Robinson v Montgomery Ward & Company Inc Petition Writ of Certiorari

    i
No. 87-

In  THE

Supreme Court of tlir United ^tatro
October T erm, 1987

H azel Robinson,
Petitioner,

vs.

Montgomery Ward & C ompany, In c .,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Julius LeVonne Chambers 
Charles Stephen Ralston 

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

P enda D. Hair*
806 15th Street, N.W. 
Suite 940
Washington, D.C. 20005 
(202) 638-3278

A ttorneys fo r  Petitioners

*Counsel of Record



QUESTIONS PRESENTED

1. Is the plaintiff's Seventh Amendment 
right to a jury trial in an employment 
discrimination action violated by entry 
of a directed verdict where the plaintiff 
introduces, in addition to indirect 
evidence under the McDonnell Douglas 
model, direct evidence that the selecting 
official publicly stated his belief that 
"blacks couldn't succeed at anything but 
sports," that this official specifically 
inquired about the race of job 
applicants, and that this official 
selected a white worker who shared his 
racial bias for training and promotion to 
a supervisory position?
2. In order to establish a prima facie 
case of employment discrimination under 
the indirect method of proof established 
in McDonnell Douglas v. Green, is the 
plaintiff required:

i



a) to prove that she applied for a 
job, where the employer 
discouraged her application by 
concealing the existence of the 
vacancy and secretly promoting 
a white worker?

b) to prove that she applied for a 
job, where she repeatedly asked 
for training in the job 
functions and her claim is dis­
criminatory manipulation of 
training opportunities?

c) to prove that she applied for a 
job, where the employer 
admitted that she was actually 
considered for the job and was 
rejected in favor of a white 
worker?

d) to prove that she was equally 
or more qualified for a 
promotion than was the white 
candidate, where the white

ii



candidate became qualified by 
virtue of training which was 
denied to the plaintiff?

e) to prove that the "position 
remained open and the employer 
continued to seek  applicants 
from persons of the plaintiff's 
qualifications," where the job 
was filled by the promotion of 
a white worker?

iii



PARTIES IN THE COURT BELOW

All parties in this matter are set 
forth in the caption.

iv



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ............ i
PARTIES IN THE COURT BELOW . . .  iv
TABLE OF CONTENTS.........  V

TABLE OF AUTHORITIES.....  vii
CITATIONS TO OPINIONS BELOW . . .  2
JURISDICTION .................. 2
STATUTE INVOLVED .............. 3
STATEMENT OF THE CASE...... 4

1. Statement of Facts . . 5
2. Proceedings Below . . .  15

REASONS FOR GRANTING THE WRIT . . 21
I. CERTIORARI SHOULD BE GRANTED

TO CORRECT A PATTERN OF 
IMPROPER USURPATION OF THE 
ROLE OF THE FINDER OF FACT 
IN EMPLOYMENT DISCRIMINATION 
CASES  .......... 21

II. CERTIORARI SHOULD BE GRANTED 
TO RESOLVE A CONFLICT BETWEEN 
THE CIRCUITS ON APPLICATION 
OF THE MCDONNELL DOUGLAS v.
GREEN BURDEN OF PROOF
STANDARDS................ 3 6

v



Page
III. CERTIORARI SHOULD BE GRANTED 

TO RESOLVE A CONFLICT BETWEEN 
THE CIRCUITS ON THE USE OF 
DIRECT EVIDENCE TO ESTABLISH 
A PRIMA FACIE C ASE........ 57

CONCLUSION....................  61

Appendix
Decision of the Court of
Appeals..................  la
Order of the District
Court..............  24a
Judgment................ 41a
Excerpts from TrialTranscript.............. 43a

vi



TABLE OF AUTHORITIES

Cases: Pace
Anderson v. Bessemer City,470 U.S. 564 (1985).......... 22
Babrocky v. Jewel Food Co.,

773 F.2d 857 (7th Cir.1985)........................ 41, 42
Beacon Theatres v. Westover,

359 U.S. 500 (1959) ........ 33
Bell v. Bolger, 708 F.2d 1312 

(8th Cir. 1983) .............. 55
Block v. R.H. Macy & Co., Inc., 

712 F.2d 1241 (8th Cir. 1983). 35
Board of Trustees of Keene State 

College v. Sweeney, 439 U.S.24 (1978).................... 36
Box v. A & P Tea Co., 772 F.2d 

1372 (7th Cir. 1985), cert, 
denied, 106 S. Ct. 3311 (1986)................. 45

Brady v. Southern Railroad,320 U.S. 476 (1943) ........ 24
Burrus v. United Telephone Co., 

683 F.2d 339 (10th Cir.), cert, denied, 459 U.S. 1071 (1982) ...................... 49
Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir. 1984) . . . .  .......... 43

vii



Cases: Page
Continental Casualty Co. v.DHL Services, 752 F.2d 353 

(8th Cir. 1985) ............ 25
Crawford v. Northeastern Okla. 
Univ., 713 F.2d 586 (10th Cir. 1983) ................ 29-30

Curran v. Portland Super School 
Committee, 435 F. Supp. 1063 
(D. Maine 1977) ............ 46

Curtis v. Loether, 415 U.S. 189 (1974) ...................... 23
Donnell v. General Motors Corp., 

576 F.2d 1292 (8th Cir. 1978), 
cert, denied, 459 U.S. 844 (1982) ...................... 52

Easley v. Empire, Inc., 757 F.2d 923 (8th Cir. 1985) ........ 41,42,
48

Flowers v. Crouch-Walker Co.,552 F.2d 1277 (7th Cir.1977) ...................... 30
Foster v. Areata Associates, 

Inc., 772 F.2d 1453 (9th Cir. 1985), cert, denied, 106 
S. Ct. 1267 (1986) .......... 49

Foster v. Tandy Corp., 44 Fair 
Empl. Prac. Cases 1518 (4th Cir., Sept. 16, 1987) . . . . 21, 31

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). . 36, 37
Garner v. Boorstin, 690 F.2d 1034 (D.C. Cir.1982) . . . . .

viii
56



Gifford v. Atchison, Topeka &
Santa Fe Ry. Co., 685 F.2d
1149 (9th Cir. 1982)........ 41, 42

Gunby v. Pennsylvania Elec. Co.,
631 F. Supp. 782 (W.D. Pa.
1985) .................. 35

Hawkins v. Anheuser Busch, Inc.,
697 F.2d 810 (8th Cir. 1983) . 48

Holmes v. Bevilacqua, 794 F.2d
142 (4th Cir. 1986) (en banc) 21

Hunter v. Allis-Chalmers Corp.,
797 F.2d 1417 (7th Cir. 1986) 34

Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir.1987) ...................... 33
James v. Stockholm Valves & Fit­tings Co., 559 F.2d 310 (5th 

Cir. 1977), cert, denied, 434 U.S. 1034 (1978)............ 52
Jayasinghe v. Bethlehem Steel 

Corp., 760 F.2d 132, (7th Cir.1985) .............. 48
Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454 
(1975)...................... 23

Jones v. International Paper 
Co., 720 F.2d 496 (8th Cir.1983) ...................... 51

Cases: Page

ix



Cases: Pace
Jones v. Western Geophysical 

Co., 669 F.2d 280 (5th Cir. 
1982), subsequent proceed­
ings, 761 F.2d 1158 (5th 
Cir. 1985) .................. 30

Kunda v. Muhlenberg College,
621 F.2d 532 (3rd Cir.1980) ...................... 55

Lams v. General Waterworks Corp., 
766 F.2d 386 (8th Cir. 1985) . 45

Lynn v. Regents of University 
of California, 656 F.2d 1337 
(9th Cir. 1981), cert, denied, 459 U.S. 823 (1982) ........ 49

Lytle v. Household Manufacturing Co., No. 86-1097, Slip op.
(4th Cir., October 20, 1987) . 21, 32

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).......... passim
Miles v. MNC Corp., 750 F.2d 867 (11th Cir. 1985) ............ 58-59
Mitchell v. Baldridge, 759 F.2d 

80 (D.C. Cir. 1985) . . . . . 49
Mohammed v. Callaway, 698 F.2d 

395 (10th Cir. 1983) ........ 55
Moore v. City of Charlotte,

754 F.2d 1100 (4th Cir), 
cert, denied, 105 S. Ct. 3489 (1985) ...................... 21,28-31, 33

Mortensen v. Callaway, 672 F.2d 
822 (10th Cir. 1982) . . . . 56

X



Cases; Page
Muldrew v. Anheuser-Busch, Inc.,

728 F.2d 989 (8th Cir. 1984) 35
Osborne v. Cleland, 620 F.2d
195 (8th Cir. 1980) ......... 30
Ostroff v. Employment Exchange,

683 F.2d 302 (9th Cir. 1982) 44
Packing House & Indus. Servs. 
v. NLRB, 590 F.2d 688, 696 
(8th Cir 1978)....... .. 42

Patterson v. McLean Credit Union, 805 F.2d 1143 (4th 
Cir. 1987), cert, granted,
No. 87-107 (October 5,1987) ...................... 21,48,60

Person v. J. S. Alberici Constr.
Co., 640 F.2d 916 (8th Cir.
1981) ......................  30

Pullman-Standard v. Swint,456 U.S. 273 (1982) ........ 23
Ramsey v. American Air Filter Co., 772 F.2d 1303 (7th Cir.1985) ...................... 35, 50
Reed v. Lockheed Aircraft Corp.,

613 F.2d 757 (9th Cir. 1980) . 44, 51
Sterns v. Beckman Instruments,

Inc., 737 F.2d 1565 (Fed.
Cir. 1984).................. 25

Teamsters v. United States,
431 U.S. 324 (1977) ........ 36, 41

xi



Cases; Page
Texas Dept, of Community Affairs 
v. Burdine, 450 U.S. 248 
(1981)...................... 36, 37

Trans World Airlines v. Thurston,
496 U.S. ___, 87 L.Ed.2d 523,
(1985) . ..................... 36

United States Postal Service v.
Aikens, 460 U.S. 711 (1983). . 28,36,

37
Uviedo v. Steves Sash & Door Co.,

738 F.2d 1425 (5th Cir. 1984), 
cert, denied, 106 S.Ct. 791
(1986) ...................... 55

Webb v. City of Chester, 111.,
813 F.2d 824 (7th Cir. 1987) . 34

Whiting v. Jackson State 
University, 616 F.2d 116 
(5th Cir. 1980) ............  30

Williams v. Edward Apffels 
Coffee Co., 792 F.2d 1482 
(9th Cir. 1986) ............  54

Williamson v. Handy Button 
Machine Co., 817 F.2d 1290 
(7th Cir. 1987) ............ 34

Wilmington v. J.I. Case Co.,
793 F.2d 909 (8th Cir. 1986) . 34

Wilson v. United States, 645
F.2d 728 (9th Cir. 1981) . . .  25

Yarbrough v. Tower Oldsmobile,Inc., 789 F.2d 508 (7th Cir.
1986) ...................... 29, 34

xii



Page
Constitution, Statutes and Rules:
U.S. Constitution, Seventh

Amendment.............  23,33
28 U.S.C. § 1254 (1).........  2
42 U.S.C. § 1981.........  passim
42 U.S.C. § 2000e . . . . . . .  5, 16,57
Fed. Rule Civ. Proc. 41(b) . . .  1 7 , 24
Fed. Rule Civ. Proc. 50(a) . . . 16
Other Authorities:
A. Larson, Employment Discrimi­

nation (1987) .............. 30
J. Moore, Moore's Federal

Practice (1985) ............ 25
Petition for Writ of Certiorari,
Anderson v. City of Bessemer,
470 U.S. 564 (1985) ........ 22

Petition for Writ of Certiorari,
Moore v. City of Charlotte,
No. 84-1660 ................  30

xiii



No. 87-

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

HAZEL ROBINSON,

Petitioner,
vs.

MONTGOMERY WARD & COMPANY, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

The petitioner, Hazel Robinson, 
respectfully prays that a writ of 
certiorari issue to review the judgment 
and opinion of the United States Court of 
Appeals for the Fourth Circuit entered in 
this proceeding on July 14, 1987.



2
CITATIONS TO OPINIONS BELOW 

The opinion of the court of appeals 
is reported at 823 F.2d 793, and is set 
out in the appendix to this petition at 
pages la-23a. The Order setting out the 
district court's Findings of Fact and 
Conclusions of Law is unreported and is 
set out in the appendix at pages 24a-40a. 
The judgment of the district court 
dismissing the case is set out in the 
appendix at pages 41a-42a.

JURISDICTION
The judgment of the court of appeals 

affirming the district court's dismissal 
of the case was entered on July 14, 1987. 
App. la. On September 28, 1987, Chief
Justice Rehnquist entered an order 
extending the time for filing a petition 
for writ of certiorari to and including 
November 12, 1987. The jurisdiction of
this Court is invoked under 28 U.S.C. §
1254 (1).



3
STATUTE INVOLVED

This case involves 42 U.S.C. § 1981,
and sections 703(a) and 703(d) of Title
VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2 0 0 Oe-2(a) , 2000e-2(d).
Section 1981 provides:

All persons within the 
jurisdiction of the United 
States shall have the same 
right in every State and Territory to make and enforce 
contracts, to sue, be parties, 
give evidence, and to the full 
and equal benefit of all laws 
and proceedings for the 
security of persons and 
property as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, and to 
no other.

(R.S. § 1977.)
The pertinent provisions of Title 

VII provide:
Sec. 703.(a) It shall be an unlawful employment practice 
for an employer—

(1) to fail or refuse to 
hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his



4

c o m p e n s a t i o n ,  t e r m s ,  conditions, or privileges of 
employment, because of such 
individual's race, color, 
religion, sex, or national origin; or

(2) to limit, segregate, 
or classify his employees or applicants for employment in 
any way which would deprive or 
tend to deprive any individual 
of employment opportunities or otherwise adversely affect his 
status as an employee, because 
of such individual's race, 
color, religion, sex, or 
national origin.

*  *  *

(d) It shall be an 
unlawful employment practice 
for any employer, labor 
organization, or joint labor- 
m a n a g e m e n t  c o m m i t t e e  
controlling apprenticeship or 
other training or retraining, 
including on-the-job training 
programs to discriminate 
against any individual because 
of his race, color, religion, 
sex, or national origin in 
admission to, or employment in, 
any program established to 
provide apprenticeship or other 
training.

STATEMENT OF THE CASE
This is an action to redress 

employment discrimination under section



5
1981 of the Civil Rights Act of 1866, and 
Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §§ 2G00e et seg. Because 
the case involves the propriety of the 
district court1s entry of a directed 
verdict dismissing plaintiffs' claims, 
the facts introduced by plaintiff to 
support her claim are set out in some 
detail below.
1• Statement of Facts

The essence of petitioner's claim is 
that training opportunities were 
manipulated to ensure that a white worker 
received a promotion and that petitioner 
did not receive the promotion. The 
petitioner, Hazel Robinson, worked in a 
small office managed by a white 
supervisor, John Hunt. Hunt, who 
believed and publicly stated that "blacks 
couldn't succeed at anything but sports," 
App. 72a, made the decision to train 
Donna McManus, a white worker, and thus



6
make her eligible for promotion as his 
"ready replacement." At the same time, 
Hunt delayed such training for the three 
black office workers, including 
plaintiff.

Hazel Robinson began her employment 
with defendant Montgomery Ward in June, 
1976, as a keypunch operator. TR 162.1 
Robinson worked at the Charlotte, North 
Carolina terminal facility. Throughout 
her employment Robinson received very 
favorable evaluations, which contained 
specific comments concerning her 
willingness to take on additional tasks, 
to cooperate with others and to learn new 
tasks quickly. TR 34-37. Robinson's co­
workers praised her job performance and 
her ability to get along with others in 
an office often plagued with strife, 
"personality conflicts" and arguments.

-References are to the Transcript of 
the Trial, September 22, 1987.



7
TR 104, 121.

In November, 1979, John Hunt became 
terminal manager and Hazel Robinson's 
supervisor. Plaintiff introduced 
substantial direct evidence that John 
Hunt was racially biased. Hunt publicly 
stated to a group of employees that he 
believed that "blacks couldn't succeed at 
anything but sports." App. 72a.2 On at 
least two occasions Hunt specifically 
inquired about the race of new employees 
who had been hired by his assistant. 
App. 50a, 51a-52a. In addition, Hunt
repeatedly called Robinson "Black 
Beauty," App. 71a-72a, an obvious 
reference to plaintiff's race.

In March, 1981, Hunt hired Donna 
McManus, a white person, as a keypunch 
operator. In contrast to plaintiff, 
Donna McManus was not qualified in terms

2The District Court found that this 
statement was made. App. 33a.



8
of temperament and management ability for 
any supervisory position. McManus 
developed "personality conflicts" with 
most of her co-workers, both black and 
white, and was often involved in loud 
arguments and "outbursts." App. 50a-51a, 
61a-62a, 70a-71a. McManus was rated as 
"frequently uncooperative with others" in 
her 1983 annual evaluation. App. 59a. 
However, this evaluation mysteriously 
disappeared prior to trial and was 
replaced by a more favorable evaluation 
in John Hunt's handwriting. App. 57a- 
60a; TR 38, 39. McManus was described by 
Sue Mack, the employee who completed the 
lost evaluation, as follows: "she did 
not make any attempt to cooperate with 
any of the employees while I was there, 
with the exception of Mr. Hunt." App. 
59a-60a.3

3Even Hunt's evaluation indicated 
that McManus needed to "develop patience 
when dealing with [fellow employees]."



9
Moreover, McManus was known by the 

entire office to have racist feelings. 
When assigned to train a new black 
keypunch operator, McManus complained to 
Hunt that "she didn't have to work with 
that nigger." App. 47a. When notified 
about the hiring of another new, black 
keypunch operator, McManus specifically 
asked the race of the new employee and 
then stated "I hope she's a little bit 
smarter than the other one." App. 52a. 
When later working with the new keypunch 
operator, McManus declared directly to 
John Hunt: "I'm not taking any more of
this g.d. stuff from that nigger." App. 
53a-54a. Hunt responded "its okay." 
App. 54a. Hunt often appeared to comfort 
Donna McManus after she had made racist 
remarks about her black co-workers.

In 1983, the dispatcher at the 
Charlotte terminal began functioning as

TR 30.



10
the "ready replacement" for John Hunt. 
The "ready replacement," a new concept at 
Montgomery Ward, was responsible for 
assuming the duties of the supervisor 
when the supervisor was unavailable due 
to absence, vacation or other reasons. 
In December, 1983, Hazel Robinson, 
knowing that the dispatcher/ready 
replacement position might soon become 
vacant, asked Hunt to allow her to be 
trained on the dispatch functions. App. 
66a. Robinson, the most senior office 
worker, repeated this request on several 
occasions thereafter. App. 67a-68a. 
Training an employee on the dispatch 
duties takes two or three days. App. 
47a-48a.

At first John Hunt agreed to train 
Robinson immediately on the dispatch 
functions. App. 60a. However, Hunt 
later changed the schedule and ordered 
that Donna McManus be trained first on



11
the dispatch functions. App. 61a. In 
May or June, 1984, Robinson renewed her 
request to be trained on the dispatch 
functions because the current dispatcher 
had announced his resignation. A p p . 67a- 
68a. Hunt denied this request, and 
instructed plaintiff to continue training 
the departing dispatcher on the computer, 
even though it was clear that this 
computer training was useless in view of 
the dispatcher's imminent departure. 
App. 68a.

Also at this time, Hazel Robinson 
asked John Hunt whether he intended to 
fill the dispatcher position being 
vacated. App. 69a. Hunt told Robinson 
and at least one other employee that he 
did not intend to fill the position and 
instead was going to spread the 
responsibilities among the remaining 
employees. App. 43a, 62a-64a, 69a.
Donna McManus was assigned to perform



12
most of the dispatch functions. In fact, 
McManus was secretly promoted into the 
position of dispatcher in June, 1984. TR 
51, 69-70. When Hunt decided to fill the 
dispatch position, he did not inform 
Robinson or the other employees that he 
had "changed his mind" about keeping this 
position vacant. App. 44a-45a, 63a. 
Robinson, as well as the other remaining 
employees, assumed that Donna McManus was 
performing the dispatch duties on a "fill 
in" basis. App. 64a-66a. Not until an 
office meeting in September, 1984, were 
the other employees informed that McManus 
had been made dispatcher and "ready 
replacement," and that "you work for 
Donna McManus." App. 64a-66a; TR 178- 
79.4

4Nothing in the record indicates 
that McManus ever made any more formal 
application for the dispatcher/ready 
replacement position than did Hazel 
Robinson. McManus received the dispatch 
training pursuant to a training program 
developed as a result of Robinson's



13
Hunt admitted that Robinson "had the 

qualifications to be considered for the 
job." App. 43a-44a. He further admitted 
that Robinson was considered for the 
position of dispatcher/ready replacement, 
but was rejected in favor of McManus. 
App. 44a.

Approximately a year after the 
September, 1984 meeting, Donna McManus 
was promoted into the higher position of 
shipping control unit management, and 
thus became a part of management. TR 55- 
56. In contrast, approximately two years 
later, Hazel Robinson's position was 
eliminated, and she became unemployed.

request. Whether McManus independently 
applied for the dispatch job or was 
solicited by management for the position 
is unclear from Hunt's own testimony. 
Upon examination by Montgomery Ward's 
counsel, Hunt testified that he found out 
from his supervisor in Chicago that 
McManus was interested in the dispatch 
job. Hunt stated "she had contacted Mr. 
Wiedman in Chicago, or he had contacted 
her. I don't know what the events were." 
TR 63. (emphasis added).



14
TR 188.

Plaintiff's evidence raised serious 
questions about Hunt's credibility. At 
least six clear contradictions on 
material matters existed between the 
testimony of Hunt and the testimony of 
various other witnesses.5 In addition,

5Hunt testified that he did not ask 
the departing dispatcher to train 
plaintiff because he would never have a departing employee train another 
employee. TR 41. However, Hunt admitted that he did ask another departing 
employee to train Donna McManus. TR 41- 
42 .

Hunt testified that he never stated that Gloria Swanner, the former office 
manager, was denied the job of dispatcher because "shipping was a man's world." TR 
12. Gloria Swanner testified that Hunt made this statement to her and that he further said "he would deny it if I ever repeated it." TR 13 6. The District 
Court believed Swanner's version. App. 
28a-29a.

Hunt testified that Sue Mack was not 
a supervisor. TR 16. Plaintiff's 
Exhibit 2 0 showed that Sue Mack was a 
supervisor. TR 17. Hunt denied that 
Donna McManus was removed from training a 
black key punch operator. TR 23. Sue 
Mack testified that this occurred. TR 
112 .



15
the "lost" negative evaluation of McManus 
disappeared while under the control of 
Hunt, and the replacement, favorable 
evaluation was in Hunt's handwriting. 
App. 56a-60a; TR 122.
2. Proceedings Below

The petitioner, Hazel Robinson, 
brought this action on October 1, 198 5,

Hunt denied that he had been aware 
that the departing dispatcher, Joe 
Matthews, was looking for another job, 
until Matthews resigned in June 1984. TR 
40. Matthews testified that he
personally told Hunt in January or 
February, 1984, that he was looking for 
another job. TR 96-97, 100.

Hunt testified at trial that 
plaintiff Hazel Robinson made several 
mistakes on freight bills that Robinson 
was assigned to handle while McManus was 
on maternity leave. Sue Mack testified 
that she was told by Hunt at the time 
that "Hazel was doing fine also, and he 
didn't see any problems." TR 12 0. Hunt 
further testified that he was compelled 
to take this function away from Robinson. 
TR 70-71. However, Mack stated that Hunt 
did not take the freight bills away from 
Hazel Robinson. TR 124. To the 
contrary, Robinson "continued doing it 
and I continued mine, and this is the 
first I've heard of him taking work away 
from either one of us." TR 124-25.



16
in the United States District Court for 
the Western District of North Carolina 
against her former employer Montgomery 
Ward & Co., Inc. The action was brought 
under section 1981 of the Civil Rights 
Act of 1866, 42 U.S.C. § 1981, and Title 
VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. Robinson alleged 
that Montgomery Ward discriminated 
against her because she is black, in 
denying her a promotion to the position 
of dispatcher and "ready replacement" for 
the terminal manager. Robinson requested 
a jury trial.

The case was tried on September 22, 
1986. A jury was impaneled to hear the 
claims under section 1981, while the 
T i t l e  VII claims were heard 
simultaneously by the trial court. At 
the close of plaintiffs' evidence, the 
trial court granted a directed verdict 
under Fed. Rule Civ. Proc. 50(a) in favor



17
of the defendant on the section 1981 
claims. App. 25a. Thus, these claims 
were not submitted to the jury. At the 
same time, the district court entered an 
involuntary dismissal of the Title VII 
claims under Fed. Rule Civ. Proc. 41(b). 
App. 25a. The district court entered 
findings of fact and conclusions of law 
as to the Title VII claim, and indicated 
that these findings were also intended 
"to enunciate the reasons for the Court's 
ruling as to the 1981 claim." App. 25a- 
26a.

The district court ruled that Hazel 
Robinson had never applied for the 
position of dispatcher and therefore did 
not satisfy her burden of proof under
McDonnell Doucrlas Coro. v. Green. 411
u . s . 792 (1973) . App. 39a-40a. The
trial court noted that plaintiff had
asked to be trained for the position of
dispatcher and that her training was



18
delayed, while a white individual, Donna 
McManus, was trained for several months 
in the dispatch duties. App. 29a-31a. 
However, the court ruled that "[e]ven if 
requesting to be trained for dispatcher 
were to be construed as asking for the 
job, ... McManus was more qualified for 
dispatcher than Plaintiff was, since 
McManus had already been trained.” App. 
39a.

The United States Court of Appeals 
for the Fourth Circuit affirmed the 
district court. App. 3a. With regard to 
the Title VII claim, the Fourth Circuit 
held that plaintiff satisfied only one of 
the four-element test for establishing a 
prima facie case set out in McDonnell 
Douglas Corn, v. Green. 411 U.S. at 802. 
App. 11a. The court of appeals held that 
plaintiff did not prove that she applied 
for the position, and thus failed to 
satisfy the second element under



19
McDonnell Douglas. App. 11a. The Fourth 
Circuit further ruled that plaintiff did 
not establish that she was qualified for 
the job or that the job remained open 
after she was rejected and thus failed to 
satisfy the third and fourth elements of 
the McDonnell Douglas formula. App. 11a- 
12a.

With regard to the section 1981 
claim, the Fourth Circuit indicated that 
a plaintiff may carry her burden of 
producing sufficient evidence to go to
the jury "without need to invoke the
McDonnell Doucrlas presumption." App.
15a. The court ruled, however, that
evidence of racial remarks made by the 
selecting official and by the selectee, 
Donna McManus, did not constitute 
"convincing evidence of intentional 
discrimination." App. 17a. As to 
plaintiffs' claim that the training 
schedule had been manipulated to ensure



20
that Donna McManus received the 
promotion, the Fourth Circuit concluded 
the terminal manager had provided "a 
convincing explanation" for his training 
decisions.5 App. 19a. Finally, the 
court of appeals found that defendant's 
failure to post notice of job openings 
was not evidence of an intent to 
discriminate. The court of appeals 
concluded: "In sum, none of the direct
or indirect evidence which the plaintiff 
offers is adequate to persuade the court 
that Montgomery Ward's decision not to 
promote Robinson to dispatcher was 
motivated by intentional discrimination.

5The employer's explanation was that Robinson was the only employee who knew 
the computer operations. TR 65-67. However, the record also reflects that Matthews was the only employee who knew the dispatch operations. The jury could 
reasonably have inferred that it made as much sense to train Robinson first on the dispatch functions as it did to train 
Matthews first on the computer functions. 
In any event, whether the employer's explanation is "convincing" is for the jury to decide.



21
Consequently, the directed verdict on the 
Section 1981 claims was correctly 
granted." App. 21a.

REASONS FOR GRANTING THE WRIT
I.

CERTIORARI SHOULD BE GRANTED TO CORRECT A 
PATTERN OF IMPROPER USURPATION OF THE ROLE OF THE FINDER OF FACT IN EMPLOYMENT 
DISCRIMINATION CASES

In six recent cases7, the Court of
Appeals for the Fourth Circuit has

7In addition to the instant case, 
the question of discriminatory intent was improperly kept from the jury in Patterson v. McLean Credit Union. 805 
F. 2d 1143 (4th Cir.), cert, granted. No. 87-107 (October 5, 1987)(section 1981
claims dismissed on ground that section 
1981 does not cover terms and conditions of employment; jury prevented from giving 
full consideration to Title VII claims by 
jury instruction requiring proof of superior qualifications) ; Lytle v. 
Household Mfq. Inc.. No. 86-1097, slip 
op. (October 20, 1987) ; Foster v. TandyCoro. . 44 Fair Empl. Prac. Cases 1518 
(September 16, 1987) (judgment
notwithstanding the verdict entered 
overturning jury verdict in favor of 
plaintiff) ; Holmes v. Bevilaccrua. 794 
F. 2d 142 (4th Cir. 1986) (en banc) 
(discussed in Part II below); Moore v. 
City of Charlotte. 754 F.2d 1100 (4th 
Cir.), cert, denied. 105 S.Ct. 3489 (1985).



22
evidenced a trend toward improper 
usurpation of the role of the finder of 
fact in employment discrimination cases. 
This trend follows a similar pattern 
identified in the Petition for Writ of 
Certiorari in Anderson v. Bessemer City, 
470 U.S. 564 (1985). The Petition in
that case identified 13 appeals heard by 
the Fourth Circuit over a two year period 
in which the plaintiff had prevailed in 
an employment discrimination case. Of 
those 13 cases, the Fourth Circuit found 
"clear error" in 12. This contrasted 
with no reported Fourth Circuit opinions 
during the period finding "clear error" 
where the lower court had ruled against 
the plaintiff in an employment 
discrimination case. Anderson. Petition 
for Certiorari at 16-17; see also id. at 
13-15.

Since the decision in Anderson. 
devices other than the "clear error" rule



23
have had the same effect of taking away 
from the fact finder the question of 
discriminatory intent. The instant case 
is an example of this pattern. Under 
section 1981, the plaintiff is entitled 
to a jury trial on issues of fact.8 The 
Seventh Amendment is violated when a 
civil litigant is improperly deprived of 
a jury trial. The issue of
discriminatory intent is a question of 
fact, which must be decided on the basis 
of the totality of the plaintiff's 
evidence. Anderson. 470 U.S. at 566, 
573-575; Pullman-Standard v. Swint. 456 
U.S. 273, 285-293 (1982). A directed

8In Curtis v. Loether, 415 U.S. 189, 
194 (1974) , the Supreme Court held that the Seventh Amendment applies to an 
action in federal court to enforce a 
civil rights statute that creates legal rights and remedies. The right to a jury 
trial applies under § 1981 because that 
section affords plaintiffs both equitable 
and legal relief, including compensatory 
and, in some cases, punitive damages. 
Johnson v. Railway Express Agency, Inc. , 
421 U.S. 454, 460 (1975).



24
verdict should be granted under Fed. Rule 
Civ. Proc. 50(a) only when, viewing the 
evidence and the reasonable inferences 
therefrom in the light most favorable to 
the plaintiff and "without weighing the 
credibility of the witnesses there can be 
but one reasonable conclusion as to the 
verdict." Brady v. Southern Railroad, 
320 U.S. 476, 479 (1943),9

9The District Court's finding of 
fact against Robinson on the Title VII 
claim under Fed. Rule Civ. Proc. 41(b) 
does not mean that the jury should not 
have been permitted to find the facts on the § 1981 claim. The district court's
role is much different under Rule 41(b) 
than under Rule 50(a). A dismissal in a 
non-jury case under Rule 41(b) is "on the 
ground that upon the facts and the law 
the plaintiff has shown no right to relief." Fed. Rule Civ. Proc. 41(b) 
(emphasis added). Rule 41(b) by its 
terms applies only "in action tried by 
the court without a jury." Id. The Rule explicitly provides that "the court as 
trier of the facts may then determine 
them." Id. If the court enters a Rule 
41(b) dismissal against the plaintiff, it "shall make findings as provided in Rule 52(a)." Id. In contrast, "[i]n ruling on a motion for directed verdict, the judge must determine if the evidence is such that reasonable minds could differ 
on the resolution of the questions



25
The totality of plaintiff's evidence 

was more than sufficient to create an 
inference of discrimination. Plaintiff's 
case included competent evidence from 
which the jury could have reasonably 
concluded that: 1) the key decisionmaker
had racially stereotyped notions about 
the abilities of black workers10; 2) 
this white manager selected for promotion 
a white employee whose major

presented in the trial, viewing the 
evidence in the light most favorable to 
the plaintiff. On a motion for directed 
verdict, the court may not decide the 
facts itself." Continental Casualty Co. 
v. DHL Services. 752 F.2d 353, 355-56
(8th Cir. 1985). Accord Stearns v. 
Beckman Instruments, Inc., 737 F.2d 1565, 
1567-68 (Fed. Cir. 1984) (judgment under 
Rule 41(b) "need not be entered in 
accordance with a directed verdict 
standard"); Wilson v. United States, 645 
F. 2d 728, 730 (9th Cir. 1981) ("The Rule 
41(b) dismissal must be distinguished 
from a directed verdict under Rule 
50(a)"). See generally V J. Moore, 
MOORE'S FEDERAL PRACTICE 41-175 to 41-179 
(1985).

10Hunt believed that "blacks 
couldn't succeed at anything but sports." 
App. 72a.



26
qualification for a supervisory position 
seemed to be that she shared his racial 
prejudices; 3) the manager concealed the 
existence of the vacancy while secretly 
promoting a white person; 4) this 
manager manufactured a favorable job 
evaluation of the selectee and destroyed 
or failed to produce an unfavorable 
evaluation; 5) plaintiff was highly 
qualified for the dispatch training and 
for the "ready replacement" role; 6) in 
addition to her racist views, which 
obviously made her an inappropriate 
supervisor of black workers, the selectee 
did not have the temperament to be a 
supervisor; and 7) plaintiff made her 
interest in the dispatcher and ready 
replacement position quite clear to the 
employer. P l a i n t i f f  also
introduced considerable evidence to 
discredit the testimony of the 
defendant’s decisionmaker. Plaintiff



27
showed several contradictions that cast 
significant doubt on the employer's 
credibility.11 There can simply be no 
doubt that plaintiff presented sufficient 
evidence to go to the jury. Yet, the 
Fourth Circuit's unduly restrictive 
interpretation of the McDonnell Douglas 
formula, as discussed in Point II below, 
and the Court's independent fact 
finding,12 denied plaintiff of her

11See evidence summarized at note 5, 
supra.

12 The court of appeals found as a 
matter of fact that defendant had 
provided "a convincing explanation" for 
his training decisions and further ruled 
that the case was properly kept from the 
jury because "none of the direct or 
indirect evidence which the plaintiff 
offers is adequate to persuade the court 
that Montgomery Ward's decision not to 
promote Robinson was motivated by 
intentional discrimination." App. 19a, 
21a.

The district court's findings of 
fact under Title VII provide no explanation whatsoever for the court's 
failure to permit the jury to find the 
facts on the section 1981 claim.



28
constitutional right to a jury trial.13

Similarly, the Fourth Circuit in 
Moore v. City of Charlotte. 754 F.2d 
1100, cert. denied. 105 S. Ct. 3489 
(1985), improperly overturned a finding 
of discrimination by the district court, 
sitting as the trier of fact in a bench 
trial. As in the instant case, the court 
in Moore added a requirement to the 
McDonnell Douglas prima facie case.14 In 
that case, the court of appeals ruled 
that the plaintiff must present 
comparative evidence regarding the 
treatment of similarly situated white

13Robinson's evidence in this case was very similar to that offered by the 
plaintiff in United States Postal Service v. Aikens, 460 U.S. 711 (1983), in which the Court ruled that a finding in favor 
of the plaintiff "would [not] be reversible error," id. at 713, n.2.

14Specifically, the Court held that 
the plaintiff must show "that disciplinary measures enforced against the plaintiff were more severe than those 
enforced against" a person of another race who engaged in similar prohibited conduct. 754 F.2d at 1105-06.



29
workers in order to 
facie case of 
discipline.15 The

establish a prima 
discriminatory  
district court in

15The Fourth Circuit's decision in 
Moore to add a requirement that plaintiff 
present comparative evidence in order to 
establish a prima facie case is 
inconsistent with McDonnell Douglas and 
conflicts with the decisions of other 
federal circuits. The Court in McDonnell 
Douglas left no doubt that comparative 
evidence is not a required part of the 
plaintiff's prima facie case, but rather 
may be used to demonstrate pretext. In McDonnell Douglas, as in Moore. the 
alleged reason for the employer's adverse 
decision was misconduct by the plaintiff. 
Yet, in McDonnell Douglas, the Court assigned comparative evidence to the 
pretext stage: "Especially relevant to
[a showing that the employer's stated reason was a pretext] would be evidence that white employees involved in acts against petitioner of comparable seriousness to the 'stall-in' were 
nevertheless retained or rehired." 411 
U.S. at 804. Even at the pretext stage, comparative evidence was not absolutely 
required, but only one of many types of evidence that might be sufficient to prove discriminatory intent. Id. at 804- 
805.

The Moore Court's addition of an 
element to the prima facie case of 
discriminatory discharge also conflicts with the decisions of other federal 
circuits. E.g.. Yarbrough v. Tower 
Oldsmobile, Inc.. 789 F.2d 508 (7th Cir. 
1986); Crawford v. Northeastern Okla.



30
Moore found that white officers who had 
committed violations of comparable 
severity to those committed by the 
plaintiff were not disciplined at all. 
See Petition for Writ of Certiorari, 
Moore v. City of Charlotte. No. 84-1660, 
at 43a, 45a. The court of appeals 
reversed on the ground that the plaintiff 
had not established a prima facie case 
because the offenses committed by the 
white officers were not "similar." 754 
F.2d at 1105-06. The district court 
further ruled the explanation offered by 
the defendant for the disparate treatment

Univ., 713 F.2d 586, 588 (10th Cir.
1983) ; Jones v. Western Geophysical Co.. 669 F.2d 280, 284-85 (5th Cir. 1982),
subsequent proceedings. 761 F.2d 1158
(5th Cir. 1985); Person v. J. S. Alberici 
Constr. Co. . 640 F.2d 916, 919 (8th Cir.1981); Osborne v. Cleland. 620 F.2d 195 
(8th Cir. 1980); Whiting v. Jackson State 
University. 616 F.2d 116, 121 (5th Cir.
1980); Flowers v. Crouch-Walker Co.. 552 
F. 2d 1277, 1282 (7th Cir. 1977). See
also 3 A. Larson, EMPLOYMENT DISCRIMINATION 17-54 (1987).



31
of white and black officers was a "sham." 
Petition at 44a. This finding was also 
reversed on the ground that since the
plaintiff did not establish a prima facie 
case, the credibility of defendant's 
reason should never have been reached. 
754 F.2d at 1110.

In Foster v. Tandy Corp. , 44 Fair
Empl. Prac. Cases 1518 (September 16,
1987) , the Fourth Circuit upheld entry of 
a judgment notwithstanding the verdict, 
overturning a jury verdict in favor of 
the plaintiff in a section 1981 action 
claiming employment discrimination. The 
court ruled that "only evidence which
shows the 'probability' and not mere 
•possibility' of discriminatory 
m o t i v a t i o n  w i l l  a llow jury 
consideration." Id. at 1520. Thus, 
before the jury is allowed to decide 
whether discriminatory motive is more 
probable than not, the court must make



32
the same determination. In Foster, the 
jury's verdict was overturned despite 
plaintiff's introduction of significant 
statistical and other evidence of 
discrimination. Id. at 1521-22.

The plaintiff in Lytle v. Household 
Manufacturing Inc., No. 86-1097, slip op. 
(4th Cir. , October 20, 1987), also was
improperly deprived of a jury trial. 
Because this case fits into the pattern 
of usurpation of the role of the 
factfinder, the Lytle facts and decision 
are briefly summarized in the note 
below.15 16

16Several errors of law resulted in the deprivation of the right to a jury trial in the Lytle case. The district 
court incorrectly dismissed the 
plaintiff's claims under section 1981 on the ground that Title VII provides the exclusive remedy for employment discrimination. With the dismissal of 
the section 1981 claims, plaintiff lost his right to a jury trial. Then, the 
plaintiff's claims of discriminatory 
discharge and retaliation were decided against the plaintiff by the district 
court in a bench trial. Slip op. at 4. The court of appeals held that the



33
This trend of usurpation of the role 

of the finder of fact is particularly 
disturbing when it involves the 
constitutional right to a trial by jury. 
In those instances, improper dismissal 
violates the plaintiff's rights under the 
Seventh Amendment. Protection of the

district court had incorrectly dismissed 
the section 1981 claims. Id. at n. 2. 
However, the court further ruled that the 
trial court's findings of fact on the 
Title VII claim operated to collaterally 
estop the jury with respect to the facts found by the district court. Id. at 5. 
This ruling is clearly inconsistent with 
Beacon Theatres v. Westover. 359 U.S. 
500, 508-512 (1959), and squarely 
conflicts with a ruling by the Seventh 
Circuit on the same question, Hussein v. 
Oshkosh Motor Truck Co. . 815 F.2d 348, 
355-356 (7th Cir. 1987).

Second, the court of appeals in 
Lvtle adopted an extremely restrictive interpretation of the prima facie case 
requirements, in upholding the district court's conclusion that plaintiff did not 
make out a prima face case of discriminatory discharge. The Court essentially construed Moore v. City of Charlotte to require the plaintiff to introduce evidence that white workers committed the identical disciplinary infraction in order to establish a prima 
facie case. Id. at 6-7.



34
right to trial by jury on employment 
discrimination claims under section 1981 
is of increasing importance. In recent 
years, plaintiffs seeking relief from 
employment discrimination have frequently 
exercised their right to a jury trial 
under section 1981, often with great 
success.17 The Court should grant the

17See e.q. . Williamson v. Handy 
Button Machine Co.. 817 F.2d 1290 (7th
Cir. 1987)(upholding jury verdict of 
racial harassment and discriminatory
discharge and award of $150,000 in 
compensatory damages and $100,000 in 
punitive damages); Webb v. City of 
Chester. 111.. 813 F.2d 824 (7th Cir.
1987) (upholding jury verdict of sex 
discrimination in discharge and award of 
$30,000 in compensatory damages); Hunter 
v. Allis-Chalmers Coro. . 797 F.2d 1417
(7th Cir. 1986)(upholding jury verdict in 
favor of plaintiff on claims of racial 
harassment and discriminatory discharge
and award of $25,000 compensatory damages 
and $25,000 punitive damages; remanding 
for recomputation of backpay award); Wilmington v. J.I. Case Co.. 793 F.2d 909 
(8th Cir. 1986)(affirming jury verdict of 
racial discrimination in terms and 
conditions of employment and discharge 
and awarding $400,000 in compensatory 
damages and $40,000 in punitive damages); 
Yarbrough v. Tower Oldsmobile, Inc.. 789 F. 2d 508 (7th Cir. 1986) (upholding jury 
verdict of racially discriminatory



35
writ of certiorari in order to make clear 
that neither overly formalistic burden of 
proof standards nor independent fact 
finding by the courts of appeals should 
be used to take the factual 
determinations away from the jury or the 
district court.

discharge and punitive damage award in case where jury awarded $29,500 in compensatory damages and $7,500 in 
punitive damages); Ramsey v. American 
Air Filter Co.. Inc.. 772 F.2d 1303 (7th Cir. 1985) (upholding finding of racial 
discrimination in terms and conditions of 
employment, discriminatory layoff and 
failure to transfer; reducing award of 
$75,000 in compensatory damages to 
$35,000 and $150,000 in punitive damages 
to $20,000); Muldrew v. Anheuser-Busch. 
Inc. . 728 F. 2d 989, 992 & n.l (8th Cir.
1984)(upholding jury verdict of racially 
discriminatory discharge and damage award of $125,000); Block v. R.H. Macv & Co., 
Inc.. 712 F.2d 1241 (8th Cir. 1983)
(upholding jury verdict of racial 
harassment and discriminatory discharge 
and award of $20,000 in compensatory 
damages and $ 60,000 in punitive
damages); Gunbv v. Pennsylvania Elec. 
Co. . 631 F. Supp. 782 (W.D. Pa. 1985)
(plaintiff demanded jury trial on section 
1981 and Title VII claims; demand struck 
as to Title VII claims).



36
II.

CERTIORARI SHOULD BE GRANTED TO RESOLVE A CONFLICT BETWEEN THE CIRCUITS ON 
APPLICATION OF THE McDONNELL DOUGLAS v. GREEN BURDEN OF PROOF STANDARDS

In McDonnell Douglas Corn, v. Green, 
and subsequent cases18 the Court has 
developed and refined a three-stage 
method of proof for individual Title VII 
cases. This model of proof applies in 
situations where the plaintiff does not 
present either direct or circumstantial 
evidence of a general policy of 
discrimination,19 but instead attempts to 
show through indirect evidence that a 
particular adverse decision was 
discriminatory.

18Board of Trustees of Keene State 
College v. Sweeney. 439 U.S. 24 (1978) ;
Furnco Construction Coro, v. Waters. 438 
U.S. 567 (1978); Texas Dept. of
Community Affairs v, Burdine. 450 U.S. 
248 (1981); United States Postal Servicev. Aikens. 460 U.S. 711 (1983).

19Trans World Airlines v. Thurston.
496 U.S. __, 87 L.Ed.2d 523, 533 (1985);Teamsters v. United States. 431 U.S. 324, 359-60 & n.45 (1977).



37
Under the McDonnell Douglas model, 

the plaintiff first has the burden of 
establishing a prima facie case. 
McDonnell Douglas. 411 U.S. at 802; Texas 
Dept, of Community Affairs v. Burdine, 
450 U.S. 248, 252-53 (1981).20 The
McDonnell Douglas opinion set out one 
combination of facts which is sufficient 
to make out a prima facie case and shift 
the burden of production to the 
defendant. "This may be done by showing 20

200nce the plaintiff establishes a prima facie case, the burden shifts to the defendant to "producte] evidence" that its decision was based on "a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254. The
defendant's burden is one of production, not proof. "If the defendant carries its 
burden of production, the presumption 
raised by the prima facie case is 
rebutted and the factual inquiry proceeds to a new level of specificity." Burdine, 
450 U.S. at 255. The fact finder must then decide, based upon all of the 
evidence, the ultimate question whether 
the defendant acted with discriminatory intent. United States Postal Service v, 
Aikens. 460 U.S. at 715-717. The
plaintiff retains the burden of 
persuasion on this question. Burdine, 
450 U.S. at 256.



38
(i) that [the plaintiff] 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. The 
Court stressed that "[t ]he facts 
necessarily will vary in Title VII cases, 
and the specification above of the prima 
facie proof required from [plaintiff] is 
not necessarily applicable in every 
respect to differing factual situations." 
Id. at n. 13.21

The court of appeals below adopted 
an improper, extremely rigid definition

21This method of proof "was not 
intended to be an inflexible rule." 
Furnco Construction Corp. v. Waters. 438 U.S. at 567.



39
of each of the factors in the McDonnell 
Douglas formula except the plaintiff's 
race. With respect to each of these 
factors, the court of appeals' definition 
of what satisfies the prima facie case 
requirement is inconsistent with the 
decisions of this Court and is in 
conflict with the decisions of other 
circuits.

Application requirement. The court 
of appeals here ruled that plaintiff was 
not able to prove that she applied for 
the dispatcher position.22 This 
decision is based on three conclusions of 
law which are inconsistent with this 
Court's rulings and in conflict with 
decisions of at least four federal courts 
of appeals. First, the court of appeals

22Because this is a jury case, the 
proper test is whether the plaintiff 
introduced sufficient evidence to permit 
the jury to conclude that she had 
established the elements of a prima facie 
case.



40
adopted the district court's reasoning 
that an application for training in a 
job's functions does not satisfy the 
McDonnell Douglas requirement that the 
plaintiff show that she "applied ... for 
a job," 411 U.S. at 802.23 Second, the 
Fourth Circuit's decision also holds that 
the employer's failure to give notice of, 
or even intentional concealment of, the 
vacancy is insufficient to relieve 
plaintiff of the burden of showing that 
she applied.24 Third, the court 
implicitly ruled that the plaintiff must 
meet the technical requirement of filing 
a formal application, even though she was 
actually considered for the job and the 
existence of a formal application would

23The court of appeals stated: 
"Although Robinson did ask for training, she did not apply for the position of dispatcher." App. 6a.

2 4The court of appeals stated: 
"Robinson alleged at trial that she did 
not know that the position was open." App. 6a.



41
not have resulted in a different 
decision.

This Court and other courts of 
appeals have held that the "application" 
element must be flexibly applied to fit 
the circumstances of the case and the 
nature of the claim. For example, in 
Teamsters v. United States. 431 U.S. 324, 
365-67 (1977), the Court held that no
application need be made where it would 
be futile or where the employer has 
discouraged protected group members' 
application.25

The court of appeals' literal

25Although the Teamsters' ruling on this issue was made in the context of 
remedy proceedings following a finding 
that the employer had engaged in a pattern and practice of discrimination, the principle that the application requirement must be flexibly construed is equally applicable in the McDonnell Douglas context. E.q., Babrockv v. Jewel 
Food Co.. 773 F. 2d 857, 867 (7th Cir.1985); Easley v. Empire. Inc.. 757 F.2d 
923, 930 (8th cir. 1985); Gifford v.
Atchison, Topeka & Santa Fe Ry. Co.. 685 
F.2d 1149, 1154 (9th Cir. 1982).



42
interpretation of the application 
requirement is inconsistent with 
Teamsters. The employer here not only 
discouraged the plaintiff from applying, 
but actually prevented her application by 
concealing the vacancy. Additionally, 
the ruling is inconsistent with the 
holding in Teamsters and in decisions of 
at least three circuits, that the 
application requirement is satisfied 
where the filing of an application would 
be futile. Babrockv v. Jewel Food Co.. 
773 F. 2d 857, 867 (7th Cir. 1985);
Easley v. Empire, Inc.. 757 F.2d 923, 930 
(8th Cir. 1985); Gifford v. Atchison. 
Topeka & Santa Fe Rv. Co.. 685 F.2d 1149, 
1154 (9th Cir. 1982). Cf. Packing House 
& Indus. Servs. v. NLRB. 590 F.2d 688, 
696 (8th Cir. 1978). In this case, the 
defendant admitted that Robinson was 
actually considered for the dispatcher 
position but was rejected in favor of



43
McManus.26 App. 44a. Because the filing 
of a formal application would not have 
resulted in a different decision, it 
would have been futile for Robinson to 
apply.

The Fourth Circuit's conclusion that 
the employer's concealment of a vacancy 
does not relieve the plaintiff from the 
application requirement conflicts with 
decisions of three other circuits. These 
circuits hold that the plaintiff is not 
required to apply if the employer's 
actions prevented her from knowing about 
the vacancy. In Carmichael v, Birmingham 
Saw Works. 738 F.2d 1126 (1984), the 
Court of Appeals for the Eleventh Circuit

26The purpose of the application 
requirement is to eliminate one possible nondiscriminatory reason for the 
employer's decision —  that it did not 
consider plaintiff for the position because it did not know that she was interested. Carmichael v. Birmingham Saw Works. 738 F.2d 1126, 1133 (11th Cir.1984). Where employer actuallyconsidered plaintiff, this purpose is met.



44

held that "the plaintiff was not required 
to ask for that specific job because he 
had no way of knowing about its 
availability." Id. at 1132. The 
Eleventh Circuit in Carmichael thus 
concluded that the plaintiff satisfies 
the application requirement where the 
defendant "had any reason to think the 
plaintiff was interested in the ... job." 
Id. at 1134.

Similarly, the Ninth Circuit held in 
Reed v. Lockheed Aircraft Coro., 613 F.2d 
757, 761, 762 (1980), that the plaintiff
does not have to show that she applied 
when "she had no notice of an opening." 
And in Ostroff v. Employment Exchange. 
683 F.2d 302, 304 (1982), the Ninth
Circuit held that the plaintiff had met 
the application requirement under 
McDonnell Douglas where she inquired 
about the availability of a position and 
was incorrectly told that the position



45
had already been filled.

Also, the Seventh Circuit has 
concluded that where the employer "had no 
system to ensure that all interested 
employees could apply for a job," the 
application requirement is met by 
"showing that, had [the plaintiff] known 
of [an] opening, she would have applied." 
Box v. A & P Tea Co. . 772 F.2d 1372, 
1376, 1377 (1985), cert, denied. 106 S. 
Ct. 3311 (1986).27

The ruling that Robinson did not 
satisfy the application requirement 
conflicts with Carmichael. Reed. Ostroff. 
and Box. In the instant case, the 
company admitted that plaintiff was told 
that the dispatch position was not going 
to be filled and that McManus was then

2 7 See also Lams v. General 
Waterworks Coro.. 766 F.2d 386, 393-94
(8th Cir. 1985).



46
secretly promoted into that position.28

28John Hunt, the defendant's
terminal manager, testified as follows:

Q. Now, after Mr. Matthews 
announced that he was going to 
resign, Ms. Robinson approached 
you about what you were going 
to do about filling his
position, didn't she?
A. That's correct.
Q. What did you tell her, Mr.
Hunt?
A. I told her at this point in 
time we had no immediate plans to fill the position. We were going to try to consolidate the activity and reduce man hours.

*  *  *

Q. Now, when you changed your mind about filling the
dispatcher position, you didn't 
inform Ms. Robinson that youhad made that change of mind?
A. No, I didn't. No.

App. 43a, 44a-45a.
Where the defendant "intentionally 

did not provide [plaintiff] with notice 
of the job opening, thus depriving her
... of the opportunity to apply," the
McDonnell Douglas application requirement 
is satisfied. Curran v. Portland Super. 
School Committee. 435 F. Supp. 1063, 1072 (D. Maine, 1977).



47
In addition, Montgomery Ward had reason 
to know that Robinson was interested in 
the dispatcher position from her repeated 
requests for dispatch training.

Qualification requirement. The 
court of appeals ruled that plaintiff did 
not satisfy the McDonnell Douglas 
requirement that she "was qualified" for 
the dispatcher position. This ruling is 
inconsistent with the defendant's own 
admission that Robinson "had the 
qualifications to be considered for the 
job." App. 44a. In upholding the 
directed verdict, the court of appeals 
a d o p t e d  the district court's 
determination that McManus was more 
qualified because in the few months 
before the promotion was secretly made, 
McManus had been trained for the 
promotion. App. 11a.

The Fourth Circuit's ruling means 
that the plaintiff must establish that



48
her qualifications are superior to those 
of the selectee in order to make out a 
prima facie case and have the facts 
decided by the jury. The question of 
whether the plaintiff must, at either the 
prima facie case stage or the pretext 
stage, prove that her qualifications were 
superior to those of the selectee is 
currently before the Court in Patterson 
v. McLean Credit Union. No. 87-107 (cert, 
granted October 5, 1987). The Fourth
Circuit's apparent conclusion that 
plaintiff bears this burden at the prima 
facie case stage has been squarely 
rejected by the five other federal 
circuits that have considered the 
question.29

29Seventh Circuit: Javasinghe v.Bethlehem Steel Coro.. 760 F.2d 132, 134- 
35 (1985).

Eighth Circuit: Hawkins v. Anheuser 
Busch. Inc. . 697 F.2d 810, 813 (8th Cir.
1983) . See also Easley v. Empire, Inc.. 
757 F.2d at 923, 930 n. 8.



49
The Fourth Circuit's ruling that the 

relative qualifications of the candidates 
are determined after the white worker has 
been trained conflicts with decisions of 
two other circuits that have addressed 
claims of training discrimination. Where 
the claim is discriminatory denial of 
training that would have enabled the 
plaintiff to obtain a promotion, the 
courts of appeals for the Seventh and 
Ninth Circuits have held that the 
qualification requirement is applied at

Ninth Circuit: Foster v. Areata
Associates, Inc.. 772 F.2d 1453, 1460
(9th Cir. 1985), cert, denied, 106 S. Ct. 
1267 (1986); Lynn v. Regents of
University of California. 656 F.2d 1337, 
1344-45 (9th Cir. 1981), cert, denied, 
459 U.S. 823 (1982).

Tenth Circuit: Burrus v. United
Telephone Co.. 683 F.2d 339, 342-43 (10th 
Cir.), cert. denied, 459 U.S. 1071 
(1982) ;

District of Columbia Circuit: 
Mitchell v. Baldridge. 759 F.2d 80, 85
(D.C. Cir. 1985).



50
the time the training decision is made. 
The Seventh Circuit's ruling in Ramsey v. 
American Air Filter Co. , 772 F.2d 1303
(1985), involved a factual situation 
almost identical to the instant case. 
The plaintiff asked for training to 
enable him to bid on a promotion. The 
employer instead trained two white 
workers, and then asserted that the 
plaintiff had not been promoted because 
he lacked the training for the job. The 
court ruled that plaintiff's evidence was 
sufficient to support the jury's verdict 
of intentional discrimination. Id. at 
1308-09.30

30The Fourth Circuit attempted to 
distinguish Ramsey on the ground that in 
that case the plaintiff was specifically told that he would not be trained, while 
Robinson was promised training which the 
employer never delivered. App. 18a-19a. 
However, the court of appeals below did not explain why misleading a black 
employee about the availability of 
training is any less objectionable than admitting to the black employee that he 
will not be trained.



51
The Ninth Circuit has similarly 

concluded that a plaintiff may establish 
a prima facie case of discriminatory 
denial of training where "other employees 
of her ability and experience were 
considered [for training and promotion] 
and she was not." Reed v. Lockheed 
Aircraft Coro.. 613 F.2d at 761.31

The Fourth Circuit also attempted to 
distinguish Ramsey on the ground that "there is no evidence that Hunt was 
responsible for McManus' application for the position of dispatcher," App. 19a, 
while the employer in Ramsey encouraged a 
white worker to apply. However, Hunt's selection of McManus to receive the 
dispatch training obviously encouraged 
her to apply and had the same effect as 
in the Ramsey case of manipulating the process so that a white could be 
promoted.

31The Fourth Circuit's ruling also 
conflicts with several court of appeals 
decisions addressing claims of classwide 
discrimination in training opportunities. 
These cases establish that where the 
employer offers training opportunities 
that lead to higher level jobs, the 
analysis of whether minority employees 
applied and were qualified occurs at the time the training decisions were made, 
not later when the promotion decisions 
were made. E.g.. Jones v. International 
Paper Co. . 720 F.2d 496 (8th Cir. 1983);



52
In this case, prior to February, 1984, 
when McManus commenced the dispatch 
training, neither she nor Robinson had 
any significant dispatch experience. 
Thus, they each apparently met the 
minimum qualification for such training, 
which was simply to be an employee 
available for cross-training.

Position remained open requirement. 
The Fourth Circuit ruled that plaintiff 
also failed to establish that the 
"position remained open and the employer 
continued to seek applicants from persons 
of the plaintiff's qualifications." App. 
lla-12a. The reasoning behind this 
conclusion is set out in the court's en 
banc decision in Holmes v. Bevilacoua. 
794 F.2d 142 (1986). The Fourth Circuit 
ruled in Bevilacoua that the plaintiff

Donnell v. General Motors Coro.. 576 F.2d 
1292, 1296-1297, 1301 (8th Cir. 1978); James v. Stockholm Valves & Fittings Co.. 
559 F.2d 310, 340-45 (5th Cir. 1977), 
cert, denied. 434 U.S. 1034 (1978).



53
cannot meet the "position remained open" 
requirement where a white applicant is 
immediately selected and the vacancy 
ceases to exist.32 Under this ruling, 
where a qualified minority applies for a 
position and a decision is made right 
away to select a white candidate and to 
reject the minority applicant, the 
McDonnell Douglas indirect method of 
proof is effectively eliminated.

The Fourth Circuit's literal

32The Court reasoned:
Without the fourth prong of the 
McDonnell Douglas proof scheme, 
any qualified minority 
applicant who is denied 
promotion could make out a 
prima facie case by merely 
proving his race, his 
qualifications, and his failure 
to be promoted. The proof of 
the first three prongs of the 
scheme only sets the stage for 
the fourth, which tips the 
scale in favor of a prima facie case, because the fourth prong 
requires proof that points 
toward illegal discrimination.

Id. at 147.



54
application of the "position remained 
open" element conflicts with the 
decisions of six other circuits. These 
courts have held that McDonnell Douglas' 
fourth element is satisfied where a 
qualified plaintiff competes for the 
position and is immediately rejected in 
favor of a white candidate. For example, 
in a ruling directly contrary to the 
Fourth Circuit's position, the Ninth 
Circuit held that to satisfy the fourth 
element the plaintiff need only show 
"that the position remained open after a 
qualified candidate applied for the job, 
and that someone else was ultimately 
selected." Williams v. Edward Apffels 
Coffee Co.. 792 F.2d 1482, 1485 (1986).33

33The Ninth Circuit reasoned:
The Magistrate concluded that 
[plaintiff] was simply part of 
a pool of applicants from which 
Apffels chose a permanent 
employee, and that therefore 
the job did not "remain open" 
after [plaintiff's] rejection.



55
The Third Circuit, Kunda v. 

Muhlenberg College. 621 F.2d 532, 545-46 
(1980), the Fifth Circuit, Uviedo v. 
Steves Sash & Door Co. , 738 F.2d 1425,
1428 (1984), cert, denied. 106 S.Ct. 791
(1986), the Eighth Circuit, Bell v. 
Bolger, 708 F.2d 1312, 1316-17 (1983),
the Tenth Circuit, Mohammed v. Callaway,

However, the Supreme Court did 
not intend that the McDonnell 
Douglas requirements be read 
inflexibly....
In a factual situation similar to the one here, the Court demonstrated the flexibility of 
the fourth requirement. Quoting the McDonnell Douglas language just cited, the Court 
in Burdine held that a Title VII plaintiff was able to make 
out a prima facie case by showing that she was a qualified applicant who sought an available position, even though the position was filled by a man at the moment of her rejection. See 450 U.S. at 254 
n. 6 ... [Plaintiff] , then,does not have to show that any 
discrete period of time elapsed 
between the moment he was rejected and the moment someone 
else was hired[.]



56
698 F. 2d 395, 398 (1983); Mortensen v.
Callaway, 672 F.2d 822, 823 (1982), and
the District of Columbia Circuit, Garner 
v. Boorstin, 690 F.2d 1034, 1036, n.4
(1982), all agree that where the vacant 
position is filled immediately, the 
plaintiff can meet the fourth prong of 
McDonnell Douglas by showing that a non­
minority was selected.

*  *  *

The Fourth Circuit's decision below 
thus adopts an unduly strict and 
inflexible standard with respect to all 
but one of the elements of the McDonnell 
Douglas formula, in conflict with the 
decisions of this Court and the other 
federal courts of appeals. The Fourth 
Circuit's rigid application of the 
McDonnell Douglas formula to a claim of 
discriminatory training is particularly 
disturbing. Title VII includes a
separate provision explicitly prohibiting



57
discrimination in training opportunities. 
Section 703(d), 42 U.S.C. § 2000e-2(d). 
The Court should grant certiorari to 
address the important question of proof 
of a prima facie case under McDonnell 
Douglas and to resolve the numerous 
conflicts between the decision of the 
Fourth Circuit and the decisions of other 
federal circuits on this issue.

III.
CERTIORARI SHOULD BE GRANTED TO RESOLVE A CONFLICT BETWEEN THE CIRCUITS ON THE USE OF DIRECT EVIDENCE TO ESTABLISH A PRIMA 
FACIE CASE

The Fourth Circuit dismissed 
plaintiff's substantial direct evidence 
of discriminatory intent, stating: "the 
trial court failed to find convincing 
evidence of intentional discrimination, 
[and] [w]e concur that the plaintiff did 
not present strong, direct evidence of 
intentional discrimination through her 
evidence of racial remarks." App. 17a. 
Yet, this was a case in which the



58
plaintiff had a constitutional right to 
have the facts decided by the jury. In 
upholding the directed verdict, the court 
thus held that plaintiff's direct and 
circumstantial evidence was not 
sufficient to establish a prima facie 
case.

The Fourth Circuit's ruling is 
contrary to the decision of the Eleventh 
Circuit in Miles v. MNC Coro. . 750 F.2d
867 (1985). In Miles the plaintiff
presented evidence of a racial slur made 
by an official who influenced hiring 
decisions. A former employee of the 
defendant testified that she had asked 
the hiring official "why they didn't have 
any blacks," and that he replied: "Half
of them weren't worth a shit." Id. at 
874. The Eleventh Circuit ruled that the 
plaintiff had introduced direct evidence 
of a discriminatory motive. Thus, the 
trier of fact should first determine



59
whether it believes the evidence. Id. at 
87 5. If so, this establishes the 
existence of a discriminatory motive. 
The burden of proof then shifts to the 
defendant to prove that it would have 
made the same decision in the absence of 
the illegal motive. Id. at 875-876.

The facts of the instant case are 
almost identical to those in Miles v. MNC 
Coro. Both cases involved a single 
racial slur that directly denigrated the 
work abilities of blacks. In both cases 
the remark was made by the decisionmaker 
involved in the decision challenged by 
the plaintiff. The direct evidence in 
this case is even stronger, since the 
person selected for the promotion also 
was known to be racially biased. Yet, in 
this case the trier of fact —  the jury 
—  was never given the opportunity to 
determine whether it believed the direct 
evidence. The court of appeals' ruling



60
upholding the withdrawal of this case 
from the jury thus directly conflicts 
with the Eleventh Circuit's ruling in 
Miles.

The use of direct evidence to 
establish discriminatory intent also is 
an issue in Patterson v. McLean Credit 
Union, cert, granted. No. 87-107 (October 
5, 1987) , a case in which the district
court's jury instruction prevented the 
jury from giving full weight to the 
plaintiff's direct evidence, 805 F.2d 
1143 (4th Cir. 1987).



61
CONCLUSION

For the reasons stated, certiorari 
should be granted and the decisions below 
reversed.

JULIUS LeVONNE CHAMBERS CHARLES STEPHEN RALSTON 99 Hudson Street 
New York, N.Y. 10013 (212) 219-1900

PENDA D. HAIR*806 15th Street, N.W. 
Suite 940Washington, D.C. 20005 (202) 638-3278

Attorneys for Petitioners
*Counsel of Record

November 12, 1987



APPENDIX



la
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 86-3156
Decided: July 14, 1987

HAZEL H. ROBINSON,
Plaintiff-Appellant,

versus
MONTGOMERY WARD AND COMPANY, INC., 

Defendant-Appellee.

Before WIDENER and HALL, Circuit Judges, and HOFFMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
HOFFMAN, Senior District Judge:

The plaintiff-appellant, Hazel H.
Robinson, brought this individual
employment discrimination action against
the defendant-appellee, Montgomery Ward
and Company, Inc. Robinson alleged
violations of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e, and of 42



2a
U.S.C. § 1981 arising from the company's 
decision to promote a white female 
instead of the plaintiff, a black female, 
to the position of dispatcher.

The Honorable Robert D. Potter, 
C.J., heard Robinson's Title VII claims; 
a jury heard the Section 1981 claims. At 
the close of the plaintiff's evidence the 
district court granted Montgomery Wards 
motion for a directed verdict on the 
Section 1981 claims and motion for 
involuntary dismissal on the Title VII 
claims.

After entering Findings of Fact and 
Conclusions of Law pursuant to Fed. R. 
Civ. P. 52, the district court entered 
judgment for the defendant on both the 
Title VII and the Section 1981 claims, 
holding that Robinson had failed to offer 
any direct or indirect evidence of racial 
discrimination.



3a
We AFFIRM the judgment of the 

district court.
FACTS

Hazel H. Robinson was first hired by 
Montgomery Ward as a temporary employee 
from March 1976 to June 197 6. Subse­
quently, Robinson was a full time 
employee of Montgomery Ward from June 
1976 until her job was eliminated and she 
was laid off on September 12, 1986.
Initially the plaintiff was hired as a 
key punch operator. In 1979 the office 
manager, Gloria Swanner, promoted 
Robinson to computer operator, a position 
for which Robinson was largely self- 
trained. At the time the plaintiff began 
to work for Montgomery Ward at its 
Washburn Avenue facility in Charlotte, 
North Carolina, the company employed in 
excess of fifty persons there, working in 
three shifts. In June 1983 the defendant



4a
closed its facility on Washburn Avenue 
and contracted with Thurston Motor Lines 
for its dock activity.

Simultaneous with this change, 
Montgomery Ward created a new position, 
dispatcher, a "ready replacement" for the 
terminal manager, John Hunt. Joseph 
Matthews, a white male, was appointed 
dispatcher, a position which had no 
official supervisory responsibilities 
attached until June 1984. At the time of 
Matthew's appointment, Gloria Swanner 
asked Hunt why she was passed over for 
the dispatcher position. When Hunt 
responded that the dock was a man's world 
where foul language abounded, Swanner 
resigned. In the waning months of 1983, 
the plaintiff learned that Matthews 
planned to leave Montgomery Ward because 
of his dissatisfaction with the working 
conditions. At this point, Robinson



5a
requested that she be trained in the 
skills necessary to become the dis­
patcher. Hunt's response was that he 
intended to "cross-train" all of the five 
employees remaining so that they could 
assume each other's responsibilities when 
necessary. Although Hunt did not deny 
Robinson the opportunity to be trained as 
dispatcher, he did delay her training 
until she trained the others in computer 
operations. The plaintiff was the only 
employee sufficiently knowledgeable of 
computer functions to be able to train 
others. Robinson's Employee Performance 
Reviews from January and May 1984 
indicate an intention to train her. 
After Joseph Matthews left in the spring 
of 1984, Robinson reinstituted her 
training request. She was never trained,
however.



6a
In the meantime, a white female, 

Donna McManus, and John Hunt carried out 
the duties of dispatcher. The plaintiff 
did not complain. On September 20, 1984, 
Robinson learned that in June 1984
McManus had been appointed dispatcher, a 
position for which Hunt had been training 
her since February 1984. Although
Robinson did ask for training, she did 
not apply for the position of dispatcher. 
Robinson alleged at trial that she did 
not know that the position was open. 
Robinson did not ask to be considered for 
a promotion of any sort during this time 
period. Donna McManus did apply for the 
position and was more highly qualified 
than was the plaintiff for the position 
of dispatcher because she had been
trained for same.

The plaintiff also testified that
John Hunt called her "Black Beauty" on



7a
certain occasions during the time period 
that she worked at the Washburn Avenue 
facility (before June 1983) but that he 
ceased doing so when she asked him to. 
Further Robinson testified that while 
Jesse Jackson was running for President 
(in 1983-1984) she overheard Hunt comment 
that blacks could not succeed at anything 
but sports. Various witnesses testified 
as to the existence of tension and 
animosity in the office; however, neither 
Robinson nor the other witnesses said 
that any ill will was directed toward 
Robinson.
PROPRIETY OF INVOLUNTARY DISMISSAL AS TO 
TITLE VII CLAIMS

Adequacy of the trial court's 
findings of fact and conclusions of law. 
In all actions tried upon facts without a 
jury, pursuant to Fed. R. Civ. P. 52, 
"... the court shall find the facts 
specially and state separately its



8a
conclusions of law thereon, ..." The 
Rule further states that findings of 
fact, whether based on oral or documen­
tary evidence, shall not be set aside 
unless clearly erroneous. See also, 
Pullman-Standard v. Swint. 456 U.S. 273 
(1982); Holmes v. Bevilaccma. 794 F.2d 
142, 147 (4th Cir. 1986). In the present 
case, a careful review of the trial court 
record and of Judge Potter's specifically 
enumerated 23 factual findings es­
tablishes that the district court's 
factual findings accurately represent the 
testimony given. Furthermore, the trial 
court's conclusions of law are founded 
upon recognized and precedential employ­
ment discrimination law.

Effect of shifting the burden of 
proof on Fed. R. Civ. P. 41fb^. A1though 
there exists a three-part allocation of



9a
proof in Title VII cases, ̂  the court is 
not precluded from granting a defendant's 
Fed. R. Civ. P. 41(b) motion for involun­
tary dismissal. Gaballah v. Johnson. 629 
F.2d 1191, 1200 (7th Cir. 1930); Sime v. 
Trustees of California State Univ. & 
Colleges. 526 F.2d 1112 (9th Cir. 1975). 
Pursuant to Rule 41(b), if the court 
renders judgment on the merits against 
the plaintiff, the court shall make 
findings as provided in Rule 52(a). The

1 In order for a plaintiff to
prevail in a Title VII action, the court 
must first find that the plaintiff hasproved a orima facie case by a preponder­
ance of the evidence. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 
248, 254 n.7 (1981). If the court sofinds, then secondly the court must 
consider the defendant's explanation of or justification for the presumptively 
discriminatory action or practice. Third, the burden of persuasion shifts 
again to the plaintiff to prove by a preponderance of the evidence that a 
discriminatory reason more likelymotivated the employer or that the
employer's explanation is unworthy of 
credence.



10a
adequacy of the trial court's findings of 
fact and conclusions of law indicates 
that Judge Potter was fully justified in 
granting an involuntary dismissal of the 
plaintiff's Title VII claims at the close 
of the plaintiff's evidence. In the case 
sub iudice the plaintiff called as one of 
her witnesses John Hunt, Montgomery 
Ward's terminal manager. Hunt explained 
to the court his decision to promote 
Donna McManus, a white female, rather 
than the plaintiff. Consequently, the 
court actually had before it the explana­
tions of both parties when it granted the 
motion for involuntary dismissal.

Application of the McDonnell Douglas 
test. In deciding that the plaintiff had 
not proved a prima facie case of dis­
crimination, the district court applied 
the test set forth by the Supreme Court 
in McDonnell Douglas Corp. v. Green. 411



11a
U.S. 792, 802 (1973). The plaintiff met 
only one prong of the four-element test. 
Robinson established that she is black 
and thus a member of a protected minority 
as required by the first element of 
McDonnell Douglas. Robinson was able to 
prove neither that she applied for, nor 
that she was qualified for, the job of 
dispatcher; thus she did not meet the 
second element required by McDonnell 
Douglas. Because the plaintiff admitted 
that the white female who was hired to 
fill the dispatcher position had higher 
qualifications than she and that she did 
not apply for the job, the third element 
(that despite her qualifications, she was 
rejected) is irrelevant to this case. 
The fourth element, that, after the 
rejection, the position remained open and 
the employer continued to seek applicants 
from persons of the plaintiff's qualifi­



12a
cations, is likewise irrelevant here. 
Since Robinson did not establish a prima 
facie case, she is not entitled to the 
presumption of intentional discrimination 
which arises when the McDonnell Douglas 
test is met.

Since Robinson did not apply, she 
was not rejected. Although a plaintiff 
who did not apply for a position is not 
foreclosed from success in an employment 
discrimination action, in such a situa­
tion the plaintiff must establish that 
she was inhibited from applying because 
of the employer's discriminatory prac­
tices. International Brotherhood of 
Teamsters v. United States, 431 U.S. 324 
(1977) . In the case at bar, the 
plaintiff admitted that she did not apply 
for the position but asserted no argument 
whatsoever that she was in any way 
inhibited from making an application by



13a
Montgomery Ward's alleged discriminatory 
practices. Plaintiff's assertions about 
racial remarks and training discussed 
infra, do not rise to the level of proof 
required for a showing of intentional 
discrimination. Consequently, the
district court was entirely correct in 
finding that the plaintiff had not 
carried her burden as to the second, 
third, and fourth elements of McDonnell 
Douglas.
PROPRIETY OF DIRECTED VERDICT AS TO SECTION 1981 CLAIMS

In 1943 the Supreme Court announced
the standard that courts were to use in
directing verdicts:

When the evidence is such that 
without weighing the credibil­ity of the witnesses there can 
be but one reasonable con­clusion as to the verdict, the 
court should determine the 
proceeding by non-suit, directed verdict or otherwise in accordance with the ap­
plicable practice without submission to the jury, or by



14a
judgment notwithstanding the 
verdict. By such direction of 
the trial, the result is saved 
from the mischance of specula­
tion over legally unfounded claims.

Brady v. Southern Rv. Co., 320 U.S. 476, 
479-480 (1943). A directed verdict is 
improper in those cases in which suffi­
cient evidence is in conflict so that 
reasonable men could reach different 
conclusions. 5A Moore's Federal Practice 
§ 50.02[1]. Both the trial court and the
appellate court must consider the
evidence in the light and with all
reasonable inferences most favorable to
the party opposed to the motion. St.
Paul Fire & Marine Insurance Company v. 
Vaughn, 779 F.2d 1003, 1008 (4th Cir.
1985)> Whalen v. Roanoke Countv Bd. of 
Suo'rs.. 769 F.2d 221, 224 (4th Cir.
1985) ; Mays v. Pioneer Lumber Coro. . 502
F.2d 106 (4th Cir. 1974), cert, denied. 
420 U.S. 927 (1975). As previously



15a
discussed, the plaintiff did not es­
tablish a prima facie case based upon the 
McDonnell Douglas required elements. 
Therefore, the directed verdict was 
appropriate.

As detailed by the district court, a 
plaintiff's evidence may carry the 
original production burden without need 
to invoke the McDonnell Douglas presump­
tion. To have done so, Robinson was 
required to present either direct or 
circumstantial evidence sufficient to 
support an inference that there existed a 
reasonable probability of intentional 
discrimination. Lovelace v. Sherwin- 
Williams Co.. 681 F.2d 230, 242 (4th Cir. 
1982) . In asking the jury to find an 
inference of intentional discrimination, 
Robinson put on evidence of certain 
racial remarks made by either John Hunt
or Donna McManus. The plaintiff tes-



16a
tified that Hunt called her "Black 
Beauty" on certain occasions; Robinson 
also said that when he asked Hunt to 
stop, he did so. The trial record also 
shows that Donna McManus had referred to 
another black employee, not the plain­
tiff, as "nigger." Testimony was 
conflicting as to whether Hunt repri­
manded McManus for her statement. 
Nevertheless, the record did establish 
that on one occasion after using the word 
"nigger" McManus went into Hunt's office, 
later emerging tearfully. From this 
uncontradicted testimony, the court may 
reasonably infer that McManus was 
reprimanded. At any rate, no evidence 
exists that McManus ever addressed any 
racially derogatory remark to the 
plaintiff Robinson. Further, occasional 
or sporadic instances of the use of 
racial or ethnic slurs in and of



17a
themselves do not constitute acts of 
racial discrimination. Torres v. Oakland 
County. 758 F.2d 147 (6th Cir. 1985). A
determination as to the impact and 
relevance of racial remarks must be made 
on a case-by-case basis after considera­
tion of the totality of the circum­
stances . Gilbert v. City of Little Rock, 
Arkansas. 799 F.2d 1210 (8th Cir. 1986). 
Whereas a spirit of camaraderie was 
conspicuously absent from the total 
picture of the Montgomery Ward office as 
painted by the witnesses at the trial 
level, the trial court failed to find 
convincing evidence of intentional 
discrimination. We concur that the 
plaintiff did not present strong, direct 
evidence of intentional discrimination 
through her evidence of racial remarks. 
See Lee v Russell County Board of 
Education 684 F.2d 769, 774 (11th Cir.



18a
1982) .

Plaintiff's counsel argues strenu­
ously that Montgomery Ward's failure to 
train Robinson for the position of 
dispatcher was either direct or indirect 
evidence of intentional discrimination 
just as failure to promote her to the 
position was. However, a person who is 
not qualified for a position but who 
would require training does not satisfy 
all of the elements required to establish 
a prima facie case. Scott v. Coca-Cola 
Bottling Co.. 36 F.E.P. Cases 1875, 1878
(E.D. Mo. 1984). See Pacheco v. Adver­
tisers Lithographing, Inc.. 657 F.2d 191, 
193, 27 F.E.P. Cases 133 (8th Cir. 1981). 
In Ramsey v. American Air Filter Co. , 
Inc.. 772 F.2d 1303, 1309 (7th Cir.
1985), upon which the plaintiff relies in 
regard to the training issue, Ramsey was 
specifically denied the opportunity for



19a
training. Further, Ramsey indicates that 
the employer manipulated another person 
into bidding for the position available. 
These two facts are distinguishable from 
the situation in the case at bar. John 
Hunt did not forever deny Robinson the 
opportunity to be trained as dispatcher; 
there is no evidence that Hunt was 
responsible for McManus's application for 
the position of dispatcher. While 
counsel's argument was clearly and 
carefully rendered, the facts of the case 
regarding training simply do not provide 
adequate direct or indirect evidence of 
discrimination as required by Lovelace v. 
Sherwin-Williams. 681 F.2d at 242. The 
terminal manager, Hunt, called as a 
witness by the plaintiff, provided a 
convincing explanation based upon sound 
business reasons of his plan for cross­
training his five employees.



20a -
Robinson also asserts that Montgom­

ery Ward's failure to post notice of job 
openings is either direct or indirect 
evidence of intentional discrimination, 
citing Brown v. Gaston County Dyeing 
Machine Company, 457 F.2d 1377 (4th 
Cir.)/ cert, denied. 409 U.S. 982 (1972). 
As the defendant correctly points out, in 
disparate impact cases in which statisti­
cal disparities between employment 
opportunities for blacks and whites 
become relevant, the posting of notices 
regarding vacancies can be important. 
However, in a five-person office the 
actual posting of a notice surely is 
superfluous. In such a small office, the 
personnel can hardly escape noticing when 
someone resigns or accepts job interviews 
away from the office. In fact, the trial 
testimony reveals that Robinson was aware 
that Joe Matthews, the dispatcher, was



21a
interviewing for other jobs. Robinson 
also knew that Hunt was interviewing 
persons to replace Matthews. Yet the 
record shows that Robinson did not apply 
for the position. The court cannot 
reasonably infer that her failure to 
apply arose from the company's failure to 
post a notice of the vacancy of the 
position. In sum, none of the direct or 
indirect evidence which the plaintiff 
offers is adequate to persuade the court 
that Montgomery Ward's decision not to 
promote Robinson to dispatcher was 
motivated by intentional discrimination. 
Consequently, the directed verdict on the 
Section 1981 claims was correctly 
granted.
EXCLUSION OF EVIDENCE ON LOST WAGES

The district court admitted the 
plaintiff's evidence of lost wages up to 
the maximum pay rate allowed by Mont-



22a
gomery Ward for the position of dis­
patcher. However, the trial court
excluded a calculation of lost wages 
based on the assumption that if the 
plaintiff had been promoted to the 
position of dispatcher, she would have 
received several other promotions and 
successive wage increases. Apparently, 
Donna McManus did receive these promo­
tions and salary increases. Because we 
have previously decided that Robinson did 
not present viable bases for her Section 
1981 claims, we need not reach the issue 
of lost wages or the calculation of 
damages. Therefore, we decline to 
consider whether the district court 
properly excluded certain evidence 
regarding lost wages.



23a
CONCLUSION

For all of the foregoing reasons, 
the decision and judgment of the district 
court are AFFIRMED.

AFFIRMED



24a
IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
C-C-85-564-P

Filed Sep. 26, 1986

HAZEL H. ROBINSON,
Plaintiff, 

vs.
MONTGOMERY WARD AND COMPANY, INC., 

Defendants.

ORDER
THIS MATTER came on to be heard 

before the undersigned Judge, and a jury 
at Charlotte, North Carolina on September 
22 and 23, 1986. The plaintiff was
represented by Regan A. Miller, Esquire, 
and the Defendant was represented by 
George R. Hodges, Esquire.

The Plaintiff's claim was that the
acts of the Defendant had the effect of



25a
depriving her of the rights, privileges 
and immunities guaranteed to her by the 
Constitution and laws of the United 
States because of race, prohibited by 
Title 42 U.S.C. § 1981, and of depriving 
Plaintiff of equal employment oppor­
tunities because of race in violation of 
Title VII of the Civil Rights Act of 
1964.

The Plaintiff prayed for compen­
satory damages and a judgment for 
recovery of punitive damages.

At the close of Plaintiff's evidence 
the Defendant moved for a directed 
verdict as to the § 1981 claim, pursuant 
to Rule 50(a) and as to the Title VII 
Claim pursuant to Rule 41(b) of the 
Federal Rules of Civil Procedure. Both 
motions were orally granted by the Court.

Since the Court is required by Rule 
52 of the Federal Rules of Civil Proce­



26a
dure to find the facts specifically and 
state separately its conclusions of law 
as to the Title VII claim, the Court will 
proceed to do that which will also serve 
to enunciate the reasons for the Court's 
ruling as to the 1981 claim.

FINDINGS OF FACT
(1) The Plaintiff was first hired 

by the Defendant as a temporary
employee from March 1976 to
June 1976 and then as a full
time employee from June 1976
until her job was eliminated
and she was laid off on
September 12, 1986.

(2) She began with the Defendant as 
a key punch operator, and was 
promoted to computer operator 
in August of 1979 by Gloria 
Swanner, the office manager. 
At that time Paul Roper was the



27a
terminal manager at the 
Defendant's facility on 
Washburn Avenue in Charlotte, 
North Carolina.

(3) John Hunt came as terminal 
manager later that year.

(4) In the year the Plaintiff 
joined the Defendant there were 
three shifts and in excess of 
fifty employees working for the 
Defendant.

(5) During the last few years the 
work force had declined until 
there were only five employees 
in the office in 1985.

(6) When John Hunt became terminal 
manager the Plaintiff was a 
computer operator to which she 
had been promoted six months
earlier.



28a
(7) When Hunt became Terminal 

Manager, there was no dis­
patcher title in the office.

(8) In June of 1983 the Defendant 
closed its facility on Washburn 
Avenue and contracted with 
Thurston Motor Lines for its 
dock activity.

(9) At that time Joseph Matthews 
(white male) was appointed as 
dispatcher. As such he was 
known as a "ready replacement" 
and had supervisory respon­
sibilities in Hunt's absence 
although the dispatcher 
position was not designated 
officially as having any 
supervisory responsibilities 
until June of 1984.

(10) When Matthews was appointed 
dispatcher, Gloria Swanner



29a
(white female) went to Hunt and 
asked him why she was passed 
over for job of dispatcher and 
ready replacement and was told 
that working on the dock was a 
man's world where foul language 
was used. She quit.

(11) In November or December of 1983 
the Plaintiff learned that Joe 
Matthews was leaving the 
Defendant's employment because 
of the unpleasant working 
conditions and turmoil in the 
office.

(12) In December 1983 the Plaintiff 
approached Hunt and told him 
she wanted to be trained for 
dispatch. Hunt agreed it was a 
good idea, and that she would 
be trained but that he wanted 
people trained in the computer



30a
room first.

(13) Plaintiff's Exhibit 3-D, the
January 1984 Employee Perfor­
mance Review, contains the 
notation that "Employee will be 
learning various aspects of 
office." Plaintiff's Perfor­
mance Review of May 9, 1984 and 
May 8, 1985, Plaintiff's
Exhibits 3-E and 3-F, indicate 
that Plaintiff will be given 
the opportunity to learn and 
understand the traffic clerk 
and dispatch functions.

(14) Plaintiff was never trained as 
dispatch. She mentioned it to 
Hunt again after Joe Matthews 
left in March or April of 1984.

(15) From March until June of 1984, 
Hunt and Donna McManus (white 
female) did the dispatch work.



31a
Plaintiff did not complain to 
Hunt.

(16) In September of 1984 the 
Plaintiff learned that Donna 
McManus (white female) had been 
appointed to dispatch job in 
June of 1984 for which Hunt had 
been training her for since 
February of 1984.

(17) After learning on September 20, 
1984 that McManus had been 
appointed dispatcher and 
assistant to Hunt, the Plain­
tiff complained to Hunt that 
she didn't know the position of 
assistant was open to be 
filled.

(18) The Plaintiff had never sought 
a particular promotion with the 
Defendant and never asked a 
supervisor to be considered for



32a
a promotion except as computer 
operator. (Plaintiff's
deposition, p. 37, lines 1-5 
and trial testimony.)

(19) McManus was the only employee 
who asked to be appointed to 
dispatcher and since she was 
qualified and has been perform­
ing the duties for three 
months, Hunt appointed her. 
Hunt did not know Plaintiff was 
applying for the job.

(20) Plaintiff was the only employee 
in the 1984-85 period who was 
able to perform all the 
computer operations.

(21) McManus was more qualified to 
do the job of dispatcher when 
Matthews left than Plaintiff 
was (Plaintiff's trial tes­
timony. )



33a
(22) Hunt, the terminal manager, had 

made two remarks which the 
Plaintiff contends were racist. 
One was that he called the 
Plaintiff "black beauty" from 
time to time, until she asked 
him to quit which he did. The 
other was during the Jesse 
Jackson campaign the Plaintiff 
overheard Hunt say that "Blacks 
couldn't succeed at anything 
but sports."

There should never be any 
offensive remarks made about 
any one because of his or her 
race, religion, sex, or 
national origin. However, not 
every such remark rises to the 
level of constituting a racist 
remark indicating a racial bias



34a -
by the speaker with consequent 
adverse employment decisions.

(23) This office was a soap opera 
writer's dream, with accusa­
tions of who was the father of 
whose child, resulting in 
tension and employees leaving 
because of difficult working 
conditions. Testimony was that 
since 1983 at least three 
employees quit, Sue Mack, 
(white female) Joseph Matthews 
(white male) and Gloria Swanner 
(white female). Apparently, 
this resulted, in the case of 
Gloria Swanner, because she was 
not appointed as dispatcher and 
ready replacement for Hunt and 
because of the disruption 
caused by one employee, Donna 
McManus, which was apparently



35a
condoned by the terminal 
manager, John Hunt, for 
whatever reason, but this Court 
does not find that this 
evidence indicates racial 
animus toward Plaintiff by 
Hunt, or anyone else in the 
office.

CONCLUSIONS OF LAW
(1) The Court has jurisdiction of

this action pursuant to Title 
28 U.S.C. §§ 1331 and 1343 and 
Title 42 U.S.C. § 1981 and
2000e-2(a).

(2) The Plaintiff has the initial
burden of establishing a prima 
facie case of discrimination. 
Texas Department of Community 
Affairs v. Burdine. 450 U.S. at 
252-53, 101 S.Ct. at 1093-94;



36a
McDonnell Douglas Corp. v. 
Green. 411 U.S. 792, 793, 802,
93 S.Ct. 1817, 1820, 1824, 36
L.Ed.2d 668 ( 1973 ) . To
establish a prima facie case, 
the Plaintiff must prove: 
actions taken by the employer 
from which one can infer, if 
such actions remain unex­
plained, that it is more likely 
than not that such actions were 
"based on a discriminatory 
criterion illegal under the 
Act." Furnco Construction 
Coro, v. Waters. 438 U.S. 567, 
576, 98 S.Ct. 2943, 2949, 57
L. Ed. 2d 957 (1978); see also.
Texas Department of Community 
Affairs v. Burdine. supra; 
McDonnell Douglas Corp. v. 
Green, supra.



37a
(3) This is a disparate treatment 

case, and a prima facie case 
may be established b y  direct 
evidence of discrimination or 
by indirect evidence whose 
cumulative probative force, 
apart from the presumption's 
operation, would suffice under 
the controlling standard to 
support as a reasonable 
probability the inference that 
but for the Plaintiff's race he 
would have been promoted. 
Lovelace v. Sherwin-Williams 
Co.. 681 F.2d 230, 242 (4th
Cir. 1982). Without such 
evidence, the claimant must 
resort to the McDonnell Douglas 
presumption with all of its 
ensuing complexities. Holmes
v. Bevilaccrua. 794 F.2d 142,



38a

(4) There is no direct or indirect 
evidence of discrimination 
against the Plaintiff.

(5) When there is no direct or 
indirect evidence of dis­
crimination then the Plaintiff 
must rely on the proof scheme 
set out in McDonnell Douglas v. 
Green, supra. This may be done 
by showing (i) that she belongs 
to a racial minority; (ii) that 
she applied and was qualified 
for a job for which the 
employer was seeking ap­
plicants; (iii) that despite 
her qualification she was 
rejected; (iv) that, after her 
rejection, the position 
remained open and the employer 
continued to seek applicants

146.



39a
from persons of complainant's 
qualifications. It is conceded 
that Plaintiff belongs to a 
racial minority. However, 
there is no evidence that she 
applied for the job of dis­
patcher. She asked to be 
trained as dispatch. McManus 
was training as dispatcher 
before Matthews left. Even if 
requesting to be trained for 
dispatcher were to be construed 
as asking for the job, the 
Plaintiff testified that when 
Joe Matthews left in March of 
1984, McManus was more quali­
fied for dispatcher than 
Plaintiff was, since McManus 
had already been trained.

(6) The Plaintiff simply has not 
carried her burden as to the



40a
second, third, or fourth prongs 
of McDonnell Douglas.

(7) Any finding of fact deemed a 
conclusion of law shall be so 
deemed and any conclusion of 
law deemed also to be a finding 
of fact is so deemed.

IT IS ORDERED AND DECREED that 
judgment be entered for the Defendant on 
both the Title VII claim and the Section 
1981 claim and that the Plaintiff's cause 
of action be dismissed, and that each 
party pay its own costs including 
attorney's fees.

This the 25th day of September,
1986.

_________s/s____________ROBERT D. POTTER, CHIEF 
UNITED STATES DISTRICT JUDGE



41a
UNITED STATES COURT OF APPEALS WESTERN DISTRICT OF NORTH CAROLINA

C-C-85-564-P

HAZEL H. ROBINSON, 
v.

MONTGOMERY WARD AND COMPANY, INC.,

JUDGMENT IN A CIVIL CASE 
Decision by Court. This action came 

to trial or hearing before the Court. 
The issues have been tried or heard and a 
decision has been rendered, after the 
close of Pltf's evidence, deft moves for 
dismissal and motion is allowed.

IT IS ORDERED AND ADJUDGED that 
judgment be entered for the Defendant on 
both the Title VII claim and the Section 
1981 claim and that the Plaintiff's cause 
of action be dismissed, and that each



42a
party pay its own costs 
attorney's fees.

September 26, 1986.

including



43a

Excerpts from Trial Transcript September 22, 1987
Testimony of John Hunt

*  *  *

[p. 42] Q. Now, after Mr. Matthews
announced that he was going to resign, 
Ms. Robinson approached you about what 
you were going to do about filling his 
position, didn't she?
A. That's correct.
q . What did you tell her, Mr. Hunt?
A. I told her at this point in time we 
had no immediate plans to fill the 
position. We were going to try to 
consolidate the activity and reduce man 
hours.

*  *  *

[p. 52] Q. Now, when you decided to 
select Donna McManus as the ready



44a

replacement and as the dispatcher, you 
considered her experience, knowledge, and 
the respect she had of the other 
employees. Is that correct?
A. If you want to condense it into three 
words, yes.
Q. And why didn't you consider— or did 
you consider Ms. Robinson for the 
position?
A. Yes. All employees that were
qualified on the payroll at that time 
were considered.
Q. And Ms. Robinson was qualified?
A. Ms. Robinson had the qualifications 
to be considered for the job, yes.

* *  *

[p. 60] Q. Now, when you changed your 
mind about filling the dispatcher 
position, you didn't inform Ms. Robinson 
that you had made that change of mind?



45a

A. No, I didn't. No.
* * *

[p. 69] Q. When you made Ms. McManus's
position as the dispatcher official in 
June of '84, was anything said to the 
other employees about that?
A. I don't recall if it was said, you 
know. The actions would have spoken, but 
as far as directly, no, I don't recall.
[p. 70] Q. When did Ms. McManus begin
having responsibility for supervision or 
being in charge of the office in your 
absence?
A. It probably would have been around 
that period of time when I went on 
vacation, out of the office, etc.

Testimony of Joe Matthews 
[p. 102] Q. Now, Mr. Matthews, you were 
working for Montgomery Ward when Ms. Ann 
Edwards was hired by that facility?



46a

A. Yes, sir.
Q. And you were also there when Corrine 
Thomas was hired at the facility?
A. Yes, sir.
Q. Would you describe for the jury the 
relationship between Donna McManus and 
those two individuals?
A. Rough and staticky.
Q. Did you ever hear or overhear any 
conversation between John Hunt and Donna 
McManus about Ann Edwards?
A. I heard something. It was kind of 
like Ann and Donna had a falling out over 
something, probably the keypunch, and I 
just overheard some stuff from John's 
office because the door was open, [p. 
103] you know.
Q. What was being said in the office?
A. Just some profound words talking 
about referring to Ann, I believe.



47a

Q. What specifically was the word being 
used in reference to Ann?
A. Something about she didn't have to 
work with that nigger, or something.
Q. Did Mr. Hunt reprimand her for using 
that kind of language with respect to 
this particular black employee?
A. There wasn't any apologies made that 
I heard.
Q. Do you know if Ms. Manus was
reprimanded for referring to a fellow 
employee as a nigger?
A. No sir, I don't know if she was or 
not.
Q. To your knowledge, was she placed on 
suspension or anything of that nature?
A. No, sir.
Q. Mr. Matthews, how long would it have 
taken you to train Hazel Robinson on your 
job responsibilities?



48a
MR. HODGES: Object. That calls for

speculation, Your Honor.
THE COURT: Sustained.
MR. MILLER: Your Honor, he is

familiar with the responsibilities.
THE COURT: He can't say how long

it's going to take to [p. 104] train
anybody. How long did it take him to be 
trained? You can ask him that.
Q. Okay, how long did it take you to be 
trained, Mr. Matthews?
A. Well, it was given to me and I was 
just told to— if I had questions, to come 
and ask, and I'd say probably within 
about two or three days, everything was 
running pretty smooth. Once in awhile 
you'd have to ask about something, but 
the job was pretty repetitious.



49a
Testimony of Sue Mack 

* * *
[p. 110] Q. Were you also given
responsibility for interviewing new job 
[p. Ill] applicants?
A. The two keypunch operators, yes.
Q. Did you perform that responsibility? 
A. Yes, sir.
Q. When did you perform that
responsibility?
A. Well, I interviewed Ann Edwards 
first. That was the first position. She 
was a part-time employee. I believe she 
worked about 30 hours a week. Then the 
next time was after Sharon Hawley had 
left, and I put an ad in the paper 
requesting a full-time keypunch position, 
and I interviewed some other girls at
that time.



50a
Q, What was the approximate time period 
when you were interviewing Ann Edwards?
A. I'm not sure.
Q. Now, while you were doing these job 
interviews, did Mr. Hunt ask you 
questions about the job applicants?
A. He asked me the color and what I 
thought about each one of them.
Q. When you say the color, you're 
referring to the race?
A. Yes, sir.
Q. And did he ask you that question even 
though you had not seen the individual?
A. No, sir. This was after I had seen 
the individuals.

*  *  *

[p. 112] Q. Now, was Donna McManus
assigned to train Ms. Edwards?
A. In the beginning, Donna was.
Q. And how long did that last?



51a
A. A few days. It was— I would say less 
than a week when the two of them had an 
outburst, and Donna said she could not 
work with her.

*  *  *

[p. 113] Q. I'm sorry. Let me start
over again here. When did you interview 
people for the position that Ms. Corrine 
Thomas occupied?
A. You want the month and the day?
Q. The month.
A. Sorry but I'm terrible with dates. I 
don't remember. I know it was after 
Sharon left, but I don't remember. Donna 
was on maternity leave, and that's about 
all I can remember. It would have to 
have been January or February because she 
was on maternity leave at that time.
Q. What year are you referring to?
A. This was the year I left, 1984.



52a
Q. Did Mr. Hunt ask you about the race 
of the applicants at that time?
A. Yes, he did.

*  *  *

[p. 114] Q. What was the relationship—  
would you describe the relationship 
between Donna and Corrine Thomas?
A. It was horrible.
Q. What do you mean by that?
A. It was a battle. They were just at 
it, it seemed like constantly. They were 
always at it over something, arguing.
Q. Was Donna McManus in the office when 
Corrine Thomas was hired?
A. No, she was not, as a matter of fact. 
She called and asked me what color 
Corrine was. I said, "She's black," and 
she said, "Well, I hope she's a little 
bit smarter than the other one," and I'm 
assuming she was referring to Ann.



53a
Q. Did you ever overhear Donna 
discussing Corrine Thomas with Mr. Hunt? 
A. Well, there was one time the two of 
them were in an argument, [p. 115] and it 
was over at the keypunch machine and my 
desk.
Q. By the two of them, who are you
referring to?
A. Corrine was keypunching and Donna was 
standing up. I don't know if Donna had 
been explaining something to her. I 
don't recall the circumstances that 
brought it on. But I was at my desk, 
which was a few feet away, and I suddenly 
heard Donna say, "Well, you kiss my ass," 
and I looked up, and when I looked up, 
Corrine jumped up from her keypunch 
machine, and Donna took off into John's 
office, and she was yelling and she said, 
"I'm not taking anymore of this g.d.



54a
stuff from that nigger."
Q. By g.d., you mean goddamn?
A. Yes, sir, but I don't use those 
words. I'm sorry. And he said, "Sh-h-h, 
it's okay." He tried to quieten her 
down.
Q. Who was the "he" you're referring to? 
A . Mr. Hunt.
Q. And is that the only thing he did to 
her at that time?
A. Well, she closed the door. I didn't 
make it any of my business to pay any 
attention to what else was said. I don't 
know what else was said after that.
Q. Did he send her home on that 
occasion? I'm referring to Donna 
McManus. Did he send her home or do 
anything that was obvious to you that 
represented some kind of disciplinary
action?



55a
A. She was in there for quite a white, 
and when she came out, she had been 
crying. I don't recall her going home. 
She could [p. 116] have. I don't recall. 
Q. You had access to the personnel files 
at that time, didn't you?
A. Yes, sir.
Q. Did you put in her personnel files 
any letters of reprimand for her 
behavior?
A. In Donna's?
Q. No.
Q. Now, did Ms. Robinson ever discuss 
with you her desire to learn the 
functions of a dispatcher?
A. Yes, sir.
Q. When did she first discuss that with 
you?
A. Here again, I don't remember dates. 
I just recall she had said she would like



56a
to learn the dispatch work, and I said, 
you know, "Talk to John about it," and 
she said she thought she would talk with 
him, and then I asked him, I said, "You 
know, Hazel is wanting to learn dispatch 
work," and he said, "Well, I think that's 
a good idea, and what I'm going to do is 
work it out so each one of you will be 
cross-referenced on the other person's 
job. I want each one of you to learn the 
various jobs." And he told me he wanted 
me to learn the computer functions and 
that was about the extent of that.
Q. Now, at the time you had that
conversation with him, had you talked to 
him before abut this cross-training that 
was to be [p. 117] received?
A. No.
Q. Did you type up evaluations of
employees?



57a
A. Yes.
Q. And did you type up evaluations that 
are similar to Plaintiff's Exhibit 3-D, I 
believe? I'm going to hand you what's 
been marked as Plaintiff's Exhibit 3-D, 
Ms. Mack. Do you recognize that 
document?
A. Yes, sir.

* *  *

Q. Did you do that for each one of the 
employees?
A. Yes, sir, I did, including myself.
Q. Did you do one for Donna McManus?
A. Yes, sir.
Q. Now, I want you to turn your 
attention to Plaintiff's Exhibit 4-A. 
Can you find that up there?
A. Yes, sir.
Q. Now, Plaintiff's Exhibit 4-A is not 
the review that you [p. 118] performed on



58a
Ms. McManus, is it?
A. No, sir. Mine would have been
typewritten.
Q. Now, I want you to look at 
Plaintiff's Exhibit 4-A, and would you 
tell the jury if the evaluation that's 
given there in each one of the categories 
is the same evaluation you would have 
given Donna McManus at that same time.

MR. HODGES: I object. There hasn't
been any foundation that she gave 
evaluations. She said she typed some of 
them.

THE COURT: She gave some. She
didn't give the one on McManus, did she? 
Did you type this one up on McManus?
A. I did one but this is not the one I 
did. This is entirely different. This
is Mr. Hunt's printing.



59a
Q. Well, let me ask you this, Ms. Mack. 
The evaluation, to the best of your 
recollection, the evaluation you did of 
Ms. McManus at this same time, would it 
have been similar to the one that's 
represented by Exhibit 4-A?
A. Some of it would have; some of it 
would not have.
Q. Would you tell the jury which
particular aspects would have been rated 
different?
A. Cooperative with others in support of 
company objectives.
Q. How would you have rated her in that 
category?
A. I would have, in all fairness, said 
frequently uncooperative with others in 
support of company objectives.
Q. Why is that?



60a
A. Because she did not make any attempt 
to cooperate with any [p. 119] of the
employees while I was there, with the 
exception of Mr. Hunt.
Q. Now, did you discuss with Mr. Hunt a 
plan for the training— this cross­
training program?
A. Yes. We discussed it.
Q. What was the plan that you and he 
created?
A. Well, we just discussed which 
individuals should be cross-referenced in 
other positions and best suited for doing 
that, and it was my understanding that 
Hazel was going to be trained on 
dispatcher first because Donna was 
already familiar with the computer room, 
and then Hazel and Joe would work 
together on the dispatch, and then Joe 
would in turn go into the computer room



61a
and John would train Donna on dispatch.
Q. Now, did Mr. Hunt change that 
schedule?
A. Apparently he did because that is not 
the orders that were followed.

* * *

[p. 124] Q. The comments you mentioned 
Ms. McManus made, do you know what 
prompted those outbursts or reactions or 
whatever you want to call them?
A. No, sir, I don't. It was a frequent 
thing within the office. Are you talking 
about the argument between Corrine and 
Donna?
Q. Right.
A. It was a frequent thing. I don't 
know.

Testimony of Corrine Thomas 
* * *

[p. 126] Now, would you describe for the



62a
jury your relationship with Ms. McManus? 
A. Well, we had good days and bad days. 
It wasn't a relationship that I thought 
should have been for an office that size. 
Q. What do you mean by that?
A. Well, we constantly argued. We
didn't argue every day. We [p. 12 7] 
would go maybe a month, month and a half.

* *  *

[p. 128] Q. When Joe Matthews left— let 
me back up here— when did you find out 
that Joe Matthews was seeking new 
employment?
A. It was the first part of the year. I 
came in January. It was around February 
or March.
Q. And when he announced his
resignation, did you talk to Mr. Hunt 
about filling his position?



63a
A. Yes. It was prior to— you know, it 
was on a Friday because we was having a
farewell lunch for Joe, and before we
went to lunch, I asked him, I said,
"Well, I know it will probably go to the 
person with the most seniority,” and he 
said, ”No, not necessarily so,” and so I 
told him that I would like to learn the 
position, and so he said it was going to 
be different. That everybody was going 
to cross-reference on everybody's job and 
nothing was going to be just one set 
thing to do.
Q. Did he ever tell you that he had 
changed his mind about that?
A. No.
Q. Did you ask him about filling that 
position after you had that conversation
with him?



64a
A. Well, throughout the time, I would 
ask when he was going to hire somebody, 
and he'd say he wasn't going to hire 
anyone at the moment. He was just going 
to work with what we got because [p. 129] 
work was slacking up.

*  *  *

Q. ... Were you told between the day you 
were hired and September of 1984, that 
Donna McManus was your supervisor?
A. No.
Q. When did you learn that she was your 
supervisor?
A. In September.
Q. Now, would you describe to the jury 
how that all came about?
A. Donna and I had had an argument, and 
again she told me to kiss her ass, so 
John was in the computer room with Hazel, 
so I went to the computer room and asked



65a
him what he was going to do about it, and 
he said as soon as he finished up, he'd 
talk to Donna.

* * *

[p. 130] Q. Did this culminate in a
meeting between you and the other— the 
employees in the office?
A. Well, yes. After Mr. Wiedman 
evidently had called, John came in. He 
was kind of angry, you could tell, so he 
called us together and he said that 
someone had called Chicago. He said, 
"No, namely, Corrine Thomas called 
Chicago." And he said— well, he called 
the meeting, and he said that "Namely, 
you work [ p. 131] for Montgomery Ward. 
You work for Donna McManus. Whatever 
Donna says, goes. When I'm not here, 
she's in charge." But he never did state 
she was our supervisor, even though he



66a
said she would be in charge when he was 
out, and that we worked for her.

Testimony of Hazel Robinson 
* * *

[p. 173] Q. Now, was there a time when
you approached John Hunt about learning 
the dispatch position?
[p. 174] A. Yes, it was.
Q. And when was that?
A. December of '83.
Q. And what did you tell him?
A. Well, I knew the job was coming 
available because Joe had already told me 
he was leaving, and I thought that would 
be a good chance for me to get in, and I 
told John I wanted to be trained on 
dispatch. He said okay, said, HI think 
that's a good idea."
Q. And what happened after you told him
that?



67a
A. Well, maybe a week or two later, he 
had Sue Mack type up some objectives for 
'84, and Sue told me she was typing them 
up. She said, "Well, you finally going 
to get to learn that dispatch 'cause it's 
on your objective." I said, "Good."
Q. Did you meet with Mr. Hunt after that 
and discuss those objectives?
A. Yes.
Q. And when was that?
A. I think it was January of '84.
Q. Now, did he tell you when the 
training was to begin?
A. No, he didn't, no. He didn't say 
when.

*  *  *

[p. 175] Q. Now, did you discuss at any 
other time with Mr. Hunt about the 
training for the position of dispatcher?



68a
A. Yes. I mentioned it to him when he 
asked me to train Joe Matthews. I said I 
thought that I was going to get trained 
on dispatch, and he said, "You are, but I 
want people to cross train on the 
computer first."
Q. And did you question him again about 
the dispatcher position when Joe 
officially announced his resignation?
A. Yes, when Joe had put in his two-week 
notice, I asked Mr. Hunt what did he want 
me to do about Joe's training in the 
computer room. Did he want me to 
continue. And he said, yes, and I said, 
"Well, why? He's leaving. He don't need 
knowledge of the computer." And I said, 
"Well, am I not going to get trained on 
the dispatch?" And he said, "Yes, but I 
want Corrine to cross train on the 
computer first."



69a
[p. 176] Q. Did he tell you that he
intended to fill the position that Mr. 
Matthews was vacating?
A. No, he did not. There was two 
positions vacant at that time because Sue 
Mack also gave her notice and I asked him 
specifically what was he going to do 
about those positions, and he said he 
wasn't going to fill them at this time, 
and when he told me that he wanted Joe 
Matthews to continue training in the 
computer room, I asked him if I could 
train on some of Sue Mack's work because 
Joe was training on the computer. He was 
getting the hang of it. I really didn't 
have that much to keep me busy, so Sue 
was leaving, and so I asked to be 
transferred to some of her duties so I 
would have something else to do and 
something new to do.



70a
* *  *

[ p. 181] Q. What was your relationship 
with the other employees?
A. Well, I think I was close to everyone 
in the office except Donna McManus. We 
wasn't close, but I respected her right 
as an employee and working there with 
her, but we wasn't as close as the rest 
of the employees.
Q. Did you ever curse at her?
A. Oh, no.
Q. Would you tell the jury what Ms. 
McManus's relationship was with some of 
the other employees.
A. She didn't get along with anybody in 
the office. Her and Corrine fell out. I 
mean they had outbursts like two or three 
times a week. And she didn't get along 
with Joe Matthews. She didn't get along 
with Sue Mack. She didn't get along with



71a
anyone in the office.
q . How often would she go into John
Hunt's office?
A. I'll say two or three times a day, at 
least.
Q. And why would she go into his office? 
A. She would go in there every time
after an argument, and I don't know what 
she went in there for the other times.
Q. After these arguments, would she be 
in tears or—
A. Well, if you were in the office, you 
could hear her voice raise.
Q. Now, was there any time you got into 
any discussion with Mr. Hunt about race 
relations?
[p. 182] A. Not really a discussion.
Back when we were at Washburn, he used to 
have this habit of— well, I thought he 
was teasing— of calling me Black Beauty.



72a
At first I didn't say anything, but it 
got to be annoying. So one day I came 
out of the computer room and I went into 
the main office. I think I went to the 
mail place, and he started calling me 
Black Beauty or something, and I turned 
around and I looked at him and I said, 
"Does it bother you that I'm black?" And 
he said something like, "No, it doesn't 
bother me," but he never called me that 
again, and on another occasion— well, he 
wasn't talking to me— but I was in the 
office and I heard the conversation. It 
was the time that Jesse Jackson was 
running for president, and he made the 
comment to some of the other employees— ■ 
I don't know what it was in response to 
— he said that blacks couldn't succeed at 
anything but sports.