Poss v. McLucas Brief in Opposition

    No. 89-387

In The

Supreme Court of t\)t ®nttcb states
October Term, 1989

Robert P oss, et a l,
Petitioners-Appellants,

Michael Howard, et al.,
Plaintiffs-Respondents,

v.
J ohn L. McLucas, et al.,

Defendants-Responden ts.

On Petition For a Writ of Certiorari to the 
United States Court of Appeals for the 

Eleventh Circuit

BRIEF IN OPPOSITION

J ulius Le Vonne Chambers
Ronald L. E llis
16th floor
99 Hudson Street
New York, NY 10013
212-219-1900
Thomas A. J ackson
655 New Street
Macon, GA 31201
912-746-2370
Charles A. Mathis, J r . 
P.O. Box 928 
Macon, GA 31201 
912-746-1204

Bill Lann Le e *
8th floor
634 South Spring Street 
Los Angeles, CA 90014 
213-624-2405

J oseph F. Henderson 
American Federation of 

Government Employees 
80 F Street, N.W. 
Washington, D.C. 20001 
202-783-0504

Counsel for Respondents Michael Howard, et al. 
* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



QUESTIONS PRESENTED

1. Whether a consent decree that provides 
promotions to victims of discrimination 
violates Title VII or the Constitution in 
a case in which the lower courts found 
p e r v a s i v e  o r i ma f a c i e  r a c i a l  
discrimination?

2. Whether two courts below correctly 
found that the promotional provision was 
narrowly tailored "to eliminate the 
effects of past discrimination"?

i



LIST OF ALL PARTIES

Plaintiffs-Resoondents
Michael Howard, Henry Taylor, Jr., Oliver 
Gilbert, Clifford Scott, Lewis T. Jones, 
and Thomas W. Miller, on behalf of 
themselves and all others similarly 
situated, and the American Federation of 
Government Employees and Irish Smith.
Defendants-Respondents
John L. McLucas, Secretary of the Air 
Force; Major General W.R. Hayes, Commander 
of Warner Robins Air Force Base and 
Administrator of Warner Robins Air 
Logistics Center; Robert Hampton, Chairman 
of the United States Civil Service 
Commission; Ludwig U. Andolsek, 
Commissioner, United States Civil Service 
Commission; Jayne B. Spain, Commissioner, 
United States Civil Service Commission.

n



Petitioners-Intervenors
Larry W. Abney, Dennis Adams, David 
Alford, Eddie C. Barfield, Katherine H. 
Barkemeyer, William H. Barkemeyer, Joseph 
N. Barlow, Howard Bell, Kathleen Bell, 
Paul E. Benton, Wayne A. Bowden, Johnny D. 
Bowen, Goldie Bright, Kenneth W. Brock, 
Ronald K. Brown, Billy W. Bryant, Linda 
Burnsed, Donald R. Buttorm, Kenneth R. 
Camp, Barney Chandler, James B. Chappell, 
Deanna Chase, Mary M. Clance, Robert L. 
Clance, Dave Cochran, Bill Cody, Robert R. 
Collins, Rusty Combs, Charles R. Cook, 
Martha J. Cook, Donald C. Crosby, Eugene 
A. Davis, Jim Davis, Kyle C. Dismuke, 
David Dixon, Marvin T. Drew, John E. Dunn, 
John A. Dunwoody, Joyce DuVernois, Donald 
Easier, Dale Edge, Charles F. Evans, John 
J. Evans, Billy S. Evatt, George Everette, 
Roger W. Ferguson, Jay A. Fitzgerald, 
Ronald A. Garrett, David C. Gilstrap,

in



Braxton B. Grantham III, Robert Gray, 
Sheree W. Griffin, Rita Hall, Jimmy 
Hamlin, Jackie R. Hammock, William H. 
Hargrove, Albert L. Harrison, Charles C. 
Harrison, Ferman Hatton, Michael G. 
Haynes, Willie Heath, William F. Herring, 
Jr., Dale A. Hoffman, Glynn Hooks, David 
L. Horton, Cecil W. Hughes, Charlotte A. 
Jackson, William C. Johnson, Jr., Danny L. 
Joiner, Robert W. Kelly, Robert E. 
Knodrak, Hugh Lewis, Billy Joe Little, 
Calvin H. Lowery, Paula B. Malone, Richard 
L- Marks, Leon Mathis, Randall R. Maxwell, 
Stephen D. Mayo, William C. McLemore, 
Clayton Mead, Michael C. Mead, Beverly R. 
Meredith, Lelan S. Middleton, Donna W. 
Mills, James A. Minor, Wayne E. Minor, 
Robert W. Minter, Fred M. Mitchell, 
Lenwood W. Moore, Roger Morrow, Cheri L. 
Moss, Marion Ford Musselwhite, Richard L. 
Nash, Tommy Parker, Tarrell T. Parkerson,

IV



Johnny Peacock, M. Louise Peterman, 
Timothy Peters, Donald Peterman, Charles 
W. Phillips, Earl J. Pilgrim, Charles 
Porter, Robert T. Poss, Thomas Purvis, 
Robert R. Reese, June Renfroe, Robert R. 
Riggins, Jr., Gary T. Roberson, Rebecca L. 
Scribner, Grady W. Selph, Robert Shiver, 
Lillian N. Slappey, Richard J. Stafford, 
Jimmy L. Stanley, James H. Stephens, Melba 
Stokes, Ronald Strickland, Sue Sullivan, 
Jimmie L. Thomas, Shirley A. Thomas, 
Charles S. Vann, Frederick Veator, Richard 
A. Wall, James A. Wallace, Herbert Weaver, 
Herman B. West, Jr., Jim Wilcox, Larry H. 
Wilkes, Charles E. Williams, Jr., Irene K. 
Wilson, James E. Woodard, Jr., Ronnie 
Norman Woods, David Wynne, Jimmie Yawn, 
Hugh L. Yawn, and Martin A. Young.

v



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ............. i
LIST OF ALL PARTIES............. ii
TABLE OF CONTENTS............... vi
TABLE OF AUTHORITIES............. vii
OPINIONS BELOW...................  ix
STATEMENT OF THE C A S E ........... 2

A. Prior Proceedings. . . .  2
B . FACTS.....................  7

1. Record of Discrimi­
nation ........... 7

2. The Promotional
Provision........  14

REASONS TO DENY THE WRIT 20
I. The Courts Below Correctly

Applied The Law Of This Court 
In Upholding A Consent Decree 
That Provides Relief To Specific 
Victims Of Discrimination Based 
On Showing Of Prima Facie 
Discrimination............... 20

II. The Lower Courts Correctly
Decided That The Promotional 
Provision Was Narrowly Tailored 
"to Eliminate the Effects of
Pact Discrimination.". . . .  30

CONCLUSION.......................  34
vi



TABLE OF AUTHORITIES

gage
Albemarle Paper Co. v. Moody,

422 U.S. 405 ( 1 9 7 5 ) ........  23
Anderson v. City of Bessemer City,

470 U.S. 564 (1985)........  33
Association Against Discrimination 

in Employment, Inc., v. City 
of Bridgeport, 479 F.Supp. 101 
(D. Conn. 1979), aff'd 647 
F.2d 256 (2d Cir. 1981), cert.
denied, 455 U.S. 988 (1982). . 26

Blau v. Lehman, 368 U.S. 403 (1962) 32
Castaneda v. Partida, 430 U.S. 482

(1977).........................  10
Domingo v. New England Fish Co.,

727 F.2d 1429 (9th Cir. 1984) 26
Firefighters v. Stotts, 467 U.S.

561 (1984)............  21
Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976)........  22, 25
Howard v. McLucas, 671 F. Supp. 756

(M.D.Ga. 1987) ..........  passim
Howard v. McLucas, 597 F. Supp. 1512(M.D.Ga. 1984). .
Howard v. McLucas, 597 F. Supp. 1501(M.D.Ga. 1984). .

Vll



5Howard v. McLucas, 782 F.2d 956 
(11th Cir. 1986)..........

International Brotherhood of
Temasters v. United States,
431 U.S. 324 (1977). . . 20, 25, 26

Johnson v. Transportation Agency,
480 U.S. 616 (1987)... 28, 29, 31

Local 28, Sheet Metal Workers v. EEOC
478 U.S. 421 (1986)... 20, 23, 27

Local No. 93, InternationalAssociation of Firefighters 
v. City of Cleveland,
478 U.S. 501 (1988)........... 21

Louisiana v. United States,
380 U.S. 145 (1965)........... 23

Pettway v. American Cast Iron Pipe Co., 
494 F .2d 211 (5th Cir. 1974), 
cert, denied, 439 U.S. 1115 
(1979).......................  25

Price Waterhouse v. Hopkins,
109 S.Ct. 1775 ............... 24

Segar v. Smith, 738 F.2d 1249
(D.C. Cir. 1984), cert, denied,
471 U.S. 1115 (1985) . . . .  25, 26

Stewart v. General Motors Corp.,
542 F.2d 445 (7th Cir. 1976) 
cert, denied, 433 U.S. 919
(1977).......................  26

United States v. Johnston,
268 U.S. 220 (1925)........... 33

v i i i



28, 29United States v. Paradise,
480 U.S. 149 (1987). . .

United Steelworkers v. Weber,
443 U.S. 193 (1979)........  22, 28

University of California v. Bakke,
438 U.S. 265 (1978)..........  22

Wards Cove Packing Co. v. Atonio,
109 S. Ct. 2115
(1989)......................... 8

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) 14, 28, 29, 31

IX



OPINIONS BELOW
The opinion of the Court of Appeals 

for the Eleventh Circuit is reported at 
871 F. 2d 1000 (1989) and is reprinted in
Appendix A of the Petition. The opinion 
of the United States District Court for 
the Middle District of Georgia of 
September 30, 1987, as supplemented
October 5, 1987, is reported at 671 F.
Supp. 756 (1987). Petitioners reprinted
the incomplete opinion in their Appendix 
B. Respondents will refer to the complete 
published district court opinion instead 
of Appendix B.

x



No. 89-387

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1989

ROBERT POSS, et al.,Petitioners-Appellants
MICHAEL HOWARD, et al.,Plaintiffs-Respondents,

v.
JOHN L. McLUCAS, et al.,Defendants-Respondents

On Petition For A Writ of Certiorari to the 
United States Court of Appeals for the 

Eleventh Circuit

BRIEF IN OPPOSITION

Respondents Michael Howard, et al., 
plaintiffs below, request that the 
petition for writ of certiorari filed by 
intervenors Robert Poss, et al., be 
denied.



STATEMENT OF THE CASE 
A. Prior Proceedings

This Title VII action was originally 
filed on October 31, 1975 by black
civilian employees of the Warner Robins 
Air Logistics Center ("Warner Robins") 
against defendant Secretary of the Air 
Force to challenge the denial of 
promotions to black employees. With 
approximately 15,000 civilian employees, 
Warner Robins is one of the largest 
employers in the State of Georgia. In 
1976 the lawsuit was certified as a class 
action on behalf of approximately 3200 
black employees.

After numerous pre-trial proceedings 
and extensive discovery, the parties 
submitted a proposed consent decree. A 
fairness hearing was held pursuant to 
Rule 2 3 of the Federal Rules of Civil 
Procedure in August 1984. The district

2



court received extensive evidence of 
discrimination, and found that "plaintiffs 
have made out a orima facie case of 
employment discrimination through the use 
of s t a t i s t i c a l  e v i d e n c e  of 
disproportionate racial impact," Howard v. 
McLucas. 671 F. Supp. 756, 760 (M.D. Ga.
1987), by " p r e s e n t [ing] numerous 
statistical studies of work force, grade 
levels, occupational segregation, 
promotions, training, supervisory 
appraisals, test scores, and awards that 
demonstrate pervasive patterns of 
discrimination in the internal promotional 
system at Warner Robins." id. at 7 66. 
The district court also received evidence 
of the nature and effect of the 
promotional relief provided by the consent 
decree. Id. at 761-68.

Robert Poss and 136 other white 
employees objected and were allowed to

3



participate in the fairness hearing as 
objectors. See Howard v. McLucas, 597 F. 
Supp. 1512, 1514 (M.D. Ga. 1984). Their
counsel argued, presented evidence and 
examined witnesses. The court, however, 
denied their motion to participate 
formally as intervenors with the right to 
veto the settlement. Howard v. McLucas. 
597 F. Supp. 1501 (M.D. Ga. 1984).
Several class members also objected. 
Rejecting the objections of both black and 
white employees, the district court 
approved the consent decree.

The consent decree states that the 
promotion of 240 class members to every 
other available vacancy in specified jobs 
settled the claims of class members who 
alleged that they were victims of 
discrimination. See R. 256 at 6.
Members of the class were selected for 
promotion through a victim identification

4



procedure, which the district court found 
identified those most likely to have been 
denied promotions on discriminatory 
grounds. The consent decree also provided 
for a $3.75 million class backpay fund and 
other injunctive relief.

In 1986, the Eleventh Circuit 
reversed the district court's denial of 
the white employees' motion to intervene. 
The court of appeals authorized 
intervention of Poss and the other white 
employees, but expressly limited their 
participation to challenging the 
promotional provision. Howard v. 
McLucas, 782 F.2d 956, 960-61 (11th Cir.
1986). The court denied authorization to 
intervenors to continue to challenge any 
other remedial provisions or to contest 
the district court's underlying findings 
of discrimination.

After considering the intervenors'

5



and parties7 submissions on remand, the 
district court rejected intervenors' 
objections, which are reiterated in their 
petition. The court approved the decree 
"because it is based upon a predicate 
finding of discrimination by defendants 
and is victim specific." 671 F. Supp. at 
767-68. The court also found that, to 
the extent the relief is not victim 
specific, it was narrowly tailored to 
eliminate the discrimination found. Id. at 
768. The court of appeals affirmed on the 
same grounds. Pet. 10a-20a. Motions for 
a stay were denied by the Eleventh Circuit 
and this Court. En banc review was denied 
by the Eleventh Circuit. Pet. D.

Although petitioners fail to 
acknowledge the victim-specific nature of 
the promotional relief, two courts below 
upheld the decree precisely because it is 
victim specific. E .g.. 671 F. Supp. at

6



766 ('• [T]he court is fully persuaded that
only identified victims of discrimination 
will benefit from the promotional 
relief."). Petitioners also fail to 
acknowledge that intervenors' objections 
that the promotional procedure was not 
n a r r o w l y  t a i l o r e d  to eliminate 
discrimination were rejected by both 
courts below.1

10n remand, intervenors were given a 
plenary opportunity to challenge the 
promotional provision. They failed to 
show that "any of the plaintiffs were not 
discriminated against." Pet 19a; see 671 
F. Supp. at 764. None of the intervenors, 
moreover, presented any evidence that he 
or she had been injured in any way by 
operation of the promotional provision. 
Pet. 2a. The district court found that 
the intervenors presented no evidence of 
injury, and that 43 of the 137 intervenors 
had been promoted and another 56 were 
ineligible for promotion. 671 F. Supp. at 
767 n. 4. The court of appeals found 
that, none presented evidence of any delay 
in receiving promotions. Pet. 9a. 
Notwithstanding intervenors' "tenuous" 
position to contest the consent decree, 
the courts below addressed the merits 
because "some delay may have occurred." 
Id.

7



B. FACTS
1. Record of Discrimination

The petition suggests that the 
promotional provision was based on a 
single statistic showing a disparity. 
This is incorrect. The lower courts found 
that a orima facie case had been proved 
with extensive statistical evidence of 
pervasive discrimination. Pet. 4a-5a, 671 
F. Supp. at 760-61, 766.

Warner Robins for many years has 
filled upper level jobs by promoting 
qualified employees in lower level jobs 
through an internal promotion system on 
the basis of seniority, written 
examinations, supervisory appraisals, 
training, and awards. 597 F. Supp at 
1508-09.2 Nevertheless, the record shows

2This case, therefore, is unlike 
Wards Cove Packing Co. v. Atonio. 109 S. 
Ct. 2115 (1989), in which higher level
jobs were filled through outside 
recruitment rather than internal promotion.

8



that blacks "were concentrated in low
level jobs and certain occupations." Pet. 
4a, quoting 597 F. Supp at 1513. In 1973, 
when plaintiffs' administrative charges 
were filed, fully three quarters of black 
WG employees were in the lowest job 
levels, compared to less than a third of 
the white WG employees. See Pet. 4a, 671 
F. Supp. at 760. Blacks were concentrated 
in menial occupations with little 
advancement potential. Although only 15% 
of the Warner Robins workforce, blacks 
constituted 86% of all janitors, 81% of 
all laborers, 76% of all packers, 76% of 
all motor vehicle operators, 71% of all 
woodcrafters and 67% of all parts and 
equipment operators. See Pet. 4a.

Statistics also "demonstrated that 
black employees were promoted ... in 
proportions less than their representation 
in the workforce or in lower grades."

9



Pet. 4a, 671 F. Supp. at 760, quoting 597
F. Supp at 1510. Plaintiffs compiled two 
statistical analyses of promotions, which 
were introduced by stipulation. See 597 
F. Supp. at 1508 n. 1. The first showed 
that significant statistical disparities 
in promotion rates out of WG grade groups 
and GS grades 1-4, and that blacks lost 
553 jobs from 1971-78.3 The second 
analysis, more conservative because it

3
Grade GrouD

Number 
of Standard 
Deviations

Expected 
Promotions 

Lost to Blacks
WG 1-4 6.01 67.98WG 5-8 16.03 362.00WG 9-12 4.80 50.06GS 1-4 3.56 72.67

See Pet. 4a, 671 F. Supp. at 760, 597 F
Supp. at 1610. Fluctuations of more than 
two or three standard deviations undercut 
the hypothesis that selections for 
promotions were being made randomly with 
respect to race. See Castaneda v. 
Partida. 430 U.S. 482, 496 n. 17 (1977).

10



controlled for occupational series,4 
showed statistically significant 
disparities in WG categories, but no 
significant disparities in GS jobs. The 
conservative analysis showed blacks lost 
234 jobs.5

Defendant Warner Robins also prepared 
an analysis of promotion statistics for 
trial, which plaintiffs summarized. The 
g o v e r n m e n t ' s  s u b m i s s i o n  s h o w e d  
statistically significant disparities out 
of WG jobs and concluded that blacks lost

4The record, however, indicates that 
employees in different series were 
qualified to be promoted to the same job. 
See R. 275, Tab E (government exhibit 
showing large pools of qualified employees 
for particular positions).

Number Expected
5 of Standard Promotions

Grade Group Deviations Lost to Blacks
WG 1-4 3
WG 5-8 8
WG 9-12 3

53 36.68 
19 162.84 
75 34.74

See Pet. 4a, 671 F. Supp. at 761.

11



328 positions.6
All the selection criteria used by 

Warner Robins, with the exception of 
seniority, had significant adverse impact 
on black employees. Id. See R. 285 at 
40-41; R. 156, 28-37; R. 269, §§3d-h & k;
R.268, Exhibit 1, 47-73, 100-07. For
instance, while fluctuations of more than 
two or three standard deviations are 
sufficient to undercut the hypothesis that 
a selection device has a racially random 
effect, the passing scores of black 
employees on written examinations varied 
by as much as 50 standard deviations from 
those of'white employees. R. 268, Exhibit 
1 at 100; see id. at 100-07. Government

Number Expected
6 of Standard Promotions

Grade Group Deviations Lost to Blacks
WG 1-4 4.60 
WG 5-8 9.50 
WG 9-12 4.29

70.98
209.72
46.53

R. 268, Exhibit 1, 85.
12



documents admitted the adverse impact. 
Warner Robins' EEO affirmative action 
plans stated that disparities in training 
were a "problem": For example,
"[m]inorities received a disproportionate 
share of training in CY 1973 —  7% of the 
total compared to their 15.2% population." 
R. 156, 30, 3a (admission) . The 1976
affirmative action plan stated that 
"[l]ower appraisals for . . . minorities
r e s u l t  in r e d u c e d  p r o m o t i o n a l  
opportunities." See id. at 32, 3a 
(admission). EEO documents show
consistent racial disparities in awards 
given to employees, which "no doubt 
reflects in the promotion figures where 
awards are ranking factors." See id. at, 
38, 4a (admission).

The finding by the lower courts of 
unrebutted evidence showing prima facie 
discrimination in denial of promotions was

13



amply supported. That unrebutted evidence 
was thus "sufficient evidence to justify 
the conclusion that there has been prior 
discrimination." Wygant v. Jackson— Board 
of Education. 476 U.S. 267, 277 (1986).7 
2. The Promotional Provision

The district court found that class 
members identified for the 240 promotions 
were likely to have been eligible for the 
same promotions during the period when the 
discriminatory policies were in force, 
and, therefore, were "likely victim[s] of 
discrimination entitled to relief." 671 
F. Supp. at 764, see id. at 763. "A more 
specific way of identifying these actual

7Intervenors attach great weight to 
the fact that Warner Robins did not 
concede liability in the consent decree. 
Interveners ignore, however, that Warner 
Robins stipulated that the statistical 
disparities cited above, that undergird 
the prima facie discrimination findings, 
were true and correct. See 671 F. Supp. 
at 766 n.l; 597 F. Supp. at 1511 n. 1, 
1513; R. 285 at 8-11, 40-41.

14



victims does not exist in this case." Id. 
at 763.

Because of Warner Robins' promotional 
system and record-keeping procedures, it 
was impossible to identify all employees 
who were actually qualified for promotion 
to jobs lost to blacks in the 1971-79 
period, or even to reconstruct their 
qualifications at the time.8 The 
supervisory appraisals and test scores of 
specific employees in the period are 
unavailable or incomplete. Pet. 3a-4a. 
It was also impossible to definitively 
rank the best qualified employees because 
all the then-existing criteria used for 
determining qualification, except

8 All employees were considered for 
promotion through a computerized ranking 
process in which qualifying criteria of 
employees were automatically assessed as 
vacancies came up. 597 F. Supp. at 1509. 
Warner Robins does not use the more usual 
announcement or posting system in which 
employees apply for promotions. 597 F. 
Supp. at 1508.

15



s e n i o r i t y ,  w e r e  s h o w n  to be 
discriminatory.

The parties used plaintiffs' 
conservative promotional analysis to 
identify the number of promotions lost to 
blacks and the specific jobs most likely 
to have been lost to blacks.9 The 
parties then used the contemporaneous and 
only available computerized ranking of 
eligible class members present in the 
workforce during the relevant period in 
order to identify specific victims. 
Seniority and supervisory appraisal scores 
were used, but seniority, the only non­

9 671 F. supp. at 762 (The 240 
positions "represent, to the best extent 
possible, the most likely jobs lost to 
blacks from 1970 through 1979 as a result 
of the discrimination at Warner Robins."); 
597 F. Supp. at 1513-14 ("Plaintiffs' 
computer-based promotional analysis for 
occupational series was actual evidence 
that approximately 240 promotions were 
lost to black WG employees . . . [T]he
positions to be filled by blacks should 
have been filled by blacks years ago.").

16



discriminatory criteria, was given 
greatest weight.

The district court, therefore, had an 
ample basis to find that "the victim 
identification process . . . [was] a
reliable and narrowly tailored process 
designed to assure that only victims of 
discrimination be afforded relief." 671 
F. Supp. at 764 (emphasis added).

The district court heard and rejected 
intervenors' objections to the scope of 
the promotional provision. The court 
found that "to the extent the relief is 
not victim specific, it is still lawful 
since it is necessary to provide full 
relief to class members, it is flexible, 
waivable, and of limited duration; the 
number of positions offered is limited to 
the specific number of jobs statistically 
proven to have been lost to class members; 
and, finally, it does not unnecessarily

17



trammel the rights of third parties or 
create an absolute bar to their 
advancement since the impact of the relief 
is relatively diffuse in nature and many 
promotional opportunities continue to 
exist for these third parties." 671 F. 
Supp. at 768.

The court expressly found that there 
was no "less intrusive approach that might 
provide full relief to class members 
within a reasonable period of time." Id. 
at 767. The court, therefore, had 
substantial basis to conclude that the 
decree was narrowly tailored to eliminate 
prior discrimination.

18



REASONS TO DENY THE WRIT

I
The Courts Below Correctly Applied 
The Law Of This Court In Upholding A 
Consent Decree That Provides Relief 
To Specific Victims Of Discrimina­
tion Based On A Showing Of Pervasive 
Prima Facie Discrimination.

Petitioner intervenors assert that 
this case presents the important federal 
question whether an affirmative action 
set-aside can be justified by a mere 
underutilization of blacks. Pet. 11. 
This contention fails for two reasons: 
Petitioners initially claim that the only 
factual predicate for the promotional 
measure is "a statistical under­
utilization of blacks." The courts below 
found pervasive prima facie discrimination 
on the basis of a substantial record. 
Such a statistical showing "proved a prima 
facie case of systematic and purposeful

19



International
Brotherhood of Teamsters v. United States, 
431 U.S. 324, 342 (1977). Second,
petitioners claim that the promotional 
provision in question is an affirmative 
action program for employees who were not 
victims of discrimination. As the two 
lower courts correctly found, however, the 
promotions are specific relief for 240 
victims of discrimination. Moreover, 
" [ i ] ntervenors have failed to show that 
any of these class members were not 
victims of defendants' discrimination." 
671 F. Supp. at 764.

The instant case simply does not 
concern the permissible scope of 
affirmative action. The defining
characteristic of affirmative action plans 
is that they are not confined to providing 
r e l i e f  to a c t u a l  v i c t i m s  of 
discrimination. See Local 28. Sheet

employment discrimination,"

20



Metal Workers v. EEOC. 478 U.S. 421, 474
(1986) ("The purpose of affirmative action 
is not to make identified victims whole, 
but rather to dismantle prior patterns of 
d i s c r i m i n a t i o n  and to p r e v e n t  
discrimination in the future . . . .  
[B] enef iciaries need not show that they 
w e r e  t h e m s e l v e s  v i c t i m s  of 
discrimination") ; Local No. 93, 
International Association of Firefighters 
v. City of Cleveland. 478 U.S. 501, 515
(1986) ("courts may, in appropriate cases, 
provide relief under Title VII that 
benefits individuals who were not the 
actual victims of a defendant's 
discriminatory practices"); Firefighters 
v. Stotts. 467 U.S. 561, 579 (1984)
(observing that the plan under review was 
supported by "no finding that any of the 
blacks protected from layoff had been a 
victim of discrimination").

21



As the Court noted in Regents of 
University of California v. Bakke, 438 
U.S. 265, 301 (1978), "some burdens on
other employees" and "various types of 
racial preferences" were tolerated in 
Franks v. Bowman Transportation Co.. 424
U.S. 747 (1976), and other employment
discrimination cases. Such victim-
specific provisions, however, were 
distinguishable from similar measures in 
affirmative action programs because they 
were "held necessary '"to make [the 
victims] whole for injuries suffered on 
a c c o u n t  of u n l a w f u l  em ployment  
discrimination"'" and were "remedies for 
constitutional or statutory violations 
resulting in identified, race-based 
injuries to individuals held entitled to 
the preference." Bakke. 438 U.S. at 301
(quotations omitted).

This Court long ago held that a

22



central purpose of Title VII is "to make 
persons whole for injuries suffered on 
a c c o u n t  of u n l a w f u l  employment 
discrimination." Albermarle Paper Co. v. 
Moodv. 422 U.S. 405, 418 (1975); see
Local 28. Sheet Metal Workers v. EEOC, 478 
U.S. at 471 (individual "make whole" 
relief is not the only kind of remedy 
available under Title VII). The "make 
whole" purpose of Title VII is consistent 
with the historic purpose of the Civil 
Rights Acts to secure complete justice for 
victims of racial discrimination. "[T]he 
court has not merely the power but the 
duty to render a decree which will so far 
as possible eliminate the discriminatory 
effects of the past as well as bar like 
discrimination in the future." Louisiana 
v. United States. 380 U.S. 145, 154
(1965) .

Relief to individual victims of

23



discrimination is justified on the record.
A finding of pervasive, classwide 
discrimination such as the district court 
made in this case is an appropriate basis 
for relief to individual class members. 
Price Waterhouse v. Hopkins. 109 S.Ct. 
1775, 1799 (1989) (O'Connor, J.,
concurring) ("Because the class has . . .
demonstrated that, as a rule, illegitimate 
factors were considered in the employer's 
decisions, the burden shifts to the 
employer 'to demonstrate that the 
individual applicant was denied an 
employment opportunity for legitimate 
reasons.'") (citations omitted). The law 
is settled that "[b]y 'demonstrating the 
existence of a discriminatory 
pattern and practice' the plaintiffs 
ha[ve] made out a prima facie case of 
discrimination against the individual 
class members.'" Teamsters. 431 U.S. at

24



Bowman3 5 9 , q u o t i n g  F r a n k s  v . 
Transportation Co., 424 U.S. 747, 772
(1976). "[P]roof of a discriminatory
pattern and practice creates a rebuttable 
presumption in favor of individual 
relief." Teamsters, 431 U.S. at 359 n. 
45.

Courts, moreover, have recognized 
that the process of recreating the past, 
for example, in order to identify victims 
of discrimination, "will necessarily 
involve a degree of approximation and 
imprecision." Teamsters. 431 U.S. at 372. 
See Seaar v. Smith. 738 F.2d 1249, 1289 & 
n.36, 1290 (D.C. Cir. 1984), cert, denied, 
471 U.S. 1115 (1985); Pettwav v. American
Cast Iron Pipe Co.. 494 F.2d 211, 260 (5th 
Cir. 1974), cert, denied. 439 U.S. 1115 
(1979). While individualized hearings are 
"usually" required, Teamsters. 431 U.S. at 
361, they are not mandatory "when the

25



class size or the ambiguity of promotion 
or hiring practices or the multiple 
effects of discriminatory practices or the 
illegal practices continued over a 
extended period of time calls forth [a] 
quagmire of hypothetical judgment [s] .11 
Pettwav. 494 F.2d at 261. See Domingo v.
New England Fish Co. , 727 F.2d 1429, 1444 
(9th Cir. 1984); Segar. 738 F.2d at 1290; 
Stewart v. General Motors Corp. , 542 F.2d
445, 452-53 (7th Cir. 1976), cert, denied. 
433 U.S. 919 (1977); Association Against
Discrimination in Employment. Inc., v. 
City of Bridgeport. 479 F.Supp. 101, 115
(D. Conn. 1979), aff'd. 647 F.2d 256 (2d
Cir. 1981) , cert, denied. 455 U.S. 988
(1982). In the instant case, the
challenged remedy employed the best method 
possible under the circumstances to 
identify victims of pervasive promotional 
discrimination. See 597 F. Supp. at 1504

26



("The present parties have labored to 
reconstruct the record of thousands of 
personnel actions and have identified as 
best as possible the actual impact of past 
discrimination").

A s s u m i n g  a r g u e n d o  that the 
promotional provision is not a victim- 
specific remedy but an affirmative action 
remedy for nondiscriminatees, the measure 
is, nevertheless, appropriate. The lower 
courts ' findings of orima facie 
discrimination are based on separate 
showings of promotional disparities and 
the adverse impact of a broad range of 
promotional criteria, buttressed by 
admissions in Warner Robins' affirmative 
action plans. This record of "persistent 
or egregious" discrimnation or "lingering 
effects of pervasive discrimination," 
Local 28. supra, 478 U.S. at 476, as the 
Eleventh Circuit properly held, showed

27



"that the government had a sufficient 
basis for concluding that remedial action 
was necessary." Pet. 13a. In so finding, 
both lower courts specifically measured 
the promotional provision against the 
legal principles set forth in the Court's 
recent affirmative action decisions under 
Title VII and the Constitution. E.g. , 
United States v. Paradise, 480 U.S. 149 
(1987); Johnson v. Transportation Agency. 
480 U.S. 616 (1987); Local 28. 478 U.S. 
421; Wvgant v. Jackson Board of Education, 
476 U.S. 267 (1986) . The lower courts 
found not only a "manifest imbalance" in 
"traditionally segregated job categories", 
Johnson. 480 U.S. at 631; United Steel­
workers of America v. Weber. 443 U.S. 193,
197 (1979) , but "sufficient evidence to
justify the conclusion that there has
been prior discrimination." Wvgant. 476
U.S. at 277. See Paradise. 480 U.S. at

28



167 ("The government unquestionably has a 
compelling interest in remedying past and 
present discrimination"). Wygant, 476
U.S. at 286 (O'Connor, J., concurring) 
("The Court is in agreement that, 
whatever the formulation employed, 
remedying past or present racial 
discrimination by a [governmental] actor 
is a sufficiently weighty [governmental] 
interest to warrant the remedial use of a 
carefully constructed affirmative action 
program". The record in this case, 
therefore, justifies race conscious 
relief.

The particular form of race conscious 
relief, the set aside of 240 promotions, 
is fully commensurate with the orima facie 
case, and was found to be the only measure 
under the circumstances that "would 
provide the full relief necessary to 
remove promptly the remaining vestiges of

29



Pet.discrimination at Warner Robins".
15a; 671 F. Supp. at 7 67. Review on
Certiorari, therefore, is inappropriate.

30



II
The Lower Courts Correctly 
Decided That The Promotional 
Provision Was Narrowly Tailored 
"to Eliminate the Effects of 
Past Discrimination."

Petitioners assert that the Eleventh 
Circuit failed to consider race neutral 
alternatives and that the promotional 
provision was not narrowly tailored. With 
respect to the first assertion, 
petitioners had an opportunity to present 
alternatives both at the Rule 23 fairness 
hearing and subsequently on remand from 
the Eleventh Circuit. On neither occasion 
did they present any race-neutral 
p r o p o s a l s . 10 That omission is
understandable: Warner Robins, as
petitioners point out, has had an 
affirmative action program, pursuant to

10See Johnson v Transportation 
Aaencv. 480 U.S. at 628; Wyqant v.
Jackson Bd. of Education. 476 U.S. 277-78 
(burden of proof on intervenors to show 
unconstitutional violation of Title VII).

31



which the kinds of race-neutral measures 
petitioners now propose were employed. 
See 41 CFR 60-2.20-2.26. Warner Robins' 
affirmative action reports admitted that, 
notwithstanding these efforts, patterns of 
orima facie discrimination occurred. The 
parties, therefore, were correct in 
assuming that race-neutral measures of the 
kind petitioners espouse now would have 
been ineffective.

With respect to narrow tailoring, the 
lower courts gave petitioners a full 
opportunity to make their case and 
rejected their factual contentions that 
the promotional provision could have been 
more narrowly drawn. Pet. 15a-19a; 671 
F. Supp. at 766-67. These twice-rejected 
contentions are neither meritorious nor 
appropriate for certiorari. See. Blau v. 
Lehman. 368 U.S. 403, 411 (1962). They 
merely seek to enlist the Court in

32



reviewing evidence and discussing specific 
facts. United States v, Johnston. 268 
U.S. 220, 227 (1925); see Anderson v City 
of Bessemer City. 470 U.S. 564, 574 (1985) 
("Where there are two permissible views of 
the evidence, the factfinder's choice 
between them cannot be clearly 
erroneous").

The courts below properly found that 
the promotional relief was necessary and 
that other proposed remedial alternatives 
were not feasible. Pet. 16a; 671 F. Supp. 
at 767. "The flexibility and short 
duration of the promotional relief cannot 
seriously be called into question." Pet. 
17a, 671 F. Supp at 766-67. "The 240 
special promotions do not represent or 
achieve any aggregate proportionality" or 
numerical goal. Pet. 17a. The impact of 
the provision is "relatively diffuse" and 
spread throughout the workforce. Pet. 18a,

33



671 F. Supp. at 766-67. They constitute 
only 4.3% of the total Warner Robins 
promotions. Pet. 7a; 671 F. Supp. at 767. 
The best method of determining the actual 
victims of discrimination was utilized. 
Pet. 19a; 671 F. Supp. at 766-67. Two
courts below made extensive findings that 
"[w]hile the identification process is not 
flawless, it is, in the court's best 
judgment, a reasonable and fair identi­
fication procedure designed to choose the 
most likely victims of dis-crimination," 
in light of the available documentary 
sources and peculiarities of the Warner 
Robins promotional process. 671 F. Supp. 
at 765. Petitioners' contentions,
including the claim that the government 
"willfully destroyed records during the 
pending of this litigation", Pet. 36a, 
were properly rejected as incorrect and 
frivolous. 671 F. Supp. at 763-65.

34



CONCLUSION
The petition for writ to the Eleventh 

Circuit should be denied.

Respectfully submitted,

Julius LeVonne Chambers 
Ronald L. Ellis 
16th Floor 
99 Hudson Street 
New York, NY 10013
212- 219-1300
Bill Lann Lee 
8th Floor
634 South Spring Street 
Los Angeles, CA 90014
213- 624-2405
Thomas A. Jackson 
655 New Street 
Macon, GA 31201 
912-746-2370
Charles A. Mathis, Jr. 
P. 0. Box 928 
Macon, GA 31201 
912-746-1204
Joseph F. Henderson 
American Federation of 
Government Employees 
80 F Street, N.W. 
Washington, DC 20001 
202-783-0504
Counsel for Respondents

35