Edwards v. South Carolina Opinion of the Court

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NO. 80-1800

NAPOLEON CHISHOLM, et al. ,

v.
Plaintiffs-Appellees,

THE UNITED STATES POSTAL SERVICE, et al.,

Defendants-Appellants.

On Appeal Fran The United States District Court 
For The Western District Of North Carolina

BRIEF FOR PLAINTIFFS-APPELLEES

JONATHAN WALLAS 
Chambers, Ferguson, Watt,

Wallas, Adkins & Fuller, P.A. 
951 South Independence Boulevard 
Charlotte, North Carolina 28202 
(702) 375-8271

LOUIS L. LESESNE, JR.
Gillespie & Lesesne 
2060 First Union Plaza 
Charlotte, North Carolina 28282 
(702) 372-5700

JACK GREENBERG
BILL LANN LEE
BETH J. LIEF
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397

Attorneys for Plaintiffs-Appellees



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I N D E X

Table of Authorities ..................................

Issues Presented ......................................

Statement of the Case .................................

Administrative Proceedings ......................

Judicial Proceedings ............................

Statement of Facts ....................................

Organization of the Workforce ...................

Higher Level Promotional System .................

Initial Level Supervisory Examination ...........

Details to Higher Level Positions ...............

Discipline .......................................

Other Policies and Practices ....................

Individual Claims ................................

Judgment .........................................

Argument ..............................................

I. The District Court Had Power to Remedy 
Racial Discrimination Extending Back to 
March 24, 1970................................

A. Title VTI, and, Alternatively the Fifth 
Amendment, Provide a Judicial Remedy for 
Discrimination Back to March 24, 1970. ...

B. A Remedy for Classwide Continuing 
Violation of Law Back to March 24, 1970,
Is Appropriate...........................

II. The Class Action Was Properly Certified and
Defined Pursuant to Rule 23, Fed. R. Civ. Pro.

A. The Class Was Property Certified.........

i



1. Exhaustion .................................. 25

2. Adequacy of Representation.................  27

B. The Scope of the Class Was Proper................ 32

III. The District Court's Findings of Fact Are Not
Clearly Erroneous.................................... 33

A. The Initial Level Supervisory Examination.......  33

B. Higher Level Promotions.........................  32-

C. Higher Level Details............................  4-0

D. Discipline ...................................... 22

E. Individual Claims .............................. 23

IV. The Judgment Is Well Within the Equitable
Discretion of the Court.............................. 26

Conclusion ..................................................  50

Certificate of Service ...................................... 50

Page

- ii -



TABLE OF AUTHORITIES

Cases: Page

Acha v. Beame, 570 F.2d 57 (2d Cir. 1978) ........................  22

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ................  19, 21, 43,
46, 47, 48

Asbestos Workers, Local 53 v. Vogler, 407 F.2d
1047 (5th Cir. 1969) ...........................................  36, 39

Bachman v. Collier, 73 F.R.D. 300 (D. D.C. 1976) .................  31, 33

Barnett v. W. T. Grant Co., 518 F.2d 543
(4th Cir. 1975).........................................  32, 41, 46,

48

Barrett v. Civil Service Commission, 69 F.R.D.
544 (D. D.C. 1975) .............................................  20, 33

Berman v. Narragansett Racing Association, 414
F.2d 311 (1st Cir. 1969), cert, denied,
396 U.S. 1037 (1970) ............ ...............................  31

Bradley v. Richmond School Board, 4l6 U.S. 696
(1974) .........................................................  49

Bridges v. Brown & Williamson Tobacco Corp., 414
F. Supp. 371 (E.D. Va. 1976) ................................... 24

Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 
1377 (4th Cir.), cert, denied, 409 U.S. 982
(1972) .........................................................  30, 41

Brown v. GSA, 425 U.S. 820 (1976) ................................. 5, 16, 18,
20, 21

Carlson v. Green, 64 L. Ed. 2d 15 (1980) .........................  20

Carreathers v. Alexander, 587 F.2d 1046
(10th Cir. 1978) ...............................................  15, 16, 19

Castaneda v. Partida, 430 U.S. 482 (1977) ........................  8, 34, 35

Chandler v. Roudebush, 425 U.S. 840 (1976) .......................  5, 19

Chewning v. Schlesinger, 471 F. Supp. 767
(D. D.C. 1979) .................................................  15, 18, 19

- iii -



Cooper v. Bell, 24 EPD 11 31,215 (9th Cir. 1980) ...................  23

Crawford v. Western Electric Co., Inc., 6l4 F.2d
1300 (5th Cir. 1980) ...........................................  42

Crockett v. Green, 388 F. Supp. 912 (E.D. Wis. 1975) ..............  33

Cyprus v. Newport News Gen. & Nonsectarian Hosp,
Ass 'n, 375 F. 2d 648 (4th Cir. 1967) ............................. 42, 48

Danner v. Phillips Petroleum Co., 447 F.2d 159
(5th Cir. 1971) .................................................  26, 27

Davis v. Califano, 21 FEP Cases 272
(D.C. Cir. 1979) ................................................  31

Davis v. Passman, 422 U.S. 228 (1979) .............................. 20

Day v. Matthews, 530 F.2d 1083 (D.C. Cir. 1974) ...................  44

Donaldson v. Pillsbury Co., 554 F.2d 825 
(8th Cir.), cert, denied, 434 U.S. 856
(1977) ..........................................................  31

Dothard v. Rawlinson, 433 U.S. 321 (1977) .........................  43

Dupree v. E.J. Brach & Sons, 77 F.R.D. 3 (N.D. 111. 1977) .........  30

East Texas Motor Freight v. Rodriguez, 431
U.S. 395 (1977) .................................................  28, 31

EEOC v. Chesapeake & Ohio Railway, 577 F.2d
229 (4th Cir. 1978) .............................................  38

EEOC v. General Electric Co., 532 F.2d 359
(4th Cir. 1976)..................................................  25, 26

EEOC v. Radiator Specialty Co., 610 F.2d 178
(4th Cir. 1975) ..............................................  36, 38

EEOC v. United Virginia Bank, 615 F.2d
147 (4th Cir. 1980) ..........................................  8, 38

Ellis v. NARF, 404 F. Supp. 391
(N.D. Cal. 1975) ................................................  26

FTC v. Ruberoid Co., 343 U.S. 470 (1952) ..........................  47

Franks v. Bowman Transportation Co., 424
U.S. 747 (1976) .................................................  30, 47

Franks v. Bowman Transportation Co., 495 F.2d
398 (5th Cir. 1974) .............................................  29

Page

Clark v. Olinkraft, Inc., 556 F.2d 1219
(5th Cir. 1977) ............................................. 22



Furno Construction Corp. v. Waters, 438
U.S. (1978) ...............   43

Gamble v. Birmingham So. R.R. Co., 514
F.2d 678 (5th Cir. 1975) .......................................... 26

Godblatt v. Hughes Tool Co., 63 F.R.D. 370
(S.D. Tex. 1972) ..................................................  33

Graniteville Co. v. EEOC, 438 F.2d
32 (4th Cir. 1971) ................................................  26

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....................... 39, 47

Hagans v. Lavine, 415 U.S. 528 (1974) ................................ 20

Hanson v. Hoffman, 21 FEP Cases 1645
(D.C. Cir. 1980) ..................................................  20

Harvey v. Int'l Harvester Co., 58 F.R.D. 47
(N.D. Cal. 1972) ..................................................  35

Hawkins v. North Carolina Dental Society, 355
F.2d 718 (4th Cir. 1966) ..........................................  42

Hazelwood School District v. United States,
433 U.S. 299 (1977) .............................. 8, 34, 35, 37, 38

Henderson v. Defense Contract Administrative
Services, 370 F. Supp. 180 (S.D. N.Y. 1973) ......................  18

Hill v. Western Electric Co., 596 F.2d
99 (4th Cir. 1979) ................................................ 24, 38

IMPACT v. Firestone, 24 FEP Cases 572
(N.D. Fla. 1980) ..................................................  24

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ......................  32, 35, 36, 37,

39, 40, 41

James v. Stockham Valves, 559 F.2d 311 (5th Cir. 1977) ..............  49

Jenkins v. Home Ins. Co., 24 FEP Cases 990
(4th Cir. 1980) ...................................................  22

Johnson v. Georgia Highway Express, Inc., 417 F.2d
1122 (5th Cir. 1969) ..............................................  31

Johnson v. Railway Express Agency, 421 U.S. 454
(1975) ............................................................  20

Page

Friend v. Leidinger, 588 F.2d 6l (4th Cir. 1978) ...................  34

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Page

Jones v. Milwaukee County, 68 F.R.D. 638
(E.D. Wis. 1975) ..............................................  33

Keller v. Hills, 73 F.R.D. 10-(N.D. Ga. 1976) ...................  31, 33

Koger v. Ball, 497 F.2d 702
(4th Cir. 1974) .........................................  15, 16, 18, 19

Lewis v. N.L.R.B., 22 EPD U 30,710 (S.D. Tex, 1979) .............  31

Louisiana v. United States, 380 U.S. 145 (1965) .................  45
#

Love v. Pullman, 404 U.S. 522 (1972) ............................. 27

McBroom v. Western Electric Corp., 7 EPD
11 9347 (M.D. N.C. 1974) ....................................... 28

McBroom v. Western Electric Co., 429 F. Supp. 909
(M.D. N.C. 1977) ..............................................  24

McDonnell Douglas v. Green, 411 U.S. 792 (1973) .................  43

McLaughlin v. Hoffman, 547 F.2d 918
(5th Cir. 1977) ................................................ 30, 31

MEAN v. Fletcher, 14 FEP Cases 10007
(D. D.C. 1976) ................................................  31

Moody v. Albemarle Paper Co., 474 F.2d 134 (1973) 
vacated and remanded on other grounds,
422 U.S. 405 (1975) ...........................................  47

Moore v. City of San Jose, 615 F.2d 1265
_  (9th Cir. 1980) ...............................................  19

Morton v. Mancari, 417 U.S. 535 (1974) ..........................  18

Moss v. Lane Co., 471 F.2d 853
(4th Cir. 1973) ...............................................  30

Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) ...............................................  28

Parham v. Southwestern Bell Tel. Co.,
433 F.2d 421 (8th Cir. 1970) .................................. 34

Parson v. Kaiser Aluminum & Chemical Corp.,
575 F.2d 1374 (5th Cir. 1978) ................................. 40

Patterson v. American Tobacco Co., 535 
F.2d 257 (4th Cir. 1975), cert, denied,
425 U.S. 935 (1976) ...........................................  31

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Page

Patterson v. American Tobacco Co., 586
F.2d 300 (4th Cir. 1978) ....................................... 22

Patterson v. American Tobacco Co., 24 FEP 
Cases 531 (4th Cir. 1981), pending on
cert, on other issues, 49 U.S.L.W. 3648 (1981) ................  22

Payne v. Travenol Laboratories, Inc., 565 
F.2d 895 (5th Cir.), cert, denied, 434
U.S. 835 (1977) ................................................  47

Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973) ................  20

Penn v. Schlesinger, 497 F.2d 970
(5th Cir. 1974) (en banc) ...................................... 20

Pittman v. Anaconda Wire & Cable Co., 408
F. Supp. 286 (E.D. N.C. 1976) .................................. 21, 32

Provident Tradesmen B. & T. Co. v. Patterson, 390
U.S. 102 (1968) ................................................  49

Redmond v. Commerce Trust Co., 144 
F.2d 140 (8th Cir.) cert, denied,
323 U.S. 776 (1944) ............................................ 31

Reed v. Lockheed Aircraft Corp., 613
F.2d 757 (9th Cir. 1980) .......................................  22

Rich v. Martin Marietta Corp., 522 F.2d
333 (10th Cir. T975) ...........................................  22

Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir.), cert, denied, 404 U.S. 1006 (1971) ................  40, 49

Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972) ................................................  41, 42

RWDSU, Local 194 v. Standard Brands, 24 FEP Cases
409 (N.D. 111. 1981) ........................................ 24, 32, 33

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.
1970) ................................................  26

Schmidt v. Lessard, 414 U.S. 474 (1974) ..........................  47

Sherrill v. J. P. Stevens & Co., 551 F.2d 308 
(4th Cir. 1977), aff’g, 410 F. Supp. 770
(W.D. N.C. 1975) ...............................................  47

Singleton v. Wulff, 428 U.S. 106 (1976) ..........................  49

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Sinyard v. Foote & Davies, 13 FEP Cases
1257 (N.D. Ga. 1975) ........................................... 24

Sledge v. J. P. Stevens & Co., Inc.,
585 F.2d 625 (4th Cir. 1978) ................................ 43, 46, 47,

48,
Smith v. Trojan, 520 F.2d 492

(6th Cir. 1975) ................................................  34

Social Services U., Local 535 v. Santa Clara,
609 F.2d 944 (9th Cir. 1979) ..................... ............. 30

Stastnyv. So. Bell Tel. & Tel. Co.,
628 F.2d 267 (4th Cir. 1980) ................................... 31

Teal v. State of Connecticut, 25 FEP Cases 529
(2d Cir. 1981) .................................................  34

Texas Dept, of Community Affairs v. Burdine,
49 U.S.L.W. 4214 (March 4, 1981) ............................... 44

United States v. County of Fairfax, 629
F.2d 932 (4th Cir. 1980) ....................................... 48

United States v. Hunter, 459 F.2d 205 
(4th Cir.), cert, denied, 409 U.S.
934 (1972) .....................................................  48

United States v. Ironworkers Local 86, 443 F.2d 553
(9th Cir. 1971) ................................................  46

United States v. Local 38, IBEW, 428 F.2d 
144 (6th Cir.), cert, denied, 400 U.S.
943 (1970) .....................................................  48

United States v. Texas Educ. Agency, 429 U.S.
990 (1976) .....................................................  20

United States v. Warwick Mobile Homes Estates,
Inc., 558 F.2d 194 (4th Cir. 1977) ............................. 47, 48

United States v. W. T. Grant Co., 345 U.S.
629 (1953) .....................................................  48

Valentino v. USPS, 25 FEP Cases 24
(D. D.C. 1981) .................................................  35

Walker v. Kleindienst, 357 F. Supp. 749
(D. D.C. 1973) .................................................  18

Wetzel v. Portney, 548 F.2d 489 (4th Cir. 1977) ..................  20

Wetzel v. Liberty Mut. Ins. Co., 508 F.2d
239 (3d Cir. 1975) .............................................  23- 28

Page

viii -



White v. Carolina Paperboard Corp., 564
F.2d 1073 (4th Cir. 1977) ...................................... 30

Williams v. Norfolk & Western Ry. Co., 530
F.2d 539 (4th Cir. 1975) ....................................... 22

Wright v. National Archives, 21 FEP Cases 8
(4th Cir. 1976) ................................................  44

Constitutional and Statutory Provisions:

Fifth Amendment, U.S. Constitution ............................ 1, 4, 5, 15,
20, 21, 48

5 U.S.C. § 5596 ...................................................  16

5 U.S.C. § 7201 ................................................... 16

42 U.S.C. § 1981 ..................................................  4, 5

42 U.S.C. § 2Q00e .................................................  Passim

42 U.S.C. § 2000e-5(e) ............................................  23

42 U.S.C. § 2000e-5(g) ............................................  19

42 U.S.C. § 2000e-l6 ..........................................  4, 15, 18, 23

Civil Rights Act of 1964, Pub. L. No. 88-352,
§ 701(h) , 78 Stat. 241 ........................................ 16

N.C.G.S. § 1-52(1) ...............................................  21

Other Authorities:

E.O. 11478 ....................................................  2, 15, 16, 18

5 C.F.R. Part 713 ............................................... 23, 24, 26

29 C.F.R. § 1613.601 et se£...................................... 20, 26, 44

Rule 23, Fed. R. Civ. Pro.........................................  32

Rule 42, Fed. R. Civ. Pro.........................................  29

Page

Weahkee v. Norton, 621 F.2d 1080 (10th Cir. 1980) ...............  23

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Page

Advisory Committee Notes, Proposed Federal 
Rules of Civil Procedure, 39 F.R.D. 98
(1966) .........................................................  32

Federal Personnel Manual, ch. 335-6 ................................ 44

H. R. Rep. No. 238, 92nd Cong., 2d Sess.
Reprinted in 1972 U.S. Code Cong.
Admin. News 2137 ...............................................  17

11 Wright & Miller, Fed. Pract. & Pro.,
§ 2955 (1973) ................................................  47

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IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

NO. 80-1800

NAPOLEON CHISHOLM, et al.,

Plaintiffs-Appellees,

v.

THE UNITED STATES POSTAL SERVICE, et al.,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Western District Of North Carolina

BRIEF FOR PLAINTIFFS-APPELLEES

Issues Presented

1. Whether black federal employees have a judicial remedy for 

equal employment opportunity prior to March 1972 in an action alleging 

and demonstrating continuing violations of Title VII and, alternatively, 

the Fifth Amendment where an administrative charge was pending on the 

effective date of Title VII (March 24., 1972).

2. Whether the district court abused its discretion in certify­

ing a class action of black employees subject to the demonstrated 

discriminatory promotional system of the U. S. Postal Service in 

Mecklenburg County, North Carolina, including the promotion process, 

details, the use of written tests, and discipline.



3. Whether the district, court's meticulous findings of fact are 

clearly erroneous.

4. Whether the district court abused its discretion in framing 

injunctive relief carefully tailored to provide a remedy for the spe­

cific violations found.

~k /Statement of the Case—

This is an appeal from a judgment that the U. S. Postal Service 

in Mecklenburg County (hereinafter "USPS") subjected its black employees 

to continuing violations of Executive Order 11478, Title VTI and, alterna­

tively, the Fifth Amendment.

Administrative Proceedings

On March 15, 1972, Napoleon Chisholm, a black mail carrier, ini­

tiated an administrative charge of discrimination pursuant to Executive 

Order 11478 and implementing regulations of the U. S. Civil Service 

Commission (PX 1, p. 40). His formal complaint of discrimination, filed 

March 24, 1972, stated he was discriminatorily denied consideration for higher 

level positions of financial examiner and budget assistant, and "[t]hat 

such denial of equal opportunity for black employees in relation to pro­

motion in the U. S. Postal Service, Charlotte, N. C. is a continuing 

discriminatory practice" (M.O. 4). Chisholm gave as the date of the 

alleged discrimination, "[sjpecifically: March 4, 1972, and March 13,

1972," when two white employees were selected over him, and "[gjenerally,

1960 through present time" (Jd.). He further alleged that black employees 

were denied promotions to supervisory positions, excluded from promotion 

advisory boards and denied details to supervisory and other higher level 

jobs (M.O. 4-5). A USPS investigation was conducted (PX 1, p. 43). The

*/ The Memorandum Opinion is referred to as M.O.
-  2 -



investigation included, inter alia, statistical and other data, by race,

for December 1, 1970, through November 30, 1971, of work force by grade 

levels, promotions, rural carriers, details, training, discipline, 

recruitment, assignments, and initial level supervisory examination 

data (including test results, candidates considered and supervisors 

selected) (PX 1, pp. 56-68). Promotions from April 1, 1971, through 

March 31, 1972, were also analyzed. (PX 1, pp. 69-72)

A hearing was held limited to the denial of the two positions 

(PX 1, p. 16). The Civil Service Conmission examiner found that the 

positions permitted substitution of education for "specialized exper­

ience" in accounting at required grade levels (PX 1, pp. 80, 85) and that 

Chisholm had sufficient college credits to qualify for finance examiner 

(PX 1, p. 26). Evidence was presented that (a) "specialized experience" 

was improperly waived for white employees applying for similar jobs (PX 

1, pp. 27-29), (b) black employees were denied details to higher level 

jobs which often led to promotion (PX 1, pp. 167-168, 224-), although 

management argued that only employees who passed the initial level super­

visory examination were eligible for details (PX 1, pp. 122, 168), 

and (c) black employees were excluded from serving on promotion advisory 

boards (PX 1, p. 160). The examiner decided, inter alia, that Chisholm 

was denied consideration for finance examiner because of race, that 

qualification standards were inconsistently applied, and that 

Chisholm "be given priority consideration for promotion to the first 

available position for which he applies in which he meets the minimum 

qualifications" (PX 1, p. 30).

USPS adopted the examiner's decision and recommendations (PX 1, 

p. 12). Chisholm appealed to the Civil Service Commission, stating that

- 3



"on behalf of all of the minority employees in the Charlotte, N. C. Post 

Office and myself I am appealing to you for equitable relief from the 

practices of discrimination against the minority employees by manage­

ment in the Charlotte, N. C. Postal Office." The Board affirmed (PX 1, 

p. 9, M.O. 6a-7).

It is undisputed that Chisholm raised classwide issues of continuing 

discrimination, and that both USPS and the Civil Service Cormdssion ignored 

them (May 29, 1975, opinion, M.O. 6, 7).

Judicial Proceedings

On June 27, 1973, Chisholm timely filed this class action to enforce

§ 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, 42 U.S.C.

§ 1981 and the Fifth Amendment (Compl., A. Compl.). Five other black

Charlotte Post Office employees moved to intervene and filed a complaint
1/

as plaintiffs and*class representatives (Mot, Compl.). USPS raised 

numerous procedural and jurisdictional objections. On May 29, 1975, the 

court ordered that the action may proceed as a trial de novo under Title 

VII; alternative jurisdiction exists under 42 U.S.C. § 1981 "and, possibly, 

the Fifth Amendment"; a class was conditionally certified of black employ­

ees and applicants at "the Charlotte-Mecklenburg County branch" of USPS; 

and intervenors accepted as plaintiffs for all purposes (Order). The 

rulings were certified for interlocutory appeal and all discovery stayed 

(Id.). USPS sought, and this Court granted leave to appeal.

Briefing of the appeal was stayed pending Supreme Court review of 

related cases. Eventually, the parties agreed that the trial de novo

1/ USPS is wrong that intervenors did not seek to represent the class 
of black employees. Brief for Appellants, p. 3 (hereinafter Brief).
The complaint in intervention specifically incorporates the complaint's 
class allegations (A. Compl, I. Carpi).

4 -



ruling should be affirmed in light of Chandler v. Roudebush, 4-25 U.S.

84-0 (1976), and that the § 1981 ruling should be reversed in light of
2/

Brown v. GSA, 425 U.S. 820 (1976). USPS briefed class action and inter­

vention issues. Two years after filing, the appeal was dismissed on 

plaintiffs' unopposed motion, and the case remanded for further proceed­

ings (Mot., Resp., Order).

The case was tried in August 1979. At the close of trial, the 

court preliminarily found the promotional system and a range of sub­

sidiary and related employment practices discriminatory, and directed the 

parties to attempt to settle the case (M.O. 8). The parties could not 

agree. Thereafter, on June 23, 1980, the court issued a memorandum of

decision outlining soecific findings, and directing the parties to file
1/

proposed findings of fact and conclusions of law (Memo). A judgment and

2/ USPS is wrong that plaintiffs waived Fifth Amendment jurisdiction. 
Brief, 4, 25. The lower court had not definitively ruled on Fifth Amend­
ment jurisdiction (Order). The brief filed by USPS states: "On the basis
of Brown v. GSA, ... the district court's decision that this case may 
proceed upon the alternative basis of 42 U.S.C. § 1981 should be re­
versed." Brief for Appellants, 4th Cir. Nos. 75-2068, 2069 
Plaintiffs' brief states that it "agrees with the government ... that 
the decision that this case may proceed under 42 U.S.C. § 1981 should be 
reversed in light of Brown v. General Services Administration, supra." 
Brief for Appellee, p. 12, n. 13

USPS did not rely on any waiver. On the eve of trial, USPS moved 
to dismiss for lack of jurisdiction insofar as the action is brought 
under any provision other than Title VII, and did not mention any waiver 
(May 25, 1979, Mot.). The court below found no waiver.

3/ The court generally adopted plaintiffs' proposed findings and con­
clusions with modifications, and several of USPS' class findings (Aug.
28, 1981 Memo). USPS' findings on individual cases and conclusions of 
law were rejected because they were inconsistent with the memorandum of 
decision (id.). USPS filed no proposed judgment.

- 5 -



findings of fact and conclusions of law were issued on October 3, 1980 (Judg­

ment, M.O.) This appeal followed.

Statement of Facts

The facts are set forth in the lower court’s meticulously detailed 

and comprehensive memorandum opinion. This discussion is lim­

ited to describing certain parts of the record relevant to this appeal. 

Organization of the Workforce

The USPS in Mecklenburg County functions as a single personnel

system (M.O. 8-10). It is part of the larger Charlotte Sectional Center,

and personnel decisions made by supervisors and managers are reviewed

and approved by a single personnel office and Sectional Center Manager

(id.). There is undisputed substantial movement by employees between
4/

various functional areas and offices. (Id.) Employees are normally hired 

into craft positions, and promotion to higher level jobs is generally an 

"in-house" process from this internal labor pool (M.O. 10-13). Supervi­

sory positions, which are the bulk of higher level jobs, are usually 

filled by promotion of regular craft employees, and an employee first must 

be an initial level supervisor before moving to a higher level supervisory

4/ USPS in Mecklenburg County consists of the Charlotte Post Office, 
a first class post office with facilities both inside and outside 
Charlotte, and several small associate offices in the County outside 
Charlotte. Id. Chisholm, for instance, worked as a city carrier and in 
the finance division in the Charlotte Post Office, and as an officer-in­
charge in the Matthews associate office in the County outside Charlotte. 
(M.O. 68-72)

The finding of overall responsibility of Sectional Center management 
for personnel actions of all USPS facilities in Mecklenburg County is well 
supported. (E.g., PX 3, PX 21, pp. 7-9, 24—29.) USPS is wrong that asso­
ciate offices are independent. Brief, 6-7. The finding, in any event, 
is admittedly, id., not clearly erroneous.

- 6 -



or management position (Id.).

It is undisputed that black employees were disproportionately 

concentrated in lower level craft levels, and largely absent from upper 

levels through the date of filing of the action (M.O. 14— 17).

Higher Level Promotional System

The court found that the facially neutral promotional system was 

discriminatory in whole and in part. (M.O. 30-4-3) The following selec­

tion devices were found to be discriminatory components of the promo­

tional system:

a. The initial level supervisory examination, which was used for 

detailing and promotion to initial level supervisory positions, for 

detailing and selection to other higher level positions, as a substitute 

for experience requirements and generally by promotion advisory boards 

(M.O. 18, 21-22, 35, see generally, 19-28);

b. Detailing to higher level positions for training and to gain 

"specialized experience" and "general experience" for eventual promotion 

to such positions (M.O. 39-40, 42-43, 53-60);

c. Waiver of experience requirements to favor whites (M.O. 35-36);

d. Subjective, standardless and arbitrary promotion advisory board 

and postmaster determinations favoring whites (M.O. 36-41);

e. Deviation from procedures in order to avoid selection of black 

employees (M.O. 41);

f . Discipline practices which disproportionately penalized black 

employees and their prospects for promotion (M.O. 60-63); and

5/ The court found that initial level supervisory positions were desig­
nated Postal Service pay levels 7-9 were redesignated Postal Management 
Schedule levels 15-17 after March 5, 1973. Higher level non-supervisory 
positions continued to be designated Postal Service 7 and above. (M.O.
11, 12, see 106-107). USPS is wrong that the court was not aware of 
these designations. Brief, p. 18.

1/

- 7 -



USPS admitted that it had discriminated against black employees 

prior to 1970, and all evidence, statistical and testimonial, is con­

sistent (E.g., M.O. 117, 14— 16, 43-47.). With respect to the post-1970 

period "[rjegardless of whether the court utilizes the statistics 

asserted by plaintiffs or defendants, a prima facie case of discrimina­

tion is presented" (M.O. 106). Using defendants' figures, of 114 promo­

tions to levels 7-9 (levels 7-15 after March 1973) during the 1970-1975 

period, only 14 went to black craft employees although the relevant labor 

pool of employees level 6 and below was 30% black (M.O. 106-108). This 

statistical disparity is 4.13 standard deviations from the expected num­

ber of 34.2 promotions black craft employees would have received had 

there been a non-discriminatory system (id.), and the disparity presents 

a compelling case of discrimination. See, Castenada v. Partida, 430 

U.S. 482, 496 (1977); Hazelwood School District v. United States, 433 

U.S. 299, 311 (1977); EEOC v. United Virginia Bank, 615 F.2d 147 (4th

Cir. 1980). If plaintiffs' figures are adopted, the promotion picture
6/

shows more discrimination against blacks. The court also found that 

only 5 of 50 upper level promotions above level 9 (above level 15 after 

March 1972) went to blacks from March 24, 1972, to December 31, 1975, 

and that post-1975 figures show some improvement as a result of litiga­

tion pressure (M.O. 107). The court also found that the labor pool

6/ USPS is wrong that the court relied on plaintiffs' statistics, 
which it contends are unreliable. USPS plainly ignores that the court 
applied the Castenada analysis to defendants' figures and found compel­
ling discrimination (M.O. 106-108). Plaintiffs' statistics, even taking 
account of defendants' objections, show discrimination (M.O. 43-52)- 
The analysis of statistics is plainly not clearly erroneous.

g. Exclusion of black employees from management training and

rural carrier positions (M.O. 64-66).

- 8 -



was discriminatorily composed, would perpetuate prior discrimination,

and was not justified by any showing of business necessity (M.O. 108-110,
7/

see 51b-52).

The statistical proof was buttressed by undisputed evidence that 

selection procedures were standardless, subjective, unreviewable, and 

often wholly ignored in favor of whites (M.O. 35—41, 57, 111-113).

There was also a substantial record that plaintiffs and class members were 

denied numerous promotions to all levels and kinds of higher level posi­

tions from 1970 through 1978. E.g., Chisholm (M.O. 58-72), Rushing (M.O. 

72-75), Hart (M.O. 75-77), McCombs (M.O. 77-79), Holman (M.O. 79-81),

Little (M.O. 81-82), Pettice (M.O. 82-83), Lee (M.O. 84-85), Dixon (M.O. 

85-87), McGill (M.O. 87-89), Yongue (M.O. 90), Talbert (M.O. 91),

McCullough (M.O. 92), Morgan (M.O. 92-93), and Harrison (M.O. 94-95). 

Findings in two-thirds of these individual cases are not disputed.

Initial Level Supervisory Examination

From, at least, 1969 to 1975, USPS established initial level 

supervisory promotion registers based on craft employees' scores on 

several versions of an OS 100 initial level supervisory examination 

(M.O. 20-28, 114-116). The examination had severe adverse inpact and 

USPS made no attempt to show that the examination was a valid selection 

device or the device with the least adverse inpact (Id.). The examination

7/ The involvement of district office management in certain promotions 
is irrelevant. See, Brief, pp. 10, 12, in light of USPS' concession that 
the Postmaster General is a proper defendant. Brief, 24.

8/ USPS is wrong that the court did not distinguish between several 
versions of the examination. Brief, p. 8. The court discussed and 
found that each examination had severe adverse impact using both chi

consisting of lower high level employees for these upper level positions

9



was used as a pass-fail mechanism: only those passing were put on the

initial level supervisory promotion register. However, only employees 

in a top 15 percent "zone of consideration" or employees in rank order 

on the register were then considered,; practices that aggravated the 

adverse impact of the test and were unjustified (Id.). It is undisputed 

that the initial level supervisory register was used for more than 

detailing and promotion to initial level supervisory positions. The register 

was also used as a criteria for detailing and selection to other upper 

level positions not formally requiring the examination, as a substitute

for otherwise required experience and for the general use of promotion
9/

advisory boards (M.O. 18, 21-22). These findings are not clearly 

erroneous.

8/ Continued

square analysis and the "four-fifths rule" and that each examination was 
unvalidated (M.O. 20-28).

USPS also suggests that the court ignored other tests, Brief, 8, 
but the court expressly noted that separate tests were used to fill initial 
level supervisory jobs in maintenance (custodial), building maintenance 
and motor vehicle areas, where there are few supervisory positions (see 
M.O. 11, 20).

9/ USPS is wrong that this finding has no record support. Brief, pp.
9-10. The very finance examiner position sought by Chisholm, for example, 
permitted substitution of the examination score for specialized experience. 
(PX 1, p. 80; DX 12, Exh. 1, p. 3; T.R. 623-624-.) The qualifications 
analysis work sheet given to promotion advisory boards for use in filling 
all higher level vacancies has a place for test data (Tr. 601, PX 12,
Exh. 8.).

In any event, these findings are unrebutted and uncontradicted.
USPS presented no contrary evidence at trial.

10



The district court made findings that the following black employees

were discriminated against as a result of failing the examination or

not scoring high enough to be considered between 1970 and 1976, thus

being denied details, promotions and other benefits: Chisholm

(M.O. 68, 70), Hart (M.O. 75), McCombs (M.O. 77), Holman (M.O. 79-80),

Little (M.O. 84-), Dixon (M.O. 86), Talbert (M.O. 91), McCullough
10/

(M.O. 92), and Morgan (M.O. 93).

Details to Higher Level Positions

Details or temporary assignment of craft employees by their imme­

diate supervisors to higher level positions provide training, enable 

a craft employee to meet specialized and general experience require­

ments for eventual promotion, and entitle an employee to receive higher 

level pay (M.O. 53). While details to initial level supervisory jobs 

were theoretically required to be made from the supervisory register, 

there were in fact no written guidelines, no review procedures, and abuse 

in favor of white employees (M.O. 54— 57, 113). USPS and Civil Service 

Commission investigations revealed the same thing. (Id.) The court 

found that "[w]hite supervisors and managers have tended to detail their 

white 'buddies' to upper level supervisory and managerial jobs thereby 

grooming such buddies for the permanent vacancies" (M.O. 55). The court

10/ USPS is wrong that certain initial level supervisory promotion sta­
tistics show no discrimination. Brief, p. 8. The court, however, found 
that black employees were denied other benefits: The statistics do not
include details and do not include promotion to jobs other than initial 
level supervisory positions and cover only the March 1972-1974 period.
In any event, USPS' figures show there was disparate impact in initial 
level supervisory jobs in 1972-1973 when only one of 10 such 
jobs went to a black employee (M.O. 116).

- 11 -



found numerous undisputed specific examples of whites being preferen­

tially detailed for long periods over black employees and obtaining 

promotions from 1970 to 1978 (M.O. 55-56). E.g., Chisholm (M.O. 68, 70),

Rushing (M.O. 73-74), Hart (M.O. 76), Holman (M.O. 80-81), Pettice (M.O. 

82-83), McCullough (M.O. 92). In addition, blacks were denied details 

because they failed the discriminatory supervisory examination. See, p. 7-11, 

supra. Statistical evidence beginning in 1965 shows graphically the

exclusion of blacks, particularly from the better upper level details 
11/

(M.O. 58-60).

Discipline

Discipline was significant not only because of its immediate effects, 

which include termination, suspension, and loss of wages, but as part of a dis­

criminatory environment (M.O. 60-64, 118). Uncontradicted evidence demon-
4

strates that from January 1970 through September 1978, the ratio of black 

employees to white employees involuntarily separated was more than 2 to 1

11/ USPS is wrong that there was no evidence of disproportionate 
selection for details after 1973. Brief, pp. 12-13. After March 1973, 
USPS statistics lumped together all details no matter what their level 
(M.O. 60). The court, therefore, while noting some improvement, found 
it inpossible to determine if the best upper level details were still 
given disproportionately to whites, as the pre-1973 statistics plainly 
show. (Id.) In addition, the court relied on unrebutted non-statistical 
evidence which showed continuing discrimination in details after 1973. 
Supra.

USPS is also wrong that lumping statistics at all levels for 1972 
and 1973 helps them. Brief, p. 12. The statistics still show discrim­
ination. Moreover, non-statistical evidence showed that white employees 
got the better and longer details (M.O. 54-56). USPS did not dispute 
this evidence. Nor did USPS attempt to show that blacks were unquali­
fied for details, which, in any event, are training assignments (M.O. 
53-54) •

12 -



although blacks are only 30% of the workforce (Id.). Pre-suit, 86.4-%

(38 of 44) of all employees discharged were black. Statistics for other 

disciplinary actions in 1975 and 1976 also show disproportion of black 

employees. The uncontradicted record also shows that there were no 

objective criteria, guidelines or adequate review procedures for dis­

ciplinary actions. Findings in individual cases are also unrebutted. 

Chisholm (M.O. 72), Mosley (M.O. 63, 95-96), Brooks (M.O. 63), Todd (M.O. 

63), McGill (M.O. 64, 89), and Mitchell (M.O. 85).

Other Policies and Practices

USPS does not raise any questions as to uncontradicted findings 

that: Black employees, including Chisholm, were denied the opportunity

to participate in the management training program (M.O. 64-65). The 

administrative process for dealing with complaints of discrimination was 

ineffective (M.O. 65-66, 119). Black employees, including Mosely, were 

denied rural carrier positions, which were all white until the eve of 

trial (M.O. 66-67, 95).

Individual Claims

With respect to individual cases, plaintiffs rely on the court's 

extensive findings of fact, which have substantial support in the record 

and are not clearly erroneous (M.O. 67-96). USPS objects to findings in 

only 5 of seventeen cases, which we respond to at pp. 43-46, infra. 

Judgment

The judgment provides detailed injunctive relief for the violations 

found, including the following:

USPS was enjoined from discriminating against the class with 

respect to a set of specific violations, viz., "promotions (including 

all conponents of the promotion process), details, the use of written

13 -



tests, discipline, or pay, in any fashion, intentionally or unintention­

ally, because of their race or color" (J.l). The class was revised to 

include only black employees from March 24, 1970 (the back pay limita­

tions period) to date of judgment who were subject to discrimination in 

premotions, details, use of written tests, discipline or pay (J.2).

USPS was required to pay back pay to each plaintiff or class 

member who establishes entitlement for discrimination in promotion, 

detailing or discipline since March 24, 1970. However, the issue of 

individual entitlement was referred to a master (Id.). The court ordered 

that specific relief be provided in the seventeen individual cases, but 

that "exact parameters of the promotions and details to which said indi­

viduals are entitled and the amount of back pay they should received shall 

be determined by the master" (J.3). The court also ordered that 7 of the 

seventeen individuals be promoted to the next vacancy at specified levels 

or specified jobs, "unless USPS can show by clear and convincing evidence 

that they are not qualified or cannot assume the position with a reason­

able amount of training " (J.3). Additional claims could be presented 

to the master, but only "with respect to promotions, detailing and disci­

pline for actions which occurred within the limitations period" (J.4).

USPS was enjoined "to take affirmative efforts to achieve the 

recruitment, appointment and promotion of qualified black persons" to use 

"as a goal but not as a rigid quota" and "as a framework' to seek to reach 

certain higher level workforce percentages reflective of the black USPS 

Mecklenburg workforce (J.5). Extensive reporting was ordered (J.5-7),

USPS was also ordered to formulate objective criteria for promotions, 

details and discipline; establish a new job of EEO Employee Complaints 

Representative; to use only validated written tests or other selection 

devices for jobs level 9 and above, and to pay an interim award of fees 

(J .7-9).
- 14 -



A R G U M E N T

I.

The District Court Had Power 
to Remedy Racial Discrimination 
Extending Back to March 24, 1970

The district court correctly ruled that there was a judicial 

remedy for continuing violations of Executive Order 11478, §717 of 

Civil Rights Act of 1964, 42 U.S.C. §2000e-l6, and the Fifth 

Amendment extending back to March 24, 1970, where an administrative 

complaint was pending when §717 went into effect on March 24, 1972. 

(M.O. 105-106, 117-118). USPS' objections have no support in the 

record or law. See, Brief, 23-27.

A. Title VII and, Alternatively, the Fifth Amendment, Provide A
Judicial Remedy for Discrimination Back to March 24, 1970.

USPS concedes that Title VII jurisdiction exists for post-March 

1972 claims of discrimination, but declines to accord full effect to 

Roger v. Ball, 497 F.2d 702 (4th Cir. 1974), with respect to 

retroactive relief. Compare, Carreathers v. Alexander, 587 F.2d 

1046, 1051-1052 (10th Cir. 1978); Chewning v. Schlesinger, 471 F. 

Supp. 767, 774-775 (D.D.C. 1979).

In Roger, supra, 497 F.2d at 706, this Court held that where, as

here, an administrative "complaint of discrimination based on race

... [was] brought pursuant to ... Executive Order 11478," Title VII

applies and provides a judicial remedy for administratively pending

claims. The Court explained that:

[T]he 1972 Act did not create a new substantive 
right for federal employees. The Constitution, 
statues, and executive orders previously 
granted them the right to work without 
racial discrimination. Sections 717(c) 
simply created a new remedy for the enforcement 
of this existing right.

- 15



497 F.2d at 705. (emphasis added)12/

Prior to the enactment of §717, the federal government had long 

barred its departments and agencies from discrimination on the ground 

of race pursuant to the Fifth Amendment, statutory law and executive 

order. See, Brown v. GSA, 425 U.S. 820, 825 ( 1976); Koger v. Ball, 

supra, 497 F.2d at 704-705, n. 7. In 1964, Congress included a 

provision in Title VII, as orginally enacted, that federal policy 

prohibited discrimination by federal agencies on account of, inter 

alia , race or color. Civil Rights Act of 1964, Pub. L. Mo. 88-352, 

§701(h). 78 Stat. 24l.il/ This policy of Title VII was effectuated

through a series of executive orders, including E.0. 11478, 34 Fed. 

Reg. 12985 (1969) which prohibited employment discrimination and 

imposed an affirmative duty on each federal agency to promote equal 

employment opportunity, and Civil Service Commission administrative 

procedures. See Koger v. Ball, supra, 497 F.2d at 704.

12/ Koger has been followed by every Circuit which has subsequently 
addressed the question. See, Carreathers v. Alexander, supra, 587 
F.2d at 1050, n. 1. (collecting cases).

13/ Congress reenacted this proviso as a separate statutory duty of 
the federal government in 1966. 5 U.S.C. § 7201. In the same year,
Congress fortified these rights by authorizing back pay awards to all 
federal employees who suffered losses as a result of certain unjustified 
or unwarranted personnel actions contrary to law or regulation. 5 
U.S.C. § 5596.

- 16 -



"The 1972 extension of the Civil Rights Act to Government

employment is in large part merely a codification of prior anti- 

discrimination Executive Orders." Morton v. Mancari, 417 U.S. 535, 

549 (1974). Thus, legislative history states that the existing 

executive order, like Title VII, was violated by unjustified 

"disparate impact" as well as intentional discrimination, but that 

administrative authorities had erred by not fully applying the 

disparate impact standard in administrative proceedings.lii/

14/ [T]he Civil Service Commission has been plagued
by a general lack of expertise in recognizing 
and isolating the various forms of discrimina­
tion which exist in the system ... The Civil 
Service Commission seems to assume that employ­
ment discrimination is primarily a problem of 
malicious intent on the part of individuals.
It apparently has not recognized that the gen­
eral rules and procedures it has promulgated 
may actually operate to the disadvantage of 
minorities and women in systemic fashion ...
Civil Service selection and promotion require­
ments are replete with artificial selection and 
promotion requirements that place a premium on 
"paper" credentials which frequently prove of 
questionable value as a means of predicting 
actual job performance. The problem is further 
aggravated by the agency's use of general ability 
tests which are not aimed at any direct relation­
ship to specific jobs. The inevitable consequence 
of this, as demonstrated by similar practices 
in the private sector, and, found unlawful by 
the Supreme Court, is that classes of persons 
who are culturally or educationally disadvan­
taged are subject to a heavier burden in seek­
ing employment.

H.R. Rep. No. 238, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code
Cong. & Admin. News 2137, 2159-

- 17



The change effected by the 1972 amendments, therefore, was remedial.

"Sections 717(b) and (c) establish complementary administrative and 

judicial enforcement mechanisms designed to eradicate federal employ­

ment discrimination," Brown v. GSA, supra, 425 U.S. at 831, inasmuch 

as the "Executive Order ... had proved ineffective because of inade­

quate enforcement machinery." Morton v. Mancari, supra, 417 U.S. at 

549. Thus, §717 (c) provides, in pertinent part, that "on a com­

plaint of discrimination based on race [or] color ... brought pur­

suant to ... Executive Order 11478 ... an employee ... if aggrieved 

by the final disposition of his complaint ... may file a civil 

action."75/ Section 717(c) made the courts "the final tribunal for 

the resolution of controversies over charges of discrimination after 

all administrative remedies have been exhausted."

This policy applies with equal reason to discrimination 
that occurred either before or after the passage 
of the Act when the earlier discrimination was 
the subject of administrative proceedings at 
the time of enactment. In both instances, the 
wrong is similar.

Roger v. Ball, supra, 497 F.2d at 706. "It is a well settled rule of 

construction that 'a remedial statute shall be so construed as to 

make it effect its evident purpose and if the reason of the statute 

extends to past transactions, as well as those in the future, then it 

will be so applied,' "16/

15/ A savings clause was included that, "federal agencies were not 
relieved of responsibilities under Executive Order 11478 relating to 
equal employment opportunity in the Federal Government." §717(e).

16/ Henderson v. Defense Contract Administration Services, 370 F. 
Supp. 180, 183 (S.D.N.Y. 1973), quoting, Walker v. Kleindienst, 357 
F. Supp. 749, 751 (D. D.C. 1973); see also, Chewning v. Schlesinger, 
471 F. Supp. 767, 774 (D. D.C. 1979).

- 18 -



§717 (d) expressly provides that " [t]he provisions of section 

2000e-5(f) through (k) of this title, as applicable, shall govern 

civil actions brought hereunder." See Chandler v. Roudebush, supra, 

425 U.S. at 845-848. Section 706(g) of Title VII, 42 U.S.C. § 2000e- 

5(g) therefore is incorporated. That provision states, in pertinent 

part, that injunctive relief, including back pay, is an "appropriate" 

remedy and that "[b]ack pay liability shall not accrue from a date 

more than two years prior to the filing of a charge. Back pay is 

therefore available in a Title VII action for a two year period prior 

to the filing of the administrative charge or, in the instant action, 

March 24, 1970. Carreathers v. Alexander, supra, 587 F.2d 1051-1052 

(back pay extending back two years to July 10, 1970 may be recovered 

where administrative complaint filed July 1972); Chewning v. 

Schlesinger, supra, 471 F. Supp. at 774-775; see also, Moore v. City 

of San Jose, 615 F.2d 1265, 1272-1273 (9th Cir. 1980).

Sovereign immunity is no bar. Congress "intended by enacting 

§ 717(c) to grant employees consent to sue for redress of pending 

cases of pre-Act discrimination." Koger v. Ball, 497 F.2d 708-709; 

Carreathers v. Alexander, supra. "To exclude the effects of pre-Act 

discrimination from the computation of back pay in the present case 

would frustrate the remedial purpose of the 1972 amendments by 

impairing the ability of the class members to vindicate fully their 

long-established right to be free from employment discrimination." 

Chewning v. Schlesinger, 471 F. Supp. 767, 774 (D. D.C. 1979). See 

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 421 (1975).

- 19



Although it is unnecessary to decide the constitutional question

in light of controlling authority on the retroactive scope of Title 

VII, supra,1Z/ the Fifth Amendment provides an alternative basis of 

jurisdiction for pre-1972 claims (M.O. 106). Davis v. Passman, 442 

U.S. 228 (1979); Hanson v. Hoffman, 21 FEP Cases 1645, 1649 (D.C.

Cir. 1980) (federal employment discrimination); see also, Carlson v. 

Green, 446 U.S. 14 ( 1980). Thus, Brown v. GSA, supra, 425 U.S. at 

825,_826, recognized that "federal employment discrimination clearly 

violated ... the Constitution ... before passage of the 1972 Act" and 

that "an action seeking to enjoin unconstitutional agency conduct 

would lie." Doubts expressed by the Court as to whether judicial 

relief was available, id., were subsequently answered for Fifth 

Amendment claims where Title VII is unavailable in Davis v. Passman, 

supra, 4.42 U.S. at 246-249, which states that "we do not now interpret 

§ 717 to foreclose the judicial remedies of those expressly unprotected 

by the statute." Nor do administrative exhaustion requirements apply 

to Fifth Amendment actions.I^/ The lower court correctly determined

17/ See, Hagans v. Lavine, 415 U.S. 528, 549 (1974). If the Fifth 
Amendment is the only judicial remedy, a remand is necessary for 
further proceedings. See, U.S. v. Texas Educ. Agency, 429 U.S. 990 
(1976).

18/ See, Brown v. GSA, 425 U.S. at 833 (any non-Title VII judicial 
remedies would not impose § 717's "rigorous administrative exhaustion 
requirements"); Johnson v. Railway Express Agency, 421 U.S. 454, 461— 
462 (1975) (42 U.S.C. § 1981). Penn v. Schlesinger, 490 F.2d 700, 
707-714 (1973), adopted in 497 F.2d 970; (5th Cir. 1974) (en banc) 
was decided before Brown and Johnson and Wertzel v. Portney, 548 F.2d 
489, 492 (4th Cir. 1977), concerned exhaustion in a Title VII action.

In any event, Chisholm clearly exhausted his individual claim. 
What the Postal Service is arguing is that Chisholm or class members 
did not exhaust class claims. However, there was no administrative 
procedures for class complaints of discrimination until 1979- See,
29 C.F.R. § 1613-601 et seg., orginally adopted pursuant to Barrett 
v. U.S. Civil Service Commission, 69 F.R.D. 544, 549-554 (D. D.C. 
1975).

20



that the three-year limitations period found in N.C.G.S. § 1-52(1) is 

the appropriate limitations period, Pittman v. Anaconda Wire & Cable 

Co•) 408 F. Supp. 286, 293 (E.D. N.C. 1976), and that relief pursuant 

to the Fifth Amendment should go back to June 27, 1970 (three years 

prior to filing).i£/

B. A Remedy for Classwide Continuing Violation of Law Back to March
24, 1970 Is Appropriate._______________________________________ _

The district court did not abuse its discretion by including in 

the class black employees subject to discrimination since March 24, 

1970 (M.O. 104, 117, J.2). USPS, Brief, p. 27, asserts with no 

record support that the case "challenge[s] discrete acts, any of 

which may have been lawful or unlawful." This factual premise wholly 

ignores that the administrative complaint specifically put USPS on 

notice that the case discrimination "is a continuing discriminatory 

practice" and that the date of alleged discrimination is "[g]enerally: 

1960 through present time." See, p. 3, supra also ignores

express findings (e.g., M.O. 119)-

19/ Chisholm did not somehow waive Fifth Amendment claims, nor did 
USPS rely on any concession. See, p. 5, n. 2 supra. Brown v. GSA, 
supra, 425 U.S. at 823-824 and n. 3, moreover, did not decide any 
Fifth Amendment claims. Nor did the court find any waiver or 
prejudice. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 423- 
424.

The record does not show that USPS destroyed any documents 
because of any waiver. These documents, in any event, were sought by 
plaintiffs for proof of their Title VII claims. Chisholm's 
administrative complaint, for instance, alleged discrimination since 
1960. See p. 2, supra.

20/ Indeed, the administrative investigation included personnel 
■data from December 1970 forward.

21



In Patterson v. American Tobacco Co., 24 FEP Cases 531> 536 (4th Cir.

1981) (en banc), pending on cert, on other issues, 49 U.S.L.W. 3648- 

3649 (1981), this Court analyzed the impact of United Airlines, Inc, 

v. Evans, 431 U.S. 553 (1977), upon a case with a similar factual 

posture of "continuing violations of Title VII."

In Evans the Court specifically rejected 
the employee's claim that the failure to accord 
her retroactive seniority benefits constituted 
a "continuing violation" that was not time- 
barred. Rejection was on the basis that the 
seniority system itself was not charged or 
proven to constitute an existing violation of 
the claimants' rights to nondiscriminatory 
conditions of employment. In the instant case, 
by contrast, the violations charged and found 
by the district court were "continuing" in the 
very sense not present in Evans. Here the promotional 
policies adopted in 1968 were alleged by the 
claimants, found by the district court, and 
affirmed by this court to involve a continuing 
pattern or practice of dicrimination that 
locked black and women employees into less 
favorable positions. These effects, unlike the 
denial to the Evans claimant of retroactive 
seniority benefits, constitute truly "continuing" 
violations of Title VII. Hence, claims related 
to these violations are not barred by failure 
to have challenged at its inception the policy 
which gave continuing rise to them.

Compare, Patterson v. American Tobacco Co., 586 F.2d 300, 304 (4th

Cir. 1978); Jenkins v. Home Ins. Co, 24 FEP Cases 990 (4th Cir.

1980); Williams v. Norfolk & Western Ry. Co., 530 F.2d 539, 542 (4th

Cir. 1975).

21/ Accord, Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760-761 
(9th Cir. 1980); Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978); Clark 
v. Olinkraft, Inc., 556 F.2d 1219, 1222-1223 (5th Cir. 1977); Rich v. 
Martin Marietta Corp., 522 F.2d 444, 328 (10th Cir. 1975).

22



Thus, the law of the Circuit is that Chisholm timely filed 

administrative charges concerning continuing violations of Title VII 

since, at least, March 24, 1970. Defendant suffers no prejudice.22/ 

USPS also erroneously argues that the class may include only

black employees who could have filed a timely charge within the 15 

day limitations period of Chisholm's March 15, 1972, complaint, i.e ., 

March 1, 1972, Brief, pp. 24-27, in reliance on Wetzel v. Liberty 

Mutual Ins. Co., 508 F.2d 239, 246 (3d Cir. 1975). Wetzel however, 

concerned a statutorily-imposed limitations period, § 706(e), 42 

U.S.C. § 2000e-5(e), but none applies here.22a/ If Congress had 

intended to enact a similar rule for federal employees it could easily 

have done so, either expressly or by incorporating §706(e) through 

§717(d). Congress did not. 5 C.F.R. §713- 2l4(a)(i), in any event,

22/ Where a discriminatory policy continues in
existence, the critical question posited by 
Evans— whether any present violation exists— is 
answered in the affirmative. In such a case, 
the continuing violaton theory is not being 
used to attack an employer policy which no 
longer is in existence, but rather, it operates 
to bring within the scope of litigation all 
those acts which are pursuant to the present 
policy of the employer. Use of the continuing 
violaton theory in the former instance clearly 
would undermine the goals served by the statute 
of limitations. An employer could be unfairly 
surprised by state claims brought on the basis 
of discrete acts performed far in the past. In 
the latter cause however, any acts for which 
the employer is held liable would be the result 
of a policy which he maintained up to the date 
of the complaint. Accordingly, he cannot claim 
that the statute of limitations is circumvented 
by holding him responsible for the results of 
that policy.

RWDSU, Local 194 v. Standard Brands, 24 FEP Cases, 409, 417 (N.D.
111 . 1981).

22a/ Cooper v. Bell, 24 EPD 11 31,215, pp. 17, 435-36 (9th Cir. 1980); 
see, Weahkee v. Norton, 621 F.2d 1080, 1081 (10th Cir. 1980) (admin­
istrative limitation non-jurisdictional).

- 23 -



is inappropriate because class allegations were not accepted so there in 

fact was no prejudice to USPS, see, p. 4, supra, and § 713.214(a)(1) is 

waivable. See, § 713.214(a)(2). Moreover, the limitations should not 

be applied across-the-board at the outset to "deny relief to some indi­

viduals who, in fact would qualify for an award of back pay," but on a
23/

case-by-case basis in second stage proceedings as the equities require.

II.

The Class Action Was Properly Certified and 
Defined Pursuant to Rule 23, Fed. R. Civ. Pro.

The court was careful in his treatment of the class action. Ini­

tially, the class was conditionally certified in May 1975 to cover both 

applicants and employees errployed at the Charlotte-Mecklenburg County 

branch of USPS subject to discrimination. (Order, pp. 1-2) USPS appealed 

the certification, but then abandoned its appeal. See, pp. 4-5, supra.

In July 1979, the class was revised to exclude applicants in light of 

Hill v. Western Electric Co., 595 F.2d 99 (4th Cir. 1979) (M.O. 101- 

104). After trial, the court found that:

Plaintiff Chisholm is a member of the class of blacks 
who has suffered as a result of discrimination at USPS.
The evidence leads the Court to conclude (a) that 
blacks at USPS have historically been limited and 
restricted to lower level jobs in spite of regula­
tions and Executive Orders prohibiting discrimination,
(b) that such discrimination continued after March 24,
1972, (c) that the pervasive discrimination infested 
the whole range of personnel practices including poli­
cies and practices relating to detailing, testing, 
discipline and promotion, and (d) that Chisholm and

23/ McBroom v. Western Electric Co., 429 F. Supp. 909, 912-913 (M.D.
N.C. 1977); RWDSU, Local 194 v. Standard Brands, 24 FEP Cases 409, 417- 
418 (N.D. 111. 1981); IMPACT v. Firestone, 24 FEP Cases 572, 577 (N.D.
Fla. 1980); Bridges v. Brown Williamson Tobacco Corp., 414 F. Supp. 371 
(E.D. Va. 1976); Sinyard v. Foote & Davies, 13 FEP Cases 1257 (N.D. Ga. 
1975).

The class member limitations period for the new administrative class 
action procedure, see, p. 20, n. 18, supra, is 135 days for class members. 
29 C.F.R. 1613.614‘(cr)'.

24 -



the class he represents have been adversely affected 
by defendants' discrimination and are entitled to 
appropriate relief.

(M.0.103-04.) The court further revised the class (a) to limit theclass 

to employees from March 24, 1970, to the date of judgment, and (b) to 

limit further the class to employees actually subject to specific dis­

criminatory practices, i.e., "promotions (including all components of 

the promotion process), details, the use of written tests, discipline, 

or pay" (M.0. 104, J.2). USPS does not challenge the court's findings 

as to numerosity, commonality, and typicality under Rule 23(a), Fed. R. 

Civ. Pro., or that Rule 23(b)(2) prerequisites are met (M.0. 102-104). 

These findings are plainly correct.

USPS limits its challenge to exhaustion and adequacy of represen­

tation, and to the scope of the class. Brief, 38-45.

A. The Class Was Properly Certified.

1. Exhaustion

USPS concedes that Chisholm's administrative complaint raised 

promotion and detailing issues, but argues that certain other issues 

were not exhausted. This contention has no basis in law or fact.

The law of the Circuit is that in a Title VII action:

The charge is not to be treated as a camion-law 
pleading that strictly cabins the investigation 
that results therefrom, or the reasonable cause 
determination that may be rested on that inves­
tigation. The charge merely provides the 
[agency] with "a jurisdictional springboard to 
investigate whether the employer is engaged in 
any discriminatory practices!" and that inves­
tigation may well "disclose, as in this instance, 
illegal practices other than those listed in the 
charge." ...

EEOC v. General Electric Co., 532 F.2d 359, 364 (4th Cir. 1976). The 

general rule is that a suit '"may encompass any kind of discrimination

- 25 -



like or related to allegations contained in the charge and growing out

of such allegation during the pendency of the case before the [agency]. "
24/

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).
25/

Indeed, applicable administrative regulations required no less.

Application of these principles to the record is not difficult.

The initial level supervisory examination was.in fact a subject of the 

administrative investigation and the supervisory register was raised by 

management itself as the reason black employees were denied details.

24/ See, e.g., EEOC v. General Electric Co., supra (sex claims per­
mitted where test alleged to be racially discriminatory only); Sanchez 
v. Standard Brands, Inc., supra (discharge and national origin claims 
permitted where only harassment and sex discrimination issues stated 
in charge); Danner v. Phillips Petroleum Co., 447 F.2d 159, 161-162 (5th 
Cir. 1971) (seniority issues permitted where only discharge alleged 
because they would reasonably arise because of inquiry into reasons for 
discharge); Gamble v. Birmingham So. R.R. Co., 514 F.2d 678, 687-689 
(5th Cir. 1975) (supervisory promotion reasonably related to conductor 
promotion alleged where EEOC did not investigate).

25/ Federal employment claims at the administrative
level are also entitled to broad construction.
The agency's own regulations require that the 
investigation of administrative complaints shall 
include:

"(a) *** thorough review of the cir­
cumstances under which the alleged discrim­
ination occurred, the treatment of members 
of the complainant's group identified by 
his complaint as compared with the treatment 
of other employees in the organizational 
segment in which the alleged discrimination 
occurred, and any policies and practices 
related to work situations which may consti­
tute discrimination even though they have 
not been expressly cited by the complainant."
5 C.F.R. § 713.216(a).

In addition, 5 C.F.R. § 713.218(c)(2) requires the 
complaint examiner to develop a complete record and 
to record into evidence "information having a bearing 
on the complaint or employment policies and practices 
relevant to the complaint ***."

Ellis v. NARF, 404 F. Supp. 391, 395 (N.D. Cal. 1975). 5 C.F.R. Part
713 is now codified as 29 C.F.R. 1613.601 et seq.

-  26 -



See p. 2, supra; see also, p. 10 n. 9. Discipline and rural carrier

workforce were also in fact investigated. (Id.) Moreover, the central

promotional system issue cannot be narrowly cabined. See, pp. 7-8,

supra. It is not disputed that discipline, like the initial supervi-
27/

sory examination, was a criterion for promotion (M.O. 6). Not only 

should USPS have been on notice of like and related issues which rea­

sonably grew out of the administrative charge; the uncontradicted
28/

record shows that it in fact was.

2. Adequacy of Representation

After hearing the case, the court expressly found that 

"[pjlaintiff Chisholm is a member of the class of blacks who has suffered 

as a result of discrimination at USPS." The court had previously found

26/

26/ USPS asserts that an investigation of the initial level supervi­
sory examination.was not required by the complaint. Brief, 39. How­
ever, testing statistics in fact were investigated by the USPS and the 
results were offered by management as a "reason" for the failure of blacks 
to be detailed and hence promoted. See, p. 2, supra. Compare, Danner v . 
Phillips Petroleum Co., supra, 447 F.2d at 161-162. No doctrine of Title 
VII law insulates local management from liability for implementing employ­
ment policies and practices promulgated by national postal authorities in 
an action against, inter alia, USPS as a whole. In any event, local 
authorities in fact set the cut-off scores on the examination (PX 72, 78,
81).

27/ Nothing justifies USPS' effort to foist a requirement of pleading 
technical "disparate impact" or "disparate treatment" legal theories on 
a layman, see, Love v. Pullman, 404 U.S. 522, 527 (1972), especially 
where the very terms were not part of the law in 1972. Chisholm's com­
plaint, in any event, alleges both (M.O. 4-5).

28/ If USPS was never able, as it claims, to ascertain the scope of the 
lawsuit against it, plaintiffs were not responsible. Brief, pp. 40-41. 
Plaintiffs sent to USPS counsel a Statement of Issues on February 21, 1979, 
which was also filed with the court on August 8, 1979. Response to Motion of 
Defendants-Appellants for a Stay of Judgment, Exhibits B and C, 4th Cir.
No. 80-1800, filed November 26, 1980. The Federal Rules of Civil Pro­
cedure plainly provide means for a party to discover the scope of an 
adversary's lawsuit.

The cornnents of a trial judge in the midst of trial, whatever their 
precise import, certainly do not provide adequate or competent evidence 
to impeach carefully considered findings of fact, see, Brief, p. 41, where 
no evidence was precluded. Judicial questions about the relevance of 
evidence are always proper.

27



that "[i]t is clear from the administrative record in this case and 

the complaint, that plaintiff Chisholm has vigorously pursued his 

rights in the past both individually and as a representative of the 

blacks at the postal service" (May 29, 1975 opinion). After the trial, 

the court expanded its finding of adequacy of representation by Chisholm 

and plaintiff-intervenors: "by their conduct in this case and by pre­

senting overwhelming evidence of discrimination, plaintiffs and their 

counsel have justified this Court's previous finding that they would 

adequately represent the class." (M.O. 103) These findings are not 

an abuse of discretion.

The lower court's findings fully comport with relevant authority. 

There is no dispute that plaintiffs' counsel are qualified and exper­

ienced. Wetzel v . Liberty Mut. Ins. Co., supra, 508 F.2d at 247. USPS 

conceaes that Chisholm "'possess[es] the same interest and suffer[s] the 

same injury' as the class members," East Texas Motor Freight v. Rodriguez, 

431 U.S. 431, 403 (1977), with respect to promotions and details. Brief, 

43-44. However, the record shows that Chisholm was in fact subject to 

discrimination in the initial level supervisory examination and disci­

pline, and that both are elements in discriminatory promotion and detail 

policy. See, pp. 7-8, supra. Moreover, USPS ignores that, as the lower 

court found, the claims of plaintiff-intervenors strengthen the ade­

quacy of representation. (Opinion of May 29, 1975); Oatis v. Crown 

Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968); McBrocm v . Western 

Electric Corp., 7 EPD 1T 9347 (M.D. N.C. 1974). USPS also concedes that, 

unlike the named plaintiffs in Rodriguez, supra, 431 U.S. at 403-405, 

Chisholm and plaintiff-intervenors vigorously pursued the class action.

No collusion is alleged.

- 28 -



USPS, however, makes the novel contention that Chisholm "betrayed

his fiduciary obligation" to class members by seeking individual

relief. Brief, at 44—4-5. USPS neither objected below nor now appeals

the Rule 42, Fed. R. Civ. Pro., consolidation of the trial of class

liability together with individual liability claims of Chisholm and other

plaintiffs and class members who testified. There was, in any event, no
29/

abuse of discretion. Indeed, the consolidation promotes judicial 

efficiency since the judge heard their testimony, was able to weigh 

their credibility and determine liability, and then to outline the 

required relief. No authority requires reference of all claims to a 

master. Moreover, the promotion Chisholm obtained to the next vacancy 

at level 21 or above for which he is qualified merely enforces the relief 

USPS itself was originally required to provide after administrative 

proceedings in 1973 (M.O. 70-71, J.4).

USPS, without record or legal support, speculates that some 

antagonism of interests arose when Chisholm sought individual relief.

There was no record evidence of any actual conflict of interest. The court 

gave pre-trial notice of the trial to class members, permitted thorn to 

opt out, and permitted their participation through their own counsel 

(Notice). No one opted out or was separately represented. Several 

plaintiffs and class members, in addition to Chisholm, also had their 

individual claims decided. No class member raised any objection to the 

trial of individual claims, nor raised any conflicting claim. Moreover, 

if some other class member does establish entitlement to the same job in

29/ See, e.g., Franks v. Bowman Transportation Co., 495 F.2d 398, 402 
(5th Cir. 1974).

- 29 -



second stage proceedings, the court or master may determine who has the 

superior claim to back pay or divide the relief among the claimants, as 

Judge Widener permitted in White v. Carolina Paperboard Corp., 564- F.2d 

1073, 1087 (4-th Cir. 1977).

No rule of law requires that a named plaintiff, who prevails, or,

for that matter, loses his individual claim, is thereby disqualified from
30/

representing the class. Authority is contrary. Otherwise, no one would 

ever bring a class action discrimination claim. The very basis for the 

concrete adversity between individual plaintiffs and employer, indeed, 

assures their adequacy of representation. Any claimed conflict, in any 

event, does not rise to the level of the kind of antagonism going to the 

heart of the subject matter of the discrimination required by Rule 23(a) 

(4). See, e.g., Social Services U., Local 535 v. Santa Clara, 609 F.2d

94-4, 948 (9th Cir.'1979); DuPree v. E. J. Brach 8 Sons, 77 F.R.D. 3, 9 

(N.D. 111. 1977)(Title VII cases).

As to defendant's ... contention that the repre­
sentatives are in competition for a limited number of 
spaces, the Supreme Court has noted that "conflicting 
interests of other employees will of course always be 
present in instances where some scarce benefit is dis­
tributed among employees." Franks v. Bowman Transpor­
tation Co., 424 U.S. 747, 760 (1976). Although the 
class members might have some arguable conflicts for 
the limited supervisory openings, their interests are 
clearly coextensive with the named individuals since 
they both wish to insure that race is not a criterion 
for promotion.

Id. The general rule for class actions is the same: "'The possible

situation that the beneficiaries may have divergent views as to their

30/ See, Franks v. Bowman Transportation Co., 424 U.S. 747, 752-757 
(1976); McLaughlin v. Hoffman, supra, 547 F.2d 918, 920-921 (5th Cir. 
1977; Moss v. Lane Co., 471 F.2d 853, 855-856 (4th Cir. 1973); Brown v . 
Gaston County Eyeing Machine Co., 457 F.2d 1377, 1380 (4th Cir.), cert, 
denied, 409 U.S. 982 (1982).

- 30 -



undivided rights in the distribution of a trust fund which is alleged to be

insufficient to pay all in full does not prevent this being a class

action. The preservation of the trust fund is the prime jurisdictional

consideration.'" Berman v . Narragansett Racing Assoc., 414 F.2d 311,

317 (1st Cir. 1969), cert, denied, 396 U.S. 1037 (1970), quoting

Redmond v. Commerce Trust Co. , 144 F.2d 14-0, 151-152 (8th Cir.), cert.

denied, 323 U.S. 776 (1944). Any issue of possible antagonism, in any

event, should first be presented to the trial court for evidentiary

hearing. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124-
31/

1125 (5th Cir. 1969).

31/ USPS is wrong that the interests of class members are too heterog­
enous. Brief, 42. "[S]uits alleging racial or ethnic discrimination 
are often by their very nature class suits, involving classwide wrongs. 
Common questions of law or fact are typically present." East Texas 
Motor Freight v. Rodriguez, 431 U.S. 395, 405 (1977). Chisholm's claims 
in fact were typical as indicated by the testimony of class members. See, 
Donaldson v. Pillsbury Co., 554 F.2d 825, 831-832 (8th Cir.), cert, denied, 
434 U.S. 856 (1977). All class members stand to benefit from relief from 
classwide discrimination in the overall promotional system. See, 
McLaughlin v. Hoffman, 547 F.2d 918, 920-921 (5th Cir. 1977).

USPS also is wrong that there is no proof that the supervisory 
force did not act as "autonomous decision-makers." Brief, 43. The court 
found that there was a single personnel system in which all personnel 
actions were reviewed and approved by the Charlotte Sectional Manager.
See, p. 6 and n. 4, supra. Unlike Stastny v. Southern Bell Tel. & Tel.
Co., 628 F.2d 267 (4th Cir. 1980), this is not a statewide case, and the 
commonality standards of Stastny, 628 F.2d at 277, are expressly met.
There is a single supervisory force found to be Implementing an overall 
discriminatory promotional system constituting a continuing violation of 
Title VII. Compare, Patterson v. American Tobacco Co., 535 F.2d 257 
(4th Cir. 1975), cert, denied, 425 U.S. 935 (1976). Courts have corrmonly 
found the requisite degree of uniformity and centralization in similar 
or larger federal agency discrimination cases. See, e.g., Bachman v . 
Collier, 73 F.R.D. 300, 306 (D. D.C. 1976); Keeler v. Hills, 73 F.R.D.
10, 11 (N.D. Ga. 1976); MEAN v, Fletcher, 14 FEP Cases 1007, 1008-1009 
(D. D.C. 1976); Lewis v. NLRB, 22 EPD TI30,710 (S.D. Tex. 1979); see, Davis 
v, Califano, 21 FEP Cases 272, 279 (D.C. Cir. 1979).

Nor did the court neglect to address these questions (M.0. 101-103).

- 31



B. The Scope of the Class Was Proper.

USPS erroneously suggests that the scope of the class is indefinite. 

Brief, 41-42.

The suggestion is made that the court abused its discretion by 

limiting the class to black employees actually subject to discrimi­

nation as a result of specified practices found violative of Title 

VII. See, p. 14- , supra. However, the lower court's definition was 

well within the Federal Rules and precedent. Rule 23(b)(2) is appli­

cable, as here, where "the party opposing the class has acted or refused 

to act on grounds generally applicable to the class, thereby making appro­

priate final injunctive relief or corresponding declaratory relief with 

respect to the class as a whole." The Advisory Committee understood 

Rule 23(b)(2) to be appropriate when "[ajction or inaction is directed 

to a class ... provided it is based on grounds which have general 

application to the class" and that "[illustrative are various actions 

in the civil rights field where a party is charged with discriminating 

unlawfully against a class, usually one incapable of specific enumera­

tion." Advisory Committee Notes, Proposed Federal Rules of Civil 

Procedure, 39 F.R.D. 98, 102 (1966); Barnett v. W. T. Grant Co., 518 

F.2d 543, 547 (4th Cir. 1975). Moreover, questions of individuals 

actually entitled to relief in Title VII cases are not appropriate until 

after a determination of class liability. International Brotherhood of 

Teamsters v. United States, 431 U.S. 324, 360-361 (1977). It is there­

fore proper to define a Rule 23(b)(2) Title VII class in terms of those

affected by discrimination alleged or, as in this case, proved, leaving
32/

the precise enumeration for subsequent determination. The lower

32/ See, e.g., RWDSU, Local 194 v. Standard Brands, 24 FEP Cases 409,
418 (N.D. 111. 1981); Pittman v. Anaconda Wire 8 Cable Co., 408 F. Supp.

32 -



court's definition of the class, thus, clearly gave USPS adequate notice 

of the membership.

Nor was it an abuse of discretion for the court to revise the 

class to include employees up to the date of judgment. See, e.g.,

RWDSU, Local 194- v. Standard Brands, 24- FEP Cases 409, 418 (N.D. 111. 

1981).

III.

The District Court's Findings of Fact 
Are Not Clearly Erroneous.

The district court's meticulous findings of fact are not clearly 

erroneous, and, indeed, USPS nowhere identifies any findings as clearly 

erroneous. See Brief, 27-38.

A. The Initial Level Supervisory Examination

The court found that the examination was used for detailing and 

promotion to higher level jobs other than initial level supervisory 

positions, as a substitute for otherwise required experience require­

ments and for general use of promotion advisory boards. See, pp. 9-10 

(M.O. 20-28, 114-116). The admitted unjustified adverse impact of the 

examination in fact denied black employees benefits in all these 

respects. It therefore was proper to reject USPS’ very limited "bottom 

line" statistics for initial level supervisory promotions from 1972- 

1974 as dispositive. See p. 11, n. 10, supra (M.O. 52-53, 116).

32/ Continued
286, 294-295 (E.D. N.C. 1974, 1976); Keeler v. Hills, 73 F.R.D. 10, 11 
(N.D. Ga. 1976); Bachman v. Collier, 73 F.R.D. 300, 306 (D. D.C. 1976); 
Barrett v. U. S. Civil Service Commission, 69 F.R.D. 544, 554 (D. D.C. 
1975); Jones v. Milwaukee County, 68 F.R.D. 638, 640 (E.D. Wis. 1975); 
Crockett v. Green, 388 F. Supp. 912, 915 (E.D. Wis. 1975); Godbolt v . 
Hughes Tool Co., 63 F.R.D. 370, 374 (S.D. Tex. 1972); Harvey v. Int'l 
Harvester Co., 58 F.R.D. 47, 48 (N.D. Cal. 1972).

- 33



The statistics do not address details, and other uses of the examination, 

and do not include any pre-1972 promotions of any kind. Even then exami­

nation scores continued to be relevant in the promotional practice, e.g., 

by promotional advisory board, after the date the examination register 

expired. Moreover, there was disparate impact for initial level super­

visory promotions in 1972-1973 in the period when this suit was first filed 

when only one of 10 such jobs went to a black employee. Statistical evi­

dence when suit is first brought is most probative, see, e.g., Parham v . 

Southwestern Bell Tel. Co., 433 F.2d 421, 426 (8th Cir. 1970), especially

where, as the court found, post-suit changes were due to litigation pressure 
33/

(M.O. 107).

B. Higher Level Promotions

Overwhelming statistical proof of discrimination in promotion was found

from 1970-1975 using either plaintiffs' or defendants' figures. See, p. 8,
34/

supra (M.O. 106-108). According to defendants' figures, there were 114

33/ Friend v. Leidinger, 588 F.2d 61, 66 (4th Cir. 1978), is inapposite. 
Friend involved the simpler situation of a test used for a single purpose, 
not the multiple uses here. Moreover, the statistical showing was not 
partial and disparate inpact was not great in Friend. Id. The examina­
tion in the instant action acted as a pass-fail barrier which itself 
deprived black employees of a range of promotional system benefits, and, 
therefore, was discriminatory in its own right. See, Teal v. State of 
Connecticut, 25 FEP Cases 529, 532-533 (2d Cir. 1981); Smithy. Troyan,
520 F.2d 492, 497-498 (6th Cir. 1975). The examination in Friend had 
no independent significance other than to qualify for a defined set of 
jobs. There was no "bottom line."

34/ USPS is wrong that percentage increases in black employees from year 
to year, Brief, 31, somehow disestablish the significance of the court's 
analysis using the authoritative statistical approach of Castenada v. 
Partida, 430 J.S. 482, 496 (1977); Hazelwood School Dist. v. U. S ., 433 
U.S. 299, 311 (1977); EEOC v. United Virginia Bank, 615 F.2d 147 (4th Cir. 
1980). With such small numbers of blacks in higher level positions, even 
one black promotion is translated into a substantial percentage gain of no 
probative weight. Thus, black promotions between 1973 and 1975 resulted 
in a 23% gain and, although higher level promotions to blacks increased by

34 -



promotions to jobs immediately above craft level (job levels 7-9 prior 

to March 5, 1973, and job levels 7-15 after that date) during the 1970- 

1975 period, yet only 14 went to blacks (M.O. 108). The district court 

found the statistical disparity between the actual promotions and the 

number of black employees in the labor pool to be 4.13 standard deviations, 

using the statistical approach in Castenada v. Partida, 430 U.S. 482,

495 (1977), and Hazelwood School District v. United States, 433 U.S.

299, 311 (1977). Again, using defendants' figures, the court found the 

statistics with respect to higher level positions to be "even more com­

pelling" (M.O. 107). From March 24, 1972, to December 31, 1975, only 5 

of 50 upper level promotions (level 9 to March 5, 1973, and above level 15 

thereafter) went to blacks, although blacks comprised approximately 30% 

of the labor force (M.O. 105, 107).

USPS attempts to rely on post-1976 promotion statistics, but these 

later post-suit changes "could be of little comfort to the victims of 

earlier ... discrimination, and could not erase its previous illegal con­

duct or its obligation to afford relief to those who suffered because of

it." International Brotherhood of Teamsters v. U. S ., 431 U.S. 324, 341- 
35/

342 (1977). Moreover, the court found that, although "[t]he post-1975 

figures show improvements ... such improvements, in light of all the evidence,

34/ Continued

30% between 1972 and 1973, blacks received only 8% of such promotions in 
1972, and by 1973 still only received 9.5%.

35/ Nor can USPS rely on a partial applicant flow analysis from which 
admittedly one-third of the promotion files were missing (Brief, p. 32), 
and as to the remaining two-thirds of the files, it is unknown whether 
the files contained all applicants for the position or whether the vacancy 
was even posted (Tr. 762-763). The court correctly admitted the analysis only 
"as a fragmentary report on the premotions." (Tr. 770) This case is 
unlike Valentino v. U. S. Postal Service, 25 FEP Cases 24, 51-53 (D. D.C.

- 35 -



appear to be due to the pressure of litigation, rather than a real change 

in USPS practices" (M.O. 107).

USPS cites EEOC v. Radiator Specialty, 610 F.2d 178 (4-th Cir. 1979), 

to attack the court's statistical findings, but the analysis in Radiator 

Specialty is not applicable to this case. None of the cases cited in 

Radiator Specialty or in footnote 37, infra, involved a situation where 

an employer had control over which workers acquired the qualifications 

for promotion and had discriminated against blacks in exercising that con­

trol. Where an errployer discriminatorily limits the pool of qualified 

workforce to whites, it should not be allowed to rely upon the pool, for 

to do so actually rewards such discrimination. See Teamsters v. United 

States, supra, 431 U.S. at 349; Asbestos Workers, Local 53 v. Vogler, 407 

F.2d 1047 (5th Cir. 1969).

In any event, even if Radiator Specialty is applicable to this case,

it is of no help to defendants. Although USPS made no effort at trial to

prove the existence of special qualifications (M.O. 107), it now argues

that such qualifications are "manifest" in reliance on EEOC v. Radiator
36/

Specialty Co., 610 F.2d 178, 185 (4th Cir. 1975). However, the court

35/ Continued

1981), where there was no indication that the applicant flow analysis was 
statistically invalid. Secondly, the court specifically found, and it is 
undisputed, that black employees were discouraged from applying for promo­
tions by the intractability of discrimination (M.O. 41-42, 77-78, 80).
Thirdly, blacks were discriminatorily denied the opportunity to become eligible 
for promotion. See, pp. 11-12, supra. An applicant flow analysis under 
these circumstances cannot show what would have occurred absent discrimi­
nation., Hazelwood School District v. U. S., supra, 433 U.S. at 308. n. 13 and is notr'bfe'ttsh" proof. -----
36/ This Court in EEOC v. Radiator Specialty Co. , supra, summarized the 
relevant standards by which to determine the proper labor pool in a promo­
tions case and set forth the three types of cases that may arise. Plain­
tiffs submit that this case falls into the first category of cases; at 
worst, this case is like that described by the court as being in the third

- 36



specifically found that USPS used an internal labor pool for higher level 

jobs, and that such jobs are filled by craft employees who gain higher level 

specialized and general experience through discriminatory details. See, 

pp. 6-7, 11-12 (M.O. 30-31, 39-4-0, 53-55, 113). The special qualifications 

for which there is record evidence is the finance examiner job that 

Chisholm sought, but that job was filled by a white who became "qualified" 

as a result of preferentially being given details for lengthy periods (M.O. 

68, 70). The same is true of the driver instruction examiner job sought by 

Holman (M.O. 80). Indeed, the court found such preferential details to 

be carmon (M.O. 56), a finding not challenged as clearly erroneous. The 

court also found that specialized experience "requirements" were often 

waived for whites (M.O. 35-36). Thus, it is manifest that no special 

qualifications as such exist, as the court found, specifically citing EEOC

36/ Continued

category. In either category, the statistics offered by plaintiffs 
and accepted by the district court are proper proof of discrimination.

In the first category of cases, where it is manifest that no special 
qualifications exist for a job, a court may look to general population 
statistics to assess plaintiffs' prima facie case. (E.g., Teamsters v . 
United States, supra, 610 F.2d at 175 (drivers).) In the second category 
are cases where the fact that special qualifications do exist are mani­
fest from the mere identification of the job. (E.g., Hazelwood School 
District v. United States, 433 U.S. 299 (1977). (teachers) Id. In the 
last category, it is unclear from the identification of job positions 
whether special qualifications exist for them. In such cases, this Court 
held,

the burden should be on defendants to. show 
that the positions in fact do require special 
qualifications not possessed or readily 
acquired by the general population, at peril 
of having the general population statistics 
presumed appropriate in assessing plaintiffs' 
prima facie proof.

Id.

37



V. Radiator Specialty Co., supra (M.O. 107). In this case:, the skills in

question are ones "generally possessed or readily acquired." Hazelwood,
37/

supra, 4-33 U.S. at 308 n. 13 (emphasis added).

At worst, this case falls into the category of cases described in

EEOC v. Radiator Realty Co., supra, 610 F.2d at 185, as where the nature

of special qualifications is unclear, and defendants have the burden to

establish the existence of such qualifications and the inability of the

workforce to acquire them. It is undisputed that USPS failed to do so 
38/

(M.O. 107).

The lower court also correctly held that USPS is not free to con­

tinue to promote to upper higher level positions from jobs levels 7-9 

because it locks in admitted historic discrimination at those levels 

that continued after the effective date of § 717 (M.O. 108-110). As the

57/ This case is not a case where special qualifications are manifest, 
such as Hazelwood, supra (teachers); EEOC v. Chesapeake 8 Ohio Ry., 577 
F .2d 229 (4th Cir. 1978) (specific technical background); Hill v. Western 
Electric Co., supra (no in-house training program allowed lower level 
employees to obtain specialized qualifications on the job). Moreover, in 
Hill, supra, only a small percentage of black employees had any signifi­
cant amount of experience with the employer. In contrast, blacks have 
long been represented in large numbers in the workforce and in fact are bet­
ter educated than white employees (M.O. 113, 41). For instance, Chisholm 
has been employed by USPS since 1960 (M.O. 68), Rushing since 1955 (M.O.
72), Hart since 1966 (M.O. 75), McCombs since 1956 (M.O. 77), Holman since 
1962 (M.O. 79). Nor is this case like EEOC v. United Virginia Bank, 
supra, 615 F.2d at 153, a hiring case where plaintiffs relied upon general 
population statistics and offered no evidence as to how any specialized 
qualifications could be obtained.

38/ Many of the positions referred to as needing■special qualifications 
were found to have responsibilities that could be learned through the 
detailing process. E.g., finance examiner, postal service auditor (M.O.
68). In the year 1972 through 1977, an average of only slightly over 
three promotions annually were for positions that arguably required 
skills not capable of being readily acquired by the entire workforce. 
Plaintiffs here set forth those positions by year. As shown, elimination 
of these jobs from the promotional analysis does not materially change 
the results.

cont'd
38 -



Supreme Court stated in Griggs v. Duke Power Co. , 4-01 U.S. 424, 430 

(1971), "Under [Title VII] practices, procedures, or tests neutral on 

their face, and even neutral in terms of intent, cannot be maintained 

if they operate to 'freeze' the status quo of prior discriminatory 

employment practices," cited with approval in Teamsters v . United 

States, supra, 431 U.S. at 349. Accord, Asbestos Workers, Local 55 v . 

Vogler, 407 F.2d 1047 (5th Cir. 1969) (union nepotism requirement, while 

applicable to all,is discriminatory because its present effect is to 

forever deny minorities real opportunity for membership), cited with

3 8/ Continued

1972 1975

1 Vehicle Maintenance 
1 Foreman, Mechanics 
4 Electronic Technicians

1973

1 Electronic Technician
1 Nurse
2 Industrial Engineers 
1 Senior Stenographers

1974

1 Senior Stenographer

Year 1972 1973

% black promotions 
including "special­
ized" positions 4.65% 9.5%

% black promotions 
excluding "special­
ized" positions 5.4% 10.0%

1 Electronic Technician 
1 Industrial Engineer 

Coordinator
1 Senior Stenographer

1976

2 Electronic Technicians
1 Senior Stenographer

1977

2 Electronic Technicians

1974 1975 1976 1977

12.5% 11.5% 8.33% 33.3%

12.5% 13.0% 0% 33.3%

Source: PX 5.

- 39



approval in Teamsters, supra, 4-31 U.S. at 349, n, 32; see also, Parson

v. Kaiser Aluminum 8 Chemical Corp., 575 F.2d 1374 (5th Cir. 1978) 

(restriction on transfer policy and prior experience requirement held 

discriminatory because of present exclusionary impact due to past dis­

crimination) . Nor did USPS make any showing that the practice of limiting 

upper level management to employees in the next lower supervisory levels

was justified by business necessity. See Robinson v. Lorillard Corp., 444
39/

F<2d 791 (4th Cir. 1971).

C. Higher Level Details

The district court's compelling and undisputed findings on details

are described at pp. 11-12, supra. USPS is wrong that the court found

that there was no statistical pattern of discrimination after 1973.

Brief, p. 32. Rather, the court found that although there was some

improvement in the detailing process

it is impossible to know if the best details were still 
disproportionately given to whites. What is clear is 
that there were numerous examples of discriminatory 
individual abuse with respect to details after 1973.

(M.O. 60) Moreover, USPS faults the court for its failure to distinguish

between short and long details (a failure caused by USPS' own record-keeping),

but ignores the finding that "since the cold statistics lump together short

details with longer ones, the effect of the discrimination was even greater

than that reflected by the figures alone" (M.O. 57) (emphasis added).

39/ It is disengenuous at best for USPS to argue that there was "no evi­
dence" to support a finding that the pool from which upper and middle-level 
supervisors are drawn was exclusively white. Until after 1973, there was 
never more than one black employee at a level 10 or above (M.O. 14-17).
USPS points out that notices of vacancies were circulated outside the Charlotte 
Post Office but conveniently ignores, and does not challenge the very next 
finding of fact, that "promotion to supervisory and management jobs is an in- 
house process. USPS in Charlotte utilizes an internal labor market for upper 
level jobs" (M.O. 12).

- 40



USPS does not challenge as clearly erroneous the district court's 

finding that "[t]he record is replete with examples of discriminatory 

abuse of the detailing process" from 1970-1978 (M.O. 55). In addition 

to finding a total lack of objective criteria or guidelines to bridle 

the white supervisory force's discretion and favoritism toward white 

buddies (M.O. 53, 55), the court cited fourteen specific individual 

instances of discrimination in detailing (M.O. 56-57), only three of 

which USPS even arguably challenges. Brief, pp. 4-7-48. Under these cir­

cumstances, where the supervisory force is largely white, "Blacks may very 

well have been hindered in obtaining recommendations from their foremen 

since there is no familial or social association between the two groups." 

Rowe v. G.M. Corp., 457 F.2d 348, 359 (5th Cir. 1972). The individual 

testimony as to discrimination in detailing brought "the cold numbers con­

vincingly to life." Teamsters v. United States, supra, 431 U.S. at 339.

Finally, in and of itself, the statistical evidence established 

a prima facie case of discrimination in detailing a case which was unrebut­

ted by USPS. Teamsters v. United States, 431 U.S. at 339. Out of 295 

details at levels 10 and above over an eight year period (1970-1978) 

only 8, or 3% went to black employees (M.O. 58-60). With one exception, 

blacks have been completely excluded from all details in levels 11 

through 17 (id.). The discrepancy between the percentage of black employees 

and the percentage of all higher level details (levels 7-17) was never less 

than 10% pre-suit and close to that post-suit (id.). This Court has found

significant statistics in other cases that are not as corrpelling as those
40/

present here, and upon which USPS relies.

40/ Barnett v. W. T. Grant Co., supra, 518 F.2d at 549; Brown v. Gaston 
County Dyeing Mach. Co., supra, 457 F.2d at 1380-1382.

- 41



D. Discipline

The court's undisputed findings on the overwhelming statistical 

showing on discipline are described at pp. 12-13, supra. USPS's argu­

ment that the gross disparities may be due to the identity of supervisors 

points out the very flaw in USPS' discipline system. Disciplinary 

determinations which depend almost entirely upon the subjective evalua­

tions of white supervisors "are a ready mechanism for discrimination against 

Blacks." Rowe v. General Motors Corp., 4-57 F.2d 348, 359 (5th Cir. 1972). 

This Court, as well as other Courts of Appeals, have expressed realistic 

skepticism that black persons directly dependent upon whites for evalua­

tions can expect non-discriminatory treatment. See Cypress v. Newport 

News General and Monsectarian Hosp. Ass'n, 375 F.2d 648, 655 (4th Cir'.

1967); Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723-724 

(4th Cir. 1966), cited with approval in Crawford v. Western Electric 

Co., Inc., 614 F .2d 1300, 1315-1317 (5th Cir. 1980) (Title VII case where 

subjective evaluations by white foreman of black employees found discrim­

inatory). The overwhelmingly statistical proof of disproportionate 

disciplinary action against black enployees, coupled with the total lack 

of objective standards or safeguards and evidence as to individual cases

of discrimination in discipline (M.O. 63-64) leave the district court's
41/

findings unassailable.

41/ USPS cannot complaint of the need to fine tune statistics, given 
the consistently gross disparities in discipline over an eight-year 
period. Cf., Teamsters v. United States, 431 U.S. 324, 342 n. 23 (1971). 
USPS has all records relating to discipline in this case, yet came for­
ward with neither a single document nor witness to show that any statis­
tics were inaccurate. The Supreme Court has rejected a defense that 
statistics were too generalized in a similar case.

cont'd

- 42



E. Individual Claims

The district court's findings on individual claims are not clearly

erroneous (M.O. 67-96, 119-123). USPS simply failed to marshall any

proof as to its reasons for denial of specific promotions or details,

but relied on speculation by one not involved in the selection process.
£2/

See, Albemarle Paper Co. v. Moody, supra, 4-22 U.S. at 433, n. 32.

41/ Continued

"If the employer discerns fallacies or defi­
ciencies in the data offered by plaintiffs, 
he is free to adduce countervailing evidence 
of his own. In this case no such effort was 
made."

Dothard v. Rawlinson, 433 U.S. 321, 331 (1977).

The cases cited by USPS for their argument that discipline is 
difficult to deal with in the class action context, see, Brief, 34, do 
not apply since Chisholm and other witnesses who testified presented 
claims typical of the class.

The cases cited by USPS for their argument that it was error to 
have the judgment encompass disciplinary issues have nothing to do with 
the issue. These cases were not even brought under Title VII but, 
rather, raised procedural due process claims. Brief, p. 35.

42/ The court heard the testimony and evaluated the credibility of 
each plaintiff or individual class member who presented a claim.
Liability was found on two alternative standards of recovery, first, that 
each individual was a presumptive victim of discrimination upon the show­
ing of classwide overall promotion system discrimination, Sledge v. J.P. 
Stevens 6 Co., supra, 585 F.2d 637-638, and, second, the more difficult indi­
vidual case analysis standard of McDonnell Douglas Corp. v. Green, 411 U.S. 
792, 802-804 (1973); Fumco Construction Corp. v. Waters, 438 U.S. 567 (1978);

- 43 -



USPS contests only findings in five of 17 individual cases. With 

respect to Chisholm, the administrative finding of discrimination in the 

finance examiner position, which USPS ignores, was not challenged and is 

the law of the case (M.O. 120). USPS did not demonstrate by clear and 

convincing evidence that Chisholm would not have received the promotion 

if he had been interviewed, the standard imposed by applicable regula­

tions, 29 C.F.R. § 1613.271(a)(1), and authority, Day v. Mathews, 530 F.2d 

1083 (D.C. Cir. 1976) (M.O. 68-72, 120-121). No promotion advisory board 

member, for example, testified. The court also found discriminatory 

assignment of details for whites and denial to Chisholm which affected 

his promotion opportunities. (Id.) Although the administrative decision 

required that he be given priority consideration "for promotion to the 

first available position for which he applies in which he meets the mini­

mum qualifications," he was discriminatorily denied promotion to a level 

21 finance position (M.O. 71). It therefore was proper for the court to

grant Chisholm the promotion he was discriminatorily denied (J. 2) and
23/

the findings are not clearly erroneous.

22/ Continued

Wright v. National Archives, 21 FEP Cases 8 (2th Cir. 1979), and the sub­
sequently-decided Texas Dept, of Community Affairs v. Burdine, 29 U.S.L.W. 
2212 (March 2, 1981). USPS failed to carry its burden under either 
standard (M.O. 122-123).

USPS consistently failed to show the actual factors used by promotion 
advisory boards and others for particular personnel actions detrimental to 
black employees, but consistently relied on speculation about greater 
seniority and experience of white employees by a personnel specialist who 
never participated in the actual selections and did not know the actual 
reasons for employee actions. (Id., Tr. 825-835). Indeed, Federal Personnel 
Nfenual, ch. 335-6, states that: "Length of service or experience may not be
the factor given the greatest weightor consideration unless the nature of the 
job is such that other factors cannot be expected to identify significant 
qualitative differences between qualified candidates." (emphasis added).
No such showing was attempted.

23,/ USPS is wrong, for instance, that the initial level supervisory exam­
ination Chisholm failed in 1968 is not relevant. Brief, 12. The 1968

_ 22



The court was entitled to conclude on the basis of his testimony

and documentary evidence that Rushing should be granted a level 17 

position (M.O. 72-75, Tr. 214-224, PX 48, 101-104,- 108). USPS presented 

no rebuttal of any kind. The court's finding that Rushing was discrim­

inated against is not clearly erroneous. For instance, Rushing was 

more highly rated by two of three promotion advisory board members for 

a promotion (M.O. 74-75, 122). The only rebuttal to Lee's prima facie 

case of denial of a higher level senior postal service data technician 

position (M.O. 117-118) is that the white applicant was senior and 

speculation that seniority was a factor in the selection (Tr. 808-809) 

although higher level promotions do not turn on seniority (M.O. 30).

The court's findings were not clearly erroneous. For instance, it is 

undisputed that Lee had greater experience than the white applicant, 

that the white applicant had been detailed into the position for a 

year prior to selection, and that the promotion advisory board included 

two supervisors who detailed the white employee (M.O. 84-85).

The court’s findings in the individual cases of McCombs (M.O. 77-79) 

and Yongue (M.O. 90) are also not clearly erroneous. USPS presented no 

proof that McCombs was not qualified for promotion or had not been dis­

criminated against. USPS' only evidence as to Yongue's promotion was 

the greater experience of the white employee (Tr. 809-810) without any

43/ Continued

examination register was in effect from February 1969 through February 
8, 1971 (M.O. 20). Moreover, Chisholm passed, but did not score high 
enough to be given any details or promotions from the 1970 examination 
until a post-complaint detail (M.O. 68). USPS also is wrong that 
Chisholm did not make known his interest in finance positions. Brief, 
16. He was denied a finance position in 1968-69 (M.O. 68), and details 
are not applied for.

- 45 -



evidence that greater experience in fact was the factor relied on in deny­

ing Yongue the promotion.

IV.

The Judgment Is Well Within the 
Equitable Discretion of the Court.

In Albemarle Paper Co. v. Moody, 4-22 U.S. 4-05, 418 (1975), the 

Supreme Court declared the duty of the district court in framing equitable 

relief in a Title VII action is "to make persons whole for injuries suf­

fered on account of unlawful employment discrimination."

Where racial discrimination is concerned, "the 
[district] court has not merely the power but 
the duty to render a decree which will so far as 
possible eliminate the discriminatory effects of 
the past as well as bar like discrimination in 
the future." Louisiana v. United States, 380 US 
145, 154 (1965).

The trial court's discretion in shaping relief is thus broad. Sledge v .

J . P . Stevens 6 Co., supra, 585 F.2d at 643; Barnett v. W. T. Grant Co., 

supra, 518 F.2d at 550; United States v. Ironworkers Local 86, 443 F.2d 

553 (9th Cir. 1971).

USPS' various technical objections to the form of the judgment do not 

establish any abuse of the lower court's equitable judgment. Thus, the 

court's injunction that defendants are enjoined from discrimination 

against the class "with respect to promotions (including all components 

of the promotion process), details, the use of written tests, disci­

pline, or pay, in any fashion, intentionally or unintentionally, because 

of their race or color" (J. 1) is appropriate: It is based on detailed 

findings of fact. See, pp. 7-13, supra. USPS is put on notice of dis­

criminatory practices enjoined. Moreover, "Title VII is not concerned 

with the employer's 'good intent or absence of discriminatory intent'



for Congress directed the thrust of the Act to the consequences of

employment practices, not simply the motivation." Albemarle Paper Co.

v . Moody, supra, 422 U.S. at 422, quoting, Griggs v. Duke Power Co.,
44/

401 U.S. 424, 432 (1971). Such remedial provisions are common. In 

any event, "[w]hen infringements of civil rights have taken or may 

take place ... courts are justified in issuing decrees that embrace

a fairly wide range of conduct." 11 Wright & Miller, Fed. Pract. & Pro.,
45/

§ 2955, pp. 548-549 (1973) (construing Rule 65(d), Fed. R. Civ. Pro.).

In particular, the court below was well advised in concluding that a 

more narrowly drawn injunction might be circumvented in light of USPS' 

intransigence in curing discriminatory practices its own administrative 

procedures long ago revealed. See, e.g., FTC v. Ruberoid Co., 343 U.S. 

470, 473 (1952).

USPS argues that the affirmative promotional relief is inappropriate 

because discrimination ended as early as 1972. The court, however, found 

continuing violations of Title VII beginning before 1970 and continuing to 

the date of trial. See, pp. 7-13, supra. Nor does USPS claim that

44/ See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 751 
(1976); Moody v. Albemarle Paper Co., 474 F.2d 134, 137 (1973), vacated 
and remanded on other grounds, 422 U.S. 405 (1975); Sledge v. J.P. Stevens 
& Co., Inc., 585 F.2d 625, 643 (4th Cir. 1978), aff'g in pertinent part,
12 EPD 1T 11,047 at p. 643 (E.D. N.C. 1976); Sherrill v. J.P. Stevens Co., 
551 F.2d 308 (4th Cir. 1977), aff'g, 410 F. Supp. 770, 833 (W.D. N.C.
1975); see also, United States v. Warwick Mobile Homes Estates, Inc.,
558 F.2d 194 (4th Cir. 1977).

^  Schmidt v . Lessard, 414 U.S. 473 (1974), involving a judgment entered 
"in accordance with the Opinion," is in no way comparable to the provision. 
Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 897-898 (5th Cir.), 
cert, denied, 434 U.S. 835 (1977), involved a bar to "[discriminating 
on the basis of color, race, or sex in employment practices or conditions 
of employment." In contrast, the provision in the instant case specifies 
discriminatory practices enjoined, and concerns only discrimination on 
the basis of race.

- 47 -



46/
discriminatees have been put in their "rightful place." Affirmative 

relief, therefore, was appropriate. See, Albemarle Paper Co. v. Moody, 

supra, 422 U.S. at 418; United States v. W. T. Grant Co., 345 U.S. 629, 

633 (1953); United States v. Warwick Mobile Homes Estates, Inc., 537 

F.2d 1148, 1150-51 (4th Cir.1976). "'[A] court cannot abdicate to defend­

ants' good faith its duty of insuring removal of all vestiges of discrim­

ination, United States v. County of Fairfax, 629 F.2d 932, 941-942 

(4th Cir. 1980), citing, Barnett v. W.T. Grant Co., supra, 518 F.2d at 

550 (the conclusion that affirmative relief was necessary is within the 

court's discretion) See, United States v. W.T. Grant Co., supra; United 

States v. Hunter, 459 F.2d 205, 220 (4th Cir.), cert, denied, 409 U.S.

934 (1972); Cypress v. Newport News Gen. 8 Nonsectarian Hosp. Ass'n, 375 

F -2d 648 (4th Cir. 1967). The district court expressly found that what­

ever progress was made in promotions was made because of the pressure of 

the lawsuit rather than a real change in USPS practices (e.g., M.0. 107).

Compare, United States v. Local 58, IBEW, 428 F.2d 144, 151 (6th Cir.),
_47/

cert, denied, 400 U.S. 943 (1970).

The suggestion that collective bargaining agreements are adversely 

affected in some unexplained way has no record support and was not raised

4c/ With respect to leaving affirmative action to administrative offi­
cials, the court found that USPS violated executive order and Title VII 
and Fifth Amendment affirmative action requirements guarantees from at 
least March 1970 to the present.

47/ Sledge v. J.P. Stevens 8 Co., Inc., supra, 585 F.2d at 644-651, is 
inapposite. Unlike the long term goals which the district court was 
careful to direct should be used "as a goal but not as a rigid quota" 
and that the "goal is to be used as a framework by defendants," Sledge 
involved blanket rigid quotas. Indeed, if class members who prove their 
claims of past discrimination are promoted, it is likely that the goals 
will be largely reached. Moreover, in Sledge, the defendant was specif­
ically found to have not consciously engaged in discriminatory employment

- 48 -



as an issue below. The issue is therefore foreclosed. Singleton v .

Wulff, 4-28 U.S. 106, 120 (1976); Provident Tradesmen B. 6 T. Co. v .

Patterson, 390 U.S. 102, 110 (1968). In addition, no collective bar­

gaining agents came forward to intervene, and defendants never made any 

motion to join in seven years of litigation. In any event, Title VTI 

rights cannot be bargained away. Robinson v. Lorillard Corp., 444 F.2d 

791, 799 (4th Cir.), cert. denied, 404 U.S. 1006 (1971).

Nor is it true that the record does not support other relief.

The EE0 Employee Complaints Representative is a specific remedy for the 

court's uncontradicted finding that USPS EE0 procedures were ineffective 

(M.O. 65-66, 119). The suspension of assignment of excessed employees to 

Charlotte is based, on undisputed findings that many of the excessed 

supervisors were less qualified than black employees who often trained them 

for their duties (M.O. 34-35), and no showing was made that excessing 

was necessary for the operation of USPS in Mecklenburg County.

The unopposed motion for an interim award of attorney's fees was 

well supported with affidavit evidence (Mot., Dkt.), and the court's 

order clearly articulates the bases of the award (Order). The interim 

award was not an abuse of discretion. Bradley v. Richmond School Board,

416 U.S. 696 (1974); James v. Stockham Valves, 559 F.2d 311, 358-359 (5th 

Cir. 1977).

47/ Continued

practices or deliberately chosen to violate Title VII. In contrast, USPS 
was found to have persisted in practices it knew were discriminatory for 
years.

- 49 -



CONCLUSION

The judgment and memorandum opinion of the district court should 

be affirmed.

Respectfully submitted,
^  / '

JONATHAN WALLAS
Chambers, Ferguson, Watt,
Wallas, Adkins & Fuller, P.A.
951 South Independence Boulevard 
Charlotte, North Carolina 28202 
(701) 375-8151

LOUIS L. LESESNE, JR.
Gillespie & Lesesne 
2060 First Union Plaza 
Charlotte, North Carolina 28282 
(701) 372-5700

JACK GREENBERG
BETH J. LIEF
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiffs-Appellees

. j

i
° CERTIFICATE OF SERVICE

I hereby certify that copies of the Motion of Plaintiffs-Appellees 

to File Brief Out of Time by One Day and foregoing Brief for Plain­

tiffs-Appellees were served on counsel for the parties by prepaid first 

class mail this 22nd day of May, 1981, addressed to:

50 -



* 
0

Stephen E. Alpem, Esq.
David G. Karro, Esq.
David Fishman, Esq.

Office of Labor Law 
United States Postal Service 
4-75 L'Enfant Plaza, S.W. 
Washington, D . C . ,^20260

Attorney, for Plaintiffs-Appellees

/

4
4

*