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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 76-2207

OTHA GRIGSBY, ET AL,

Plaintiffs-Appellants,

VS .

NORTH MISSISSIPPI MEDICAL CENTER, INC.,

Defendant-Appellee.

Appeal From The United States District Court 
For The Northern District of Mississippi

CERTIFICATE REQUIRED BY 
FIFTH CIRCUIT LOCAL RULE 13(a)

The undersigned, counsel of record for Defendant-Appellee, 

North Mississippi Medical Center, Inc., certifies that the 

following listed parties have an interest in the outcome of 

this case. These representations are made in order that Judges 

of this Court may evaluate possible disqualification or recusal 

pursuant to Local Rule 13(a) .

Otha Grigsby, Eddie Black, Essie Sneed
and the class represented by Grigsby--Plaintiffs-Appellants



Ill

TABLE OF CONTENTS

Preamble .................................................. ii

Statement of the Issues ..................................  1

Statement of the Case ....................................  2-18

A. Course of Proceedings and
Disposition in Court Below .....................  2-3

B. Statement of Facts .............................. 3-18

Summary of the Argument ..................................  19-20

Argument ..................................................  21-49

Point I. The District Properly Found
That Grigsby Did Not Establish 
a Prima Facie Case of Class 
Discrimination by the Medical
Center ...................................  21-27

Point II. Grigsby Did Not Prove Disparate 
Impact on the Class Resulting 
From Employment Decisions 
Allegedly Based Upon the 
Subjective Judgment of White 
Supervisors; Nor Did Individuals 
Prove Disparate Treatment on
the Basis of Race ........................ 28-45

Point III. The District Court Did Not Limit
the Scope of Discovery ..................  45-49

Conclusion ................................................ 49

Certificate of Service 50



IV

TABLE OF AUTHORITIES

Cases: Page

Blunt v. Marion County School Board, 515 F.2d
951 (5th Cir. 1975) ........................  45

Burns v. Thiokol Chemical Corp., 483 F.2d 300
(5th Cir. 1973) .............................. 48

Causey v. Ford Motor Co., 516 F.2d 416
(5th Cir. 1975) .............................. 33

East v. Romine, Inc., 518 F.2d 332
(5th Cir. 1975) ......................... 34, 37-38

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .... 33

Harper v. Trans World Airlines, Inc.
525 F . 2d 409 (8th Cir. 1975) ................  24

Hester v. Southern Railway Co., 497 F .2d
1374 (5th Cir. 1974) ........................  30

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) .........................  32, 34

Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605 (1974) .......  23

Morita v. Southern Cal. Permanente 
Medical Group, 541 F .2d 217
(9th Cir. 1976) .............................. 24

Muller v. U. S. Steel Corp., 509 F .2d 923
(10th Cir. 1975)   42

Ochoa v. Monsanto Co., 473 F.2d 318
(5th Cir. 1973) .............................. 23

Robinson v. City of Dallas, 514 F .2d 1271
(5th Cir. 1975) .............................. 23



VI

TABLE OF AUTHORITIES (Continued)

Page

Other Authorities (continued)

Rule 33(c), Fed. R. Civ. P........................  48

Rule 34, Fed. R. Civ. P ...........................  46

4 Moore's Federal Practice, 1(26.50 (2d Ed. 1976) .. 48

9 Wright & Miller, Federal Practice and
Procedure: Civil §2586 (1971) .............. 45



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 76-2207 

OTHA GRIGSBY, ET AL,

Plaintiffs-Appellants,

VS.

NORTH MISSISSIPPI MEDICAL CENTER, INC.,

Defendant-Appellee.

Appeal From The United States District Court 
For The Northern District of Mississippi

BRIEF OF DEFENDANT-APPELLEE 

STATEMENT OF THE ISSUES

I. Whether the District Court Properly Found that 

Grigsby Did Not Establish a Prima Facie Case 

of Class Discrimination by the Medical Center.

II. Whether Grigsby Proved Disparate Impact on the

Class Resulting From Employment Decisions Allegedly 

Based Upon the Subjective Judgment of White 

Supervisors; Whether the Individuals Proved 

Disparate Treatment on the Basis of Race.

III. Whether the District Court Limited the Scope of 

Discovery.



2

STATEMENT OF THE CASE

A . Course of Proceedings and Disposition in Court Below.

Defendant-Appellee North Mississippi Medical Center, Inc. 

("Medical Center") generally accepts the accuracy and complete­

ness of Plaintiffs/Appellants' ("Grigsby's") statement of 

course of proceedings and disposition in the court below, 

with the following clarifications:

As to the chronology of Grigsby's discovery by interroga­

tories and the district court's pre-trial disposition of the 

class action aspect of the case, the Medical Center would 

point out that its answers to Grigsby's last set of inter­

rogatories, conforming to the district court's protective 

order entered January 24, 1975, (O.R. 89) were filed on

May 22, 1975. (P. Ex. 64).

On November 17, 1975, an order was entered setting the 

case for trial on February 23, 1976, and ordering the 

completion of all discovery not later than January 12, 1976. 

(O.R. 104). On December 29, 1975, the district court, sua 

sponte, entered an order reciting that it had been brought 

to the attention of the court that although Grigsby sought 

to represent a plaintiff class, there had as yet been no 

determination by the court pursuant to Rule 23(c), F.R.Civ.P., 

whether the action might be so maintained, and if so, how

the class should be defined and delineated.



3

The action was referred to the full-time magistrate of the 

■̂*"Strict court for submission of a report and recommendations 

on this question. (O.R. 106).

On January 12, 1976, approximately one and one-half years 

after the action initially had been filed, eight months after 

the Medical Center filed its answers to Grigsby1s last inter­

rogatories, and six weeks before the date set for trial,

Grigsby filed a motion for class action determination. (O.R. 108) 

On February 12, 1976, eleven days prior to the date set for 

trial, the report of the magistrate was filed. (O.R. 114).

On February 23, 1976, the first day of trial, the district 

court entered an order certifying the case as a class action.

(O.R. 146).

B . Statement of Facts.

1. General

The North Mississippi Medical Center, Inc. ("Medical

Center") is a non-profit corporation operating a 417 bed
1/

hospital and Mental Health Complex at Tupelo, Mississippi, 

and a 50 bed Satellite Unit at Baldwyn, Mississippi. (T. 15-16, 

108) .

At the time of trial, the Medical Center employed approxi­

mately 1,120 persons, of whom 814 (73%) were white and 306 (27%)

1/The Mental Health Complex serves a contiguous seven 
county area in northeast Mississippi. (T. 16).



4

were black. (T. 110). The racial composition of the population 

in Lee County, Mississippi, in which the Medical Center, Mental 

Health Complex and Baldwyn Satellite Unit are situated, is 

79% white and 21% black. (T. 93).

The racial composition of the Medical Center's various 

personnel groupings or categories varies widely. Of the 14 

employees which the Medical Center classifies as administra­

tive or executive personnel with combined reference to the 

Mental Health Complex and Baldwyn Satellite Unit (e.g., 

administrator, assistant administrator [3], director of 

mental health complex, executive housekeeper, director of 

central service, business manager, director of cardio­

pulmonary, chief radiological technologist, director of 

nursing service, dietician, food service manager, and chief 

medical technologist) all incumbents are white. (P. Ex.

64 at 20).

Among its overall supervisory force, the Medical Center 

has at least six black supervisors who have supervisory 

authority, including authority to effectively recommend change 

in status of employees, over white employees. (T. 829). In 

addition to these black supervisors with supervisory authority



6

movement are to file an application for transfer in the 

personnel office at any time there is an available position.

These applications are reviewed by department heads in filling 

positions, and incumbent employee applicants are considered 

prior to seeking employees from outside. (T. 828). This 

policy is published in the employee's handbook. (T. 828;

D. Ex. 33). Black and white employees have filed applications 

for transfer or promotion, both blacks and whites have 

received requested transfers, and not all whites have received 

transfers they have requested. (T. 828).

With regard to self-improvement and opportunities for 

training for advancement, the Medical Center has in effect 

a continuing education program available to all of its employees. 

This program permits employees to return to school and take 

courses in conjunction with their current employment or 

employment which they could reasonably hope to attain at 

the Medical Center upon successful completion of the course.

Upon completion of such training, the Medical Center reimburses 

these employees to the full extent of their tuition. This 

benefit has been communicated to all employees, and at the 

time of trial no black employees had availed themselves of

the extension of education program. (T. 833-835).



7

There is no policy or practice of the Medical Center 

that black employees are replaced only by black employees 

and whites only by whites; there is significant interchange 

among replacements by race. (T. 820-824). In the case of 

Black, one of the individual plaintiffs, upon his employment 

he replaced a white employee (T. 824), and upon his subsequent 

promotion he assumed an opening brought about by the termina­

tion of William Parke, a white employee discharged for 

inadequate job performance. (T. 222; D. Ex. 12).

2. Grigsby

Otha Grigsby, a black, was employed as an occupational

health specialist in the Mental Health Complex of the Medical

Center on August 23, 1973. (T. 356, 536). Grigsby was the

first individual employed to fill this newly-created full-time

position (T. 356, 424) with the primary objective of securing

written agreements from larger employers (e.g., those with
2/

as many as 100 employees) in an eleven county area of north­

east Mississippi for participation in a specially funded 

program designed to assist employers in recognizing and 

referring "troubled" employees with alcohol or other drug- 

related problems for appropriate treatment, including mental 

health services to be provided by the Mental Health Complex 

in Tupelo. (T. 209-210, 357, 359, 567).

_2/ The Mental Health Complex was relieved by the funding 
agency of responsibility for four (4) of these counties during 
Grigsby's tenure, thus reducing his area of responsibility to 
seven counties. (T. 566).



8

Grigsby, who had recently received a masters degree in 

sociology and anthropology from the University of Mississippi, 

was selected by Duncan Clark, Director of the Mental Health 

Complex, as the most qualified person for this position from 

a pool of applicants, the majority of whom possessed masters 

degrees and were white. (T. 357, 425; D. Ex. 3, 4).

It took Grigsby approximately two months at the outset 

of his employment to compile a list of industrial employers 

in his area of responsibility. (T. 555, 566). In the early 

stage of development of this program Clark used his influence 

with industrialists in the area to assist Grigsby in arranging 

appointments with management to present the program (T. 562), 

and Clark also participated with Grigsby in luncheon meetings 

held in November, 1973, for discussions with various employers 

and personnel managers. (T. 360).

The original proposal offered by Grigsby to employers 

contained provisions for a nominal fee to be paid by the 

employer and was termed a "contract" . Following an indication 

in November, 1973 (T. 563) that these aspects might be 

inhibiting employers from participating in the program, in 

early 1974 the fee arrangement was deleted and the proposal 

was changed from a "contract" to an "agreement". (T. 365,

366, 428, 565). At the time of this change, Grigsby had



9

not secured a single commitment from any employer to 

participate in the program. (T. 365).

On May 8, 1974, Clark gave Grigsby a warning letter, 

informing him that his performance would have to improve or 

he would be terminated. (T. 370,- P. Ex. 26) . Grigsby had 

been at the job for approximately nine months and had not 

secured any signed agreements from employers during that 

period. (T. 369, 428, 567). The warning letter indicated 

that if there were still no signed agreements and if the 

negative reaction from employers continued, Grigsby would 

be terminated with two weeks' notice after the thirty-day 

evaluation period. (T. 370, 568).

Prior to the issuance of the May 8 warning letter, Clark 

had received negative responses from representatives of 

various employers, as well as from James Roberts, a Regional 

Mental Health Commissioner (T. 403, 404, 451), indicating 

their assessment that Grigsby's approach in proposing the 

program had been unprofessional and too aggressive, and 

therefore ineffective. (T. 374, 395, 400, 856, 860, 863-864).

The essence of these negative reactions was that Grigsby 

had no professional expertise to contribute to the improved 

operation of the employers' supervisors, and consequently the 

employers would not feel comfortable with any interpretation



10

of the stress situation in which one of their employees might 

be. There was also expressed resentment at Grigsby's per­

sistent efforts to get the employers to sign on with the 

program after they felt that had made it clear to him that 

they were not interested. (T. 400). None of the negatively 

responding employers indicated that Grigsby's race had any­

thing to do with the fact that they did not agree to accept 

the program. (T. 403, 404, 452) .

On June 8, 1974, thirty days after Grigsby had been 

informed by Clark that he was expected to have at least one 

signed agreement within that period, no agreements had been 

secured. (T. 429, 520). On June 28, 1974, Clark informed 

Grigsby that he would be terminated, but that Grigsby would 

be permitted to continue to work until a replacement for him 

could be found. (T. 369, 430, 571).

During the eight-month period of Grigsby's non-productivity, 

even after the "contract" and fee arrangements had been deleted 

from the program proposal, it had become apparent to Clark 

from the negative reactions and expressed needs of various 

contacted employers relative to the "troubled employee" 

program that a more clinical orientation would have to be 

adopted as opposed to an approach limited to training super­

visory personnel merely to be confrontive with their employees



11

for purposes of possible referral for professional treatment 

or other therapy. (T. 379, 410, 444) .

Therefore, in seeking a replacement for Grigsby, the 

primary qualifications determined necessary by Clark were 

clinical experience and training in a mental health discipline, 

as opposed to a field related to mental health (T. 430, 479). 

Neither of these prerequisites were possessed by Grigsby.

(T. 380).

On August 14, 1974, Grigsby received a letter from Clark, 

informing him that because of the limited response of industry 

to the occupational health program, it would be necessary for 

Grigsby's employment as occupational health specialist to 

terminate on August 30, 1974. (T. 377). Grigsby was further

informed that his termination was considered non-disciplinary 

in nature (T. 378), and it was noted that the termination 

notice was in agreement with a conversation between Clark 

and Grigsby on June 28, 1974, at which time Grigsby was given 

two weeks' notice and guaranteed a job until July 12, at 

which time he would go on a "week-to-week" basis until a 

satisfactory replacement could be secured. Grigsby had 

been advised on August 12, 1974, that such a replacement 

had been located and that Grigsby's last working day would 

be August 30, 1974. (P. Ex. 31).



12

With regard to the non-acceptance of the program experienced 

by other mental health regions in Mississippi during the time 

of Grigsby's employment, only two mental health regions,

Tupelo (Grigsby) and Oxford, had full-time occupational health 

specialists working on the program. (T. 561, 587). The 

Tupelo and northeast Mississippi area is one of the most 

heavily industrialized areas in the state, presenting a 

greater potential for securing agreements to participate in 

the program; and because of the particularly informed climate 

in the Tupelo area with regard to alcohol abuse, this area 

would provide a more fertile field for the institution of 

such a program than most other areas in the state. (T. 583, 

587-588).

The earlier experience of Dr. Eldridge Fleming has no 

relevance in comparison with that of Grigsby. In 1969, 

as a peripheral service of the programs offered by the 

Mental'Health Complex, Dr. Fleming attempted to formulate 

a prototype troubled employee-alcohol abuse proposal, 

at most a mere forerunner of the program Grigsby was later 

hired to implement, and Dr. Fleming's proposal was presented 

to only one industry, Pennsylvania Tire and Rubber Company, 

and not to all major employers in the northeast Mississippi 

area as was Grigsby's mission. This initial prototype was 

not accepted by the single employer to which it was proposed,



13

and at that point the idea was dropped. (T. 190-208). Dr. 

Fleming spent only a small percentage of his time on this 

initial prototype (T. 210), and the proposal was not specially 

funded as was the project undertaken by Grigsby. (T. 201, 277) .

Throughout Dr. Fleming's employment by the Mental Health 

Complex, he was responsible for all alcohol programs administered 

by the Mental Health Complex, and was not occupied solely with 

a program limited to industrial application as was Grigsby.

(T. 201-203). Fleming never was "assigned" to develop an 

"industrial alcoholic rehabilitation program", he did not 

spend six months attempting to secure an agreement for par- 

ticipitation (contrary to Grigsby's representation) and his 

proposal was presented to only one industrial employer.

Grigsby was replaced by Douglas Van Horn, a white, who 

was hired on September 2, 1974. (T. 437). Van Horn had

recently received a masters degree from the University of 

Southern Mississippi in community counseling, with emphasis 

on industrial psychology and special emphasis in drug and 

alcohol work in industry, which involved practical clinical 

training. (D. Ex. 13). Van Horn was recommended by Ashton 

Brisolara, the original developer of the occupational health 

program. (T. 432). In his first year of employment with



14

the Medical Center Van Horn secured agreements for participa­

tion in the program from approximately 16 employers. (T. 744- 

746) .

3. Black

Eddie Black, a black, was employed in July, 1972, as 

a manager-counselor in the New Life Center, a walk-in, store­

front operation or half-way house, established under a specially 

funded program to assist persons with alcohol-related problems. 

(T. 211, 322). The New Life Center was a neighborhood extension 

of the Mental Health Complex and officially opened in September, 

1972. Black was hired upon the recommendation of Dr. Fleming, 

who at the time was the Director of Alcohol Programs of the 

Mental Health Complex. (T. 212).

As a manager-counselor, Black's primary responsibilities 

were to be available at the New Life Center for counseling to 

the pre-alcoholic and alcoholics and their families, to provide 

community education in this regard, and to work with the com­

munity coordinators in finding, referring, following and 

educating the target group. The manager-counselors were 

under the supervision of the coordinator of counselors, Martis 

"Buddy" Ramage, and Dr. Fleming. (T. 213-215).

Ramage, as coordinator of counselors, was responsible for 

coordinating services provided in the counties and supervising



15

and training field personnel, as well as carrying his own 

heavy patient caseload involving group therapy sessions, 

individual counseling, treatment planning, and interviewing. 

(T. 252, 253, 527-528). At the time of Ramage's resignation 

in December, 1972, he was seeing approximately 40 patients 

per week in addition to performing his supervisory and 

administrative duties. (T. 531) .

In January, 1973, following Ramage's resignation as 

coordinator of counselors, it was decided by Clark and Fleming 

to indefinitely postpone filling that vacancy for budgetary 

reasons. However, while it was determined that the position 

would remain vacant for an indefinite period of time, the 

decision was immediately made to begin searching for a highly 

qualified counselor, experienced in the field of alcoholism, 

to fill the position. (T. 342).

During the interim between the resignation of Ramage and 

the selection of a replacement, Dr. Fleming assumed all the 

duties previously assigned to Ramage. (T. 252). Black did 

not perform any of Ramage's duties during this hiatus, and 

his experience during this period was limited to in-service 

training two days per week, which involved only limited case 

assignments supervised by Fleming, and no supervisory ex­

perience. (T. 264, 273). The only other training experience



16

of Black during the interim was attendance at a three week 

short-term training and orientation program at Atlanta 

University. (T. 260).

In April, 1973, Clark, Fleming and Richard Johnson, 

Executive Director of Lift, Inc., the community action agency 

through which the alcohol programs of the Mental Health 

Complex were funded, reviewed the qualifications of all staff 

members, including Black, and concluded that no staff members 

were qualified by training and experience to fill the position 

of coordinator of counselors. (T. 271, 418-419, 770-771;

D. Ex. 25). As to Black, it was additionally felt his pro­

ductivity and attendance had deteriorated from March, 1973, 

onward. (T. 229, 241, 775). Once it was determined 

that it would be necessary to seek applications from outside 

the staff, notice of the vacancy was published in accordance 

with the funding agency guidelines (T. 238, 275), and it was 

announced to the staff that the position would be filled.

(T. 268).

On July 2, 1973, Kelly Ferguson was hired as coordinator 

of counselors at the conclusion of the recruitment program. 

Ferguson recently had been released from active military 

service during which time he had received extensive counseling 

experience and training as a drug specialist in an alcohol



17

and drug treatment program in a half-way house at Fort Banning, 

Georgia. (T. 459). During his last nine months at Fort 

Benning he had responsibility for supervising other counselors 

on the staff and worked with psychiatrists and other professionals 

in an intensive treatment environment. (T. 248, 260, 415, 464).

The decision to employ Ferguson as the best qualified applicant 

for the position was again jointly made by Clark, Fleming and 

Johnson. (T. 276, 772).

On September 3, 1973, Black was promoted to the position 

of counselor coordinator, Tupelo area, a vacancy brought about 

by the termination of William Parke, a white counselor coordinator 

discharged for inadequate job performance. (T. 222, 258, 422;

D. Ex. 12). Black's promotion involved not only an increase 

in salary but also in terms of job and area responsibility.

(T. 223). The area counselor coordinator's position was 

at the next promotional level from Black's former position, 

whereas the coordinator of counselors job was two steps 

removed from the manager-counselor position. (T. 272, 418).

On October 30, 1973, Black voluntarily tendered his resignation 

effective October 19, 1973. (T. 280, 494-496, 500; D. Ex. 20,

21) .

4. Sneed

Essie Sneed, a black, was employed by the Medical Center

as a nurse's aide on December 17, 1973. (T. 622). Sometime



18

in January, 1974, she injured her back while lifting a 

patient into bed. (T. 625). She reported to the emergency 

room where she was examined and then sent home for bed rest 

to be followed by physical therapy. (T. 625). Sneed returned 

to work three weeks following her injury. (T. 625). She 

then worked for approximately two weeks until February 23,

1974, reported back to the emergency room, was examined and 

sent home. (T. 625).

She was admitted to the hospital as a patient on February 5, 

1974 (T. 626), and her hospital stay was for approximately one 

week. (T. 625). She stated that she received a termination 

letter while hospitalized and after she had been in the 

hospital for four days. (T. 627). A warning slip (D. Ex.

27) dated March 4, 1974, concerns Sneed's absenteeism and 

indicates that her last day at work was February 23, 1974, and 

that since her employment she had worked 32 days and had been 

absent 23 days. (T. 640). A letter dated March 5, 1974, was 

sent to Sneed informing her of her termination. (D. Ex. 29). 

Sneed had been released by her physician to return to work 

prior to her termination (T. 831), and she had not reported 

to work or called in immediately preceding her discharge.

(T. 643, 644; D. Ex. 27).



SUMMARY OF THE ARGUMENT

The district court properly concluded that Grigsby, 

as representative of the class, did not establish a prima 

facie case of class discrimination in an across-the-board 

attack on the employment practices of the Medical Center.

The statistical sample data presented by Grigsby and derived 

from an extremely small universe was wholly insufficient 

and of no predictive value as to the Medical Center's insti­

tution-wide employment practices. There was no adequate 

demonstration of the Medical Center's broad employment poli­

cies and practices necessary to support an inference of insti 

tution-wide racial discrimination.

Grigsby did not prove disparate impact on the class 

resulting from employment decisions of white supervisors. 

There was no showing of systemic discrimination or disquali­

fication of members of the class at a disproportionately high 

rate by any criteria applied, subjective or otherwise.

The individuals did not prove that they were victims 

of disparate treatment by the Medical Center on the basis



20

of their race. The ultimate burden of proving racial dis­

crimination, regardless of its source, was on the individuals, 

and they failed to carry that burden.

The Medical Center advanced and proved by a preponderance 

of the evidence legitimate non-discriminatory bases for its 

employment decisions as to each of the individuals, and these 

bases were not shown to be pretextual. The criteria applied 

to each individual were not shown to be remote, insubstantial 

or unrelated to personal and objective qualifications or 

requirements for the positions or situations in question.

The district court did not limit the scope of discovery 

or otherwise hinder Grigsby's access to all potentially rele­

vant information in the preparation of his case. The district 

court's protective order addressed itself only to the scope 

of discovery by interrogatories and not to the scope of dis­

covery pursuant to other available alternative methods. Any 

prejudice to the presentation of Grigsby's case resulting 

from late certification of the class action and insufficient 

information was brought about by his own inaction and delay 

and failure to employ and pursue the procedures at all times

available to him.



ARGUMENT

21

POINT I

THE DISTRICT COURT PROPERLY FOUND THAT GRIGSBY 
DID NOT ESTABLISH A PRIMA FACIE CASE OF CLASS 
DISCRIMINATION BY THE MEDICAL CENTER

The instant case was certified and tried as an across- 

the-board class action on behalf of a plaintiff class defined 

as follows:

All present, discharged, laid off, and 
future black employees of defendant [Medical 
Center] who have been or may in the future 
be affected by any policy or practice of 
defendant of racial discrimination in the 
areas of initial job assignments, promotions, 
job classification, employee disciplinary actions, 
and termination of employment.

O.R. 146.

The delineation of the class was inclusively responsive 

to Grigsby's motion for class action determination, seeking 

to maintain an across-the-board attack, and as recommended 

by the magistrate. (O.R. 108, 114, 125-126).

In its findings of fact and conclusions of law rendered 

from the bench at the conclusion of trial, the district court 

held, infer alia, as follows with regard to the class aspects 

of the case:

. . . The proof in this case is overwhelming
that the defendant [Medical Center! does not 
discriminate against members of the black race 
in any manner whatsoever. This holding, of 
course, carries over to the plaintiff class 
as a whole . . .

T. 908-909. (Emphasis added).



In response to specific inquiry from Grigsby's counsel,

the district court stated further:

. • . The evidence offered by defendant is suf­
ficient for the Court to hold that as a matter 
of practice and procedure in the operation of 
the hospital, the defendant does not discriminate 
on the basis of race against any applicants for 
employment or against anyone in their employ.

* * *

[T]he Court believes that the proof was wholly 
insufficient to make out a prima facie case 
against the defendant as ftol the plaintiff 
class. Accordingly, the burden of proof never 
shifted to the defendant on the class issue.

T. 914, 915. (Emphasis added).

In arguing that Grigsby, as class representative, 

established a prima facie case of class discrimination by 

the Medical Center, primary reliance is placed on the cate­

gorical and unsubstantiated propositions: (1) "A prima

facie case of racial discrimination, under Title VII, is 

established by statistics alone"; and, (2) Grigsby made out 

a "compelling" statistical case. (Appellants' Brief at 21).

The Medical Center acknowledges that a prima facie case 

of racial discrimination may be established by statistical 

evidence alone, and that a violation of Title VII may be 

established by statistics as a matter of law. Sagers v . 

Yellow Freight System, Inc., 529 F .2d 721, 729, n.16 (5th 

Cir. 1976). These propositions, of course, necessarily 

presuppose the initial or unrebutted presentation of a 

statistical sample large enough to leave little doubt as



to its adequacy. See, e ■g ., Mayor of Philadelphia v. 

Educational Equality League, 415 U.S. 605, 620-621 (1974); 

Robinson v. City of Dallas, 514 F .2d 1271, 1273 (5th Cir.

1975); Ochoa v. Monsanto Co., 473 F .2d 318, 319-320 (5th 

Cir. 1973).

The statistical sample presented by Grigsby was limited 

to only five categories of employees (business office-clerical, 

housekeeping, dietary, professional and administrative/execu- 

tive) at two segments of the Medical Center's total operation, 

the Baldwyn Satellite Unit and the Mental Health Complex.

At the time of trial the Medical Center employed approximately 

1,120 employees; the Mental Health Complex and Baldwyn 

Satellite Unit together employed approximately 100 employees 

or 8.9 percent of the total workforce.

The most recent figures reflected in the record show 

that the above-mentioned categories at the Mental Health 

Complex and Baldwyn Satellite Unit represented the following 

percentages of the Medical Center's total employment: 

housekeeping (8 employees) (less than 1%); dietary (9 employees) 

(less than 1%); business office-clerical (17 employees) (1.5%); 

professionals (19 employees) (1.7X0 ("Ex. A" to Appellants'

Brief); administrative/executive (14 employees) (1.25%).

71

(P. Ex. 64 at 20).



24

The Medical Center accordingly agrees with Grigsby's

statement: "Most of the statistical data presented by

Plaintiffs . . . relates directly to the Mental Health

Complex and Baldwyn Satellite Unit and only by inference

to the remainder of the Medical Center". (Appellants'
1/

Brief at 8, n.l). The foregoing sample data presented by 

Grigsby do not give rise to a valid inference as to employ­

ment practices of the Medical Center as a whole with any 

significant degree of certainty.

"[S]tatistical evidence derived from an extremely 

small universe, as in the instant case, has little predictive 

value and must be disregarded." Harper v. Trans World 

Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975) . Accord, 

Morita v. Southern Cal. Permanente Medical Group, 541 F .2d 

217, 220 (9th Cir. 1976). The district court properly con­

cluded that Grigsby failed to prove a prima facie case of 

class discrimination, if, for no other reason, on the basis 

that the proof was wholly insufficient.

As to fourteen job classifications recited by Grigsby 

as having been "occupied solely by whites" (Appellants' Brief 

at 12-13; P. Ex. 64 at 13), there was no evidence presented

3/ As to Grigsby's contention that the district court 
improperly limited the scope of discovery with regard to 
across-the-board employment practices of the Medical Center, 
see Argument, Point III, infra at 45.



25

during the trial with regard to the numbers of employees 

holding positions in these classifications at the Mental 

Health Complex and Baldwyn Satellite Unit, the only segments 

of the Medical Center's workforce to which the information 

relates. More significantly, there was no demonstration at 

trial that any employee(s), black or white, ever were assigned 

to these classifications or the length of time these classi­

fications were filled or vacant.

Grigsby’s representation that up to 59 whites and no 

blacks have been employed at a given time in the category 

of officials and managers, the only category for which he 

proffered data relating to the Medical Center as a whole 

(Appellants' Brief at 9, n.2), is of questionable probative 

value since this information was taken from an EEO-1 report 

reflecting circumstances as of December 19, 1971, four years 

prior to trial. (P. Ex. 135). Furthermore, the categories 

reflected in Plaintiffs' Exhibits 135-138 (EEO-1 reports) 

are not interchangeable with the categories adduced at trial. 

(T. 161-167).

Grigsby apparently attaches weighty significance to 

a portion of the EEOC determination rendered in connection 

with Black's charge against the Medical Center in support 

of his argument that a prima facie case of class discrimina­

tion was shown. (Appellants' Brief at 13; P. Ex. 1 [90] at 5).



26

He also relies on this "compelling" determination in support 

of Black's individual claim. (Appellants' Brief at 18).

The evidentiary weight, if any, attaching to the meager 

statistical findings *set forth in the EEOC determination is 

of questionable significance, particularly in view of the 

fact that the determination was issued August 16, 1974, one 

and one-half years prior to the trial of the case and following 

a much earlier investigation by the Commission. The civil 

litigation at the district court level takes on the character 

of a trial de novo, completely separate from the actions of 

the EEOC. Smith v. Universal Services, Inc., 454 F .2d 154,

157 (5th Cir. 1972); see also same case on remand, 360 F.Supp. 

441, 447 (E.D. La. 1972).

The argument that across-the-board discrimination was 

demonstrated or buttressed by testimony that 44 percent of 

the employees terminated for cause are black, while blacks 

constitute 27 percent of the Medical Center's workforce, is 

undermined by the label attached to this figure— "for cause". 

Offenses and circumstances warranting discharge for cause 

are clearly delineated in the Medical Center's disciplinary 

policy and procedure (D. Ex. 33 at 22-24) and were explained 

to and examined by the district court. (T. 67-74). There 

was no proof of any policy, procedure or standard applied by 

the Medical Center and unrelated to the orderly and efficient



27

administration of the operation. In addition, there was 

no showing that any black individuals have ever been treated 

disparately with regard to disciplinary action or discharge 

for cause, nor was there evidence as to the total number of 

terminations or the "causes" therefor.

In determining whether a prima facie case of class 

discrimination has been proven, the most important inquiry 

is whether the class has established a history of broad patterns 

of institution-wide racially discriminatory employment practices. 

The stress is upon demonstration of the employer's broad employ­

ment policies and practices and the inferences remaining at 

the close of the evidence. Swint v. Pullman-Standard, 539 F.2d 

77, 93 (5th Cir. 1976).

In the instant case, the dearth of any significant evidence 

in the record, statistical or otherwise, presented by Grigsby 

in support of his across-the-board attack on the employment 

practices of the Medical Center, indicates that the district 

court properly concluded that a prima facie case of class

discrimination was not established.



POINT II

GRIGSBY DID NOT PROVE DISPARATE IMPACT ON THE 
CLASS RESULTING FROM EMPLOYMENT DECISIONS ALLEGEDLY 
BASED UPON THE SUBJECTIVE JUDGMENT OF WHITE SUPER­
VISORS; NOR DID THE INDIVIDUALS PROVE DISPARATE 
TREATMENT ON THE BASIS OF R A C E . __________________

A. The Class

Grigsby did not demonstrate disparate impact on 

the class resulting from employment decisions allegedly 

based upon the subjective judgment of an all-white supervisory 

staff, let alone that the Medical Center's supervisorv 

staff is all-white. The only evidence in the record as 

to the Medical Center's workforce as a whole in this regard 

indicates that the supervisory staff is not all-white.

There are at least six black supervisors in the workforce 

who supervise white employees, and at least an additional 

ten black supervisors directing the work of mixed units 

of black and white employees. There was no evidence 

presented as to the total number of supervisors in the Medical 

Center's workforce or the racial composition of the super-
i

visory staff.

With regard to promotion or discharge decisions, the 

only proof presented by Grigsby at trial was specifically



29

addressed to the individual circumstances of Grigsby, Black 

and Sneed, and, more remotely, with possible relevance to the 

circumstances of employees in only four job categories (house­

keeping, dietary, business office-clerical, and professional) 

at the Mental Health Complex and the Baldwyn Satellite Unit, 

the latest total number of positions in these four categories 

being 53, or 4.7% of the Medical Center's workforce. ("Ex. A" 

to Appellants' Brief).

As indicated earlier, it is clear that Grigsby failed 

to prove a prima facie case of class discrimination in any 

regard, particularly as to disparate impact upon the class 

resulting from employment decisions allegedly based entirely 

upon the subjective judgment of an all-white supervisory 

staff. Even assuming the application of subjective criteria 

in the Medical Center's employment decisions, there was no 

showing of resultant disparate impact or discriminatory con­

sequences to the class of the Medical Center's black employees 

at large.

There is nothing unlawful about the use of subjective 

criteria in and of itself. As noted by the Eighth Circuit:

[Subjective criteria] are not to be condemned 
as unlawful per se, for in all fairness to 
applicants and employers alike, decisions about 
hiring and promotion in supervisory and managerial



30

jobs cannot realistically be made using objective 
standards alone.

Rogers v. International Paper Co., 510 F .2d 1340/
1345 (8th Cir. 1975), vac'd. and rem'd. on another 
issue. 423 U.S. 809 (1975).

Possible illegality arises only if the use of the

criteria results in a substantial disparate impact on a

protected group. As observed by the Fifth Circuit in Hester

v. Southern Railway Co., 497 F .2d 1374, 1381 (5th Cir. 1974):

. . . [S]ubjective hiring procedures are
not violative of Title VII per se. Title 
VII comes into play only when such practices 
result in discrimination.

There was no significant statistical showing of disparate 

impact in this case. The statistical evidence should be 

supportive of an inference of systemic discrimination in order 

to establish disparate impact, and there was no proof that 

members of the purported class at large were disqualified 

at a disproportionately high rate by any criteria applied, 

subjective or otherwise. The mere showing that white super­

visory personnel made the employment decisions challenged 

by the individual complainants is not proof of disparate 

impact upon the individuals or the class at large.

Even assuming, arguendo, the presence of any of the

aspects of a promotion system considered inadequate in 

Watkins v. Scott Paper Co., 530 F .2d 1159, 1193 (5th Cir. 1975),



n

cert, denied ______  U.S. _______ , 50 L.Ed.2.d 139 (1976),

the fact remains that Grigsby failed to establish a dis­

criminatory effect upon the class, thereby subjecting such 

aspects to the scrutiny of the district court.

Grigsby's argument that "deficiencies" have resulted 

in blacks being passed over for all meaningful promotions 

(Appellants' Brief at 26) is not supported by evidence in the 

record. The assertion that "not one of its [the Medical 

Center's] black employees 'in the ordinary course of his 

duties . . . exercises general supervisory authority over 

any white person or persons,'" (Appellants' Brief at 26) 

is contrary to the evidence adduced at trial.

Even assuming the validity of Grigsby's apparent assertion 

that no promotion is "meaningful" unless the individual 

exercises supervisory authority over white employees, the 

record clearly shows that the Medical Center has a number 

of black supervisors who direct the work of white employees and 

an additional number of black supervisors who direct the 

work of mixed units of blacks and whites. More significantly, 

discriminatory effect upon the class as a consequence of any 

policy or practice of the Medical Center simply was not demon­

strated. Grigsby's argument on this point is grounded only

upon data dealing with the Mental Health Complex and Baldwyn



Satellite Unit, the total staffs of which comprise less 

than 9% of the Medical Center's workforce.

In view of the foregoing and the obvious failure to 

establish disparate impact with regard to employment decisions 

as applied to the class at large, it is appropriate, then, 

to focus attention on the claims of the individuals, Grigsby, 

Black and Sneed.

B . The Individuals

Whether the district court in concluding that the 

individuals had established a prima facie case relied upon 

Watkins, supra, and its theory of disparate impact as an 

analytical departure point, is open to doubt. In view of 

Grigsby's obvious failure to lay the predicate for application 

of any disparate impact theory, it is just as likely the district 

court's analysis of the individual claims was fundamentally, 

or also, premised on the question of disparate treatment.

When approaching the proof of a disparate treatment case, 

the ultimate focus of the inquiry, and thus the proof, is 

whether or not the decision or action in question was "racially 

premised". McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 

n.18 (1973). Motivation and intent are the ultimate issue, in 

contrast to the issue in a disparate impact case, which focuses

on the consequences of employment practices, not simply the



33

motivation . Griggs v. Duke Power Co., 401 U.S. 424, 432 

(1971) . The plaintiff bears the ultimate burden of making 

that showing by a preponderance of the evidence. Accord,

Causey v. Ford Motor Co., 516 F .2d 416, 420, n.6 (5th Cir.

1975). The fallacy with Grigsby's reasoning is that he assumes 

the ultimate burden was on the Medical Center to prove non­

discrimination; however, the ultimate burden was on Grigsby 

and the individuals to affirmatively prove racial discrimination, 

regardless of its source, and this they failed to do.

While significant statistics may be relevant in proving an

individual case, just as they may be in a class action, the

Fifth Circuit observed in Terrell v. Feldstein Co., 468 F.2d

910, 911 (5th Cir. 1972):

Although statistical evidence of a pattern or 
practice of discrimination is of probative 
value in an individual discrimination case for 
the purpose of showing motive, intent, or 
purpose . . .  it is not determinative of an 
employer's reason for the action taken against 
the individual grievant.

(Citation omitted).

In the individual case, the ultimate issue is proof of 

discrimination against the individual, not the plaintiff's 

class in general. If the plaintiff intends to rely on statistics, 

he must make the statistical proof more specifically relevant 

to the treatment accorded him or her, as opposed to treatment



34

accorded the class in general; more particularly, what is 

normally required is proof of inconsistent application of the 

articulated non-racially premised basis for the challenged 

employment decision or a demonstration of its pretextual 

nature- See, e-g., McDonnell Douglas, supra; East v. Romine,

Inc., 518 F .2d 332, 339-340 (5th Cir. 1975).

1. Grigsby

Grigsby's claim is that he was discharged on account 

of his race. (T. 899). On the merits of his claim, the district 

court held that the evidence demonstrated Grigsby was terminated 

by the Medical Center, not because of his race, but because 

his supervisor, Clark, did not believe Grigsby was adequately 

performing his job. Weighing the evidence presented, the 

district court concluded that Grigsby's discharge was for 

cause and was completely unrelated to his ra,ce.

The district court further found that although Grigsby 

was ultimately replaced by a white, his replacement, Van Horn, 

was well qualified for the position, possessing training in 

a mental health discipline and clinical experience, the lack 

of which in Grigsby were among the reasons which led to his 

discharge. It was also found that other reasons for Grigsby's 

termination included his failure to follow up on contacts with 

personnel managers of various industries in the area and his



failure to procure the participation of industrial plants 

in the alcoholic program. (T. 901-902).

The Medical Center more than adequately articulated and 

substantiated legitimate, non-discriminatory reasons for 

Grigsby's termination and demonstrated by a preponderance of 

the evidence that its decision to terminate Grigsby was not 

racially premised.

The evidence shows that Grigsby was replaced as a result 

of the following factors: his non-productivity in terms of

securing written agreements from employers to participate in 

the "troubled employee" program; the negative response from 

representatives of various employers and a Regional Mental 

Health Commissioner, indicating an assessment that Grigsby's 

approach in presenting the program had been unprofessional, 

too aggressive, and ineffective; the expressed needs of various 

contacted employers, relative to the program itself, indicating 

that a more clinical orientation would have to be adopted; and, 

as a result of the immediately foregoing, a determination that 

the primary qualifications essential for the position were 

clinical experience and training in a mental health discipline, 

neither of which Grigsby possessed.

There is no evidence to suggest that Grigsby’s race had 

anything whatsoever to do with the treatment accorded him



36

during his employment by the Medical Center, and the district 

court properly concluded that "race played absolutely no 

part in Mr. Clark's decision". (T. 903).

The suggestion that Grigsby proved by a preponderance of 

the evidence that he performed satisfactorily, that he 

possessed the necessary qualifications for the position, and 

that the white who replaced him was not more qualified (Appellants' 

Brief at 27) is not borne out by the record.

The contention that the district court required him to 

prove more, e.g., "that he was intentionally and in bad faith 

victimized," loses what significance it might otherwise have 

in view of the inadequacies of his proof, both as to the class 

and in his individual case, on the notion of disparate impact 

resulting from an employment decision allegedly based on the 

application of subjective criteria by a white supervisor.

The record shows that the criteria applied by Clark in 

reaching his determination to replace Grigsby were objective, 

job-related, and in no way influenced by Grigby's race. Grigsby 

simply failed to prove the application by Clark or the Medical 

Center of any device resulting in sweeping disqualification 

of members of Grigsby's class, or of Grigsby as an individual, 

on the basis of factors remote, insubstantial or unrelated to 

personal and objective qualifications for the position in

question.



37

If, as Grigsby suggests, he was in fact "victimized", 

it is apparent from the record that ho was "victimized" by his 

inability to produce, negative response, and his lack of 

clinical experience and training in a mental health discipline, 

and not, as he contends, because of his race. The district 

court's conclusion on this point is supported by substantial 

evidence.

Grigsby cites East v. Romine, Inc., 518 F.2d 332 (5th 

Cir. 1975), in arguing that the district court's refusal to 

compare the qualifications of named-plaintiffs with those of 

the whites who obtained the positions sought or held by them 

was clearly improper under controlling principles. (Appellants' 

Brief at 27). A review of the facts in East, supra, indicates 

that reliance on this authority is misplaced.

In East, the sole reason advanced by the employer to rebut 

a rejected applicant's prima facie case of discriminatory 

refusal to hire was unsatisfactory work history. The flaw in 

the district court's analysis was a failure to compare the 

work history of East with those of individuals employed. Thus, 

there was a lack of comparative evidence with regard to the 

crucial factor underlying the challenged employment decision.

Id. at 339.

As established in the record and found by the district 

court in the instant case, the factors influencing the decision



to terminate and replace Grigsby were non-productivity, negative 

response, lack of clinical experience, and lack of training in 

a mental health discipline. The criteria applied in reaching 

the decision to employ Grigsby's replacement, Van Horn, (indeed, 

the only available criteria under the circumstances) were his 

clinical experience and training in a mental health discipline.

It is apparent, therefore, that the only common factors avail­

able for comparison were clinical experience and training in a 

mental health discipline.

To insist that the district court make comparisons where 

there are not common factors stretches to the absurd the 

rationale elucidated in East. The district court could not 

possibly have compared Grigsby's demonstrated non-productivity, 

and concomitant negative reaction from employers, with Van Horn's 

experience, since Van Horn had never been in the same,or a 

similar position, and had just completed his graduate training.

In the instant case evidence of comparable data was 

presented by the Medical Center, the evidence was addressed 

to the issue, and the district court passed upon such evidence, 

finding that Van Horn was well qualified for the position, 

possessing clinical experience and training in a mental health 

discipline, the lack of which in Grigsby were among the reasons



which led to his termination. The district court had earlier 

found that the other reasons for Grigsby's termination 

included his failure to follow up contacts with personnel 

managers and his failure to procure participation in the 

program. (T. 902).

2. Black

Black's claim is that he was denied a promotion and 

constructively discharged because of his race. (T. 900, 901) .

The district court found that following the resignation of 

Ramage as coordinator of counselors on or about January 1,

1973, for budgetary reasons it was decided to leave the 

position open for an indefinite period. In July, 1973, it 

was determined that the time had arrived to fill the vacant 

position, and Clark, Fleming and Johnson, Executive Director 

of the funding agency, concluded that there was no one currently 

on the staff, including Black, possessing the necessary 

qualifications for the position. (T. 904).

The district court further found that once it. was determined 

to seek applicants from outside, notice of the vacancy was pub­

lished and, the staff was advised that the position would be 

filled. (T. 904). At the conclusion of Lhe recruitment program, 

Clark, Fleming and Johnson selected Ferguson as Ramage's suc­

cessor, feeling that he was best qualified for the position

19



from among all applicants for the job. He alone among the 

applicants possessed clinical counseling experience in a 

supervisory capacity, having spent approximately nine months 

as supervisor of counselors in a half-way house at Fort Benning, 

Georgia. (T. 905) .

The district court observed that following the selection 

of Ferguson, Black was promoted to the position of counselor 

coordinator in the Tupelo area, but rather than continuing 

to serve in his new position, "apparently in a fit of pique 

because the promotion he received was not as great as that to 

which he felt he was entitled". Black elected to resign. (T. 905) 

The district court held that Black's resignation was entirely 

voluntary and in no way amounted to constructive discharge by 

the Medical Center. (T. 905). Accordingly, it was concluded 

that the Medical Center did not discriminatorily refuse Black 

a promotion nor was his resignation precipitated by any action 

of the Medical Center based upon his race. (T. 905-906).

The record shows that Black was not discriminated against 

in his employment on the basis of race. The Medical Center 

advanced and established by a preponderance of the evidence 

a legitimate, non-discriminatory reason for Black's failure 

to attain the promotion to which he claims he was entitled.

The Medical Center demonstrated that the objective 

criteria applied in considering both staff personnel and



outside applicants for the coordinator of counselors position 

were intensive clinical training and experience in a super­

visory capacity. The evidence shows that such training and 

experience was not possessed by Black or any other member of 

the current staff, black or white. Black failed to prove his 

qualifications for the coordinator of counselors position or that 

the reasons advanced by the Medical Center in support of its 

decision were pretextual and unrelated to job performance.

The Medical Center showed that Ferguson met the qualifica­

tions deemed necessary for the position and that his clinical 

experience and supervisory training were superior to Black's and 

the other staff members and outside applicants, black and white.

Black's claim that he was in effect "constructively dis­

charged" when he voluntarily resigned his newly acquired position 

as counselor coordinator, Tupelo area, is without factual or 

legal foundation.

The general rule is that if an employer deliberately makes 

the employee's working conditions so intolerable that the employee 

is forced into an involuntary resignation, then the employer has 

encompassed a constructive discharge. Young v. Southwestern 

Savings & Loan Association, 509 F .2d 140, 144 (5th Cir. 1975).

As thus defined, in order to support a claim of constructive 

discharge it must be shown that the employer deliberately imposed 

intolerable working conditions of such force as to compel the



finding that under the circumstances as were shown to exist 

surrounding her work, the Medical Center was justified in 

terminating her employment. (T. 908).

The affirmative evidence offered by the Medical Center, 

the lack of adequate proof offered by Sneed, and the incon­

sistency of her testimony, within and without the courtroom, 

support the district court's finding and conclusion with regard 

to her claim. It was not proven that Sneed was terminated for 

absenteeism necessitated by an on-the-job injury in the face of 

a Medical Center policy not to terminate employees under such 

circumstances. (Appellants' Brief at 28).

Sneed's testimony as to the circumstances surrounding her 

termination is patently inconsistent as to the operative and 

material dates involved. There is no evidence to corroborate 

her assertion that she was hospitalized at the time of her 

termination; specifically, there is no evidence that Sneed 

was in fact hospitalized after February 23, her last hospitali­

zation having been for only one week, beginning on February 5, 

1974. (T. 625-626). According to her testimony, she would

have been terminated by the Medical Center while hospitalized 

not later than February 12, 1974, and her last day at work was 

February 23, 1974. Failing to report to work or call in from 

that date forward, she was finally terminated for absenteeism,

effective March 4, 1974. (D. Ex. 27, 29).



The Medical Center offered testimony that Sneed had been 

released by her physician to return to work prior to her termina­

tion. (T. 831). The record simply does not permit any consistent 

interpretation of Sneed's testimony to lead to the conclusion that 

she was hospitalized at the time she was terminated. Further­

more, there is no proof in the record that any white employee 

of the Medical Center, under circumstances identical to or even 

similar to those of Sneed, was ever treated differently than she. 

(T. 638) .

The record also shows that in her deposition she had testi­

fied under oath in two direct answers to two direct questions 

that race had nothing to do with her termination. Sneed's 

deposition testimony is reflected in the record (T. 620-621), 

and the district court specifically elicited from her that she 

was changing her testimony after having already sworn to it 

otherwise under oath.(T. 636-637).

The Medical Center does not, as Grigsby suggests, rely 

entirely upon the fact that Sneed, under oath, stated in her 

deposition that she did not think her race was a factor in 

her treatment. (Appellants' Brief at 28). The contradictory 

testimony in Sneed's deposition, the inconsistencies in her 

testimony at trial, and direct contradiction by the Medical 

Center combined to raise a credibility issue as to the cir­

cumstances surrounding her termination.

44



Credibility involves more than demeanor and comprehends an 

overall evaluation of testimony in the light of its rationality 

or internal consistency and the manner in which it hangs togethe 

with other evidence. Choices of credibility are within the 

discretion and prerogative of the trial court, and its decision 

should not be overturned except under most unusual circumstances 

Blunt v. Marion County School Board, 515 F .2d 951, 958 (5th 

Cir. 1975) ; see also 9 Wright & Miller, Federal Practice and 

Procedure: Civil §2586 (1971).

The Medical Center does not dispute the contention that 

the issue as to Sneed was whether she was in fact "victimized" 

on account of her race. The district court's conclusion that 

race had nothing whatsoever to do with her termination was 

supported by the evidence and the circumstances of her testimony

POINT III

THE DISTRICT COURT DID NOT LIMIT THE SCOPE
OF DISCOVERY_______________________________

Grigsby's contention that the district court improperly 

limited discovery indicates either a misconstruction of the 

district court's protective order (O.R. 89) or a failure to 

comprehend the variety of discovery vehicles available under 

the Federal Rules of Civil Procedure.

The ruling of the district court on the Medical Center's 

motion for protective order dealt only with the propriety of



/I(.

the scope of discovery sought by interrogatories pursuant, to 

Rule 33, F.R.Civ.P. The district court did not restrict Grigsby's 

right to employ other available discovery methods or the scope 

of discovery pursuant thereto. Grigsby did not subsequently 

seek discovery of information or inquire as to the existence of 

records or documentary evidence in connection with the Medical 

Center's employment practices as a whole by any other appropriate 

method (e.g., a request to produce documents or other records 

for inspection or copying pursuant to Rule 34, F.R.Civ.P.).

The Medical Center's motion for protective order was 

grounded on an objection to the burden and expense required to 

compile answers to the interrogatories. The motion did not 

seek to limit the scope of discovery across-the-board by any 

other available discovery methods, nor did it request that 

discovery on any aspect of its total operation not be had.

(O.R. 54). The protective order was responsive to the motion, 

was limited solely to the scope of discovery by way of inter­

rogatories, and merely relieved the Medical Center of the burden 

of compiling answers to interrogatories covering its entire 

operation for a period of fifteen years retroactively. (O.R. 80-90).

Grigsby should not be heard to complain that his ability 

to make an adequate presentation at trial was prejudiced, since 

any difficulties he incurred were brought about by his failure 

to employ available alternative discovery methods and his inaction



and delay with regard to certification of the class action, 

his motion for such having not been filed until January 12, 1976 

(O.R. 108), and then only upon direction by the district court, 

(O.R. 106) approximately one and one-half years after the action 

initially had been filed, eight months after the Medical Center 

filed its answers to Grigsby's last interrogatories (P.Ex. 64), 

two months after the case had been set for trial (O.R. 104), and 

six weeks before the date set for trial, February 23, 1976.

Grigsby cannot complain that he encountered the insur­

mountable burden of proving across-the-board unlawful dis­

crimination following class certification as to the Medical 

Center's employment practices as a whole when he not only 

slept on his discovery rights throughout the pendency of the 

case, but also failed to request a class determination until 

six weeks before the date set for trial.

As to Grigsby's assertion that he "could not possibly 

adequately present proof of class discrimination in all facets 

of the hospital", (Appellants' Brief at 30), it is obvious 

that Grigsby's difficulties in this regard were precipitated 

by his own inaction. Furthermore, discovery was never "fore­

closed" by the district court at any time during the proceeding 

(except upon the setting of the case for trial and a cut-off 

date for completion of discovery), and Grigsby was not prohibited 

or prevented from advancing "a more complete statistical case"



other than as a result of his own failure timely to employ 

and pursue the procedures at all times available to him.

Rule 26(a) specifically provides: "Unless the court

orders otherwise under subdivision (c) of this rule, the 

frequency of use of these methods is not limited". The fact 

that a party has resorted to a particular method of discovery 

does not bar subsequent use of other discovery devices.

4 Moore's Federal Practice, 526.50 at 26-87, 26-92 (1976).

In Burns v. Thiokol Chemical Corp., 483 F .2d 300 (5th 

Cir. 1973), the Fifth Circuit, after first observing that 

"open disclosure of all potentially relevant information is 

the keynote of the Federal Discovery Rules", noted that neither 

the judge nor the parties need be irrevocably committed to 

discovery by interrogatories, and that alternative means may 

be employed. Id. at 307-308.

There is no indication in Burns that it is incumbent upon 

a discovery respondent to affirmatively elect the option under 

Rule 33(c) when seeking a protective order directed to the 

answering of interrogatories it considers burdensome and op­

pressive. Likewise, while the Fifth Circuit noted in Burns 

that the judge may direct that alternative means be employed, 

there is no indication that it is incumbent upon the district 

court, sua sponte, to so direct or to otherwise inform a party

seeking discovery as to the alternative means, at his disposal.



4')

If there was ever any question in counsel's mind as to whether 

the scope of discovery in and of itself was limited by the 

district court, and it clearly was not, it was incumbent upon 

him to seek clarification in this regard.

The record in the instant case contains sufficient sub­

sidiary facts to undergird the ultimate finding that the 

Medical Center did not engage in discriminatory employment 

practices against the class or the individuals.

Based upon the foregoing, the judgment of the district 

court should be affirmed in its entirety.

CONCLUSION

Respectfully submitted.

Mitchell, McNutt, Bush, 
Lagrone & Sams, P.A.
P. 0. Box 466
Tupelo, Mississippi 38801

Attorneys for Defendant-Appellee



50

CERTIFICATE OF SERVICE

I, Guy Mitchell, Jr., attorney of record for Defendant- 

Appellee, hereby certify that I have this date served copies 

of the foregoing Brief of Defendant-Appellee on Honorable 

Melvyn R. Leventhal, Attorney at Law, 10 Columbus Circle,

New York, New York 10019, and Honorable Kenneth Mayfield, 

Attorney at Law, 303 1/2 West Main Street, Tupelo, Mississippi 

38801, attorneys of record for Plaintiffs-Appe Hants, by 

depositing same in the United States Mail, postage prepaid.

This, the 18th day of March, 1977.

*