
10 Columbus Circle 
New York, N.Y. 10019

KENNETH MAYFIELD
303^ West Main Street 
Tupelo, MS. 38801

Attorneys for Appellants

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CERTIFICATE OF SERVICE

I hereby certify that copies of the 
foregoing Reply Brief were served by United 
States mail, postage prepaid, on the 10th day 
of May, 1977, on counsel for defendant-appellee 
as follows:

Guy Mitchell, Jr. Esq.
Post Office Box 466
Tupelo, Mississippi 33801